{"id":"C2004A00109","name":"Competition and Consumer Act 2010","slug":"competition-and-consumer-act-2010","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"51 of 1974","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":623097,"registerId":"C2026C00405","compilationNumber":"167","startDate":"2026-09-16","status":"InForce","reasons":[{"affect":"Amend","markdown":"sch 4 (items 1-21), sch 5 (items 1-21) of the [Treasury Laws Amendment (Strengthening Accountability for Tax Adviser Misconduct and Other Measures) Act 2026](/C2026A00086)","dateChanged":null,"amendedByTitle":null,"affectedByTitle":{"name":"Treasury Laws Amendment (Strengthening Accountability for Tax Adviser Misconduct and Other Measures) Act 2026","year":2026,"number":86,"titleId":"C2026A00086","provisions":"sch 4 (items 1-21), sch 5 (items 1-21)","seriesType":"Act","optionalSeriesNumber":null}}],"registeredAt":"2026-09-24T15:35:57.807Z"},"sections":[{"sectionNumber":"Part I","sectionType":"part","heading":"Preliminary","content":"Part I—Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"1  Short title\n\n  This Act may be cited as the Competition and Consumer Act 2010.","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Object of this Act","content":"2  Object of this Act\n\n  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.","sortOrder":2},{"sectionNumber":"2A","sectionType":"section","heading":"Application of Act to Commonwealth and Commonwealth authorities","content":"2A  Application of Act to Commonwealth and Commonwealth authorities\n\n (1) Subject to this section and sections 44AC, 44E and 95D, this Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth.\n\n (2) Subject to the succeeding provisions of this section, this Act applies as if:\n\n (a) the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and\n\n (b) each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Commonwealth) in so far as it carries on a business;\n\nwere a corporation.\n\n (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.\n\n (3A) The protection in subsection (3) does not apply to an authority of the Commonwealth.\n\n (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.","sortOrder":3},{"sectionNumber":"2B","sectionType":"section","heading":"Application of Act to States and Territories","content":"2B  Application of Act to States and Territories\n\n (1) The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory:\n\n (a) Part IV;\n\n (aaa) Part IVBA;\n\n (aa) Part V;\n\n (b) Part XIB;\n\n (ba) Part XICA;\n\n (c) the other provisions of this Act so far as they relate to the above provisions;\n\n (d) the acquisitions provisions.\n\n (2) Nothing in this Act renders the Crown in right of a State or Territory liable to a pecuniary penalty or to be prosecuted for an offence.\n\n (3) The protection in subsection (2) does not apply to an authority of a State or Territory.","sortOrder":4},{"sectionNumber":"2BA","sectionType":"section","heading":"Application of Parts IV and IVA to local government bodies","content":"2BA  Application of Parts IV and IVA to local government bodies\n\n (1) Parts IV and IVA apply in relation to a local government body only to the extent that it carries on a business, either directly or by an incorporated company in which it has a controlling interest.\n\n (2) In this section:\n\nlocal 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.","sortOrder":5},{"sectionNumber":"2C","sectionType":"section","heading":"Activities that are not business","content":"2C  Activities that are not business\n\n (1) For the purposes of sections 2A, 2B and 2BA, the following do not amount to carrying on a business:\n\n (a) imposing or collecting:\n\n (i) taxes; or\n\n (ii) levies; or\n\n (iii) fees for licences;\n\n (b) granting, refusing to grant, revoking, suspending or varying licences (whether or not they are subject to conditions);\n\n (c) a transaction involving:\n\n (i) only persons who are all acting for the Crown in the same right (and none of whom is an authority of the Commonwealth or an authority of a State or Territory); or\n\n (ii) only persons who are all acting for the same authority of the Commonwealth; or\n\n (iii) only persons who are all acting for the same authority of a State or Territory; or\n\n (iv) only the Crown in right of the Commonwealth and one or more non‑commercial authorities of the Commonwealth; or\n\n (v) only the Crown in right of a State or Territory and one or more non‑commercial authorities of that State or Territory; or\n\n (vi) only non‑commercial authorities of the Commonwealth; or\n\n (vii) only non‑commercial authorities of the same State or Territory; or\n\n (viii) only persons who are all acting for the same local government body (within the meaning of section 2BA) or for the same incorporated company in which such a body has a controlling interest;\n\n (d) the acquisition of primary products by a government body under legislation, unless the acquisition occurs because:\n\n (i) the body chooses to acquire the products; or\n\n (ii) the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products.\n\n (2) Subsection (1) does not limit the things that do not amount to carrying on a business for the purposes of sections 2A, 2B and 2BA.\n\n (3) In this section:\n\nacquisition of primary products by a government body under legislation includes vesting of ownership of primary products in a government body by legislation.\n\ngovernment body means the Commonwealth, a State, a Territory, an authority of the Commonwealth or an authority of a State or Territory.\n\nlicence means a licence that allows the licensee to supply goods or services.\n\nprimary products means:\n\n (a) agricultural or horticultural produce; or\n\n (b) crops, whether on or attached to the land or not; or\n\n (c) animals (whether dead or alive); or\n\n (d) the bodily produce (including natural increase) of animals.\n\n (4) For the purposes of this section, an authority of the Commonwealth or an authority of a State or Territory is non‑commercial if:\n\n (a) it is constituted by only one person; and\n\n (b) it is neither a trading corporation nor a financial corporation.","sortOrder":6},{"sectionNumber":"3","sectionType":"section","heading":"Repeal","content":"3  Repeal\n\n  The Restrictive Trade Practices Act 1971 and the Restrictive Trade Practices Act 1972 are repealed.","sortOrder":7},{"sectionNumber":"4","sectionType":"section","heading":"Interpretation","content":"4  Interpretation\n\n (1) In this Act, unless the contrary intention appears:\n\naccountable authority has the same meaning as in the Public Governance, Performance and Accountability Act 2013.\n\nAccreditation Registrar means:\n\n (a) if a person holds an appointment under subsection 56CK(1)—that person; or\n\n (b) otherwise—the Commission.\n\naccredited action initiator has the meaning given by section 56AMC.\n\naccredited data recipient has the meaning given by section 56AK.\n\naccredited person means a person who holds an accreditation under subsection 56CA(1).\n\nACMA means the Australian Communications and Media Authority.\n\nacquire includes:\n\n (a) in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hire‑purchase; and\n\n (b) in relation to services—accept.\n\nacquisition determination, in respect of a notification of an acquisition, means:\n\n (a) a determination made under subsection 51ABZE(1) in respect of the notification; or\n\n (b) a determination made under subsection 51ABZW(1) in respect of a public benefit application relating to the notification.\n\nacquisitions provision means any of the following provisions:\n\n (a) a provision of Division 1A of Part IV;\n\n (b) a provision of Part IVA;\n\n (c) a provision of Division 1B of Part IX;\n\n (d) another provision of this Act, to the extent that it relates to a provision covered by paragraph (a), (b) or (c);\n\n (e) section 50AA of the Corporations Act 2001, as that section applies for the purposes of section 51ABSA of this Act;\n\n (f) section 50AA of the Corporations Act 2001, as that section applies for the purposes of section 51ABSB of this Act.\n\nNote: For paragraphs (e) and (f), section 50AA of that Act:\n\n(a) applies with modifications for section 51ABSA; and\n\n(b) applies without modifications for section 51ABSB.\n\nacquisitions register means the register kept by the Commission under subsection 51ABZZH(1).\n\nactionable scam intelligence has the meaning given by section 58AI.\n\naction service provider has the meaning given by subsection 56AMB(1).\n\nadjusted turnover, of a body corporate during a 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 period, other than:\n\n (a) supplies made from any of those bodies corporate to any other of those bodies corporate; or\n\n (b) supplies that are input taxed; or\n\n (c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999); or\n\n (d) supplies that are not made in connection with an enterprise that the body corporate carries on; or\n\n (e) supplies that are not connected with the indirect tax zone.\n\nExpressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.\n\nAEMC or Australian Energy Market Commission means the body established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia.\n\nAER or Australian Energy Regulator means the body established by section 44AE.\n\nAER Chair means the Chair of the AER.\n\nAER member means a member of the AER.\n\narrive at, in relation to an understanding, includes reach or enter into.\n\nASIC means the Australian Securities and Investments Commission.\n\nassociate, of an SPF consumer, means an associate (within the meaning of section 318 of the Income Tax Assessment Act 1936) of the SPF consumer who is:\n\n (a) a natural person who is in Australia or is ordinarily resident in Australia; or\n\n (b) a person who carries on a business having a principal place of business in Australia;\n\nAustralian Consumer Law means Schedule 2 as applied under Subdivision A of Division 2 of Part XI.\n\nAustralian law has the same meaning as in the Privacy Act 1988.\n\nAustralian repairer: see section 57BB.\n\nauthorisation means an authorisation under Division 1 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission.\n\nauthority, in relation to a State or Territory, and each external Territory, means:\n\n (a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or\n\n (b) an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.\n\nNote: See also the definitions of Commonwealth authority and State or Territory authority in subsection 95A(1) (which apply in relation to Part VIIA).\n\nauthority of the Commonwealth means:\n\n (a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or\n\n (b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.\n\nNote: See also the definitions of Commonwealth authority and State or Territory authority in subsection 95A(1) (which apply in relation to Part VIIA).\n\nbanker 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.\n\nbinding data standard has the meaning given by subsection 56FA(3).\n\nbreach turnover period, of a body corporate, for an offence, a contravention, or an act or omission, means the longer of the following periods:\n\n (a) the period of 12 months ending at the end of the month in which:\n\n (i) for an offence—the body corporate ceased committing the offence, or was charged with the offence (whichever is earlier); or\n\n (ii) for a contravention—the contravention ceased, or proceedings in relation to the contravention were instituted (whichever is earlier); or\n\n (iii) for an act or omission—the act or omission ceased, or proceedings in relation to the act or omission were instituted (whichever is earlier);\n\n (b) the period ending at the same time as the period determined under paragraph (a) and starting:\n\n (i) for an offence—at the beginning of the month in which the body corporate committed, or began committing, the offence (as the case requires); or\n\n (ii) for a contravention—at the beginning of the month in which the contravention occurred or began occurring (as the case requires); or\n\n (iii) for an act or omission—at the beginning of the month in which the act or omission occurred or began occurring (as the case requires).\n\nbusiness includes a business not carried on for profit.\n\nbusiness day: in Part IVA, business day has the meaning given by section 51ABK.\n\ncartel provision has the meaning given by section 45AD.\n\ncash distribution framework means:\n\n (a) the Cash Distribution Framework Act 2026; or\n\n (b) record‑keeping rules within the meaning of that Act; or\n\n (c) rules or any other instrument made under that Act; or\n\n (d) the Regulatory Powers Act to the extent that it applies in relation to a provision of that Act.\n\nCDR Accreditor means:\n\n (a) if a person holds an appointment under subsection 56CG(1)—that person; or\n\n (b) otherwise—the Commission.\n\nCDR action has the meaning given by subsection 56AMA(1).\n\nCDR action participant has the meaning given by section 56AMD.\n\nCDR consumer has the meaning given by subsection 56AI(3) or (3A).\n\nCDR data has the meaning given by subsection 56AI(1).\n\nCDR declaration has the meaning given by subsection 56AMA(2).\n\nCDR participant has the meaning given by subsection 56AL(1).\n\nCDR provisions has the meaning given by section 56AN.\n\nChairperson means the Chairperson of the Commission.\n\nChapter 6 entity has the meaning given by subsection 51ABJ(1).\n\nchargeable CDR data has the meaning given by subsection 56AM(1).\n\nchargeable circumstances:\n\n (a) in relation to the disclosure of chargeable CDR data—has the meaning given by subsection 56AM(2); or\n\n (b) in relation to the use of chargeable CDR data—has the meaning given by subsection 56AM(3).\n\ncivil penalty provision of a gas market instrument means a provision of a gas market instrument that is a civil penalty provision (within the meaning of the Regulatory Powers Act).\n\ncivil penalty provision of an SPF code means:\n\n (a) a provision of an SPF code (see Division 3 of Part IVF) that is a civil penalty provision (within the meaning of the Regulatory Powers Act); or\n\n (b) subsection 58FZM(3) in relation to compliance with a direction given under subsection 58FZM(2).\n\ncivil penalty provision of an SPF principle means:\n\n (a) a provision of Division 2 of Part IVF (about the Scams Prevention Framework) that is a civil penalty provision (within the meaning of the Regulatory Powers Act); or\n\n (b) subsection 58FZM(3) in relation to compliance with a direction given under subsection 58FZM(1).\n\ncivil penalty provision of the consumer data rules means a provision of the consumer data rules that is a civil penalty provision (within the meaning of the Regulatory Powers Act).\n\ncollective boycott conduct means conduct that has a purpose referred to in subsection 45AD(3) in relation to a contract, arrangement or understanding.\n\ncollects: a person collects information only if the person collects the information for inclusion in:\n\n (a) a record (within the meaning of the Privacy Act 1988); or\n\n (b) a generally available publication (within the meaning of that Act).\n\nCommission 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.\n\nCommonwealth AER member means an AER member referred to in section 44AM.\n\ncompetition includes:\n\n (a) competition from goods that are, or are capable of being, imported into Australia; and\n\n (b) competition from services that are rendered, or are capable of being rendered, in Australia by persons not resident or not carrying on business in Australia.\n\nconsumer data rules means rules in force under section 56BA.\n\ncontract includes a covenant.\n\ncorporation means a body corporate that:\n\n (a) is a foreign corporation;\n\n (b) is a trading corporation formed within the limits of Australia or is a financial corporation so formed;\n\n (c) is incorporated in a Territory; or\n\n (d) is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c).\n\nCouncil means the National Competition Council established by section 29A.\n\nCouncillor means a member of the Council, including the Council President.\n\nCouncil President means the Council President referred to in subsection 29C(1).\n\ncourt/tribunal order has the same meaning as in the Privacy Act 1988.\n\ncovenant 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.\n\ndata holder has the meaning given by subsection 56AJ(1).\n\ndata provider: see section 57BE.\n\ndata standard means a data standard made under section 56FA.\n\nData Standards Body means the body holding an appointment under subsection 56FJ(1).\n\nData Standards Chair means:\n\n (a) if a person holds an appointment under section 56FG—that person; or\n\n (b) otherwise—the Minister.\n\ndebenture 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.\n\nde‑identified: information is de‑identified if the information is no longer about an identifiable individual or an individual who is reasonably identifiable.\n\nDeputy Chairperson means a Deputy Chairperson of the Commission.\n\nDeputy President means a Deputy President of the Tribunal, and includes a person appointed to act as a Deputy President of the Tribunal.\n\nDeputy Registrar means a Deputy Registrar of the Tribunal.\n\ndesignated Commonwealth energy law means:\n\n (a) the National Electricity (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or\n\n (b) the National Gas (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or\n\n (c) the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or\n\n (d) the National Energy Retail Law and Regulations (Commonwealth) (as defined by the Australian Energy Market Act 2004).\n\ndesignated complaint: see section 154ZF.\n\ndesignated gateway has the meaning given by subsection 56AL(2).\n\ndesignated sector has the meaning given by subsection 56AC(1).\n\ndesignated Telstra successor company: see section 581G of the Telecommunications Act 1997.\n\ndetermination period:\n\n (a) for a notification of an acquisition—has the meaning given by subsection 51ABZI(3); and\n\n (b) for a public benefit application—has the meaning given by subsection 51ABZZ(2).\n\ndirectly or indirectly derived has the meaning given by subsection 56AI(2).\n\ndocument means any record of information, and includes:\n\n (a) anything on which there is writing; and\n\n (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and\n\n (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and\n\n (d) a map, plan, drawing or photograph.\n\ndual listed company arrangement has the same meaning as in section 125‑60 of the Income Tax Assessment Act 1997.\n\nearliest holding day has the meaning given by paragraph 56AC(2)(c).\n\neffective application date, of a public benefit application, has the meaning given by subsection 51ABZP(6), paragraph 51ABZR(1)(a), subsection 51ABZS(5) and paragraph 51ABZT(2)(a).\n\neffective notification date, of a notification of an acquisition, has the meaning given by subsection 51ABW(4), paragraph 51ABZ(1)(a), subsection 51ABZA(5) and subparagraph 51ABZB(2)(a)(i).\n\nelectronic communication means a communication of information by means of guided and/or unguided electromagnetic energy:\n\n (a) whether in the form of text; or\n\n (b) whether in the form of data; or\n\n (c) whether in the form of speech, music or other sounds; or\n\n (d) whether in the form of visual images (animated or otherwise); or\n\n (e) whether in any other form; or\n\n (f) whether in any combination of forms.\n\nexternal Territory:\n\n (a) means a Territory referred to in section 122 of the Constitution, where an Act makes provision for the government of the Territory as a Territory; but\n\n (b) does not include a Territory covered by the definition of Territory in this subsection.\n\nNote: The Australian Capital Territory, the Jervis Bay Territory, the Northern Territory, Norfolk Island and the Territories of Christmas Island and of Cocos (Keeling) Islands are covered by the definition of Territory in this subsection.\n\nfee‑free CDR data has the meaning given by subsection 56AM(4).\n\nfinally considered, in relation to a notification of an acquisition, has the meaning given by subsection 51ABF(1).\n\nfinancial 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).\n\nfit and proper person, in relation to accessing and using safety and security information: see section 57DB.\n\nforeign 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.\n\nfully‑participating jurisdiction means a State or Territory that:\n\n (a) is a participating jurisdiction as defined in section 150A; and\n\n (b) is not named in a notice in operation under section 150K.\n\ngas market code means regulations made for the purposes of section 53L.\n\ngas market emergency price order means an order in force under section 53M.\n\ngas market instrument means:\n\n (a) a gas market code; or\n\n (b) a gas market emergency price order.\n\ngas market provision means any of the following provisions:\n\n (a) a provision of Part IVBB;\n\n (b) a provision of the regulations made for the purposes of a provision of Part IVBB (including a gas market code);\n\n (c) a provision of a gas market emergency price order;\n\n (d) another provision of this Act to the extent that it relates to a provision covered by paragraph (a), (b) or (c).\n\ngive 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.\n\ngoods includes:\n\n (a) ships, aircraft and other vehicles;\n\n (b) animals, including fish;\n\n (c) minerals, trees and crops, whether on, under or attached to land or not; and\n\n (d) gas and electricity.\n\ngoodwill protection provision: a provision of a contract is a goodwill protection provision of the contract if:\n\n (a) the contract is for the sale of a business or of shares in the capital of a body corporate carrying on a business; and\n\n (b) the provision is solely for the protection of the purchaser in respect of the goodwill of the business.\n\nholds: a person holds information if the person has possession or control of a record (within the meaning of the Privacy Act 1988) that contains the information.\n\ninfringement notice compliance period for an SPF infringement notice: see section 58FT.\n\ninitiating party: see section 57EB.\n\ninspector, of an SPF regulator, has the meaning given by section 58FB.\n\ninvolved, in a contravention of a civil penalty provision of an SPF principle or of a civil penalty provision of an SPF code, means:\n\n (a) aiding, abetting, counselling or procuring a contravention of the provision; or\n\n (b) inducing, whether by threats or promises or otherwise, such a contravention; or\n\n (c) being in any way, directly or indirectly, knowingly concerned in, or party to, such a contravention; or\n\n (d) conspiring with others to effect such a contravention.\n\njudicial power means the judicial power of the Commonwealth referred to in section 71 of the Constitution.\n\nlocal energy instrument means a regulation, rule, order, declaration or other instrument if:\n\n (a) the instrument is made or has effect under a law of a State or Territory; and\n\n (b) the law of the State or Territory applies a uniform energy law as a law of its own jurisdiction.\n\nmanaged investment scheme has the same meaning as in the Corporations Act 2001.\n\nmember 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.\n\nmember of the Tribunal includes the President and a person appointed to act as a member of the Tribunal.\n\nmerger authorisation means an authorisation that:\n\n (a) is an authorisation for a person to engage in conduct to which section 50 or 50A would or might apply; but\n\n (b) is not an authorisation for a person to engage in conduct to which any provision of Division 1 or 2 of Part IV other than section 50 or 50A would or might apply.\n\nNational Competition Policy Agreement has the meaning given by section 44DAA.\n\nNew Zealand Commerce Commission means the Commission established by section 8 of the Commerce Act 1986 of New Zealand.\n\nNew Zealand Crown corporation means a body corporate that is an instrument of the Crown in respect of the Government of New Zealand.\n\nno longer subject to review, in relation to an acquisition determination, has the meaning given by subsection 51ABF(2).\n\nnotice of competition concerns has the meaning given by subsection 51ABZK(1).\n\nnotification, of an acquisition, means a notification of the acquisition that is made to the Commission in accordance with subsection 51ABX(1).\n\nNote: For the acquisitions to which subsection 51ABX(1) applies, see Subdivision B of Division 1 of Part IVA.\n\nnotification waiver application has the meaning given by subsection 51ABU(5).\n\nnotified acquisition has the meaning given by subsection 51ABW(2).\n\nNote: See also subsection 51ABZD(6).\n\nnotifying party, of a notification of an acquisition, has the meaning given by subsection 51ABW(3).\n\norganisation 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.\n\noverseas merger authorisation means a merger authorisation that is not an authorisation for a person to engage in conduct to which section 50 would or might apply.\n\nparticipant, in proceedings for review under Division 1B of Part IX, does not include the Commission.\n\nparty:\n\n (a) to an acquisition—has the meaning given by subsections 51ABI(1) and (2); and\n\n (b) to a contract that is a covenant—includes a person bound by, or entitled to the benefit of, the covenant.\n\npersonal information has the same meaning as in the Privacy Act 1988.\n\npersonal injury includes:\n\n (a) pre‑natal injury; or\n\n (b) impairment of a person’s physical or mental condition; or\n\n (c) disease;\n\nbut does not include an impairment of a person’s mental condition unless the impairment consists of a recognised psychiatric illness.\n\nphase 1 determination period, for a notification of an acquisition, has the meaning given by subsection 51ABZI(4).\n\nphase 2 determination period, for a notification of an acquisition, has the meaning given by subsection 51ABZI(5).\n\npractice of exclusive dealing means the practice of exclusive dealing referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9).\n\npractice of resale price maintenance means the practice of resale price maintenance referred to in Part VIII.\n\nprescribed safety and security criteria: see section 57DB.\n\nPresident means the President of the Tribunal and includes a person appointed to act as President of the Tribunal.\n\npresidential member or presidential member of the Tribunal means President or a Deputy President.\n\nprice includes a charge of any description.\n\nprincipal party, to an acquisition, has the meaning given by paragraph 51ABI(1)(a) and subsection 51ABI(2).\n\nprivacy safeguard penalty provision has the meaning given by subsection 56EU(1).\n\nprivacy safeguards means the provisions in Subdivisions B to F of Division 5 of Part IVD (about the consumer data right).\n\nprovision, in relation to an understanding, means any matter forming part of the understanding.\n\npublic benefit application has the meaning given by subsection 51ABZP(5).\n\npublic benefit assessment has the meaning given by subsection 51ABZZA(1).\n\npurportedly puts into effect, in relation to an acquisition, has the meaning given by subsection 45AV(2).\n\nreasonable steps, for the purposes of Division 2 of Part IVF (about overarching principles of the Scams Prevention Framework), has a meaning affected by section 58BB.\n\nregistered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act.\n\nregistered training organisation has the same meaning as in the National Vocational Education and Training Regulator Act 2011.\n\nRegistrar means the Registrar of the Tribunal.\n\nregulated entity has the meaning given by section 58AD.\n\nregulated sector has the meaning given by subsection 58AC(1).\n\nregulated service has the meaning given by section 58AD.\n\nRegulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.\n\nrequire, 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.\n\nrequired to be notified, in relation to an acquisition, has the meaning given by sections 51ABO and 51ABS and subsections 51ABT(1) and 51ABV(6).\n\nresponding party: see section 57EB.\n\nRTO course: see section 57BC.\n\nNote: RTO is short for registered training organisation.\n\nsafety and security information: see section 57BF.\n\nsafety information: see section 57BF.\n\nscam has the meaning given by section 58AG.\n\nscheme adviser means the motor vehicle service and repair information scheme adviser appointed under section 57FA.\n\nscheme information: see section 57BD.\n\nscheme offer: see section 57CA.\n\nscheme price, for scheme information: see section 57CA.\n\nscheme RTO: see section 57BC.\n\nNote: RTO is short for registered training organisation.\n\nscheme rules means rules made by the Minister under section 57GE.\n\nscheme vehicle: see section 57BA.\n\nsecurity information: see section 57BF.\n\nsend includes deliver, and sent and sender have corresponding meanings.\n\nsenior officer, of a regulated entity, means:\n\n (a) an officer (within the meaning of the Corporations Act 2001) of the entity; or\n\n (b) a senior manager (within the meaning of that Act) of the entity.\n\nsensitive information has the same meaning as in the Privacy Act 1988.\n\nservices 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:\n\n (a) a contract for or in relation to:\n\n (i) the performance of work (including work of a professional nature), whether with or without the supply of goods;\n\n (ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or\n\n (iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;\n\n (b) a contract of insurance;\n\n (c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or\n\n (d) any contract for or in relation to the lending of moneys;\n\nbut does not include rights or benefits being the supply of goods or the performance of work under a contract of service.\n\nshare includes stock.\n\nSouth Australian Electricity Legislation means:\n\n (a) the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; and\n\n (b) any regulations, as in force from time to time, made under Part 4 of that Act.\n\nThe 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.\n\nSouth Australian Energy Retail Legislation means:\n\n (a) the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time; and\n\n (b) any regulations, as amended from time to time, made under Part 11 of the National Energy Retail Law.\n\nThe reference in paragraph (a) to the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time, includes a reference to any Rules or other instruments, as amended from time to time, made or having effect under that Law.\n\nSouth Australian Gas Legislation means:\n\n (a) the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time; and\n\n (b) any regulations, as in force from time to time, made under Part 3 of that Act.\n\nThe 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.\n\nSPF civil penalty order means a civil penalty order under Part 4 of Regulatory Powers Act (as that Part applies because of section 58FJ of this Act).\n\nSPF code has the meaning given by section 58CB.\n\nSPF consumer has the meaning given by section 58AH.\n\nSPF EDR scheme, for a regulated sector, means an external dispute resolution scheme authorised under subsection 58DB(1) for the sector.\n\nSPF general regulator has the meaning given by section 58EB.\n\nSPF governance policies, procedures, metrics and targets, for a regulated entity for a regulated sector, means the entity’s:\n\n (a) policies and procedures required under paragraph 58BD(1)(a) for the sector; and\n\n (b) performance metrics and targets required under paragraph 58BD(1)(c) for those policies and procedures.\n\nSPF infringement notice means an infringement notice issued under subsection 58FO(1) or (2).\n\nSPF personal information means:\n\n (a) personal information; or\n\n (b) information relating to a person that may be used (whether alone or in conjunction with other information) to access:\n\n (i) a service or an account; or\n\n (ii) funds, credit or other financial benefits.\n\nSPF principles means the provisions in Subdivisions B to G of Division 2 of Part IVF (about the Scams Prevention Framework).\n\nSPF provisions has the meaning given by section 58AJ.\n\nSPF regulator means:\n\n (a) the SPF general regulator; or\n\n (b) the SPF sector regulator for a regulated sector.\n\nSPF rules means rules made under section 58GE.\n\nSPF sector regulator has the meaning given by section 58ED.\n\nstale, in relation to a notification of an acquisition, has the meaning given by section 51ABG.\n\nState/Territory AER member means an AER member referred to in section 44AP.\n\nState/Territory energy law means any of the following laws:\n\n (a) a uniform energy law that applies as a law of a State or Territory;\n\n (b) a law of a State or Territory that applies a law mentioned in paragraph (a) as a law of its own jurisdiction;\n\n (c) any other provisions of a law of a State or Territory that:\n\n (i) relate to energy; and\n\n (ii) are prescribed by the regulations for the purposes of this paragraph;\n\n  being those provisions as in force from time to time.\n\nstayed, in relation to an acquisition, has the meaning given by section 51ABE and subsections 51ABZZM(2) and (3).\n\nsubject to a condition: for when putting a notified acquisition into effect is subject to a condition, see section 51ABH.\n\nsubject to phase 2 review has the meaning given by paragraph 51ABZJ(2)(a).\n\nsupply, when used as a verb, includes:\n\n (a) in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and\n\n (b) in relation to services—provide, grant or confer;\n\nand, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.\n\ntakeover acquisition, in relation to a takeover bid, means:\n\n (a) an acquisition that results from the acceptance of an offer under the bid; or\n\n (b) an acquisition, by or on behalf of the bidder (within the meaning of the Corporations Act 2001), of securities in the bid class (within the meaning of that Act), that:\n\n (i) results from an on‑market transaction (within the meaning of that Act); and\n\n (ii) occurs during the bid period.\n\ntakeover bid has the same meaning as in the Corporations Act 2001.\n\ntarget, of an acquisition, has the meaning given by subsection 51ABI(3).\n\nTelstra has the same meaning as in the Telstra Corporation Act 1991.\n\nTerritory means the following:\n\n (a) the Australian Capital Territory;\n\n (b) the Jervis Bay Territory;\n\n (c) the Northern Territory;\n\n (d) Norfolk Island;\n\n (e) the Territory of Christmas Island;\n\n (f) the Territory of Cocos (Keeling) Islands.\n\nthe Court or the Federal Court means the Federal Court of Australia.\n\nthis Act includes Schedule 2 to the extent that it is applied under Subdivision A of Division 2 of Part XI.\n\ntrade or commerce means trade or commerce within Australia or between Australia and places outside Australia.\n\ntrading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution.\n\nTribunal means the Australian Competition Tribunal, and includes a member of that Tribunal or a Division of that Tribunal performing functions of that Tribunal.\n\nuniform energy law means:\n\n (a) the South Australian Electricity Legislation; or\n\n (b) the South Australian Gas Legislation; or\n\n (c) the Western Australian Gas Legislation; or\n\n (ca) the South Australian Energy Retail Legislation; or\n\n (d) provisions of a law of a State or Territory that:\n\n (i) relate to energy; and\n\n (ii) are prescribed by the regulations for the purposes of this subparagraph;\n\n  being those provisions as in force from time to time.\n\nvehicle identification number, in relation to a scheme vehicle, means the number allocated to the vehicle in accordance with the national road vehicle standards as in force from time to time under the Road Vehicle Standards Act 2018.\n\nvirtual enquiry technology means any technology that allows a person to appear at all or part of a hearing, examination or other enquiry without being physically present at the hearing, examination or other enquiry.\n\nvoluntary action service provider has the meaning given by subsection 56AMB(2).\n\nWestern Australian Gas Legislation means:\n\n (a) the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time; and\n\n (b) any regulations, as in force from time to time, made under Part 3 of that Act.\n\nThe 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.\n\n (2) In this Act:\n\n (a) a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the engaging in of a concerted practice;\n\n (b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), shall be read as a reference to the doing of or the refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the engaging in of a concerted practice;\n\n (c) a reference to refusing to do an act includes a reference to:\n\n (i) refraining (otherwise than inadvertently) from doing that act; or\n\n (ii) making it known that that act will not be done; and\n\n (d) a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.\n\n (3) Where a provision of this Act is expressed to render a provision of a contract unenforceable if the provision of the contract has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract at any time when the provision of the contract has or is likely to have that effect notwithstanding that:\n\n (a) at an earlier time the provision of the contract did not have that effect or was not regarded as likely to have that effect; or\n\n (b) the provision of the contract will not or may not have that effect at a later time.\n\n (4) In this Act:\n\n (a) a reference to the acquisition of shares in the capital of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such shares; and\n\n (b) a reference to the acquisition of assets of a person shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such assets but does not include a reference to an acquisition by way of charge only or an acquisition in the ordinary course of business.","sortOrder":8},{"sectionNumber":"4A","sectionType":"section","heading":"Subsidiary, holding and related bodies corporate","content":"4A  Subsidiary, holding and related bodies corporate\n\n (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:\n\n (a) that other body corporate:\n\n (i) controls the composition of the board of directors of the first‑mentioned body corporate;\n\n (ii) is in a position to cast, or control the casting of, more than one‑half of the maximum number of votes that might be cast at a general meeting of the first‑mentioned body corporate; or\n\n (iii) holds more than one‑half of the allotted share capital of the first‑mentioned body corporate (excluding any part of that allotted share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or\n\n (b) the first‑mentioned body corporate is a subsidiary of any body corporate that is that other body corporate’s subsidiary (including any body corporate that is that other body corporate’s subsidiary by another application or other applications of this paragraph).\n\n (2) For the purposes of subsection (1), the composition of a body corporate’s board of directors shall be deemed to be controlled by another body corporate if that other body corporate, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other body corporate shall be deemed to have power to make such an appointment if:\n\n (a) a person cannot be appointed as a director without the exercise in his or her favour by that other body corporate of such a power; or\n\n (b) a person’s appointment as a director follows necessarily from his or her being a director or other officer of that other body corporate.\n\n (3) In determining whether a body corporate is a subsidiary of another body corporate:\n\n (a) any shares held or power exercisable by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it;\n\n (b) subject to paragraphs (c) and (d), any shares held or power exercisable:\n\n (i) by any person as a nominee for that other body corporate (except where that other body corporate is concerned only in a fiduciary capacity); or\n\n (ii) by, or by a nominee for, a subsidiary of that other body corporate, not being a subsidiary that is concerned only in a fiduciary capacity;\n\n  shall be treated as held or exercisable by that other body corporate;\n\n (c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first‑mentioned body corporate, or of a trust deed for securing any allotment of such debentures, shall be disregarded; and\n\n (d) any shares held or power exercisable by, or by a nominee for, that other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other body corporate if the ordinary business of that other body corporate or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business.\n\n (4) A reference in this Act to the holding company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary.\n\n (5) Where a body corporate:\n\n (a) is the holding company of another body corporate;\n\n (b) is a subsidiary of another body corporate; or\n\n (c) is a subsidiary of the holding company of another body corporate;\n\nthat first‑mentioned body corporate and that other body corporate shall, for the purposes of this Act, be deemed to be related to each other.\n\n (5A) For the purposes of Parts IV, VI and VII and the acquisitions provisions:\n\n (a) a body corporate that is a party to a dual listed company arrangement is taken to be related to the other body corporate that is a party to the arrangement; and\n\n (b) a body corporate that is related to one of the parties to the arrangement is taken to be related to the other party to the arrangement; and\n\n (c) a body corporate that is related to one of the parties to the arrangement is taken to be related to each body corporate that is related to the other party to the arrangement.\n\n (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.","sortOrder":9},{"sectionNumber":"4B","sectionType":"section","heading":"Consumers","content":"4B  Consumers\n\n (1) For the purposes of this Act, unless the contrary intention appears, a person is taken to have acquired particular goods or services as a consumer if the person would be taken to have acquired the goods or services as a consumer under section 3 of the Australian Consumer Law.\n\n (2) If it is alleged in:\n\n (a) any proceeding under this Act; or\n\n (b) any other proceeding in respect of a matter arising under this Act;\n\nthat a person was a consumer in relation to particular goods or services, it is presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services.","sortOrder":10},{"sectionNumber":"4C","sectionType":"section","heading":"Acquisition, supply and re-supply","content":"4C  Acquisition, supply and re‑supply\n\n  In this Act, unless the contrary intention appears:\n\n (a) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods;\n\n (b) a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services;\n\n (c) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both;\n\n (d) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both;\n\n (e) a reference to the re‑supply of goods acquired from a person includes a reference to:\n\n (i) a supply of the goods to another person in an altered form or condition; and\n\n (ii) a supply to another person of goods in which the first‑mentioned goods have been incorporated;\n\n (f) a reference to the re‑supply of services (the original services) acquired from a person (the original supplier) includes a reference to:\n\n (i) a supply of the original services to another person in an altered form or condition; and\n\n (ii) a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.","sortOrder":11},{"sectionNumber":"4E","sectionType":"section","heading":"Market","content":"4E  Market\n\n  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.","sortOrder":12},{"sectionNumber":"4F","sectionType":"section","heading":"References to purpose or reason","content":"4F  References to purpose or reason\n\n (1) For the purposes of this Act:\n\n (a) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding shall be deemed to have had, or to have, a particular purpose if:\n\n (i) the provision was included in the contract, arrangement or understanding or is to be included in the proposed contract, arrangement or understanding for that purpose or for purposes that included or include that purpose; and\n\n (ii) that purpose was or is a substantial purpose; and\n\n (b) a person shall be deemed to have engaged or to engage in conduct for a particular purpose or a particular reason if:\n\n (i) the person engaged or engages in the conduct for purposes that included or include that purpose or for reasons that included or include that reason, as the case may be; and\n\n (ii) that purpose or reason was or is a substantial purpose or reason.\n\n (2) This section does not apply for the purposes of subsections 45D(1), 45DA(1), 45DB(1), 45E(2) and 45E(3).","sortOrder":13},{"sectionNumber":"4G","sectionType":"section","heading":"Lessening of competition to include preventing or hindering competition","content":"4G  Lessening of competition to include preventing or hindering competition\n\n  For the purposes of this Act, references to the lessening of competition shall be read as including references to preventing or hindering competition.","sortOrder":14},{"sectionNumber":"4H","sectionType":"section","heading":"Application of Act in relation to leases and licences of land and buildings","content":"4H  Application of Act in relation to leases and licences of land and buildings\n\n  In this Act:\n\n (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;\n\n (b) a reference to making or entering into a contract, in relation to such a lease or licence, shall be read as a reference to granting or taking the lease or licence; and\n\n (c) a reference to a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.","sortOrder":15},{"sectionNumber":"4J","sectionType":"section","heading":"Joint ventures","content":"4J  Joint ventures\n\n  In this Act:\n\n (a) a reference to a joint venture is a reference to an activity in trade or commerce:\n\n (i) carried on jointly by two or more persons, whether or not in partnership; or\n\n (ii) carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate; and\n\n (b) a reference to a contract or arrangement made or understanding arrived at, or to a proposed contract or arrangement to be made or proposed understanding to be arrived at, for the purposes of a joint venture shall, in relation to a joint venture by way of an activity carried on by a body corporate as mentioned in subparagraph (a)(ii), be read as including a reference to the memorandum and articles of association, rules or other document that constitute or constitutes, or are or is to constitute, that body corporate.","sortOrder":16},{"sectionNumber":"4K","sectionType":"section","heading":"Loss or damage to include injury","content":"4K  Loss or damage to include injury\n\n  In this Act:\n\n (a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and\n\n (b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.","sortOrder":17},{"sectionNumber":"4KA","sectionType":"section","heading":"Definitions etc. that do not apply in Part XI or Schedule 2","content":"4KA  Definitions etc. that do not apply in Part XI or Schedule 2\n\n  Despite any other provision of this Act, sections 4 to 4K do not affect the meaning of any expression used in Part XI or Schedule 2, unless a contrary intention appears.","sortOrder":18},{"sectionNumber":"4L","sectionType":"section","heading":"Severability","content":"4L  Severability\n\n  If the making of a contract after the commencement of this section contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 51ADB, 53ZO or 87, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision is severable.","sortOrder":19},{"sectionNumber":"4M","sectionType":"section","heading":"Saving of law relating to restraint of trade and breaches of confidence","content":"4M  Saving of law relating to restraint of trade and breaches of confidence\n\n (1) This Act does not affect the operation of:\n\n (a) the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Act; or\n\n (b) the law relating to breaches of confidence;\n\nbut nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Act.\n\n (2) Paragraph (1)(b) does not apply for the purposes of section 57CD.","sortOrder":20},{"sectionNumber":"4N","sectionType":"section","heading":"Extended application of Part IIIA","content":"4N  Extended application of Part IIIA\n\n (1) Part IIIA, and the other provisions of this Act so far as they relate to Part IIIA, extend to services provided by means of facilities that are, or will be, wholly or partly within:\n\n (a) an external Territory; or\n\n (b) the offshore area, within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006, of a State, a Territory or an external Territory.\n\n (3) Nothing in subsection (1) affects the operation of section 15B of the Acts Interpretation Act 1901 in respect of the application of Part IIIA, and of the other provisions of this Act so far as they relate to Part IIIA, in any part of:\n\n (a) the coastal sea of Australia; or\n\n (b) the coastal sea of an external Territory;\n\nthat is on the landward side of each of the offshore areas referred to in that subsection.\n\n (4) For the purposes of this section:\n\nservice includes proposed service covered by Division 2A of Part IIIA.","sortOrder":21},{"sectionNumber":"5","sectionType":"section","heading":"Extended application of this Act to conduct outside Australia","content":"5  Extended application of this Act to conduct outside Australia\n\n (1) Each of the following provisions:\n\n (a) Part IV;\n\n (aa) Part IVBA;\n\n (ab) Part IVE;\n\n (b) Part XI;\n\n (ba) Part XICA;\n\n (c) the Australian Consumer Law (other than Part 5‑3);\n\n (f) the remaining provisions of this Act (to the extent to which they relate to any of the provisions covered by paragraph (a), (aa), (ab), (b), (ba) or (c));\n\n (fa) the acquisitions provisions;\n\nextends to the engaging in conduct outside Australia by:\n\n (g) bodies corporate incorporated or carrying on business within Australia; or\n\n (h) Australian citizens; or\n\n (i) persons ordinarily resident within Australia.\n\n (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:\n\n (a) New Zealand and New Zealand Crown corporations; or\n\n (b) bodies corporate carrying on business within New Zealand; or\n\n (c) persons ordinarily resident within New Zealand.\n\n (2) In addition to the extended operation that sections 47 and 48, and Divisions 3 and 4 of Part IVE, have by virtue of subsection (1), those provisions extend to the engaging in conduct outside Australia by any persons in relation to the supply by those persons of goods or services to persons within Australia.","sortOrder":22},{"sectionNumber":"6","sectionType":"section","heading":"Extended application of this Act to persons who are not corporations","content":"6  Extended application of this Act to persons who are not corporations\n\n (1) Without prejudice to its effect apart from this section, this Act also has effect as provided by this section.\n\n (2) This Act, other than Parts IIIA, VIIA and X, has, by force of this subsection, the effect it would have if:\n\n (a) any references in this Act other than in section 45DB, or section 33 or 155 of the Australian Consumer Law, to trade or commerce were, by express provision, confined to trade or commerce:\n\n (i) between Australia and places outside Australia; or\n\n (ii) among the States; or\n\n (iii) within a Territory, between a State and a Territory or between two Territories; or\n\n (iv) by way of the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; and\n\n (b) the following provisions:\n\n (i) sections 45AF, 45AG, 45AJ, 45AK, 45, 45D to 45EB (other than section 45DB), 46 and 46A;\n\n (ia) Part V (other than Division 5);\n\n (ii) Part VIII;\n\n (iii) sections 31 and 43, Division 3 of Part 3‑1, and sections 50, 153, 163, 164 and 168, of the Australian Consumer Law;\n\n  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:\n\n (iv) trade or commerce between Australia and places outside Australia; or\n\n (v) trade or commerce among the States; or\n\n (vi) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or\n\n (vii) the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; and\n\n (c) any reference in Division 1 of Part 3‑2 of the Australian Consumer Law to a contract for the supply of goods or services and any reference in Part 3‑5 or 5‑4 of the Australian Consumer Law to the supply of goods or services, were, by express provision, confined to a contract made, or the supply of goods or services, as the case may be:\n\n (i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or\n\n (ii) in the course of, or in relation to, trade or commerce among the States; or\n\n (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\n\n (ca) any reference in Part 2‑3 of the Australian Consumer Law to a contract were, by express provision, confined to a contract made:\n\n (i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or\n\n (ii) in the course of, or in relation to, trade or commerce among the States; or\n\n (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\n\n (d) in paragraph 87(3)(a) the words “in so far as it confers rights or benefits or imposes duties or obligations on a corporation” were omitted; and\n\n (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\n\n (eb) the second sentence in subsection 45E(1) were omitted; and\n\n (g) subsection 96(2) were omitted; and\n\n (h) subject to paragraphs (d), (e), (ea), (eb) and (g), a reference in this Act to a corporation, except a reference in section 4, 48, 49, 50, 50A, 77A, 81, 151AE or 151AJ, in an acquisitions provision or in section 229 of the Australian Consumer Law, included a reference to a person not being a corporation.\n\n (2A) So far as subsection (2) relates to Division 1 or 2 of 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)(vi). 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.\n\nCartel conduct\n\n (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:\n\n (a) the reference in paragraph 45AD(2)(c) to goods or services supplied, or likely to be supplied, were, by express provision, confined to goods or services supplied, or likely to be supplied, to corporations or classes of corporations; and\n\n (b) the reference in paragraph 45AD(2)(d) to goods or services acquired, or likely to be acquired, were, by express provision, confined to goods or services acquired, or likely to be acquired, from corporations or classes of corporations; and\n\n (c) the reference in paragraph 45AD(2)(e) to goods or services re‑supplied, or likely to be re‑supplied, were, by express provision, confined to goods or services re‑supplied, or likely to be re‑supplied, to corporations or classes of corporations; and\n\n (d) the reference in paragraph 45AD(2)(f) to goods or services likely to be re‑supplied were, by express provision, confined to goods or services likely to be re‑supplied to corporations or classes of corporations; and\n\n (e) the following paragraphs were added at the end of subsection 45AD(2):\n\n “; 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\n\n (h) goods or services likely to be re‑supplied by corporations or classes of corporations to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding.”; and\n\n (f) the reference in subparagraph 45AD(3)(a)(i) to the production, or likely production, of goods were, by express provision, confined to the production, or likely production, of goods for supply to corporations or classes of corporations; and\n\n (g) the reference in subparagraph 45AD(3)(a)(ii) to the supply of services were, by express provision, confined to the supply of services to corporations or classes of corporations; and\n\n (h) each reference in subparagraphs 45AD(3)(a)(iii) and (iv) and (b)(i) and (ii) to persons or classes of persons were, by express provision, confined to corporations or classes of corporations; and\n\n (i) the reference in subparagraph 45AD(3)(b)(iii) to the geographical areas in which goods or services are supplied, or likely to be supplied, were, by express provision, confined to the geographical areas in which goods or services are supplied, or likely to be supplied, to corporations or classes of corporations; and\n\n (j) the reference in subparagraph 45AD(3)(b)(iv) to the geographical areas in which goods or services are acquired, or likely to be acquired, were, by express provision, confined to the geographical areas in which goods or services are acquired, or likely to be acquired, from corporations or classes of corporations; and\n\n (k) the reference in paragraph 45AD(3)(c) to the supply or acquisition of goods or services were, by express provision, confined to supply of goods or services to, or the acquisition of goods or services from, corporations or classes of corporations; and\n\n (l) the reference in paragraph 45AD(4)(e) to paragraph (2)(e) or (f) included a reference to paragraph (2)(g) or (h); and\n\n (m) section 45AD also provided that it is immaterial whether the identities of the corporations referred to in subsection (2) or (3) of that section can be ascertained; and\n\n (n) each reference in the following provisions of this Act:\n\n (i) Division 1 of Part IV (other than section 45AD);\n\n (ii) any other provision (other than section 4, 45AD, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV;\n\n  to a corporation included a reference to a person not being a corporation.\n\nFor the purposes of this subsection, likely and production have the same meaning as in Division 1 of Part IV.\n\n (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:\n\n (a) sections 45AF, 45AG, 45AJ and 45AK were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of, or relates to, a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; and\n\n (b) each reference in the following provisions of this Act:\n\n (i) Division 1 of Part IV;\n\n (ii) any other provision (other than section 4, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV;\n\n  to a corporation included a reference to a person not being a corporation.\n\n (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:\n\n (a) sections 45AF, 45AG, 45AJ and 45AK were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in, or relates to:\n\n (i) a Territory; or\n\n (ii) a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); and\n\n (b) each reference in the following provisions of this Act:\n\n (i) Division 1 of Part IV;\n\n (ii) any other provision (other than section 4, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV;\n\n  to a corporation included a reference to a person not being a corporation.\n\nAcquisitions\n\n (2EA) 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:\n\n (a) any references in the acquisitions provisions to an acquisition were, by express provision, confined to an acquisition put into effect:\n\n (i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or\n\n (ii) in the course of, or in relation to, trade or commerce among the States; or\n\n (iii) in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between 2 Territories; and\n\n (b) each reference in the acquisitions provisions (other than in paragraph 51ABC(2)(b)) to a corporation included a reference to a person not being a corporation.\n\n (2EB) Subsection (2EA) has effect in relation to a participating Territory as if the words “within a Territory,” were omitted from subparagraph (2EA)(a)(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.\n\n (2EC) 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:\n\n (a) any references in the acquisitions provisions to an acquisition were, by express provision, confined to an acquisition to the extent to which putting the acquisition into effect involves the use of, or relates to, a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; and\n\n (b) each reference in the acquisitions provisions to a corporation (other than in paragraph 51ABC(2)(b)) included a reference to a person not being a corporation.\n\n (2ED) 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:\n\n (a) any references in the acquisitions provisions to an acquisition were, by express provision, confined to an acquisition to the extent to which the acquisition is put into effect in, or relates to, a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); and\n\n (b) each reference in the acquisitions provisions (other than in paragraph 51ABC(2)(b)) to a corporation included a reference to a person not being a corporation.\n\nPayment surcharges\n\n (2F) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:\n\n (a) each reference in Part IVC to a payment surcharge were a reference to a payment surcharge charged for processing a payment made by means of a postal, telegraphic, telephonic, or other like service (including electronic communication); and\n\n (b) each reference to a corporation included a reference to a person not being a corporation.\n\nCertain provisions of Australian Consumer Law\n\n (3) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by another subsection of this section, the provisions of Parts 2‑1, 2‑2, 3‑1 (other than Division 3), 3‑3, 3‑4, 4‑1 (other than Division 3), 4‑3, 4‑4 and 5‑3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if:\n\n (a) those provisions (other than sections 33 and 155 of the Australian Consumer Law) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast; and\n\n (b) a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation.\n\n (3A) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by subsection (2), the provisions of Part 2‑3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if:\n\n (a) those provisions were, by express provision, confined in their operation to contracts for or relating to:\n\n (i) the use of postal, telegraphic or telephonic services; or\n\n (ii) radio or television broadcasts; and\n\n (b) a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation.\n\n (4) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by another subsection of this section, the provisions of Parts 2‑2, 3‑1 (other than sections 30 and 33), Part 4‑1 (other than sections 152, 155 and 164) and 5‑3 of the Australian Consumer Law also have, by force of this subsection, the effect they would have if:\n\n (a) those provisions were, by express provision, confined in their operation to engaging in conduct in a Territory; and\n\n (b) a reference in those provisions to a thing done by a corporation in trade or commerce included a reference to a thing done in the course of the promotional activities of a professional person.\n\n (5) In the application of sections 279, 282 and 283 of the Australian Consumer Law in relation to a supplier who is a natural person, those sections have effect as if there were substituted for paragraphs 279(3)(a), 282(2)(a) and 283(5)(a) of the Australian Consumer Law the following paragraph:\n\n “(a) the supplier has died or is an undischarged bankrupt or a person whose affairs are being dealt with under Part X of the Bankruptcy Act 1966; or”.\n\nOffences relating to cartel conduct\n\n (5A) Despite anything in section 45AF or 45AG, 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.\n\n (5B) Despite anything in section 45AF or 45AG, 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.","sortOrder":23},{"sectionNumber":"6AA","sectionType":"section","heading":"Application of the Criminal Code","content":"6AA  Application of the Criminal Code\n\n (1) Chapter 2 of the Criminal Code applies to all offences against this Act.\n\nNote: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n (2) Despite subsection (1), Part 2.5 of the Criminal Code does not apply to an offence against Part IIIA or XIC, Division 7 of Part XIB, or section 45AF or 45AG.","sortOrder":24},{"sectionNumber":"Part II","sectionType":"part","heading":"The Australian Competition and Consumer Commission","content":"Part II—The Australian Competition and Consumer Commission","sortOrder":25},{"sectionNumber":"6A","sectionType":"section","heading":"Establishment of Commission","content":"6A  Establishment of Commission\n\n (1) The Australian Competition and Consumer Commission is established by this section.\n\n (1AA) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n\n (a) the Commission is a listed entity; and\n\n (b) the Chairperson is the accountable authority of the Commission; and\n\n (c) the following persons are officials of the Commission:\n\n (i) the Chairperson;\n\n (ii) the other members of the Commission;\n\n (iii) the associate members of the Commission;\n\n (iv) persons engaged under section 27; and\n\n (d) the purposes of the Commission include the functions conferred on the Commission by this Act.\n\n (1A) However, the Commission is taken, for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n\n (a) to be a non‑corporate Commonwealth entity, and not to be a corporate Commonwealth entity; and\n\n (b) to be a part of the Commonwealth; and\n\n (c) not to be a body corporate.\n\n (2) The Commission:\n\n (a) is a body corporate, with perpetual succession;\n\n (b) shall have an official seal;\n\n (c) may acquire, hold and dispose of real and personal property; and\n\n (d) may sue or be sued in its corporate name.\n\n (3) Any real or personal property held by the Commission is held for and on behalf of the Commonwealth.\n\n (4) Any money received by the Commission is received for and on behalf of the Commonwealth.\n\n (5) To avoid doubt, a right to sue is taken not to be personal property for the purposes of subsection (3).","sortOrder":26},{"sectionNumber":"7","sectionType":"section","heading":"Constitution of Commission","content":"7  Constitution of Commission\n\n (1) The Commission shall consist of a Chairperson and such number of other members as are from time to time appointed in accordance with this Act.\n\n (2) The members of the Commission shall be appointed by the Governor‑General and shall be so appointed as full‑time members.\n\n (3) Before the Governor‑General appoints a person as a member of the Commission or as Chairperson, the Minister must:\n\n (a) be satisfied that the person qualifies for the appointment because of the person’s knowledge of, or experience in, industry, commerce, economics, law, public administration or consumer protection; and\n\n (b) consider whether the person has knowledge of, or experience in, small business matters; and\n\n (c) if there is at least one fully‑participating jurisdiction—be satisfied that a majority of such jurisdictions support the appointment.\n\n (4) At least one of the members of the Commission must be a person who has knowledge of, or experience in, consumer protection.\n\nNote: Under section 23 of the Public Governance, Performance and Accountability Act 2013, the Chairperson may enter into contracts and other arrangements on behalf of the Commonwealth.","sortOrder":27},{"sectionNumber":"8","sectionType":"section","heading":"Terms and conditions of appointment","content":"8  Terms and conditions of appointment\n\n (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.","sortOrder":28},{"sectionNumber":"8A","sectionType":"section","heading":"Associate members","content":"8A  Associate members\n\n (1) The Minister may appoint persons to be associate members of the Commission.\n\n (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.\n\n (2) An associate member of the Commission shall be appointed for such period not exceeding 5 years as is specified in the instrument of his or her appointment, but is eligible for re‑appointment.\n\n (3) Subject to this Part, an associate member of the Commission holds office on such terms and conditions as the Minister determines.\n\n (4) The Chairperson may, by writing signed by him or her, direct that, for the purposes of the exercise of the powers of the Commission under this Act, a gas market instrument or the consumer data rules, in relation to a specified matter, not being an exercise of those powers by a Division of the Commission, a specified associate member of the Commission or specified associate members of the Commission shall be deemed to be a member or members of the Commission and, in that case, unless the contrary intention appears, a reference in this Act to a member of the Commission shall, for the purposes only of the exercise of the powers of the Commission in relation to that matter, be construed as including a reference to that associate member of the Commission or each of those associate members of the Commission, as the case may be.\n\n (5) Associate members of the Commission shall be deemed to be members of the Commission for the purposes of section 19.\n\n (6) For the purpose of the determination by the Commission of an application for an authorisation, or the making by the Commission of any decision for the purposes of subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A), the Chairperson shall consider:\n\n (a) whether he or she should give a direction under subsection (4) of this section; or\n\n (b) in the case of a matter, or a class of matters, in relation to which the Chairperson proposes to give a direction under subsection 19(1), whether he or she should direct that the Division concerned is to include an associate member of the Commission or associate members of the Commission.\n\n (7) Nothing in subsection (4) or (5) deems an associate member of the Commission to be a member of the Commission for any purpose related to the preparation of a report by the Commission referred to in section 171.","sortOrder":29},{"sectionNumber":"9","sectionType":"section","heading":"Remuneration","content":"9  Remuneration\n\n (1) A member of the Commission shall be paid such remuneration as is determined by the Remuneration Tribunal, but, until that remuneration is so determined, he or she shall be paid such remuneration as is prescribed.\n\n (2) Subject to the Remuneration Tribunal Act 1973, a member of the Commission shall be paid such allowances as are prescribed.\n\n (3) In this section, member of the Commission includes an associate member of the Commission.","sortOrder":30},{"sectionNumber":"10","sectionType":"section","heading":"Deputy Chairpersons","content":"10  Deputy Chairpersons\n\n (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.\n\n (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.\n\n (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.\n\n (2) A person appointed under this section holds office as Deputy Chairperson until the expiration of his or her period of appointment as a member of the Commission or until he or she sooner ceases to be a member of the Commission.\n\n (3) Where a member of the Commission appointed as Deputy Chairperson is, upon ceasing to be Deputy Chairperson by virtue of the expiration of the period of his or her appointment as a member, re‑appointed as a member, he or she is eligible for re‑appointment as Deputy Chairperson.\n\n (4) A Deputy Chairperson may resign his or her office of Deputy Chairperson by writing signed by him or her and delivered to the Governor‑General.\n\n (5) Not more than 2 persons may hold office as Deputy Chairperson at any one time.","sortOrder":31},{"sectionNumber":"11","sectionType":"section","heading":"Acting Chairperson","content":"11  Acting Chairperson\n\n (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.\n\nNote: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.\n\n (2) Where the Chairperson is absent from duty or from Australia:\n\n (a) if there are 2 Deputy Chairpersons available to act as Chairperson, the Minister may appoint 1 of them to act as Chairperson during the absence of the Chairperson; or\n\n (b) if there is only 1 Deputy Chairperson available to act as Chairperson, that Deputy Chairperson is to act as Chairperson during the absence of the Chairperson; or\n\n (c) if there are no Deputy Chairpersons or none of the Deputy Chairpersons are available to act as Chairperson, the Minister may appoint a member of the Commission to act as Chairperson during the absence of the Chairperson, but any such appointment ceases to have effect if a person is appointed as a Deputy Chairperson or a Deputy Chairperson becomes available to act as Chairperson.\n\nNote: For rules that apply to persons acting as the Chairperson, see section 33A of the Acts Interpretation Act 1901.\n\n (3) A person acting as Chairperson shall act in that capacity on such terms and conditions as the Governor‑General determines and has all the powers and duties, and shall perform all the functions, conferred on the Chairperson by this Act.","sortOrder":32},{"sectionNumber":"12","sectionType":"section","heading":"Leave of absence","content":"12  Leave of absence\n\n (1) A member of the Commission has such recreation leave entitlements as are determined by the Remuneration Tribunal.\n\n (2) The Minister may grant a member of the Commission leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.","sortOrder":33},{"sectionNumber":"13","sectionType":"section","heading":"Termination of appointment of members of the Commission","content":"13  Termination of appointment of members of the Commission\n\n (1) The Governor‑General may terminate the appointment of a member of the Commission for misbehaviour or physical or mental incapacity.\n\n (2) If a member of the Commission:\n\n (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or\n\n (b) fails to comply with his or her obligations under:\n\n (i) for any member (including the Chairperson)—section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section; or\n\n (ii) for the Chairperson—section 17 of this Act; or\n\n (c) without the consent of the Minister engages in any paid employment outside the duties of his or her office; or\n\n (d) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;\n\nthe Governor‑General shall terminate the appointment of that member of the Commission.","sortOrder":34},{"sectionNumber":"14","sectionType":"section","heading":"Termination of appointment of associate members of the Commission","content":"14  Termination of appointment of associate members of the Commission\n\n (1) The Minister may terminate the appointment of an associate member of the Commission for misbehaviour or physical or mental incapacity.\n\n (2) If an associate member of the Commission:\n\n (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or\n\n (b) fails to comply with his or her obligations under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section;\n\nthe Minister shall terminate the appointment of that associate member of the Commission.","sortOrder":35},{"sectionNumber":"15","sectionType":"section","heading":"Resignation","content":"15  Resignation\n\n (1) A member of the Commission may resign his or her office by writing signed by him or her and delivered to the Governor‑General.\n\n (2) An associate member of the Commission may resign his or her office by writing signed by him or her and delivered to the Minister.","sortOrder":36},{"sectionNumber":"16","sectionType":"section","heading":"Arrangement of business","content":"16  Arrangement of business\n\n  The Chairperson may give directions as to the arrangement of the business of the Commission.","sortOrder":37},{"sectionNumber":"17","sectionType":"section","heading":"Disclosure of interests by Chairperson","content":"17  Disclosure of interests by Chairperson\n\n (1) The Chairperson must give written notice to the Minister of all pecuniary interests that the Chairperson has or acquires in any business carried on in Australia or in any body corporate carrying on any such business.\n\n (2) Subsection (1) applies in addition to section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests).","sortOrder":38},{"sectionNumber":"17A","sectionType":"section","heading":"Disclosure of certain interests by members of the Commission when taking part in determinations of matters","content":"17A  Disclosure of certain interests by members of the Commission when taking part in determinations of matters\n\n (1) If, as a result of rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests), the Chairperson becomes aware that:\n\n (a) a member of the Commission is taking part, or is to take part, in the determination of a matter; and\n\n (b) the member has a pecuniary interest that could conflict with the proper performance of his or her functions in relation to the determination of the matter;\n\nthen:\n\n (c) the Chairperson must cause the interest of the member to be disclosed to each person concerned in the matter (if the matter has not already been disclosed to that person in accordance with the rules); and\n\n (d) unless each person concerned in the matter consents to the member taking part, or continuing to take part, in the determination of the matter—the member must not take part, or continue to take part, in the determination of the matter.\n\n (2) In this section, member of the Commission includes an associate member of the Commission.","sortOrder":39},{"sectionNumber":"18","sectionType":"section","heading":"Meetings of Commission","content":"18  Meetings of Commission\n\n (1) Subject to this section, the Chairperson shall convene such meetings of the Commission as he or she thinks necessary for the efficient performance of the functions of the Commission.\n\n (2) Meetings of the Commission shall be held at such places as the Chairperson determines.\n\n (3) The Chairperson shall preside at all meetings of the Commission at which he or she is present.\n\n (4) In the absence of the Chairperson from a meeting of the Commission:\n\n (a) if there are 2 Deputy Chairpersons available to preside at the meeting—the Chairperson may nominate 1 of them to preside at the meeting; or\n\n (b) if there is only 1 Deputy Chairperson available to preside at the meeting—that Deputy Chairperson is to preside at the meeting.\n\n (5) Subject to this Act and the regulations, the member presiding at a meeting of the Commission may give directions regarding the procedure to be followed at or in connexion with the meeting.\n\n (6) At a meeting of the Commission:\n\n (a) three members (including the Chairperson or a Deputy Chairperson) form a quorum;\n\n (b) all questions shall be decided by a majority of votes of the members present and voting; and\n\n (c) the member presiding has a deliberative vote and, in the event of an equality of votes, also has a casting vote.\n\n (7) If the Commission so determines, a member or members may participate in, and form part of a quorum at, a meeting of the Commission or a Division of the Commission by means of any of the following methods of communication:\n\n (a) telephone;\n\n (b) closed circuit television;\n\n (c) another method of communication determined by the Commission.\n\n (8) A determination made by the Commission under subsection (7) may be made in respect of a particular meeting or meetings of the Commission or a Division of the Commission or in respect of all meetings of the Commission or a Division of the Commission.","sortOrder":40},{"sectionNumber":"19","sectionType":"section","heading":"Chairperson may direct Commission to sit in Divisions","content":"19  Chairperson may direct Commission to sit in Divisions\n\n (1) The Chairperson may, by writing signed by him or her, direct that the powers of the Commission under this Act, the Digital ID Act 2024, a gas market instrument, the cash distribution framework or the consumer data rules, in relation to a matter shall be exercised by a Division of the Commission constituted by such members (not being less than two in number) as are specified in the direction.\n\n (2) Without limiting subsection 33(3AB) of the Acts Interpretation Act 1901, a direction may:\n\n (a) specify a particular matter in relation to which the Division is to exercise the powers of the Commission; or\n\n (b) specify a class of matters in relation to which the Division is to exercise the powers of the Commission from time to time.\n\n (2A) The Chairperson may vary or revoke a direction:\n\n (a) if the direction specifies a particular matter under paragraph (2)(a)—at any time before the Division makes a determination in relation to the matter; or\n\n (b) otherwise—at any time.\n\n (2B) If a direction is varied to change the membership of the Division, the Division as constituted after the change may continue and complete the determination of any matter that the Division was dealing with before the change.\n\n (3) For the purposes of the determination of a matter specified in a direction given under subsection (1), the Commission shall be deemed to consist of the Division of the Commission specified in the direction.\n\n (3A) However, a direction under subsection (1) specifying a matter, or a class of matters, in relation to which a Division is to exercise the powers of the Commission does not prevent the Commission dealing with that matter, or a matter in that class of matters, otherwise than in the Division.\n\n (5) At a meeting of a Division of the Commission at which neither the Chairperson nor a Deputy Chairperson is presiding, a member of the Commission nominated for the purpose by the Chairperson shall preside.\n\n (6) Notwithstanding section 18, at a meeting of a Division of the Commission, two members form a quorum.\n\n (7) A Division of the Commission may exercise powers of the Commission under this Act, the Digital ID Act 2024, a gas market instrument, the cash distribution framework or the consumer data rules, notwithstanding that another Division of the Commission is exercising powers of the Commission at the same time.\n\n (8) A direction given under subsection (1) is not a legislative instrument.","sortOrder":41},{"sectionNumber":"25","sectionType":"section","heading":"Delegation by Commission","content":"25  Delegation by Commission\n\n (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), a gas market instrument, the consumer data rules, Procedural Rules under Part XIC, the Telecommunications Act 1997, the Telecommunications (Consumer Protection and Service Standards) Act 1999, the Water Act 2007, Rules of Conduct under Part 20 of the Telecommunications Act 1997, the National Broadband Network Companies Act 2011, regulations under the National Broadband Network Companies Act 2011, or the Australian Postal Corporation Act 1989, other than this power of delegation and its powers to grant, revoke or vary an authorisation.\n\nNote: Section 95ZD allows the Commission to delegate certain powers under Part VIIA to a member of the Commission.\n\n (2) A power so delegated may be exercised or performed by the delegate in accordance with the instrument of delegation.\n\n (3) A delegation under this section is revocable at will and does not prevent the exercise of a power by the Commission.","sortOrder":42},{"sectionNumber":"26","sectionType":"section","heading":"Delegation by Commission of certain functions and powers","content":"26  Delegation by Commission of certain functions and powers\n\nDelegation to staff members of ASIC\n\n (1) The Commission may, by resolution, delegate:\n\n (a) any of its functions and powers under or in relation to Parts VI and XI and the Australian Consumer Law; and\n\n (b) any of its powers under Part XII that relate to those Parts or the Australian Consumer Law;\n\nto a staff member of ASIC.\n\n (2) The Commission must not delegate a function or power under subsection (1) unless the Chairperson of ASIC has agreed to the delegation in writing.\n\nDelegations relating to Part IVD or the consumer data rules\n\n (3) The Commission may, by resolution and in accordance with subsection (5), delegate any of its functions and powers under:\n\n (a) Part VI; or\n\n (b) Division 5 of Part XI; or\n\n (c) section 155;\n\nto the extent that the functions or powers relate to Part IVD or the consumer data rules.\n\nNote: Division 5 of Part XI relates to the consumer data rules in the way described in section 56BM.\n\n (4) A member of the Commission may, by writing and in accordance with subsection (5), delegate any of the member’s functions and powers under section 155 to the extent that the functions or powers relate to Part IVD or the consumer data rules.\n\n (5) A delegation under subsection (3) or (4) of a function or power may be:\n\n (a) to the Information Commissioner; or\n\n (b) to a member of the staff of the Office of the Australian Information Commissioner referred to in section 23 of the Australian Information Commissioner Act 2010;\n\nif:\n\n (c) the Information Commissioner agrees to the delegation in writing; and\n\n (d) in the case of a delegation to a staff member referred to in paragraph (b)—the Information Commissioner is satisfied that the staff member:\n\n (i) is an SES employee or acting SES employee; or\n\n (ii) is holding or performing the duties of a sufficiently senior office or position for the function or power.","sortOrder":43},{"sectionNumber":"27","sectionType":"section","heading":"Staff of Commission","content":"27  Staff of Commission\n\n (1) The staff necessary to assist the Commission shall be persons engaged under the Public Service Act 1999.\n\n (2) For the purposes of the Public Service Act 1999:\n\n (a) the Chairperson of the Commission and the APS employees assisting the Chairperson together constitute a Statutory Agency; and\n\n (b) the Chairperson is the Head of that Statutory Agency.","sortOrder":44},{"sectionNumber":"27A","sectionType":"section","heading":"Consultants","content":"27A  Consultants\n\n (1) On behalf of the Commonwealth, the Commission may engage persons to give advice to, and perform services for, the Commission.\n\n (2) The terms and conditions of engagement are as determined by the Commission.","sortOrder":45},{"sectionNumber":"28","sectionType":"section","heading":"Functions of Commission in relation to dissemination of information, law reform and research","content":"28  Functions of Commission in relation to dissemination of information, law reform and research\n\n (1) In addition to any other functions conferred on the Commission, the Commission has the following functions:\n\n (a) to make available to persons engaged in trade or commerce and other interested persons general information for their guidance with respect to the carrying out of the functions, or the exercise of the powers, of the Commission under this Act;\n\n (b) to examine critically, and report to the Minister on, the laws in force in Australia relating to the protection of consumers in respect of matters referred to the Commission by the Minister, being matters with respect to which the Parliament has power to make laws;\n\n (c) to conduct research in relation to matters affecting the interests of consumers, being matters with respect to which the Parliament has power to make laws;\n\n (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;\n\n (d) to make available to the public general information in relation to matters affecting the interests of consumers, being matters with respect to which the Parliament has power to make laws;\n\n (e) to make known for the guidance of consumers the rights and obligations of persons under provisions of laws in force in Australia that are designed to protect the interests of consumers.\n\n (2) Where a matter of a kind mentioned in paragraph (1)(b) is referred by the Minister to the Commission for examination and report:\n\n (a) the Commission shall cause to be published in the Gazette and in any other manner the Commission considers appropriate a notice:\n\n (i) stating that the reference has been made and specifying the matter to which the reference relates; and\n\n (ii) inviting interested persons to furnish to the Commission their views on that matter and specifying the time and manner within which those views are to be furnished;\n\n (b) the Commission shall not furnish its report to the Minister until a reasonable opportunity has been given to interested persons to furnish to the Commission their views on the matter to which the reference relates; and\n\n (c) the Commission shall include in its report to the Minister any recommendations that it considers desirable with respect to the reform of the law relating to the matter to which the reference relates, whether those recommendations relate to the amendment of existing laws or the making of new laws.\n\n (3) The Minister shall cause a copy of each report furnished to him or her by the Commission in relation to a matter referred to the Commission under paragraph (1)(b) to be laid before each House of the Parliament as soon as practicable after the report is received by him or her.","sortOrder":46},{"sectionNumber":"28A","sectionType":"section","heading":"Function of Commission in relation to providing resources to the AER","content":"28A  Function of Commission in relation to providing resources to the AER\n\n  In addition to any other functions conferred on the Commission, the Commission may provide the AER with supports and resources (including corporate and information technology resources) to assist in the administration of the AER.","sortOrder":47},{"sectionNumber":"29","sectionType":"section","heading":"Commission to comply with directions of Minister and requirements of the Parliament","content":"29  Commission to comply with directions of Minister and requirements of the Parliament\n\n (1) The Minister may give the Commission directions connected with the performance of its functions or the exercise of its powers under this Act.\n\n (1A) The Minister must not give directions under subsection (1) relating to:\n\n (a) Part IIIA, IV, IVA, IVBA, IVBB, IVE, VII, VIIA, X, XIB, XIC or XICA; or\n\n (b) Division 3 of Part XI in relation to individual cases.\n\n (1B) The Commission must comply with a direction.\n\n (2) Any direction given to the Commission under subsection (1) shall be in writing and the Minister shall cause a copy of the direction to be published in the Gazette as soon as practicable after the direction is given.\n\n (3) If either House of the Parliament or a Committee of either House, or of both Houses, of the Parliament requires the Commission to furnish to that House or Committee any information concerning the performance of the functions of the Commission under this Act, the Commission shall comply with the requirement.","sortOrder":48},{"sectionNumber":"Part IIA","sectionType":"part","heading":"The National Competition Council","content":"Part IIA—The National Competition Council","sortOrder":49},{"sectionNumber":"29A","sectionType":"section","heading":"Establishment of Council","content":"29A  Establishment of Council\n\n (1) The National Competition Council is established by this section.\n\n (2) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n\n (a) the Council is a listed entity; and\n\n (b) the Council President is the accountable authority of the Council; and\n\n (c) the following persons are officials of the Council:\n\n (i) the Council President;\n\n (ii) the other Councillors;\n\n (iii) the staff referred to in subsection 29M(1);\n\n (iv) consultants engaged under section 29N; and\n\n (d) the purposes of the Council include the functions of the Council referred to in section 29B.","sortOrder":50},{"sectionNumber":"29B","sectionType":"section","heading":"Functions and powers of Council","content":"29B  Functions and powers of Council\n\n (1) The Council’s functions include:\n\n (a) carrying out research into matters referred to the Council by the Minister; and\n\n (b) providing advice on matters referred to the Council by the Minister.\n\n (2) The Council may:\n\n (a) perform any function conferred on it by a law of the Commonwealth, or of a State or Territory; and\n\n (b) exercise any power:\n\n (i) conferred by that law to facilitate the performance of that function; or\n\n (ii) necessary or convenient to permit the performance of that function.\n\n (2A) The Council must not, under subsection (2):\n\n (a) perform a function conferred on it by a law of a State or Territory; or\n\n (b) exercise a power that is so conferred;\n\nunless the conferral of the function or power is in accordance with the National Competition Policy Agreement.\n\n (2B) Subsection (2) does not apply to a State/Territory energy law.\n\nNote: Section 29BA provides that a State/Territory energy law may confer functions or powers, or impose duties, on the Council.\n\n (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.","sortOrder":51},{"sectionNumber":"29BA","sectionType":"section","heading":"Commonwealth consent to conferral of functions etc. on Council","content":"29BA  Commonwealth consent to conferral of functions etc. on Council\n\n (1) A State/Territory energy law may confer functions or powers, or impose duties, on the Council for the purposes of that law.\n\nNote: Section 29BC sets out when such a law imposes a duty on the Council.\n\n (2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a State/Territory energy law to the extent to which:\n\n (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Council; or\n\n (b) the authorisation would otherwise exceed the legislative power of the Commonwealth.\n\n (3) The Council cannot perform a duty or function, or exercise a power, under a State/Territory energy law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.","sortOrder":52},{"sectionNumber":"29BB","sectionType":"section","heading":"How duty is imposed","content":"29BB  How duty is imposed\n\nApplication\n\n (1) This section applies if a State/Territory energy law purports to impose a duty on the Council.\n\nNote: Section 29BC sets out when such a law imposes a duty on the Council.\n\nState or Territory legislative power sufficient to support duty\n\n (2) The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:\n\n (a) imposing the duty is within the legislative powers of the State or Territory concerned; and\n\n (b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Council.\n\nNote: 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).\n\nCommonwealth legislative power sufficient to support duty but State or Territory legislative powers are not\n\n (3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.\n\n (4) If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.\n\n (5) The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:\n\n (a) is within the legislative powers of the Commonwealth; and\n\n (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Council.\n\n (6) Subsections (1) to (5) do not limit section 29BA.","sortOrder":53},{"sectionNumber":"29BC","sectionType":"section","heading":"When a State/Territory energy law imposes a duty","content":"29BC  When a State/Territory energy law imposes a duty\n\n  For the purposes of sections 29BA and 29BB, a State/Territory energy law imposes a duty on the Council if:\n\n (a) the law confers a function or power on the Council; and\n\n (b) the circumstances in which the function or power is conferred give rise to an obligation on the Council to perform the function or to exercise the power.","sortOrder":54},{"sectionNumber":"29C","sectionType":"section","heading":"Membership of Council","content":"29C  Membership of Council\n\n (1) The Council consists of the Council President and up to 4 other Councillors.\n\n (2) Each Councillor is to be appointed by the Governor‑General, for a term of up to 5 years.\n\n (3) The Governor‑General must not appoint a person as a Councillor or Council President unless the Governor‑General is satisfied that:\n\n (a) the person qualifies for the appointment because of the person’s knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration; and\n\n (b) a majority of the States and Territories that are parties to the National Competition Policy Agreement support the appointment.","sortOrder":55},{"sectionNumber":"29D","sectionType":"section","heading":"Terms and conditions of office","content":"29D  Terms and conditions of office\n\n (1) A Councillor may be appointed to hold office on either a full‑time or a part‑time basis.\n\n (2) A Councillor holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as the Governor‑General determines.","sortOrder":56},{"sectionNumber":"29E","sectionType":"section","heading":"Acting Council President","content":"29E  Acting Council President\n\n  The Minister may appoint a Councillor to act as the Council President:\n\n (a) if there is a vacancy in the office of Council President, whether or not an appointment has previously been made to the office; or\n\n (b) during any period, or during all periods, when the Council President is absent from duty or absent from Australia or is, for any reason, unable to perform the duties of the office.\n\nNote: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.","sortOrder":57},{"sectionNumber":"29F","sectionType":"section","heading":"Remuneration of Councillors","content":"29F  Remuneration of Councillors\n\n (1) A Councillor is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of the Remuneration Tribunal is in operation, the Councillor is to be paid the remuneration that is prescribed.\n\n (2) A Councillor is to be paid such allowances as are prescribed.\n\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.","sortOrder":58},{"sectionNumber":"29G","sectionType":"section","heading":"Leave of absence","content":"29G  Leave of absence\n\n (1) A full‑time Councillor has such recreation leave entitlements as are determined by the Remuneration Tribunal.\n\n (2) The Minister may grant a full‑time Councillor leave of absence, other than recreation leave, on such terms and conditions as the Minister determines. The terms and conditions may include terms and conditions relating to remuneration.","sortOrder":59},{"sectionNumber":"29H","sectionType":"section","heading":"Termination of appointment of Councillors","content":"29H  Termination of appointment of Councillors\n\n (1) The Governor‑General may terminate the appointment of a Councillor for misbehaviour or for physical or mental incapacity.\n\n (2) The Governor‑General must terminate the appointment of a Councillor who:\n\n (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;\n\n (b) fails to comply with his or her obligations under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section;\n\n (c) in the case of a full‑time Councillor—engages in any paid employment outside the duties of the Councillor’s office without the consent of the Minister;\n\n (d) in the case of a full‑time Councillor—is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.","sortOrder":60},{"sectionNumber":"29I","sectionType":"section","heading":"Resignation of Councillors","content":"29I  Resignation of Councillors\n\n  A Councillor may resign by giving the Governor‑General a signed resignation notice.","sortOrder":61},{"sectionNumber":"29J","sectionType":"section","heading":"Arrangement of Council business","content":"29J  Arrangement of Council business\n\n (1) Subject to subsection (2), the Council President may give directions about the arrangement of the Council’s business.\n\n (2) The Council must not carry out any work (other than work relating to a function under Part IIIA) except in accordance with a program agreed to by:\n\n (a) a majority of the parties to the National Competition Policy Agreement; or\n\n (b) if the parties to the Agreement are evenly divided on the question of agreeing to a program—the Commonwealth.","sortOrder":62},{"sectionNumber":"29L","sectionType":"section","heading":"Council meetings","content":"29L  Council meetings\n\n (1) The Council President must convene the meetings that the Council President thinks are necessary to perform the Council’s functions efficiently.\n\n (2) The meetings must be held in places determined by the Council President.\n\n (3) The Council President must preside at any meeting that he or she attends.\n\n (4) If the Council President is absent from a meeting, a Councillor chosen by the Councillors at the meeting must preside.\n\n (5) The Councillor presiding at a meeting may give directions on the procedure to be followed in relation to the meeting.\n\n (6) The quorum for a meeting is 3 Councillors (including the Council President).\n\n (7) At a meeting, a question must be decided by a majority of votes of the Councillors present and voting. The Councillor presiding has a deliberative vote, and a casting vote if the deliberative votes are equally divided.","sortOrder":63},{"sectionNumber":"29LA","sectionType":"section","heading":"Resolutions without meetings","content":"29LA  Resolutions without meetings\n\n (1) If all Councillors (other than those that must not sign a document because of subsection (3)) sign a document containing a statement that they are in favour of a resolution in terms set out in the document, then a resolution in those terms is taken to have been passed at a duly constituted meeting of the Council held on the day the document was signed, or, if the members sign the document on different days, on the last of those days.\n\n (2) For the purposes of subsection (1), 2 or more separate documents containing statements in identical terms each of which is signed by one or more Councillors are together taken to constitute one document containing a statement in those terms signed by those Councillors on the respective days on which they signed the separate documents.\n\n (3) A Councillor must not sign a document containing a statement in favour of a resolution if the resolution concerns a matter in which the Councillor has any pecuniary interest, being an interest that could conflict with the proper performance of the Councillor’s functions in relation to any matter.","sortOrder":64},{"sectionNumber":"29M","sectionType":"section","heading":"Staff to help Council","content":"29M  Staff to help Council\n\n (1) The staff needed to help the Council are to be persons engaged under the Public Service Act 1999.\n\n (2) For the purposes of the Public Service Act 1999:\n\n (a) the Council President and the APS employees assisting the Council President together constitute a Statutory Agency; and\n\n (b) the Council President is the Head of that Statutory Agency.","sortOrder":65},{"sectionNumber":"29N","sectionType":"section","heading":"Consultants","content":"29N  Consultants\n\n (1) On behalf of the Commonwealth, the Council may engage persons to give advice to, and perform services for, the Council.\n\n (2) The terms and conditions of engagement are as determined by the Council.","sortOrder":66},{"sectionNumber":"29O","sectionType":"section","heading":"Annual report","content":"29O  Annual report\n\n  An annual report prepared by the Council President and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include details of the following:\n\n (a) the time taken by the Council to make a recommendation on any application under section 44F, 44M, 44NA or 44NBA (about access regime applications under Part IIIA);\n\n (b) any court or Tribunal decision interpreting:\n\n (i) paragraph (f) of the definition of service in section 44B (which is an exclusion to do with production processes); or\n\n (ii) section 44CA (about declaration criteria for services under Part IIIA);\n\n (c) any matter the Council considers has impeded the operation of Part IIIA from delivering efficient access outcomes;\n\n (d) any evidence of the benefits arising from determinations of the Commission under section 44V (about arbitration determinations under Part IIIA);\n\n (e) any evidence of the costs of, or the disincentives for, investment in the infrastructure by which declared services (within the meaning of Part IIIA) are provided;\n\n (f) any implications for the operation of Part IIIA in the future.","sortOrder":67},{"sectionNumber":"Part III","sectionType":"part","heading":"The Australian Competition Tribunal","content":"Part III—The Australian Competition Tribunal","sortOrder":68},{"sectionNumber":"30","sectionType":"section","heading":"Constitution of Tribunal","content":"30  Constitution of Tribunal\n\n (1) The Trade Practices Tribunal that existed immediately before this subsection commenced continues to exist as the Australian Competition Tribunal.\n\n (2) The Tribunal so continued in existence shall consist of a President and such number of Deputy Presidents and other members as are appointed in accordance with this section.\n\n (3) A member of the Tribunal shall be appointed by the Governor‑General.","sortOrder":69},{"sectionNumber":"31","sectionType":"section","heading":"Qualifications of members of Tribunal","content":"31  Qualifications of members of Tribunal\n\n (1) A person shall not be appointed as a presidential member of the Tribunal unless he or she is a Judge of a Federal Court, not being the High Court or a court of an external Territory.\n\n (2) A person shall not be appointed as a member of the Tribunal other than a presidential member unless he or she appears to the Governor‑General to be qualified for appointment by virtue of his or her knowledge of, or experience in, industry, commerce, economics, law or public administration.","sortOrder":70},{"sectionNumber":"31A","sectionType":"section","heading":"Appointment of Judge as presidential member of Tribunal not to affect tenure etc.","content":"31A  Appointment of Judge as presidential member of Tribunal not to affect tenure etc.\n\n  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.","sortOrder":71},{"sectionNumber":"32","sectionType":"section","heading":"Terms and conditions of appointment","content":"32  Terms and conditions of appointment\n\n  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.","sortOrder":72},{"sectionNumber":"33","sectionType":"section","heading":"Remuneration and allowances of members of Tribunal","content":"33  Remuneration and allowances of members of Tribunal\n\n (4) A member of the Tribunal other than a presidential member shall be paid such remuneration as is determined by the Remuneration Tribunal.\n\n (5) A member of the Tribunal other than a presidential member shall be paid such allowances as are prescribed.\n\n (6) Subsections (4) and (5) have effect subject to the Remuneration Tribunal Act 1973.","sortOrder":73},{"sectionNumber":"34","sectionType":"section","heading":"Acting appointments","content":"34  Acting appointments\n\n (1) Where:\n\n (a) the President is, or is expected to be, absent from duty; or\n\n (b) there is, or is expected to be, a vacancy in the office of President;\n\nthe 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.\n\nNote: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.\n\n (2) Where a presidential member (including the President) of the Tribunal is, or is expected to be, absent from duty, the Governor‑General may appoint a person qualified to be appointed as a presidential member to act as a Deputy President during the absence from duty of the member.\n\nNote: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.\n\n (3) Where a member of the Tribunal other than a presidential member is, or is expected to be, absent from duty, the Governor‑General may appoint a person qualified to be appointed as a member of the Tribunal other than a presidential member to act as such a member during the absence from duty of the member.\n\nNote: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.\n\n (4) Where a person has been appointed under subsection (2) or (3), the Governor‑General may, by reason of pending proceedings or other special circumstances, direct, before the absent member of the Tribunal resumes duty, that the person so appointed shall continue to act under the appointment after the resumption of duty by the absent member until the Governor‑General terminates the appointment, but a person shall not continue to act as a member of the Tribunal by virtue of this subsection for more than 12 months after the resumption of duty by the absent member.\n\n (5) Where a person has been appointed under this section to act as a member of the Tribunal during the absence from duty of a member of the Tribunal, and that member ceases to hold office without having resumed duty, the period of appointment of the person so appointed shall be deemed to continue until it is terminated by the Governor‑General, or until the expiration of 12 months from the date on which the absent member ceases to hold office, whichever first happens.","sortOrder":74},{"sectionNumber":"35","sectionType":"section","heading":"Suspension and removal of members of Tribunal","content":"35  Suspension and removal of members of Tribunal\n\n (1) The Governor‑General may suspend a member of the Tribunal from office on the ground of misbehaviour or physical or mental incapacity.\n\n (2) The Minister shall cause a statement of the ground of the suspension to be laid before each House of the Parliament within 7 sitting days of the House after the suspension.\n\n (3) Where such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member of the Tribunal should be restored to office and, if each House so passes a resolution, the Governor‑General shall terminate the suspension.\n\n (4) If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the Governor‑General may remove the member of the Tribunal from office.\n\n (5) If a member of the Tribunal becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, the Governor‑General shall remove him or her from office.\n\n (6) A member of the Tribunal shall not be removed from office except as provided by this section.\n\n (7) A presidential member of the Tribunal ceases to hold office if he or she no longer holds office as a Judge of a Federal Court, not being the High Court or a court of an external Territory.","sortOrder":75},{"sectionNumber":"36","sectionType":"section","heading":"Resignation","content":"36  Resignation\n\n  A member of the Tribunal may resign his or her office by writing signed by him or her and delivered to the Governor‑General.","sortOrder":76},{"sectionNumber":"37","sectionType":"section","heading":"Constitution of Tribunal for particular matters","content":"37  Constitution of Tribunal for particular matters\n\n  For the purpose of hearing and determining proceedings, the Tribunal must be constituted by a Division of the Tribunal consisting of:\n\n (a) in any case—a presidential member of the Tribunal and 2 members of the Tribunal who are not presidential members; or\n\n (b) if the proceedings are proceedings on a review under Division 1A of Part IX—a presidential member of the Tribunal.","sortOrder":77},{"sectionNumber":"38","sectionType":"section","heading":"Validity of determinations","content":"38  Validity of determinations\n\n  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.","sortOrder":78},{"sectionNumber":"39","sectionType":"section","heading":"President may give directions","content":"39  President may give directions\n\n (1) The President may give directions as to the arrangement of the business of the Tribunal and the constitution of Divisions of the Tribunal.\n\n (2) The President may give directions to the Deputy Presidents in relation to the exercise by the Deputy Presidents of powers with respect to matters of procedure in proceedings before the Tribunal.\n\nNote: Subsection 103(2) provides that any presidential member may exercise powers with respect to matters of procedure in proceedings before the Tribunal.","sortOrder":79},{"sectionNumber":"40","sectionType":"section","heading":"Disclosure of interests by members of Tribunal","content":"40  Disclosure of interests by members of Tribunal\n\n (1) Where a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and the member has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the proceedings:\n\n (a) the member shall disclose the interest to the President; and\n\n (b) the member shall not take part, or continue to take part, in the proceedings if:\n\n (i) the President gives a direction under paragraph (2)(a) in relation to the proceedings; or\n\n (ii) all of the persons concerned in the proceedings do not consent to the member taking part in the proceedings.\n\n (2) Where the President becomes aware that a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and that the member has in relation to the proceedings such an interest:\n\n (a) if the President considers that the member should not take part, or should not continue to take part, in the proceedings—the President shall give a direction to the member accordingly; or\n\n (b) in any other case—the President shall cause the interest of the member to be disclosed to the persons concerned in the proceedings.","sortOrder":80},{"sectionNumber":"41","sectionType":"section","heading":"Presidential member to preside","content":"41  Presidential member to preside\n\n  The presidential member who is a member of a Division shall preside at proceedings of that Division.","sortOrder":81},{"sectionNumber":"42","sectionType":"section","heading":"Decision of questions","content":"42  Decision of questions\n\n (1) A question of law arising in a matter before a Division of the Tribunal (including the question whether a particular question is one of law) shall be determined in accordance with the opinion of the presidential member presiding.\n\n (2) Subject to subsection (1), a question arising in proceedings before a Division of the Tribunal shall be determined in accordance with the opinion of a majority of the members constituting the Division.","sortOrder":82},{"sectionNumber":"43","sectionType":"section","heading":"Member of Tribunal ceasing to be available","content":"43  Member of Tribunal ceasing to be available\n\n (1) This section applies where the hearing of any proceedings has been commenced or completed by the Tribunal but, before the matter to which the proceedings relate has been determined, one of the members constituting the Tribunal for the purposes of the proceedings has ceased to be a member of the Tribunal or has ceased to be available for the purposes of the proceedings.\n\n (2) Where the President is satisfied that this section applies in relation to proceedings, the President may direct that a specified member of the Tribunal shall take the place of the member referred to in subsection (1) for the purposes of the proceedings.\n\n (3) Where this section applies in relation to proceedings that were being dealt with before the Tribunal, the President may, instead of giving a direction under subsection (2), direct that the hearing and determination, or the determination, of the proceedings be completed by the Tribunal constituted by the members other than the member referred to in subsection (1).\n\n (4) Where the President has given a direction under subsection (3), he or she may, at any time before the determination of the proceedings, direct that a third member be added to the Tribunal as constituted in accordance with subsection (3).\n\n (5) The Tribunal as constituted in accordance with any of the provisions of this section for the purposes of any proceedings may have regard to any record of the proceedings before the Tribunal as previously constituted.","sortOrder":83},{"sectionNumber":"43A","sectionType":"section","heading":"Counsel assisting Tribunal","content":"43A  Counsel assisting Tribunal\n\n (1) The President may, on behalf of the Commonwealth, appoint a legal practitioner to assist the Tribunal as counsel, either generally or in relation to a particular matter or matters.\n\n (2) In this section:\n\nlegal practitioner means a legal practitioner (however described) of the High Court or of the Supreme Court of a State or Territory.","sortOrder":84},{"sectionNumber":"43B","sectionType":"section","heading":"Consultants","content":"43B  Consultants\n\n  The Registrar may, on behalf of the Commonwealth, engage persons as consultants to, or to perform services for, the Tribunal.","sortOrder":85},{"sectionNumber":"44","sectionType":"section","heading":"Staff of Tribunal","content":"44  Staff of Tribunal\n\n (1) There shall be a Registrar of the Tribunal and such Deputy Registrars of the Tribunal as are appointed in accordance with this section.\n\n (2) The Registrar and the Deputy Registrars shall be appointed by the Minister and shall have such duties and functions as are provided by this Act and the regulations and such other duties and functions as the President directs.\n\n (3) The Registrar and the Deputy Registrars, and the staff necessary to assist them, shall be persons engaged under the Public Service Act 1999.","sortOrder":86},{"sectionNumber":"44A","sectionType":"section","heading":"Acting appointments","content":"44A  Acting appointments\n\n  The Minister may appoint a person who is engaged under the Public Service Act 1999 to act as the Registrar or as a Deputy Registrar during any period, or during all periods, when:\n\n (a) the Registrar or that Deputy Registrar, as the case may be, is absent from duty or from Australia or is, for any other reason, unable to perform the duties and functions of his or her office; or\n\n (b) there is a vacancy in the office of Registrar or in that office of Deputy Registrar, as the case may be.\n\nNote: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.","sortOrder":87},{"sectionNumber":"Part IIIAA","sectionType":"part","heading":"The Australian Energy Regulator (AER)","content":"Part IIIAA—The Australian Energy Regulator (AER)","sortOrder":88},{"sectionNumber":"Division 1","sectionType":"division","heading":"Preliminary","content":"Division 1—Preliminary","sortOrder":89},{"sectionNumber":"44AB","sectionType":"section","heading":"Definitions","content":"44AB  Definitions\n\n  In this Part, unless the contrary intention appears:\n\nAER State/Territory energy law means any of the following laws:\n\n (a) a uniform energy law that applies as a law of a State or Territory;\n\n (b) a law of a State or Territory that applies a law mentioned in paragraph (a) as a law of its own jurisdiction;\n\n (c) any other provisions of a law of a State or Territory that:\n\n (i) relate to energy; and\n\n (ii) are prescribed by the regulations for the purposes of this paragraph;\n\n  being those provisions as in force from time to time.