This compilation was prepared on 19 April 2010 taking into account amendments up to Act No. 44 of 2010
Volume 2 includes: Table of Contents Sections 10.01 – 178 Schedule
The text of any of those amendments not in force on that date is appended in the Notes section
The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section
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...............................................................................10
10.03 Designated shipper bodies...............................................................11
Division 2—Additional restrictive trade practice provisions applying to ocean carriers 13
10.04 Application of section 46 in relation to conference agreements.......................................................................................13
Division 3—Minimum standards for conference agreements 14
10.06 Application of Australian law to outwards conference agreements and withdrawal from agreements..................................14
10.07 Minimum levels of shipping services to be specified in conference agreements ....................................................................14
10.08 Conference agreements may include only certain restrictive trade practice provisions..................................................................14
10.09 Where may consequences of conference agreements not complying with minimum standards be found?...............................16
Division 4—Registers and files and public inspection of them 17
10.10 Registers and conference agreement files open to public inspection ........................................................................................17
10.11 What registers are to be kept by the Registrar? ...............................17
10.12 What conference agreement files are to be kept by the Registrar? ........................................................................................17
10.13 What register is to be kept by the Commission?..............................18
Division 5—Exemptions from certain restrictive trade practice prohibitions 19
Subdivision A—Exemptions relating to conference agreements 19
10.14 Exemptionsapply only to certain activities.....................................19
10.15 When do exemptions commence to apply in relation to registered conference agreements?..................................................19
10.16 Exemptions do not apply to variations of conference agreement unless varying agreement registered ..............................20
10.17 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45...............................................................................20
10.17A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements....................................21
10.18 Exemption from section 47..............................................................22
10.18A Exemptions from section 47for freightrate agreements.................22
Subdivision B—Exemptions relating to loyalty agreements 23
10.19 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45...............................................................................23
10.20 Exemption from section 47..............................................................23
10.21 Exemptions cease to apply in relation to a shipper at the shipper’s option...............................................................................24
Subdivision D—Other exemptions 24
10.24 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations....................24
10.24A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to stevedoring contracts.................25
Division 6—Registration of conference agreements 26
Subdivision A—Provisional registration 26
10.25 Application for provisional registration of conference agreement ........................................................................................26
10.26 How application is to be made and verified.....................................26
10.27 Copy of agreement to be filed with application etc. ........................26
10.27A Copy of conference agreement to be given to designated peak shipper body............................................................................27
10.28 Decision on application for provisional registration........................28
10.29 Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement ........................................................................................29
Subdivision B—Final registration 31
10.30 Application for final registration of conference agreement.............31
10.31 How application is to be made and verified.....................................31
10.32 Copy of agreement to be filed with application etc. ........................32
10.33 Decision on application for final registration ..................................32
Subdivision C—Confidentiality requests 34
10.34 Request for confidentiality ..............................................................34
10.35 Abstract to accompany request for confidentiality ..........................34
10.36 Examination of abstract...................................................................34
10.37 Decision on request for confidentiality............................................35
10.38 Application for registration to be returned where request for confidentiality refused etc. ..............................................................36
Subdivision D—Miscellaneous 36
10.39 Application also to be made for registration of varying conference agreements ....................................................................36
10.40 Notification of happening of affecting events prior to final registration etc.................................................................................37
Trade Practices Act 1974
Division 7—Obligations of ocean carriers in relation to registered conference agreements 39
10.41 Parties to registered conference agreement to negotiate with certain designated shipper bodies etc...............................................39
10.42 Application to be made for registration of varying conference agreements ....................................................................41
10.43 Parties to registered conference agreement to notify happening of affecting events etc. ...................................................41
Division 8—Powers of Minister in relation to registered conference agreements 43
10.44 Powers exercisable by Minister in relation to registered conference agreements etc...............................................................43
10.45 Circumstances in which Minister may exercise powers in relation to registered conference agreements...................................44
10.46 Action to be taken where powers exercised by Minister without first obtaining Commission report......................................47
10.47 Investigation and report by Commission on reference by Minister ...........................................................................................48
10.48 Investigation and report by Commission on own initiative or on application byaffected person....................................................49
10.49 Undertakings by parties to registered conference agreement...........50 10.49A Enforcement of undertakings...........................................................51
Division 9—Obligations of non-conference ocean carriers with substantial market power 52
10.50 Investigations by Commission into market power of ocean carriers.............................................................................................52
10.51 Determination by Minister of market power of ocean carriers........52
10.52 Non-conference ocean carrier with substantial market power to negotiate with certain designated shipperbodies etc...................53
10.53 Non-conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc........................55
Division 10—Powers of Minister in relation to non-conference ocean carriers with substantial market power 56
10.54 Powers exercisable by Minister in relation to obligations of non-conference ocean carriers with substantial market power ........56
10.55 Circumstances in which Minister may exercise powers ..................56
10.56 Action to be taken where powers exercised by Minister without first obtaining Commission report......................................57
10.57 Investigation and report by Commission on reference by Minister ...........................................................................................58
10.58 Investigation and report by Commission on application by affected person ................................................................................58
10.59 Undertakings by ocean carrier.........................................................59
10.60 Enforcementof orders and undertakings.........................................59
Division 11—Unfair pricing practices
10.61 Powers exercisable by Minister in relation to pricing practices etc.....................................................................................61
10.62 Circumstances in which Minister may exercise powers ..................61
10.63 Investigation and report by Commission.........................................62
10.64 Undertakings not to engage in pricing practices..............................62
10.65 Enforcementof orders and undertakings.........................................63
10.66 Determination of normal freight rates for shipping services............63
10.67 Determination of whether practice contrary to national interest .............................................................................................64
Division 12—Registration of ocean carrier agents 65
10.68 Ocean carrier who provides international liner cargo shipping services to have registered agent.......................................65
10.69 Representation of ocean carrier byregistered agent........................65
10.70 Application byocean carrier for registration of agent.....................66
10.71 Registration of agent........................................................................66
10.72 Change of agentetc.........................................................................66
Division 12A—Exemption orders for inwards conference agreements etc. 68 10.72A Exemption orders for inwards conference agreements etc...............68 10.72B Criteria for making exemptionorder...............................................68 10.72C Duration of exemption order may be limited...................................69 10.72D Conditionsofexemption order........................................................69
Division 13—General provisions relating to registers and conference agreement files 70
10.73 Form of registers and conference agreement files...........................70
10.74 Deletion of entries wrongly existing in certain registers..................70
10.75 Deletion of obsolete entries in certain registers...............................70
10.76 Correction of clerical errors and other mistakes in certain registers etc......................................................................................70
Division 14—Administration 71
10.77 Registrarof Liner Shipping.............................................................71
10.78 Appointment of Registrar etc...........................................................71
10.79 Acting Registrar ..............................................................................71
10.80 Registrar and staff to be public servants..........................................71
10.81 Delegation by Minister....................................................................71
10.82 Delegation by Registrar...................................................................71
Division 14A—Review of decisions of Commission 72 10.82A Review by Tribunal.........................................................................72 10.82B Functions and powers of Tribunal...................................................72 10.82C Provisions that do not apply in relation to a Tribunal review..........73
Trade Practices Act 1974
Division 14B—Review of decisions of Minister 74 10.82D Review by Tribunal.........................................................................74 10.82E Functions and powers of Tribunal...................................................75 10.82F Modifying register after Tribunal review ........................................75 10.82G Provisions that do not apply in relation to a Tribunal review..........76
Division 15—Miscellaneous 77
10.83 Act not to affectrights under Freedom of Information Act.............77
10.84 Review of decisions of Registrar.....................................................77
10.85 Statement to accompany notices of Registrar..................................77
10.86 Evidence..........................................................................................78
10.87 Notification by Commission of references etc.................................78
10.88 Exclusion of documents etc. from register of Commission investigations...................................................................................78
10.89 Disclosure of confidential information............................................80
10.90 Fees .................................................................................................81
10.91 Application of Part XID and section 155 to investigations under Part ........................................................................................82
Part XIA—The Competition Code 83 150A Definitions.......................................................................................83 150B Objects of this Part..........................................................................84 150C The Competition Code ....................................................................84 150D Federal Court may exercise jurisdiction under application
laws of Territories............................................................................85
150E Exercise of jurisdiction under cross-vesting provisions...................85
150F Commonwealth consent to conferral of functions etc. on
Commonwealth entities...................................................................85 150FA How duty is imposed.......................................................................86 150FB When an application law imposes a duty.........................................87 150G Application laws may operateconcurrently with this Act...............87 150H No doubling-up of liabilities............................................................87 150I References in instruments to the Competition Code........................87 150J Authorisations etc. under this Act may relate also to
Competition Code............................................................................88 150K Gazettal of jurisdictions that excessivelymodify the Code.............88
Part XIB—The Telecommunications Industry: Anti-competitive conduct and record-keeping rules 89
Division 1—Introduction 89 151AA Simplified outline............................................................................89 151AB Definitions.......................................................................................90 151AC Extension to external Territories .....................................................92 151AD Continuityof partnerships...............................................................92 151AE Additionaloperation ofPart............................................................92
151AF Telecommunications market............................................................93 151AG When a body corporate is related to a partnership...........................93 151AH Degree of power in a telecommunications market...........................93 151AI Interpretation of Part IV or VII not affected by this Part.................95
Division 2—Anti-competitive conduct 96 151AJ Anti-competitive conduct................................................................96 151AK The competition rule........................................................................99
Division 3—Competition notices and exemption orders 100
Subdivision A—Competition notices 100 151AKAPart A competition notices.............................................................100 151AL Part B competition notices.............................................................102 151AM Competition notice to be given to carrier or carriage service
provider .........................................................................................102 151AN Evidentiary effect of competition notice........................................103 151AO Duration of Part A competition notice...........................................103 151AOAVariation of competition notice .....................................................103 151AOBRevocation of competition notice...................................................104 151AP Guidelines......................................................................................104 151AQ Commission to act expeditiously...................................................104 151AQAStay of proceedings relating to competition notices.......................104 151AQBAdvisory notices ............................................................................105 151AR Registerof competition notices.....................................................106
Subdivision B—Exemption orders 107 151AS Exemption orders...........................................................................107 151AT Form of application .......................................................................107 151AU Further information .......................................................................108 151AV Withdrawal of application.............................................................108 151AW Commission must publicise receipt of applications.......................108 151AX Commission may refuse to consider application if it relates
to the same conduct as anauthorisation application......................108 151AY Commission may refuse to consider application if it relates
to the same conduct as aPart VII notification...............................109 151AZ Commission may convene conference to discuss application........109 151BA Commission must grant or reject application ................................110 151BB Commission to give opportunity for submissions..........................110 151BC Criteria for making exemptionorder.............................................110 151BD Notificationof decision.................................................................112 151BE Duration of exemption order may be limited.................................112 151BF Conditions of exemption order......................................................112 151BG Revocation of exemption order .....................................................112 151BH Register of exemption orders.........................................................113
Subdivision C—Miscellaneous 114 151BJ Conduct includes proposed conduct..............................................114
Division 4—Tariff filing 115 151BK Tariff filing directions ...................................................................115 151BL Specification of goods and services...............................................117 151BM Notification of reasons ..................................................................117 151BN Duration of direction may be limited.............................................117 151BO Revocation of direction .................................................................117 151BP Variation of direction ....................................................................118 151BQ Public access to tariff information.................................................118 151BR Registerof tariff filing directions..................................................119 151BT Meaning of terms and conditions ..................................................120
Division 5—Tariff filing by Telstra 121 151BTA Tarifffiling by Telstra...................................................................121
Division 6—Record-keeping rules and disclosure directions 123 151BU Commission may make record-keeping rules................................123 151BUAAMinister may give directions to Commission..............................124 151BUAAAMinister to give direction to Commission about Telstra’s
wholesale operations and retail operations....................................125 151BUABRequest for disclosure .................................................................126 151BUACommission gives access to reports...............................................127 151BUB Carrier or carriage service provider gives access to reports...........129 151BUC Carrier or carriage service provider gives access to periodic
reports............................................................................................132 151BUDExemption of reports from access requirements ............................135 151BUDACommission gives access to Ministerially-directed reports.........136 151BUDBCarrier or carriage service provider gives access to
Ministerially-directed reports ........................................................138 151BUDCCarrier or carriage service provider gives access to
Ministerially-directed periodic reports ..........................................140 151BUE Access via the internet...................................................................142 151BUF Self-incrimination..........................................................................143 151BV Incorrect records............................................................................143
Division 7—Enforcement of the competition rule, tariff filing directions, record-keeping rules and disclosure directions 144 151BW Person involved in a contravention of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction.........................................................................................144 151BX Pecuniary penalties for breach of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction.........................................................................................144 151BY Civil action for recovery of pecuniary penalties............................146
151BZ Criminal proceedings not to be brought for contraventions of the competition rule, tariff filing directions, record-keeping rules or disclosure directions.........................................................147
151CA Injunctions.....................................................................................147 151CB Orders to disclose information or publish an advertisement—
breach of the competitionrule.......................................................149 151CC Actions for damages—breach of the competition rule ..................150 151CD Finding of fact in proceedings tobe evidence...............................150 151CE Other orders—compensation for breach of the competition
rule.................................................................................................151 151CF Conduct by directors, employees or agents ...................................152
Division 8—Disclosure of documents by Commission 153 151CG Disclosure of documents by Commission......................................153
Division 9—Treatment of partnerships 155 151CH Treatment of partnerships..............................................................155
Division 10—Review of decisions 156 151CI Review by Tribunal.......................................................................156 151CJ Functions and powers of Tribunal.................................................157 151CK Provisions that do not applyin relation to a Tribunal review........158
Division 11—Reviews of competitive safeguards within the telecommunications industry 159 151CL Reviews of competitive safeguards within the telecommunications industry.........................................................159
Division 12—Monitoring of telecommunications charges paid by consumers 160 151CM Monitoring of telecommunications charges paid by consumers......................................................................................160
Division 12A—Reports about competition in the telecommunications industry 162 151CMAPublic reports about competition in the telecommunications industry..........................................................................................162 151CMBConfidential reports about competition in the telecommunications industry.........................................................163 151CMCExamples of matters that may be specified in a determination under section 151CMA or 151CMB..............................................163
Division 13—Review of operation of this Part 165 151CN Review of operation of this Part....................................................165
Division 14—Operational separation for Telstra 166 151CP Operational separation for Telstra .................................................166
Trade Practices Act 1974
Part XIC—Telecommunications access regime 167
Division 1—Introduction 167 152AA Simplified outline..........................................................................167 152AB Object of this Part..........................................................................168 152AC Definitions.....................................................................................170 152AD This Part binds the Crown.............................................................172 152AE Extension to external Territories ...................................................173 152AF Access ...........................................................................................173 152AG Access seeker ................................................................................173 152AH Reasonableness—terms and conditions.........................................173 152AJ Interpretation ofPart IIIA not affected by this Part.......................174 152AK Operation of Parts IV and VII not affected by this Part.................174
Division 2—Declared services 175 152AL Declared services...........................................................................175 152ALA Duration of declaration..................................................................177 152AM Inquiries about proposals to declare services.................................179 152AN Combined inquiries about proposals to declare services ...............180 152AO Variation or revocation of declaration...........................................180 152AQ Register of declared services.........................................................181 152AQAPricing principles...........................................................................181 152AQBModel terms and conditions relating to access to core
services..........................................................................................183 152AQCCompensation for acquisition of property......................................185
Division 3—Standard access obligations 186 152AR Standard access obligations...........................................................186 152AS Ordinary class exemptions from standard access obligations........190 152ASA Anticipatory class exemptions from standard access
obligations .....................................................................................191
152AT Ordinary individual exemptions from standard access obligations .....................................................................................192
152ATA Anticipatory individual exemptions from standard access
obligations .....................................................................................195 152AU Individual exemptions—request for further information...............198 152AV Review by Tribunal of exemption order decision..........................199 152AW Functions and powers of Tribunal.................................................199 152AX Provisions that do not applyin relation to a Tribunal review........202 152AXAStatement of reasons for reviewable decision—specification
of documents.................................................................................203 152AY Compliance with standard access obligations................................203 152AYAAncillary obligations—confidential information...........................204 152AZ Carrier licence condition ...............................................................204 152BA Service provider rule .....................................................................205 152BB Judicial enforcement of standard access obligations .....................205
152BBAAJudicial enforcement of conditions and limitations of
exemption determinations andorders............................................206 152BBACommission may give directions in relation to negotiations.........206 152BBB Enforcement of directions .............................................................208 152BBC Commission’s role in negotiations ................................................209 152BBD Reaching agreement on terms and conditions of access................210
Division 4—Telecommunications access code 211 152BJ Telecommunications access code..................................................211 152BK Content of telecommunications access code..................................211 152BL Commission must invite public submissions on
telecommunications access code ...................................................212 152BM Commission must consult the ACMA about code.........................212 152BN Copy of codeto be given to the ACMA........................................212 152BR Register of telecommunications access codes ...............................212
Division 5—Access undertakings 214
Subdivision A—Ordinary access undertakings 214 152BS What is an ordinary access undertaking?......................................214 152BT Further information about undertaking..........................................215 152BU Commission to accept or reject access undertaking.......................216 152BV Acceptance of access undertaking—model terms and
conditions in access code not adopted...........................................217 152BW Acceptance of access undertaking—model terms and
conditions in access code adopted.................................................218 152BX Duration of access undertaking .....................................................218 152BY Variation of access undertakings...................................................219 152BZ Further information about variation of access undertaking ...........221 152CA Voluntary withdrawal of undertaking............................................221 152CB Replacement of access undertaking...............................................222
Subdivision B—Special access undertakings 222 152CBA What is a special access undertaking? ..........................................222 152CBB Further information about undertaking..........................................224 152CBC Commission to accept or reject access undertaking.......................225 152CBD Criteria for accepting access undertaking......................................226 152CBE Extension of access undertaking....................................................227 152CBF Duration of access undertaking .....................................................228 152CBG Variation of access undertakings...................................................228 152CBH Further information about variation of access undertaking ...........230 152CBI Voluntary withdrawal of undertaking............................................231 152CBJ Proposed service............................................................................231
Subdivision C—General provisions 231 152CC Register of access undertakings.....................................................231 152CD Enforcement of access undertakings..............................................232
152CDADeferral of consideration of an access undertaking etc..................232 152CE Review by Tribunal.......................................................................233 152CF Functions and powers of Tribunal.................................................233 152CG Provisions that do not applyin relation to a Tribunal review........236 152CGAStatement of reasons for reviewable decision—specification of documents.................................................................................236 152CGB Access undertakings prevail over inconsistent arbitral determinations ...............................................................................236
Division 6—Ministerial pricing determinations 237 152CH Ministerial pricing determinations.................................................237 152CI Undertakings and codes that are inconsistent with Ministerial pricing determinations...................................................................238 152CJ Register of Ministerial pricing determinations..............................238
Division 7—Relationship between this Part and Part IIIA 239 152CK Relationship between this Part and Part IIIA.................................239
Division 8—Resolution of disputes about access 240
Subdivision A—Introduction 240 152CL Definitions.....................................................................................240 152CLA Resolutionof access disputes........................................................240
Subdivision B—Notification of access disputes 242 152CM Notification of access disputes ......................................................242 152CN Withdrawal of notifications...........................................................243
Subdivision C—Arbitration of access disputes 244 152CO Parties to the arbitration.................................................................244 152CP Determination by Commission......................................................244 152CPA Interim determination by Commission ..........................................245 152CQ Restrictions on access determinations ...........................................248 152CR Matters that the Commission must take into account ....................250 152CRA Publication of determinations........................................................251 152CS Commission may terminate arbitration in certain cases.................252 152CT Commission may give directions in relation to negotiations.........252 152CU Enforcement of directions .............................................................254
Subdivision D—Procedure in arbitrations 255 152CV Constitution of Commission for conductof arbitration.................255 152CW Member of the Commission presiding at an arbitration.................255 152CWAExercise of procedural powers by Commission members.............256 152CX Reconstitution of Commission ......................................................257 152CY Determination of questions............................................................257 152CZ Hearing to be in private.................................................................258 152DA Right to representation ..................................................................258 152DB Procedure of Commission .............................................................258 152DBAUsing information from one arbitration in another arbitration.......259
152DC Particular powers of Commission..................................................260 152DD Power to take evidenceon oath or affirmation..............................261 152DE Failing to attend as a witness.........................................................261 152DF Failing to answer questions etc......................................................262 152DG Giving false or misleading evidence..............................................262 152DH Provision of false or misleading document....................................262 152DI Intimidation etc..............................................................................263 152DJ Disturbing an arbitration hearing etc.............................................263 152DK Party may request Commission to treat material as
confidential....................................................................................264 152DL Sections 18 and 19 do not apply to the Commission in an
arbitration ......................................................................................265
152DM Parties to pay costs of an arbitration..............................................265
152DMAJoint arbitration hearings...............................................................265
Subdivision E—Effect of determinations 266 152DN Operationof determinations..........................................................266 152DNABackdating of final determinations................................................266 152DNBStay of determinations....................................................................268 152DNCContinuity of final determination not affected by expiry of
declaration relating to declared service..........................................268
Subdivision G—Variation of determinations 269 152DT Variation of determinations...........................................................269
Subdivision H—Enforcement of determinations 269 152DU Enforcement of determinations......................................................269 152DV Consent injunctions.......................................................................270 152DW Interim injunctions.........................................................................270 152DX Factors relevant to granting a restraining injunction......................270 152DY Factors relevant to granting a mandatory injunction......................271 152DZ Discharge or variation of injunction or other order .......................271
Subdivision I—Miscellaneous 271 152EA Register of determinations.............................................................271 152EAA Commission’s powers under Division 6 of Part XIB not
limited ...........................................................................................272 152EB Compensation for acquisition of property .....................................272
Division 9—Registered agreements for access to declared services 273 152EC Agreements to which this Division applies ...................................273 152ED Registration of agreement..............................................................273 152EE Effect of registration of agreement................................................274
Division 10—Hindering the fulfilment of a standard access obligation etc. 275 152EF Prohibition on hindering the fulfilment of a standard access obligation etc.................................................................................275 152EG Enforcement of prohibition on hindering the fulfilment of a
standard access obligation etc........................................................275 152EH Consent injunctions.......................................................................276 152EI Interim injunctions.........................................................................276 152EJ Factors relevant to granting a restraining injunction......................276 152EK Factors relevant to granting a mandatory injunction......................277 152EL Discharge or variation of injunction or other order .......................277
Division 10A—Procedural Rules 278 152ELA Procedural Rules............................................................................278 152ELB Public consultation ........................................................................279 152ELC Plan for the development of Procedural Rules...............................279
Division 11—Miscellaneous 281 152EM Continuity of partnerships.............................................................281 152EN Treatment of partnerships..............................................................281 152EO Conduct bydirectors, servants or agents.......................................281 152EP Regulations about fees for inspection etc. of registers...................282 152EQ Operational separation for Telstra .................................................282
Part XID—Search and seizure 283
Division 1—Preliminary 283 154 Simplified outline..........................................................................283 154A Definitions.....................................................................................283
Division 2—Appointment of inspectors and identity cards 286 154B Appointment of inspectors.............................................................286 154C Identitycards.................................................................................286
Division 3—Entry to premises with consent 288
| 154D | Entry with consent.........................................................................288 |
| 154E | Powers in relation to premises.......................................................288 |
| 154F | Operation of electronic equipment at premises..............................289 |
Division 4—Entry to premises under a search warrant 290 Subdivision A—Powers available under a search warrant 290 154G The things that are authorised by a search warrant........................290 154GA Removing things for examination or processing ...........................291 154H Operation of electronic equipment at premises..............................292 154J Securing electronic equipment for use by experts.........................293
Subdivision B—Availability of assistance and use of force in executing a search warrant 294 154K Authorisation of officers assisting.................................................294 154L Availability of assistance and use of force in executing a search warrant................................................................................295
Subdivision C—Obligations of executing officer and officers assisting 295 154M Announcement before entry ..........................................................295 154N Details of warrant tobe given tooccupier.....................................295
Subdivision D—Occupier’s rights and responsibilities 296 154P Occupier entitled to observe search being conducted....................296 154Q Occupier to provide reasonable facilitiesand assistance...............296 154R Answering of questions or producing evidential material .............296 154RA Person with computer knowledge to assist access etc. ..................297
Subdivision E—General provisions relating to seizure 298 154S Copies of seized things to beprovided..........................................298 154T Receipts for things seized or moved under warrant.......................298 154U Return of seized things..................................................................298 154V Magistrate may permit a thing to be retained ................................299 154W Disposal of things if there is no owner or owner cannot be located ...........................................................................................300
Subdivision F—Search warrants 300 154X Issue of search warrants.................................................................300 154Y Search warrants by telephone, fax etc............................................301 154Z Offences relating to warrants.........................................................303
Subdivision G—Powers of magistrates 304 154ZA Powers conferred on magistrates...................................................304
Division 5—General provisions relating to electronic equipment 305 154ZB Operation of electronic equipment at premises..............................305 154ZC Compensation for damage to electronic equipment.......................305
Part XII—Miscellaneous 307 155 Power to obtaininformation, documents and evidence.................307 155AAAProtection of certain information...................................................310 155AA Protection of Part VB information.................................................316 155A Power to obtain information and documents in New Zealand relating to trans-Tasman markets...................................................316 155B Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission...................................................317 156 Inspection of documents by Commission......................................318 157 Disclosure of documents by Commission......................................319
157AA Disclosure of documents by Tribunal in relation to merger authorisations.................................................................................321 157A Disclosure of information by Commission....................................322 157B Disclosure of protected cartel information to a court or tribunal ..........................................................................................323 157C Disclosure of protected cartel information to a party to court proceedings etc..............................................................................326 157D General powers of a court..............................................................328 158 Protection of members of Tribunal, counsel and witnesses...........329 159 Incriminating answers ...................................................................329 160 Failure of witness to attend............................................................330 161 Refusal to be sworn or to answer questions...................................330 162 Contempt.......................................................................................331 162A Intimidation etc..............................................................................331 163 Prosecutions ..................................................................................332 163A Declarations and orders.................................................................333 165 Inspection of, furnishing of copies of, and evidence of, documents......................................................................................336 166 Certificates as to furnishing of particulars to Commission............338 167 Judicial notice................................................................................338 170 Legal and financial assistance .......................................................339 171 Annual report by Commission.......................................................340 171A Charges bythe Commission..........................................................341 171B Division 3 of Part IIIA and Division 8 of Part XIC do not confer judicial power on the Commission.....................................342 172 Regulations....................................................................................342 173 Authorisation for the purposes of subsection 51(1).......................343
Part XIII—Application and transitional provisions relating to the competition provisions 345
Division 1—Cartel conduct 345 174 Definitions.....................................................................................345 175 Giving effect after the commencement time to a cartel
provision in existence before that time..........................................345 176 Proceedings relating to price-fixing contraventions taking
place before the commencement time ...........................................345 177 Authorisations in force before the commencement time ...............345 178 Notifications in force beforethe commencement time..................346
Schedule—The Schedule version of Part IV 348
Part 1—Schedule version of Part IV 348
Division 1—Cartel conduct 348
Subdivision A—Introduction 348 44ZZRA Simplified outline..........................................................................348 44ZZRB Definitions.....................................................................................348 44ZZRC Extended meaning of party............................................................350 44ZZRD Cartel provisions............................................................................350 44ZZRE Meaning of expressions in other provisions of this Act.................355
Subdivision B—Offences etc. 355 44ZZRF Making a contract etc. containing a cartel provision .....................355 44ZZRGGiving effect toa cartel provision.................................................356 44ZZRH Determining guilt...........................................................................357 44ZZRI Court may make related civil orders..............................................358
Subdivision C—Civil penalty provisions 358 44ZZRJ Making a contract etc. containing a cartel provision .....................358 44ZZRKGiving effect toa cartel provision.................................................358
Subdivision D—Exceptions 359 44ZZRL Conduct notified............................................................................359 44ZZRMCartel provision subject to grant of authorisation..........................359 44ZZRN Contracts, arrangements or understandings between related bodies corporate ............................................................................359 44ZZRO Joint ventures—prosecution..........................................................360 44ZZRP Joint ventures—civil penalty proceedings.....................................363 44ZZRQ Covenantsaffecting competition...................................................365 44ZZRR Resale price maintenance ..............................................................365 44ZZRS Exclusive dealing...........................................................................365 44ZZRT Dual listed company arrangement .................................................366 44ZZRU Acquisition of shares or assets.......................................................367 44ZZRV Collective acquisition of goods or services by the parties to a contract, arrangement or understanding.........................................367
Division 2—Other provisions 368 45 Contracts, arrangements or understandings that restrict dealings or affect competition .......................................................368 45B Covenantsaffecting competition...................................................371 45C Covenants in relation to prices ......................................................374 45D Secondary boycotts for the purpose of causing substantial loss or damage...............................................................................376 45DA Secondary boycotts for the purpose of causing substantial lessening of competition................................................................377 45DC Involvement andliabilityof employee organisations....................378
45DD Situations in which boycotts permitted..........................................379 45E Prohibition of contracts, arrangements or understandings
affecting the supply or acquisition of goods or services................382 45EA Provisions contravening section 45E not to be given effect ..........385 45EB Sections 45D to 45EA do not affect operation of other
provisions of Part...........................................................................386 46 Misuse of market power................................................................386 47 Exclusive dealing...........................................................................389 48 Resale price maintenance ..............................................................396 49 Dual listed company arrangements that affect competition...........396 50 Prohibition of acquisitions that would result in a substantial
lessening of competition................................................................397 51 Exceptions.....................................................................................399
Section 10.01
10.01 Objects of Part
(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:
(iii) making conference agreements generally publicly available;
Section 10.01A
10.01A Simplified outline
The following is a simplified outline of this Part:
(a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK (cartel conduct); and
Trade Practices Act 1974
Section 10.02
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:
association includes a body corporate.
Australian exporter means a person who exports goods from Australia.
Section 10.02
Australian flag shipping operator means a person who:
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:
designated inwards peak shipper body means an association specified in a notice under subsection 10.03(2A).
designated inwards secondary shipper body means an association specified in a notice under subsection 10.03(2B).
designated inwards shipper body means:
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).
Trade Practices Act 1974
Section 10.02
designated outwards shipper body means:
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:
designated shipper body means:
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:
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:
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 Section 10.02
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:
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:
loyalty agreement means:
Trade Practices Act 1974
Section 10.02
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:
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:
port terminal means:
Section 10.02
pricing practice means the fixing, controlling or maintaining by an ocean carrier of prices charged for, or the giving or allowing by an ocean carrier of discounts, allowances, rebates or credits in relation to, outwards liner cargo shipping services or inwards liner cargo shipping services provided by the ocean carrier.
provisionally registered conference agreement means a conference agreement that is provisionally registered under this Part.
registered agent, in relation to an ocean carrier, means the person specified in the register of ocean carrier agents as the agent of the ocean carrier.
registered conference agreement means a conference agreement that is finally registered under this Part.
registered non-conference ocean carrier with substantial market power means an ocean carrier specified in the register of non-conference ocean carriers with substantial market power.
Registrar means the Registrar of Liner Shipping.
scheduled cargo shipping service means a scheduled service for the transport of various types of general cargo by sea on particular routes, generally by container and generally at predetermined freight rates.
stevedoring service means:
terminal-to-terminal service means:
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;
Trade Practices Act 1974
Section 10.02
varying conference agreement means:
(2) A reference in this Part to the minimum level of outwards liner cargo shipping services provided, or proposed to be provided, under an outwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of outwards liner cargo shipping services provided, or proposed to be provided, under the agreement.
(2A) A reference in this Part to the minimum level of inwards liner cargo shipping services provided, or proposed to be provided, under an inwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of inwards liner cargo shipping services provided, or proposed to be provided, under the agreement.
Section 10.02A
between parties to the conference agreement or between parties to the conference agreement and other ocean carriers:
(5) For the purposes of this Part (except where the contrary intention appears), if:
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
(a) whether the facility is under the control of a person who is, or of persons each of whom is:
Section 10.03
10.03 Designated shipper bodies
the Minister may, by legislative instrument, declare that the association is a designated outwards secondary shipper body for the purposes of this Part.
(2A) If the Minister is of the opinion that an association represents the interests, in relation to inwards liner cargo shipping services, of Section 10.03
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:
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.
Section 10.04
10.04 Application of section 46 in relation to conference agreements
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.
Section 10.06
10.06 Application of Australian law to outwards conference agreements and withdrawal from agreements
10.07 Minimum levels of shipping services to be specified in conference agreements
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:
Section 10.08
(ab) that is a provision where the following conditions are satisfied in relation to the provision:
the provision, so far as it is covered by paragraph (aa), (ab), (a) or (b), must either:
(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:
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.
Section 10.09
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:
Section 10.10
10.10 Registers and conference agreement files open to public inspection
10.11 What registers are to be kept by the Registrar?
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).
Section 10.13
(2) The conference agreement file for a conference agreement must include:
10.13 What register is to be kept by the Commission?
Section 10.14
10.14 Exemptions apply only to certain activities
10.15 When do exemptions commence to apply in relation to registered conference agreements?
Section 10.16
registered inwards conference agreement only after whichever is the later of the following times:
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
Section 10.17A
10.17A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements
Section 10.18
(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:
10.18 Exemption from section 47
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:
Section 10.19
10.19 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45
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.
Section 10.21
(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.
10.24 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations
Section 10.24A
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).
Note: For stevedoring operator, see subsection (5).
(3A) The exemptions provided by this section do not extend to any dealings between stevedoring operators.
stevedoring contract means a contract between:
connection with cargo transported on international liner cargo shipping services provided by the ocean carrier.
stevedoring operator means a person who:
provision of; stevedoring services in connection with cargo transported on international liner cargo shipping services.
Section 10.25
10.25 Application for provisional registration of conference agreement
10.26 How application is to be made and verified
10.27 Copy of agreement to be filed with application etc.
(1) Subject to subsections (1A) and (1B), an application for the provisional registration of a conference agreement must be accompanied by:
(a) a complete copy of the agreement so far as it is in writing (including all provisions of the agreement so far as they are in writing); and Section 10.27A
(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:
(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:
peak shipper body; the parties must give the designated outwards peak shipper body a copy of:
10.27(1)(b); as soon as practicable after the application is made.
Section 10.28
(2) If:
peak shipper body; the parties must give the designated inwards peak shipper body a copy of:
10.27(1)(b); as soon as practicable after the application is made.
10.28 Decision on application for provisional registration
(1) If the Registrar is satisfied:
(a) that an application has properly been made for the provisional registration of a conference agreement; and
(aa) in the case of an outwards conference agreement—that subsection 10.27A(1) has been complied with, or does not apply to the agreement; and
(ab) in the case of an inwards conference agreement—that subsection 10.27A(2) has been complied with, or does not apply to the agreement; and
(b) in the case of an outwards conference agreement—that the agreement complies with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with that section; and
(ba) in the case of an inwards conference agreement that was in force at the commencement of this paragraph—that there are no circumstances that, under the regulations, are taken to be special circumstances for the purposes of this paragraph; and
(c) that provisional registration of the agreement is not prevented by one or more of the following provisions:
(i) section 10.38 (application for registration to be returned where request for confidentiality refused etc.);
Section 10.29
(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:
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; Section 10.29
(1A) The parties to a provisionally registered inwards conference agreement must:
(a) take part in negotiations with:
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
Section 10.30
(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.
10.30 Application for final registration of conference agreement
10.31 How application is to be made and verified
Section 10.32
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:
(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:
(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 Section 10.33
restrictive trade practice provisions) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with section 10.08;
(ii) that section 10.08 does not apply in relation to the agreement because of an exemption order;
(iii) that the agreement is an inwards conference agreement that was in force at the commencement of this subparagraph; and
(c) in the case of an outwards conference agreement—that subsection 10.29(1) (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with, or does not apply, in relation to the agreement; and
(ca) in the case of an inwards conference agreement—that subsection 10.29(1A) (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with, or does not apply, in relation to the agreement; and
(d) that final registration of the agreement is not prevented by one or more of the following provisions:
(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.
Section 10.34
(4) If the Registrar finally registers the agreement, the Registrar must give the Commission a copy of:
10.34 Request for confidentiality
10.35 Abstract to accompany request for confidentiality
10.36 Examination of abstract
(1) Where:
document; the Registrar shall first determine whether to accept the abstract.
Section 10.37
10.37 Decision on request for confidentiality
(1) If:
(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:
Section 10.38
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:
application, and any documents that accompanied the application, to the applicants.
10.39 Application also to be made for registration of varying conference agreements
(1) Subject to subsection (2), if:
(a) application has been made for the provisional or final registration of a conference agreement (in this section called the original agreement), but the original agreement has not been finally registered; and Section 10.40
(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:
the Registrar shall not provisionally or finally register the original agreement unless the parties to the agreement have notified the Registrar of the matter.
Section 10.40
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.
Section 10.41
10.41 Parties to registered conference agreement to negotiate with certain designated shipper bodies etc.
eligible Australian contract means:
freight rates includes base freight rates, surcharges, rebates and allowances.
Section 10.41
negotiable shipping arrangements:
relevant designated shipper body:
Section 10.42
10.42 Application to be made for registration of varying conference agreements
10.43 Parties to registered conference agreement to notify happening of affecting events etc.
(1) Where:
the parties to the registered conference agreement shall notify the Registrar of the matter.
Section 10.43
(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.
Section 10.44
10.44 Powers exercisable by Minister in relation to registered conference agreements etc.
Section 10.45
provided by Subdivision A of Division 5 cease to apply in relation to conduct of that kind in relation to the agreement.
the Minister must:
to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made.
10.45 Circumstances in which Minister may exercise powers in relation to registered conference agreements
(1) The Minister shall not give a direction under subsection 10.44(1) in relation to a registered conference agreement unless:
(a) the Minister is satisfied of one or more of the following matters:
(i) in the case of an outwards conference agreement—that the agreement does not comply with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements);
(ia) that section 10.07 (minimum levels of shipping services to be specified in conference agreements) applies to the agreement, and that the agreement does not comply with that section;
(ib) that section 10.08 (conference agreements may include only certain restrictive trade practice provisions) applies to the agreement, and that the agreement does not comply with that section; Section 10.45
(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;
(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; Section 10.45
(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
Section 10.46
detriment to the public constituted by any lessening of competition that:
(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:
(iii) Australian shippers of particular kinds of goods;
10.46 Action to be taken where powers exercised by Minister without first obtaining Commission report
Section 10.47
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.
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
10.48 Investigation and report by Commission on own initiative or on application by affected person
(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.
Section 10.49
10.49 Undertakings by parties to registered conference agreement
Section 10.49A
10.49A Enforcement of undertakings
Section 10.50
10.50 Investigations by Commission into market power of ocean carriers
10.51 Determination by Minister of market power of ocean carriers
(1) Where:
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.
10.52 Non-conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.
eligible Australian contract means:
freight rates includes base freight rates, surcharges, rebates and allowances.
Section 10.52
negotiable shipping arrangements means:
relevant designated shipper body:
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.
Section 10.53
10.53 Non-conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc.
Part X International liner cargo shipping Division 10 Powers of Minister in relation to non-conference ocean carriers with substantial market power
Section 10.54
10.54 Powers exercisable by Minister in relation to obligations 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:
10.56 Action to be taken where powers exercised by Minister without first obtaining Commission report
Part X International liner cargo shipping Division 10 Powers of Minister in relation to non-conference ocean carriers with substantial market power
Section 10.57
10.57 Investigation and report by Commission on reference by Minister
10.58 Investigation and report by Commission on application by affected person
Section 10.59
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
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.
Part X International liner cargo shipping Division 10 Powers of Minister in relation to non-conference ocean carriers with substantial market power
Section 10.60
(2) Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV.
Section 10.61
10.61 Powers exercisable by Minister in relation to pricing practices etc.
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:
(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:
Section 10.63
(iv) that the practice is contrary to the national interest (as determined in accordance with section 10.67);
10.63 Investigation and report by Commission
10.64 Undertakings not to engage in pricing practices
Section 10.65
10.65 Enforcement of orders and undertakings
10.66 Determination of normal freight rates for shipping services
Section 10.67
(3) The comparison shall:
10.67 Determination of whether practice contrary to national interest
Section 10.68
10.68 Ocean carrier who provides international liner cargo shipping services to have registered agent
10.69 Representation of ocean carrier by registered agent
Section 10.70
(4) Subsection (3) does not affect:
10.70 Application by ocean carrier for registration of agent
10.71 Registration of agent
10.72 Change of agent etc.
(1) An ocean carrier may, by notice given to the Registrar:
(a) revoke the appointment of the ocean carrier’s registered agent and, subject to subsection (2), appoint a new agent for the purposes of this Act; Section 10.72
Section 10.72A
10.72A Exemption orders for inwards conference agreements etc.
(1) The Minister may, by legislative instrument, make an order exempting:
provision, of inwards liner cargo shipping services; from the scope of any or all of the eligible regulatory provisions.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
10.72B Criteria for making exemption order
10.72C Duration of exemption order may be limited
10.72D Conditions of exemption order
An exemption order may be expressed to be subject to such conditions as are specified in the order.
Section 10.73
10.73 Form of registers and conference agreement files
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.
Section 10.77
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:
10.80 Registrar and staff to be public servants
The Registrar, and any staff of the Registrar, shall be persons engaged under the Public Service Act 1999.
10.81 Delegation by Minister
The Minister may, by signed writing, delegate to the Registrar, or to a person occupying a specified office in the Department, all or any of the Minister’s powers under or in relation to this Part (other than powers under sections 10.02A and 10.03, subsections 10.06(1) and 10.44(1), sections 10.46, 10.47, 10.48 and 10.50, subsection 10.54(1), sections 10.56, 10.57 and 10.58, subsection 10.61(1) and sections 10.63 and 10.72A).
10.82 Delegation by Registrar
The Registrar may, by signed writing, delegate to a person occupying a specified office in the Department all or any of the Registrar’s powers under this Part.
Section 10.82A
10.82A Review by Tribunal
10.82B Functions and powers of Tribunal
Section 10.82C
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.
Section 10.82D
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:
paragraph 10.49(3)(b), subsection 10.51(1), subsection 10.56(3) or paragraph 10.59(3)(b);
10.82E Functions and powers of Tribunal
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
10.82F Modifying register after Tribunal review
(1) If:
decision of the Tribunal; the Minister must direct the Registrar to take such action, by way of modifying the register, as is necessary to ensure that the register is consistent with the Tribunal’s decision.
(a) deletes particulars of a direction under subsection 10.44(1) from the register of conference agreements; or Section 10.82G
(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.
Section 10.83
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
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:
10.85 Statement to accompany notices of Registrar
Section 10.86
(3) A contravention of subsection (1) in relation to a decision does not affect the validity of the decision.
10.86 Evidence
10.87 Notification by Commission of references etc.
The Commission may make public, in such manner as it considers appropriate:
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 Section 10.88
(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:
the Commission shall exclude the document, or the particulars of the submission, from the register.
(3) If:
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:
Section 10.89
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:
produce includes permit access to.
applies; unless the record is made, the information divulged or communicated or the part of the document given:
Penalty: $5,000 or imprisonment for 2 years, or both.
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
Section 10.91
(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
150A Definitions
In this Part, unless the contrary intention appears:
application law means:
apply, in relation to the Competition Code, means apply the Competition Code by reference:
Commonwealth entity means:
Competition Code means (according to the context):
modifications includes additions, omissions and substitutions.
officer, in relation to the Commonwealth, includes the following:
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 the Schedule to this Act.
Territory means the Australian Capital Territory or the Northern Territory.
150B Objects of this Part
The objects of this Part are:
150C The Competition Code
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.
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:
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
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:
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:
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
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
Section 151AA
151AA Simplified outline
The following is a simplified outline of this Part:
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 1 Introduction
Section 151AB
151AB Definitions
In this Part, unless the contrary intention appears:
ACMA means the Australian Communications and Media Authority. anti-competitive conduct has the meaning given by section 151AJ. carriage service has the same meaning as in the
Telecommunications Act 1997.
carriage service provider has the same meaning as in the Telecommunications Act 1997. carrier has the same meaning as in the Telecommunications Act
1997.
Section 151AB
carrier licence has the same meaning as in the Telecommunications Act 1997.
competition notice means:
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. 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.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 1 Introduction
Section 151AC
service provider rule has the same meaning as in the Telecommunications Act 1997.
tariff filing direction means a direction under section 151BK.
telecommunications market has the meaning given by section 151AF.
151AC Extension to external Territories
This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).
151AD Continuity of partnerships
For the purposes of this Part, a change in the composition of a partnership does not affect the continuity of the partnership.
151AE Additional operation of Part
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:
Note: Market has a meaning affected by section 4E.
151AG When a body corporate is related to a partnership
For the purposes of this Part, if:
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:
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:
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 1 Introduction
Section 151AH
(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:
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:
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:
(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
Section 151AI
has or may have, or that the persons have or may have, with another party or parties; and
(b) any covenants, or proposed covenants, that the person is or would be, or that the persons are or would be, bound by or entitled to the benefit of.
(6) Subsections (5) and (5A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market.
(6A) For the purposes of this Part, without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial degree of power in a telecommunications market, a person may have a substantial degree of power in a telecommunications market even though:
(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:
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.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 2 Anti-competitive conduct
Section 151AJ
151AJ Anti-competitive conduct
(1) This section sets out the 2 circumstances in which:
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:
(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:
Section 151AJ
(a) the assumption that each reference to a corporation in:
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:
(iii) subparagraphs 47(8)(a)(i) and (ii);
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 2 Anti-competitive conduct
Section 151AJ
Section 151AK
151AK The competition rule
be known as the competition rule. Note: For enforcement of the competition rule, see Division 7.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151AKA
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)
Section 151AKA
Threshold for issuing Part A competition notices
Consultation
(a) given the carrier or provider a written notice:
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151AL
(iii) inviting the carrier or provider to make a submission to the Commission on the proposal by a specified time limit; and
(b) considered any submission that was received within that time limit.
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
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.
Section 151AN
151AN Evidentiary effect of competition notice
151AO Duration of Part A competition notice
(1) A Part A competition notice comes into force:
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
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151AOB
151AOB Revocation of competition notice
151AP Guidelines
151AQ Commission to act expeditiously
151AQA Stay of proceedings relating to competition notices
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:
Division 7 of this Part; the Federal Magistrates Court or a Federal Magistrate may, by order, on such conditions as the Court or the Federal Magistrate 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
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151AR
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:
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
Publication of advisory notice
(8) If the Commission is satisfied that:
the Commission may publish the advisory notice in such manner as it thinks fit.
151AR Register of competition notices
151AS Exemption orders
151AT Form of application
An application for an exemption order must be:
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151AU
151AU Further information
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
application for the exemption order; until:
(c) the Commission has made a determination under section 90 in relation to the application for the authorisation; or
Section 151AY
151AY Commission may refuse to consider application if it relates to the same conduct as a Part VII notification
application for the exemption order; until:
151AZ Commission may convene conference to discuss application
(a) the applicant (or a representative of the applicant); and
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151BA
(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:
151BB Commission to give opportunity for submissions
Before making an exemption order, the Commission must give:
a reasonable opportunity to make submissions to the Commission about the order.
151BC Criteria for making exemption order
(a) the extent to which the conduct relates to the supply of goods or services on favourable terms and conditions to:
Section 151BC
(iii) a non-profit community organisation or a non-profit charitable organisation; or
environment includes all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151BD
151BD Notification of decision
151BE Duration of exemption order may be limited
An exemption order may be expressed to be in force for a period specified in the order.
151BF Conditions of exemption order
An exemption order may be expressed to be subject to such conditions as are specified in the order.
151BG Revocation of exemption order
(1) If:
(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:
Section 151BH
151BH Register of exemption orders
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151BJ
151BJ Conduct includes proposed conduct
A reference in this Division to conduct includes a reference to proposed conduct.
Section 151BK
151BK Tariff filing directions
Note: For enforcement of tariff filing directions, see Division 7.
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.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 4 Tariff filing
Section 151BK
(5) A direction complies with this subsection if it contains a requirement that, in the event that the person:
the person must give the Commission:
imposition, variation or cessation, as the case may be, as is specified in the direction.
ancillary goods means goods for use in connection with a carriage service.
Section 151BL
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
151BM Notification of reasons
If the Commission gives a tariff filing direction to a person, the Commission must give the person a written notice setting out the reasons for the direction.
151BN Duration of direction may be limited
A tariff filing direction may be expressed to cease to be in force at a time ascertained in accordance with the direction.
Note: A time specified in accordance with the direction may be the time of occurrence of a specified event or the time when a specified condition is satisfied.
151BO Revocation of direction
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 4 Tariff filing
Section 151BP
(3) A revocation of a tariff filing direction takes effect:
151BP Variation of direction
151BQ Public access to tariff information
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.
Section 151BR
(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:
151BR Register of tariff filing directions
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 4 Tariff filing
Section 151BT
151BT Meaning of terms and conditions
In this Division:
terms and conditions, in relation to the supply of goods or services, includes:
Section 151BTA
151BTA Tariff filing by Telstra
by the Commission, a written statement setting out such information about Telstra’s intentions as the Commission requires.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 5 Tariff filing by Telstra
Section 151BTA
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.