\n\nAustralian Energy Market Agreement means the agreement, as amended from time to time:\n\n (a) that relates to energy; and\n\n (b) that is between the Commonwealth, all of the States, the Australian Capital Territory and the Northern Territory; and\n\n (c) that is first made in 2004; and\n\n (d) that agrees to the establishment of the AER and the AEMC.\n\nfull‑time AER member means an AER member appointed on a full‑time basis.\n\npart‑time AER member means an AER member appointed on a part‑time basis.","sortOrder":90},{"sectionNumber":"44AC","sectionType":"section","heading":"This Part binds the Crown","content":"44AC  This Part binds the Crown\n\n  This Part binds the Crown in each of its capacities.","sortOrder":91},{"sectionNumber":"44AD","sectionType":"section","heading":"Extra-territorial operation","content":"44AD  Extra‑territorial operation\n\n  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:\n\n (a) things situated in or outside Australia;\n\n (b) acts, transactions and matters done, entered into or occurring in or outside Australia;\n\n (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.","sortOrder":92},{"sectionNumber":"Division 2","sectionType":"division","heading":"Establishment of the AER","content":"Division 2—Establishment of the AER","sortOrder":93},{"sectionNumber":"44AE","sectionType":"section","heading":"Establishment of the AER","content":"44AE  Establishment of the AER\n\n (1) The Australian Energy Regulator (the AER) is established by this section.\n\n (1A) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n\n (a) the AER is a listed entity; and\n\n (b) the AER members are the accountable authority of the AER; and\n\n (c) the following persons are officials of the AER:\n\n (i) the AER members;\n\n (ii) the staff of the AER referred to in section 44AAC;\n\n (iii) persons assisting the AER referred to in section 44AACA;\n\n (iv) consultants engaged under section 44AACB; and\n\n (d) the purposes of the AER include the functions of the AER under Division 3 of this Part.\n\n (2) The AER:\n\n (a) is a body corporate with perpetual succession; and\n\n (b) must have a common seal; and\n\n (c) may acquire, hold and dispose of real and personal property; and\n\n (d) may sue and be sued in its corporate name.\n\n (3) However, the AER is taken, for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n\n (a) to be a non‑corporate Commonwealth entity, and not to be a corporate Commonwealth entity; and\n\n (b) to be a part of the Commonwealth; and\n\n (c) not to be a body corporate.","sortOrder":94},{"sectionNumber":"44AF","sectionType":"section","heading":"AER to hold money and property on behalf of the Commonwealth","content":"44AF  AER to hold money and property on behalf of the Commonwealth\n\n  The AER holds any money or property for and on behalf of the Commonwealth.","sortOrder":95},{"sectionNumber":"44AG","sectionType":"section","heading":"Constitution of the AER","content":"44AG  Constitution of the AER\n\n  The AER consists of:\n\n (a) 2 Commonwealth AER members, appointed in accordance with section 44AM; and\n\n (b) 3 State/Territory AER members, appointed in accordance with section 44AP.","sortOrder":96},{"sectionNumber":"Division 3","sectionType":"division","heading":"Functions and powers of the AER","content":"Division 3—Functions and powers of the AER","sortOrder":97},{"sectionNumber":"44AH","sectionType":"section","heading":"Commonwealth functions","content":"44AH  Commonwealth functions\n\n (1) The AER has any functions:\n\n (a) conferred under a law of the Commonwealth; or\n\n (b) prescribed by regulations made under this Act.\n\nNote: The AER may have functions under the Australian Energy Market Act 2004.\n\n (2) Regulations made for the purposes of paragraph (1)(b) may empower the AER to make legislative instruments.\n\n (3) Section 42 (disallowance) of the Legislation Act 2003 does not apply to legislative instruments empowered by regulations made for the purposes of paragraph (1)(b).\n\n (4) Subsection (3) has effect subject to any express provision to the contrary in the regulations.","sortOrder":98},{"sectionNumber":"44AI","sectionType":"section","heading":"Commonwealth consent to conferral of functions etc. on AER","content":"44AI  Commonwealth consent to conferral of functions etc. on AER\n\nGeneral rule\n\n (1) Subject to section 44AIA, an AER State/Territory energy law or a local energy instrument may confer functions or powers, or impose duties, on the AER for the purposes of that law or instrument.\n\nNote: Section 44AK sets out when such a law or instrument imposes a duty on the AER.\n\n (2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an AER State/Territory energy law or local energy instrument to the extent to which:\n\n (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the AER; or\n\n (b) the authorisation would otherwise exceed the legislative power of the Commonwealth.\n\n (3) The AER cannot perform a duty or function, or exercise a power, under an AER State/Territory energy law or local energy instrument unless the conferral of the function or power, or the imposition of the duty, is in accordance with the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory concerned.\n\n (4) A local energy instrument may confer functions or powers, or impose duties, on the AER only if the instrument is designated for the purposes of this subsection under the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory that made the instrument.\n\n (5) To avoid doubt, if an AER State/Territory energy law is also a local energy instrument, subsection (4) applies to the law.","sortOrder":99},{"sectionNumber":"44AIA","sectionType":"section","heading":"No merits review of AER decisions","content":"44AIA  No merits review of AER decisions\n\n  A decision of the AER under an AER State/Territory energy law or local energy instrument is not to be subject to merits review (however described) by a body established under a law of a State or Territory.","sortOrder":100},{"sectionNumber":"44AJ","sectionType":"section","heading":"How duty is imposed","content":"44AJ  How duty is imposed\n\nApplication\n\n (1) This section applies if an AER State/Territory energy law or local energy instrument purports to impose a duty on the AER.\n\nNote 1: Section 44AK sets out when such a law or instrument imposes a duty on the AER.\n\nNote 2: Section 320 of the South Australian Energy Retail Legislation, as it applies as a law of a State or Territory, deals with the case where a duty purportedly imposed on a Commonwealth body under that applied law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties.\n\nState or Territory legislative power sufficient to support duty\n\n (2) The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:\n\n (a) imposing the duty is within the legislative powers of the State or Territory concerned; and\n\n (b) imposing the duty by the law or instrument of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.\n\nNote: If this subsection applies, the duty will be taken to be imposed by force of the law or instrument of the State or Territory (the Commonwealth having consented under section 44AI to the imposition of the duty by that law or instrument).\n\nCommonwealth legislative power sufficient to support duty but State or Territory legislative powers are not\n\n (3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law or instrument of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.\n\n (4) If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.\n\n (5) The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:\n\n (a) is within the legislative powers of the Commonwealth; and\n\n (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.\n\n (6) Subsections (1) to (5) do not limit section 44AI.","sortOrder":101},{"sectionNumber":"44AK","sectionType":"section","heading":"When an AER State/Territory energy law etc. imposes a duty","content":"44AK  When an AER State/Territory energy law etc. imposes a duty\n\n  For the purposes of sections 44AI and 44AJ, an AER State/Territory energy law or local energy instrument imposes a duty on the AER if:\n\n (a) the law or instrument confers a function or power on the AER; and\n\n (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.","sortOrder":102},{"sectionNumber":"44AL","sectionType":"section","heading":"Powers of the AER","content":"44AL  Powers of the AER\n\n  The AER has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.\n\nNote: State and Territory laws or instruments may also confer powers on the AER in respect of its functions under those laws or instruments: see section 44AI.","sortOrder":103},{"sectionNumber":"Division 4","sectionType":"division","heading":"Administrative provisions relating to the AER","content":"Division 4—Administrative provisions relating to the AER","sortOrder":104},{"sectionNumber":"Subdivision A","sectionType":"subdivision","heading":"Appointment etc. of members","content":"Subdivision A—Appointment etc. of members","sortOrder":105},{"sectionNumber":"44AM","sectionType":"section","heading":"Appointment of Commonwealth AER members","content":"44AM  Appointment of Commonwealth AER members\n\n (1) A Commonwealth AER member is to be appointed by the Governor‑General by written instrument, on either a full‑time or part‑time basis.\n\n (2) A Commonwealth AER member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n\n (3) A person is not eligible for appointment as a Commonwealth AER member unless the person has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration.","sortOrder":106},{"sectionNumber":"44AO","sectionType":"section","heading":"Acting appointment of Commonwealth AER member","content":"44AO  Acting appointment of Commonwealth AER member\n\n (1) The Minister may, by written instrument, appoint a person to act as a Commonwealth AER member:\n\n (a) during a vacancy in the office of Commonwealth AER member, whether or not an appointment has previously been made to the office; or\n\n (b) during any period, or during all periods, when the Commonwealth AER member:\n\n (i) is absent from duty or from Australia; or\n\n (ii) is, for any reason, unable to perform the duties of the office.\n\nNote: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n (2) A person is not eligible for appointment to act as a Commonwealth AER member unless the person has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration.","sortOrder":107},{"sectionNumber":"44AP","sectionType":"section","heading":"Appointment of State/Territory AER members","content":"44AP  Appointment of State/Territory AER members\n\n (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.\n\n (2) A State/Territory AER member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n\n (3) A person is not eligible for appointment as a State/Territory AER member unless the person has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration.","sortOrder":108},{"sectionNumber":"44AQ","sectionType":"section","heading":"Acting appointment of State/Territory AER member","content":"44AQ  Acting appointment of State/Territory AER member\n\n (1) The Minister may, by written instrument, appoint a person to act as a State/Territory AER member:\n\n (a) during a vacancy in the office of State/Territory AER member, whether or not an appointment has previously been made to the office; or\n\n (b) during any period, or during all periods, when the State/Territory AER member:\n\n (i) is absent from duty or from Australia; or\n\n (ii) is, for any reason, unable to perform the duties of the office.\n\nNote: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n (2) A person is not eligible for appointment to act as a State/Territory AER member unless the person has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration.","sortOrder":109},{"sectionNumber":"44AR","sectionType":"section","heading":"AER Chair","content":"44AR  AER Chair\n\n (1) One of the AER members is to be appointed by the Governor‑General as the AER Chair, by written instrument. The appointment as AER Chair may be made at the same time as the appointment as AER member, or at a later time.\n\n (2) A person is not eligible for appointment as the AER Chair unless the person is a full‑time AER member.\n\n (3) The AER Chair holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n\n (4) If the AER Chair ceases to be an AER member, then he or she also ceases to be the AER Chair.\n\nNote: A person may cease to be the AER Chair without ceasing to be an AER member.","sortOrder":110},{"sectionNumber":"44ARA","sectionType":"section","heading":"AER Deputy Chair","content":"44ARA  AER Deputy Chair\n\n (1) One of the AER members is to be appointed by the Governor‑General as the AER Deputy Chair, by written instrument. The appointment as AER Deputy Chair may be made at the same time as the appointment as AER member, or at a later time.\n\n (2) A person is not eligible for appointment as the AER Deputy Chair unless the person is a full‑time AER member.\n\n (3) The AER Deputy Chair holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n\n (4) If a person who is the AER Deputy Chair ceases to be an AER member, then the person also ceases to be the AER Deputy Chair.\n\nNote: A person may cease to be the AER Deputy Chair without ceasing to be an AER member.","sortOrder":111},{"sectionNumber":"44ARB","sectionType":"section","heading":"AER Deputy Chair to act as the AER Chair","content":"44ARB  AER Deputy Chair to act as the AER Chair\n\n  The AER Deputy Chair is to act as the AER Chair:\n\n (a) during a vacancy in the office of the AER Chair, whether or not an appointment has previously been made to the office; or\n\n (b) during all periods when the AER Chair:\n\n (i) is absent from duty or from Australia; or\n\n (ii) is, for any reason, unable to perform the duties of the office.\n\nNote: See also subsection 33A(2) of the Acts Interpretation Act 1901.","sortOrder":112},{"sectionNumber":"44AS","sectionType":"section","heading":"Acting AER Deputy Chair","content":"44AS  Acting AER Deputy Chair\n\n (1) The Minister may, by written instrument, appoint an AER member to act as the AER Deputy Chair:\n\n (a) during a vacancy in the office of the AER Deputy Chair, whether or not an appointment has previously been made to the office; or\n\n (b) during any period, or during all periods, when the AER Deputy Chair:\n\n (i) is absent from duty or from Australia; or\n\n (ii) is, for any reason, unable to perform the duties of the office.\n\nNote: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n (2) If a person acting as the AER Deputy Chair ceases to be an AER member, then the appointment to act as the AER Deputy Chair also ceases.","sortOrder":113},{"sectionNumber":"44AT","sectionType":"section","heading":"Remuneration of AER members","content":"44AT  Remuneration of AER members\n\n (1) An AER member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed.\n\n (2) An AER member is to be paid the allowances that are prescribed.\n\n (3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.","sortOrder":114},{"sectionNumber":"44AU","sectionType":"section","heading":"Additional remuneration of AER Chair","content":"44AU  Additional remuneration of AER Chair\n\n (1) The AER Chair is to be paid additional remuneration (if any) determined by the Remuneration Tribunal.\n\n (2) The AER Chair is to be paid additional allowances (if any) that are prescribed.\n\n (3) This section has effect subject to the Remuneration Tribunal Act 1973 other than subsection 7(11) of that Act.","sortOrder":115},{"sectionNumber":"44AV","sectionType":"section","heading":"Leave of absence","content":"44AV  Leave of absence\n\n (1) A full‑time AER member has the recreation leave entitlements that are determined by the Remuneration Tribunal.\n\n (2) The Minister may grant a full‑time AER member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.\n\n (3) The AER Chair may grant leave of absence to any part‑time AER member on the terms and conditions that the AER Chair determines.","sortOrder":116},{"sectionNumber":"44AW","sectionType":"section","heading":"Other terms and conditions","content":"44AW  Other terms and conditions\n\n  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.","sortOrder":117},{"sectionNumber":"44AX","sectionType":"section","heading":"Outside employment","content":"44AX  Outside employment\n\n (1) A full‑time AER member must not engage in paid employment outside the duties of the member’s office without the Minister’s consent.\n\n (2) A part‑time AER member must not engage in any paid employment that conflicts or could conflict with the proper performance of the member’s duties.","sortOrder":118},{"sectionNumber":"44AY","sectionType":"section","heading":"Disclosure of interests","content":"44AY  Disclosure of interests\n\n (1) If an AER member has any direct or indirect interest in a matter being considered, or about to be considered, by the AER, being an interest that could conflict with the proper performance of the member’s functions in relation to a matter arising at a meeting of the AER, then the member must as soon as practicable disclose that interest at a meeting of the AER.\n\n (2) The disclosure, and any decision made by the AER in relation to the disclosure, must be recorded in the minutes of the meeting.\n\n (3) Section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) does not apply in relation to a person who is an AER member when he or she is acting in his or her capacity as an AER member.","sortOrder":119},{"sectionNumber":"44AZ","sectionType":"section","heading":"Resignation","content":"44AZ  Resignation\n\n (1) An AER member may resign his or her appointment by giving the Governor‑General a written resignation.\n\n (2) The AER Chair may resign his or her appointment as AER Chair by giving the Governor‑General a written resignation. The resignation does not affect the person’s appointment as an AER member.\n\n (3) A person who is the AER Deputy Chair may resign the person’s appointment as AER Deputy Chair by giving the Governor‑General a written resignation. The resignation does not affect the person’s appointment as an AER member.","sortOrder":120},{"sectionNumber":"44AAB","sectionType":"section","heading":"Termination of appointment","content":"44AAB  Termination of appointment\n\nAll AER members\n\n (1) The Governor‑General may terminate the appointment of an AER member:\n\n (a) for misbehaviour or physical or mental incapacity; or\n\n (b) if the member:\n\n (i) becomes bankrupt; or\n\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n\n (iii) compounds with his or her creditors; or\n\n (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or\n\n (c) if the member fails, without reasonable excuse, to comply with section 44AY.\n\nAdditional grounds: full‑time AER members\n\n (2) The Governor‑General may terminate the appointment of a full‑time AER member if:\n\n (a) the member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or\n\n (b) the member engages, except with the Minister’s consent, in paid employment outside the duties of his or her office.\n\nAdditional grounds: part‑time AER members\n\n (3) The Governor‑General may terminate the appointment of a part‑time AER member if:\n\n (a) the member is absent, except on leave of absence, from 3 consecutive meetings of the AER; or\n\n (b) the member engages in paid employment that conflicts or could conflict with the proper performance of the duties of his or her office.","sortOrder":121},{"sectionNumber":"Subdivision B","sectionType":"subdivision","heading":"Staff of the AER etc.","content":"Subdivision B—Staff of the AER etc.","sortOrder":122},{"sectionNumber":"44AAC","sectionType":"section","heading":"Staff of the AER","content":"44AAC  Staff of the AER\n\n (1) The staff of the AER must be persons engaged under the Public Service Act 1999.\n\n (2) For the purposes of the Public Service Act 1999:\n\n (a) the AER Chair and the APS employees assisting the AER Chair together constitute a Statutory Agency; and\n\n (b) the AER Chair is the Head of that Statutory Agency.","sortOrder":123},{"sectionNumber":"44AACA","sectionType":"section","heading":"Persons assisting the AER","content":"44AACA  Persons assisting the AER\n\n (1) The AER may be assisted by:\n\n (a) officers and employees of Agencies (within the meaning of the Public Service Act 1999), and of authorities of the Commonwealth, whose services are made available to the AER in connection with the performance of any of the AER’s functions; and\n\n (b) persons whose services are made available under arrangements made under subsection (2).\n\n (2) The AER may, on behalf of the Commonwealth, make an arrangement with the appropriate authority or officer of:\n\n (a) a State or Territory government; or\n\n (b) a State or Territory government authority;\n\nunder which the government or authority makes officers or employees available to the AER to perform services in connection with the performance of any of the AER’s functions.\n\n (3) An arrangement under subsection (2) may provide for the Commonwealth to reimburse a State or Territory with respect to the services of a person to whom the arrangement relates.\n\n (4) When performing services for the AER under this section, a person is subject to the directions of the AER.","sortOrder":124},{"sectionNumber":"44AACB","sectionType":"section","heading":"Consultants","content":"44AACB  Consultants\n\n (1) The AER may, on behalf of the Commonwealth, engage persons to give advice to, and perform services for, the AER.\n\n (2) The terms and conditions of engagement are as determined by the AER.","sortOrder":125},{"sectionNumber":"Subdivision C","sectionType":"subdivision","heading":"Meetings of the AER etc.","content":"Subdivision C—Meetings of the AER etc.","sortOrder":126},{"sectionNumber":"44AAD","sectionType":"section","heading":"Meetings","content":"44AAD  Meetings\n\n (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.\n\nNote: See also section 33B of the Acts Interpretation Act 1901, which contains extra rules about meetings by telephone etc.\n\n (2) Meetings of the AER must be held at such places as the AER Chair determines.\n\n (3) At a meeting of the AER, 3 AER members constitute a quorum. The quorum must include the AER Chair.\n\n (4) Questions arising at a meeting must be determined by a majority of the votes of the members present and voting.\n\n (4A) The AER Chair has a deliberative vote and, in the event of an equality of votes, also has a casting vote.\n\n (5) The AER Chair must preside at all meetings of the AER.\n\n (6) The AER Chair may give directions regarding the procedure to be followed at or in connection with a meeting.","sortOrder":127},{"sectionNumber":"44AAE","sectionType":"section","heading":"Resolutions without meetings","content":"44AAE  Resolutions without meetings\n\n (1) If all AER members sign a document containing a statement that they are in favour of a resolution in terms set out in the document, then a resolution in those terms is taken to have been passed at a duly constituted meeting of the AER held on the day the document was signed, or, if the members sign the document on different days, on the last of those days.\n\n (2) For the purposes of subsection (1), 2 or more separate documents containing statements in identical terms each of which is signed by one or more members are together taken to constitute one document containing a statement in those terms signed by those members on the respective days on which they signed the separate documents.\n\n (3) A member must not sign a document containing a statement in favour of a resolution if the resolution concerns a matter in which the member has any direct or indirect interest, being an interest that could conflict with the proper performance of the member’s functions in relation to any matter.","sortOrder":128},{"sectionNumber":"44AAEA","sectionType":"section","heading":"Arbitration","content":"44AAEA  Arbitration\n\n (1) Sections 44AAD and 44AAE do not apply to the AER as constituted for an arbitration under:\n\n (a) the National Electricity (Commonwealth) Law (as defined by the Australian Energy Market Act 2004); or\n\n (b) the National Gas (Commonwealth) Law (as defined by the Australian Energy Market Act 2004); or\n\n (c) a provision of an AER State/Territory energy law.\n\n (2) The reference in subsection (1) to an arbitration includes a reference to each of the following:\n\n (a) the making, variation or revocation of an access determination (within the meaning of the law concerned);\n\n (b) the performance of a function, or the exercise of a power, in connection with the making, variation or revocation of an access determination (within the meaning of the law concerned).","sortOrder":129},{"sectionNumber":"Subdivision CA","sectionType":"subdivision","heading":"Divisions of the AER","content":"Subdivision CA—Divisions of the AER","sortOrder":130},{"sectionNumber":"44AAEB","sectionType":"section","heading":"Divisions of the AER—functions and powers under a law of the Commonwealth","content":"44AAEB  Divisions of the AER—functions and powers under a law of the Commonwealth\n\nDirections\n\n (1) The AER Chair may, by writing, direct that all or any of the AER’s functions and powers:\n\n (a) under this Part or under regulations made under this Act; or\n\n (b) under another law of the Commonwealth;\n\nin relation to a matter are to be performed and exercised by a Division of the AER constituted by the AER Chair and at least 2 other AER members, as specified in the direction.\n\n (2) If a direction under subsection (1) is in force in relation to a matter, the Division of the AER specified in the direction may make recommendations to the AER in relation to the matter.\n\n (3) If a direction under subsection (1) is in force in relation to a matter, the AER Chair may, by writing, at any time before the Division of the AER specified in the direction has made a determination in relation to the matter:\n\n (a) revoke the direction; or\n\n (b) amend the direction in relation to the membership of the Division or in any other respect.\n\nIf the membership of a Division of the AER is changed, the Division as constituted after the change may complete the determination of the matter.\n\nThe AER is taken to consist of the Division\n\n (4) For the purposes of the determination of a matter specified in a direction given under subsection (1), the AER is taken to consist of the Division of the AER specified in the direction.\n\nMeetings\n\n (5) The AER Chair is not required to attend a meeting of a Division of the AER if the AER Chair does not think fit to do so.\n\n (6) The AER Deputy Chair is not required to attend a meeting of a Division of the AER if the AER Deputy Chair does not think fit to do so.\n\n (7) At a meeting of a Division of the AER at which neither the AER Chair nor the AER Deputy Chair is presiding, an AER member nominated for the purpose by the AER Chair is to preside.\n\n (8) Despite section 44AAD, at a meeting of a Division of the AER, 2 AER members form a quorum. The quorum need not include the AER Chair or AER Deputy Chair.\n\nFunctions and powers of the AER\n\n (9) A Division of the AER specified under subsection (1) may perform the functions and exercise the powers of the AER mentioned in that subsection despite the fact that another Division of the AER is performing those functions and exercising those powers at the same time.","sortOrder":131},{"sectionNumber":"44AAEC","sectionType":"section","heading":"Divisions of the AER—functions and powers under an AER State/Territory energy law or a local energy instrument","content":"44AAEC  Divisions of the AER—functions and powers under an AER State/Territory energy law or a local energy instrument\n\nDirections\n\n (1) The AER Chair may, by writing, direct that all or any of the AER’s functions and powers:\n\n (a) under an AER State/Territory energy law; or\n\n (b) under a local energy instrument;\n\nin relation to a matter are to be performed and exercised by a Division of the AER constituted by the AER Chair and at least 2 other AER members, as specified in the direction.\n\n (2) If a direction under subsection (1) is in force in relation to a matter, the Division of the AER specified in the direction may make recommendations to the AER in relation to the matter.\n\n (3) If a direction under subsection (1) is in force in relation to a matter, the AER Chair may, by writing, at any time before the Division of the AER specified in the direction has made a determination in relation to the matter:\n\n (a) revoke the direction; or\n\n (b) amend the direction in relation to the membership of the Division or in any other respect.\n\nIf the membership of a Division of the AER is changed, the Division as constituted after the change may complete the determination of the matter.\n\nThe AER is taken to consist of the Division\n\n (4) For the purposes of the determination of a matter specified in a direction given under subsection (1), the AER is taken to consist of the Division of the AER specified in the direction.\n\nMeetings\n\n (5) The AER Chair is not required to attend a meeting of a Division of the AER if the AER Chair does not think fit to do so.\n\n (6) The AER Deputy Chair is not required to attend a meeting of a Division of the AER if the AER Deputy Chair does not think fit to do so.\n\n (7) At a meeting of a Division of the AER at which neither the AER Chair nor the AER Deputy Chair is presiding, an AER member nominated for the purpose by the AER Chair is to preside.\n\n (8) Despite section 44AAD, at a meeting of a Division of the AER, 2 AER members form a quorum. The quorum need not include the AER Chair or AER Deputy Chair.\n\nFunctions and powers of the AER\n\n (9) A Division of the AER specified under subsection (1) may perform the functions and exercise the powers of the AER mentioned in that subsection despite the fact that another Division of the AER is performing those functions and exercising those powers at the same time.\n\nApplication\n\n (10) This section does not apply to an AER State/Territory energy law unless a provision of:\n\n (a) the AER State/Territory energy law; or\n\n (b) another law of the State or Territory concerned;\n\nprovides that this section extends to, and has effect for the purposes of, the AER State/Territory energy law.\n\n (11) This section does not apply to a local energy instrument unless a provision of:\n\n (a) the local energy instrument; or\n\n (b) the AER State/Territory energy law of the State or Territory concerned; or\n\n (c) another law of the State or Territory concerned;\n\nprovides that this section extends to, and has effect for the purposes of, the local energy instrument.","sortOrder":132},{"sectionNumber":"Subdivision D","sectionType":"subdivision","heading":"Miscellaneous","content":"Subdivision D—Miscellaneous","sortOrder":133},{"sectionNumber":"44AAF","sectionType":"section","heading":"Confidentiality","content":"44AAF  Confidentiality\n\n (1) The AER must take all reasonable measures to protect from unauthorised use or disclosure information:\n\n (a) given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers; or\n\n (b) that is obtained by compulsion in the exercise of its powers.\n\nNote: The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information.\n\nAuthorised use and disclosure\n\n (2) For the purposes of subsection (1), the disclosure of information to the extent required or permitted by a law of the Commonwealth, a State or Territory, is authorised use and disclosure of the information.\n\n (3) Disclosing information to one of the following is authorised use and disclosure of the information:\n\n (a) the Commission;\n\n (b) the AEMC;\n\n (c) Australian Energy Market Operator Limited (ACN 072 010 327);\n\n (ca) the Clean Energy Regulator;\n\n (cb) the Climate Change Authority;\n\n (d) any staff or consultant assisting a body mentioned in paragraph (a), (b), (c), (ca) or (cb) in performing its functions or exercising its powers;\n\n (e) any other person or body prescribed by the regulations for the purpose of this paragraph.\n\n (3A) If the AER is satisfied that particular information will enable or assist an entity covered by subsection (3B) to perform or exercise any of the entity’s functions or powers, disclosing the information to the entity is authorised use and disclosure of the information.\n\n (3B) The entities are as follows:\n\n (a) a Department;\n\n (b) a body (whether incorporated or not) established or appointed for a public purpose by or under a law of the Commonwealth;\n\n (c) a body established or appointed by the Governor‑General, or by a Minister, otherwise than by or under a law of the Commonwealth;\n\n (d) the holder of an office established for public purposes by or under a law of the Commonwealth.\n\n (4) A person or body to whom information is disclosed under subsection (3) or (3A) may use the information for any purpose connected with the performance of the functions, or the exercise of the powers, of the person or body.\n\n (5) The AER may impose conditions to be complied with in relation to information disclosed under subsection (3) or (3A).\n\n (6) For the purposes of subsection (1), the use or disclosure of information by a person for the purposes of:\n\n (a) performing the person’s functions, or exercising the person’s powers, as:\n\n (i) an AER member or a delegate of the AER; or\n\n (ii) a member of the staff of the AER; or\n\n (iii) a person assisting the AER referred to in section 44AACA; or\n\n (iv) a consultant engaged under section 44AACB; or\n\n (v) a person who is authorised to perform or exercise a function or power of, or on behalf of, the AER; or\n\n (b) the performance of functions, or the exercise of powers, by the person by way of assisting a delegate of the AER;\n\nis authorised use and disclosure of the information.\n\n (7) Regulations made for the purposes of this section may specify uses of information and disclosures of information that are authorised uses and authorised disclosures for the purposes of this section.\n\n (8) Nothing in any of the above subsections limits:\n\n (a) anything else in any of those subsections; or\n\n (b) what may otherwise constitute, for the purposes of subsection (1), authorised use or disclosure of information.\n\n (9) Despite subsections (3) to (7), if:\n\n (a) any of the following restricts or prohibits the use or disclosure of information:\n\n (i) section 18D of 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;\n\n (ii) that section applied as a law of another State or Territory; and\n\n (b) the use or disclosure of the information would, apart from this subsection, be authorised under this section;\n\nthe use or disclosure of the information is authorised for the purposes of this section only to the extent that the use or disclosure of the information is required or permitted in accordance with the relevant section mentioned in subparagraph (i) or (ii).","sortOrder":134},{"sectionNumber":"44AAFA","sectionType":"section","heading":"Power of AER to obtain information and documents","content":"44AAFA  Power of AER to obtain information and documents\n\nNotice requiring information etc.\n\n (1) This section applies if the AER has reason to believe that a person is capable of providing information, producing a document or giving evidence that the AER requires for the performance of the functions referred to in section 44AH (Commonwealth functions).\n\n (2) The AER may, by written notice given to the person, require the person to do one or more of the following:\n\n (a) give such information to the AER;\n\n (b) produce any such documents to the AER;\n\n (c) appear before:\n\n (i) the AER; or\n\n (ii) a specified member of the staff of the AER who is an SES employee or an acting SES employee; or\n\n (iii) a specified person assisting the AER, referred to in section 44AACA, who is an SES employee or an acting SES employee;\n\n  to give any such evidence (either orally or in writing) and produce any such documents.\n\n (3) The notice must specify:\n\n (a) if paragraph (2)(a) or (b) applies:\n\n (i) the period within which the person must comply with the notice; and\n\n (ii) the manner in which the person must comply with the notice; or\n\n (b) if paragraph (2)(c) applies:\n\n (i) the time at which the person must appear before the AER or person; and\n\n (ii) the place at which the person must appear before the AER or person.\n\nOath or affirmation\n\n (4) The AER may require the evidence given under paragraph (2)(c) to be given on oath or affirmation. For that purpose, an AER member or a person assisting the AER may administer the oath or affirmation.","sortOrder":135},{"sectionNumber":"44AAFB","sectionType":"section","heading":"Failure to comply with notice to give information etc. is an offence","content":"44AAFB  Failure to comply with notice to give information etc. is an offence\n\nOffence\n\n (1) A person commits an offence if:\n\n (a) the person is given a notice under section 44AAFA; and\n\n (b) the person fails to comply with the notice.\n\nPenalty: Imprisonment for 2 years or 100 penalty units, or both.\n\nExceptions\n\n (2) Subsection (1) does not apply to the extent that the person is not capable of complying with the notice.\n\nNote: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).\n\n (3) Subsection (1) does not apply to the extent that:\n\n (a) the notice relates to producing documents; and\n\n (b) the person proves that, after a reasonable search, the person is not aware of the documents; and\n\n (c) the person provides a written response to the notice, including a description of the scope and limitations of the search.\n\nNote: A defendant bears a legal burden in relation to the matter in paragraph (3)(b) (see section 13.4 of the Criminal Code).\n\n (4) For the purposes of (but without limiting) paragraph (3)(b), a determination of whether a search is reasonable may take into account the following:\n\n (a) the nature and complexity of the matter to which the notice relates;\n\n (b) the number of documents involved;\n\n (c) the ease and cost of retrieving a document relative to the resources of the person who was given the notice;\n\n (d) any other relevant matter.","sortOrder":136},{"sectionNumber":"44AAFC","sectionType":"section","heading":"AER may inspect, copy and retain documents","content":"44AAFC  AER may inspect, copy and retain documents\n\n (1) A member of the AER, or a person authorised by a member of the AER, may inspect a document produced under section 44AAFA and may make and retain copies of such a document.\n\n (2) The AER may take, and retain for as long as is necessary, possession of a document produced under section 44AAFA.\n\n (3) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by a member of the AER to be a true copy.\n\n (4) The certified copy must be received in all courts and tribunals as evidence as if it were the original.\n\n (5) Until a certified copy is supplied, the AER must, at such times and places as the AER thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of the document.","sortOrder":137},{"sectionNumber":"44AAG","sectionType":"section","heading":"Federal Court may make certain orders","content":"44AAG  Federal Court may make certain orders\n\n (1) The Federal Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person is in breach of:\n\n (a) a uniform energy law that is applied as a law of the Commonwealth; or\n\n (b) an AER State/Territory energy law.\n\n (2) If the order declares the person to be in breach of such a law, the order may include one or more of the following:\n\n (a) an order that the person pay a civil penalty determined in accordance with the law;\n\n (b) an order that the person cease, within a specified period, the act, activity or practice constituting the breach;\n\n (c) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;\n\n (d) an order that the person implement a specified program for compliance with the law;\n\n (e) an order of a kind prescribed by regulations made under this Act.\n\n (3) If a person has engaged, is engaging or is proposing to engage in any conduct in breach of:\n\n (a) a uniform energy law that is applied as a law of the Commonwealth; or\n\n (b) an AER State/Territory energy law;\n\nthe Federal Court may, on application by the AER on behalf of the Commonwealth, grant an injunction:\n\n (c) restraining the person from engaging in the conduct; and\n\n (d) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.\n\n (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:\n\n (a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or\n\n (b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.","sortOrder":138},{"sectionNumber":"44AAGA","sectionType":"section","heading":"Federal Court may order disconnection if an event specified in the National Electricity Rules occurs","content":"44AAGA  Federal Court may order disconnection if an event specified in the National Electricity Rules occurs\n\n (1) If a relevant disconnection event occurs, the Federal Court may make an order, on application by the AER on behalf of the Commonwealth, directing that a Registered participant’s loads be disconnected.\n\n (2) In this section:\n\nNational Electricity Law means:\n\n (a) the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; or\n\n (b) that Law as it applies as a law of another State; or\n\n (c) that Law as it applies as a law of a Territory; or\n\n (d) that Law as it applies as a law of the Commonwealth.\n\nNational Electricity Rules means:\n\n (a) the National Electricity Rules, as in force from time to time, made under the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia; or\n\n (b) those Rules as they apply as a law of another State; or\n\n (c) those Rules as they apply as a law of a Territory; or\n\n (d) those Rules as they apply as a law of the Commonwealth.\n\nRegistered participant has the same meaning as in the National Electricity Law.\n\nrelevant 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.","sortOrder":139},{"sectionNumber":"44AAH","sectionType":"section","heading":"Delegation by the AER","content":"44AAH  Delegation by the AER\n\n  The AER may, by resolution, delegate:\n\n (a) all or any of the AER’s functions and powers under this Part or under regulations made under this Act, or under another law of the Commonwealth; or\n\n (b) all or any of the AER’s functions and powers under an AER State/Territory energy law;\n\nto an AER member or to a member of the staff of the AER who is an SES employee or acting SES employee.\n\nNote 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee.\n\nNote 2: See also sections 34AA to 34A of the Acts Interpretation Act 1901, which contain extra rules about delegations.","sortOrder":140},{"sectionNumber":"44AAI","sectionType":"section","heading":"Fees","content":"44AAI  Fees\n\n (1) The AER may charge a fee specified in the regulations for services provided by it in performing any of its functions, or exercising any of its powers, under this Part or under regulations made under this Act, or under another law of the Commonwealth or an AER State/Territory energy law.\n\n (2) The fee must not be such as to amount to taxation.","sortOrder":141},{"sectionNumber":"44AAK","sectionType":"section","heading":"Regulations may deal with transitional matters","content":"44AAK  Regulations may deal with transitional matters\n\n (1) The Governor‑General may make regulations dealing with matters of a transitional nature relating to the transfer of functions and powers from a body to the AER.\n\n (2) Without limiting subsection (1), the regulations may deal with:\n\n (a) the transfer of any relevant investigations being conducted by the body at the time of the transfer of functions and powers to the AER; or\n\n (b) the transfer of any decisions or determinations being made by the body at the time of the transfer of functions and powers to the AER; or\n\n (c) the substitution of the AER as a party to any relevant proceedings that are pending in any court or tribunal at the time of the transfer of functions and powers to the AER; or\n\n (d) the transfer of any relevant information from the body to the AER.\n\n (3) In this section:\n\nmatters of a transitional nature also includes matters of an application or saving nature.\n\nChapter 2—Access to services","sortOrder":142},{"sectionNumber":"Part IIIA","sectionType":"part","heading":"Access to services","content":"Part IIIA—Access to services","sortOrder":143},{"sectionNumber":"44AA","sectionType":"section","heading":"Objects of Part","content":"44AA  Objects of Part\n\n  The objects of this Part are to:\n\n (a) promote the economically efficient operation of, use of and investment in the infrastructure by which services are provided, thereby promoting effective competition in upstream and downstream markets; and\n\n (b) provide a framework and guiding principles to encourage a consistent approach to access regulation in each industry.","sortOrder":145},{"sectionNumber":"44B","sectionType":"section","heading":"Definitions","content":"44B  Definitions\n\n  In this Part, unless the contrary intention appears:\n\naccess code means a code referred to in section 44ZZAA.\n\naccess code application means:\n\n (a) an access code given to the Commission; or\n\n (b) a request made to the Commission for the withdrawal or variation of an access code; or\n\n (c) an application under subsection 44ZZBB(4) for an extension of the period for which an access code is in operation.\n\naccess code decision means:\n\n (a) a decision under section 44ZZAA to accept or reject an access code; or\n\n (b) a decision under section 44ZZAA to consent or refuse to consent to the withdrawal or variation of an access code; or\n\n (c) a decision under section 44ZZBB to extend or refuse to extend the period for which an access code is in operation.\n\naccess undertaking means an undertaking under section 44ZZA.\n\naccess undertaking application means:\n\n (a) an access undertaking given to the Commission; or\n\n (b) a request made to the Commission for the withdrawal or variation of an access undertaking; or\n\n (ba) a request made to the Commission under subsection 44ZZAAB(7) to consent to the revocation or variation of a fixed principle included as a term of an access undertaking; or\n\n (c) an application under subsection 44ZZBB(1) for an extension of the period for which an access undertaking is in operation.\n\naccess undertaking decision means:\n\n (a) a decision under section 44ZZA to accept or reject an access undertaking; or\n\n (b) a decision under section 44ZZA to consent or refuse to consent to the withdrawal or variation of an access undertaking; or\n\n (ba) a decision under subsection 44ZZAAB(7) to consent or refuse to consent to the revocation or variation of a fixed principle included as a term of an access undertaking; or\n\n (c) a decision under section 44ZZBB to extend or refuse to extend the period for which an access undertaking is in operation.\n\nCommonwealth Minister means the Minister.\n\nconstitutional trade or commerce means any of the following:\n\n (a) trade or commerce among the States;\n\n (b) trade or commerce between Australia and places outside Australia;\n\n (c) trade or commerce between a State and a Territory, or between 2 Territories.\n\ndeclaration means a declaration made by the designated Minister under Division 2.\n\ndeclaration criteria, for a service, has the meaning given by section 44CA.\n\ndeclaration recommendation means a recommendation made by the Council under section 44F.\n\ndeclared service means a service for which a declaration is in operation.\n\ndesignated Minister has the meaning given by section 44D.\n\ndetermination means a determination made by the Commission under Division 3.\n\ndirector has the same meaning as in the Corporations Act 2001.\n\nentity means a person, partnership or joint venture.\n\nfinal determination means a determination other than an interim determination.\n\nfixed principle has the meaning given by section 44ZZAAB.\n\nineligibility recommendation means a recommendation made by the Council under section 44LB.\n\ninterim determination means a determination that is expressed to be an interim determination.\n\nmodifications includes additions, omissions and substitutions.\n\nNational Gas Law means:\n\n (a) the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time, as that Law applies as a law of South Australia; or\n\n (b) if an Act of another State or of the Australian Capital Territory or the Northern Territory applies the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia, as in force from time to time, as a law of that other State or of that Territory—the National Gas Law as so applied; or\n\n (c) the Western Australian Gas Legislation; or\n\n (d) the National Gas (Commonwealth) Law (within the meaning of the Australian Energy Market Act 2004); or\n\n (e) the Offshore Western Australian Pipelines (Commonwealth) Law (within the meaning of the Australian Energy Market Act 2004).\n\nofficer has the same meaning as in the Corporations Act 2001.\n\nparty means:\n\n (a) in relation to an arbitration of an access dispute—a party to the arbitration, as mentioned in section 44U;\n\n (b) in relation to a determination—a party to the arbitration in which the Commission made the determination.\n\nproposed facility means a facility that is proposed to be constructed (but the construction of which has not started) that will be:\n\n (a) structurally separate from any existing facility; or\n\n (b) a major extension of an existing facility.\n\nprovider, 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.\n\nresponsible Minister means:\n\n (a) the Premier, in the case of a State;\n\n (b) the Chief Minister, in the case of a Territory.\n\nrevocation recommendation means a recommendation made by the Council under section 44J.\n\nservice means a service provided by means of a facility and includes:\n\n (a) the use of an infrastructure facility such as a road or railway line;\n\n (b) handling or transporting things such as goods or people;\n\n (c) a communications service or similar service;\n\nbut does not include:\n\n (d) the supply of goods; or\n\n (e) the use of intellectual property; or\n\n (f) the use of a production process;\n\nexcept to the extent that it is an integral but subsidiary part of the service.\n\nState or Territory access regime law means:\n\n (a) a law of a State or Territory that establishes or regulates an access regime; or\n\n (b) a law of a State or Territory that regulates an industry that is subject to an access regime; or\n\n (c) a State/Territory energy law.\n\nState or Territory body means:\n\n (a) a State or Territory;\n\n (b) an authority of a State or Territory.\n\nthird 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.","sortOrder":146},{"sectionNumber":"44C","sectionType":"section","heading":"How this Part applies to partnerships and joint ventures","content":"44C  How this Part applies to partnerships and joint ventures\n\n (1) This section applies if the provider of a service is a partnership or joint venture that consists of 2 or more corporations. Those corporations are referred to in this section as the participants.\n\n (2) If this Part requires or permits something to be done by the provider, the thing may be done by one or more of the participants on behalf of the provider.\n\n (3) If a provision of this Part refers to the provider bearing any costs, the provision applies as if the provision referred to any of the participants bearing any costs.\n\n (4) If a provision of this Part refers to the provider doing something, the provision applies as if the provision referred to one or more of the participants doing that thing on behalf of the provider.\n\n (5) If:\n\n (a) a provision of this Part requires the provider to do something, or prohibits the provider from doing something; and\n\n (b) a contravention of the provision is an offence;\n\nthe provision applies as if a reference to the provider were a reference to any person responsible for the day‑to‑day management and control of the provider.\n\n (6) If:\n\n (a) a provision of this Part requires a provider to do something, or prohibits a provider doing something; and\n\n (b) a contravention of the provision is not an offence;\n\nthe provision applies as if the reference to provider were a reference to each participant and to any other person responsible for the day‑to‑day management and control of the provider.","sortOrder":147},{"sectionNumber":"44CA","sectionType":"section","heading":"Meaning of declaration criteria","content":"44CA  Meaning of declaration criteria\n\n (1) The declaration criteria for a service are:\n\n (a) that access (or increased access) to the service, on reasonable terms and conditions, as a result of a declaration of the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service; and\n\nNote: Market is defined in section 4E.\n\n (b) that the facility that is used (or will be used) to provide the service could meet the total foreseeable demand in the market:\n\n (i) over the period for which the service would be declared; and\n\n (ii) at the least cost compared to any 2 or more facilities (which could include the first‑mentioned facility); and\n\n (c) that the facility is of national significance, having regard to:\n\n (i) the size of the facility; or\n\n (ii) the importance of the facility to constitutional trade or commerce; or\n\n (iii) the importance of the facility to the national economy; and\n\n (d) that access (or increased access) to the service, on reasonable terms and conditions, as a result of a declaration of the service would promote the public interest.\n\n (2) For the purposes of paragraph (1)(b):\n\n (a) if the facility is currently at capacity, and it is reasonably possible to expand that capacity, have regard to the facility as if it had that expanded capacity; and\n\n (b) without limiting paragraph (1)(b), the cost referred to in that paragraph includes all costs associated with having multiple users of the facility (including such costs that would be incurred if the service is declared).\n\n (3) Without limiting the matters to which the Council may have regard for the purposes of section 44G, or the designated Minister may have regard for the purposes of section 44H, in considering whether paragraph (1)(d) of this section applies the Council or designated Minister must have regard to:\n\n (a) the effect that declaring the service would have on investment in:\n\n (i) infrastructure services; and\n\n (ii) markets that depend on access to the service; and\n\n (b) the administrative and compliance costs that would be incurred by the provider of the service if the service is declared.","sortOrder":148},{"sectionNumber":"44D","sectionType":"section","heading":"Meaning of designated Minister","content":"44D  Meaning of designated Minister\n\n (1) The Commonwealth Minister is the designated Minister unless subsection (2), (3), (4) or (5) applies.\n\n (2) In relation to declaring a service in a case where:\n\n (a) the provider is a State or Territory body that has some control over the conditions for accessing the facility that is used (or is to be used) to provide the service; and\n\n (b) the State or Territory concerned is a party to the National Competition Policy Agreement;\n\nthe responsible Minister of the State or Territory is the designated Minister.\n\n (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.\n\n (4) In relation to deciding whether a service is ineligible to be a declared service in a case where:\n\n (a) a person who is, or expects to be, the provider of the service is a State or Territory body that has some control over the conditions for accessing the facility that is used (or is to be used) to provide the service; and\n\n (b) the State or Territory concerned is a party to the National Competition Policy Agreement;\n\nthe responsible Minister of the State or Territory is the designated Minister.\n\n (5) In relation to revoking a decision:\n\n (a) that a service is ineligible to be a declared service; and\n\n (b) that was made by the responsible Minister of a State or Territory;\n\nthe responsible Minister of that State or Territory is the designated Minister.","sortOrder":149},{"sectionNumber":"44DAA","sectionType":"section","heading":"Meaning of National Competition Policy Agreement","content":"44DAA  Meaning of National Competition Policy Agreement\n\n (1) The National Competition Policy Agreement is:\n\n (a) until the Minister specifies an agreement under subsection (2)—the Intergovernmental Agreement on National Competition Policy agreed on 29 November 2024 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; or\n\n (b) otherwise—the agreement specified by the Minister under subsection (2) as in force from time to time.\n\nNote: The Intergovernmental Agreement on National Competition Policy could in 2026 be viewed on the website for Australia’s Federal Relations Architecture (https://federation.gov.au).\n\n (2) The Minister may, by legislative instrument, specify that an agreement to which the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory are all parties at the time the instrument is made, is the National Competition Policy Agreement for the purposes of paragraph (1)(b).\n\n (3) If the Minister specifies an agreement in an instrument made under subsection (2), then the Minister must also specify in that instrument a component of the agreement that is to be the public interest test in relation to the agreement.\n\nNote: The Productivity Commission’s consideration of a complaint under Division 2 of Part 4 of the Productivity Commission Act 1998 must include giving particular consideration to the public interest test in relation to the National Competition Policy Agreement.","sortOrder":150},{"sectionNumber":"44DA","sectionType":"section","heading":"The principles in the National Competition Policy Agreement have status as guidelines","content":"44DA  The principles in the National Competition Policy Agreement have status as guidelines\n\n (1) For the avoidance of doubt:\n\n (c) the requirement, under subsection 44M(4), that the Council apply the relevant principles set out in the National Competition Policy Agreement in deciding whether to recommend to the Commonwealth Minister that he or she should decide that an access regime is, or is not, an effective access regime; and\n\n (d) the requirement, under subsection 44N(2), that the Commonwealth Minister, in making a decision on a recommendation received from the Council, apply the relevant principles set out in the Agreement;\n\nare 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.\n\n (2) An effective access regime may contain additional matters that are not inconsistent with National Competition Policy Agreement principles.","sortOrder":151},{"sectionNumber":"44E","sectionType":"section","heading":"This Part binds the Crown","content":"44E  This Part binds the Crown\n\n (1) This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n (2) Nothing in this Part makes the Crown liable to be prosecuted for an offence.\n\n (3) The protection in subsection (2) does not apply to an authority of the Commonwealth or an authority of a State or Territory.","sortOrder":152},{"sectionNumber":"44F","sectionType":"section","heading":"Person may request recommendation","content":"44F  Person may request recommendation\n\n (1) The designated Minister, or any other person, may apply in writing to the Council asking the Council to recommend that a particular service be declared unless:\n\n (a) the service is the subject of a regime for which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB); or\n\n (b) the service is the subject of an access undertaking in operation under Division 6; or\n\n (c) if a decision 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 service was specified, in the application for that decision, as a service proposed to be provided by means of the facility; or\n\n (d) if the service is provided by means of a pipeline (within the meaning of a National Gas Law)—there is:\n\n (i) a 15‑year no‑coverage determination in force under the National Gas Law in respect of the pipeline; or\n\n (ii) a price regulation exemption in force under the National Gas Law in respect of the pipeline; or\n\n (e) there is a decision of the designated Minister in force under section 44LG that the service is ineligible to be a declared service.\n\nNote: This means an application can only be made or dealt with under this Subdivision if none of paragraphs (a) to (e) apply.\n\n (1A) If the Council decides that one or more of paragraphs (1)(a) to (e) apply for a service mentioned in a person’s purported application under that subsection, the Council must give the person written notice explaining:\n\n (a) why those paragraphs apply; and\n\n (b) that such an application cannot be made for the service.\n\n (2) After receiving an application under subsection (1), the Council:\n\n (a) must tell the provider of the service that the Council has received the application, unless the provider is the applicant; and\n\n (b) must, after having regard to the objects of this Part, recommend to the designated Minister:\n\n (i) that the service be declared, with the expiry date specified in the recommendation; or\n\n (ii) that the service not be declared.\n\nNote 1: There are time limits that apply to the Council’s recommendation: see section 44GA.\n\nNote 2: The Council may request information and invite public submissions on the application: see sections 44FA and 44GB.\n\nNote 3: The Council must publish its recommendation: see section 44GC.\n\n (3) If the applicant is a person other than the designated Minister, the Council may recommend that the service not be declared if the Council thinks that the application was not made in good faith. This subsection does not limit the grounds on which the Council may decide to recommend that the service not be declared.\n\n (5) The applicant may withdraw the application at any time before the Council makes a recommendation relating to it.\n\n (6) The applicant may request, in writing, the Council to vary the application at any time before the Council makes a recommendation relating to it.\n\n (7) If a request is made under subsection (6), the Council must decide to:\n\n (a) make the variation; or\n\n (b) reject the variation.\n\n (9) The Council may reject the variation if it is satisfied that the requested variation is of a kind, or the request for the variation is made at a time or in a manner, that:\n\n (a) would unduly prejudice the provider (if the provider is not the applicant) or anyone else the Council considers has a material interest in the application; or\n\n (b) would unduly delay the process for considering the application.","sortOrder":155},{"sectionNumber":"44FA","sectionType":"section","heading":"Council may request information","content":"44FA  Council may request information\n\n (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44F.\n\n (2) The Council must:\n\n (a) give a copy of the notice to:\n\n (i) if the person is not the applicant—the applicant; and\n\n (ii) if the person is not the provider of the service—the provider; and\n\n (b) publish, by electronic or other means, the notice.\n\n (3) In deciding what recommendation to make on the application, the Council:\n\n (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and\n\n (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended.\n\n (4) Subsections 44GB(4) to (6) apply to information given in response to a notice under this section (whether given in compliance with the notice or not) in a corresponding way to the way those subsections apply to a submission made in response to a notice under subsection 44GB(1).\n\nNote: This allows the Council to make the information publicly available, subject to any confidentiality concerns.","sortOrder":156},{"sectionNumber":"44G","sectionType":"section","heading":"Criteria for the Council recommending declaration of a service","content":"44G  Criteria for the Council recommending declaration of a service\n\n  The Council cannot recommend that a service be declared unless it is satisfied of all of the declaration criteria for the service.","sortOrder":157},{"sectionNumber":"44GA","sectionType":"section","heading":"Time limit for Council recommendations","content":"44GA  Time limit for Council recommendations\n\nCouncil to make recommendation within the consideration period\n\n (1) The Council must make a recommendation on an application under section 44F within the consideration period.\n\n (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, unless the consideration period is extended under subsection (7).\n\nStopping the clock\n\n (3) In working out the expected period in relation to a recommendation on an application under section 44F, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:\n\n (a) starting on the day referred to in column 2 of the item; and\n\n (b) ending on the day referred to in column 3 of the item.\n\n\n\n- Stopping the clock\n- Item Column 1Situation Column 2Start day Column 3End day\n- 1 An agreement is made in relation to the application under subsection (5) The first day of the period specified in the agreement The last day of the period specified in the agreement\n- 2 A notice is given under subsection 44FA(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information\n\n\n (4) Despite subsection (3):\n\n (a) do not disregard any day more than once; and\n\n (b) the total period that is disregarded under that subsection must not exceed 60 days.\n\nStopping the clock by agreement\n\n (5) The Council, the applicant and the provider of the service (if the provider is not the applicant) may agree in writing that a specified period is to be disregarded in working out the expected period.\n\n (6) The Council must publish, by electronic or other means, the agreement.\n\nCouncil may extend time for making recommendation\n\n (7) If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.\n\n (8) The notice must:\n\n (a) specify when the Council must now make a recommendation on the application; and\n\n (b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.\n\n (9) The Council must give a copy of the notice to:\n\n (a) the applicant; and\n\n (b) if the applicant is not the provider of the service—the provider.\n\nPublication\n\n (10) If the Council extends the consideration period under subsection (7), it must publish a notice in a manner that results in the notice being accessible to the public and reasonably prominent:\n\n (a) stating that it has done so; and\n\n (b) specifying the day by which it must now make a recommendation on the application.\n\nFailure to comply with time limit does not affect validity\n\n (11) Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section.","sortOrder":158},{"sectionNumber":"44GB","sectionType":"section","heading":"Council may invite public submissions on the application","content":"44GB  Council may invite public submissions on the application\n\nInvitation\n\n (1) The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44F if it considers that it is appropriate and practicable to do so.\n\n (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).\n\nConsideration of submissions\n\n (3) Subject to subsection (6), in deciding what recommendation to make on the application, the Council:\n\n (a) must have regard to any submission made on or before the day specified in the notice; and\n\n (b) may disregard any submission made after the day specified in the notice.\n\nCouncil may make submissions publicly available\n\n (4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.\n\nConfidentiality\n\n (5) A person may, at the time of making a submission, request that the Council:\n\n (a) not make the whole or a part of the submission available under subsection (4); and\n\n (b) not publish or make available the whole or a part of the submission under section 44GC;\n\nbecause of the confidential commercial information contained in the submission.\n\n (6) If the Council refuses such a request:\n\n (a) for a written submission—the Council must, if the person who made it so requires, return the whole or the part of it to the person; and\n\n (b) for an oral submission—the person who made it may inform the Council that the person withdraws the whole or the part of it; and\n\n (c) if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not:\n\n (i) make the whole or the part of the submission available under subsection (4); and\n\n (ii) publish or make available the whole or the part of the submission under section 44GC; and\n\n (iii) have regard to the whole or the part of the submission in making its recommendation on the application.","sortOrder":159},{"sectionNumber":"44GC","sectionType":"section","heading":"Council must publish its recommendation","content":"44GC  Council must publish its recommendation\n\n (1) The Council must publish, by electronic or other means, a recommendation under section 44F and its reasons for the recommendation.\n\n (2) The Council must give a copy of the publication to:\n\n (a) the applicant under section 44F; and\n\n (b) if the applicant is not the provider of the service—the provider.\n\nTiming\n\n (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.\n\nConsultation\n\n (4) Before publishing under subsection (1), the Council may give any one or more of the following persons:\n\n (a) the applicant under section 44F;\n\n (b) if the applicant is not the provider of the service—the provider;\n\n (c) any other person the Council considers appropriate;\n\na notice in writing:\n\n (d) specifying what the Council is proposing to publish; and\n\n (e) inviting the person to make a written submission to the Council within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.\n\n (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.","sortOrder":160},{"sectionNumber":"44H","sectionType":"section","heading":"Designated Minister may declare a service","content":"44H  Designated Minister may declare a service\n\n (1) On receiving a declaration recommendation, the designated Minister must either declare the service or decide not to declare it.\n\nNote: The designated Minister must publish his or her decision: see section 44HA.\n\n (1A) The designated Minister must have regard to the objects of this Part in making his or her decision.\n\n (4) The designated Minister cannot declare a service unless he or she is satisfied of all of the declaration criteria for the service.\n\n (8) If the designated Minister declares the service, the declaration must specify the expiry date of the declaration.\n\n (9) If the designated Minister does not publish under section 44HA his or her decision on the declaration recommendation within 60 days after receiving the declaration recommendation, the designated Minister is taken, at the end of that 60‑day period:\n\n (a) to have made a decision under this section in accordance with the declaration recommendation; and\n\n (b) to have published that decision under section 44HA.","sortOrder":162},{"sectionNumber":"44HA","sectionType":"section","heading":"Designated Minister must publish his or her decision","content":"44HA  Designated Minister must publish his or her decision\n\n (1) The designated Minister must publish, by electronic or other means, his or her decision on a declaration recommendation and his or her reasons for the decision.\n\n (2) The designated Minister must give a copy of the publication to:\n\n (a) the applicant under section 44F; and\n\n (b) if the applicant is not the provider of the service—the provider.\n\nConsultation\n\n (3) Before publishing under subsection (1), the designated Minister may give any one or more of the following persons:\n\n (a) the applicant under section 44F;\n\n (b) if the applicant is not the provider of the service—the provider;\n\n (c) any other person the designated Minister considers appropriate;\n\na notice in writing:\n\n (d) specifying what the designated Minister is proposing to publish; and\n\n (e) inviting the person to make a written submission to the designated Minister within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.\n\n (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.","sortOrder":163},{"sectionNumber":"44I","sectionType":"section","heading":"Duration and effect of declaration","content":"44I  Duration and effect of declaration\n\n (1) Subject to this section, a declaration begins to operate at a time specified in the declaration. The time cannot be earlier than 21 days after the declaration is published.\n\n (2) If:\n\n (a) an application for review of a declaration is made within 21 days after the day the declaration is published; and\n\n (b) the Tribunal makes an order under section 44KA staying the operation of the declaration;\n\nthe declaration does not begin to operate until the order is no longer of effect under subsection 44KA(6) or the Tribunal makes a decision on the review to affirm the declaration, whichever is the earlier.\n\n (3) A declaration continues in operation until its expiry date, unless it is earlier revoked.\n\n (4) The expiry or revocation of a declaration does not affect:\n\n (a) the arbitration of an access dispute that was notified before the expiry or revocation; or\n\n (b) the operation or enforcement of any determination made in the arbitration of an access dispute that was notified before the expiry or revocation.","sortOrder":164},{"sectionNumber":"44J","sectionType":"section","heading":"Revocation of declaration","content":"44J  Revocation of declaration\n\n (1) The Council may recommend to the designated Minister that a declaration be revoked. The Council must have regard to the objects of this Part in making its decision.\n\n (2) The Council cannot recommend revocation of a declaration unless it is satisfied that, at the time of the recommendation:\n\n (a) subsection 44F(1) would prevent the making of an application for a recommendation that the service concerned be declared; or\n\n (b) subsection 44H(4) would prevent the service concerned from being declared.\n\n (3) On receiving a revocation recommendation, the designated Minister must either revoke the declaration or decide not to revoke the declaration.\n\n (3A) The designated Minister must have regard to the objects of this Part in making his or her decision.\n\n (4) The designated Minister must publish the decision to revoke or not to revoke.\n\n (5) If the designated Minister decides not to revoke, the designated Minister must give reasons for the decision to the provider of the declared service when the designated Minister publishes the decision.\n\n (6) The designated Minister cannot revoke a declaration without receiving a revocation recommendation.\n\n (7) If the designated Minister does not publish under subsection (4) his or her decision on the revocation recommendation within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day, the designated Minister is taken, immediately after the end of that 60‑day period:\n\n (a) to have made a decision that the declaration be revoked; and\n\n (b) to have published that decision in accordance with this section.","sortOrder":165},{"sectionNumber":"44K","sectionType":"section","heading":"Review of declaration","content":"44K  Review of declaration\n\n (1) If the designated Minister declares a service, the provider may apply in writing to the Tribunal for review of the declaration.\n\n (2) If the designated Minister decides not to declare a service, an application in writing for review of the designated Minister’s decision may be made by the person who applied for the declaration recommendation.\n\n (3) An application for review must be made within 21 days after publication of the designated Minister’s decision.\n\n (4) The review by the Tribunal is a re‑consideration of the matter based on the information, reports and things referred to in section 44ZZOAA.\n\nNote: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).\n\n (5) For the purposes of the review, the Tribunal has the same powers as the designated Minister.\n\n (6) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review (including for the purposes of deciding whether to make an order under section 44KA).\n\n (6A) Without limiting subsection (6), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.\n\n (6B) The Tribunal must:\n\n (a) give a copy of the notice to:\n\n (i) the person who applied for review; and\n\n (ii) the provider of the service; and\n\n (iii) the person who applied for the declaration recommendation; and\n\n (iv) any other person who has been made a party to the proceedings for review by the Tribunal; and\n\n (b) publish, by electronic or other means, the notice.\n\n (7) If the designated Minister declared the service, the Tribunal may affirm, vary or set aside the declaration.\n\n (8) If the designated Minister decided not to declare the service, the Tribunal may either:\n\n (a) affirm the designated Minister’s decision; or\n\n (b) set aside the designated Minister’s decision and declare the service in question.\n\n (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).","sortOrder":166},{"sectionNumber":"44KA","sectionType":"section","heading":"Tribunal may stay operation of declaration","content":"44KA  Tribunal may stay operation of declaration\n\n (1) Subject to this section, an application for review of a declaration under subsection 44K(1) does not:\n\n (a) affect the operation of the declaration; or\n\n (b) prevent the taking of steps in reliance on the declaration.\n\n (2) On application by a person who has been made a party to the proceedings for review of a declaration, the Tribunal may:\n\n (a) make an order staying, or otherwise affecting the operation or the taking of steps in reliance on, the declaration if the Tribunal considers that:\n\n (i) it is desirable to make the order after taking into account the interests of any person who may be affected by the review; and\n\n (ii) the order is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review; or\n\n (b) make an order varying or revoking an order made under paragraph (a) (including an order that has previously been varied on one or more occasions under this paragraph).\n\n (3) Subject to subsection (4), the Tribunal must not:\n\n (a) make an order under subsection (2) unless the Council has been given a reasonable opportunity to make a submission to the Tribunal in relation to the matter; or\n\n (b) make an order varying or revoking an order in force under paragraph (2)(a) (including an order that has previously been varied on one or more occasions under paragraph (2)(b)) unless:\n\n (i) the Council; and\n\n (ii) the person who requested the making of the order under paragraph (2)(a); and\n\n (iii) if the order under paragraph (2)(a) has previously been varied by an order or orders under paragraph (2)(b)—the person or persons who requested the making of the last‑mentioned order or orders;\n\n  have been given a reasonable opportunity to make submissions to the Tribunal in relation to the matter.\n\n (4) Subsection (3) does not prohibit the Tribunal from making an order without giving to a person referred to in that subsection a reasonable opportunity to make a submission to the Tribunal in relation to a matter if the Tribunal is satisfied that, by reason of the urgency of the case or otherwise, it is not practicable to give that person such an opportunity.\n\n (5) If an order is made under subsection (3) without giving the Council a reasonable opportunity to make a submission to the Tribunal in relation to a matter, the order does not come into operation until a notice setting out the terms of the order is given to the Council.\n\n (6) An order in force under paragraph (2)(a) (including an order that has previously been varied on one or more occasions under paragraph (2)(b)):\n\n (a) is subject to such conditions as are specified in the order; and\n\n (b) has effect until:\n\n (i) if a period for the operation of the order is specified in the order—the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or\n\n (ii) if no period is so specified—the decision of the Tribunal on the application for review comes into operation.","sortOrder":167},{"sectionNumber":"44KB","sectionType":"section","heading":"Tribunal may order costs be awarded","content":"44KB  Tribunal may order costs be awarded\n\n (1) If the Tribunal is satisfied that it is appropriate to do so, the Tribunal may order that a person who has been made a party to proceedings for a review of a declaration under section 44K pay all or a specified part of the costs of another person who has been made a party to the proceedings.\n\n (2) However, the Tribunal must not make an order requiring the designated Minister to pay some or all of the costs of another party to proceedings unless the Tribunal considers that the designated Minister’s conduct in the proceedings was engaged in without due regard to:\n\n (a) the costs that would be incurred by the other party to the proceedings as a result of that conduct; or\n\n (b) the time required by the Tribunal to make a decision on the review as a result of that conduct; or\n\n (c) the time required by the other party to prepare their case for the purposes of the review as a result of that conduct; or\n\n (d) the submissions or arguments made during the proceedings to the Tribunal by the other party or parties to the proceedings or by the Council.\n\n (3) If the Tribunal makes an order under subsection (1), it may make further orders that it considers appropriate in relation to the assessment or taxation of the costs.\n\n (4) The regulations may make provision for and in relation to fees payable for the assessment or taxation of costs ordered by the Tribunal to be paid.\n\n (5) If a party (the first party) is ordered to pay some or all of the costs of another party under subsection (1), the amount of the costs may be recovered in the Federal Court as a debt due by the first party to the other party.","sortOrder":168},{"sectionNumber":"44L","sectionType":"section","heading":"Review of decision not to revoke a declaration","content":"44L  Review of decision not to revoke a declaration\n\n (1) If the designated Minister decides not to revoke a declaration, the provider may apply in writing to the Tribunal for review of the decision.\n\n (2) An application for review must be made within 21 days after publication of the designated Minister’s decision.\n\n (3) The review by the Tribunal is a re‑consideration of the matter based on the information, reports and things referred to in section 44ZZOAA.\n\nNote: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).\n\n (4) For the purposes of the review, the Tribunal has the same powers as the designated Minister.\n\n (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.\n\n (5A) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.\n\n (5B) The Tribunal must:\n\n (a) give a copy of the notice to:\n\n (i) the person who applied for review; and\n\n (ii) any other person who has been made a party to the proceedings for review by the Tribunal; and\n\n (b) publish, by electronic or other means, the notice.\n\n (6) The Tribunal may either:\n\n (a) affirm the designated Minister’s decision; or\n\n (b) set aside the designated Minister’s decision and revoke the declaration.","sortOrder":169},{"sectionNumber":"Division 2AA","sectionType":"division","heading":"—Services that are ineligible to be declared","content":"Division 2AA—Services that are ineligible to be declared","sortOrder":170},{"sectionNumber":"44LA","sectionType":"section","heading":"Constitutional limits on operation of this Division","content":"44LA  Constitutional limits on operation of this Division\n\n  This Division does not apply in relation to a service unless:\n\n (a) the person who is, or expects to be, the provider of the service is a corporation (or a partnership or joint venture consisting wholly of corporations); or\n\n (b) access to the service is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.","sortOrder":172},{"sectionNumber":"44LB","sectionType":"section","heading":"Ineligibility recommendation","content":"44LB  Ineligibility recommendation\n\nPerson may request recommendation\n\n (1) A person with a material interest in a particular service proposed to be provided by means of a proposed facility may make a written application to the Council asking the Council to recommend that the designated Minister decide that the service is ineligible to be a declared service.\n\nNote: The application must be made before construction of the facility commences: see the definition of proposed facility in section 44B.\n\nCouncil must make recommendation\n\n (2) After receiving the application, the Council must, after having regard to the objects of this Part:\n\n (a) recommend to the designated Minister:\n\n (i) that he or she decide that the service is ineligible to be a declared service; and\n\n (ii) the period for which the decision should be in force (which must be at least 20 years); or\n\n (b) recommend to the designated Minister that he or she decide that the service is not ineligible to be a declared service.\n\nNote 1: There are time limits that apply to the Council’s recommendation: see section 44LD.\n\nNote 2: The Council may request information and invite public submissions on the application: see sections 44LC and 44LE.\n\nNote 3: The Council must publish its recommendation: see section 44LF.\n\nLimits on recommendation\n\n (3) The Council cannot recommend that the designated Minister decide that the service is ineligible to be a declared service unless it is satisfied of both of the following matters:\n\n (a) that the service will be provided by means of the proposed facility when constructed;\n\n (b) that it is not satisfied of at least one of the declaration criteria for the service to be provided by means of the proposed facility.\n\n (4) If the applicant is a person other than the designated Minister, the Council may recommend that the designated Minister decide that the service is not ineligible to be a declared service if the Council thinks that the application was not made in good faith. This subsection does not limit the grounds on which the Council may decide to recommend that the designated Minister decide that the service is not ineligible to be a declared service.\n\nRelationship between ineligibility recommendations, access undertakings and competitive tender processes\n\n (5) The Council may recommend that the designated Minister decide that the service is ineligible to be a declared service even if the service is the subject of an access undertaking in operation under Division 6.\n\n (6) The Council may recommend that the designated Minister decide that the service is ineligible to be a declared service even if:\n\n (a) the service is proposed to be provided by means of a facility specified under paragraph 44PA(2)(a); and\n\n (b) a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of the facility, as a competitive tender process.\n\nApplicant may withdraw application\n\n (7) The applicant may withdraw the application at any time before the Council makes a recommendation relating to it.","sortOrder":174},{"sectionNumber":"44LC","sectionType":"section","heading":"Council may request information","content":"44LC  Council may request information\n\n (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of a kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44LB.\n\n (2) The Council must:\n\n (a) give a copy of the notice to:\n\n (i) if the person is not the applicant—the applicant; and\n\n (ii) if the person is not the provider, or the person who expects to be the provider—that person; and\n\n (b) publish, by electronic or other means, the notice.\n\n (3) In deciding what recommendation to make on the application, the Council:\n\n (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and\n\n (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended.","sortOrder":175},{"sectionNumber":"44LD","sectionType":"section","heading":"Time limit for Council recommendations","content":"44LD  Time limit for Council recommendations\n\nCouncil to make recommendation within the consideration period\n\n (1) The Council must make a recommendation on an application under section 44LB within the consideration period.\n\n (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, unless the consideration period is extended under subsection (7).\n\nStopping the clock\n\n (3) In working out the expected period in relation to a recommendation on an application under section 44LB, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:\n\n (a) starting on the day referred to in column 2 of the item; and\n\n (b) ending on the day referred to in column 3 of the item.\n\n\n\n- Stopping the clock\n- Item Column 1Situation Column 2Start day Column 3End day\n- 1 An agreement is made in relation to the application under subsection (5) The first day of the period specified in the agreement The last day of the period specified in the agreement\n- 2 A notice is given under subsection 44LC(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information\n\n\n (4) Despite subsection (3):\n\n (a) do not disregard any day more than once; and\n\n (b) the total period that is disregarded under that subsection must not exceed 60 days.\n\nStopping the clock by agreement\n\n (5) The Council and the applicant may agree in writing that a specified period is to be disregarded in working out the expected period.\n\n (6) The Council must publish, by electronic or other means, the agreement.\n\nExtension of time for making decision\n\n (7) If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or it has been previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.\n\n (8) The notice must:\n\n (a) specify when the Council must now make a recommendation on the application; and\n\n (b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.\n\n (9) The Council must give a copy of the notice to:\n\n (a) the applicant; and\n\n (b) if the applicant is not the person who is, or expects to be, the provider—that person.\n\nPublication\n\n (10) If the Council extends the consideration period under subsection (7), it must publish a notice in a manner that results in the notice being accessible to the public and reasonably prominent:\n\n (a) stating that it has done so; and\n\n (b) specifying the day by which it must now make a recommendation on the application.\n\nFailure to comply with time limit does not affect validity\n\n (11) Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section.","sortOrder":176},{"sectionNumber":"44LE","sectionType":"section","heading":"Council may invite public submissions on the application","content":"44LE  Council may invite public submissions on the application\n\nInvitation\n\n (1) The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44LB if it considers that it is appropriate and practicable to do so.\n\n (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).\n\nConsideration of submissions\n\n (3) Subject to subsection (6), in deciding what recommendation to make on the application, the Council:\n\n (a) must have regard to any submission made on or before the day specified in the notice; and\n\n (b) may disregard any submission made after the day specified in the notice.\n\nCouncil may make submissions publicly available\n\n (4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.\n\nConfidentiality\n\n (5) A person may, at the time of making a submission, request that the Council:\n\n (a) not make the whole or a part of the submission available under subsection (4); and\n\n (b) not publish or make available the whole or a part of the submission under section 44LF;\n\nbecause of the confidential commercial information contained in the submission.\n\n (6) If the Council refuses such a request:\n\n (a) for a written submission—the Council must, if the person who made it so requires, return the whole or the part of it to the person; and\n\n (b) for an oral submission—the person who made it may inform the Council that the person withdraws the whole or the part of it; and\n\n (c) if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not:\n\n (i) make the whole or the part of the submission available under subsection (4); and\n\n (ii) publish or make available the whole or the part of the submission under section 44LF; and\n\n (iii) have regard to the whole or the part of the submission in making its recommendation on the application.","sortOrder":177},{"sectionNumber":"44LF","sectionType":"section","heading":"Council must publish its recommendation","content":"44LF  Council must publish its recommendation\n\nCouncil must publish its recommendation\n\n (1) The Council must publish, by electronic or other means, a recommendation under section 44LB and its reasons for the recommendation.\n\n (2) The Council must give a copy of the publication to:\n\n (a) the person who made the application under section 44LB; and\n\n (b) if the applicant is not the person who is, or expects to be, the provider—that person.\n\nTiming\n\n (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.\n\nConsultation\n\n (4) Before publishing under subsection (1), the Council may give any one or more of the following persons:\n\n (a) the person who made the application under section 44LB;\n\n (b) any other person the Council considers appropriate;\n\na notice in writing:\n\n (c) specifying what the Council is proposing to publish; and\n\n (d) inviting the person to make a written submission to the Council within 14 days after the day the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.\n\n (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.","sortOrder":178},{"sectionNumber":"44LG","sectionType":"section","heading":"Designated Minister’s decision on ineligibility","content":"44LG  Designated Minister’s decision on ineligibility\n\n (1) On receiving an ineligibility recommendation, the designated Minister must:\n\n (a) decide:\n\n (i) that the service is ineligible to be a declared service; and\n\n (ii) the period for which the decision is in force (which must be at least 20 years); or\n\n (b) decide that the service is not ineligible to be a declared service.\n\nNote: The designated Minister must publish his or her decision: see section 44LH.\n\n (2) The designated Minister must have regard to the objects of this Part in making his or her decision.\n\n (3) The designated Minister may decide that the service is ineligible to be a declared service even if the service is the subject of an access undertaking in operation under Division 6.\n\n (4) The designated Minister may decide that the service is ineligible to be a declared service even if:\n\n (a) the service is proposed to be provided by means of a facility specified under paragraph 44PA(2)(a); and\n\n (b) a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of the facility, as a competitive tender process.\n\n (5) The designated Minister must not decide that the service is ineligible to be a declared service unless he or she is satisfied of both of the following matters:\n\n (a) that the service is to be provided by means of the proposed facility when constructed;\n\n (b) that he or she is not satisfied of at least one of the declaration criteria for the service to be provided by means of the proposed facility.\n\n (6) If the designated Minister does not publish under section 44LH his or her decision on the ineligibility recommendation within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day:\n\n (a) the designated Minister is taken, immediately after the end of that 60‑day period, to have made a decision under subsection (1) in accordance with the ineligibility recommendation and to have published that decision under section 44LH; and\n\n (b) if the Council recommended that the designated Minister decide that the service be ineligible to be a declared service—the period for which the decision is in force is taken to be the period recommended by the Council.","sortOrder":180},{"sectionNumber":"44LH","sectionType":"section","heading":"Designated Minister must publish his or her decision","content":"44LH  Designated Minister must publish his or her decision\n\n (1) The designated Minister must publish, by electronic or other means, his or her decision on an ineligibility recommendation and his or her reasons for the decision.\n\n (2) The designated Minister must give a copy of the publication to the person who made the application under section 44LB.\n\nConsultation\n\n (3) Before publishing under subsection (1), the designated Minister may give any one or more of the following persons:\n\n (a) the person who made the application under section 44LB;\n\n (b) any other person the designated Minister considers appropriate;\n\na notice in writing:\n\n (c) specifying what the designated Minister is proposing to publish; and\n\n (d) inviting the person to make a written submission to the designated Minister within 14 days after the day the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.\n\n (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.","sortOrder":181},{"sectionNumber":"44LI","sectionType":"section","heading":"Revocation of ineligibility decision","content":"44LI  Revocation of ineligibility decision\n\nCouncil may recommend revocation if facility materially different or upon request\n\n (1) The Council may recommend to the designated Minister that the designated Minister revoke his or her decision (the ineligibility decision) that a service is ineligible to be a declared service. The Council must have regard to the objects of this Part in making its recommendation.\n\n (2) The Council cannot recommend that a decision be revoked unless:\n\n (a) it is satisfied that, at the time of the recommendation, the facility that is (or will be) used to provide the service concerned is so materially different from the proposed facility described in the application made under section 44LB that the Council is satisfied of all of the declaration criteria for the service; or\n\n (b) the person who is, or expects to be, the provider of the service that is provided, or that is proposed to be provided, by means of the facility requests that it be revoked.\n\nMinister must decide whether to revoke\n\n (3) On receiving a recommendation that the designated Minister revoke the ineligibility decision, the designated Minister must either revoke the ineligibility decision or decide not to revoke the ineligibility decision.\n\n (4) The designated Minister must have regard to the objects of this Part in making his or her decision.\n\nMinister must publish decision\n\n (5) The designated Minister must publish, by electronic or other means, the decision to revoke or not to revoke the ineligibility decision.\n\n (6) If the designated Minister decides not to revoke the ineligibility decision, the designated Minister must give reasons for the decision to the person who is, or expects to be, the provider of the service concerned when the designated Minister publishes the decision.\n\nDeemed decision of Minister\n\n (7) If the designated Minister does not publish his or her decision to revoke or not to revoke the ineligibility decision within the period starting at the start of the day the recommendation to revoke the ineligibility decision is received and ending at the end of 60 days after that day, the designated Minister is taken, immediately after the end of that 60‑day period:\n\n (a) to have made a decision (the deemed decision) under subsection (3) that the ineligibility decision be revoked; and\n\n (b) to have published the deemed decision under subsection (5).\n\nLimits on when a revocation can be made\n\n (8) The designated Minister cannot revoke the ineligibility decision without receiving a recommendation from the Council that the ineligibility decision be revoked.\n\nWhen a revocation comes into operation\n\n (9) If the designated Minister revokes the ineligibility decision, the revocation comes into operation at:\n\n (a) if, within 21 days after the designated Minister publishes his or her decision, no person has applied to the Tribunal for review of the decision—the end of that period; or\n\n (b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision—the time of the Tribunal’s decision.","sortOrder":183},{"sectionNumber":"Subdivision E","sectionType":"subdivision","heading":"Review of decisions","content":"Subdivision E—Review of decisions","sortOrder":184},{"sectionNumber":"44LJ","sectionType":"section","heading":"Review of ineligibility decisions","content":"44LJ  Review of ineligibility decisions\n\nApplication for review\n\n (1) A person whose interests are affected by a decision of the designated Minister under subsection 44LG(1) may apply in writing to the Tribunal for a review of the decision.\n\n (2) An application for review must be made within 21 days after publication of the designated Minister’s decision.\n\n (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA.\n\nNote: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).\n\n (4) For the purposes of the review, the Tribunal has the same powers as the designated Minister.\n\nCouncil to provide assistance\n\n (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.\n\n (6) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.\n\n (7) The Tribunal must:\n\n (a) give a copy of the notice to:\n\n (i) the person who applied for review; and\n\n (ii) the person who is, or expects to be, the provider of the service; and\n\n (iii) any other person who has been made a party to the proceedings for review by the Tribunal; and\n\n (b) publish, by electronic or other means, the notice.\n\nTribunal’s decision\n\n (8) If the designated Minister decided that a service is ineligible to be a declared service, the Tribunal may affirm, vary or set aside the decision.\n\nNote: If the Tribunal sets aside a decision of the designated Minister that a service is ineligible to be a declared service, the designated Minister’s decision is no longer in force. This means the designated Minister is no longer prevented by subsection 44H(6C) from declaring the service.\n\n (9) If the designated Minister decided that a service is not ineligible to be a declared service, the Tribunal may either:\n\n (a) affirm the designated Minister’s decision; or\n\n (b) set aside the designated Minister’s decision and decide that the service is ineligible to be a declared service for a specified period (which must be at least 20 years).\n\nEffect of Tribunal’s decision\n\n (10) The Tribunal’s decision is taken to be a decision by the designated Minister for all purposes of this Part (except this section).","sortOrder":185},{"sectionNumber":"44LK","sectionType":"section","heading":"Review of decision to revoke or not revoke an ineligibility decision","content":"44LK  Review of decision to revoke or not revoke an ineligibility decision\n\nApplication for review\n\n (1) A person whose interests are affected by a decision of the designated Minister under subsection 44LI(3) may apply in writing to the Tribunal for a review of the decision.\n\n (2) An application for review must be made within 21 days after publication of the designated Minister’s decision.\n\n (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA.\n\nNote: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).\n\n (4) For the purposes of the review, the Tribunal has the same powers as the designated Minister.\n\nCouncil to give assistance\n\n (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.\n\n (6) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.\n\n (7) The Tribunal must:\n\n (a) give a copy of the notice to:\n\n (i) the person who applied for review; and\n\n (ii) the person who is, or expects to be, the provider of the service; and\n\n (iii) any other person who has been made a party to the proceedings for review by the Tribunal; and\n\n (b) publish, by electronic or other means, the notice.\n\nTribunal’s decision\n\n (8) If the designated Minister decided to revoke his or her decision (the ineligibility decision) that the service is ineligible to be a declared service, the Tribunal may either:\n\n (a) affirm the designated Minister’s decision; or\n\n (b) set aside the designated Minister’s decision to revoke the ineligibility decision.\n\n (9) If the designated Minister decided not to revoke his or her ineligibility decision, the Tribunal may either:\n\n (a) affirm the designated Minister’s decision; or\n\n (b) set aside the designated Minister’s decision and revoke the ineligibility decision.\n\nEffect of Tribunal’s decision\n\n (10) If the Tribunal sets aside the designated Minister’s decision to revoke his or her ineligibility decision, the ineligibility decision is taken never to have been revoked.\n\n (11) If the Tribunal sets aside the designated Minister’s decision and revokes the ineligibility decision, the Tribunal’s decision is, for the purposes of this Part other than this section, taken to be a decision by the Minister to revoke his or her decision that the service is ineligible to be a declared service.","sortOrder":186},{"sectionNumber":"Subdivision F","sectionType":"subdivision","heading":"Other matters","content":"Subdivision F—Other matters","sortOrder":187},{"sectionNumber":"44LL","sectionType":"section","heading":"Ineligibility decisions subject to alteration, cancellation etc.","content":"44LL  Ineligibility decisions subject to alteration, cancellation etc.\n\n (1) A decision of the designated Minister under section 44LG that a service is ineligible to be a declared service is made on the basis that:\n\n (a) the decision may be revoked under section 44LI; and\n\n (b) the decision may be cancelled, revoked, terminated or varied by or under later legislation; and\n\n (c) no compensation is payable if the decision is cancelled, revoked, terminated or varied as mentioned in any of the above paragraphs.\n\n (2) Subsection (1) does not, by implication, affect the interpretation of any other provision of this Act.","sortOrder":188},{"sectionNumber":"Division 2A","sectionType":"division","heading":"Effective access regimes","content":"Division 2A—Effective access regimes","sortOrder":189},{"sectionNumber":"44M","sectionType":"section","heading":"Recommendation for a Ministerial decision on effectiveness of access regime","content":"44M  Recommendation for a Ministerial decision on effectiveness of access regime\n\n (1) This section applies if a State or Territory that is a party to the National Competition Policy Agreement has established at any time a regime for access to a service or a proposed service.\n\n (2) The responsible Minister for the State or Territory may make a written application to the Council asking the Council to recommend that the Commonwealth Minister decide that the regime for access to the service or proposed service is an effective access regime.\n\n (3) The Council must recommend to the Commonwealth Minister:\n\n (a) that he or she decide that the access regime is an effective access regime for the service, or proposed service; or\n\n (b) that he or she decide that the access regime is not an effective access regime for the service, or proposed service.\n\nNote 1: There are time limits that apply to the Council’s recommendation: see section 44NC.\n\nNote 2: The Council may request information and invite public submissions on the application: see sections 44MA and 44NE.\n\nNote 3: The Council must publish its recommendation: see section 44NF.\n\n (4) In deciding what recommendation it should make, the Council:\n\n (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 National Competition Policy Agreement; and\n\n (aa) must have regard to the objects of this Part; and\n\n (b) must, subject to section 44DA, not consider any other matters.\n\n (4A) In deciding what recommendation it should make, the Council must disregard Chapter 5 of a National Gas Law.\n\n (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.","sortOrder":191},{"sectionNumber":"44MA","sectionType":"section","heading":"Council may request information","content":"44MA  Council may request information\n\n (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44M.\n\n (2) The Council must:\n\n (a) give a copy of the notice to:\n\n (i) if the person is not the applicant—the applicant; and\n\n (ii) if the person is not the provider of the service—the provider; and\n\n (b) publish, by electronic or other means, the notice.\n\n (3) In deciding what recommendation to make on the application, the Council:\n\n (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and\n\n (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended.","sortOrder":192},{"sectionNumber":"44N","sectionType":"section","heading":"Ministerial decision on effectiveness of access regime","content":"44N  Ministerial decision on effectiveness of access regime\n\n (1) On receiving a recommendation under section 44M, the Commonwealth Minister must:\n\n (a) decide that the access regime is an effective access regime for the service or proposed service; or\n\n (b) decide that the access regime is not an effective access regime for the service or proposed service.\n\nNote: The Commonwealth Minister must publish his or her decision: see section 44NG.\n\n (2) In making a decision, the Commonwealth Minister:\n\n (a) must, subject to subsection (2A), apply the relevant principles set out in the National Competition Policy Agreement; and\n\n (aa) must have regard to the objects of this Part; and\n\n (b) must, subject to section 44DA, not consider any other matters.\n\n (2A) In making a decision, the Commonwealth Minister must disregard Chapter 5 of a National Gas Law.\n\n (3) The decision must specify the period for which it is in force.\n\nNote: The period for which the decision is in force may be extended: see section 44NB.\n\n (4) If the Commonwealth Minister does not publish under section 44NG his or her decision on a recommendation under section 44M within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day:\n\n (a) the Commonwealth Minister is taken, immediately after the end of that 60‑day period:\n\n (i) to have made a decision under subsection (1) in accordance with the recommendation made by the Council under section 44M; and\n\n (ii) to have published that decision under section 44NG; and\n\n (b) if the Council recommended that the Commonwealth Minister decide that the access regime is an effective access regime for the service, or proposed service—the decision is taken to be in force for the period recommended by the Council under subsection 44M(5).","sortOrder":194},{"sectionNumber":"44NA","sectionType":"section","heading":"Recommendation by Council","content":"44NA  Recommendation by Council\n\n (1) This section applies if a decision of the Commonwealth Minister is in force under section 44N (including as a result of an extension under section 44NB) that a regime established by a State or Territory for access to a service is an effective access regime.\n\nApplication to Council\n\n (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.\n\nNote: 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.\n\n (3) The responsible Minister for the State or Territory may specify in the application proposed variations to the access regime.\n\nAssessment by Council\n\n (4) The Council must assess whether the access regime (including any proposed variations) is an effective access regime. It must do this in accordance with subsection 44M(4).\n\n (5) If the Council is satisfied that it is an effective access regime, the Council must, in writing, recommend to the Commonwealth Minister that he or she extend the period for which the decision under section 44N is in force. The Council must also recommend an extension period.\n\n (6) If the Council is satisfied that it is not an effective access regime, the Council must, in writing, recommend to the Commonwealth Minister that he or she not extend the period for which the decision under section 44N is in force.\n\nNote 1: There are time limits that apply to the Council’s recommendation: see section 44NC.\n\nNote 2: The Council may request information and invite public submissions on the application: see sections 44NAA and 44NE.\n\nNote 3: The Council must publish its recommendation: see section 44NF.","sortOrder":196},{"sectionNumber":"44NAA","sectionType":"section","heading":"Council may request information","content":"44NAA  Council may request information\n\n (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44NA.\n\n (2) The Council must:\n\n (a) give a copy of the notice to:\n\n (i) if the person is not the applicant—the applicant; and\n\n (ii) if the person is not the provider of the service—the provider; and\n\n (b) publish, by electronic or other means, the notice.\n\n (3) In deciding what recommendation to make on the application, the Council:\n\n (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and\n\n (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended.","sortOrder":197},{"sectionNumber":"44NB","sectionType":"section","heading":"Decision by the Commonwealth Minister","content":"44NB  Decision by the Commonwealth Minister\n\n (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).\n\nNote: The Commonwealth Minister must publish his or her decision: see section 44NG.\n\n (2) If the Commonwealth Minister is satisfied that it is, he or she must, by notice in writing, decide to extend the period for which the decision under section 44N is in force. The notice must specify the extension period.\n\n (3) If the Commonwealth Minister is satisfied that it is not, he or she must, by notice in writing, decide not to extend the period for which the decision under section 44N is in force.\n\n (3A) If the Commonwealth Minister does not publish under section 44NG his or her decision on a recommendation under section 44NA within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day:\n\n (a) the Commonwealth Minister is taken, immediately after the end of that 60‑day period:\n\n (i) to have made a decision under this section in accordance with the recommendation made by the Council under section 44NA; and\n\n (ii) to have published that decision under section 44NG; and\n\n (b) if the Council recommended that the Commonwealth Minister extend the period for which the decision under section 44N is in force—the extension period is taken to be the extension period recommended by the Council under subsection 44NA(5).\n\nMultiple extensions\n\n (4) The Commonwealth Minister may extend the period for which a decision is in force under section 44N more than once.","sortOrder":198},{"sectionNumber":"44NBA","sectionType":"section","heading":"Recommendation by Council","content":"44NBA  Recommendation by Council\n\n (1) If a decision of the Commonwealth Minister is in force under section 44N (including as a result of an extension under section 44NB) that a regime established by a State or Territory for access to a service is an effective access regime, the Council:\n\n (a) may, on its own initiative; and\n\n (b) must, on an application made under subsection (3);\n\nconsider whether to recommend that the Commonwealth Minister revoke the decision.\n\n (2) Before considering on its own initiative whether to recommend that the Commonwealth Minister revoke the decision, the Council must:\n\n (a) publish, by electronic or other means, a notice to that effect; and\n\n (b) give a copy of the notice to:\n\n (i) the responsible Minister for the State or Territory; and\n\n (ii) the provider of the service.\n\n (3) Any of the following may make a written application to the Council asking it to recommend that the Commonwealth Minister revoke the decision:\n\n (a) a person who is seeking access to the service;\n\n (b) the responsible Minister for the State or Territory;\n\n (c) the provider of the service.\n\nThe Council must give a copy of the application to each entity mentioned in paragraph (b) or (c), unless that entity is the applicant.\n\n (4) Subject to subsection (5), the Council’s consideration of whether to make the recommendation must be in accordance with subsection 44M(4).\n\n (5) In considering whether to make the recommendation, the Council must consider whether it is satisfied that the regime no longer meets the relevant principles, set out in the National Competition Policy Agreement, relating to whether access regimes are effective access regimes, because of either or both of the following:\n\n (a) substantial changes to the regime;\n\n (b) substantial amendments of those principles.\n\n (6) If the Council is so satisfied, the Council must, in writing, recommend to the Commonwealth Minister that he or she revoke the decision.\n\n (7) If the Council is not so satisfied, the Council must, in writing, recommend to the Commonwealth Minister that he or she not revoke the decision.\n\nNote 1: There are time limits that apply to the Council’s recommendation: see section 44NC.\n\nNote 2: The Council may request information and invite public submissions: see sections 44NBB and 44NE.\n\nNote 3: The Council must publish its recommendation: see section 44NF.","sortOrder":200},{"sectionNumber":"44NBB","sectionType":"section","heading":"Council may request information","content":"44NBB  Council may request information\n\n (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make under section 44NBA.