Telstra has the same meaning as in the Telstra Corporation Act 1991.
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.
Section 151BU
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:
(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:
(2D) Subsections (2), (2A), (2B) and (2C) do not limit subsection (1).
(3) If the rules apply to a particular carrier or carriage service provider, the Commission must give the carrier or provider a copy of the rules.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUAA
151BUAA Minister may give directions to Commission
(1) The Minister may give written directions to the Commission in relation to the exercise of its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC.
(1A) The Minister may only give a direction under subsection (1) that:
(1B) The Minister may give a written direction to the Commission requiring it, in the event that it receives a specified Ministerially-directed report, to:
(a) prepare a specified kind of analysis of the report; and
Section 151BUAAA
(b) publish the analysis within a specified period after receiving the report.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(1C) The Minister may give a written direction to the Commission requiring it, in the event that it receives a report in a specified series of Ministerially-directed periodic reports, to:
151BUAAA Minister to give direction to Commission about Telstra’s wholesale operations and retail operations
(i) keep and retain particular records; and
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUAB
(ii) prepare reports consisting of information contained in those records; and
(iii) give those reports to the Commission; and
(c) requires the Commission to exercise its powers under at least one of sections 151BUDA, 151BUDB and 151BUDC in relation to those reports.
Telstra has the same meaning as in the Telstra Corporation Act 1991.
wholesale operations includes operations in relation to services that Telstra supplies:
151BUAB Request for disclosure
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:
(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:
(i) by such persons as are specified in the notice; and
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUA
(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 46(2) 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:
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:
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
Section 151BUB
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 46(2) of the Acts Interpretation Act 1901.
(7) A person must comply with a direction under paragraph (6)(b).
Limited access
Offences
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.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUB
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:
(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:
the direction; as soon as practicable after the end of the period specified in the direction.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Section 151BUB
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:
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:
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
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUC
(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
Section 151BUC does not limit this section
(14) Section 151BUC does not limit this section.
151BUC Carrier or carriage service provider gives access to periodic reports
(1) This section applies to a particular series of periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record-keeping rules.
Disclosure direction
(2) If the Commission is satisfied that the disclosure of each of the reports in that series, or the disclosure of particular extracts from each of the reports in that series, would be likely to:
(a) promote competition in markets for listed carriage services; or
Section 151BUC
(b) facilitate the operation of:
(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:
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 46(2) of the Acts Interpretation Act 1901.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUC
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:
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:
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
Section 151BUD
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
151BUD Exemption of reports from access requirements
Full exemption
(1) The Commission may make a written determination exempting specified reports from the scope of sections 151BUA, 151BUB and 151BUC, either:
determination. The determination has effect accordingly.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(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.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUDA
Partial exemption
(3) The Commission may make a written determination that specified information is exempt information for the purposes of this section, either:
determination. The determination has effect accordingly.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Disallowable instrument
(6) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
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:
Section 151BUDA
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 46(2) of the Acts Interpretation Act 1901.
Limited access
(3) The Commission may make:
determines; available:
Offences
(6) A person is guilty of an offence if:
Penalty: 20 penalty units.
(7) A person is guilty of an offence if:
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUDB
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(8) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.
Application of section 151BUA
(9) This section does not limit section 151BUA.
151BUDB Carrier or carriage service provider gives access to Ministerially-directed reports
(1) This section applies to a Ministerially-directed report prepared by a carrier, or a carriage service provider, in accordance with the record-keeping rules.
Disclosure direction
(2) The Commission may give the carrier or provider:
(iii) in the manner specified in the direction; and
(iv) as soon as practicable after the end of the period specified in the direction.
Section 151BUDB
Note: For specification by class, see subsection 46(2) 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
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
(7) A person is guilty of an offence if:
Penalty: 20 penalty units.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUDC
(8) A person is guilty of an offence if:
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:
Section 151BUDC
of the reports in the series, together with other relevant material (if any) specified in the direction, available:
(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 46(2) 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
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
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUE
with the terms and conditions (if any) that are specified in the direction.
Offences
(7) A person is guilty of an offence if:
Penalty: 20 penalty units.
(8) A person is guilty of an offence if:
Penalty: 100 penalty units.
Exercise of power by Commission
(9) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.
Application of section 151BUC
(10) This section does not limit section 151BUC.
Application of section 151BUDB
(11) Section 151BUDB does not limit this section.
151BUE Access via the internet
If the Commission, a carrier or a carriage service provider is required under this Division to make copies of a report, extracts or other material available for inspection and purchase, the Commission, carrier or carriage service provider, as the case may be, may comply with that requirement by making the report, extracts or other material available for inspection and purchase on the internet.
Section 151BUF
151BUF Self-incrimination
is not admissible in evidence against the individual in:
151BV Incorrect records
Note: See also sections 4AA and 4B of the Crimes Act 1914.
Section 151BW
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:
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:
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.
The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Enforcement of the competition rule, tariff filing directions, record-keeping rules and disclosure directions Division 7
Section 151BX
relation to the contravention of any one or more of the tariff filing directions, record-keeping rules or disclosure directions. However, Section 151BY
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:
liable to more than one pecuniary penalty in respect of the same conduct.
151BY Civil action for recovery of pecuniary penalties
The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Enforcement of the competition rule, tariff filing directions, record-keeping rules and disclosure directions Division 7
Section 151BZ
(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
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:
Section 151CA
competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction; or
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:
has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1).
The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Enforcement of the competition rule, tariff filing directions, record-keeping rules and disclosure directions Division 7
Section 151CB
151CB Orders to disclose information or publish an advertisement—breach of the competition rule
Section 151CC
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
151CD Finding of fact in proceedings to be evidence
against the person; the finding:
The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Enforcement of the competition rule, tariff filing directions, record-keeping rules and disclosure directions Division 7
Section 151CE
151CE Other orders—compensation for breach of the competition rule
(a) an order declaring the whole or any part of:
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; Section 151CF
constituted by the conduct; to refund money or return property to the person who suffered the loss or damage;
(e) an order directing:
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:
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.
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).
Section 151CG
151CG Disclosure of documents by Commission
so long as the document is not obtained from the person or prepared by an officer or professional adviser of the Commission.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 8 Disclosure of documents by Commission
Section 151CG
Section 151CH
151CH Treatment of partnerships
This Part applies to a partnership as if the partnership was a person, but it applies with the following changes:
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 10 Review of decisions
Section 151CI
151CI Review by Tribunal
(3A) If the Commission:
the person may apply to the Tribunal for a review of the decision.
Section 151CJ
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:
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:
is taken, for the purposes of this Act (other than this Division), to be a decision of the Commission.
Conduct of review
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 10 Review of decisions
Section 151CK
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.
The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB Reviews of competitive safeguards within the telecommunications industry Division 11
Section 151CL
151CL Reviews of competitive safeguards within the telecommunications industry
telecommunications industry has the same meaning as in the
Telecommunications Act 1997.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 12 Monitoring of telecommunications charges paid by consumers
Section 151CM
151CM Monitoring of telecommunications charges paid by consumers
(1) The Commission must monitor, and report each financial year to the Minister on:
Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with price control arrangements for Telstra); and
(c) the adequacy of each universal service provider’s compliance with Division 11 of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999
(which deals with regulation of universal service charges).
listed carriage service has the same meaning as in the
Telecommunications Act 1997.
Section 151CM
universal service provider has the same meaning as in the
Telecommunications (Consumer Protection and Service Standards) Act 1999.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 12A Reports about competition in the telecommunications industry
Section 151CMA
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 written 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.
telecommunications industry has the same meaning as in the Telecommunications Act 1997.
Section 151CMB
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 written 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.
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 under subsection 151CMA(1) or 151CMB(1):
(iii) services for use in connection with a carriage service;
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 12A Reports about competition in the telecommunications industry
Section 151CMC
(iii) services for use in connection with a carriage service.
Section 151CN
151CN Review of operation of this Part
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 14 Operational separation for Telstra
Section 151CP
151CP Operational separation for Telstra
Section 152AA
The following is a simplified outline of this Part:
Section 152AB
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):
regard must be had to the extent to which the thing is likely to result in the achievement of the following objectives:
(i) the infrastructure by which listed services are supplied; and Section 152AB
(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.
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:
(i) the infrastructure by which the services are supplied; and Section 152AC
(ii) any other infrastructure by which the services are, or are likely to become, capable of being supplied.
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 seeker has the meaning given by section 152AG.
access undertaking means an ordinary access undertaking or a
special access undertaking.
ACMA means the Australian Communications and Media
Authority.
carriage service has the same meaning as in the Telecommunications Act 1997, and includes a proposed carriage service.
Section 152AC
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.
conditional-access customer equipment means customer equipment that:
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.
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.
facility has the same meaning as in the Telecommunications Act 1997.
Federal Court means the Federal Court of Australia.
Ministerial pricing determination means a determination under section 152CH.
modifications includes additions, omissions and substitutions.
Section 152AD
nominated carrier has the same meaning as in the
Telecommunications Act 1997.
ordinary access undertaking means an undertaking under Subdivision A of Division 5. person includes a partnership.
Note: Section 152EN sets out additional rules about partnerships. Procedural Rules means Procedural Rules made under section 152ELA.
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 has the meaning given by section 152AR.
telecommunications access code means a code made under section 152BJ.
telecommunications network has the same meaning as in the
Telecommunications Act 1997.
152AD This Part binds the Crown
Section 152AE
152AE Extension to external Territories
This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).
152AF Access
152AG Access seeker
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: Section 152AJ
(2) Subsection (1) does not, by implication, limit the matters to which regard may be had.
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.
Section 152AL
152AL Declared services
Eligible service
(1) For the purposes of this section, an eligible service is:
(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
(3) The Commission may, by written instrument, declare that a specified eligible service is a declared service if:
Note: Eligible services may be specified by name, by inclusion in a specified class or in any other way.
Declaration has effect
(4) A declaration under this section has effect accordingly.
Section 152AL
Gazettal of declaration
(5) A copy of a declaration under this section 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
(7) If:
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).
Declaration is not a legislative instrument
commencement of this subsection; then:
152ALA Duration of declaration
Expiry date
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 ceases to be in force on the expiry date of the declaration.
Section 152ALA
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.
Public inquiry during 12-month period ending on the expiry date of a declaration
the Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c) in relation to the new declaration.
(9) If:
(a) after holding a public inquiry under subsection (7) in relation to a declaration, the Commission revokes or varies the declaration; and Section 152AM
(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) 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
commencement of this subsection; the notice is taken never to have been a legislative instrument for the purposes of the Legislative Instruments Act 2003.
152AM Inquiries about proposals to declare services
Section 152AN
(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
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:
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.
Section 152AQ
(3) If a variation of a declaration under subsection 152AL(3) 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.
152AQ Register of declared services
152AQA Pricing principles
Determination
(1) The Commission must, by writing, determine principles relating to the price of access to a declared service.
Section 152AQA
Note: See subsection (6) for the effect of the determination.
(2) The determination may also contain price-related terms and conditions relating to access to the declared service.
Timing
(3) The Commission must make such a determination at the same time as, or as soon as practicable after:
Consultation
(4) Before making such a determination, the Commission must:
Publication
(5) The Commission must publish the determination in such manner as it considers appropriate (including in electronic form).
Arbitration
(6) The Commission must have regard to the determination if it is required to arbitrate an access dispute under Division 8 in relation to the declared service.
Ministerial pricing determinations prevail
(7) A determination under this section has no effect to the extent that it is inconsistent with any Ministerial pricing determination.
Other powers not limited
(7A) To avoid doubt, neither:
Section 152AQB
limits the Commission’s powers under the following provisions:
Definition
(8) In this section:
price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
152AQB Model terms and conditions relating to access to core services
Core services
(1) For the purposes of this section, each of the following declared services is a core service:
Determination setting out model terms and conditions
(2) The Commission must make a written determination setting out model terms and conditions relating to access to each core service.
Timing
(3) The Commission must take all reasonable steps to ensure that a determination relating to a core service referred to in paragraph (1)(a), (b), (c) or (d) is made within 6 months after the commencement of this section.
Section 152AQB
(4) The Commission must take all reasonable steps to ensure that a determination relating to a core service specified in the regulations is made within 6 months after the relevant regulation takes effect.
Public consultation
(5) Before making a determination under this section, the Commission must:
Consultation with ACMA
(6) Before making a determination under this section, the Commission must consult the ACMA.
Publication
(7) The Commission must publish a determination under this section in such manner as it considers appropriate (including in electronic form).
Duration of determination
(8) Unless sooner revoked, a determination under this section relating to a particular core service ceases to be in force at the end of:
Arbitration
(9) The Commission must have regard to a determination under this section if it is required to arbitrate an access dispute under Division 8 in relation to a core service covered by the determination.
Section 152AQC
Ministerial pricing determinations prevail etc.
(10) A determination under this section has no effect to the extent that it is inconsistent with:
Other powers not limited
(11) To avoid doubt, neither:
152AQC Compensation for acquisition of property
(1) If the operation of any or all of the following provisions:
than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
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.
Section 152AR
152AR Standard access obligations
(1) This section sets out the standard access obligations.
Access provider and active declared services
(2) For the purposes of this section, if a carrier or a carriage service provider supplies declared services, whether to itself or to other persons:
Supply of active declared service to service provider
(3) An access provider must, if requested to do so by a service provider:
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 Section 152AR
anticipated requirements, measured at the time when the request was made;
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 46(2) of the Acts Interpretation Act 1901.
(4C) The regulations may provide that, for the purposes of subsection (4A), a specified act or thing is taken to be provisioning.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Interconnection of facilities
(5) If an access provider:
the access provider must, if requested to do so by a service provider:
Section 152AR
(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.
Timing and content of billing information
(7) The billing information referred to in subsection (6) must:
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.
Section 152AR
Exceptions
(9) This section does not impose an obligation on an access provider if there are reasonable grounds to believe that:
Examples—paragraph (9)(a) grounds
(10) Examples of grounds for believing as mentioned in paragraph (9)(a) include:
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, or under a determination (within the meaning of Division 8), 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.
Section 152AS
152AS Ordinary class exemptions from standard access obligations
Note: For judicial enforcement of conditions and limitations, see section 152BBAA.
Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.
Section 152ASA
152ASA Anticipatory class exemptions from standard access obligations
Determination providing for exemption
Note: For judicial enforcement of conditions and limitations, see section 152BBAA.
(3) A determination under this section has effect accordingly.
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
Section 152AT
(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:
Disallowable instrument
(12) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Definition
(13) In this section:
active declared service has the same meaning as in section 152AR.
Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.
152AT Ordinary individual exemptions from standard access obligations
Application for exemption order
Section 152AT
(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 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:
Criteria for making exemption order
(4) The Commission must not make an order under paragraph (3)(a) unless the Commission is satisfied that the making of the order will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.
Exemption orders
(5) 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.
Expiry date for exemption order
(8) An order under paragraph (3)(a) may specify an expiry date 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.
Section 152AT
Consultation
(9) 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:
Commission to make decision within 6 months
Extension of decision-making period
(12) The Commission may, by written notice given to the applicant, extend or further extend the 6-month period referred to in subsection (10), so long as:
Section 152ATA
application within that 6-month period or that 6-month period as previously extended, as the case may be.
(13) As soon as practicable after the Commission gives a notice under subsection (12), the Commission must cause a copy of the notice to be made available on the internet.
Notification of refusal of application
(14) 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.
Note: For variation and revocation of orders, see subsection 33(3) of the Acts Interpretation Act 1901.
152ATA Anticipatory individual exemptions from standard access obligations
Application for exemption order
(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 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:
Section 152ATA
(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.
(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 promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.
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:
(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: Section 152ATA
Commission to make decision within 6 months
Extension of decision-making period
Section 152AU
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.
Definition
(18) In this section:
active declared service has the same meaning as in section 152AR.
Note: For variation and revocation of orders, see subsection 33(3) of the Acts Interpretation Act 1901.
152AU Individual exemptions—request for further information
(2A) If:
within the time limit allowed by the Procedural Rules; the Commission may, by written notice given to the applicant, refuse the application.
(2B) Subsection (2A) has effect despite anything in this Division.
Section 152AV
152AV Review by Tribunal of exemption order decision
152AW Functions and powers of Tribunal
Decision on review
(1) On a review of a decision of the Commission under section 152AT or 152ATA, the Tribunal may make a decision:
Section 152AW
order; 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:
is taken, for the purposes of this Act (other than section 152AV or this section), to be a decision of the Commission.
Conduct of review
Tribunal to make decision within 6 months
(5) If:
(a) a person applies to the Tribunal for a review of a decision of the Commission under section 152AT or 152ATA; and
Section 152AW
(b) the Tribunal does not make a decision under subsection (1) of this section on the review within 6 months after receiving the application for review;
the Tribunal is taken to have made, at the end of that 6-month period, whichever of the following decisions is applicable:
Section 152AX
Extension of decision-making period
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
152AX 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 made by the Commission under section 152AT or 152ATA.
Section 152AXA
152AXA Statement of reasons for reviewable decision—specification of documents
(1) If the Commission:
the decision; the statement must specify the documents that the Commission examined in the course of making the decision.
(2) If a document is specified under subsection (1), information in the document is taken, for the purposes of paragraph 152AW(4)(b), to be referred to in the Commission’s reasons for making the decision.
152AY Compliance with standard access obligations
Section 152AYA
(iii) if there is no such undertaking—on such terms and conditions as are determined by the Commission under Division 8 (which deals with arbitration of disputes about access).
Note: An agreement mentioned in paragraph (a) may be registered under Division 9.
152AYA Ancillary obligations—confidential information
If:
purpose other than enabling the carrier or carriage service provider to comply with:
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 Section 152BA
(b) any obligations under section 152AYA that are applicable to the carrier.
152BA Service provider rule
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:
(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:
Section 152BBAA
152BBAA Judicial enforcement of conditions and limitations of exemption determinations and orders
152BBA Commission may give directions in relation to negotiations
Section 152BBA
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 refrain from doing, a specified act or thing relating to the conduct of those negotiations.
Section 152BBB
(d) conspire with others to effect a contravention of subsection (5).
152BBB Enforcement of directions
152BBC Commission’s role in negotiations
for a representative of the Commission to attend, or mediate at, those negotiations.
Section 152BBD
mediated at, negotiations in relation to the matter in accordance with a request under this section.
152BBD Reaching agreement on terms and conditions of access
The Commission must, in exercising its powers under sections 152BBA and 152BBC, 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.
Section 152BJ
152BJ Telecommunications access code
Commission may make code
(1) The Commission may, by writing, make a telecommunications access code.
Disallowable instrument
(2) A telecommunications access code is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Only one code
(3) The Commission must ensure that not more than one code is in force at a particular time.
152BK Content of telecommunications access code
Section 152BL
(c) each set of model terms and conditions set out in the code is reasonable.
Note: Section 152AH contains a list of matters to be taken into account in determining whether terms and conditions are reasonable.
152BL Commission must invite public submissions on telecommunications access code
The Commission must not make a telecommunications access code unless the Commission has first:
152BM Commission must consult the ACMA about code
Before making a telecommunications access code, the Commission must consult the ACMA.
152BN Copy of code to be given to the ACMA
If the Commission makes a telecommunications access code, the Commission must give the ACMA a copy of the code.
152BR Register of telecommunications access codes
Section 152BR
Section 152BS
(1) For the purposes of this Part, an ordinary access undertaking is a written undertaking given by a carrier or a carriage service provider to the Commission under which the carrier or provider undertakes to comply with the terms and conditions specified in the undertaking in relation to the applicable standard access obligations.
Note: The undertaking need not specify all terms and conditions—see subparagraph 152AY(2)(b)(ii).
(6A) The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking.
Section 152BT
(9A) If an undertaking expires, this Part does not prevent the carrier or provider from giving a fresh undertaking in the same terms as the expired undertaking.
(10) The terms and conditions specified in an undertaking may be expressed to come into effect:
152BT Further information about undertaking
(2A) If:
information within that time limit; the Commission may, by written notice given to the carrier or provider, reject the undertaking.
(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 152BU(5) has effect as if the decision had been made under subsection 152BU(2).
Section 152BU
152BU Commission to accept or reject access undertaking
(1) This section applies if an ordinary access undertaking is given to the Commission by a carrier or carriage service provider.
(1A) Before the Commission makes a decision under subsection (2) in relation to the undertaking, the carrier or provider 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:
Notice of decision
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 Section 152BV
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:
Extension of decision-making period
152BV Acceptance of access undertaking—model terms and conditions in access code not adopted
(1) This section applies if:
Section 152BW
(2) The Commission must not accept the undertaking unless:
Note: Section 152AH contains a list of matters to be taken into account in determining whether terms and conditions are reasonable.
152BW Acceptance of access undertaking—model terms and conditions in access code adopted
152BX Duration of access undertaking
(a) the undertaking comes into operation:
(i) if the terms and conditions specified in the undertaking are expressed to come into effect immediately after the Section 152BY
undertaking is accepted by the Commission—at the time of acceptance; or
(ii) if the terms and conditions specified in the undertaking are expressed to come into effect at a later time ascertained in accordance with the undertaking—at that later time; and
(b) the undertaking continues in operation until:
(iii) in any case—the undertaking is withdrawn as mentioned in section 152CA or 152CB.
152BY Variation of access undertakings
(2A) Before the Commission makes a decision under subsection (3) in relation to the variation, the carrier or provider 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
Section 152BY
Commission is not required to comply with paragraph 152BV(2)(a) in relation to the variation.
Notice of decision
Commission to make decision within 6 months
Extension of decision-making period
152BZ Further information about variation of access undertaking
(2A) If:
the Commission may, by written notice given to the carrier or provider, reject the variation.
(2B) Subsection (2A) has effect despite anything in this Division.
(2C) If the Commission makes a decision under subsection (2A) to reject the variation, subsection 152BY(7) has effect as if the decision had been made under subsection 152BY(3).
152CA Voluntary withdrawal of undertaking
(1) This section applies if an ordinary access undertaking given by a carrier or a carriage service provider is in operation.
Section 152CB
(2) The carrier or provider may, by written notice given to the Commission, withdraw the undertaking.
152CB Replacement of access undertaking
Subdivision B—Special access undertakings
Scope
(1) This section applies to a person who is, or expects to be, a carrier or a carriage service provider supplying:
(within the meaning of that Act); whether to itself or to other persons, so long as the service is not an active declared service.
Undertaking
Section 152CBA
Note: The undertaking need not specify all terms and conditions—see subparagraph 152AY(2)(b)(ii).
Expiry time
Section 152CBB
Related services
(11) 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.
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.
152CBB Further information about undertaking
(2A) If:
within the time limit allowed by the Procedural Rules; the Commission may, by written notice given to the person, reject the undertaking.
(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).
Section 152CBC
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:
Notice of decision
Commission to make decision within 6 months
(a) if the Commission has published the undertaking under paragraph 152CBD(2)(d)—a day in the period:
(i) beginning on the date of publication; and
Section 152CBD
(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
152CBD Criteria for accepting access undertaking
(i) published the undertaking and invited people to make submissions to the Commission on the undertaking; and Section 152CBE
(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.
152CBE Extension of access undertaking
(a) stating that the Commission has refused to approve the extension; and Section 152CBF
(b) setting out the reasons for the refusal.
(8) In this section, a reference to an extension includes a reference to a further extension.
152CBF Duration of access undertaking
active declared service has the same meaning as in section 152AR (disregarding subsection 152AL(7)).
152CBG Variation of access undertakings
(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:
Section 152CBG
(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.
Notice of decision
Commission to make decision within 6 months
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: Section 152CBH
(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
(2A) If:
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.
(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).
Section 152CBI
152CBI Voluntary withdrawal of undertaking
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
Section 152CD
152CD Enforcement of access undertakings
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).
152CDA Deferral of consideration of an access undertaking etc.
(1) The Procedural Rules may authorise the Commission to defer consideration of:
Section 152CE
(2) Subsection (1) has effect despite anything in this Division.
152CE Review by Tribunal
152CF Functions and powers of Tribunal
Decision on review
(1) On a review of a decision of the Commission under subsection 152BU(2), 152BY(3), 152CBC(2) or 152CBG(3), the Tribunal may make a decision:
Section 152CF
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:
is taken, for the purposes of this Act (other than section 152CE or this section), to be a decision of the Commission.
Conduct of review
Tribunal to make decision within 6 months
(5) If:
the Tribunal is taken to have made, at the end of that 6-month period, whichever of the following decisions is applicable:
(c) in the case of a review of a decision of the Commission to accept an access undertaking—a decision setting aside the Commission’s decision; Section 152CF
Extension of decision-making period
Time of acceptance of undertaking
(8) To avoid doubt, if the Tribunal makes a decision to accept an undertaking, the time of acceptance of the undertaking is the time when the Tribunal made its decision.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
Section 152CG
152CG 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 made by the Commission under subsection 152BU(2), 152BY(3), 152CBC(2) or 152CBG(3).
152CGA Statement of reasons for reviewable decision—specification of documents
(1) If the Commission:
the decision; the statement must specify the documents that the Commission examined in the course of making the decision.
(2) If a document is specified under subsection (1), information in the document is taken, for the purposes of paragraph 152CF(4)(b), to be referred to in the Commission’s reasons for making the decision.
152CGB Access undertakings prevail over inconsistent arbitral determinations
A determination made by the Commission under Division 8 has no effect to the extent to which it is inconsistent with an access undertaking that is in operation.
Section 152CH
Division 6—Ministerial pricing determinations
152CH Ministerial pricing determinations
(1) The Minister may make a written 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 1A: Subsection 152AQA(7) provides that a determination under section 152AQA has no effect to the extent that the determination is inconsistent with any Ministerial pricing determination.
Note 1B: Subsection 152AQB(9) provides that a determination under section 152AQB has no effect to the extent that the determination is inconsistent with any Ministerial pricing determination.
Note 2: Subsection 152BK(3) provides that the Commission must not make a telecommunications access code unless the code is consistent with any Ministerial pricing determination.
Note 3: Subsection 152BV(2) provides that the Commission must not accept an ordinary access undertaking dealing with price or a method of ascertaining price unless the undertaking is consistent with any 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 the telecommunications access code has no effect to the extent that the provision is inconsistent with any Ministerial pricing determination.
Note 6: Subsection 152CQ(6) provides that the Commission must not make a determination under Division 8 that is inconsistent with any Ministerial pricing determination.
price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
Section 152CI
152CI Undertakings and codes that are inconsistent with Ministerial pricing determinations
152CJ Register of Ministerial pricing determinations
Section 152CK
Division 7—Relationship between this Part and Part IIIA
152CK Relationship between this Part and Part IIIA
(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 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.
Section 152CL
Division 8—Resolution of disputes about access
Subdivision A—Introduction
152CL Definitions
In this Division, unless the contrary intention appears:
determination means a determination made by the Commission under this Division.
final determination means a determination other than an interim determination.
interim determination means a determination that is expressed to be an interim determination.
party means:
152CLA Resolution of access disputes
(1) The Commission must, in exercising its powers under this Division, have regard to the desirability of access disputes being resolved in a timely manner (including through the use of alternative dispute resolution methods such as mediation and conciliation).
Note: The Commission must also have regard to the the matters set out in section 152CR, to any relevant pricing determination under section 152AQA and, in the case of core services, to any relevant determination under section 152AQB.
Deferral of consideration of access dispute
(2) If:
Section 152CLA
the Commission may defer consideration of the access dispute, in whole or in part, while the Commission considers the access undertaking.
(3) Subsection (2) has effect despite anything in this Division (other than subsection (4)).
Guidelines about deferral
Procedural Rules
Section 152CM
Subdivision B—Notification of access disputes
152CM Notification of access disputes
(1) If:
then:
(2) If:
then:
Section 152CN
152CN Withdrawal of notifications
Withdrawal by carrier or provider
(1) If the carrier or provider notified the access dispute, the carrier or provider may withdraw the notification at any time before the Commission makes its final determination, but only with the consent of:
Withdrawal by access seeker
(2) If the access seeker notified the access dispute, the access seeker may withdraw the notification at any time before the Commission makes its final determination, but only with the consent of:
Section 152CO
No other withdrawal
(2A) A notification may not be withdrawn in any other circumstances.
Consequences of withdrawal
(3) If the notification is withdrawn:
Subdivision C—Arbitration of access disputes
152CO Parties to the arbitration
The parties to the arbitration of an access dispute are as follows:
152CP Determination by Commission
152CPA Interim determination by Commission
Procedural fairness
(3) The Commission is not required to observe any requirements of procedural fairness in relation to the making of an interim determination if:
(a) both:
(i) the declared service is covered by a determination in force under section 152AQA; and Section 152CPA
(ii) the price-related terms and conditions in the interim determination are consistent with the price-related terms and conditions in the section 152AQA determination; or
(b) both:
For this purpose, price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
Duration
(5A) The Commission may extend the period specified in an interim determination, so long as:
(5B) The Commission is not required to observe any requirements of procedural fairness in relation to granting, or refusing to grant, an extension under subsection (5A).
Revocation
Section 152CPA
the interim determination is taken to have been revoked when the withdrawal occurs.
(9) If:
effect; the interim determination is taken to have been revoked when the final determination takes effect.
Variation
Section 152CQ
For this purpose, price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
152CQ Restrictions on access determinations
(1) The Commission must not make a determination that would have any of the following effects:
Section 152CQ
Section 152CR
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 13 September 1996.
152CR Matters that the Commission must take into account
(1) The Commission must take the following matters into account in making a final determination:
Section 152CRA
152CRA Publication of determinations
Publication
(1) The Commission may publish, in whole or in part, a determination and the reasons for making the determination. It may do so in such manner as it considers appropriate (including in electronic form).
Consultation
(a) any such submission received within that 14 day period; Section 152CS
152CS Commission may terminate arbitration in certain cases
152CT Commission may give directions in relation to negotiations
(1) If the Commission considers that it would be likely to facilitate negotiations relating to an access dispute if a person who is or was a party to the arbitration of the access dispute were to be given a direction under this subsection, the Commission may, for the purposes of facilitating those negotiations, give the person a written procedural direction requiring the person to do, or refrain Section 152CT
from doing, a specified act or thing relating to the conduct of those
negotiations.
(2) The following are examples of the kinds of procedural directions that may be given under subsection (1):
attend a conciliation conference. If the arbitration has been terminated, a reference in this subsection to a party is a reference to a former party.
(2A) For the purposes of paragraph (2)(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.
Section 152CU
152CU Enforcement of directions
Subdivision D—Procedure in arbitrations
152CV Constitution of Commission for conduct of arbitration
152CW Member of the Commission presiding at an arbitration
2 or more members—Chairperson part of arbitration
(1) If:
2 or more members—Chairperson not part of arbitration
(2) If:
then the Chairperson must nominate one of those members to preside at the arbitration.
Section 152CWA
152CWA Exercise of procedural powers by Commission members
2 or more members—Chairperson part of arbitration
(1) If:
then the procedural powers of the Commission in relation to the arbitration may be exercised by either or both of the following:
2 or more members—Chairperson not part of arbitration
(2) If:
then the procedural powers of the Commission in relation to the arbitration may be exercised by either or both of the following:
Procedural powers
(3) For the purposes of this section, a procedural power of the Commission in relation to an arbitration is a power of the Commission in relation to the arbitration other than:
Section 152CX
152CX Reconstitution of Commission
Single member
(1) If:
any reason is not available for the purposes of the arbitration; then the Chairperson must direct that the Commission is to be constituted for the purposes of finishing the arbitration by one or more members nominated by the Chairperson.
2 or more members
(2) If:
then the Chairperson must either:
Previous record of proceedings
(3) If a direction under subsection (1) or (2) is given, the Commission as constituted in accordance with the direction must continue and finish the arbitration and may, for that purpose, have regard to any record of the proceedings of the arbitration made by the Commission as previously constituted.
152CY 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: Section 152CZ
152CZ Hearing to be in private
(1) Subject to subsection (2), an arbitration hearing for an access dispute is to be in private.
Note 1: The Commission may publish a determination made in relation to the arbitration: see section 152CRA.
Note 2: Information or documents given to the Commission in the course of the arbitration hearing may be given to a person for the purposes of another arbitration: see section 152DBA.
152DA 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.
152DB Procedure of Commission
(1) In an arbitration hearing about an access dispute, the Commission:
Section 152DBA
Note: The Commission may conduct a joint arbitration hearing in relation to more than 1 access dispute: see section 152DMA.
152DBA Using information from one arbitration in another arbitration
(1) For the purposes of an arbitration (the current arbitration) of an access dispute, the Commission may give any of the following:
to the current arbitration or to the Commission; any information, or any document or part of a document, given to the Commission by a person (the contributor) in the course of any other arbitration under this Division.
(2) The Commission may do so only if it considers this would be likely to result in the current arbitration being conducted in a more efficient and timely manner.
Consultation
(3) Before making a decision under subsection (1) to give information or a document or part of a document to a person (the recipient), the Commission must give the contributor a notice in writing: Section 152DC
(4) In making a decision under subsection (1), the Commission must have regard to the following matters:
152DC Particular powers of Commission
Section 152DD
that was given to the person in the course of an arbitration unless the person has the Commission’s permission.
(4) A person who contravenes:
is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
152DD Power to take evidence on oath or affirmation
152DE Failing to attend as a witness
(1) A person who is served, as prescribed, with a summons to appear as a witness before the Commission must not:
Penalty: Imprisonment for 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
(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).
Section 152DF
152DF Failing to answer questions etc.
(1) A person appearing as a witness before the Commission must not:
Penalty: Imprisonment for 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
(1A) 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 (1A) (see subsection 13.3(3) of the Criminal Code).
(2) It is a reasonable excuse for the purposes of subsection (1A) 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 (1A).
152DG Giving false or misleading evidence
A person appearing before the Commission to give evidence under section 152DD must not give evidence that is false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
152DH Provision of false or misleading document
Section 152DI
misleading in a material particular if the document is accompanied by a written statement signed by the person:
Penalty: Imprisonment for 12 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
152DI Intimidation etc.
A person must not:
person; because that other person:
Penalty: Imprisonment for 12 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
152DJ Disturbing an arbitration hearing etc.
(1) A person must not, in relation to the arbitration of an access dispute:
Section 152DK
(2) A person who intentionally contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
152DK Party may request Commission to treat material as confidential
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.
(5) Subsections (1), (2), (3) and (4) may be displaced or modified by the Procedural Rules.
Section 152DL
152DL 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.
152DM Parties to pay costs of an arbitration
The regulations may provide for the Commission to:
152DMA Joint arbitration hearings
Joint hearing
(1) If:
disputes (the nominated disputes) as are specified in the determination.
Constitution of Commission
(4) Sections 152CV to 152CY apply in relation 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.
Section 152DN
Procedure of Commission
(5) Sections 152CZ to 152DM apply in relation to the joint arbitration hearing in a corresponding way to the way in which they apply to an arbitration hearing of a particular access dispute.
Record of proceedings etc.
Procedural Rules
(8) Subsections (1) to (7) may be displaced or modified by the Procedural Rules.
Subdivision E—Effect of determinations
152DN Operation of determinations
(1) A final determination has effect 21 days after the determination is made.
152DNA Backdating of final determinations
Section 152DNA
Note: See subsection 152CP(3) for the limits on a final determination.
Interest
(6) If:
party) to pay money to another party; 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:
Guidelines
Section 152DNB
(10) Guidelines under subsection (8) are to be made available on the internet.
152DNB Stay of determinations
152DNC Continuity of final determination not affected by expiry of declaration relating to declared service
Section 152DT
Subdivision G—Variation of determinations
152DT Variation of determinations
(1) The Commission may vary a final determination on the application of any party to the final 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 152CM.
(2) Sections 152CQ and 152CR apply to a variation under this section as if:
Subdivision H—Enforcement of determinations
152DU 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:
(1A) The revocation of a determination does not affect any remedy under subsection (1) in respect of a contravention of the determination that occurred when the determination was in force.
Section 152DV
152DV Consent injunctions
On an application for an injunction under section 152DU, 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.
152DW Interim injunctions
The Federal Court may grant an interim injunction pending determination of an application under section 152DU.
152DX Factors relevant to granting a restraining injunction
The power of the Federal Court to grant an injunction under section 152DU restraining a person from engaging in conduct may be exercised whether or not:
Section 152DY
152DY Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant an injunction under section 152DU requiring a person to do a thing may be exercised whether or not:
152DZ Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order granted under this Subdivision.
Subdivision I—Miscellaneous
152EA Register of determinations
(a) on a data processing device; or Section 152EAA
(b) by way of electronic transmission.
152EAA Commission’s powers under Division 6 of Part XIB not limited
Nothing in this Division limits the Commission’s powers under Division 6 of Part XIB (about record-keeping rules and disclosure directions).
152EB Compensation for acquisition of property
(1) If:
the Commonwealth must pay that person:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
Section 152EC
Division 9—Registered agreements for access to declared services
152EC Agreements to which this Division applies
This Division applies to an agreement if:
(iii) the parties to the agreement are an access seeker and the carrier or carriage service provider who supplies, or proposes to supply, the service.
152ED Registration of agreement
Section 152EE
Commission for the deregistration of the agreement; the Commission must deregister the agreement by removing details of the agreement from the Register.
152EE Effect of registration of agreement
Section 152EF
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:
Commission under Division 8; if the person is:
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 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: Section 152EH
(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
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:
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:
152EL Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order granted under this Division.
Section 152ELA
Division 10A—Procedural Rules
152ELA Procedural Rules
Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.
152ELB Public consultation
152ELC Plan for the development of Procedural Rules
Section 152ELC
(3) The plan is not a legislative instrument for the purposes of the
Legislative Instruments Act 2003.
Section 152EM
Division 11—Miscellaneous
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:
152EO Conduct by directors, servants or agents
Section 152EP
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.
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 Operational separation for Telstra
Section 154
Part XID—Search and seizure Division 1—Preliminary 154 Simplified outline
The following is a simplified outline of this Part:
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.
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.
Section 154A
data includes:
data held in a computer includes:
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:
executing officer, for a search warrant, means:
inspector means a person appointed as an inspector under section 154B.
occupier, in relation to premises, includes a person present at the premises who apparently represents the occupier.
officer assisting, for a search warrant, means:
Section 154A
premises means:
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.
Section 154B
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:
Offence
(3) A person commits an offence if:
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.
Section 154C
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:
Section 154D
Division 3—Entry to premises with consent
154D Entry with consent
Entry
Obtaining consent
154E Powers in relation to premises
(1) The inspector or an assistant may do any of the following after entering premises under this Division:
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; Section 154F
Note: See also subsection (2).
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:
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.
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:
been agreed to in writing by the occupier of the premises; and remove the disk, tape or other storage device from the premises.
Section 154G
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:
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:
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:
Section 154GA
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:
(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:
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: Section 154H
Period of removal
(3) The thing may be moved to another place for examination or processing for no longer than 72 hours.
Extensions
154H Operation of electronic equipment at premises
(1) If:
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.
Section 154J
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:
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:
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:
Section 154K
(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:
Extensions
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 Section 154L
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:
(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
(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
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 Section 154P
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
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
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 Section 154RA
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:
149.1 of the Criminal Code that relates to this Part.
154RA Person with computer knowledge to assist access etc.
Section 154S
Penalty for a contravention of this subsection: Imprisonment for 6 months.
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:
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
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:
whichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
(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 Section 154V
whom it was seized (or to the owner if that person is not entitled to possess it), unless:
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 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:
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.
Section 154W
Affect on interested parties
(3) Before making the application, the inspector must:
154W Disposal of things if there is no owner or owner cannot be located
If:
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.
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:
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.
Section 154Y
(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:
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.
Section 154Y
Issue of warrant
(4) If the magistrate is satisfied:
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:
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:
Section 154Z
Attachment
(8) The magistrate is to attach to the documents provided under subsection (7) the warrant completed by the magistrate.
Authority of warrant
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
Section 154ZA
(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.
Subdivision G—Powers of magistrates
154ZA Powers conferred on magistrates
Section 154ZB
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
Section 154ZC
damage, in relation to data, includes damage by erasure of data or addition of other data.
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:
(2A) A member of the Commission may not give a notice under subsection (1) merely because:
(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.
(5A) Paragraph (5)(a) does not apply to the extent that the person is not capable of complying with the notice.
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:
149.1 of the Criminal Code that relates to this section.
(7A) This section does not require a person:
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.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(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:
(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
Disclosure to Ministers
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:
for the purpose of advising the designated Minister.
(7) If protected information relates to a matter arising under:
Minister, a Commission official may disclose the protected information to:
for the purpose of advising the other Minister.
(8) Subsection (7) does not limit subsection (6).
Disclosure to a Royal Commission
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:
disclose that protected information to the agency, body or person concerned.
Disclosure with consent
(15) A Commission official may disclose protected information that relates to the affairs of a person if:
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:
if those summaries or statistics, as the case may be, are not likely to enable the identification of a person.
Disclosure authorised by regulations
Delegation
(20) The Chairperson may, by writing, delegate any or all of his or her functions and powers under:
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:
core statutory provision means:
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:
foreign government body means:
information includes information in a document and information given in evidence.
protected information means:
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:
155AA Protection of Part VB information
Commission official means:
disclose means divulge or communicate.
information includes information in a document and information given in evidence.
protected Part VB information means:
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:
155B Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission
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:
is not admissible in evidence against the person in any criminal proceedings, other than proceedings for an offence against subsection (3).
156 Inspection of documents by Commission
157 Disclosure of documents by Commission
(1) Subject to subsection (1A), if:
(ba) the Commission proposes to revoke, or to revoke and substitute, a clearance under section 95AS; or
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:
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.
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:
Court 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:
the Tribunal must, at the request of the corporation and upon payment of the prescribed fee (if any), give to the corporation:
157A Disclosure of information by Commission
(1) The Commission or a Commission official may disclose to:
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.
Commission official means:
157B Disclosure of protected cartel information to a court or tribunal
Commission or a Commission official not required to disclose protected cartel information
effective performance of the tribunal’s functions; and must not have regard to any other matters.
(3) If:
or information must not be adduced in other proceedings before the court or tribunal except:
Commission or a Commission official may disclose protected cartel information
and must not have regard to any other matters.
(6) If:
or information must not be adduced in other proceedings before the court or tribunal except:
Definitions
(7) In this section:
Commission official means:
disclose means divulge or communicate.
protected cartel information means information that:
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:
the Commission or a Commission official is not to be required, in connection with the proceedings, to:
(2) If:
the Commission or a Commission official is not to be required, in connection with the prospective proceedings, to:
Commission or Commission official may disclose protected cartel information
(3) If:
the Commission or a Commission official may, on application by the person:
(4) If:
the Commission or a Commission official may, on application by the person:
Definitions
(7) In this section:
Commission official means:
protected cartel information means information that:
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
158 Protection of members of Tribunal, counsel and witnesses
159 Incriminating answers
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:
(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:
(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.
(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
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:
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
by: (aa) the Director of Public Prosecutions; or
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.
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:
(iii) Part XIC; or (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:
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:
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:
the Supreme Court is conferred with jurisdiction with respect to any such matter.
(4C) Subject to subsection (4D), at any time when:
Supreme Court of a State or Territory; the following apply:
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:
Definitions
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
(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):
166 Certificates as to furnishing of particulars to Commission
167 Judicial notice
(1) All courts shall take judicial notice of:
AER; if the signature or seal purports to be attached or appended to an official document.
(1A) All courts must take judicial notice of:
Commerce Commission; if the signature or imprint purports to be attached or appended to an official document.
(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:
instituted under Part IVB, Part VA, Part VI or section 163A; may apply to the Attorney-General for a grant of assistance under this section in respect of the proceeding.
(iii) an application for a review of a determination, or of the giving of a notice, by the Commission.
171 Annual report by Commission
(iii) make decisions on applications under subsection 44PA(1) (about government tendering); and
(da) a general description of the nature of the matters in respect of which the search warrants were issued or signed; and (db) the number of proceedings brought to challenge the validity of the search warrants; and (dc) the number of entries onto premises under Part XID; and
171A Charges by the Commission
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:
171B Division 3 of Part IIIA and Division 8 of Part XIC do not confer judicial power on the Commission
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 to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, prescribing:
(1A) Without limiting subsection (1), that subsection includes the power to make regulations enabling a person who is alleged to have contravened section 65R to pay to the Commonwealth, as an alternative to prosecution, a specified penalty, not exceeding one-fifth of the maximum penalty that could be imposed on the person under that section.
(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 of specified provisions of this Act (other than Part IV):
(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 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)
primary products means:
Note: An example of agricultural produce that has been subjected to a manufacturing process is sugar cane that has been transformed into raw sugar.
Section 174
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:
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:
(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 Section 178
178 Notifications in force before the commencement time
(1) This section applies if:
Section 178
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Schedule—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:
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 corporate, and any body corporate related to the body corporate,
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Section 44ZZRB
have made, or are likely to make, during the 12-month period, other than:
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:
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:
obtaining includes:
party has a meaning affected by section 44ZZRC.
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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:
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:
the price for, or a discount, allowance, rebate or credit in relation to:
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Section 44ZZRD
(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:
(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
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(c) ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services:
(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
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.
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:
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
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Section 44ZZRD
Note: Party has an extended meaning—see section 44ZZRC.
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:
subsection (2); by reason only that it recommends, or provides for the recommending of, a price, discount, allowance, rebate or credit.
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Immaterial whether particular circumstances or particular conditions
(7) It is immaterial whether:
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:
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:
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Section 44ZZRE
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:
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:
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
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Section 44ZZRG
(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:
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
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Section 44ZZRH
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:
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:
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Section 44ZZRI
Note: Party has an extended meaning—see section 44ZZRC.
(2) A person cannot be found guilty of an offence against section 44ZZRF or 44ZZRG if:
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:
Subdivision C—Civil penalty provisions
44ZZRJ Making a contract etc. containing a cartel provision
A person contravenes this section if:
Note: For enforcement, see Part VI.
44ZZRK Giving effect to a cartel provision
(1) A person contravenes this section if:
Note: For enforcement, see Part VI.
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Section 44ZZRL
(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
44ZZRM Cartel provision subject to grant of authorisation
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
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Section 44ZZRO
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:
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:
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Section 44ZZRO
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:
(i) their joint control; or
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Section 44ZZRO
(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
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Section 44ZZRP
44ZZRP Joint ventures—civil penalty proceedings
(1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a contract containing a cartel provision if:
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:
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Section 44ZZRP
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:
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:
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.
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Section 44ZZRQ
(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
44ZZRR Resale price maintenance
44ZZRS Exclusive dealing
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Section 44ZZRT
(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
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Section 44ZZRU
44ZZRU Acquisition of shares or assets
44ZZRV Collective acquisition of goods or services by the parties to a contract, arrangement or understanding
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Section 45
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:
substantially lessening competition; that provision is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a person.
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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:
together have or are likely to have that effect.
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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:
(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:
arrangement; does not contravene this section if the conduct would, or would apart from subsection 88(8B), contravene section 49.
(8A) Subsection (2) does not apply to a person engaging in conduct described in that subsection if:
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(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:
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
(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:
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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;
(3) Where a person:
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:
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
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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:
(iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.
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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:
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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(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 are supplied by the persons who are, or but for subsection 45B(1) would be, bound by or entitled to the benefit of the
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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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(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:
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.
Note: This version of Part IV does not contain an equivalent of section 45DB of the Trade Practices Act 1974.
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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:
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.
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
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who were members of the organisation at the time when the conduct was engaged in; and
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
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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:
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:
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
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(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:
Meaning of industrial action—basic definition
(4) In subsection (3), industrial action means:
For this purpose, industrial body and workplace instrument have the same meanings as in the Fair Work Act 2009.
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Meaning of industrial action—further clarification
(5) For the purposes of subsection (3):
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, 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:
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
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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:
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:
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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)):
Exception to subsection (5)
(6) If:
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)):
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Exception to subsection (7)
(8) If:
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:
Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A).
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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:
(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:
(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.
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(1A) For the purposes of subsections (1) and (1AA):
(c) to a person includes a reference to persons generally, or to a particular class or classes of persons.
(2) If:
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:
(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
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(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:
(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:
(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:
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(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:
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
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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:
(3) A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:
for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate:
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(4) A person (the first person) also engages in the practice of exclusive dealing if the first person:
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:
(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
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(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:
(6) A person (the first person) also engages in the practice of exclusive dealing if 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:
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.
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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 first person or from a competitor of a body corporate related to the first person;
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(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),
(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:
(11) Subsections (8) and (9) do not apply with respect to:
(a) conduct engaged in by, or by a trustee for, a religious, charitable or public benevolent institution, being conduct engaged in for or in accordance with the purposes or objects of that institution; or
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(b) conduct engaged in in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
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:
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:
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 dual listed company arrangement, means competition in any market in which:
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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:
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:
if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a 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).
(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:
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(4) Where:
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:
(5) For the purposes of subsection (4), an application for a clearance shall be taken to be disposed of:
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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 substantial market for goods or services in:
51 Exceptions
(1) In deciding whether a person has contravened this Part, the following must be disregarded:
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(1A) Without limiting subsection (1), conduct is taken to be specified in, and authorised by, a law for the purposes of that subsection if:
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:
(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
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the provision, relates to, the remuneration, conditions of employment, hours of work or working conditions of employees;
(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
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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:
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;
of a provision to the extent that it relates to the kinds, qualities or standards of goods bearing the mark that may be
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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.
This compilation was prepared on 19 April 2010 taking into account amendments up to Act No. 44 of 2010
Volume 3 includes: Note 1
Table of Acts
Act Notes
Table of Amendments
Note 2
Table A
The text of any of those amendments not in force on that date is appended in the Notes section
The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section
The Trade Practices Act 1974 as shown in this compilation comprises Act No. 51, 1974 amended as indicated in the Tables below.
The Trade Practices Act 1974 was amended by the Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations 2006 (No. 1) (SLI 2006 No. 50). The amendments are incorporated in this compilation.
For application, saving or transitional provisions made by the Corporations (Repeals, Consequentials and Transitionals) Act 2001, see Act No. 55, 2001.
For application, saving or transitional provisions made by the Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005, see Act No. 45, 2005.
All other relevant information pertaining to application, saving or transitional provisions prior to 25 November 1996 is not included in this compilation. For subsequent information see Table A.
Table of Acts
| Act | Number and year | Date of Assent | Date of commencement | Application, saving or transitional |
| provisions | ||||
| Trade Practices Act 1974 | 51, 1974 | 24 Aug 1974 | Ss. 1 and 2: Royal Assent | |
| S. 55: 27 Sept 1975 (see Gazette 1975, No. S178) Remainder: 1 Oct | ||||
| 1974 (see Gazette 1974, No. 75B) | ||||
| Postal and Telecommunications Commissions (Transitional Provisions) Act 1975 | 56, 1975 | 12 June 1975 | Ss. 4 and 38: 1 July 1975 (see s. 2(1) and Gazette 1975, No. S122) Remainder: Royal Assent | — |
| Trade Practices Act 1975 | 63, 1975 | 19 June 1975 | 19 June 1975 | — |
| Trade Practices Amendment Act 1976 | 88, 1976 | 31 Aug 1976 | 31 Aug 1976 | Ss. 2 and 6(2) |
| Act | Number | Date | Date of | Application, |
| and year | of Assent | commencement | saving or | |
| transitional | ||||
| provisions | ||||
| Federal Court of Australia | 157, 1976 | 9 Dec 1976 | 1 Feb 1977 (see | — |
| (Consequential | s. 2 and Gazette | |||
| Provisions) Act 1976 | 1977, No. S3) | |||
| Trade Practices | 81, 1977 | 16 June 1977 | 1 July 1977 | Ss. |
| Amendment Act 1977 | 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 | ||||
| Remuneration and | 111, 1977 | 28 Oct 1977 | Ss. 1, 2, 5, 9(2), | S. 19(2) |
| Allowances Amendment | 13, 16, 18 and | |||
| Act 1977 | 19(2): Royal | |||
| Assent | ||||
| Remainder: 1 June | ||||
| 1977 | ||||
| Trade Practices | 151, 1977 | 10 Nov 1977 | 10 Nov 1977 | S. 6 |
| Amendment Act (No. 2) | ||||
| 1977 | ||||
| Trade Practices | 206, 1978 | 6 Dec 1978 | 6 Dec 1978 | Ss. 8(2) |
| Amendment Act 1978 | and 20 | |||
| Trade Practices | 207, 1978 | 6 Dec 1978 | 6 Dec 1978 | — |
| Amendment Act (No. 2) | ||||
| 1978 | ||||
| Trade Practices (Boycotts) | 73, 1980 | 29 May 1980 | 29 May 1980 | — |
| Amendment Act 1980 | ||||
| Statute Law Revision Act | 61, 1981 | 12 June 1981 | S. 115: Royal | — |
| 1981 | Assent (a) | |||
| Statute Law (Miscellaneous | 176, 1981 | 2 Dec 1981 | Part XIX (s. 68): | — |
| Amendments) Act 1981 | 30 Dec 1981 (b) | |||
| Statute Law (Miscellaneous | 80, 1982 | 22 Sept 1982 | Part LXXVI | S. 280(2) |
| Amendments) Act | (ss. 278, 279): | and (3) | ||
| (No. 2) 1982 | 20 Oct 1982 (c) | |||
| Statute Law (Miscellaneous | 39, 1983 | 20 June 1983 | S. 3: 18 July 1983 | S. 7(1), (3) |
| Provisions) Act (No. 1) | (d) | and (4) | ||
| 1983 | ||||
| Public Service Reform Act | 63, 1984 | 25 June 1984 | S. 151(1): 1 July | S. 151(9) |
| 1984 | 1984 (see Gazette | |||
| 1984, No. S245) | ||||
| (e) | ||||
| Remuneration and | 73, 1984 | 25 June 1984 | 25 June 1984 | — |
| Allowances Amendment | ||||
| Act 1984 | ||||
| Statute Law (Miscellaneous | 165, 1984 | 25 Oct 1984 | S. 3: (f) | S. 2(32) |
| Provisions) Act (No. 2) | S. 2(28) | |||
| 1984 | (am. by 17, | |||
| 1986, | ||||
| s. 75) |
| Act | Number | Date | Date of | Application, |
| and year | of Assent | commencement | saving or | |
| transitional | ||||
| provisions | ||||
| as amended by | ||||
| Trade Practices | 17, 1986 | 13 May 1986 | (see 17, 1986 | — |
| Revision Act 1986 | below) | |||
| Statute Law (Miscellaneous | 65, 1985 | 5 June 1985 | S. 3: 3 July 1985 | — |
| Provisions) Act (No. 1) | (g) | |||
| 1985 | ||||
| Trade Practices (Transfer of | 8, 1986 | 1 May 1986 | 1 June 1986 (see | — |
| Market Dominance) | Gazette 1986, | |||
| Amendment Act 1986 | No. S251) | |||
| Trade Practices Revision | 17, 1986 | 13 May 1986 | Ss. 1, 2, 49(1), | Ss. 27(2), |
| Act 1986 | 51(1) and 64(1): | 31(2), | ||
| Royal Assent | 33(2), | |||
| Part III (ss. 74–76): | 34(2), | |||
| 25 Oct 1984 | 47(2), | |||
| Ss. 31 and 35: | 50(2), | |||
| 1 July 1986 | 59(3) and | |||
| Remainder: 1 June | 65(2) | |||
| 1986 (see Gazette | ||||
| 1986, No. S251) | ||||
| Statute Law (Miscellaneous | 168, 1986 | 18 Dec 1986 | S. 3: Royal Assent | S. 5(1) |
| Provisions) Act (No. 2) | (h) | |||
| 1986 | ||||
| Jurisdiction of Courts | 23, 1987 | 26 May 1987 | S. 3: (j) | S. 4 |
| (Miscellaneous | ||||
| Amendments) Act 1987 | ||||
| Statute Law (Miscellaneous | 141, 1987 | 18 Dec 1987 | S. 3: 1 Apr 1989 | S. 5(1) |
| Provisions) Act 1987 | (see Gazette | |||
| 1989, No. S88) (k) | ||||
| Family Court of Australia | 8, 1988 | 5 Apr 1988 | Ss. 1–11, 12(b), | — |
| (Additional Jurisdiction | (c), (e), (f), 13–21, | |||
| and Exercise of Powers) | 27, 29 and 30: | |||
| Act 1988 | Royal Assent | |||
| S. 12(a) and (d): | ||||
| 1 Jan 1990 | ||||
| Remainder: 1 July | ||||
| 1988 (see Gazette | ||||
| 1988, No. S191) | ||||
| as amended by | ||||
| Law and Justice | 120, 1988 | 14 Dec 1988 | Part XI (ss. 34, 35): | — |
| Legislation Amendment | 5 Apr 1988 (l) | |||
| Act 1988 | ||||
| Trade Practices | 20, 1988 | 11 May 1988 | S. 4: 1 July 1988 | — |
| Amendment Act 1988 | Remainder: Royal | |||
| Assent | ||||
| Industrial Relations | 87, 1988 | 8 Nov 1988 | Ss. 1 and 2: Royal | — |
| (Consequential | Assent | |||
| Provisions) Act 1988 | Remainder: 1 Mar | |||
| 1989 (see s. 2(2) | ||||
| and Gazette 1989, | ||||
| No. S53) |
| Act | Number | Date | Date of | Application, |
| and year | of Assent | commencement | saving or | |
| transitional | ||||
| provisions | ||||
| as amended by | ||||
| Industrial Relations | 108, 1990 | 18 Dec 1990 | Ss. 8, 13 and 21: | — |
| Legislation Amendment Act (No. 2) 1990 | 1 Feb 1991 (see s. 2(4) and Gazette 1991, No. S18) | |||
| Ss. 22, 23 and 24: | ||||
| 1 Mar 1989 | ||||
| S. 26: 1 Jan 1990 | ||||
| S. 33: 25 Mar 1991 | ||||
| (see Gazette 1991, | ||||
| No. S73) | ||||
| Remainder: Royal | ||||
| Assent | ||||
| Circuit Layouts Act 1989 | 28, 1989 | 22 May 1989 | Ss. 1 and 2: Royal | — |
| Assent | ||||
| Remainder: 1 Oct | ||||
| 1990 (see Gazette | ||||
| 1990, No. S261) | ||||
| Trade Practices | 34, 1989 | 30 May 1989 | 1 Aug 1989 (see | S. 6 |
| (International Liner Cargo | Gazette 1989, | |||
| Shipping) Amendment Act | No. S260) | |||
| 1989 | ||||
| Law and Justice Legislation | 11, 1990 | 17 Jan 1990 | Part 1 (ss. 1, 2) | — |
| Amendment Act 1989 | and Part 3 (ss. 6, | |||
| 7): Royal Assent | ||||
| Ss. 8–10: 17 July | ||||
| 1990 | ||||
| Ss. 12, 13, 51(1)(b) | ||||
| and 51(2): 17 Jan | ||||
| 1990 (see s. 2(5)) | ||||
| Remainder: 14 Feb | ||||
| 1990 | ||||
| Trade Practices (Misuse of | 70, 1990 | 16 June 1990 | 1 July 1990 (see | — |
| Trans-Tasman Market | Gazette 1990, | |||
| Power) Act 1990 | No. S172) | |||
| Trade Practices | 49, 1991 | 24 Apr 1991 | 21 Dec 1990 | — |
| Amendment Act 1991 | ||||
| Industrial Relations | 122, 1991 | 27 June 1991 | Ss. 4(1), 10(b) and | S. 31(2) |
| Legislation Amendment | 15–20: 1 Dec 1988 | |||
| Act 1991 | Ss. 28(b)–(e), 30 | |||
| and 31: 10 Dec | ||||
| 1991 (see Gazette | ||||
| 1991, No. S332) | ||||
| Remainder: Royal | ||||
| Assent | ||||
| Law and Justice Legislation | 136, 1991 | 12 Sept 1991 | Ss. 22–25: 10 Oct | S. 25 |
| Amendment Act 1991 | 1991 (m) | |||
| Transport and | 173, 1991 | 25 Nov 1991 | Ss. 48–56: Royal | — |
| Communications | Assent (n) | |||
| Legislation Amendment | ||||
| Act 1991 | ||||
| Special Broadcasting | 180, 1991 | 25 Nov 1991 | S. 116: 23 Dec | — |
| Service Act 1991 | 1991 (o) |
| Act | Number | Date | Date of | Application, |
| and year | of Assent | commencement | saving or | |
| transitional | ||||
| provisions | ||||
| Law and Justice Legislation | 22, 1992 | 13 Apr 1992 | 13 Apr 1992 | — |
| Amendment Act 1992 | ||||
| Territories Law Reform Act | 104, 1992 | 30 June 1992 | S. 24: 1 July 1992 | — |
| 1992 | (p) | |||
| Broadcasting Services | 105, 1992 | 9 July 1992 | 5 Oct 1992 (see | — |
| (Transitional Provisions | s. 2 and Gazette | |||
| and Consequential | 1992, No. GN38) | |||
| Amendments) Act 1992 | ||||
| Trade Practices | 106, 1992 | 9 July 1992 | 9 July 1992 | S. 3 |
| Amendment Act 1992 | ||||
| Trade Practices Legislation | 222, 1992 | 24 Dec 1992 | 21 Jan 1993 | Ss. 10(2), |
| Amendment Act 1992 | 16(2), | |||
| 18(2) and | ||||
| 21 | ||||
| Industrial Relations Reform | 98, 1993 | 22 Dec 1993 | Ss. 42–48 and 54: | S. 54 |
| Act 1993 | 30 Mar 1994 (see | |||
| Gazette 1994, | ||||
| No. S104) (q) | ||||
| Insurance Laws | 49, 1994 | 7 Apr 1994 | Schedule (item 19): | — |
| Amendment Act (No. 2) | Royal Assent (r) | |||
| 1994 | ||||
| Law and Justice Legislation | 141, 1994 | 28 Nov 1994 | S. 3 (items 21–26): | — |
| Amendment Act (No. 2) | Royal Assent (s) | |||
| 1994 | ||||
| Competition Policy Reform | 88, 1995 | 20 July 1995 | Parts 1, 2 | Ss. 33, 34, |
| Act 1995 | (ss. 1–34), Div. 2 of | 78, 88–90 | ||
| Part 5 (ss. 88–90) | and 92 | |||
| and Part 7 (s. 92): | ||||
| 17 Aug 1995 (t) | ||||
| Ss. 35–76 and 78: | ||||
| 6 Nov 1995 (see | ||||
| Gazette 1995, | ||||
| No. S423) (t) | ||||
| Div. 1 of Part 5 | ||||
| (ss. 80–87): 20 July | ||||
| 1996 (t) | ||||
| Part 6 (s. 91): (t) | ||||
| Statute Law Revision Act | 43, 1996 | 25 Oct 1996 | Schedule 4 | — |
| 1996 | (item 147): Royal | |||
| Assent (u) | ||||
| Workplace Relations and | 60, 1996 | 25 Nov 1996 | Schedule 17 (items | Sch. 17 |
| Other Legislation | 1–11, 14–24): | (items | ||
| Amendment Act 1996 | 17 Jan 1997 (see | 29–37) | ||
| Gazette 1997, | [see Table | |||
| No. S18) (v) | A] | |||
| S. 2(2) and | ||||
| (6) (am. by | ||||
| 77, 1996, | ||||
| Sch. 3 | ||||
| [items 1, | ||||
| 2]) |
| Act | Number | Date | Date of | Application, |
| and year | of Assent | commencement | saving or | |
| transitional | ||||
| provisions | ||||
| as amended by | ||||
| Workplace Relations | 77, 1996 | 19 Dec 1996 | Schedule 3 | — |
| and Other Legislation | (items 1, 2): (w) | |||
| Amendment Act (No. 2) | ||||
| 1996 | ||||
| Trade Practices | 28, 1997 | 10 Apr 1997 | 10 Apr 1997 | — |
| Amendment (Industry | ||||
| Access Codes) Act 1997 | ||||
| Trade Practices | 58, 1997 | 30 Apr 1997 | 30 Apr 1997 | Sch. 1 |
| Amendment | (item 15) | |||
| (Telecommunications) Act | [see | |||
| 1997 | Table A] | |||
| Audit (Transitional and | 152, 1997 | 24 Oct 1997 | Schedule 2 | — |
| Miscellaneous) | (item 1260): 1 Jan | |||
| Amendment Act 1997 | 1998 (see Gazette | |||
| 1997, No. GN49) | ||||
| (x) | ||||
| Telecommunications | 200, 1997 | 16 Dec 1997 | Schedule 2 (items | — |
| Legislation Amendment | 30–34): (y) | |||
| Act 1997 | ||||
| Trade Practices | 36, 1998 | 22 Apr 1998 | Schedule 2: 1 July | — |
| Amendment (Fair Trading) | 1998 (see Gazette | |||
| Act 1998 | 1998, No. S301) | |||
| Remainder: Royal | ||||
| Assent | ||||
| Financial Sector Reform | 48, 1998 | 29 June 1998 | Schedule 1 | — |
| (Consequential | (item 194) and | |||
| Amendments) Act 1998 | Schedule 2 (items | |||
| 24–29): 1 July | ||||
| 1998 (see Gazette | ||||
| 1998, No. S316) (z) | ||||
| Gas Pipelines Access | 101, 1998 | 30 July 1998 | Schedule 1 (items | Sch. 1 |
| (Commonwealth) Act | 11–26): 30 July | (items 36, | ||
| 1998 | 1998 (za) | 47, 50) | ||
| Schedule 1 (items | [see | |||
| 27–56): Royal | Table A] | |||
| Assent (za) | ||||
| Trade Practices | 106, 1998 | 30 July 1998 | Schedule 1: 13 Aug | — |
| Amendment (Country of | 1998 (see Gazette | |||
| Origin Representations) | 1998, No. S398) | |||
| Act 1998 | Remainder: Royal | |||
| Assent | ||||
| Telecommunications | 52, 1999 | 5 July 1999 | Schedule 1 (items | Sch. 1 |
| Legislation Amendment | 6–77): Royal | (items | ||
| Act 1999 | Assent (zb) | 72–77), | ||
| Schedule 3 (items | Sch. 3 | |||
| 69–76, 81): 2 Aug | (item 81) | |||
| 1999 (zb) | and Sch. 4 | |||
| Schedule 4 (items | (item 28) | |||
| 17–20, 28): 1 July | [see | |||
| 1999 (zb) | Table A] |
| Act | Number | Date | Date of | Application, |
| and year | of Assent | commencement | saving or | |
| transitional | ||||
| provisions | ||||
| A New Tax System (Trade | 61, 1999 | 8 July 1999 | 9 July 1999 | — |
| Practices Amendment) | (see s. 2) | |||
| Act 1999 | ||||
| Public Employment | 146, 1999 | 11 Nov 1999 | Schedule 1 (items | — |
| (Consequential and | 944–955): 5 Dec | |||
| Transitional) Amendment | 1999 (see Gazette | |||
| Act 1999 | 1999, No. S584) | |||
| (zc) | ||||
| A New Tax System (Indirect | 176, 1999 | 22 Dec 1999 | Schedule 4: Royal | — |
| Tax and Consequential | Assent (zd) | |||
| Amendments) Act 1999 | ||||
| Federal Magistrates | 194, 1999 | 23 Dec 1999 | Schedule 25: 23 | — |
| (Consequential | Dec 1999 (ze) | |||
| Amendments) Act 1999 | ||||
| Jurisdiction of Courts | 57, 2000 | 30 May 2000 | Schedule 1 (items | — |
| Legislation Amendment | 77–90): Royal | |||
| Act 2000 | Assent (zf) | |||
| A New Tax System (Trade | 69, 2000 | 22 June 2000 | Schedule 2 | — |
| Practices Amendment) | (item 1): 6 Nov | |||
| Act 2000 | 1995 (see s. 2(2) | |||
| and Gazette 1995, | ||||
| No. S423) | ||||
| Schedule 2 | ||||
| (item 2): 10 Apr | ||||
| 1997 (see s. 2(3)) | ||||
| Remainder: Royal | ||||
| Assent | ||||
| Trade Practices | 123, 2000 | 5 Oct 2000 | Schedule 1 (items | Sch. 1 |
| Amendment (International | 154–170, 180): | (items | ||
| Liner Cargo Shipping) Act | 2 Mar 2001 | 171–180) | ||
| 2000 | Remainder: 2 Nov | [see | ||
| 2000 | Table A] | |||
| Jurisdiction of Courts | 161, 2000 | 21 Dec 2000 | 21 Dec 2000 | — |
| (Miscellaneous | ||||
| Amendments) Act 2000 | ||||
| Treasury Legislation | 31, 2001 | 28 Apr 2001 | Schedule 1 (items | — |
| Amendment (Application | 240–290): 15 Dec | |||
| of Criminal Code) Act | 2001 (zg) | |||
| (No. 1) 2001 | ||||
| as amended by | ||||
| Statute Law Revision | 63, 2002 | 3 July 2002 | Schedule 2 | — |
| Act 2002 | (item 35): (zga) | |||
| Communications and the | 46, 2001 | 5 June 2001 | 5 June 2001 | S. 6 [see |
| Arts Legislation | Table A] | |||
| Amendment Act 2001 | ||||
| Corporations (Repeals, | 55, 2001 | 28 June 2001 | Ss. 4–14 and | Ss. 4–14 |
| Consequentials and | Schedule 3 (items | [see | ||
| Transitionals) Act 2001 | 550–557): 15 July | Note 1] | ||
| 2001 (see Gazette | ||||
| 2001, No. S285) | ||||
| (zh) |
Act Number Date Date of Application, and year of Assent commencement saving or transitional provisions
Trade Practices Amendment Act (No. 1) 2001
Statute Law Revision
Act 2002
Treasury Legislation Amendment (Application of Criminal Code) Act (No. 3) 2001
Financial Services Reform (Consequential Provisions) Act 2001
Trade Practices Amendment (Telecommunications) Act 2001
Treasury Legislation Amendment (Application of Criminal Code) Act (No. 2) 2001
Statute Law Revision Act 2002
Trade Practices Amendment Act (No. 1) 2002
Telecommunications Competition Act 2002
63, 2001 28 June 2001
63, 2002 3 July 2002 117, 2001 18 Sept 2001
123, 2001 27 Sept 2001
124, 2001 27 Sept 2001
146, 2001 1 Oct 2001
63, 2002 3 July 2002
128, 2002 11 Dec 2002
140, 2002 19 Dec 2002 Schedule 2 (items Sch. 1 1–3, 6–8): (zi) (items 5, 8, Schedule 2 (items 10, 13, 15, 4, 5): (zi) 17, 19, 21, Remainder: 26 July 23, 25, 27, 2001 29, 32, 34,
36, 38) and Sch. 2 (items 3, 5, 8) [see Table A]
Schedule 2 — (item 32): (zia)
S. 4: 15 Dec 2001 S. 4 [see (zj) Table A] Schedule 3 (items 16–56): (zj)
Schedule 1 (items — 364–364D, 365–365B): 11 Mar 2002 (see Gazette 2001, No. GN42)
(zk)
27 Sept 2001 Sch. 1 (items 23, 24) [see Table A]
S. 4 and S. 4 [see Schedule 2 (items Table A] 1, 2, 4–39): 15 Dec 2001 (zl) Schedule 2 (item 3): (zl)
Schedule 1 (items — 34, 35, 38): 1 July 1999 Schedule 1 (items 36, 37): Royal Assent
11 Dec 2002 Sch. 1 (items 4, 7, 9) [see Table A]
19 Dec 2002 Sch. 2 (items 9, 15, 19, 21, 69, 110, 111, 113, 115) [see Table A]
| Act | Number | Date | Date of | Application, |
| and year | of Assent | commencement | saving or | |
| transitional | ||||
| provisions | ||||
| Trade Practices | 146, 2002 | 19 Dec 2002 | 19 Dec 2002 | — |
| Amendment (Liability for | ||||
| Recreational Services) | ||||
| Act 2002 | ||||
| Maritime Legislation | 7, 2003 | 19 Mar 2003 | Schedule 1 (items | — |
| Amendment Act 2003 | 1–6): 1 Nov 2003 | |||
| Schedule 1 | ||||
| (items 7–9): 20 Mar | ||||
| 2003 | ||||
| Remainder: Royal | ||||
| Assent | ||||
| Industry, Tourism and | 21, 2003 | 11 Apr 2003 | Schedule 1 (items | Sch. 1 |
| Resources Legislation | 25–29): 12 Apr | (item 29) | ||
| Amendment Act 2003 | 2003 | [see | ||
| Table A] | ||||
| Trade Practices Legislation | 134, 2003 | 17 Dec 2003 | Schedules 1 and 2: | Sch. 2 |
| Amendment Act 2003 | 1 Mar 2004 (see | (items | ||
| Gazette 2004, | 44–53, 56) | |||
| No. GN8) | [see | |||
| Remainder: Royal | Table A] | |||
| Assent | ||||
| Postal Services Legislation | 69, 2004 | 22 June 2004 | 22 June 2004 | — |
| Amendment Act 2004 | ||||
| Corporate Law Economic | 103, 2004 | 30 June 2004 | Schedule 3 (items | — |
| Reform Program (Audit | 5, 6): 26 July 2004 | |||
| Reform and Corporate | (see Gazette 2004, | |||
| Disclosure) Act 2004 | No. GN28) | |||
| Trade Practices | 108, 2004 | 30 June 2004 | Schedules 1 and 2: | — |
| Amendment (Australian | 23 May 2005 (see | |||
| Energy Market) Act 2004 | F2005L01121) | |||
| Remainder: Royal | ||||
| Assent | ||||
| Trade Practices | 113, 2004 | 13 July 2004 | 13 July 2004 | Sch. 1 |
| Amendment (Personal | (item 11) | |||
| Injuries and Death) Act | [see | |||
| (No. 2) 2004 | Table A] | |||
| Treasury Legislation | 118, 2004 | 13 July 2004 | 13 July 2004 | — |
| Amendment (Professional | ||||
| Standards) Act 2004 | ||||
| Australian Communications | 45, 2005 | 1 Apr 2005 | Schedule 1 (items | Sch. 4 [see |
| and Media Authority | 168–171) and | Note 1] | ||
| (Consequential and | Schedule 4: 1 July | |||
| Transitional Provisions) | 2005 (zm) | |||
| Act 2005 | Schedule 2: (zm) |
| Act | Number | Date | Date of | Application, |
| and year | of Assent | commencement | saving or | |
| transitional | ||||
| provisions | ||||
| Telecommunications | 119, 2005 | 23 Sept 2005 | Schedules 4–6, | Sch. 4 |
| Legislation Amendment | Schedule 7 (items | (item 2) | ||
| (Competition and | 1–3, 5–12, 14–19, | [see | ||
| Consumer Issues) Act | 21–28), Schedule 9 | Table A] | ||
| 2005 | and Schedule 12: | |||
| 24 Sept 2005 | ||||
| Schedule 7 (items | ||||
| 4, 13, 20): 23 Mar | ||||
| 2006 | ||||
| Schedule 11 (items | ||||
| 8, 9): 1 Jan 2006 | ||||
| (see F2005L04117) | ||||
| Trade Practices | 11, 2006 | 23 Mar 2006 | Schedule 1: | Sch. 1 |
| Amendment (Personal | 20 April 2006 | (item 8) | ||
| Injuries and Death) Act | Remainder: Royal | [see | ||
| 2006 | Assent | Table A] | ||
| Offshore Petroleum | 17, 2006 | 29 Mar 2006 | Schedule 2 (items | — |
| (Repeals and | 113–116): 1 July | |||
| Consequential | 2008 (see s. 2(1) | |||
| Amendments) Act 2006 | and F2008L02273) | |||
| Jurisdiction of the Federal | 23, 2006 | 6 Apr 2006 | Schedule 1: 4 May | Sch. 1 |
| Magistrates Court | 2006 | (items 2, 5) | ||
| Legislation Amendment | [see | |||
| Act 2006 | Table A] | |||
| Energy Legislation | 60, 2006 | 22 June 2006 | Schedule 1 (items | — |
| Amendment Act 2006 | 2–13) and | |||
| Schedule 2 | ||||
| (item 14): Royal | ||||
| Assent | ||||
| Schedule 2 (items | ||||
| 12, 13, 15, 16): (zn) | ||||
| Trade Practices | 92, 2006 | 18 Aug 2006 | Schedule 1: 1 Oct | Sch. 1 |
| Amendment (National | 2006 (see | (items | ||
| Access Regime) Act 2006 | F2006L02999) | 114–136) | ||
| Remainder: Royal | [see | |||
| Assent | Table A] | |||
| Tax Laws Amendment | 101, 2006 | 14 Sept 2006 | Schedule 5 (items | — |
| (Repeal of Inoperative | 164, 165): Royal | |||
| Provisions) Act 2006 | Assent | |||
| Maritime Transport and | 109, 2006 | 27 Sept 2006 | Schedule 2 (items | — |
| Offshore Facilities | 97–103): Royal | |||
| Security Amendment | Assent | |||
| (Security Plans and Other | ||||
| Measures) Act 2006 |
| Act | Number | Date | Date of | Application, |
| and year | of Assent | commencement | saving or | |
| transitional | ||||
| provisions | ||||
| Trade Practices Legislation | 131, 2006 | 6 Nov 2006 | Schedule 1: 1 Jan | Sch. 1 |
| Amendment Act (No. 1) | 2007 (see | (items 52, | ||
| 2006 | F2006L04026) | 53), Sch. 2 | ||
| Schedules 2–8 and | (items 13, | |||
| Schedule 9 (items | 14), Sch. 3 | |||
| 1–15, 20–24): | (items 28, | |||
| 1 Jan 2007 | 29), Sch. 4 | |||
| Schedule 10: 7 Nov | (item 2), | |||
| 2006 | Sch. 5 | |||
| Schedule 11: Royal | (item 4), | |||
| Assent | Sch. 6 | |||
| (item 20), | ||||
| Sch. 7 | ||||
| (items 18, | ||||
| 33, 35), | ||||
| Sch. 8 | ||||
| (items 28, | ||||
| 29) and | ||||
| Sch. 9 | ||||
| (items 15, | ||||
| 21, 24) | ||||
| [see | ||||
| Table A] | ||||
| Australian Energy Market | 45, 2007 | 10 Apr 2007 | Schedule 1 (items | — |
| Amendment (Gas | 58–81): 1 July | |||
| Legislation) Act 2007 | 2008 (see | |||
| F2008L02164) | ||||
| Broadcasting Legislation | 68, 2007 | 28 May 2007 | Schedule 1: | — |
| Amendment (Digital | 29 May 2007 | |||
| Radio) Act 2007 | Schedule 2: (zo) | |||
| Remainder: Royal | ||||
| Assent | ||||
| Corporations (NZ Closer | 85, 2007 | 21 June 2007 | Schedule 3 (items | — |
| Economic Relations) and | 3–9): 19 July 2007 | |||
| Other Legislation | ||||
| Amendment Act 2007 | ||||
| Water (Consequential | 138, 2007 | 3 Sept 2007 | Schedule 1: 3 Mar | — |
| Amendments) Act 2007 | 2008 (see s. 2(1)) | |||
| Remainder: Royal | ||||
| Assent | ||||
| Trade Practices Legislation | 159, 2007 | 24 Sept 2007 | 25 Sept 2007 | Sch. 1 |
| Amendment Act (No. 1) | (item 4), | |||
| 2007 | Sch. 2 | |||
| (item 12) | ||||
| and Sch. 3 | ||||
| (item 9) | ||||
| [see | ||||
| Table A] | ||||
| Trade Practices | 7, 2008 | 20 Mar 2008 | 20 Mar 2008 | — |
| Amendment (Access | ||||
| Declarations) Act 2008 | ||||
| Australian Energy Market | 60, 2008 | 30 June 2008 | Schedule 4: (zp) | — |
| Amendment (Minor | ||||
| Amendments) Act 2008 |
| Act | Number | Date | Date of | Application, |
| and year | of Assent | commencement | saving or | |
| transitional | ||||
| provisions | ||||
| Trade Practices Legislation | 116, 2008 | 21 Nov 2008 | 22 Nov 2008 | Sch. 3 |
| Amendment Act 2008 | (items 13, | |||
| 15) [see | ||||
| Table A] | ||||
| Offshore Petroleum | 117, 2008 | 21 Nov 2008 | Schedule 3 (item | — |
| Amendment (Greenhouse | 60): 22 Nov 2008 | |||
| Gas Storage) Act 2008 | ||||
| Trade Practices | 126, 2008 | 25 Nov 2008 | Schedule 1: | Sch. 1 |
| Amendment (Clarity in | 25 May 2009 | (item 5) | ||
| Pricing) Act 2008 | Schedule 2: 26 Nov | [see | ||
| 2008 | Table A] | |||
| Remainder: Royal | ||||
| Assent | ||||
| Water Amendment Act 2008 | 139, 2008 | 8 Dec 2008 | Schedule 2 (items | — |
| 3–5): 15 Dec 2008 | ||||
| (see F2008L04656) | ||||
| Australian Energy Market | 17, 2009 | 26 Mar 2009 | Schedule 1 (items | — |
| Amendment (AEMO and | 12, 14): 27 Mar | |||
| Other Measures) Act 2009 | 2009 | |||
| Schedule 1 (item | ||||
| 13): 1 July 2009 | ||||
| (see F2009L02489 | ||||
| and South Australia | ||||
| Gazette 25 June | ||||
| 2009 No. 44, | ||||
| p3000) | ||||
| Fair Work (State Referral | 54, 2009 | 25 June 2009 | Schedule 18 (items | — |
| and Consequential and | 24–31): (zq) | |||
| Other Amendments) Act | ||||
| 2009 | ||||
| Trade Practices | 59, 2009 | 26 June 2009 | Schedule 1 (items | Sch. 1 |
| Amendment (Cartel | 3–128) and | (item 118) | ||
| Conduct and Other | Schedule 2 (items | and Sch. 2 | ||
| Measures) Act 2009 | 1–49, 52, 53): | (items 52, | ||
| 24 July 2009 | 53) [see | |||
| Schedule 2 (items | Table A] | |||
| 50, 51): 27 June | ||||
| 2009 | ||||
| Statute Stocktake | 111, 2009 | 16 Nov 2009 | Schedule 1 (items | Sch. 1 |
| (Regulatory and Other | 26–50, 107–109): | (items 49, | ||
| Laws) Act 2009 | 17 Nov 2009 | 50) [see | ||
| Table A] | ||||
| Crimes Legislation | 4, 2010 | 19 Feb 2010 | Schedule 11 (item | — |
| Amendment (Serious and | 23): 20 Feb 2010 | |||
| Organised Crime) Act | ||||
| (No. 2) 2010 | ||||
| Statute Law Revision Act | 8, 2010 | 1 Mar 2010 | Schedule 5 (items | — |
| 2010 | 125, 126): Royal | |||
| Assent | ||||
| Schedule 5 (item | ||||
| 137): (zr) |
| Act | Number | Date | Date of | Application, |
| and year | of Assent | commencement | saving or transitional | |
| provisions | ||||
| Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 | 44, 2010 | 14 Apr 2010 | Schedule 1, Schedule 2 (items 27, 29, 31, 32, 41–43, 46–50, 56–70, 72–74) and Schedule 4 (items 4, 5): [see Note 2 and Table A] Schedule 2 (items 1–26) and Schedule 4 (item 3): 15 Apr 2010 Schedule 2 (item 40): (zs) | Sch. 1 (item 2) [see Table A] |
(2) The amendments made by this Act to an Act specified in the Schedule shall come into operation on such day as is fixed by Proclamation in relation to those amendments.
The date fixed in pursuance of subsection 2(2) was 1 September 1987 (see Gazette 1987, No. S217).
(4) The items of Schedule 3 are taken to have commenced immediately after the Workplace Relations and Other Legislation Amendment Act 1996 received the Royal Assent.
The Workplace Relations and Other Legislation Amendment Act 1996 received the Royal
Assent on 25 November 1996.
(2) Subject to subsections (3) to (14), Schedules 1, 2 and 3 commence on the commencement of the Australian Prudential Regulation Authority Act 1998.
(za) The Trade Practices Act 1974 was amended by Schedule 1 (items 11–35, 37–46, 48, 49, 51–56) only of the Gas Pipelines Access (Commonwealth) Act 1998, subsections 2(1) and (3) of which provide as follows:
The Gas Pipelines Access (South Australia) Act 1997 of South Australia came into operation
on 30 July 1998 (see South Australian Government Gazette 2 April 1998, p. 1606).
(zb) The Trade Practices Act 1974 was amended by Schedule 1 (items 6–71), Schedule 3 (items 69–76) and Schedule 4 (items 17–20) only of the Telecommunications Legislation Amendment Act 1999, subsections 2(1), (4) and (6) of which provide as follows:
(zc) The Trade Practices Act 1974 was amended by Schedule 1 (items 944–955) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:
(zd) The Trade Practices Act 1974 was amended by Schedule 4 only of the A New Tax System (Indirect Tax and Consequential Amendments) Act 1999, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(ze) The Trade Practices Act 1974 was amended by Schedule 25 only of the Federal Magistrates (Consequential Amendments) Act 1999, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the commencement of the Federal Magistrates Act 1999.
(zf) The Trade Practices Act 1974 was amended by Schedule 1 (items 77–90) only of the Jurisdiction of Courts Legislation Amendment Act 2000, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(zg) The Trade Practices Act 1974 was amended by Schedule 1 (items 240–290) only of the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001, subsection 2(4) of which provides as follows:
(4) The remaining items of Schedule 1 to this Act commence on the day specified in subsection 2.2(2) of the Criminal Code.
(zga) Subsection 2(1) (item 64) of the Statute Law Revision Act 2002 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
Commencement information
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 64. Schedule 2, item 35 | Immediately after the time specified in the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001 for the commencement of item 242 of Schedule 1 to that | 15 December 2001 |
| Act |
(zh) The Trade Practices Act 1974 was amended by Schedule 3 (items 550–557) only of the Corporations (Repeals, Consequentials and Transitionals) Act 2001, subsection 2(3) of which provides as follows:
(3) Subject to subsections (4) to (10), Schedule 3 commences, or is taken to have commenced, at the same time as the Corporations Act 2001.
(zi) Subsections 2(2)(a) and (3) of the Trade Practices Amendment Act (No. 1) 2001 provide as follows:
Schedule 1 (item 260) commenced on 15 December 2001. (zia) Subsection 2(1) (item 61) of the Statute Law Revision Act 2002 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
| Provision(s) | Commencement | Date/Details |
|---|---|---|
| 61. Schedule 2, item 32 | Immediately after the time specified in the Trade Practices Amendment Act (No. 1) 2001 for the commencement of item 1 of Schedule 2 to that Act | 15 December 2001 |
(zj) The Trade Practices Act 1974 was amended by Schedule 3 (items 16–56) only of the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 3) 2001, subsections 2(1) and (4) of which provide as follows:
Schedule 1 (item 14) commenced on 15 December 2001. (zk) The Trade Practices Act 1974 was amended by Schedule 1 (items 364–365B) only of the Financial Services Reform (Consequential Provisions) Act 2001, subsections 2(1), (6) and (15)(a) of which provide as follows:
(a) the FSR commencement; and.
(zl) The Trade Practices Act 1974 was amended by Schedule 2 only of the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 2) 2001, subsections 2(1) and (2)(b) of which provide as follows:
(b) the commencement of item 274 of Schedule 1 to the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001.
Schedule 1 (item 274) commenced on 15 December 2001.
(zm) Subsection 2(1) (items 2, 3 and 10) of the Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005 provide as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Provision(s) | Commencement | Date/Details |
|---|---|---|
| 2. Schedule 1 | At the same time as section 6 of the Australian | 1 July 2005 |
| Communications and Media Authority Act 2005 | ||
| commences. |
| 3. Schedule 2 | Immediately after the commencement of the | 1 July 2005 |
| provision(s) covered by table item 2. | ||
| 10. Schedule 4 | At the same time as section 6 of the Australian | 1 July 2005 |
| Communications and Media Authority Act 2005 | ||
| commences. |
(zn) Subsection 2(1) (items 5 and 7) of the Energy Legislation Amendment Act 2006 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Provision(s) | Commencement | Date/Details |
|---|---|---|
| 5. Schedule 2, | Immediately after the commencement of | 23 May 2005 |
| items 12 and 13 | Schedules 1 and 2 to the Trade Practices | |
| Amendment (Australian Energy Market) Act 2004. | ||
| 7. Schedule 2, | Immediately after the commencement of | 23 May 2005 |
| items 15 and 16 | Schedules 1 and 2 to the Trade Practices | |
| Amendment (Australian Energy Market) Act 2004. |
(zo) Subsection 2(1) (item 3) of the Broadcasting Legislation Amendment (Digital Radio) Act 2007 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
3. Schedule 2 The later of: 19 July 2007
(a) immediately after the commencement of (paragraph (b) Schedule 1 to this Act; and applies)
(b) immediately after the commencement of section 155AAA of the Trade Practices Act 1974.
However, the provision(s) do not commence at all
if the event mentioned in paragraph (b) does not
occur.
(zp) Subsection 2(1) (item 4) of the Australian Energy Market Amendment (Minor Amendments) Act 2008 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
4. Schedule 4 Immediately after the commencement of 1 July 2008 Schedule 1 to the Australian Energy Market
(see Amendment (Gas Legislation) Act 2007.
F2008L02164)
(zq) Subsection 2(1) (item 41) of the Fair Work (State Referral and Consequential and Other Amendments) Act 2009 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
41. Schedule 18 Immediately after the commencement of Part 2-4 1 July 2009 of the Fair Work Act 2009.
(see F2009L02563) (zr) Subsection 2(1) (items 31 and 38) of the Statute Law Revision Act 2010 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
31. Schedule 5, The day this Act receives the Royal Assent. 1 March 2010 items 1 to 51
38. Schedule 5, Immediately after the provision(s) covered by table 1 March 2010 Parts 2 and 3 item 31.
(zs) Subsection 2(1) (item 5) of the Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Provision(s) | Commencement | Date/Details |
|---|---|---|
| 5. Schedule 2, item 40 | At the same time as the provision(s) covered by table item 2. | Does not commence at all |
| However, if Schedule 1 to the Statute Stocktake (Regulatory and Other Laws) Act 2009 commences before that time, the provision(s) do not commence at all. |
Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
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
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; No. 44, 2010
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 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
S. 4L ......................................... ad. No. 81, 1977 am. No. 17, 1986; No. 44, 2010
S. 4M ........................................ ad. No. 81, 1977
S. 4N ........................................ ad. No. 101, 1998
am. Nos. 17 and 92, 2006; No. 117, 2008 Heading to s. 5 ......................... am. No. 61, 1999; No. 31, 2001; Nos. 59 and 111, 2009
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
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Heading to s. 6 ......................... am. No. 61, 1999; No. 31, 2001; No. 111, 2009
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
S. 6AA ...................................... ad. No. 146, 2001 am. No. 59, 2009
Heading to Part II ..................... rs. No. 88, 1995
S. 6A ......................................... ad. No. 81, 1977 am. No. 88, 1995
S. 7 ........................................... rs. No. 81, 1977 am. No. 88, 1995; No. 106, 1998
Note to s. 7(2) ........................... ad. No. 108, 2004
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 Heading to s. 10 ....................... rs. No. 159, 2007
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
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
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 25 ......................................... am. No. 58, 1997; No. 52, 1999; No. 134, 2003; No. 69, 2004; No. 119, 2005; No. 131, 2006; No. 138, 2007
Note to s. 25(1) ......................... ad. No. 134, 2003
S. 26 ......................................... am. No. 81, 1977 rep. No. 65, 1985 ad. No. 48, 1998 am. Nos. 31 and 55, 2001
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
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 Note to s. 29B(2B) .................... am. No. 45, 2007 Ss. 29BA, 29BB ........................ ad. No. 60, 2006 am. No. 45, 2007 Heading to s. 29BC .................. am. No. 45, 2007
S. 29BC .................................... ad. No. 60, 2006 am. No. 45, 2007
Ss. 29C–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. 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 Heading to s. 31A ..................... am. No. 88, 1995
S. 31A ....................................... ad. No. 111, 1977 am. No. 88, 1995
S. 32 ......................................... am. No. 88, 1995
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Heading to s. 33 .......................
S. 33 .........................................
S. 34 ......................................... S. 35 ......................................... S. 36 ......................................... Heading to s. 39 ....................... S. 39 ......................................... S. 40 .........................................
S. 43 ......................................... Ss. 43A, 43B ............................
S. 44 .........................................
S. 44A .......................................
Part IIIAA ..................................
S. 44AB ....................................
Ss. 44AC, 44AD .......................
Ss. 44AE–44AG .......................
S. 44AH .................................... Note to s. 44AH ........................ Ss. 44AI–44AL .........................
Division 4 Subdivision A
Ss. 44AM–44AZ .......................
S. 44AAB ..................................
S. 44AAC ..................................
Ss. 44AAD, 44AAE ...................