\n\n (2) The Council must:\n\n (a) give a copy of the notice to:\n\n (i) if an application was made under subsection 44NBA(3) and the person is not the applicant—the applicant; and\n\n (ii) if the person is not the provider of the service—the provider; and\n\n (iii) in every case—the responsible Minister for the State or Territory; and\n\n (b) publish, by electronic or other means, the notice.\n\n (3) In deciding what recommendation to make, the Council:\n\n (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and\n\n (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended.","sortOrder":201},{"sectionNumber":"44NBC","sectionType":"section","heading":"Decision by the Commonwealth Minister","content":"44NBC  Decision by the Commonwealth Minister\n\n (1) On receiving a recommendation under section 44NBA, the Commonwealth Minister must assess whether he or she should revoke the decision. Subject to subsection (2) of this section, he or she must do this in accordance with subsection 44N(2).\n\nNote: The Commonwealth Minister must publish his or her decision: see section 44NG.\n\n (2) In making his or her assessment, the Commonwealth Minister must consider whether he or she is satisfied as to the matter set out in subsection 44NBA(5).\n\n (3) If the Commonwealth Minister is so satisfied, he or she must, by notice in writing, decide to revoke the decision. The notice must specify the day on which the revoked decision is to cease to be in force.\n\n (4) If the Commonwealth Minister is not so satisfied, he or she must, by notice in writing, decide not to revoke the decision.\n\n (5) If the Commonwealth Minister does not publish under section 44NG his or her decision on the recommendation within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day, he or she is taken, immediately after the end of that 60‑day period:\n\n (a) to have made a decision under this section in accordance with the recommendation made by the Council under section 44NBA; and\n\n (b) to have published that decision under section 44NG.","sortOrder":202},{"sectionNumber":"44NC","sectionType":"section","heading":"Time limit for Council recommendations","content":"44NC  Time limit for Council recommendations\n\nCouncil to make recommendation within the consideration period\n\n (1) The Council must make a recommendation on an application under section 44M, 44NA or 44NBA, or on a consideration by the Council on its own initiative under section 44NBA, within the consideration period.\n\n (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, or the consideration is notified under paragraph 44NBA(2)(a), unless the consideration period is extended under subsection (7).\n\nStopping the clock\n\n (3) In working out the expected period in relation to a recommendation on an application under section 44M, 44NA or 44NBA, or on a consideration by the Council on its own initiative under section 44NBA, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:\n\n (a) starting on the day referred to in column 2 of the item; and\n\n (b) ending on the day referred to in column 3 of the item.\n\n\n\n- Stopping the clock\n- Item Column 1Situation Column 2Start day Column 3End day\n- 1 An agreement is made in relation to the application under subsection (5) The first day of the period specified in the agreement The last day of the period specified in the agreement\n- 2 A notice is given under subsection 44MA(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information\n- 3 A notice is given under subsection 44NAA(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information\n- 4 A notice is given under subsection 44NBB(1) requesting information in relation to the application or consideration The day on which the notice is given The last day of the period specified in the notice for the giving of the information\n\n\n (4) Despite subsection (3):\n\n (a) do not disregard any day more than once; and\n\n (b) the total period that is disregarded under that subsection must not exceed 60 days.\n\nStopping the clock by agreement\n\n (5) The Council, the applicant (if the Commission is not acting on its own initiative under paragraph 44NBA(1)(a)) and the provider of the service (if the provider is not the applicant) may agree in writing that a specified period is to be disregarded in working out the expected period.\n\n (6) The Council must publish, by electronic or other means, the agreement.\n\nCouncil may extend time for making recommendation\n\n (7) If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the Commonwealth Minister, extend the consideration period by a specified period.\n\n (8) The notice must:\n\n (a) specify when the Council must now make its recommendation; and\n\n (b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.\n\n (9) The Council must give a copy of the notice to:\n\n (a) if the Commission is not acting on its own initiative under paragraph 44NBA(1)(a)—the applicant; and\n\n (b) if the applicant is not the provider of the service—the provider.\n\nPublication\n\n (10) If the Council extends the consideration period under subsection (7), it must publish a notice in a manner that results in the notice being accessible to the public and reasonably prominent:\n\n (a) stating that it has done so; and\n\n (b) specifying the day by which it must now make a recommendation on the application.\n\nFailure to comply with time limit does not affect validity\n\n (11) Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section.","sortOrder":204},{"sectionNumber":"44NE","sectionType":"section","heading":"Council may invite public submissions","content":"44NE  Council may invite public submissions\n\nInvitation\n\n (1) The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44M, 44NA or 44NBA, or on a consideration by the Council on its own initiative under section 44NBA, if it considers that it is appropriate and practicable to do so.\n\n (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).\n\nConsideration of submissions\n\n (3) Subject to subsection (6), in deciding what recommendation to make, the Council:\n\n (a) must have regard to any submission made on or before the day specified in the notice; and\n\n (b) may disregard any submission made after the day specified in the notice.\n\nCouncil may make submissions publicly available\n\n (4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.\n\nConfidentiality\n\n (5) A person may, at the time of making a submission, request that the Council:\n\n (a) not make the whole or a part of the submission available under subsection (4); and\n\n (b) not publish or make available the whole or a part of the submission under section 44NF;\n\nbecause of the confidential commercial information contained in the submission.\n\n (6) If the Council refuses such a request:\n\n (a) for a written submission—the Council must, if the person who made it so requires, return the whole or the part of it to the person; and\n\n (b) for an oral submission—the person who made it may inform the Council that the person withdraws the whole or the part of it; and\n\n (c) if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not:\n\n (i) make the whole or the part of the submission available under subsection (4); and\n\n (ii) publish or make available the whole or the part of the submission under section 44NF; and\n\n (iii) have regard to the whole or the part of the submission in making its recommendation.","sortOrder":205},{"sectionNumber":"44NF","sectionType":"section","heading":"Publication—Council","content":"44NF  Publication—Council\n\n (1) The Council must publish, by electronic or other means, a recommendation under section 44M, 44NA or 44NBA and its reasons for the recommendation.\n\n (2) The Council must give a copy of the publication to:\n\n (a) the applicant under section 44M or 44NA, or under section 44NBA (unless the recommendation relates to a consideration by the Council under that section on its own initiative); and\n\n (b) the provider of the service.\n\nTiming\n\n (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.\n\nConsultation\n\n (4) Before publishing under subsection (1), the Council may give any one or more of the following persons:\n\n (a) the applicant under section 44M or 44NA, or under section 44NBA (unless the recommendation relates to a consideration by the Council under that section on its own initiative);\n\n (b) the provider of the service;\n\n (c) any other person the Council considers appropriate;\n\na notice in writing:\n\n (d) specifying what the Council is proposing to publish; and\n\n (e) inviting the person to make a written submission to the Council within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.\n\n (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.","sortOrder":206},{"sectionNumber":"44NG","sectionType":"section","heading":"Publication—Commonwealth Minister","content":"44NG  Publication—Commonwealth Minister\n\n (1) The Commonwealth Minister must publish, by electronic or other means, his or her decision on a recommendation under section 44M, 44NA or 44NBA and his or her reasons for the decision.\n\n (2) The Commonwealth Minister must give a copy of the publication to:\n\n (a) the applicant under section 44M or 44NA, or under section 44NBA (unless the recommendation relates to a consideration by the Council under that section on its own initiative); and\n\n (b) the provider of the service.\n\nConsultation\n\n (3) Before publishing under subsection (1), the Commonwealth Minister may give any one or more of the following persons:\n\n (a) the applicant under section 44M or 44NA, or under section 44NBA (unless the recommendation relates to a consideration by the Council under that section on its own initiative);\n\n (b) the provider of the service;\n\n (c) any other person the Minister considers appropriate;\n\na notice in writing:\n\n (d) specifying what the Minister is proposing to publish; and\n\n (e) inviting the person to make a written submission to the Minister within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.\n\n (4) The Commonwealth Minister must have regard to any submission so made in deciding what to publish. He or she may have regard to any other matter he or she considers relevant.","sortOrder":207},{"sectionNumber":"44O","sectionType":"section","heading":"Review of Ministerial decision on effectiveness of access regime","content":"44O  Review of Ministerial decision on effectiveness of access regime\n\n (1) The responsible Minister of the State or Territory:\n\n (a) who applied for a recommendation under section 44M that the Commonwealth Minister decide that the access regime is an effective access regime; or\n\n (b) who applied for a recommendation under section 44NA that the Commonwealth Minister decide to extend the period for which the decision under section 44N is in force;\n\nmay apply to the Tribunal for review of the Commonwealth Minister’s decision.\n\n (1A) If, on receiving a recommendation under section 44NBA relating to a decision under section 44N, the Commonwealth Minister has made a decision under section 44NBC:\n\n (a) the person who applied under subsection 44NBA(3) for the Council to make a recommendation relating to that decision under section 44N; or\n\n (b) any other person who could have applied under subsection 44NBA(3) for the Council to make such a recommendation;\n\nmay apply to the Tribunal for review of the Commonwealth Minister’s decision under section 44NBC.\n\n (2) An application for review must be made within 21 days after publication of the Commonwealth Minister’s decision.\n\n (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA.\n\nNote: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).\n\n (4) For the purposes of the review, the Tribunal has the same powers as the Commonwealth Minister.\n\n (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.\n\n (5A) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.\n\n (5B) The Tribunal must:\n\n (a) give a copy of the notice to:\n\n (i) the person who applied for the review; and\n\n (ii) any other person who has been made a party to the proceedings for review by the Tribunal; and\n\n (b) publish, by electronic or other means, the notice.\n\n (6) The Tribunal may affirm, vary or reverse the Commonwealth Minister’s decision.\n\n (7) A decision made by the Tribunal is to be taken to be a decision of the Commonwealth Minister for all purposes of this Part (except this section).","sortOrder":209},{"sectionNumber":"44P","sectionType":"section","heading":"State or Territory ceasing to be a party to National Competition Policy Agreement","content":"44P  State or Territory ceasing to be a party to National Competition Policy Agreement\n\n  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 National Competition Policy Agreement:\n\n (a) a decision by the Commonwealth Minister that the regime is an effective access regime ceases to be in force; and\n\n (b) the Council, the Commonwealth Minister and the Tribunal need not take any further action relating to an application for a decision by the Commonwealth Minister that the regime is an effective access regime.","sortOrder":211},{"sectionNumber":"Division 2B","sectionType":"division","heading":"Competitive tender processes for government owned facilities","content":"Division 2B—Competitive tender processes for government owned facilities","sortOrder":212},{"sectionNumber":"44PA","sectionType":"section","heading":"Approval of competitive tender process","content":"44PA  Approval of competitive tender process\n\nApplication to Commission\n\n (1) The Commonwealth Minister, or the responsible Minister of a State or Territory, may make a written application to the Commission asking it to approve a tender process, for the construction and operation of a facility that is to be owned by the Commonwealth, State or Territory, as a competitive tender process.\n\n (2) The application must:\n\n (a) specify the service or services proposed to be provided by means of the facility; and\n\n (b) be in accordance with the regulations.\n\nDecision of Commission\n\n (3) The Commission must, by notice in writing, approve or refuse to approve the tender process as a competitive tender process.\n\nNote 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).\n\nNote 2: There are time limits that apply to the Commission’s decision: see section 44PD.\n\nNote 3: The Commission may request information and invite public submissions on the application: see sections 44PAA and 44PE.\n\nNote 4: The Commission must publish its decision: see section 44PF.\n\n (4) The Commission must not approve a tender process as a competitive tender process unless:\n\n (a) it is satisfied that reasonable terms and conditions of access to any service specified under paragraph (2)(a) will be the result of the process; and\n\n (b) it is satisfied that the tender process meets the requirements prescribed by the regulations.\n\n (4A) The Commission may approve the tender process as a competitive tender process even if the service proposed to be provided by means of the facility is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service.\n\nPeriod for which decision in force\n\n (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.\n\nNote: Section 44PC provides for revocation of the decision.\n\n (6) The Commission may, by writing, extend that period by a specified period. The Commission may do so more than once.\n\nLegislation Act 2003\n\n (7) A notice under subsection (3) is not a legislative instrument.","sortOrder":213},{"sectionNumber":"44PAA","sectionType":"section","heading":"Commission may request information","content":"44PAA  Commission may request information\n\n (1) The Commission may give a person a written notice requesting the person give to the Commission, within a specified period, information of the kind specified in the notice that the Commission considers may be relevant to deciding whether to approve or refuse to approve a tender process under section 44PA.\n\n (2) The Commission must:\n\n (a) if the person is not the applicant—give a copy of the notice to the applicant; and\n\n (b) publish, by electronic or other means, the notice.\n\n (3) In deciding whether to approve or refuse to approve the tender process, the Commission:\n\n (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and\n\n (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended.","sortOrder":214},{"sectionNumber":"44PB","sectionType":"section","heading":"Report on conduct of tender process","content":"44PB  Report on conduct of tender process\n\nReport\n\n (1) If the Commission approves a tender process as a competitive tender process, it must, after a tenderer is chosen, ask the applicant under subsection 44PA(1), by notice in writing, to give the Commission a written report on the conduct of the tender process.\n\n (2) The report must be in accordance with the regulations.\n\nCommission may ask for further information\n\n (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.\n\nLegislation Act 2003\n\n (4) A report under subsection (1) is not a legislative instrument.","sortOrder":215},{"sectionNumber":"44PC","sectionType":"section","heading":"Revocation of approval decision","content":"44PC  Revocation of approval decision\n\nDiscretionary revocation\n\n (1) The Commission may, by writing, revoke a decision to approve a tender process as a competitive tender process if it is satisfied that the assessment of the tenders was not in accordance with that process.\n\nNote 1: The Commission may invite public submissions on any proposed revocation decision: see section 44PE.\n\nNote 2: The Commission must publish its decision: see section 44PF.\n\n (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:\n\n (a) specified under paragraph 44PA(2)(a); and\n\n (b) being provided by means of the facility concerned;\n\nis not complying with the terms and conditions of access to the service.\n\nNote 1: The Commission may invite public submissions on any proposed revocation decision: see section 44PE.\n\nNote 2: The Commission must publish its decision: see section 44PF.\n\n (3) Before making a decision under subsection (2), the Commission must give the applicant under subsection 44PA(1), and the provider of the service, a written notice:\n\n (a) stating that the Commission is proposing to make such a decision and the reasons for it; and\n\n (b) inviting the person to make a written submission to the Commission on the proposal; and\n\n (c) stating that any submission must be made within the period of 40 business days after the notice is given.\n\n (4) The Commission must consider any written submission received within that period.\n\nMandatory revocation\n\n (5) If:\n\n (a) the Commission approves a tender process as a competitive tender process; and\n\n (b) the Commission gives the applicant a notice under subsection 44PB(1) or (3); and\n\n (c) the applicant does not comply with the notice within the period of 40 business days beginning on the day on which the notice is given;\n\nthe 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.\n\nDefinition\n\n (6) In this section:\n\nbusiness day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory.","sortOrder":216},{"sectionNumber":"44PD","sectionType":"section","heading":"Time limit for Commission decisions","content":"44PD  Time limit for Commission decisions\n\nCommission to make decision within 90 days\n\n (1) The Commission must make a decision on an application under subsection 44PA(1) within the period of 90 days (the expected period) starting at the start of the day the application is received.\n\nStopping the clock\n\n (2) In working out the expected period in relation to a decision on an application under subsection 44PA(1), in a situation referred to in column 1 of an item of the following table, disregard any day in a period:\n\n (a) starting on the day referred to in column 2 of the item; and\n\n (b) ending on the day referred to in column 3 of the item.\n\n\n\n- Stopping the clock\n- Item Column 1Situation Column 2Start day Column 3End day\n- 1 An agreement is made in relation to the application under subsection (4) The first day of the period specified in the agreement The last day of the period specified in the agreement\n- 2 A notice is given under subsection 44PAA(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information\n- 3 A notice is published under subsection 44PE(1) inviting public submissions in relation to the application The day on which the notice is published The day specified in the notice as the day by which submissions may be made\n\n\n (3) Despite subsection (2), do not disregard any day more than once.\n\nStopping the clock by agreement\n\n (4) The Commission and the applicant may agree in writing that a specified period is to be disregarded in working out the expected period.\n\n (5) The Commission must publish, by electronic or other means, the agreement.\n\nDeemed approval as a competitive tender process\n\n (6) If the Commission does not publish under subsection 44PF(1) its decision on the application within the expected period, it is taken, immediately after the end of the expected period, to have:\n\n (a) approved the tender process as a competitive tender process; and\n\n (b) published the decision to approve the process and its reasons for that decision; and\n\n (c) specified that the decision is in force for a period of 20 years, starting 21 days after the start of the day the decision is taken to have been published.","sortOrder":217},{"sectionNumber":"44PE","sectionType":"section","heading":"Commission may invite public submissions","content":"44PE  Commission may invite public submissions\n\nInvitation\n\n (1) The Commission may publish, by electronic or other means, a notice inviting public submissions:\n\n (a) on an application under subsection 44PA(1); or\n\n (b) on any proposed decision under subsection 44PC(1) or (2) to revoke a decision under subsection 44PA(3) to approve a tender process as a competitive tender process;\n\nif it considers that it is appropriate and practicable to do so.\n\n (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).\n\nConsideration of submissions\n\n (3) Subject to subsection (6), in making its decision, the Commission:\n\n (a) must have regard to any submission made on or before the day specified in the notice; and\n\n (b) may disregard any submission made after the day specified in the notice.\n\nCommission may make submissions publicly available\n\n (4) The Commission may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.\n\nConfidentiality\n\n (5) A person may, at the time of making a submission, request that the Commission:\n\n (a) not make the whole or a part of the submission available under subsection (4); and\n\n (b) not publish or make available the whole or a part of the submission under section 44PF;\n\nbecause of the confidential commercial information contained in the submission.\n\n (6) If the Commission refuses such a request:\n\n (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\n\n (b) for an oral submission—the person who made it may inform the Commission that the person withdraws the whole or the part of it; and\n\n (c) if the Commission returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Commission must not:\n\n (i) make the whole or the part of the submission available under subsection (4); and\n\n (ii) publish or make available the whole or the part of the submission under section 44PF; and\n\n (iii) have regard to the whole or the part of the submission in making its decision.","sortOrder":218},{"sectionNumber":"44PF","sectionType":"section","heading":"Commission must publish its decisions","content":"44PF  Commission must publish its decisions\n\n (1) The Commission must publish, by electronic or other means, a decision under subsection 44PA(3) or 44PC(1) or (2) and its reasons for the decision.\n\n (2) The Commission must give a copy of the publication to:\n\n (a) for any decision—the applicant under subsection 44PA(1); and\n\n (b) for a decision under subsection 44PC(2)—the provider of the service.\n\nIt may also give a copy to any other person the Commission considers appropriate.\n\nConsultation\n\n (3) Before publishing under subsection (1), the Commission may give the following persons:\n\n (a) for any decision—the applicant under subsection 44PA(1) or any other person the Commission considers appropriate;\n\n (b) for a decision under subsection 44PC(2)—the provider of the service;\n\na notice in writing:\n\n (c) specifying what the Commission is proposing to publish; and\n\n (d) inviting the person to make a written submission to the Commission within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.\n\n (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.","sortOrder":219},{"sectionNumber":"44PG","sectionType":"section","heading":"Review of Commission’s initial decision","content":"44PG  Review of Commission’s initial decision\n\nApplication\n\n (1) A person whose interests are affected by a decision of the Commission under subsection 44PA(3) may apply in writing to the Tribunal for review of the decision.\n\n (2) The person must apply for review within 21 days after the Commission publishes its decision.\n\nReview\n\n (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA.\n\nNote: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).\n\n (4) For the purposes of the review, the Tribunal has the same powers as the Commission.\n\n (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.\n\n (5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.\n\n (5B) The Tribunal must:\n\n (a) give a copy of the notice to:\n\n (i) the person who applied for review; and\n\n (ii) the person who made the application under subsection 44PA(1) requesting approval of a tender process as a competitive tender process; and\n\n (iii) any other person who has been made a party to the proceedings for review by the Tribunal; and\n\n (b) publish, by electronic or other means, the notice.\n\nTribunal’s decision\n\n (6) If the Commission refused to approve a tender process as a competitive tender process, the Tribunal must, by writing:\n\n (a) affirm the Commission’s decision; or\n\n (b) set aside the Commission’s decision and approve the process as a competitive tender process.\n\n (7) A decision of the Tribunal to approve a process as a competitive tender process is taken to be a decision by the Commission for all purposes of this Part (except this section).\n\n (8) If the Commission approved a tender process as a competitive tender process, the Tribunal must, by writing, affirm or set aside the Commission’s decision.\n\nNote: 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.","sortOrder":220},{"sectionNumber":"44PH","sectionType":"section","heading":"Review of decision to revoke an approval","content":"44PH  Review of decision to revoke an approval\n\nApplication\n\n (1) If the Commission makes a decision under subsection 44PC(1) or (2), the following persons may apply in writing to the Tribunal for review of the decision:\n\n (a) for either decision—the applicant under subsection 44PA(1) or any other person whose interests are affected by the decision;\n\n (b) for a decision under subsection 44PC(2)—the provider of the service.\n\n (2) The person must apply for review within 21 days after the Commission publishes its decision.\n\nReview\n\n (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA.\n\nNote: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).\n\n (4) For the purposes of the review, the Tribunal has the same powers as the Commission.\n\n (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.\n\n (5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.\n\n (5B) The Tribunal must:\n\n (a) give a copy of the notice to:\n\n (i) the person who applied for review; and\n\n (ii) the person who made the application under subsection 44PA(1) requesting approval of a tender process as a competitive tender process; and\n\n (iii) for a review of a decision under subsection 44PC(2)—the provider of the service; and\n\n (iv) any other person who has been made a party to the proceedings for review by the Tribunal; and\n\n (b) publish, by electronic or other means, the notice.\n\nTribunal’s decision\n\n (6) The Tribunal must, by writing, affirm or set aside the Commission’s decision.","sortOrder":221},{"sectionNumber":"Division 2C","sectionType":"division","heading":"Register of decisions and declarations","content":"Division 2C—Register of decisions and declarations","sortOrder":222},{"sectionNumber":"44Q","sectionType":"section","heading":"Register of decisions, declarations and ineligibility decisions","content":"44Q  Register of decisions, declarations and ineligibility decisions\n\n  The Commission must maintain a public register that includes:\n\n (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\n\n (aa) each decision of the Commonwealth Minister to extend the period for which a decision under section 44N is in force; and\n\n (b) each declaration (including a declaration that is no longer in force); and\n\n (ba) each decision of a designated Minister under section 44LG that a service is ineligible to be a declared service; and\n\n (bb) each decision of a designated Minister under section 44LI to revoke his or her decision that a service is ineligible to be a declared service; and\n\n (c) each decision of the Commission under subsection 44PA(3) to approve a tender process as a competitive tender process; and\n\n (d) each decision of the Commission under section 44PC to revoke a decision under subsection 44PA(3).","sortOrder":223},{"sectionNumber":"44R","sectionType":"section","heading":"Constitutional limits on operation of this Division","content":"44R  Constitutional limits on operation of this Division\n\n  This Division does not apply in relation to a third party’s access to a service unless:\n\n (a) the provider is a corporation (or a partnership or joint venture consisting wholly of corporations); or\n\n (b) the third party is a corporation; or\n\n (c) the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.","sortOrder":226},{"sectionNumber":"44S","sectionType":"section","heading":"Notification of access disputes","content":"44S  Notification of access disputes\n\n (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.\n\nNote: 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.\n\n (2) On receiving the notification, the Commission must give notice in writing of the access dispute to:\n\n (a) the provider, if the third party notified the access dispute;\n\n (b) the third party, if the provider notified the access dispute;\n\n (c) any other person whom the Commission thinks might want to become a party to the arbitration.","sortOrder":228},{"sectionNumber":"44T","sectionType":"section","heading":"Withdrawal of notifications","content":"44T  Withdrawal of notifications\n\n (1) A notification may be withdrawn as follows (and not otherwise):\n\n (a) if the provider notified the dispute:\n\n (i) the provider may withdraw the notification at any time before the Commission makes its final determination;\n\n (ii) the third party may withdraw the provider’s notification at any time after the Commission issues a draft final determination, but before it makes its final determination;\n\n (b) if the third party notified the dispute, the third party may withdraw the notification at any time before the Commission makes its final determination.\n\n (2) Despite subparagraph (1)(a)(ii), if the provider notified a dispute over variation of a final determination, the third party may not withdraw the provider’s notification.\n\n (3) If the notification is withdrawn, it is taken for the purposes of this Part never to have been given.","sortOrder":229},{"sectionNumber":"44U","sectionType":"section","heading":"Parties to the arbitration","content":"44U  Parties to the arbitration\n\n  The parties to the arbitration of an access dispute are:\n\n (a) the provider;\n\n (b) the third party;\n\n (c) any other person who applies in writing to be made a party and is accepted by the Commission as having a sufficient interest.","sortOrder":231},{"sectionNumber":"44V","sectionType":"section","heading":"Determination by Commission","content":"44V  Determination by Commission\n\n (1) Unless it terminates the arbitration under section 44Y, 44YA, 44ZZCB or 44ZZCBA, the Commission:\n\n (a) must make a written final determination; and\n\n (b) may make a written interim determination;\n\non access by the third party to the service.\n\nNote 1: There are time limits that apply to the Commission’s final determination: see section 44XA.\n\nNote 2: The Commission may defer arbitration of the access dispute if it is also considering an access undertaking: see section 44ZZCB.\n\n (2) A determination may deal with any matter relating to access by the third party to the service, including matters that were not the basis for notification of the dispute. By way of example, the determination may:\n\n (a) require the provider to provide access to the service by the third party;\n\n (b) require the third party to accept, and pay for, access to the service;\n\n (c) specify the terms and conditions of the third party’s access to the service;\n\n (d) require the provider to extend the facility;\n\n (da) require the provider to permit interconnection to the facility by the third party;\n\n (e) specify the extent to which the determination overrides an earlier determination relating to access to the service by the third party.\n\n (2A) Without limiting paragraph (2)(d), a requirement referred to in that paragraph may do either or both of the following:\n\n (a) require the provider to expand the capacity of the facility;\n\n (b) require the provider to expand the geographical reach of the facility.\n\n (3) A determination does not have to require the provider to provide access to the service by the third party.\n\n (4) Before making a determination, the Commission must give a draft determination to the parties.\n\n (5) When the Commission makes a determination, it must give the parties to the arbitration its reasons for making the determination.\n\n (6) A determination is not a legislative instrument.","sortOrder":232},{"sectionNumber":"44W","sectionType":"section","heading":"Restrictions on access determinations","content":"44W  Restrictions on access determinations\n\n (1) The Commission must not make a determination that would have any of the following effects:\n\n (a) preventing an existing user obtaining a sufficient amount of the service to be able to meet the user’s reasonably anticipated requirements, measured at the time when the dispute was notified;\n\n (b) preventing a person from obtaining, by the exercise of a pre‑notification right, a sufficient amount of the service to be able to meet the person’s actual requirements;\n\n (c) depriving any person of a protected contractual right;\n\n (d) resulting in the third party becoming the owner (or one of the owners) of any part of the facility, or of extensions of the facility (including expansions of the capacity of the facility and expansions of the geographical reach of the facility), without the consent of the provider;\n\n (e) requiring the provider to bear some or all of the costs of extending the facility (including expanding the capacity of the facility and expanding the geographical reach of the facility);\n\n (ea) requiring the provider to bear some or all of the costs of maintaining extensions of the facility (including expansions of the capacity of the facility and expansions of the geographical reach of the facility);\n\n (f) requiring the provider to bear some or all of the costs of interconnections to the facility or maintaining interconnections to the facility.\n\n (2) Paragraphs (1)(a) and (b) do not apply in relation to the requirements and rights of the third party and the provider when the Commission is making a determination in arbitration of an access dispute relating to an earlier determination of an access dispute between the third party and the provider.\n\n (3) A determination is of no effect if it is made in contravention of subsection (1).\n\n (4) If the Commission makes a determination that has the effect of depriving a person (the second person) of a pre‑notification right to require the provider to supply the service to the second person, the determination must also require the third party:\n\n (a) to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and\n\n (b) to reimburse the provider and the Commonwealth for any compensation that the provider or the Commonwealth agrees, or is required by a court order, to pay to the second party as compensation for the deprivation.\n\nNote: 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.\n\n (4A) If an application for review of a declaration of a service has been made under subsection 44K(1), the Commission must not make a determination in relation to the service until the Tribunal has made its decision on the review.\n\n (5) In this section:\n\nexisting user means a person (including the provider) who was using the service at the time when the dispute was notified.\n\npre‑notification right means a right under a contract, or under a determination, that was in force at the time when the dispute was notified.\n\nprotected contractual right means a right under a contract that was in force at the beginning of 30 March 1995.","sortOrder":233},{"sectionNumber":"44X","sectionType":"section","heading":"Matters that the Commission must take into account","content":"44X  Matters that the Commission must take into account\n\nFinal determinations\n\n (1) The Commission must take the following matters into account in making a final determination:\n\n (aa) the objects of this Part;\n\n (a) the legitimate business interests of the provider, and the provider’s investment in the facility;\n\n (b) the public interest, including the public interest in having competition in markets (whether or not in Australia);\n\n (c) the interests of all persons who have rights to use the service;\n\n (d) the direct costs of providing access to the service;\n\n (e) the value to the provider of extensions (including expansions of capacity and expansions of geographical reach) whose cost is borne by someone else;\n\n (ea) the value to the provider of interconnections to the facility whose cost is borne by someone else;\n\n (f) the operational and technical requirements necessary for the safe and reliable operation of the facility;\n\n (g) the economically efficient operation of the facility;\n\n (h) the pricing principles specified in section 44ZZCA.\n\n (2) The Commission may take into account any other matters that it thinks are relevant.\n\nInterim determinations\n\n (3) The Commission may take the following matters into account in making an interim determination:\n\n (a) a matter referred to in subsection (1);\n\n (b) any other matter it considers relevant.\n\n (4) In making an interim determination, the Commission does not have a duty to consider whether to take into account a matter referred to in subsection (1).","sortOrder":234},{"sectionNumber":"44XA","sectionType":"section","heading":"Time limit for Commission’s final determination","content":"44XA  Time limit for Commission’s final determination\n\nCommission to make final determination within 180 days\n\n (1) The Commission must make a final determination within the period of 180 days (the expected period) starting at the start of the day the application is received.\n\nStopping the clock\n\n (2) In working out the expected period in relation to a final determination, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:\n\n (a) starting on the day referred to in column 2 of the item; and\n\n (b) ending on the day referred to in column 3 of the item.\n\n\n\n- Stopping the clock\n- Item Column 1Situation Column 2Start day Column 3End day\n- 1 An agreement is made in relation to the arbitration under subsection (4) The first day of the period specified in the agreement The last day of the period specified in the agreement\n- 2 A direction is given under subsection 44ZG(1) to give information or make a submission within a specified period The first day of the period specified for the giving of the information or the making of the submission The last day of the period specified for the giving of the information or the making of the submission\n- 3 A decision is published under subsection 44ZZCB(4) deferring consideration of the dispute while the Commission considers an access undertaking The day on which the decision is published The day on which the Commission makes its decision on the access undertaking under subsection 44ZZA(3)\n- 4 The Commission, under subsection 44ZZCBA(1) or (2), defers arbitrating the dispute while a declaration is under review by the Tribunal The day on which the Commission gives the notice to defer arbitrating the dispute The day the Tribunal makes its decision under section 44K on the review\n\n\n (3) Despite subsection (2), do not disregard any day more than once.\n\nStopping the clock by agreement\n\n (4) The Commission and the parties to the access dispute may agree in writing that a specified period is to be disregarded in working out the expected period.\n\n (5) The Commission must publish, by electronic or other means, the agreement.\n\nDeemed final determination\n\n (6) If the Commission does not publish under section 44ZNB a written report about a final determination within the expected period, it is taken, immediately after the end of the expected period, to have:\n\n (a) made a final determination that does not impose any obligations on the parties or alter any obligations (if any) that exist at that time between the parties; and\n\n (b) published a written report about the final determination under section 44ZNB.","sortOrder":235},{"sectionNumber":"44Y","sectionType":"section","heading":"Commission may terminate arbitration in certain cases","content":"44Y  Commission may terminate arbitration in certain cases\n\n (1) The Commission may at any time terminate an arbitration (without making a final determination) if it thinks that:\n\n (a) the notification of the dispute was vexatious; or\n\n (b) the subject matter of the dispute is trivial, misconceived or lacking in substance; or\n\n (c) the party who notified the dispute has not engaged in negotiations in good faith; or\n\n (d) access to the service should continue to be governed by an existing contract between the provider and the third party.\n\n (2) In addition, if the dispute is about varying an existing determination, the Commission may terminate the arbitration if it thinks there is no sufficient reason why the previous determination should not continue to have effect in its present form.","sortOrder":236},{"sectionNumber":"44YA","sectionType":"section","heading":"Commission must terminate arbitration if declaration varied or set aside by Tribunal","content":"44YA  Commission must terminate arbitration if declaration varied or set aside by Tribunal\n\n  If the Commission is arbitrating a dispute in relation to a declared service and the Tribunal sets aside or varies the declaration in relation to the service under section 44K, the Commission must terminate the arbitration.","sortOrder":237},{"sectionNumber":"44Z","sectionType":"section","heading":"Constitution of Commission for conduct of arbitration","content":"44Z  Constitution of Commission for conduct of arbitration\n\n  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.","sortOrder":239},{"sectionNumber":"44ZA","sectionType":"section","heading":"Member of the Commission presiding at an arbitration","content":"44ZA  Member of the Commission presiding at an arbitration\n\n (1) Subject to subsection (2), the Chairperson is to preside at an arbitration.\n\n (2) If the Chairperson is not a member of the Commission as constituted under section 44Z in relation to a particular arbitration, the Chairperson must nominate a member of the Commission to preside at the arbitration.","sortOrder":240},{"sectionNumber":"44ZB","sectionType":"section","heading":"Reconstitution of Commission","content":"44ZB  Reconstitution of Commission\n\n (1) This section applies if a member of the Commission who is one of the members who constitute the Commission for the purposes of a particular arbitration:\n\n (a) stops being a member of the Commission; or\n\n (b) for any reason, is not available for the purpose of the arbitration.\n\n (2) The Chairperson must either:\n\n (a) direct that the Commission is to be constituted for the purposes of finishing the arbitration by the remaining member or members; or\n\n (b) direct that the Commission is to be constituted for that purpose by the remaining member or members together with one or more other members of the Commission.\n\n (3) If a direction under subsection (2) is given, the Commission as constituted in accordance with the direction must continue and finish the arbitration and may, for that purpose, have regard to any record of the proceedings of the arbitration made by the Commission as previously constituted.","sortOrder":241},{"sectionNumber":"44ZC","sectionType":"section","heading":"Determination of questions","content":"44ZC  Determination of questions\n\n  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:\n\n (a) unless paragraph (b) applies—according to the opinion of the majority of those members; or\n\n (b) if the members are evenly divided on the question—according to the opinion of the member who is presiding.","sortOrder":242},{"sectionNumber":"44ZD","sectionType":"section","heading":"Hearing to be in private","content":"44ZD  Hearing to be in private\n\n (1) Subject to subsection (2), an arbitration hearing for an access dispute is to be in private.\n\n (2) If the parties agree, an arbitration hearing or part of an arbitration hearing may be conducted in public.\n\n (3) The member of the Commission who is presiding at an arbitration hearing that is conducted in private may give written directions as to the persons who may be present.\n\n (4) In giving directions under subsection (3), the member presiding must have regard to the wishes of the parties and the need for commercial confidentiality.","sortOrder":243},{"sectionNumber":"44ZE","sectionType":"section","heading":"Right to representation","content":"44ZE  Right to representation\n\n  In an arbitration hearing before the Commission under this Part, a party may appear in person or be represented by someone else.","sortOrder":244},{"sectionNumber":"44ZF","sectionType":"section","heading":"Procedure of Commission","content":"44ZF  Procedure of Commission\n\n (1) In an arbitration hearing about an access dispute, the Commission:\n\n (a) is not bound by technicalities, legal forms or rules of evidence; and\n\n (b) must act as speedily as a proper consideration of the dispute allows, having regard to the need to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute; and\n\n (c) may inform itself of any matter relevant to the dispute in any way it thinks appropriate.\n\n (2) The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an access dispute, and may require that the cases be presented within those periods.\n\n (3) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.","sortOrder":245},{"sectionNumber":"44ZG","sectionType":"section","heading":"Particular powers of Commission","content":"44ZG  Particular powers of Commission\n\n (1) The Commission may do any of the following things for the purpose of arbitrating an access dispute:\n\n (a) give a direction in the course of, or for the purposes of, an arbitration hearing;\n\n (b) hear and determine the arbitration in the absence of a person who has been summoned or served with a notice to appear;\n\n (c) sit at any place;\n\n (d) adjourn to any time and place;\n\n (e) refer any matter to an expert and accept the expert’s report as evidence;\n\n (f) generally give all such directions, and do all such things, as are necessary or expedient for the speedy hearing and determination of the access dispute.\n\n (2) A person must not do any act or thing in relation to the arbitration of an access dispute that would be a contempt of court if the Commission were a court of record.\n\nPenalty: Imprisonment for 6 months.\n\n (3) Subsection (1) has effect subject to any other provision of this Part and subject to the regulations.\n\n (4) The Commission may give an oral or written order to a person not to divulge or communicate to anyone else specified information that was given to the person in the course of an arbitration unless the person has the Commission’s permission.\n\n (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.","sortOrder":246},{"sectionNumber":"44ZH","sectionType":"section","heading":"Power to take evidence on oath or affirmation","content":"44ZH  Power to take evidence on oath or affirmation\n\n (1) The Commission may take evidence on oath or affirmation and for that purpose a member of the Commission may administer an oath or affirmation.\n\n (2) The member of the Commission who is presiding may summon a person to appear before the Commission to give evidence and to produce such documents (if any) as are referred to in the summons.\n\n (3) The powers in this section may be exercised only for the purposes of arbitrating an access dispute.","sortOrder":247},{"sectionNumber":"44ZI","sectionType":"section","heading":"Failing to attend as a witness","content":"44ZI  Failing to attend as a witness\n\n  A person who is served, as prescribed, with a summons to appear as a witness before the Commission must not, without reasonable excuse:\n\n (a) fail to attend as required by the summons; or\n\n (b) fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by a member of the Commission.\n\nPenalty: Imprisonment for 6 months.","sortOrder":248},{"sectionNumber":"44ZJ","sectionType":"section","heading":"Failing to answer questions etc.","content":"44ZJ  Failing to answer questions etc.\n\n (1) A person appearing as a witness before the Commission must not, without reasonable excuse:\n\n (a) refuse or fail to be sworn or to make an affirmation; or\n\n (b) refuse or fail to answer a question that the person is required to answer by the Commission; or\n\n (c) refuse or fail to produce a document that he or she was required to produce by a summons under this Part served on him or her as prescribed.\n\nPenalty: Imprisonment for 6 months.\n\n (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).","sortOrder":249},{"sectionNumber":"44ZK","sectionType":"section","heading":"Intimidation etc.","content":"44ZK  Intimidation etc.\n\n  A person must not:\n\n (a) threaten, intimidate or coerce another person; or\n\n (b) cause or procure damage, loss or disadvantage to another person;\n\nbecause that other person:\n\n (c) proposes to produce, or has produced, documents to the Commission; or\n\n (d) proposes to appear or has appeared as a witness before the Commission.\n\nPenalty: Imprisonment for 12 months.","sortOrder":250},{"sectionNumber":"44ZL","sectionType":"section","heading":"Party may request Commission to treat material as confidential","content":"44ZL  Party may request Commission to treat material as confidential\n\n (1) A party to an arbitration hearing may:\n\n (a) inform the Commission that, in the party’s opinion, a specified part of a document contains confidential commercial information; and\n\n (b) request the Commission not to give a copy of that part to another party.\n\n (2) On receiving a request, the Commission must:\n\n (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\n\n (b) ask the other party or parties whether there is any objection to the Commission complying with the request.\n\n (3) If there is an objection to the Commission complying with a request, the party objecting may inform the Commission of its objection and of the reasons for it.\n\n (4) After considering:\n\n (a) a request; and\n\n (b) any objection; and\n\n (c) any further submissions that any party has made in relation to the request;\n\nthe 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.","sortOrder":251},{"sectionNumber":"44ZM","sectionType":"section","heading":"Sections 18 and 19 do not apply to the Commission in an arbitration","content":"44ZM  Sections 18 and 19 do not apply to the Commission in an arbitration\n\n  Sections 18 and 19 do not apply to the Commission, as constituted for an arbitration.","sortOrder":252},{"sectionNumber":"44ZN","sectionType":"section","heading":"Parties to pay costs of an arbitration","content":"44ZN  Parties to pay costs of an arbitration\n\n  The regulations may provide for the Commission to:\n\n (a) charge the parties to an arbitration for its costs in conducting the arbitration; and\n\n (b) apportion the charge between the parties.","sortOrder":253},{"sectionNumber":"44ZNA","sectionType":"section","heading":"Joint arbitration hearings","content":"44ZNA  Joint arbitration hearings\n\nJoint arbitration hearing\n\n (1) If:\n\n (a) the Commission is arbitrating 2 or more access disputes at a particular time; and\n\n (b) one or more matters are common to those disputes;\n\nthe Chairperson may, by notice in writing, decide that the Commission must hold a joint arbitration hearing in respect of such of those disputes (the nominated disputes) as are specified in the notice.\n\n (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.\n\nConsulting the parties\n\n (3) Before doing so, the Chairperson must give each party to the arbitration of each nominated dispute a notice in writing:\n\n (a) specifying what the Chairperson is proposing to do; and\n\n (b) inviting the party to make a written submission on the proposal to the Chairperson within 14 days after the notice is given.\n\n (4) The Chairperson must have regard to any submission so made in deciding whether to do so. He or she may have regard to any other matter he or she considers relevant.\n\nDirections to presiding member\n\n (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.\n\nConstitution and procedure of Commission\n\n (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.\n\nNote: 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.\n\nRecord of proceedings etc.\n\n (7) The Commission as constituted for the purposes of the joint arbitration hearing may have regard to any record of the proceedings of the arbitration of any nominated dispute.\n\n (8) The Commission as constituted for the purposes of the arbitration of each nominated dispute may, for the purposes of making a determination in relation to that arbitration:\n\n (a) have regard to any record of the proceedings of the joint arbitration hearing; and\n\n (b) adopt any findings of fact made by the Commission as constituted for the purposes of the joint arbitration hearing.\n\nLegislation Act 2003\n\n (9) The following are not legislative instruments:\n\n (a) a notice made under subsection (1);\n\n (b) a direction given under subsection (5).","sortOrder":254},{"sectionNumber":"Subdivision DA","sectionType":"subdivision","heading":"Arbitration reports","content":"Subdivision DA—Arbitration reports","sortOrder":255},{"sectionNumber":"44ZNB","sectionType":"section","heading":"Arbitration reports","content":"44ZNB  Arbitration reports\n\n (1) The Commission must prepare a written report about a final determination it makes. It must publish, by electronic or other means, the report.\n\n (2) The report may include the whole or a part of the determination and the reasons for the determination or the part of the determination.\n\nReport must include certain matters\n\n (3) The report must set out the following matters:\n\n (a) the principles the Commission applied in making the determination;\n\n (b) the methodologies the Commission applied in making the determination and the reasons for the choice of the asset valuation methodology;\n\n (c) how the Commission took into account the matters mentioned in subsection 44X(1) in making the determination;\n\n (d) any matter the Commission took into account under subsection 44X(2) in making the determination and the reasons for doing so;\n\n (e) any information provided by the parties to the arbitration that was relevant to those principles or methodologies;\n\nNote: Confidentiality issues are dealt with in subsections (5) to (7).\n\n (f) any implications the Commission considers the determination has for persons seeking access to the service or to similar services in the future;\n\n (g) if applicable—the reasons for the determination dealing with matters that were already agreed between the parties to the arbitration at the time the access dispute was notified;\n\n (h) if applicable—the reasons for the access dispute being the subject of a joint arbitration hearing under section 44ZNA despite the objection of a party to the arbitration.\n\nReport may include other matters\n\n (4) The report may include any other matter that the Commission considers relevant.\n\nConfidentiality\n\n (5) The Commission must not include in the report any information the Commission decided not to give to a party to the arbitration under section 44ZL.\n\n (6) Before publishing the report, the Commission must give each party to the arbitration a notice in writing:\n\n (a) specifying what the Commission is proposing to publish; and\n\n (b) inviting the party to make a written submission to the Commission within 14 days after the notice is given identifying any information the party considers should not be published because of its confidential commercial nature.\n\n (7) The Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant.\n\nLegislation Act 2003\n\n (8) A report prepared under subsection (1) is not a legislative instrument.","sortOrder":256},{"sectionNumber":"44ZO","sectionType":"section","heading":"Operation of final determinations","content":"44ZO  Operation of final determinations\n\n (1) If none of the parties to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s final determination, the determination has effect 21 days after the determination is made.\n\n (2) If a party to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s final determination, the determination is of no effect until the Tribunal makes its determination on the review.\n\nBackdating\n\n (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).\n\nExample: 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.\n\n (4) The specified day must not be earlier than the following day:\n\n (a) if the third party and provider commenced negotiations on access to the service after the service became a declared service—the day on which the negotiations commenced;\n\n (b) if the third party and provider commenced negotiations on access to the service before the service became a declared service—the day on which the declaration began to operate.\n\nHowever, the specified day cannot be a day on which the third party did not have access to the service.\n\nOperation of interim determination\n\n (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.\n\nInterest\n\n (6) If:\n\n (a) a provision of a final determination is covered by subsection (3); and\n\n (b) the provision requires a party to the determination (the first party) to pay money to another party;\n\nthe 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:\n\n (c) beginning on the day specified under subsection (3); and\n\n (d) ending on the day on which the determination takes effect under subsection (1) or (2).\n\nGuidelines\n\n (7) In exercising the power conferred by subsection (3) or (6), the Commission must have regard to any guidelines in force under subsection (8). It may have regard to any other matter it considers relevant.\n\n (8) The Commission must, by legislative instrument, determine guidelines for the purposes of subsection (7).\n\n (9) The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (8) is made within 6 months after the commencement of this subsection.","sortOrder":258},{"sectionNumber":"44ZOA","sectionType":"section","heading":"Effect and duration of interim determinations","content":"44ZOA  Effect and duration of interim determinations\n\n (1) An interim determination takes effect on the day specified in the determination.\n\n (2) Unless sooner revoked, an interim determination continues in effect until the earliest of the following:\n\n (a) the notification of the access dispute is withdrawn under section 44T;\n\n (b) a final determination relating to the access dispute takes effect;\n\nNote: A backdated final determination may prevail over an interim determination: see subsection 44ZO(5).\n\n (c) an interim determination made by the Tribunal (while reviewing a final determination relating to the access dispute) takes effect.","sortOrder":259},{"sectionNumber":"44ZP","sectionType":"section","heading":"Review by Tribunal","content":"44ZP  Review by Tribunal\n\n (1) A party to a final determination may apply in writing to the Tribunal for a review of the determination.\n\n (2) The application must be made within 21 days after the Commission made the final determination.\n\n (3) A review by the Tribunal is a re‑arbitration of the access dispute based on the information, reports and things referred to in section 44ZZOAA.\n\nNote: There are time limits that apply to the Tribunal’s decision on the review: see section 44ZZOA.\n\n (4) For the purposes of the review, the Tribunal has the same powers as the Commission.\n\n (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.\n\n (5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.\n\n (5B) The Tribunal must:\n\n (a) give a copy of the notice to:\n\n (i) the person who applied for review; and\n\n (ii) the other party or parties to the final determination; and\n\n (iii) any other person who has been made a party to the proceedings for review by the Tribunal; and\n\n (b) publish, by electronic or other means, the notice.\n\n (6) The Tribunal may either affirm or vary the Commission’s determination.\n\n (7) The determination, as affirmed or varied by the Tribunal, is to be taken to be a determination of the Commission for all purposes of this Part (except this section).\n\n (8) The decision of the Tribunal takes effect from when it is made.","sortOrder":261},{"sectionNumber":"44ZQ","sectionType":"section","heading":"Provisions that do not apply in relation to a Tribunal review","content":"44ZQ  Provisions that do not apply in relation to a Tribunal review\n\n  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.","sortOrder":262},{"sectionNumber":"44ZR","sectionType":"section","heading":"Appeals to Federal Court from determinations of the Tribunal","content":"44ZR  Appeals to Federal Court from determinations of the Tribunal\n\n (1) A party to an arbitration may appeal to the Federal Court, on a question of law, from the decision of the Tribunal under section 44ZP.\n\n (2) An appeal by a person under subsection (1) must be instituted:\n\n (a) not later than the 28th day after the day on which the decision of the Tribunal is made or within such further period as the Federal Court (whether before or after the end of that day) allows; and\n\n (b) in accordance with the Rules of Court made under the Federal Court of Australia Act 1976.\n\n (3) The Federal Court must hear and determine the appeal and may make any order that it thinks appropriate.\n\n (4) The orders that may be made by the Federal Court on appeal include (but are not limited to):\n\n (a) an order affirming or setting aside the decision of the Tribunal; and\n\n (b) an order remitting the matter to be decided again by the Tribunal in accordance with the directions of the Federal Court.","sortOrder":263},{"sectionNumber":"44ZS","sectionType":"section","heading":"Operation and implementation of a determination that is subject to appeal","content":"44ZS  Operation and implementation of a determination that is subject to appeal\n\n (1) Subject to this section, the fact that an appeal is instituted in the Federal Court from a decision of the Tribunal does not affect the operation of the decision or prevent action being taken to implement the decision.\n\n (2) If an appeal is instituted in the Federal Court from a decision of the Tribunal, the Federal Court or a judge of the Federal Court may make any orders staying or otherwise affecting the operation or implementation of the decision of the Tribunal that the Federal Court or judge thinks appropriate to secure the effectiveness of the hearing and determination of the appeal.\n\n (3) If an order is in force under subsection (2) (including an order previously varied under this subsection), the Federal Court or a judge of the Federal Court may make an order varying or revoking the first‑mentioned order.\n\n (4) An order in force under subsection (2) (including an order previously varied under subsection (3)):\n\n (a) is subject to any conditions that are specified in the order; and\n\n (b) has effect until:\n\n (i) the end of any period for the operation of the order that is specified in the order; or\n\n (ii) the giving of a decision on the appeal;\n\n  whichever is earlier.","sortOrder":264},{"sectionNumber":"44ZT","sectionType":"section","heading":"Transmission of documents","content":"44ZT  Transmission of documents\n\n  If an appeal is instituted in the Federal Court:\n\n (a) the Tribunal must send to the Federal Court all documents that were before the Tribunal in connection with the matter to which the appeal relates; and\n\n (b) at the conclusion of the proceedings before the Federal Court in relation to the appeal, the Federal Court must return the documents to the Tribunal.","sortOrder":265},{"sectionNumber":"Subdivision G","sectionType":"subdivision","heading":"Variation and revocation of determinations","content":"Subdivision G—Variation and revocation of determinations","sortOrder":266},{"sectionNumber":"44ZU","sectionType":"section","heading":"Variation of final determinations","content":"44ZU  Variation of final determinations\n\n (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.\n\nNote: If the parties cannot agree on a variation, a new access dispute can be notified under section 44S.\n\n (2) Sections 44W and 44X apply to a variation under this section as if:\n\n (a) an access dispute arising out of the final determination had been notified when the application was made to the Commission for the variation of the determination; and\n\n (b) the variation were the making of a final determination in the terms of the varied determination.","sortOrder":267},{"sectionNumber":"44ZUA","sectionType":"section","heading":"Variation and revocation of interim determinations","content":"44ZUA  Variation and revocation of interim determinations\n\n (1) The Commission may, by writing, vary or revoke an interim determination.\n\n (2) The Commission must, by writing, revoke an interim determination if requested to do so by the parties to the determination.","sortOrder":268},{"sectionNumber":"44ZV","sectionType":"section","heading":"Constitutional limits on operation of this Division","content":"44ZV  Constitutional limits on operation of this Division\n\n  This Division does not apply to a contract unless:\n\n (a) the contract provides for access to a declared service; and\n\n (b) the contract was made after the service was declared; and\n\n (c) the parties to the contract are the provider of the service and a third party; and\n\n (d) at least one of the following conditions is met:\n\n (i) the provider is a corporation (or a partnership or joint venture consisting wholly of corporations);\n\n (ii) the third party is a corporation;\n\n (iii) the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.","sortOrder":270},{"sectionNumber":"44ZW","sectionType":"section","heading":"Registration of contract","content":"44ZW  Registration of contract\n\n (1) On application by all the parties to a contract, the Commission must:\n\n (a) register the contract by entering the following details on a public register:\n\n (i) the names of the parties to the contract;\n\n (ii) the service to which the contract relates;\n\n (iii) the date on which the contract was made; or\n\n (b) decide not to register the contract.\n\n (2) In deciding whether to register a contract, the Commission must take into account:\n\n (aa) the objects of this Part; and\n\n (a) the public interest, including the public interest in having competition in markets (whether or not in Australia); and\n\n (b) the interests of all persons who have rights to use the service to which the contract relates.\n\n (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.\n\n (3) The Commission must publish a decision not to register a contract.\n\n (4) If the Commission publishes a decision not to register a contract, it must give the parties to the contract reasons for the decision when it publishes the decision.","sortOrder":271},{"sectionNumber":"44ZX","sectionType":"section","heading":"Review of decision not to register contract","content":"44ZX  Review of decision not to register contract\n\n (1) If the Commission decides not to register a contract, a party to the contract may apply in writing to the Tribunal for review of the decision.\n\n (2) An application for review must be made within 21 days after publication of the Commission’s decision.\n\n (3) The review by the Tribunal is a re‑consideration of the matter based on the information, reports and things referred to in section 44ZZOAA.\n\nNote: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).\n\n (4) For the purposes of the review, the Tribunal has the same powers as the Commission.\n\n (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.\n\n (5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.\n\n (5B) The Tribunal must:\n\n (a) give a copy of the notice to:\n\n (i) the person who applied for review; and\n\n (ii) the other party or parties to the contract; and\n\n (iii) any other person who has been made a party to the proceedings for review by the Tribunal; and\n\n (b) publish, by electronic or other means, the notice; and\n\n (6) The Tribunal may either:\n\n (a) affirm the Commission’s decision; or\n\n (b) register the contract.","sortOrder":272},{"sectionNumber":"44ZY","sectionType":"section","heading":"Effect of registration of contract","content":"44ZY  Effect of registration of contract\n\n  The parties to a contract that has been registered:\n\n (a) may enforce the contract under Division 7 as if the contract were a determination of the Commission under section 44V and they were parties to the determination; and\n\n (b) cannot enforce the contract by any other means.","sortOrder":273},{"sectionNumber":"Division 5","sectionType":"division","heading":"Hindering access to declared services","content":"Division 5—Hindering access to declared services","sortOrder":274},{"sectionNumber":"44ZZ","sectionType":"section","heading":"Prohibition on hindering access to declared services","content":"44ZZ  Prohibition on hindering access to declared services\n\n (1) The provider or a user of a service to which a third party has access under a determination, or a body corporate related to the provider or a user of the service, must not engage in conduct for the purpose of preventing or hindering the third party’s access to the service under the determination.\n\n (2) A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or from other relevant circumstances. This subsection does not limit the manner in which the purpose of a person may be established for the purposes of subsection (1).\n\n (3) In this section, a user of a service includes a person who has a right to use the service.","sortOrder":275},{"sectionNumber":"Division 6","sectionType":"division","heading":"Access undertakings and access codes for services","content":"Division 6—Access undertakings and access codes for services","sortOrder":276},{"sectionNumber":"44ZZA","sectionType":"section","heading":"Access undertakings by providers","content":"44ZZA  Access undertakings by providers\n\n (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.\n\nNote: The following are examples of the kinds of things that might be dealt with in the undertaking:\n\n(a) terms and conditions of access to the service;\n\n(b) procedures for determining terms and conditions of access to the service;\n\n(c) an obligation on the provider not to hinder access to the service;\n\n(d) an obligation on the provider to implement a particular business structure;\n\n(e) an obligation on the provider to provide information to the Commission or to another person;\n\n(f) an obligation on the provider to comply with decisions of the Commission or another person in relation to matters specified in the undertaking;\n\n(g) an obligation on the provider to seek a variation of the undertaking in specified circumstances.\n\n (2) The undertaking must specify the expiry date of the undertaking.\n\n (3) The Commission may accept the undertaking, if it thinks it appropriate to do so having regard to the following matters:\n\n (aa) the objects of this Part;\n\n (ab) the pricing principles specified in section 44ZZCA;\n\n (a) the legitimate business interests of the provider;\n\n (b) the public interest, including the public interest in having competition in markets (whether or not in Australia);\n\n (c) the interests of persons who might want access to the service;\n\n (da) whether the undertaking is in accordance with an access code that applies to the service;\n\n (e) any other matters that the Commission thinks are relevant.\n\nNote 1: There are grounds on which the Commission may reject the undertaking if it contains, or should contain, fixed principles: see section 44ZZAAB.\n\nNote 2: The Commission may defer consideration of the undertaking if it is also arbitrating an access dispute: see section 44ZZCB.\n\n (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.\n\n (3AB) The Commission may reject the undertaking if it incorporates one or more amendments (see subsection 44ZZAAA(5)) and the Commission is satisfied that the amendment or amendments are of a kind, are made at a time, or are made in a manner that:\n\n (a) unduly prejudices anyone the Commission considers has a material interest in the undertaking; or\n\n (b) unduly delays the process for considering the undertaking.\n\n (3A) The Commission must not accept the undertaking unless:\n\n (a) the provider, or proposed provider, is a corporation (or a partnership or joint venture consisting wholly of corporations); or\n\n (b) the undertaking provides for access only to third parties that are corporations; or\n\n (c) the undertaking provides for access that is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.\n\n (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.\n\n (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.\n\n (6B) The Commission may accept the undertaking even if the service is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service.\n\n (7) The provider may:\n\n (a) withdraw the application given under subsection (1) at any time before the Commission makes a decision on whether to accept the application; and\n\n (b) withdraw or vary the undertaking at any time after it has been accepted by the Commission, but only with the consent of the Commission.\n\nThe 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).\n\nNote 1: There are time limits that apply to a decision of the Commission under this section: see section 44ZZBC.\n\nNote 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD.\n\nNote 3: The Commission must publish its decision: see section 44ZZBE.","sortOrder":278},{"sectionNumber":"44ZZAAA","sectionType":"section","heading":"Proposed amendments to access undertakings","content":"44ZZAAA  Proposed amendments to access undertakings\n\nCommission may give an amendment notice in relation to an undertaking\n\n (1) Before deciding whether to accept an undertaking given to it under subsection 44ZZA(1) by a person who is, or expects to be, the provider of a service, the Commission may give the person an amendment notice in relation to the undertaking.\n\n (2) An amendment notice is a notice in writing that specifies:\n\n (a) the nature of the amendment or amendments (the proposed amendment or amendments) that the Commission proposes be made to the undertaking; and\n\n (b) the Commission’s reasons for the proposed amendment or amendments; and\n\n (c) the period (the response period) within which the person may respond to the notice, which must be at least 14 days after the day the notice was given to the person.\n\n (3) The Commission may publish, by electronic or other means, the amendment notice.\n\n (4) The Commission may give more than one amendment notice in relation to an undertaking.\n\nPerson may give a revised undertaking in response to notice\n\n (5) If a person receives an amendment notice, the person may, within the response period, respond to the notice by giving a revised undertaking to the Commission that incorporates one or more amendments.\n\n (6) If the revised undertaking incorporates one or more amendments that the Commission considers are not of the nature proposed in the amendment notice and do not address the reasons for the proposed amendments given in the amendment notice, the Commission must not accept the revised undertaking and must return it to the person within 21 days of receiving it.\n\n (7) If the person gives a revised undertaking under subsection (5) and the revised undertaking is not returned to the person under subsection (6), the revised undertaking is taken, after the time it is given to the Commission, to be the undertaking given under section 44ZZA for the purposes of this Part.\n\n (8) The person is taken to have not agreed to the proposed amendment or amendments if the person does not respond within the response period.\n\nCommission not required to accept revised undertaking\n\n (9) The Commission is not required to accept the revised undertaking under section 44ZZA.\n\nNo duty to propose amendments\n\n (10) In considering whether to accept an undertaking, the Commission does not have a duty to consider whether to propose one or more amendments to the undertaking.\n\nNotice of proposed amendment is not a legislative instrument\n\n (11) A notice given under subsection (1) is not a legislative instrument.","sortOrder":279},{"sectionNumber":"44ZZAAB","sectionType":"section","heading":"Access undertakings containing fixed principles","content":"44ZZAAB  Access undertakings containing fixed principles\n\nAccess undertakings may contain fixed principles\n\n (1) An access undertaking given to the Commission under subsection 44ZZA(1) may include one or more terms that, under the undertaking, are fixed for a specified period.\n\n (2) Each of the terms is a fixed principle and the specified period is a fixed period. Different periods may be specified for different fixed principles.\n\n (3) The fixed period must:\n\n (a) start:\n\n (i) when the access undertaking comes into operation; or\n\n (ii) at a later time ascertained in accordance with the undertaking; and\n\n (b) extend beyond the expiry date of the undertaking.\n\nConsideration of fixed principles\n\n (4) The Commission may reject the undertaking if it:\n\n (a) includes a term that is not a fixed principle and that the Commission considers should be a fixed principle; or\n\n (b) includes a fixed principle that the Commission considers should not be fixed; or\n\n (c) includes a fixed principle that the Commission considers should be fixed for a period that is different from the period specified in the undertaking.\n\nHowever, the Commission must not reject the undertaking solely on the basis that it is consistent with a fixed principle that is included in the undertaking in compliance with subsection (6).\n\nFixed principles must be carried over to later undertakings\n\n (5) Subsection (6) applies if:\n\n (a) the Commission accepts an undertaking (the earlier undertaking) in connection with the provision of access to a service that includes a fixed principle; and\n\n (b) an undertaking (the later undertaking) is given to the Commission in connection with the provision of access to the service within the fixed period for the fixed principle; and\n\n (c) at the time the later undertaking is given:\n\n (i) the fixed principle has not been revoked under subsection (7); and\n\n (ii) the earlier undertaking has not been varied under subsection 44ZZA(7) so that the fixed principle is no longer a term of the earlier undertaking.\n\n (6) The Commission must not accept the later undertaking under section 44ZZA unless the undertaking includes a term that is the same as the fixed principle.\n\nVariation or revocation of fixed principles when no undertaking is in operation\n\n (7) If there is no access undertaking in operation in connection with the provision of access to a service, the provider may revoke or vary a fixed principle that relates to the service (including the fixed period for the principle), but only with the consent of the Commission. The Commission may consent to the revocation or variation of the fixed principle if it thinks it appropriate to do so having regard to the matters in subsection 44ZZA(3).\n\nNote: Subsection 44ZZA(7) contains provision for fixed principles to be varied or revoked in the situation where there is an access undertaking in operation. This may include a variation of the fixed period for the fixed principle.\n\nAlteration of fixed principles\n\n (8) If an undertaking that is accepted by the Commission contains one or more fixed principles, the undertaking is accepted on the basis that:\n\n (a) the principle may be varied or revoked under subsection (7) or 44ZZA(7); and\n\n (b) the principle may be cancelled, revoked, terminated or varied by or under later legislation; and\n\n (c) no compensation is payable if the principle is cancelled, revoked, terminated or varied as mentioned in any of the above paragraphs.\n\n (9) Subsection (8) does not, by implication, affect the interpretation of any other provision of this Act.","sortOrder":280},{"sectionNumber":"44ZZAA","sectionType":"section","heading":"Access codes prepared by industry bodies","content":"44ZZAA  Access codes prepared by industry bodies\n\n (1) An industry body may give a written code to the Commission setting out rules for access to a service.\n\n (2) The code must specify the expiry date of the code.\n\n (3) The Commission may accept the code, if it thinks it appropriate to do so having regard to the following matters:\n\n (aa) the objects of this Part;\n\n (ab) the pricing principles specified in section 44ZZCA;\n\n (a) the legitimate business interests of providers who might give undertakings in accordance with the code;\n\n (b) the public interest, including the public interest in having competition in markets (whether or not in Australia);\n\n (c) the interests of persons who might want access to the service covered by the code;\n\n (e) any matters specified in regulations made for the purposes of this subsection;\n\n (f) any other matters that the Commission thinks are relevant.\n\n (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.\n\n (6) The industry body may:\n\n (a) withdraw the code given under subsection (1) at any time before the Commission makes a decision whether to accept the code; and\n\n (b) withdraw or vary the code at any time after it has been accepted by the Commission, but only with the consent of the Commission.\n\nThe 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).\n\nNote: The Commission may rely on industry body consultations before giving its consent: see section 44ZZAB.\n\n (7) If the industry body that gave the code to the Commission has ceased to exist, a withdrawal or variation under subsection (6) may be made by a body or association prescribed by the regulations as a replacement for the original industry body.\n\n (8) In this section:\n\ncode means a set of rules (which may be in general terms or detailed terms).\n\nindustry 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.\n\nNote 1: There are time limits that apply to a decision of the Commission under this section: see section 44ZZBC.\n\nNote 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD.\n\nNote 3: The Commission must publish its decision: see section 44ZZBE.","sortOrder":281},{"sectionNumber":"44ZZAB","sectionType":"section","heading":"Commission may rely on industry body consultations","content":"44ZZAB  Commission may rely on industry body consultations\n\n (1) The Commission may accept a code if the industry body has done the following before giving the code to the Commission under subsection 44ZZAA(1):\n\n (a) published the code or a draft of the code and invited people to make submissions to the industry body on the code or draft;\n\n (b) specified the effect of this subsection and subsection (2) when it published the code or draft;\n\n (c) considered any submissions that were received within the time limit specified by the industry body when it published the code or draft.\n\n (2) In deciding whether to accept the code, the Commission may consider any submission referred to in paragraph (1)(c).\n\n (3) Before consenting to a variation or withdrawal of a code under subsection 44ZZAA(6), the Commission may rely on:\n\n (a) publication of the variation or notice of the withdrawal by the industry body, including specification of the effect of this subsection and subsection (4); and\n\n (b) consideration by the industry body of any submissions that were received within the time limit specified by the industry body when it published the variation or notice.\n\n (4) In deciding whether to consent to the variation or withdrawal, the Commission may consider any submission referred to in paragraph (3)(b).\n\n (5) In this section:\n\ncode has the same meaning as it has in section 44ZZAA.\n\nindustry body has the same meaning as it has in section 44ZZAA.","sortOrder":282},{"sectionNumber":"44ZZBA","sectionType":"section","heading":"When access undertakings and access codes come into operation","content":"44ZZBA  When access undertakings and access codes come into operation\n\nAcceptance of access undertakings or access codes\n\n (1) If the Commission accepts an access undertaking or an access code, it comes into operation at:\n\n (a) if, within 21 days after the Commission publishes its decision, no person has applied to the Tribunal for review of the decision—the end of that period; or\n\n (b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision—the time of the Tribunal’s decision.\n\n (2) If the Tribunal decides under paragraph 44ZZBF(7)(e) to accept an access undertaking or access code, it comes into operation at the time of the Tribunal’s decision.\n\n (3) An access undertaking or access code continues in operation until its expiry date, unless it is earlier withdrawn.\n\nNote: The period for which an access undertaking or access code is in operation may be extended: see section 44ZZBB.\n\nWithdrawal or variation of access undertakings or access codes\n\n (4) If the Commission consents to the withdrawal or variation of an access undertaking or an access code, the withdrawal or variation comes into operation at:\n\n (a) if, within 21 days after the Commission publishes its decision, no person has applied to the Tribunal for review of the decision—the end of that period; or\n\n (b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision—the time of the Tribunal’s decision.\n\n (5) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent to the withdrawal or variation of an access undertaking or access code, the withdrawal or variation comes into operation at the time of the Tribunal’s decision.\n\nRevocation or variation of fixed principles in access undertakings\n\n (6) If the Commission consents to the revocation or variation of a fixed principle that is included as a term of an access undertaking under subsection 44ZZAAB(7), the revocation or variation comes into operation at:\n\n (a) if, within 21 days after the Commission publishes its decision, no person has applied to the Tribunal for review of the decision—the end of that period; or\n\n (b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision—the time of the Tribunal’s decision.\n\n (7) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent to the revocation or variation of a fixed principle that is included as term of an access undertaking, the revocation or variation comes into operation at the time of the Tribunal’s decision.","sortOrder":284},{"sectionNumber":"44ZZBB","sectionType":"section","heading":"Extensions of access undertakings and access codes","content":"44ZZBB  Extensions of access undertakings and access codes\n\nAccess undertakings\n\n (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.\n\nNote: 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.\n\n (2) The provider of the service must specify in the application a proposed extension period.\n\n (3) The Commission may, by notice in writing, extend the period for which the undertaking is in operation if it thinks it appropriate to do so having regard to the matters mentioned in subsection 44ZZA(3). The notice must specify the extension period.\n\nAccess codes\n\n (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.\n\nNote: 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.\n\n (5) The industry body must specify in the application a proposed extension period.\n\n (6) The Commission may, by notice in writing, extend the period for which the code is in operation if it thinks it appropriate to do so having regard to the matters mentioned in subsection 44ZZAA(3). The notice must specify the extension period.\n\n (7) If the industry body that gave the code to the Commission has ceased to exist, an application under subsection (4) may be made by a body or association referred to in subsection 44ZZAA(7).\n\nMultiple extensions\n\n (8) The Commission may extend the period for which an access undertaking or an access code is in operation more than once.\n\nNote 1: There are time limits that apply to a decision of the Commission under this section: see section 44ZZBC.\n\nNote 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD.\n\nNote 3: The Commission must publish its decision: see section 44ZZBE.","sortOrder":286},{"sectionNumber":"44ZZBC","sectionType":"section","heading":"Time limit for Commission decisions","content":"44ZZBC  Time limit for Commission decisions\n\nCommission to make decision on application within 180 days\n\n (1) The Commission must make a decision on an access undertaking application or an access code application within the period of 180 days (the expected period) starting at the start of the day the application is received.\n\nStopping the clock\n\n (2) In working out the expected period in relation to an access undertaking application or an access code application, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:\n\n (a) starting on the day referred to in column 2 of the item; and\n\n (b) ending on the day referred to in column 3 of the item.\n\n\n\n- Stopping the clock\n- Item Column 1Situation Column 2Start day Column 3End day\n- 1 An agreement is made in relation to the application under subsection (4) The first day of the period specified in the agreement The last day of the period specified in the agreement\n- 2 A notice is given under subsection 44ZZBCA(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information\n- 3 A notice is published under subsection 44ZZBD(1) inviting public submissions in relation to the application The day on which the notice is published The day specified in the notice as the day by which submissions may be made\n- 4 A decision is published under subsection 44ZZCB(4) deferring consideration of whether to accept the access undertaking, in whole or in part, while the Commission arbitrates an access dispute The day on which the decision is published The day on which the final determination in relation to the arbitration of the access dispute is made\n\n\n (3) Despite subsection (2), do not disregard any day more than once.\n\nStopping the clock by agreement\n\n (4) The Commission and:\n\n (a) for an access undertaking application—the provider of the service; and\n\n (b) for an access code application—the industry body or its replacement;\n\nmay agree in writing that a specified period is to be disregarded in working out the expected period.\n\n (5) The Commission must publish, by electronic or other means, the agreement.\n\nDeemed final determination\n\n (6) If the Commission does not publish under section 44ZZBE an access undertaking decision or an access code decision within the expected period, it is taken, immediately after the end of the expected period, to have:\n\n (a) made a decision to not accept the application; and\n\n (b) published its decision under section 44ZZBE and its reasons for that decision.","sortOrder":288},{"sectionNumber":"44ZZBCA","sectionType":"section","heading":"Commission may request information","content":"44ZZBCA  Commission may request information\n\n (1) The Commission may give a person a written notice requesting the person give to the Commission, within a specified period, information of a kind specified in the notice that the Commission considers may be relevant to making a decision on an access undertaking application or an access code application.\n\n (2) The Commission must:\n\n (a) give a copy of the notice to:\n\n (i) in the case of an access undertaking application—the provider of the service (unless the provider is the person); and\n\n (ii) in the case of an access code application—the industry body that gave the application to the Commission (unless the body is the person); and\n\n (b) publish, by electronic or other means, the notice.\n\n (3) In making a determination, the Commission:\n\n (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and\n\n (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended.","sortOrder":289},{"sectionNumber":"44ZZBD","sectionType":"section","heading":"Commission may invite public submissions","content":"44ZZBD  Commission may invite public submissions\n\nInvitation\n\n (1) The Commission may publish, by electronic or other means, a notice inviting public submissions on an access undertaking application or an access code application if it considers that it is appropriate and practicable to do so.\n\n (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).\n\nConsideration of submissions\n\n (3) Subject to subsection (6), in making its decision on the application, the Commission:\n\n (a) must have regard to any submission made on or before the day specified in the notice; and\n\n (b) may disregard any submission made after the day specified in the notice.\n\nCommission may make submissions publicly available\n\n (4) The Commission may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.\n\nConfidentiality\n\n (5) A person may, at the time of making a submission, request that the Commission:\n\n (a) not make the whole or a part of the submission available under subsection (4); and\n\n (b) not publish or make available the whole or a part of the submission under section 44ZZBE;\n\nbecause of the confidential commercial information contained in the submission.\n\n (6) If the Commission refuses such a request:\n\n (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\n\n (b) for an oral submission—the person who made it may inform the Commission that the person withdraws the whole or the part of it; and\n\n (c) if the Commission returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Commission must not:\n\n (i) make the whole or the part of the submission available under subsection (4); and\n\n (ii) publish or make available the whole or the part of the submission under section 44ZZBE; and\n\n (iii) have regard to the whole or the part of the submission in making its decision on the application.","sortOrder":290},{"sectionNumber":"44ZZBE","sectionType":"section","heading":"Commission must publish its decisions","content":"44ZZBE  Commission must publish its decisions\n\n (1) The Commission must publish, by electronic or other means, an access undertaking decision or an access code decision and its reasons for the decision.\n\n (2) The Commission must give a copy of the publication to:\n\n (a) for an access undertaking decision—the provider of the service; or\n\n (b) for an access code decision—the industry body or its replacement.\n\nConsultation\n\n (3) Before publishing under subsection (1), the Commission may give any one or more of the following persons:\n\n (a) for an access undertaking decision—the provider of the service;\n\n (b) for an access code decision—the industry body or its replacement;\n\n (c) in any case—any other person the Commission considers appropriate;\n\na notice in writing:\n\n (d) specifying what the Commission is proposing to publish; and\n\n (e) inviting the person to make a written submission to the Commission within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.\n\n (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.","sortOrder":291},{"sectionNumber":"44ZZBF","sectionType":"section","heading":"Review of decisions","content":"44ZZBF  Review of decisions\n\nApplication\n\n (1) A person whose interests are affected by an access undertaking decision or an access code decision may apply in writing to the Tribunal for review of the decision.\n\n (2) The person must apply for review within 21 days after the Commission publishes its decision.\n\nReview\n\n (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA.\n\nNote: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).\n\n (4) For the purposes of the review, the Tribunal has the same powers as the Commission (other than the power to propose amendments under section 44ZZAAA).\n\n (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.\n\n (5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.\n\n (5B) The Tribunal must:\n\n (a) give a copy of the notice to:\n\n (i) the person who applied for review; and\n\n (ii) the provider of the service; and\n\n (iii) any other person who has been made a party to the proceedings for review by the Tribunal; and\n\n (b) publish, by electronic or other means, the notice.\n\nTribunal’s decision\n\n (6) If the Commission:\n\n (a) accepted an access undertaking or access code; or\n\n (b) consented to the withdrawal or variation of an access undertaking or access code; or\n\n (ba) consented to the revocation or variation of a fixed principle under subsection 44ZZAAB(7); or\n\n (c) extended the period for which an access undertaking or access code is in operation;\n\nthe Tribunal must, by writing, affirm or set aside the Commission’s decision.\n\n (7) If the Commission:\n\n (a) rejected an access undertaking or access code; or\n\n (b) refused to consent to the withdrawal or variation of an access undertaking or access code; or\n\n (ba) refused to consent to the revocation or variation of a fixed principle under subsection 44ZZAAB(7); or\n\n (c) refused to extend the period for which an access undertaking or access code is in operation;\n\nthe Tribunal must, by writing:\n\n (d) affirm the Commission’s decision; or\n\n (e) set aside the Commission’s decision and accept the undertaking or code, consent to the withdrawal or variation of the undertaking or code, consent to the revocation or variation of the fixed principle or extend the period for which the undertaking or code is in operation.","sortOrder":293},{"sectionNumber":"44ZZC","sectionType":"section","heading":"Register of access undertakings and access codes","content":"44ZZC  Register of access undertakings and access codes\n\n (1) The Commission must maintain a public register that includes all access undertakings and access codes that have been accepted by the Commission, including those that are no longer in operation.\n\n (1A) For the purposes of subsection (1), if an access undertaking includes one or more fixed principles, the register must also include details of the fixed principles, including their fixed periods.\n\n (2) The register must include all variations of access undertakings and access codes.\n\n (3) The register must also include details of all extensions of the period for which an access undertaking or an access code is in operation.","sortOrder":295},{"sectionNumber":"Division 6A","sectionType":"division","heading":"Pricing principles for access disputes and access undertakings or codes","content":"Division 6A—Pricing principles for access disputes and access undertakings or codes","sortOrder":296},{"sectionNumber":"44ZZCA","sectionType":"section","heading":"Pricing principles for access disputes and access undertakings or codes","content":"44ZZCA  Pricing principles for access disputes and access undertakings or codes\n\n  The pricing principles relating to the price of access to a service are:\n\n (a) that regulated access prices should:\n\n (i) be set so as to generate expected revenue for a regulated service or services that is at least sufficient to meet the efficient costs of providing access to the regulated service or services; and\n\n (ii) include a return on investment commensurate with the regulatory and commercial risks involved; and\n\n (b) that the access price structures should:\n\n (i) allow multi‑part pricing and price discrimination when it aids efficiency; and\n\n (ii) not allow a vertically integrated access provider to set terms and conditions that discriminate in favour of its downstream operations, except to the extent that the cost of providing access to other operators is higher; and\n\n (c) that access pricing regimes should provide incentives to reduce costs or otherwise improve productivity.\n\nNote: 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.","sortOrder":297},{"sectionNumber":"Division 6B","sectionType":"division","heading":"Overlap among determinations, registered contracts, access undertakings and Tribunal review","content":"Division 6B—Overlap among determinations, registered contracts, access undertakings and Tribunal review","sortOrder":298},{"sectionNumber":"44ZZCB","sectionType":"section","heading":"Deferring access disputes or access undertakings","content":"44ZZCB  Deferring access disputes or access undertakings\n\n (1) If, at a particular time, the Commission is:\n\n (a) arbitrating an access dispute under Division 3 relating to one or more matters of access to a declared service; and\n\n (b) considering whether to accept an access undertaking relating to the service and to one or more of those matters;\n\nthen the Commission may, by notice in writing, decide to:\n\n (c) defer arbitrating the access dispute, in whole or in part, while it considers the access undertaking; or\n\n (d) defer considering whether to accept the access undertaking, in whole or in part, while it arbitrates the access dispute.\n\nDeferral of arbitration of access dispute\n\n (2) If:\n\n (a) the Commission defers arbitrating the access dispute; and\n\n (b) the Commission then accepts the access undertaking and it comes into operation;\n\nthen 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.\n\nNote: 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.\n\nDeferral of consideration of access undertaking\n\n (3) If:\n\n (a) the Commission defers considering whether to accept the access undertaking; and\n\n (b) the Commission then makes a final determination in relation to the arbitration of the access dispute;\n\nthen the Commission must resume considering whether to accept the access undertaking.\n\nPublication\n\n (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.\n\nGuidelines\n\n (5) In exercising the power conferred by subsection (1), the Commission must have regard to:\n\n (a) the fact that the access undertaking will, if accepted, apply generally to access seekers and a final determination relating to the access dispute will only apply to the parties to the arbitration; and\n\n (b) any guidelines in force under subsection (6).\n\nIt may have regard to any other matter it considers relevant.\n\n (6) The Commission must, by legislative instrument, determine guidelines for the purposes of subsection (5).\n\n (7) The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (6) is made within 6 months after the commencement of this subsection.\n\nLegislation Act 2003\n\n (8) A notice made under subsection (1) is not a legislative instrument.","sortOrder":299},{"sectionNumber":"44ZZCBA","sectionType":"section","heading":"Deferral of arbitration if review is underway","content":"44ZZCBA  Deferral of arbitration if review is underway\n\nCommission may defer arbitration if declaration not stayed\n\n (1) If:\n\n (a) the Commission is arbitrating an access dispute relating to one or more matters of access to a declared service; and\n\n (b) an application for review of the declaration of the service has been made under subsection 44K(1); and\n\n (c) the Tribunal does not make an order under section 44KA staying the operation of the declaration;\n\nthen the Commission may, by notice in writing to each party to the arbitration, decide to defer arbitrating the access dispute until the Tribunal has made its decision on the review if it considers it appropriate to do so.\n\nCommission must defer arbitration if declaration stayed\n\n (2) If:\n\n (a) the Commission is arbitrating an access dispute relating to one or more matters of access to a declared service; and\n\n (b) an application for review of the declaration of the service has been made under subsection 44K(1); and\n\n (c) the Tribunal makes an order under section 44KA staying the operation of the declaration;\n\nthen the Commission must, by notice in writing to each party to the arbitration, defer arbitrating the access dispute until the Tribunal has made its decision on the review.\n\nResumption of arbitration if declaration affirmed\n\n (3) If the Commission defers arbitrating the access dispute and the Tribunal affirms the declaration, the Commission must resume arbitrating the dispute.\n\nTermination of arbitration if declaration varied or set aside\n\n (4) If the Commission defers arbitrating the access dispute and the Tribunal sets aside or varies the declaration, the Commission must terminate the arbitration.\n\n (5) If:\n\n (a) an arbitration is terminated under subsection (4) or section 44YA; and\n\n (b) an access dispute is notified under section 44S in relation to access to the same declared service; and\n\n (c) the parties to the dispute are the same parties to the terminated arbitration;\n\nthen the Commission may have regard to any record made in the course of the terminated arbitration if it considers it appropriate to do so.\n\nNotices are not legislative instruments\n\n (6) A notice given under subsection (1) or (2) is not a legislative instrument.","sortOrder":300},{"sectionNumber":"44ZZCC","sectionType":"section","heading":"Overlap between determinations and access undertakings","content":"44ZZCC  Overlap between determinations and access undertakings\n\n  If, at a particular time:\n\n (a) a final determination is in operation in relation to a declared service; and\n\n (b) an access undertaking is in operation in relation to the service;\n\nthe 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.","sortOrder":301},{"sectionNumber":"44ZZCD","sectionType":"section","heading":"Overlap between registered contracts and access undertakings","content":"44ZZCD  Overlap between registered contracts and access undertakings\n\n  If, at a particular time:\n\n (a) a contract is registered under Division 4 in relation to a declared service; and\n\n (b) an access undertaking is in operation in relation to the service;\n\nthe 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.","sortOrder":302},{"sectionNumber":"Division 7","sectionType":"division","heading":"Enforcement and remedies","content":"Division 7—Enforcement and remedies","sortOrder":303},{"sectionNumber":"44ZZD","sectionType":"section","heading":"Enforcement of determinations","content":"44ZZD  Enforcement of determinations\n\n (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:\n\n (a) an order granting an injunction on such terms as the Court thinks appropriate:\n\n (i) restraining the other party from engaging in the conduct; or\n\n (ii) if the conduct involves refusing or failing to do something—requiring the other party to do that thing;\n\n (b) an order directing the other party to compensate the applicant for loss or damage suffered as a result of the contravention;\n\n (c) any other order that the Court thinks appropriate.\n\n (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.\n\n (3) A reference in this section to a person involved in the contravention is a reference to a person who has:\n\n (a) aided, abetted, counselled or procured the contravention; or\n\n (b) induced the contravention, whether through threats or promises or otherwise; or\n\n (c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or\n\n (d) conspired with others to effect the contravention.","sortOrder":304},{"sectionNumber":"44ZZE","sectionType":"section","heading":"Enforcement of prohibition on hindering access","content":"44ZZE  Enforcement of prohibition on hindering access\n\n (1) If the Federal Court is satisfied, on the application of any person, that another person (the obstructor) has engaged, is engaging, or is proposing to engage in conduct constituting a contravention of section 44ZZ, the Court may make all or any of the following orders:\n\n (a) an order granting an injunction on such terms as the Court thinks appropriate:\n\n (i) restraining the obstructor from engaging in the conduct; or\n\n (ii) if the conduct involves refusing or failing to do something—requiring the obstructor to do that thing;\n\n (b) an order directing the obstructor to compensate a person who has suffered loss or damage as a result of the contravention;\n\n (c) any other order that the Court thinks appropriate.\n\n (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.\n\n (3) The grounds on which the Court may decide not to make an order under this section include the ground that Divisions 2 and 3 provide a more appropriate way of dealing with the issue of the applicant’s access to the service concerned.\n\n (4) A reference in this section to a person involved in the contravention is a reference to a person who has:\n\n (a) aided, abetted, counselled or procured the contravention; or\n\n (b) induced the contravention, whether through threats or promises or otherwise; or\n\n (c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or\n\n (d) conspired with others to effect the contravention.","sortOrder":305},{"sectionNumber":"44ZZF","sectionType":"section","heading":"Consent injunctions","content":"44ZZF  Consent injunctions\n\n  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.","sortOrder":306},{"sectionNumber":"44ZZG","sectionType":"section","heading":"Interim injunctions","content":"44ZZG  Interim injunctions\n\n (1) The Federal Court may grant an interim injunction pending determination of an application under section 44ZZD or 44ZZE.\n\n (2) If the Commission makes an application under section 44ZZE to the Federal Court for an injunction, the Court must not require the Commission or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.","sortOrder":307},{"sectionNumber":"44ZZH","sectionType":"section","heading":"Factors relevant to granting a restraining injunction","content":"44ZZH  Factors relevant to granting a restraining injunction\n\n  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:\n\n (a) it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or\n\n (b) the person has previously engaged in conduct of that kind; or\n\n (c) there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.","sortOrder":308},{"sectionNumber":"44ZZI","sectionType":"section","heading":"Factors relevant to granting a mandatory injunction","content":"44ZZI  Factors relevant to granting a mandatory injunction\n\n  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:\n\n (a) it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or\n\n (b) the person has previously refused or failed to do that thing; or\n\n (c) there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that thing.","sortOrder":309},{"sectionNumber":"44ZZJ","sectionType":"section","heading":"Enforcement of access undertakings","content":"44ZZJ  Enforcement of access undertakings\n\n (1) If the Commission thinks that the provider of an access undertaking in operation under Division 6 has breached any of its terms, the Commission may apply to the Federal Court for an order under subsection (2).\n\n (2) If the Federal Court is satisfied that the provider has breached a term of the undertaking, the Court may make all or any of the following orders:\n\n (a) an order directing the provider to comply with that term of the undertaking;\n\n (b) an order directing the provider to compensate any other person who has suffered loss or damage as a result of the breach;\n\n (c) any other order that the Court thinks appropriate.","sortOrder":310},{"sectionNumber":"44ZZK","sectionType":"section","heading":"Discharge or variation of injunction or other order","content":"44ZZK  Discharge or variation of injunction or other order\n\n  The Federal Court may discharge or vary an injunction or order granted under this Division.","sortOrder":311},{"sectionNumber":"Division 8","sectionType":"division","heading":"Miscellaneous","content":"Division 8—Miscellaneous","sortOrder":312},{"sectionNumber":"44ZZL","sectionType":"section","heading":"Register of determinations","content":"44ZZL  Register of determinations\n\n  The Commission must maintain a public register that specifies the following information for each determination:\n\n (a) the names of the parties to the determination;\n\n (b) the service to which the determination relates;\n\n (c) the date on which the determination was made.","sortOrder":313},{"sectionNumber":"44ZZM","sectionType":"section","heading":"Commonwealth consent to conferral of functions etc. on the Commission or Tribunal by State or Territory laws","content":"44ZZM  Commonwealth consent to conferral of functions etc. on the Commission or Tribunal by State or Territory laws\n\n (1) Subject to section 44ZZMAA, a State or Territory access regime law may confer functions or powers, or impose duties, on the Commission or Tribunal.\n\nNote: Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal.\n\n (2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a law of a State or Territory to the extent to which:\n\n (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal; or\n\n (b) the authorisation would otherwise exceed the legislative power of the Commonwealth.\n\n (3) The Commission or Tribunal cannot perform a duty or function, or exercise a power, under a State or Territory access regime law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.","sortOrder":314},{"sectionNumber":"44ZZMAA","sectionType":"section","heading":"No merits review by Tribunal of decisions under energy laws","content":"44ZZMAA  No merits review by Tribunal of decisions under energy laws\n\n (1) This section applies if a State/Territory energy law or the Australian Energy Market Act 2004 purports to confer a function or power, or to impose a duty, in relation to a decision made under:\n\n (a) a State/Territory energy law; or\n\n (b) a uniform energy law applied as a law of the Commonwealth under the Australian Energy Market Act 2004.\n\nHowever, this section does not apply in relation to a decision relating to the disclosure of confidential or protected information under such a law.\n\n (2) The purported conferral or imposition has no effect to the extent to which it would require or permit merits review (however described) of the decision by the Tribunal.\n\n (3) This section applies despite anything in any law of the Commonwealth, a State or a Territory.","sortOrder":315},{"sectionNumber":"44ZZMA","sectionType":"section","heading":"How duty is imposed","content":"44ZZMA  How duty is imposed\n\nApplication\n\n (1) This section applies if a State or Territory access regime law purports to impose a duty on the Commission or Tribunal.\n\nNote 1: Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal.\n\nNote 2: Section 320 of the South Australian Energy Retail Legislation, as it applies as a law of a State or Territory, deals with the case where a duty purportedly imposed on a Commonwealth body under that applied law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties.\n\nState or Territory legislative power sufficient to support duty\n\n (2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:\n\n (a) imposing the duty is within the legislative powers of the State or Territory concerned; and\n\n (b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal.\n\nNote: 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).\n\nCommonwealth legislative power sufficient to support duty but State or Territory legislative powers are not\n\n (3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.\n\n (4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.\n\n (5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:\n\n (a) is within the legislative powers of the Commonwealth; and\n\n (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal.\n\n (6) Subsections (1) to (5) do not limit section 44ZZM.","sortOrder":316},{"sectionNumber":"44ZZMB","sectionType":"section","heading":"When a law of a State or Territory imposes a duty","content":"44ZZMB  When a law of a State or Territory imposes a duty\n\n  For the purposes of sections 44ZZM and 44ZZMA, a State or Territory access regime law imposes a duty on the Commission or Tribunal if:\n\n (a) the law confers a function or power on the Commission or Tribunal; and\n\n (b) the circumstances in which the function or power is conferred give rise to an obligation on the Commission or Tribunal to perform the function or to exercise the power.","sortOrder":317},{"sectionNumber":"44ZZN","sectionType":"section","heading":"Compensation for acquisition of property","content":"44ZZN  Compensation for acquisition of property\n\n (1) If:\n\n (a) a determination would result in an acquisition of property; and\n\n (b) the determination would not be valid, apart from this section, because a particular person has not been sufficiently compensated;\n\nthe Commonwealth must pay that person:\n\n (c) a reasonable amount of compensation agreed on between the person and the Commonwealth; or\n\n (d) failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.\n\n (2) In assessing compensation payable in a proceeding begun under this section, the following must be taken into account if they arise out of the same event or transaction:\n\n (a) any damages or compensation recovered, or other remedy, in a proceeding begun otherwise than under this section;\n\n (b) compensation awarded under a determination.\n\n (3) In this section, acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.","sortOrder":318},{"sectionNumber":"44ZZNA","sectionType":"section","heading":"Operation of Parts IV, IVA and VII not affected by this Part","content":"44ZZNA  Operation of Parts IV, IVA and VII not affected by this Part\n\n  This Part does not affect the operation of Parts IV, IVA and VII.","sortOrder":319},{"sectionNumber":"44ZZO","sectionType":"section","heading":"Conduct by directors, servants or agents","content":"44ZZO  Conduct by directors, servants or agents\n\n (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:\n\n (a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and\n\n (b) that the director, servant or agent had the state of mind.\n\n (2) Any conduct engaged in on behalf of a body corporate:\n\n (a) by a director, servant or agent of the body corporate within the scope of the person’s actual or apparent authority; or\n\n (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;\n\nis 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.\n\n (3) If, in a proceeding under this Part in respect of conduct engaged in by an individual, it is necessary to establish the state of mind of the individual, it is sufficient to show:\n\n (a) that the conduct was engaged in by a servant or agent of the individual within the scope of his or her actual or apparent authority; and\n\n (b) that the servant or agent had the relevant state of mind.\n\n (4) Conduct engaged in on behalf of an individual:\n\n (a) by a servant or agent of the individual within the scope of the actual or apparent authority of the servant or agent; or\n\n (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the individual, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent;\n\nis 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.\n\n (5) If:\n\n (a) an individual is convicted of an offence; and\n\n (b) the individual would not have been convicted of the offence if subsections (3) and (4) had not been enacted;\n\nthe individual is not liable to be punished by imprisonment for that offence.\n\n (6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:\n\n (a) the knowledge, intention, opinion, belief or purpose of the person; and\n\n (b) the person’s reasons for the intention, opinion, belief or purpose.\n\n (7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.","sortOrder":320},{"sectionNumber":"44ZZOAAA","sectionType":"section","heading":"Information to be given to Tribunal","content":"44ZZOAAA  Information to be given to Tribunal\n\nTribunal to notify decision maker\n\n (1) If an application for review of a decision (however described) is made under this Part, the Tribunal must notify the decision maker of the application.\n\n (2) If the application is made under section 44K, 44L, 44LJ, 44LK or 44O, the Tribunal must also notify the Council of the application.\n\nDecision maker to give material to Tribunal\n\n (3) The decision maker must give the following information to the Tribunal within the period specified by the Tribunal:\n\n (a) if the decision is taken to have been made because of the operation of subsection 44H(9), 44J(7), 44LG(6), 44LI(7), 44N(4), 44NB(3A) or 44NBC(5)—all of the information that the Council took into account in connection with making the recommendation to which the decision under review relates;\n\n (b) if the decision is taken to have been made because of the operation of subsection 44PD(6), 44XA(6) or 44ZZBC(6)—any information or documents given to the Commission in connection with the decision to which the review relates, other than information or documents in relation to which the Commission could not have regard because of subparagraph 44PE(6)(c)(iii) or 44ZZBD(6)(c)(iii);\n\n (c) otherwise—all of the information that the decision maker took into account in connection with the making of the decision to which the review relates.\n\nTribunal may request further information\n\n (4) The Tribunal may request such information that the Tribunal considers reasonable and appropriate for the purposes of making its decision on a review under this Part.\n\n (5) A request under subsection (4) must be made by written notice given to a person specifying the information requested and the period within which the information must be given to the Tribunal.\n\n (6) The Tribunal must:\n\n (a) give a copy of the notice to:\n\n (i) the person who applied for review; and\n\n (ii) if the application is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council; and\n\n (iii) if the application is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and\n\n (iv) any other person who has been made a party to the proceedings for review by the Tribunal; and\n\n (b) publish, by electronic or other means, the notice.\n\n (7) Without limiting the information that may be given in accordance with the notice, information may include information that could not have reasonably been made available to the decision maker at the time the decision under review was made.\n\nCertain material before the Tribunal not to be disclosed\n\n (8) The Tribunal may, on the application of a person, prohibit or restrict the disclosure of the contents of a document or other information given to the Tribunal under this section if the Tribunal is satisfied that it is desirable to do so because of the confidential nature of the document or other information, or for any other reason.\n\n (9) In this section:\n\ndecision maker, in relation to an application for review under this Part, means:\n\n (a) if the application was made under section 44K, 44L, 44LJ or 44LK—the designated Minister; or\n\n (b) if the application was made under section 44O—the Commonwealth Minister; or\n\n (c) if the application was made under section 44PG, 44PH, 44ZP, 44ZX, or 44ZZBF—the Commission.","sortOrder":321},{"sectionNumber":"44ZZOAA","sectionType":"section","heading":"Tribunal only to consider particular material","content":"44ZZOAA  Tribunal only to consider particular material\n\n  For the purposes of a review under this Part, the Tribunal:\n\n (a) subject to paragraph (b), must have regard to:\n\n (i) information that was given to the Tribunal under subsection 44ZZOAAA(3); and\n\n (ii) any information given to the Tribunal in accordance with a notice given under subsection 44ZZOAAA(5); and\n\n (iii) any thing done as mentioned in subsection 44K(6), 44L(5), 44LJ(5), 44LK(5), 44O(5), 44PG(5), 44PH(5), 44ZP(5), 44ZX(5) or 44ZZBF(5); and\n\n (iv) any information or report given to the Tribunal in relation to the review under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) within the specified period; and\n\n (b) may disregard:\n\n (i) any information given to the Tribunal in response to a notice given under subsection 44ZZOAAA(5) after the period specified in the notice has ended; and\n\n (ii) any information or report of the kind specified in a notice under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) that is given to the Tribunal after the specified period has ended.","sortOrder":322},{"sectionNumber":"44ZZOA","sectionType":"section","heading":"Time limit for Tribunal decisions","content":"44ZZOA  Time limit for Tribunal decisions\n\n (1) The Tribunal must make a decision on a review under this Part within the consideration period.\n\n (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application for review is received, unless the consideration period is extended under subsection (7).\n\nStopping the clock\n\n (3) In working out the expected period in relation to an application for review, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:\n\n (a) starting on the day referred to in column 2 of the item; and\n\n (b) ending on the day referred to in column 3 of the item.\n\n\n\n- Stopping the clock\n- Item Column 1Situation Column 2Start day Column 3End day\n- 1 An agreement is made in relation to the application under subsection (5) The first day of the period specified in the agreement The last day of the period specified in the agreement\n- 2 A notice is given under subsection 44ZZOAAA(5) requesting information in relation to the decision to which the application relates The day on which the notice is given The last day of the period specified in the notice for the giving of the information\n- 3 A notice is given under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) requiring information or a report to be given in relation to the review The day on which the notice is given The last day of the period specified in the notice for the giving of the information or the report\n\n\n (4) Despite subsection (3), do not disregard any day more than once.\n\nStopping the clock by agreement\n\n (5) The following may agree in writing that a specified period is to be disregarded in working out the expected period:\n\n (a) the Tribunal;\n\n (b) the person who applied for review;\n\n (c) if the application is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council;\n\n (d) if the application is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission;\n\n (e) any other person who has been made a party to the proceedings for review by the Tribunal.\n\n (6) The Tribunal must publish, by electronic or other means, the agreement.\n\nExtension of time for making decision\n\n (7) If the Tribunal is unable to make a decision on an application for review within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.\n\n (8) The notice must:\n\n (a) specify when the Tribunal must now make its decision on the application for review; and\n\n (b) include a statement explaining why the Tribunal has been unable to make a decision on the review within the consideration period.\n\n (9) The Tribunal must give a copy of the notice to:\n\n (a) the person who applied for review; and\n\n (b) if the application for review is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council; and\n\n (c) if the application for review is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and\n\n (d) any other person who has been made a party to the proceedings for review by the Tribunal.\n\nPublication\n\n (10) If the Tribunal extends the consideration period under subsection (7), it must publish a notice in a manner that results in the notice being accessible to the public and reasonably prominent:\n\n (a) stating that it has done so; and\n\n (b) specifying the day by which it must now make a decision on the application for review.\n\nFailure to comply with time limit does not affect validity\n\n (11) Failure by the Tribunal to comply with a time limit set in this section does not affect the validity of a decision made by the Tribunal under this Part.","sortOrder":323},{"sectionNumber":"44ZZP","sectionType":"section","heading":"Regulations about review by the Tribunal","content":"44ZZP  Regulations about review by the Tribunal\n\n (1) The regulations may make provision about the following matters in relation to the functions of the Tribunal under this Part:\n\n (a) the constitution of the Tribunal;\n\n (b) the arrangement of the business of the Tribunal;\n\n (c) the disclosure of interests by members of the Tribunal;\n\n (d) determining questions before the Tribunal and questions that arise during a review;\n\n (e) procedure and evidence, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written report).\n\n (2) Regulations made for the purposes of subsection (1) do not apply in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law.\n\nNote: See section 44ZZR.","sortOrder":324},{"sectionNumber":"44ZZQ","sectionType":"section","heading":"Regulations about fees for inspection etc. of registers","content":"44ZZQ  Regulations about fees for inspection etc. of registers\n\n  The regulations may make provision about the inspection of registers maintained under this Part (including provision about fees).","sortOrder":325},{"sectionNumber":"44ZZR","sectionType":"section","heading":"Procedure of the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law","content":"44ZZR  Procedure of the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law\n\n (1) Sections 103, 105, 106, 107, 108 and 110 of this Act apply to the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law.\n\n (2) The regulations may make provision about the following matters in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law:\n\n (a) the constitution of the Tribunal;\n\n (b) the arrangement of the business of the Tribunal;\n\n (c) the disclosure of interests by members of the Tribunal;\n\n (d) determining questions before the Tribunal and questions that arise during a review;\n\n (e) procedure and evidence, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written report);\n\n (f) the fees and expenses of witnesses in proceedings before the Tribunal.\n\n (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.\n\nChapter 3—Restrictive trade practices","sortOrder":326},{"sectionNumber":"Part IV","sectionType":"part","heading":"Restrictive trade practices","content":"Part IV—Restrictive trade practices","sortOrder":327},{"sectionNumber":"45AA","sectionType":"section","heading":"Simplified outline","content":"45AA  Simplified outline\n\n  The following is a simplified outline of this Division:\n\n• This Division sets out parallel offences and civil penalty provisions relating to cartel conduct.\n\n• A corporation must not make, or give effect to, a contract, arrangement or understanding that contains a cartel provision.\n\n• A cartel provision is a provision relating to:\n\n (a) price‑fixing; or\n\n (b) restricting outputs in the production and supply chain; or\n\n (c) allocating customers, suppliers or territories; or\n\n (d) bid‑rigging;\n\n by parties that are, or would otherwise be, in competition with each other.","sortOrder":330},{"sectionNumber":"45AB","sectionType":"section","heading":"Definitions","content":"45AB  Definitions\n\n  In this Division:\n\nbenefit includes any advantage and is not limited to property.\n\nbid includes:\n\n (a) tender; and\n\n (b) the taking, by a potential bidder or tenderer, of a preliminary step in a bidding or tendering process.\n\nevidential 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.\n\nlikely, in relation to any of the following:\n\n (a) a supply of goods or services;\n\n (b) an acquisition of goods or services;\n\n (c) the production of goods;\n\n (d) the capacity to supply services;\n\nincludes a possibility that is not remote.\n\nobtaining includes:\n\n (a) obtaining for another person; and\n\n (b) inducing a third person to do something that results in another person obtaining.\n\nparty has a meaning affected by section 45AC.\n\nproduction includes manufacture, processing, treatment, assembly, disassembly, renovation, restoration, growing, raising, mining, extraction, harvesting, fishing, capturing and gathering.","sortOrder":331},{"sectionNumber":"45AC","sectionType":"section","heading":"Extended meaning of party","content":"45AC  Extended meaning of party\n\n  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.","sortOrder":332},{"sectionNumber":"45AD","sectionType":"section","heading":"Cartel provisions","content":"45AD  Cartel provisions\n\n (1) For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if:\n\n (a) either of the following conditions is satisfied in relation to the provision:\n\n (i) the purpose/effect condition set out in subsection (2);\n\n (ii) the purpose condition set out in subsection (3); and\n\n (b) the competition condition set out in subsection (4) is satisfied in relation to the provision.\n\nPurpose/effect condition\n\n (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:\n\n (a) fixing, controlling or maintaining; or\n\n (b) providing for the fixing, controlling or maintaining of;\n\nthe price for, or a discount, allowance, rebate or credit in relation to:\n\n (c) goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or\n\n (d) goods or services acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or\n\n (e) goods or services re‑supplied, or likely to be re‑supplied, by persons or classes of persons to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or\n\n (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.\n\nNote 1: The purpose/effect condition can be satisfied when a provision is considered with related provisions—see subsection (8).\n\nNote 2: Party has an extended meaning—see section 45AC.\n\nPurpose condition\n\n (3) The purpose condition is satisfied if the provision has the purpose of directly or indirectly:\n\n (a) preventing, restricting or limiting:\n\n (i) the production, or likely production, of goods by any or all of the parties to the contract, arrangement or understanding; or\n\n (ii) the capacity, or likely capacity, of any or all of the parties to the contract, arrangement or understanding to supply services; or\n\n (iii) the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or\n\n (iv) the acquisition, or likely acquisition, of goods or services from persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or\n\n (b) allocating between any or all of the parties to the contract, arrangement or understanding:\n\n (i) the persons or classes of persons who have acquired, or who are likely to acquire, goods or services from any or all of the parties to the contract, arrangement or understanding; or\n\n (ii) the persons or classes of persons who have supplied, or who are likely to supply, goods or services to any or all of the parties to the contract, arrangement or understanding; or\n\n (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\n\n (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\n\n (c) ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services:\n\n (i) one or more parties to the contract, arrangement or understanding bid, but one or more other parties do not; or\n\n (ii) 2 or more parties to the contract, arrangement or understanding bid, but at least 2 of them do so on the basis that one of those bids is more likely to be successful than the others; or\n\n (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\n\n (iv) 2 or more parties to the contract, arrangement or understanding bid and proceed with their bids, but at least 2 of them proceed with their bids on the basis that one of those bids is more likely to be successful than the others; or\n\n (v) 2 or more parties to the contract, arrangement or understanding bid, but a material component of at least one of those bids is worked out in accordance with the contract, arrangement or understanding.\n\nNote 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.\n\nNote 2: The purpose condition can be satisfied when a provision is considered with related provisions—see subsection (9).\n\nNote 3: Party has an extended meaning—see section 45AC.\n\nCompetition condition\n\n (4) The competition condition is satisfied if at least 2 of the parties to the contract, arrangement or understanding:\n\n (a) are or are likely to be; or\n\n (b) but for any contract, arrangement or understanding, would be or would be likely to be;\n\nin competition with each other in relation to:\n\n (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 in trade or commerce; or\n\n (d) if paragraph (2)(d) or (3)(b) applies in relation to an acquisition, or likely acquisition, of goods or services—the acquisition of those goods or services in trade or commerce; or\n\n (e) if paragraph (2)(e) or (f) applies in relation to a re‑supply, or likely re‑supply, of goods or services—the supply of those goods or services in trade or commerce to that re‑supplier; or\n\n (f) if subparagraph (3)(a)(i) applies in relation to preventing, restricting or limiting the production, or likely production, of goods—the production of those goods in trade or commerce; or\n\n (g) if subparagraph (3)(a)(ii) applies in relation to preventing, restricting or limiting the capacity, or likely capacity, to supply services—the supply of those services in trade or commerce; or\n\n (h) if subparagraph (3)(a)(iii) applies in relation to preventing, restricting or limiting the supply, or likely supply, of goods or services—the supply of those goods or services in trade or commerce; or\n\n (i) if subparagraph (3)(a)(iv) applies in relation to preventing, restricting or limiting the acquisition, or likely acquisition, of goods or services—the acquisition of those goods or services in trade or commerce; or\n\n (j) if paragraph (3)(c) applies in relation to a supply of goods or services—the supply of those goods or services in trade or commerce; or\n\n (k) if paragraph (3)(c) applies in relation to an acquisition of goods or services—the acquisition of those goods or services in trade or commerce.\n\nNote 1: Party has an extended meaning—see section 45AC.\n\nNote 2: Trade or commerce is defined in section 4 to mean trade or commerce within Australia or between Australia and places outside Australia.\n\nImmaterial whether identities of persons can be ascertained\n\n (5) It is immaterial whether the identities of the persons referred to in paragraph (2)(e) or (f) or subparagraph (3)(a)(iii) or (iv) or (b)(i) or (ii) can be ascertained.\n\nRecommending prices etc.\n\n (6) For the purposes of this Division, a provision of a contract, arrangement or understanding is not taken:\n\n (a) to have the purpose mentioned in subsection (2); or\n\n (b) to have, or be likely to have, the effect mentioned in subsection (2);\n\nby reason only that it recommends, or provides for the recommending of, a price, discount, allowance, rebate or credit.\n\nImmaterial whether particular circumstances or particular conditions\n\n (7) It is immaterial whether:\n\n (a) for the purposes of subsection (2), subparagraphs (3)(a)(iii) and (iv) and paragraphs (3)(b) and (c)—a supply or acquisition happens, or a likely supply or likely acquisition is to happen, in particular circumstances or on particular conditions; and\n\n (b) for the purposes of subparagraph (3)(a)(i)—the production happens, or the likely production is to happen, in particular circumstances or on particular conditions; and\n\n (c) for the purposes of subparagraph (3)(a)(ii)—the capacity exists, or the likely capacity is to exist, in particular circumstances or on particular conditions.\n\nConsidering related provisions—purpose/effect condition\n\n (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:\n\n (a) the other provisions of the contract, arrangement or understanding;\n\n (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first‑mentioned contract, arrangement or understanding;\n\nhas that purpose, or has or is likely to have that effect.\n\nConsidering related provisions—purpose condition\n\n (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:\n\n (a) the other provisions of the contract, arrangement or understanding;\n\n (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first‑mentioned contract, arrangement or understanding;\n\nhas that purpose.\n\nPurpose/effect of a provision\n\n (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:\n\n (a) the form of the provision; or\n\n (b) the form of the contract, arrangement or understanding; or\n\n (c) any description given to the provision, or to the contract, arrangement or understanding, by the parties.\n\nPurpose of a provision\n\n (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:\n\n (a) the form of the provision; or\n\n (b) the form of the contract, arrangement or understanding; or\n\n (c) any description given to the provision, or to the contract, arrangement or understanding, by the parties.","sortOrder":333},{"sectionNumber":"45AE","sectionType":"section","heading":"Meaning of expressions in other provisions of this Act","content":"45AE  Meaning of expressions in other provisions of this Act\n\n  In determining the meaning of an expression used in a provision of this Act (other than this Division, subsection 6(2C), paragraph 76(1B)(b) or subsection 93AB(1A)), this Division is to be disregarded.","sortOrder":334},{"sectionNumber":"45AF","sectionType":"section","heading":"Making a contract etc. containing a cartel provision","content":"45AF  Making a contract etc. containing a cartel provision\n\nOffence\n\n (1) A corporation commits an offence if:\n\n (a) the corporation makes a contract or arrangement, or arrives at an understanding; and\n\n (b) the contract, arrangement or understanding contains a cartel provision.\n\nNote: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n (2) The fault element for paragraph (1)(b) is knowledge or belief.\n\nPenalty\n\n (3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the total value of the benefits that:\n\n (i) have been obtained by one or more persons; and\n\n (ii) are reasonably attributable to the commission of the offence;\n\n  3 times that total value;\n\n (c) if the court cannot determine the total value of those benefits—30% of the corporation’s adjusted turnover during the breach turnover period for the offence.\n\nIndictable offence\n\n (4) An offence against subsection (1) is an indictable offence.","sortOrder":336},{"sectionNumber":"45AG","sectionType":"section","heading":"Giving effect to a cartel provision","content":"45AG  Giving effect to a cartel provision\n\nOffence\n\n (1) A corporation commits an offence if:\n\n (a) a contract, arrangement or understanding contains a cartel provision; and\n\n (b) the corporation gives effect to the cartel provision.\n\nNote: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n (2) The fault element for paragraph (1)(a) is knowledge or belief.\n\nPenalty\n\n (3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the total value of the benefits that:\n\n (i) have been obtained by one or more persons; and\n\n (ii) are reasonably attributable to the commission of the offence;\n\n  3 times that total value;\n\n (c) if the court cannot determine the total value of those benefits—30% of the corporation’s adjusted turnover during the breach turnover period for the offence.\n\nPre‑commencement contracts etc.\n\n (4) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section.\n\nIndictable offence\n\n (5) An offence against subsection (1) is an indictable offence.","sortOrder":337},{"sectionNumber":"45AH","sectionType":"section","heading":"Determining guilt","content":"45AH  Determining guilt\n\n (1) A corporation may be found guilty of an offence against section 45AF or 45AG even if:\n\n (a) each other party to the contract, arrangement or understanding is a person who is not criminally responsible; or\n\n (b) subject to subsection (2), all other parties to the contract, arrangement or understanding have been acquitted of the offence.\n\nNote: Party has an extended meaning—see section 45AC.\n\n (2) A corporation cannot be found guilty of an offence against section 45AF or 45AG if:\n\n (a) all other parties to the contract, arrangement or understanding have been acquitted of such an offence; and\n\n (b) a finding of guilt would be inconsistent with their acquittal.","sortOrder":338},{"sectionNumber":"45AI","sectionType":"section","heading":"Court may make related civil orders","content":"45AI  Court may make related civil orders\n\n  If a prosecution against a person for an offence against section 45AF or 45AG is being, or has been, heard by a court, the court may:\n\n (a) grant an injunction under section 80 against the person in relation to:\n\n (i) the conduct that constitutes, or is alleged to constitute, the offence; or\n\n (ii) other conduct of that kind; or\n\n (b) make an order under section 86C, 86D, 86E or 87 in relation to the offence.","sortOrder":339},{"sectionNumber":"45AIA","sectionType":"section","heading":"Section 4AB of the Crimes Act does not apply","content":"45AIA  Section 4AB of the Crimes Act does not apply\n\n  Section 4AB of the Crimes Act 1914 does not apply to any provision of this Subdivision.","sortOrder":340},{"sectionNumber":"45AJ","sectionType":"section","heading":"Making a contract etc. containing a cartel provision","content":"45AJ  Making a contract etc. containing a cartel provision\n\n  A corporation contravenes this section if:\n\n (a) the corporation makes a contract or arrangement, or arrives at an understanding; and\n\n (b) the contract, arrangement or understanding contains a cartel provision.\n\nNote: For enforcement, see Part VI.","sortOrder":342},{"sectionNumber":"45AK","sectionType":"section","heading":"Giving effect to a cartel provision","content":"45AK  Giving effect to a cartel provision\n\n (1) A corporation contravenes this section if:\n\n (a) a contract, arrangement or understanding contains a cartel provision; and\n\n (b) the corporation gives effect to the cartel provision.\n\nNote: For enforcement, see Part VI.\n\n (2) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section.","sortOrder":343},{"sectionNumber":"45AL","sectionType":"section","heading":"Conduct notified","content":"45AL  Conduct notified\n\n (1) Sections 45AF, 45AG, 45AJ and 45AK do not apply to a corporation in relation to a contract, arrangement or understanding containing a cartel provision, in so far as:\n\n (a) the cartel provision:\n\n (i) has the purpose, or has or is likely to have the effect, mentioned in subsection 45AD(2); or\n\n (ii) has the purpose mentioned in a paragraph of subsection 45AD(3) other than paragraph (c); and\n\n (b) the corporation has given the Commission a collective bargaining notice under subsection 93AB(1A) setting out particulars of the contract, arrangement or understanding; and\n\n (c) the notice is in force under section 93AD.\n\nNote: 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).\n\n (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter.","sortOrder":345},{"sectionNumber":"45AM","sectionType":"section","heading":"Cartel provision subject to grant of authorisation","content":"45AM  Cartel provision subject to grant of authorisation\n\n (1) Sections 45AF and 45AJ do not apply in relation to the making of a contract that contains a cartel provision if:\n\n (a) the contract is subject to a condition that the provision will not come into force unless and until the corporation is granted an authorisation to give effect to the provision; and\n\n (b) the corporation applies for the grant of such an authorisation within 14 days after the contract is made.\n\nNote: 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).\n\n (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ bears an evidential burden in relation to that matter.","sortOrder":346},{"sectionNumber":"45AMA","sectionType":"section","heading":"Acquisition subject to notification","content":"45AMA  Acquisition subject to notification\n\n (1) Sections 45AF and 45AJ do not apply in relation to the making of a contract that contains a cartel provision, in so far as the cartel provision provides for an acquisition if the contract is subject to a condition that the provision will not come into force unless and until the acquisition becomes a notified acquisition.\n\nNote: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).\n\n (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ bears an evidential burden in relation to that matter.","sortOrder":347},{"sectionNumber":"45AN","sectionType":"section","heading":"Contracts, arrangements or understandings between related bodies corporate","content":"45AN  Contracts, arrangements or understandings between related bodies corporate\n\n (1) Sections 45AF, 45AG, 45AJ and 45AK 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.\n\nNote: 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).\n\n (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter.","sortOrder":348},{"sectionNumber":"45AO","sectionType":"section","heading":"Joint ventures—prosecution","content":"45AO  Joint ventures—prosecution\n\n  Sections 45AF and 45AG do not apply in relation to a contract, arrangement or understanding containing a cartel provision if the defendant proves that:\n\n (a) the cartel provision is:\n\n (i) for the purposes of a joint venture; and\n\n (ii) reasonably necessary for undertaking the joint venture; and\n\n (b) the joint venture is for any one or more of the following:\n\n (i) production of goods;\n\n (ii) supply of goods or services;\n\n (iii) acquisition of goods or services; and\n\n (c) the joint venture is not carried on for the purpose of substantially lessening competition; and\n\n (d) in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the contract, arrangement or understanding; and\n\n (e) in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the contract, arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of:\n\n (i) their joint control; or\n\n (ii) their ownership of shares in the capital;\n\n  of that body corporate.\n\nNote 1: A defendant bears a legal burden in relation to the matter in this section (see section 13.4 of the Criminal Code).\n\nNote 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.","sortOrder":349},{"sectionNumber":"45AP","sectionType":"section","heading":"Joint ventures—civil penalty proceedings","content":"45AP  Joint ventures—civil penalty proceedings\n\n (1) Sections 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision if the defendant proves that:\n\n (a) the cartel provision is:\n\n (i) for the purposes of a joint venture; and\n\n (ii) reasonably necessary for undertaking the joint venture; and\n\n (b) the joint venture is for any one or more of the following:\n\n (i) production of goods;\n\n (ii) supply of goods or services;\n\n (iii) acquisition of goods or services; and\n\n (c) the joint venture is not carried on for the purpose of substantially lessening competition; and\n\n (d) in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the contract, arrangement or understanding; and\n\n (e) in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the contract, arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of:\n\n (i) their joint control; or\n\n (ii) their ownership of shares in the capital;\n\n  of that body corporate.\n\nNote: 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.\n\n (2) A defendant who wishes to rely on subsection (1) must prove that matter on the balance of probabilities.","sortOrder":350},{"sectionNumber":"45AQ","sectionType":"section","heading":"Resale price maintenance","content":"45AQ  Resale price maintenance\n\n (1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision relates to:\n\n (a) conduct that contravenes section 48; or\n\n (b) conduct that would contravene section 48 but for the operation of section 88; or\n\n (c) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply.\n\nNote: 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).\n\n (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter.","sortOrder":351},{"sectionNumber":"45AR","sectionType":"section","heading":"Exclusive dealing","content":"45AR  Exclusive dealing\n\n (1) Sections 45AF and 45AJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as giving effect to the cartel provision would, or would but for the operation of subsection 47(10) or section 88 or 93, constitute a contravention of section 47.\n\nNote: 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).\n\n (2) Sections 45AG and 45AK do not apply in relation to the giving effect to a cartel provision by way of:\n\n (a) engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or section 88 or 93 contravene, section 47; or\n\n (b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when:\n\n (i) an authorisation under section 88 is in force in relation to conduct engaged in by that person on that condition; or\n\n (ii) by reason of subsection 93(7), conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or\n\n (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.\n\nNote: 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).\n\n (3) A person who wishes to rely on subsection (1) or (2) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter.","sortOrder":352},{"sectionNumber":"45AS","sectionType":"section","heading":"Dual listed company arrangement","content":"45AS  Dual listed company arrangement\n\n (1) Sections 45AF and 45AJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as:\n\n (a) the contract, arrangement or understanding is a dual listed company arrangement; and\n\n (b) the making of the contract, arrangement or understanding would, or would apart from section 88, contravene section 49.\n\nNote: 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).\n\n (2) Sections 45AG and 45AK do not apply in relation to the giving effect to a cartel provision, in so far as:\n\n (a) the cartel provision is a provision of a dual listed company arrangement; and\n\n (b) the giving effect to the cartel provision would, or would apart from section 88, contravene section 49.\n\nNote: 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).\n\n (3) A person who wishes to rely on subsection (1) or (2) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter.","sortOrder":353},{"sectionNumber":"45AT","sectionType":"section","heading":"Acquisition of shares or assets","content":"45AT  Acquisition of shares or assets\n\n (1) Sections 45AF, 45AG, 45AJ and 45AK 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:\n\n (a) any shares in the capital of a body corporate; or\n\n (b) any assets of a person.\n\nNote: 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).\n\n (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter.\n\n (3) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision provides for an acquisition, if the acquisition is a notified acquisition.\n\nNote: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code and subsection (4) of this section).\n\n (4) A person who wishes to rely on subsection (3) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter.","sortOrder":354},{"sectionNumber":"45AU","sectionType":"section","heading":"Collective acquisition of goods or services by the parties to a contract, arrangement or understanding","content":"45AU  Collective acquisition of goods or services by the parties to a contract, arrangement or understanding\n\n (1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as:\n\n (a) the cartel provision has the purpose, or has or is likely to have the effect, mentioned in subsection 45AD(2); and\n\n (b) either:\n\n (i) the cartel provision relates to the price for goods or services to be collectively acquired, whether directly or indirectly, by the parties to the contract, arrangement or understanding; or\n\n (ii) the cartel provision is for the joint advertising of the price for the re‑supply of goods or services so acquired.\n\nNote: 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).\n\n (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter.","sortOrder":355},{"sectionNumber":"Division 1A","sectionType":"division","heading":"Acquisitions","content":"Division 1A—Acquisitions","sortOrder":356},{"sectionNumber":"45AV","sectionType":"section","heading":"Purportedly putting acquisitions into effect","content":"45AV  Purportedly putting acquisitions into effect\n\n (1) A reference in this Division to putting an acquisition into effect includes a reference to purportedly putting the acquisition into effect.\n\n (2) A person purportedly puts into effect an acquisition if the person engages in conduct that, apart from this Division, would constitute putting the acquisition into effect.","sortOrder":358},{"sectionNumber":"45AW","sectionType":"section","heading":"Commission must be notified of acquisitions","content":"45AW  Commission must be notified of acquisitions\n\n  A person contravenes this section if:\n\n (a) the person is a principal party to an acquisition; and\n\n (b) the acquisition is required to be notified; and\n\n (c) the acquisition is put into effect; and\n\n (d) when the acquisition is put into effect:\n\n (i) the acquisition is not a notified acquisition; or\n\n (ii) no notification of the acquisition has an effective notification date (see section 51ABZ); or\n\n (iii) the latest notification of the acquisition that has an effective notification date is stale.\n\nNote 1: For when an acquisition is required to be notified, see Division 2 of Part IVA.\n\nNote 2: For when an acquisition is stale, see section 51ABG.\n\nNote 3: For enforcement, see Part VI.","sortOrder":360},{"sectionNumber":"45AX","sectionType":"section","heading":"Commission must be notified of material changes of fact in relation to notified acquisitions","content":"45AX  Commission must be notified of material changes of fact in relation to notified acquisitions\n\n (1) This section applies if:\n\n (a) a person is the notifying party of a notification of an acquisition; and\n\n (b) a change of fact occurs; and\n\n (c) the change of fact is material to the Commission making a determination under subsection 51ABZE(1) in respect of the notification; and\n\n (d) the person becomes aware of the change of fact at a time:\n\n (i) occurring on or after the effective notification date of the notification; and\n\n (ii) at which the Commission has not decided to cease considering the notification under section 51ABZD; and\n\n (iii) at which the Commission has not made a determination in respect of the notification under subsection 51ABZE(1); and\n\n (iv) if the notification is subject to phase 2 review—occurring at least 15 business days (within the meaning of section 51ABK) before the end of the phase 2 determination period for the notification.\n\n (2) For the purposes of this section, the person is taken to become aware of the change of fact at the earliest time at which the person is:\n\n (a) aware of the change of fact; and\n\n (b) aware that the change of fact is material in the way described in paragraph (1)(c).\n\n (3) This section also applies if:\n\n (a) a person is the notifying party of a notification of an acquisition; and\n\n (b) the notifying party has made a public benefit application in relation to the notification; and\n\n (c) a change of fact occurs; and\n\n (d) the change of fact is material to the Commission making a determination under subsection 51ABZW(1) in respect of the application; and\n\n (e) the person becomes aware of the change of fact at a time:\n\n (i) occurring on or after the effective application date of the application; and\n\n (ii) at which the Commission has not decided to cease considering the application under section 51ABZV; and\n\n (iii) at which the Commission has not made a determination under subsection 51ABZW(1) in respect of the application.\n\n (4) For the purposes of this section, the person is taken to become aware of the change of fact at the earliest time at which the person is:\n\n (a) aware of the change of fact; and\n\n (b) aware that the change of fact is material in the way described in paragraph (3)(d).\n\n (5) The person contravenes this subsection if the Commission is not notified of the change of fact, as soon as practicable after the person becomes aware of the change, by:\n\n (a) if the person is the only notifying party of the notification of the acquisition—the person; or\n\n (b) otherwise—all of the notifying parties jointly.\n\nNote: For enforcement, see Part VI.\n\n (6) For the purposes of this section, a person who ought reasonably to be aware of something is taken to be aware of it.","sortOrder":361},{"sectionNumber":"45AY","sectionType":"section","heading":"Stayed acquisitions must not be put into effect","content":"45AY  Stayed acquisitions must not be put into effect\n\n  A person contravenes this section if:\n\n (a) the person puts an acquisition into effect; and\n\n (b) the acquisition is stayed.\n\nNote 1: For when an acquisition is stayed, see section 51ABE.\n\nNote 2: For enforcement, see Part VI.","sortOrder":362},{"sectionNumber":"45AZ","sectionType":"section","heading":"Conditions must be complied with","content":"45AZ  Conditions must be complied with\n\n (1) This section applies to a person who puts a notified acquisition into effect, if putting the acquisition into effect is subject to conditions.\n\nNote: For when putting an acquisition into effect is subject to conditions, see section 51ABH.\n\n (2) The person contravenes this subsection if any of those conditions are not complied with.\n\nNote: For enforcement, see Part VI.","sortOrder":363},{"sectionNumber":"45AZA","sectionType":"section","heading":"Certain stayed acquisitions void if put into effect","content":"45AZA  Certain stayed acquisitions void if put into effect\n\n (1) This section applies to an acquisition that:\n\n (a) is stayed because of subsection 51ABE(3), (4) or (5); and\n\n (b) is put into effect, or purportedly put into effect, in contravention of section 45AY.\n\n (2) The acquisition is, and is taken always to have been, void by force of this subsection.","sortOrder":365},{"sectionNumber":"45AZB","sectionType":"section","heading":"Providing false or misleading information","content":"45AZB  Providing false or misleading information\n\n  A person contravenes this section if:\n\n (a) the person gives information to the Commission or the Tribunal under an acquisitions provision; and\n\n (b) the information is false or misleading in a material particular; and\n\n (c) the person knows that, or is reckless as to whether, the information is false or misleading in a material particular.\n\nNote: For enforcement, see Part VI.","sortOrder":367},{"sectionNumber":"45","sectionType":"section","heading":"Contracts, arrangements or understandings that restrict dealings or affect competition","content":"45  Contracts, arrangements or understandings that restrict dealings or affect competition\n\n (1) A corporation must not:\n\n (a) make a contract or arrangement, or arrive at an understanding, if a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or\n\n (b) give effect to a provision of a contract, arrangement or understanding, if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition; or\n\n (c) engage with one or more persons in a concerted practice that has the purpose, or has or is likely to have the effect, of substantially lessening competition.\n\n (2) Paragraph (1)(b) applies in relation to contracts or arrangements made, or understandings arrived at, before or after the commencement of this section.\n\n (3) For the purposes of this section, competition means:\n\n (a) in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding—competition in any market in which:\n\n (i) a corporation that is a party to the contract, arrangement or understanding, or would be a party to the proposed contract, arrangement or understanding; or\n\n (ii) any body corporate related to such a corporation;\n\n  supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services; or\n\n (b) in relation to a concerted practice—competition in any market in which:\n\n (i) a corporation that is a party to the practice; or\n\n (ii) any body corporate related to such a corporation;\n\n  supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the practice, supply or acquire, or be likely to supply or acquire, goods or services.\n\n (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:\n\n (a) the other provisions of that contract, arrangement or understanding or proposed contract, arrangement or understanding; and\n\n (b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the corporation or a body corporate related to the corporation is or would be a party;\n\ntogether have or are likely to have that effect.\n\n (5) This section does not apply to or in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, or to or in relation to a concerted practice, in so far as the provision or practice relates to:\n\n (a) conduct that contravenes section 48; or\n\n (b) conduct that would contravene section 48 if subsection 48(2) did not apply; or\n\n (c) conduct that would contravene section 48 if it were not authorised under section 88; or\n\n (d) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply.\n\n (5A) The making of a contract, arrangement or understanding does not constitute a contravention of this section because the contract, arrangement or understanding contains a provision the giving effect to which would, or would apart from subsection 47(10) or section 88 or 93, constitute a contravention of section 47.\n\n (6) This section does not apply to or in relation to the giving effect to a provision of a contract, arrangement or understanding, or to or in relation to engaging in a concerted practice, by way of:\n\n (a) engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or section 88 or 93 contravene, section 47; or\n\n (b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when:\n\n (i) an authorisation under section 88 is in force in relation to conduct engaged in by that person on that condition; or\n\n (ii) by reason of subsection 93(7) conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or\n\n (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.\n\n (6A) The following conduct:\n\n (a) the making of a dual listed company arrangement;\n\n (b) the giving effect to a provision of a dual listed company arrangement;\n\ndoes not contravene this section if the conduct would, or would apart from section 88, contravene section 49.\n\n (7) This section does not apply to or in relation to:\n\n (a) a contract, arrangement or understanding to the extent that the contract, arrangement or understanding directly or indirectly provides for; or\n\n (b) a proposed contract, arrangement or understanding to the extent that the proposed contract, arrangement or understanding would directly or indirectly provide for; or\n\n (c) a concerted practice to the extent that the practice directly involves;\n\nthe acquisition of any shares in the capital of a body corporate or any assets of a person or a notified acquisition.\n\n (8) This section does not apply to or in relation to:\n\n (a) a contract, arrangement or understanding, or\n\n (b) a proposed contract, arrangement or understanding; or\n\n (c) a concerted practice;\n\nthe only parties to which are or would be bodies corporate that are related to each other.\n\n (8AA) This section does not apply to or in relation to a concerted practice if the only persons engaging in it are or would be:\n\n (a) the Crown in right of the Commonwealth and one or more authorities of the Commonwealth; or\n\n (b) the Crown in right of a State or Territory and one or more authorities of that State or Territory.\n\n (8A) Subsection (1) does not apply to a corporation engaging in conduct described in that subsection if:\n\n (a) the corporation has given the Commission a collective bargaining notice under subsection 93AB(1) describing the conduct; and\n\n (b) the notice is in force under section 93AD.\n\n (8B) The making by a corporation of a contract is not a contravention of subsection (1) to the extent that the contract provides for an acquisition, if the contract is subject to a condition that the provision of the contract will not come into force unless and until the acquisition becomes a notified acquisition.\n\n (8C) Nothing in subsection (8B) prevents the giving effect by a corporation to such a provision of a contract from constituting a contravention of subsection (1).\n\n (9) The making by a corporation of a contract that contains a provision in relation to which the corporation intends to apply for an authorisation under section 88 is not a contravention of subsection (1) of this section if:\n\n (a) the contract is subject to a condition that the provision will not come into force unless and until the corporation is granted an authorisation to give effect to the provision; and\n\n (b) the corporation applies for the grant of such an authorisation within 14 days after the contract is made;\n\nbut nothing in this subsection prevents the giving effect by a corporation to such a provision from constituting a contravention of subsection (1).","sortOrder":369},{"sectionNumber":"45D","sectionType":"section","heading":"Secondary boycotts for the purpose of causing substantial loss or damage","content":"45D  Secondary boycotts for the purpose of causing substantial loss or damage\n\n (1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct:\n\n (a) that hinders or prevents:\n\n (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\n\n (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\n\n (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.\n\nNote 1: Conduct that would otherwise contravene this section can be authorised under section 88.\n\nNote 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.\n\n (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.\n\n (3) Subsection (1) applies if the fourth person is a corporation.\n\n (4) Subsection (1) also applies if:\n\n (a) the third person is a corporation and the fourth person is not a corporation; and\n\n (b) the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of the third person.","sortOrder":370},{"sectionNumber":"45DA","sectionType":"section","heading":"Secondary boycotts for the purpose of causing substantial lessening of competition","content":"45DA  Secondary boycotts for the purpose of causing substantial lessening of competition\n\n (1) In the circumstances specified in subsection (3), a person must not, in concert with a second person, engage in conduct:\n\n (a) that hinders or prevents:\n\n (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\n\n (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\n\n (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing a substantial lessening of competition in any market in which the fourth person supplies or acquires goods or services.\n\nNote 1: Conduct that would otherwise contravene this section can be authorised under section 88.\n\nNote 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.\n\n (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.\n\n (3) Subsection (1) applies if:\n\n (a) the third person or the fourth person is a corporation, or both of them are corporations; and\n\n (b) the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of one of those persons who is a corporation.","sortOrder":371},{"sectionNumber":"45DB","sectionType":"section","heading":"Boycotts affecting trade or commerce","content":"45DB  Boycotts affecting trade or commerce\n\n (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.\n\nNote 1: Conduct that would otherwise contravene this section can be authorised under section 88.\n\nNote 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.\n\n (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.","sortOrder":372},{"sectionNumber":"45DC","sectionType":"section","heading":"Involvement and liability of employee organisations","content":"45DC  Involvement and liability of employee organisations\n\nCertain organisations taken to be acting in concert\n\n (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:\n\n (a) to engage in that conduct in concert with the participants; and\n\n (b) to have engaged in that conduct for the purposes for which the participants engaged in it.\n\nConsequences of organisation contravening subsection 45D(1), 45DA(1) or 45DB(1)\n\n (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).\n\nLoss or damage taken to have been caused by organisation’s conduct\n\n (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.\n\nTaking proceedings if organisation is a body corporate\n\n (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.\n\nTaking proceedings if organisation is not a body corporate\n\n (5) If the organisation is not a body corporate:\n\n (a) a proceeding in respect of the conduct may be brought under section 77, 80 or 82 against an officer of the organisation as a representative of the organisation’s members and the proceeding is taken to be a proceeding against all the persons who were members of the organisation at the time when the conduct was engaged in; and\n\n (b) subsection 76(2) does not prevent an order being made in a proceeding mentioned in paragraph (a) that was brought under section 77; and\n\n (c) the maximum pecuniary penalty that may be imposed in a proceeding mentioned in paragraph (a) that was brought under section 77 is the penalty applicable under section 76 in relation to a body corporate; and\n\n (d) except as provided by paragraph (a), a proceeding in respect of the conduct must not be brought under section 77 or 82 against any of the members or officers of the organisation; and\n\n (e) for the purpose of enforcing any judgment or order given or made in a proceeding mentioned in paragraph (a) that was brought under section 77 or 82, process may be issued and executed against the following property or interests as if the organisation were a body corporate and the absolute owner of the property or interests:\n\n (i) any property of the organisation or of any branch or part of the organisation, whether vested in trustees or however otherwise held;\n\n (ii) any property in which the organisation or any branch or part of the organisation has a beneficial interest, whether vested in trustees or however otherwise held;\n\n (iii) any property in which any members of the organisation or of a branch or part of the organisation have a beneficial interest in their capacity as members, whether vested in trustees or however otherwise held; and\n\n (f) if paragraph (e) applies, no process is to be issued or executed against any property of members or officers of the organisation or of a branch or part of the organisation except as provided in that paragraph.","sortOrder":373},{"sectionNumber":"45DD","sectionType":"section","heading":"Situations in which boycotts permitted","content":"45DD  Situations in which boycotts permitted\n\nDominant purpose of conduct relates to employment matters—conduct by a person\n\n (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.\n\nDominant purpose of conduct relates to employment matters—conduct by employee organisation and employees\n\n (2) If:\n\n (a) an employee, or 2 or more employees who are employed by the same employer, engage in conduct in concert with another person who is, or with other persons each of whom is:\n\n (i) an organisation of employees; or\n\n (ii) an officer of an organisation of employees; and\n\n (b) the conduct is only engaged in by the persons covered by paragraph (a); and\n\n (c) the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the employee, or any of the employees, covered by paragraph (a);\n\nthe 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.\n\nDominant purpose of conduct relates to environmental protection or consumer protection\n\n (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:\n\n (a) the dominant purpose for which the conduct is engaged in is substantially related to environmental protection or consumer protection; and\n\n (b) engaging in the conduct is not industrial action.\n\nNote 1: If an environmental organisation or a consumer organisation is a body corporate:\n\n(a) it is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption; and\n\n(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.\n\nNote 2: If an environmental organisation or a consumer organisation is not a body corporate:\n\n(a) it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) (consequently, this exemption does not cover the organisation as such); but\n\n(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.\n\nMeaning of industrial action—basic definition\n\n (4) In subsection (3), industrial action means:\n\n (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:\n\n (i) the terms and conditions of the work are prescribed, wholly or partly, by a workplace instrument or an order of an industrial body; or\n\n (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or\n\n (b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by a workplace instrument or by an order of an industrial body; or\n\n (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or\n\n (d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work.\n\nFor this purpose, industrial body and workplace instrument have the same meanings as in the Fair Work Act 2009.\n\nMeaning of industrial action—further clarification\n\n (5) For the purposes of subsection (3):\n\n (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\n\n (b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.\n\nSubsections (1), (2) and (3) do not protect people not covered by them\n\n (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.\n\nDefences to contravention of subsection 45DB(1)\n\n (7) In a proceeding under this Act in relation to a contravention of subsection 45DB(1), it is a defence if the defendant proves:\n\n (a) that a notice in respect of the conduct concerned has been duly given to the Commission under subsection 93(1) and the Commission has not given a notice in respect of the conduct under subsection 93(3) or (3A); or\n\n (b) that the dominant purpose for which the defendant engaged in the conduct concerned was to preserve or further a business carried on by him or her.\n\nEach person to prove defence\n\n (8) If:\n\n (a) a person engages in conduct in concert with another person; and\n\n (b) the other person proves a matter specified in paragraph (7)(a) or (b) in respect of that conduct;\n\nin applying subsection 45DB(1) to the first person, ignore the fact that the other person has proved that matter.\n\nNote: 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.","sortOrder":374},{"sectionNumber":"45E","sectionType":"section","heading":"Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services","content":"45E  Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services\n\nSituations to which section applies\n\n (1) This section applies in the following situations:\n\n (a) a supply situation—in this situation, a person (the first person) has been accustomed, or is under an obligation, to supply goods or services to another person (the second person); or\n\n (b) an acquisition situation—in this situation, a person (the first person) has been accustomed, or is under an obligation, to acquire goods or services from another person (the second person).\n\nDespite paragraphs (a) and (b), this section does not apply unless the first or second person is a corporation or both of them are corporations.\n\nNote : For the meanings of accustomed to supply and accustomed to acquire, see subsections (5) and (7).\n\nProhibition in a supply situation\n\n (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:\n\n (a) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or\n\n (b) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person, except subject to a condition:\n\n (i) that is not a condition to which the supply of such goods or services by the first person to the second person has previously been subject because of a provision in a contract between those persons; and\n\n (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.\n\nProhibition in an acquisition situation\n\n (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:\n\n (a) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person; or\n\n (b) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person, except subject to a condition:\n\n (i) that is not a condition to which the acquisition of such goods or services by the first person from the second person has previously been subject because of a provision in a contract between those persons; and\n\n (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.\n\nNo contravention if second person gives written consent to written contract etc.\n\n (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.\n\nMeaning of accustomed to supply\n\n (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)):\n\n (a) a regular supplier of such goods or services to the second person; or\n\n (b) the latest supplier of such goods or services to the second person; or\n\n (c) a person who, at any time during the immediately preceding 3 months, supplied such goods or services to the second person.\n\nException to subsection (5)\n\n (6) If:\n\n (a) goods or services have been supplied by a person to a second person under a contract between them that required the first person to supply such goods or services over a period; and\n\n (b) the period has ended; and\n\n (c) after the end of the period, the second person has been supplied with such goods or services by another person and has not also been supplied with such goods or services by the first person;\n\nthen, 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.\n\nMeaning of accustomed to acquire\n\n (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)):\n\n (a) a regular acquirer of such goods or services from the second person; or\n\n (b) a person who, when last acquiring such goods or services, acquired them from the second person; or\n\n (c) a person who, at any time during the immediately preceding 3 months, acquired such goods or services from the second person.\n\nException to subsection (7)\n\n (8) If:\n\n (a) goods or services have been acquired by a person from a second person under a contract between them that required the first person to acquire such goods or services over a period; and\n\n (b) the period has ended; and\n\n (c) after the end of the period, the second person has refused to supply such goods or services to the first person;\n\nthen, 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.\n\nNote: Conduct that would otherwise contravene this section can be authorised under section 88.","sortOrder":375},{"sectionNumber":"45EA","sectionType":"section","heading":"Provisions contravening section 45E not to be given effect","content":"45EA  Provisions contravening section 45E not to be given effect\n\n  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:\n\n (a) contravened subsection 45E(2) or (3); or\n\n (b) would have contravened subsection 45E(2) or (3) if:\n\n (i) section 45E had been in force when the contract or arrangement was made, or the understanding was arrived at; and\n\n (ii) the words “is in writing and” and “written” were not included in subsection 45E(4).\n\nNote: Conduct that would otherwise contravene this section can be authorised under section 88.","sortOrder":376},{"sectionNumber":"45EB","sectionType":"section","heading":"Sections 45D to 45EA do not affect operation of other provisions of Part","content":"45EB  Sections 45D to 45EA do not affect operation of other provisions of Part\n\n  Nothing in section 45D, 45DA, 45DB, 45DC, 45DD, 45E or 45EA affects the operation of any other provision of this Part.","sortOrder":377},{"sectionNumber":"46","sectionType":"section","heading":"Misuse of market power","content":"46  Misuse of market power\n\n (1) A corporation that has a substantial degree of power in a market must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in:\n\n (a) that market; or\n\n (b) any other market in which that corporation, or a body corporate that is related to that corporation:\n\n (i) supplies goods or services, or is likely to supply goods or services; or\n\n (ii) supplies goods or services, or is likely to supply goods or services, indirectly through one or more other persons; or\n\n (c) any other market in which that corporation, or a body corporate that is related to that corporation:\n\n (i) acquires goods or services, or is likely to acquire goods or services; or\n\n (ii) acquires goods or services, or is likely to acquire goods or services, indirectly through one or more other persons.\n\n (3) A corporation is taken for the purposes of this section to have a substantial degree of power in a market if:\n\n (a) a body corporate that is related to that corporation has, or 2 or more bodies corporate each of which is related to that corporation together have, a substantial degree of power in that market; or\n\n (b) that corporation and a body corporate that is, or that corporation and 2 or more bodies corporate each of which is, related to that corporation, together have a substantial degree of power in that market.\n\n (4) In determining for the purposes of this section the degree of power that a body corporate or bodies corporate have in a market:\n\n (a) regard must be had 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:\n\n (i) competitors, or potential competitors, of the body corporate or of any of those bodies corporate in that market; or\n\n (ii) persons to whom or from whom the body corporate or any of those bodies corporate supplies or acquires goods or services in that market; and\n\n (b) regard may be had to the power the body corporate or bodies corporate have in that market that results from:\n\n (i) any contracts, arrangements or understandings that the body corporate or bodies corporate have with another party or other parties; or\n\n (ii) any proposed contracts, arrangements or understandings that the body corporate or bodies corporate may have with another party or other parties.\n\n (5) For the purposes of this section, a body corporate may have a substantial degree of power in a market even though:\n\n (a) the body corporate does not substantially control that market; or\n\n (b) the body corporate does not have absolute freedom from constraint by the conduct of:\n\n (i) competitors, or potential competitors, of the body corporate in that market; or\n\n (ii) persons to whom or from whom the body corporate supplies or acquires goods or services in that market.\n\n (6) Subsections (4) and (5) do not 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.\n\n (7) To avoid doubt, for the purposes of this section, more than one corporation may have a substantial degree of power in a market.\n\n (8) In this section:\n\n (a) a reference to power is a reference to market power; and\n\n (b) a reference to a market is a reference to a market for goods or services; and\n\n (c) a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.","sortOrder":378},{"sectionNumber":"46A","sectionType":"section","heading":"Misuse of market power—corporation with substantial degree of power in trans-Tasman market","content":"46A  Misuse of market power—corporation with substantial degree of power in trans‑Tasman market\n\n (1) In this section:\n\nconduct, in relation to a market, means conduct in the market either as a supplier or acquirer of goods or services in the market.\n\nimpact market means a market in Australia that is not a market exclusively for services.\n\nmarket 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.\n\ntrans‑Tasman market means a market in Australia, New Zealand or Australia and New Zealand for goods or services.\n\n (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:\n\n (a) eliminating or substantially damaging a competitor of the corporation, or of a body corporate that is related to the corporation, in an impact market; or\n\n (b) preventing the entry of a person into an impact market; or\n\n (c) deterring or preventing a person from engaging in competitive conduct in an impact market.\n\n (2A) For the purposes of subsection (2):\n\n (a) the reference in paragraph (2)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and\n\n (b) the reference in paragraphs (2)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons.\n\n (3) If:\n\n (a) a body corporate that is related to a corporation has, or 2 or more bodies corporate each of which is related to the one corporation together have, a substantial degree of market power in a trans‑Tasman market; or\n\n (b) a corporation and a body corporate that is, or a corporation and 2 or more bodies corporate each of which is, related to the corporation, together have a substantial degree of market power in a trans‑Tasman market;\n\nthe corporation is taken, for the purposes of this section, to have a substantial degree of market power in the trans‑Tasman market.\n\n (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:\n\n (a) competitors, or potential competitors, of the body corporate, or of any of those bodies corporate, in the trans‑Tasman market; or\n\n (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.\n\n (5) Without extending by implication the meaning of subsection (2), a corporation is not taken to contravene that subsection merely because it acquires plant or equipment.\n\n (6) This section does not prevent a corporation from engaging in conduct that does not constitute a contravention of any of the following sections, namely, sections 45, 47, 49 and 50, because an authorisation is in force or because of the operation of subsection 45(8A) or section 93.\n\n (7) Without limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a corporation may be taken to have taken advantage of its market power for a purpose referred to in subsection (2) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the corporation or of any other person or from other relevant circumstances.\n\n (8) It is the intention of the Parliament that this section, and the provisions of Parts VI and XII so far as they relate to a contravention of this section, should apply to New Zealand and New Zealand Crown corporations to the same extent, and in the same way, as they respectively apply under section 2A to the Commonwealth and authorities of the Commonwealth.\n\n (9) Subsection (8) has effect despite section 9 of the Foreign States Immunities Act 1985.","sortOrder":379},{"sectionNumber":"46B","sectionType":"section","heading":"No immunity from jurisdiction in relation to certain New Zealand laws","content":"46B  No immunity from jurisdiction in relation to certain New Zealand laws\n\n (1) It is hereby declared, for the avoidance of doubt, that the Commonwealth, the States, the Australian Capital Territory and the Northern Territory, and their authorities, are not immune, and may not claim immunity, from the jurisdiction of the courts of Australia and New Zealand in relation to matters arising under sections 36A, 98H and 99A of the Commerce Act 1986 of New Zealand.\n\n (2) This section applies in and outside Australia.","sortOrder":380},{"sectionNumber":"47","sectionType":"section","heading":"Exclusive dealing","content":"47  Exclusive dealing\n\n (1) Subject to this section, a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing.\n\n (2) A corporation engages in the practice of exclusive dealing if the corporation:\n\n (a) supplies, or offers to supply, goods or services;\n\n (b) supplies, or offers to supply, goods or services at a particular price; or\n\n (c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation;\n\non 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:\n\n (d) will not, or will not except to a limited extent, acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;\n\n (e) will not, or will not except to a limited extent, re‑supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; or\n\n (f) in the case where the corporation supplies or would supply goods or services, will not re‑supply the goods or services to any person, or will not, or will not except to a limited extent, re‑supply the goods or services:\n\n (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or\n\n (ii) in particular places or classes of places or in places other than particular places or classes of places.\n\n (3) A corporation also engages in the practice of exclusive dealing if the corporation refuses:\n\n (a) to supply goods or services to a person;\n\n (b) to supply goods or services to a person at a particular price; or\n\n (c) to give or allow a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services to a person;\n\nfor the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate:\n\n (d) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;\n\n (e) has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; or\n\n (f) has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired from the corporation to any person, or has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired from the corporation:\n\n (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or\n\n (ii) in particular places or classes of places or in places other than particular places or classes of places.\n\n (4) A corporation also engages in the practice of exclusive dealing if the corporation:\n\n (a) acquires, or offers to acquire, goods or services; or\n\n (b) acquires, or offers to acquire, goods or services at a particular price;\n\non 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:\n\n (c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or\n\n (d) in particular places or classes of places or in places other than particular places or classes of places.\n\n (5) A corporation also engages in the practice of exclusive dealing if the corporation refuses:\n\n (a) to acquire goods or services from a person; or\n\n (b) to acquire goods or services at a particular price from a person;\n\nfor 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:\n\n (c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or\n\n (d) in particular places or classes of places or in places other than particular places or classes of places.\n\n (6) A corporation also engages in the practice of exclusive dealing if the corporation:\n\n (a) supplies, or offers to supply, goods or services;\n\n (b) supplies, or offers to supply, goods or services at a particular price; or\n\n (c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation;\n\non 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.\n\n (7) A corporation also engages in the practice of exclusive dealing if the corporation refuses:\n\n (a) to supply goods or services to a person;\n\n (b) to supply goods or services at a particular price to a person; or\n\n (c) to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a person;\n\nfor the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation.\n\n (8) A corporation also engages in the practice of exclusive dealing if the corporation grants or renews, or makes it known that it will not exercise a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building on the condition that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate:\n\n (a) will not, or will not except to a limited extent:\n\n (i) acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; or\n\n (ii) re‑supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;\n\n (b) will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description:\n\n (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or\n\n (ii) in particular places or classes of places or in places other than particular places or classes of places; or\n\n (c) will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation.\n\n (9) A corporation also engages in the practice of exclusive dealing if the corporation refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building for the reason that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate:\n\n (a) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;\n\n (b) has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;\n\n (c) has supplied goods or services, or goods or services of a particular kind or description:\n\n (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or\n\n (ii) in particular places or classes of places or in places other than particular places or classes of places; or\n\n (d) has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation.\n\n (10) Subsection (1) does not apply to the practice of exclusive dealing by a corporation unless:\n\n (a) the engaging by the corporation in the conduct that constitutes the practice of exclusive dealing has the purpose, or has or is likely to have the effect, of substantially lessening competition; or\n\n (b) the engaging by the corporation in the conduct that constitutes the practice of exclusive dealing, and the engaging by the corporation, or by a body corporate related to the corporation, in other conduct of the same or a similar kind, together have or are likely to have the effect of substantially lessening competition.\n\n (11) Subsections (8) and (9) do not apply with respect to:\n\n (a) conduct engaged in:\n\n (i) by a registered charity; and\n\n (ii) for or in accordance with the purposes or objects of that registered charity; or\n\n (b) conduct engaged in in pursuance of a legally enforceable requirement made by a registered charity, being a requirement made for or in accordance with the purposes or objects of that registered charity.\n\n (12) Subsection (1) does not apply with respect to any conduct engaged in by a body corporate by way of restricting dealings by another body corporate if those bodies corporate are related to each other.\n\n (13) In this section:\n\n (a) a reference to a condition shall be read as a reference to any condition, whether direct or indirect and whether having legal or equitable force or not, and includes a reference to a condition the existence or nature of which is ascertainable only by inference from the conduct of persons or from other relevant circumstances;\n\n (b) a reference to competition, in relation to conduct to which a provision of this section other than subsection (8) or (9) applies, shall be read as a reference to competition in any market in which:\n\n (i) the corporation engaging in the conduct or any body corporate related to that corporation; or\n\n (ii) any person whose business dealings are restricted, limited or otherwise circumscribed by the conduct or, if that person is a body corporate, any body corporate related to that body corporate;\n\n  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\n\n (c) a reference to competition, in relation to conduct to which subsection (8) or (9) applies, shall be read as a reference to competition in any market in which the corporation engaging in the conduct or any other corporation the business dealings of which are restricted, limited or otherwise circumscribed by the conduct, or any body corporate related to either of those corporations, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services.","sortOrder":381},{"sectionNumber":"48","sectionType":"section","heading":"Resale price maintenance","content":"48  Resale price maintenance\n\n (1) A corporation or other person shall not engage in the practice of resale price maintenance.\n\n (2) Subsection (1) does not apply to a corporation or other person engaging in conduct that constitutes the practice of resale price maintenance if:\n\n (a) the corporation or other person has given the Commission a notice under subsection 93(1) describing the conduct; and\n\n (b) the notice is in force under section 93.","sortOrder":382},{"sectionNumber":"49","sectionType":"section","heading":"Dual listed company arrangements that affect competition","content":"49  Dual listed company arrangements that affect competition\n\n (1) A corporation must not:\n\n (a) make a dual listed company arrangement if a provision of the proposed arrangement has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or\n\n (b) give effect to a provision of a dual listed company arrangement if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition.\n\nNote: Conduct that would otherwise contravene this section can be authorised under section 88.\n\nException\n\n (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:\n\n (a) the arrangement is subject to a condition that the provision will not come into force unless and until the corporation is granted an authorisation to give effect to the provision; and\n\n (b) the corporation applies for the grant of such an authorisation within 14 days after the arrangement is made.\n\nHowever, this subsection does not permit the corporation to give effect to such a provision.\n\nMeaning of competition\n\n (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:\n\n (a) a corporation that is a party to the arrangement or would be a party to the proposed arrangement; or\n\n (b) any body corporate related to such a corporation;\n\nsupplies 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.\n\n (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:\n\n (a) the other provisions of that arrangement or proposed arrangement;\n\n (b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the corporation or a body corporate related to the corporation is or would be a party;\n\ntogether have or are likely to have that effect.","sortOrder":383},{"sectionNumber":"50","sectionType":"section","heading":"Prohibition of acquisitions that would result in a substantial lessening of competition","content":"50  Prohibition of acquisitions that would result in a substantial lessening of competition\n\n (1) A corporation must not directly or indirectly:\n\n (a) acquire shares in the capital of a body corporate; or\n\n (b) acquire any assets of a person;\n\nif the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market.\n\nNote: The corporation will not be prevented from making the acquisition if the corporation is granted an authorisation for the acquisition under section 88.\n\n (2) A person must not directly or indirectly:\n\n (a) acquire shares in the capital of a corporation; or\n\n (b) acquire any assets of a corporation;\n\nif the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market.\n\nNote: The person will not be prevented from making the acquisition if the person is granted an authorisation for the acquisition under section 88.\n\n (3) For the purposes of this section, an acquisition may have the effect or be likely to have the effect of substantially lessening competition in a market if the acquisition would, in all the circumstances, have the effect, or be likely to have the effect, of creating, strengthening or entrenching a substantial degree of power in the market.\n\n (3A) Subsections 46(3) to (8) have effect for the purposes of this section as if:\n\n (a) a reference in those subsections (other than in paragraph 46(8)(b)) to section 46 included a reference to this section; and\n\n (b) a reference in those subsections to a market were a reference to a market (within the meaning of this section).\n\nNote: Subsections 46(3) to (8) contain matters relevant to working out whether a corporation has a substantial degree of power in a market.\n\n (3B) To avoid doubt, subsection (3) does not affect the meaning of substantially lessening competition outside this section.\n\n (4) Where:\n\n (a) a person has entered into a contract to acquire shares in the capital of a body corporate or assets of a person;\n\n (b) the contract is subject to a condition that the provisions of the contract relating to the acquisition will not come into force unless and until the person has been granted an authorisation to acquire the shares or assets; and\n\n (c) the person applied for the grant of such an authorisation before the expiration of 14 days after the contract was entered into;\n\nthe 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:\n\n (d) the application for the authorisation is disposed of; or\n\n (e) the contract ceases to be subject to the condition;\n\nwhichever first happens.\n\n (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.\n\nNotified acquisitions\n\n (5B) This section does not apply to a notified acquisition.\n\nDefinitions\n\n (6) In this section:\n\nmarket means a market for goods or services in:\n\n (a) Australia; or\n\n (b) a State; or\n\n (c) a Territory; or\n\n (d) a region of Australia.","sortOrder":384},{"sectionNumber":"50A","sectionType":"section","heading":"Acquisitions that occur outside Australia before 1 January 2026","content":"50A  Acquisitions that occur outside Australia before 1 January 2026\n\n (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:\n\n (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\n\n (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;\n\nmake a declaration accordingly.\n\n (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.\n\n (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:\n\n (a) the Tribunal must regard the following as benefits to the public (in addition to any other benefits to the public that may exist apart from this paragraph):\n\n (i) a significant increase in the real value of exports;\n\n (ii) a significant substitution of domestic products for imported goods; and\n\n (b) without limiting the matters that may be taken into account, the Tribunal must take into account all other relevant matters that relate to the international competitiveness of any Australian industry.\n\n (2) Where an application under subsection (1) is made:\n\n (a) the Tribunal shall give to:\n\n (i) each corporation in relation to which the application relates; and\n\n (ii) the Minister and the Commission;\n\n  a notice in writing stating that the application has been made; and\n\n (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.\n\n (3) An application under subsection (1) may be made at any time within 12 months after the date of the acquisition referred to in that subsection in relation to which the application is made.\n\n (4) The Tribunal may, on the application of the Minister, the Commission or any other person, or of its own motion, revoke a declaration made under subsection (1).\n\n (5) The Tribunal shall state in writing its reasons for making, refusing to make or revoking a declaration under subsection (1).\n\n (6) After the end of 6 months after a declaration is made under subsection (1) in relation to the obtaining of a controlling interest in a corporation or 2 or more corporations by a person or, if the person, before the end of that period of 6 months, makes an application to a presidential member for an extension of that period, after the end of such further period (not exceeding 6 months) as the presidential member allows, the corporation or each of the corporations, as the case may be, shall not, while the declaration remains in force, carry on business in the market to which the declaration relates.\n\n (7) Subsection (1) does not apply in relation to an acquisition referred to in that subsection if section 50 applies in relation to that acquisition.\n\n (7A) Subsection (1) does not apply to:\n\n (a) a notified acquisition; or\n\n (b) an acquisition that is put into effect on or after 1 January 2026.\n\n (8) For the purposes of this section:\n\n (a) a person shall be taken to hold a controlling interest in a body corporate if the body corporate is, or, if the person were a body corporate, would be, a subsidiary of the person (otherwise than by reason of the application of paragraph 4A(1)(b)); and\n\n (b) where a person holds a controlling interest (including a controlling interest held by virtue of another application or other applications of this paragraph) in a body corporate and that body corporate:\n\n (i) controls the composition of the board of directors of another body corporate;\n\n (ii) is in a position to cast, or control the casting of, any votes that might be cast at a general meeting of another body corporate; or\n\n (iii) holds shares in the capital of another body corporate;\n\n  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.\n\n (9) In this section:\n\nmarket means a substantial market for goods or services in Australia, in a State or in a Territory.","sortOrder":385},{"sectionNumber":"51","sectionType":"section","heading":"Exceptions","content":"51  Exceptions\n\n (1) In deciding whether a person has contravened this Part, the following must be disregarded:\n\n (a) anything specified in, and specifically authorised by:\n\n (i) an Act (not including an Act relating to patents, trade marks, designs or copyrights); or\n\n (ii) regulations made under such an Act;\n\n (b) anything done in a State, if the thing is specified in, and specifically authorised by:\n\n (i) an Act passed by the Parliament of that State; or\n\n (ii) regulations made under such an Act;\n\n (c) anything done in the Australian Capital Territory, if the thing is specified in, and specifically authorised by:\n\n (i) an enactment as defined in section 3 of the Australian Capital Territory (Self‑Government) Act 1988; or\n\n (ii) regulations made under such an enactment;\n\n (d) anything done in the Northern Territory, if the thing is specified in, and specifically authorised by:\n\n (i) an enactment as defined in section 4 of the Northern Territory (Self‑Government) Act 1978; or\n\n (ii) regulations made under such an enactment;\n\n (e) anything done in another Territory, if the thing is specified in, and specifically authorised by:\n\n (i) an Ordinance of that Territory; or\n\n (ii) regulations made under such an Ordinance.\n\n (1A) Without limiting subsection (1), conduct is taken to be specified in, and authorised by, a law for the purposes of that subsection if:\n\n (a) a licence or other instrument issued or made under the law specifies one or both of the following:\n\n (i) the person authorised to engage in the conduct;\n\n (ii) the place where the conduct is to occur; and\n\n (b) the law specifies the attributes of the conduct except those mentioned in paragraph (a).\n\nFor this purpose, law means an Act, State Act, enactment or Ordinance.\n\n (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.\n\n (1C) The operation of subsection (1) is subject to the following limitations:\n\n (a) in order for something to be regarded as specifically authorised for the purposes of subsection (1), the authorising provision must expressly refer to this Act;\n\n (b) subparagraph (1)(a)(ii) and paragraphs (1)(b), (c), (d) and (e) do not apply in deciding whether a person has contravened Division 1A or section 50 or 50A;\n\n (c) regulations referred to in subparagraph (1)(a)(ii), (b)(ii), (c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a particular thing to be disregarded if the thing happens more than 2 years after those regulations came into operation;\n\n (d) regulations referred to in subparagraph (1)(a)(ii), (b)(ii), (c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a particular thing to be disregarded to the extent that the regulations are the same in substance as other regulations:\n\n (i) referred to in the subparagraph concerned; and\n\n (ii) that came into operation more than 2 years before the particular thing happened;\n\n (e) paragraphs (1)(b) to (d) have no effect in relation to things authorised by a law of a State or Territory unless:\n\n (i) at the time of the alleged contravention referred to in subsection (1) the State or Territory was a fully‑participating jurisdiction and a party to the National Competition Policy Agreement; or\n\n (ii) all of the following conditions are met:\n\n (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 National Competition Policy Agreement, within 12 months before the alleged contravention referred to in subsection (1);\n\n (B) the thing authorised was the making of a contract, or an action under a contract, that existed immediately before the Minister published the notice or the State or Territory ceased to be a party;\n\n (C) the law authorising the thing was in force immediately before the Minister published the notice or the State or Territory ceased to be a party;\n\n (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.\n\n (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:\n\n (a) to any act done, or concerted practice, to the extent that it relates to the remuneration, conditions of employment, hours of work or working conditions of employees; or\n\n (aa) to:\n\n (i) the making of a contract or arrangement, or the entering into of an understanding; or\n\n (ii) any provision of a contract, arrangement or understanding;\n\n  to the extent that the contract, arrangement, understanding or provision relates to the remuneration, conditions of employment, hours of work or working conditions of employees; or\n\n (b) to any provision of a contract of service or of a contract for the provision of services, being a provision under which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which he or she may engage during, or after the termination of, the contract; or\n\n (c) to:\n\n (i) any provision of a contract, arrangement or understanding; or\n\n (ii) any concerted practice;\n\n  to the extent that the provision or concerted practice obliges a person to comply with or apply standards of dimension, design, quality or performance prepared or approved by Standards Australia or a prescribed association or body; or\n\n (d) to:\n\n (i) any provision of a contract, arrangement or understanding; or\n\n (ii) any concerted practice;\n\n  between partners none of whom is a body corporate, to the extent that the provision or concerted practice relates to:\n\n (iii) the terms of the partnership; or\n\n (iv) the conduct of the partnership business; or\n\n (v) competition between the partnership and a party to the contract, arrangement, understanding or concerted practice, while the party is, or after the party ceases to be, a partner; or\n\n (e) in the case of a contract for the sale of a business or of shares in the capital of a body corporate carrying on a business—to any provision of the contract that is solely for the protection of the purchaser in respect of the goodwill of the business and is not declared under subsection 51ABZG(1); or\n\n (g) to:\n\n (i) any provision of a contract, arrangement or understanding; or\n\n (ii) any concerted practice;\n\n  to the extent that the provision or concerted practice relates exclusively to:\n\n (iii) the export of goods from Australia; or\n\n (iv) the supply of services outside Australia;\n\n  if full and accurate particulars of the provision or concerted practice were given to the Commission no more than 14 days after the day the contract or arrangement was made or the understanding or concerted practice was entered into, or before 8 September 1976, whichever was the later.\n\n (2AA) For the purposes of paragraph (2)(g), the particulars to be given to the Commission:\n\n (a) need not include particulars of prices for the goods or services; but\n\n (b) must include particulars of any method of fixing, controlling or maintaining such prices.\n\n (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.\n\n (5) In the application of subsection (2A) to section 46A, the reference in that subsection to trade or commerce includes trade or commerce within New Zealand.","sortOrder":386},{"sectionNumber":"51AAA","sectionType":"section","heading":"Concurrent operation of State and Territory laws","content":"51AAA  Concurrent operation of State and Territory laws\n\n  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.","sortOrder":387},{"sectionNumber":"Part IVA","sectionType":"part","heading":"Notification of acquisitions","content":"Part IVA—Notification of acquisitions","sortOrder":388},{"sectionNumber":"51ABA","sectionType":"section","heading":"Simplified outline of this Part","content":"51ABA  Simplified outline of this Part\n\nCertain acquisitions, including acquisitions of shares in the capital of a body corporate or of any assets of a person, are required to be notified to the Commission before they are put into effect if they are determined under Division 2.\n\nDivision 3 provides for persons to notify proposed acquisitions to the Commission (including acquisitions that are not required to be notified).\n\nThe Commission may determine that a notified acquisition may be put into effect if the Commission is satisfied it would not substantially lessen competition (Division 4).\n\nIf the Commission does not make such a determination, the notifying parties may ask the Commission to determine that the proposed acquisition would be of public benefit (Division 5).\n\nNote: For the consequences of failing to notify the Commission of an acquisition, or for putting into effect an acquisition that the Commission has neither determined may be put into effect nor determined would be of public benefit, see Division 1A of Part IV.","sortOrder":391},{"sectionNumber":"51ABB","sectionType":"section","heading":"Acquisitions to which acquisitions provisions apply","content":"51ABB  Acquisitions to which acquisitions provisions apply\n\n (1) Subject to section 51ABD, the acquisitions provisions apply to the following acquisitions:\n\n (a) an acquisition by a corporation of shares in the capital of a body corporate;\n\n (b) an acquisition by a corporation of any assets of a person;\n\n (c) an acquisition by a corporation of anything determined under paragraph (2)(a) of this section;\n\n (d) an acquisition of shares in the capital of a corporation;\n\n (e) an acquisition of any assets of a corporation;\n\n (f) an acquisition of anything, relating to a corporation, determined under paragraph (2)(a).\n\n (2) The Minister may, by legislative instrument, determine:\n\n (a) a thing for the purposes of paragraphs (1)(c) and (f); or\n\n (b) a person or entity, in relation to an acquisition to which paragraph (1)(c) or (f) of this section applies, for the purposes of paragraph 51ABI(3)(c).","sortOrder":393},{"sectionNumber":"51ABC","sectionType":"section","heading":"Acquisition of units in unit trusts and interests in managed investment schemes","content":"51ABC  Acquisition of units in unit trusts and interests in managed investment schemes\n\n (1) The acquisitions provisions apply to the acquisition of units in a unit trust:\n\n (a) as if:\n\n (i) the trust were a body corporate; and\n\n (ii) units in the trust were shares in the capital of the body corporate; and\n\n (b) with such other modifications as are determined under paragraph (3)(a) for the purposes of this paragraph in relation to the trust.\n\nNote: For when a reference to a corporation includes a reference to the unit trust, see paragraph 51ABZZK(2)(c) or (3)(c).\n\n (2) The acquisitions provisions apply to the acquisition of an interest in a managed investment scheme:\n\n (a) as if:\n\n (i) the scheme were a body corporate; and\n\n (ii) interests in the scheme were shares in the capital of the body corporate; and\n\n (b) as if the body corporate were a corporation if the following person is a corporation:\n\n (i) if the scheme is a registered scheme (within the meaning of that Act)—the scheme’s responsible entity (within the meaning of that Act);\n\n (ii) if the scheme is not a registered scheme—the holder of the office (by whatever name it is known) in relation to the scheme that corresponds most closely to the office of responsible entity of a registered scheme; and\n\n (c) with such other modifications as are determined under paragraph (3)(b) for the purposes of this paragraph in relation to the scheme.\n\n (3) The Minister may, by legislative instrument, determine:\n\n (a) modifications of the acquisitions provisions for the purposes of paragraph (1)(b) in relation to a unit trust; or\n\n (b) modifications of the acquisitions provisions for the purposes of paragraph (2)(c) in relation to a managed investment scheme.","sortOrder":394},{"sectionNumber":"51ABD","sectionType":"section","heading":"Internal restructures and reorganisations","content":"51ABD  Internal restructures and reorganisations\n\n (1) The acquisitions provisions do not apply to an acquisition that is, or is part of, a restructure or reorganisation of a group of persons who are related:\n\n (a) in the ways referred to in section 4A (related bodies corporate); or\n\n (b) by means of trust or partnership.\n\n (2) Paragraph (1)(a) applies as if:\n\n (a) the Commonwealth, a State or a Territory were a body corporate; and\n\n (b) each authority of the Commonwealth, a State or a Territory were a subsidiary of the Commonwealth, the State or the Territory.\n\n (3) However, for the purposes of paragraph (1)(a), subsection (2) does not affect when an authority of the Commonwealth, a State or a Territory is related to another authority of the Commonwealth, the State or the Territory.","sortOrder":395},{"sectionNumber":"51ABE","sectionType":"section","heading":"When acquisitions are stayed","content":"51ABE  When acquisitions are stayed\n\n (1) An acquisition to which any of the following subsections applies is stayed.\n\n (2) This subsection applies to an acquisition that:\n\n (a) is required to be notified; but\n\n (b) is not a notified acquisition.\n\nNote: For when an acquisition is required to be notified, see Division 2.\n\n (3) This subsection applies to a notified acquisition if the most recent notification of the acquisition has not been finally considered.\n\nNote: For when a notification has been finally considered, see section 51ABF.\n\n (4) This subsection applies to a notified acquisition if:\n\n (a) the most recent determination under subsection 51ABZE(1) in respect of a notification of the acquisition is a determination that the acquisition must not be put into effect; and\n\n (b) since making that determination, the Commission has not made a determination under paragraph 51ABZW(1)(a) in respect of the notification.\n\n (5) This subsection applies to a notified acquisition if the most recent notification of the acquisition is stale.\n\nNote: For when a notification is stale, see section 51ABG.","sortOrder":397},{"sectionNumber":"51ABF","sectionType":"section","heading":"When notifications have been finally considered","content":"51ABF  When notifications have been finally considered\n\n (1) A notification of an acquisition has been finally considered if:\n\n (a) the Commission has made a determination under subsection 51ABZE(1) in respect of the notification; and\n\n (b) the determination made under subsection 51ABZE(1) is no longer subject to review; and\n\n (c) if the determination made under subsection 51ABZE(1) includes conditions, or is a determination that the acquisition must not be put into effect:\n\n (i) in the case of a determination that includes conditions—a public benefit application in relation to the notification has not been made; or\n\n (ii) in the case of a determination that the acquisition must not be put into effect—a public benefit application in relation to the notification has not been made, and the period during which such an application could be made has ended; or\n\n (iii) in any case—a public benefit application in relation to the notification has been made, and the Commission has decided under section 51ABZV to cease considering the application; or\n\n (iv) in any case—a public benefit application in relation to the notification has been made, the Commission has made a determination under subsection 51ABZW(1) in respect of the application, and the determination made under subsection 51ABZW(1) is no longer subject to review.\n\nNote: A notification has not been finally considered if:\n\n(a) it does not have an effective notification date; or\n\n(b) the Commission has decided to cease considering the notification under section 51ABZD.\n\n (2) An acquisition determination is no longer subject to review if:\n\n (a) both:\n\n (i) an application has not been made under subsection 100C(1) for review of the determination; and\n\n (ii) the period during which such an application could be made has ended; or\n\n (b) an application has been made under subsection 100C(1) for review of the determination, and:\n\n (i) the application has been withdrawn under subsection 100E(1) and the period during which a participant may apply for reinstatement of the application under subsection 100E(2) has ended without an application for reinstatement being made; or\n\n (ii) the Tribunal has dismissed the application; or\n\n (iii) the Tribunal has made a determination on the review under paragraph 100N(1)(a).","sortOrder":398},{"sectionNumber":"51ABG","sectionType":"section","heading":"When notifications become stale","content":"51ABG  When notifications become stale\n\n (1) A notification of an acquisition becomes stale immediately after the end of the relevant period (see subsections (2) and (3)), assuming there is such a period.\n\n (2) Unless subsection (3) applies, the relevant period is the 12‑month period starting at the time (if any) at which the Commission:\n\n (a) unless paragraph (b) of this section applies—makes a determination under paragraph 51ABZE(1)(a) in respect of the notification; or\n\n (b) if the Commission makes a determination under paragraph 51ABZW(1)(a) in respect of a public benefit application that relates to the notification—makes that determination.\n\n (3) The Commission may, on written request, decide to extend by up to a further 6 months the relevant period applying under subsection (2), or under an earlier application of this subsection, if the Commission has had regard to the following:\n\n (a) whether there are reasonable reasons why the acquisition has not been put into effect;\n\n (b) whether there have been material changes to the market since the determination described in subsection (2) was made;\n\n (c) whether it would be more appropriate for there to be another notification of the acquisition.\n\nThe Commission may also have regard to other matters.\n\nNote: Any conditions included in a determination under paragraph 51ABZE(1)(a) or 51ABZW(1)(a) continue to apply during the extended period.\n\n (4) A request for an extension under subsection (3) may be made by the notifying party of the notification. The Commission must give written notice to that party of the Commission’s decision whether or not to grant the extension.","sortOrder":399},{"sectionNumber":"51ABH","sectionType":"section","heading":"When notified acquisitions are subject to conditions","content":"51ABH  When notified acquisitions are subject to conditions\n\n  Putting a notified acquisition into effect is subject to a condition if:\n\n (a) both:\n\n (i) the most recent determination in respect of a notification of the acquisition under subsection 51ABZE(1) includes that condition; and\n\n (ii) since making that determination, the Commission has not made a determination under paragraph 51ABZW(1)(a) in respect of the notification; or\n\n (b) both:\n\n (i) the most recent determination in respect of a notification of the acquisition under subsection 51ABZW(1) includes that condition; and\n\n (ii) since making that determination, the Commission has not made a determination under subsection 51ABZE(1) in respect of a notification of the acquisition.","sortOrder":400},{"sectionNumber":"51ABI","sectionType":"section","heading":"Parties to acquisitions","content":"51ABI  Parties to acquisitions\n\n (1) Each of the following is a party to an acquisition of shares in the capital of a body corporate, any assets of a person or a thing determined under subsection 51ABB(2):\n\n (a) the person (a principal party to the acquisition) who acquires the shares, assets or determined thing;\n\n (b) without limiting paragraph (a)—a person that is a party to a contract, arrangement or understanding pursuant to which the acquisition takes place.\n\n (2) To avoid doubt, a reference to a party or principal party to an acquisition that has not been put into effect is a reference to a person that would be a party or principal party to the acquisition if the acquisition were put into effect.\n\n (3) The target:\n\n (a) of an acquisition of shares in the capital of a body corporate—is the body corporate; and\n\n (b) of an acquisition of any assets of a person—is the person; and\n\n (c) of an acquisition to which subparagraph 51ABB(1)(c) or (f) applies—is the person or entity determined under paragraph 51ABB(2)(b) for the purposes of this paragraph in relation to the acquisition.","sortOrder":401},{"sectionNumber":"51ABJ","sectionType":"section","heading":"Meaning of Chapter 6 entity","content":"51ABJ  Meaning of Chapter 6 entity\n\n (1) A Chapter 6 entity is:\n\n (a) a listed company (within the meaning of the Corporations Act 2001); or\n\n (b) an unlisted company with more than 50 members (within the meaning of that Act); or\n\n (c) a listed registered scheme (within the meaning of that Act).\n\n (2) In determining whether a company has more than 50 members for the purposes of paragraph (1)(b), count joint holders of a particular parcel of shares as 1 person.\n\n (3) A reference in sections 603, 604 and 605A of the Corporations Act 2001 to Chapter 6 of that Act is taken to include a reference to:\n\n (a) subsections (1) and (2) of this section; and\n\n (b) Subdivision B of Division 2 of this Part; and\n\n (c) Subdivision D of Division 6 of this Part.","sortOrder":403},{"sectionNumber":"51ABK","sectionType":"section","heading":"Meaning of business day","content":"51ABK  Meaning of business day\n\n  For the purposes of this Part, a business day is a day that is not:\n\n (a) a Saturday; or\n\n (b) a Sunday; or\n\n (c) a public holiday in the Australian Capital Territory; or\n\n (d) a day occurring between:\n\n (i) 23 December in any year; and\n\n (ii) the following 10 January.","sortOrder":404},{"sectionNumber":"51ABL","sectionType":"section","heading":"Conditional contracts, arrangements and understandings","content":"51ABL  Conditional contracts, arrangements and understandings\n\n  For the purposes of the acquisitions provisions, if:\n\n (a) a person enters into a contract, arrangement or understanding pursuant to which the person will acquire:\n\n (i) shares in the capital of a body corporate; or\n\n (ii) any assets of another person; or\n\n (iii) a thing determined under paragraph 51ABB(2)(a); and\n\n (b) the provisions of the contract, arrangement or understanding pursuant to which the acquisition is to take place do not become binding on the person until one or more conditions are met;\n\nthe person does not acquire shares, assets or a determined thing under the provisions unless and until the provisions become binding.","sortOrder":406},{"sectionNumber":"51ABM","sectionType":"section","heading":"Changes in joint ownership","content":"51ABM  Changes in joint ownership\n\n (1) This section applies to joint holders of a particular parcel of shares in the capital of a body corporate.\n\n (2) For the purposes of the acquisitions provisions, one of those persons is taken to acquire those shares if the person begins to hold the shares alone.","sortOrder":407},{"sectionNumber":"51ABN","sectionType":"section","heading":"Acquisition of assets","content":"51ABN  Acquisition of assets\n\n (1) The acquisitions provisions apply in relation to any of the following that is not an asset in the same way as they apply in relation to an asset:\n\n (a) any kind of property;\n\n (b) a legal or equitable right that is not property;\n\n (c) without limiting paragraphs (a) and (b):\n\n (i) part of, or an interest in, an asset referred to in paragraph (a) or (b); or\n\n (ii) goodwill or an interest in it; or\n\n (iii) an interest in an asset of a partnership; or\n\n (iv) an interest in a partnership that is not covered by subparagraph (iii).\n\n (2) For the purposes of the acquisitions provisions, the reference in paragraph 4(4)(b) to an acquisition of an asset in the ordinary course of business is taken not to apply if the asset is:\n\n (a) land, or an interest in land; or\n\n (b) a patent, or an interest in a patent.","sortOrder":408},{"sectionNumber":"51ABO","sectionType":"section","heading":"When acquisitions are required to be notified","content":"51ABO  When acquisitions are required to be notified\n\n  Subject to Subdivisions B and C, an acquisition is required to be notified if:\n\n (a) the acquisition is put into effect on or after 1 January 2026; and\n\n (b) the acquisition:\n\n (i) occurs in circumstances determined under subsection 51ABP(1) for the purposes of this subparagraph in relation to the acquisition; or\n\n (ii) is in a class of acquisitions determined under subsection 51ABQ(1) for the purposes of this subparagraph; and\n\n (c) the acquisition:\n\n (i) does not occur in circumstances determined under subsection 51ABRA(1) for the purposes of this subparagraph in relation to the acquisition; and\n\n (ii) is not in a class of acquisitions determined under subsection 51ABRB(1) for the purposes of this subparagraph.\n\nNote 1: An acquisition is required to be notified only if it is an acquisition to which this Division applies. For the acquisitions to which this Division applies, see Subdivision B of Division 1.\n\nNote 2: See also subsection 51ABS(5).","sortOrder":411},{"sectionNumber":"51ABP","sectionType":"section","heading":"Notification thresholds","content":"51ABP  Notification thresholds\n\n (1) The Minister may, by legislative instrument, determine circumstances for the purposes of subparagraph 51ABO(b)(i) in relation to an acquisition.\n\n (2) The circumstances must be determined wholly or partly by reference to the acquisition meeting a specified threshold.\n\n (3) Without limiting subsection (2) of this section, the specified threshold may be a threshold relating to:\n\n (a) the value of an acquisition or of a contract, arrangement or understanding; or\n\n (b) the turnover of a person, a business or part of a business; or\n\n (c) the level of concentration in a market; or\n\n (d) any assets of a person.