S. 44AAEA ...............................
S. 44AAF ..................................
S. 44AAG .................................
S. 44AAGA ............................... Ss. 44AAH–44AAK ...................
am. No. 88, 1995 rs. No. 88, 1976 am. No. 81, 1977
rs. No. 111, 1977 am. No. 73, 1984; No. 43, 1996 am. No. 80, 1982; No. 106, 1998 am. No. 81, 1977; No. 61, 1981; No. 88, 1995 am. No. 88, 1995 rs. No. 131, 2006 am. No. 131, 2006 rs. No. 17, 1986
am. No. 123, 2000 am. No. 88, 1995 ad. No. 88, 1995 am. No. 81, 1977; No. 88, 1995; No. 146, 1999 ad. No. 206, 1978
am. No. 88, 1995; No. 146, 1999
ad. No. 108, 2004
ad. No. 108, 2004 am. No. 60, 2006; No. 45, 2007
ad. No. 108, 2004
ad. No. 108, 2004
ad. No. 108, 2004 am. No. 45, 2007 ad. No. 108, 2004
ad. No. 108, 2004 ad. No. 108, 2004
ad. No. 108, 2004
ad. No. 108, 2004 ad. No. 45, 2007
ad. No. 108, 2004 am. No. 17, 2009 ad. No. 108, 2004 ad. No. 60, 2006 ad. No. 108, 2004
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Part IIIA .................................... ad. No. 88, 1995
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
Ss. 44C, 44D ............................ ad. No. 88, 1995
S. 44DA .................................... ad. No. 101, 1998
S. 44E ....................................... ad. No. 88, 1995
Division 2 Subdivision A
S. 44F ....................................... ad. No. 88, 1995 am. No. 92, 2006
Notes 1–3 to s. 44F(2) .............. ad. No. 92, 2006
S. 44G ...................................... ad. No. 88, 1995 am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007
Ss. 44GA–44GC ....................... ad. No. 92, 2006
S. 44H ...................................... ad. No. 88, 1995 am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007
Note to s. 44H(1) ...................... ad. No. 92, 2006
S. 44HA .................................... ad. No. 92, 2006
S. 44I ........................................ ad. No. 88, 1995
S. 44J ....................................... ad. No. 88, 1995 am. No. 92, 2006
Note to s. 44J(3) ....................... ad. No. 92, 2006
S. 44JA ..................................... ad. No. 92, 2006
S. 44K ....................................... ad. No. 88, 1995 Note to s. 44K(4) ...................... ad. No. 92, 2006
S. 44L ....................................... ad. No. 88, 1995 Note to s. 44L(3) ....................... ad. No. 92, 2006 Heading to Subdiv. C of ........... rep. No. 92, 2006
Div. 2 of Part IIIA
Heading to Div. 2A of ............... ad. No. 92, 2006 Part IIIA
Heading to Subdiv. A of ............ ad. No. 92, 2006 Div. 2A of Part IIIA
S. 44M ....................................... ad. No. 88, 1995 am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007
Notes 1–3 to s. 44M(3) ............. ad. No. 92, 2006
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Heading to Subdiv. B of ............ ad. No. 92, 2006 Div. 2A of Part IIIA
S. 44N ...................................... ad. No. 88, 1995 am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007 Notes 1, 2 to s. 44N(1) ............. ad. No. 92, 2006 Note to s. 44N(3) ...................... ad. No. 92, 2006
Subdiv. C of Div. 2A of ............. ad. No. 92, 2006 Part IIIA
Ss. 44NA, 44NB ....................... ad. No. 92, 2006
Subdiv. D of Div. 2A of ............. ad. No. 92, 2006 Part IIIA
Ss. 44NC–44NG ....................... ad. No. 92, 2006
Heading to Subdiv. E of ............ ad. No. 92, 2006 Div. 2A of Part IIIA
S. 44O ...................................... ad. No. 88, 1995 am. No. 92, 2006
Note to s. 44O(3) ...................... ad. No. 92, 2006
Heading to Subdiv. F of ............ ad. No. 92, 2006 Div. 2A of Part IIIA
S. 44P ....................................... ad. No. 88, 1995 am. No. 101, 1998
Div. 2B of Part IIIA .................... ad. No. 92, 2006 Ss. 44PA–44PH ....................... ad. No. 92, 2006
Heading to Div. 2C of ............... ad. No. 92, 2006 Part IIIA
S. 44Q ...................................... ad. No. 88, 1995 am. No. 101, 1998; No. 92, 2006
Division 3 Subdivision A
S. 44R ...................................... ad. No. 88, 1995
Ss. 44S, 44T ............................. ad. No. 88, 1995 am. No. 92, 2006
S. 44U ...................................... ad. No. 88, 1995
Ss. 44V, 44W ........................... ad. No. 88, 1995 am. No. 92, 2006
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Subhead. to s. 44X(1) .............. ad. No. 92, 2006
S. 44X ....................................... ad. No. 88, 1995 am. No. 92, 2006
S. 44XA .................................... ad. No. 92, 2006
S. 44Y ....................................... ad. No. 88, 1995 am. No. 92, 2006
S. 44Z ....................................... ad. No. 88, 1995 Ss. 44ZA–44ZN ........................ ad. No. 88, 1995
S. 44ZNA .................................. ad. No. 92, 2006
Subdiv. DA of Div. 3 of ............. ad. No. 92, 2006 Part IIIA
S. 44ZNB .................................. ad. No. 92, 2006
Heading to s. 44ZO .................. am. No 92, 2006
S. 44ZO .................................... ad. No. 88, 1995 am. No. 92, 2006
S. 44ZOA .................................. ad. No. 92, 2006
Heading to Subdiv. F of ............ rs. No. 92, 2006 Div. 3 of Part IIIA
S. 44ZP .................................... ad. No. 88, 1995 am. No. 92, 2006
Note to s. 44ZP(3) .................... ad. No. 92, 2006
S. 44ZQ .................................... ad. No. 88, 1995 am. No. 92, 2006
Ss. 44ZR–44ZT ........................ ad. No. 88, 1995
Heading to Subdiv. G of ........... rs. No. 92, 2006 Div. 3 of Part IIIA
Heading to s. 44ZU .................. am. No. 92, 2006
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 Note to s. 44ZX(3) .................... ad. No. 92, 2006
S. 44ZY .................................... ad. No. 88, 1995
S. 44ZZ ..................................... ad. No. 88, 1995
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Heading to Div. 6 of .................. rs. No. 92, 2006 Part IIIA
Heading to Subdiv. A of ............ ad. No. 92, 2006 Div. 6 of Part IIIA
S. 44ZZA .................................. ad. No. 88, 1995 am. No. 28, 1997; No. 69, 2000; No. 92, 2006 Note to s. 44ZZA(3) .................. ad. No. 92, 2006 Notes 1–3 to s. 44ZZA ............. ad. No. 92, 2006
S. 44ZZAA ................................ ad. No. 28, 1997 am. No. 108, 2004; No. 92, 2006 Note to s. 44ZZAA(4) ............... ad. No. 108, 2004 rep. No. 92, 2006 Note to s. 44ZZAA(6) ............... ad. No. 108, 2004 Notes 1–3 to s. 44ZZAA ........... ad. No. 92, 2006
S. 44ZZAB ................................ ad. No. 108, 2004
S. 44ZZB .................................. ad. No. 88, 1995 rep. No. 92, 2006
Subdiv. B of Div. 6 of ................ ad. No. 92, 2006 Part IIIA
S. 44ZZBA ................................ ad. No. 92, 2006
Subdiv. C of Div. 6 of ................ ad. No. 92, 2006 Part IIIA
S. 44ZZBB ................................ ad. No. 92, 2006
Subdiv. D of Div. 6 of ................ ad. No. 92, 2006 Part IIIA
Ss. 44ZZBC–44ZZBE ............... ad. No. 92, 2006
Subdiv. E of Div. 6 of ................ ad. No. 92, 2006 Part IIIA
S. 44ZZBF ................................ ad. No. 92, 2006
Heading to Subdiv. F of............. ad. No. 92, 2006 Div. 6 of Part IIIA
S. 44ZZC .................................. ad. No. 88, 1995 rs. No. 28, 1997 am. No. 92, 2006
Div. 6A of Part IIIA .................... ad. No. 92, 2006
S. 44ZZCA ................................ ad. No. 92, 2006
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Div. 6B of Part IIIA .................... ad. No. 92, 2006 Ss. 44ZZCB–44ZZCD .............. ad. No. 92, 2006
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
S. 44ZZL ................................... ad. No. 88, 1995
S. 44ZZM .................................. ad. No. 88, 1995 rs. No. 101, 1998; No. 134, 2003
Ss. 44ZZMA, 44ZZMB .............. ad. No. 134, 2003
S. 44ZZN .................................. ad. No. 88, 1995
S. 44ZZNA ................................ ad. No. 28, 1997
S. 44ZZO .................................. ad. No. 88, 1995
S. 44ZZOA ............................... ad. No. 101, 1998 rep. No. 134, 2003 ad. No. 92, 2006
S. 44ZZP .................................. ad. No. 88, 1995 am. No. 45, 2007
S. 44ZZQ .................................. ad. No. 88, 1995
S. 44ZZR .................................. ad. No. 45, 2007
Part IV Division 1
Div. 1 of Part IV ........................ ad. No. 59, 2009
Ss. 44ZZRA–44ZZRE .............. ad. No. 59, 2009
Ss. 44ZZRF–44ZZRI ................ ad. No. 59, 2009
Ss. 44ZZRJ, 44ZZRK ............... ad. No. 59, 2009
Ss. 44ZZRL–44ZZRV ............... ad. No. 59, 2009
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
S. 45B ....................................... ad. No. 81, 1977 am. No. 88, 1995
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
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
Note to s. 45DD(8) ................... am. 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
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
Notes to s. 50(1), 50(2) ............ ad. No. 131, 2006
S. 50A ....................................... ad. No. 17, 1986 am. Nos. 22 and 222, 1992
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
S. 51AAA .................................. ad. No. 88, 1995
Part IVA .................................... ad. No. 222, 1992
S. 51AAB .................................. ad. No. 48, 1998
S. 51AA .................................... ad. No. 222, 1992 am. No. 36, 1998
S. 51AB (formerly s. 52A) ......... No. 222, 1992 am. No. 116, 2008
S. 51AC .................................... ad. No. 36, 1998 am. No. 63, 2001; No. 159, 2007; No. 116, 2008
S. 51ACAA ............................... ad. No. 63, 2001
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Part IVB .................................... ad. No. 36, 1998
S. 51ACA .................................. ad. No. 36, 1998 Ss. 51AD, 51AE ....................... ad. No. 36, 1998
S. 51AEA .................................. ad. No. 63, 2001
Part V Division 1
S. 51AF .................................... ad. No. 48, 1998 am. Nos. 55 and 123, 2001
S. 51A ....................................... ad. No. 17, 1986
S. 52 ......................................... am. No. 81, 1977 Note to s. 52 ............................. ad. No. 106, 1998
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 Note to s. 53 ............................. ad. No. 106, 1998
S. 53A ....................................... ad. No. 81, 1977 am. No. 206, 1978; No. 17, 1986
S. 53B ....................................... ad. No. 206, 1978 rs. No. 17, 1986
S. 53C ...................................... ad. No. 17, 1986 rs. No. 126, 2008
S. 54 ......................................... am. No. 81, 1977
S. 55A ....................................... ad. No. 81, 1977
S. 56 ......................................... am. No. 81, 1977; No. 17, 1986; No. 31, 2001
S. 58 ......................................... rs. No. 17, 1986
S. 59 ......................................... am. No. 81, 1977; No. 17, 1986
S. 60 ......................................... rs. No. 17, 1986
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 am. No. 81, 1977; Nos. 17 and 168, 1986; No. 123, 2001
S. 64 ......................................... am. No. 56, 1975; No. 81, 1977; No. 17, 1986; No. 88, 1995
S. 65 ......................................... am. No. 17, 1986; No. 88, 1995
S. 65A ....................................... ad. No. 165, 1984 am. No. 180, 1991; No. 105, 1992
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Div. 1AAA of Part V .................. ad. No. 128, 2002 Ss. 65AAA–65AAE ................... ad. No. 128, 2002
Div. 1AA of Part V .................... ad. No. 106, 1998
Ss. 65AA–65AD ....................... ad. No. 106, 1998 am. No. 31, 2001; No. 21, 2003
Ss. 65AE, 65AF ........................ ad. No. 106, 1998
Ss. 65AG, 65AH ....................... ad. No. 106, 1998 Ss. 65AJ–65AM ........................ ad. No. 106, 1998
Heading to s. 65AN .................. am. No. 31, 2001 rs. No. 21, 2003
S. 65AN .................................... ad. No. 106, 1998 am. No. 31, 2001; No. 21, 2003
Div. 1A of Part V ....................... ad. No. 17, 1986 Ss. 65B–65D ............................ ad. No. 17, 1986
S. 65E ....................................... ad. No. 17, 1986 am. No. 63, 2002; No. 126, 2008
S. 65F ....................................... ad. No. 17, 1986 am. No. 141, 1994; Nos. 31 and 63, 2001; No. 63, 2002
Ss. 65G, 65H ............................ ad. No. 17, 1986
S. 65J ....................................... ad. No. 17, 1986 am. No. 88, 1995
Ss. 65K–65N ............................ ad. No. 17, 1986
S. 65P ....................................... ad. No. 17, 1986
S. 65Q ...................................... ad. No. 17, 1986 am. No. 168, 1986; No. 141, 1994; No. 31, 2001
S. 65R ...................................... ad. No. 17, 1986 am. No. 141, 1994; Nos. 31 and 63, 2001; No. 63, 2002
S. 65S ....................................... ad. No. 17, 1986
S. 65T ....................................... ad. No. 17, 1986 am. No. 146, 1999
S. 65U ...................................... ad. No. 17, 1986 rep. No. 20, 1988
S. 66A ....................................... ad. No. 141, 1987
S. 68 ......................................... am. No. 206, 1978; No. 17, 1986
S. 68A ....................................... ad. No. 151, 1977
S. 68B ....................................... ad. No. 146, 2002
S. 69 ......................................... am. No. 88, 1995
S. 70 ......................................... am. No. 81, 1977
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 71 ......................................... am. No. 81, 1977; No. 88, 1995
S. 72 ......................................... am. No. 81, 1977
S. 73 ......................................... rs. No. 17, 1986 am. No. 48, 1998; No. 55, 2001
Ss. 73A, 73B ............................ ad. No. 17, 1986
S. 74 ......................................... am. No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 118, 2004
Div. 2A of Part V ....................... ad. No. 206, 1978
Ss. 74A–74C ............................ ad. No. 206, 1978 am. No. 17, 1986
S. 74D ...................................... ad. No. 206, 1978 am. Nos. 17 and 168, 1986
S. 74E ....................................... ad. No. 206, 1978 am. No. 17, 1986
S. 74F ....................................... ad. No. 206, 1978 am. No. 17, 1986; No. 88, 1995
S. 74G ...................................... ad. No. 206, 1978 am. No. 17, 1986
S. 74H ...................................... ad. No. 206, 1978
S. 74J ....................................... ad. No. 206, 1978 am. No. 17, 1986; No. 11, 1990
Note to s. 74J(3) ....................... ad. No. 113, 2004 Ss. 74K, 74L ............................. ad. No. 206, 1978
S. 74M ...................................... ad. No. 113, 2004
S. 75 ......................................... am. No. 88, 1995
S. 75A ....................................... ad. No. 81, 1977 am. No. 88, 1995
Part VA ..................................... ad. No. 106, 1992 Ss. 75AA–75AN ....................... ad. No. 106, 1992
S. 75AO .................................... ad. No. 106, 1992 Note to s. 75AO(2) ................... ad. No. 113, 2004
S. 75AP .................................... ad. No. 106, 1992 Heading to s. 75AQ .................. am. No. 88, 1995 Ss. 75AQ, 75AR ....................... ad. No. 106, 1992
S. 75AS .................................... ad. No. 106, 1992 am. No. 106, 1998; No. 194, 1999
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
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
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
Notes 1, 2 to s. 75AY ............... ad. 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
S. 75AZA .................................. ad. No. 31, 2001 am. Nos. 55 and 123, 2001
S. 75AZAA ................................ ad. No. 126, 2008
S. 75AZB .................................. ad. No. 31, 2001
Ss. 75AZC, 75AZD ................... ad. No. 31, 2001 am. No. 117, 2001
Notes 1, 2 to s. 75AZD(2), ........ ad. No. 117, 2001 75AZD(3)
S. 75AZE .................................. ad. No. 31, 2001 am. No. 117, 2001
Heading to s. 75AZF ................ am. No. 126, 2008
S. 75AZF .................................. ad. No. 31, 2001 am. No. 117, 2001; No. 126, 2008
S. 75AZG .................................. ad. No. 31, 2001 am. No. 117, 2001 Notes 1, 2 to s. 75AZG(1) ........ ad. No. 117, 2001 Ss. 75AZH–75AZL .................... ad. No. 31, 2001 am. No. 117, 2001 Notes 1, 2 to s. 75AZL(1) ......... ad. No. 117, 2001 Notes 1, 2 to s. 75AZL(3) ......... ad. No. 117, 2001 Ss. 75AZM, 75AZN ................... ad. No. 31, 2001 am. No. 117, 2001 Notes 1, 2 to s. 75AZN ............. ad. No. 117, 2001
S. 75AZO .................................. ad. No. 31, 2001
am. No. 117, 2001
rs. No. 128, 2002
Notes 1, 2 to s. 75AZO(1), ....... ad. No. 117, 2001 75AZO(2) rep. No. 128, 2002
Notes 1, 2 to s. 75AZO(3) ........ ad. No. 117, 2001 rs. No. 128, 2002
Ss. 75AZP, 75AZQ ................... ad. No. 31, 2001 am. No. 117, 2001
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 75AZR .................................. ad. No. 31, 2001
S. 75AZS .................................. ad. No. 31, 2001 am. No. 117, 2001 Notes 1, 2 to s. 75AZS(1) ......... ad. No. 117, 2001 Note 3 to s. 75AZS(1) ............... ad. No. 126, 2008
S. 75AZT .................................. ad. No. 31, 2001 am. No. 117, 2001 Notes 1, 2 to s. 75AZT(1) ......... ad. No. 117, 2001 Note 3 to s. 75AZT(1) ............... ad. No. 126, 2008
S. 75AZU .................................. ad. No. 31, 2001 am. No. 117, 2001
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
Heading to s. 76 ........................ am. No. 44, 2010
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; Nos. 59 and 111, 2009
Heading to s. 76A ..................... am. No. 131, 2006; No. 111, 2009
S. 76A ....................................... ad. No. 69, 2000 am. No. 131, 2006; No. 111, 2009
Heading to s. 76B ..................... am. No. 131, 2006; Nos. 59 and 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
S. 77 ......................................... am. No. 88, 1976; No. 88, 1995; No. 44, 2010
S. 77A........................................ ad. No. 131, 2006 am. No. 44, 2010 Ss. 77B, 77C ............................. ad. No. 131, 2006 Heading to s. 78 ....................... am. No. 61, 1999; No. 69, 2000; No. 31, 2001; No. 111, 2009
S. 78 ......................................... am. No. 61, 1999; No. 69, 2000; No. 31, 2001; Nos. 59 and 111, 2009
Heading to s. 79 ....................... am. No. 31, 2001; No. 59, 2009
S. 79 ......................................... am. No. 81, 1977; No. 17, 1986; No. 222, 1992; Nos. 31 and 63, 2001; No. 59, 2009; No. 4, 2010
Notes 1, 2 to s. 79(1) ................ ad. No. 63, 2001
S. 79A ....................................... ad. No. 17, 1986 am. No. 31, 2001; No. 131, 2006; No. 59, 2009
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 79B ....................................... ad. No. 63, 2001
am. No. 63, 2001 (as am. by No. 63, 2002); No. 59, 2009; No. 44, 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
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. 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
S. 80B ....................................... ad. No. 61, 1999 rep. No. 111, 2009
Heading to s. 81 ....................... am. No. 131, 2006
S. 81 ......................................... am. No. 88, 1976 rs. No. 81, 1977 am. No. 17, 1986; No. 222, 1992; No. 88, 1995
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; Nos. 103 and 118, 2004; No. 11, 2006
Note to s. 82(2) ......................... ad. No. 113, 2004
S. 83 ......................................... rs. No. 81, 1977
am. No. 222, 1992; No. 36, 1998; Nos. 31 and 63, 2001; No. 59, 2009; No. 44, 2010
Heading to s. 84 ....................... am. No. 59, 2009
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
S. 85 ......................................... am. No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 31, 2001; No. 128, 2002; No. 44, 2010
Note to s. 85(1) ......................... ad. No. 31, 2001
Notes to s. 85(3), 85(4) ............ ad. No. 31, 2001
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
Heading to s. 86AA .................. am. No. 23, 2006
S. 86AA .................................... ad. No. 194, 1999 am. No. 161, 2000; No. 23, 2006
Note to s. 86AA ........................ am. No. 161, 2000
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 86A ....................................... ad. No. 23, 1987 am. No. 222, 1992; Nos. 36 and 106, 1998
S. 86B ....................................... ad. No. 8, 1988 am. No. 222, 1992; No. 106, 1998
S. 86C ...................................... ad. No. 63, 2001 am. No. 63, 2001; No. 131, 2006; Nos. 59 and 111, 2009
S. 86D ...................................... ad. No. 63, 2001 am. No. 63, 2001; No. 59, 2009; No. 44, 2010
S. 86DA ..................................... ad. No. 44, 2010
S. 86E ....................................... ad. No. 131, 2006 am. No. 59, 2009; No. 44, 2010
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. 118, 2004; No. 11, 2006;
No. 59, 2009; No. 44, 2010
Note to s. 87(6) ......................... ad. No. 113, 2004
Ss. 87AAA, 87AAB.................... ad. No. 44, 2010
S. 87A ....................................... ad. No. 17, 1986 am. No. 222, 1992; Nos. 31 and 146, 2001; No. 44, 2010
S. 87AA .................................... ad. No. 60, 1996 am. SLI 2006 No. 50; No. 54, 2009
S. 87AB .................................... ad. No. 118, 2004
S. 87B ....................................... ad. No. 222, 1992 am. No. 131, 2006
S. 87C ...................................... ad. No. 141, 1994
S. 87CA .................................... ad. No. 63, 2001
S. 87CAA .................................. ad. No. 113, 2004
Part VIA .................................... ad. No. 103, 2004 Ss. 87CB–87CI ......................... ad. No. 103, 2004
Part VIB .................................... ad. No. 113, 2004
S. 87D ...................................... ad. No. 113, 2004 am. No. 59, 2009
S. 87E ....................................... ad. No. 113, 2004
Ss. 87F–87H ............................ ad. No. 113, 2004 Ss. 87J, 87K ............................. ad. No. 113, 2004
Ss. 87L–87N ............................. ad. No. 113, 2004 Ss. 87P–87T ............................. ad. No. 113, 2004
Ss. 87U, 87V ............................ ad. No. 113, 2004
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Ss. 87W, 87X ........................... ad. No. 113, 2004
Ss. 87Y, 87Z ............................. ad. No. 113, 2004 Ss. 87ZA, 87ZB ........................ ad. No. 113, 2004
S. 87ZC .................................... ad. No. 113, 2004
Part VIC..................................... ad. No. 44, 2010 Ss. 87ZD–87ZK......................... ad. No. 44, 2010
Part VID..................................... ad. No. 44, 2010 Ss. 87ZL–87ZO ......................... ad. No. 44, 2010
Heading to Part VII ................... am. No. 81, 1977; No. 206, 1978 rs. No. 131, 2006
Heading to Div. 1 of Part VII ..... rs. No. 131, 2006
S. 87D ...................................... ad. No. 101, 1998 Renumbered s. 87ZD ........... No. 113, 2004
S. 87ZD ..................................... am. No. 131, 2006 Renumbered s. 87ZP ............ 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
Heading to s. 89 ....................... am. No. 101, 1998
S. 89 ......................................... am. No. 88, 1976; No. 81, 1977; No. 17, 1986; No. 222, 1992; No. 88, 1995; No. 101, 1998; No. 131, 2006
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. 131, 2006; No. 59,
2009
Note to s. 90(2) ......................... ad. No. 108, 2004
Note to s. 90(5) ......................... ad. No. 108, 2004
S. 90A ....................................... ad. No. 81, 1977 am. No. 17, 1986; No. 88, 1995
S. 90B ....................................... ad. No. 108, 2004 am. No. 60, 2006
Heading to s. 91 ....................... am. No. 101, 1998
S. 91 ......................................... am. No. 81, 1977; No. 17, 1986; No. 101, 1998
S. 91A ....................................... ad. No. 101, 1998 am. No. 131, 2006; No. 59, 2009
Note to s. 91A(2) ...................... ad. No. 108, 2004
S. 91B ....................................... ad. No. 101, 1998 am. No. 131, 2006; No. 59, 2009
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Note to s. 91B(2) ...................... ad. No. 108, 2004
S. 91C ...................................... ad. No. 101, 1998 am. No. 131, 2006; No. 59, 2009
Note to s. 91C(2) ...................... ad. No. 108, 2004 Note to s. 91C(5) ...................... ad. No. 108, 2004
Heading to Div. 2 of .................. rs. No. 81, 1977 Part VII am. No. 206, 1978
S. 92 ......................................... rep. No. 81, 1977
Heading to Subdiv. A of ............ ad. No. 131, 2006 Div. 2 of Part VII
S. 93 ......................................... rs. No. 81, 1977
am. No. 206, 1978; No. 17, 1986; No. 88, 1995; No. 131, 2006
Subdiv. B of Div. 2 of ................ ad. No. 131, 2006 Part VII
S. 93AA .................................... ad. No. 131, 2006 am. No. 59, 2009
Subhead. to s. 93AB(1) ............ am. No. 59, 2009
S. 93AB .................................... ad. No. 131, 2006 am. Nos. 54 and 59, 2009
Subhead. to s. 93AC(1) ............ am. No. 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 Heading to s. 93AF ................... am. No. 59, 2009
S. 93AF .................................... ad. No. 131, 2006 am. No. 59, 2009
Heading to Subdiv. C of ........... ad. No. 131, 2006 Div. 2 of Part VII
Heading to s. 93A ..................... am. No. 131, 2006
S. 93A ....................................... ad. No. 81, 1977 am. No. 88, 1995; No. 131, 2006; No. 59, 2009
S. 94 ......................................... rep. No. 81, 1977
Heading to Subdiv. D of ........... ad. No. 131, 2006 Div. 2 of Part VII
S. 95 ......................................... rs. No. 81, 1977
am. No. 17, 1986; No. 222, 1992; No. 88, 1995; No. 36, 1998; No. 131, 2006
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Div. 3 of Part VII ....................... ad. No. 131, 2006
Ss. 95AA, 95AB ........................ ad. No. 131, 2006
Ss. 95AC–95AF ........................ ad. No. 131, 2006 Heading to s. 95AG ................... am. No. 8, 2010 Ss. 95AG–95AQ........................ ad. No. 131, 2006 Subhead. to s. 95AR(4)............. am. No. 8, 2010
S. 95AR ..................................... ad. No. 131, 2006 Subhead. to s. 95AS(4)............. am. No. 8, 2010
S. 95AS ..................................... ad. No. 131, 2006
Ss. 95AT–95AX......................... ad. No. 131, 2006 Heading to s. 95AY ................... am. No. 8, 2010 Ss. 95AY, 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 Subhead. to s. 95AZL(5) ........... am. No. 8, 2010
S. 95AZL ................................... ad. No. 131, 2006 Subhead. to s. 95AZM(5) .......... am. No. 8, 2010
S. 95AZM .................................. ad. No. 131, 2006
S. 95AZN .................................. ad. No. 131, 2006
Part VIIA ................................... ad. No. 134, 2003
Ss. 95A–95F ............................. ad. No. 134, 2003
S. 95G ...................................... ad. No. 134, 2003
Division 3 Subdivision A
S. 95H ...................................... ad. No. 134, 2003 Ss. 95J–95N ............................. ad. No. 134, 2003
Ss. 95P, 95Q ............................ ad. No. 134, 2003
Ss. 95R–95W ........................... ad. No. 134, 2003
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Ss. 95X–95Z ............................. ad. No. 134, 2003 Ss. 95ZA–95ZD ........................ ad. No. 134, 2003
Ss. 95ZE–95ZG ........................ ad. No. 134, 2003
Ss. 95ZH–95ZQ ....................... ad. No. 134, 2003
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
Part IX Division 1
Heading to Div. 1 of .................. rs. No. 131, 2006 Part IX
S. 101 ....................................... am. No. 88, 1976; No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 101, 1998; No. 131, 2006; No. 59, 2009
Heading to s. 101A ................... am. No. 131, 2006
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
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
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 ....................................... rs. No. 34, 1989
S. 10.01 .................................... ad. No. 34, 1989 am. No. 123, 2000
S. 10.01A .................................. ad. No. 123, 2000 am. No. 59, 2009
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 10.02 ....................................
S. 10.02A ..................................
S. 10.03 ....................................
S. 10.04 ....................................
S. 10.05 ....................................
Heading to s. 10.06 .................. Ss. 10.06, 10.07 .......................
S. 10.08 ....................................
S. 10.09 ....................................
S. 10.10 ....................................
S. 10.11 ....................................
S. 10.12 ....................................
S. 10.13 ....................................
Division 5 Subdivision A
S. 10.14 ....................................
S. 10.15 ....................................
S. 10.15A ..................................
S. 10.16 .................................... Heading to s. 10.17 ..................
S. 10.17 .................................... Heading to s. 10.17A ................
S. 10.17A ..................................
S. 10.18 ....................................
S. 10.18A ..................................
ad. No. 34, 1989 am. No. 173, 1991; No. 123, 2000
ad. No. 123, 2000 am. No. 109, 2006
ad. No. 34, 1989 am. No. 123, 2000; No. 109, 2006
ad. No. 34, 1989
ad. No. 34, 1989 rep. No. 123, 2000
am. No. 123, 2000 ad. No. 34, 1989 am. No. 123, 2000 ad. No. 34, 1989 am. No. 123, 2000; No. 59, 2009 ad. No. 34, 1989
ad. No. 34, 1989 ad. No. 34, 1989 am. No. 123, 2000 ad. No. 34, 1989 ad. No. 34, 1989 am. No. 123, 2000
ad. No. 34, 1989 rs. No. 123, 2000 ad. No. 34, 1989 am. No. 123, 2000 ad. No. 123, 2000 rep. No. 123, 2000 ad. No. 34, 1989 am. No. 123, 2000 am. No. 59, 2009 ad. No. 34, 1989 am. No. 123, 2000; No. 59, 2009 am. No. 59, 2009 ad. No. 173, 1991 rs. No. 123, 2000 am. No. 59, 2009 ad. No. 34, 1989 am. No. 123, 2000 ad. No. 173, 1991 rs. No. 123, 2000
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Heading to s. 10.19 .................. am. No. 59, 2009
S. 10.19 .................................... ad. No. 34, 1989 am. No. 123, 2000; No. 59, 2009
Heading to s. 10.20 .................. am. No. 123, 2000
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 ................ rep. No. 123, 2000 Part X
Ss. 10.22, 10.23 ....................... ad. No. 34, 1989 rep. No. 123, 2000
Heading to s. 10.24 .................. am. No. 59, 2009
S. 10.24 .................................... ad. No. 34, 1989 am. No. 123, 2000; No. 59, 2009
Heading to s. 10.24A ................ am. 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 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
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
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
S. 10.39 .................................... ad. No. 34, 1989 am. No. 173, 1991
S. 10.40 .................................... ad. No. 34, 1989 am. No. 123, 2000
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
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
S. 10.44 .................................... ad. No. 34, 1989 am. No. 123, 2000
S. 10.45 .................................... ad. No. 34, 1989 am. No. 123, 2000; No. 59, 2009
Ss. 10.46, 10.47 ....................... ad. No. 34, 1989 am. No. 123, 2000
Heading to s. 10.48 .................. 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
Heading to s. 10.50 .................. am. No. 123, 2000
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
Heading to s. 10.63 .................. rs. 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
Ss. 10.68–10.72 ....................... ad. No. 34, 1989
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Div. 12A of Part X ..................... ad. No. 123, 2000
S. 10.72A .................................. ad. No. 123, 2000 am. No. 123, 2000; No. 109, 2006 Note to s. 10.72A(1) ................. am. No. 109, 2006 Ss. 10.72B–10.72D .................. ad. No. 123, 2000
Ss. 10.73–10.76 ....................... ad. No. 34, 1989
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
Div. 14A of Part X ..................... ad. No. 123, 2000 Ss. 10.82A–10.82C .................. ad. No. 123, 2000
Div. 14B of Part X ..................... ad. No. 123, 2000 Ss. 10.82D–10.82G .................. ad. No. 123, 2000
Division 15
Ss. 10.83–10.86 ....................... ad. No. 34, 1989
Ss. 10.87, 10.88 ....................... ad. No. 34, 1989 am. No. 123, 2000
S. 10.89 .................................... ad. No. 34, 1989
S. 10.90 .................................... ad. No. 34, 1989 am. No. 173, 1991; No. 123, 2000
Heading to s. 10.91 .................. am. No. 131, 2006
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. 120–136 ............................. rep. No. 34, 1989
S. 137 ....................................... am. No. 88, 1976 rep. No. 34, 1989 Ss. 138, 139 ............................. rep. No. 34, 1989
S. 140 ....................................... am. No. 88, 1976 rep. No. 34, 1989 Ss. 141–146 ............................. rep. No. 34, 1989 Part XI ..................................... rep. No. 88, 1995 Ss. 147, 148 ............................. rep. No. 88, 1995
S. 149 ....................................... am. No. 88, 1976; No. 81, 1977 rep. No. 88, 1995
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 150 .......................................
Part XIA ....................................
S. 150A .....................................
Ss. 150B, 150C ........................ Heading to s. 150D ...................
S. 150D ....................................
S. 150E .....................................
S. 150F .....................................
Ss. 150FA, 150FB .................... Ss. 150G–150I .........................
S. 150J .....................................
S. 150K ..................................... Part XIAA ..................................
Ss. 150L–150N .........................
Heading to s. 150O ..................
S. 150O ....................................
Ss. 150P–150T .........................
S. 151 .......................................
Part XIB ....................................
S. 151AA ..................................
S. 151AB ..................................
Ss. 151AC–151AG ...................
S. 151AH ..................................
S. 151AI ....................................
S. 151AJ ...................................
S. 151AK ..................................
rep. No. 173, 1991
ad. No. 88, 1995
ad. No. 88, 1995 am. No. 61, 1999; No. 131, 2006 ad. No. 88, 1995 am. No. 57, 2000 ad. No. 88, 1995
am. No. 57, 2000 ad. No. 88, 1995 ad. No. 88, 1995
rs. No. 131, 2006 ad. No. 131, 2006 ad. No. 88, 1995 ad. No. 88, 1995
am. No. 131, 2006 ad. No. 88, 1995 ad. No. 61, 1999
rep. No. 111, 2009
ad. No. 61, 1999 rep. No. 111, 2009 am. No. 57, 2000
rep. No. 111, 2009 ad. No. 61, 1999
am. No. 57, 2000 rep. No. 111, 2009 ad. No. 61, 1999
rep. No. 111, 2009 rep. No. 173, 1991
ad. No. 58, 1997
ad. No. 58, 1997
am. No. 52, 1999; No. 140, 2002 ad. No. 58, 1997 am. No. 52, 1999; No. 140, 2002; No. 45, 2005
ad. No. 58, 1997
ad. No. 58, 1997 am. No. 159, 2007 ad. No. 58, 1997
ad. No. 58, 1997 am. No. 200, 1997; No. 52, 1999; No. 131, 2006; No. 159, 2007; No. 59, 2009
ad. No. 58, 1997 ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Division 3 Subdivision A
S. 151AKA ................................ ad. No. 52, 1999 am. No. 140, 2002
Heading to s. 151AL ................. am. No. 52, 1999
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
Heading to s. 151AO ................ am. 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 Subhead. to s. 151AQB(3) ....... ad. No. 140, 2002 Subhead. to s. 151AQB(5) ....... ad. No. 140, 2002
S. 151AQB ............................... ad. No. 52, 1999 am. No. 46, 2001; No. 140, 2002
S. 151AR .................................. ad. No. 58, 1997
Ss. 151AS, 151AT .................... ad. No. 58, 1997
S. 151AU .................................. am. No. 140, 2002 Ss. 151AV–151AX .................... ad. No. 58, 1997 Heading to s. 151AY ................ am. No. 131, 2006
S. 151AY .................................. ad. No. 58, 1997 am. No. 131, 2006; No. 59, 2009
S. 151AZ .................................. ad. No. 58, 1997 Ss. 151BA–151BH ................... ad. No. 58, 1997
S. 151BI .................................... ad. No. 58, 1997 rep. No. 146, 2001
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
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 151BTA ................................ ad. No. 58, 1997 am. No. 146, 2001
Heading to Div. 6 of ..................rs. No. 52, 1999 Part XIB
S. 151BU .................................. ad. No. 58, 1997 am. No. 52, 1999
Note to s. 151BU(4) .................. rep. No. 52, 1999
S. 151BUAA ............................. ad. No. 140, 2002
S. 151BUAAA ........................... ad. No. 140, 2002
S. 151BUAB ............................. ad. No. 140, 2002
Ss. 151BUA–151BUC .............. ad. No. 52, 1999 am. No. 52, 1999; No. 146, 2001
S. 151BUD ............................... ad. No. 52, 1999 Ss. 151BUDA–151BUDC ......... ad. No. 140, 2002 Heading to s. 151BUE............... am. No. 8, 2010
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
Heading to Div. 7 of .................. rs. No. 52, 1999 Part XIB
Heading to s. 151BW ............... am. No. 52, 1999
S. 151BW ................................. ad. No. 58, 1997 am. No. 52, 1999
Heading to s. 151BX ................ 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
Heading to s. 151BZ ................. am. No. 52, 1999
S. 151BZ .................................. ad. No. 58, 1997 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
S. 151CG .................................. ad. No. 58, 1997
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Division 9
S. 151CH .................................. ad. No. 58, 1997
Division 10
S. 151CI ................................... ad. No. 58, 1997 am. No. 52, 1999
Subhead. to s. 151CJ(3) .......... ad. No. 140, 2002
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
Div. 12A of Part XIB ................. ad. No. 52, 1999 Ss. 151CMA–151CMC ............. ad. No. 52, 1999
S. 151CN .................................. ad. No. 58, 1997
Div. 14 of Part XIB .................... ad. No. 119, 2005
S. 151CP .................................. ad. No. 119, 2005
S. 152 ....................................... rep. No. 173, 1991
Part XIC .................................... ad. No. 58, 1997
S. 152AA .................................. ad. No. 58, 1997 am. No. 140, 2002
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
Ss. 152AD–152AH ................... ad. No. 58, 1997
S. 152AI .................................... ad. No. 58, 1997 rep. No. 140, 2002
Ss. 152AJ, 152AK .................... ad. No. 58, 1997
S. 152AL ................................... ad. No. 58, 1997 am. No. 140, 2002; No. 7, 2008
S. 152ALA ................................ ad. No. 140, 2002 am. No. 7, 2008
S. 152AM .................................. ad. No. 58, 1997 am. No. 140, 2002; No. 45, 2005
S. 152AN .................................. ad. No. 58, 1997 am. No. 52, 1999; No. 140, 2002
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 152AO ..................................
S. 152AP ..................................
S. 152AQ ..................................
S. 152AQA ...............................
Subhead. to s. 152AQB(6) .......
S. 152AQB ...............................
S. 152AQC ...............................
S. 152AR ..................................
Heading to s. 152AS ................
S. 152AS .................................. Note to s. 152AS(2) .................. Note to s. 152AS ......................
S. 152ASA ................................ Note to s. 152ASA(2) ............... Note to s. 152ASA .................... Heading to s. 152AT ................. Subhead. to s. 152AT(1) .......... Subheads. to
s. 152AT(3)–152AT(5) ..........
Subheads. to s. 152AT(8), ....... 152AT(9)
S. 152AT ...................................
Note to s. 152AT(5) ..................
S. 152ATA ................................
Note to s. 152ATA(4) ................
S. 152AU ..................................
S. 152AV ..................................
S. 152AW .................................
S. 152AX ..................................
S. 152AXA ................................
S. 152AY ..................................
S. 152AYA ................................
ad. No. 58, 1997
am. No. 140, 2002; No.119, 2005 ad. No. 58, 1997 rep. No. 140, 2002
ad. No. 58, 1997
am. No. 140, 2002 ad. No. 124, 2001 am. No. 140, 2002
am. No. 45, 2005
ad. No. 140, 2002 am. No. 45, 2005 ad. No. 7, 2008
ad. No. 58, 1997 am. No. 140, 2002 am. No. 140, 2002 ad. No. 58, 1997 ad. No. 119, 2005 ad. No. 119, 2005 ad. No. 140, 2002 ad. No. 119, 2005 ad. No. 119, 2005 am. No. 140, 2002 ad. No. 140, 2002
ad. No. 140, 2002 ad. No. 140, 2002
ad. No. 58, 1997 am. No. 140, 2002; No. 119, 2005; No. 8, 2010
ad. No. 119, 2005 ad. No. 140, 2002 am. No. 119, 2005; No. 8, 2010
ad. No. 119, 2005
ad. No. 58, 1997 am. No. 140, 2002; No. 119, 2005 ad. No. 58, 1997
am. No. 140, 2002 ad. No. 58, 1997
rs. No. 140, 2002 am. No. 8, 2010 ad. No. 58, 1997
am. No. 140, 2002 ad. No. 140, 2002 ad. No. 58, 1997 ad. No. 52, 1999
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 152AZ .................................. ad. No. 58, 1997 am. No. 52, 1999
S. 152BA .................................. ad. No. 58, 1997 am. No. 52, 1999
S. 152BB .................................. ad. No. 58, 1997 am. No. 52, 1999; No. 119, 2005
S. 152BBAA ............................. ad. No. 119, 2005 Ss. 152BBA–152BBC ............... ad. No. 52, 1999
S. 152BBD ................................ ad. No. 124, 2001
Subdiv. A of Div. 4 of ................ rep. No. 140, 2002 Part XIC
Ss. 152BC–152BI ..................... ad. No. 58, 1997 rep. No. 140, 2002
Heading to Subdiv. B of ............ rep. No. 140, 2002 Div. 4 of Part XIC
S. 152BJ ................................... ad. No. 58, 1997 rs. No. 140, 2002
Heading to s. 152BK ................ am. No. 140, 2002
S. 152BK .................................. ad. No. 58, 1997 am. No. 140, 2002
Heading to s. 152BL ................. am. No. 140, 2002
S. 152BL ................................... ad. No. 58, 1997 am. No. 140, 2002
Heading to s. 152BM ................ am. No. 45, 2005
S. 152BM .................................. ad. No. 58, 1997 am. No. 140, 2002; No. 45, 2005
Heading to s. 152BN ................ am. No. 140, 2002; No. 45, 2005
S. 152BN .................................. ad. No. 58, 1997 am. No. 140, 2002; No. 45, 2005
S. 152BO .................................. ad. No. 58, 1997 rep. No. 140, 2002
Subdiv. C of Div. 4 of ................ rep. No. 140, 2002 Part XIC
Ss. 152BP, 152BQ ................... ad. No. 58, 1997 rep. No. 140, 2002
Heading to Subdiv. D of ........... rep. No. 140, 2002 Div. 4 of Part XIC
S. 152BR .................................. ad. No. 58, 1997 am. No. 140, 2002
Division 5 Subdivision A
Heading to Subdiv. A of ............ ad. No. 140, 2002 Div. 5 of Part XIC
Heading to s. 152BS ................ am. No. 140, 2002
S. 152BS .................................. ad. No. 58, 1997 am. No. 140, 2002
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Note to s. 152BS(1) ..................
S. 152BT ..................................
Subheads. to s. 152BU(2), ....... 152BU(3)
S. 152BU .................................. Ss. 152BV–152BX..................... Subhead. to s. 152BY(3) .......... Subhead. to s. 152BY(5) ..........
S. 152BY ...................................
S. 152BZ ................................... Ss. 152CA, 152CB ...................
Subdiv. B of Div. 5 of ................ Part XIC
S. 152CBA ................................
S. 152CBB.................................
S. 152CBC ................................ Ss. 152CBD–152CBF ..............
S. 152CBG ................................
S. 152CBH ................................ Ss. 152CBI, 152CBJ ................
Heading to Subdiv. C of ........... Div. 5 of Part XIC
S. 152CC ..................................
S. 152CD ..................................
S. 152CDA ...............................
S. 152CE ..................................
S. 152CF ..................................
S. 152CG .................................. Ss. 152CGA, 152CGB ..............
ad. No. 140, 2002 ad. No. 58, 1997 am. No. 140, 2002; No. 119, 2005 ad. No. 140, 2002
ad. No. 58, 1997 am. No. 140, 2002; No. 119, 2005; No. 8, 2010 ad. No. 58, 1997 am. No. 140, 2002 ad. No. 140, 2002 ad. No. 140, 2002 ad. No. 58, 1997 am. No. 140, 2002; No. 119, 2005; No. 8, 2010 ad. No. 58, 1997 am. No. 140, 2002; No. 119, 2005 ad. No. 58, 1997 am. No. 140, 2002
ad. No. 140, 2002
ad. No. 140, 2002 ad. No. 140, 2002 am. No. 119, 2005 ad. No. 140, 2002 am. No. 119, 2005; No. 8, 2010 ad. No. 140, 2002 ad. No. 140, 2002 am. No. 119, 2005; No. 8, 2010 ad. No. 140, 2002 am. No. 119, 2005 ad. No. 140, 2002
ad. No. 140, 2002
ad. No. 58, 1997 ad. No. 58, 1997 am. No. 140, 2002 ad. No. 119, 2005 ad. No. 58, 1997 am. No. 140, 2002 ad. No. 58, 1997 rs. No. 140, 2002 am. No. 8, 2010 ad. No. 58, 1997 am. No. 140, 2002 ad. No. 140, 2002
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 152CH .................................. ad. No. 58, 1997 Note 1 to s. 152CH(1) .............. rep. No. 140, 2002 Notes 1A, 1B to s. 152CH(1) .... ad. No. 140, 2002 Notes 2, 3 to s. 152CH(1) ......... am. No. 140, 2002 Note 3A to s. 152CH(1) ............ ad. No. 140, 2002 Note 5 to s. 152CH(1) .............. am. No. 140, 2002
S. 152CI ................................... ad. No. 58, 1997 am. No. 140, 2002
S. 152CJ ................................... ad. No. 58, 1997
S. 152CK .................................. ad. No. 58, 1997 am. No. 140, 2002
Division 8 Subdivision A
S. 152CL .................................. ad. No. 58, 1997 am. No. 52, 1999
S. 152CLA ................................ ad. No. 124, 2001 am. No. 140, 2002; No. 119, 2005; No. 8, 2010
Note to s. 152CLA .................... am. No. 140, 2002
S. 152CM ................................. ad. No. 58, 1997 Subhead. to s. 152CN(3) .......... ad. No. 124, 2001
S. 152CN .................................. ad. No. 58, 1997 am. No. 52, 1999; No. 124, 2001
Ss. 152CO, 152CP ................... ad. No. 58, 1997
S. 152CPA ................................ ad. No. 52, 1999 am. No. 124, 2001; No. 119, 2005
S. 152CQ .................................. ad. No. 58, 1997 am. No. 140, 2002
S. 152CR .................................. ad. No. 58, 1997 am. No. 52, 1999
S. 152CRA ............................... ad. No. 124, 2001
S. 152CS .................................. ad. No. 58, 1997 Heading to s. 152CT ................ am. No. 52, 1999
S. 152CT .................................. ad. No. 58, 1997 am. No. 200, 1997; No. 52, 1999
S. 152CU .................................. ad. No. 58, 1997
S. 152CV .................................. ad. No. 58, 1997 am. No. 52, 1999; No. 124, 2001
S. 152CW ................................. ad. No. 58, 1997 rs. No. 124, 2001
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 152CWA ............................... ad. No. 46, 2001 rs. No. 124, 2001
Subhead. to s. 152CX(3) .......... ad. No. 124, 2001
S. 152CX .................................. ad. No. 58, 1997 am. No. 124, 2001 Ss. 152CY, 152CZ ................... ad. No. 58, 1997 Notes 1, 2 to s. 152CZ(1) ......... ad. No. 124, 2001
S. 152DA .................................. ad. No. 58, 1997
S. 152DB .................................. ad. No. 58, 1997 am. No. 119, 2005
Note to s. 152DB(1) .................. ad. No. 124, 2001
S. 152DBA ................................ ad. No. 124, 2001 Ss. 152DC, 152DD ................... ad. No. 58, 1997 Ss. 152DE–152DG ................... ad. No. 58, 1997 am. No. 146, 2001 Ss. 152DH–152DJ .................... ad. No. 58, 1997
S. 152DK .................................. ad. No. 58, 1997 am. No. 119, 2005
Ss. 152DL, 152DM ................... ad. No. 58, 1997
S. 152DMA ............................... ad. No. 124, 2001 am. No. 119, 2005
S. 152DN .................................. ad. No. 58, 1997 rs. No. 52, 1999 am. No. 140, 2002
S. 152DNA ............................... ad. No. 52, 1999 am. No. 124, 2001; No. 140, 2002; No. 8, 2010
S. 152DNB ............................... ad. No. 52, 1999 am. No. 194, 1999
S. 152DNC ................................ ad. No. 140, 2002
Subdiv. F of Div. 8 of ................ rep. No. 140, 2002 Part XIC
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
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 152DS .................................. ad. No. 58, 1997 rep. No. 140, 2002
S. 152DT .................................. ad. No. 58, 1997 am. No. 52, 1999
S. 152DU .................................. ad. No. 58, 1997 am. No. 52, 1999
Ss. 152DV–152DZ ................... ad. No. 58, 1997
S. 152EA .................................. ad. No. 58, 1997
S. 152EAA ................................ ad. No. 124, 2001
S. 152EB .................................. ad. No. 58, 1997
Division 9
Ss. 152EC–152EE ................... ad. No. 58, 1997
Division 10
Heading to Div. 10 of ................ rs. No. 140, 2002 Part XIC
Heading to s. 152EF ................. am. No. 140, 2002
S. 152EF .................................. ad. No. 58, 1997 am. No. 140, 2002
Heading to s. 152EG ................ am. No. 140, 2002 Ss. 152EG–152EL .................... ad. No. 58, 1997
Div. 10A of Part XIC ................. ad. No. 119, 2005
S. 152ELA ................................. ad. No. 119, 2005
Ss. 152ELB, 152ELC ................ ad. No. 119, 2005 am. No. 8, 2010
Division 11
Ss. 152EM–152EP ................... ad. No. 58, 1997
S. 152EQ .................................. ad. No. 119, 2005
S. 153 ....................................... rep. No. 173, 1991
Part XID .................................... ad. No. 131, 2006
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
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
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 am. No. 59, 2009
S. 154GA .................................. ad. No. 59, 2009
S. 154H .................................... ad. No. 131, 2006 am. No. 59, 2009 Notes to s. 154H(3), ................. ad. No. 59, 2009 154H(4)
S. 154J ..................................... ad. No. 131, 2006
Subdivision B
Ss. 154K, 154L ......................... ad. No. 131, 2006 am. No. 59, 2009
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
S. 154S ..................................... ad. No. 131, 2006 Heading to s. 154T ................... am. No. 59, 2009
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 Note to s. 154X(2) .................... ad. 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
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
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
Note to s. 155(7A) .................... ad. No. 146, 2001
S. 155AAA ................................ ad. No. 85, 2007
am. No. 68, 2007; No. 139, 2008 Heading to s. 155AA ................ am. No. 61, 1999; No. 85, 2007
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 Subhead. to s. 157(2) ............... ad. No. 59, 2009
S. 157 ....................................... am. No. 81, 1977; No. 17, 1986; No. 101, 1998; No. 63, 2001; No. 131, 2006; No. 59, 2009; No. 44, 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 Ss. 160, 161 ............................. am. No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 146, 2001 Note to s. 161(2) ....................... ad. 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
S. 162A ..................................... ad. No. 17, 1986 am. No. 146, 2001; No. 108, 2004
Notes 1, 2 to s. 162A ................ ad. No. 146, 2001
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 Heading to s. 163A ................... rs. No. 57, 2000 Subhead. to s. 163A(1) ............ ad. No. 59, 2009 Subhead. to s. 163A(2) ............ ad. No. 59, 2009 Subhead. to s. 163A(3) ............ ad. No. 59, 2009
Subhead. to s. 163A(3A) .......... ad. No. 59, 2009 Subhead. to s. 163A(5) ............ ad. No. 59, 2009
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
S. 164 ....................................... rep. No. 81, 1977
S. 165 ....................................... am. No. 17, 1986; No. 59, 2009
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
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
S. 171 ....................................... am. No. 88, 1976; No. 88, 1995; No. 63, 2001; Nos. 92 and 131, 2006
S. 171A ..................................... ad. No. 136, 1991
S. 171B ..................................... ad. No. 58, 1997
S. 172 ....................................... am. No. 81, 1977; No. 136, 1991; No. 141, 1994; No. 88, 1995; No. 108, 2004; No. 131, 2006; No. 45, 2007
S. 173 ....................................... ad. No. 106, 1998
Part XIII .................................... ad. No. 59, 2009
Ss. 174–178 ............................. ad. No. 59, 2009
Heading to Schedule ................ rs. No. 61, 1999 am. No. 111, 2009
Schedule .................................. ad. No. 88, 1995
Part 1
Heading to Part 1 ..................... ad. No. 61, 1999
Div. 1 of Part 1 .......................... ad. No. 59, 2009
Ss. 44ZZRA–44ZZRE .............. ad. No. 59, 2009
Ss. 44ZZRF–44ZZRI ................ ad. No. 59, 2009
Ss. 44ZZRJ, 44ZZRK ............... ad. No. 59, 2009
Ss. 44ZZRL–44ZZRV ............... ad. No. 59, 2009
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
Ss. 45B, 45C ............................ ad. No. 88, 1995
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 45D ...................................... ad. No. 88, 1995 rs. No. 60, 1996
S. 45DA .................................... ad. No. 60, 1996
S. 45DC .................................... ad. No. 60, 1996
S. 45DD .................................... ad. No. 60, 1996 am. No. 54, 2009
Note to s. 45DD(6) ................... 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
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
Note to s. 50(1) ......................... ad. No. 131, 2006
S. 51 ......................................... ad. No. 88, 1995 am. No. 88, 1995; No. 60, 1996; No. 63, 2002
Part 2 ........................................ ad. No. 61, 1999 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
Note 2
Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010
(No. 44, 2010)
The following amendments commence on 14 October 2010 unless proclaimed earlier. However the proclamation date must not be before 1 July 2010:
Schedule 1 1 At the end of the Act
Add:
Note: See section 130.