\n\n (4) To avoid doubt, an instrument made under subsection (1) does not affect the meaning of substantially lessening competition.","sortOrder":412},{"sectionNumber":"51ABQ","sectionType":"section","heading":"Classes of acquisitions that are required to be notified","content":"51ABQ  Classes of acquisitions that are required to be notified\n\n (1) The Minister may, by legislative instrument, determine a class of acquisitions for the purposes of subparagraph 51ABO(b)(ii).\n\n (2) Without limiting subsection (1) of this section, the Minister may determine a class of acquisitions under that subsection wholly or partly by reference to:\n\n (a) a party, or a class of parties, to an acquisition or to a contract, arrangement or understanding; or\n\n (b) an asset or a class of assets; or\n\n (c) a business or a class of businesses; or\n\n (d) a market or a class of markets; or\n\n (e) an industry or a class of industries; or\n\n (f) another acquisition, or a class of acquisitions.\n\n (3) In making an instrument under subsection (1), the Minister must consider all of the following:\n\n (a) the likely effect of making the instrument on:\n\n (i) the interests of consumers; and\n\n (ii) promoting competition; and\n\n (iii) the public interest;\n\n (b) the likely regulatory impact of requiring the class of acquisitions to which the determination relates to be notified;\n\n (c) any other matters the Minister considers relevant.\n\n (4) In making an instrument under subsection (1) of this section, the Minister may consider any reports or advice of the Commission (including any reports given under subparagraph 51ABR(2)(a)(ii)).\n\nNote: For consultation requirements, see section 17 of the Legislation Act 2003.\n\n (5) An instrument made under subsection (1) must not be expressed to commence earlier than the 30th day after the instrument is registered under the Legislation Act 2003.\n\n (6) This subsection repeals an instrument made under subsection (1) on the fifth anniversary of the registration of the instrument under the Legislation Act 2003, unless the instrument is repealed earlier.\n\n (7) To avoid doubt, an instrument made under subsection (1) does not affect the meaning of substantially lessening competition.","sortOrder":413},{"sectionNumber":"51ABR","sectionType":"section","heading":"Classes of acquisitions that are required to be notified—Commission reports","content":"51ABR  Classes of acquisitions that are required to be notified—Commission reports\n\n (1) Before making an instrument under subsection 51ABQ(1), the Minister may ask the Commission to analyse the matters in paragraphs 51ABQ(3)(a) to (c) in relation to the instrument.\n\n (2) If the Minister does so:\n\n (a) the Commission must:\n\n (i) analyse the matters; and\n\n (ii) give to the Minister a written report of its analysis; and\n\n (b) the Minister must cause the report to be published on the Department’s website; and\n\n (c) the Minister must not make the instrument earlier than 60 days after the report is published.\n\n (3) This section does not limit:\n\n (a) subsection 51ABQ(4) of this Act; or\n\n (b) section 17 of the Legislation Act 2003 (consultation requirements).","sortOrder":414},{"sectionNumber":"51ABRA","sectionType":"section","heading":"Circumstances in which acquisitions are not required to be notified","content":"51ABRA  Circumstances in which acquisitions are not required to be notified\n\n (1) The Minister may, by legislative instrument, determine circumstances for the purposes of subparagraph 51ABO(c)(i) in relation to an acquisition.\n\n (2) Without limiting subsection (1) of this section, the Minister may determine circumstances under that subsection that existed to any extent, or that relate to something that occurred, before 1 January 2026.\n\n (3) To avoid doubt, an instrument made under subsection (1) does not affect the meaning of substantially lessening competition.","sortOrder":415},{"sectionNumber":"51ABRB","sectionType":"section","heading":"Classes of acquisitions that are not required to be notified","content":"51ABRB  Classes of acquisitions that are not required to be notified\n\n (1) The Minister may, by legislative instrument, determine a class of acquisitions for the purposes of subparagraph 51ABO(c)(ii).\n\n (2) Without limiting subsection (1) of this section, the Minister may determine a class of acquisitions under that subsection wholly or partly by reference to:\n\n (a) a party, or a class of parties, to an acquisition or to a contract, arrangement or understanding; or\n\n (b) an asset or a class of assets; or\n\n (c) a business or a class of businesses; or\n\n (d) a market or a class of markets; or\n\n (e) an industry or a class of industries; or\n\n (f) another acquisition, or a class of acquisitions.\n\n (3) To avoid doubt, an instrument made under subsection (1) does not affect the meaning of substantially lessening competition.","sortOrder":416},{"sectionNumber":"51ABS","sectionType":"section","heading":"Acquisitions that do not result in control—no requirement to notify","content":"51ABS  Acquisitions that do not result in control—no requirement to notify\n\n (1) Subject to subsection (5), an acquisition by a person of shares in the capital of a body corporate is not required to be notified if:\n\n (a) immediately after the acquisition is put into effect, the person does not control (within the meaning of section 51ABSA) the body corporate; or\n\n (b) the person controlled (within the meaning of section 51ABSA) the body corporate immediately before the acquisition was put into effect.\n\nNote: This section and sections 51ABSA and 51ABSB apply in a similar way to acquisitions of units in unit trusts, or acquisitions of interests in managed investment schemes (see section 51ABC of this Act).\n\n (3) For the purposes of subsection (1) of this section, disregard the effects of a scheme if it would be reasonable to conclude that the purpose of the person, or one of the persons, who enters into or carries out the scheme or any part of the scheme is to enable that subsection to apply to an acquisition.\n\nNote: See section 4F (references to purpose).\n\n (4) For the purposes of subsection (3), a scheme is:\n\n (a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or\n\n (b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise; or\n\n (c) any combination of 2 or more things that are schemes because of paragraph (a) or (b) of this subsection.\n\nMinisterial determinations\n\n (5) Despite subsection (1), an acquisition of shares in the capital of a body corporate is required to be notified if:\n\n (a) paragraph (1)(a) or (b) applies to the acquisition; and\n\n (b) the acquisition is in a class of acquisitions determined under subsection (6).\n\n (6) For the purposes of paragraph (5)(b), the Minister may, by legislative instrument, determine a class of acquisitions of shares in the capital of bodies corporate.\n\n (7) Without limiting subsection (6), the Minister may determine a class of acquisitions under that subsection wholly or partly by reference to:\n\n (a) the size of an interest in a body corporate; or\n\n (b) the nature of a person’s control of a body corporate.","sortOrder":418},{"sectionNumber":"51ABSA","sectionType":"section","heading":"Acquisitions that do not result in control—meaning of control","content":"51ABSA  Acquisitions that do not result in control—meaning of control\n\nControl has the same meaning as in a modified version of section 50AA of the Corporations Act 2001\n\n (1) To work out whether a person controls a body corporate for the purposes of subsection 51ABS(1):\n\n (a) start with the meaning of control in section 50AA of the Corporations Act 2001; but\n\n (b) treat that section as if it were modified as set out in this section.\n\nNote: Subsection 51ABS(3) or (5) can also affect whether subsection 51ABS(1) applies in relation to the person.\n\nModifications of subsection 50AA(3) of that Act\n\n (2) Assume that subsection 50AA(3) of that Act instead provided that the person controls the body corporate if:\n\n (a) the person; and\n\n (b) one or more associates (within the meaning of section 51ABSB of this Act);\n\njointly have the capacity to determine the outcome of decisions about the body corporate’s financial and operating policies.\n\nModifications of subsection 50AA(4) of that Act\n\n (3) Disregard subsection 50AA(4) of that Act if the person is a special purpose vehicle.\n\n (4) Disregard paragraph 50AA(4)(b) of that Act to the extent that it applies to a legal obligation the person has as a subsidiary of someone that is a body corporate.","sortOrder":419},{"sectionNumber":"51ABSB","sectionType":"section","heading":"Acquisitions that do not result in control—meaning of associate","content":"51ABSB  Acquisitions that do not result in control—meaning of associate\n\nMeaning of associate—main rule\n\n (1) For the purposes of paragraph 51ABSA(2)(b), a person (the second person) is an associate of a person (the primary person) in relation to a body corporate (the designated body) if, and only if, one or more of the following paragraphs applies:\n\n (a) the primary person is a body corporate and the second person is:\n\n (i) a body corporate the primary person controls; or\n\n (ii) a body corporate that controls the primary person; or\n\n (iii) a body corporate that is controlled by an entity that controls the primary person;\n\n (b) the second person is a person with whom the primary person has, or proposes to enter into, a relevant agreement for the purpose of controlling or influencing the outcome of decisions about the designated body’s financial and operating policies;\n\n (c) the second person is a person with whom the primary person is acting, or proposing to act, in concert in relation to controlling or influencing the outcome of decisions about the designated body’s financial and operating policies.\n\nException—is not an associate merely because of certain rights\n\n (2) Despite paragraph (1)(b) or (c), the second person is not an associate of the primary person in relation to the designated body merely because:\n\n (a) they have entered or propose to enter into a relevant agreement; and\n\n (b) under the relevant agreement, one of them has or will have one or more rights:\n\n (i) of a class set out in subsection (3); and\n\n (ii) whether enforceable presently or in the future, and whether or not on the fulfilment of a condition.\n\n (3) The classes of rights are as follows:\n\n (a) a right to dispose of securities in the designated body;\n\n (b) a right to control the exercise of a power to dispose of securities in the designated body;\n\n (c) a right that is both:\n\n (i) consistent with a right normally accorded to minority shareholders in order to protect their financial interests as investors; and\n\n (ii) reasonably appropriate and adapted to achieving the purpose of protecting a minority shareholder’s financial interests, in their capacity as an investor, and not for some other purpose;\n\n (d) a right to the distribution of the profits of the designated body in accordance with a policy for allocating such rights for classes of securities in the designated body;\n\n (e) a right under the relevant agreement if the agreement:\n\n (i) would be reasonable in the circumstances if the parties were dealing at arm’s length; and\n\n (ii) is a financing agreement, or a standard shareholder (or member) agreement about governance processes; and\n\n (iii) is not of a class determined under paragraph (5)(a);\n\n (f) a right of a class determined under paragraph (5)(b).\n\nExample: For subparagraph (c)(i), rights normally accorded to minority shareholders can include the following:\n\n(a) protections relating to changes to a body corporate’s constitution or capital;\n\n(b) protections relating to the liquidation, sale or winding up of a body corporate;\n\n(c) protections relating to related‑party dealings;\n\n(d) rights to access information consistent with a minority shareholder’s investment;\n\n(e) rights to observe board meetings.\n\nNote: For the application of subparagraph (e)(ii) to a unit trust or managed investment scheme, note the extended meaning of shareholder in subsection (6).\n\nException—is not an associate merely because of other matters\n\n (4) Despite subsection (1), the second person is not an associate of the primary person in relation to the designated body merely because of one or more of the following:\n\n (a) one gives advice to the other, or acts on the other’s behalf, in the proper performance of the functions attaching to a professional capacity or a business relationship;\n\n (b) one, a client, gives specific instructions to the other, whose ordinary business includes dealing in financial products, to acquire financial products on the client’s behalf in the ordinary course of that business;\n\n (c) one has sent, or proposes to send, to the other an offer under a takeover bid for shares held by the other;\n\n (d) one has appointed the other, otherwise than for valuable consideration, to vote as a proxy or representative at a meeting of members, or of a class of members, of a body corporate;\n\n (e) a matter of a class determined under paragraph (5)(c).\n\nMinisterial determinations\n\n (5) The Minister may, by legislative instrument:\n\n (a) determine a class of agreements for the purposes of subparagraph (3)(e)(iii); or\n\n (b) determine a class of rights for the purposes of paragraph (3)(f); or\n\n (c) determine a class of matters for the purposes of paragraph (4)(e).\n\nDefinitions\n\n (6) In this section:\n\ncontrol has the meaning given by section 50AA of the Corporations Act 2001.\n\nNote: While this section (by defining associate) is modifying what control means for subsection 51ABS(1) of this Act, references in this section to control do not adopt those modifications (of section 50AA of the Corporations Act).\n\nfinancial product has the meaning given by Division 3 of Part 7.1 of the Corporations Act 2001.\n\nmember or shareholder, of a body corporate, includes the following:\n\n (a) if the body is a company—a person who is a member of the company under section 231 of the Corporations Act 2001;\n\n (b) if because of section 51ABC the body is a unit trust—a person who holds a unit in the trust;\n\n (c) if because of section 51ABC the body is a managed investment scheme—a person who holds an interest in the scheme.\n\nrelevant agreement has the same meaning as in the Corporations Act 2001.\n\nsecurities, of a body corporate, has the following meaning:\n\n (a) unless paragraph (b) applies—the same meaning as in subsection 92(2) of the Corporations Act 2001;\n\n (b) if because of section 51ABC the body is a unit trust—a unit in the trust.\n\nNote: If because of section 51ABC the body is a managed investment scheme, see paragraph 92(2)(c) of the Corporations Act 2001.\n\nshareholder: see member.","sortOrder":420},{"sectionNumber":"51ABT","sectionType":"section","heading":"Acquisitions of shares in the capital of Chapter 6 entities","content":"51ABT  Acquisitions of shares in the capital of Chapter 6 entities\n\n (1) An acquisition of shares in the capital of a body corporate is not required to be notified if:\n\n (a) the body corporate is a Chapter 6 entity; and\n\n (b) the acquisition does not result in someone’s voting power (within the meaning of the Corporations Act 2001) in the body corporate increasing:\n\n (i) from 20% or below to more than 20%; or\n\n (ii) from a starting point that is above 20% and below 100%.\n\n (2) For the purposes of paragraph (1)(b), if:\n\n (a) a person enters into a contract, arrangement or understanding pursuant to which the person will acquire shares in the capital of a Chapter 6 entity; and\n\n (b) the provisions of the contract, arrangement or understanding pursuant to which the acquisition is to take place do not become binding on the person until one or more conditions are met;\n\nthen, in working out someone’s voting power, treat the person as not acquiring a relevant interest (within the meaning of the Corporations Act 2001) in the shares under the provisions unless and until the provisions become binding.","sortOrder":421},{"sectionNumber":"51ABU","sectionType":"section","heading":"Notification waiver applications","content":"51ABU  Notification waiver applications\n\n (1) A person may apply to the Commission for a determination that an acquisition is not required to be notified.\n\n (2) The application must be made in accordance with any requirements determined under subsection (3).\n\n (3) For the purposes of subsection (2), the Minister may, by legislative instrument, determine requirements for making a notification waiver application.\n\n (4) Without limiting subsection (3), the requirements may include the payment of a fee.\n\n (5) If the application is made in accordance with subsection (2), it is a notification waiver application in relation to the acquisition.","sortOrder":423},{"sectionNumber":"51ABV","sectionType":"section","heading":"Waivers","content":"51ABV  Waivers\n\n (1) If a notification waiver application in relation to an acquisition is made, the Commission may, in writing, determine:\n\n (a) that the acquisition is not required to be notified; or\n\n (b) not to make the determination applied for.\n\n (2) In making a determination under subsection (1), the Commission must:\n\n (a) comply with any requirements determined under subsection (3); and\n\n (b) subject to paragraph (a) of this subsection, have regard to:\n\n (i) the object of this Act; and\n\n (ii) the interests of consumers; and\n\n (iii) if circumstances are determined under subsection 51ABP(1)—the likelihood that, if the acquisition were put into effect, those circumstances would apply; and\n\n (iv) the likelihood that the acquisition would, if put into effect, have the effect mentioned in paragraph 51ABZE(2)(c).\n\n (3) The Minister may, by legislative instrument, determine requirements for the purposes of paragraph (2)(a) of this section.\n\n (4) Without limiting subsection (3), an instrument made under that subsection may:\n\n (a) determine a requirement that, in specified circumstances, the Commission must not make the determination applied for; or\n\n (b) provide for review by the Tribunal of decisions made under subsection (1).\n\n (5) The Commission must give:\n\n (a) written notice of the determination under subsection (1); and\n\n (b) a written explanation of why it made the determination;\n\nto the applicant.\n\n (6) If the Commission makes a determination under paragraph (1)(a) in respect of the application, the acquisition is not required to be notified.","sortOrder":424},{"sectionNumber":"51ABW","sectionType":"section","heading":"Notifications of acquisitions","content":"51ABW  Notifications of acquisitions\n\n (1) This section applies if the Commission is notified, in accordance with subsection 51ABX(1), of a proposed acquisition (whether or not the acquisition is required to be notified, and whether or not a previous notification of the acquisition has been made).\n\nNote: For the acquisitions to which this section applies, see Subdivision B of Division 1.\n\n (2) The acquisition is a notified acquisition.\n\n (3) The principal party that makes the notification, or each of the principal parties that jointly make the notification, is a notifying party of the notification.\n\n (4) Subject to paragraph 51ABZ(1)(a), subsection 51ABZA(5) and subparagraph 51ABZB(2)(a)(i), the effective notification date of the notification is the day the notification is made.\n\n (5) The Commission must give the notifying party, or at least one of the notifying parties, written notice:\n\n (a) that the Commission has received the notification; and\n\n (b) of the effective notification date.","sortOrder":427},{"sectionNumber":"51ABX","sectionType":"section","heading":"Requirements for notifications","content":"51ABX  Requirements for notifications\n\n (1) A notification of a proposed acquisition is made in accordance with this subsection if:\n\n (a) the notification is made in writing; and\n\n (b) the notification is accompanied by the fee (if any) determined under subsection (2) for the purposes of this paragraph in relation to the notification; and\n\n (c) the notification is made by:\n\n (i) if there is only one principal party to the acquisition—the principal party; or\n\n (ii) otherwise—all of the principal parties jointly; and\n\n (d) any of the following subparagraphs apply when the notification is made:\n\n (i) the acquisition is to take place pursuant to a contract, arrangement or understanding that has been entered into;\n\n (ii) the proposed contract, arrangement or understanding pursuant to which the acquisition is to take place has not been entered into, but all of the proposed parties to the contract, arrangement or understanding pursuant intend to enter into it;\n\n (iii) the acquisition is to be a takeover acquisition in relation to a takeover bid and subsection (4) applies;\n\n (iv) the acquisition is to take place pursuant to a proposed arrangement between a Part 5.1 body and its creditors or any class of them, or between a Part 5.1 body and its members or any class of them, under Part 5.1 of the Corporations Act 2001, and the arrangement has been publicly proposed by the Part 5.1 body.\n\n (2) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (1)(b) in relation to the notification.\n\n (3) To avoid doubt, the notification is taken not to be made before the fee (if any) required by paragraph (1)(b) is paid.\n\n (4) For the purposes of subparagraph (1)(d)(iii), this subsection applies if:\n\n (a) the bid has been publicly proposed; or\n\n (b) the bid has been made; or\n\n (c) the proposed principal party, or all of the proposed principal parties, to the acquisition, intend:\n\n (i) that the bid will be a bid to which paragraphs (c) and (d) of item 2 of the table in section 611 of the Corporations Act 2001 will apply; and\n\n (ii) to make a request under paragraph 51ABZZL(1)(d) of this Act in relation to the acquisition.\n\nNotifications may cover multiple acquisitions\n\n (5) If a proposal to put an acquisition into effect includes a proposal to put another acquisition into effect:\n\n (a) the proposed acquisitions may be notified in a single notification; and\n\n (b) the acquisitions provisions apply in relation to such a notification as if:\n\n (i) those acquisitions together constituted a single acquisition; and\n\n (ii) each party to those acquisitions were a party to that single acquisition; and\n\n (iii) each principal party to those acquisitions were a principal party to that single acquisition.\n\nMultiple notifying parties\n\n (6) If there is more than one notifying party of a notification of an acquisition:\n\n (a) a reference in this Part (other than this Subdivision) to giving a notice to the notifying party of the notification of the acquisition is taken to be a reference to giving a notice to any of those notifying parties; and\n\n (b) a reference in this Part (other than this Subdivision) to the notifying party of the notification of the acquisition doing a thing (such as giving additional information or documents or making a request or application) is taken to be a reference to all of those notifying parties doing that thing jointly.","sortOrder":428},{"sectionNumber":"51ABY","sectionType":"section","heading":"Notifications that are materially incomplete or misleading","content":"51ABY  Notifications that are materially incomplete or misleading\n\n (1) The Commission may decide, in writing, that a notification of an acquisition should be taken not to have an effective notification date, if:\n\n (a) the notification is not subject to phase 2 review; and\n\n (b) the Commission has not made a determination in respect of the notification under subsection 51ABZE(1); and\n\n (c) the Commission is satisfied that subsection (2) of this section applies to the notification.\n\n (2) This subsection applies to the notification if it:\n\n (a) is materially incomplete; or\n\n (b) is materially misleading; or\n\n (c) contains information that is false in a material particular.\n\n (3) The decision must be made within a reasonable period after the Commission begins to be satisfied that subsection (2) applies to the notification.\n\n (4) In considering whether subsection (2) applies to the notification, the Commission may have regard to:\n\n (a) the extent to which the notification is in the form determined under paragraph (5)(a) for the purposes of this paragraph in relation to the notification; or\n\n (b) the extent to which the notification includes, or is accompanied by, any information or document determined under paragraph (5)(b) for the purposes of this paragraph in relation to the notification; or\n\n (c) any additional information or documents given to the Commission as mentioned in section 51ABZA in response to any previous determination under subsection (1) of this section in relation to the notification; or\n\n (d) any change of fact:\n\n (i) of which the Commission becomes aware after the notification is made; and\n\n (ii) that is material to the Commission making a determination under Division 4 in respect of the notification.\n\n (5) The Minister may, in writing, determine:\n\n (a) a form for the purposes of paragraph (4)(a) in relation to the notification; or\n\n (b) information or documents for the purposes of paragraph (4)(b) in relation to the notification.\n\n (6) A determination under subsection (5) may require the notification to specify any goodwill protection provisions of the contract pursuant to which the acquisition would take place.\n\n (7) A determination made under subsection (5) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the instrument.\n\n (8) To avoid doubt, subsection (2) can apply to the notification after the notification is made (for example, because of a change of fact) even if subsection (2) did not apply to the notification when the notification was made.","sortOrder":430},{"sectionNumber":"51ABZ","sectionType":"section","heading":"Notifications that are materially incomplete or misleading—consequences of Commission’s decisions","content":"51ABZ  Notifications that are materially incomplete or misleading—consequences of Commission’s decisions\n\n (1) If the Commission makes a decision under subsection 51ABY(1) in relation to a notification of an acquisition:\n\n (a) the notification is taken never to have had an effective notification date; and\n\n (b) the Commission must give to the notifying party of the notification of the acquisition written notice of:\n\n (i) the decision; and\n\n (ii) the grounds on which the Commission is satisfied that subsection 51ABY(2) applies to the notification.\n\nNote: For review of the decision, see section 51ABZZG.\n\n (2) The Commission must not make a determination under subsection 51ABZE(1) in respect of the notification if, because of a decision made under subsection 51ABY(1), the notification does not have an effective notification date.","sortOrder":431},{"sectionNumber":"51ABZA","sectionType":"section","heading":"Notifications that are incomplete or misleading—providing additional information and documents","content":"51ABZA  Notifications that are incomplete or misleading—providing additional information and documents\n\n (1) This section applies in relation to a notification of an acquisition if:\n\n (a) because of a decision made under subsection 51ABY(1), the notification does not have an effective notification date; and\n\n (b) the notifying party of the notification gives the Commission additional information or documents in response to the decision.\n\n (2) The additional information or documents are given in accordance with this subsection if:\n\n (a) in the case of information—the information is given in writing; and\n\n (b) the information or documents are accompanied by the fee (if any) determined under subsection (3) for the purposes of this paragraph in relation to the information or documents and the notification of the acquisition.\n\n (3) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (2)(b) in relation to the information or documents and the notification.\n\n (4) To avoid doubt, the additional information or documents are taken not to be given before the fee (if any) required by paragraph (2)(b) is paid.\n\n (5) The effective notification date of the notification of the acquisition is the day the additional information or documents are given.\n\n (6) The Commission must give the notifying party written notice of the effective notification date.","sortOrder":432},{"sectionNumber":"51ABZB","sectionType":"section","heading":"Material changes of fact","content":"51ABZB  Material changes of fact\n\n (1) This section applies in relation to a notification of an acquisition if:\n\n (a) the Commission has not made a determination in respect of the notification under subsection 51ABZE(1); and\n\n (b) the Commission becomes aware of a change of fact.\n\n (2) If the Commission is satisfied that the change of fact is material to the Commission making a determination under subsection 51ABZE(1) in respect of the notification, the Commission may, in writing:\n\n (a) if the notification is not subject to phase 2 review:\n\n (i) decide that the effective notification date of the notification is the date on which the Commission becomes aware of the change of fact; or\n\n (ii) decide that the phase 1 determination period for the notification is extended by the period mentioned in subsection (3); or\n\n (b) if the notification is subject to phase 2 review—decide that the phase 2 determination period for the notification is extended by the period mentioned in subsection (3).\n\n (3) For the purposes of subparagraph (2)(a)(ii) or paragraph (2)(b), the extension is for the period:\n\n (a) starting on the day the Commission makes the decision under that subparagraph or paragraph; and\n\n (b) including:\n\n (i) each day on which the notifying party of the notification has not given to the Commission information or documents in response to the decision in accordance with subsection 51ABZC(2); and\n\n (ii) the day (if any) on which the notifying party gives to the Commission information or documents in response to the decision in accordance with that subsection.\n\n (4) A decision under subsection (2) must be made within a reasonable period after the Commission becomes aware of the change of fact.\n\n (5) If the Commission makes a decision under subsection (2), the Commission must give written notice of the decision to the notifying party of the notification.\n\nNote: For review of the decision, see section 51ABZZG.\n\n (6) If the Commission extends the phase 1 determination period for the notification under subparagraph (2)(a)(ii) of this section, the period mentioned in paragraph 51ABZZE(3)(a) in relation to making a determination under subsection 51ABZE(1) in respect of the notification is extended by the same number of days.\n\n (7) If the Commission extends the phase 2 determination period for the notification under paragraph (2)(b) of this section, the following paragraphs apply in relation to making a determination under subsection 51ABZE(1) in respect of the notification:\n\n (a) the 25 business days mentioned in section 51ABZK is increased by the number of days of the extension;\n\n (b) the period mentioned in paragraph 51ABZZE(3)(b) is extended by the same number of days.","sortOrder":433},{"sectionNumber":"51ABZC","sectionType":"section","heading":"Material changes of fact—providing additional information and documents","content":"51ABZC  Material changes of fact—providing additional information and documents\n\n (1) This section applies in relation to a notification of an acquisition if:\n\n (a) the Commission has made a decision under subparagraph 51ABZB(2)(a)(ii) or paragraph 51ABZB(2)(b) in relation to the notification because of a material change of fact; and\n\n (b) the notifying party of the notification gives the Commission information or documents in response to the decision.\n\n (2) The information or documents are given in accordance with this subsection if:\n\n (a) in the case of information—the information is given in writing; and\n\n (b) the information or documents are accompanied by the fee (if any) determined under subsection (3) for the purposes of this paragraph in relation to the information or documents and the notification of the acquisition.\n\n (3) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (2)(b) in relation to the information or documents and the notification.\n\n (4) To avoid doubt, the information or documents are taken not to be given before the fee (if any) required by paragraph (2)(b) is paid.","sortOrder":434},{"sectionNumber":"51ABZD","sectionType":"section","heading":"When Commission may cease considering notifications","content":"51ABZD  When Commission may cease considering notifications\n\n (1) This section applies to a notification of an acquisition if the Commission has not made a determination in respect of the notification under subsection 51ABZE(1).\n\n (2) The Commission must decide, in writing, to cease considering the notification if requested to do so, in writing, by the notifying party of the notification.\n\n (3) The Commission may also decide to cease considering the notification if the Commission is satisfied that the parties to the acquisition no longer intend to put the acquisition into effect.\n\n (4) Subsections (2) and (3) do not limit each other.\n\n (5) If the Commission decides under subsection (2) or (3) to cease considering the notification:\n\n (a) the Commission must give written notice of the decision to the notifying party of the notification; and\n\n (b) Subdivision B of this Division, and Division 4, do not apply to the notification.\n\nNote: An effect of the decision is that the acquisition must not be put into effect (see section 45AY, subsection 51ABE(3) and section 51ABF).\n\n (6) To avoid doubt, a decision under subsection (2) or (3) of this section does not have the effect that the acquisition ceases to be a notified acquisition.","sortOrder":436},{"sectionNumber":"51ABZE","sectionType":"section","heading":"Commission consideration of acquisitions","content":"51ABZE  Commission consideration of acquisitions\n\n (1) If the Commission is notified of a proposed acquisition in accordance with subsection 51ABX(1), the Commission may, in writing, determine:\n\n (a) that the acquisition may be put into effect; or\n\n (b) that the acquisition must not be put into effect.\n\nNote: The determination may include:\n\n(a) conditions (see section 51ABZF); or\n\n(b) declarations relating to goodwill protection provisions (see section 51ABZG).\n\n (2) The Commission must not determine that the acquisition must not be put into effect unless:\n\n (a) the notification is subject to phase 2 review; and\n\n (b) the Commission has given a notice of competition concerns in relation to the notification in accordance with section 51ABZK; and\n\n (c) the Commission is satisfied that the acquisition, if put into effect, would, in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in any market.\n\n (3) In considering whether to determine that the acquisition may be put into effect or must not be put into effect, the Commission must have regard to:\n\n (a) the object of this Act; and\n\n (b) all relevant matters, including the interests of consumers.\n\n (4) The Commission must give:\n\n (a) written notice of the determination under subsection (1); and\n\n (b) a written statement of the Commission’s reasons for making the determination;\n\nto the notifying party of the notification of the acquisition.\n\nNote 1: If the Commission determines that the acquisition must not be put into effect, the notifying party may apply to the Commission under Division 5 for a determination that the acquisition would be of public benefit.\n\nNote 2: For review of a determination made under subsection (1), see Division 1B of Part IX.\n\n (5) For the purposes of this Act (other than this Division, Subdivision B of Division 6 and paragraph 51ABZZM(2)(a)), the determination is taken to be made when the Commission includes a copy of it on the acquisitions register.","sortOrder":439},{"sectionNumber":"51ABZF","sectionType":"section","heading":"Conditions","content":"51ABZF  Conditions\n\n (1) A determination made under paragraph 51ABZE(1)(a) in respect of a notification of an acquisition may include conditions.\n\nExample: A condition that a specified person must give an undertaking to the Commission for the purposes of section 87B and comply with the undertaking.\n\nNote: If the determination includes conditions, the notifying party of the notification may apply to the Commission under Division 5 for a determination that the acquisition would be of public benefit.\n\n (2) The Commission must not include conditions in the determination unless the Commission is satisfied that, disregarding any conditions the Commission could include, the acquisition, if put into effect, could, in all the circumstances, have the effect of substantially lessening competition in any market.\n\n (3) In considering whether to include conditions in the determination, the Commission:\n\n (a) must have regard to all relevant matters; and\n\n (b) may have regard to:\n\n (i) the effect on the interests of consumers that compliance with the conditions would have, or be likely to have; or\n\n (ii) without limiting subparagraph (i) of this paragraph—any consumer benefits that would result, or be likely to result from compliance with the conditions.\n\n (4) To avoid doubt, a reference in this Act to a determination made under paragraph 51ABZE(1)(a) includes a reference to any conditions included in it.","sortOrder":440},{"sectionNumber":"51ABZG","sectionType":"section","heading":"Goodwill protection provisions","content":"51ABZG  Goodwill protection provisions\n\n (1) The Commission may declare, in a determination made under subsection 51ABZE(1) in respect of a notification of an acquisition, that paragraph 51(2)(e) does not apply to a goodwill protection provision of the contract pursuant to which the acquisition is to take place.\n\n (2) The Commission must not include a declaration under subsection (1) of this section in relation to a provision of the contract unless the Commission is satisfied that the provision is not necessary for the protection of the purchaser in respect of the goodwill of the business.\n\n (3) To avoid doubt, if the Commission does not include a declaration under subsection (1) in relation to a provision of the contract, the fact that the Commission does not include that declaration does not:\n\n (a) affect the application of any other provision of this Act in relation to the provision; or\n\n (b) limit the powers of the Commission or a court in relation to the provision of the contract, including the ability of the Commission to recognise or claim that paragraph 51(2)(e) does not apply to the provision.\n\n (4) To avoid doubt, a reference in this Act to a determination made under subsection 51ABZE(1) includes a reference to any declarations included in it under subsection (1) of this section.","sortOrder":441},{"sectionNumber":"51ABZH","sectionType":"section","heading":"Substantial lessening of competition","content":"51ABZH  Substantial lessening of competition\n\n (1) This section applies to the Commission considering, for the purposes of this Part, whether an acquisition, if put into effect, would or could, in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in any market.\n\nNote: For lessening of competition, see section 4G.\n\n (2) The Commission must have regard to all relevant matters.\n\n (3) Without limiting subsection (2), the Commission may have regard to any of the following matters:\n\n (a) the contract, arrangement or understanding, or proposed contract, arrangement or understanding, pursuant to which the acquisition is to take place;\n\n (b) the commercial relationships of the parties to the acquisition (and, if any of the parties is a body corporate, of a body corporate that is related to that party).\n\n (4) For the purposes of this Part, the acquisition may have the effect or be likely to have the effect of substantially lessening competition in a market if the acquisition would, in all the circumstances, have the effect, or be likely to have the effect, of creating, strengthening or entrenching a substantial degree of power in the market.\n\n (5) Subsections 46(3) to (8) have effect for the purposes of this Part as if:\n\n (a) a reference in those subsections (other than in paragraph 46(8)(b)) to section 46 included a reference to this Part; and\n\n (b) a reference in those subsections to a market were a reference to a market (within the meaning of this Part).\n\nNote: Subsections 46(3) to (8) contain matters relevant to working out whether a corporation has a substantial degree of power in a market.\n\nCumulative effects\n\n (6) The Commission may treat the effect of the acquisition as being the combined effect of:\n\n (a) the acquisition (the current acquisition); and\n\n (b) any one or more acquisitions:\n\n (i) that are put into effect during the 3 years ending on the effective notification date of the notification of the current acquisition; and\n\n (ii) the parties to which include any party to the current acquisition or, if a party to the current acquisition is a body corporate, include a body corporate that is related to that party; and\n\n (iii) the targets of which are involved (directly or indirectly) in the supply or acquisition of the same goods or services or goods or services that are substitutable for, or otherwise competitive with, each other (disregarding any geographical factors or limitations).\n\n (7) Subsection (6) does not limit the circumstances in which an acquisition would or could, if put in effect, have the effect, or be likely to have the effect, of substantially lessening competition for the purposes of this Part.\n\nEffect outside this Part\n\n (8) To avoid doubt, this Subdivision does not affect the meaning of substantially lessening competition outside this Part.","sortOrder":443},{"sectionNumber":"51ABZI","sectionType":"section","heading":"Time for making determinations","content":"51ABZI  Time for making determinations\n\nEarliest time for making determinations\n\n (1) The Commission must not make a determination under subsection 51ABZE(1) in respect of a notification of an acquisition earlier than 15 business days after the effective notification date of the notification.\n\nCommission deemed to make determination at end of determination period\n\n (2) The Commission is taken to determine under paragraph 51ABZE(1)(a), at the end of the determination period for a notification of an acquisition, that the acquisition may be put into effect, unless the Commission makes a determination under subsection 51ABZE(1) in respect of the notification before the end of that period.\n\nNote: A determination the Commission is taken to make under this subsection does not include any conditions under subsection 51ABZF(1) or declarations under subsection 51ABZG(1).\n\nDetermination periods\n\n (3) The determination period for a notification of an acquisition is:\n\n (a) if the notification is not subject to phase 2 review—the phase 1 determination period for the notification; or\n\n (b) if the notification is subject to phase 2 review—the phase 2 determination period for the notification.\n\n (4) The phase 1 determination period for a notification of an acquisition that has an effective notification date:\n\n (a) starts on the effective notification date; and\n\n (b) subject to subparagraph 51ABZB(2)(a)(ii) and section 51ABZZE (extensions of determination periods), ends 30 business days after it starts.\n\n (5) If a notification of an acquisition is subject to phase 2 review, the phase 2 determination period for the notification:\n\n (a) starts immediately after the end of the phase 1 determination period for the notification; and\n\n (b) subject to paragraph 51ABZB(2)(b), subsections 51ABZK(5), 51ABZL(4) and 51ABZN(2) and section 51ABZZE (extensions of determination periods), ends 90 business days after it starts.\n\nInvalid determinations etc.\n\n (6) Subsection (7) applies if:\n\n (a) the Commission purports to make a determination in respect of a notification of an acquisition under subsection 51ABZE(1) before the end of the determination period; and\n\n (b) the determination is invalid, or a court:\n\n (i) sets the determination aside; or\n\n (ii) remits the decision to make the determination back to the Commission to be remade.\n\n (7) A reference in subsection (2) of this section to making a determination before the end of the determination period includes a reference to purportedly making a determination as mentioned in paragraph (6)(a).\n\nNote: The effect of this subsection is that the invalidity etc. does not result in the Commission being taken to have made a determination under subsection (2) at the end of the determination period.","sortOrder":445},{"sectionNumber":"51ABZJ","sectionType":"section","heading":"Phase 2 review—when notifications are subject to phase 2 review","content":"51ABZJ  Phase 2 review—when notifications are subject to phase 2 review\n\n (1) During the phase 1 determination period for a notification of an acquisition, the Commission may, in writing, decide that the notification is to be subject to phase 2 review, if:\n\n (a) the Commission is satisfied that the acquisition to which the notification relates, if put into effect, could, in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in any market; and\n\n (b) the Commission has not made a determination in respect of the notification under paragraph 51ABZE(1)(a).\n\nNote: Deciding that the notification is to be subject to phase 2 review extends the time the Commission has to make a determination in respect of the notification under subsection 51ABZE(1) (see section 51ABZI).\n\n (2) If the Commission decides that the notification is to be subject to phase 2 review:\n\n (a) the notification is subject to phase 2 review; and\n\n (b) the Commission must give to the notifying party of the notification:\n\n (i) written notice of the decision, including the matters specified under subsection (3); and\n\n (ii) written notice of the day by which, under paragraph (d) of this subsection, the fee (if any) mentioned in paragraph (c) must be paid; and\n\n (c) the Commission must not make a determination in respect of the notification of the acquisition under subsection 51ABZE(1) if the fee (if any) determined under paragraph (4)(a) of this section for the purposes of this paragraph in relation to the notification has not been paid; and\n\n (d) if the fee (if any) mentioned in paragraph (c) of this subsection is not paid on or before the day determined under paragraph (4)(b) for the purposes of this paragraph in relation to the notification—the Commission is taken to decide under subsection 51ABZD(2) on that day to cease considering the notification (if the Commission has not already made a decision under section 51ABZD to cease considering the notification).\n\nNote: See also section 51ABZK (Commission must give notice of competition concerns).\n\n (3) The notice given under subparagraph (2)(b)(i) of this section must:\n\n (a) identify the parties to the acquisition, and describe the economic activities in which they engage;\n\n (b) explain the Commission’s satisfaction, including specifying:\n\n (i) the nature of the theory of harm that is the basis for the Commission’s satisfaction; and\n\n (ii) the matters the Commission intends to investigate before making a determination in respect of the notification under subsection 51ABZE(1).\n\n (4) The Minister may, by legislative instrument, determine:\n\n (a) a fee for the purposes of paragraph (2)(c) in relation to the notification; or\n\n (b) a day for the purposes of paragraph (2)(d) in relation to the notification.","sortOrder":446},{"sectionNumber":"51ABZK","sectionType":"section","heading":"Phase 2 review—notices of competition concerns","content":"51ABZK  Phase 2 review—notices of competition concerns\n\nNotices of competition concerns\n\n (1) Subject to subsection (2), the Commission must give the notifying party of a notification of an acquisition a written notice (a notice of competition concerns) in accordance with subsections (3) and (4) if the notification is subject to phase 2 review.\n\n (2) The Commission is not required to give a notice of competition concerns if the Commission makes a determination in respect of the notification of the acquisition under paragraph 51ABZE(1)(a) on or before the 25th business day after the start of the phase 2 determination period for the notification.\n\nContents of notices of competition concerns\n\n (3) The notice of competition concerns must set out:\n\n (a) the Commission’s preliminary assessment of whether the acquisition, if put into effect, would have the effect, or be likely to have the effect, of substantially lessening competition in any market; and\n\n (b) the grounds on which the Commission makes the assessment, referring to the evidence or other material on which those grounds are based.\n\nWhen notices of competition concerns must be given\n\n (4) The notice of competition concerns must be given:\n\n (a) no later than the 25th business day after the start of the phase 2 determination period for the notification of the acquisition; or\n\n (b) if it is not practicable to give the notice of competition concerns by that day—as soon as practicable after that 25th business day.\n\n (5) If the Commission does not give the notice of competition concerns in relation to the notification of the acquisition before the end of the 25th business day mentioned in paragraph (4)(a), the following paragraphs apply in relation to making a determination under subsection 51ABZE(1) in respect of the notification:\n\n (a) if the notifying party of the notification agrees in writing to this paragraph applying in relation to the notification—the phase 2 determination period is extended by the number of business days to which subsection (6) of this section applies (not including a day occurring on or after the day, if any, on which the notifying party withdraws its agreement);\n\n (b) in any case (but subject to subsection (7) of this section)—the 15 business days mentioned in subsections 51ABZZD(3) and (5) are reduced by the number of business days to which subsection (6) of this section applies;\n\n (c) in any case—the period mentioned in paragraph 51ABZZE(3)(b) is extended by the number of business days to which subsection (6) of this section applies.\n\n (6) This subsection applies to a business day if:\n\n (a) the day occurs after the 25th business day after the start of the phase 2 determination period for the notification of the acquisition; and\n\n (b) the Commission does not give the notice of competition concerns on or before the day.\n\n (7) If the reduction under paragraph (5)(b) would be of more than 15 business days, subsections 51ABZZD(3) and (5) do not apply in relation to making the determination.","sortOrder":447},{"sectionNumber":"51ABZL","sectionType":"section","heading":"Phase 2 review—submissions","content":"51ABZL  Phase 2 review—submissions\n\n (1) If the Commission gives the notifying party of a notification of an acquisition a notice of competition concerns in relation to the notification, the Commission:\n\n (a) must give the notifying party a reasonable opportunity to make, during the period:\n\n (i) starting on the day on which the Commission gives the notice of competition concerns; and\n\n (ii) ending on the 25th business day after that day;\n\n  oral or written submissions to the Commission in relation to the matters set out in the notice of competition concerns; and\n\n (b) subject to subsection (2) of this section, in making a determination under subsection 51ABZE(1) in respect of the notification of the acquisition, must not take into account submissions received, as mentioned in paragraph (a) of this subsection, after that period.\n\n (2) For the purposes of paragraph (1)(b):\n\n (a) the notifying party may, in writing, before the end of the period during which the notifying party may make submissions to the Commission in relation to the notice of competition concerns, request the Commission to extend the period; and\n\n (b) if the notifying party does so, the Commission may, by written notice given to the notifying party, extend the period.\n\n (3) To avoid doubt, the Commission may extend the period more than once.\n\n (4) If the Commission extends the period, the following periods relating to making a determination under subsection 51ABZE(1) in respect of the notification are also extended by the same number of days:\n\n (a) the phase 2 determination period for the notification;\n\n (b) the period mentioned in paragraph 51ABZZE(3)(b).","sortOrder":448},{"sectionNumber":"51ABZM","sectionType":"section","heading":"Phase 2 review—determinations that acquisition may be put into effect","content":"51ABZM  Phase 2 review—determinations that acquisition may be put into effect\n\n  Sections 51ABZK and 51ABZL do not limit the Commission’s ability to make a determination in respect of a notification of an acquisition under paragraph 51ABZE(1)(a) at any time occurring before the end of the determination period for the notification.","sortOrder":449},{"sectionNumber":"51ABZN","sectionType":"section","heading":"Phase 2 review—false or misleading information","content":"51ABZN  Phase 2 review—false or misleading information\n\n (1) This section applies in relation to a notification of an acquisition if:\n\n (a) the notification is subject to phase 2 review; and\n\n (b) the Commission has not made a determination in respect of the notification under subsection 51ABZE(1).\n\n (2) If the Commission is satisfied that subsection (3) of this section applies to the notification, the Commission may, in writing, decide that the phase 2 determination period for the notification is extended by the period:\n\n (a) starting on the day the Commission makes the decision under this subsection; and\n\n (b) including:\n\n (i) each day on which the notifying party of the notification has not given to the Commission information or documents in response to the decision in accordance with subsection 51ABZO(2); and\n\n (ii) the day (if any) on which the notifying party gives to the Commission information or documents in response to the decision in accordance with subsection 51ABZO(2).\n\n (3) This subsection applies if:\n\n (a) the notification:\n\n (i) is materially misleading; or\n\n (ii) contains information that is false in a material particular; or\n\n (b) any information the notifying party gives to the Commission under an acquisitions provision in relation to the notification is false in a material particular.\n\n (4) The decision must be made within a reasonable period after the Commission begins to be satisfied that subsection (3) applies to the notification.\n\n (5) If the Commission makes a decision under subsection (2), the Commission must give written notice of the decision to the notifying party of the notification.\n\nNote: For review of a decision under subsection (2), see section 51ABZZG.\n\n (6) If the Commission extends the phase 2 determination period for the notification under subsection (2) of this section, the following paragraphs apply in relation to making a determination under subsection 51ABZE(1) in respect of the notification:\n\n (a) the 25 business days mentioned in section 51ABZK is increased by the number of days of the extension;\n\n (b) the period mentioned in paragraph 51ABZZE(3)(b) is extended by the same number of days.","sortOrder":450},{"sectionNumber":"51ABZO","sectionType":"section","heading":"Phase 2 review—false or misleading information: providing additional information and documents","content":"51ABZO  Phase 2 review—false or misleading information: providing additional information and documents\n\n (1) This section applies in relation to a notification of an acquisition if:\n\n (a) the Commission has made a decision under subsection 51ABZN(2) in relation to the notification; and\n\n (b) the notifying party of the notification gives the Commission information or documents in response to the decision.\n\n (2) The information or documents are given in accordance with this subsection if:\n\n (a) in the case of information—the information is given in writing; and\n\n (b) the information or documents are accompanied by the fee (if any) determined under subsection (3) for the purposes of this paragraph in relation to the information or documents and the notification of the acquisition.\n\n (3) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (2)(b) in relation to the information or documents and the notification.\n\n (4) To avoid doubt, the information or documents are taken not to be given before the fee (if any) required by paragraph (2)(b) is paid.","sortOrder":451},{"sectionNumber":"51ABZP","sectionType":"section","heading":"Public benefit applications","content":"51ABZP  Public benefit applications\n\n (1) The notifying party of a notification of an acquisition may apply to the Commission for a determination that the acquisition would be of public benefit, if:\n\n (a) both:\n\n (i) the Commission has made a determination under paragraph 51ABZE(1)(a) in respect of the notification that includes conditions; and\n\n (ii) the acquisition has not been put into effect; or\n\n (b) the Commission has made a determination under paragraph 51ABZE(1)(b) in respect of the notification.\n\n (2) The application must be:\n\n (a) made no later than 21 days after the Commission makes the determination; and\n\n (b) made in writing; and\n\n (c) accompanied by the fee (if any) determined under subsection (3) for the purposes of this paragraph in relation to the application.\n\n (3) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (2)(c) in relation to the application.\n\n (4) To avoid doubt, the application is taken not to be made before the fee (if any) required by paragraph (2)(c) of this section is paid.\n\n (5) If the application is made in accordance with subsection (2), it is a public benefit application in relation to the notification.\n\n (6) Subject to paragraph 51ABZR(1)(a), subsection 51ABZS(5) and paragraph 51ABZT(2)(a), the effective application date of the application is the day the application is made.\n\n (7) The Commission must give the notifying party written notice:\n\n (a) that the Commission has received the application; and\n\n (b) of the effective application date.","sortOrder":454},{"sectionNumber":"51ABZQ","sectionType":"section","heading":"Public benefit applications that are materially incomplete or misleading","content":"51ABZQ  Public benefit applications that are materially incomplete or misleading\n\n (1) The Commission may decide, in writing, that a public benefit application in relation to a notification of an acquisition should be taken not to have an effective application date, if:\n\n (a) the Commission has not made a determination in respect of the application under subsection 51ABZW(1); and\n\n (b) the Commission is satisfied that subsection (2) of this section applies to the application.\n\n (2) This subsection applies to the application if it:\n\n (a) is materially incomplete; or\n\n (b) is materially misleading; or\n\n (c) contains information that is false in a material particular.\n\n (3) The decision must be made within a reasonable period after the Commission begins to be satisfied that subsection (2) applies to the application.\n\n (4) In considering whether subsection (2) applies to the public benefit application, the Commission may have regard to:\n\n (a) the extent to which the application is made in the form determined under paragraph (5)(a) for the purposes of this paragraph in relation to the application; or\n\n (b) the extent to which the application includes, or is accompanied by, any information or documents determined under paragraph (5)(b) for the purposes of this paragraph in relation to the application; or\n\n (c) any additional information or documents given to the Commission as mentioned in section 51ABZS in response to any previous decision under subsection (1) of this section in relation to the application; or\n\n (d) any change of fact:\n\n (i) of which the Commission becomes aware after the notification is made; and\n\n (ii) that is material to the Commission making a determination under subsection 51ABZW(1) in respect of the application.\n\n (5) The Minister may, in writing, determine:\n\n (a) a form for the purposes of paragraph (4)(a) of this section in relation to the application; or\n\n (b) information or documents for the purposes of paragraph (4)(b) of this section in relation to the application.\n\n (6) A determination made under subsection (5) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the instrument.\n\n (7) To avoid doubt subsection (2) can apply to the application after the application is made (for example, because of a change of fact) even if subsection (2) did not apply to the application when the application was made.","sortOrder":456},{"sectionNumber":"51ABZR","sectionType":"section","heading":"Public benefit applications that are materially incomplete or misleading—consequences of Commission’s decisions","content":"51ABZR  Public benefit applications that are materially incomplete or misleading—consequences of Commission’s decisions\n\n (1) If the Commission makes a decision under subsection 51ABZQ(1) in relation to a public benefit application in relation to a notification of an acquisition:\n\n (a) the application is taken never to have had an effective application date; and\n\n (b) the Commission must give to the notifying party of the notification of the acquisition written notice:\n\n (i) of the decision; and\n\n (ii) the grounds on which the Commission is satisfied that subsection 51ABZQ(2) applies to the application.\n\nNote: For review of the decision, see section 51ABZZG.\n\n (2) The Commission must not make a determination under subsection 51ABZW(1) in respect of the application if, because of a decision made under subsection 51ABZQ(1), the application does not have an effective application date.","sortOrder":457},{"sectionNumber":"51ABZS","sectionType":"section","heading":"Public benefit applications that are materially incomplete or misleading—providing additional information and documents","content":"51ABZS  Public benefit applications that are materially incomplete or misleading—providing additional information and documents\n\n (1) This section applies in relation to a public benefit application in relation to a notification of an acquisition if:\n\n (a) because of a decision made under subsection 51ABZQ(1), the application does not have an effective application date; and\n\n (b) the notifying party of the notification gives the Commission additional information or documents in response to the decision.\n\n (2) The additional information or documents are given in accordance with this subsection if:\n\n (a) in the case of information—the information is given in writing; and\n\n (b) the information or documents are accompanied by the fee (if any) determined under subsection (3) for the purposes of this paragraph in relation to the information or documents and the application.\n\n (3) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (2)(b) in relation to the information or documents and the application.\n\n (4) To avoid doubt, the additional information or documents are taken not to be given before the fee (if any) required by paragraph (2)(b) is paid.\n\n (5) The effective application date of the public benefit application is the day the additional information or documents are given.\n\n (6) The Commission must give the notifying party written notice of the effective application date.","sortOrder":458},{"sectionNumber":"51ABZT","sectionType":"section","heading":"Material changes of fact","content":"51ABZT  Material changes of fact\n\n (1) This section applies in relation to a public benefit application in relation to a notification of an acquisition if:\n\n (a) the Commission has not made a determination in respect of the application under subsection 51ABZW(1); and\n\n (b) the Commission becomes aware of a change of fact.\n\n (2) If the Commission is satisfied that the change is material to the Commission making a determination under subsection 51ABZW(1) in respect of the application, the Commission may, in writing:\n\n (a) decide that the effective application date of the application is the date on which the Commission becomes aware of the change of fact; or\n\n (b) decide that the determination period for the application is extended by the period mentioned in subsection (3) of this section.\n\n (3) For the purposes of paragraph (2)(b), the extension is for the period:\n\n (a) starting on the day the Commission makes the decision under that paragraph; and\n\n (b) including:\n\n (i) each day on which the notifying party of the notification has not given to the Commission information or documents in response to the decision in accordance with subsection 51ABZU(2); and\n\n (ii) the day (if any) on which the notifying party gives to the Commission information or documents in response to the decision in accordance with that subsection.\n\n (4) The decision must be made within a reasonable period after the Commission becomes aware of the change of fact.\n\n (5) If the Commission makes a decision under subsection (2) of this section, the Commission must give written notice of the decision to the notifying party of the notification.\n\nNote: For review of the decision, see section 51ABZZG.\n\n (6) If the Commission extends the determination period for the public benefit application under paragraph (2)(b) of this section, the following paragraphs apply in relation to making a determination under subsection 51ABZW(1) in respect of the application:\n\n (a) the 20 business days mentioned in section 51ABZZA is increased by the same number of days as the extension;\n\n (b) the period mentioned in paragraph 51ABZZE(3)(c) is extended by the same number of days.","sortOrder":459},{"sectionNumber":"51ABZU","sectionType":"section","heading":"Material changes of fact—providing additional information and documents","content":"51ABZU  Material changes of fact—providing additional information and documents\n\n (1) This section applies in relation to a public benefit application in relation to a notification of an acquisition if:\n\n (a) the Commission has made a decision under paragraph 51ABZT(2)(b) in relation to the application because of a material change of fact; and\n\n (b) the notifying party of the notification gives the Commission information or documents in response to the decision.\n\n (2) The information or documents are given in accordance with this subsection if:\n\n (a) in the case of information—the information is given in writing; and\n\n (b) the information or documents are accompanied by the fee (if any) determined under subsection (3) for the purposes of this paragraph in relation to the information or documents and the application.\n\n (3) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (2)(b) in relation to the information or documents and the application.\n\n (4) To avoid doubt, the information or documents are taken not to be given before the fee (if any) required by paragraph (2)(b) is paid.","sortOrder":460},{"sectionNumber":"51ABZV","sectionType":"section","heading":"When Commission may cease considering public benefit applications","content":"51ABZV  When Commission may cease considering public benefit applications\n\n (1) This section applies to a public benefit application in relation to a notification of an acquisition if the Commission has not made a determination in respect of the application under subsection 51ABZW(1).\n\n (2) The Commission must decide, in writing, to cease considering the application if requested to do so, in writing, by the notifying party of the notification.\n\n (3) The Commission may also decide, in writing, to cease considering the application if the Commission is satisfied that the parties to the acquisition no longer intend to put the acquisition into effect.\n\n (4) Subsections (2) and (3) do not limit each other.\n\n (5) If the Commission decides under subsection (2) or (3) to cease considering the application:\n\n (a) the Commission must give written notice of its decision to the notifying party of the notification; and\n\n (b) Subdivisions B, D and F do not apply to the application.\n\nNote 1: An effect of making the decision is that the acquisition might not be able to be put into effect (see section 45AY, subsection 51ABE(3) and section 51ABF).\n\nNote 2: For review of a decision under subsection (3) of this section, see section 51ABZZG.","sortOrder":462},{"sectionNumber":"51ABZW","sectionType":"section","heading":"Determinations on public benefit applications","content":"51ABZW  Determinations on public benefit applications\n\n (1) If a public benefit application in relation to a notification of an acquisition is made, the Commission may, in writing, determine:\n\n (a) that the acquisition would be of public benefit; or\n\n (b) not to make the determination applied for.\n\nNote: The determination may include conditions (see section 51ABZX).\n\n (2) The Commission must not make a determination under paragraph (1)(a) unless the Commission is satisfied that, were the acquisition put into effect (and any conditions included in the determination under subsection 51ABZX(1) complied with):\n\n (a) the acquisition would, in all the circumstances, result, or be likely to result, in a benefit to the public; and\n\n (b) the benefit would, in all the circumstances, outweigh the detriment to the public that would result, or be likely to result, from the acquisition.\n\n (3) In considering whether to determine that the acquisition would be of public benefit or not to make the determination applied for, the Commission must have regard to:\n\n (a) the object of this Act; and\n\n (b) all relevant matters, including the interests of consumers.\n\n (4) The Commission must give:\n\n (a) written notice of the determination made under subsection (1); and\n\n (b) a written statement of the Commission’s reasons for making the determination;\n\nto the notifying party of the notification of the acquisition.\n\nNote: For review of a determination made under subsection (1), see Division 1B of Part IX.\n\n (5) For the purposes of this Act (other than this Division and Subdivision B of Division 6), the determination is taken to be made when the Commission includes a copy of it on the acquisitions register.","sortOrder":464},{"sectionNumber":"51ABZX","sectionType":"section","heading":"Conditions","content":"51ABZX  Conditions\n\n (1) A determination made under paragraph 51ABZW(1)(a) may include conditions.\n\nExample: A condition that a specified person must give an undertaking to the Commission for the purposes of section 87B and comply with the undertaking.\n\n (2) In considering whether to include conditions in a determination, the Commission:\n\n (a) must have regard to all relevant matters; and\n\n (b) may have regard to:\n\n (i) the effect on the interests of consumers that compliance with the conditions would have, or be likely to have; or\n\n (ii) without limiting subparagraph (i) of this paragraph—any consumer benefits that would result, or be likely to result from compliance with the conditions.","sortOrder":465},{"sectionNumber":"51ABZY","sectionType":"section","heading":"Public benefit","content":"51ABZY  Public benefit\n\n (1) This section applies in relation to the Commission considering, for the purposes of this Part, whether, were an acquisition put into effect:\n\n (a) the acquisition would, in all the circumstances, result, or be likely to result, in a benefit to the public; and\n\n (b) the benefit would, in all the circumstances, outweigh the detriment to the public that would result, or be likely to result, from the acquisition.\n\n (2) The Commission must have regard to all relevant matters.\n\n (3) Without limiting subsection (2), the Commission may have regard to the contract, arrangement or understanding, or proposed contract, arrangement or understanding, pursuant to which the acquisition is to take place.","sortOrder":467},{"sectionNumber":"51ABZZ","sectionType":"section","heading":"Time for making determinations in respect of public benefit applications","content":"51ABZZ  Time for making determinations in respect of public benefit applications\n\nCommission deemed to make determination at end of determination period\n\n (1) The Commission is taken to determine under paragraph 51ABZW(1)(b), at the end of the determination period for a public benefit application, not to make the determination applied for, unless the Commission makes a determination in respect of the application under subsection 51ABZW(1) before the end of that period.\n\nMeaning of determination period\n\n (2) If a public benefit application in relation to a notification of an acquisition has an effective application date, the determination period for the application:\n\n (a) starts on the effective application date; and\n\n (b) subject to paragraph 51ABZT(2)(b), subsections 51ABZZA(4) and 51ABZZB(4) and section 51ABZZE (extensions of determination periods)—ends 50 business days after it starts.\n\nInvalid determinations etc.\n\n (3) Subsection (4) of this section applies if:\n\n (a) the Commission purports to make a determination in respect of a public benefit application under subsection 51ABZW(1) before the end of the determination period; and\n\n (b) the determination is invalid, or a court:\n\n (i) sets the determination aside; or\n\n (ii) remits the decision to make the determination back to the Commission to be remade.\n\n (4) A reference in subsection (1) of this section to making a determination before the end of the determination period includes a reference to purportedly making the determination as mentioned in paragraph (3)(a).\n\nNote: The effect of this subsection is that the invalidity etc. does not result in the Commission being taken to have made a determination under subsection (1) at the end of the determination period.","sortOrder":469},{"sectionNumber":"51ABZZA","sectionType":"section","heading":"Public benefit assessments","content":"51ABZZA  Public benefit assessments\n\nPublic benefit assessments\n\n (1) The Commission must give the notifying party of a notification of an acquisition a written notice (a public benefit assessment) in accordance with subsections (2) and (3) if a public benefit application in relation to the notification has an effective application date.\n\nContent of public benefit assessments\n\n (2) The public benefit assessment must set out:\n\n (a) the Commission’s preliminary assessment of the benefits and detriments to the public that the Commission has identified could result, or be likely to result, from the acquisition, including an assessment of the significance of those benefits and detriments; and\n\n (b) the grounds on which the Commission makes the assessment, referring to the evidence or other material on which those grounds are based.\n\nWhen public benefit assessments must be given\n\n (3) The Commission must give the public benefit assessment:\n\n (a) no later than the 20th business day after the effective application date of the application; or\n\n (b) if it is not practicable to give the public benefit assessment by that day—as soon as practicable after that 20th business day.\n\n (4) If the Commission does not give the public benefit assessment before the end of the 20th business day mentioned in paragraph (3)(a), the following paragraphs apply in relation to making a determination under subsection 51ABZW(1) in respect of the public benefit application:\n\n (a) if the notifying party of the notification of the acquisition agrees in writing to this paragraph applying in relation to the application—the determination period for the application is extended by the number of business days to which subsection (5) of this section applies (not including a day occurring on or after the day, if any, on which the notifying party withdraws its agreement);\n\n (b) in any case (but subject to subsection (6) of this section)—the 15 business days mentioned in subsections 51ABZZD(3) and (5) are reduced by the number of business days to which subsection (5) of this section applies;\n\n (c) in any case—the period mentioned in paragraph 51ABZZE(3)(c) is extended by the number of business days to which subsection (5) of this section applies.\n\n (5) This subsection applies to a business day if:\n\n (a) the day occurs after the 20th business day after the effective application date of the application; and\n\n (b) the Commission does not give the public benefit assessment on or before the day.\n\n (6) If the reduction under paragraph (4)(b) would be of more than 15 business days, subsections 51ABZZD(3) and (5) do not apply in relation to making the determination.","sortOrder":470},{"sectionNumber":"51ABZZB","sectionType":"section","heading":"Public benefit assessments—submissions","content":"51ABZZB  Public benefit assessments—submissions\n\n (1) If the Commission gives the notifying party of a notification of an acquisition a public benefit assessment in respect of a public benefit application in relation to the notification, the Commission:\n\n (a) must give the notifying party a reasonable opportunity to make, during the period:\n\n (i) starting on the day the Commission gives the public benefit assessment; and\n\n (ii) ending on the 15th business day after that day;\n\n  oral or written submissions to the Commission in relation to the matters set out in the public benefit assessment; and\n\n (b) subject to subsection (2) of this section, in making a determination under subsection 51ABZW(1) in respect of the application, must not take into account submissions received, as mentioned in paragraph (a) of this subsection, after that period.\n\n (2) For the purposes of subsection (1):\n\n (a) the notifying party may, in writing, before the end of the period during which the notifying party may make submissions to the Commission in relation to the public benefit assessment, request the Commission to extend the period; and\n\n (b) if the notifying party does so—the Commission may, by written notice given to the notifying party, extend the period.\n\n (3) To avoid doubt, the Commission may extend the period more than once.\n\n (4) If the Commission extends the period, the following periods relating to making a determination under subsection 51ABZW(1) in respect of the public benefit application are extended by the same number of days:\n\n (a) the determination period for the public benefit application;\n\n (b) the period mentioned in paragraph 51ABZZE(3)(c).","sortOrder":471},{"sectionNumber":"51ABZZC","sectionType":"section","heading":"Commitments and undertakings","content":"51ABZZC  Commitments and undertakings\n\n (1) In considering a notification of an acquisition under Division 4, the Commission must not have regard to a commitment or undertaking offered by a party to an acquisition:\n\n (a) if the notification is not subject to phase 2 review—unless:\n\n (i) the commitment or undertaking is offered no later than 20 business days after the effective notification date of the notification; or\n\n (ii) subsection 51ABZZE(3) applies to the commitment or undertaking in relation to the phase 1 determination period; or\n\n (b) if the notification is subject to phase 2 review—unless:\n\n (i) the commitment or undertaking is offered no later than the 60th business day occurring on or after the start of the phase 2 determination period; or\n\n (ii) subsection 51ABZZE(3) applies to the commitment or undertaking in relation to the phase 2 determination period.\n\n (2) In considering a public benefit application in relation to a notification of an acquisition under Division 5, the Commission must not have regard to a commitment or undertaking offered by a party to an acquisition unless subsection 51ABZZE(3) applies to the commitment or undertaking in relation to the determination period for the public benefit application.","sortOrder":474},{"sectionNumber":"51ABZZD","sectionType":"section","heading":"Information gathering","content":"51ABZZD  Information gathering\n\n (1) This section applies in relation to the Commission making an acquisition determination in respect of a notification of an acquisition.\n\n (2) Before making the acquisition determination, the Commission may do any of the following:\n\n (a) give any persons who appear to the Commission to be interested a written notice inviting written submissions, to be made to the Commission within a specified period, in relation to the proposed acquisition;\n\n (b) give any party to the acquisition a written notice requesting the party to give the Commission (orally or in writing), within a specified period, additional information relevant to making the determination;\n\n (c) give a person a written notice requesting the person to give the Commission (orally or in writing), within a specified period, particular information relevant to making the determination;\n\n (d) consult with such persons as the Commission believes to be reasonable and appropriate for the purposes of making the determination.\n\n (3) The Commission must not give a request under paragraph (2)(b) or (c) on or after the start of the 15 business days mentioned in subsection (5) unless:\n\n (a) the notifying party of the notification agrees in writing to the Commission making the request; or\n\n (b) the request relates to information the Commission received before those 15 business days; or\n\n (c) the determination is a determination under subsection 51ABZE(1) and the notification is not subject to phase 2 review.\n\n (4) In making the acquisition determination, the Commission:\n\n (a) must take into account any submissions or information received under paragraph (2)(a), (b) or (c) of this section within the period specified in the notice mentioned in that paragraph; and\n\n (b) subject to subsection (5) may, but need not, take into account any submissions or information received after the end of those periods; and\n\n (c) subject to subsection (5), must take into account any information obtained from consultations under paragraph (2)(d).\n\n (5) The Commission must not take into account submissions or information received or obtained later than 15 business days before the end of:\n\n (a) if the determination is a determination under subsection 51ABZE(1) and the notification is subject to phase 2 review—the phase 2 determination period for the notification; or\n\n (b) if the determination is a determination under subsection 51ABZW(1) in respect of a public benefit application—the determination period in relation to the application.\n\nNote: This subsection does not apply during the phase 1 determination period.\n\n (6) Subsection (5) does not apply to information given in accordance with a request made as mentioned in subsection (3).\n\n (7) Subsections (4) and (5) of this section do not limit:\n\n (a) section 51ABZL (submissions in response to notice of competition concerns); or\n\n (b) section 51ABZZB (submissions in response to public benefit assessment).","sortOrder":475},{"sectionNumber":"51ABZZE","sectionType":"section","heading":"Extensions of determination periods","content":"51ABZZE  Extensions of determination periods\n\n (1) For the purposes of making an acquisition determination in respect of a notification of an acquisition, this section applies to any of the following periods (the determination period):\n\n (a) if the determination is a determination under subsection 51ABZE(1):\n\n (i) the phase 1 determination period for the notification; or\n\n (ii) the phase 2 determination period for the notification;\n\n (b) if the determination is a determination under subsection 51ABZW(1)—the determination period for a public benefit application in relation to the notification.\n\n (2) The Commission may, during the determination period, give the notifying party of the notification of the acquisition a written notice (the extension notice) extending the determination period for a specified period, if any of the following paragraphs apply:\n\n (a) all of the following subparagraphs apply:\n\n (i) a party to the acquisition offers, in writing, to make a commitment or undertaking (including giving an undertaking for the purposes of section 87B) in connection with the making of the acquisition determination;\n\n (ii) subsection (3) of this section applies to the commitment or undertaking;\n\n (iii) the extension is of no more than 15 business days;\n\n (b) all of the following subparagraphs apply:\n\n (i) the Commission, before the end of the determination period, requests the notifying party, in writing, to give to the Commission, by a specified day, additional information relevant to making the acquisition determination;\n\n (ii) the notifying party does not give the additional information to the Commission by the specified day;\n\n (iii) the extension is of no more than the number of days occurring after the specified day on which the notifying party has not given the additional information to the Commission;\n\n (c) all of the following subparagraphs apply:\n\n (i) before the end of the determination period, a party to the acquisition is served a notice (the section 155 notice) under subsection 155(1) requiring the party to furnish information, produce documents or appear before the Commission relating to the making of the acquisition determination;\n\n (ii) the Commission gives the extension notice 10 business days or more after the section 155 notice is served;\n\n (iii) the extension is of no more than the number of business days in the period commencing 10 business days after the section 155 notice is served and ending on the day on which the party furnishes the information, produces the documents or appears before the Commission;\n\n (d) both:\n\n (i) before the end of the determination period, the notifying party requests the Commission, in writing, to extend the period by a specified number of days; and\n\n (ii) the extension is of no more than that number of days.\n\nNote: An extension under paragraph (c) of this subsection is reviewable under section 51ABZZG.\n\n (3) This subsection applies to a commitment or undertaking that is offered during the following period:\n\n (a) if subparagraph (1)(a)(i) applies—the period:\n\n (i) starting at the start of the determination period; and\n\n (ii) ending 20 business days after it starts;\n\n (b) if subparagraph (1)(a)(ii) applies—the period:\n\n (i) starting on the 50th business day occurring on or after the start of the determination period; and\n\n (ii) ending on the 60th business day occurring on or after the start of the determination period;\n\n (c) if paragraph (1)(b) applies—the period:\n\n (i) starting at the start of the determination period; and\n\n (ii) ending 35 business days after it starts.\n\n (4) However, if the determination period is extended under paragraph (2)(b), (c) or (d) by a number of days, subsection (3) applies, in relation to a commitment or undertaking offered after that extension, as if the period mentioned in subsection (3) were extended by the same number of days.","sortOrder":476},{"sectionNumber":"51ABZZF","sectionType":"section","heading":"Consequences of setting aside or remitting acquisition determinations","content":"51ABZZF  Consequences of setting aside or remitting acquisition determinations\n\nDeterminations under subsection 51ABZE(1)\n\n (1) If a court sets aside a determination made under subsection 51ABZE(1) in respect of a notification of an acquisition, Division 4 applies in relation to the notification with the following modifications:\n\n (a) paragraphs 51ABZE(2)(a) and (b) and sections 51ABZJ to 51ABZO (phase 2 review) do not apply;\n\n (b) the phase 1 determination period for the notification is taken to start on the day the court sets aside the determination.\n\n (2) If a court remits a decision to make a determination under subsection 51ABZE(1) in respect of a notification of an acquisition back to the Commission to be made again, Division 4 applies in relation to the notification with the following modifications:\n\n (a) paragraphs 51ABZE(2)(a) and (b) and sections 51ABZJ to 51ABZO (phase 2 review) do not apply;\n\n (b) the phase 1 determination period for the notification is taken to start on the day the court remits the decision.\n\nDeterminations under subsection 51ABZW(1)\n\n (3) If a court sets aside a determination made under subsection 51ABZW(1) in respect of a public benefit application, Division 5 applies in relation to the application with the following modification: the determination period for the application is taken to start on the day the court sets aside the determination.\n\n (4) If a court remits a decision to make a determination under subsection 51ABZW(1) in respect of a public benefit application back to the Commission to be made again, Division 5 applies in relation to the application with the following modification: the determination period for the application is taken to start on the day the court remits the decision.","sortOrder":477},{"sectionNumber":"51ABZZG","sectionType":"section","heading":"Internal review of decisions","content":"51ABZZG  Internal review of decisions\n\n (1) This section applies to any of the following decisions (a reviewable decision):\n\n (a) a decision under subsection 51ABY(1), 51ABZB(2), 51ABZD(3) or 51ABZN(2) in respect of a notification of an acquisition;\n\n (b) a decision under subsection 51ABZQ(1), 51ABZT(2) or 51ABZV(3) in respect of a public benefit application in relation to a notification of an acquisition;\n\n (c) a decision under paragraph 51ABZZE(2)(c) to extend a period in relation to making an acquisition determination in respect of a notification of an acquisition.\n\nApplications for internal review\n\n (2) The notifying party of the notification may apply in writing to the Commission for review (an internal review) of the reviewable decision, if the decision was made by a delegate of the Commission who was not a member of the Commission.\n\n (3) An application for an internal review must be made within 7 days after the day on which the decision was made.\n\nReconsideration by Commission\n\n (4) Within 7 days after receiving an application under subsection (3) for internal review, the Commission must:\n\n (a) review the decision; and\n\n (b) affirm, vary or revoke the decision; and\n\n (c) if the Commission revokes the decision—make such other decision (if any) that the Commission thinks appropriate.\n\n (5) The Commission must, within 1 business day after the day it makes a decision under subsection (4), give the notifying party a written statement of the Commission’s reasons for the decision.\n\n (6) If the Commission’s functions under subsections (4) and (5) are performed by a delegate of the Commission, the delegate who makes the decision under subsection (4):\n\n (a) must not have been involved in making the original reviewable decision; and\n\n (b) must hold a position or perform duties of a higher level than the delegate who made the original reviewable decision.\n\nReview by the Tribunal\n\n (7) The notifying party may apply under Division 1A of Part IX to the Tribunal for review of the following decisions relating to the notification of the acquisition:\n\n (a) a reviewable decision made by the Commission itself, or by a delegate of the Commission who was a member of the Commission; or\n\n (b) an internal review decision made under subsection (4).","sortOrder":478},{"sectionNumber":"51ABZZH","sectionType":"section","heading":"Acquisitions register","content":"51ABZZH  Acquisitions register\n\n (1) The Commission must keep a register under this subsection.\n\n (2) The acquisitions register must be made available for public inspection on the internet.\n\n (3) The Commission may correct or update information or documents on the acquisitions register.","sortOrder":480},{"sectionNumber":"51ABZZI","sectionType":"section","heading":"Contents of acquisitions register","content":"51ABZZI  Contents of acquisitions register\n\n (1) The acquisitions register must include, for each notified acquisition:\n\n (a) the details, of each notification of the acquisition, determined under paragraph (6)(a) for the purposes of this paragraph; and\n\n (b) a copy of each acquisition determination (if any) made in respect of the notification, and a statement of the Commission’s reasons for making the determination; and\n\n (c) if a notification of the acquisition is subject to phase 2 review—a copy of the notice given under subparagraph 51ABZJ(2)(b)(i) in relation to the notification; and\n\n (d) if a decision under subsection 51ABG(3) grants an extension relating to a notification of the acquisition—details of the extension.\n\n (2) The register must also include any other information or documents, relating to the operation of the acquisitions provisions, determined under paragraph (6)(b) of this section.\n\n (3) Details to which paragraph (1)(a) applies must be included on the acquisitions register within 1 business day after the effective notification date of the notification.\n\n (4) Information or documents to which paragraph (1)(b) or (c) applies must be included on the acquisitions register within 1 business day after the day the relevant determination or decision is made.\n\n (4A) Details to which paragraph (1)(d) applies must be included on the acquisitions register within:\n\n (a) 1 business day after the day the decision is made; or\n\n (b) if this is impracticable—as soon as practicable afterwards.\n\n (5) Information or documents to which subsection (2) applies must be included on the acquisitions register by the time determined under paragraph (6)(c) for the purposes of this subsection in relation to the information or documents.\n\n (6) The Minister may, by legislative instrument, determine:\n\n (a) details of a notification for the purposes of paragraph (1)(a); or\n\n (b) information or documents for the purposes of subsection (2); or\n\n (c) a time for the purposes of subsection (5) in relation to information or documents.\n\n (7) Without limiting paragraph (6)(c), a determination made under that paragraph:\n\n (a) may determine a time by reference to a decision of the Commission in relation to the information or documents; and\n\n (b) may provide for review of such a decision.","sortOrder":481},{"sectionNumber":"51ABZZJ","sectionType":"section","heading":"Treatment of partnerships","content":"51ABZZJ  Treatment of partnerships\n\n (1) The acquisitions provisions apply to a partnership as if it were a person, but with the changes set out in this section.\n\n (2) An obligation that would otherwise be imposed on the partnership by the acquisitions provisions is imposed on each partner instead, but may be discharged by any of the partners.\n\n (3) An offence against the acquisitions provisions that would otherwise have been committed by the partnership is taken to have been committed by each partner in the partnership, at the time the offence was committed, who:\n\n (a) did the relevant act or made the relevant omission; or\n\n (b) aided, abetted, counselled or procured the relevant act or omission; or\n\n (c) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).\n\n (4) This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.\n\n (5) A reference in the acquisitions provisions to a corporation is taken to include a reference to the partnership if all of the partners are corporations.\n\n (6) For the purposes of the acquisitions provisions, a change in the composition of a partnership does not affect the continuity of the partnership.","sortOrder":483},{"sectionNumber":"51ABZZK","sectionType":"section","heading":"Treatment of unit trusts","content":"51ABZZK  Treatment of unit trusts\n\n (1) The acquisitions provisions apply to a unit trust as if it were a person, but with the changes set out in this section.\n\nTrusts with a single trustee\n\n (2) If the unit trust has a single trustee:\n\n (a) an obligation that would otherwise be imposed on the trust by the acquisitions provisions is imposed on the trustee instead; and\n\n (b) an offence against the acquisitions provisions that would otherwise have been committed by the trust is taken to have been committed by the trustee; and\n\n (c) a reference in the acquisitions provisions to a corporation is taken to include a reference to the trust if the trustee is a corporation.\n\nTrusts with multiple trustees\n\n (3) If the unit trust has 2 or more trustees:\n\n (a) an obligation that would otherwise be imposed on the trust by the acquisitions provisions is imposed on each trustee instead, but may be discharged by any of the trustees; and\n\n (b) an offence against the acquisitions provisions that would otherwise have been committed by the trust is taken to have been committed by each trustee of the trust, at the time the contravention was committed, who:\n\n (i) did the relevant act or made the relevant omission; or\n\n (ii) aided, abetted, counselled or procured the relevant act or omission; or\n\n (iii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the trustee); and\n\n (c) a reference in the acquisitions provisions to a corporation is taken to include a reference to the unit trust if all of the trustees are corporations.\n\nContraventions of civil penalty provisions\n\n (4) This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.","sortOrder":484},{"sectionNumber":"51ABZZL","sectionType":"section","heading":"Surprise hostile takeovers","content":"51ABZZL  Surprise hostile takeovers\n\n (1) Subject to subsection (6), this section applies in relation to a notification of an acquisition of shares in the capital of a body corporate if:\n\n (a) the body corporate is a Chapter 6 entity; and\n\n (b) the acquisition is a takeover acquisition in relation to a proposed takeover bid; and\n\n (c) the proposed bid has not been publicly proposed; and\n\n (d) when the notifying party makes the notification of the acquisition, the notifying party requests the Commission, in writing, to apply this section to the notification.\n\n (2) A request made under paragraph (1)(d) must state:\n\n (a) that the bidder (within the meaning of the Corporations Act 2001) for the proposed takeover bid intends that the bid will be a bid to which paragraphs (c) and (d) of item 2 of the table in section 611 of the Corporations Act 2001 will apply; and\n\n (b) that the bidder has not:\n\n (i) entered into an agreement with the board of the target (within the meaning of that Act) in relation to the proposed bid; or\n\n (ii) obtained the board’s support for the proposed bid; and\n\n (c) that, if the Commission:\n\n (i) does not decide that the notification is to be subject to phase 2 review; and\n\n (ii) makes a determination under paragraph 51ABZE(1)(a) of this Act in respect of the notification;\n\n  the bidder will give a bidder’s statement (within the meaning of the Corporations Act 2001) to the target within 1 business day after the day the Commission gives the notifying party written notice of the determination under subsection 51ABZE(4) of this Act.\n\n (3) The Commission must not include information or documents on the acquisitions register in relation to the notification before the 17th business day after the effective notification date of the notification.\n\n (4) Furthermore, the Commission must not include information or documents on the acquisitions register in relation to the notification at all if, before that 17th business day, the Commission decides under section 51ABZD to cease considering the notification.\n\nCommission may determine that this section does not apply\n\n (5) The Commission may, at any time occurring:\n\n (a) after the notifying party makes the request under paragraph (1)(d); and\n\n (b) on or before the 15th business day after the effective notification date of the notification;\n\ndetermine, in writing, that this section does not apply to the notification, if the Commission is satisfied that:\n\n (c) the bid is not, or is not likely to be, a bid to which paragraphs (c) and (d) of item 2 of the table in section 611 of the Corporations Act 2001 apply; or\n\n (d) the bidder has done, or intends to do, any of the things mentioned in subparagraph (2)(b)(i) or (ii) of this section; or\n\n (e) it is not likely that the bidder will give a bidder’s statement as mentioned in paragraph (2)(c).\n\n (6) If the Commission makes a determination under subsection (5):\n\n (a) this section is taken never to have applied in relation to the notification; and\n\n (b) the Commission must give to the notifying party written notice of the determination.","sortOrder":486},{"sectionNumber":"51ABZZM","sectionType":"section","heading":"Acquisitions not stayed during period in which application for review may be made","content":"51ABZZM  Acquisitions not stayed during period in which application for review may be made\n\n (1) This section applies to a notification of an acquisition if:\n\n (a) the Commission makes a determination in respect of the notification under paragraph 51ABZE(1)(a); and\n\n (b) section 51ABZZL applies to the acquisition immediately before the Commission makes the determination.\n\n (2) Despite subsection 51ABE(3), the acquisition is not stayed during the period:\n\n (a) starting when the determination is made; and\n\n (b) ending:\n\n (i) if no application is made under subsection 100C(1) for review of the determination—at the end of the period during which such an application could be made; or\n\n (ii) if such an application is made—when the bidder (within the meaning of the Corporations Act 2001) for the takeover bid becomes aware that the application has been made.\n\n (3) Also, the acquisition is not stayed at the time it is put into effect, to the extent the acquisition results from an on‑market transaction (within the meaning of the Corporations Act 2001) that occurs so soon after the bidder becomes aware that the application has been made that it is not reasonably possible for the bidder to prevent the transaction from occurring.\n\n (4) For the purposes of subsections (2) and (3), the bidder is taken to be aware that an application has been made if the bidder ought reasonably to be aware of it.\n\nVoting rights\n\n (5) To the extent the acquisition is put into effect at a time at which, because of subsection (2) or (3), the acquisition is not stayed, the bidder is not entitled to exercise the voting rights attached to any of the shares.\n\n (6) Subsection (5) ceases to apply:\n\n (a) if no application is made under subsection 100C(1) for review of the determination—at the end of the period during which such an application could be made; or\n\n (b) if such an application is made—at the earliest time (if any) at which:\n\n (i) the notification has been finally considered; and\n\n (ii) subsection 51ABE(4) does not apply to the acquisition.","sortOrder":487},{"sectionNumber":"51ABZZN","sectionType":"section","heading":"ASIC’s power to exempt and modify","content":"51ABZZN  ASIC’s power to exempt and modify\n\n (1) ASIC may, in writing:\n\n (a) exempt a person from subsection 51ABZZM(5); or\n\n (b) declare that subsection 51ABZZM(5) applies to a person as if specified provisions were omitted, modified or varied as specified in the declaration.\n\n (2) In deciding whether to give the exemption or declaration, ASIC must consider the purposes of Chapter 6 of the Corporations Act 2001, set out in section 602 of that Act.\n\n (3) The exemption or declaration may:\n\n (a) apply to all persons, specified persons, or a specified class of person; and\n\n (b) relate to all bid class securities, specified bid class securities or a specified class of bid class securities; and\n\n (c) relate to any other matter generally or as specified.\n\n (4) An instrument made under subsection (1) of this section is a notifiable instrument if it applies only to:\n\n (a) a specified person (other than a person specified by membership of a class); or\n\n (b) a specified person (other than a person specified by membership of a class) and persons associated with that specified person.\n\nOtherwise, it is a legislative instrument.\n\n (5) An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The Court (within the meaning of the Corporations Act 2001) may order the person to comply with the condition in a specified way. Only ASIC may apply to the Court for the order.\n\n (6) An exemption or declaration given under subsection (2) applies in relation to shares after the relevant acquisition determination is no longer subject to review.\n\n (7) Subject to subsection (8) of this section, Subdivision A of Division 2 of Part 6.10 of the Corporations Act 2001 applies in relation to a decision of ASIC under subsection (1) of this section in the same way as that Subdivision applies in relation to a decision of ASIC under section 655A of that Act.\n\nNote: That Subdivision allows the Takeovers Panel to review decisions of ASIC.\n\n (8) For the purposes of subsection (7) of this section, treat a reference, in Subdivision A of Division 2 of Part 6.10 of the Corporations Act 2001, to Chapter 6 of that Act as including a reference to this Subdivision.","sortOrder":488},{"sectionNumber":"51ABZZO","sectionType":"section","heading":"ASIC’s power to exempt and modify—notice of decision and review rights","content":"51ABZZO  ASIC’s power to exempt and modify—notice of decision and review rights\n\n (1) Subject to subsection (2), ASIC must take such steps as are reasonable in the circumstances to give to each person whose interests are affected by a decision under section 51ABZZN a notice, in writing or otherwise:\n\n (a) of the making of the decision; and\n\n (b) of the person’s right to have the decision reviewed by the Takeovers Panel under section 656A of the Corporations Act 2001 (see subsection 51ABZZN(7) of this Act).\n\n (2) Subsection (1) does not require ASIC to give notice to a person affected by the decision or to the persons in a class of persons affected by the decision, if ASIC determines that giving notice to the person or persons is not warranted, having regard to:\n\n (a) the cost of giving notice to the person or persons; and\n\n (b) the way in which the interests of the person or persons are affected by the decision.\n\n (3) A failure to comply with this section does not affect the validity of the decision.","sortOrder":489},{"sectionNumber":"51ABZZP","sectionType":"section","heading":"Person must cease to hold shares","content":"51ABZZP  Person must cease to hold shares\n\n (1) If:\n\n (a) the Commission makes a determination under paragraph 51ABZE(1)(a) in respect of a notification of an acquisition; and\n\n (b) the acquisition is put into effect to any extent at a time at which, because of subsection 51ABZZM(2) or (3), the acquisition is not stayed; and\n\n (c) an application for review of the determination is made under subsection 100C(1); and\n\n (d) either:\n\n (i) on the review, the Tribunal determines that the acquisition must not be put into effect; or\n\n (ii) the result of the review is that the acquisition is subject to a condition to which it would not have been subject apart from the review, that condition was not complied with and the non‑compliance occurred before the Tribunal makes its determination on the review;\n\nthen, within 12 months after the Tribunal makes that determination, the person must cease to hold the shares.\n\n (2) ASIC may extend the period within which the person must cease to hold the shares under subsection (1) if the person applies for the extension before the end of the period.\n\n (3) ASIC must not extend the period more than once.\n\n (4) Any voting rights attached to the shares cannot be exercised while the person continues to hold the shares.\n\n (5) If, at the end of the 12 months (or extended period), the person still holds the shares, the person commits an offence for each day while that situation continues.\n\nPenalty: 20 penalty units.\n\n (6) An offence based on subsection (5) is an offence of strict liability.\n\nNote: For strict liability, see section 6.1 of the Criminal Code.\n\n (7) A contravention of this section does not affect the validity of any transaction.\n\n (8) Furthermore, if voting rights are exercised in contravention of subsection (4), the meeting or the resolution on which the voting rights were exercised will be invalid on that ground only if:\n\n (a) the Court (within the meaning of the Corporations Act 2001) is of the opinion that:\n\n (i) a substantial injustice has been caused or may be caused; and\n\n (ii) the injustice cannot be remedied by any order of the Court; and\n\n (b) the Court declares the meeting or resolution invalid.","sortOrder":490},{"sectionNumber":"51ABZZQ","sectionType":"section","heading":"Certain voluntary transfers under the Financial Sector (Transfer and Restructure) Act 1999","content":"51ABZZQ  Certain voluntary transfers under the Financial Sector (Transfer and Restructure) Act 1999\n\n (1) This section applies to a notification of an acquisition if:\n\n (a) the acquisition is, or is part of, a voluntary transfer of business (within the meaning of the Financial Sector (Transfer and Restructure) Act 1999); and\n\n (b) the certificate of transfer (within the meaning of that Act) states that the voluntary transfer of business is necessary:\n\n (i) to promote financial system stability in Australia; or\n\n (ii) if the transferring body (within the meaning of that Act) is an ADI (within the meaning of that Act)—to protect the interests of depositors of the transferring body; or\n\n (iii) if the transferring body is a life insurance company (within the meaning of that Act)—to protect the interests of policy owners or prospective policy owners of the transferring body.\n\n (2) If this section applies to the notification:\n\n (a) subsection 51ABZI(1) (earliest time for making determinations) does not apply in relation to the notification; and\n\n (b) the Commission must not include information or documents on the acquisitions register in relation to the notification unless and until the Commission makes a determination under subsection 51ABZE(1) in respect of the notification.","sortOrder":492},{"sectionNumber":"51ABZZR","sectionType":"section","heading":"Delegation by Commission","content":"51ABZZR  Delegation by Commission\n\n (1) The Commission may, in writing, delegate any or all of the Commission’s functions or powers under an acquisitions provision to a member of the staff of the Commission who is an SES employee or an acting SES employee.\n\n (2) The Commission may delegate a function or power to a person under subsection (1) only if the Commission is satisfied that the person has appropriate qualifications, training or experience to perform the function or exercise the power.\n\n (3) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Commission.","sortOrder":494},{"sectionNumber":"51ABZZS","sectionType":"section","heading":"Delegation by Minister","content":"51ABZZS  Delegation by Minister\n\n (1) The Minister may, in writing, delegate any or all of the Minister’s functions or powers under an acquisitions provision to:\n\n (a) in any case—an SES employee or acting SES employee in the Department; or\n\n (b) in the case of the Minister’s power under subsection 51ABY(5) or 51ABZQ(5):\n\n (i) the Commission; or\n\n (ii) a member of the Commission; or\n\n (iii) a member of the staff of the Commission who is an SES employee or an acting SES employee.\n\n (2) Subsection (1) does not apply to the Minister’s power under subsection 51ABB(2), 51ABC(3), 51ABP(1), 51ABQ(1), 51ABRA(1), 51ABRB(1) or 51ABS(6).\n\n (3) The Minister may delegate a function or power to a person under subsection (1) only if the Minister is satisfied that the person has appropriate qualifications, training or experience to perform the function or exercise the power.\n\n (4) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Minister.","sortOrder":495},{"sectionNumber":"51ABZZT","sectionType":"section","heading":"Fees","content":"51ABZZT  Fees\n\n  A fee determined under this Part must not be such as to amount to taxation.","sortOrder":496},{"sectionNumber":"51ABZZU","sectionType":"section","heading":"Review of the operation of this Part etc.","content":"51ABZZU  Review of the operation of this Part etc.\n\n (1) The Minister must cause a review to be conducted of the operation of:\n\n (a) Division 1A of Part IV; and\n\n (b) this Part; and\n\n (c) Divisions 1A and 1B of Part IX.\n\n (2) The persons who conduct the review must:\n\n (a) commence it no earlier than 1 December 2028; and\n\n (b) complete it, and give the Minister a written report of the review, no later than 31 December 2029.\n\n (3) The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.\n\nChapter 4—Provisions relating to particular industries, payment surcharges etc.","sortOrder":497},{"sectionNumber":"Part IVB","sectionType":"part","heading":"Industry codes","content":"Part IVB—Industry codes","sortOrder":498},{"sectionNumber":"51ACA","sectionType":"section","heading":"Definitions","content":"51ACA  Definitions\n\n (1) In this Part:\n\napplicable industry code, in relation to a corporation that is a participant in an industry, means:\n\n (a) the prescribed provisions of any mandatory industry code relating to the industry; and\n\n (b) the prescribed provisions of any voluntary industry code that binds the corporation.\n\nconsumer, in relation to an industry, means a person to whom goods or services are or may be supplied by participants in the industry.\n\nindustry code has the meaning given by section 51ACAA.\n\ninfringement notice means an infringement notice issued under subsection 51ACD(1).\n\ninfringement notice compliance period: see subsection 51ACI(1).\n\nmandatory industry code means an industry code that is declared by regulations under section 51AE to be mandatory.\n\nrelated contravention: a person engages in conduct that constitutes a related contravention of an applicable industry code, if the person:\n\n (a) aids, abets, counsels or procures a corporation to contravene the applicable industry code; or\n\n (b) induces, whether by threats or promises or otherwise, a corporation to contravene the applicable industry code; or\n\n (c) is in any way, directly or indirectly, knowingly concerned in, or party to, a contravention by a corporation of the applicable industry code; or\n\n (d) conspires with others to effect a contravention by a corporation of the applicable industry code.\n\nvoluntary industry code means an industry code that is declared by regulations under section 51AE to be voluntary.\n\n (2) For the purposes of this Part, a voluntary industry code binds a person who has agreed, as prescribed, to be bound by the code and who has not subsequently ceased, as prescribed, to be bound by it.\n\n (3) To avoid doubt, it is declared that:\n\n (a) franchising is an industry for the purposes of this Part; and\n\n (b) franchisors and franchisees are participants in the industry of franchising, whether or not they are also participants in another industry.","sortOrder":500},{"sectionNumber":"51ACAA","sectionType":"section","heading":"Meaning of industry code","content":"51ACAA  Meaning of industry code\n\n (1) For the purposes of this Part, an industry code is (subject to subsection (2)) a code that regulates the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry.\n\n (2) If this Act provides that an industry code prescribed by the regulations for the purposes of this Part may include a provision of a certain kind, then:\n\n (a) the regulations may prescribe, for the purposes of this Part, an industry code that includes a provision of that kind, whether or not the provision regulates conduct of a kind mentioned in subsection (1); and\n\n (b) if the regulations do prescribe, for the purposes of this Part, an industry code that includes a provision of that kind, the inclusion of the provision does not prevent the code from being an industry code for the purposes of this Part.","sortOrder":501},{"sectionNumber":"51ACB","sectionType":"section","heading":"Contravention of industry codes","content":"51ACB  Contravention of industry codes\n\n  A corporation must not, in trade or commerce, contravene an applicable industry code.","sortOrder":503},{"sectionNumber":"51ACC","sectionType":"section","heading":"Purpose and effect of this Division","content":"51ACC  Purpose and effect of this Division\n\n (1) The purpose of this Division is to provide for the issue of an infringement notice to a person for an alleged contravention of a civil penalty provision of an industry code as an alternative to proceedings for an order under section 76 for the payment of a pecuniary penalty.\n\n (2) This Division does not:\n\n (a) require an infringement notice to be issued to a person for an alleged contravention of a civil penalty provision of an industry code; or\n\n (b) affect the liability of a person to proceedings under section 76 in relation to an alleged contravention of a civil penalty provision of an industry code if:\n\n (i) an infringement notice is not issued to the person for the contravention; or\n\n (ii) an infringement notice issued to the person for the contravention is withdrawn under section 51ACJ; or\n\n (c) prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice.","sortOrder":505},{"sectionNumber":"51ACD","sectionType":"section","heading":"Issuing an infringement notice","content":"51ACD  Issuing an infringement notice\n\n (1) If the Commission has reasonable grounds to believe that a person has contravened a civil penalty provision of an industry code, the Commission may issue an infringement notice to the person.