1 Definitions
In this Schedule: constitution has the meaning given by the Corporations Act 2001. consumer contract: see section 2(3). interest, in relation to land, means:
rely on, in relation to a term of a consumer contract, includes the following:
ship has the meaning given by the Admiralty Act 1988.
transparent, in relation to a term of a consumer contract: see section 3(3).
unfair, in relation to a term of a consumer contract: see section 3(1).
upfront price: see section 5(2).
2 Unfair terms of consumer contracts
is wholly or predominantly for personal, domestic or household use or consumption.
3 Meaning of unfair
4 Examples of unfair terms
5 Terms that define main subject matter of consumer contracts etc. are unaffected
but does not include any other consideration that is contingent on the occurrence or non-occurrence of a particular event.
7 Standard form contracts
8 Contracts to which this Part does not apply
3 Subsection 4(1)
Insert:
Australian Consumer Law means Schedule 2.
4 Subsection 4(1)
Insert:
provision, of the Australian Consumer Law, has the meaning given by section 4KB.
5 After section 4KA
Insert:
4KB References to the Australian Consumer Law etc.
4KC Contraventions of the Australian Consumer Law
Conduct is not taken, for the purposes of this Act, to contravene the Australian Consumer Law merely because of subsection 2(1) of the Australian Consumer Law.
6 After paragraph 5(1)(e)
Insert: (ea) the Australian Consumer Law;
Note: The heading to section 5 is replaced by the heading “Extended application of this Act to conduct outside Australia”.
7 Paragraph 5(1)(f)
Omit “or (e)”, substitute “, (e) or (ea)”.
8 At the end of subparagraphs 6(2)(a)(i) and (ii), (2)(b)(i) and
(ii) and (2)(c)(i)
Add “or”.
Note: The heading to section 6 is replaced by the heading “Extended application of this Act to persons who are not corporations”.
9 After paragraph 6(2)(c)
Insert: (ca) any reference in Part 2 of the Australian Consumer Law to a contract were, by express provision, confined to a contract made:
(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
10 After subsection 6(3)
Insert:
(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 of the Australian Consumer Law have, by force of this subsection, the effect they would have if:
11 After Part X
Insert:
130 Application of the Australian Consumer Law in relation to corporations
The Australian Consumer Law applies as a law of the Commonwealth to the conduct of corporations.
131 Division does not apply to financial services etc.
132 Saving of other laws and remedies
This Division is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
133 Definitions
In this Division:
application law means:
applied Australian Consumer Law means (according to the context):
apply, in relation to the applied Australian Consumer Law, means apply the applied Australian Consumer Law by reference:
Commonwealth entity means:
imposes a duty has the meaning given by section 140.
modifications includes additions, omissions and substitutions.
officer, in relation to the Commonwealth, includes the following:
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.
134 Object of this Division
The object of this Division is to facilitate the application of the Australian Consumer Law by participating States and participating Territories.
135 The applied Australian Consumer Law
(c) are to be modified as necessary to fit in with Schedule 2. In particular, references to corporations are to include references to persons who are not corporations.
136 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.
137 Exercise of jurisdiction under cross-vesting provisions
This Division 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.
138 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 140 sets out when such a law imposes a duty on a Commonwealth entity.
139 How duty is imposed
Application
(1) This section applies if an application law purports to impose a duty on a Commonwealth entity.
Note: Section 140 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:
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 138 to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
140 When an application law imposes a duty
For the purposes of this Division, an application law imposes a duty on a Commonwealth entity if:
141 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.
142 No doubling-up of liabilities
(1) If:
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.
143 References in instruments to the Australian Consumer Law
Schedule 2
27 Subsection 4(1)
Insert:
consumer contract has the meaning given by the Australian Consumer Law.
29 Subsection 4(1) (definition of non-party consumer)
Repeal the definition, substitute:
non-party consumer means:
31 Subsection 4(1)
Insert:
rely on, in relation to a term of a consumer contract, includes the meaning given by the Australian Consumer Law.
32 Subsection 4(1)
Insert:
unfair, in relation to a term of a consumer contract, has the meaning given by the Australian Consumer Law.
41 Paragraph 80(1)(a)
Repeal the paragraph, substitute:
(a) a contravention of any of the following provisions:
42 At the end of paragraphs 80(1)(b) to (d)
Add “or”.
43 After subsection 80(1B)
Insert:
(1C) A reference in paragraph (1)(a) to a contravention of a provision of the Australian Consumer Law includes a reference to applying or relying on, or purporting to apply or rely on, a term of a consumer contract that the Court has declared under section 87AC to be an unfair term.
46 Paragraphs 84(1)(b) and (3)(b)
After “or VC”, insert “, or a provision of the Australian Consumer
Law,”.
47 At the end of subsection 86(1)
Add “or has been instituted in relation to subsection 2(1) of the
Australian Consumer Law (as applied under Division 1 of Part XI)”.
48 Subsection 86(1A)
After “or Part VA”, insert “, or a provision of the Australian Consumer
Law,”.
49 Subsection 86(2)
After “of Part V”, insert “, or a provision of the Australian Consumer
Law,”.
50 Paragraphs 86A(1)(b), (4)(b) and (5)(b) and 86B(1)(b)
After “of Part V”, insert “, or a provision of the Australian Consumer
Law”.
56 Subsection 87(1)
After “or VC,”, insert “or of the Australian Consumer Law,”.
57 Paragraphs 87(1A)(a) and (b) and (1B)(a)
After “or VC”, insert “, or a provision of the Australian Consumer
Law”.
58 Subsection 87(1C)
After “or VC”, insert “, or of a provision of the Australian Consumer
Law,”.
59 After subsection 87(5)
Insert:
(5A) A reference in this section to a contravention of a provision of the Australian Consumer Law includes a reference to applying or relying on, or purporting to apply or rely on, a term of a consumer contract that the Court has declared under section 87AC to be an unfair term.
60 Paragraph 87AAA(1)(a)
Repeal the paragraph, substitute:
(a) a person:
61 Paragraphs 87AAA(1)(b) and (c)
After “contravening conduct”, insert “or declared term”.
62 Subsection 87AAA(2)
Repeal the subsection, substitute:
(2) An order under subsection (1) may be made against:
63 Paragraphs 87AAA(3)(a) and (b)
After “contravening conduct”, insert “or declared term”.
64 Subsection 87AAA(4)
After “contravening conduct”, insert “or declared term”.
65 Subsection 87AAA(5)
Repeal the subsection, substitute:
(5) An application under subsection (1) may be made at any time within 6 years after the day on which:
66 Subsection 87AAA(6)
Omit “subsection (2)”, substitute “paragraph (2)(a)”.
67 After subsection 87AAA(6)
Insert:
(7) In determining whether to make an order under subsection (1) against a person referred to in paragraph (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.
68 Paragraph 87AAA(8)(a)
After “contravening conduct”, insert “or declared term”.
69 Paragraph 87AAA(9)(b)
After “contravening conduct”, insert “, or declared term,”.
70 Paragraph 87A(1)(b)
After “or VC”, insert “, or of the Australian Consumer Law”.
72 Paragraph 87A(1)(d)
After “or VC”, insert “, or of the Australian Consumer Law”.
73 At the end of section 87A
Add:
(9) A reference in paragraph (1)(b) or (d) to a contravention of a provision of the Australian Consumer Law includes a reference to applying or relying on, or purporting to apply or rely on, a term of a consumer contract that the Court has declared under section 87AC to be an unfair term.
74 After section 87AB
Insert:
87AC Declarations
(1) The Court may, on the application of a party to a consumer contract or on the application of the Commission, declare that a term of such a contract is an unfair term.
(1A) Subsection (1) does not apply unless the consumer contract is a standard form contract.
(2) Subsection (1) does not limit any other power of the Court to make declarations.
Schedule 4 4 Section 150A (definition of Schedule version of Part IV)
Omit “the Schedule”, substitute “Schedule 1”.
5 Schedule (heading)
Omit “Schedule” (first occurring), substitute “Schedule 1”. As at 19 April 2010 the amendments are not incorporated in this compilation.
Table A
Application, saving or transitional provisions
Workplace Relations and Other Legislation Amendment Act 1996
(No. 60, 1996)
Schedule 17 29 Definitions
In this Part:
amended TP Act means the Trade Practices Act 1974 as in force after the commencement. amended WR Act means the Workplace Relations Act as in force
after the commencement. commencement means the commencement of this Schedule. Commission has the same meaning as in the amended WR Act. conduct includes threatened, impending or probable conduct. jurisdiction transfer day means the transfer day as defined in
Part 3 of Schedule 16.
old TP Act means the Trade Practices Act 1974 as in force immediately before the commencement. old WR Act means the Workplace Relations Act as in force
immediately before the commencement.
30 Conciliation proceedings in progress under Division 7 of Part VI of old WR Act
If:
the Commission may exercise conciliation powers under the amended WR Act in relation to the dispute as if the Commission had been notified of the dispute under section 157 of the amended WR Act.
31 If certificate under section 163D of old WR Act granted in relation to conduct that ended before commencement
If, before the commencement, the Commission granted a certificate under section 163D of the old WR Act in relation to a dispute about conduct and the conduct ended before the commencement:
Note: If no certificate was granted under section 163D of the old WR Act in relation to conduct that ended before the commencement, then (subject to item 30) no relief is available under the old WR Act or the amended TP Act in relation to that conduct.
32 If certificate under section 163D of old WR Act granted in relation to conduct that continues after commencement
taken, on and after the jurisdiction transfer day, to be a reference to the Federal Court of Australia; and
(c) if, under Part 3 of Schedule 16, the Industrial Relations Court continues to have jurisdiction in relation to proceedings begun before the jurisdiction transfer day in relation to that conduct, that Court may, in accordance with that Part of that Schedule, continue to exercise jurisdiction in the proceedings.
(3) In relation to so much of the conduct as occurs after the commencement, the amended TP Act applies as if that conduct had started on the commencement.
33 If no certificate under section 163D of old WR Act granted in relation to conduct that continues after commencement
If:
then, in relation to so much of the conduct as occurs after the commencement, the amended TP Act applies as if that conduct had started on the commencement.
Note: If no certificate was granted under section 163D of the old WR Act in relation to conduct that continues after the commencement, then (subject to item 30) no relief is available under the old WR Act or the amended TP Act in relation to so much of the conduct as occurred before the commencement.
34 If conduct to which section 45D of old TP Act applied ended before commencement
If conduct to which section 45D of the old TP Act applied ended before the commencement, the old TP Act continues to apply to that conduct as though the amendments made by this Schedule had not been made.
35 If conduct to which section 45D of old TP Act applied continues after commencement
36 Power to vary or rescind orders and injunctions made under repealed provisions
(1) An order or injunction:
may, subject to subsection (2), be varied or rescinded by the court after the commencement, despite the repeal of the provision, as if the amendments made by this Schedule had not been made.
repealed provision means:
37 Power to vary or revoke decisions of Commission made under repealed provisions
(1) A decision of the Commission:
may be varied or revoked by the Commission after the commencement, despite the repeal of the provision, as if the amendments made by this Schedule had not been made.
(2) In this section:
decision includes an order, direction or determination.
repealed provision means a provision of Division 7 of Part VI of the old WR Act.
Trade Practices Amendment (Telecommunications) Act 1997
(No. 58, 1997)
Schedule 1
15 Application—amendments of section 163A of the Trade Practices Act
The amendments of section 163A of the Trade Practices Act 1974 made by this Schedule do not apply to a proceeding instituted before the commencement of this item.
Gas Pipelines Access (Commonwealth) Act 1998 (No. 101, 1998)
Schedule 1
36 Saving provision
Despite the repeal of subsection 89(3), the register of applications in place under that subsection immediately before the day item 35 commences continues to have effect on and after that date as if it had been created for the purposes of subsection 89(3) of the Trade Practices Act 1974 as amended by this Act.
47 Saving provision
If, before the commencement of item 46:
subsection 91(4) of that Act continues in force as if the amendments of that Act made by items 27 to 56 had not been made.
50 Saving provision
Any application made by a person for review of a determination under subsection 101(1) of the Trade Practices Act 1974 as in force before the commencement of item 49 has effect, on and after the commencement of that item, as if it were an application for that determination made under subsection 101(1) of the Trade Practices Act 1974 as amended by that item.
Telecommunications Legislation Amendment Act 1999 (No. 52, 1999)
Schedule 1
72 Transitional—section 151CM of the Trade Practices Act 1974
73 Transitional—interim determinations
An interim determination may be made in relation to an arbitration under Division 8 of Part XIC of the Trade Practices Act 1974, whether the access dispute was notified before, at or after the commencement of this item.
74 Transitional—backdating of final determinations
A final determination made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 has no effect to the extent (if any) to which any provision of the determination is expressed to have taken effect on a date earlier than the date of commencement of this item.
75 Transitional—pre-commencement competition notices
76 Transitional—section 152CT of the Trade Practices Act 1974
The amendments of section 152CT of the Trade Practices Act 1974 made by this Schedule do not affect the continuity of a direction in force under that section immediately before the commencement of this item.
77 Transitional—interpretation of pre-commencement provisions of the Trade Practices Act 1974
In determining the meaning that a provision of the Trade Practices Act 1974 had before the commencement of this item, the amendments made by this Schedule are to be disregarded.
Schedule 3
81 Transitional—section 151CM of the Trade Practices Act 1974
Section 151CM of the Trade Practices Act 1974 has effect, after the commencement of this item, as if the reference in that section to Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 included a reference to repealed Part 6 of the Telstra Corporation Act 1991.
Schedule 4
28 Transitional—section 151CM of the Trade Practices Act 1974
Section 151CM of the Trade Practices Act 1974 has effect, after the commencement of this item, as if the reference in that section to Division 5 of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 included a reference to repealed Division 5 of Part 7 of the Telecommunications Act 1997.
Trade Practices Amendment (International Liner Cargo Shipping) Act 2000
(No. 123, 2000)
Schedule 1
171 Transitional—declarations under subsection 10.03(1) of the Trade Practices Act 1974
172 Transitional—declarations under subsection 10.03(2) of the Trade Practices Act 1974
173 Transitional—notices under section 10.29 of the Trade Practices Act 1974
174 Transitional—notices under section 10.41 of the Trade Practices Act 1974
175 Transitional—pre-commencement directions under section 10.44 of the Trade Practices Act 1974
Schedule, those provisions continue to apply after the commencement of this item, in relation to that direction, as if those amendments had not been made.
176 Transitional—notices under section 10.52 of the Trade Practices Act 1974
177 Transitional—pre-commencement inquiries
178 Application—review of decisions of Commission
Division 14A of Part X of the Trade Practices Act 1974 applies to decisions of the Commission made after the commencement of this item.
179 Application—review of decisions of the Minister
Division 14B of Part X of the Trade Practices Act 1974 applies to decisions of the Minister made after the commencement of this item.
180 Transitional—pre-commencement inwards liner cargo shipping services
Despite the repeals made by items 155 to 164 (inclusive) of this Schedule, the provisions of the Trade Practices Act 1974 repealed by those items continue to apply after the commencement of this item, in relation to an inwards liner cargo shipping service provided wholly or partly before the commencement of this item, as if those repeals had not been made.
Communications and the Arts Legislation Amendment Act 2001
(No. 46, 2001)
6 Saving of notices
A notice in force under subsection 151AQB(2) of the Trade Practices Act 1974 immediately before the commencement of this section is taken, after the commencement of this section, to be an advisory notice in force under subsection 151AQB(1) of that Act.
Trade Practices Amendment Act (No. 1) 2001 (No. 63, 2001)
Schedule 1
5 Application of items 3 and 4
The amendments made by items 3 and 4 apply in relation to a law of a State or Territory made before, on or after the commencement of those items.
8 Application of items 6 and 7
The amendments made by items 6 and 7 apply in relation to goods supplied on or after the commencement of those items.
10 Application of item 9
The amendment made by item 9 only applies in relation to conduct engaged in on or after the commencement of that item.
13 Application of item 12
The amendment made by item 12 only applies in relation to conduct engaged in on or after the commencement of that item.
15 Application of item 14
The amendment made by item 14 does not apply in relation to a proceeding instituted under this Act in relation to a person if, before the commencement of that item, the Court:
17 Saving
Despite the repeal of section 80A of the Trade Practices Act 1974 made by item 16, an order made under that section that is in force immediately before the commencement of that item continues in force as if the repeal had not been made.
19 Application of item 18
The amendment made by item 18 only applies in relation to conduct engaged in on or after the commencement of that item.
21 Application of item 20
had not ended when that item commenced.
23 Application of item 22
The amendment made by item 22 only applies in relation to conduct engaged in on or after the commencement of that item.
25 Application of item 24
The amendment made by item 24 only applies in relation to conduct engaged in on or after the commencement of that item.
27 Application of item 26
The amendment made by item 26 only applies in relation to conduct engaged in on or after the commencement of that item.
29 Application of item 28
The amendment made by item 28 only applies to conduct engaged in on or after the commencement of that item.
32 Application of item 31
had not ended when that item commenced.
34 Application of item 33
The amendment made by item 33 only applies in relation to proceedings instituted on or after the commencement of that item.
36 Application of item 35
The amendment made by item 35 only applies in relation to conduct engaged in on or after the commencement of that item.
38 Application of item 37
The amendment made by item 37 only applies in relation to matters arising on or after the commencement of that item.
Schedule 2
3 Application of items 1 and 2
The amendments made by items 1 and 2 only apply in relation to conduct engaged in on or after the commencement of those items.
5 Application of item 4
The amendment made by item 4 only applies in relation to conduct engaged in on or after the commencement of that item.
8 Application of items 6 and 7
The amendments made by items 6 and 7 only apply in relation to conduct engaged in on or after the commencement of those items.
Treasury Legislation Amendment (Application of Criminal Code) Act (No. 3) 2001 (No. 117, 2001)
4 Application of amendments
Trade Practices Amendment (Telecommunications) Act 2001 (No. 124, 2001)
Schedule 1
23 Application of amendments
24 Transitional—backdating final determinations
final determination means a final determination made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974.
Treasury Legislation Amendment (Application of Criminal Code) Act (No. 2) 2001 (No. 146, 2001)
4 Application of amendments
Trade Practices Amendment Act (No. 1) 2002 (No. 128, 2002)
Schedule 1
4 Application
The amendments made by items 1 to 3 apply only to conduct
engaged in after the commencement of this Schedule.
7 Application
The amendments made by items 5 and 6 apply only to a contravention of a provision of Part VC of the Trade Practices Act 1974 that occurs after the commencement of this Schedule.
9 Application
The amendment made by item 8 applies only to a contravention of subsection 155(5) or (6) of the Trade Practices Act 1974 that occurs after the commencement of this Schedule.
Telecommunications Competition Act 2002 (No. 140, 2002)
Schedule 2
9 Transitional—review of determinations
15 Transitional—section 152ALA of the Trade Practices Act 1974
19 Transitional—section 152CQ of the Trade Practices Act 1974
To avoid doubt, the amendments of section 152CQ of the Trade Practices Act 1974 made by this Part do not affect the validity of a determination made before the commencement of this item.
21 Transitional—section 152CQ of the Trade Practices Act 1974
To avoid doubt, the amendment of section 152CQ of the Trade Practices Act 1974 made by this Part does not affect the validity of a determination made before the commencement of this item.
69 Application—section 152AW of the Trade Practices Act 1974
110 Transitional—subsection 152BS(6A) of the Trade Practices Act 1974
To avoid doubt, an access undertaking given before the commencement of subsection 152BS(6A) of the Trade Practices Act 1974 is as valid as it would have been if that subsection had been in force when the undertaking was given.
111 Application—section 152CF of the Trade Practices Act 1974
113 Transitional—paragraph 152AR(3)(b) of the Trade Practices Act 1974
The amendment made by this Part is to be disregarded in determining the meaning that paragraph 152AR(3)(b) of the Trade Practices Act 1974 had before the commencement of this item.
115 Transitional—section 151CJ of the Trade Practices Act 1974
Subsections 151CJ(1) and (2) of the Trade Practices Act 1974 as amended by this Part apply in relation to:
Industry, Tourism and Resources Legislation Amendment Act 2003
(No. 21, 2003)
Schedule 1
29 Application of amendments
The amendments made by items 25 to 28 apply in respect of conduct engaged in, or representations made, after those items commence.
Trade Practices Legislation Amendment Act 2003 (No. 134, 2003)
Schedule 2
44 Definitions
In this Part:
ACCC means the Australian Competition and Consumer Commission.
commencement time means the time when this Part commences.
PSA means the Prices Surveillance Act 1983, as in force before the commencement time.
TPA means the Trade Practices Act 1974.
45 General
| Operation of Part VIIA of the TPA | |||
|---|---|---|---|
| Column 1 | Column 2 | Column 3 | |
| Item | Occurrence under the PSA | Occurrence under Part VIIA of | |
| the TPA | |||
| 1 | A direction given under | A direction given under subsection | |
| section 20 | 95ZH(1) | ||
| 2 | A declaration made under | A declaration made under | |
| paragraph 21(1)(a) | subsection 95X(1) | ||
| 3 | A declaration made under | A declaration made under | |
| paragraph 21(1)(b) | subsection 95X(2) | ||
| 4 | A declaration made under | A declaration made under | |
| paragraph 21(1)(c) | section 95B | ||
| 5 | A notice given under subsection | A notice given under subsection | |
| 25(1) | 95N(5) | ||
| 6 | A summons given under | A summons given under | |
| subsection 34(2) | subsection 95S(3) | ||
46 Price inquiries
Note: One of the effects of this subitem is that the ACCC is able to begin an inquiry, complete an inquiry or give a report on an inquiry under Part VIIA of the TPA.
| Operation of Part VIIA of the TPA | |||
|---|---|---|---|
| Column 1 | Column 2 | Column 3 | |
| Item | Occurrence under the PSA | Occurrence under Part VIIA of | |
| the TPA | |||
| 1 | An instrument made under | A notice given under subsection | |
| subsection 18(6) | 95K(3) | ||
| 2 | A notice served under paragraph | A notice given under subsection | |
| 19(1)(a) | 95L(1) | ||
| 3 | A notice served under paragraph | A notice given under subsection | |
| 19(1)(b) | 95L(3) | ||
| 4 | A notice served under subsection | A notice given under section 95M | |
| 19(2) | |||
47 Price inquiry obligations
48 Price notifications
| Operation of Part VIIA of the TPA | ||
|---|---|---|
| Column 1 | Column 2 | Column 3 |
| Item | Occurrence under the PSA | Occurrence under Part VIIA of |
| the TPA | ||
| 1 | A notice served under | A notice given under paragraph |
| subparagraph 22(2)(b)(ii) | 95Z(6)(b) | |
| 2 | A notice served under | A notice given under |
| subparagraph 22(2)(b)(iii) | subparagraph 95Z(6)(c)(i) | |
| 3 | A notice given under | A notice given under |
| subparagraph 22(2)(b)(iii) | subparagraph 95Z(6)(c)(ii) | |
| 4 | A notice given under paragraph | A notice given under subsection |
| 22(4)(a) | 95ZA(1) | |
| 5 | A determination made under | A determination made under |
| subsection 22(6) | subsection 95ZB(2) |
49 Register of price notifications
The register in place under subsection 23(1) of the PSA immediately before the commencement time is taken, immediately after that time, to be the register in place under subsection 95ZC(1) of the TPA.
50 Delegations in relation to price notifications
Giving of notices
(1) A delegation in force under paragraph 29(b) of the PSA immediately before the commencement time has effect after that time as if it were a delegation (made under paragraph 95ZD(1)(a) of the TPA) of the ACCC’s price notification powers in relation to the notices concerned.
Withdrawal of notices
(2) A delegation in force under paragraph 29(c) of the PSA immediately before the commencement time has effect after that time as if it were a delegation (made under paragraph 95ZD(1)(b) of the TPA) of the power under section 95ZJ of the TPA relating to a notice given in the exercise of the ACCC’s price notification powers.
Definition
(3) In this item:
price notification powers means the ACCC’s powers under paragraph 95Z(6)(b) or (c) of the TPA.
51 Price monitoring
52 Information gathering under Part VIIA of the TPA
Information gathering under Part VIIA of the TPA Column 1 Column 2 Column 3 Item Provision of the PSA Provision of the TPA
| 1 | Paragraph 32(1)(c) | Paragraph 95ZK(1)(a) |
| 2 | Paragraph 32(1)(d) | Paragraph 95ZK(1)(b) |
| 3 | Paragraph 32(1)(e) | Paragraph 95ZK(1)(c) or (d) (as the |
| case requires) |
53 Inspection of documents etc.
56 Information gathering under Part XII of the TPA
Refusal or failure to comply with notices
(1) Paragraph 155(2A)(a) of the TPA has effect after the commencement time as if a reference to a notice under subsection 95ZK(1) or (2) of the TPA included a reference to a notice under subsection 32(1) of the PSA.
Refusal or failure to answer questions
(2) Paragraph 155(2A)(b) of the TPA has effect after the commencement time as if a reference to an inquiry under Part VIIA of the TPA included a reference to an inquiry under the PSA.
Refusal or failure to produce documents
(3) Paragraph 155(2A)(c) of the TPA has effect after the commencement time as if a reference to a summons under subsection 95S(3) of the TPA included a reference to a summons under subsection 34(2) of the PSA.
Trade Practices Amendment (Personal Injuries and Death) Act (No. 2) 2004
(No. 113, 2004)
Schedule 1
11 Application
The amendments made by this Schedule (other than item 10) apply to contraventions of Part IVA, of Division 1A or 2A of Part V or of Part VA of the Trade Practices Act 1974 that occur after this Schedule commences.
Telecommunications Legislation Amendment (Competition and Consumer Issues) Act 2005 (No. 119, 2005)
Schedule 4
2 Application of amendment
The amendment of section 151BX of the Trade Practices Act 1974 made by this Schedule applies to a contravention of the competition rule if:
Trade Practices Amendment (Personal Injuries and Death) Act 2006
(No. 11, 2006)
Schedule 1
8 Application
The amendments made by this Schedule apply in relation to contraventions of Division 1 of Part V of the Trade Practices Act 1974 that occur after this Schedule commences.
Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006
(No. 23, 2006)
Schedule 1
2 Application of amendment of subsection 86(1A)
The amendment of subsection 86(1A) of the Trade Practices Act 1974 made by this Schedule applies in relation to matters arising before, on or after the commencement of this Schedule.
5 Application of amendments of section 86AA
The amendments of section 86AA of the Trade Practices Act 1974 made by this Schedule apply to:
Trade Practices Amendment (National Access Regime) Act 2006
(No. 92, 2006)
Schedule 1
114 Application—Council annual report
The amendment made by item 3 applies in relation to financial years ending after the commencement of that item.
115 Application—objects of Part IIIA
The amendments made by the items mentioned in column 2 of the table apply in relation to the matter mentioned in column 3 of the table:
Objects of Part IIIA
Column 1 Column 2 Column 3 Items Matter
Items 12 and 17 Applications made to the Council after the commencement of those items.
| Objects of Part IIIA | |||
|---|---|---|---|
| Column 1 | Column 2 | Column 3 | |
| Items | Matter | ||
| 2 | Items 20 and 24 | Declaration recommendations made to the | |
| designated Minister after the commencement of those items (where the applications for the recommendations were also made after that | |||
| commencement). | |||
| 3 | Items 28 and 30 | Revocation recommendations made to the | |
| designated Minister after the commencement of those items. | |||
| 4 | Item 37 | Applications made to the Council after the commencement of that item. | |
| 5 | Item 41 | Recommendations made to the | |
| Commonwealth Minister after the | |||
| commencement of that item (where the applications for the recommendations were also made after that commencement). | |||
| 6 | Item 65 | Access disputes notified after the commencement of that item. | |
| 7 | Item 88 | Applications made to the Commission after the commencement of that item. | |
| 8 | Item 92, in so far as it inserts paragraph 44ZZA(3)(aa) of the Trade Practices Act | Access undertakings given to the Commission after the commencement of that item. | |
| 1974 | |||
| 9 | Item 100, in so far as it inserts paragraph 44ZZAA(3)(aa) of the Trade Practices | Access codes given to the Commission after the commencement of that item. | |
| Act 1974 | |||
116 Application—target time limits
The amendments made by the items mentioned in column 2 of the table apply in relation to the matter mentioned in column 3 of the table:
| Target time limits | |||
|---|---|---|---|
| Column 1 | Column 2 Items | Column 3 Matter | |
| 1 | Item 18, in so far as it inserts section 44GA of the Trade Practices Act 1974 | Applications made to the Council after the commencement of that item. | |
| 2 | Item 31 | Revocation recommendations made to the | |
| designated Minister after the commencement of that item. | |||
| 3 | Item 44, in so far as it inserts section 44NC of the Trade Practices Act 1974 | Applications made to the Council after the commencement of that item. | |
| 4 | Item 44, in so far as it inserts section 44ND of the Trade Practices Act 1974 | Recommendations made to the Commonwealth Minister after the commencement of that item. | |
| 5 | Item 69 | Access disputes notified after the commencement of that item. | |
| 6 | Item 108, in so far as it inserts section 44ZZBC of the Trade Practices Act 1974 | Access undertaking applications and access code applications made to the Commission after the commencement of that item. | |
| 7 | Item 112 | Applications for review made to the Tribunal after the commencement of that | |
| item. | |||
117 Application—competition test
118 Application—public consultation
119 Application—publication of decisions
120 Application—deemed decision not to declare a service
The amendment made by item 26 applies in relation to declaration recommendations made to the designated Minister after the commencement of that item.
121 Application—extensions of access regimes, access undertakings and access codes
122 Transitional—review applications on effective access regime decisions
An application made to the Tribunal under subsection 44O(1) of the Trade Practices Act 1974 before the commencement of this item has effect, after that commencement, as if it had been made under that subsection after that commencement.
123 Application—interim determinations
The amendment made by item 58 applies in relation to access disputes notified to the Commission before or after the commencement of that item.
124 Transitional—existing determinations continue in operation
A determination:
has effect, after that commencement, as if it were a final determination made by the Commission under subsection 44V(1) of that Act.
125 Application—interconnections to facilities
The amendments made by items 60, 63 and 66 apply:
126 Application—pricing principles
The amendments made by items 67, 92 (in so far as it inserts paragraph 44ZZA(3)(ab) of the Trade Practices Act 1974) and 100 (in so far as it inserts paragraph 44ZZAA(3)(ab) of that Act) apply in relation to access disputes notified, and access undertakings and access codes given, to the Commission after the commencement of those items.
127 Application—joint arbitration hearings
The amendment made by item 71 applies in relation to access disputes notified to the Commission either before or after the commencement of that item.
128 Application—arbitration reports
The amendment made by item 72 applies in relation to access disputes notified to the Commission after the commencement of that item.
129 Application—backdating of final determinations
The amendment made by item 75 applies in relation to access disputes notified to the Commission after the commencement of that item. However, a day specified under subsection 44ZO(3) of the Trade Practices Act 1974 after that commencement cannot be a day occurring before that commencement.
130 Application—assessment of access undertakings and access codes
The amendments made by items 93, 95, 101, 102 and 107 apply in relation to access undertakings and access codes given to the Commission after the commencement of those items.
131 Application—when access undertakings and access codes come into operation
The amendments made by items 97, 104 and 108 (in so far as it inserts section 44ZZBA of the Trade Practices Act 1974) apply in relation to decisions made by the Commission after the commencement of those items.
132 Transitional—old access undertakings and access codes continue in operation
An access undertaking or access code, that is in operation under section 44ZZA or 44ZZAA of the Trade Practices Act 1974 immediately before the commencement of this item, continues in operation after that commencement under section 44ZZBA of that Act.
Note: The effect of this item is to allow extensions of the undertaking or code after the commencement of this item under section 44ZZBB of that Act.
133 Application—variation of access undertakings and access codes
The amendments made by items 98 and 105 apply in relation to variations sought after the commencement of those items.
134 Application—review of access undertaking decisions and access code decisions
The amendment made by item 108 (in so far as it inserts section 44ZZBF of the Trade Practices Act 1974) applies in relation to decisions of the Commission made after the commencement of that item.
135 Application—deferral of access disputes or access undertakings
The amendment made by item 110 (in so far as it inserts section 44ZZCB of the Trade Practices Act 1974) applies in relation to access disputes notified, and access undertakings given, to the Commission after the commencement of that item.
136 Application—Commission annual report
The amendment made by item 113 applies in relation to financial years ending after the commencement of that item.
Trade Practices Legislation Amendment Act (No. 1) 2006 (No. 131, 2006)
Schedule 1
52 Application of amendments
The amendments made by this Schedule apply in relation to applications for clearances or authorisations made after the commencement of this item.
53 Transitional
Schedule 2
13 Application
The amendments made by this Schedule apply in relation to applications made after the commencement of this Schedule.
14 Saving
Schedule 3
28 Application
The amendments made by this Schedule apply in relation to contracts or arrangements made, or understandings arrived at, after the commencement of this Schedule.
29 Saving
Schedule 4
2 Application
The amendment made by this Schedule applies in relation to proceedings instituted after the commencement of this Schedule (whether the contract or arrangement was made, or the understanding was arrived at, before or after that commencement).
Schedule 5
4 Application
Schedule 6
20 Application
Schedule 7
18 Application
The amendment made by item 17 applies in relation to notifications made after the commencement of that item.
33 Application
The amendments made by this Part apply in relation to conduct engaged in after the commencement of this Part.
35 Application
The amendment made by this Part applies in relation to notices given after the commencement of this Part (whether or not the application for authorisation was dismissed before or after that commencement).
Schedule 8
28 Application
The amendment made by item 4 applies in relation to contraventions occurring either before or after the commencement of that item.
29 Transitional—old authorisations
Subsection 155(2) of the Trade Practices Act 1974, as in force immediately before the commencement of this item, continues to apply after that commencement in relation to an authorisation given under that subsection before that commencement, but only in relation to any entry to premises under that authorisation that occurs before the 14th day after that commencement.
Schedule 9
15 Application
The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.
21 Application
The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.
24 Application
The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.
Trade Practices Legislation Amendment Act (No. 1) 2007 (No. 159, 2007)
Schedule 1
4 No effect on existing appointment
The amendments made by items 2 and 3 of this Schedule do not affect the validity of an appointment under subsection 10(1) of the Trade Practices Act 1974 that is in force immediately before the commencement of this item.
Schedule 2
12 Application of amendments
Schedule 3
9 Application of amendments
The amendments made by this Schedule apply in relation to conduct engaged in after the commencement of the amendments in relation to contracts for the supply or acquisition of goods or services made before or after commencement.
Trade Practices Legislation Amendment Act 2008 (No. 116, 2008)
Schedule 3
13 Application of item 12
The amendments made by item 12 of this Schedule apply in relation to conduct engaged in after the commencement of that item, including conduct in relation to contracts for the supply or acquisition of goods or services whether made before or after that commencement.
15 Application of item 14
Trade Practices Amendment (Clarity in Pricing) Act 2008 (No. 126, 2008)
Schedule 1
5 Application
The amendments made by this Schedule apply in relation to conduct engaged in after the commencement of this Schedule.
Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009
(No. 59, 2009)
Schedule 1
118 Application—subsection 163(2) of the Trade Practices Act 1974
Despite the repeal of subsection 163(2) of the Trade Practices Act 1974 by this Schedule, that subsection continues to apply, in relation to prosecutions instituted before the commencement of this item, as if that repeal had not happened.
Schedule 2
52 Application—search warrants
The amendments of the following provisions made by this Schedule:
apply in relation to search warrants issued after the commencement of this item.
53 Application—giving answers and producing documents etc.
imposed after the commencement of this item.
Statute Stocktake (Regulatory and Other Laws) Act 2009 (No. 111, 2009)
Schedule 1
49 Application of items 47 and 48
If, at the time when this item commences, item 5 of Schedule 4 to the Trade Practices Amendment (Australian Consumer Law) Act 2009 has commenced, then a reference to the Schedule in the heading of item 47 or 48 of this Part is taken to be a reference to Schedule 1.
50 Transitional—Repeal of subparagraph 163A(1)(a)(ia) of the
Trade Practices Act 1974
old law means the Trade Practices Act 1974 as in force immediately
before the commencement of this item.
Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010
(No. 44, 2010)
The following provision commences on 14 October 2010 unless proclaimed earlier. However the proclamation date must not be before 1 July 2010:
Schedule 1
2 Application and transitional provisions
(2A) If paragraph (2)(b) applies to a term of a contract, subsection 2(2) and section 7 of Schedule 2 to the Trade Practices Act 1974 applies to the contract.
(3) Despite paragraphs (2)(a) and (b) and subitem (2A), that Part does not apply to a contract, or a term of a contract, to the extent that the operation of that Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution).