\n\n (2) The Commission must not issue more than one infringement notice to the person for the same alleged contravention of the civil penalty provision of the industry code.\n\n (3) The infringement notice does not have any effect if the notice:\n\n (a) is issued more than 12 months after the day that the contravention of the civil penalty provision of the industry code is alleged to have occurred; or\n\n (b) relates to more than one alleged contravention of a civil penalty provision of the industry code by the person.","sortOrder":506},{"sectionNumber":"51ACE","sectionType":"section","heading":"Matters to be included in an infringement notice","content":"51ACE  Matters to be included in an infringement notice\n\n (1) An infringement notice must:\n\n (a) be identified by a unique number; and\n\n (b) state the day on which it is issued; and\n\n (c) state the name and address of the person to whom it is issued; and\n\n (d) identify the Commission and state how it may be contacted; and\n\n (e) give details of the alleged contravention, including:\n\n (i) the day of the alleged contravention; and\n\n (ii) the civil penalty provision of the industry code that was allegedly contravened; and\n\n (f) state the maximum pecuniary penalty that the court could order the person to pay under section 76 for the alleged contravention; and\n\n (g) specify the penalty that is payable in relation to the alleged contravention; and\n\n (h) state that the penalty is payable within the infringement notice compliance period for the notice; and\n\n (i) state that the penalty is payable to the Commission on behalf of the Commonwealth; and\n\n (j) explain how payment of the penalty is to be made; and\n\n (k) explain the effect of sections 51ACG, 51ACH, 51ACI and 51ACJ.","sortOrder":507},{"sectionNumber":"51ACF","sectionType":"section","heading":"Amount of penalty","content":"51ACF  Amount of penalty\n\n (1) The penalty to be specified in an infringement notice to be issued to a person, for an alleged contravention of a civil penalty provision of an industry code, must be equal to the following:\n\n (a) if subsection (2) applies to the industry code:\n\n (i) if the person is a body corporate—600 penalty units; or\n\n (ii) otherwise—12 penalty units;\n\n (b) otherwise:\n\n (i) if the person is a body corporate—60 penalty units; or\n\n (ii) otherwise—12 penalty units.\n\nIndustry codes relating to food and groceries, or oil\n\n (2) This subsection applies to an industry code that:\n\n (a) relates to:\n\n (i) food and groceries; or\n\n (ii) the conduct of suppliers, distributors and retailers in the petroleum marketing industry; and\n\n (b) provides that this subsection applies to the code.","sortOrder":508},{"sectionNumber":"51ACG","sectionType":"section","heading":"Effect of compliance with an infringement notice","content":"51ACG  Effect of compliance with an infringement notice\n\n (1) This section applies if:\n\n (a) an infringement notice for an alleged contravention of a civil penalty provision of an industry code is issued to a person; and\n\n (b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and\n\n (c) the infringement notice is not withdrawn under section 51ACJ.\n\n (2) The person is not, merely because of the payment, regarded as having contravened the civil penalty provision of the industry code.\n\n (3) No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to the alleged contravention of the civil penalty provision of the industry code.","sortOrder":509},{"sectionNumber":"51ACH","sectionType":"section","heading":"Effect of failure to comply with an infringement notice","content":"51ACH  Effect of failure to comply with an infringement notice\n\n  If:\n\n (a) an infringement notice for an alleged contravention of a civil penalty provision of an industry code is issued to a person; and\n\n (b) the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and\n\n (c) the infringement notice is not withdrawn under section 51ACJ;\n\nthe person is liable to proceedings under section 76 in relation to the alleged contravention of the civil penalty provision of the industry code.","sortOrder":510},{"sectionNumber":"51ACI","sectionType":"section","heading":"Infringement notice compliance period for infringement notice","content":"51ACI  Infringement notice compliance period for infringement notice\n\n (1) Subject to this section, the infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day that the infringement notice is issued by the Commission.\n\n (2) The Commission may extend, by notice in writing, the infringement notice compliance period for the infringement notice if the Commission is satisfied that it is appropriate to do so.\n\n (3) Only one extension may be given and the extension must not be for longer than 28 days.\n\n (4) Notice of the extension must be given to the person who was issued the infringement notice.\n\n (5) A failure to comply with subsection (4) does not affect the validity of the extension.\n\n (6) If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.","sortOrder":511},{"sectionNumber":"51ACJ","sectionType":"section","heading":"Withdrawal of an infringement notice","content":"51ACJ  Withdrawal of an infringement notice\n\nRepresentations to the Commission\n\n (1) A person to whom an infringement notice has been issued for an alleged contravention of a civil penalty provision of an industry code may make written representations to the Commission seeking the withdrawal of the infringement notice.\n\n (2) Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).\n\nWithdrawal by the Commission\n\n (3) The Commission may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so.\n\n (4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal.\n\nContent of withdrawal notices\n\n (5) The withdrawal notice must state:\n\n (a) the name and address of the person; and\n\n (b) the day on which the infringement notice was issued to the person; and\n\n (c) that the infringement notice is withdrawn; and\n\n (d) that proceedings under section 76 may be started or continued against the person in relation to the alleged contravention of the civil penalty provision of the industry code.\n\nTime limit for giving withdrawal notices\n\n (6) To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice.\n\nRefunds\n\n (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.","sortOrder":512},{"sectionNumber":"51ADA","sectionType":"section","heading":"Commission may issue a public warning notice","content":"51ADA  Commission may issue a public warning notice\n\nCommission may issue a public warning notice\n\n (1) The Commission may issue to the public a written notice containing a warning about the conduct of a person if:\n\n (a) the Commission has reasonable grounds to suspect that the conduct may constitute:\n\n (i) if the person is a corporation—a contravention of an applicable industry code by the corporation; or\n\n (ii) in any case—a related contravention of an applicable industry code by the person; and\n\n (b) the Commission is satisfied that one or more persons has suffered, or is likely to suffer, detriment as a result of the conduct; and\n\n (c) the Commission is satisfied that it is in the public interest to issue the notice.\n\nNotice is not a legislative instrument\n\n (2) A notice issued under subsection (1) is not a legislative instrument.","sortOrder":514},{"sectionNumber":"51ADB","sectionType":"section","heading":"Orders to redress loss or damage suffered by non-parties etc.","content":"51ADB  Orders to redress loss or damage suffered by non‑parties etc.\n\nOrders\n\n (1) If:\n\n (a) a person engaged in conduct (the contravening conduct) that:\n\n (i) if the person was a corporation—constituted a contravention of an applicable industry code; or\n\n (ii) in any case—constituted a related contravention of an applicable industry code; and\n\n (b) the contravening conduct caused, or is likely to cause, a class of persons to suffer loss or damage; and\n\n (c) the class includes persons (non‑parties) who are not, or have not been, parties to a proceeding (an enforcement proceeding) instituted under Part VI in relation to the contravening conduct;\n\nany court having jurisdiction in the matter may, on the application of the Commission, make such order or orders (other than an award of damages) as the court thinks appropriate against a person referred to in subsection (2) of this section.\n\nNote: The orders that the court may make include all or any of the orders set out in section 51ADC.\n\n (2) An order under subsection (1) may be made against:\n\n (a) the person mentioned in paragraph (1)(a); or\n\n (b) a person involved in the contravening conduct.\n\n (3) A court must not make an order under subsection (1) unless the court considers that the order will:\n\n (a) redress, in whole or in part, the loss or damage suffered by the non‑parties in relation to the contravening conduct; or\n\n (b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the non‑parties in relation to the contravening conduct.\n\nApplication for orders\n\n (4) An application may be made under subsection (1) even if an enforcement proceeding in relation to the contravening conduct has not been instituted.\n\n (5) An application under subsection (1) may be made at any time within 6 years after the day on which the cause of action that relates to the contravening conduct accrues.\n\nDetermining whether to make an order\n\n (6) In determining whether to make an order under subsection (1) against a person referred to in subsection (2), a court may have regard to the conduct of:\n\n (a) the person; and\n\n (b) the non‑parties;\n\nin relation to the contravening conduct, since the contravention occurred.\n\n (7) In determining whether to make an order under subsection (1), a court need not make a finding about either of the following matters:\n\n (a) which persons are non‑parties in relation to the contravening conduct;\n\n (b) the nature of the loss or damage suffered, or likely to be suffered, by such persons.\n\nWhen a non‑party is bound by an order etc.\n\n (8) If:\n\n (a) an order is made under subsection (1) against a person; and\n\n (b) the loss or damage suffered, or likely to be suffered, by a non‑party in relation to the contravening conduct to which the order relates has been redressed, prevented or reduced in accordance with the order; and\n\n (c) the non‑party has accepted the redress, prevention or reduction;\n\nthen:\n\n (d) the non‑party is bound by the order; and\n\n (e) any other order made under subsection (1) that relates to that loss or damage has no effect in relation to the non‑party; and\n\n (f) despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory, no claim, action or demand may be made or taken against the person by the non‑party in relation to that loss or damage.","sortOrder":516},{"sectionNumber":"51ADC","sectionType":"section","heading":"Kinds of orders that may be made to redress loss or damage suffered by non-parties etc.","content":"51ADC  Kinds of orders that may be made to redress loss or damage suffered by non‑parties etc.\n\n  Without limiting subsection 51ADB(1), the orders that a court may make under that subsection against a person (the respondent) include all or any of the following:\n\n (a) an order declaring the whole or any part of a contract made between the respondent and a non‑party referred to in that subsection, or a collateral arrangement relating to such a contract:\n\n (i) to be void; and\n\n (ii) if the court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);\n\n (b) an order:\n\n (i) varying such a contract or arrangement in such manner as is specified in the order; and\n\n (ii) if the court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);\n\n (c) an order refusing to enforce any or all of the provisions of such a contract or arrangement;\n\n (d) an order directing the respondent to refund money or return property to a non‑party referred to in that subsection;\n\n (e) an order directing the respondent, at his or her own expense, to repair, or provide parts for, goods that have been supplied under the contract or arrangement to a non‑party referred to in that subsection;\n\n (f) an order directing the respondent, at his or her own expense, to supply specified services to a non‑party referred to in that subsection;\n\n (g) an order, in relation to an instrument creating or transferring an interest in land (within the meaning of section 53A), directing the respondent to execute an instrument that:\n\n (i) varies, or has the effect of varying, the first‑mentioned instrument; or\n\n (ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first‑mentioned instrument.","sortOrder":517},{"sectionNumber":"51ADD","sectionType":"section","heading":"Commission may require corporation to provide information","content":"51ADD  Commission may require corporation to provide information\n\n (1) This section applies if a corporation is required to keep, to generate or to publish information or a document under an applicable industry code.\n\n (2) The Commission may give the corporation a written notice that requires the corporation to give the information, or to produce the document, to the Commission within 21 days after the notice is given to the corporation.\n\n (3) The notice must:\n\n (a) name the corporation to which it is given; and\n\n (b) specify:\n\n (i) the information or document to which it relates; and\n\n (ii) the provisions of the applicable industry code which require the corporation to keep, to generate or to publish the information or document; and\n\n (c) explain the effect of sections 51ADE, 51ADF and 51ADG.\n\n (4) The notice may relate to more than one piece of information or more than one document.","sortOrder":519},{"sectionNumber":"51ADE","sectionType":"section","heading":"Extending periods for complying with notices","content":"51ADE  Extending periods for complying with notices\n\n (1) A corporation that has been given a notice under section 51ADD may, at any time within the period within which the corporation must comply with the notice (as extended under any previous application of subsection (2)), apply in writing to the Commission for an extension of the period for complying with the notice.\n\n (2) A member of the Commission may, by written notice given to the corporation, extend the period within which the corporation must comply with the notice.\n\n (3) Subsection (2) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a notice under section 51ADD of this Act.\n\nDelegation\n\n (4) A member of the Commission may, by writing, delegate the member’s powers under subsection (2) to a member of the staff of the Commission who is an SES employee or an acting SES employee.\n\nNote 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee.\n\nNote 2: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (5) In performing a function, or exercising a power, under a delegation, the delegate must comply with any directions of the member.","sortOrder":520},{"sectionNumber":"51ADF","sectionType":"section","heading":"Compliance with notices","content":"51ADF  Compliance with notices\n\n  A corporation that is given a notice under section 51ADD must comply with it within:\n\n (a) the period of 21 days specified in the notice; or\n\n (b) if the period for complying with the notice has been extended under section 51ADE—the period as so extended.","sortOrder":521},{"sectionNumber":"51ADG","sectionType":"section","heading":"False or misleading information etc.","content":"51ADG  False or misleading information etc.\n\n (1) A corporation must not, in compliance or purported compliance with a notice given under section 51ADD:\n\n (a) give to the Commission false or misleading information; or\n\n (b) produce to the Commission documents that contain false or misleading information.\n\n (2) This section does not apply to:\n\n (a) information that the corporation could not have known was false or misleading; or\n\n (b) the production to the Commission of a document containing false or misleading information if the document is accompanied by a statement of the corporation that the information is false or misleading.","sortOrder":522},{"sectionNumber":"51AE","sectionType":"section","heading":"Regulations relating to industry codes","content":"51AE  Regulations relating to industry codes\n\nRegulations may prescribe industry codes etc.\n\n (1) The regulations may:\n\n (a) prescribe an industry code, or specified provisions of an industry code, for the purposes of this Part; and\n\n (b) declare the industry code to be a mandatory industry code or a voluntary industry code; and\n\n (c) for a voluntary industry code, specify the method by which a corporation agrees to be bound by the code and the method by which it ceases to be so bound (by reference to provisions of the code or otherwise).\n\nConferral of functions and powers\n\n (1A) If regulations prescribe an industry code, the industry code may confer on a person or body functions and powers in relation to the code, including functions and powers in relation to the following matters:\n\n (a) monitoring compliance with the code;\n\n (b) dealing with disputes or complaints arising under, or in relation to, the code;\n\n (c) dealing with matters relating to a prospective agreement (including disputes or complaints relating to such an agreement) that would, if entered into, have the effect that one or more parties to the agreement is a participant in the industry to which the code relates;\n\n (d) conducting investigations under, or in relation to, the code;\n\n (e) providing exemptions from the code or specified provisions of the code;\n\n (f) reviewing, or reporting on, the operation of the code or activities under, or in relation to, the code;\n\n (g) any other matter relating to the operation, application or administration of the code.\n\n (1B) For the purposes of subsection (1A), the persons or bodies on whom an industry code may confer functions and powers are:\n\n (a) if the function or power is a function of providing, or a power to provide, exemptions from the code or specified provisions of the code—any of the following:\n\n (i) the Commission;\n\n (ii) the Australian Energy Regulator;\n\n (iii) a Minister (whether or not a Minister administering this provision); or\n\n (b) otherwise—any person or body whether or not a participant in the industry to which the code relates, including the following:\n\n (i) a person or body referred to in subparagraph (a)(i), (ii) or (iii);\n\n (ii) any person from time to time holding, occupying or performing the duties of a specified office or position.\n\nHow functions and powers are to be exercised\n\n (1C) If an industry code prescribed by the regulations confers on a person or body a function or power in relation to the code, the code may provide that the function or power is to be exercised by legislative instrument or other kind of written instrument.\n\n (1D) However, if an industry code confers on a person or body a function of providing, or a power to provide, exemptions from the code or specified provisions of the code, then (despite anything to the contrary in the code):\n\n (a) the function or power must be exercised by written instrument (an exemption instrument); and\n\n (b) if the code does not provide that an exemption instrument made under the code is a legislative instrument, then:\n\n (i) if each exemption provided by the instrument relates to a particular entity—the instrument is a notifiable instrument; or\n\n (ii) otherwise—the instrument is a legislative instrument.\n\nNote: If the code provides that an exemption instrument made under the code is a legislative instrument, then the instrument is a legislative instrument: see subsection 8(2) of the Legislation Act 2003.\n\nRequirements to provide information\n\n (1E) An industry code prescribed by the regulations:\n\n (a) may require a person or body to provide another person or body with information or documents relevant to the operation, application or administration of the code (whether or not any of those persons or bodies are participants in the industry to which the code relates); and\n\n (b) may confer on a person or body (whether or not a participant in the industry to which the code relates) a function of imposing, or a power to impose, a requirement of the kind mentioned in paragraph (a).\n\n (1F) Paragraph (1E)(b) does not limit subsection (1A).\n\nPecuniary penalties\n\n (2) If regulations prescribe an industry code (other than a code that relates to an industry covered by subsection (2AA)), the industry code may prescribe a pecuniary penalty not exceeding 600 penalty units for a contravention of a civil penalty provision of the code.\n\n (2AA) This subsection covers the following industries:\n\n (a) franchising;\n\n (b) food and groceries;\n\n (c) suppliers, distributors and retailers in the petroleum marketing industry.\n\n (2A) If regulations prescribe an industry code that relates to an industry covered by subsection (2AA), the industry code may do the following:\n\n (a) prescribe that the pecuniary penalty for a contravention of a civil penalty provision of the code by a body corporate is the greatest of the following:\n\n (i) $10,000,000;\n\n (ii) if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, has obtained directly or indirectly and that is reasonably attributable to the contravention—3 times the value of that benefit;\n\n (iii) if the Court cannot determine the value of that benefit—10% of the adjusted turnover of the body corporate during the period of 12 months ending at the end of the month in which the contravention occurred;\n\n (b) prescribe that the pecuniary penalty for a contravention of a civil penalty provision of the code by a person who is not a body corporate is $500,000;\n\n (c) if the code does not prescribe a pecuniary penalty mentioned in paragraph (a) or (b) for a contravention of a civil penalty provision of the code by a person—prescribe the following for the contravention:\n\n (i) in the case of an industry code that relates to the industry covered by paragraph (2AA)(a)—a pecuniary penalty not exceeding 600 penalty units;\n\n (ii) in the case of an industry code that relates to the industry covered by paragraph (2AA)(b) or (c)—a pecuniary penalty not exceeding 3,200 penalty units if the person is a body corporate and 640 penalty units if the person is not a body corporate.\n\n (2B) An expression used paragraph (2A)(a) has the same meaning as in subsection 76(1C).\n\nIncorporation of matters contained in other instruments\n\n (3) If regulations prescribe an industry code that applies to one or more entities that are authorised by or under a law of the Commonwealth or of a State or Territory to sell electricity, the regulations may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.\n\n (4) Subsection (3) applies despite subsection 14(2) of the Legislation Act 2003.","sortOrder":524},{"sectionNumber":"51AEAA","sectionType":"section","heading":"Functions and powers of Commission under industry codes","content":"51AEAA  Functions and powers of Commission under industry codes\n\n  To avoid doubt, the functions and powers of the Commission under this Act include any function or power conferred on the Commission by an industry code prescribed for the purposes of this Part.","sortOrder":525},{"sectionNumber":"51AEA","sectionType":"section","heading":"Concurrent operation of State and Territory laws","content":"51AEA  Concurrent operation of State and Territory laws\n\n  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.","sortOrder":526},{"sectionNumber":"51AF","sectionType":"section","heading":"Acquisition of property","content":"51AF  Acquisition of property\n\nScope\n\n (1) This section applies to the following provisions:\n\n (a) paragraphs 51AE(1A)(b) and (c);\n\n (b) a provision of an industry code prescribed for the purposes of this Part that is authorised by paragraph 51AE(1A)(b) or (c);\n\n (c) any other provision of this Act or the regulations, to the extent to which the provision relates to a provision mentioned in paragraph (a) or (b) of this subsection.\n\nEffect of provisions\n\n (2) The provisions have no effect to the extent (if any) to which their operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).","sortOrder":527},{"sectionNumber":"Part IVBA","sectionType":"part","heading":"News media and digital platforms mandatory bargaining code","content":"Part IVBA—News media and digital platforms mandatory bargaining code","sortOrder":528},{"sectionNumber":"52A","sectionType":"section","heading":"Definitions","content":"52A  Definitions\n\n  In this Part:\n\nbargaining news business representative, for a registered news business, has the meaning given by section 52ZD.\n\nbargaining parties has the meaning given by section 52ZG.\n\nCommunications Secretary means the Secretary of the Department administered by the Minister administering the News Journalism Payments Act 2026.\n\ncore bargaining issues has the meaning given by section 52ZG.\n\ncore news content means content that reports, investigates or explains:\n\n (a) issues or events that are relevant in engaging Australians in public debate and in informing democratic decision‑making; or\n\n (b) current issues or events of public significance for Australians at a local, regional or national level.\n\ncovered news content means content that is any of the following:\n\n (a) core news content;\n\n (b) content that reports, investigates or explains current issues or events of interest to Australians.\n\ndesignated digital platform corporation means a corporation that is specified as a designated digital platform corporation in a determination under section 52E.\n\ndesignated digital platform service, of a designated digital platform corporation, means a service that is specified as a designated digital platform service of the corporation in a determination under section 52E.\n\nnews business means:\n\n (a) a news source; or\n\n (b) a combination of news sources.\n\nnews source means any of the following, if it produces, and publishes online, news content:\n\n (a) a newspaper masthead;\n\n (b) a magazine;\n\n (c) a television program or channel;\n\n (d) a radio program or channel;\n\n (e) a website or part of a website;\n\n (f) a program of audio or video content designed to be distributed over the internet.\n\nregistered news business means a news business that is registered under section 52G.\n\nregistered news business corporation:\n\n (a) a registered news business corporation means a corporation that is registered under section 52G; and\n\n (b) a registered news business corporation, for a registered news business, means the corporation that is endorsed under section 52G as the registered news business corporation for the registered news business.\n\nregister of bargaining code arbitrators means the register established under section 52ZK.\n\nremuneration issue has the meaning given by subsection 52ZL(1).\n\nrepresented registered news business has the meaning given by section 52ZG.\n\nresponsible digital platform corporation for a designated digital platform service is:\n\n (a) a corporation that:\n\n (i) is a related body corporate of the service’s designated digital platform corporation; and\n\n (ii) if the corporation is not incorporated in Australia—is managed in Australia; and\n\n (iii) either by itself or together with other corporations, operates or controls the designated digital platform service in supplying services that are used by Australians; or\n\n (b) if there is no corporation that satisfies the requirements of paragraph (a)—the service’s designated digital platform corporation.","sortOrder":530},{"sectionNumber":"52B","sectionType":"section","heading":"Making content available","content":"52B  Making content available\n\n (1) For the purposes of this Part, a service makes content available if:\n\n (a) the content is reproduced on the service, or is otherwise placed on the service; or\n\n (b) a link to the content is provided on the service; or\n\n (c) an extract of the content is provided on the service.\n\n (2) Subsection (1) does not limit, for the purposes of this Part, the ways in which a service makes content available.","sortOrder":531},{"sectionNumber":"52C","sectionType":"section","heading":"Interacting with content","content":"52C  Interacting with content\n\n (1) For the purposes of this Part, a user of a service interacts with content made available by the service if:\n\n (a) the content is reproduced on the service, or is otherwise placed on the service, and the user interacts with the content; or\n\n (b) a link to the content is provided on the service and the user interacts with the link; or\n\n (c) an extract of the content is provided on the service and the user interacts with the extract.\n\n (2) Subsection (1) does not limit, for the purposes of this Part, the ways in which a user of a service interacts with content made available by a service.","sortOrder":532},{"sectionNumber":"52D","sectionType":"section","heading":"Distributing content","content":"52D  Distributing content\n\n (1) For the purposes of this Part, the following are examples of ways in which a service distributes content that is made available by the service:\n\n (a) ranking the content;\n\n (b) curating the content;\n\n (c) making the content more or less prominent;\n\n (d) making a user more or less likely to interact with the content.\n\n (2) Subsection (1) does not limit, for the purposes of this Part, the ways in which a service distributes content that is made available by the service.\n\n (3) For the purposes of this Part, treat the following alterations as alterations to the ways in which a service distributes content that is made available by the service:\n\n (a) an alteration to the ways in which the service distributes a particular class of content;\n\nExample 1: An alteration that increases the prevalence or prominence of video content made available by the service by making such video content play automatically.\n\nExample 2: An alteration that increases or decreases the prevalence or prominence of content made available by the service with which users of the service have previously interacted.\n\nExample 3: An alteration that increases the prevalence or prominence of content made available by the service by making extracts from the content available on the service automatically.\n\nExample 4: An alteration that increases the ranking of content made available by the service if a user’s friends and family have interacted with content.\n\n (b) an alteration to the ways in which the service distributes content of a particular content creator, or class of content creators;\n\nExample 1: An alteration that increases or decreases the prevalence or prominence of content made available by the service if the content is created by a news business that has facilities to make content load rapidly.\n\nExample 2: An alteration that decreases the prevalence or prominence of content made available by the service if the content is created by an automated account.\n\nExample 3: An alteration that decreases the prevalence or prominence of content made available by the service if the content is from a particular website, where attempts have been made to manipulate rankings of content from the website.\n\nExample 4: An alteration that decreases the prevalence or prominence of content made available by the service if the content is from an account of a celebrity or other prominent individual.\n\n (c) an alteration to the ways in which the service distributes a particular class of content in relation to a particular class of users of the service.\n\nExample 1: An alteration that prevents inappropriate content being made available by the service to children.\n\nExample 2: An alteration that increases the prevalence or prominence of particular content made available by the service to users of a particular age.\n\nExample 3: An alteration that decreases the prevalence or prominence of particular content made available by the service to users who have indicated they do not wish to see such content.\n\nExample 4: An alteration that increases the prevalence or prominence of content made available by the service to users who are affected by a natural disaster, if the content is reliable information about the disaster.\n\n (4) Subsection (3) does not limit, for the purposes of this Part, the kinds of alterations that are alterations to the ways in which a service distributes content that is made available by the service.","sortOrder":533},{"sectionNumber":"52E","sectionType":"section","heading":"Minister may make designation determination","content":"52E  Minister may make designation determination\n\n (1) The Minister may, by legislative instrument, make a determination that:\n\n (a) specifies one or more services covered by subsection (2) in relation to a corporation as designated digital platform services of the corporation; and\n\n (b) specifies the corporation as a designated digital platform corporation.\n\n (2) This subsection covers a service in relation to a corporation if:\n\n (a) the corporation, either by itself or together with one or more related bodies corporate of the corporation, operates or controls the service; or\n\n (b) a related body corporate of the corporation, either by itself or together with one or more other related bodies corporate of the corporation, operates or controls the service.\n\n (3) In making the determination, the Minister must consider:\n\n (a) whether there is a significant bargaining power imbalance between Australian news businesses and the group comprised of the corporation and all of its related bodies corporate; and\n\n (b) whether that group has made a significant contribution to the sustainability of the Australian news industry through agreements relating to news content of Australian news businesses (including agreements to remunerate those businesses for their news content).\n\n (4) In making the determination, the Minister may consider any reports or advice of the Commission.\n\n (5) Before making the determination, the Minister must give the corporation notice in writing that the Minister intends to make a determination under subsection (1) specifying the corporation and a particular service or particular services.\n\n (6) The Minister must not make the determination before the end of the period of 30 days starting on the day on which the notice under subsection (5) is given.","sortOrder":535},{"sectionNumber":"52F","sectionType":"section","heading":"Application for registration of news business and news business corporation","content":"52F  Application for registration of news business and news business corporation\n\n (1) A corporation (the applicant corporation) may apply to the ACMA, in relation to a news business, for:\n\n (a) if the news business is not already a registered news business—the registration of the news business; and\n\n (b) if the applicant corporation is not already a registered news business corporation—the registration of the applicant corporation; and\n\n (c) the endorsement of the applicant corporation as the registered news business corporation for the news business.\n\n (2) The application must:\n\n (a) be in writing; and\n\n (b) set out every news source that comprises the news business; and\n\n (c) set out details of the applicant corporation’s point of contact for the purposes of section 52Z; and\n\n (d) if regulations made for the purposes of this paragraph specify requirements—meet those requirements.\n\n (3) The news business set out in the application may be comprised of some or all of the news sources that the applicant corporation, either by itself or together with other corporations, operates or controls.","sortOrder":537},{"sectionNumber":"52G","sectionType":"section","heading":"Registration of news business and news business corporation","content":"52G  Registration of news business and news business corporation\n\n (1) If the ACMA considers that the requirement in subsection (2) is met, the ACMA must:\n\n (a) if the news business is not already a registered news business—register the news business; and\n\n (b) if the applicant corporation is not already a registered news business corporation—register the applicant corporation; and\n\n (c) endorse the applicant corporation as the registered news business corporation for the news business.\n\n (2) The requirement in this subsection is met if:\n\n (a) the application is in accordance with subsection 52F(2); and\n\n (b) if the news business is not already a registered news business—none of the news sources set out in the application in accordance with paragraph 52F(2)(b) form part of another news business that is a registered news business; and\n\n (c) if the news business is not already a registered news business—all of the following requirements are met in relation to the news business:\n\n (i) the requirement in subsection 52N(1) (the content test);\n\n (ii) the requirement in subsection 52O(1) (the Australian audience test);\n\n (iii) the requirement in subsection 52P(1) (the professional standards test); and\n\n (d) if the applicant corporation is not already a registered news business corporation—the applicant corporation meets the requirement in subsection 52M(1) (the revenue test); and\n\n (e) the applicant corporation meets the requirement in section 52L (connection between applicant corporation and news business) in relation to the news business.\n\n (3) The ACMA must publish details of each registration and endorsement on the ACMA’s website (including details of the applicant corporation’s point of contact for the purposes of section 52Z).","sortOrder":538},{"sectionNumber":"52H","sectionType":"section","heading":"Revocation of registration or endorsement—general","content":"52H  Revocation of registration or endorsement—general\n\nRevocation of registration of news business\n\n (1) The ACMA may revoke the registration of a registered news business if the ACMA considers that one or more of the news sources that form part of the registered news business form part of another registered news business.\n\n (2) The ACMA may revoke the registration of a registered news business if the ACMA considers that any of the following requirements are not met in relation to the news business:\n\n (a) the requirement in subsection 52N(1) (the content test);\n\n (b) the requirement in subsection 52O(1) (the Australian audience test);\n\n (c) the requirement in subsection 52P(1) (the professional standards test).\n\n (3) The ACMA may revoke the registration of a registered news business if there is no registered news business corporation that is endorsed as the registered news business corporation for the news business.\n\nRevocation of registration of corporation\n\n (4) The ACMA may revoke the registration of a registered news business corporation if the ACMA considers that the corporation does not meet the requirement in subsection 52M(1) (the revenue test).\n\n (5) The ACMA may revoke the registration of a registered news business corporation if the corporation is not endorsed as the registered news business corporation for at least one registered news business.\n\nRevocation of registration of endorsement of corporation for news business\n\n (6) The ACMA may revoke the endorsement of a registered news business corporation as the registered news business corporation for a registered news business if the ACMA considers that the corporation does not meet the requirement in section 52L (connection between corporation and news business) in relation to the registered news business.\n\n (7) To avoid doubt, the ACMA may revoke the endorsement of a registered news business corporation as the registered news business corporation for a registered news business at the same time as it endorses another registered news business corporation as the registered news business corporation for the registered news business.\n\nExample: A registered news business corporation (the selling corporation) sells a registered news business to another corporation. The other corporation applies under section 52G for registration as a registered news business corporation and for endorsement as the registered news business corporation for the registered news business. The ACMA grants the application at the same time as revoking the endorsement of the selling corporation as the registered news business corporation for the registered news business.","sortOrder":539},{"sectionNumber":"52I","sectionType":"section","heading":"Revocation of registration or endorsement—false or misleading information or documents","content":"52I  Revocation of registration or endorsement—false or misleading information or documents\n\n (1) This section applies if, as a result of an application by a corporation under section 52F, the ACMA:\n\n (a) registered a news business; or\n\n (b) registered a corporation; or\n\n (c) endorsed a corporation as the registered news business corporation for a news business.\n\n (2) The ACMA may revoke the registration or endorsement if the ACMA considers that the corporation, in making the application, gave the ACMA information that was or documents that were false or misleading in a material particular.\n\n (3) To avoid doubt, for the purposes of this section, information or documents may be false or misleading in a material particular because of the omission of a matter or thing.","sortOrder":540},{"sectionNumber":"52J","sectionType":"section","heading":"Obligation on registered news business corporation to notify ACMA of loss of qualification for registration","content":"52J  Obligation on registered news business corporation to notify ACMA of loss of qualification for registration\n\n (1) The registered news business corporation for a registered news business must notify the ACMA, as soon as practicable, if any of the following requirements are no longer met in relation to the registered news business corporation or the registered news business:\n\n (a) the requirement in subsection 52N(1) (the content test);\n\n (b) the requirement in subsection 52O(1) (the Australian audience test);\n\n (c) the requirement in subsection 52P(1) (the professional standards test);\n\n (d) the requirement in subsection 52M(1) (the revenue test);\n\n (e) the requirement in section 52L (connection between corporation and news business).\n\n (2) The notification must be in writing.","sortOrder":541},{"sectionNumber":"52K","sectionType":"section","heading":"Adding or removing news source from registered news business","content":"52K  Adding or removing news source from registered news business\n\n (1) A registered news business corporation for a registered news business may apply to the ACMA for:\n\n (a) the addition of a news source to the news business; or\n\n (b) the removal of a news source from the news business.\n\n (2) The application must:\n\n (a) be in writing; and\n\n (b) set out every news source that comprises the news business; and\n\n (c) specify the news source to be added or removed; and\n\n (d) if regulations made for the purposes of this paragraph specify requirements—meet those requirements.\n\n (3) The ACMA may add the news source to the news business if the ACMA considers that:\n\n (a) the application is in accordance with subsection (2); and\n\n (b) the news source does not form part of another news business that is a registered news business; and\n\n (c) the corporation would continue to meet the requirement in 52L (connection between applicant corporation and news business) in relation to the news business if the news source were added to the news business; and\n\n (d) the news business would continue to meet all of the following requirements if the news source were added to the news business:\n\n (i) the requirement in subsection 52N(1) (the content test);\n\n (ii) the requirement in subsection 52O(1) (the Australian audience test);\n\n (iii) the requirement in subsection 52P(1) (the professional standards test).\n\n (4) The ACMA may remove the news source from the registered news business if the application is in accordance with subsection (2).\n\n (5) The ACMA must publish details of the addition or removal on the ACMA’s website.","sortOrder":542},{"sectionNumber":"52L","sectionType":"section","heading":"Requirements for connection between corporation and news business","content":"52L  Requirements for connection between corporation and news business\n\n  For the purposes of this Division, the requirement is that the corporation, either by itself or together with other corporations, operates or controls the news business.","sortOrder":543},{"sectionNumber":"52M","sectionType":"section","heading":"Revenue test","content":"52M  Revenue test\n\n (1) For the purposes of this Division, the requirement is that the annual revenue of the corporation (or of a related body corporate of the corporation), as set out in the corporation’s (or the related body corporate’s) annual accounts prepared in accordance with generally accepted accounting principles, exceeds $150,000:\n\n (a) for the most recent year for which there are such accounts; or\n\n (b) for at least 3 of the 5 most recent years for which there are such accounts.\n\n (2) Subsection (3) applies if:\n\n (a) the corporation (or the related body corporate) acquired a business; and\n\n (b) the business’ annual revenue for a year starting before the acquisition is ascertainable from annual accounts prepared in accordance with generally accepted accounting principles.\n\n (3) For the purposes of subsection (1) treat the revenue of the corporation (or of the related body corporate) for the year mentioned in paragraph (2)(b) as including the business’ annual revenue for that year.","sortOrder":544},{"sectionNumber":"52N","sectionType":"section","heading":"Content test","content":"52N  Content test\n\n (1) The requirement in this subsection is met in relation to a news business if the primary purpose of each news source covered by subsection (2) is to create content that is core news content.\n\n (2) This subsection covers a news source if it comprises, whether by itself or together with other news sources, the news business.\n\n (3) For the purposes of subsection (1), in determining whether the primary purpose of a news source is to create content that is core news content, take into account the following matters:\n\n (a) the amount of core news content created by the news source;\n\n (b) the frequency with which the news source creates core news content;\n\n (c) the degree of prominence given to core news content created by the news source, compared with the degree of prominence given to other content created by the news source;\n\n (d) any other relevant matter.","sortOrder":545},{"sectionNumber":"52O","sectionType":"section","heading":"Australian audience test","content":"52O  Australian audience test\n\n (1) The requirement in this subsection is met in relation to a news business if every news source covered by subsection (2) operates predominantly in Australia for the dominant purpose of serving Australian audiences.\n\n (2) This subsection covers a news source if it comprises, whether by itself or together with other news sources, the news business.","sortOrder":546},{"sectionNumber":"52P","sectionType":"section","heading":"Professional standards test","content":"52P  Professional standards test\n\n (1) The requirement in this subsection is met in relation to a news business if:\n\n (a) every news source covered by subsection (2):\n\n (i) is subject to the rules of the Australian Press Council Standards of Practice or the Independent Media Council Code of Conduct; or\n\n (ii) is subject to the rules of the Commercial Television Industry Code of Practice, the Commercial Radio Code of Practice or the Subscription Broadcast Television Codes of Practice; or\n\n (iii) is subject to the rules of a code of practice mentioned in paragraph 8(1)(e) of the Australian Broadcasting Corporation Act 1983 or paragraph 10(1)(j) of the Special Broadcasting Service Act 1991; or\n\n (iv) is subject to internal editorial standards that are analogous to the rules mentioned in subparagraph (i), (ii) or (iii) to the extent that they relate to the provision of quality journalism; or\n\n (v) is subject to rules specified in the regulations that replace those mentioned in subparagraph (i), (ii) or (iii); or\n\n (vi) is subject to other rules specified in the regulations; and\n\n (b) every news source covered by subsection (2) has editorial independence from the subjects of its news coverage.\n\n (2) This subsection covers a news source if it comprises, whether by itself or together with other news sources, the relevant news business.","sortOrder":547},{"sectionNumber":"52PA","sectionType":"section","heading":"Notification of Communications Secretary","content":"52PA  Notification of Communications Secretary\n\n (1) The ACMA must:\n\n (a) notify the Communications Secretary if any of the events in column 1 of the following table occur; and\n\n (b) include the information in column 2 in the notification:\n\n\n\n- Notification of Communications Secretary\n- Item Column 1Event Column 2Notification must include\n- 1 The ACMA registers a news business under paragraph 52G(1)(a) Details of the registered news business\n- 2 The ACMA registers a corporation under paragraph 52G(1)(b) Details of the registered news business corporation\n- 3 The ACMA endorses a registered news business corporation for a registered news business under paragraph 52G(1)(c) Details of the following:(a) the registered news business corporation;(b) the registered news business\n- 4 The ACMA revokes the registration of a registered news business under subsection 52H(1), (2) or (3) or 52I(2) Details of the following:(a) the news business;(b) the registered news business corporation that was endorsed for the news business;(c) the reason for the revocation\n- 5 The ACMA revokes the registration of a registered news business corporation under subsection 52H(4) or (5) or 52I(2) Details of the following:(a) the corporation;(b) each news business for which the corporation was endorsed;(c) the reason for the revocation\n- 6 The ACMA revokes the endorsement of a registered news business corporation as the registered news business corporation for a registered news business under subsection 52H(6) or 52I(2) Details of the following:(a) the registered news business corporation;(b) the registered news business;(c) the reason for the revocation\n- 7 The ACMA revokes the endorsement of a registered news business corporation as the registered news business corporation for a registered news business under subsection 52H(7) Details of the following:(a) each of the registered news business corporations mentioned in subsection 52H(7);(b) the registered news business;(c) the reason for the revocation\n- 8 A registered news business corporation gives the ACMA a notification under section 52J Details of the following:(a) the registered news business corporation;(b) if the notification under section 52J relates to a registered news business—that registered news business;(c) the requirement that was not met\n- 9 The ACMA adds a news source to a registered news business under subsection 52K(3) Details of the following:(a) the registered news business corporation that made the application under subsection 52K(1);(b) the registered news business (including details of the news source that was added)\n- 10 The ACMA removes a news source from a registered news business under subsection 52K(4) Details of the following:(a) the registered news business corporation that made the application under subsection 52K(1);(b) the registered news business (including details of the news source that was removed)\n\n\n\n\n (2) The notification must:\n\n (a) specify the day on which the event occurred; and\n\n (b) be given as soon as practicable after the event; and\n\n (c) if the notification is required to include details of a registered news business corporation—include details of the corporation’s point of contact (if any) set up for the purpose of section 52Z; and\n\n (d) if the notification is required to include details of a news business—include details of each of the news sources that comprise the news business.","sortOrder":548},{"sectionNumber":"52Q","sectionType":"section","heading":"Obligations in respect of digital platform services individually","content":"52Q  Obligations in respect of digital platform services individually\n\n (1) The provisions of Subdivisions B and C create obligations in respect of every designated digital platform service, in respect of each registered news business.\n\n (2) Those obligations are placed on the responsible digital platform corporation for the designated digital platform service, in respect of the registered news business corporation for the registered news business.\n\n (3) If there is more than one responsible digital platform corporation for the designated digital platform service:\n\n (a) those obligations are placed on each of those responsible digital platform corporations separately; and\n\n (b) treat references in Subdivision B and C to the responsible digital platform corporation for the designated digital platform service as being references to each responsible digital platform corporation for the designated digital platform service.","sortOrder":551},{"sectionNumber":"52R","sectionType":"section","heading":"Giving list and explanation of data provided to registered news businesses","content":"52R  Giving list and explanation of data provided to registered news businesses\n\n (1) If the designated digital platform service makes available covered news content of the registered news business, the responsible digital platform corporation for the designated digital platform service must ensure that:\n\n (a) information covered by subsection (2) is given to the registered news business corporation for the registered news business; and\n\n (b) the information is given in terms that are readily comprehensible; and\n\n (c) if there are other designated digital platform services of the responsible digital platform corporation—the information is given in terms that relate specifically to the designated digital platform service (and not in terms that relate to that service and those other designated digital platform services in aggregate); and\n\n (d) the information is given to the registered news business corporation no later than 28 days after the day on which the registered news business was registered under section 52G; and\n\n (e) if regulations made for the purposes of this paragraph specify other requirements for that information—those requirements are satisfied.\n\n (2) This subsection covers information that comprises lists and explanations of the types of data covered by subsection (3).\n\n (3) This subsection covers data:\n\n (a) that relates to interactions of users of the designated digital platform service with covered news content made available by the designated digital platform service; and\n\n (b) that the designated digital platform service provides to one or more registered news businesses.\n\n (4) The responsible digital platform corporation for the designated digital platform service must ensure that:\n\n (a) updated information covered by subsection (2) is given annually to the registered news business corporation for the registered news business; and\n\n (b) the updated information is given in terms mentioned in paragraphs (1)(b) and (c); and\n\n (c) the updated information is given to the registered news business corporation no later than 12 months after the later of the following days:\n\n (i) the day on which information was given to the registered news business corporation in accordance with subsection (1);\n\n (ii) the most recent day on which updated information was previously given to the registered news business corporation in accordance with this subsection; and\n\n (d) if regulations made for the purposes of this paragraph specify other requirements for the updated information—those requirements are satisfied.\n\n (5) To avoid doubt, nothing in this section requires the responsible digital platform corporation to give the data covered by subsection (3) to the registered news business corporation.","sortOrder":553},{"sectionNumber":"52S","sectionType":"section","heading":"Change to algorithm to bring about identified alteration to distribution of content with significant effect on referral traffic","content":"52S  Change to algorithm to bring about identified alteration to distribution of content with significant effect on referral traffic\n\n (1) Subsection (2) applies if:\n\n (a) a change is planned to be made to an algorithm of the designated digital platform service; and\n\n (b) the dominant purpose of the change is to bring about an identified alteration to the ways in which the designated digital platform service distributes content that is made available by the service; and\n\n (c) the change is likely to have a significant effect on the referral traffic from the designated digital platform service to the covered news content of registered news businesses (considered as a whole) that the service makes available.\n\n (2) The responsible digital platform corporation for the designated digital platform service must ensure that:\n\n (a) notice of the change is given to the registered news business corporation for each registered news business; and\n\n (b) the notice is given:\n\n (i) unless subparagraph (ii) applies—at least 14 days before the change is made; or\n\n (ii) if the change relates to a matter of urgent public interest—no later than 48 hours after the change is made; and\n\n (c) the notice describes the change, and the effect mentioned in paragraph (1)(c), in terms that are readily comprehensible; and\n\n (d) if there are other designated digital platform services of the responsible digital platform corporation—the notice is given in terms that relate specifically to the designated digital platform service (and not in terms that relate to that service and those other designated digital platform services in aggregate).\n\n (3) However, subsection (2) does not apply if the change is made within 14 days after the day on which the registered news business corporation was registered under section 52G.","sortOrder":554},{"sectionNumber":"52V","sectionType":"section","heading":"Section 52S—dominant purpose","content":"52V  Section 52S—dominant purpose\n\n  For the purposes of paragraph 52S(1)(b), treat a change as not having the dominant purpose mentioned in that paragraph if the change is any of the following:\n\n (a) a change to an algorithm made as part of routine maintenance with the dominant purpose of ensuring the ongoing effectiveness of the algorithm;\n\n (b) a change to an algorithm with the dominant purpose of ensuring that the algorithm operates more quickly or more efficiently.","sortOrder":555},{"sectionNumber":"52W","sectionType":"section","heading":"Section 52S—significant effect","content":"52W  Section 52S—significant effect\n\n (1) For the purposes of paragraph 52S(1)(c), in determining whether the change is likely to have the significant effect mentioned in the paragraph, take into account the following matters:\n\n (a) whether, as a result of the change, there is likely to be a significant variation to the amount of covered news content made available by the designated digital platform service;\n\n (b) whether, as a result of the change, there is likely to be a significant variation to the proportion of content made available by the designated digital platform service represented by covered news content;\n\n (c) any other relevant matter (subject to subsection (2)).\n\n (2) For the purposes of paragraph 52S(1)(c), in determining whether the change is likely to have the significant effect mentioned in the paragraph, disregard the following matters:\n\n (a) whether, as a result of the change, there is likely to be a significant variation to the proportion of covered news content of all registered news businesses made available by the designated digital platform service represented by the covered news content of a particular registered news business;\n\n (b) the relative turnover of registered news businesses whose covered news content is made available by the designated digital platform service;\n\n (c) the relative volume of covered news content created by registered news businesses whose covered news content is made available by the designated digital platform service;\n\n (d) the relative financial position of registered news businesses whose covered news content is made available by the designated digital platform service.","sortOrder":556},{"sectionNumber":"52X","sectionType":"section","heading":"Recognition of original covered news content","content":"52X  Recognition of original covered news content\n\n  The responsible digital platform corporation for the designated digital platform service must ensure that:\n\n (a) a proposal is developed for the designated digital platform service to recognise original covered news content when it makes available and distributes that content; and\n\n (b) registered news business corporations are consulted in developing that proposal before it is published; and\n\n (c) the proposal is published no later than 6 months after the first registration of a news business under section 52G.","sortOrder":558},{"sectionNumber":"52Y","sectionType":"section","heading":"Facilitating open communication—responsible digital platform corporation for designated digital platform service","content":"52Y  Facilitating open communication—responsible digital platform corporation for designated digital platform service\n\n  The responsible digital platform corporation for a designated digital platform service must:\n\n (a) set up a point of contact in Australia for the purpose of this section no later than 28 days after the Minister makes a determination under section 52E specifying the designated digital platform corporation; and\n\n (b) if regulations made for the purposes of this paragraph specify requirements for the point of contact—ensure that the point of contact meets those requirements; and\n\n (c) give details of that point of contact to every registered news business corporation:\n\n (i) unless subparagraph (ii) applies—no later than 10 business days after the responsible digital platform corporation sets up the point of contact; or\n\n (ii) if the registered news business corporation is registered under section 52G after the responsible digital platform corporation sets up the point of contact—no later than 10 business days after the registered news business corporation is registered under section 52G; and\n\n (d) acknowledge every communication to that point of contact from a registered news business corporation for a registered news business that relates to the registered news business’ covered news content made available by the designated digital platform service; and\n\n (e) if regulations made for the purposes of this paragraph specify requirements for the acknowledgement—ensure that the acknowledgement meets those requirements.","sortOrder":560},{"sectionNumber":"52Z","sectionType":"section","heading":"Facilitating open communication—registered news business corporation for registered news business","content":"52Z  Facilitating open communication—registered news business corporation for registered news business\n\n  A registered news business corporation for a registered news business must:\n\n (a) set up a point of contact for the purpose of this section no later than the day on which the registered news business corporation is registered under section 52G; and\n\n (b) if regulations made for the purposes of this paragraph specify requirements for the point of contact—ensure that the point of contact meets those requirements; and\n\n (c) acknowledge every communication to that point of contact from a responsible digital platform corporation for a designated digital platform service that relates to the registered news business’ covered news content made available by that designated digital platform service; and\n\n (d) if regulations made for the purposes of this paragraph specify requirements for the acknowledgement—ensure that the acknowledgement meets those requirements.","sortOrder":561},{"sectionNumber":"52ZA","sectionType":"section","heading":"Trade secrets","content":"52ZA  Trade secrets\n\n  Nothing in this Division requires the giving of information the disclosure of which would reveal a trade secret.","sortOrder":563},{"sectionNumber":"52ZB","sectionType":"section","heading":"Personal information","content":"52ZB  Personal information\n\n  Nothing in this Division requires or authorises the giving of information that is personal information (within the meaning of the Privacy Act 1988).","sortOrder":564},{"sectionNumber":"52ZC","sectionType":"section","heading":"Digital service to be supplied without differentiating in relation to registered news businesses","content":"52ZC  Digital service to be supplied without differentiating in relation to registered news businesses\n\n (1) This section applies if a responsible digital platform corporation for a designated digital platform service, either by itself or together with other corporations, operates or controls a digital service (whether or not the designated digital platform service).\n\n (2) The responsible digital platform corporation must ensure that the supply of the digital service does not, in relation to crawling, indexing, making available and distributing news businesses’ covered news content:\n\n (a) differentiate between registered news businesses, because of any of the following matters:\n\n (ia) a corporation being registered under section 52G, or being endorsed under that section as the registered news business corporation for a news business;\n\n (i) a bargaining news business representative for a registered news business making a notification under 52ZE(1), or not making such a notification;\n\n (ii) a bargaining news business representative for a registered news business giving a notice under 52ZL(2), or not giving such a notice;\n\n (iii) a registered news business being paid, or not being paid, an amount of remuneration for the making available of the registered news business’ covered news content by a designated digital platform service (whether or not the remuneration is paid in accordance with a determination of a panel under section 52ZX));\n\n (iv) a registered news business being the subject of, or not being the subject of, an agreement of a kind described in section 52ZZK or 52ZZL;\n\n (v) a registered news business being the subject of, or not being the subject of, an agreement resulting from the acceptance of an offer of a kind described in section 52ZZM; or\n\n (b) differentiate between registered news businesses and news businesses that are not registered news businesses, because of any of the following matters:\n\n (i) a matter mentioned in subparagraph (a)(ia), (i), (ii), (iii), (iv) or (v);\n\n (ii) a news business covered by subsection (3) being paid, or not being paid, an amount of remuneration for the making available of the news business’ covered news content by a designated digital platform service;\n\n (iii) a news business covered by subsection (3) being the subject of, or not being the subject of, an agreement of a kind described in section 52ZZK or 52ZZL;\n\n (iv) a news business covered by subsection (3) being the subject of, or not being the subject of, an agreement resulting from the acceptance of an offer of a kind described in section 52ZZM; or\n\n (c) differentiate between news businesses that are not registered news businesses, because of any of the following matters:\n\n (i) a corporation being eligible to be registered under section 52G, or being eligible to be endorsed under that section as the registered news business corporation for a news business;\n\n (ii) a corporation applying under section 52F for registration of itself, or of a news business, or for endorsement of itself as the registered news business corporation for a news business.\n\n (3) This subsection covers a news business if:\n\n (a) the news business is not a registered news businesses; and\n\n (b) none of the news sources that comprise the business form part of a registered news business.\n\n (4) Subsection (2) does not apply in relation to differentiation if:\n\n (a) there is an agreement between:\n\n (i) the responsible digital platform corporation, or a related body corporate of the responsible digital platform corporation; and\n\n (ii) a corporation that is registered (or is eligible to be registered) under section 52G and, either by itself or together with other corporations, operates or controls a news business; and\n\n (b) the agreement provides that a corporation mentioned in subparagraph (a)(i) will ensure that remuneration is to be paid to the news business for the making available of the news business’ covered news content by the digital service; and\n\n (c) the differentiation arises solely from the amount of that remuneration.\n\n (5) Subsection (2) does not apply in relation to differentiation if:\n\n (a) there is an agreement between:\n\n (i) the responsible digital platform corporation, or a related body corporate of the responsible digital platform corporation; and\n\n (ii) a corporation that is registered (or is eligible to be registered) under section 52G and, either by itself or together with other corporations, operates or controls a news business; and\n\n (b) the agreement provides that:\n\n (i) a corporation mentioned in subparagraph (a)(ii) will ensure the provision of a specified type of covered news content to be made available by the digital service; and\n\n (ii) a corporation mentioned in subparagraph (a)(i) will ensure that the content is ranked preferentially when the digital service distributes the covered news content; and\n\n (c) the differentiation arises solely from that preferential ranking.\n\n (6) For the purposes of this section:\n\n (a) treat the reference in the definition of news source in section 52A to “it produces” as instead being a reference to “it regularly produces”; and\n\n (b) treat the reference in that definition to “news content” as instead being a reference to “covered news content”.","sortOrder":566},{"sectionNumber":"52ZD","sectionType":"section","heading":"Bargaining news business representative for a registered news business","content":"52ZD  Bargaining news business representative for a registered news business\n\n (1) The registered news business corporation for a registered news business is the bargaining news business representative for the registered news business.\n\n (2) Subsection (3) applies if:\n\n (a) a registered news business corporation for a registered news business makes an agreement in writing with a person; and\n\n (b) the agreement provides that the person should be the bargaining news business representative for the registered news business.\n\n (3) Despite subsection (1), the person is the bargaining news business representative for the registered news business.\n\n (4) To avoid doubt, a person can be the bargaining news business representative for 2 or more registered news businesses.","sortOrder":569},{"sectionNumber":"52ZE","sectionType":"section","heading":"Notification of bargaining","content":"52ZE  Notification of bargaining\n\n (1) The bargaining news business representative for a registered news business may notify a responsible digital platform corporation for a designated digital platform service that it wishes to bargain over one or more specified issues relating to the registered news business’ covered news content made available by the designated digital platform service.\n\n (2) If the bargaining news business representative is the bargaining news business representative for 2 or more registered news businesses, a notification made for the purposes of subsection (1) may relate to some or all of those registered news businesses.\n\n (3) If the responsible digital platform corporation is the responsible digital platform corporation for 2 or more designated digital platform services:\n\n (a) a notification made for the purposes of subsection (1) may relate to some or all of those designated digital platform services; and\n\n (b) where the notification relates to more than one designated digital platform service—treat references in this Division and in Division 7 to the designated digital platform service as including references to each of the designated digital platform services to which the notification relates.\n\n (4) A notification made for the purposes of subsection (1) must set out the following matters:\n\n (a) the bargaining news business representative;\n\n (b) each registered news business to which the notification relates;\n\n (c) the designated digital platform service;\n\n (d) the responsible digital platform corporation for the designated digital platform service;\n\n (e) the specified issues mentioned in subsection (1);\n\n (f) if regulations made for the purposes of this paragraph specify other matters—those matters.\n\n (5) A notification made for the purposes of subsection (1) cannot be later varied to relate to a registered news business that was not set out in the notification.","sortOrder":570},{"sectionNumber":"52ZF","sectionType":"section","heading":"Application of Subdivision","content":"52ZF  Application of Subdivision\n\n  This Subdivision applies if a notification is made for the purposes of subsection 52ZE(1).","sortOrder":572},{"sectionNumber":"52ZG","sectionType":"section","heading":"Bargaining parties, core bargaining issues and represented registered news businesses","content":"52ZG  Bargaining parties, core bargaining issues and represented registered news businesses\n\n (1) The bargaining parties are as follows:\n\n (a) the bargaining news business representative that made the notification;\n\n (b) the responsible digital platform corporation for the designated digital platform service to which the notification relates.\n\n (2) The bargaining parties may agree, in writing, that they wish to bargain over one or more extra specified issues relating to the registered news business’ covered news content made available by any of the following:\n\n (a) the designated digital platform service;\n\n (b) specified services other than the designated digital platform service.\n\n (3) The core bargaining issues are:\n\n (a) the specified issues in the notification (as mentioned in paragraph 52ZE(4)(e)); and\n\n (a) the specified issues in an agreement (if any) between the bargaining parties as mentioned in subsection (2).\n\n (4) Each registered news business to which the notification relates is a represented registered news business.","sortOrder":573},{"sectionNumber":"52ZH","sectionType":"section","heading":"Obligation to negotiate in good faith","content":"52ZH  Obligation to negotiate in good faith\n\n  Each bargaining party must negotiate in good faith over each core bargaining issue.","sortOrder":574},{"sectionNumber":"52ZI","sectionType":"section","heading":"Obligation to notify Commission if agreement reached","content":"52ZI  Obligation to notify Commission if agreement reached\n\n   If the bargaining parties reach agreement over each core bargaining issue, they must ensure that a written notification of the agreement is given to the Commission as soon as practicable.","sortOrder":575},{"sectionNumber":"Subdivision BA","sectionType":"subdivision","heading":"Mediation","content":"Subdivision BA—Mediation","sortOrder":576},{"sectionNumber":"52ZIA","sectionType":"section","heading":"Obligation to participate in mediation","content":"52ZIA  Obligation to participate in mediation\n\n (1) This section applies if:\n\n (a) the bargaining parties have not reached agreement over each core bargaining issue within 3 months after the notification was made for the purposes of subsection 52ZE(1); or\n\n (b) the bargaining parties agree to refer the core bargaining issues to mediation under this Subdivision.\n\n (2) Each bargaining party must participate in a mediation about the core bargaining issues.\n\n (3) To avoid doubt, each bargaining party must comply with section 52ZH (good faith negotiations) in respect of the mediation.\n\n (4) The mediator is to be appointed by the ACMA.","sortOrder":577},{"sectionNumber":"52ZIB","sectionType":"section","heading":"Rules about conduct of mediation","content":"52ZIB  Rules about conduct of mediation\n\n (1) The regulations may set out rules relating to the conduct of a mediation under this Subdivision.\n\n (2) A mediation under this Subdivision is to be conducted according to those rules.\n\n (3) Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.\n\n (4) Without limiting the scope of regulations that may be made for the purposes of subsection (1), those regulations may:\n\n (a) set out rules relating to the payment of the costs of the mediator; and\n\n (b) without limiting the scope of paragraph (a), specify who is to pay those costs.","sortOrder":578},{"sectionNumber":"52ZIC","sectionType":"section","heading":"Termination of mediation","content":"52ZIC  Termination of mediation\n\n (1) A mediation under this Subdivision terminates if:\n\n (a) unless paragraph (b) applies—2 months have passed since the start of the mediation; or\n\n (b) if the bargaining parties agree to a 2‑month extension of the mediation—4 months have passed since the start of the mediation; or\n\n (c) the mediator decides to terminate the mediation in accordance with subsections (3) and (4); or\n\n (d) the bargaining parties agree to terminate the mediation.\n\n (2) To avoid doubt, the bargaining parties can only agree to one extension in accordance with paragraph (1)(b).\n\n (3) The mediator may decide to terminate the mediation if, having regard to the conduct of the bargaining parties in the mediation, the mediator considers that there are no reasonable prospects of the bargaining parties reaching agreement over each core bargaining issue.\n\n (4) The mediator may decide to terminate the mediation whether or not a bargaining party has asked the mediator to do so.","sortOrder":579},{"sectionNumber":"52ZJ","sectionType":"section","heading":"Bargaining over other issues","content":"52ZJ  Bargaining over other issues\n\n  To avoid doubt, nothing in this Division limits the bargaining parties to negotiating only over the core bargaining issues.","sortOrder":581},{"sectionNumber":"52ZK","sectionType":"section","heading":"Register of bargaining code arbitrators","content":"52ZK  Register of bargaining code arbitrators\n\n (1) The ACMA must establish and keep a register of bargaining code arbitrators.\n\n (2) Each such person listed on the register must be:\n\n (a) a person experienced in legal matters, economic matters or industry matters; or\n\n (b) a person who the ACMA considers has appropriate experience to be a member of an arbitral panel for the purposes of this Part.\n\n (3) In listing a person on the register, the ACMA must consider requirements (if any) specified in regulations made for the purposes of this subsection.","sortOrder":584},{"sectionNumber":"52ZL","sectionType":"section","heading":"Notification of arbitration","content":"52ZL  Notification of arbitration\n\n (1) This section applies if:\n\n (a) a notification has been made for the purposes of subsection 52ZE(1) to a responsible digital platform corporation for a designated digital platform service; and\n\n (b) one of the core bargaining issues (the remuneration issue) concerns the remuneration to be paid to a registered news business for the making available of the registered news business’ covered news content by the designated digital platform service.\n\n (2) The bargaining party that is the bargaining news business representative may give a notice to the Commission that arbitration about the remuneration issue should start, if:\n\n (a) both of the following conditions are satisfied:\n\n (i) mediation in respect of the core bargaining issues has terminated in accordance with section 52ZIC;\n\n (ii) the bargaining parties had not reached an agreement about terms for resolving the remuneration issue before the mediation terminated; or\n\n (b) the bargaining parties have agreed to arbitration about terms for resolving the remuneration issue no earlier than 10 business days after the notification referred to in paragraph (1)(a) was made.\n\n (3) The notice must:\n\n (a) be in writing; and\n\n (b) if regulations made for the purposes of this paragraph specify requirements—meet those requirements.\n\n (4) However, the bargaining party that is the bargaining news business representative cannot give a notice under subsection (2) at a time if, within the period of 24 months ending at that time, a notice has been given under subsection (2) in respect of:\n\n (a) the designated digital platform service mentioned in paragraph (1)(a); and\n\n (b) the registered news business mentioned in paragraph (1)(b).\n\n (5) As soon as practicable after the Commission has been given a notice under subsection (2), it must give the ACMA and each of the bargaining parties a notice stating that:\n\n (a) an arbitral panel is to be formed; and\n\n (b) the members of the panel are to be appointed in accordance with section 52ZM.","sortOrder":586},{"sectionNumber":"52ZM","sectionType":"section","heading":"Formation of arbitral panel","content":"52ZM  Formation of arbitral panel\n\n (1) This section applies if a notice has been given under subsection 52ZL(5).\n\n (2) An arbitral panel is to be formed to arbitrate about the remuneration issue.\n\n (3) The membership of the panel is to be comprised of:\n\n (a) the Chair; and\n\n (b) unless the bargaining parties agree that the sole member of the panel is the Chair—2 other members.\n\n (4) The members of the panel are to be appointed by agreement between the bargaining parties.\n\n (5) The bargaining parties may agree to appoint persons who are, or are not, listed on the register of bargaining code arbitrators.\n\n (6) If the bargaining parties agree on the appointment of one or more of the members, each of the bargaining parties must give the Commission and the ACMA a notice that:\n\n (a) specifies:\n\n (i) the name (or names) of the person (or persons) appointed; and\n\n (ii) the date of the agreement; and\n\n (b) if regulations made for the purposes of this paragraph specify other information—that information.\n\n (7) For the purposes of subsection (6), the notice must be given no later than the end of:\n\n (a) the period of 10 business days after the notice was given under subsection 52ZL(5); or\n\n (b) if regulations made for the purposes of this paragraph specify a different period—that period.\n\n (8) If the bargaining parties cannot agree on the appointment of one or more of the members within that period, the ACMA must make that appointment or those appointments.\n\n (9) The ACMA may only make an appointment of a person who is listed on the register of bargaining code arbitrators.","sortOrder":587},{"sectionNumber":"52ZN","sectionType":"section","heading":"Disclosure of conflicts of interest where ACMA appoints member of panel","content":"52ZN  Disclosure of conflicts of interest where ACMA appoints member of panel\n\n (1) Before the ACMA appoints a person to be a member of the panel, the ACMA must give the person a reasonable opportunity to declare actual or potential conflicts of interest in accordance with subsection (2).\n\n (2) Before a person accepts appointment as a member of the panel, the person must declare to the ACMA any actual or potential conflict of interest in relation to the arbitration.\n\n (3) If the ACMA has reason to consider that a person who has been appointed as a member of the panel has any actual or potential conflict of interest in relation to the arbitration (regardless whether the person declared the conflict in accordance with subsection (2)):\n\n (a) the ACMA may give a notice in writing to the person stating that the person should no longer be a member of the panel; and\n\n (b) the person ceases to be a member of the panel when ACMA gives the person the notice.\n\n (4) If the ACMA gives a notice under paragraph (3)(a), the ACMA must, as soon as practicable:\n\n (a) give a copy of the notice to the bargaining parties; and\n\n (b) make an appointment of another person as a member of the panel.\n\n (5) For the purposes of paragraph (4)(b), the ACMA may only make an appointment of a person who is listed on the register of bargaining code arbitrators.\n\n (6) For the purposes of this section, a person has a conflict of interest in relation to the arbitration if the person has any interest, pecuniary or otherwise, that could conflict with the proper performance of the person’s functions in relation to the arbitration.","sortOrder":588},{"sectionNumber":"52ZO","sectionType":"section","heading":"Costs of arbitral panel","content":"52ZO  Costs of arbitral panel\n\n (1) The bargaining parties must each pay half of the costs of each member of the panel.\n\n (2) Each member of the panel is to determine that member’s costs, worked out as daily costs.\n\n (3) If regulations made for the purposes of this subsection specify rules relating to those costs (including the amount of those costs), the bargaining parties must comply with those rules.","sortOrder":589},{"sectionNumber":"52ZP","sectionType":"section","heading":"Chair to notify start of arbitration","content":"52ZP  Chair to notify start of arbitration\n\n (1) The Chair must notify the bargaining parties that arbitration about terms for resolving the remuneration issue will start on a specified day that is no later than 5 business days (or, if the regulations specify a different period, the end of that period) after the appointment of the Chair.\n\n (2) The notice must:\n\n (a) be in writing; and\n\n (b) if regulations made for the purposes of this paragraph specify requirements—meet those requirements.","sortOrder":590},{"sectionNumber":"52ZQ","sectionType":"section","heading":"Bargaining parties’ agreement about dealing with extra services in arbitration","content":"52ZQ  Bargaining parties’ agreement about dealing with extra services in arbitration\n\n (1) The bargaining parties may agree, in writing, that specified services other than the designated digital platform service should be dealt with in the arbitration.\n\n (2) If the bargaining parties notify the Chair of the agreement before the start of the arbitration, Subdivision C applies as if:\n\n (a) the remuneration issue related to the designated digital platform service and the specified services mentioned in subsection (1); and\n\n (b) references in that Subdivision to the designated digital platform service included references to those specified services.\n\n (3) The notice must:\n\n (a) be in writing; and\n\n (b) if regulations made for the purposes of this paragraph specify requirements—meet those requirements.","sortOrder":591},{"sectionNumber":"52ZR","sectionType":"section","heading":"Application","content":"52ZR  Application\n\n  This Subdivision applies if the Chair has given notice under section 52ZP.","sortOrder":593},{"sectionNumber":"52ZS","sectionType":"section","heading":"Obligation to participate in arbitration in good faith","content":"52ZS  Obligation to participate in arbitration in good faith\n\n  Each bargaining party must participate in the arbitration in good faith.","sortOrder":594},{"sectionNumber":"52ZT","sectionType":"section","heading":"Information request by bargaining party—general","content":"52ZT  Information request by bargaining party—general\n\n (1) Each bargaining party may give the other bargaining party a request that the other bargaining party give it specified information if:\n\n (a) the information is covered by subsection (2); and\n\n (b) it is reasonable for the bargaining party to make the request for the purposes of this Division; and\n\n (c) the request is made no later than 5 business days after the start of arbitration; and\n\n (d) the bargaining party has not made a previous request under this subsection in respect of the arbitration.\n\n (2) This subsection covers information that is held by any of the following:\n\n (a) if the other bargaining party is the responsible digital platform corporation:\n\n (i) the responsible digital platform corporation;\n\n (ii) a related body corporate of the responsible digital platform corporation; or\n\n (b) if the other bargaining party is the bargaining news business representative:\n\n (i) the registered news business corporation for the represented registered news business;\n\n (ii) a related body corporate of the registered news business corporation for the represented registered news business.\n\n (3) A request under subsection (1) must:\n\n (a) be made in writing; and\n\n (b) set out reasons why it is reasonable for the bargaining party to make the request for the purposes of this Division; and\n\n (c) if regulations made for the purposes of this paragraph specify other requirements—comply with those requirements.\n\n (4) The bargaining party must give a copy of the request to the panel on the same day that it gives the request to the other bargaining party.\n\n (5) If a bargaining party makes a request under subsection (1), the other bargaining party must ensure that:\n\n (a) the request is complied with no later than 10 business days after:\n\n (i) unless subparagraph (ii) applies—the request was given to the other bargaining party; or\n\n (ii) if an application is made under subsection 52ZU(1)—the panel makes a ruling under subsection 52ZU(3); and\n\n (b) the information requested is given in terms that are readily comprehensible; and\n\n (c) if the other bargaining party is the responsible digital platform corporation and there are other designated digital platform services of the responsible digital platform corporation—the information is given in terms that relate specifically to the designated digital platform service (and not in terms that relate to that service and those other designated digital platform services in aggregate); and\n\n (d) if regulations made for the purposes of this paragraph specify other requirements for that information—those requirements are satisfied.","sortOrder":595},{"sectionNumber":"52ZU","sectionType":"section","heading":"Information request by bargaining party—challenges by other bargaining party","content":"52ZU  Information request by bargaining party—challenges by other bargaining party\n\n (1) The other bargaining party may apply to the panel, in writing, for a ruling that it is not reasonable for the bargaining party to make the request for the purposes of this Division, in relation to all or a specified part of the information requested.\n\n (2) An application under subsection (1) can be made no later than 10 business days after the bargaining party gives the request to the other bargaining party.\n\n (3) If an application is made under subsection (1), the panel must make a ruling in relation to it no later than 10 business days after it is made.\n\n (4) The ruling may relate to all or a specified part of the information requested.\n\n (5) In making the ruling, the panel must consider the matters mentioned in subsection 52ZZ(1).\n\n (6) Nothing in section 52ZT requires the giving of information to the extent (if any) that the panel makes a ruling under subsection (3) that it was not reasonable for the bargaining party to make the request for the purposes of this Division, in relation to all or a specified part of the information requested.","sortOrder":596},{"sectionNumber":"52ZV","sectionType":"section","heading":"Information request by bargaining party—miscellaneous rules","content":"52ZV  Information request by bargaining party—miscellaneous rules\n\n (1) Nothing in section 52ZT requires the giving of information the disclosure of which would reveal a trade secret.\n\n (2) Nothing in section 52ZT requires or authorises the giving of information that is personal information (within the meaning of the Privacy Act 1988).\n\n (3) If a bargaining party gives information to the other bargaining party in order to comply with subsection 52ZT(5), the other bargaining party must ensure that the information is not used for a purpose other than a purpose in relation to arbitration under this Division.\n\n (4) Subsection (5) applies if:\n\n (a) there is a reference to a number of business days in a provision in section 52ZT or 52ZU; and\n\n (b) regulations made for the purposes of this paragraph specify a different number of business days in respect of that provision.\n\n (5) Treat that reference in the provision as being to the number of business days specified in the regulations as mentioned in paragraph (4)(b).","sortOrder":597},{"sectionNumber":"52ZW","sectionType":"section","heading":"Agreed early termination of arbitration","content":"52ZW  Agreed early termination of arbitration\n\n (1) This section applies if:\n\n (a) the bargaining parties agree that the arbitration should terminate; and\n\n (b) the panel did not make a determination in accordance with subsection 52ZX(1) before the agreement was made; and\n\n (c) no information was given by a bargaining party in order to comply with a request made under subsection 52ZT(1) before the agreement was made.\n\n (2) The parties must notify the Chair of the agreement as soon as practicable after the day on which the agreement is made.\n\n (3) The arbitration terminates in accordance with that agreement, but no earlier than the day on which parties notify the Chair of the agreement in accordance with subsection (2).\n\n (4) However, if the parties fail to comply with subsection (2):\n\n (a) subsection (3) does not apply; and\n\n (b) the agreement does not affect the validity of the arbitration or any aspect of the arbitration.","sortOrder":598},{"sectionNumber":"52ZX","sectionType":"section","heading":"Final offer arbitration","content":"52ZX  Final offer arbitration\n\n (1) The panel is to make a determination under this subsection about the terms for resolving the remuneration issue that:\n\n (a) is in accordance with subsections (7), (8) and (9) (final offer arbitration); and\n\n (b) sets out a lump sum amount (the remuneration amount) for remunerating the registered news business for the making available of the registered news business’ covered news content by the designated digital platform service for 2 years; and\n\n (c) is consistent with rights under contracts that are in force between:\n\n (i) the responsible digital platform corporation or a related body corporate of the responsible digital platform corporation; and\n\n (ii) the registered news business corporation for the represented registered news business or a related body corporate of that registered news business corporation.\n\n (2) Each of the bargaining parties must:\n\n (a) submit to the panel a final offer for what the remuneration amount should be (expressed as a lump sum); and\n\n (b) give a copy of the final offer to the Commission on the same day that it submits the final offer to the panel.\n\n (3) If a bargaining party gives a copy of the final offer to the Commission, the Commission must give a copy of the final offer to the other bargaining party as soon as practicable.\n\n (4) A final offer:\n\n (a) cannot be submitted later than the latest of the following:\n\n (i) the end of the period of 10 business days after the day on which the arbitration starts;\n\n (ii) if a bargaining party makes a request under subsection 52ZT(1) (information requests)—the end of the period of 10 business days after the latest day on which the other bargaining party may comply with the request in accordance with subsection 52ZT(5);\n\n (iii) if a bargaining party makes an application under subsection 52ZU(1) (challenges to information requests)—the end of the period of 10 business days after the day on which the panel makes a ruling in relation to the application under subsection 52ZU(3);\n\n (iv) if regulations made for the purposes of this subparagraph specify a different period—the end of that period;\n\n (v) if the panel considers that exceptional circumstances justify a different period—the end of that period; and\n\n (b) cannot be more than 30 pages in length.\n\n (5) An offer that does not comply with subsection (4) is not a final offer for the purposes of this Division.\n\n (6) A final offer, once submitted, cannot be withdrawn or amended.\n\n (7) The panel must accept one of the final offers unless the panel considers that each final offer is not in the public interest because it is highly likely to result in serious detriment to:\n\n (a) the provision of covered news content in Australia; or\n\n (b) Australian consumers.\n\n (8) If the panel does not accept one of those final offers, it must ascertain the remuneration amount by adjusting the most reasonable of those offers in a manner that results in that offer being in the public interest.\n\n (9) If one bargaining party fails to submit to the panel a final offer for what the remuneration amount should be, in accordance with subsection (4), the panel must:\n\n (a) accept the final offer submitted by the other bargaining party, in accordance with subsection (7); or\n\n (b) ascertain the remuneration amount by adjusting the final offer submitted by the other party, in accordance with subsection (8).","sortOrder":599},{"sectionNumber":"52ZXA","sectionType":"section","heading":"Final offer to be accompanied by information about contracts","content":"52ZXA  Final offer to be accompanied by information about contracts\n\n (1) If a bargaining party submits to the panel a final offer in accordance with subsection 52ZX(4), it must, on the same day that it submits the final offer to the panel, give the panel information that:\n\n (a) is relevant to the arbitration; and\n\n (b) relates to all contracts that are in force between:\n\n (i) the responsible digital platform corporation or a related body corporate of the responsible digital platform corporation; and\n\n (ii) the registered news business corporation for the represented registered news business or a related body corporate of that registered news business corporation.\n\n (2) Nothing in subsection (1) requires the giving of information if doing so would disclose information that is protected against disclosure by a duty of confidence.\n\n (3) To avoid doubt, subsection (2) does not prevent a bargaining party from giving information under subsection (1) if the other bargaining party agrees to the bargaining party doing so.","sortOrder":600},{"sectionNumber":"52ZY","sectionType":"section","heading":"Final offer arbitration—termination of arbitration if no final offers","content":"52ZY  Final offer arbitration—termination of arbitration if no final offers\n\n  If both bargaining parties fail to submit to the panel a final offer for what the remuneration amount should be, the arbitration terminates on the day after the last day on which such a final offer could have been submitted in accordance with subsection 52ZX(4).","sortOrder":601},{"sectionNumber":"52ZZ","sectionType":"section","heading":"Matters to consider in arbitration, etc.","content":"52ZZ  Matters to consider in arbitration, etc.\n\n (1) In making a determination under subsection 52ZX(1) (including in complying with subsections 52ZX(7), (8) and (9)), the panel must consider the following matters:\n\n (a) the benefit (whether monetary or otherwise) of the registered news business’ covered news content to the designated digital platform service;\n\n (b) the benefit (whether monetary or otherwise) to the registered news business of the designated digital platform service making available the registered news business’ covered news content;\n\n (c) the reasonable cost to the registered news business of producing covered news content;\n\n (ca) the reasonable cost to the designated digital platform service of making available covered news content in Australia;\n\n (d) whether a particular remuneration amount would place an undue burden on the commercial interests of the designated digital platform service.\n\n (2) In considering the matters set out in subsection (1), the panel must consider the bargaining power imbalance between Australian news businesses and the designated digital platform corporation.","sortOrder":602},{"sectionNumber":"52ZZA","sectionType":"section","heading":"Other requirements for arbitration determination","content":"52ZZA  Other requirements for arbitration determination\n\n (1) The panel must make the determination no later than 35 business days (or, if the regulations specify a different period, the end of that period) after the latest of the following days:\n\n (a) the last day on which a final offer may be submitted in accordance with subsection 52ZX(4);\n\n (b) the last day on which a submission may be given by a bargaining party in accordance with subsection 52ZZB(1);\n\n (c) the last day on which a submission may be given by the Commission in accordance with subsection 52ZZC(1);\n\n (d) the last day on which a submission may be given by a bargaining party in accordance with subsection 52ZZC(3).\n\n (2) If the Chair is not the sole member of the panel:\n\n (a) the panel must endeavour to make the determination by unanimous decision of the members of the panel; and\n\n (b) where a unanimous decision is not possible, the panel must make the determination by majority decision of the members of the panel.\n\n (3) The panel must, as soon as practicable, give written reasons for making the determination to the bargaining parties and the Commission.\n\n (4) Those written reasons must contain the information (if any) specified in regulations made for the purposes of this subsection.","sortOrder":603},{"sectionNumber":"52ZZB","sectionType":"section","heading":"Submissions of bargaining parties","content":"52ZZB  Submissions of bargaining parties\n\n (1) Each bargaining party may give to the panel a submission about the final offer of the other bargaining party, no later than 5 business days (or, if the regulations specify a different period, the end of that period) after the panel has received both final offers (in accordance with paragraph 52ZX(2)(a)).\n\n (2) The submission can only deal with issues that are dealt with in any material accompanying either of the final offers.\n\n (3) The submission cannot be more than 20 pages in length.\n\n (4) If a bargaining party gives the panel a submission under subsection (1):\n\n (a) the bargaining party must give a copy of the submission to the Commission on the same day that it gives the submission to the panel; and\n\n (b) if the Commission is given a copy of the submission under paragraph (a), the Commission must give a copy of the submission to the other bargaining party as soon as practicable.","sortOrder":604},{"sectionNumber":"52ZZC","sectionType":"section","heading":"Role of Commission","content":"52ZZC  Role of Commission\n\n (1) The Commission may give to the panel a submission in relation to the arbitration, no later than 10 business days (or, if the regulations specify a different period, the end of that period) after the Commission has received both final offers (in accordance with paragraph 52ZX(2)(b)).\n\n (1A) The information contained in the submission must be:\n\n (a) impartial factual information that relates to the relevant market; and\n\n (b) impartial information that relates to relevant economic principles.\n\n (2) If the Commission gives the panel a submission under subsection (1), it must give the bargaining parties a copy of the submission on the same day that it gives the submission to the panel.\n\n (3) Each bargaining party may give to the panel a submission about the Commission’s submission, no later than 5 business days after the bargaining party has received the Commission’s submission.\n\n (4) The bargaining party’s submission cannot be more than 20 pages in length.\n\n (5) If a bargaining party gives the panel a submission under subsection (3):\n\n (a) the bargaining party must give a copy of the submission to the Commission on the same day that it gives the submission to the panel; and\n\n (b) if the Commission is given a copy of the submission under paragraph (a), the Commission must give a copy of the submission to the other bargaining party as soon as practicable.","sortOrder":605},{"sectionNumber":"52ZZD","sectionType":"section","heading":"Guidelines about conduct of arbitration","content":"52ZZD  Guidelines about conduct of arbitration\n\n (1) The Commission may, in writing, make guidelines relating to the conduct of an arbitration under this Division.\n\n (2) However, the Commission cannot include in the guidelines a provision that relates to any of the following matters unless the Minister has approved the provision, in writing:\n\n (a) how a panel makes a ruling under subsection 52ZU(3) (information requests);\n\n (b) the content of final offers made by bargaining parties in accordance with subsection 52ZX(2);\n\n (c) the content of submissions given by bargaining parties in accordance with subsection 52ZZB(1);\n\n (d) how a panel makes a determination in accordance with subsection 52ZX(1).\n\n (3) A panel may take the guidelines into account in conducting an arbitration under this Division.\n\n (4) However:\n\n (a) the panel need not take the guidelines into account in conducting the arbitration; and\n\n (b) a failure by the panel to take the guidelines into account in conducting the arbitration does not affect the validity of the arbitration or any aspect of the arbitration.\n\n (5) The Commission must publish the guidelines on its website as soon as practicable.\n\n (6) General information made available by the Commission in accordance with subsection 28(1) must not relate to the conduct of an arbitration under this Division.\n\n (7) Guidelines made under subsection (1) are not a legislative instrument.","sortOrder":606},{"sectionNumber":"52ZZE","sectionType":"section","heading":"Bargaining parties must comply with the determination","content":"52ZZE  Bargaining parties must comply with the determination\n\n  The bargaining parties must comply with a determination made by the panel in accordance with subsection 52ZX(1).","sortOrder":608},{"sectionNumber":"52ZZF","sectionType":"section","heading":"Record generating and keeping","content":"52ZZF  Record generating and keeping\n\n (1) A responsible digital platform corporation for a designated digital platform service must comply with requirements specified in regulations made for the purposes of subsection (2).\n\n (2) The regulations may specify requirements for the generation and keeping of records relating to the operation of this Part.\n\n (3) Division 5 of Part IVB applies in relation to subsection (1) in the same way in which it applies in relation to an applicable industry code (within the meaning of that Part).\n\n (4) This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).","sortOrder":610},{"sectionNumber":"52ZZG","sectionType":"section","heading":"Infringement notices—Division 4 of this Part","content":"52ZZG   Infringement notices—Division 4 of this Part\n\n (1) Subject to subsection (2), Division 2A of Part IVB applies in relation to an alleged contravention of a provision of Division 4 of this Part in the same way in which it applies in relation to an alleged contravention of a civil penalty provision of an industry code (within the meaning of that Part).\n\n (2) For the purposes of applying Division 2A of Part IVB in accordance with subsection (1), treat the reference in subparagraph 51ACF(1)(b)(i) to 60 penalty units as being a reference to 600 penalty units.","sortOrder":611},{"sectionNumber":"52ZZH","sectionType":"section","heading":"Joint and several liability for pecuniary liabilities","content":"52ZZH   Joint and several liability for pecuniary liabilities\n\n (1) Subsection (2) applies if:\n\n (a) a responsible digital platform corporation for a designated digital platform service is liable to a pecuniary penalty in accordance with section 76 because it contravened a provision of this Part; and\n\n (b) the responsible digital platform corporation is not the service’s designated digital platform corporation.\n\n (2) The responsible digital platform corporation and the service’s designated digital platform corporation are jointly and severally liable for the pecuniary penalty.","sortOrder":612},{"sectionNumber":"Division 9","sectionType":"division","heading":"Agreements between digital platform corporations and registered news business corporations","content":"Division 9—Agreements between digital platform corporations and registered news business corporations","sortOrder":613},{"sectionNumber":"52ZZI","sectionType":"section","heading":"Simplified outline of this Division","content":"52ZZI  Simplified outline of this Division\n\n Responsible digital platform corporations may make standard offers relating to remuneration for registered news business corporations. If an offer is accepted by a registered news business corporation, rules under this Part relating to bargaining and arbitration do not apply to the parties to the contract.\n\n Responsible digital platform corporations (and related bodies corporate) may also make agreements outside this Part to disapply rules under this Part relating to bargaining, arbitration and other matters.\n\n Responsible digital platform corporations (and related bodies corporate) may also make offers relating to such matters under this Part.","sortOrder":614},{"sectionNumber":"52ZZJ","sectionType":"section","heading":"Standard offers—content","content":"52ZZJ  Standard offers—content\n\n (1) An offer by a responsible digital platform corporation for a designated digital platform corporation complies with this subsection if:\n\n (a) the responsible digital platform corporation makes the offer to each registered news business corporation covered by subsection (2) (a covered RNBC); and\n\n (b) the offer provides for the matters in subsection (3) (acceptance procedure); and\n\n (c) the offer provides that a binding agreement resulting from it will have:\n\n (i) the features mentioned in subsection (4) (formal matters); and\n\n (ii) the features mentioned in subsection (5) (remuneration).\n\n (2) A registered news business corporation is covered by this subsection unless:\n\n (a) regulations made for the purposes of this paragraph specify a kind or kinds of registered news business corporation; and\n\n (b) the registered news business corporation is not of that kind or one of those kinds.\n\n (3) For the purposes of paragraph (1)(b), the matters are as follows:\n\n (a) a covered RNBC may accept the offer before the end of the offer period;\n\n (b) subject to paragraphs (c) and (d), such an acceptance becomes final, and a resulting agreement between the responsible digital platform corporation and the covered RNBC becomes binding, at the end of the offer period;\n\n (c) the covered RNBC may revoke such an acceptance before the end of the offer period;\n\n (d) the responsible digital platform corporation may revoke the offer before the end of the offer period.\n\n (4) For the purposes of subparagraph (1)(c)(i), the features of the agreement are as follows:\n\n (a) the agreement provides that it covers specified corporations (the covered corporations); and\n\n (b) each covered corporation is:\n\n (i) the responsible digital platform corporation; or\n\n (ii) a related body corporate of the responsible digital platform corporation; or\n\n (iii) the registered news business corporation; or\n\n (iv) a related body corporate of the registered news business corporation; and\n\n (c) the agreement specifies a 2 year period (the covered period) during which it is in force; and\n\n (d) the agreement specifies one or more designated digital platform services or other services (the covered services) of the designated digital platform corporation; and\n\n (e) the agreement expressly provides that some or all provisions mentioned in subsection 52ZZK(4) (the specified provisions) are not to apply to the extent that they would impose an obligation on one covered corporation in respect of another covered corporation in relation to the covered services.\n\n (5) For the purposes of subparagraph (1)(c)(ii), the features of the agreement are as follows:\n\n (a) the agreement specifies that the responsible digital platform corporation will ensure the payment of remuneration to the covered RNBC (or a related body corporate of the covered RNBC) for the making available of the registered news business’ covered news content by one or more of the covered services, in respect of the covered period; and\n\n (b) if regulations made for the purposes of this paragraph specify other features—those features.\n\n (6) Regulations made for the purposes of paragraph (5)(b) may specify features relating to the amount of the remuneration mentioned in paragraph (5)(a) (including features that require the determination of that remuneration to be based on specified factors).\n\n (7) Subsection (6) does not limit the scope of regulations that may be made for the purposes of paragraph (5)(b).\n\n (8) The offer period is the period that:\n\n (a) starts when the responsible digital platform corporation gives a copy of the offer to a covered RNBC; and\n\n (b) ends:\n\n (i) unless subparagraph (ii) applies—60 days after the period starts; or\n\n (ii) if regulations made for the purposes of this subparagraph specify a different day—on that day.\n\n (9) To avoid doubt, this section does not prevent the making of other kinds of offers or agreements.","sortOrder":615},{"sectionNumber":"52ZZK","sectionType":"section","heading":"Standard offers—consequences of agreement","content":"52ZZK  Standard offers—consequences of agreement\n\n (1) Subsection (2) applies if:\n\n (a) a responsible digital platform corporation for a designated digital platform corporation makes an offer to make a binding agreement; and\n\n (b) the offer complies with subsection 52ZZJ(1); and\n\n (c) the responsible digital platform corporation has given a copy of the offer to all registered news business corporations covered by subsection 52ZZJ(2); and\n\n (d) a registered news business corporation for a registered news business has accepted the offer, and the resulting agreement has become binding on the responsible digital platform corporation and the registered news business corporation; and\n\n (e) the parties to the agreement notify the Commission, in writing, that the agreement has become binding.\n\n (2) The specified provisions do not apply to the extent that (disregarding this subsection) they impose an obligation on one covered corporation in respect of another covered corporation in relation to the covered services that are designated digital platform services.\n\n (3) However, subsection (2) does not apply if, before the agreement became binding, a notification has been made for the purposes of subsection 52ZE(1) to the responsible digital platform corporation, in relation to the registered news business.\n\n (4) The provisions are as follows:\n\n (a) Division 6 (bargaining);\n\n (b) Division 7 (arbitration about remuneration issue).","sortOrder":616},{"sectionNumber":"52ZZL","sectionType":"section","heading":"Contracting out of general requirements, bargaining and arbitration","content":"52ZZL  Contracting out of general requirements, bargaining and arbitration\n\n (1) Subsection (2) applies if:\n\n (a) a responsible digital platform corporation for a designated digital platform corporation (or a related body corporate of such a responsible digital platform corporation) makes a binding agreement with another corporation (the news business corporation); and\n\n (b) the agreement provides that it covers specified corporations (the covered corporations); and\n\n (c) each covered corporation is:\n\n (i) the responsible digital platform corporation; or\n\n (ii) a related body corporate of the responsible digital platform corporation; or\n\n (iii) the news business corporation; or\n\n (iv) a related body corporate of the news business corporation; and\n\n (d) the agreement specifies the period (the covered period) during which it is in force; and\n\n (e) the agreement specifies one or more designated digital platform services or other services (the covered services) of the designated digital platform corporation; and\n\n (f) the agreement expressly provides that some or all provisions mentioned in subsection (4) (the specified provisions) are not to apply to the extent that they would impose an obligation on one covered corporation in respect of another covered corporation in relation to the covered services; and\n\n (g) the parties to the agreement notify the Commission, in writing, that the agreement has been made.\n\n (2) The specified provisions do not apply to the extent that (disregarding this subsection) they impose an obligation on one covered corporation in respect of another covered corporation in relation to the covered services that are designated digital platform services.