This compilation was prepared on 19 April 2010 taking into account amendments up to Act No. 44 of 2010
Volume 1 includes: Table of Contents Sections 1 – 119
The text of any of those amendments not in force on that date is appended in the Notes section
The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section
| Volume 2 includes: | Table of Contents |
| Sections 10.01 – 178 | |
| Schedule | |
| Volume 3 includes: | Note 1 |
| Table of Acts | |
| Act Notes | |
| Table of Amendments | |
| Note 2 |
Table A
Prepared by the Office of Legislative Drafting and Publishing, Attorney-General’s Department, Canberra
Part I—Preliminary 1 1 Short title [see Note 1].......................................................................1 2 Object of this Act...............................................................................1 2A Application of Act to Commonwealth and Commonwealth
authorities..........................................................................................1 2B Application of Act to States and Territories......................................2 2BA Application of Part IV to local government bodies ...........................2 2C Activitiesthatare not business..........................................................2 3 Repeal................................................................................................4 4 Interpretation.....................................................................................4 4A Subsidiary, holding and related bodiescorporate............................14 4B Consumers.......................................................................................16 4C Acquisition,supply and re-supply...................................................19 4D Exclusionary provisions ..................................................................19 4E Market.............................................................................................20 4F References to purpose or reason......................................................21 4G Lessening of competition to include preventing or hindering
competition......................................................................................21 4H Application of Act in relation to leases and licences of land
and buildings ...................................................................................21 4J Joint ventures...................................................................................22 4K Loss or damage to include injury.....................................................22 4KA Personal injury.................................................................................23 4L Severability......................................................................................23 4M Saving of law relating to restraint of trade and breaches of
confidence .......................................................................................23 4N Extended application of Part IIIA....................................................23 5 Extended application of Parts IV, IVA, V, VCetc..........................24 6 Extended application of Parts IV, IVA, IVB, V, VA and VC..........25 6AA Application of the Criminal Code ...................................................31
Part II—The Australian Competition and Consumer Commission 32 6A Establishmentof Commission.........................................................32 7 Constitution of Commission............................................................32 8 Terms and conditions of appointment .............................................33 8A Associate members..........................................................................33 8AB State/TerritoryAER members taken to beassociate members........34 9 Remuneration..................................................................................34 10 Deputy Chairpersons.......................................................................35 11 Acting Chairperson..........................................................................35 12 Leave ofabsence.............................................................................36
13 Termination of appointment of members of the Commission .........36 14 Termination of appointment of associate members of the
Commission.....................................................................................37 15 Resignation......................................................................................37 16 Arrangement of business.................................................................37 17 Disclosure of interests by members................................................38 18 Meetings of Commission.................................................................38 19 Chairperson may direct Commission to sit in Divisions..................40 25 Delegation by Commission .............................................................40 26 Delegation by Commission in relation to unconscionable
conduct and consumer protection....................................................41 27 Staff of Commission........................................................................41 27A Consultants......................................................................................42 28 Functions of Commission in relation to dissemination of
information, law reform and research..............................................42
29 Commission to comply with directions of Minister and requirements of the Parliament........................................................43
Part IIA—The National Competition Council 45 29A Establishment of Council.................................................................45 29B Functions and powers of Council ....................................................45 29BA Commonwealth consent to conferral of functions etc. on
Council ............................................................................................46 29BB How duty is imposed.......................................................................46 29BC When a State/Territoryenergylaw imposes a duty.........................47 29C Membership of Council...................................................................47 29D Terms and conditions of office........................................................48 29E Acting Council President.................................................................48 29F Remuneration of Councillors...........................................................48 29G Leave ofabsence.............................................................................49 29H Termination of appointment of Councillors ....................................49 29I Resignationof Councillors..............................................................49 29J Arrangement of Council business....................................................49 29K Disclosure of interests by Councillors.............................................50 29L Council meetings.............................................................................51 29M Staff to help Council........................................................................51 29N Consultants......................................................................................51 29O Annual report...................................................................................52
Part III—The Australian Competition Tribunal 53 29P Definition ........................................................................................53 30 Constitution of Tribunal..................................................................53 31 Qualifications of members of Tribunal............................................53 31A Appointment of Judge as presidential member of Tribunal
not to affecttenure etc.....................................................................54
Trade Practices Act 1974
32 Terms and conditions of appointment .............................................54 33 Remuneration and allowances of members of Tribunal...................54 34 Acting appointments........................................................................54 35 Suspension and removal of members of Tribunal............................55 36 Resignation......................................................................................56 37 Constitution of Tribunal for particular matters................................56 38 Validity of determinations...............................................................57 39 President may give directions..........................................................57 40 Disclosure of interestsby members of Tribunal..............................57 41 Presidential member to preside........................................................58 42 Decision of questions ......................................................................58 43 Member of Tribunal ceasing to be available....................................58 43A Counsel assisting Tribunal...............................................................59 43B Consultants......................................................................................59 44 Staff of Tribunal..............................................................................59 44A Acting appointments........................................................................60
Part IIIAA—The Australian Energy Regulator (AER) 61
Division 1—Preliminary 61 44AB Definitions.......................................................................................61 44AC This Part binds the Crown...............................................................61 44AD Extra-territorial operation................................................................61
Division 2—Establishment of the AER 63 44AE Establishment of the AER ...............................................................63 44AF AER to hold money and property on behalf of the Commonwealth ...............................................................................63 44AG Constitutionof the AER..................................................................63
Division 3—Functions and powers of the AER 64 44AH Commonwealth functions................................................................64 44AI Commonwealth consent to conferral of functions etc. on AER.................................................................................................64 44AJ How duty is imposed.......................................................................64 44AK When a State/Territoryenergylaw imposes a duty.........................65 44AL Powers of the AER..........................................................................66
Division 4—Administrative provisions relating to the AER 67
Subdivision A—Appointment etc. of members 67 44AM Appointment of Commonwealth AER member...............................67 44AN Membership of AER and Commission............................................67 44AO Acting appointment of Commonwealth AER member....................68 44AP Appointment of State/Territory AER members...............................68 44AQ Acting appointment of State/Territory AER member......................69 44AR AER Chair.......................................................................................69
44AS Acting AER Chair...........................................................................70 44AT Remuneration of AER members......................................................70 44AU Additional remuneration of AER Chair...........................................71 44AV Leave ofabsence.............................................................................71 44AW Other terms and conditions..............................................................71 44AX Outside employment........................................................................71 44AY Disclosure of interests .....................................................................72 44AZ Resignation......................................................................................72 44AAB Termination of appointment............................................................72
Subdivision B—Staff etc. to assist the AER 73 44AAC Staff etc. toassist the AER..............................................................73
Subdivision C—Meetings of the AER etc. 73 44AAD Meetings..........................................................................................73 44AAE Resolutions without meetings..........................................................74 44AAEAArbitration .......................................................................................74
Subdivision D—Miscellaneous 75 44AAF Confidentiality.................................................................................75 44AAG Federal Court may make certain orders...........................................76 44AAGAFederal Court may order disconnection if an event specified
in the National Electricity Rules occurs...........................................77 44AAH Delegation by the AER....................................................................78 44AAI Fees .................................................................................................79 44AAJ Annual report...................................................................................79 44AAK Regulations may dealwith transitional matters...............................79
Part IIIA—Access to services 81
Division 1—Preliminary 81 44AA Objects of Part.................................................................................81 44B Definitions.......................................................................................81 44C How this Part appliesto partnerships and joint ventures.................84 44D Meaning of designated Minister......................................................85 44DA The principles in the Competition Principles Agreement
have status as guidelines..................................................................86 44E This Part binds the Crown...............................................................86
Division 2—Declared services 87
Subdivision A—Recommendation by the Council 87 44F Person may request recommendation..............................................87 44G Limits on the Council recommending declaration of a service........88 44GA Target time limits on Council recommendation ..............................89 44GB Council may invite public submissions on the application..............90 44GC Council must publish its recommendation.......................................91
Trade Practices Act 1974
Subdivision B—Declaration by the designated Minister 92 44H Designated Minister may declare a service .....................................92 44HA Designated Minister must publish his or her decision.....................94 44I Duration and effect of declaration...................................................95 44J Revocation of declaration................................................................95 44JA Target time limits on designated Minister’s revocation decision............................................................................................96 44K Review of declaration......................................................................97 44L Review of decision not to revokea declaration...............................98
Division 2A—Effective access regimes 99
Subdivision A—Recommendation by Council 99 44M Recommendation for a Ministerial decision on effectiveness of access regime ..............................................................................99
Subdivision B—Decision by Commonwealth Minister 100 44N Ministerial decision on effectiveness of access regime .................100
Subdivision C—Extensions of Commonwealth Minister’s decision 100 44NA Recommendation by Council ........................................................100 44NB Decision by the Commonwealth Minister.....................................101
Subdivision D—Procedural provisions 102 44NC Target time limits—Council..........................................................102 44ND Target time limits—Commonwealth Minister...............................103 44NE Council may invite public submissions.........................................104 44NF Publication—Council....................................................................105 44NG Publication—Commonwealth Minister.........................................106
Subdivision E—Review of decisions 106 44O Review of Ministerial decision on effectiveness of access regime............................................................................................106
Subdivision F—State or Territory ceasing to be a party to Competition Principles Agreement 107 44P State or Territory ceasing to be a party to Competition Principles Agreement ....................................................................107
Division 2B—Competitive tender processes for government owned facilities 108 44PA Approval of competitive tenderprocess........................................108 44PB Report on conduct of tender process..............................................109 44PC Revocation of approval decision ...................................................109 44PD Target time limits for Commission decisions................................111 44PE Commission may invite public submissions..................................112 44PF Commission must publish its decisions.........................................113 44PG Review of Commission’s initialdecision......................................114 44PH Review of decision to revoke an approval.....................................115
Division 2C—Register of decisions and declarations 116 44Q Register of decisions and declarations...........................................116
Division 3—Access to declared services 117
Subdivision A—Scope of Division 117 44R Constitutional limits on operation of this Division........................117
Subdivision B—Notification of access disputes 117 44S Notification of access disputes ......................................................117 44T Withdrawal of notifications...........................................................117
Subdivision C—Arbitration of access disputes 118 44U Parties to the arbitration.................................................................118 44V Determination by Commission......................................................118 44W Restrictions on access determinations ...........................................119 44X Matters that the Commission must take into account ....................121 44XA Target time limits for Commission’s final determination..............121 44Y Commission may terminate arbitration in certain cases.................122
Subdivision D—Procedure in arbitrations 123 44Z Constitution of Commission for conductof arbitration.................123 44ZA Member of the Commission presiding at an arbitration.................123 44ZB Reconstitution of Commission ......................................................123 44ZC Determination of questions............................................................124 44ZD Hearing to be in private.................................................................124 44ZE Right to representation ..................................................................124 44ZF Procedure of Commission .............................................................124 44ZG Particular powers of Commission..................................................125 44ZH Power to take evidence on oath or affirmation..............................126 44ZI Failing to attend as a witness.........................................................126 44ZJ Failing to answer questions etc......................................................126 44ZK Intimidation etc..............................................................................127 44ZL Party may request Commission to treat material as
confidential....................................................................................127 44ZM Sections 18 and 19 do not apply to the Commission in an
arbitration ......................................................................................128
44ZN Parties to pay costs of an arbitration..............................................128
44ZNA Joint arbitration hearings...............................................................128
Subdivision DA—Arbitration reports 130 44ZNB Arbitration reports.........................................................................130
Subdivision E—Effect of determinations 132 44ZO Operation of final determinations..................................................132 44ZOA Effectand duration of interim determinations...............................133
Subdivision F—Review of final determinations 134 44ZP Review by Tribunal.......................................................................134
44ZQ Provisions that do not apply in relation to a Tribunal review........134 44ZR Appeals to Federal Court from determinations of the Tribunal .........................................................................................135 44ZS Operation and implementation of a determination that is subject to appeal............................................................................135 44ZT Transmission of documents...........................................................136
Subdivision G—Variation and revocation of determinations 136 44ZU Variation of final determinations...................................................136 44ZUA Variation and revocation of interim determinations ......................137
Division 4—Registered contracts for access to declared services 138 44ZV Constitutional limits on operation of this Division........................138 44ZW Registration of contract .................................................................138 44ZX Review of decision not to register contract....................................139 44ZY Effect of registration of contract....................................................139
Division 5—Hindering access to declared services 140 44ZZ Prohibition on hindering access to declared services.....................140
Division 6—Access undertakings and access codes for services 141
Subdivision A—Giving of access undertakings and access codes 141 44ZZA Access undertakings by providers .................................................141 44ZZAAAccess codes prepared by industry bodies.....................................142 44ZZAB Commission may rely on industry body consultations..................144
Subdivision B—Effect of access undertakings and access codes 145 44ZZBA When access undertakings and access codes come into operation........................................................................................145
Subdivision C—Extensions of access undertakings and access codes 146 44ZZBB Extensions of access undertakings and access codes.....................146
Subdivision D—Procedural provisions 147 44ZZBCTarget time limitsfor Commission decisions................................147 44ZZBD Commission may invite public submissions..................................148 44ZZBE Commission must publish its decisions.........................................149
Subdivision E—Review of decisions 150 44ZZBF Review of decisions.......................................................................150
Subdivision F—Register of access undertakings and access codes 151 44ZZC Register of access undertakings and access codes.........................151
Division 6A—Pricing principles for access disputes and access undertakings or codes 152 44ZZCA Pricing principles for access disputes and access undertakings or codes....................................................................152
Division 6B—Overlap among determinations, registered
contracts and access undertakings 153 44ZZCB Deferring access disputes or access undertakings..........................153 44ZZCCOverlap between determinations and access undertakings............154 44ZZCD Overlap between registered contracts and access
undertakings ..................................................................................155
Division 7—Enforcement and remedies 156 44ZZD Enforcement of determinations......................................................156 44ZZE Enforcement of prohibition on hindering access ...........................156 44ZZF Consent injunctions.......................................................................157 44ZZG Interim injunctions.........................................................................158 44ZZH Factors relevant to granting a restraining injunction......................158 44ZZI Factors relevant to granting a mandatory injunction......................158 44ZZJ Enforcement of access undertakings..............................................158 44ZZK Discharge or variation of injunction or other order .......................159
Division 8—Miscellaneous 160 44ZZL Register of determinations.............................................................160 44ZZM Commonwealth consent to conferral of functions etc. on the
Commission or Tribunal by State or Territory laws ......................160 44ZZMAHow duty is imposed.....................................................................160 44ZZMBWhen a law of a State or Territory imposes a duty........................161 44ZZN Compensation for acquisition of property .....................................162 44ZZNAOperation of Parts IV and VII not affected by this Part.................162 44ZZO Conduct bydirectors, servants or agents.......................................162 44ZZOATarget time limits for Tribunal decisions.......................................164 44ZZP Regulations about review by the Tribunal.....................................165 44ZZQ Regulations about fees for inspection etc. of registers...................165 44ZZR Procedure of the Tribunal when performing functions under
a State/Territory energy law or a designated Commonwealth energy law.....................................................................................165
| Part IV—Restrictive trade practices | 167 |
| Division 1—Cartel conduct | 167 |
| Subdivision A—Introduction | 167 |
44ZZRA Simplified outline..........................................................................167 44ZZRB Definitions.....................................................................................167 44ZZRC Extended meaning of party............................................................169 44ZZRD Cartel provisions............................................................................169 44ZZRE Meaning of expressions in other provisions of this Act.................174
Subdivision B—Offences etc. 174 44ZZRF Making a contract etc. containing a cartel provision .....................174 44ZZRGGiving effect toa cartel provision.................................................175
Trade Practices Act 1974
44ZZRH Determining guilt...........................................................................176 44ZZRI Court may make related civil orders..............................................176
Subdivision C—Civil penalty provisions 177 44ZZRJ Making a contract etc. containing a cartel provision .....................177 44ZZRKGiving effect toa cartel provision.................................................177
Subdivision D—Exceptions 177 44ZZRL Conduct notified............................................................................177 44ZZRMCartel provision subject to grant of authorisation..........................178 44ZZRN Contracts, arrangements or understandings between related
bodies corporate ............................................................................178 44ZZRO Joint ventures—prosecution..........................................................179 44ZZRP Joint ventures—civil penalty proceedings.....................................182 44ZZRQ Covenantsaffecting competition...................................................184 44ZZRR Resale price maintenance ..............................................................184 44ZZRS Exclusive dealing...........................................................................184 44ZZRT Dual listed company arrangement .................................................185 44ZZRU Acquisition of shares or assets.......................................................186 44ZZRV Collective acquisition of goods or services by the parties to a
contract, arrangement or understanding.........................................186
Division 2—Other provisions 188 45 Contracts, arrangements or understandings that restrict
dealings or affect competition .......................................................188 45B Covenantsaffecting competition...................................................191 45C Covenants in relation to prices ......................................................194 45D Secondary boycotts for the purpose of causing substantial
loss or damage...............................................................................196 45DA Secondary boycotts for the purpose of causing substantial
lessening of competition................................................................197 45DB Boycottsaffecting trade or commerce...........................................198 45DC Involvement andliabilityof employee organisations....................198 45DD Situations in which boycotts permitted..........................................200 45E Prohibition of contracts, arrangements or understandings
affecting the supply or acquisition of goods or services................203 45EA Provisions contravening section 45E not to be given effect ..........207 45EB Sections 45D to 45EA do not affect operation of other
provisions of Part...........................................................................207 46 Misuse of market power................................................................207 46A Misuse of market power—corporation with substantial
degree of power in trans-Tasman market.......................................211 46B No immunity from jurisdiction in relation to certain New
Zealand laws..................................................................................213 47 Exclusive dealing...........................................................................214 48 Resale price maintenance ..............................................................220 49 Dual listed company arrangements that affect competition...........220
50 Prohibition of acquisitions that would result in a substantial lessening of competition................................................................221
50A Acquisitionsthatoccur outside Australia......................................223
51 Exceptions.....................................................................................226
51AAA Concurrent operation of State and Territory laws..........................230
Part IVA—Unconscionable conduct 231 51AAB Part does not apply to financial services........................................231 51AA Unconscionable conduct within the meaning of the unwritten
law of the States and Territories....................................................231 51AB Unconscionable conduct................................................................231 51AC Unconscionable conduct in business transactions .........................232 51ACAAConcurrent operation of State and Territory laws .........................236
Part IVB—Industry codes 237 51ACA Definitions.....................................................................................237 51AD Contravention of industry codes....................................................237 51AE Regulations relating to industry codes...........................................238 51AEA Concurrent operation of State and Territory laws..........................238
Part V—Consumer protection 239
Division 1—Unfair practices 239 51AF Part does not apply to financial services........................................239 51A Interpretation.................................................................................239 52 Misleading or deceptive conduct...................................................240 53 False or misleading representations...............................................240 53A False representations and other misleading or offensive
conduct in relation to land.............................................................241 53B Misleading conduct in relation to employment..............................242 53C Single price to be stated in certain circumstances..........................242 54 Offering gifts and prizes................................................................244 55 Misleading conduct to which Industrial Property Convention
applies ...........................................................................................244 55A Certain misleading conduct in relation to services ........................244 56 Bait advertising..............................................................................244 57 Referral selling..............................................................................245 58 Accepting payment without intending or being able to supply
as ordered ......................................................................................245 59 Misleading representations about certain business activities.........246 60 Harassment and coercion...............................................................246 63A Unsolicited credit and debit cards..................................................246 64 Assertion of right to payment for unsolicited goods or
services or for making entry in directory.......................................247 65 Liability of recipient of unsolicited goods.....................................250
65A Application of provisions of Division to prescribed information providers....................................................................251
Division 1AAA—Pyramid selling 254 65AAA Overview.......................................................................................254 65AAB Definitions.....................................................................................254 65AAC Pyramid selling schemes—participation........................................255 65AAD What is a pyramid selling scheme?................................................255 65AAE Marketing schemes—are they pyramid selling schemes?..............256
Division 1AA—Country of origin representations 257
Subdivision A—General 257 65AA Overview.......................................................................................257 65AB General test for country of origin representations..........................257 65AC Test for representations that goods are product of/produce of
a country........................................................................................257 65AD Test for representations made bymeans of prescribed logo..........258 65AE Substantial transformation of goods..............................................258 65AF Method of working out costs of production or manufacture..........259
Subdivision B—Cost of production or manufacture of goods 259 65AG Definitions.....................................................................................259 65AH Cost of producing or manufacturing goods ...................................259 65AJ Expenditure on materials...............................................................259 65AK Expenditure on labour ...................................................................260 65AL Expenditure on overheads .............................................................260 65AM Regulations may prescribe rules for determining the local
percentage costs of production or manufacture .............................261
Subdivision C—Evidentiary matters 261 65AN Proceedings relating to false, misleading or deceptive conduct or representations.............................................................261
Division 1A—Product safety and product information 263 65B Warning notice to public ...............................................................263 65C Product safety standards and unsafe goods....................................263 65D Product information standards.......................................................265 65E Power of Minister to declare product safety or information
standards........................................................................................267 65F Compulsory product recall ............................................................267 65G Compliance with product recall order ...........................................270 65H Loss or damage caused by contravention of product recall
order ..............................................................................................271 65J Opportunity for conference to be afforded before certain
powers exercised ...........................................................................271 65K Recommendation after conclusion of conference..........................273 65L Exception in case of danger to public............................................273
65M Conference after goods banned .....................................................274 65N Recommendation after conclusion of conference..........................274 65P Minister to have regard to recommendation of Commission.........275 65Q Power to obtaininformation, documents and evidence.................275 65R Notification of voluntary recall .....................................................279 65S Copies of certain notices to be given to suppliers or
published in certain newspapers....................................................279 65T Certain action not to affect insurance contracts.............................280
Division 2—Conditions and warranties in consumer transactions 281 66 Interpretation.................................................................................281 66A Convention on Contracts for the International Sale of Goods .......281 67 Conflict of laws.............................................................................282 68 Application of provisions not to be excluded or modified.............282 68A Limitation of liability for breach of certain conditions or
warranties ......................................................................................282
68B Limitation of liability in relation to supply of recreational services..........................................................................................284
69 Implied undertakings as to title, encumbrances and quiet
possession......................................................................................285 70 Supply by description....................................................................286 71 Implied undertakings as to qualityor fitness.................................286 72 Supply by sample ..........................................................................287 73 Liability for loss or damage from breach of certain contracts .......288 73A Continuing credit contract.............................................................294 73B Loan contract.................................................................................295 74 Warranties in relation to the supply of services.............................296
Division 2A—Actions against manufacturers and importers of goods 297 74A Interpretation.................................................................................297 74B Actions in respect of unsuitable goods..........................................299 74C Actions in respect of false descriptions .........................................300 74D Actions in respect of goods of unmerchantable quality.................301 74E Actions in respect of non-correspondence with samples etc..........302 74F Actions in respect of failure to provide facilities for repairs
or parts...........................................................................................303 74G Actions in respect of non-compliance with express warranty........305 74H Right of seller to recover against manufacturer orimporter..........306 74J Time for commencing actions.......................................................307 74K Application of Division not to be excluded or modified................308 74L Limitation in certain circumstances of liability of
manufacturer to seller....................................................................309 74M The effect of Part VIB on this Division.........................................309
Division 3—Miscellaneous 310 75 Saving of other laws and remedies................................................310 75A Rescission of contracts ..................................................................310
Part VA—Liability of manufacturers and importers for defective goods 312 75AA Interpretation.................................................................................312 75AB Certain interpretation provisions (importers and others taken to be manufacturers etc.) apply to this Part....................................313 75AC Meaning of goods having defect....................................................313 75AD Liability for defective goods causing injuries—loss by injured individual...........................................................................313 75AE Liability for defective goods causing injuries—loss by person other than injured individual..............................................314 75AF Liability for defective goods—loss relating to other goods...........315 75AG Liabilityfor defective goods—loss relating to buildings etc.........315 75AH Survival of liability actions............................................................316 75AI No liability action where workers’ compensation or law giving effect to an international agreement applies.......................316 75AJ Unidentified manufacturer.............................................................316 75AK Defences........................................................................................316 75AL Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard .........................................................................................317 75AM Liability joint and several..............................................................318 75AN Contributory acts or omissions to reduce compensation................318 75AO Time for commencing actions.......................................................318 75AP Application of provisions not to be excluded or modified.............319 75AQ Representative actions by the Commission ...................................319 75AR Saving of other laws and remedies................................................319 75AS Jurisdiction of courts .....................................................................320
Part VC—Offences 321
Division 1—Application of Part 321 75AZA Part does not apply to financial services........................................321 75AZAAConcurrent operation of State and Territory laws..........................321
Division 2—Offences relating to unfair practices 322 75AZB Interpretation.................................................................................322 75AZC False or misleading representations...............................................322 75AZD False representations and other misleading or offensive
conduct in relation to land.............................................................323 75AZE Misleading conduct in relation to employment..............................325 75AZF Single price to be stated in certain circumstances..........................326 75AZG Offering gifts and prizes................................................................328
75AZH Misleading conduct to which Industrial Property Convention applies ...........................................................................................328 75AZI Certain misleading conduct in relation to services ........................329 75AZJ Bait advertising..............................................................................329 75AZK Referral selling..............................................................................331 75AZL Accepting payment without intending or being able to supply as ordered ......................................................................................331 75AZM Misleading representations about certain business activities.........332 75AZN Harassment and coercion...............................................................333 75AZO Pyramid selling..............................................................................334 75AZP Unsolicited credit and debit cards..................................................334 75AZQ Assertion of right to payment for unsolicited goods or services or for making an entry in a directory ...............................336 75AZR Application of provisions of Division to prescribed information providers....................................................................338
Division 3—Offences relating to product safety and product
information 340 75AZS Product safety standards and unsafe goods....................................340 75AZT Product information standards.......................................................341 75AZU Compliancewithproduct recall notice..........................................342
Part VI—Enforcement and remedies 344 75B Interpretation.................................................................................344 76 Pecuniary penalties—restrictive trade practices etc.......................344 76A Defence to proceedings under section 76 relating to a
contravention of section 95AZN ...................................................347 76B What happens if substantially the same conduct is a
contravention of Part IV or section 95AZN and an offence?.........348 76C Defence to proceedings relating to exclusionary provisions..........349 76E Pecuniary penalties—consumer protection etc..............................350 76F Pecuniary penalties under section 76E and offences .....................352 77 Civil action for recovery of pecuniary penalties............................353 77A Indemnification of officers............................................................354 77B Certain indemnities not authorised and certain documents
void................................................................................................354 77C Application of section 77A to a person other than a body corporate........................................................................................354 78 Criminal proceedings not to be brought for contraventions of Part IV or V...................................................................................355 79 Offences against section 44ZZRF or 44ZZRG or Part VC
etc. .................................................................................................355 79A Enforcement and recovery of certain fines....................................358 79B Preference must be given to compensation for victims..................359 80 Injunctions.....................................................................................360 80AB Stay of injunctions.........................................................................363
80AC Injunctions to prevent mergers if clearance or authorisation
granted on the basis of false or misleading information ................364
81 Divestiture where merger contravenes section 50 or 50A .............365
81A Divestiture where merger done under clearance or
authorisation granted on false etc. information..............................366
82 Actions for damages......................................................................369
83 Finding in proceedings to be evidence ..........................................370
84 Conduct by directors, employees or agents ...................................371
85 Defences........................................................................................373
86 Jurisdiction of courts .....................................................................375
86AA Limit on jurisdiction of Federal Magistrates Court........................376
86A Transfer of matters ........................................................................377
86B Transfer of certain proceedings to Family Court...........................378
86C Non-punitive orders.......................................................................380
86D Punitive orders—adverse publicity................................................382
86DA Commission may issue a public warning notice............................383
86E Order disqualifying a person from managing corporations ...........384
86F Privilege against exposure to penalty—disqualification from
managing corporations ..................................................................385
87 Other orders...................................................................................386
87AAA Orders to redress loss or damage suffered by non-party
consumers etc................................................................................392
87AAB Kinds of orders that may be made to redress loss or damage
suffered by non-party consumers etc.............................................394
87A Power of Court to prohibit payment or transfer of moneys or
other property................................................................................395
87AA Special provision relating to Court’s exercise of powers
under this Part in relation to boycott conduct................................397
87AB Limit on liability for misleading or deceptive conduct..................398
87B Enforcement of undertakings.........................................................399
87C Enforcementof undertakings—Secretary to theDepartment........400
87CA Intervention by Commission..........................................................401
87CAA The effect of Part VIB on this Part................................................401
Part VIA—Proportionate liability for misleading and deceptive conduct 402 87CB Application of Part ........................................................................402 87CC Certain concurrent wrongdoers not to have benefit of apportionment................................................................................402 87CD Proportionate liability for apportionable claims ............................403 87CE Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware..................................................................404 87CF Contribution not recoverable from defendant................................404 87CG Subsequent actions........................................................................405 87CH Joining non-partyconcurrent wrongdoer inthe action..................405
87CI Application of Part ........................................................................405
Part VIB—Claims for damages or compensation for death or personal injury 406
Division 1—Introduction 406 87D Definitions.....................................................................................406 87E Proceedings to which this Part applies ..........................................407
Division 2—Limitation periods 409 87F Basic rule.......................................................................................409 87G Date of discoverability...................................................................410 87H Long-stop period ...........................................................................411 87J The effect of minority or incapacity..............................................412 87K The effect of close relationships....................................................412
Division 3—Limits on personal injury damages for
non-economic loss 413 87L Limits on damages for non-economic loss ....................................413 87M Maximum amount of damages for non-economic loss..................413 87N Index numbers...............................................................................414 87P Most extreme cases........................................................................414 87Q Cases of 33% or more (but not 100%) of a most extreme
case................................................................................................414 87R Cases of 15% or more (but less than 33%) of a most extreme
case................................................................................................415
87S Cases of less than 15% of a most extreme case.............................416
87T Referring to earlier decisions on non-economic loss.....................416
Division 4—Limits on personal injury damages for loss of
earning capacity 417
87U Personal injury damages for loss of earning capacity....................417
87V Average weekly earnings...............................................................417
Division 5—Limits on personal injury damages for gratuitous attendant care services 419 87W Personal injury damages for gratuitous attendant care services for plaintiff.......................................................................419 87X Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant careservices.....................................420
Division 6—Other limits on personal injury damages 422 87Y Damages for future economic loss—discount rate ........................422 87Z Damages for loss of superannuation entitlements..........................422 87ZA Intereston damages.......................................................................423 87ZB Exemplary and aggravated damages..............................................424
Division 7—Structured settlements 425 87ZC Court may make orders under section 87 for structured settlements.....................................................................................425
Part VIC—Infringement notices 426 87ZD Purpose and effect of this Part.......................................................426 87ZE Issue of an infringement notice......................................................426 87ZF Matters to be included in an infringement notice...........................427 87ZG Amount of penalty.........................................................................427 87ZH Effect of compliance with an infringement notice.........................428 87ZI Effect of failure to comply with an infringement notice................429 87ZJ Infringement notice compliance period for infringement
notice .............................................................................................429 87ZK Withdrawal of an infringement notice...........................................430
Part VID—Substantiation notices 432 87ZL Commission may require claims to be substantiated etc................432 87ZM Extending periods for complying with substantiation notices.......433 87ZN Compliance with substantiation notices.........................................434 87ZO False or misleading information etc...............................................434
Part VII—Authorisations, notifications and clearances in respect of restrictive trade practices 435
Division 1—Authorisations (other than section 50 merger
authorisations) 435 87ZP Definitions.....................................................................................435 88 Power of Commission to grant authorisations...............................435 89 Procedure for applications and the keeping of a register...............442 90 Determination of applications for authorisations...........................445 90A Commission to afford opportunity for conference before
determining application for authorisation......................................451 90B Commission may rely on consultations undertaken by the
AEMC ...........................................................................................454 91 Grant and variation of authorisations.............................................455 91A Minor variations of authorizations.................................................457 91B Revocation of an authorization......................................................459 91C Revocation of an authorization and substitution of a
replacement ...................................................................................460
Division 2—Notifications 463
Subdivision A—Exclusive dealing 463 93 Notification of exclusive dealing...................................................463
Subdivision B—Collective bargaining 468 93AA Definitions.....................................................................................468 93AB Notificationof collective bargaining.............................................468
93AC Commission’s objection notice......................................................473 93AD When collective bargaining notice comes into force and
ceases to be in force.......................................................................474
93AE Withdrawal of collective bargaining notice...................................476
93AEA Only 1 collective bargaining notice under subsection
93AB(1A) may be given................................................................477 93AF Only 1 collective bargaining notice under subsection 93AB(1) may be given ..................................................................477
Subdivision C—Conferences 478 93A Commission to afford opportunity for conference before giving notice..................................................................................478
Subdivision D—Register of notifications 480 95 Register of notifications.................................................................480
Division 3—Merger clearances and authorisations 484
Subdivision A—Preliminary 484 95AA Simplified outline of this Division.................................................484 95AB Definitions.....................................................................................485
Subdivision B—Merger clearances 486 95AC Commission may grant clearance for a merger .............................486 95AD Application for clearance...............................................................486 95AE Requirements for valid clearance application................................486 95AF Commission to notify if clearance application is invalid...............487 95AG Application to be published on the internet...................................487 95AH Merger clearance register ..............................................................487 95AI Confidentiality claims etc..............................................................488 95AJ Commission may seek additional information from applicant ......489 95AK Commission may seek further information and consult others......489 95AL Applicant may withdraw application.............................................490 95AM Commission to make determination on application.......................490 95AN When clearancemust not be granted.............................................491 95AO Time limits for determining application........................................491 95AP Clearancesubject to conditions.....................................................491 95AQ When clearance is in force.............................................................492 95AR Minor variations of clearances.......................................................493 95AS Revocation of clearance or revocation of clearance and
substitution of a new clearance......................................................496
Subdivision C—Merger authorisations 500 95AT Tribunal may grant authorisation for a merger..............................500 95AU Application for authorisation.........................................................501 95AV Requirements for valid authorisation application..........................501 95AW Tribunal to notify if authorisation application is invalid................501 95AX Tribunal to notify Commission of authorisation application.........502
95AY Application to be published on the internet...................................502 95AZ Merger authorisation register.........................................................502 95AZA Confidentiality claims etc..............................................................503 95AZC Tribunal may seek additional information from applicant.............504 95AZD Tribunal may seek further information and consult others etc. .................................................................................................504 95AZE Applicant may withdraw application.............................................505 95AZEATribunal must require Commission to give report .........................505 95AZF Commission to assist Tribunal.......................................................505 95AZFACommission may make enquiries...................................................506 95AZG Tribunal to make determination on application.............................506 95AZH When authorisation must not be granted .......................................507 95AZI Time limits for determining application........................................507 95AZJ Authorisation subject to conditions ...............................................508 95AZK When authorisation is in force.......................................................508 95AZL Minor variations of authorisations.................................................508 95AZM Revocation of authorisation or revocation of authorisation and substitution of a new authorisation .........................................512
Subdivision D—Miscellaneous 517 95AZN Providing false or misleading information ....................................517
Part VIIA—Prices surveillance 518
Division 1—Preliminary 518 95A Interpretation.................................................................................518 95B Exempt supplies ............................................................................521 95C Application of Part ........................................................................522 95D Crown to be bound ........................................................................523 95E Object of this Part..........................................................................523 95F Simplified overview of this Part....................................................523
Division 2—Commission’s functions under this Part 525 95G Commission’sfunctions under this Part........................................525
Division 3—Price inquiries 527
Subdivision A—Holding of inquiries 527 95H Price inquiries................................................................................527 95J Content of inquiry notices .............................................................528 95K Period for completing inquiry........................................................529 95L Notice of holding of inquiry..........................................................529 95M Notice of extension of period for completing inquiry....................530 95N Price restrictions............................................................................530
Subdivision B—Reports on inquiries 533 95P Copies of report to be made available ...........................................533 95Q Notification of proposed prices after receipt of report...................533
Subdivision C—Procedure at inquiries 534 95R Public inquiries etc........................................................................534 95S Taking of evidence on oath or affirmation ....................................535 95T Failure of witness to attend............................................................536 95U Refusal to be sworn or to answer question ....................................536 95V Protectionof witnesses..................................................................537 95W Allowances to witnesses................................................................537
Division 4—Price notifications 538 95X DeclarationsbyMinister orCommission......................................538 95Y Declarations in relation to State or Territory authorities................538 95Z Price restrictions............................................................................540 95ZA Later notices modifying a locality notice.......................................542 95ZB Applicable period in relation to a locality notice...........................543 95ZC Register of price notifications........................................................544 95ZD Delegation by Commission ...........................................................545
Division 5—Price monitoring 546 95ZE Directions to monitor prices, costs and profits of an industry........546 95ZF Directions to monitor prices, costs and profits of a business.........546 95ZG Exceptions to price monitoring......................................................547
Division 6—Other provisions 548 95ZH Ministerial directions.....................................................................548 95ZI Inquiries by an unincorporated body or a group of 2 or more
individuals .....................................................................................548 95ZJ Withdrawal of notices....................................................................549 95ZK Power to obtain information or documents....................................549 95ZL Inspectionof documentsetc..........................................................552 95ZM Retention of documents.................................................................552 95ZN Confidentialinformation...............................................................553 95ZO Immunity.......................................................................................554 95ZP Secrecy: members or staff members of the Commission etc. ........554 95ZQ Secrecy: persons involved in inquiries by bodies other than
the Commission.............................................................................556
Part VIII—Resale price maintenance 558 96 Acts constituting engaging in resale price maintenance ................558 96A Resale price maintenance in relation to services............................560 97 Recommended prices.....................................................................560 98 Withholding the supply of goods...................................................561 99 Statements as to the minimum price of goods ...............................562 100 Evidentiary provisions...................................................................562
Part IX—Review by Tribunal of Determinations of Commission 564
Division 1—Applications for review (other than for merger clearances) 564 101 Applications for review.................................................................564 101A Application for review of notice under subsection 93(3) or (3A) or 93AC(1) or (2)..................................................................565 102 Functions and powers of Tribunal.................................................565
Division 2—Procedure and Evidence 570 102A Definition ......................................................................................570 103 Procedure generally.......................................................................570 104 Regulations as tocertain matters...................................................570 105 Power to take evidence on oath.....................................................571 106 Hearings to be in publicexcept in special circumstances..............571 107 Evidence in form of written statement...........................................572 108 Taking of evidence by single member...........................................572 109 Participants in proceedings beforeTribunal..................................572 110 Representation...............................................................................572
Division 3—Review of Commission’s determinations on merger clearances 574 111 Applications for review.................................................................574 112 Tribunal to notify Commission......................................................575 113 Commission to give material to Tribunal ......................................575 114 Tribunal may consult etc. to clarify information ...........................575 115 Commission to assist Tribunal.......................................................576 116 Tribunal only to consider material before the Commission...........576 117 Tribunal to make decision on review.............................................576 118 Time limits for making review decision........................................576 119 Tribunal’s decision taken to be Commission’s..............................577
An Act relating to certain Trade Practices
1 Short title [see Note 1]
This Act may be cited as the Trade Practices Act 1974.
2 Object of this Act
The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.
2A Application of Act to Commonwealth and Commonwealth authorities
were a corporation.
(3) Nothing in this Act makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence.
(3A) The protection in subsection (3) does not apply to an authority of the Commonwealth.
(4) Part IV does not apply in relation to the business carried on by the Commonwealth in developing, and disposing of interests in, land in the Australian Capital Territory.
2B Application of Act to States and Territories
2BA Application of Part IV to local government bodies
local government body means a body established by or under a law of a State or Territory for the purposes of local government, other than a body established solely or primarily for the purposes of providing a particular service, such as the supply of electricity or water.
2C Activities that are not business
Trade Practices Act 1974
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:
(4) For the purposes of this section, an authority of the Commonwealth or an authority of a State or Territory is non-commercial if:
3 Repeal
The Restrictive Trade Practices Act 1971 and the Restrictive Trade Practices Act 1972 are repealed.
4 Interpretation
(1) In this Act, unless the contrary intention appears:
acquire includes:
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.
Trade Practices Act 1974
arrive at, in relation to an understanding, includes reach or enter into.
authorisation means:
authority, in relation to a State or Territory (including an external Territory), means:
authority of the Commonwealth means:
banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959.
business includes a business not carried on for profit.
cartel provision has the meaning given by section 44ZZRD.
Chairperson means the Chairperson of the Commission.
clearance means a clearance under Division 3 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission.
commencing date means 1 October 1974.
Commission means the Australian Competition and Consumer Commission established by section 6A, and includes a member of the Commission or a Division of the Commission performing functions of the Commission.
competition includes competition from imported goods or from services rendered by persons not resident or not carrying on business in Australia.
Competition Principles Agreement means the Competition Principles Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time.
Conduct Code Agreement means the Conduct Code Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time.
corporation means a body corporate that:
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.
Trade Practices Act 1974
debenture includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a body corporate, whether constituting a charge on property of the body corporate or not.
Deputy Chairperson means a Deputy Chairperson of the Commission.
Deputy President means a Deputy President of the Tribunal, and includes a person appointed to act as a Deputy President of the Tribunal.
Deputy Registrar means a Deputy Registrar of the Tribunal.
designated Commonwealth energy law means:
document includes:
dual listed company arrangement has the same meaning as in section 125-60 of the Income Tax Assessment Act 1997.
enforcement proceeding means:
Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).
financial corporation means a financial corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that carries on as its sole or principal business the business of banking (other than State banking not extending beyond the limits of the State concerned) or insurance (other than State insurance not extending beyond the limits of the State concerned).
financial product has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001.
financial service has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001.
foreign corporation means a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that is incorporated in an external Territory.
fully-participating jurisdiction means a State or Territory that:
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:
infringement notice means an infringement notice issued under section 87ZE.
infringement notice compliance period has the meaning given by section 87ZJ.
infringement notice provision means:
Trade Practices Act 1974
member of the Commission includes the Chairperson and a person appointed to act as a member of the Commission but does not include an associate member of the Commission.
member of the Tribunal includes the President and a person appointed to act as a member of the Tribunal.
New Zealand Commerce Commission means the Commission established by section 8 of the Commerce Act 1986 of New Zealand.
New Zealand Crown corporation means a body corporate that is an instrument of the Crown in respect of the Government of New Zealand.
non-party consumer, in relation to conduct, means a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct.
organisation of employees means an organisation that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment.
personal injury has (except in section 68B) a meaning affected by section 4KA.
practice of exclusive dealing means the practice of exclusive dealing referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9).
practice of resale price maintenance means the practice of resale price maintenance referred to in Part VIII.
President means the President of the Tribunal and includes a person appointed to act as President of the Tribunal.
presidential member or presidential member of the Tribunal means the President or a Deputy President.
price includes a charge of any description.
provision, in relation to an understanding, means any matter forming part of the understanding.
Registrar means the Registrar of the Tribunal.
require, in relation to the giving of a covenant, means require or demand the giving of a covenant, whether by way of making a contract containing the covenant or otherwise, and whether or not a covenant is given in pursuance of the requirement or demand.
send includes deliver, and sent and sender have corresponding meanings.
services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:
but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.
share includes stock.
South Australian Electricity Legislation means:
Part 4 of that Act. The reference in paragraph (a) to the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.
South Australian Gas Legislation means:
Part 3 of that Act. The reference in paragraph (a) to the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.
State/Territory AER member means an AER member referred to in section 44AP.
State/Territory energy law means any of the following laws:
paragraph; being those provisions as in force from time to time.
substantiation notice means a notice under section 87ZL.
substantiation notice compliance period has the meaning given by subsection 87ZN(2).
supply, when used as a verb, includes:
and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.
Territory means:
the Court or the Federal Court means the Federal Court of Australia.
the Family Court means the Family Court of Australia.
trade or commerce means trade or commerce within Australia or between Australia and places outside Australia.
trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution.
Tribunal means the Australian Competition Tribunal, and includes a member of that Tribunal or a Division of that Tribunal performing functions of that Tribunal.
uniform energy law means:
subparagraph; being those provisions as in force from time to time.
unsolicited goods means goods sent to a person without any request made by him or her or on his or her behalf.
unsolicited services means services supplied to a person without any request made by him or her or on his or her behalf.
Western Australian Gas Legislation means:
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.
the contract or the covenant has or is likely to have that effect notwithstanding that:
(4) In this Act:
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:
corporate’s subsidiary by another application or other applications of this paragraph).
shall be treated as held or exercisable by that other body corporate;
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.
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:
(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:
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:
(2) For the purposes of subsection (1):
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;
4C Acquisition, supply and re-supply
In this Act, unless the contrary intention appears:
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:
by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.
(2) A person shall be deemed to be competitive with another person for the purposes of subsection (1) if, and only if, the first-mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates.
4E Market
For the purposes of this Act, unless the contrary intention appears, market means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first-mentioned goods or services.
4F References to purpose or reason
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;
4J Joint ventures
In this Act:
4K Loss or damage to include injury
In this Act:
4KA Personal injury
In this Act (except in section 68B):
personal injury includes:
but does not include an impairment of a person’s mental condition unless the impairment consists of a recognised psychiatric illness.
4L Severability
If the making of a contract after the commencement of this section contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 87, 87AAA or 87A, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision is severable.
4M Saving of law relating to restraint of trade and breaches of confidence
This Act does not affect the operation of:
but nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Act.
4N Extended application of Part IIIA
that is on the landward side of each of the offshore areas referred to in that subsection.
(4) For the purposes of this section:
service includes proposed service covered by Division 2A of
Part IIIA.
5 Extended application of Parts IV, IVA, V, VC etc.
(1) Each of the following provisions:
extends to the engaging in conduct outside Australia by:
(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:
6 Extended application of Parts IV, IVA, IVB, V, VA and VC
60, subsections 64(3) and (4), Division 1AAA of Part V, sections 75A, 75AZE, 75AZN, 75AZO, subsections 75AZQ(4) to (7) (inclusive) and Part VIII were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:
(iii) trade or commerce within a Territory, between a State and a Territory or between two Territories; or
(iv) the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; and
(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
(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:
“; 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
to a corporation included a reference to a person not being a
corporation. For the purposes of this subsection, likely and production have the same meaning as in Division 1 of Part IV.
(2D) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:
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:
to a corporation included a reference to a person not being a corporation.
“(a) the supplier had died or is an undischarged bankrupt or a person whose affairs are being dealt with under Part X of the Bankruptcy Act 1966; or”.
(5A) Despite anything in section 44ZZRF or 44ZZRG, if a body corporate other than a corporation is convicted of an offence against that section (as that section applies because of this section), the offence is taken to be punishable on conviction as if the body
corporate were a corporation.
(5B) Despite anything in section 44ZZRF or 44ZZRG, if a person other than a body corporate is convicted of an offence against that section (as that section applies because of this section), the offence is taken to be punishable on conviction by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both.
(6) Despite anything in Part VC, if a person other than a corporation is convicted of an offence against a provision of that Part, being a provision that applies in relation to the person as provided by this section, the offence is taken to be punishable on conviction by a fine not exceeding 2,000 penalty units.
6AA Application of the Criminal Code
(1) Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) Despite subsection (1), Part 2.5 of the Criminal Code does not apply to an offence against Part IIIA, VC or XIC, Division 7 of Part XIB, or section 44ZZRF or 44ZZRG.
6A Establishment of Commission
7 Constitution of Commission
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.
8 Terms and conditions of appointment
(1) Subject to this Part, a member of the Commission holds office for such period, not exceeding 5 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor-General determines, but is eligible for re-appointment.
8A Associate members
(1) The Minister may appoint persons to be associate members of the Commission.
(1A) If there is at least one fully-participating jurisdiction, the Minister must not appoint a person as an associate member unless the Minister is satisfied that a majority of such jurisdictions support the appointment.
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.
9 Remuneration
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.
11 Acting Chairperson
(1) Where there is, or is expected to be, a vacancy in the office of Chairperson, the Governor-General may appoint a person to act as Chairperson until the filling of the vacancy.
(1A) A person appointed under subsection (1) to act during a vacancy shall not continue so to act for more than 12 months.
12 Leave of absence
13 Termination of appointment of members of the Commission
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
the Minister shall terminate the appointment of that associate member of the Commission.
15 Resignation
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
18 Meetings of Commission
19 Chairperson may direct Commission to sit in Divisions
25 Delegation by Commission
(1) The Commission may, by resolution, delegate to a member of the Commission, either generally or otherwise as provided by the instrument of delegation, any of its powers under this Act (other than Part VIIA or section 152ELA), Procedural Rules under Part XIC, the Telecommunications Act 1997, the Telecommunications (Consumer Protection and Service Standards) Act 1999, the Water Act 2007, Rules of Conduct under Part 20 of the Telecommunications Act 1997 or the Australian Postal Corporation Act 1989, other than this power of delegation and its powers to grant, revoke or vary an authorization or a clearance.
Note: Section 95ZD allows the Commission to delegate certain powers under Part VIIA to a member of the Commission.
26 Delegation by Commission in relation to unconscionable conduct and consumer protection
27 Staff of Commission
27A Consultants
28 Functions of Commission in relation to dissemination of information, law reform and research
(1) In addition to any other functions conferred on the Commission, the Commission has the following functions:
(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;
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:
(1B) The Commission must comply with a direction.
29A Establishment of Council
The National Competition Council is established by this section.
29B Functions and powers of Council
(2A) The Council must not, under subsection (2):
unless the conferral of the function or power is in accordance with the Competition Principles Agreement.
(2B) Subsection (2) does not apply to a State/Territory energy law.
Note: Section 29BA provides that a State/Territory energy law may confer functions or powers, or impose duties, on the Council.
(3) In performing its functions, the Council may co-operate with a department, body or authority of the Commonwealth, of a State or of a Territory.
29BA Commonwealth consent to conferral of functions etc. on Council
(1) A State/Territory energy law may confer functions or powers, or impose duties, on the Council for the purposes of that law.
Note: Section 29BC sets out when such a law imposes a duty on the Council.
29BB How duty is imposed
Application
(1) This section applies if a State/Territory energy law purports to impose a duty on the Council.
Note: Section 29BC sets out when such a law imposes a duty on the Council.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:
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
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:
29C Membership of Council
29D Terms and conditions of office
29E Acting Council President
29F Remuneration of Councillors
29G Leave of absence
29H Termination of appointment of Councillors
29I Resignation of Councillors
A Councillor may resign by giving the Governor-General a signed resignation notice.
29J Arrangement of Council business
29K Disclosure of interests by Councillors
29L Council meetings
29M Staff to help Council
29N Consultants
29O Annual report
29P Definition
In this Part, unless the contrary intention appears:
proceedings includes:
30 Constitution of Tribunal
31 Qualifications of members of Tribunal
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
34 Acting appointments
(1) Where:
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.
35 Suspension and removal of members of Tribunal
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
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
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
43 Member of Tribunal ceasing to be available
43A Counsel assisting Tribunal
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
44A Acting appointments
Section 44AB
44AB Definitions
In this Part, unless the contrary intention appears:
Australian Energy Market Agreement means the agreement, as amended from time to time:
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:
Section 44AD
(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.
Section 44AE
44AE Establishment of the AER
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:
Section 44AH
44AH Commonwealth functions
The AER has any functions:
Note: The AER may have functions under the Australian Energy Market Act 2004.
44AI Commonwealth consent to conferral of functions etc. on AER
(1) A State/Territory energy law may confer functions or powers, or impose duties, on the AER for the purposes of that law.
Note: Section 44AK sets out when such a law imposes a duty on the AER.
44AJ How duty is imposed
Application
(1) This section applies if a State/Territory energy law purports to impose a duty on the AER.
Note: Section 44AK sets out when such a law imposes a duty on the AER.
Section 44AK
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:
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 44AI to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
44AK When a State/Territory energy law imposes a duty
For the purposes of sections 44AI and 44AJ, a State/Territory energy law imposes a duty on the AER if:
(a) the law confers a function or power on the AER; and
Section 44AL
(b) the circumstances in which the function or power is conferred give rise to an obligation on the AER to perform the function or to exercise the power.
44AL Powers of the AER
The AER has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
Note: State and Territory laws may also confer powers on the AER in respect of its functions under those laws: see section 44AI.
Section 44AM
44AM Appointment of Commonwealth AER member
44AN Membership of AER and Commission
Member taken to be full-time member of both AER and Commission
Paid employment
Section 44AO
44AO Acting appointment of Commonwealth AER member
(1) The Chairperson may appoint a member of the Commission to act as the Commonwealth AER member:
Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.
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.
Section 44AQ
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:
Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.
(2) A person is not eligible for appointment to act as a State/Territory AER member unless the person, being a person who has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration, has been nominated for appointment in accordance with the Australian Energy Market Agreement.
44AR AER Chair
Note: A person may cease to be the AER Chair without ceasing to be an AER member.
Section 44AS
44AS Acting AER Chair
(1) The Minister may appoint an AER member to act as the AER Chair:
Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.
44AT Remuneration of AER members
Note: The Commonwealth AER member is paid as a member of the Commission.
Section 44AU
44AU Additional remuneration of AER Chair
44AV Leave of absence
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
Section 44AY
44AY Disclosure of interests
44AZ Resignation
44AAB Termination of appointment
All AER members
(1) The Governor-General may terminate the appointment of an AER member:
Section 44AAC
Additional grounds: full-time AER members
(2) The Governor-General may terminate the appointment of a full-time AER member if:
Additional grounds: part-time AER members
(3) The Governor-General may terminate the appointment of a part-time AER member if:
44AAC Staff etc. to assist the AER
The Chairperson must make available:
44AAD Meetings
(1) The AER Chair must convene such meetings of the AER as he or she thinks necessary for the efficient performance of the functions of the AER.
Note: See also section 33B of the Acts Interpretation Act 1901, which contains extra rules about meetings by telephone etc.
(2) Meetings of the AER must be held at such places as the AER Chair determines.
Section 44AAE
44AAE Resolutions without meetings
44AAEA Arbitration
44AAF Confidentiality
(1) The AER must take all reasonable measures to protect from unauthorised use or disclosure information:
Note: The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information.
(2) For the purposes of subsection (1), the disclosure of information as required or permitted by a law of the Commonwealth, a State or Territory, is taken to be authorised use and disclosure of the information.
Authorised use
(3) Disclosing information to one of the following is authorised use and disclosure of the information:
Section 44AAG
the person by way of assisting a delegate of the AER; is taken to be authorised use and disclosure of the information.
44AAG Federal Court may make certain orders
(a) an order that the person pay a civil penalty determined in accordance with the law; Section 44AAGA
(3) If a person has engaged, is engaging or is proposing to engage in any conduct in breach of:
the Federal Court may, on application by the AER on behalf of the Commonwealth, grant an injunction:
(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:
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
Section 44AAH
Commonwealth, directing that a Registered participant’s loads be disconnected.
(2) In this section:
National Electricity Law means:
National Electricity Rules means:
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:
State/Territory energy law; to an AER member or to an SES employee, or acting SES employee, assisting the AER as mentioned in section 44AAC.
Note 1: Section 17AA of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee.
Section 44AAI
Note 2: See also sections 34AA to 34A of the Acts Interpretation Act 1901, which contain extra rules about delegations.
44AAI Fees
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
Section 44AAK
(3) In this section:
matters of a transitional nature also includes matters of an application or saving nature.
Section 44AA
44AA Objects of Part
The objects of this Part are to:
44B Definitions
In this Part, unless the contrary intention appears:
access code means a code referred to in section 44ZZAA.
access code application means:
access code decision means:
access undertaking means an undertaking under section 44ZZA.
Section 44B
access undertaking application means:
access undertaking decision means:
Commonwealth Minister means the Minister.
constitutional trade or commerce means any of the following:
declaration means a declaration made by the designated Minister under Division 2.
declaration recommendation means a recommendation made by the Council under section 44F.
declared service means a service for which a declaration is in operation.
designated Minister has the meaning given by section 44D.
determination means a determination made by the Commission under Division 3.
director has the same meaning as in the Corporations Act 2001.
entity means a person, partnership or joint venture.
Section 44B
final determination means a determination other than an interim determination.
interim determination means a determination that is expressed to be an interim determination.
modifications includes additions, omissions and substitutions.
National Gas Law means:
officer has the same meaning as in the Corporations Act 2001.
party means:
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:
Section 44C
revocation recommendation means a recommendation made by the Council under section 44J.
service means a service provided by means of a facility and includes:
except to the extent that it is an integral but subsidiary part of the service.
State or Territory access regime law means:
State or Territory body means:
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
reference to any person responsible for the day-to-day management and control of the provider.
(6) If:
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
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.
Section 44DA
44DA The principles in the Competition Principles Agreement have status as guidelines
(1) For the avoidance of doubt:
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
Section 44F
44F Person may request recommendation
Note 1: There are target time limits that apply to the Council’s recommendation: see section 44GA.
Note 2: The Council may invite public submissions on the application: see section 44GB.
Note 3: The Council must publish its recommendation: see section 44GC.
Section 44G
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).
(a) must, subject to subsection (5), apply the relevant principles
set out in that agreement; and (aa) must have regard to the objects of this Part; and
(b) must, subject to section 44DA, not consider any other matters.
Section 44GA
(4) If there is in force a decision of the Commonwealth Minister under section 44N that a regime established by a State or Territory for access to the service is an effective access regime, the Council must follow that decision, unless the Council believes that, since the Commonwealth Minister’s decision was published, there have been substantial modifications of the access regime or of the relevant principles set out in the Competition Principles Agreement.
Note: The period for which a decision is in force is determined under subsection 44N(3) and paragraph 44P(a).
44GA Target time limits on Council recommendation
(1) The Council must use its best endeavours to make a recommendation on an application under section 44F within:
Extensions
Section 44GB
Multiple extensions
(4) The Council may extend the standard period more than once.
Publication
(5) If the Council extends the standard period, it must publish a notice in a national newspaper:
44GB Council may invite public submissions on the application
Invitation
Council to consider any submission
(3) Subject to subsection (6), the Council must have regard to any submission so made in deciding what recommendation to make on the application.
Council may make submissions publicly available
(4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.
Confidentiality
(5) A person may, at the time of making a submission, request that the Council:
submission under section 44GC; because of the confidential commercial information contained in the submission.
(6) If the Council refuses such a request:
(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
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.
Section 44H
Consultation
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.
(3A) While a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and Section 44H
operation of a facility, as a competitive tender process, the designated Minister cannot declare any service provided by means of the facility that was specified under paragraph 44PA(2)(a).
(a) must, subject to subsection (6A), apply the relevant
principles set out in that agreement; and (aa) must have regard to the objects of this Part; and
(b) must, subject to section 44DA, not consider any other matters.
(6) If there is in force a decision of the Commonwealth Minister under section 44N that a regime established by a State or Territory for access to the service is an effective access regime, the designated Minister must follow that decision, unless the designated Minister believes that, since the Commonwealth Minister’s decision was published, there have been substantial modifications of the access regime or of the relevant principles set out in the Competition Principles Agreement.
Section 44HA
Note: The period for which a decision is in force is determined under subsection 44N(3) and paragraph 44P(a).
(6A) In deciding whether a regime is an effective access regime, the designated Minister must disregard Chapter 5 of a National Gas Law.
(6B) The designated Minister cannot declare a service provided by means of a pipeline (within the meaning of a National Gas Law) if:
44HA Designated Minister must publish his or her decision
Consultation
(3) Before publishing under subsection (1), the designated Minister may give any one or more of the following persons:
appropriate; a notice in writing:
(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
44J Revocation of declaration
Section 44JA
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.
Note: There are target time limits that apply to the designated Minister’s decision: see section 44JA.
(3A) The designated Minister must have regard to the objects of this Part in making his or her decision.
44JA Target time limits on designated Minister’s revocation decision
(1) The designated Minister must use his or her best endeavours to make a decision on a recommendation under section 44J within:
Extensions
Section 44K
Multiple extensions
(4) The designated Minister may extend the standard period more than once.
Publication
(5) If the designated Minister extends the standard period, he or she must publish a notice in a national newspaper:
44K Review of declaration
Note: There are target time limits that apply to the Tribunal’s decision on the review: see section 44ZZOA.
(a) affirm the designated Minister’s decision; or
Section 44L
(b) set aside the designated Minister’s decision and declare the service in question.
(9) A declaration, or varied declaration, made by the Tribunal is to be taken to be a declaration by the designated Minister for all purposes of this Part (except this section).
44L Review of decision not to revoke a declaration
Note: There are target time limits that apply to the Tribunal’s decision on the review: see section 44ZZOA.