\n\n (3) However, subsection (2) does not apply if:\n\n (a) an arbitration under Division 7 started in relation to any of the covered services in respect of the payment of remuneration, for a period starting or ending in the covered period, to the news business corporation (or a related body corporate of the news business corporation); and\n\n (b) before the agreement was made:\n\n (i) the panel made a determination in accordance with subsection 52ZX(1); or\n\n (ii) a bargaining party gave information in order to comply with a request made under subsection 52ZT(1).\n\n (4) The provisions are as follows:\n\n (a) Division 4 (general requirements);\n\n (b) Division 6 (bargaining);\n\n (c) Division 7 (arbitration about remuneration issue).","sortOrder":617},{"sectionNumber":"52ZZM","sectionType":"section","heading":"Offers relating to general requirements, bargaining and arbitration not prohibited","content":"52ZZM  Offers relating to general requirements, bargaining and arbitration not prohibited\n\n (1) To avoid doubt, nothing in this Part prevents a responsible digital platform corporation for a designated digital platform corporation (or a related body corporate of such a responsible digital platform corporation) from making an offer, to corporations covered by subsection (2) in general, to make an agreement of a kind described in paragraphs 52ZZL(1)(a) to (f).\n\n (2) This subsection covers a corporation that, either by itself or together with other corporations, operates or controls a news business.\n\n (3) To avoid doubt:\n\n (a) the offer may provide that it is not subject to further negotiations; and\n\n (b) this section does not prevent the making of other kinds of offer.","sortOrder":618},{"sectionNumber":"Division 10","sectionType":"division","heading":"Powers and functions of the ACMA in relation to this Part","content":"Division 10—Powers and functions of the ACMA in relation to this Part","sortOrder":619},{"sectionNumber":"52ZZN","sectionType":"section","heading":"Powers of the ACMA to obtain information etc.","content":"52ZZN  Powers of the ACMA to obtain information etc.\n\nApplication of Broadcasting Services Act 1992\n\n (1) Subject to this Division, Parts 13 and 14B of the Broadcasting Services Act 1992, and any other provisions of that Act to the extent that they relate to either of those Parts, apply as if:\n\n (a) a reference in Part 13 of the Broadcasting Services Act 1992 to the ACMA’s broadcasting, content and datacasting functions included a reference to the powers and functions of the ACMA under Part IVBA of this Act; and\n\n (b) the references in paragraphs 168(2)(b) and 187(2)(b) of that Act to the “due administration of this Act” included a reference to the due administration of Part IVBA of this Act.\n\nNote: Part 13 of the Broadcasting Services Act 1992 deals with information‑gathering by the ACMA, and Part 14B of that Act deals with civil penalties.\n\nOffences and civil penalty provisions\n\n (2) For the purposes of applying the Broadcasting Services Act 1992 in relation to this Part in accordance with subsection (1):\n\n (a) omit the penalty in section 201 of that Act and instead treat that section as if it were a civil penalty provision for the purposes of that Act; and\n\n (b) disregard subsections 202(1) and (2) of that Act; and\n\n (c) disregard subsections 205F(4) and (5) of that Act; and\n\n (d) treat the maximum penalty for a contravention of a civil penalty provision of Part 13 or 14B of that Act (including a contravention of a provision that is treated as a civil penalty provision because of this section) as being 600 penalty units.","sortOrder":620},{"sectionNumber":"52ZZO","sectionType":"section","heading":"No Ministerial directions to the ACMA in relation to this Part","content":"52ZZO  No Ministerial directions to the ACMA in relation to this Part\n\n (1) Section 14 of the Australian Communications and Media Authority Act 2005 does not apply in relation to the performance of the ACMA’s functions, or the exercise of the ACMA’s powers, under:\n\n (a) this Part; or\n\n (b) Part 13 of the Broadcasting Services Act 1992, as it applies in relation to this Part because 52ZZN of this Act.\n\n (2) Subsection (3) applies for the purposes of applying Part 13 (the applied Part) of the Broadcasting Services Act 1992 in relation to this Part in accordance with section 52ZZN of this Act.\n\n (3) Disregard any provision in the applied Part to extent that the provision allows the Minister (within the meaning of the provision) to give a direction to the ACMA that relates to the performance of the ACMA’s functions, or the exercise of the ACMA’s powers, under this Part.","sortOrder":621},{"sectionNumber":"Division 11","sectionType":"division","heading":"Miscellaneous","content":"Division 11—Miscellaneous","sortOrder":622},{"sectionNumber":"52ZZP","sectionType":"section","heading":"Exceptions to Part IV","content":"52ZZP  Exceptions to Part IV\n\n  For the purposes of subsection 51(1), an arrangement between 2 or more registered news business corporations is specified and specifically authorised if it is an arrangement for the purposes of negotiating, under or in relation to this Part, with a responsible digital platform corporation in relation to covered news content.","sortOrder":623},{"sectionNumber":"52ZZQ","sectionType":"section","heading":"Concurrent operation of State and Territory laws","content":"52ZZQ  Concurrent operation of State and Territory laws\n\n  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.","sortOrder":624},{"sectionNumber":"52ZZR","sectionType":"section","heading":"Giving information and producing documents by electronic means","content":"52ZZR  Giving information and producing documents by electronic means\n\n  Paragraphs 9(1)(d) and (2)(d) and 11(1)(e) and (2)(e) of the Electronic Transactions Act 1999 do not apply to a requirement, or permission, under this Part to give information in writing or produce a document.\n\nNote: Those paragraphs of the Electronic Transactions Act 1999 deal with the consent of the recipient of information or documents to the information being given, or the documents being produced, by way of electronic communication.","sortOrder":625},{"sectionNumber":"52ZZS","sectionType":"section","heading":"Review of operation of this Part","content":"52ZZS  Review of operation of this Part\n\n (1) Within the period of 12 months after the commencement of this Part, the Minister must cause a review of the operation of the Part to be commenced.\n\n (2) The review must be completed no later than 12 months after the commencement of the review.\n\n (3) A written report of the review must be given to the Minister and the Communications Minister (within the meaning of the National Broadband Network Companies Act 2011).\n\n (4) The Minister must ensure that copies of the report are available for public inspection as soon as practicable after the period of 28 days beginning on the day the report is given to the Minister.","sortOrder":626},{"sectionNumber":"Part IVBB","sectionType":"part","heading":"Gas market","content":"Part IVBB—Gas market","sortOrder":627},{"sectionNumber":"53","sectionType":"section","heading":"Object of this Part","content":"53  Object of this Part\n\n  The object of this Part is to enhance the welfare of Australians through:\n\n (a) the regulation of the Australian gas market; and\n\n (b) in particular, limitation of increases in gas prices.","sortOrder":630},{"sectionNumber":"53A","sectionType":"section","heading":"Simplified outline","content":"53A  Simplified outline\n\nThe regulations may prescribe rules (known as gas market codes) regulating conduct relating to supplying or acquiring gas.\n\nWithout limiting what may be included in a gas market code, a gas market code may include rules that:\n\n (a) regulate dealings between persons who supply or acquire gas, including negotiations and agreements between such persons; or\n\n (b) deal with resolving disputes between persons who supply or acquire gas.\n\nThe Minister may make orders (known as gas market emergency price orders) regulating the terms (including prices) on which gas is supplied or acquired.\n\nNote: The terms on which gas is supplied or acquired may also be regulated by a gas market code.\n\nA person must not enter into a scheme for the purpose of avoiding the application of a gas market code or a gas market emergency price order.\n\nConsequences of contravening the gas market provisions include civil penalties, infringement notices, warning notices and orders under Part VI.","sortOrder":631},{"sectionNumber":"53B","sectionType":"section","heading":"Definitions","content":"53B  Definitions\n\n  In this Part:\n\nagreement includes a contract.\n\nNote: For the meaning of contract, see subsection 4(1).\n\nAustralia: see subsection 53E(2).\n\nconstitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.\n\nconstitutional trade or commerce means any of the following:\n\n (a) trade or commerce among the States;\n\n (b) trade or commerce between Australia and places outside Australia;\n\n (c) trade or commerce within a Territory, between a State and a Territory, or between 2 Territories.\n\nexpression of interest means a non‑binding expression of interest or invitation issued for the purpose of ascertaining whether a person is interested in acquiring or supplying a gas commodity.\n\ngas includes gas in a liquid state.\n\ngas commodity means:\n\n (a) gas; or\n\n (b) goods or services relating to supplying or acquiring gas.\n\ngas exchange means an exchange or other trading system, platform or facility (including an electronic exchange, system, platform or facility) on which:\n\n (a) expressions of interest relating to supplying or acquiring gas commodities are issued, received or responded to; or\n\n (b) offers relating to supplying or acquiring gas commodities are made, received or responded to; or\n\n (c) agreements relating to supplying or acquiring gas commodities are entered into.\n\ngas market conduct: see section 53C.\n\ngas market matter:\n\n (a) subject to paragraph (b), means any of the following:\n\n (i) gas market conduct;\n\n (ii) the operation, application or administration of a gas market instrument;\n\n (iii) compliance (including non‑compliance) with a gas market instrument;\n\n (iv) a failure to supply a gas commodity;\n\n (v) a matter prescribed by the regulations for the purposes of this subparagraph; and\n\n (b) does not include a matter prescribed by the regulations for the purposes of this paragraph.\n\ngas market participant: see section 53D.\n\noffer includes:\n\n (a) a counter‑offer; and\n\n (b) a bid on a gas exchange.\n\nprice includes price structure.\n\nprice dispute means a dispute between gas market participants arising because the gas market participants do not agree to the terms (including terms relating to price) on which they are to supply or acquire gas commodities to or from each other.\n\nprohibited conduct: a person engages in prohibited conduct if the person engages in conduct that contravenes any of the following provisions:\n\n (a) section 53ZV;\n\n (b) subsection 53ZW(1);\n\n (c) a civil penalty provision of a gas market instrument.\n\nregulating includes prohibiting.\n\nrelated contravention: see subsection 53ZO(9).\n\nscheme means:\n\n (a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or\n\n (b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise; or\n\n (c) any combination of 2 or more things that are schemes because of paragraph (a) or (b).","sortOrder":633},{"sectionNumber":"53C","sectionType":"section","heading":"Gas market conduct","content":"53C  Gas market conduct\n\n (1) For the purposes of this Part, gas market conduct is:\n\n (a) conduct relating to supplying or acquiring a gas commodity, or to the potential supply or acquisition of a gas commodity; or\n\n (b) without limiting paragraph (a)—any of the following:\n\n (i) supplying or acquiring a gas commodity;\n\n (ii) issuing or receiving an expression of interest in relation to supplying or acquiring a gas commodity;\n\n (iii) responding to an expression of interest in relation to supplying or acquiring a gas commodity;\n\n (iv) offering to supply or acquire a gas commodity, or receiving such an offer;\n\n (v) responding to an offer to supply or acquire a gas commodity;\n\n (vi) agreeing to supply or acquire a gas commodity;\n\n (vii) refusing to do anything mentioned in subparagraphs (i) to (vi);\n\n (viii) operating a gas exchange;\n\n (ix) conduct prescribed by the regulations for the purposes of this subparagraph.\n\nNote: For the meaning of conduct, see subsection 4(2).\n\n (2) For the purposes of this Part, gas market conduct does not include any of the following:\n\n (a) conduct engaged in by the Minister, the Commission or a member of the Commission;\n\n (b) exercising a power or performing a function conferred by a gas market provision;\n\n (c) conduct engaged in by a mediator or arbiter of a dispute between gas market participants.\n\n (3) Subsection (1) has effect subject to subsection (2).\n\n (4) To avoid doubt, for the purposes of this section, it does not matter whether conduct occurs inside or outside Australia.\n\nNote: See also section 53H (geographical application of the gas market provisions in relation to supplies and acquisitions).","sortOrder":634},{"sectionNumber":"53D","sectionType":"section","heading":"Gas market participants","content":"53D  Gas market participants\n\n (1) For the purposes of this Part, a gas market participant is any of the following:\n\n (a) a person who engages, or is capable of engaging, in gas market conduct;\n\n (b) a person who has previously been a gas market participant under paragraph (a), (c) or (d);\n\n (c) a body corporate that is related to a body corporate that is a gas market participant;\n\n (d) any of the persons who carry on a joint venture, if:\n\n (i) subparagraph 4J(a)(i) applies to the joint venture; and\n\n (ii) the joint venture is, or includes, gas market conduct;\n\n (e) a person or body prescribed by the regulations for the purposes of this paragraph.\n\nNote: For the meaning of related, see section 4A.\n\n (2) For the purposes of this Part, a person or body prescribed by the regulations for the purposes of this subsection is not a gas market participant.\n\n (3) Subsection (1) has effect subject to subsection (2).","sortOrder":635},{"sectionNumber":"53E","sectionType":"section","heading":"Extension to external Territories","content":"53E  Extension to external Territories\n\n (1) The gas market provisions extend to every external Territory.\n\n (2) A reference in the gas market provisions to Australia is taken to include a reference to the external Territories.","sortOrder":637},{"sectionNumber":"53F","sectionType":"section","heading":"Extraterritorial operation","content":"53F  Extraterritorial operation\n\n  The gas market provisions extend to acts, omissions, matters and things outside Australia.","sortOrder":638},{"sectionNumber":"53G","sectionType":"section","heading":"Geographical application of offences","content":"53G  Geographical application of offences\n\n  Division 14 (Standard geographical jurisdiction) of the Criminal Code does not apply in relation to an offence against the gas market provisions.\n\nNote: The extended geographical application that section 53F gives to the gas market provisions applies to offences against the gas market provisions.","sortOrder":639},{"sectionNumber":"53H","sectionType":"section","heading":"Geographical application—supplies and acquisitions","content":"53H  Geographical application—supplies and acquisitions\n\n (1) The gas market provisions apply in relation to supplying a gas commodity if the supply:\n\n (a) occurs in Australia; or\n\n (b) is:\n\n (i) to a person in Australia, including by means of importing the gas commodity into Australia; or\n\n (ii) by means of exporting the gas commodity from Australia.\n\n (2) The gas market provisions apply in relation to acquiring a gas commodity if the acquisition:\n\n (a) occurs in Australia; or\n\n (b) is the direct result of a supply mentioned in subsection (1).","sortOrder":640},{"sectionNumber":"53J","sectionType":"section","heading":"Gas market provisions bind the Crown","content":"53J  Gas market provisions bind the Crown\n\n (1) The gas market provisions bind the Crown in each of its capacities.\n\n (2) However, the gas market provisions do not make the Crown:\n\n (a) liable to a pecuniary penalty or to be prosecuted for an offence; or\n\n (b) subject to a remedy under Part VI (about enforcement); or\n\n (c) subject to Part XID (about search and seizure).","sortOrder":642},{"sectionNumber":"53K","sectionType":"section","heading":"Application to government entities","content":"53K  Application to government entities\n\n (1) The gas market provisions apply in relation to an entity covered by subsection (3) or (4):\n\n (a) if the entity is not a person—as if the entity were a person; and\n\n (b) with the modifications (if any) prescribed by the regulations for the purposes of this paragraph.\n\nNote: See also subsection 53ZZA(1), which provides that the gas market provisions apply in relation to gas market conduct only if it is carried out by certain persons, or in certain circumstances.\n\n (2) To avoid doubt, this section does not limit the ability of a gas market instrument to limit the application of:\n\n (a) the instrument; or\n\n (b) a provision of the instrument; or\n\n (c) a rule included in the instrument;\n\nin relation to an entity covered by subsection (3) or (4).\n\nCommonwealth government entities\n\n (3) This subsection covers an entity that:\n\n (a) is part of the Commonwealth; or\n\n (b) is a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); or\n\n (c) is a body (whether or not incorporated) established for a public purpose by or under a law of the Commonwealth; or\n\n (d) is:\n\n (i) holding or performing the duties of an office established by or under a law of the Commonwealth; or\n\n (ii) holding an appointment made under a law of the Commonwealth; or\n\n (e) is prescribed by the regulations for the purposes of this paragraph.\n\nState or Territory government entities\n\n (4) This subsection covers an entity that:\n\n (a) is part of a State or Territory; or\n\n (b) is a body (whether or not incorporated) established for a public purpose by or under a law of a State or Territory; or\n\n (c) is:\n\n (i) holding or performing the duties of an office established by or under a law of a State or Territory; or\n\n (ii) holding an appointment made under a law of a State or Territory; or\n\n (d) is prescribed by the regulations for the purposes of this paragraph.","sortOrder":643},{"sectionNumber":"53L","sectionType":"section","heading":"Regulations may prescribe gas market codes","content":"53L  Regulations may prescribe gas market codes\n\n (1) The regulations may prescribe matters required or permitted by this Act to be prescribed by a gas market code.\n\nNote: For the matters that may be included in a gas market code, see Subdivisions B and D and subsection 53ZJ(1).\n\n (2) To avoid doubt, subsection (1) does not limit section 172 (power to make regulations).","sortOrder":646},{"sectionNumber":"53M","sectionType":"section","heading":"Minister may make gas market emergency price orders","content":"53M  Minister may make gas market emergency price orders\n\n (1) The Minister may, by legislative instrument, make an order prescribing matters required or permitted by this Act to be prescribed by a gas market emergency price order.\n\nNote: For the matters that may be included in a gas market emergency price order, see Subdivisions C and D and subsection 53ZJ(1).\n\n (2) To avoid doubt, a gas market emergency price order may not do the following:\n\n (a) create an offence;\n\n (b) provide powers of:\n\n (i) arrest or detention; or\n\n (ii) entry, search or seizure;\n\n (c) impose a tax;\n\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n\n (e) directly amend the text of this Act.\n\n (3) A gas market emergency price order that is inconsistent with the regulations has no effect to the extent of the inconsistency, but a gas market emergency price order is taken to be consistent with the regulations to the extent that the gas market emergency price order is capable of operating concurrently with the regulations.\n\nConsultation before making gas market emergency price orders\n\n (4) Before the Minister makes a gas market emergency price order, the Minister must consult with the Commission.\n\n (5) To avoid doubt, subsection (4) does not limit section 17 of the Legislation Act 2003.\n\nSunsetting of gas market emergency price orders\n\n (6) The Minister must not make a gas market emergency price order at or after the time specified by subsection (8).\n\n (7) A gas market emergency price order is repealed by force of this subsection at the time specified by subsection (8), unless the gas market emergency price order is repealed earlier.\n\n (8) For the purposes of subsections (6) and (7), the time is the time occurring:\n\n (a) if any provision of any gas market emergency price order commences during the 12 months starting on the commencement of this section—12 months after the earliest time any provision of any gas market emergency price order commences; or\n\n (b) otherwise—12 months after the commencement of this section.","sortOrder":647},{"sectionNumber":"53N","sectionType":"section","heading":"Scope of gas market instruments","content":"53N  Scope of gas market instruments\n\nGas commodities\n\n (1) A gas market instrument may limit the application of:\n\n (a) the instrument; or\n\n (b) a specified provision of the instrument; or\n\n (c) a specified rule included in the instrument;\n\nsuch that the instrument, the specified provision or the specified rule applies only in relation to supplying or acquiring specified gas commodities.\n\nGeography\n\n (2) A gas market instrument may limit the application of:\n\n (a) the instrument; or\n\n (b) a specified provision of the instrument; or\n\n (c) a specified rule included in the instrument;\n\nsuch that the instrument, the specified provision or the specified rule applies:\n\n (d) only in relation to parts of Australia in relation to which specified requirements are met; or\n\n (e) in relation to all parts of Australia other than parts of Australia in relation to which specified requirements are met.\n\nNote: A gas market instrument may specify a requirement for the purposes of this subsection:\n\n(a) by reference to the Minister, the Commission or another person or body being satisfied that particular requirements are met; or\n\n(b) by providing for the Minister, the Commission or another person or body to make a legislative, notifiable or other instrument.\n\n See sections 53ZB and 53ZD.\n\n (3) Subsection (2) is subject to section 53ZG.\n\nNote: Section 53ZG provides that a gas market instrument must not give preference to one State or any part thereof.\n\nTime\n\n (4) A gas market instrument may provide that:\n\n (a) the instrument; or\n\n (b) a specified provision of the instrument; or\n\n (c) a specified rule included in the instrument;\n\napplies:\n\n (d) at a specified time; or\n\n (e) during a specified period; or\n\n (f) on an ongoing basis (subject to subsection 53M(7)).\n\n (5) Subsection (4) does not limit Part 4 of Chapter 3 of the Legislation Act 2003.\n\nNote: Part 4 of Chapter 3 of the Legislation Act 2003 is about sunsetting of legislative instruments.\n\nInteraction with Acts Interpretation Act 1901\n\n (6) This section does not limit subsection 33(3A) of the Acts Interpretation Act 1901.\n\nNote: Under subsection 33(3A) of the Acts Interpretation Act 1901, a gas market instrument may make different provision with respect to different matters or different classes of matters.","sortOrder":648},{"sectionNumber":"53P","sectionType":"section","heading":"General","content":"53P  General\n\n  A gas market code may include rules regulating gas market conduct.\n\nNote: The other provisions of this Subdivision and Subdivision D do not limit this section: see section 53ZF.","sortOrder":650},{"sectionNumber":"53Q","sectionType":"section","heading":"Dealing with other gas market participants","content":"53Q  Dealing with other gas market participants\n\n  A gas market code may include any of the following rules in relation to a gas market participant dealing with another gas market participant, if the dealing is or relates to gas market conduct:\n\n (a) rules about how a gas market participant deals with another gas market participant;\n\n (b) rules requiring a gas market participant to deal with another gas market participant in a specified manner, including in good faith;\n\n (c) rules about the matters that, for the purposes of a gas market code, must, may or must not be taken into account in determining whether a gas market participant is dealing with another gas market participant in good faith;\n\n (d) rules about the period within which a gas market participant does something in dealing with another gas market participant, including the period within which a gas market participant responds to a request made by another gas market participant.","sortOrder":651},{"sectionNumber":"53R","sectionType":"section","heading":"Negotiations, expressions of interest and offers","content":"53R  Negotiations, expressions of interest and offers\n\nNegotiations\n\n (1) A gas market code may include rules about negotiations relating to supplying or acquiring a gas commodity.\n\nExpressions of interest\n\n (2) A gas market code may include rules about expressions of interest relating to supplying or acquiring a gas commodity, including:\n\n (a) rules requiring a gas market participant to issue, or not to issue, an expression of interest in specified circumstances; or\n\n (b) rules about any of the following matters:\n\n (i) matters to which regard is had before issuing an expression of interest;\n\n (ii) the manner in which an expression of interest is issued (for example, in writing);\n\n (iii) information that is included in an expression of interest or made available in connection with an expression of interest (including the manner in which the information is made available);\n\n (iv) the content of an expression of interest;\n\n (v) the period during which an expression of interest is open;\n\n (vi) responding to an expression of interest;\n\n (vii) dealing with a response to an expression of interest, including by providing information, making an offer or entering into an agreement;\n\n (viii) withdrawing an expression of interest.\n\nOffers\n\n (3) A gas market code may include rules about offers relating to supplying or acquiring a gas commodity, including:\n\n (a) rules requiring a gas market participant to make, or not to make, an offer in specified circumstances; or\n\n (b) rules about any of the following matters:\n\n (i) matters to which regard is had before making an offer;\n\n (ii) the manner in which an offer is made (for example, in writing);\n\n (iii) information that is included in an offer, or made available in connection with an offer (including the manner in which the information is made available);\n\n (iv) the content of an offer;\n\n (v) the period during which an offer is open;\n\n (vi) responding to an offer;\n\n (vii) dealing with a response to an offer, including by providing information;\n\n (viii) withdrawing an offer.","sortOrder":652},{"sectionNumber":"53S","sectionType":"section","heading":"Agreements","content":"53S  Agreements\n\n (1) A gas market code may include rules about agreements relating to supplying or acquiring a gas commodity, including:\n\n (a) rules requiring a gas market participant to enter, or not to enter, into an agreement in specified circumstances; or\n\n (b) rules about any of the following matters:\n\n (i) the manner in which an agreement is made (for example, in writing);\n\n (ii) matters dealt with in an agreement, including, in the case of an agreement to supply or acquire a gas commodity, the matters mentioned in subsection (2);\n\n (iii) withdrawing from or ending an agreement.\n\nExample: Rules requiring specified matters to be dealt with, or not dealt with, in an agreement.\n\n (2) For the purposes of subparagraph (1)(b)(ii), the matters are the following:\n\n (a) how much of the gas commodity is to be supplied or acquired;\n\n (b) flexibility of the volume of the gas commodity to be supplied or acquired;\n\n (c) where the gas commodity is to be supplied or acquired;\n\n (d) when the gas commodity is to be supplied or acquired;\n\n (e) payment terms;\n\n (f) a communication protocol for major interruptions to the supply of the gas commodity;\n\n (g) the period of the agreement;\n\n (h) the consequences of a breach of the agreement;\n\n (i) dispute resolution.","sortOrder":653},{"sectionNumber":"53T","sectionType":"section","heading":"Terms on which gas commodities are supplied or acquired, including price","content":"53T  Terms on which gas commodities are supplied or acquired, including price\n\n (1) A gas market code may include rules about the terms on which a gas market participant offers to supply or acquire, agrees to supply or acquire or supplies or acquires a gas commodity, including rules about any of the following matters:\n\n (a) how such a term is expressed;\n\n (b) fees payable in relation to such an offer, agreement, supply or acquisition;\n\n (c) terms (including terms relating to price) specified in an expression of interest relating to supplying or acquiring a gas commodity.\n\n (2) A gas market code may include rules about the price at which a gas market participant offers to supply or acquire, agrees to supply or acquire or supplies or acquires a gas commodity, including the following:\n\n (a) rules setting a price;\n\n (b) rules setting a maximum price;\n\n (c) rules setting a minimum price;\n\n (d) rules setting a maximum and a minimum price;\n\n (e) rules requiring a price to be reasonable;\n\n (f) rules about the matters that, for the purposes of a gas market code, must, may or must not be taken into account in determining whether a price is reasonable;\n\n (g) rules about determining a price, including matters taken into account in determining a price;\n\n (h) rules about how a price is expressed.\n\nNote 1: A gas market code may confer on the Minister, the Commission or any other person or body the function of setting a price: see section 53ZB.\n\nNote 2: Rules of the kind mentioned in this subsection may:\n\n(a) refer to the prices of any gas commodity inside or outside Australia or any published information about any market; or\n\n(b) require a price to be equal to the amount worked out by using a specified formula or method.\n\n See subsection 53ZE(3).\n\n (3) To avoid doubt, a gas market code may include rules requiring a gas market participant not to offer to supply or acquire, not to agree to supply or acquire or not to supply or acquire a gas commodity if rules of the kind mentioned in subsection (1) or (2) are not complied with in relation to the offer, agreement, supply or acquisition.","sortOrder":654},{"sectionNumber":"53U","sectionType":"section","heading":"Gas exchanges","content":"53U  Gas exchanges\n\n  A gas market code may include rules regulating the operation of a gas exchange.","sortOrder":655},{"sectionNumber":"53V","sectionType":"section","heading":"Dispute and complaint resolution","content":"53V  Dispute and complaint resolution\n\n (1) A gas market code may include rules about disputes between gas market participants relating to gas market conduct, including:\n\n (a) disputes or complaints arising under, or in relation to, a gas market code; or\n\n (b) disputes arising during negotiations between gas market participants, including any of the following:\n\n (i) disputes relating to a prospective agreement between gas market participants;\n\n (ii) price disputes.\n\n (2) A gas market code may include the following rules about disputes between gas market participants relating to gas market conduct:\n\n (a) rules requiring a gas market participant to have internal or external dispute resolution processes;\n\n (b) rules requiring those processes to meet specified criteria.\n\n (3) A gas market code may do any of the following:\n\n (a) provide for a gas market participant to complain to the Minister or the Commission about:\n\n (i) a contravention of a gas market code; or\n\n (ii) a dispute between gas market participants relating to gas market conduct;\n\n (b) include rules about any of the following matters:\n\n (i) the manner in which such a complaint is made;\n\n (ii) how the Minister or the Commission deals with such a complaint.","sortOrder":656},{"sectionNumber":"53W","sectionType":"section","heading":"Mediation and arbitration","content":"53W  Mediation and arbitration\n\n (1) A gas market code may provide for the mediation of disputes between gas market participants relating to gas market conduct, including providing for any of the following matters:\n\n (a) a process for appointing a mediator;\n\n (b) the powers or functions of a mediator;\n\n (c) a process for commencing mediation;\n\n (d) the mediation process, including rules about any of the following matters:\n\n (i) a party giving information to another party or to a mediator (including on request);\n\n (ii) a mediator providing a party with an opportunity to be heard;\n\n (iii) terminating a mediation;\n\n (e) the extent (if any) to which mediation is compulsory;\n\n (f) the consequences of not participating in mediation;\n\n (g) reporting;\n\n (h) generating and keeping records;\n\n (i) confidentiality;\n\n (j) the costs of mediation, including providing for:\n\n (i) determining the costs; or\n\n (ii) who is liable to pay the costs.\n\n (2) A gas market code may provide for the arbitration (including compulsory arbitration) of disputes between gas market participants relating to gas market conduct, including providing for any of the following matters:\n\n (a) establishing or maintaining a register of arbiters;\n\n (b) a process for appointing an arbiter;\n\n (c) the powers or functions of an arbiter;\n\n (d) a process for commencing arbitration, including rules requiring a party to a dispute to take reasonable steps (such as mediation) to resolve a dispute before proceeding to arbitration;\n\n (e) the arbitration process, including rules about any of the following matters:\n\n (i) a party to a dispute giving information to another party or to an arbiter (including on request);\n\n (ii) an arbiter providing a party with an opportunity to be heard;\n\n (iii) terminating an arbitration;\n\n (f) the extent (if any) to which arbitration is compulsory;\n\n (g) the consequences of not participating in arbitration;\n\n (h) decision‑making by an arbiter, including processes an arbiter uses in decision‑making;\n\n (i) a power of an arbiter to decide that a party to a dispute must supply a gas commodity;\n\n (j) a power of an arbiter to decide any of the following matters if an arbiter decides that a party to a dispute must supply a gas commodity:\n\n (i) how much of the gas commodity is to be supplied;\n\n (ii) where the gas commodity is to be supplied;\n\n (iii) when the gas commodity is to be supplied;\n\n (iv) the terms (including terms relating to price) on which the gas commodity is to be supplied;\n\n (k) rules about how a decision of an arbiter binds a party to an arbitration;\n\n (l) the consequences of not complying with a decision of an arbiter;\n\n (m) reporting;\n\n (n) generating and keeping records;\n\n (o) confidentiality;\n\n (p) the costs of arbitration, including providing for:\n\n (i) determining the costs; or\n\n (ii) who is liable to pay the costs.\n\n (3) The powers or functions conferred on an arbiter by a gas market code must not involve the exercise of judicial power.","sortOrder":657},{"sectionNumber":"53X","sectionType":"section","heading":"Terms on which gas commodities are supplied or acquired, including price","content":"53X  Terms on which gas commodities are supplied or acquired, including price\n\n (1) A gas market emergency price order may include rules about the terms on which a gas market participant offers to supply or acquire, agrees to supply or acquire or supplies or acquires a gas commodity, including rules about any of the following matters:\n\n (a) how such a term is expressed;\n\n (b) fees payable in relation to such an offer, agreement, supply or acquisition;\n\n (c) terms (including terms relating to price) specified in an expression of interest relating to supplying or acquiring a gas commodity.\n\n (2) A gas market emergency price order may include rules about the price at which a gas market participant offers to supply or acquire, agrees to supply or acquire or supplies or acquires a gas commodity, including the following:\n\n (a) rules setting a price;\n\n (b) rules setting a maximum price;\n\n (c) rules setting a minimum price;\n\n (d) rules setting a maximum and a minimum price;\n\n (e) rules requiring a price to be reasonable;\n\n (f) rules about the matters that, for the purposes of a gas market emergency price order, must, may or must not be taken into account in determining whether a price is reasonable;\n\n (g) rules about determining a price, including matters taken into account in determining a price;\n\n (h) rules about how a price is expressed.\n\nNote 1: A gas market emergency price order may confer on the Minister, the Commission or any other person or body the function of setting a price: see section 53ZB.\n\nNote 2: Rules of the kind mentioned in this subsection may:\n\n(a) refer to the prices of any gas commodity inside or outside Australia or any published information about any market; or\n\n(b) require a price to be equal to the amount worked out by using a specified formula or method.\n\n See subsection 53ZE(3).\n\n (3) To avoid doubt, a gas market emergency price order may include rules requiring a gas market participant not to offer to supply or acquire, not to agree to supply or acquire or not to supply or acquire a gas commodity if rules of the kind mentioned in subsection (1) or (2) are not complied with in relation to the offer, agreement, supply or acquisition.","sortOrder":659},{"sectionNumber":"53Y","sectionType":"section","heading":"Gas exchanges","content":"53Y  Gas exchanges\n\n  A gas market emergency price order may include rules regulating the operation of a gas exchange.","sortOrder":660},{"sectionNumber":"53Z","sectionType":"section","heading":"Transparency","content":"53Z  Transparency\n\n (1) A gas market instrument may include rules about a gas market participant, the Minister or the Commission publishing information that relates to a gas market matter, including rules about any of the following:\n\n (a) the type of information that is published;\n\n (b) the circumstances in which information is published;\n\n (c) the manner in which information is published.\n\nExample: A rule requiring information to be published at specified intervals.\n\n (2) A gas market instrument may include rules requiring a gas market participant to give to another gas market participant information or documents relevant to a gas market matter.","sortOrder":662},{"sectionNumber":"53ZA","sectionType":"section","heading":"Reporting, records and auditing","content":"53ZA  Reporting, records and auditing\n\n (1) A gas market instrument may include rules about:\n\n (a) reporting; or\n\n (b) generating or keeping records (including financial records); or\n\n (c) auditing;\n\nrelating to a gas market matter.\n\n (2) A gas market instrument may include rules requiring a gas market participant to give:\n\n (a) financial or other reports, records or documents; or\n\n (b) information;\n\nrelating to a gas market matter to the Minister or the Commission, including requiring such reports, records, documents or information to be given periodically or on request.\n\n (3) A gas market instrument may include rules requiring a gas market participant to do any of the following:\n\n (a) report to the Minister or the Commission the occurrence of a specified event relating to:\n\n (i) a gas market matter; or\n\n (ii) a price dispute;\n\n (b) give to the Minister or the Commission specified information relating to such an event.","sortOrder":663},{"sectionNumber":"53ZB","sectionType":"section","heading":"Conferral of powers and functions","content":"53ZB  Conferral of powers and functions\n\n (1) A gas market instrument may confer on a person or body a power to do, or a function of doing, any of the following:\n\n (a) monitoring compliance with a gas market instrument;\n\n (b) conducting investigations in relation to a gas market matter;\n\n (c) providing exemptions from:\n\n (i) a gas market instrument; or\n\n (ii) a specified provision of a gas market instrument; or\n\n (iii) a specified rule included in a gas market instrument;\n\n (d) reviewing, or reporting on:\n\n (i) the operation, application or administration of a gas market instrument; or\n\n (ii) activities under, or in relation to, a gas market instrument;\n\n (e) reviewing a decision made under a gas market instrument, or in the exercise or performance of a power or function conferred by a gas market instrument.\n\n (2) A gas market code may confer on a person or body any of the following powers or functions:\n\n (a) a power to determine, or a function of determining, any matter that may be dealt with by a gas market code;\n\n (b) a power or function relating to the operation, application or administration of a gas market code.\n\n (3) A gas market emergency price order may confer on a person or body any of the following powers or functions:\n\n (a) a power to determine, or a function or determining, any matter that may be dealt with by a gas market emergency price order;\n\n (b) a power or function relating to the operation, application or administration of a gas market emergency price order.\n\n (4) If a gas market code confers on a person or body a power or function, a gas market code:\n\n (a) may provide that the power is to be exercised, or the function performed, by legislative instrument, notifiable instrument or another kind of written instrument; and\n\n (b) may provide for the person or body to delegate the power or function.\n\nNote: For limitations relating to a power to make a legislative instrument, see section 53ZI.\n\n (5) If a gas market emergency price order confers on a person or body a power or function, a gas market instrument:\n\n (a) may provide that the power is to be exercised, or the function performed, by legislative instrument, notifiable instrument or another kind of written instrument; and\n\n (b) may provide for the person or body to delegate the power or function.\n\nNote: For limitations relating to a power to make a legislative instrument, see section 53ZI.","sortOrder":664},{"sectionNumber":"53ZC","sectionType":"section","heading":"Fees","content":"53ZC  Fees\n\n (1) A gas market instrument may provide for the charging of a fee for anything done by or in relation to the Commonwealth, the Commission or any other person or body in relation to a gas market instrument, including in the exercise of a power or the performance of a function conferred by a gas market instrument.\n\n (2) A gas market instrument that provides for the charging of a fee may deal with any of the following matters:\n\n (a) the amount of the fee, including a method for working out the amount of the fee;\n\n (b) who is liable to pay the fee;\n\n (c) the consequences of not paying the fee;\n\n (d) when the fee becomes due and payable;\n\n (e) waiving a fee;\n\n (f) refunding a fee.","sortOrder":665},{"sectionNumber":"53ZD","sectionType":"section","heading":"Incidental or related matters","content":"53ZD  Incidental or related matters\n\n (1) A gas market instrument may include any of the following:\n\n (a) rules about the circumstances in which persons are, or may be, relieved from complying with requirements in a gas market instrument that that would otherwise apply to them;\n\n (b) if a gas market instrument requires information or a document to be given or published—exceptions to that requirement, including exceptions that apply in any of the following circumstances:\n\n (i) circumstances in which publishing the information would prejudice the commercial interests of a person;\n\n (ii) circumstances in which publishing the information is not in the public interest;\n\n (iii) circumstances involving personal information;\n\n (c) rules about the use, disclosure or publication of information or a document by a person to whom the information or document is given under a gas market instrument;\n\n (d) rules about the manner or form in which persons or bodies:\n\n (i) may exercise powers or perform functions conferred by a gas market instrument; or\n\n (ii) must comply with requirements imposed by a gas market instrument;\n\n  which could include requiring the use of a form approved by the Minister, the Commission or another person or body;\n\n (e) rules providing for any of the following in relation to a decision made under a gas market instrument, or in the exercise or performance of a power or function conferred by a gas market instrument:\n\n (i) internal review of the decision;\n\n (ii) review of the decision by the Australian Competition Tribunal;\n\n (iii) the making of applications to the Administrative Review Tribunal for review of the decision;\n\n (f) rules requiring agents of a gas market participant to do or not to do specified things when:\n\n (i) engaging in gas market conduct, on behalf of the gas market participant, within the agent’s actual or apparent authority; or\n\n (ii) otherwise acting on behalf of the gas market participant, in relation to gas market conduct, within the agent’s actual or apparent authority;\n\n (g) rules providing that, in specified circumstances, a partner in a partnership is taken to contravene a specified provision of a gas market instrument if another partner in the partnership contravenes that provision;\n\n (h) rules providing that, in specified circumstances, a person who carries on a joint venture is taken to contravene a specified provision of a gas market instrument if another person who carries on the joint venture contravenes that provision.\n\n (2) A gas market code may deal with any of the following matters:\n\n (a) matters incidental or related to any matter that is or may be included in, or dealt with by, a gas market code;\n\n (b) matters of a transitional nature relating to:\n\n (i) the making of a gas market code; or\n\n (ii) a repeal of a gas market emergency price order by subsection 53M(7).\n\n (3) A gas market emergency price order may deal with any of the following matters:\n\n (a) matters incidental or related to any matter that is or may be included in, or dealt with by, a gas market emergency price order;\n\n (b) matters of a transitional nature relating to the making of a gas market emergency price order.\n\n (4) A gas market instrument may make provision in relation to a matter in a way that depends on a person being satisfied of one or more specified matters.","sortOrder":666},{"sectionNumber":"53ZE","sectionType":"section","heading":"What gas market instruments may refer to","content":"53ZE  What gas market instruments may refer to\n\nGas market instruments may refer to other instruments\n\n (1) A gas market instrument may make provision in relation to a matter by applying, adopting or incorporating (with or without modification) any matter contained in any other instrument or writing:\n\n (a) as in force or existing at a particular time; or\n\n (b) as in force or existing from time to time.\n\n (2) Subsection (1) has effect despite subsection 14(2) of the Legislation Act 2003.\n\nOther matters\n\n (3) A gas market instrument may make provision in relation to a matter (including setting a price):\n\n (a) by reference to:\n\n (i) the price of any gas commodity or other goods or services anywhere inside or outside Australia; or\n\n (ii) any published information about any market (whether inside or outside Australia); or\n\n (b) by reference to, or by providing for, a formula or method.","sortOrder":667},{"sectionNumber":"53ZF","sectionType":"section","heading":"Provisions do not limit other provisions","content":"53ZF  Provisions do not limit other provisions\n\n (1) A provision to which this section applies does not limit another provision to which this section applies.\n\n (2) This section applies to:\n\n (a) subsection 53N(1); and\n\n (b) subsection 53N(4); and\n\n (c) each provision of Subdivision B; and\n\n (d) each provision of Subdivision C; and\n\n (e) each provision of Subdivision D; and\n\n (f) subsection 53ZJ(1).","sortOrder":669},{"sectionNumber":"53ZG","sectionType":"section","heading":"Constitution—gas market instruments must not give preference to States etc.","content":"53ZG  Constitution—gas market instruments must not give preference to States etc.\n\n (1) A gas market instrument must not give preference to one State or any part thereof within the meaning of section 99 of the Constitution.\n\n (2) A power or function conferred by a gas market instrument must not be exercised or performed in such a way as to give preference to one State or any part thereof within the meaning of section 99 of the Constitution.","sortOrder":670},{"sectionNumber":"53ZH","sectionType":"section","heading":"Fees must not amount to taxation","content":"53ZH  Fees must not amount to taxation\n\n  A fee charged under a gas market instrument must not be such as to amount to taxation.","sortOrder":671},{"sectionNumber":"53ZI","sectionType":"section","heading":"Powers to make legislative instruments","content":"53ZI  Powers to make legislative instruments\n\n (1) A gas market instrument must not confer a power to make a legislative instrument on a person or body other than:\n\n (a) a Minister; or\n\n (b) the Commission; or\n\n (c) a member of the staff of the Commission; or\n\n (d) an APS employee; or\n\n (e) an entity covered by subsection 53K(3).\n\n (2) A gas market instrument must not confer a power to delegate a power to make a legislative instrument.","sortOrder":672},{"sectionNumber":"53ZJ","sectionType":"section","heading":"Civil penalty provisions of gas market instruments","content":"53ZJ  Civil penalty provisions of gas market instruments\n\n (1) A gas market instrument may:\n\n (a) set out at the foot of a provision of the gas market instrument a pecuniary penalty, or penalties, indicated by the words “Civil penalty”; or\n\n (b) provide that a specified provision of a gas market instrument is a civil penalty provision, or that a person is liable to a civil penalty if the person contravenes the provision;\n\nif the provision is of the kind mentioned in paragraph 79(2)(b) of the Regulatory Powers Act.\n\nNote: Sections 76 to 77 of this Act deal with enforcing the civil penalty provisions.\n\n (2) If an act or thing is required under a civil penalty provision of a gas market instrument to be done:\n\n (a) within a particular period; or\n\n (b) before a particular time;\n\nthen the obligation to do that act or thing continues until the act or thing is done (even if the period has expired or the time has passed).\n\n (3) A person who contravenes a civil penalty provision of a gas market instrument that requires an act or thing to be done:\n\n (a) within a particular period; or\n\n (b) before a particular time;\n\ncommits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant order is made under subsection 76(1) or any later day).","sortOrder":675},{"sectionNumber":"53ZK","sectionType":"section","heading":"Infringement notices","content":"53ZK  Infringement notices\n\nObject\n\n (1) The object of this section is for Division 5 of Part XI to apply to a provision to which this section applies in a corresponding way to the way that Division applies to a provision of Part 2‑2 of the Australian Consumer Law.\n\nNote: That Division is about infringement notices issued for alleged contraventions of provisions of the Australian Consumer Law.\n\n (2) This section applies to the following provisions:\n\n (a) subsection 53ZQ(1);\n\n (b) subsection 53ZQ(2);\n\n (c) subsection 53ZQ(3);\n\n (d) section 53ZV;\n\n (e) subsection 53ZW(1);\n\n (f) a civil penalty provision of a gas market instrument, other than a provision that is a requirement for a gas market participant to deal with another gas market participant in good faith as mentioned in paragraph 53Q(b).\n\nExtended application of Division 5 of Part XI etc.\n\n (3) Division 5 of Part XI, and any other provision of this Act that relates to that Division, also apply in relation to a provision to which this section applies as if:\n\n (a) the substitutions in the following table were made; and\n\n (b) the following substitutions were made:\n\n (i) for a reference in item 1 of the table in section 134C to 60 penalty units, substitute a reference to 600 penalty units;\n\n (ii) for a reference in that item to 12 penalty units, substitute a reference to 60 penalty units.\n\n\n\n- Substitutions to be made\n- Item Column 1For a reference in Division 5 of Part XI to … Column 2substitute a reference to …\n- 1 section 224 of the Australian Consumer Law section 76 of this Act.\n- 2 Chapter 4 or Part 5‑2 of the Australian Consumer Law Part VI of this Act.\n- 3 a provision of Part 2‑2 of the Australian Consumer Law a provision to which section 53ZK of this Act applies.\n\n\n (4) To avoid doubt, Division 2 of Part XI does not limit the application of section 53ZZA (about constitutional basis) to the extended application of Division 5 of Part XI as described in this section.\n\nJudicial power\n\n (5) Division 5 of Part XI, and any other provision of this Act that relates to that Division, have no effect to the extent to which they would otherwise:\n\n (a) apply in relation to a provision to which this section applies; and\n\n (b) purport to confer judicial power on the Commission.","sortOrder":677},{"sectionNumber":"53ZL","sectionType":"section","heading":"Commission may give draft public warning notice","content":"53ZL  Commission may give draft public warning notice\n\n (1) The Commission may give a person a notice in writing if the Commission reasonably believes that:\n\n (a) any of the following conditions are satisfied:\n\n (i) the person has engaged in prohibited conduct;\n\n (ii) the person is engaging in prohibited conduct; and\n\n (b) one or more other persons has suffered, or is likely to suffer, detriment as a result of the prohibited conduct; and\n\n (c) it is in the public interest to issue the notice.\n\n (2) The notice must:\n\n (a) state the day on which the notice is given; and\n\n (b) identify:\n\n (i) the person mentioned in paragraph (1)(a); and\n\n (ii) the prohibited conduct mentioned in paragraph (1)(a); and\n\n (c) explain the reasons why the Commission reasonably believes that the requirements in paragraphs (1)(a), (b) and (c) are met; and\n\n (d) state that:\n\n (i) the person may, within 21 days after being given the notice, make representations to the Commission regarding the matters mentioned in paragraphs (1)(a), (b) and (c); and\n\n (ii) the Commission may issue a public warning notice under section 53ZM in relation to the prohibited conduct after those 21 days have passed.\n\n (3) A notice given under subsection (1) is not a legislative instrument.","sortOrder":679},{"sectionNumber":"53ZM","sectionType":"section","heading":"Commission may issue public warning notice","content":"53ZM  Commission may issue public warning notice\n\n (1) This section applies if:\n\n (a) the Commission gave a person a notice under section 53ZL in relation to prohibited conduct; and\n\n (b) at least 21 days have passed since the Commission gave the person the notice; and\n\n (c) no more than 90 days have passed since the Commission gave the person the notice; and\n\n (d) the Commission reasonably believes that any of the following conditions are satisfied:\n\n (i) the person has engaged in the prohibited conduct;\n\n (ii) the person is engaging in the prohibited conduct; and\n\n (e) the Commission reasonably believes that one or more other persons has suffered, or is likely to suffer, detriment as a result of the prohibited conduct.\n\n (2) This section also applies if the Commission reasonably believes that:\n\n (a) any of the following conditions are satisfied:\n\n (i) a person has engaged in prohibited conduct;\n\n (ii) a person is engaging in prohibited conduct; and\n\n (b) there is a significant risk of imminent, serious harm to the welfare of Australians as a result of the prohibited conduct; and\n\n (c) issuing a notice under this section in relation to the prohibited conduct, without first giving a notice under section 53ZL in relation to the prohibited conduct, is reasonably necessary to:\n\n (i) prevent that harm or reduce that risk; or\n\n (ii) reduce the seriousness of that harm.\n\n (3) The Commission may issue to the public a written notice containing a warning about the prohibited conduct if the Commission reasonably believes that it is in the public interest to issue the notice.\n\n (4) The notice must:\n\n (a) state the day on which the notice is issued; and\n\n (b) identify:\n\n (i) the person mentioned in paragraph (1)(a) or (2)(a); and\n\n (ii) the prohibited conduct mentioned in that paragraph.\n\n (5) A notice issued under subsection (3) is not a legislative instrument.","sortOrder":680},{"sectionNumber":"53ZN","sectionType":"section","heading":"Proceedings for defamation not to lie","content":"53ZN  Proceedings for defamation not to lie\n\n (1) If the Commission issues a notice under section 53ZM, no action or proceeding for defamation lies against the Commonwealth, the Commission or a member of the staff of the Commission in relation to the issuing of the notice.\n\n (2) This section does not limit subsection 53J(2).","sortOrder":681},{"sectionNumber":"53ZO","sectionType":"section","heading":"Orders to redress loss or damage suffered by non-parties etc.","content":"53ZO  Orders to redress loss or damage suffered by non‑parties etc.\n\nOrders\n\n (1) If:\n\n (a) a person engaged in conduct (the contravening conduct) that constituted a contravention or a related contravention of a civil penalty provision of a gas market instrument; and\n\n (b) the contravening conduct caused, or is likely to cause, a class of persons to suffer loss or damage; and\n\n (c) the class includes persons (non‑parties) who are not, or have not been, parties to a proceeding (an enforcement proceeding) instituted under Part VI in relation to the contravening conduct;\n\nany court having jurisdiction in the matter may, on the application of the Commission, make such order or orders (other than an award of damages) as the court thinks appropriate against a person referred to in subsection (2).\n\nNote: The orders that the court may make include all or any of the orders set out in section 53ZP.\n\n (2) An order under subsection (1) may be made against:\n\n (a) the person mentioned in paragraph (1)(a); or\n\n (b) a person involved in the contravening conduct.\n\n (3) A court must not make an order under subsection (1) unless the court considers that the order will:\n\n (a) redress, in whole or in part, the loss or damage suffered by the non‑parties in relation to the contravening conduct; or\n\n (b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the non‑parties in relation to the contravening conduct.\n\nApplication for orders\n\n (4) An application may be made under subsection (1) even if an enforcement proceeding in relation to the contravening conduct has not been instituted.\n\n (5) An application under subsection (1) may be made at any time within 6 years after the day on which the cause of action that relates to the contravening conduct accrues.\n\nDetermining whether to make an order\n\n (6) In determining whether to make an order under subsection (1) against a person referred to in subsection (2), a court may have regard to the conduct of:\n\n (a) the person; and\n\n (b) the non‑parties;\n\nin relation to the contravening conduct, since the contravention occurred.\n\n (7) In determining whether to make an order under subsection (1), a court need not make a finding about either of the following matters:\n\n (a) which persons are non‑parties in relation to the contravening conduct;\n\n (b) the nature of the loss or damage suffered, or likely to be suffered, by such persons.\n\nWhen a non‑party is bound by an order etc.\n\n (8) If:\n\n (a) an order is made under subsection (1) against a person; and\n\n (b) the loss or damage suffered, or likely to be suffered, by a non‑party in relation to the contravening conduct to which the order relates has been redressed, prevented or reduced in accordance with the order; and\n\n (c) the non‑party has accepted the redress, prevention or reduction;\n\nthen:\n\n (d) the non‑party is bound by the order; and\n\n (e) any other order made under subsection (1) that relates to that loss or damage has no effect in relation to the non‑party; and\n\n (f) despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory, no claim, action or demand may be made or taken against the person by the non‑party in relation to that loss or damage.\n\nMeaning of related contravention\n\n (9) For the purposes of this Part, a person engages in conduct that constitutes a related contravention of a civil penalty provision of a gas market instrument if the person:\n\n (a) aids, abets, counsels or procures another person to contravene the provision; or\n\n (b) induces, whether by threats or promises or otherwise, another person to contravene the provision; or\n\n (c) is in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of the provision by another person; or\n\n (d) conspires with others to effect a contravention of the provision.","sortOrder":683},{"sectionNumber":"53ZP","sectionType":"section","heading":"Kinds of orders that may be made to redress loss or damage suffered by non-parties etc.","content":"53ZP  Kinds of orders that may be made to redress loss or damage suffered by non‑parties etc.\n\n  Without limiting subsection 53ZO(1), the orders that a court may make under that subsection against a person (the respondent) include all or any of the following:\n\n (a) an order declaring the whole or any part of a contract made between the respondent and a non‑party referred to in that subsection, or a collateral arrangement relating to such a contract:\n\n (i) to be void; and\n\n (ii) if the court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);\n\n (b) an order:\n\n (i) varying such a contract or arrangement in such manner as is specified in the order; and\n\n (ii) if the court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);\n\n (c) an order refusing to enforce any or all of the provisions of such a contract or arrangement;\n\n (d) an order directing the respondent to refund money or return property to a non‑party referred to in that subsection;\n\n (e) an order directing the respondent, at the respondent’s own expense, to supply specified services to a non‑party referred to in that subsection.","sortOrder":684},{"sectionNumber":"53ZQ","sectionType":"section","heading":"Schemes for avoidance purposes","content":"53ZQ  Schemes for avoidance purposes\n\nGeneral prohibition\n\n (1) A person contravenes this subsection if:\n\n (a) the person, either alone or with others, engages in any of the following conduct:\n\n (i) enters into a scheme;\n\n (ii) begins to carry out a scheme;\n\n (iii) carries out a scheme; and\n\n (b) having regard to any matters as required under subsection 53ZR(1), it would be reasonable to conclude that the purpose of the person engaging in that conduct was to avoid the application of a civil penalty provision of a gas market instrument.\n\nNote 1: For enforcement, see section 53ZK and Part VI.\n\nNote 2: See section 4F (references to purpose).\n\nConstitutional corporations\n\n (2) A constitutional corporation contravenes this subsection if:\n\n (a) the corporation, either alone or with other persons, engages in any of the following conduct:\n\n (i) enters into a scheme;\n\n (ii) begins to carry out a scheme;\n\n (iii) carries out a scheme; and\n\n (b) having regard to any matters as required under subsection 53ZR(1), it would be reasonable to conclude that the purpose of the corporation engaging in that conduct was to avoid the application of a civil penalty provision of a gas market instrument.\n\nNote: For enforcement, see section 53ZK and Part VI.\n\nConstitutional trade and commerce\n\n (3) A person contravenes this subsection if:\n\n (a) in the course of constitutional trade or commerce, the person, either alone or with others, engages in any of the following conduct:\n\n (i) enters into a scheme;\n\n (ii) begins to carry out a scheme;\n\n (iii) carries out a scheme; and\n\n (b) having regard to any matters as required under subsection 53ZR(1), it would be reasonable to conclude that the purpose of the person engaging in that conduct was to avoid the application of a civil penalty provision of a gas market instrument.\n\nNote: For enforcement, see section 53ZK and Part VI.\n\nProhibitions independent of each other\n\n (4) To avoid doubt, subsections (1), (2) and (3) are independent from and do not limit each other.\n\nNote: However, a person can be ordered to pay a pecuniary penalty under only one of those subsections in relation to the same conduct: see subsection 76(3).","sortOrder":686},{"sectionNumber":"53ZR","sectionType":"section","heading":"Whether it is reasonable to draw conclusion as to purpose","content":"53ZR  Whether it is reasonable to draw conclusion as to purpose\n\n (1) Regard must be had to any matters prescribed by the regulations for the purposes of this subsection in determining, for the purposes of section 53ZQ, whether it would be reasonable to conclude that the purpose of a person entering into or carrying out (to any extent) a scheme was to avoid the application of a civil penalty provision of a gas market instrument.\n\n (2) Subsection (1) does not limit the matters to which regard may be had in making a determination described in that subsection.","sortOrder":687},{"sectionNumber":"53ZS","sectionType":"section","heading":"This Subdivision does not limit Division 2","content":"53ZS  This Subdivision does not limit Division 2\n\n  This Subdivision does not limit a provision of Division 2.","sortOrder":688},{"sectionNumber":"53ZT","sectionType":"section","heading":"Commission may require person to provide information","content":"53ZT  Commission may require person to provide information\n\n (1) This section applies if a person is required to keep, to generate or to publish information or a document under a gas market instrument.\n\n (2) The Commission may give the person a written notice that requires the person to give the information, or to produce the document, to the Commission within a specified period and in a specified manner.\n\n (3) The notice must:\n\n (a) name the person to which it is given; and\n\n (b) specify:\n\n (i) the information or document to which it relates; and\n\n (ii) the provisions of the gas market instrument which require the person to keep, to generate or to publish the information or document; and\n\n (c) explain the effect of sections 53ZU, 53ZV and 53ZW.\n\n (4) The notice may relate to more than one piece of information or more than one document.","sortOrder":690},{"sectionNumber":"53ZU","sectionType":"section","heading":"Extending periods for complying with notices","content":"53ZU  Extending periods for complying with notices\n\n (1) A person who has been given a notice under section 53ZT may, at any time within the period within which the person must comply with the notice (as extended under any previous application of subsection (2) of this section), apply in writing to the Commission for an extension of the period for complying with the notice.\n\n (2) A member of the Commission may, by written notice given to the person, extend the period within which the person must comply with the notice.\n\n (3) Subsection (2) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a notice under section 53ZT of this Act.\n\nDelegation\n\n (4) A member of the Commission may, by writing, delegate the member’s powers under subsection (2) to a member of the staff of the Commission who is an SES employee or an acting SES employee.\n\nNote: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (5) In exercising a power under a delegation, the delegate must comply with any directions of the member.","sortOrder":691},{"sectionNumber":"53ZV","sectionType":"section","heading":"Compliance with notices","content":"53ZV  Compliance with notices\n\n  A person that is given a notice under section 53ZT must comply with it within:\n\n (a) the period specified in the notice; or\n\n (b) if the period for complying with the notice has been extended under section 53ZU—the period as so extended.\n\nNote: For enforcement, see section 53ZK and Part VI.","sortOrder":692},{"sectionNumber":"53ZW","sectionType":"section","heading":"False or misleading information etc.","content":"53ZW  False or misleading information etc.\n\n (1) A person must not, in compliance or purported compliance with a notice given under section 53ZT:\n\n (a) give to the Commission false or misleading information; or\n\n (b) produce to the Commission documents that contain false or misleading information.\n\nNote: For enforcement, see section 53ZK and Part VI.\n\n (2) This section does not apply to:\n\n (a) information that the person could not have known was false or misleading; or\n\n (b) the production to the Commission of a document containing false or misleading information if the document is accompanied by a statement of the person that the information is false or misleading.","sortOrder":693},{"sectionNumber":"53ZX","sectionType":"section","heading":"This Division does not limit other provisions","content":"53ZX  This Division does not limit other provisions\n\n  This Division does not limit:\n\n (a) a provision of Division 2; or\n\n (b) section 155 (which is about the general information‑gathering powers of the Commission).","sortOrder":694},{"sectionNumber":"53ZY","sectionType":"section","heading":"Certain provisions of this Act do not limit other provisions","content":"53ZY  Certain provisions of this Act do not limit other provisions\n\n (1) A provision to which subsection (3) applies does not limit the gas market provisions.\n\n (2) The gas market provisions do not limit a provision to which subsection (3) applies.\n\n (3) This subsection applies to:\n\n (a) Part IIIAA; and\n\n (b) Part IIIA; and\n\n (c) Part IVB; and\n\n (d) Part V; and\n\n (e) Part VIIA; and\n\n (f) Part XICA.","sortOrder":696},{"sectionNumber":"53ZZ","sectionType":"section","heading":"Concurrent operation of State and Territory laws","content":"53ZZ  Concurrent operation of State and Territory laws\n\n (1) Subject to subsection (2), the gas market provisions are not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with the gas market provisions.\n\n (2) A gas market instrument may provide that a gas market instrument, or a specified provision of a gas market instrument, excludes or limits the operation of a law of a State or Territory.","sortOrder":697},{"sectionNumber":"53ZZA","sectionType":"section","heading":"Constitution—application of gas market provisions","content":"53ZZA  Constitution—application of gas market provisions\n\n (1) The gas market provisions (other than Subdivision E of Division 3 of this Part) apply in relation to gas market conduct if the conduct:\n\n (a) is engaged in by a constitutional corporation; or\n\n (b) is engaged in, by a person who is not a constitutional corporation, in a way that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutional corporation; or\n\n (c) occurs in the course of, or in relation to, constitutional trade or commerce; or\n\n (d) is engaged in by an entity covered by subsection 53K(3).\n\nNote: Subsection 53K(3) covers Commonwealth government entities.\n\n (2) Section 6 (about the application of this Act to persons who are not corporations) does not apply in relation to the gas market provisions.","sortOrder":698},{"sectionNumber":"53ZZB","sectionType":"section","heading":"Constitution—acquisition of property","content":"53ZZB  Constitution—acquisition of property\n\n  The gas market provisions have no effect to the extent (if any) to which their operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).","sortOrder":699},{"sectionNumber":"53ZZC","sectionType":"section","heading":"Regulations referring to other instruments","content":"53ZZC  Regulations referring to other instruments\n\n (1) Regulations (other than a gas market code) made for the purposes of a provision of this Part may make provision in relation to a matter by applying, adopting or incorporating (with or without modification) any matter contained in any other instrument or writing:\n\n (a) as in force or existing at a particular time; or\n\n (b) as in force or existing from time to time.\n\nNote: For a gas market code, see subsection 53ZE(1).\n\n (2) Subsection (1) has effect despite subsection 14(2) of the Legislation Act 2003.","sortOrder":700},{"sectionNumber":"Part IVC","sectionType":"part","heading":"Payment surcharges","content":"Part IVC—Payment surcharges","sortOrder":701},{"sectionNumber":"55","sectionType":"section","heading":"Object of this Part","content":"55  Object of this Part\n\n  The object of this Part is to ensure that payment surcharges:\n\n (a) are not excessive; and\n\n (b) reflect the cost of using the payment methods for which they are charged.","sortOrder":703},{"sectionNumber":"55A","sectionType":"section","heading":"Definitions","content":"55A  Definitions\n\n  In this Part:\n\nexcessive, in relation to a payment surcharge, has the meaning given by subsection 55B(2).\n\ninfringement notice compliance period has the meaning given by subsection 55M(1).\n\nlisted corporation has the meaning given by section 9 of the Corporations Act 2001.\n\npayment surcharge means:\n\n (a) an amount charged, in addition to the price of goods or services, for processing payment for the goods or services; or\n\n (b) an amount (however described) charged for using one payment method rather than another.\n\npayment system standard means a standard determined under section 18 of the Payment Systems (Regulation) Act 1998.\n\nsurcharge information notice has the meaning given by subsection 55C(3).\n\nsurcharge participant has the meaning given by subsection 55C(2).","sortOrder":704},{"sectionNumber":"55B","sectionType":"section","heading":"Payment surcharges must not be excessive","content":"55B  Payment surcharges must not be excessive\n\n (1) A corporation must not, in trade or commerce, charge a payment surcharge that is excessive.\n\n (2) A payment surcharge is excessive if:\n\n (a) the surcharge is for a kind of payment covered by:\n\n (i) a payment system standard; or\n\n (ii) regulations made for the purposes of this subparagraph; and\n\n (b) the amount of the surcharge exceeds the permitted surcharge referred to in the payment system standard or the regulations.\n\n (3) Subsection (1) does not apply to a corporation who is exempted from its operation by the regulations.","sortOrder":706},{"sectionNumber":"55C","sectionType":"section","heading":"Surcharge information notices","content":"55C  Surcharge information notices\n\n (1) The Commission may, by written notice given to a surcharge participant, require the participant to give to the Commission information or documents evidencing either or both of the following:\n\n (a) the amount of a payment surcharge;\n\n (b) the cost of processing a payment in relation to which a payment surcharge was paid.\n\n (2) A corporation is a surcharge participant if, in trade or commerce, the corporation:\n\n (a) charges a payment surcharge; or\n\n (b) processes a payment for which a payment surcharge is charged.\n\n (3) The notice given by the Commission to the surcharge participant is a surcharge information notice.\n\n (4) The surcharge information notice must specify:\n\n (a) the kinds of information or documents to be given to the Commission; and\n\n (b) the period for giving the information or documents.","sortOrder":708},{"sectionNumber":"55D","sectionType":"section","heading":"Extending periods for complying with notices","content":"55D  Extending periods for complying with notices\n\n (1) A surcharge participant that has been given a notice under section 55C may, at any time within 21 days after the notice was given to the participant, apply in writing to the Commission for an extension of the period for complying with the notice.\n\n (2) The Commission may, by written notice given to the surcharge participant, extend the period within which the participant must comply with the notice.","sortOrder":709},{"sectionNumber":"55E","sectionType":"section","heading":"Participant must comply with notice","content":"55E  Participant must comply with notice\n\n (1) A surcharge participant commits an offence if:\n\n (a) the surcharge participant is given a surcharge information notice; and\n\n (b) the surcharge participant fails to comply with the notice within the period for so complying.\n\nPenalty: 30 penalty units.\n\n (2) Subsection (1) is an offence of strict liability.\n\nNote: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.","sortOrder":710},{"sectionNumber":"55F","sectionType":"section","heading":"Purpose and effect of this Division","content":"55F  Purpose and effect of this Division\n\n (1) The purpose of this Division is to provide for the issue of an infringement notice to a person for an alleged contravention of section 55B as an alternative to proceedings for an order under section 76 for the payment of a pecuniary penalty.\n\n (2) This Division does not:\n\n (a) require an infringement notice to be issued to a person for an alleged contravention of section 55B; or\n\n (b) affect the liability of a person to proceedings under section 76 in relation to an alleged contravention of section 55B if:\n\n (i) an infringement notice is not issued to the person for the contravention; or\n\n (ii) an infringement notice issued to the person for the contravention is withdrawn under section 55N; or\n\n (c) prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice.","sortOrder":712},{"sectionNumber":"55G","sectionType":"section","heading":"Issuing an infringement notice","content":"55G  Issuing an infringement notice\n\n (1) If the Commission has reasonable grounds to believe that a person has contravened section 55B, the Commission may issue an infringement notice to the person.\n\n (2) The Commission must not issue more than one infringement notice to the person for the same alleged contravention of section 55B.\n\n (3) The infringement notice does not have any effect if the notice:\n\n (a) is issued more than 12 months after the day that the contravention of section 55B is alleged to have occurred; or\n\n (b) relates to more than one alleged contravention of section 55B by the person.","sortOrder":713},{"sectionNumber":"55H","sectionType":"section","heading":"Matters to be included in an infringement notice","content":"55H  Matters to be included in an infringement notice\n\n (1) An infringement notice must:\n\n (a) be identified by a unique number; and\n\n (b) state the day on which it is issued; and\n\n (c) state the name and address of the person to whom it is issued; and\n\n (d) identify the Commission and state how it may be contacted; and\n\n (e) give details of the alleged contravention, including the day of the alleged contravention; and\n\n (f) state the maximum pecuniary penalty that the court could order the person to pay under section 76 for the alleged contravention; and\n\n (g) specify the penalty that is payable in relation to the alleged contravention; and\n\n (h) state that the penalty is payable within the infringement notice compliance period for the notice; and\n\n (i) state that the penalty is payable to the Commission on behalf of the Commonwealth; and\n\n (j) explain how payment of the penalty is to be made; and\n\n (k) explain the effect of sections 55K, 55L, 55M and 55N.","sortOrder":714},{"sectionNumber":"55J","sectionType":"section","heading":"Amount of penalty","content":"55J  Amount of penalty\n\n  The penalty to be specified in an infringement notice that is to be issued to a person in relation to an alleged contravention of section 55B must be:\n\n (a) if the person is a listed corporation—600 penalty units; or\n\n (b) if the person is a body corporate other than a listed corporation—60 penalty units; or\n\n (c) if the person is not a body corporate—12 penalty units.","sortOrder":715},{"sectionNumber":"55K","sectionType":"section","heading":"Effect of compliance with an infringement notice","content":"55K  Effect of compliance with an infringement notice\n\n (1) This section applies if:\n\n (a) an infringement notice for an alleged contravention of section 55B is issued to a person; and\n\n (b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and\n\n (c) the infringement notice is not withdrawn under section 55N.\n\n (2) The person is not, merely because of the payment, regarded as having contravened section 55B.\n\n (3) No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to the alleged contravention of section 55B.","sortOrder":716},{"sectionNumber":"55L","sectionType":"section","heading":"Effect of failure to comply with an infringement notice","content":"55L  Effect of failure to comply with an infringement notice\n\n  If:\n\n (a) an infringement notice for an alleged contravention of section 55B is issued to a person; and\n\n (b) the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and\n\n (c) the infringement notice is not withdrawn under section 55N;\n\nthe person is liable to proceedings under section 76 in relation to the alleged contravention of section 55B.","sortOrder":717},{"sectionNumber":"55M","sectionType":"section","heading":"Infringement notice compliance period for infringement notice","content":"55M  Infringement notice compliance period for infringement notice\n\n (1) Subject to this section, the infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day that the infringement notice is issued by the Commission.\n\n (2) The Commission may extend, by notice in writing, the infringement notice compliance period for the infringement notice if the Commission is satisfied that it is appropriate to do so.\n\n (3) Only one extension may be given and the extension must not be for longer than 28 days.\n\n (4) Notice of the extension must be given to the person who was issued the infringement notice.\n\n (5) A failure to comply with subsection (4) does not affect the validity of the extension.\n\n (6) If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.","sortOrder":718},{"sectionNumber":"55N","sectionType":"section","heading":"Withdrawal of an infringement notice","content":"55N  Withdrawal of an infringement notice\n\nRepresentations to the Commission\n\n (1) A person to whom an infringement notice has been issued for an alleged contravention of section 55B may make written representations to the Commission seeking the withdrawal of the infringement notice.\n\n (2) Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).\n\nWithdrawal by the Commission\n\n (3) The Commission may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so.\n\n (4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal.\n\nContent of withdrawal notices\n\n (5) The withdrawal notice must state:\n\n (a) the name and address of the person; and\n\n (b) the day on which the infringement notice was issued to the person; and\n\n (c) that the infringement notice is withdrawn; and\n\n (d) that proceedings under section 76 may be started or continued against the person in relation to the alleged contravention of section 55B.\n\nTime limit for giving withdrawal notices\n\n (6) To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice.\n\nRefunds\n\n (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.","sortOrder":719},{"sectionNumber":"Part IVD","sectionType":"part","heading":"Consumer data right","content":"Part IVD—Consumer data right","sortOrder":720},{"sectionNumber":"56AA","sectionType":"section","heading":"Object of this Part","content":"56AA  Object of this Part\n\n  The object of this Part is:\n\n (a) to enable consumers in certain sectors of the Australian economy to require information relating to themselves in those sectors to be disclosed safely, efficiently and conveniently:\n\n (i) to themselves for use as they see fit; or\n\n (ii) to accredited persons for use subject to privacy safeguards; and\n\n (b) to enable any person to efficiently and conveniently access information in those sectors that:\n\n (i) is about goods (such as products) or services; and\n\n (ii) does not relate to any identifiable, or reasonably identifiable, consumers; and\n\n (ba) to enable consumers in those sectors to request accredited persons to give instructions:\n\n (i) safely, efficiently and conveniently on behalf of the consumers; and\n\n (ii) to service providers in those sectors;\n\n  for the performance of actions; and\n\n (c) as a result of paragraphs (a) to (ba), to create more choice and competition, or to otherwise promote the public interest.","sortOrder":723},{"sectionNumber":"56AB","sectionType":"section","heading":"Simplified outline","content":"56AB  Simplified outline\n\nRules made under this Part may:\n\n (a) enable consumers in certain sectors of the Australian economy to require information relating to themselves in those sectors to be disclosed to themselves or to accredited persons; and\n\n (b) enable any person to be disclosed information in those sectors that is about goods (such as products) or services, and does not relate to any identifiable, or reasonably identifiable, consumers; and\n\n (c) enable consumers in those sectors to request accredited persons to give instructions on behalf of the consumers to service providers in those sectors for the performance of actions; and\n\n (d) require these kinds of disclosures and other things to be done, and these kinds of instructions to be given, in accordance with data standards.\n\nThis Part regulates the instruction layer associated with instructions for the performance of actions, which includes regulating requests for instructions, the giving of instructions, and how service providers process instructions.\n\nA service provider given an instruction under the rules to perform an action must do so if the provider ordinarily performs actions of that type in the course of its business. Otherwise, this Part contains little regulation of the action layer (that is, regulating how service providers perform actions they are instructed to do). For example, the provider can perform the action, and charge any fees, in the way it ordinarily does.\n\nA register is to be kept of accredited persons.\n\nPrivacy safeguards apply. These mainly apply to accredited persons who, under those rules, are disclosed information relating to identifiable, or reasonably identifiable, consumers.","sortOrder":724},{"sectionNumber":"56AC","sectionType":"section","heading":"Designated sectors subject to the consumer data right","content":"56AC  Designated sectors subject to the consumer data right\n\nDesignating a sector\n\n (1) A designated sector means a sector of the Australian economy designated under subsection (2).\n\n (2) The Minister may, by legislative instrument, designate a sector of the Australian economy by specifying:\n\n (a) classes of information (the designated information); and\n\n (b) persons who hold information within those classes of information (or on whose behalf such information is held); and\n\n (c) the earliest day (the earliest holding day) applicable to the sector for holding the designated information; and\n\n (d) each of the classes of information within the designated information for which a person may charge a fee if:\n\n (i) the person is required under the consumer data rules to disclose information within that class to another person in specified circumstances; or\n\n (ii) another person uses information within that class in specified circumstances as the result of a disclosure required of the first‑mentioned person under the consumer data rules; and\n\n (e) if the sector is to have one or more gateways:\n\n (i) the particular persons who are gateways; and\n\n (ii) for each of those persons, the classes of information within the designated information for which the person is a gateway.\n\nNote 1: The persons specified under paragraph (b):\n\n(a) may be specified by class (see subsection 13(3) of the Legislation Act 2003); and\n\n(b) will be holders of the information, rather than the consumers to whom the information relates; and\n\n(c) may not be the only holders of the information who can be required to disclose it under the consumer data rules (see section 56AJ (about the meaning of data holder)).\n\nNote 2: While a class of information specified under paragraph (d) or (e) needs to be of the information specified under paragraph (a), it need not be the same class as a class specified under paragraph (a).\n\nNote 3: Subparagraph (e)(i) allows only particular persons to be specified, not classes of persons.\n\nNote 4: For variation and repeal, see subsection 33(3) of the Acts Interpretation Act 1901.\n\nGeographical limitation on information that can be designated\n\n (3) Despite paragraph (2)(a), treat a class of information specified as described in that paragraph as only including so much of the information in that class as:\n\n (a) has at any time been generated or collected wholly or partly in Australia or the external Territories, and:\n\n (i) has been so generated or collected by (or on behalf of) one or more Australian persons; or\n\n (ii) relates to one or more Australian persons (other than the persons who so generated or collected it); or\n\n (iii) relates to goods or services supplied, or offered for supply, to one or more Australian persons; or\n\n (b) has only ever been generated and collected outside of Australia and the external Territories, and:\n\n (i) has been so generated or collected by (or on behalf of) one or more Australian persons; and\n\n (ii) relates to one or more Australian persons (other than the persons who so generated or collected it), or relates to goods or services supplied, or offered for supply, to one or more Australian persons.\n\nIn this subsection, Australian person has the same meaning as in subsection 56AO(5).\n\nLimitation on the earliest holding day\n\n (4) While the earliest holding day may be before the day the instrument under subsection (2) is made, the earliest holding day must not be earlier than the first day of the calendar year that is 2 years before the calendar year in which that instrument is made.\n\nExample: The instrument is made on 1 July 2020. The earliest holding day could be 1 January 2018, but not before.\n\nNote: The earliest holding day helps to work out if a person is a data holder of information specified under paragraph (2)(a), and so whether that information is subject to the consumer data right.","sortOrder":726},{"sectionNumber":"56ACA","sectionType":"section","heading":"Declared types of actions that can be initiated under the consumer data rules","content":"56ACA  Declared types of actions that can be initiated under the consumer data rules\n\n  The Minister may, by legislative instrument, declare:\n\n (a) one or more types of actions for which an instruction may be given under the consumer data rules; and\n\n (b) for each of those action types—the classes of data holders, of CDR data, that are to be action service providers for that type of action.\n\nNote: The classes of data holders specified for an action type will have no choice about being action service providers for that action type.","sortOrder":727},{"sectionNumber":"56AD","sectionType":"section","heading":"Minister’s tasks before designating a sector or declaring actions etc.","content":"56AD  Minister’s tasks before designating a sector or declaring actions etc.\n\n (1) Before making an instrument under subsection 56AC(2) or section 56ACA, the Minister must consider all of the following:\n\n (a) the likely effect of making the instrument on:\n\n (i) the interests of consumers; and\n\n (ii) the efficiency of relevant markets; and\n\n (iii) the privacy or confidentiality of consumers’ information; and\n\n (iv) promoting competition; and\n\n (v) promoting data‑driven innovation; and\n\n (vi) any intellectual property in the information, or relating to the types of actions, to be covered by the instrument; and\n\n (vii) the public interest;\n\n (b) the likely regulatory impact of allowing the consumer data rules to impose requirements relating to the information, or types of actions, to be covered by the instrument;\n\n (c) for an instrument under subsection 56AC(2)—the following matters when considering whether to specify a class of information, as described in paragraph 56AC(2)(d), in the instrument:\n\n (i) whether not specifying that class could result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph);\n\n (ii) whether holders of information within that class currently charge a fee for disclosing such information;\n\n (iii) whether the incentive to generate, collect, hold or maintain information within that class would be reduced if that class were not so specified;\n\n (iv) the marginal cost of the disclosures required under the consumer data rules of information within that class;\n\n (d) for an instrument under subsection 56AC(2)—whether one or more gateways need to be specified in the instrument in order to facilitate access to the information to be covered by the instrument;\n\n (e) any other matters the Minister considers relevant.\n\nNote: The consumers could be individuals or other persons such as companies (see also subsection 56AI(4)).\n\n (2) Before making an instrument under subsection 56AC(2) or section 56ACA, the Minister must:\n\n (a) be satisfied that the Secretary of the Department has complied with section 56AE in relation to the making of the instrument; and\n\n (b) wait at least 60 days after the day the Secretary publishes the report relating to the making of the instrument (see section 56AE).\n\n (3) Before making an instrument under subsection 56AC(2) or section 56ACA, the Minister must consult the Information Commissioner about the likely effect of making the instrument on the privacy or confidentiality of consumers’ information.","sortOrder":728},{"sectionNumber":"56AE","sectionType":"section","heading":"Secretary must arrange for analysis, consultation and report about an instrument proposing to designate a sector or declare actions","content":"56AE  Secretary must arrange for analysis, consultation and report about an instrument proposing to designate a sector or declare actions\n\n (1) The Secretary of the Department complies with this section in relation to the making of an instrument under subsection 56AC(2) or section 56ACA if the Secretary arranges for all of the following:\n\n (a) an analysis of the matters in paragraphs 56AD(1)(a) to (e) in relation to the instrument;\n\n (b) public consultation about those matters in relation to the instrument:\n\n (i) for at least 28 days; and\n\n (ii) in one or more ways that include making information available on the Department’s website and inviting the public to comment;\n\n (c) consultation with each of the following about those matters in relation to the instrument:\n\n (i) the Commission;\n\n (ii) the Information Commissioner;\n\n (iii) for an instrument under subsection 56AC(2)—the person or body (if any) that the Secretary believes to be the primary regulator of the sector that the instrument would designate;\n\n (iiia) for an instrument under section 56ACA—a person or body (if any) that the Secretary believes to be a regulator of a type of actions that the instrument would declare;\n\n (iv) any person or body prescribed by the regulations;\n\n (d) the preparation of a report for the Minister about that analysis and consultation.\n\n (2) The Secretary must publish the report on the Department’s website.","sortOrder":729},{"sectionNumber":"56AEA","sectionType":"section","heading":"Commission must analyse an instrument proposing to designate a sector or declare actions","content":"56AEA  Commission must analyse an instrument proposing to designate a sector or declare actions\n\n  When the Commission is consulted under subparagraph 56AE(1)(c)(i), the Commission must analyse the matters in paragraphs 56AD(1)(a) to (d) in relation to the instrument.","sortOrder":730},{"sectionNumber":"56AF","sectionType":"section","heading":"Information Commissioner must analyse and report about an instrument proposing to designate a sector or declare actions","content":"56AF  Information Commissioner must analyse and report about an instrument proposing to designate a sector or declare actions\n\n (1) When the Information Commissioner is consulted under subsection 56AD(3), the Information Commissioner must:\n\n (a) analyse the likely effect of making the instrument on the privacy or confidentiality of consumers’ information; and\n\n (b) report to the Minister about that analysis.\n\n (2) The Information Commissioner must publish the report on the Information Commissioner’s website, except for any excluded part of the report.\n\n (3) In deciding whether or not to exclude a part of the report from publication, the Information Commissioner must:\n\n (a) have regard to the need to prevent the matters in subsection 33(2) of the Privacy Act 1988; and\n\n (b) try to achieve an appropriate balance between the need to prevent those matters and the desirability of ensuring that interested persons are sufficiently informed of the Information Commissioner’s analysis in the report.","sortOrder":731},{"sectionNumber":"56AH","sectionType":"section","heading":"Other matters","content":"56AH  Other matters\n\n  A failure to comply with section 56AD, 56AE, 56AEA or 56AF does not invalidate an instrument made under subsection 56AC(2) or section 56ACA.","sortOrder":732},{"sectionNumber":"56AI","sectionType":"section","heading":"Meanings of CDR data, directly or indirectly derived and CDR consumer","content":"56AI  Meanings of CDR data, directly or indirectly derived and CDR consumer\n\nMeaning of CDR data\n\n (1) CDR data is:\n\n (a) information that is within a class of information specified, as described in paragraph 56AC(2)(a), in an instrument designating a sector under subsection 56AC(2); or\n\n (aa) information that:\n\n (i) relates to a CDR consumer for a CDR action; and\n\n (ii) an accredited action initiator for CDR actions of that type is authorised by the consumer data rules to use, or disclose, to prepare or give a valid instruction for the performance of the CDR action on behalf of the CDR consumer; or\n\n (b) information that is not covered by paragraph (a) or (aa) of this subsection, but is wholly or partly derived from information covered by:\n\n (i) paragraph (a) or (aa) of this subsection; or\n\n (ii) a previous application of this paragraph.\n\nNote 1: Geographical limitations may cause some information within a class specified as described in paragraph 56AC(2)(a) to be disregarded (see subsection 56AC(3)), which means it will not be CDR data.\n\nNote 2: Information covered by paragraph (b) includes information derived from information covered by paragraph (a) or (aa), information derived from that derived information, and so on.\n\nNote 3: Information covered by paragraph (b), for which there is a CDR consumer, cannot be required to be disclosed under the consumer data rules (see subsection 56BD(1)).\n\nNote 4: Only certain kinds of CDR data for which there are no CDR consumers (also known as product data) can be required to be disclosed under the consumer data rules (see subsection 56BF(1)).\n\nMeaning of directly or indirectly derived\n\n (2) CDR data is directly or indirectly derived from other CDR data if the first‑mentioned CDR data is wholly or partly derived from the other CDR data after one or more applications of paragraph (1)(b).\n\nMeaning of CDR consumer for CDR data\n\n (3) A person is a CDR consumer for CDR data if:\n\n (a) the CDR data relates to the person because:\n\n (i) of the supply of a good or service to the person or to one or more of the person’s associates (within the meaning of section 318 of the Income Tax Assessment Act 1936); or\n\n (ii) of circumstances of a kind prescribed by the regulations; and\n\n (b) the CDR data is held by another person who:\n\n (i) is a data holder of the CDR data; or\n\n (ii) is an accredited data recipient of the CDR data; or\n\n (iia) is holding the CDR data as an action service provider for a type of CDR action; or\n\n (iii) is holding the CDR data on behalf of a person mentioned in subparagraph (i), (ii) or (iia); and\n\n (c) the person is identifiable, or reasonably identifiable, from:\n\n (i) the CDR data; or\n\n (ii) other information held by the other person referred to in paragraph (b); and\n\n (d) none of the exclusions (if any) prescribed by the regulations apply to the first‑mentioned person in relation to the CDR data.\n\nMeaning of CDR consumer for a CDR action\n\n (3A) A person is a CDR consumer for a CDR action if:\n\n (a) the performance of the CDR action:\n\n (i) is for the person; or\n\n (ii) relates to the person because of circumstances of a kind prescribed by the regulations; and\n\n (b) the performance of the CDR action is not for the person as:\n\n (i) an accredited action initiator for CDR actions of that type; or\n\n (ii) an action service provider for CDR actions of that type; and\n\n (c) none of the exclusions (if any) prescribed by the regulations apply to the person in relation to the CDR action.\n\nExample: Assume X and Y are both accredited action initiators, and Y gives a valid instruction for the performance of a CDR action (that relates to the supply of accounting services) on X’s behalf. X will be a CDR consumer for the CDR action, but Y will not be because of paragraph (b).\n\nOther definitions of consumer do not apply for this Part\n\n (4) Section 4B (about consumers) does not apply to this Part.","sortOrder":734},{"sectionNumber":"56AJ","sectionType":"section","heading":"Meaning of data holder","content":"56AJ  Meaning of data holder\n\n (1) A person is a data holder, of CDR data, if:\n\n (a) the CDR data:\n\n (i) is information within a class of information specified, as described in paragraph 56AC(2)(a), in an instrument designating a sector under subsection 56AC(2) (the designation instrument); or\n\n (ii) is directly or indirectly derived from information covered by subparagraph (i); and\n\n (b) the CDR data is held by (or on behalf of) the person on or after the earliest holding day specified in the designation instrument; and\n\n (ba) in the case of the CDR data beginning to be held by (or on behalf of) the person before that earliest holding day, the CDR data:\n\n (i) is of continuing use and relevance; and\n\n (ii) is not about the provision before that earliest holding day of a product or service by (or on behalf of) the person; and\n\n (c) the person is not a designated gateway for the CDR data; and\n\n (d) subsection (2), (3), (3A), (4) or (5) applies to the person and the CDR data.\n\nNote 1: Geographical limitations may cause some information within a class specified as described in paragraph 56AC(2)(a) to be disregarded (see subsection 56AC(3)), which means it will not be CDR data.\n\nNote 2: For a product or service that the person began providing before the earliest holding day and continued providing after that day:\n\n(a) subparagraph (ba)(ii) means the person will not be the data holder of CDR data about the person’s provision of the product or service before that day; but\n\n(b) the person will be the data holder of CDR data about the person’s provision of the product or service on or after that day.\n\nFirst case—person is specified in the designation instrument and data not disclosed to the person under the consumer data rules\n\n (2) This subsection applies to a person and CDR data if:\n\n (a) the person, or a class of persons to which the person belongs, is specified, as described in paragraph 56AC(2)(b), in the designation instrument as holding a class of information to which the CDR data belongs; and\n\n (b) neither the CDR data, nor any other CDR data from which it was directly or indirectly derived, was disclosed to the person under the consumer data rules.\n\nSecond case—reciprocity arising from the person being disclosed other CDR data under the consumer data rules\n\n (3) This subsection applies to a person and CDR data if:\n\n (a) neither the CDR data, nor any other CDR data from which it was directly or indirectly derived, was disclosed to the person under the consumer data rules; and\n\n (b) the person is an accredited data recipient of other CDR data; and\n\n (c) the conditions (if any) specified in the consumer data rules are met.\n\nNote 1: Paragraph (b) is referring to other CDR data not covered by paragraph (a).\n\nNote 2: The other CDR data referred to in paragraph (b) could be within a class of information specified in another instrument designating a different sector under subsection 56AC(2).\n\nThird case—reciprocity arising from the person being a voluntary action service provider for a type of CDR action\n\n (3A) This subsection applies to a person and CDR data if:\n\n (a) neither the CDR data, nor any other CDR data from which it was directly or indirectly derived, was disclosed to the person under the consumer data rules; and\n\n (b) the designation instrument (see subsection (1)) also specifies, as described in paragraph 56AC(2)(b), a class of persons (the core data holders) as holding a class of information to which the CDR data belongs; and\n\n (c) the person is not a core data holder, but is a voluntary action service provider for a type of CDR action; and\n\n (d) the classes of data holders declared in the CDR declaration for that type of CDR action include the core data holders; and\n\n (e) the conditions (if any) specified in the consumer data rules are met.\n\nNote 1: The CDR data needs to be held by (or on behalf of) the person (see paragraph (1)(b)).\n\nNote 2: The core data holders are data holders because of subsection (2).\n\nFourth case—person is an accredited person and conditions in the consumer data rules are met\n\n (4) This subsection applies to a person and CDR data if:\n\n (a) the person is an accredited person; and\n\n (b) the CDR data, or any other CDR data from which it was directly or indirectly derived, was disclosed to the person under the consumer data rules; and\n\n (c) the conditions specified in the consumer data rules are met.\n\nFifth case—person is specified in the designation instrument and conditions in the consumer data rules are met\n\n (5) This subsection applies to a person and CDR data if:\n\n (a) the person, or a class of persons to which the person belongs, is specified, as described in paragraph 56AC(2)(b), in the designation instrument as holding a class of information to which the CDR data belongs; and\n\n (b) the CDR data, or any other CDR data from which it was directly or indirectly derived, was disclosed to the person under the consumer data rules; and\n\n (c) the conditions specified in the consumer data rules are met.","sortOrder":735},{"sectionNumber":"56AK","sectionType":"section","heading":"Meaning of accredited data recipient","content":"56AK  Meaning of accredited data recipient\n\n (1) A person is an accredited data recipient, of CDR data, if:\n\n (a) the person is an accredited person; and\n\n (b) the CDR data is held by (or on behalf of) the person; and\n\n (c) the CDR data, or any other CDR data from which it was directly or indirectly derived, either:\n\n (i) was disclosed to the person under the consumer data rules; or\n\n (ii) is covered by subsection (2) for the person; and\n\n (d) the person is neither a data holder, nor a designated gateway, for the first‑mentioned CDR data; and\n\n (e) the first‑mentioned CDR data is not being held by (or on behalf of) the person as an action service provider for a type of CDR action.\n\nNote: For paragraph (d), the person will be a data holder of that CDR data if subsection 56AJ(4) applies.\n\n (2) This subsection covers CDR data for a person if:\n\n (a) the CDR data is information that relates to a CDR consumer for a CDR action; and\n\n (b) the person is authorised by the consumer data rules to use or disclose that information to prepare or give a valid instruction for the performance of the CDR action on behalf of the CDR consumer.\n\nNote: This CDR data is information that is CDR data because of paragraph 56AI(1)(aa). Paragraph 56BGA(1)(d) ensures the rules can give the authorisation referred to in paragraph (b) of this subsection.","sortOrder":736},{"sectionNumber":"56AL","sectionType":"section","heading":"Meanings of CDR participant and designated gateway","content":"56AL  Meanings of CDR participant and designated gateway\n\n (1) A CDR participant, for CDR data, is a data holder, or an accredited data recipient, of the CDR data.\n\n (2) A person is a designated gateway, for CDR data, if:\n\n (a) the person is specified as a gateway, as described in subparagraph 56AC(2)(e)(i), in an instrument designating a sector under subsection 56AC(2); and\n\n (b) the CDR data is information within a class, specified in that instrument, for which the person is a gateway; and\n\n (c) the CDR data is, or is to be, disclosed to the person under the consumer data rules because the person is:\n\n (i) acting as described in a subparagraph of paragraph 56BG(1)(a) or (b); or\n\n (ii) if there are no consumers for the CDR data—acting between a CDR participant for the CDR data and a person requesting a disclosure of the CDR data;\n\n  and not because the person is an accredited person or a CDR consumer for the CDR data.","sortOrder":737},{"sectionNumber":"56AM","sectionType":"section","heading":"Meanings of chargeable CDR data, chargeable circumstances and fee-free CDR data","content":"56AM  Meanings of chargeable CDR data, chargeable circumstances and fee‑free CDR data\n\n (1) CDR data is chargeable CDR data if the CDR data is information within a class specified, as described in paragraph 56AC(2)(d), in an instrument designating a sector under subsection 56AC(2) (the designation instrument).\n\n (2) The chargeable CDR data is disclosed in chargeable circumstances if it is disclosed in circumstances specified:\n\n (a) for that class of information; and\n\n (b) as described in subparagraph 56AC(2)(d)(i);\n\nin the designation instrument.\n\n (3) The chargeable CDR data is used in chargeable circumstances if it is used in circumstances specified:\n\n (a) for that class of information; and\n\n (b) as described in subparagraph 56AC(2)(d)(ii);\n\nin the designation instrument.\n\n (4) CDR data is fee‑free CDR data if:\n\n (a) the consumer data rules require it to be disclosed; and\n\n (b) it is not chargeable CDR data.","sortOrder":738},{"sectionNumber":"56AMA","sectionType":"section","heading":"Meanings of CDR action and CDR declaration","content":"56AMA  Meanings of CDR action and CDR declaration\n\n (1) A CDR action is an action of a type declared under section 56ACA.\n\n (2) A CDR declaration, for a type of CDR action, is the declaration under section 56ACA that declares actions of that type.","sortOrder":739},{"sectionNumber":"56AMB","sectionType":"section","heading":"Meanings of action service provider and voluntary action service provider","content":"56AMB  Meanings of action service provider and voluntary action service provider\n\n (1) A person is an action service provider, for a type of CDR action, if the person:\n\n (a) is within a class of data holders (of CDR data) declared in the CDR declaration for that type of CDR action; or\n\n (b) is a voluntary action service provider for that type of CDR action.\n\nNote 1: A data holder covered by paragraph (a) has no choice about being an action service provider for CDR actions of that type.\n\nNote 2: A data holder covered by paragraph (a) for one or more types of CDR actions will not be an action service provider for any other type of CDR action unless the data holder chooses to apply to be a voluntary action service provider.\n\n (2) A person is a voluntary action service provider, for a type of CDR action, if:\n\n (a) paragraph (1)(a) does not apply to the person for that type of CDR action; and\n\n (b) the person holds an approval, of the kind described in subsection 56BHA(1), under the consumer data rules for that type of CDR action.\n\nNote: The person will need to have applied to be approved as an action service provider for CDR actions of that type (see subsection 56BHA(1)).","sortOrder":740},{"sectionNumber":"56AMC","sectionType":"section","heading":"Meaning of accredited action initiator","content":"56AMC  Meaning of accredited action initiator\n\n  A person is an accredited action initiator for a type of CDR action if:\n\n (a) the person is an accredited person; and\n\n (b) the person’s accreditation authorises the person to initiate that type of CDR action.\n\nNote 1: The consumer data rules may include rules about accreditation, including about different levels of accreditation (see subsection 56BH(1)).\n\nNote 2: The Register of Accredited Persons may include information about what a person’s level of accreditation authorises the person to do (see section 56CE).","sortOrder":741},{"sectionNumber":"56AMD","sectionType":"section","heading":"Meaning of CDR action participant","content":"56AMD  Meaning of CDR action participant\n\n  A CDR action participant is an action service provider, or an accredited action initiator, for one or more types of CDR actions.","sortOrder":742},{"sectionNumber":"56AN","sectionType":"section","heading":"Extension to external Territories","content":"56AN  Extension to external Territories\n\n  Each of the following provisions (the CDR provisions) extends to every external Territory:\n\n (a) a provision of this Part;\n\n (b) a provision of the regulations made for the purposes of a provision of this Part;\n\n (c) a provision of the consumer data rules;\n\n (ca) a provision of any other instrument made under this Part;\n\n (d) another provision of this Act to the extent that it relates to a provision covered by paragraph (a), (b), (c) or (ca);\n\n (e) a provision of the Regulatory Powers Act to the extent that it applies in relation to a provision of this Part;\n\n (f) a provision of the Privacy Act 1988 to the extent that it applies as described in section 56ES or 56ET of this Act.","sortOrder":744},{"sectionNumber":"56AO","sectionType":"section","heading":"Extraterritorial operation of the CDR provisions","content":"56AO  Extraterritorial operation of the CDR provisions\n\nCDR provisions generally apply inside and outside Australia\n\n (1) Subject to subsections (2) to (3B), the CDR provisions extend to acts, omissions, matters and things outside Australia.\n\nCDR provisions apply for CDR data held inside Australia\n\n (2) To the extent that the CDR provisions have effect in relation to CDR data held within Australia, the CDR provisions apply in relation to all persons (including foreign persons).\n\nCDR provisions can apply for CDR data held outside Australia\n\n (3) To the extent that the CDR provisions have effect in relation to an act, or omission, relating to CDR data held outside Australia, the CDR provisions only apply if:\n\n (a) the act or omission is by (or on behalf of) an Australian person; or\n\n (b) the act or omission occurs wholly or partly in Australia, or wholly or partly on board an Australian aircraft or an Australian ship; or\n\n (c) the act or omission occurs wholly outside Australia, and an Australian person suffers, or is likely to suffer, financial or other disadvantage as a result of the act or omission.\n\nCDR provisions apply for CDR actions to be performed inside Australia\n\n (3A) To the extent that the CDR provisions have effect in relation to a CDR action to be performed within Australia, the CDR provisions apply in relation to all persons (including foreign persons).\n\nExample: Requirements in the consumer data rules relating to giving a valid instruction for the performance of a CDR action within Australia can apply to the accredited action initiator for the CDR action even if the accredited action initiator is a foreign person.\n\nCDR provisions can apply for CDR actions to be performed outside Australia\n\n (3B) To the extent that the CDR provisions have effect in relation to an act, or omission, relating to a CDR action to be performed outside Australia, the CDR provisions only apply if:\n\n (a) the act or omission is by (or on behalf of) an Australian person; or\n\n (b) the act or omission occurs wholly or partly in Australia, or wholly or partly on board an Australian aircraft or an Australian ship.\n\nExample: Requirements in the consumer data rules relating to giving a valid instruction for the performance of a CDR action outside Australia can apply to the accredited action initiator for the CDR action if the accredited action initiator is an Australian person.