Section 44M
44M Recommendation for a Ministerial decision on effectiveness of access regime
Note 1: There are target time limits that apply to the Council’s recommendation: see section 44NC.
Note 2: The Council may invite public submissions on the application: see section 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.
(4A) In deciding what recommendation it should make, the Council must disregard Chapter 5 of a National Gas Law.
Section 44N
(5) When the Council recommends that the Commonwealth Minister make a particular decision, the Council must also recommend the period for which the decision should be in force.
44N Ministerial decision on effectiveness of access regime
(1) On receiving a recommendation under section 44M, the Commonwealth Minister must:
Note 1: There are target time limits that apply to the Commonwealth Minister’s decision: see section 44ND.
Note 2: 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.
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
Section 44NB
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
Note 1: There are target time limits that apply to the Council’s recommendation: see section 44NC.
Note 2: The Council may invite public submissions on the application: see section 44NE.
Note 3: The Council must publish its recommendation: see section 44NF.
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).
Section 44NC
Note 1: There are target time limits that apply to the Commonwealth Minister’s decision: see section 44ND.
Note 2: The Commonwealth Minister must publish his or her decision: see section 44NG.
Multiple extensions
(4) The Commonwealth Minister may extend the period for which a decision is in force under section 44N more than once.
44NC Target time limits—Council
(1) The Council must use its best endeavours to make a recommendation on an application under section 44M or 44NA within:
Extensions
Multiple extensions
Section 44ND
Publication
(5) If the Council extends the standard period, it must publish a notice in a national newspaper:
44ND Target time limits—Commonwealth Minister
(1) The Commonwealth Minister must use his or her best endeavours to make a decision on a recommendation under section 44M or 44NA within:
Extensions
Multiple extensions
(4) The Commonwealth Minister may extend the standard period more than once.
Publication
(5) If the Commonwealth Minister extends the standard period, he or she must publish a notice in a national newspaper:
Section 44NE
44NE Council may invite public submissions
Invitation
Council to consider any submission
(3) Subject to subsection (6), the Council must have regard to any submission so made in deciding what recommendation to make on the application.
Council may make submissions publicly available
(4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.
Confidentiality
(5) A person may, at the time of making a submission, request that the Council:
submission under section 44NF; because of the confidential commercial information contained in the submission.
(6) If the Council refuses such a request:
(iii) have regard to the whole or the part of the submission in making its recommendation on the application.
44NF Publication—Council
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:
Section 44NG
(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.
44NG Publication—Commonwealth Minister
Consultation
44O Review of Ministerial decision on effectiveness of access regime
(1) The responsible Minister of the State or Territory:
may apply to the Tribunal for review of the Commonwealth Minister’s decision.
Note: There are target time limits that apply to the Tribunal’s decision on the review: see section 44ZZOA.
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:
Section 44PA
44PA Approval of competitive tender process
Application to Commission
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 target time limits that apply to the Commission’s decision: see section 44PD.
Note 3: The Commission may invite public submissions on the application: see section 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:
Section 44PB
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.
Legislative Instruments Act
(7) A notice under subsection (3) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
44PB Report on conduct of tender process
Report
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.
Legislative Instruments Act
(4) A report under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
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 Section 44PC
the assessment of the tenders was not in accordance with that process.
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:
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.
Mandatory revocation
(5) If:
Section 44PD
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 Target time limits for Commission decisions
(1) The Commission must use its best endeavours to make a decision on an application under subsection 44PA(1) within:
Extensions
Multiple extensions
(4) The Commission may extend the standard period more than once.
Publication
(5) If the Commission extends the standard period, it must publish a notice in a national newspaper:
Section 44PE
44PE Commission may invite public submissions
Invitation
(1) The Commission may publish, by electronic or other means, a notice inviting public submissions:
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).
Commission to consider any submission
(3) Subject to subsection (6), the Commission must have regard to any submission so made in making its decision.
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:
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 Section 44PF
(iii) have regard to the whole or the part of the submission in making its decision.
44PF Commission must publish its decisions
service. It may also give a copy to any other person the Commission considers appropriate.
Consultation
(3) Before publishing under subsection (1), the Commission may give the following persons:
service; a notice in writing:
Section 44PG
(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
Review
(3) The review by the Tribunal is a reconsideration of the matter.
Note: There are target time limits that apply to the Tribunal’s decision on the review: see section 44ZZOA.
Tribunal’s decision
Section 44PH
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 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
Review
(3) The review by the Tribunal is a reconsideration of the matter.
Note: There are target time limits that apply to the Tribunal’s decision on the review: see section 44ZZOA.
Tribunal’s decision
(6) The Tribunal must, by writing, affirm or set aside the Commission’s decision.
Section 44Q
44Q Register of decisions and declarations
The Commission must maintain a public register that includes:
(a) each decision of the Commonwealth Minister that a regime established by a State or Territory for access to a service is an effective access regime for the service or proposed service; and
(aa) each decision of the Commonwealth Minister to extend the period for which a decision under section 44N is in force; and
Section 44R
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:
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:
44T Withdrawal of notifications
(1) A notification may be withdrawn as follows (and not otherwise):
(a) if the provider notified the dispute: Section 44U
(b) if the third party notified the dispute, the third party may withdraw the notification at any time before the Commission makes its determination.
44U Parties to the arbitration
The parties to the arbitration of an access dispute are:
44V Determination by Commission
(1) Unless it terminates the arbitration under section 44Y or 44ZZCB, the Commission:
Note 1: There are target 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 Section 44W
for notification of the dispute. By way of example, the determination may:
(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.
44W Restrictions on access determinations
(1) The Commission must not make a determination that would have any of the following effects:
Section 44W
Note: Without infringing paragraph (1)(b), a determination may deprive a second person of the right to be supplied with an amount of service equal to the difference between the total amount of service the person was entitled to under a pre-notification right and the amount that the person actually needs to meet his or her actual requirements.
(5) In this section:
existing user means a person (including the provider) who was using the service at the time when the dispute was notified.
pre-notification right means a right under a contract, or under a determination, that was in force at the time when the dispute was notified.
protected contractual right means a right under a contract that was in force at the beginning of 30 March 1995.
Section 44X
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;
(ea) the value to the provider of interconnections to the facility whose cost is borne by someone else;
(2) The Commission may take into account any other matters that it thinks are relevant.
Interim determinations
44XA Target time limits for Commission’s final determination
(1) The Commission must use its best endeavours to make a final determination within:
Section 44Y
Extensions
Multiple extensions
(4) The Commission may extend the standard period more than once.
Publication
(5) If the Commission extends the standard period, it must publish a notice in a national newspaper:
44Y Commission may terminate arbitration in certain cases
Section 44Z
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
44ZB Reconstitution of Commission
Section 44ZC
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:
44ZD Hearing to be in private
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:
Section 44ZG
44ZG Particular powers of Commission
Section 44ZH
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
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:
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:
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:
person; because that other person:
Penalty: Imprisonment for 12 months.
44ZL Party may request Commission to treat material as confidential
(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 Section 44ZM
(b) ask the other party or parties whether there is any objection to the Commission complying with the request.
the request; the Commission may decide not to give to the other party or parties a copy of so much of the document as contains confidential commercial information that the Commission thinks should not be so given.
44ZM Sections 18 and 19 do not apply to the Commission in an arbitration
Sections 18 and 19 do not apply to the Commission, as constituted for an arbitration.
44ZN Parties to pay costs of an arbitration
The regulations may provide for the Commission to:
44ZNA Joint arbitration hearings
Joint arbitration hearing
(1) If:
the Chairperson may, by notice in writing, decide that the Commission must hold a joint arbitration hearing in respect of such Section 44ZNA
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
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.
Section 44ZNB
Legislative Instruments Act
(9) The following are not legislative instruments for the purposes of the Legislative Instruments Act 2003:
44ZNB Arbitration reports
Report must include certain matters
(3) The report must set out the following matters:
Note: Confidentiality issues are dealt with in subsections (5) to (7).
Section 44ZNB
Report may include other matters
(4) The report may include any other matter that the Commission considers relevant.
Confidentiality
Legislative Instruments Act
(8) A report prepared under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Section 44ZO
44ZO Operation of final determinations
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:
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.
Section 44ZOA
Interest
(6) If:
party) to pay money to another party; 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:
Guidelines
44ZOA Effect and duration of interim determinations
Note: A backdated final determination may prevail over an interim determination: see subsection 44ZO(5).
Section 44ZP
(c) an interim determination made by the Tribunal (while reviewing a final determination relating to the access dispute) takes effect.
44ZP Review by Tribunal
Note: There are target time limits that apply to the Tribunal’s decision on the review: see section 44ZZOA.
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.
Section 44ZR
44ZR Appeals to Federal Court from determinations of the Tribunal
44ZS Operation and implementation of a determination that is subject to appeal
Section 44ZT
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)):
44ZT Transmission of documents
If an appeal is instituted in the Federal Court:
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:
Section 44ZUA
44ZUA Variation and revocation of interim determinations
Section 44ZV
44ZV Constitutional limits on operation of this Division
This Division does not apply to a contract unless:
(iii) the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.
44ZW Registration of contract
take into account: (aa) the objects of this Part; and
Section 44ZX
(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.
44ZX Review of decision not to register contract
Note: There are target time limits that apply to the Tribunal’s decision on the review: see section 44ZZOA.
44ZY Effect of registration of contract
The parties to a contract that has been registered:
Section 44ZZ
44ZZ Prohibition on hindering access to declared services
Section 44ZZA
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:
(aa) the objects of this Part; (ab) the pricing principles specified in section 44ZZCA;
(da) whether the undertaking is in accordance with an access code that applies to the service;
(e) any other matters that the Commission thinks are relevant.
Section 44ZZAA
Note: 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.
(3A) The Commission must not accept the undertaking unless:
(6) If the undertaking provides for disputes about the undertaking to be resolved by the Commission, then the Commission may resolve the disputes in accordance with the undertaking.
(6A) If the undertaking provides for the Commission to perform functions or exercise powers in relation to the undertaking, the Commission may perform those functions and exercise those powers. If the Commission decides to do so, it must do so in accordance with the undertaking.
(7) The provider may withdraw or vary the undertaking at any time, but only with the consent of the Commission. 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 target time limits that apply to a decision of the Commission under this section: see section 44ZZBC.
Note 2: The Commission may invite public submissions in relation to its decision: see section 44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
44ZZAA Access codes prepared by industry bodies
(aa) the objects of this Part; (ab) the pricing principles specified in section 44ZZCA;
(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 withdraw or vary the code at any time, 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.
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 target time limits that apply to a decision of the Commission under this section: see section 44ZZBC.
Section 44ZZAB
Note 2: The Commission may invite public submissions in relation to its decision: see section 44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
44ZZAB Commission may rely on industry body consultations
code has the same meaning as it has in section 44ZZAA.
industry body has the same meaning as it has in section 44ZZAA.
Section 44ZZBA
44ZZBA When access undertakings and access codes come into operation
Acceptance of access undertakings or access codes
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
Section 44ZZBB
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.
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.
Section 44ZZBC
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 target time limits that apply to a decision of the Commission under this section: see section 44ZZBC.
Note 2: The Commission may invite public submissions in relation to its decision: see section 44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
44ZZBC Target time limits for Commission decisions
(1) The Commission must use its best endeavours to make a decision on an access undertaking application or an access code application within:
Extensions
Multiple extensions
Publication
(5) If the Commission extends the standard period, it must publish a notice in a national newspaper:
(a) stating that it has done so; and Section 44ZZBD
(b) specifying the day by which it must now use its best endeavours to make a decision on the access undertaking application or access code application.
44ZZBD Commission may invite public submissions
Invitation
Commission to consider any submission
(3) Subject to subsection (6), the Commission must have regard to any submission so made in deciding what decision to make on the application.
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:
submission under section 44ZZBE; because of the confidential commercial information contained in the submission.
Section 44ZZBE
(6) If the Commission refuses such a request:
(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
Consultation
(3) Before publishing under subsection (1), the Commission may give any one or more of the following persons:
Section 44ZZBF
a notice in writing:
(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.
44ZZBF Review of decisions
Application
Review
(3) The review by the Tribunal is a reconsideration of the matter.
Note: There are target time limits that apply to the Tribunal’s decision on the review: see section 44ZZOA.
Tribunal’s decision
(6) If the Commission:
(a) accepted an access undertaking or access code; or
Section 44ZZC
access code is in operation; the Tribunal must, by writing, affirm or set aside the Commission’s decision.
(7) If the Commission:
or access code is in operation; the Tribunal must, by writing:
44ZZC Register of access undertakings and access codes
Section 44ZZCA
44ZZCA Pricing principles for access disputes and access undertakings or codes
The pricing principles relating to the price of access to a service are:
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.
Section 44ZZCB
44ZZCB Deferring access disputes or access undertakings
(1) If, at a particular time, the Commission is:
to the service and to one or more of those matters; then the Commission may, by notice in writing, decide to:
Deferral of arbitration of access dispute
(2) If:
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:
Part IIIA Access to services Division 6B Overlap among determinations, registered contracts and access undertakings
Section 44ZZCC
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
Legislative Instruments Act
(8) A notice made under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
44ZZCC Overlap between determinations and access undertakings
If, at a particular time:
Section 44ZZCD
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:
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.
Section 44ZZD
44ZZD Enforcement of determinations
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 44ZZF
section 44ZZ, the Court may make all or any of the following orders:
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.
Section 44ZZG
44ZZG Interim injunctions
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:
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:
44ZZJ Enforcement of access undertakings
44ZZK Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order granted under this Division.
Section 44ZZL
44ZZL Register of determinations
The Commission must maintain a public register that specifies the following information for each determination:
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.
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.
Section 44ZZMB
Note: Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:
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
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: Section 44ZZN
44ZZN Compensation for acquisition of property
(1) If:
the Commonwealth must pay that person:
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: Section 44ZZO
(2) Any conduct engaged in on behalf of a body corporate:
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.
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 Section 44ZZOA
(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.
44ZZOA Target time limits for Tribunal decisions
(1) The Tribunal must use its best endeavours to make a decision on a review under this Part within:
Extensions
Multiple extensions
Publication
(4) If the Tribunal extends the standard period, it must publish a notice in a national newspaper:
Section 44ZZP
44ZZP Regulations about review by the Tribunal
Note: See section 44ZZR.
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
Section 44ZZR
(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.
Section 44ZZRA
Division 1—Cartel conduct Subdivision A—Introduction 44ZZRA Simplified outline
The following is a simplified outline of this Division:
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 corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12-month period, other than: Section 44ZZRB
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:
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:
obtaining includes:
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.
Section 44ZZRC
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:
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:
the price for, or a discount, allowance, rebate or credit in relation to:
Section 44ZZRD
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:
Section 44ZZRD
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
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.
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:
or would be likely to be; in competition with each other in relation to:
Section 44ZZRD
Note: Party has an extended meaning—see section 44ZZRC.
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:
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:
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:
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:
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 Section 44ZZRE
purpose, or not to have or to be likely to have the effect, mentioned in subsection (2) by reason only of:
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:
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.
44ZZRF Making a contract etc. containing a cartel provision
Offence
(1) A corporation commits an offence if:
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.
Section 44ZZRG
Penalty
(3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:
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:
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:
Section 44ZZRH
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:
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:
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: Section 44ZZRJ
(b) make an order under section 86C, 86D, 86E or 87 in relation to the offence.
44ZZRJ Making a contract etc. containing a cartel provision
A corporation contravenes this section if:
Note: For enforcement, see Part VI.
44ZZRK Giving effect to a cartel provision
(1) A corporation contravenes this section if:
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.
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 Section 44ZZRM
(ii) has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c); and
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:
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 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).
Section 44ZZRO
(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:
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:
Section 44ZZRO
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.
(1B) Section 44ZZRG does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if:
Section 44ZZRO
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.
Notice to prosecutor
Section 44ZZRP
44ZZRP Joint ventures—civil penalty proceedings
(1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a contract containing a cartel provision if:
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:
Section 44ZZRP
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:
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:
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.
Section 44ZZRQ
(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:
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.
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 Section 44ZZRT
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:
(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).
(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:
Section 44ZZRU
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:
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:
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 Section 44ZZRV
(b) either:
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.
Section 45
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:
substantially lessening competition; that provision is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a corporation.
Section 45
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:
together have or are likely to have that effect.
Section 45
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:
(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:
arrangement; does not contravene this section if the conduct would, or would apart from subsection 88(8B), contravene section 49.
(8A) Subsection (2) does not apply to a corporation engaging in conduct described in that subsection if: Section 45B
(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:
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
(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:
Section 45B
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;
(3) Where a person:
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:
is or would be, or but for subsection (1) would be, entitled.
Section 45B
Section 45C
(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:
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:
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 Section 45C
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.
(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, Section 45D
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 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:
(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 Section 45DA
(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.
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:
Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7).
Section 45DB
Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.
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.
(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:
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 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:
Section 45DD
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.
Section 45DD
Dominant purpose of conduct relates to employment matters—conduct by employee organisation and employees
(2) If:
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:
Note 1: If an environmental organisation or a consumer organisation is a body corporate:
Section 45DD
Note 2: If an environmental organisation or a consumer organisation is not a body corporate:
Meaning of industrial action—basic definition
(4) In subsection (3), industrial action means:
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 Section 45E
(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.
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:
Each person to prove defence
(8) If:
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: Section 45E
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:
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, Section 45E
if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:
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)):
Section 45E
Exception to subsection (5)
(6) If:
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)):
Exception to subsection (7)
(8) If:
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:
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:
(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; Section 46
(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:
(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):
(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 Section 46
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:
(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:
(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: Section 46
(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:
(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:
(6A) In determining for the purposes of this section whether, by engaging in conduct, a corporation has taken advantage of its Section 46A
substantial degree of power in a market, the court may have regard to any or all of the following:
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.
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.
Section 46A
(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:
(2A) For the purposes of subsection (2):
(3) If:
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 Section 46B
(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.
46B No immunity from jurisdiction in relation to certain New Zealand laws
Section 47
47 Exclusive dealing
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:
(3) A corporation also engages in the practice of exclusive dealing if the corporation refuses:
for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate:
(4) A corporation also engages in the practice of exclusive dealing if the corporation:
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 Section 47
(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:
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:
(6) A corporation also engages in the practice of exclusive dealing if 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:
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 Section 47
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.
(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 Section 47
corporation or from a competitor of 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:
(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:
(11) Subsections (8) and (9) do not apply with respect to:
(a) conduct engaged in by, or by a trustee for, a religious, charitable or public benevolent institution, being conduct Section 47
engaged in for or in accordance with the purposes or objects of that institution; or
(b) conduct engaged in in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
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, Section 48
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:
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 likely to have the effect, of substantially lessening competition does not contravene this section if:
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: Section 50
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:
together have or are likely to have that effect.
50 Prohibition of acquisitions that would result in a substantial lessening of competition
(1) A corporation must not directly or indirectly:
if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a 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:
if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market.
Section 50
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).
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 Section 50A
(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:
(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 substantial market for goods or services in:
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 Section 50A
(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.
(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:
(2) Where an application under subsection (1) is made:
(a) the Tribunal shall give to:
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.
(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.
Section 51
(9) In this section:
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:
(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:
Section 51
(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) the Minister published a notice in the Gazette under subsection 150K(1) in relation to the State or Territory, or the State or Territory ceased to be a party to the Competition Principles Agreement, within 12 months before Section 51
the alleged contravention referred to in subsection (1);
(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:
Section 51
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;
(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:
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; Section 51AAA
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.
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.
51AAB Part does not apply to financial services
51AA Unconscionable conduct within the meaning of the unwritten law of the States and Territories
51AB Unconscionable conduct
51AC Unconscionable conduct in business transactions
(1) A corporation must not, in trade or commerce, in connection with:
from a person (other than a listed public company); engage in conduct that is, in all the circumstances, unconscionable.
(2) A person must not, in trade or commerce, in connection with:
from a corporation (other than a listed public company); engage in conduct that is, in all the circumstances, unconscionable.
(3) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a corporation or a person (the supplier) has contravened subsection (1) or (2) in connection with the supply or possible supply of goods or services to a person or a corporation (the business consumer), the court may have regard to:
(ja) whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the business consumer for the supply of the goods or services; and
(k) the extent to which the supplier and the business consumer acted in good faith.
(4) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a corporation or a person (the acquirer) has contravened subsection (1) or (2) in connection with the acquisition or possible acquisition of goods or services from a person or corporation (the small business supplier), the court may have regard to:
acquirer in relation to the acquisition or possible acquisition of the goods or services; and
(ja) whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the small business supplier for the acquisition of the goods or services; and
(k) the extent to which the acquirer and the small business supplier acted in good faith.
(5) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with:
from another person; by reason only that the first-mentioned person institutes legal proceedings in relation to that supply, possible supply, acquisition
or possible acquisition or refers to arbitration a dispute or claim in relation to that supply, possible supply, acquisition or possible acquisition.
51ACAA 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.
51ACA Definitions
(1) In this Part:
applicable industry code, in relation to a corporation that is a participant in an industry, means:
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.
mandatory industry code means an industry code that is declared by regulations under section 51AE to be mandatory.
voluntary industry code means an industry code that is declared by regulations under section 51AE to be voluntary.
51AD Contravention of industry codes
A corporation must not, in trade or commerce, contravene an applicable industry code.
51AE Regulations relating to industry codes
The regulations may:
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.
Section 51AF
51AF Part does not apply to financial services
credit card has the same meaning as in section 63A.
debit card has the same meaning as in section 63A.
51A Interpretation
Section 52
(3) Subsection (1) shall be deemed not to limit by implication the meaning of a reference in this Division to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.
52 Misleading or deceptive conduct
Note: For rules relating to representations as to the country of origin of goods, see Division 1AA (sections 65AA to 65AN).
53 False or misleading representations
A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services:
(a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use;
(aa) falsely represent that services are of a particular standard, quality, value or grade;
(b) falsely represent that goods are new;
(bb) falsely represent that a particular person has agreed to acquire goods or services;
(ea) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods; Section 53A
(eb) make a false or misleading representation concerning the place of origin of goods;
Note: For rules relating to representations as to the country of origin of goods, see Division 1AA (sections 65AA to 65AN).
53A False representations and other misleading or offensive conduct in relation to land
(2A) Nothing in this section shall be taken as implying that other provisions of this Division do not apply in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.
(3) In this section, interest, in relation to land, means:
Section 53B
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 connexion with, the land.
53B Misleading conduct in relation to employment
A corporation shall not, in relation to employment that is to be, or may be, offered by the corporation or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment.
53C Single price to be stated in certain circumstances
(1) A corporation must not, in trade or commerce, in connection with:
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 corporation also:
specifies that minimum amount.
single price means the minimum quantifiable consideration for the supply concerned at the time of the representation concerned, including each of the following amounts (if any) that is quantifiable at that time:
Section 54
Example 1: A corporation 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.
54 Offering gifts and prizes
A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services, offer gifts, prizes or other free items with the intention of not providing them, or of not providing them as offered.
55 Misleading conduct to which Industrial Property Convention applies
A person shall 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.
55A Certain misleading conduct in relation to services
A corporation shall 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.
56 Bait advertising
(1) A corporation shall not, in trade or commerce, advertise for supply at a specified price, goods or services if there are reasonable grounds, of which the corporation is aware or ought reasonably to be aware, for believing that the corporation 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 the nature of Section 57
the market in which the corporation carries on business and the nature of the advertisement.
(2) A corporation that has, in trade or commerce, advertised goods or services for supply at a specified price shall offer such goods or services for supply at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the corporation carries on business and the nature of the advertisement.
57 Referral selling
A corporation shall 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 giving the corporation the names of prospective customers or otherwise assisting the corporation 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.
58 Accepting payment without intending or being able to supply as ordered
A corporation shall not, in trade or commerce, accept payment or other consideration for goods or services where, at the time of the acceptance:
Section 59
59 Misleading representations about certain business activities
60 Harassment and coercion
A corporation shall not use physical force or undue harassment or
coercion in connection with the supply or possible supply of goods
or services to a consumer or the payment for goods or services by a
consumer.
63A Unsolicited credit and debit cards
(1) A corporation shall not send a prescribed card to a person except:
Section 64
(2) Subsection (1) applies only in relation to the sending of a prescribed card by or on behalf of the person who issued the card.
(2A) A corporation shall not take any action that enables a person who has a credit card or a debit card to use the card as a debit card or a credit card, as the case may be, except in accordance with a request in writing by the person.
(3) In this section:
article includes a token, card or document.
credit card means an article that is of a kind described in one or more of the following paragraphs:
or an article that may be used as an article referred to in paragraph (a), (b) or (c).
debit card means:
prescribed card means a credit card, a debit card or an article that
may be used as a credit card and a debit card.
64 Assertion of right to payment for unsolicited goods or services or for making entry in directory
(1) A corporation shall not, in trade or commerce, assert a right to payment from a person for unsolicited goods unless the corporation has reasonable cause to believe that there is a right to payment.
Section 64
(2A) A corporation shall not, in trade or commerce, assert a right to payment from a person for unsolicited services unless the corporation has reasonable cause to believe that there is a right to payment.
Section 64
(iii) particulars of the entry; and
(iv) the amount of the charge for the making of the entry or the basis on which the charge is, or is to be, calculated.
directory includes any publication of a similar nature to a directory but does not include a newspaper published in good faith as a newspaper at regular intervals or a publication published, or to be published, by or under the authority of the Australian Telecommunications Commission.
Section 65
making, in relation to an entry in a directory, means including, or arranging for the inclusion of, the entry.
65 Liability of recipient of unsolicited goods
(a) if the person who receives the unsolicited goods gives notice with respect to the goods to the sender in accordance with subsection (5):
(i) the period of 1 month next following the day on which the notice is given; or Section 65A
(ii) the period of 3 months next following the day on which
the person received the goods; whichever first expires; and
(b) in any other case—the period of 3 months next following the day on which the person received the goods.
(5) A notice under subsection (4) shall be in writing and shall:
65A Application of provisions of Division to prescribed information providers
(1) Nothing in section 52, 53, 53A, 55, 55A or 59 applies to a prescribed publication of matter by a prescribed information provider, other than:
(a) a publication of matter in connection with:
(iii) the promotion by any means of the supply or use of goods or services; or
(iv) the promotion by any means of the sale or grant of
interests in land; where:
(A) a person who supplies goods or services of that kind, or who sells or grants interests in land, being interests of that kind; or Section 65A
(B) a body corporate that is related to a body corporate that supplies goods or services of that kind, or that sells or grants interests in land, being interests of that kind; or
(b) a publication of an advertisement.
prescribed information provider means a person who carries on a business of providing information and, without limiting the generality of the foregoing, includes:
(a) the holder of a licence granted under the Broadcasting Services Act 1992; and (aa) a person who is the provider of a broadcasting service under a class licence under that Act; and
(ab) the holder of a licence continued in force by subsection 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992; and
relevant goods or services, in relation to a prescribed information provider, means goods or services of a kind supplied by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.
Section 65A
relevant interests in land, in relation to a prescribed information provider, means interests in land, being interests of a kind sold or granted by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.
Section 65AAA
65AAA Overview
This Division sets out the meanings of a pyramid selling scheme and other related concepts. A corporation is prohibited from engaging in certain conduct in relation to a pyramid selling scheme (see sections 65AAC and 75AZO).
65AAB Definitions
In this Division:
new participant, in a pyramid selling scheme, includes a person who has applied, or been invited, to participate in the scheme.
participant, in a pyramid selling scheme, means a person who participates in the scheme.
participate, in a pyramid selling scheme, means:
participation payment has the meaning given by paragraph (a) of the definition of pyramid selling scheme in subsection 65AAD(1).
payment, to a person or received by a person, means:
pyramid selling scheme has the meaning given by section 65AAD.
recruitment payment has the meaning given by paragraph (b) of the definition of pyramid selling scheme in subsection 65AAD(1).
Section 65AAC
65AAC Pyramid selling schemes—participation
65AAD What is a pyramid selling scheme?
(1) In this Act:
pyramid selling scheme means a scheme with both the following characteristics:
Section 65AAE
(e) the scheme involves the marketing of goods or services (or both).
65AAE Marketing schemes—are they pyramid selling schemes?
Section 65AA
65AA Overview
This Division provides that certain country of origin representations made about goods do not contravene section 52 (which deals with misleading or deceptive conduct), paragraph 53(a) or (eb) or paragraph 75AZC(1)(a) or (i) (which all deal with false or misleading representations).
65AB General test for country of origin representations
If:
the corporation does not contravene section 52, paragraph 53(a) or (eb) or paragraph 75AZC(1)(a) or (i) by reason only of making the representation.
65AC Test for representations that goods are product of/produce of a country
If:
Section 65AD
(c) all, or virtually all, processes involved in the production or
manufacture happened in that country; the corporation does not contravene section 52, paragraph 53(a) or (eb) or paragraph 75AZC(1)(a) or (i) by reason only of making the representation.
65AD Test for representations made by means of prescribed logo
(1) If:
the corporation does not contravene section 52, paragraph 53(a) or (eb) or paragraph 75AZC(1)(a) or (i) by reason only of making the representation.
(2) The regulations may, in relation to a specified logo, prescribe a percentage in the range of 51% to 100% as the percentage applicable to goods for the purposes of paragraph (1)(c).
65AE Substantial transformation of goods
Section 65AF
65AF Method of working out costs of production or manufacture
For the purposes of this Division, the cost of producing or manufacturing goods is to be worked out under Subdivision B.
65AG Definitions
In this Subdivision:
inner container includes any container into which goods are packed, other than a shipping or airline container, pallet or other similar article.
materials, in relation to goods, means:
65AH Cost of producing or manufacturing goods
The cost of producing or manufacturing goods means the sum of:
65AJ Expenditure on materials
Calculation of expenditure on materials
(1) Expenditure on materials in respect of goods means the cost of materials: Section 65AK
Regulations may prescribe materials that are not allowable
(2) The regulations may prescribe, for the purposes of subsection (1):
65AK Expenditure on labour
Calculation of expenditure on labour
(1) Expenditure on labour in respect of goods means the sum of each labour cost:
Regulations may prescribe labour costs that are not allowable
(2) The regulations may prescribe, for the purposes of subsection (1):
65AL Expenditure on overheads
Calculation of expenditure on overheads
(1) Expenditure on overheads in respect of goods means the sum of each overhead cost:
Section 65AM
Regulations may prescribe overhead costs that are not allowable
(2) The regulations may prescribe, for the purposes of subsection (1):
65AM Regulations may prescribe rules for determining the local percentage costs of production or manufacture
(1) Subject to subsection (2), the regulations may prescribe rules for determining the percentage of the total cost of production or manufacture of goods attributable to production or manufacturing processes that occurred in a particular country.
Note: Section 65AH deals with the cost of production or manufacture of goods.
(2) Rules prescribed under subsection (1) must not discriminate (whether favourably or unfavourably) between countries or classes of countries.
65AN Proceedings relating to false, misleading or deceptive conduct or representations
(1) If:
Section 65AN
the person bears an evidential burden in relation to the matters set out in the provision on which the person seeks to rely.
(2) In this section:
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.
Section 65B
65B Warning notice to public
the Minister shall, as soon as practicable after the investigation has been completed, by notice in writing published in the Gazette, announce the results of the investigation, and may announce in the notice whether, and if so, what action is proposed to be taken in relation to the goods under this Division.
65C Product safety standards and unsafe goods
(1) A corporation shall not, in trade or commerce, supply goods that are intended to be used, or are of a kind likely to be used, by a consumer if the goods are of a kind:
Section 65C
(2) The regulations may, in respect of goods of a particular kind, prescribe a consumer product safety standard consisting of such requirements as to:
accompany the goods; as are reasonably necessary to prevent or reduce risk of injury to any person.
respect of the goods; the Minister may, by notice in writing published in the Gazette, impose a permanent ban on the goods.
Section 65D
(8) Where:
goods had complied with that standard; the person shall be deemed for the purposes of this Act to have suffered the loss or damage by the supplying of the goods.
(9) Where:
the person shall be deemed for the purposes of this Act to have suffered the loss or damage by the supplying of the goods.
65D Product information standards
(a) the disclosure of information relating to the performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging of the goods; and Section 65D
(b) the form and manner in which that information is to be
disclosed on or with the goods; as are reasonably necessary to give persons using the goods information as to the quantity, quality, nature or value of the goods.
it shall be presumed for the purposes of this section, unless the contrary is established, that the goods are intended to be so used.
the person shall be deemed, for the purposes of this Act, to have suffered the loss or damage by the supplying of the goods.
Section 65E
65E Power of Minister to declare product safety or information standards
65F Compulsory product recall
(1) Subject to section 65J, where:
(a) a corporation (in this section referred to as the supplier), in trade or commerce, supplies on or after 1 July 1986 goods Section 65F
that are intended to be used, or are of a kind likely to be used, by a consumer;
the Minister may, by notice in writing published in the Gazette, require the supplier to do one or more of the following:
(iii) refund to a person to whom the goods were supplied (whether by the supplier or by another person) the price of the goods;
within the period specified in the notice.
(2) Notwithstanding subparagraph (1)(f)(iii), where the Minister, in a notice under subsection (1), requires the supplier to take action Section 65F
under paragraph (1)(f), the Minister may specify in the notice that, where:
the amount of a refund may be reduced by the supplier by an amount attributable to the use which a person has had of the goods, being an amount calculated in a manner specified in the notice.
(a) stating that the goods are subject to recall; Section 65G
Note: Penalty units are defined in section 4AA of the Crimes Act 1914. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
65G Compliance with product recall order
Where a notice under subsection 65F(1) is in force in relation to a corporation, the corporation:
Section 65H
65H Loss or damage caused by contravention of product recall order
Where:
the person shall be deemed for the purposes of this Act to have suffered the loss or damage by the supplying of the goods, or by the failure of the corporation to comply with the notice, as the case may be.
65J Opportunity for conference to be afforded before certain powers exercised
(1) Subject to section 65L, where the Minister proposes to publish a notice under subsection 65C(5) or (7) or 65F(1) in relation to goods of a particular kind, the Minister shall prepare:
notice; and shall, by notice in writing published in the Gazette, invite any person (in this section referred to as a supplier) who supplied or proposes to supply goods of that kind to notify the Commission, within the period (in this section referred to as the relevant period) of 10 days commencing on the day specified in the last-mentioned notice, being not earlier than the day on which that notice is published in the Gazette, whether the supplier wishes the Commission to hold a conference in relation to the proposed publication of the first-mentioned notice.
(2) A notice published under subsection (1) shall set out a copy of the draft notice under subsection 65C(5) or (7) or 65F(1) and a copy of the summary of the reasons for the proposed publication of the notice.
Section 65J
Section 65K
any document that contains particulars of a secret formula or process, and to make submissions in relation to those documents.
65K Recommendation after conclusion of conference
As soon as is practicable after the conclusion of a conference in relation to the proposed publication of a notice under subsection 65C(5) or (7) or 65F(1), the Commission shall:
65L Exception in case of danger to public
Section 65M
may publish the notice under subsection 65C(5) or 65F(1) without regard to the action taken under subsection 65J(1).
65M Conference after goods banned
(1) Where:
to goods of that kind; the Minister shall, by notice in writing published in the Gazette, invite any person (in this section referred to as a supplier) who supplied or proposes to supply goods of that kind to notify the Commission within the period (in this section referred to as the relevant period) of 10 days commencing on the day specified in the last-mentioned notice, being not earlier than the day on which that notice is published in the Gazette, to notify the Commission whether the supplier wishes the Commission to hold a conference in relation to the notice referred to in paragraph (a).
65N Recommendation after conclusion of conference
As soon as is practicable after the conclusion of a conference in relation to a notice that has been published under subsection 65C(5), the Commission shall:
(a) by notice in writing given to the Minister, recommend that the notice under subsection 65C(5):
Section 65P
(iii) be revoked; and
(b) cause a copy of the notice in writing given to the Minister to be given to each supplier who was present or represented at the conference.
65P Minister to have regard to recommendation of Commission
Where the Commission, under section 65K or 65N, makes a recommendation to the Minister in relation to the proposed publication of a notice under subsection 65C(5) or (7) or 65F(1) or in relation to a notice that has been published under subsection 65C(5):
65Q Power to obtain information, documents and evidence
(1) Where the Minister or an officer authorised by the Minister for the purposes of this section (in this section referred to as an authorised officer) has reason to believe that a corporation which, in trade or commerce, supplies goods of a particular kind which are intended to be used or are of a kind likely to be used by a consumer and which will or may cause injury to any person is capable of furnishing information, producing documents or giving evidence relating to goods of that kind, the Minister or the authorised officer may, by notice in writing served on the corporation, require the corporation:
Section 65Q
give any such evidence, either orally or in writing, and produce any such documents.
(7A) An authorised officer or a person assisting the authorised officer must, before any person enters the premises under a warrant issued under subsection (5):
(7B) An authorised officer or a person assisting the authorised officer is not required to comply with subsection (7A) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
Section 65Q
(9A) Subsection (9) does not apply if the person complies with the notice to the extent to which the person is capable of complying with it.
Note: A defendant bears an evidential burden in relation to the matter in subsection (9A) (see subsection 13.3(3) of the Criminal Code).
(9B) Subsection (9) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
(9C) If:
is false or misleading in a material particular; the person is guilty of an offence punishable on conviction by imprisonment for not longer than 12 months.
(10) A person who refuses or fails to provide an authorised officer acting in accordance with subsection (2) with all reasonable facilities and assistance for the effective exercise of the authorised officer’s powers under that subsection is guilty of an offence.
Penalty: Imprisonment for 2 years.
Note: Penalty units are defined in section 4AA of the Crimes Act 1914. Under subsection 4D(1) of that Act, these penalties are only maximum penalties for the offences. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of one of the offences, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence.
(11) Any information furnished or evidence given by a person under this section, any document produced by a person under this section, and any information, evidence or document obtained under this section, is not admissible in evidence against the person:
Section 65R
65R Notification of voluntary recall
Note: Penalty units are defined in section 4AA of the Crimes Act 1914. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
65S Copies of certain notices to be given to suppliers or published in certain newspapers
(1) Where the Minister publishes a notice in writing in the Gazette under subsection 65B(1), 65J(1), 65L(1) or 65M(1), the Minister shall, within 2 days after the publication of that notice in the Gazette, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period, either:
(a) cause a copy of the notice to be given to each person who, to the knowledge of the Minister, supplies goods of the kind to which the notice relates; or Section 65T
(b) cause a copy of the notice to be published in a newspaper circulating in each part of Australia where goods of the kind to which the notice relates are, to the knowledge of the Minister, supplied.
(2) Any failure to comply with subsection (1) in relation to a notice does not invalidate the notice.
65T Certain action not to affect insurance contracts
The liability of an insurer under a contract of insurance with a corporation, being a contract relating to the recall of goods supplied or proposed to be supplied by the corporation or to the liability of the corporation with respect to possible defects in goods supplied or proposed to be supplied by the corporation, shall not be affected by reason only that the corporation gives to the Minister, to the Commission, to a person appointed or engaged under the Public Service Act 1999, or to an officer of an authority of the Commonwealth information relating to any goods supplied or proposed to be supplied by the corporation.
Section 66
66 Interpretation
66A Convention on Contracts for the International Sale of Goods
The provisions of the United Nations Convention on Contracts for the International Sale of Goods, adopted at Vienna, Austria, on 10 April 1980, prevail over the provisions of this Division to the extent of any inconsistency.
Section 67
67 Conflict of laws
Where:
this Division applies to the contract notwithstanding that term.
68 Application of provisions not to be excluded or modified
68A Limitation of liability for breach of certain conditions or warranties
(1) Subject to this section, a term of a contract for the supply by a corporation of goods or services other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 68 by reason only that the term limits the liability of the corporation for a breach of a Section 68A
condition or warranty (other than a condition or warranty implied by section 69) to:
Section 68B
68B Limitation of liability in relation to supply of recreational services
(1) A term of a contract for the supply by a corporation of recreational services is not void under section 68 by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying:
so long as:
(2) In this section:
disease includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and whether of genetic or other origin.
injury means any physical or mental injury.
personal injury means:
Section 69
recreational services means services that consist of participation in:
(3) The definition of injury in subsection (2) does not, by implication, affect the meaning of the expression injury when used in a provision of this Act other than this section.
69 Implied undertakings as to title, encumbrances and quiet possession
Section 70
becomes fixed and enforceable by the person to whom the charge is given.
(3) In a contract for the supply of goods by a corporation to a consumer in the case of which there appears from the contract or is to be inferred from the circumstances of the contract an intention that the supplier should transfer only such title as he or she or a third person may have, there is:
(iii) anyone claiming through or under the supplier or that third person otherwise than under a charge or encumbrance disclosed or known to the consumer before the contract is made;
will not disturb the consumer’s quiet possession of the goods.
70 Supply by description
71 Implied undertakings as to quality or fitness
(1) Where a corporation supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business, there is an implied condition that the goods supplied under the contract for Section 72
the supply of the goods are of merchantable quality, except that there is no such condition by virtue only of this section:
72 Supply by sample
Where in a contract for the supply (otherwise than by way of sale by auction) by a corporation in the course of a business of goods to a consumer there is a term in the contract, expressed or implied, to the effect that the goods are supplied by reference to a sample:
Section 73
(c) there is an implied condition that the goods will be free from any defect, rendering them unmerchantable, that would not be apparent on reasonable examination of the sample.
73 Liability for loss or damage from breach of certain contracts
(1) Where:
and the consumer suffers loss or damage as a result of misrepresentation, breach of contract, or failure of consideration in relation to the contract, or as a result of a breach of a condition that is implied in the contract by virtue of section 70, 71 or 72 or of a warranty that is implied in the contract by virtue of section 74 of this Act or section 12ED of the Australian Securities and Investments Commission Act 2001, the supplier and the linked credit provider are, subject to this section, jointly and severally liable to the consumer for the amount of the loss or damage, and the consumer may recover that amount by action in accordance with this section in a court of competent jurisdiction.
(2) Where:
Section 73
(d) the credit provider did not take physical possession of the
goods before they were delivered to the consumer; or where a consumer enters into a contract with a credit provider for the provision of credit in respect of the supply of services to the consumer by a corporation (in this section also referred to as the supplier) of which the credit provider is not a linked credit provider, and the consumer suffers loss or damage as a result of a breach of a condition that is implied in the contract by virtue of section 70, 71 or 72 or of a warranty that is implied in the contract by virtue of section 74 of this Act or section 12ED of the Australian Securities and Investments Commission Act 2001, the credit provider is not under any liability to the consumer for the amount of the loss or damage, but the consumer may recover that amount by action in a court of competent jurisdiction against the supplier.
(3) A linked credit provider of a particular supplier is not liable to a consumer by virtue of subsection (1) in proceedings arising under that subsection if the credit provider establishes:
Section 73
(d) where the proceedings relate to a contract of sale with respect to which a tied continuing credit contract entered into by the linked credit provider applies, that, having regard to:
circumstances of the case; the linked credit provider, before becoming aware of the contract of sale or of proposals for the making of the contract of sale (whichever the linked credit provider first became aware of), 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 misrepresentation, breach of contract, failure of consideration, breach of a condition or breach of a warranty as referred to in subsection (1).
unless the consumer brings the action against the supplier and the credit provider jointly or, in the case of a counter-claim or right conferred by subsection (4), claims in the proceedings against the supplier in respect of the liability by third-party proceedings or otherwise.
(a) shall not be enforced against the linked credit provider unless a written demand made on the supplier for satisfaction of the Section 73
judgment has remained unsatisfied for not less than 30 days; and
(b) may be enforced against the linked credit provider only to the extent of:
by the supplier; whichever is the lesser.
(9) Where in proceedings arising under subsection (1), a right conferred by subsection (4) is established against a linked credit provider, the consumer:
by the supplier; whichever is the lesser.
Section 73
case may be, upon the whole or a part of the amount, from the time when the consumer became entitled to recover the amount until the date on which the judgment is given, at whichever of the following rates is the greater:
credit provider means a corporation providing, or proposing to provide, in the course of a business carried on by the corporation, credit to consumers in relation to the acquisition of goods or services.
linked credit provider, in relation to a supplier, means a credit provider:
(a) with whom the supplier has a contract, arrangement or understanding relating to:
(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; Section 73A
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 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:
73A Continuing credit contract
(a) a person (in this section referred to as the creditor), in the course of a business carried on by the creditor, agrees with a consumer to provide credit to the consumer in respect of: Section 73B
(b) the amounts owing to the creditor from time to time under the agreement are or are to be calculated on the basis that all amounts owing, and all payments made, by the consumer under or in respect of the agreement are entered in one or more accounts kept for the purpose of the agreement;
the agreement is, for the purposes of section 73, a continuing credit contract.
(3) Where the creditor agrees to make payments to a third person in respect of goods or services or cash supplied by that third person to the consumer, as mentioned in subparagraph (2)(a)(ii), then, for the purposes of this section, the creditor shall, in respect of any goods or services or cash so supplied, be deemed to have provided credit to the consumer to the extent of any payments made or to be made by the creditor to that third person.
73B Loan contract
For the purposes of section 73, 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:
Section 74
74 Warranties in relation to the supply of services
(2A) If:
contract; the law of the State or Territory applies to limit or preclude liability for the breach, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of a liability, for breach of another term of the contract.
(3) A reference in this section to services does not include a reference to services that are, or are to be, provided, granted or conferred under:
Section 74A
74A Interpretation
(1) In this Division:
express warranty, in relation to goods, means an undertaking, assertion or representation in relation to:
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, the natural tendency of which is to induce persons to acquire the goods.
manufactured includes grown, extracted, produced, processed and assembled.
(2) In this Division:
(a) a reference to goods shall, unless the contrary intention appears, be read as a reference to goods of a kind ordinarily acquired for personal, domestic or household use or consumption;
(aa) a reference to a person who acquires goods from a consumer does not include a reference to a person who acquires goods for the purpose of re-supply;
Section 74A
business carried on by the other person whereby the consumer was induced to acquire the goods or which otherwise promoted the acquisition of the goods by the consumer; and
(d) a reference to the person by whom any antecedent negotiations were conducted shall be read as a reference to the person by whom the negotiations or arrangements concerned were conducted or made.
(3) If:
the corporation shall be deemed, for the purposes of this Division, to have manufactured the goods.
(4) If:
does not have a place of business in Australia; the corporation shall be deemed, for the purposes of this Division, to have manufactured the goods.
(5) For the purposes of paragraph (3)(b):
(a) a name, brand or mark shall be deemed to be applied to goods if it:
Section 74B
(b) if the name of a corporation, a name in which a corporation carries on business or a brand or mark of a corporation is applied to goods, it shall be presumed, unless the contrary is established, that the corporation caused or permitted the name, brand or mark to be applied to the goods.
74B Actions in respect of unsuitable goods
(1) Where:
Section 74C
(e) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not reasonably fit for that purpose;
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Subsection (1) does not apply:
(a) if the goods are not reasonably fit for the purpose referred to in that subsection by reason of:
occurring after the goods have left the control of the corporation; or
(b) where the circumstances show that the consumer did not rely, or that it was unreasonable for the consumer to rely, on the skill or judgment of the corporation.
74C Actions in respect of false descriptions
(1) Where:
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
Section 74D
74D Actions in respect of goods of unmerchantable quality
(1) Where:
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other Section 74E
person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Subsection (1) does not apply:
(a) if the goods are not of merchantable quality by reason of:
occurring after the goods have left the control of the corporation;
(3) Goods of any kind are of merchantable quality within the meaning of this section if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to:
74E Actions in respect of non-correspondence with samples etc.
(1) Where:
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the loss or damage by action against the corporation in a court of competent jurisdiction.
(2) Subsection (1) does not apply where:
74F Actions in respect of failure to provide facilities for repairs or parts
(1) Where:
and:
(c) at a time (in this section referred to as the relevant time) after the acquisition of the goods by the consumer: Section 74F
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
the corporation is not liable to compensate the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer for loss or damage suffered by the consumer or that other person by reason of the failure of the corporation to ensure that facilities of the kind specified in the notice, or parts of the kind specified in the notice, were available, or that facilities for the repair of the goods were available at, or parts for the goods were available from, a place or places specified in the notice, as the case may be.
(4) In determining whether a corporation acted unreasonably in failing to ensure that facilities for the repair of goods were, or that a part was, reasonably available to a person at the relevant time, a court shall have regard to all the circumstances of the case, and in particular to the existence, at the relevant time, of circumstances that prevented those facilities or that part being so available, being circumstances beyond the control of the corporation.
74G Actions in respect of non-compliance with express warranty
(1) Where:
and:
(c) the corporation fails to comply with an express warranty given or made by the corporation in relation to the goods; and Section 74H
(d) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason of the failure;
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) For the purposes of any action instituted by a person against a corporation under this section, where:
it shall be presumed that the undertaking, assertion or representation was given or made by the corporation or a person acting on its behalf unless the corporation proves that it did not give or make, and did not cause or permit the giving or making of, the undertaking, assertion or representation.
74H Right of seller to recover against manufacturer or importer
Where:
(i) is liable to compensate the consumer in respect of the same loss or damage by reason of a provision of this Division; or Section 74J
(ii) in a case where the goods referred to in paragraph (a) are not of a kind ordinarily acquired for personal, domestic or household use or consumption—would, if the provisions of sections 74B, 74C, 74D and 74E applied in relation to those goods, be liable to compensate the consumer in respect of the same loss or damage by reason of any of those provisions;
the manufacturer is liable to indemnify the seller in respect of the liability of the seller to the consumer and the seller may, in respect of the manufacturer’s liability to indemnify the seller, institute an action against the manufacturer in a court of competent jurisdiction for such legal or equitable relief as the seller could have obtained if the liability of the manufacturer to indemnify the seller had arisen under a contract of indemnity made between the manufacturer and the seller.
74J Time for commencing actions
(a) in the case of an action other than an action under section 74H, on the day on which the consumer or a person who acquired the goods from, or derived title to the goods through or under, the consumer first became aware, or ought reasonably to have become aware:
(iii) in the case of an action under section 74D—that the goods were not of merchantable quality;
(iv) in the case of an action under section 74E—that the bulk of the goods did not correspond with the sample in quality or the goods had the defect referred to in that section; Section 74K
(b) in the case of an action under section 74H, on:
whichever was the earlier.
(3) In an action under a provision of this Division, it is a defence if the defendant proves that the action was not commenced within 10 years after the time of the first supply to a consumer of the goods to which the action relates.
Note: Part VIB restricts awards of compensation for death or personal injury, and sets out time limits for commencing actions for compensation for death or personal injury.
74K Application of Division not to be excluded or modified
Section 74L
74L Limitation in certain circumstances of liability of manufacturer to seller
74M The effect of Part VIB on this Division
This Division has effect subject to Part VIB.
Section 75
75 Saving of other laws and remedies
75A Rescission of contracts
(1) Where:
the consumer is, subject to this section, entitled to rescind the contract by:
(2) Where a consumer purports to rescind under this section a contract for the supply of goods by a corporation, the purported rescission does not have any effect if:
(a) the notice is not served or the goods are not returned within a reasonable time after the consumer has had a reasonable opportunity of inspecting the goods; Section 75A
75AA Interpretation
In this Part:
action goods, in relation to a liability action, means the goods whose supply and defect is alleged in the action.
Commonwealth mandatory standard, in relation to goods, means a mandatory standard in respect of the goods imposed by a law of the Commonwealth.
defendant, in relation to a liability action, means a person against whom the action is brought (however described).
liability action means an action under section 75AD, 75AE, 75AF or 75AG and includes such an action because of paragraph 75AD(1)(f) or section 75AH.
loss includes damage.
mandatory standard, in relation to goods, means a standard:
but does not include a standard which may be complied with by meeting a higher standard.
manufactured includes grown, extracted, produced, processed and assembled.
plaintiff, in relation to a liability action, means the person by whom the action is brought (however described).
use includes consume.
75AB Certain interpretation provisions (importers and others taken to be manufacturers etc.) apply to this Part
Subsections 74A(3) to (8) (inclusive) operate as if references in them to Division 2A of Part V included references to this Part.
75AC Meaning of goods having defect
75AD Liability for defective goods causing injuries—loss by injured individual
If:
75AE Liability for defective goods causing injuries—loss by person other than injured individual
(1) If:
relationship between the person and the individual; then:
(2) For the purposes of this section:
75AF Liability for defective goods—loss relating to other goods
If:
the destruction or damage; then:
75AG Liability for defective goods—loss relating to buildings etc.
If:
destruction or damage; then:
75AH Survival of liability actions
A law of a State or Territory about the survival of causes of action vested in persons who die applies to actions under section 75AD, 75AE, 75AF or 75AG.
75AI No liability action where workers’ compensation or law giving effect to an international agreement applies
Section 75AD, 75AE, 75AF or 75AG does not apply to a loss in respect of which an amount has been, or could be, recovered under a law of the Commonwealth, a State or a Territory that:
75AJ Unidentified manufacturer
is taken, for the purposes of the action, to have manufactured the action goods.
75AK Defences
supply time means:
75AL Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard
75AM Liability joint and several
If 2 or more corporations are liable under section 75AD, 75AE, 75AF or 75AG for the same loss they are jointly and severally liable.
75AN Contributory acts or omissions to reduce compensation
(1) If the loss in a liability action under section 75AD or 75AE was caused by both:
be to nil) as the court thinks fit having regard to that individual’s share in causing the loss.
(2) If the loss in a liability action under section 75AF or 75AG was caused by both:
be to nil) as the court thinks fit having regard to the person’s share in causing the loss.
(3) For the purposes of this section, the acts and omissions of a person who is responsible for another person include the acts and omissions of that other person.
75AO Time for commencing actions
Note: Part VIB restricts awards of compensation for death or personal injury, and sets out time limits for commencing actions for compensation for death or personal injury.
75AP Application of provisions not to be excluded or modified
75AQ Representative actions by the Commission
75AR Saving of other laws and remedies
75AS Jurisdiction of courts
Subsections 75B(2) and 86(1), (2), (3) and (4) and sections 86A and 86B operate in relation to an action under this Part as if:
Section 75AZA
75AZA Part does not apply to financial services
Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3) of the Criminal Code).
75AZAA Concurrent operation of State and Territory laws
This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
Section 75AZB
75AZB Interpretation
(1) For the purposes of this Division, if:
the representation; the representation is taken to be misleading.
75AZC False or misleading representations
(1) A corporation 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, do any of the following:
Section 75AZD
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(2) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
Note 3: For rules relating to representations as to the country of origin of goods, see Division 1AA of Part V (sections 65AA to 65AN).
75AZD False representations and other misleading or offensive conduct in relation to land
(1) A corporation 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 in connection with the promotion by any means of the sale or grant of an interest in land:
Section 75AZD
which the land is capable of being put, or may lawfully be put, or the existence or availability of facilities associated with the land.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(2) If:
the corporation is guilty of an offence punishable on conviction by a fine not exceeding 10,000 penalty units.
Note 1: The penalty specified in subsection (2) is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of the offence in subsection (2) to a person other than a corporation (and the corresponding penalty), see section 6.
(3) If:
the corporation is guilty of an offence punishable on conviction by a fine not exceeding 10,000 penalty units.
Note 1: The penalty specified in subsection (3) is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Section 75AZE
Note 2: For the application of the offence in subsection (3) to a person other than a corporation (and the corresponding penalty), see section 6.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
interest, in relation to land, has the same meaning as in section 53A.
75AZE Misleading conduct in relation to employment
(1) A corporation must not, in relation to employment that is to be, or may be, offered by the corporation or by another person, engage in conduct that is liable to mislead persons seeking the employment about the availability, nature, terms or conditions of, or any other matter relating to, the employment.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(2) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
Section 75AZF
75AZF Single price to be stated in certain circumstances
(1) A corporation must not, in trade or commerce, in connection with:
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.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(2) Subsection (1) does not apply if the corporation also:
specifies that minimum amount.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(2A) A corporation 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 relevant person.
(2B) Subsection (1) does not apply if the representation is made exclusively to a body corporate.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2B) (see subsection 13.3(3) of the Criminal Code).
Section 75AZF
(2C) For the purposes of paragraph (2)(a), the corporation 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.
(2D) Subsection (2C) does not apply in relation to services to be supplied under a contract if the following apply:
(3) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
single price means the minimum quantifiable consideration for the supply concerned at the time of the representation concerned, including each of the following amounts (if any) that is quantifiable at that time:
(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 Section 75AZG
(ii) the tax, duty, fee, levy or charge would have otherwise been payable by the relevant person in relation to the supply concerned.
75AZG Offering gifts and prizes
(1) If:
them, or not to provide them as offered; the corporation is guilty of an offence punishable on conviction by a fine not exceeding 10,000 penalty units.
Note 1: The penalty specified in subsection (1) is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of the offence in subsection (1) to a person other than a corporation (and the corresponding penalty), see section 6.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
75AZH Misleading conduct to which Industrial Property Convention applies
(1) A person must not, in trade or commerce, engage in conduct that is liable to mislead the public about the nature, the manufacturing process, the characteristics, the suitability for their purpose, or quantity, of any goods.
Penalty: 2,000 penalty units.
Section 75AZI
Note: If a corporation is convicted of an offence under this subsection, subsection 4B(3) of the Crimes Act 1914 allows the Court to impose a fine that is not greater than 5 times the maximum fine that could be imposed by the Court on an individual convicted of the offence.
(2) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
75AZI Certain misleading conduct in relation to services
(1) A corporation must not, in trade or commerce, engage in conduct that is liable to mislead the public about the nature, the characteristics, the suitability for their purpose, or the quantity, of any services.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(2) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
75AZJ Bait advertising
(1) A corporation must not, in trade or commerce, advertise for supply at a specified price, goods or services if there are reasonable grounds for believing that the corporation will not be able to offer those goods or services for supply at that price for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the corporation carries on business, and the nature of the advertisement.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Section 75AZJ
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(2) A corporation that has, in trade or commerce, advertised goods or services for supply at a specified price must not fail 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 the nature of the market in which the corporation carries on business, and the nature of the advertisement.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(3) Subsections (1) and (2) are offences of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
(4) In a prosecution of a corporation under subsection (2), for failing to offer goods or services to a person (the customer), it is a defence if the corporation proves that:
and, in either case, if the offer was accepted by the customer, the corporation has so supplied, or procured another person to supply, goods or services.
Note: A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4 of the Criminal Code).
Section 75AZK
75AZK Referral selling
(1) A corporation 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 giving the corporation the names of prospective customers or otherwise assisting the corporation 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.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(2) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
75AZL Accepting payment without intending or being able to supply as ordered
(1) If:
the corporation is guilty of an offence punishable on conviction of a fine not exceeding 10,000 penalty units.
Note 1: The penalty specified in subsection (1) is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of the offence in subsection (1) to a person other than a corporation (and the corresponding penalty), see section 6.
Section 75AZM
(2) Strict liability applies to paragraph (1)(a).
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
(3) If:
the corporation is guilty of an offence punishable on conviction by a fine not exceeding 10,000 penalty units.
Note 1: The penalty specified in subsection (3) is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of the offence in subsection (3) to a person other than a corporation (and the corresponding penalty), see section 6.
(4) Subsection (3) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
75AZM Misleading representations about certain business activities
(1) A corporation must not, in trade or commerce, make a representation that is false or misleading in a material particular about the profitability or risk or any other material aspect of any business activity that the corporation 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: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
Section 75AZN
(2) If a corporation, in trade or commerce, invites (whether by advertisement or otherwise) persons to engage or participate, or to offer or apply to engage or participate, in a business activity requiring the performance by the persons concerned of work, or the investment of money by the persons concerned and the performance by them of work associated with the investment, the corporation must not make a representation that is false or misleading in a material particular about the profitability or risk or any other material aspect of the business activity.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(3) Subsections (1) and (2) are offences of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
75AZN Harassment and coercion
(1) If:
the corporation is guilty of an offence punishable on conviction by a fine not exceeding 10,000 penalty units.
Note 1: The penalty specified in subsection (1) is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of the offence in subsection (1) to a person other than a corporation (and the corresponding penalty), see section 6.
(2) Strict liability applies to paragraph (1)(b).
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Section 75AZO
Note 2: For strict liability, see section 6.1 of the Criminal Code.
75AZO Pyramid selling
criminal responsibility. Note 2: For strict liability, see section 6.1 of the Criminal Code.
(4) In this section: participate has the meaning given by section 65AAB. pyramid selling scheme has the meaning given by sections 65AAD
and 65AAE.
75AZP Unsolicited credit and debit cards
(1) A corporation must not send a prescribed card to a person.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
Section 75AZP
Note: A defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
(5) A corporation must not take any action that enables a person who has a credit card or a debit card to use the card as a debit card or a credit card, as the case may be.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(6) Subsection (5) does not apply in relation to action taken by a corporation in accordance with a written request by the person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
(7) Subsection (5) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
(8) In this section:
article, credit card, debit card and prescribed card have the same respective meanings as in section 63A.
Section 75AZQ
75AZQ Assertion of right to payment for unsolicited goods or services or for making an entry in a directory
(1) A corporation must not, in trade or commerce, assert a right to payment from a person for unsolicited goods or unsolicited services.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(2) Subsection (1) does not apply if the corporation proves that it had reasonable cause to believe that there was a right to payment.
Note: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4 of the Criminal Code).
(3) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
(4) A corporation must not assert a right to payment from a person of a charge for making in a directory an entry relating to the person, or to the person’s profession, business, trade or occupation.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(5) Subsection (4) does not apply if the corporation proves that it believed, or had reasonable cause to believe, that the person had authorised the making of the entry.
Note: A defendant bears a legal burden in relation to the matter in subsection (5) (see section 13.4 of the Criminal Code).
(6) Subsection (4) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Section 75AZQ
Note 2: For strict liability, see section 6.1 of the Criminal Code.
(i) the name of the directory; and Section 75AZR
(ii) the name and address of the person publishing the directory; and
(iii) particulars of the entry; and
(iv) the amount of the charge for the making of the entry or the basis on which the charge is, or is to be, calculated.
directory and making have the same respective meanings as in section 64.
75AZR Application of provisions of Division to prescribed information providers
(1) Nothing in section 75AZC, 75AZD, 75AZH, 75AZI or 75AZM applies to a prescribed publication of matter by a prescribed information provider, other than:
(a) a publication of matter in connection with:
(iii) the promotion by any means of the supply or use of goods or services; or
(iv) the promotion by any means of the sale or grant of
interests in land; where:
(b) a publication of an advertisement.
prescribed information provider, relevant goods or services and relevant interests in land have the same respective meanings as in section 65A.
Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3) of the Criminal Code).
Section 75AZS
75AZS Product safety standards and unsafe goods
(1) If:
(iii) in respect of which there is in force a notice under
section 65C imposing a permanent ban on the goods; the corporation is guilty of an offence punishable on conviction by a fine not exceeding 10,000 penalty units.
Note 1: The penalty specified in subsection (1) is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of the offence in subsection (1) to a person other than a corporation (and the corresponding penalty), see section 6.
Note 3: For the purposes of this section, subsection 65E(2) treats a consumer product safety standard identified in a notice published by the Minister as a consumer product safety standard prescribed by regulations made for the purposes of section 65C.
(2) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
(3) A corporation must not export goods whose supply in Australia would constitute an offence against subsection (1).
Penalty: 10,000 penalty units.
Section 75AZT
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(4) Subsection (3) does not apply if the Minister has, by written notice given to the corporation, approved the export of the goods under subsection 65C(3).
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) Subsection (3) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
75AZT Product information standards
(1) If:
the corporation is guilty of an offence punishable on conviction by a fine not exceeding 10,000 penalty units.
Note 1: The penalty specified in subsection (1) is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of the offence in subsection (1) to a person other than a corporation (and the corresponding penalty), see section 6.
Note 3: For the purposes of this section, subsection 65E(2) treats a consumer product information standard identified in a notice published by the Minister as a consumer product information standard prescribed by regulations made for the purpose of subsection 65D(2).
(2) Subsection (1) does not apply if the corporation has complied with the standard in relation to the goods.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Section 75AZU
(3) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
(4) Subsection (1) does not apply to goods that are intended to be used outside Australia.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) If there is applied to goods:
it must be presumed for the purposes of this section, unless the contrary is established, that the goods are intended to be so used.
75AZU Compliance with product recall notice
(1) If a notice under subsection 65F(1) is in force in relation to a corporation, the corporation must not contravene a requirement or direction in the notice.
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
Section 75AZU
(2) If a notice under subsection 65F(1) is in force in relation to a corporation, the corporation must not, in trade or commerce:
Penalty: 10,000 penalty units.
Note 1: The penalty specified above is the maximum penalty that may be imposed on a corporation: subsection 4B(3) of the Crimes Act 1914 does not apply.
Note 2: For the application of this offence to a person other than a corporation (and the corresponding penalty), see section 6.
(3) Subsections (1) and (2) are offences of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
75B Interpretation
76 Pecuniary penalties—restrictive trade practices etc.
(1) If the Court is satisfied that a person:
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:
(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 during the period (the turnover period) of 12 months ending at the end of the month in which the act or omission occurred; and
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
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:
(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:
(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
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.
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.
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:
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.
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:
76E Pecuniary penalties—consumer protection etc.
(1) If the Court is satisfied that a person:
to which this section applies, as the Court determines to be appropriate.
Number of penalty units
Item For each act or omission to the number of penalty which this section applies units is not to exceed ... that relates to ...
1 a provision of Part IVA (a) if the person is a body corporate—10,000; or
(b) if the person is not a body corporate—2,000.
2 a provision of Division 1 or (a) if the person is a body 1AAA of Part V (other than corporate—10,000; or section 52) (b) if the person is not a
body corporate—2,000.
3 subsection 65C(1) or (3) or (a) if the person is a body 65D(1) corporate—10,000; or
(b) if the person is not a body corporate—2,000.
4 subsection 65F(8) (a) if the person is a body corporate—150; or
(b) if the person is not a body corporate—30.
5 section 65G (a) if the person is a body corporate—10,000; or
(b) if the person is not a body corporate—2,000.
6 subsection 65Q(9) (a) if the person is a body corporate—200; or
(b) if the person is not a body corporate—40.
Number of penalty units
Item For each act or omission to the number of penalty which this section applies units is not to exceed ... that relates to ...
| 7 | subsection 65Q(9C) | (a) if the person is a body corporate—300; or |
| (b) if the person is not a | ||
| body corporate—60. | ||
| 8 | subsection 65Q(10) | (a) if the person is a body corporate—600; or |
| (b) if the person is not a | ||
| body corporate—120. | ||
| 9 | subsection 65R(1) | (a) if the person is a body corporate—150; or |
| (b) if the person is not a | ||
| body corporate—30. | ||
| 10 | section 87ZN | (a) if the person is a body |
| corporate—150; or | ||
| (b) if the person is not a | ||
| body corporate—30. | ||
| 11 | section 87ZO | (a) if the person is a body |
| corporate—250; or | ||
| (b) if the person is not a | ||
| body corporate—50. |
(4) If conduct constitutes a contravention of 2 or more provisions referred to in paragraph (1)(a):
76F Pecuniary penalties under section 76E and offences
(1) The Court must not make an order under section 76E against a person in relation to either of the following matters (a consumer protection breach):
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 76E against a person in relation to a consumer protection breach are stayed if:
The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.
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.
77 Civil action for recovery of pecuniary penalties
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:
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.
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 a pecuniary penalty under section 76E.
officer has the same meaning as in the Corporations Act 2001.
77B Certain indemnities not authorised and certain documents void
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:
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 or V
Criminal proceedings do not lie against a person by reason only that the person:
(a) has contravened any of the following provisions:
(i) a provision of Part IV (other than section 44ZZRF or 44ZZRG);
(ia) a provision of Part V (other than section 65Q or 65R or subsection 65F(9));
79 Offences against section 44ZZRF or 44ZZRG or Part VC etc.
(1) A person who: (aa) attempts to contravene; or
a cartel offence provision or a provision of Part VC is taken to
have contravened that provision and is punishable:
(e) in a case where:
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:
44ZZRG(3)(c) to a corporation were read as a reference to a body corporate.
(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.
the Court shall 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, first referred to in paragraph (b).
cartel offence provision means section 44ZZRF or 44ZZRG.
79A Enforcement and recovery of certain fines
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.
79B Preference must be given to compensation for victims
If the Court considers that:
(a) it is appropriate to order a person (the defendant):
Part VC; in respect of a contravention, or an involvement in a contravention, of this Act; and
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:
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 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.
(1AAA) Subject to subsection (1B), a person other than the Minister or the Commission may not apply for an injunction on the ground of:
(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.
(6A) Subsection (6) does not apply to an application by the Minister for an injunction relating to Part IV.
(7) Where:
the Court shall accept the undertaking by the Minister and shall not require a further undertaking from any other person.
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.
80AB Stay of injunctions
associated contravention means:
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:
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:
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:
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 to in paragraph (c), is void as from the day on which it took place and, where the Court makes such a declaration:
(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.
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:
authorisation for the acquisition on the basis of information that was false or misleading in a material particular; and
Divestiture by the acquirer and related bodies corporate
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
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, 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:
82 Actions for damages
(1) Subject to subsection (1AAA), a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVA, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
(1AAA) A person who suffers loss or damage by conduct of another person may not recover the amount of the loss or damage by an action under subsection (1) to the extent to which:
(1AAB) Divisions 2 and 7 of Part VIB apply to an action under subsection (1) for loss or damage a person suffers by conduct of another person to the extent to which:
of tobacco products; as if the action were a proceeding to which Part VIB applies.
Note 1: Division 2 of Part VIB 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 (2) of this section.
Note 2: Division 7 of Part VIB deals with structured settlements for claims for damages or compensation for death or personal injury.
(1AA) Subsection (1) has effect subject to section 87AB.
Note: Section 87AB may limit the amount that the person may recover for a contravention of section 52 (Misleading or deceptive conduct) from the other person or from another person involved in the contravention.
(1B) Despite subsection (1), if:
(a) a person (the claimant) makes a claim under subsection (1) in relation to:
caused by conduct of another person (the defendant) that was done in contravention of section 52; and
just and equitable having regard to the claimant’s share in the responsibility for the loss or damage.
Note: Part VIA also applies proportionate liability to a claim for damages under this section for a contravention of section 52.
(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.
Note: Part VIB restricts awards of compensation for death or personal injury, and sets out time limits for commencing actions for damages for death or personal injury.
(3) In this section:
smoking has the same meaning as in the Tobacco Advertising Prohibition Act 1992.
tobacco product has the same meaning as in the Tobacco Advertising Prohibition Act 1992.
83 Finding in proceedings to be evidence
In a proceeding against a person under section 82 or in an application under subsection 87(1A) or 87AAA(1) 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 or a provision of Part VC, in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of Part IV, IVA, IVB, V or VC 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:
it is necessary to establish the state of mind of the body corporate, it is sufficient to show that:
(2) Any conduct engaged in on behalf of a body corporate:
shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.
(3) If, in:
it is necessary to establish the state of mind of the person, it is sufficient to show that:
(4) Conduct engaged in on behalf of a person other than a body corporate:
shall be deemed, for the purposes of this Act, to have been engaged in also by the first-mentioned person.
(4A) 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
(1) Subject to subsection (2), in a prosecution for a contravention of a provision of Part VC, it is a defence if the defendant establishes:
Note: A defendant bears a legal burden in relation to the matters in subsection (1) (see section 13.4 of the Criminal Code).
(1AA) Paragraph (1)(a) is to be interpreted as having the same effect in relation to a contravention of a provision of Part VC as section 9.2 of the Criminal Code has in relation to offences of strict liability.
(1A) In paragraphs (1)(a) and (c), another person does not include a person who was:
servant or agent of the defendant; at the time when the contravention occurred.
Note: In a prosecution for an offence against Part VC, a defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4 of the Criminal Code).
(4) In a proceeding in relation to a contravention of a provision of Part V or VC committed by the supplying of goods that did not comply with a consumer product safety standard or in relation to which the supplier did not comply with a consumer product information standard, it is a defence if the defendant establishes:
Note: In a prosecution for an offence against Part VC, a defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4 of the Criminal Code).
(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.
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.
(1A) Jurisdiction is conferred on the Federal Magistrates Court in any matter arising under section 46, Part IVA, Part IVB, Division 1, 1AAA, 1A or 2A of Part V or Part VA 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 IVA or IVB or Division 1, 1A or 1AA of Part V 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:
(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.
86AA Limit on jurisdiction of Federal Magistrates Court
If proceedings under Part VA or section 82 are instituted in, or transferred to, the Federal Magistrates Court, the Federal Magistrates Court does not have jurisdiction to award an amount for loss or damage that exceeds:
Note: For transfers from the Federal Court to the Federal Magistrates Court, see section 32AB of the Federal Court of Australia Act 1976. For transfers from the Federal Magistrates Court to the Federal Court, see section 39 of the Federal Magistrates Act 1999.
86A Transfer of matters
(1) Where:
Part IVA or IVB or Division 1, 1A or 1AA of Part V; 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.
Part IVA or Division 1, 1A or 1AA of Part V; the court shall, if directed to do so by the Federal Court, transfer to the Federal Court the matter referred to in paragraph (b) and 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.
(5) Where:
Part IVA or Division 1, 1A or 1AA of Part V; the court may, subject to subsection (6), upon the application of a party or of the court’s own motion, transfer to a court (other than the Supreme Court) of a State or Territory other than the State or Territory referred to in paragraph (a) the matter referred to in paragraph (b).
86B Transfer of certain proceedings to Family Court
(1) Subject to subsection (2), where:
Part IVA or Division 1, 1A or 1AA of Part V; 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.
(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, as the case may be, in and in relation to the proceeding;
(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;
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:
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:
Example: The following are examples of community service orders:
contravening conduct means conduct that:
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:
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:
(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.
86DA Commission may issue a public warning notice
Contraventions
Substantiation notices
(3) Without limiting subsection (1), if:
issue a notice under this subsection; the Commission 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.
Notice is not a legislative instrument
(4) A notice issued under subsection (1) or (3) is not a legislative instrument.
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:
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:
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.
(1B) 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:
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.
Note: ASIC must keep a register of persons who have been disqualified from managing corporations: see section 1274AA of the Corporations Act 2001.
(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:
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:
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) Subject to subsection (1AA) but without limiting the generality of section 80, where, in a proceeding instituted under this Part, or for an offence against section 44ZZRF or 44ZZRG or Part VC, 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, IVA, IVB, V or VC, 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) Subject to subsection (1AA) but without limiting the generality of section 80 or 87AAA, the Court may:
(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:
(1AA) The Court may not make an order under subsection (1) or (1A) to compensate a person for loss or damage the person suffers by conduct of another person to the extent to which:
Note: As a result, the Commission will not be able to apply on the person’s behalf under paragraph (1A)(b) for an order in relation to the loss or damage.
(1AB) Division 2 of Part VIB applies to an application for an order under subsection (1A) to compensate a person for loss or damage the person suffers by conduct of another person to the extent to which:
of tobacco products; as if the proceeding in relation to the application were a proceeding to which Part VIB applies and as if the making of the application were the commencement of the proceeding.
Note: Division 2 of Part VIB 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 (1CA) of this section.
(1AC) Division 7 of Part VIB applies to a proceeding in which an order under subsection (1) or (1A) to compensate a person for loss or damage the person suffers by conduct of another person is made to the extent to which:
of tobacco products; as if the proceeding were a proceeding to which Part VIB applies.
Note: Division 7 of Part VIB deals with structured settlements for claims for damages or compensation for death or personal injury.
(1B) The Commission may make an application under paragraph (1A)(b) on behalf of one or more persons identified in the application who:
(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:
(1C) An application may be made under subsection (1A) in relation to a contravention of Part IV, IVA, IVB, V or VC 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.
(1D) For the purpose of determining whether to make an order under this section in relation to a contravention of Part IVA, the Court may have regard to the conduct of parties to the proceeding since the contravention occurred.
(2) The orders referred to in subsection (1) and (1A) are:
(ba) an order refusing to enforce any or all of the provisions of such a contract;
(2A) Subsections (1) and (1A) have effect subject to section 87AB.
Note: Section 87AB may limit the liability, under an order under subsection (1) or (1A) of this section, of a person for his or her contravention of section 52 (Misleading or deceptive conduct) or involvement in such a contravention.
(3) Where:
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:
Note: Part VIB restricts awards of compensation for death or personal injury, and sets out time limits for commencing actions for compensation for death or personal injury.
(7) In this section:
smoking has the same meaning as in the Tobacco Advertising Prohibition Act 1992.
tobacco product has the same meaning as in the Tobacco Advertising Prohibition Act 1992.
87AAA Orders to redress loss or damage suffered by non-party consumers etc.
Orders
(1) Without limiting the generality of section 80, if:
relation to the contravening conduct; the Court 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 87AAB.
Application for orders
Determining whether to make an order
When a non-party consumer is bound by an order etc.
(9) If:
or reduction; then:
Other
(10) Subsection (1) has effect subject to section 87AB.
Note: Section 87AB may limit the liability, under an order made under subsection (1) of this section, of a person for his or her contravention of section 52 (which is about misleading or deceptive conduct) or involvement in such a contravention.
(11) This section does not apply in relation to contravening conduct that occurred before the commencement of this section.
87AAB Kinds of orders that may be made to redress loss or damage suffered by non-party consumers etc.
Without limiting subsection 87AAA(1), the orders that the Court may make under that subsection against a person (the respondent) include all or any of the following:
87A Power of Court to prohibit payment or transfer of moneys or other property
(1) Where:
the Court may, on the application of the Minister or the Commission, make an order or orders mentioned in subsection (2) if the Court is satisfied that:
(5A) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
87AA Special provision relating to Court’s exercise of powers under this Part in relation to boycott conduct
boycott conduct means conduct that constitutes or would constitute:
industrial authority means:
87AB Limit on liability for misleading or deceptive conduct
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 contravention of section 52 in the same way as it limits occupational liability arising under a law of the State or Territory.
Note: Section 52 prohibits misleading or deceptive conduct by corporations in trade or commerce and (because of sections 5 and 6) by other persons in certain types of trade or commerce.
(2) However, the professional standards law applies for that purpose:
Which State’s or Territory’s professional standards law applies?
(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 52, choice of law rules operate in relation to the contravention in the same way as they operate in relation to a tort.
Definitions
(4) In this section:
modifications includes additions, omissions and substitutions.
occupation includes profession and trade.
occupational association means a body:
occupational liability means civil liability arising directly or vicariously from anything done or omitted by a member of an occupational association in the course of his or her occupation.
professional standards law means a law providing for the limitation of occupational liability by reference to schemes for limiting that liability that were formulated and published in accordance with that law.
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.
87C Enforcement of undertakings—Secretary to the Department
87CA Intervention by Commission
87CAA The effect of Part VIB on this Part
This Part has effect subject to Part VIB.
87CB Application of Part
87CC Certain concurrent wrongdoers not to have benefit of apportionment
87CD Proportionate liability for apportionable claims
(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:
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.
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:
87CG Subsequent actions
87CH Joining non-party concurrent wrongdoer in the action
87CI Application of Part
Nothing in this Part:
Section 87D
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:
long-stop period has the meaning given by section 87H. maximum amount of damages for non-economic loss has the meaning given by section 87M.
minor means a person under 18.
Section 87E
most extreme case has the meaning given by subsection 87P(2).
non-economic loss means any one or more of the following:
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 section 75AQ or paragraph 87(1A)(b)—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.
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 this Act:
Section 87E
(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.
Section 87F
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:
(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.
No Yes
Yes No
No Yes
Section 87G
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:
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:
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.
Section 87H
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:
87H Long-stop period
Section 87J
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:
87K The effect of close relationships
(1) If:
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:
(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:
Section 87L
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:
Current September CPI number Previous maximum amount × Previous September CPI number
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.
Section 87N
87N Index numbers
disregard the publication of the later index number for the purposes of 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
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 Section 87R
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 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 | 16% 17% 18% 19% 20% 21% 22% 23% 24% 25% 26% 27% 28% 29% 30% 31% 32% | 1.5% 2% 2.5% 3% 3.5% 4% 4.5% 5% 5.5% 6.5% 8% 10% 14% 18% 23% 26% 30% | |
|---|---|---|---|
| Trade Practices Act 1974 | 415 |
Section 87S
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
Section 87U
87U Personal injury damages for loss of earning capacity
In determining, in a proceeding to which this Part applies, personal injury damages for:
weekly earnings during any quarter would (but for the personal injury or death in question) have exceeded:
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:
Section 87V
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.
Section 87W
87W Personal injury damages for gratuitous attendant care services for plaintiff
Section 87X
the court must not award as personal injury damages for the services:
(5) Gratuitous attendant care services are services that one person provides to another person:
87X Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant care services
Section 87X
weekly earnings was ascertainable, the court must not award as personal injury damages for the services:
(4) If the plaintiff:
was made; the court must not award as personal injury damages for the services:
Section 87Y
87Y Damages for future economic loss—discount rate
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:
Superannuation percentage × Damages for earnings loss
where:
damages for earnings loss are the personal injury damages payable (in accordance with this Part) for:
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
10-year benchmark bond rate, on a day, means:
Section 87ZB
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
Section 87ZC
87ZC Court may make orders under section 87 for structured settlements
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.
87ZD Purpose and effect of this Part
87ZE Issue of an infringement notice
87ZF Matters to be included in an infringement notice
An infringement notice must:
87ZG Amount of penalty
The penalty to be specified in an infringement notice that is to be issued to a person must be a pecuniary penalty equal to the number of penalty units worked out using the following table:
Number of penalty units Item If the infringement notice is the number of penalty for an alleged contravention units is ... of ...
| 1 | a provision of Part IVA | (a) if the person is a body corporate—60; or |
| (b) if the person is not a | ||
| body corporate—12. | ||
| 2 | a provision of Division 1 or 1AAA of Part V (other than | (a) if the person is a body corporate—60; or |
| section 52, paragraph 53A(1)(c), section 54, subsection 56(1) or section 58 | (b) if the person is not a body corporate—12. | |
| or 64) | ||
| 3 | subsection 65C(1) or (3) or 65D(1) or section 65G | (a) if the person is a body corporate—60; or |
| (b) if the person is not a | ||
| body corporate—12. | ||
| 4 | section 87ZN | (a) if the person is a body |
| corporate—30; or | ||
| (b) if the person is not a | ||
| body corporate—6. | ||
| 5 | section 87ZO | (a) if the person is a body |
| corporate—50; or | ||
| (b) if the person is not a | ||
| body corporate—10. |
87ZH Effect of compliance with an infringement notice
87ZI Effect of failure to comply with an infringement notice
If:
section 87ZK; the person is liable to proceedings under Part VC or VI in relation to the alleged contravention of the infringement notice provision.
87ZJ Infringement notice compliance period for infringement notice
87ZK Withdrawal of an infringement notice
Representations to the Commission
Withdrawal by the Commission
Content of withdrawal notices
(5) The withdrawal notice must state:
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.
87ZL Commission may require claims to be substantiated etc.
(1) This section applies if a person has made a claim or representation promoting, or apparently intended to promote:
corporation; including any such claim or representation made by the corporation.
(2) The Commission may give the person who has made the claim or representation a written notice that requires the person to do one or more of the following:
(whether or not the claim or representation relates to those quantities or that period);
(c) give information and/or produce documents to the
Commission that are of a kind specified in the notice; within 21 days after the notice is given to the person.
87ZM Extending periods for complying with substantiation notices
87ZN Compliance with substantiation notices
87ZO False or misleading information etc.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 87ZP
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:
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, arrangement or understanding would be, or might be, a cartel provision; or Section 88
(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:
(1) Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant an authorization to the corporation:
and, while such an authorization remains in force:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 88
(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.
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
Section 88
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.
(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, 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:
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
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 88
(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.
(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:
arrangement; and, while such an authorisation remains in force:
(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.
Section 88
(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.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 88
Section 89
(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:
(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:
(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.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 89
(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;
(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 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; Section 89
(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 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
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 90
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 the Trade Practices Act 1974 immediately before the commencement of the Trade Practices Amendment Act 1977.
90 Determination of applications for authorisations
Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.
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 Section 90
(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:
(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:
(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:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 90
(a) make a determination granting:
(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 result, in such a benefit to the public that the contract, arrangement or understanding should be allowed to be given effect to.
Section 90
(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):
(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.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 90
(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:
(11) Subject to subsections (12) and (13), if the Commission does not determine an application for an authorisation under subsection 88(9) within:
the Commission shall be deemed to have granted, at the end of that period, the authorisation applied for.
(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 Section 90
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.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 90A
90A Commission to afford opportunity for conference before determining application for authorisation
opposing the application; 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:
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 Section 90A
(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):
she wishes the Commission to hold such a conference; the Commission may make the determination at any time after the expiration of that period.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 90A
(e) no other person is entitled to be present.
and any such certificate shall be received in all courts as evidence of the matters certified.
Section 90B
(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.
90B Commission may rely on consultations undertaken by the AEMC
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 91
(3) In this section:
National Electricity Rules means:
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:
(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 Section 91
(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:
(2) If the Commission considers that it is appropriate to do so:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 91A
(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
(a) indicate the nature of the variation applied for; and
Section 91A
(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.
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.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 91B
91B Revocation of an authorization
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:
authorization was granted; the Commission may, by notice in writing given to any persons who appear to the Commission to be interested:
(4) After considering any submissions invited under subsection (2) or
Section 91C
(b) deciding not to revoke the authorization.
(5) If an objection to the revocation is included in any submission
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), (6), (7), (8), (8A), (8B) or (9) from making a determination granting the authorization in respect of which the revocation is sought.
91C Revocation of an authorization and substitution of a replacement
Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Authorisations (other than section 50 merger authorisations) Division 1 Section 91C
(3) If, at any time after granting an authorization, it appears to the Commission that:
authorization was granted; the Commission may, by notice in writing given to any persons who appear to be interested:
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: Section 91C
Authorisations, notifications and clearances in respect of restrictive trade practices Part Notifications Division 2 Section 93
93 Notification of exclusive dealing
(1) Subject to subsection (2), a corporation that engages, or proposes to engage, in conduct of a kind referred to in 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:
(2) A corporation may not give a notice for conduct or proposed conduct if:
(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.
Section 93
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:
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
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.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Notifications Division 2 Section 93
(3A) If:
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.
(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 Section 93
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:
(7A) A notice under subsection (1) describing conduct or proposed conduct referred to in subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) comes into force:
(7B) A notice under subsection (1) describing conduct or proposed conduct referred to in subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) does not come into force:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Notifications Division 2 Section 93
(7C) A notice under subsection (1) describing conduct referred to in subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) ceases to be in force:
(8) Where:
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:
Section 93AA
(c) in any other case—the day on which the Tribunal makes a determination on the review.
(10) Where:
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.
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:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Notifications Division 2 Section 93AB
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:
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.
Section 93AB
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:
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:
Third—price of contracts with target
(4) Third, the corporation must reasonably expect that:
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):
Authorisations, notifications and clearances in respect of restrictive trade practices Part Notifications Division 2 Section 93AB
Form of notice etc.
(6) To be valid, a collective bargaining notice must:
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:
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:
Section 93AB
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:
(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:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Notifications Division 2 Section 93AC
(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:
(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 Section 93AD
(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:
(iii) any other information in its possession.
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
Authorisations, notifications and clearances in respect of restrictive trade practices Part Notifications Division 2 Section 93AD
(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:
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:
Note: Section 93AE deals with the withdrawal of a collective bargaining notice.
(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 the day the Commission gave the notice. Tribunal for a review of the Commission’s decision to give the objection notice
Section 93AE
Relevant day In this situation: the relevant day is:
| 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
Deemed withdrawal
(3) If:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Notifications Division 2 Section 93AEA
(d) either:
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:
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.
93AF Only 1 collective bargaining notice under subsection 93AB(1) may be given
If:
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.
Section 93A
93A Commission to afford opportunity for conference before giving notice
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
Authorisations, notifications and clearances in respect of restrictive trade practices Part Notifications Division 2 Section 93A
to each of the persons to whom a notice was sent under subsection (2).
Section 95
was received by the Commission and the day on which the
conference terminated; and any such certificate shall be received in all courts as evidence of the matters certified.
(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).
(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.
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
Authorisations, notifications and clearances in respect of restrictive trade practices Part Notifications Division 2 Section 95
(gb) details of the specification of any day by the Commission under paragraph 93AD(3)(b); and
(2) Where a person furnishes a document to the Commission:
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: Section 95
(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.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Notifications Division 2 Section 95
(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.
Section 95AA
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:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AB
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. 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.
Section 95AC
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.
95AC Commission may grant clearance for a merger
(1) The Commission may grant a clearance to a 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).
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:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AF
(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:
95AG Application to be published on the internet
After receiving an application for a clearance, the Commission must:
95AH Merger clearance register
(1) The Commission must keep a register (the merger clearance register) of:
including applications that have been withdrawn or proposals that have been abandoned.
Section 95AI
(2) The register must include:
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.
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:
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
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AJ
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 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
Section 95AL
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:
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:
(2A) In making its determination, the Commission may disregard:
(3) The Commission must notify the applicant in writing of its determination and give written reasons for it.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AN
95AN When clearance must not be granted
95AO Time limits for determining application
(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.
Section 95AQ
Note 1: Under subsection 95AS(5), the Commission may revoke a clearance if a condition of the clearance has not been complied with.
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
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AR
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:
(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:
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:
Section 95AR
Commission must make a determination on the application
(5) The Commission must make a determination in writing:
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:
(5B) In making its determination, the Commission may disregard:
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
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AR
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
(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 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 Section 95AS
(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:
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:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AS
(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:
Application to be published on the internet
(4) The Commission must:
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:
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:
Section 95AS
(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:
clearance was granted of its determination and give written reasons for it.
(7A) In making its determination, the Commission must take into account:
(7B) In making its determination, the Commission may disregard:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AS
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:
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
(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 Section 95AT
substituted for the period referred to in subsection (10) (or any other period that is taken to be substituted 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:
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:
95AT Tribunal may grant authorisation for a merger
(1) The Tribunal may grant an authorisation to a 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.
Note 2: Division 2 of Part IX contains provisions about procedure and evidence that relate to proceedings before the Tribunal.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AU
(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
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 Section 95AX
(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:
95AZ Merger authorisation register
(1) The Tribunal must keep a register (the merger authorisation register) of:
including applications that have been withdrawn.
(2) The register must include:
unless section 95AZA (confidentiality) prevents the inclusion.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AZA
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:
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.
Section 95AZC
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.
95AZD Tribunal may seek further information and consult others etc.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AZE
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
95AZF Commission to assist Tribunal
(1) For the purposes of determining the application:
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.
Section 95AZFA
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:
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:
(2A) In making its determination, the Tribunal may disregard:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AZH
(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
95AZI Time limits for determining application
(a) the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances; and Section 95AZJ
(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.
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
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.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AZL
Requirements for valid application
(2) To be valid, the application must:
(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:
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:
Section 95AZL
Tribunal must make a determination on the application
(6) The Tribunal must make a determination in writing:
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:
(6B) In making its determination, the Tribunal may disregard:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AZL
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
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:
(a) a person applies for 2 or more variations:
(i) at the same time; or Section 95AZM
(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:
(ca) section 95AZEA (Tribunal must require Commission to give report);
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 whom the authorisation was granted applies to the Tribunal for this to occur.
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AZM
Requirements for valid application
(2) To be valid, the application must:
(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:
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:
Section 95AZM
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:
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:
Tribunal must make a determination
(8) The Tribunal must make a determination in writing:
authorisation was granted of its determination and give written reasons for it.
(8A) In making its determination, the Tribunal must take into account:
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AZM
that section applies because of subsection (15) of this section); and
(8B) In making its determination, the Tribunal may disregard:
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:
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 Section 95AZM
making a determination granting the substituted authorisation, if it were a new authorisation sought under section 95AU.
Time limits for determining application
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.
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:
(ca) section 95AZEA (Tribunal must require Commission to give report);
Authorisations, notifications and clearances in respect of restrictive trade practices Part Merger clearances and authorisations Division 3 Section 95AZN
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:
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.
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.
Section 95A
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:
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.
goods includes:
Section 95A
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:
inquiry Chair means:
inquiry notice means a notice under section 95H.
law of the Commonwealth does not include:
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.
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.
Section 95A
price includes:
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:
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:
supply includes:
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 Section 95C
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
95D Crown to be bound
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
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
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.
Section 95F
(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
Section 95G
95G Commission’s functions under this Part
(1) The Commission’s functions under this Part are set out in this section.
Price inquiries
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:
Section 95G
(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.
Section 95H
95H Price inquiries
Inquiries by Commission
Inquiries by other bodies
(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:
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 Section 95J
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
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.
Ministerial directions
Section 95K
95K Period for completing inquiry
Inquiry 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.
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.
95L Notice of holding of inquiry
General notice
Section 95M
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:
95M Notice of extension of period for completing inquiry
If:
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 is guilty of an offence if:
(a) before the applicable day in relation to the business notice, the person supplies (the current supply) goods or services of Section 95N
that description in a locality on particular terms and conditions; and
Penalty: 100 penalty units.
Offence: no previous local supply
(3) The person is guilty of an offence if:
Penalty: 100 penalty units.
Section 95N
Offence: no previous supply in Australia
(4) The person is guilty of an offence if:
Penalty: 100 penalty units.
Approval to increase prices
(5) The Commission may give the person a notice in writing stating that the person is permitted, during the period:
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: Section 95P
95P Copies of report to be made available
Inquiry into supply of goods or services by particular persons
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.
Section 95R
Offence
(3) A person is guilty of an offence if the person contravenes subsection (2).
Penalty: 10 penalty units.
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.
95R Public inquiries etc.
Public inquiries
(1) An inquiry body must hold an inquiry in public, unless the Minister directs otherwise.
Taking of evidence
Section 95S
Written submissions
Procedure
Note: See also section 95ZN (about confidentiality of information).
95S Taking of evidence on oath or affirmation
Evidence on oath or affirmation
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.
Section 95T
(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 is guilty of an offence if:
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:
Penalty: 10 penalty units.
Section 95V
(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).
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.
95W Allowances to witnesses
Section 95X
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
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:
Section 95Y
Minister has consulted the appropriate Minister of the State
or Territory concerned.
Role of Council
Definitions
(5) In this section:
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.
Section 95Z
95Z Price restrictions
Offence: previous local supply
(1) A person is guilty of an offence if:
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this offence.
Offence: no previous local supply
(2) A person is guilty of an offence if:
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this offence.
Offence: no previous supply in Australia
(3) A person is guilty of an offence if:
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this offence.
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).
Section 95ZA
Note: The person may give further notices modifying the locality notice: see section 95ZA.
Response to locality notice
(6) The second requirement is that:
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:
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 Section 95ZB
that the locality notice is to have effect as if there were substituted for the proposed price another specified price.
proposed price has the meaning given by subsection 95Z(5).
95ZB Applicable period in relation to a locality notice
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.
Section 95ZC
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:
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:
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:
Section 95ZD
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.
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
price notification powers means the Commission’s powers under paragraph 95Z(6)(b) or (c).
Section 95ZE
95ZE Directions to monitor prices, costs and profits of an industry
(1) The Minister may give the Commission a written direction:
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:
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.
Section 95ZG
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.
Section 95ZH
95ZH Ministerial directions
Commission
Other bodies
95ZI Inquiries by an unincorporated body or a group of 2 or more individuals
Section 95ZJ
95ZJ Withdrawal of notices
Commission
Other bodies
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:
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 Section 95ZK
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;
stating that the information or documents are true and correct.
Notice by other bodies
(2) If:
the inquiry Chair may, by notice in writing signed by him or her and given to the person, require 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.
Section 95ZK
Offence: refusal or failure to comply with notice
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
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:
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).
Section 95ZL
95ZL Inspection of documents etc.
Members or staff members
Associate members
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:
95ZM Retention of documents
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:
Commission or other body to take confidentiality steps
(2) If the Commission or other body, as the case may be:
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:
Section 95ZO
(d) in relation 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.
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 is guilty of an offence if:
Section 95ZP
Penalty: Imprisonment for 2 years.
Courts
(2) An entrusted person cannot be required to:
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.
entrusted person means a person who is or was:
produce includes permit access to.
protected document means a document that:
protected information means information that:
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.
Section 95ZQ
95ZQ Secrecy: persons involved in inquiries by bodies other than the Commission
Offence
(1) An external person is guilty of an offence if:
Penalty: Imprisonment for 2 years.
Courts
(2) An external person cannot be required to:
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:
produce includes permit access to.
Section 95ZQ
protected document means a document that:
protected information means information that:
96 Acts constituting engaging in resale price maintenance
specified by the supplier as the price below which the goods are not to be sold;
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
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:
“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
99 Statements as to the minimum price of goods
(1) For the purposes of paragraph 96(3)(f), if:
the statement shall be deemed to have been used in relation to those goods.
(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:
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.
Section 101
101 Applications for review
(1) A person dissatisfied with a determination by the Commission under Division 1 of Part VII:
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:
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 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 Section 101A
referred to in subsection 90(5A), (5B), (6), (7), (8), (8A), (8B) or (9).
(1B) A presidential member may, on the application of a person concerned:
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), (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.
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:
Section 102
(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:
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:
is, for the purposes of this Act other than this Part, to be taken to be a determination of the Commission.
Section 102
(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:
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 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 Section 102
(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:
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.
(5AC) If the Tribunal sets aside a notice (the objection notice) given by the Commission under subsection 93AC(1) or (2), then:
Section 102
(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:
Section 102A
102A Definition
In this Part:
proceedings includes:
103 Procedure generally
104 Regulations as to certain matters
The regulations may make provision:
(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 Section 105
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
106 Hearings to be in public except in special circumstances
Section 107
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:
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.
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; Section 110
Section 111
111 Applications for review
(1) A person who applied under Subdivision B of Division 3 of Part VII for:
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:
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.
(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 Section 112
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
Section 115
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:
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.
118 Time limits for making review decision
Section 119
(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.