\n\nInterpretation\n\n (4) For the purposes of subsection (3) or (3B), if a person’s act or omission includes sending, omitting to send, causing to be sent or omitting to cause to be sent an electronic communication or other thing:\n\n (a) from a point outside Australia to a point inside Australia; or\n\n (b) from a point inside Australia to a point outside Australia;\n\nthat act or omission is taken to have occurred partly in Australia.\n\n (5) In this section:\n\nAustralia, when used in a geographical sense, includes all the external Territories.\n\nAustralian aircraft has the same meaning as in the Criminal Code.\n\nAustralian person means:\n\n (a) a body corporate established by or under a law of the Commonwealth, of a State or of a Territory; or\n\n (b) an Australian citizen, a permanent resident (within the meaning of the Australian Citizenship Act 2007), or any other person ordinarily resident within Australia or an external Territory; or\n\n (c) an entity covered by subsection 56AR(1), (2) or (3) (about Australian government entities).\n\nAustralian ship has the same meaning as in the Criminal Code.\n\nforeign person means a person other than an Australian person.\n\npoint includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, underwater, at sea or anywhere else.","sortOrder":745},{"sectionNumber":"56AP","sectionType":"section","heading":"Geographical application of offences","content":"56AP  Geographical application of offences\n\n  Division 14 (Standard geographical jurisdiction) of the Criminal Code does not apply in relation to an offence against the CDR provisions.\n\nNote: The extended geographical application that section 56AO gives to the CDR provisions applies to the offences against the CDR provisions.","sortOrder":746},{"sectionNumber":"56AQ","sectionType":"section","heading":"CDR provisions bind the Crown","content":"56AQ  CDR provisions bind the Crown\n\n (1) The CDR provisions bind the Crown in each of its capacities.\n\n (2) However, the CDR provisions do not make the Crown:\n\n (a) liable to a pecuniary penalty or to be prosecuted for an offence; or\n\n (b) subject to a remedy under section 56EY (about actions for damages for contravening the privacy safeguards); or\n\n (c) subject to a remedy under Part VI (about enforcement) other than section 87B (about enforceable undertakings); or\n\n (d) subject to a remedy under Part 4 (about civil penalties) or 7 (about injunctions) of the Regulatory Powers Act; or\n\n (e) subject to Part XID of this Act (about search and seizure).","sortOrder":748},{"sectionNumber":"56AR","sectionType":"section","heading":"Government entities may participate under this Part","content":"56AR  Government entities may participate under this Part\n\nApplication to Commonwealth government entities\n\n (1) The CDR provisions apply in relation to an entity that:\n\n (a) is part of the Commonwealth; or\n\n (b) is a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); or\n\n (c) is a body (whether or not incorporated) established by or under a law of the Commonwealth; or\n\n (d) is:\n\n (i) holding or performing the duties of an office established by or under a law of the Commonwealth; or\n\n (ii) holding an appointment made under a law of the Commonwealth; or\n\n (e) is prescribed by the regulations.\n\nNote: For how the CDR provisions so apply, see subsection (4).\n\nApplication to State or Territory government entities\n\n (2) The CDR provisions apply only in relation to an entity that:\n\n (a) is part of a State or Territory; or\n\n (b) is a body (whether or not incorporated) established for a public purpose by or under a law of a State or Territory; or\n\n (c) is:\n\n (i) holding or performing the duties of an office established by or under a law of a State or Territory; or\n\n (ii) holding an appointment made under a law of a State or Territory; or\n\n (d) is an entity prescribed by the regulations in relation to a State or Territory;\n\nif the entity is declared under subsection 56AS(1) as a participating entity, for the State or Territory, in one or more specified capacities.\n\nNote 1: The entity is only a participating entity for those capacities specified in the declaration, for example, as a data holder.\n\nNote 2: For how the CDR provisions so apply, see subsection (4).\n\n (3) However, whether or not such a declaration is in force for an entity referred to in subsection (2), the CDR provisions apply in relation to the entity to the extent that:\n\n (a) the CDR provisions relate to a CDR consumer for CDR data, and the entity is a CDR consumer for CDR data (or would be if the entity were a person); or\n\n (b) the CDR provisions relate to a CDR consumer for a CDR action, and the entity is a CDR consumer for a CDR action (or would be if the entity were a person).\n\nNote: For how the CDR provisions so apply, see subsection (4).\n\nHow the CDR provisions apply to a government entity\n\n (4) For an entity covered by subsection (1), (2) or (3), the CDR provisions apply as described in that subsection in relation to the entity:\n\n (a) as if the entity were a person; and\n\n (b) with the modifications (if any) prescribed by the regulations.\n\nThis subsection does not affect how subsection 56AQ(2) applies to the entity.\n\n (5) If the CDR provisions so apply to an entity covered by subsection (1):\n\n (a) as a data holder of CDR data, the entity is conferred such functions as are necessary to enable the entity to operate as a data holder in accordance with the CDR provisions; or\n\n (aa) as an accredited person, the entity is conferred such functions as are necessary to enable the entity to operate as an accredited person in accordance with the CDR provisions; or\n\n (b) as a designated gateway for CDR data, the entity is conferred such functions as are necessary to enable the entity to operate as a designated gateway in accordance with the CDR provisions; or\n\n (c) as an action service provider for a type of CDR action, the entity is conferred such functions as are necessary to enable the entity to operate as an action service provider in accordance with the CDR provisions.","sortOrder":749},{"sectionNumber":"56AS","sectionType":"section","heading":"Participating government entities of a State or Territory—declaration","content":"56AS  Participating government entities of a State or Territory—declaration\n\n (1) The Minister may, by notifiable instrument, declare that an entity is a participating entity, for a State or Territory, in one or more of the following specified capacities:\n\n (a) as a data holder of CDR data;\n\n (b) as an accredited person;\n\n (c) as a designated gateway for CDR data;\n\n (d) as an action service provider for a type of CDR action.\n\nNote: An entity may be declared by class (see subsection 13(3) of the Legislation Act 2003).\n\n (2) However, the Minister must not do so unless the Minister is satisfied that the State or Territory has agreed to the entity participating under this Part in those capacities.\n\n (3) If:\n\n (a) a State or Territory has agreed to an entity of the State or Territory participating under this Part in those capacities; and\n\n (b) the entity is a body corporate;\n\nthe entity is taken to have also agreed to participate under this Part in those capacities.","sortOrder":750},{"sectionNumber":"56AT","sectionType":"section","heading":"Participating government entities of a State or Territory—revocation","content":"56AT  Participating government entities of a State or Territory—revocation\n\n (1) The Minister may, by notifiable instrument, revoke a declaration made under subsection 56AS(1) that an entity is a participating entity for a State or Territory.\n\n (2) If a State or Territory requests in writing the Minister to revoke a declaration made under subsection 56AS(1) that an entity is a participating entity for the State or Territory, the Minister must, under subsection (1) of this section, revoke the declaration as soon as practicable.\n\n (3) If the Minister revokes a declaration made under subsection 56AS(1) in relation to an entity, then, despite the revocation, subsection 56AR(2) continues to apply to the entity in relation to:\n\n (a) any right, privilege, obligation or liability acquired, accrued or incurred before the revocation; and\n\n (b) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation or liability;\n\nas if the declaration were still in force.","sortOrder":751},{"sectionNumber":"56AU","sectionType":"section","heading":"Acts done by or in relation to agents etc. of CDR entities","content":"56AU  Acts done by or in relation to agents etc. of CDR entities\n\nConduct of agents etc. of a CDR entity attributable to the CDR entity\n\n (1) For the purposes of this Part and the consumer data rules, each of the following provisions applies to a CDR entity who is not a body corporate in a corresponding way to the way that provision applies to a CDR entity who is a body corporate:\n\n (a) section 84 of this Act;\n\n (b) section 97 of the Regulatory Powers Act (to the extent that it applies in relation to a provision of this Part).\n\nActs done in relation to an agent of a CDR entity taken to be done in relation to the CDR entity\n\n (2) For the purposes of this Part and the consumer data rules, if an act is done by a person in relation to another person (the agent) who:\n\n (a) is acting on behalf of a CDR entity; and\n\n (b) is so acting within the agent’s actual or apparent authority;\n\nthe act is taken to have also been done in relation to the CDR entity.\n\nDefinitions\n\n (3) In this section:\n\nCDR entity means any of the following:\n\n (a) a data holder of CDR data;\n\n (b) an accredited person;\n\n (c) a designated gateway for CDR data;\n\n (d) an action service provider for a type of CDR action.","sortOrder":753},{"sectionNumber":"56BA","sectionType":"section","heading":"Minister may make consumer data rules","content":"56BA  Minister may make consumer data rules\n\n (1) The Minister may, by legislative instrument, make rules (the consumer data rules) for designated sectors, or types of CDR actions, in accordance with this Division.\n\nNote: Subdivision C deals with the process for making the consumer data rules.\n\n (2) Without limiting subsection (1), the consumer data rules may set out:\n\n (a) different rules for different designated sectors; or\n\n (b) different rules for different classes of CDR data; or\n\n (c) different rules for different classes of persons specified, as described in paragraph 56AC(2)(b), in an instrument designating a sector under subsection 56AC(2); or\n\n (d) different rules for different classes of persons who are able to be disclosed CDR data under the consumer data rules; or\n\n (e) different rules for different types of CDR actions; or\n\n (f) different rules for different classes of:\n\n (i) action service providers for types of CDR actions; or\n\n (ii) accredited persons; or\n\n (iii) CDR consumers for CDR actions.","sortOrder":756},{"sectionNumber":"56BAA","sectionType":"section","heading":"Rules must include requirement to delete CDR data on request from CDR consumer","content":"56BAA  Rules must include requirement to delete CDR data on request from CDR consumer\n\nRequirement to delete CDR data in response to request from CDR consumer\n\n (1) The consumer data rules must include a requirement on an accredited data recipient of CDR data to delete all or part of the CDR data if a CDR consumer for the CDR data validly requests this.\n\n (2) However, a rule described in subsection (1) must not require deletion of all or part of the CDR data if:\n\n (a) the accredited data recipient is required to retain the CDR data by or under an Australian law or a court/tribunal order; or\n\n (b) the CDR data relates to any current or anticipated:\n\n (i) legal proceedings; or\n\n (ii) dispute resolution proceedings;\n\n  to which the accredited data recipient is a party; or\n\n (c) the CDR data relates to any current or anticipated:\n\n (i) legal proceedings; or\n\n (ii) dispute resolution proceedings;\n\n  to which the CDR consumer is a party.\n\nConsumer data rules may include rules in relation to the requirement\n\n (3) The consumer data rules may include the following rules in relation to the requirement:\n\n (a) rules about:\n\n (i) how the CDR consumer may make a valid request; and\n\n (ii) what must be included in a request for it to be valid and when a request ceases to be a valid request;\n\n (b) rules specifying circumstances (in addition to those in subsection (2)) in which the accredited data recipient may refuse to delete the CDR data despite the requirement;\n\n (c) rules about how an accredited data recipient is to delete the CDR data covered in a valid request;\n\n (d) rules about how the requirement is to be complied with depending on the class of CDR data requested to be deleted;\n\n (e) rules about how an accredited data recipient is to notify the CDR consumer of:\n\n (i) the deletion of the CDR data and the extent of the deletion; or\n\n (ii) if the CDR data is not deleted—the reasons the deletion did not occur;\n\n (f) rules about any other matters incidental or related to the requirement (see also section 56BJ).\n\n (4) This section applies despite any other provision of this Division.\n\n (5) This section does not limit the consumer data rules dealing with the deletion of CDR data in circumstances other than compliance with the requirement.","sortOrder":757},{"sectionNumber":"56BB","sectionType":"section","heading":"Matters that the consumer data rules may deal with","content":"56BB  Matters that the consumer data rules may deal with\n\n  The consumer data rules may deal with the following matters:\n\n (a) disclosure, collection, use, accuracy, storage, security or deletion of CDR data for which there are one or more CDR consumers (see also sections 56BC and 56BD);\n\n (b) disclosure, collection, use, accuracy, storage, security or deletion of CDR data for which there are no CDR consumers (see also sections 56BE and 56BF);\n\n (c) designated gateways for CDR data (see also section 56BG);\n\n (ca) initiating CDR actions (see also section 56BGA);\n\n (d) accreditation for the purposes of this Part (see also section 56BH);\n\n (da) approving persons to be voluntary action service providers for types of CDR actions (see also section 56BHA);\n\n (e) reporting, record keeping and auditing (see also section 56BI);\n\n (f) matters incidental or related to any of the above matters (see also section 56BJ).","sortOrder":758},{"sectionNumber":"56BC","sectionType":"section","heading":"Rules about disclosure, collection, use, accuracy, storage, security or deletion of CDR data for which there are CDR consumers","content":"56BC  Rules about disclosure, collection, use, accuracy, storage, security or deletion of CDR data for which there are CDR consumers\n\nRequired disclosures in response to valid requests\n\n (1) Without limiting paragraph 56BB(a), the consumer data rules may include the following rules:\n\n (a) requirements on a CDR participant for CDR data to disclose all or part of the CDR data, in response to a valid request by a CDR consumer for the CDR data, to:\n\n (i) the CDR consumer for use as the CDR consumer sees fit; or\n\n (ii) an accredited person for use subject to the privacy safeguards; or\n\n (iii) a data holder of other CDR data;\n\n (b) rules about:\n\n (i) how a CDR consumer for the CDR data may make a valid request of the kind described in paragraph (a); and\n\n (ii) what must be included in a request for it to be valid, what disclosures or other matters a valid request may cover, and when a request ceases to be a valid request;\n\n (c) requirements on a person (other than a CDR consumer for the CDR data) to satisfy in order to be disclosed the CDR data in the way described in paragraph (a).\n\nNote 1: The requirements described in paragraph (a) could, for example, include a requirement that the disclosure be in accordance with the relevant data standards.\n\nNote 2: A fee may be charged for such a disclosure if the CDR data is chargeable CDR data, unless section 56BU provides otherwise.\n\nAuthorised disclosures or use in accordance with valid consents\n\n (2) Without limiting paragraph 56BB(a), the consumer data rules may include the following rules:\n\n (a) rules authorising a CDR participant for CDR data to disclose all or part of the CDR data to a person in accordance with a valid consent of a CDR consumer for the CDR data;\n\n (b) rules authorising a person to use CDR data in accordance with a valid consent of a CDR consumer for the CDR data;\n\n (c) rules about:\n\n (i) how a CDR consumer for the CDR data may make a valid consent of the kind described in paragraph (a) or (b); and\n\n (ii) what must be included in a consent for it to be valid, what disclosures, uses or other matters a valid consent may cover, and when a consent ceases to be a valid consent.\n\nNote: Fees may be charged for these disclosures or uses.\n\nOther rules\n\n (3) Without limiting paragraph 56BB(a), the consumer data rules may include the following rules relating to CDR data for which there are one or more CDR consumers:\n\n (a) rules relating to the privacy safeguards;\n\n (b) other rules relating to the disclosure, collection, use, accuracy, storage or security of the CDR data that affect:\n\n (i) an accredited person; or\n\n (ii) a CDR participant, or CDR consumer, for the CDR data;\n\n (c) other rules relating to the deletion of the CDR data that affect:\n\n (i) an accredited person; or\n\n (ii) an accredited data recipient of the CDR data; or\n\n (iii) a CDR consumer for the CDR data.\n\nNote 1: Subsection 56BD(3) limits how such rules can affect a data holder.\n\nNote 2: The rules may deal with similar or additional matters to those in the privacy safeguards. When doing so, the rules will need to be consistent with those safeguards (see subsections 56EC(1) and (2)).\n\nNote 3: The rules must include a requirement on an accredited data recipient to delete all or part of the CDR data in response to a valid request by a CDR consumer for the CDR data (see section 56BAA).","sortOrder":759},{"sectionNumber":"56BD","sectionType":"section","heading":"Limitations for rules about CDR data for which there are CDR consumers","content":"56BD  Limitations for rules about CDR data for which there are CDR consumers\n\nOnly certain CDR data can be required to be disclosed\n\n (1) The consumer data rules can only require a disclosure of CDR data for which there are one or more CDR consumers if:\n\n (a) the CDR data is covered by paragraph 56AI(1)(a) or (aa); and\n\n (b) the disclosure is to:\n\n (i) one or more of those CDR consumers; or\n\n (ii) an accredited person; or\n\n (iii) a designated gateway for the CDR data; or\n\n (iv) a data holder of the CDR data by a designated gateway for the CDR data; or\n\n (iva) a data holder of other CDR data; or\n\n (ivb) an action service provider for a type of CDR action; or\n\n (v) a person acting on behalf of a person referred to in any of subparagraphs (ii) to (ivb).\n\nNote 1: This means CDR data cannot be required to be disclosed if it is only CDR data because it is directly or indirectly derived from:\n\n(a) other CDR data within a class specified, as described in paragraph 56AC(2)(a), in an instrument designating a sector under subsection 56AC(2); or\n\n(b) other CDR data, about a CDR consumer for a CDR action, that an accredited action initiator is authorised to use to prepare or give a valid instruction for the performance of the CDR action.\n\nNote 2: The consumer data rules can include other rules relating to this other derived CDR data.\n\nNote 3: Voluntary disclosures of this other derived CDR data can be authorised under the consumer data rules.\n\nNo fee when fee‑free CDR data is required to be disclosed\n\n (2) The consumer data rules cannot allow a fee to be charged for:\n\n (a) the disclosure of fee‑free CDR data under rules like those described in paragraph 56BC(1)(a) or 56BG(1)(a); or\n\n (b) the use of fee‑free CDR data received as the result of such a disclosure.\n\nNote: Fees may be charged for other kinds of disclosures or uses of fee‑free CDR data.\n\nRules affecting data holders that relate to the use, accuracy, storage, security or deletion of CDR data\n\n (3) For a data holder of CDR data for which there are one or more CDR consumers, the consumer data rules:\n\n (a) can only include rules affecting the data holder that relate to the deletion of the CDR data if:\n\n (i) the CDR data; or\n\n (ii) any other CDR data from which it was directly or indirectly derived;\n\n  was disclosed to the data holder under the consumer data rules; and\n\n (b) can only include rules affecting the data holder that relate to the use, accuracy, storage or security of the CDR data if such rules also relate to the disclosure of the CDR data under the consumer data rules.\n\nEffect of limitations\n\n (4) Subsections (1), (2) and (3) apply despite any other provision of this Division.","sortOrder":760},{"sectionNumber":"56BE","sectionType":"section","heading":"Rules about disclosure, collection, use, accuracy, storage, security or deletion of product data","content":"56BE  Rules about disclosure, collection, use, accuracy, storage, security or deletion of product data\n\n  Without limiting paragraph 56BB(b), the consumer data rules may include the following rules for CDR data for which there are no CDR consumers:\n\n (a) requirements on a CDR participant for the CDR data to disclose all or part of the CDR data to a person in response to a valid request by the person;\n\n (b) rules about:\n\n (i) how a person may make a valid request of the kind described in paragraph (a); and\n\n (ii) what must be included in a request for it to be valid, what disclosures or other matters a valid request may cover, and when a request ceases to be a valid request;\n\n (c) requirements on a person to satisfy in order to be disclosed the CDR data in the way described in paragraph (a);\n\n (d) other rules affecting:\n\n (i) CDR participants for the CDR data; or\n\n (ii) persons wishing to be disclosed the CDR data;\n\n  that relate to the disclosure, collection, use, accuracy, storage, security or deletion of the CDR data.\n\nNote 1: A request for this CDR data could be made, for example, to assist the development of a product or service.\n\nNote 2: The requirements described in paragraph (a) could, for example, include a requirement that the disclosure be in accordance with the relevant data standards.\n\nNote 3: The privacy safeguards do not apply to this CDR data (see subsection 56EB(1)).","sortOrder":761},{"sectionNumber":"56BF","sectionType":"section","heading":"Limitations for rules about product data","content":"56BF  Limitations for rules about product data\n\nOnly certain kinds of product data can be required to be disclosed\n\n (1) The consumer data rules can only require a disclosure of CDR data for which there are no CDR consumers if:\n\n (a) the CDR data is about the eligibility criteria, terms and conditions, price, availability or performance of:\n\n (i) a product or other kind of good; or\n\n (ii) a service; and\n\n (b) in the case where the CDR data is about availability or performance—the CDR data is publicly available.\n\nNote 1: This means other kinds of CDR data for which there are no CDR consumers cannot be required to be disclosed.\n\nNote 2: The consumer data rules can include other rules relating to other kinds of CDR data for which there are no CDR consumers.\n\nNote 3: Voluntary disclosures of other kinds of CDR data for which there are no CDR consumers can be authorised under the consumer data rules.\n\nNo fee when this CDR data is required to be disclosed\n\n (2) The consumer data rules cannot allow a fee to be charged for:\n\n (a) the disclosure of CDR data under rules like those described in paragraph 56BE(a) or 56BG(2)(a); or\n\n (b) the use of CDR data received as the result of such a disclosure.\n\nNote: A fee could be charged for other disclosures or uses of CDR data for which there are no CDR consumers.\n\nEffect of limitations\n\n (3) Subsections (1) and (2) apply despite any other provision of this Division.","sortOrder":762},{"sectionNumber":"56BG","sectionType":"section","heading":"Rules about designated gateways","content":"56BG  Rules about designated gateways\n\nCDR data for which there are CDR consumers\n\n (1) Without limiting paragraph 56BB(c), if there is a designated gateway for CDR data for which there are one or more CDR consumers, the consumer data rules may include the following rules:\n\n (a) rules like those described in subsection 56BC(1) for the CDR data, but involving the designated gateway:\n\n (i) acting between the CDR consumer and the CDR participant in the making of a valid request; or\n\n (ii) acting between the CDR consumer and the accredited person who is the proposed recipient of the requested disclosure; or\n\n (iii) acting between the CDR participant and the CDR consumer, or accredited person, who is the proposed recipient of the requested disclosure;\n\n (b) rules like those described in subsection 56BC(2) for the CDR data, but involving the designated gateway:\n\n (i) acting between the CDR consumer and a person authorised as described in that subsection; or\n\n (ii) acting between persons authorised as described in that subsection;\n\n (c) other rules affecting the designated gateway that relate to the disclosure, collection, use, accuracy, storage, security or deletion of the CDR data.\n\nProduct data\n\n (2) Without limiting paragraph 56BB(c), if there is a designated gateway for CDR data for which there are no CDR consumers, the consumer data rules may include the following rules:\n\n (a) rules like those described in paragraphs 56BE(a) to (c), but involving the designated gateway acting between the CDR participant and the person requesting the disclosure;\n\n (b) other rules affecting the designated gateway that relate to the disclosure, collection, use, accuracy, storage, security or deletion of the CDR data.\n\nLimitation—rules relating to the collection, use, accuracy, storage, security or deletion of CDR data\n\n (3) For a designated gateway for CDR data for which there are one or more CDR consumers, the consumer data rules:\n\n (a) can only include rules affecting the designated gateway requiring or authorising the disclosure of the CDR data if such rules are as described in paragraph (1)(a) or (b); and\n\n (b) can only include rules affecting the designated gateway that relate to the collection, use, accuracy, storage, security or deletion of the CDR data if such rules also relate to a disclosure described in paragraph (a) of this subsection.\n\nNote: Paragraph (a) does not prevent the inclusion of a rule relating to a disclosure described in that paragraph.\n\n (4) Subsection (3) applies despite any other provision of this Division.\n\nTransitional rules\n\n (5) Without limiting paragraph 56BB(c), if there is a designated gateway for CDR data, the consumer data rules may include transitional rules for when a person ceases to be the designated gateway, including about the disclosure, collection, use, accuracy, storage, security or deletion of the CDR data.\n\nNote: These rules could, for example, include a requirement that the CDR data be disclosed in accordance with the relevant data standards to another gateway. Some of these transitional rules could be similar to some of the privacy safeguards.","sortOrder":763},{"sectionNumber":"56BGA","sectionType":"section","heading":"Rules about initiating CDR actions","content":"56BGA  Rules about initiating CDR actions\n\nInstructions may be given to initiate types of CDR actions\n\n (1) Without limiting paragraph 56BB(ca), the consumer data rules may include the following rules:\n\n (a) requirements on an accredited action initiator for a type of CDR action relating to giving a valid instruction:\n\n (i) for the performance of a CDR action of that type; and\n\n (ii) to an action service provider for a CDR action of that type; and\n\n (iii) on behalf of a CDR consumer for the CDR action, and in response to that consumer’s valid request; and\n\n (iv) after a series of specified kinds of interactions between that initiator, provider, consumer or other persons (whether involving all or any 2 of them);\n\n (b) rules about how an instruction must be prepared for it to be a valid instruction of the kind described in paragraph (a), what matters a valid instruction may cover, and when an instruction ceases to be a valid instruction;\n\n (c) rules about:\n\n (i) how a CDR consumer for a CDR action may make a valid request of the kind described in subparagraph (a)(iii); and\n\n (ii) what must be included in a request for it to be valid, what matters a valid request may cover, and when a request ceases to be a valid request;\n\n (d) for an accredited action initiator for a type of CDR action who is acting as described in paragraph (a) to give a valid instruction on behalf of a CDR consumer for a CDR action—rules authorising the initiator to use or disclose information relating to the consumer that:\n\n (i) is disclosed to the initiator; or\n\n (ii) is otherwise held by the initiator;\n\n  to prepare or give the valid instruction;\n\n (e) requirements on an action service provider for a type of CDR action relating to how the provider processes a valid instruction of the kind described in paragraph (a);\n\n (f) rules relating to the interactions described in subparagraph (a)(iv);\n\n (g) rules relating to the privacy safeguards in relation to an instruction or request relating to a CDR action;\n\n (h) rules relating to information that is not CDR data, but that relates to a CDR action.\n\nNote 1: The requirements described in paragraph (a) could, for example, include a requirement that the instruction be prepared and given in accordance with the relevant data standards.\n\nNote 2: The rules may deal with similar or additional matters to those in the privacy safeguards. When doing so, the rules will need to be consistent with those safeguards (see subsections 56EC(1) and (2)).\n\nAllowing providers to charge fees at the instruction layer\n\n (2) Without limiting paragraph 56BB(ca), the consumer data rules may include rules declaring that action service providers for a type of CDR action may charge (or cause to be charged) fees for processing valid instructions of the kind described in paragraph (1)(a) for CDR actions of that type.\n\nNote 1: The action service providers will not be able to charge fees for processing valid instructions in the absence of such a declaration (see subsection 56BZD(1) and paragraph 56BZD(2)(a)).\n\nNote 2: This subsection has no effect on what fees the providers decide to charge at the action layer for performing the CDR actions.\n\nAuthorised disclosures or use of related CDR data in accordance with valid consents\n\n (3) Without limiting paragraph 56BB(ca), the consumer data rules may include the following rules:\n\n (a) rules authorising a CDR action participant to disclose all or part of specified CDR data to a person in accordance with a valid consent of a CDR consumer for the CDR data;\n\n (b) rules authorising a person to use CDR data in accordance with a valid consent of a CDR consumer for the CDR data;\n\n (c) rules about:\n\n (i) how a CDR consumer for the CDR data may make a valid consent of the kind described in paragraph (a) or (b); and\n\n (ii) what must be included in a consent for it to be valid, what disclosures, uses or other matters a valid consent may cover, and when a consent ceases to be a valid consent.\n\nRules must not apply at the action layer\n\n (4) Despite any other provision of this Division, the consumer data rules cannot include rules requiring an action service provider for a type of CDR action to perform (or not perform) a CDR action of that type in a particular way.\n\nNote 1: The consumer data rules focus on the instruction layer not the action layer.\n\nNote 2: The action service provider will need to ensure it does not discriminate against a valid instruction given under the consumer data rules (see sections 56BZC and 56BZD).\n\nRules affecting CDR action participants that relate to the use, accuracy, storage, security or deletion of CDR data\n\n (5) For CDR data that:\n\n (a) is information referred to in paragraph (1)(d), or is directly or indirectly derived from other information referred to in that paragraph; and\n\n (b) is disclosed to a CDR action participant under the consumer data rules (whether the disclosure is directly or indirectly from the accredited action initiator referred to in that paragraph);\n\nthe consumer data rules can include rules affecting that CDR action participant that relate to the use, disclosure, accuracy, storage, security or deletion of the CDR data.","sortOrder":764},{"sectionNumber":"56BH","sectionType":"section","heading":"Rules about accreditation for the purposes of this Part","content":"56BH  Rules about accreditation for the purposes of this Part\n\n (1) Without limiting paragraph 56BB(d), the consumer data rules may include the following rules:\n\n (a) rules conferring functions or powers on the CDR Accreditor;\n\n (b) the criteria for a person to be accredited under subsection 56CA(1);\n\n (c) rules providing that accreditations may be granted subject to conditions, and that conditions may be imposed on an accreditation after it has been granted;\n\n (d) rules providing that accreditations may be granted at different levels corresponding to different risks, including the risks associated with:\n\n (i) specified classes of CDR data; or\n\n (ii) specified classes of activities; or\n\n (iia) specified types of CDR actions; or\n\n (iii) specified classes of applicants for accreditation;\n\n (da) rules specifying what a person accredited at a particular level is authorised to do (or not authorised to do);\n\n (e) rules for the period, renewal, transfer, variation, suspension, revocation or surrender of accreditations;\n\n (f) notification requirements on persons whose accreditations have been varied, suspended, revoked or surrendered;\n\n (g) transitional rules for when an accreditation is varied, is suspended or ends, including about the disclosure, collection, use, accuracy, storage, security or deletion of CDR data;\n\n (h) rules about a matter referred to in subsection 56CE(4) (about the Register of Accredited Persons).\n\nNote 1: The rules described in paragraph (d) could, for example, include a level of accreditation for initiating CDR actions under the consumer data rules.\n\nNote 2: The rules described in paragraph (g) could, for example, include a requirement that the CDR data be disclosed in accordance with the relevant data standards to an accredited person. Some of these transitional rules could be similar to some of the privacy safeguards.\n\n (2) Without limiting paragraph (1)(b):\n\n (a) the criteria may differ for different classes of persons; and\n\n (b) the criteria may include the payment of a fee.\n\nAny fee must not be such as to amount to taxation.\n\n (3) Without limiting paragraph (1)(e), the grounds for varying, suspending or revoking an accreditation could include failing to comply with a requirement in this Part or in the consumer data rules.\n\nNote 1: The requirements in this Part include the privacy safeguards.\n\nNote 2: An example of a variation could be the imposition of a condition, or changing the level of an accreditation.\n\n (4) If the consumer data rules include rules enabling decisions to be made:\n\n (a) to vary, suspend or revoke an accreditation; or\n\n (b) to refuse to make a decision described in paragraph (a);\n\nthe rules must permit the making of applications to the Administrative Review Tribunal for review of those decisions.\n\nNote 1: The consumer data rules can also provide for internal review of these decisions, and internal and review by the Administrative Review Tribunal of other decisions (see section 56BJ).\n\nNote 2: The decisions could be decisions of the Minister or of another person (see paragraph 56BJ(c)).","sortOrder":765},{"sectionNumber":"56BHA","sectionType":"section","heading":"Rules about approving persons to be voluntary action service providers for types of CDR actions","content":"56BHA  Rules about approving persons to be voluntary action service providers for types of CDR actions\n\n (1) Without limiting paragraph 56BB(da), the consumer data rules may include the following rules:\n\n (a) rules for the approval of persons who apply to be action service providers for one or more types of CDR actions;\n\n (b) the criteria for a person to be so approved;\n\n (c) rules providing that such approval may be granted subject to conditions, and that conditions may be imposed on such an approval after it has been granted;\n\n (d) rules providing that such approvals may be granted at different levels corresponding to different risks, including the risks associated with:\n\n (i) specified types of CDR actions; or\n\n (ii) specified classes of CDR data; or\n\n (iii) specified classes of applicants for such approvals;\n\n (e) rules specifying what a person approved at a particular level is authorised to do (or not authorised to do);\n\n (f) rules for the period, renewal, transfer, variation, suspension, revocation or surrender of such approvals;\n\n (g) notification requirements on persons whose such approvals have been granted, renewed, transferred, varied, suspended, revoked or surrendered;\n\n (h) rules about publishing details of such approvals, renewals, transfers, variations, suspensions, revocations or surrenders;\n\n (i) transitional rules for when such an approval is varied, is suspended or ends, including about the disclosure, collection, use, accuracy, storage, security or deletion of CDR data;\n\n (j) rules conferring functions or powers on the Minister for any of the matters described in this subsection.\n\nNote: The Minister may delegate the functions or powers referred to in paragraph (j) (see section 56GAA).\n\n (2) Without limiting paragraph (1)(b):\n\n (a) the criteria may differ for different classes of persons; and\n\n (b) the criteria may permit a person to be approved even if the person:\n\n (i) is not a body corporate established by or under a law of the Commonwealth, of a State or of a Territory; and\n\n (ii) is neither an Australian citizen, nor a permanent resident (within the meaning of the Australian Citizenship Act 2007); and\n\n (c) the criteria may include the payment of a fee.\n\nAny fee must not be such as to amount to taxation.\n\n (3) Any such approval is granted on the basis that no compensation is payable if the approval is varied, transferred, suspended, revoked or surrendered in any way.\n\n (4) Without limiting paragraph (1)(f), the grounds for varying, suspending or revoking such an approval could include failing to comply with a requirement in this Part or in the consumer data rules.\n\nNote 1: The requirements in this Part include the privacy safeguards.\n\nNote 2: An example of a variation could be the imposition of a condition, or changing the level of an approval.\n\n (5) If the consumer data rules include rules enabling decisions to be made:\n\n (a) to grant, vary, suspend or revoke such an approval; or\n\n (b) to refuse to make a decision described in paragraph (a);\n\nthe rules must permit the making of applications to the Administrative Review Tribunal for review of those decisions.\n\nNote: The consumer data rules can also provide for internal review of these decisions, and internal and ART review of other decisions (see section 56BJ).\n\n (6) Without limiting paragraph (1)(h), the rules may provide that:\n\n (a) a person able to make any of the kinds of decisions described in subsection (5) may supply to another person a copy or extract that:\n\n (i) is from a publication of details described in paragraph (1)(h), where those details are matters of fact; and\n\n (ii) is certified by the person to be a true copy or a true extract (as applicable); and\n\n (b) such a certified copy or extract (the certificate) is admissible in any proceedings as prima facie evidence of the original; and\n\n (c) the certificate must not be admitted in evidence in proceedings relating to a person unless:\n\n (i) the person; or\n\n (ii) a barrister or solicitor who is representing the person in the proceedings;\n\n  has, at least 14 days before the certificate is sought to be so admitted, been given a copy of the certificate together with notice of the intention to produce the certificate as evidence in the proceedings.","sortOrder":766},{"sectionNumber":"56BI","sectionType":"section","heading":"Rules about reporting, record keeping and auditing","content":"56BI  Rules about reporting, record keeping and auditing\n\n (1) Without limiting paragraph 56BB(e), the consumer data rules may include the following rules:\n\n (a) a power for a CDR consumer for CDR data to direct a CDR participant for the CDR data to give the consumer, or an accredited person, reports about:\n\n (i) the consumer’s valid requests to the CDR participant, under rules like those described in paragraph 56BC(1)(a) or 56BG(1)(a), for the CDR data; and\n\n (ii) any disclosures made in response to such requests;\n\n (b) a power for a CDR consumer for CDR data to direct a CDR participant for the CDR data to give the consumer, or an accredited person, reports about:\n\n (i) the consumer’s valid consents to the CDR participant, under rules like those described in paragraph 56BC(2)(a) or (b) or 56BG(1)(b), for the CDR data; and\n\n (ii) any disclosures made in response to such consents;\n\n (c) a power for a person referred to in paragraph 56BG(1)(a) or (b) to direct a designated gateway referred to in that paragraph to give reports about:\n\n (i) valid requests or consents, affecting the designated gateway, under rules like those described in that paragraph; and\n\n (ii) any disclosures made in response to such requests or consents;\n\n (ca) a power for a CDR consumer for a CDR action to direct an accredited action initiator for CDR actions of that type to give the consumer, or an accredited person, reports about:\n\n (i) the consumer’s valid request made to the initiator, under rules like those described in subsection 56BGA(1), for the giving of a valid instruction for the performance of the CDR action; or\n\n (ii) a valid instruction given by the initiator, under rules like those described in subsection 56BGA(1), on behalf of the consumer and for the performance of the CDR action;\n\n (cb) a power for a CDR consumer for a CDR action to direct an action service provider for CDR actions of that type to give the consumer, or an accredited person, reports about the provider’s processing of any valid instruction given to the provider:\n\n (i) on behalf of the consumer under rules like those described in subsection 56BGA(1); and\n\n (ii) for the performance of the CDR action;\n\n (d) requirements for CDR participants for CDR data, or CDR action participants, to give reports to the Commission or the Information Commissioner;\n\n (e) requirements for accredited persons to give reports to the Commission or the Information Commissioner;\n\n (f) requirements for designated gateways for CDR data to give reports to the Commission or the Information Commissioner;\n\n (g) requirements for the keeping of records relating to the operation of the consumer data rules;\n\n (h) requirements for each of the following entities:\n\n (i) the CDR Accreditor;\n\n (ii) the Accreditation Registrar;\n\n (iii) the Data Standards Chair;\n\n  to give reports to the Commission or the Information Commissioner about that entity’s functions or powers.\n\nNote: Information or documents relating to compliance with the consumer data rules may also be required to be given (see subsections 155(1) and (2)).\n\n (2) Without limiting subsection (1), the consumer data rules may include requirements for CDR participants or designated gateways for CDR data, CDR action participants or accredited persons to give to the Commission or Information Commissioner:\n\n (a) copies of one or more of the records required to be kept as described in paragraph (1)(g); or\n\n (b) information from such records;\n\neither periodically, or on request by the Commission or Information Commissioner, or both.","sortOrder":767},{"sectionNumber":"56BJ","sectionType":"section","heading":"Rules about incidental or related matters","content":"56BJ  Rules about incidental or related matters\n\n  Without limiting paragraph 56BAA(3)(f) or 56BB(f), the consumer data rules may include the following rules:\n\n (a) rules that refer to the data standards;\n\n (b) the circumstances in which persons are, or may be, relieved from complying with requirements in the consumer data rules that would otherwise apply to them;\n\n (c) a rule that depends on a person being satisfied of one or more specified matters;\n\n (d) rules for the making of applications for internal review, or of applications to the Administrative Review Tribunal for review, of decisions of a person under the consumer data rules;\n\n (e) rules about the manner or form in which persons or bodies:\n\n (i) may exercise powers under the consumer data rules; or\n\n (ii) must comply with requirements imposed by the consumer data rules;\n\n  which could include requiring the use of a form approved by the Commission or by the Information Commissioner;\n\n (f) rules about the following matters:\n\n (i) the manner in which CDR participants for CDR data, or CDR action participants, may charge (or cause to be charged) a fee for a matter covered by the consumer data rules;\n\n (ii) the time for paying such a fee;\n\n (iii) giving notice of, or publicising, such a fee or matters about such a fee;\n\n (g) rules requiring CDR participants, or designated gateways, for CDR data, or CDR action participants, to have internal or external dispute resolution processes:\n\n (i) that relate to the operation of the consumer data rules or this Part; and\n\n (ii) that meet specified criteria;\n\n (h) rules relating to an external dispute resolution scheme recognised under Division 4, including about access to such a scheme;\n\n (i) transitional rules for the external resolution of disputes:\n\n (i) described in subsection 56DA(1); and\n\n (ii) not covered by a scheme recognised under that subsection;\n\n (ia) rules requiring agents of any of the following entities (a CDR entity):\n\n (i) a data holder of CDR data;\n\n (ii) an accredited person;\n\n (iii) a designated gateway for CDR data;\n\n (iv) an action service provider for a type of CDR action;\n\n  to do or not to do specified things when acting on behalf of the CDR entity and within the agent’s actual or apparent authority;\n\n (j) rules about any other matters that the provisions of this Part provide may be specified, or otherwise dealt with, in the consumer data rules.","sortOrder":768},{"sectionNumber":"56BK","sectionType":"section","heading":"Further limitations on the consumer data rules","content":"56BK  Further limitations on the consumer data rules\n\n (1) The consumer data rules cannot impose on a person a requirement that has a retrospective commencement or application.\n\nExample: The rules cannot require a data holder to disclose CDR data on a day before the rules are registered, or on a day before the registration of a variation to the rules that includes the requirement.\n\nNote: Other limitations on the consumer data rules are in sections 56BD, 56BF and 56BG.\n\n (2) To avoid doubt, the consumer data rules may require a person to do something on a particular day, in relation to CDR data generated or collected on an earlier day, if the person:\n\n (a) is a data holder of the CDR data; or\n\n (b) is an accredited person; or\n\n (c) is a person who has given a valid request under the consumer data rules relating to the CDR data; or\n\n (d) is a designated gateway for the CDR data; or\n\n (e) is an action service provider for a type of CDR action.\n\nExample: A data holder is given a valid request to disclose CDR data that was generated before the rules are registered. The rules can require that disclosure.\n\n (4) Subsection (1) applies despite any other provision of this Division.","sortOrder":769},{"sectionNumber":"56BL","sectionType":"section","heading":"Obligation to comply with consumer data rules","content":"56BL  Obligation to comply with consumer data rules\n\n  The consumer data rules may provide that specified provisions of the rules are civil penalty provisions (within the meaning of the Regulatory Powers Act).\n\nNote: Sections 76 to 77 deal with enforcing the civil penalty provisions.","sortOrder":771},{"sectionNumber":"56BM","sectionType":"section","heading":"Infringement notices","content":"56BM  Infringement notices\n\nObject\n\n (1) The object of this section is for Division 5 of Part XI to apply to a civil penalty provision of the consumer data rules in a corresponding way to the way that Division applies to a provision of Part 2‑2 of the Australian Consumer Law.\n\nNote: That Division is about infringement notices issued for alleged contraventions of provisions of the Australian Consumer Law.\n\nExtended application of Division 5 of Part XI etc.\n\n (2) Division 5 of Part XI, and any other provision of this Act that relates to that Division, also apply in relation to a civil penalty provision of the consumer data rules as if the substitutions in the following table were made.\n\n\n\n- Substitutions to be made\n- Item For a reference in Division 5 of Part XI to … … substitute a reference to …\n- 1 section 224 of the Australian Consumer Law section 76 of this Act.\n- 2 Chapter 4 or Part 5‑2 of the Australian Consumer Law Part VI of this Act.\n- 3 a provision of Part 2‑2 of the Australian Consumer Law a civil penalty provision of the consumer data rules.\n\n\n (3) To avoid doubt, Division 2 of Part XI does not limit the application of section 56GF (about constitutional basis) to the extended application of Division 5 of Part XI as described in this section.","sortOrder":772},{"sectionNumber":"56BN","sectionType":"section","heading":"Misleading or deceptive conduct—offence","content":"56BN  Misleading or deceptive conduct—offence\n\n (1) A person commits an offence if:\n\n (a) the person engages in conduct; and\n\n (b) the person does so knowing that the conduct:\n\n (i) is misleading or deceptive; or\n\n (ii) is likely to be misleading or deceptive; and\n\n (c) the conduct misleads or deceives, or is likely to mislead or deceive, another person (the second person) into believing that:\n\n (i) a person is a CDR consumer for CDR data; or\n\n (ii) a person is making a valid request or consent, or has satisfied other criteria, for the disclosure of CDR data under the consumer data rules; or\n\n (iii) a person is a CDR consumer for a CDR action; or\n\n (iv) a person has satisfied any criteria under the consumer data rules for the making of a request, the giving of a valid instruction, or the processing of a valid instruction, for the performance of a CDR action.\n\nNote: The person mentioned in subparagraph (c)(i), (ii), (iii) or (iv) could be the first‑mentioned person, the second person or a third person.\n\nDefence\n\n (2) Subsection (1) does not apply if the conduct is not misleading or deceptive in a material particular.\n\nNote: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).\n\nPenalty—body corporate\n\n (3) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $10,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—10% of the adjusted turnover of the body corporate during the 12‑month period ending at the end of the month in which the commission of the offence happened or began.\n\nPenalty—other persons\n\n (5) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by imprisonment for not more than 5 years, a fine of not more than $500,000, or both.","sortOrder":773},{"sectionNumber":"56BO","sectionType":"section","heading":"Misleading or deceptive conduct—civil penalty","content":"56BO  Misleading or deceptive conduct—civil penalty\n\n (1) A person must not engage in conduct that misleads or deceives, or is likely to mislead or deceive, another person (the second person) into believing that:\n\n (a) a person is a CDR consumer for CDR data; or\n\n (b) a person is making a valid request or consent, or has satisfied other criteria, for the disclosure of CDR data under the consumer data rules; or\n\n (c) a person is a CDR consumer for a CDR action; or\n\n (d) a person has satisfied any criteria under the consumer data rules for:\n\n (i) the making of a request; or\n\n (ii) the giving of a valid instruction; or\n\n (iii) the processing of a valid instruction;\n\n  for the performance of a CDR action.\n\nNote 1: The person mentioned in paragraph (a), (b), (c) or (d) could be the first‑mentioned person, the second person or a third person.\n\nNote 2: For enforcement, see Part VI (including section 76 for an order for payment of a pecuniary penalty).\n\nDefence\n\n (2) Subsection (1) does not apply if the conduct is not misleading or deceptive in a material particular.\n\n (3) A person who wishes to rely on subsection (2) bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the conduct is not misleading or deceptive in a material particular.","sortOrder":774},{"sectionNumber":"56BP","sectionType":"section","heading":"Minister’s tasks before making the rules","content":"56BP  Minister’s tasks before making the rules\n\n  Before making consumer data rules under subsection 56BA(1), the Minister must:\n\n (a) consider the kinds of matters referred to in paragraphs 56AD(1)(a) and (b) in relation to the making of the rules; and\n\n (aa) consider the following kinds of matters in relation to making a rule described in subsection 56BGA(2) (about fees at the instruction layer) for a type of CDR action:\n\n (i) whether performers of actions of that type currently charge fees for processing instructions to perform such actions;\n\n (ii) whether the incentive to perform actions of that type would be reduced if fees could not be charged for processing such instructions;\n\n (iii) the marginal cost of processing such instructions in accordance with the consumer data rules; and\n\n (b) be satisfied that the Secretary of the Department has complied with section 56BQ in relation to the making of the rules; and\n\n (c) wait at least 60 days after the day public consultation begins under paragraph 56BQ(b) about the making of the rules.","sortOrder":776},{"sectionNumber":"56BQ","sectionType":"section","heading":"Secretary must arrange for consultation and report before the rules are made","content":"56BQ  Secretary must arrange for consultation and report before the rules are made\n\n  The Secretary of the Department complies with this section in relation to the making of consumer data rules if the Secretary arranges for all of the following:\n\n (a) an analysis of the kinds of matters referred to in paragraphs 56BP(a) and (aa) in relation to the making of the rules;\n\n (b) public consultation about the making of the rules:\n\n (i) for at least 28 days; and\n\n (ii) in one or more ways that includes making information available on the Department’s website and inviting the public to comment;\n\n (c) consultation with each of the following about the making of the rules:\n\n (i) the Commission;\n\n (ii) the Information Commissioner;\n\n (iii) the person or body (if any) that the Secretary believes to be the primary regulator of the sector;\n\n (iv) any person or body prescribed by the regulations;\n\n (d) the preparation of a report for the Minister about that analysis and consultation.","sortOrder":777},{"sectionNumber":"56BR","sectionType":"section","heading":"Commission and Information Commissioner must analyse the proposed rules","content":"56BR  Commission and Information Commissioner must analyse the proposed rules\n\n  When consulted under paragraph 56BQ(c), the Commission and the Information Commissioner must each analyse the kinds of matters referred to in paragraphs 56BP(a) and (aa) in relation to the making of the rules.","sortOrder":778},{"sectionNumber":"56BS","sectionType":"section","heading":"Emergency rules: public consultation not required etc.","content":"56BS  Emergency rules: public consultation not required etc.\n\n (1) The Minister may make consumer data rules under subsection 56BA(1):\n\n (a) without complying with paragraph 56BP(b) or (c); but\n\n (b) after consulting the Commission and Information Commissioner;\n\nif the Minister believes (whether or not that belief is reasonable) that it is necessary to do so in order to avoid a risk of serious harm to:\n\n (c) the efficiency, integrity or stability of any aspect of the Australian economy; or\n\n (d) the interests of consumers.\n\nNote: The Minister still needs to comply with paragraph 56BP(a).\n\n (2) However, a failure to comply with paragraph (1)(b) of this section does not invalidate consumer data rules made as described in subsection (1).\n\nNote: Such rules may have a limited life (see section 56BT).","sortOrder":779},{"sectionNumber":"56BT","sectionType":"section","heading":"Emergency rules: consequences if made","content":"56BT  Emergency rules: consequences if made\n\n  If:\n\n (a) the Minister makes consumer data rules as described in subsection 56BS(1) (the emergency rules); and\n\n (b) the emergency rules are made without consulting either the Commission or the Information Commissioner, or both;\n\nthe emergency rules cease to be in force 6 months after the day they are made.\n\nNote: If the emergency rules vary other consumer data rules, this section causes only the emergency rules to cease to be in force.","sortOrder":780},{"sectionNumber":"56BTA","sectionType":"section","heading":"Other matters","content":"56BTA  Other matters\n\n  A failure to comply with section 56BP, 56BQ or 56BR does not invalidate consumer data rules made under subsection 56BA(1).","sortOrder":781},{"sectionNumber":"56BU","sectionType":"section","heading":"Charging a fee in inappropriate circumstances when required to disclose CDR data","content":"56BU  Charging a fee in inappropriate circumstances when required to disclose CDR data\n\n (1) A person contravenes this subsection if:\n\n (a) the person is a CDR participant for CDR data; and\n\n (b) the person is required under the consumer data rules to disclose all or part of the CDR data; and\n\n (c) the person charges (or causes to be charged) a fee for either or both of the following matters:\n\n (i) the disclosure (or a related disclosure by a designated gateway or other CDR participant for the CDR data);\n\n (ii) the use of the CDR data as the result of the disclosure (or of that related disclosure); and\n\n (d) subsection (2) or any of the following subparagraphs applies:\n\n (i) the CDR data is fee‑free CDR data;\n\n (ii) to the extent that the fee is charged for the disclosure of chargeable CDR data—the fee purports to cover a disclosure in circumstances that are not chargeable circumstances;\n\n (iii) to the extent that the fee is charged for the use of chargeable CDR data—the fee purports to cover use in circumstances that are not chargeable circumstances.\n\nNote: For enforcement, see Part VI (including section 76 for an order for payment of a pecuniary penalty).\n\n (2) This subsection applies if:\n\n (a) any fee (the reasonable fee):\n\n (i) that has been determined under subsection 56BV(1) or (2) for the person; or\n\n (ii) that can be worked out from a method determined under subsection 56BV(1) or (2) for the person;\n\n  covers either or both of the matters in paragraph (1)(c) of this section; and\n\n (b) the portion of the fee charged as described in that paragraph for those matters exceeds the corresponding portion of the reasonable fee.","sortOrder":783},{"sectionNumber":"56BV","sectionType":"section","heading":"Commission may intervene if fee for disclosing or using chargeable CDR data is unreasonable etc.","content":"56BV  Commission may intervene if fee for disclosing or using chargeable CDR data is unreasonable etc.\n\nIntervening for a class of CDR participants\n\n (1) The Commission may, by legislative instrument, determine:\n\n (a) the amount of a fee, or a method for working out the amount of a fee, that a specified class of CDR participants for specified chargeable CDR data may charge (or cause to be charged) for either or both of the following matters (the chargeable matters):\n\n (i) the disclosure of the chargeable CDR data in chargeable circumstances because of a requirement under the consumer data rules to do so;\n\n (ii) the use of the chargeable CDR data in chargeable circumstances as the result of such a disclosure; and\n\n (b) the specified persons who are liable to pay that fee;\n\nif the Commission is satisfied that the fee that the CDR participants would otherwise charge (or cause to be charged) is unreasonable having regard to the criteria in subsection (4).\n\nIntervening for a particular CDR participant\n\n (2) The Commission may, by written notice given to a CDR participant for specified chargeable CDR data, determine:\n\n (a) the amount of a fee, or a method for working out the amount of a fee, that the CDR participant may charge (or cause to be charged) for either or both of the following matters (the chargeable matters):\n\n (i) the disclosure of the chargeable CDR data in chargeable circumstances because of a requirement under the consumer data rules to do so;\n\n (ii) the use of the chargeable CDR data in chargeable circumstances as the result of such a disclosure; and\n\n (b) the specified persons who are liable to pay that fee;\n\nif the Commission is satisfied that the fee that the CDR participant would otherwise charge (or cause to be charged) is unreasonable having regard to the criteria in subsection (4).\n\nNote: The determination is reviewable (see Subdivision F).\n\nMatters and criteria when intervening\n\n (3) When determining an amount or method under subsection (1) or (2), the Commission must seek to ensure that the resulting fee:\n\n (a) reflects the reasonable costs (including capital costs) necessary for the CDR participants or CDR participant to comply with this Part and the consumer data rules in relation to the chargeable matters; and\n\n (b) is reasonable having regard to the criteria in subsection (4).\n\n (4) The criteria for the purposes of subsections (1), (2) and paragraph (3)(b) are:\n\n (a) the matters in subparagraphs 56AD(1)(a)(i), (ii), (iv) to (vi) and (c)(ii) and (iv); and\n\n (b) whether a lower fee could result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph); and\n\n (c) whether a lower fee would reduce the incentive to generate, collect, hold or maintain CDR data of that kind; and\n\n (d) any other matters the Commission considers relevant.\n\nOther matters\n\n (5) The Commission may publish a determination under subsection (2) on the Commission’s website.\n\n (6) A fee determined under subsection (1) or (2) must not be such as to amount to taxation.","sortOrder":784},{"sectionNumber":"56BZA","sectionType":"section","heading":"Accredited persons must act efficiently, honestly and fairly when initiating CDR actions etc.","content":"56BZA  Accredited persons must act efficiently, honestly and fairly when initiating CDR actions etc.\n\n  A person contravenes this section if:\n\n (a) the person is an accredited person; and\n\n (b) the person’s accreditation authorises the person to initiate a type of CDR action; and\n\n (c) the person engages in conduct that includes:\n\n (i) proposing to a potential CDR consumer for a CDR action of that type that the person give a valid instruction under the consumer data rules for the performance of the CDR action; or\n\n (ii) giving a valid instruction under the consumer data rules for the performance of a CDR action of that type; and\n\n (d) the person fails to act efficiently, honestly and fairly in relation to a matter described in subparagraph (c)(i) or (ii).\n\nNote: For enforcement, see Part VI (including section 76 for an order for payment of a pecuniary penalty).","sortOrder":786},{"sectionNumber":"56BZB","sectionType":"section","heading":"Accredited persons must only initiate CDR actions in accordance with CDR consumers’ valid requests etc.","content":"56BZB  Accredited persons must only initiate CDR actions in accordance with CDR consumers’ valid requests etc.\n\n  A person contravenes this section if:\n\n (a) the person is an accredited person; and\n\n (b) the person’s accreditation authorises the person to initiate a type of CDR action; and\n\n (c) the person purports to give a valid instruction:\n\n (i) for the performance of a CDR action of that type; and\n\n (ii) to an action service provider for a CDR action of that type; and\n\n (iii) on behalf of a CDR consumer for the CDR action; and\n\n (d) when purporting to give that instruction:\n\n (i) there was no valid request by the consumer, made in accordance with the consumer data rules, for the giving of that instruction; or\n\n (ii) the person had failed to comply with a requirement in the consumer data rules for giving a valid instruction for a CDR action of that type.\n\nNote: For enforcement, see Part VI (including section 76 for an order for payment of a pecuniary penalty).","sortOrder":787},{"sectionNumber":"56BZC","sectionType":"section","heading":"No discrimination against CDR action instructions—service provider fails to perform CDR actions when it ordinarily performs actions of that type","content":"56BZC  No discrimination against CDR action instructions—service provider fails to perform CDR actions when it ordinarily performs actions of that type\n\n  A person contravenes this section if:\n\n (a) the person is an action service provider for a type of CDR action; and\n\n (b) the person is given a valid instruction under the consumer data rules to perform a CDR action of that type; and\n\n (c) the person fails to perform the CDR action in accordance with the valid instruction; and\n\n (d) having regard to criteria in the consumer data rules, the person would ordinarily perform actions of that type in the course of the person’s business.\n\nNote: For enforcement, see Part VI (including section 76 for an order for payment of a pecuniary penalty).","sortOrder":788},{"sectionNumber":"56BZD","sectionType":"section","heading":"No discrimination against CDR action instructions—service provider’s fees relating to CDR actions","content":"56BZD  No discrimination against CDR action instructions—service provider’s fees relating to CDR actions\n\nNo discrimination against CDR action instructions via fees\n\n (1) A person contravenes this subsection if:\n\n (a) the person is an action service provider for a type of CDR action; and\n\n (b) the person is given a valid instruction under the consumer data rules to perform a CDR action of that type; and\n\n (c) the person charges (or causes to be charged) one or more fees for either or both of the following matters:\n\n (i) processing the valid instruction;\n\n (ii) performing the CDR action in accordance with the valid instruction; and\n\n (d) either subsection (2) or (3) applies to those fees.\n\nNote: For enforcement, see Part VI (including section 76 for an order for payment of a pecuniary penalty).\n\nFirst case—charging inappropriate fees at the instruction layer\n\n (2) This subsection applies to fees, to the extent they are for processing the valid instruction, if:\n\n (a) the consumer data rules have not declared, as described in subsection 56BGA(2), that fees may be charged (or caused to be charged) for processing valid instructions for CDR actions of that type; or\n\n (b) the fees for processing the valid instruction exceed any fees:\n\n (i) determined under subsection 56BZE(1) or (2) for the person; or\n\n (ii) worked out from a method determined under subsection 56BZE(1) or (2) for the person;\n\n  for processing the valid instruction.\n\nNote: This protects the integrity of the CDR action regime by discouraging the person from charging inappropriate fees at the instruction layer.\n\nSecond case—charging higher than ordinary fees at the action layer\n\n (3) This subsection applies to fees, to the extent they are for performing the CDR action in accordance with the valid instruction, if those fees exceed the fees that the person would ordinarily charge for performing actions of that type in the course of the person’s business.\n\nNote: This confirms that the person can continue to charge what the person ordinarily charges at the action layer, but no more than this.\n\n (4) To work out the fees that the person would ordinarily charge for performing actions of that type in the course of the person’s business, have regard to any criteria specified in the consumer data rules.","sortOrder":789},{"sectionNumber":"56BZE","sectionType":"section","heading":"Commission may intervene if fee for processing a valid instruction for a CDR action is unreasonable","content":"56BZE  Commission may intervene if fee for processing a valid instruction for a CDR action is unreasonable\n\nIntervening for a class of action service providers\n\n (1) The Commission may, by legislative instrument, determine:\n\n (a) the amount of a fee that a specified class of action service providers for a type of CDR action may charge (or cause to be charged) for processing a valid instruction for a CDR action of that type; or\n\n (b) a method for working out the amount of such a fee;\n\nif subsection (3) applies for the fee and CDR actions of that type.\n\nIntervening for a particular action service provider\n\n (2) The Commission may, by written notice given to an action service provider for a type of CDR action, determine:\n\n (a) the amount of a fee that the provider may charge (or cause to be charged) for processing a valid instruction for a CDR action of that type; or\n\n (b) a method for working out the amount of such a fee;\n\nif subsection (3) applies for the fee and CDR actions of that type.\n\nNote: The determination is reviewable (see Subdivision F).\n\nConditions in order to intervene\n\n (3) This subsection applies for a fee and a type of CDR action if:\n\n (a) the consumer data rules have declared, as described in subsection 56BGA(2), that fees may be charged (or caused to be charged) for processing valid instructions for CDR actions of that type; and\n\n (b) the Commission is satisfied that the fee that would otherwise be charged (or caused to be charged) is unreasonable having regard to the criteria in subsection (5).\n\nMatters and criteria when intervening\n\n (4) When determining an amount or method under subsection (1) or (2), the Commission must seek to ensure that the resulting fee:\n\n (a) reflects the reasonable costs (including capital costs) necessary for the providers or provider to comply with this Part and the consumer data rules in relation to processing the valid instruction; and\n\n (b) is reasonable having regard to the criteria in subsection (5).\n\n (5) The criteria for the purposes of subsection (3) and paragraph (4)(b) are:\n\n (a) the matters in subparagraphs 56AD(1)(a)(i), (ii) and (iv) to (vi); and\n\n (b) the marginal cost of processing the valid instruction in accordance with the consumer data rules; and\n\n (c) whether a lower fee could result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph); and\n\n (d) whether a lower fee would reduce the incentive to perform actions of that type; and\n\n (e) any other matters the Commission considers relevant.\n\nOther matters\n\n (6) The Commission may publish a determination under subsection (2) on the Commission’s website.\n\n (7) A fee determined under subsection (1) or (2) must not be such as to amount to taxation.","sortOrder":790},{"sectionNumber":"56BZF","sectionType":"section","heading":"Review by the Tribunal of determinations about fees of particular participants or providers","content":"56BZF  Review by the Tribunal of determinations about fees of particular participants or providers\n\n (1) If the Commission makes a determination under subsection 56BV(2) or 56BZE(2):\n\n (a) the CDR participant or action service provider specified in the determination; or\n\n (b) a person whose interests are affected by the determination;\n\nmay apply in writing to the Tribunal for a review of the determination.\n\n (2) An application under this section for a review of a determination must be made within 21 days after the day the Commission made the determination.\n\n (3) If the Tribunal receives an application under this section for a review of a determination, the Tribunal must review the determination.","sortOrder":792},{"sectionNumber":"56BZG","sectionType":"section","heading":"Functions and powers of Tribunal","content":"56BZG  Functions and powers of Tribunal\n\n (1) On a review of a determination made under subsection 56BV(2) or 56BZE(2), the Tribunal:\n\n (a) may make a decision affirming, setting aside or varying the determination; and\n\n (b) for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.\n\n (2) A decision by the Tribunal affirming, setting aside or varying such a determination is taken for the purposes of this Act (other than this Subdivision) to be a determination of the Commission.\n\n (3) For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.\n\n (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 determination to which the review relates.\n\nNote: Division 2 of Part IX applies to proceedings before the Tribunal.","sortOrder":793},{"sectionNumber":"56BZH","sectionType":"section","heading":"Provisions that do not apply in relation to a Tribunal review","content":"56BZH  Provisions that do not apply in relation to a Tribunal review\n\n  Division 1 of Part IX does not apply in relation to a review by the Tribunal of a determination made under subsection 56BV(2) or 56BZE(2).","sortOrder":794},{"sectionNumber":"56BZI","sectionType":"section","heading":"Prohibition on holding out that a person is something they are not—offence","content":"56BZI  Prohibition on holding out that a person is something they are not—offence\n\n (1) A person commits an offence if the person holds out that:\n\n (a) the person is an accredited person; or\n\n (b) the person is an accredited person holding an accreditation that has been granted at a particular level (see paragraph 56BH(1)(d)); or\n\n (c) the person is an accredited person holding an accreditation that authorises the person to do something (see paragraph 56BH(1)(da)); or\n\n (d) the person is an accredited data recipient of CDR data; or\n\n (e) the person is an accredited action initiator for a type of CDR action; or\n\n (f) the person is an action service provider for a type of CDR action; or\n\n (g) the person is approved as an action service provider at a particular level (see paragraph 56BHA(1)(d)); or\n\n (h) the person’s approval as an action service provider authorises the person to do something (see paragraph 56BHA(1)(e));\n\nif that is not the case.\n\nPenalty—body corporate\n\n (2) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $10,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—10% of the adjusted turnover of the body corporate during the 12‑month period ending at the end of the month in which the commission of the offence happened or began.\n\nPenalty—other persons\n\n (3) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by imprisonment for not more than 5 years, a fine of not more than $500,000, or both.","sortOrder":796},{"sectionNumber":"56BZJ","sectionType":"section","heading":"Prohibition on holding out that a person is something they are not—civil penalty","content":"56BZJ  Prohibition on holding out that a person is something they are not—civil penalty\n\n  A person must not hold out that:\n\n (a) the person is an accredited person; or\n\n (b) the person is an accredited person holding an accreditation that has been granted at a particular level (see paragraph 56BH(1)(d)); or\n\n (c) the person is an accredited person holding an accreditation that authorises the person to do something (see paragraph 56BH(1)(da)); or\n\n (d) the person is an accredited data recipient of CDR data; or\n\n (e) the person is an accredited action initiator for a type of CDR action; or\n\n (f) the person is an action service provider for a type of CDR action; or\n\n (g) the person is approved as an action service provider at a particular level (see paragraph 56BHA(1)(d)); or\n\n (h) the person’s approval as an action service provider authorises the person to do something (see paragraph 56BHA(1)(e));\n\nif that is not the case.\n\nNote: For enforcement, see Part VI (including section 76 for an order for payment of a pecuniary penalty).","sortOrder":797},{"sectionNumber":"56CA","sectionType":"section","heading":"Granting accreditations","content":"56CA  Granting accreditations\n\n (1) The CDR Accreditor may, in writing, accredit a person if the CDR Accreditor is satisfied that the person meets the criteria for accreditation specified in the consumer data rules.\n\n (2) To avoid doubt, a person may be accredited even if the person:\n\n (a) is not a body corporate established by or under a law of the Commonwealth, of a State or of a Territory; and\n\n (b) is neither an Australian citizen, nor a permanent resident (within the meaning of the Australian Citizenship Act 2007).\n\n (3) An accreditation is granted on the basis that no compensation is payable if the accreditation is varied, transferred, suspended, revoked or surrendered in any way.","sortOrder":800},{"sectionNumber":"56CB","sectionType":"section","heading":"Review of decisions refusing to accredit","content":"56CB  Review of decisions refusing to accredit\n\n  Applications may be made to the Administrative Review Tribunal for review of decisions of the CDR Accreditor under subsection 56CA(1) refusing to accredit persons.\n\nNote: For review by the Administrative Review Tribunal of decisions to vary, suspend or revoke accreditations, see subsection 56BH(4).","sortOrder":801},{"sectionNumber":"56CE","sectionType":"section","heading":"Register of Accredited Persons","content":"56CE  Register of Accredited Persons\n\n (1) The Accreditation Registrar must establish and maintain a register for the purposes of this Part, to be known as the Register of Accredited Persons.\n\n (2) The Accreditation Registrar must maintain the register by electronic means.\n\n (3) The register is not a legislative instrument.\n\n (4) The consumer data rules may make provision for or in relation to the following:\n\n (a) the inclusion in the register of entries for accredited persons;\n\n (b) the correction of entries in the register;\n\n (c) the publication or availability of all or part of the register, or of specified information in the register;\n\n (d) any other matter relating to the content, administration or operation of the register.","sortOrder":803},{"sectionNumber":"56CF","sectionType":"section","heading":"Evidentiary value of the register","content":"56CF  Evidentiary value of the register\n\n (1) The register is admissible in any proceedings as prima facie evidence of the matters in it.\n\n (2) The Accreditation Registrar may issue a document containing the details of a matter taken from the register.\n\n (3) The document issued under subsection (2) is admissible in any proceedings as prima facie evidence of the matter.","sortOrder":804},{"sectionNumber":"56CG","sectionType":"section","heading":"Appointment of the CDR Accreditor","content":"56CG  Appointment of the CDR Accreditor\n\n (1) The Minister may, by written instrument, appoint as the CDR Accreditor a person who:\n\n (a) is the accountable authority of a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); or\n\n (b) is a Commonwealth entity (within the meaning of that Act).\n\nNote 1: For variation, see subsection 33(3) of the Acts Interpretation Act 1901.\n\nNote 2: The Commission will be the CDR Accreditor in the absence of an appointment under this subsection (see the definition of CDR Accreditor in subsection 4(1)).\n\n (2) The Minister may, at any time by written instrument, terminate an appointment made under subsection (1).","sortOrder":806},{"sectionNumber":"56CH","sectionType":"section","heading":"Functions, powers and annual report","content":"56CH  Functions, powers and annual report\n\n (1) The functions of the CDR Accreditor are:\n\n (a) to accredit persons under subsection 56CA(1); and\n\n (b) such other functions as are conferred by the consumer data rules.\n\n (2) The CDR Accreditor has the power to do all other things necessary or convenient to be done for or in connection with the performance of the CDR Accreditor’s functions.\n\n (3) To avoid doubt, for a person who is the CDR Accreditor, both:\n\n (a) the person’s functions and powers in their capacity other than as the CDR Accreditor (their primary capacity); and\n\n (b) if the person is not a body corporate—the functions that may be performed, and the powers that may be exercised, by anyone appointed under a Commonwealth law to act as the person in that primary capacity;\n\nare taken to include the functions and powers of the CDR Accreditor while the person is the CDR Accreditor.\n\n (4) If:\n\n (a) a person is the CDR Accreditor at any time during a period; and\n\n (b) an annual report for the period is prepared under section 46 of the Public Governance, Performance and Accountability Act 2013:\n\n (i) by the person in the person’s primary capacity; or\n\n (ii) about the person in the person’s primary capacity;\n\nthe annual report must include information about the performance of the CDR Accreditor’s functions, and the exercise of the CDR Accreditor’s powers, at that time.","sortOrder":807},{"sectionNumber":"56CI","sectionType":"section","heading":"Directions by Minister","content":"56CI  Directions by Minister\n\n (1) The Minister may, by legislative instrument, give written directions to the CDR Accreditor about the performance of its functions and the exercise of its powers.\n\nNote: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).\n\n (2) A direction under subsection (1) must be of a general nature only.\n\n (3) The CDR Accreditor must comply with a direction under subsection (1).","sortOrder":808},{"sectionNumber":"56CJ","sectionType":"section","heading":"Delegation","content":"56CJ  Delegation\n\n (1) The CDR Accreditor may delegate any or all of the CDR Accreditor’s functions or powers to:\n\n (a) an SES employee, or an acting SES employee, in the Department, in the Commission or in the Commonwealth entity appointed under paragraph 56CG(1)(b) (if any); or\n\n (b) an APS employee who is holding or performing the duties of a specified office or position that:\n\n (i) is in the Department, in the Commission or in the Commonwealth entity appointed under paragraph 56CG(1)(b) (if any); and\n\n (ii) is an office or position that the CDR Accreditor is satisfied is sufficiently senior for the APS employee to perform the function or exercise the power.\n\n (2) In doing anything under a delegation under this section, the delegate must comply with any directions of the CDR Accreditor.","sortOrder":809},{"sectionNumber":"56CK","sectionType":"section","heading":"Appointment of the Accreditation Registrar","content":"56CK  Appointment of the Accreditation Registrar\n\n (1) The Minister may, by written instrument, appoint as the Accreditation Registrar a person who:\n\n (a) is the accountable authority of a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); or\n\n (b) is a Commonwealth entity (within the meaning of that Act).\n\nNote 1: For variation, see subsection 33(3) of the Acts Interpretation Act 1901.\n\nNote 2: The Commission will be the Accreditation Registrar in the absence of an appointment under this subsection (see the definition of Accreditation Registrar in subsection 4(1)).\n\n (2) The Minister may, at any time by written instrument, terminate an appointment made under subsection (1).","sortOrder":811},{"sectionNumber":"56CL","sectionType":"section","heading":"Functions, powers and annual report","content":"56CL  Functions, powers and annual report\n\n (1) The functions of the Accreditation Registrar are:\n\n (a) those described in Subdivision B; and\n\n (b) such other functions as are conferred by the consumer data rules.\n\n (2) The Accreditation Registrar has the power to do all other things necessary or convenient to be done for or in connection with the performance of the Accreditation Registrar’s functions.\n\n (3) To avoid doubt, for a person who is the Accreditation Registrar, both:\n\n (a) the person’s functions and powers in their capacity other than as the Accreditation Registrar (their primary capacity); and\n\n (b) if the person is not a body corporate—the functions that may be performed, and the powers that may be exercised, by anyone appointed under a Commonwealth law to act as the person in that primary capacity;\n\nare taken to include the functions and powers of the Accreditation Registrar while the person is the Accreditation Registrar.\n\n (4) If:\n\n (a) a person is the Accreditation Registrar at any time during a period; and\n\n (b) an annual report for the period is prepared under section 46 of the Public Governance, Performance and Accountability Act 2013:\n\n (i) by the person in the person’s primary capacity; or\n\n (ii) about the person in the person’s primary capacity;\n\nthe annual report must include information about the performance of the Accreditation Registrar’s functions, and the exercise of the Accreditation Registrar’s powers, at that time.","sortOrder":812},{"sectionNumber":"56CM","sectionType":"section","heading":"Directions by Minister","content":"56CM  Directions by Minister\n\n (1) The Minister may, by legislative instrument, give written directions to the Accreditation Registrar about the performance of its functions and the exercise of its powers.\n\nNote: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).\n\n (2) A direction under subsection (1) must be of a general nature only.\n\n (3) The Accreditation Registrar must comply with a direction under subsection (1).","sortOrder":813},{"sectionNumber":"56CN","sectionType":"section","heading":"Delegation","content":"56CN  Delegation\n\n (1) The Accreditation Registrar may delegate any or all of the Accreditation Registrar’s functions or powers to:\n\n (a) an SES employee, or an acting SES employee, in the Department, in the Commission or in the Commonwealth entity appointed under paragraph 56CK(1)(b) (if any); or\n\n (b) an APS employee who is holding or performing the duties of a specified office or position that:\n\n (i) is in the Department, in the Commission or in the Commonwealth entity appointed under paragraph 56CK(1)(b) (if any); and\n\n (ii) is an office or position that the Accreditation Registrar is satisfied is sufficiently senior for the APS employee to perform the function or exercise the power.\n\nNote: For the Registrar’s functions and powers, see section 56CE.\n\n (2) In doing anything under a delegation under this section, the delegate must comply with any directions of the Accreditation Registrar.","sortOrder":814},{"sectionNumber":"56DA","sectionType":"section","heading":"Minister may recognise external dispute resolution schemes","content":"56DA  Minister may recognise external dispute resolution schemes\n\nRecognising an external dispute resolution scheme\n\n (1) The Minister may, by notifiable instrument, recognise an external dispute resolution scheme for the resolution of disputes:\n\n (a) relating to the operation of the consumer data rules, or this Part, in relation to one or more designated sectors or types of CDR actions; and\n\n (b) involving one or more of the following:\n\n (i) CDR participants for CDR data;\n\n (ii) CDR consumers for CDR data;\n\n (iii) designated gateways for CDR data;\n\n (iiia) CDR action participants;\n\n (iiib) CDR consumers for CDR actions;\n\n (iv) other persons relating to any of those designated sectors or types of CDR actions.\n\nNote 1: The consumer data rules may require internal dispute resolution schemes, see paragraph 56BJ(g).\n\nNote 2: For variation and repeal, see subsection 33(3) of the Acts Interpretation Act 1901.\n\n (2) The Minister may, in the instrument under subsection (1):\n\n (a) specify a period for which the recognition of the external dispute resolution scheme is in force; and\n\n (b) make the recognition of the external dispute resolution scheme subject to specified conditions, including conditions relating to the conduct of an independent review of the operation of the scheme.\n\nBefore recognising an external dispute resolution scheme\n\n (3) Before recognising an external dispute resolution scheme under subsection (1), the Minister must consider:\n\n (a) the accessibility of the scheme; and\n\n (b) the independence of the scheme; and\n\n (c) the fairness of the scheme; and\n\n (d) the accountability of the scheme; and\n\n (e) the efficiency of the scheme; and\n\n (f) the effectiveness of the scheme; and\n\n (g) any other matters the Minister considers relevant.\n\n (4) Before recognising an external dispute resolution scheme under subsection (1), the Minister must arrange for the Information Commissioner to be consulted about the scheme.\n\n (5) A failure to comply with subsection (4) does not invalidate an instrument made under subsection (1).","sortOrder":816},{"sectionNumber":"56EA","sectionType":"section","heading":"Simplified outline","content":"56EA  Simplified outline\n\nThis Division sets out privacy safeguards that protect the privacy or confidentiality of CDR consumers’ CDR data, whether the CDR consumers are individuals or bodies corporate.\n\nThe privacy safeguards apply mainly to accredited persons, but also to data holders, designated gateways and action service providers, in relation to their handling or future handling of the CDR data.\n\nThe circumstances in which these safeguards can apply to an accredited person include where the person is an accredited action initiator for a type of CDR action who is or may become an accredited data recipient of CDR data.\n\nA person’s failure to comply with any of these safeguards may lead to consequences, including liability to a civil penalty (see Subdivision G) or the suspension or revocation of the person’s accreditation (see subsection 56BH(3)).","sortOrder":819},{"sectionNumber":"56EB","sectionType":"section","heading":"Kinds of CDR data to which the privacy safeguards apply","content":"56EB  Kinds of CDR data to which the privacy safeguards apply\n\n (1) The privacy safeguards only apply to CDR data for which there are one or more CDR consumers.\n\nNote: One requirement for CDR data to have a CDR consumer is that there needs to be at least one person who is identifiable, or reasonably identifiable, from the CDR data or from related information (see paragraph 56AI(3)(c)).\n\n (2) The privacy safeguards apply to CDR data whether the CDR data is true or not.","sortOrder":820},{"sectionNumber":"56EC","sectionType":"section","heading":"Relationship with other laws","content":"56EC  Relationship with other laws\n\nRelationship with the consumer data rules\n\n (1) If there is an inconsistency between the privacy safeguards and the consumer data rules, those safeguards prevail over those rules to the extent of the inconsistency.\n\n (2) However, the consumer data rules are taken to be consistent with the privacy safeguards to the extent that they are capable of operating concurrently.\n\nNote: This means that the privacy safeguards do not cover the field that they deal with.\n\nRelationship with the Privacy Act 1988\n\n (3) This Division does not limit Part IIIA (about credit reporting) of the Privacy Act 1988. However, the regulations may declare that in specified circumstances that Part applies in relation to CDR data as if specified provisions of that Part were omitted, modified or varied as specified in the declaration.\n\n (4) Despite the Privacy Act 1988:\n\n (a) the Australian Privacy Principles do not apply to an accredited data recipient of CDR data in relation to the CDR data; and\n\n (aa) if section 56ED or 56EE applies to an accredited person in relation to CDR data—the corresponding Australian Privacy Principle does not apply to the accredited person in relation to the CDR data; and\n\n (ab) if section 56EF or 56EG applies to a person:\n\n (i) who is an accredited person; or\n\n (ii) as a CDR action participant;\n\n  in relation to CDR data—the corresponding Australian Privacy Principle does not apply to the person in relation to the CDR data; and\n\n (b) if section 56EN applies to a disclosure of CDR data by a person:\n\n (i) who is a data holder of the CDR data; or\n\n (ii) as an action service provider for a type of CDR action;\n\n  then Australian Privacy Principle 10 does not apply to the person in relation to that disclosure of the CDR data; and\n\n (c) if subsection 56EP(1) applies to CDR data and a person:\n\n (i) who is a data holder of the CDR data; or\n\n (ii) as an action service provider for a type of CDR action;\n\n  then Australian Privacy Principle 13 does not apply to the person in relation to the CDR data; and\n\n (d) Australian Privacy Principles 6, 7 and 11 do not apply to a designated gateway for CDR data in relation to the CDR data; and\n\n (e) if a small business operator (within the meaning of the Privacy Act 1988) is an action service provider for a type of CDR action, the Privacy Act 1988 applies:\n\n (i) subject to paragraphs (ab) to (c) of this subsection; and\n\n (ii) in relation to personal information disclosed to the provider under the consumer data rules;\n\n  as if the provider were an organisation (within the meaning of the Privacy Act 1988).\n\nNote 1: For the accredited data recipient, the privacy safeguards will apply instead.\n\nNote 2: Section 56EN (or privacy safeguard 11) is about the quality of CDR data. Section 56EP (or privacy safeguard 13) is about correcting CDR data.\n\n (5) Apart from paragraphs (4)(aa) to (d), this Division does not affect how the Australian Privacy Principles apply to:\n\n (aa) an accredited person who does not become an accredited data recipient of the CDR data; or\n\n (a) a data holder of CDR data in relation to the CDR data; or\n\n (b) a designated gateway for CDR data in relation to the CDR data; or\n\n (c) a person as an action service provider, for a type of CDR action, in relation to CDR data.\n\nNote 1: Privacy safeguard 1 will apply to a data holder, designated gateway or action service provider in parallel to Australian Privacy Principle 1.\n\nNote 2: The consumer data rules (which are made under Division 2) will affect how the Australian Privacy Principles apply. Requirements and authorisations under those rules will be requirements or authorisations under an Australian law for the purposes of the Australian Privacy Principles.","sortOrder":821},{"sectionNumber":"56ED","sectionType":"section","heading":"Privacy safeguard 1—open and transparent management of CDR data","content":"56ED  Privacy safeguard 1—open and transparent management of CDR data\n\nObject\n\n (1) The object of this section is to ensure that each person (a CDR entity) who:\n\n (a) is a data holder of CDR data; or\n\n (b) is an accredited person who is or who may become an accredited data recipient of CDR data; or\n\n (c) is a designated gateway for CDR data; or\n\n (d) as an action service provider for a type of CDR action, has been or may be disclosed CDR data under the consumer data rules;\n\nmanages the CDR data in an open and transparent way.\n\nCompliance with this Part etc.\n\n (2) The CDR entity must take such steps as are reasonable in the circumstances to implement practices, procedures and systems that:\n\n (a) will ensure that the CDR entity complies with this Part and the consumer data rules; and\n\n (b) will enable the CDR entity to deal with inquiries or complaints from a CDR consumer for the CDR data about the CDR entity’s compliance with this Part or the consumer data rules.\n\nPolicy about the management of CDR data\n\n (3) The CDR entity must have and maintain a clearly expressed and up‑to‑date policy that:\n\n (a) is about the CDR entity’s management of CDR data; and\n\n (b) is in a form approved in accordance with the consumer data rules; and\n\n (c) contains the information required by subsections (4), (5), (6) and (6A) (as applicable).\n\nNote: This subsection is a civil penalty provision (see section 56EU).\n\n (4) If the CDR entity is a data holder of any CDR data, the CDR entity’s policy must contain the following information:\n\n (a) how a CDR consumer for the CDR data may access the CDR data and seek the correction of the CDR data;\n\n (b) how a CDR consumer for the CDR data may complain about a failure of the CDR entity to comply with this Part or the consumer data rules, and how the CDR entity will deal with such a complaint.\n\n (5) If the CDR entity is an accredited person who is or who may become an accredited data recipient of any CDR data, the CDR entity’s policy must contain the following information:\n\n (a) the classes of CDR data that is or may become held by (or on behalf of) the CDR entity as an accredited data recipient, and how such CDR data is held or is to be held;\n\n (b) the purposes for which the CDR entity may collect, hold, use or disclose such CDR data with the consent of a CDR consumer for the CDR data;\n\n (c) how a CDR consumer for such CDR data may access the CDR data and seek the correction of the CDR data;\n\n (d) how a CDR consumer for such CDR data may complain about a failure of the CDR entity to comply with this Part or the consumer data rules, and how the CDR entity will deal with such a complaint;\n\n (e) whether the CDR entity is likely to disclose such CDR data to accredited persons who are based overseas;\n\n (f) if the CDR entity is likely to disclose such CDR data to accredited persons who are based overseas—the countries in which such persons are likely to be based if it is practicable to specify those countries in the policy;\n\n (g) the circumstances in which the CDR entity may disclose such CDR data to a person who is not an accredited person;\n\n (h) the events about which the CDR entity will notify the CDR consumers of such CDR data;\n\n (i) the circumstances in which the CDR entity must delete or de‑identify such CDR data in accordance with a request given by a CDR consumer for the CDR data under the consumer data rules.\n\n (6) If the CDR entity is a designated gateway for any CDR data, the CDR entity’s policy must contain the following information:\n\n (a) an explanation of how the CDR entity, as a designated gateway, will act between persons to facilitate:\n\n (i) the disclosure of CDR data; or\n\n (ii) the accuracy of CDR data; or\n\n (iii) other matters;\n\n  under the consumer data rules;\n\n (b) how a CDR consumer for such CDR data may complain about a failure of the CDR entity to comply with this Part or the consumer data rules, and how the CDR entity will deal with such a complaint.\n\n (6A) If the CDR entity is a person who, as an action service provider for a type of CDR action, has been or may be disclosed CDR data under the consumer data rules, the CDR entity’s policy must contain the following information:\n\n (a) how a CDR consumer for the CDR data may access the CDR data and seek the correction of the CDR data;\n\n (b) how a CDR consumer for the CDR data may complain about a failure of the CDR entity to comply with this Part or the consumer data rules, and how the CDR entity will deal with such a complaint.\n\nAvailability of policy etc.\n\n (7) The CDR entity must make the CDR entity’s policy available:\n\n (a) free of charge; and\n\n (b) in accordance with the consumer data rules.\n\nNote: One way the consumer data rules could require the policy to be made available is to require the policy to be made available in accordance with a data standard.\n\n (8) If a copy of the CDR entity’s policy is requested by a CDR consumer for the CDR data, the CDR entity must give the CDR consumer a copy in accordance with the consumer data rules.","sortOrder":823},{"sectionNumber":"56EE","sectionType":"section","heading":"Privacy safeguard 2—anonymity and pseudonymity","content":"56EE  Privacy safeguard 2—anonymity and pseudonymity\n\n (1) A person who is:\n\n (a) an accredited data recipient of CDR data; or\n\n (b) an accredited person who may become an accredited data recipient of CDR data;\n\nmust give each CDR consumer for that CDR data the option of using a pseudonym, or not identifying themselves, when dealing with the person in relation to that CDR data.\n\nNote: The CDR participant from whom the person acquired (or may acquire) the CDR data may be subject to a similar obligation under Australian Privacy Principle 2.\n\n (2) That option may be given to a CDR consumer for the CDR data through a designated gateway for the CDR data.\n\n (3) Subsection (1) does not apply in the circumstances specified in the consumer data rules.","sortOrder":824},{"sectionNumber":"56EF","sectionType":"section","heading":"Privacy safeguard 3—soliciting CDR data from participants under the consumer data rules","content":"56EF  Privacy safeguard 3—soliciting CDR data from participants under the consumer data rules\n\n (1) A person covered by column 1 of an item of the following table must not seek to collect CDR data under the consumer data rules from another person covered by column 2 of that item unless:\n\n (a) a CDR consumer for the CDR data has validly requested this under the consumer data rules for the purposes described in column 3 of that item; and\n\n (b) the person complies with all other requirements in the consumer data rules for the collection of the CDR data from that other person.\n\n\n\n- Soliciting CDR data from participants under the consumer data rules\n- Item Column 1A person who: Column 2must not seek to collect CDR data from: Column 3unless a CDR consumer for the CDR data has requested this for the purposes of:\n- 1 is an accredited person a CDR participant for the CDR data a use or disclosure under the consumer data rules\n- 2 is acting as one of the kinds of CDR action participant the other kind of CDR action participant a valid instruction to be given:(a) by one of the CDR action participants (as an accredited action initiator for a type of CDR action) to the other; and(b) under the consumer data rules; and(c) for the performance of a CDR action of that type\n\n\nNote 1: For item 2, the kinds of CDR action participants are accredited action initiators and action service providers (see section 56AMD).\n\nNote 2: For column 3 of item 2, the CDR consumer for the CDR data would need to have requested the collection of the CDR data as a CDR consumer for the CDR action.\n\nNote 3: This subsection is a civil penalty provision (see section 56EU).\n\n (2) Subsection (1) applies whether the collection is directly or indirectly from the person covered by column 2 of the table.\n\nNote: The collection (whether direct or indirect) would need to be under the consumer data rules for subsection (1) to apply.\n\nExample: The valid request referred to in column 3 of item 1 of the table could be given under the consumer data rules through a designated gateway (see section 56BG).","sortOrder":826},{"sectionNumber":"56EG","sectionType":"section","heading":"Privacy safeguard 4—dealing with unsolicited CDR data from participants in CDR","content":"56EG  Privacy safeguard 4—dealing with unsolicited CDR data from participants in CDR\n\n (1) A person must destroy CDR data as soon as practicable after collecting it if:\n\n (a) the person (the collector) collected the CDR data while covered by column 1 of an item of the following table, and from a person covered by column 2 of that item; and\n\n (b) the collector collected the CDR data:\n\n (i) purportedly under the consumer data rules; but\n\n (ii) not as the result of seeking to collect the CDR data under the consumer data rules; and\n\n (c) the collector is not required to retain the CDR data by or under an Australian law or a court/tribunal order; and\n\n (d) in the case where item 3 of the table applies, the circumstances specified in the consumer data rules do not apply.\n\n\n\n- Dealing with unsolicited CDR data from participants in CDR\n- Item Column 1A collector who: Column 2collects the CDR data from:\n- 1 is an accredited person a CDR participant for the CDR data\n- 2 as an accredited action initiator for a type of CDR action an action service provider for that type of CDR action\n- 3 as an action service provider for a type of CDR action an accredited action initiator for that type of CDR action\n\n\nNote: This subsection is a civil penalty provision (see section 56EU).\n\n (2) Subsection (1) applies whether the collection is directly or indirectly from the person mentioned in column 2 of the table.\n\nExample: For item 1 of the table, the collection could be from the CDR participant through a designated gateway (see section 56BG).","sortOrder":827},{"sectionNumber":"56EH","sectionType":"section","heading":"Privacy safeguard 5—notifying of the collection of CDR data","content":"56EH  Privacy safeguard 5—notifying of the collection of CDR data\n\n  If an accredited data recipient of CDR data collected the CDR data in accordance with section 56EF, the accredited data recipient must:\n\n (a) take the steps specified in the consumer data rules to notify CDR consumers for the CDR data of the collection; and\n\n (b) ensure that this notification:\n\n (i) is given to those of the CDR consumers (if there are more than one) that the consumer data rules require to be notified; and\n\n (ii) covers the matters specified in those rules; and\n\n (iii) is given at or before the time specified in those rules.\n\nNote 1: The accredited data recipient could have collected the CDR data in accordance with section 56EF as an accredited action initiator, and from an action service provider, for the purposes of giving a valid instruction of the kind described in item 2 of the table in that section.\n\nNote 2: This section is a civil penalty provision (see section 56EU).","sortOrder":828},{"sectionNumber":"56EI","sectionType":"section","heading":"Privacy safeguard 6—use or disclosure of CDR data by accredited data recipients or designated gateways","content":"56EI  Privacy safeguard 6—use or disclosure of CDR data by accredited data recipients or designated gateways\n\n (1) An accredited data recipient of CDR data must not use or disclose it unless:\n\n (a) in the case of a disclosure—the disclosure is required under the consumer data rules in response to a valid request from a CDR consumer for the CDR data; or\n\n (b) the use or disclosure is otherwise required, or authorised, under the consumer data rules; or\n\n (c) the use or disclosure is required or authorised by or under:\n\n (i) another Australian law; or\n\n (ii) a court/tribunal order;\n\n  and the accredited data recipient makes a written note of the use or disclosure.\n\nNote 1: This subsection is a civil penalty provision (see section 56EU).\n\nNote 2: The valid request referred to in paragraph (a) could be given through a designated gateway (see section 56BG).\n\nNote 3: The Australian Privacy Principles will not apply for subparagraph (c)(i) (see paragraph 56EC(4)(a)).\n\n (2) A designated gateway for CDR data must not use or disclose it unless:\n\n (a) in the case of a disclosure—the disclosure is required under the consumer data rules; or\n\n (b) the use or disclosure is authorised under the consumer data rules; or\n\n (c) the use or disclosure is required or authorised by or under:\n\n (i) another Australian law; or\n\n (ii) a court/tribunal order;\n\n  and the designated gateway makes a written note of the use or disclosure in accordance with the consumer data rules.\n\nNote 1: This subsection is a civil penalty provision (see section 56EU).\n\nNote 2: Australian Privacy Principle 6 will not apply for subparagraph (c)(i) (see paragraph 56EC(4)(d)).\n\n (3) Neither subsection (1) nor (2) applies to the use or disclosure of CDR data for the purposes of direct marketing.\n\nNote: Section 56EJ deals with the use or disclosure of CDR data for the purposes of direct marketing.","sortOrder":830},{"sectionNumber":"56EJ","sectionType":"section","heading":"Privacy safeguard 7—use or disclosure of CDR data for direct marketing by accredited data recipients or designated gateways","content":"56EJ  Privacy safeguard 7—use or disclosure of CDR data for direct marketing by accredited data recipients or designated gateways\n\n (1) An accredited data recipient of CDR data must not use or disclose it for direct marketing unless:\n\n (a) in the case of a disclosure—the disclosure is required under the consumer data rules in response to a valid request from a CDR consumer for the CDR data; or\n\n (b) the use or disclosure is authorised under the consumer data rules in accordance with a valid consent of a CDR consumer for the CDR data.\n\nNote 1: This subsection is a civil penalty provision (see section 56EU).\n\nNote 2: The valid request referred to in paragraph (a), or the valid consent referred to in paragraph (b), could be given through a designated gateway (see section 56BG).\n\n (2) A designated gateway for CDR data must not use or disclose it for direct marketing unless:\n\n (a) in the case of a disclosure—the disclosure is required under the consumer data rules; or\n\n (b) the use or disclosure is authorised under the consumer data rules.\n\nNote: This subsection is a civil penalty provision (see section 56EU).","sortOrder":831},{"sectionNumber":"56EK","sectionType":"section","heading":"Privacy safeguard 8—overseas disclosure of CDR data by accredited data recipients","content":"56EK  Privacy safeguard 8—overseas disclosure of CDR data by accredited data recipients\n\n (1) If:\n\n (a) an accredited data recipient of CDR data proposes to disclose the CDR data; and\n\n (b) the recipient (the new recipient) of the proposed disclosure:\n\n (i) is not in Australia or an external Territory; and\n\n (ii) is not a CDR consumer for the CDR data;\n\nthe accredited data recipient must not make the disclosure unless:\n\n (c) the new recipient is an accredited person; or\n\n (d) the accredited data recipient takes reasonable steps to ensure that any act or omission by (or on behalf of) the new recipient will not, after taking into account subsection (3), contravene:\n\n (i) subsection 56ED(3); or\n\n (ii) another privacy safeguard penalty provision in relation to the CDR data; or\n\n (e) the accredited data recipient reasonably believes:\n\n (i) that the new recipient is subject to a law, or binding scheme, that provides substantially similar protection for the CDR data as the privacy safeguards provide in relation to accredited data recipients; and\n\n (ii) that a CDR consumer for the CDR data will be able to enforce those protections provided by that law or binding scheme; or\n\n (f) the conditions specified in the consumer data rules are met.\n\nNote 1: This subsection is a civil penalty provision (see section 56EU).\n\nNote 2: This subsection applies in addition to the disclosure restrictions in sections 56EI, 56EJ and 56EL.\n\nNote 3: A similar disclosure by a data holder of the CDR data that is required under the consumer data rules will be covered by Australian Privacy Principle 8 if the CDR data is personal information about an individual.\n\n (2) If:\n\n (a) the accredited data recipient of the CDR data makes the disclosure to the new recipient; and\n\n (b) none of paragraphs (1)(c), (e) and (f) apply in relation to the disclosure to the new recipient; and\n\n (c) an act or omission by (or on behalf of) the new recipient, after taking into account subsection (3), contravenes:\n\n (i) subsection 56ED(3); or\n\n (ii) another privacy safeguard penalty provision in relation to the CDR data;\n\nthen the act or omission is taken to also be an act or omission by the accredited data recipient.\n\n (3) For the purposes of paragraphs (1)(d) and (2)(c), assume that the privacy safeguards apply to the new recipient as if the new recipient were an accredited data recipient for the CDR data.","sortOrder":832},{"sectionNumber":"56EL","sectionType":"section","heading":"Privacy safeguard 9—adoption or disclosure of government related identifiers by accredited data recipients","content":"56EL  Privacy safeguard 9—adoption or disclosure of government related identifiers by accredited data recipients\n\n (1) If:\n\n (a) a person is an accredited data recipient of CDR data; and\n\n (b) the CDR data includes a government related identifier (within the meaning of the Privacy Act 1988) of a CDR consumer for the CDR data who is an individual;\n\nthe person must not adopt the government related identifier as the person’s own identifier of the CDR consumer, or otherwise use the government related identifier, unless:\n\n (c) the adoption or use is required or authorised by or under:\n\n (i) an Australian law other than the consumer data rules; or\n\n (ii) a court/tribunal order; or\n\n (d) subclause 9.3 of Australian Privacy Principle 9 applies in relation to the adoption or use.\n\nNote: This subsection is a civil penalty provision (see section 56EU).\n\n (2) If:\n\n (a) a person who is an accredited data recipient of CDR data proposes to disclose the CDR data; and\n\n (b) the CDR data includes a government related identifier (within the meaning of the Privacy Act 1988) of a CDR consumer for the CDR data who is an individual;\n\nthe person must not include the government related identifier in the disclosure unless:\n\n (c) this is required or authorised by or under:\n\n (i) an Australian law other than the consumer data rules; or\n\n (ii) a court/tribunal order; or\n\n (d) subclause 9.3 of Australian Privacy Principle 9 applies in relation to the disclosure.\n\nNote 1: This subsection is a civil penalty provision (see section 56EU).\n\nNote 2: This subsection applies in addition to the disclosure restrictions in sections 56EI, 56EJ and 56EK.\n\n (3) For the purposes of paragraph (1)(d) or (2)(d), disregard paragraph 56EC(4)(a) (about the APPs not applying).","sortOrder":833},{"sectionNumber":"56EM","sectionType":"section","heading":"Privacy safeguard 10—notifying of the disclosure of CDR data","content":"56EM  Privacy safeguard 10—notifying of the disclosure of CDR data\n\nDisclosures by data holders\n\n (1) If a data holder of CDR data is required or authorised under the consumer data rules to disclose the CDR data to a person, the data holder must:\n\n (a) take the steps specified in the consumer data rules to notify CDR consumers for the CDR data of the disclosure; and\n\n (b) ensure that this notification:\n\n (i) is given to those of the CDR consumers (if there are more than one) that the consumer data rules require to be notified; and\n\n (ii) covers the matters specified in those rules; and\n\n (iii) is given at or before the time specified in those rules.\n\nNote: This subsection is a civil penalty provision (see section 56EU).\n\nDisclosures by accredited data recipients\n\n (2) If an accredited data recipient of CDR data discloses the CDR data, the accredited data recipient must:\n\n (a) take the steps specified in the consumer data rules to notify CDR consumers for the CDR data of the disclosure; and\n\n (b) ensure that this notification:\n\n (i) is given to those of the CDR consumers (if there are more than one) that the consumer data rules require to be notified; and\n\n (ii) covers the matters specified in those rules; and\n\n (iii) is given at or before the time specified in those rules.\n\nNote: This subsection is a civil penalty provision (see section 56EU).\n\nDisclosures to designated gateways\n\n (3) To avoid doubt, subsection (1) or (2) applies even if the disclosure of the CDR data is to a designated gateway for the CDR data as required or authorised under the consumer data rules.\n\nNote: The designated gateway may be subject to a similar notification requirement under the consumer data rules (see paragraph 56BG(1)(c)).\n\nDisclosures by action service providers\n\n (4) If a person as an action service provider for a type of CDR action is required or authorised under the consumer data rules to disclose CDR data to another person, the action service provider must:\n\n (a) take the steps specified in the consumer data rules to notify CDR consumers for the CDR data of the disclosure; and\n\n (b) ensure that this notification:\n\n (i) is given to those of the CDR consumers (if there are more than one) that the consumer data rules require to be notified; and\n\n (ii) covers the matters specified in those rules; and\n\n (iii) is given at or before the time specified in those rules.\n\nNote: This subsection is a civil penalty provision (see section 56EU).","sortOrder":834},{"sectionNumber":"56EN","sectionType":"section","heading":"Privacy safeguard 11—quality of CDR data","content":"56EN  Privacy safeguard 11—quality of CDR data\n\nDisclosures by data holders\n\n (1) If a data holder of CDR data is required or authorised under the consumer data rules to disclose the CDR data, the data holder must take reasonable steps to ensure that the CDR data is, having regard to the purpose for which it is held, accurate, up to date and complete.\n\nNote: This subsection is a civil penalty provision (see section 56EU).\n\nDisclosures by accredited data recipients\n\n (2) If an accredited data recipient of CDR data is disclosing the CDR data when:\n\n (a) required under the consumer data rules to do so in response to a valid request from a CDR consumer for the CDR data; or\n\n (b) otherwise required, or authorised, under the consumer data rules to do so;\n\nthe accredited data recipient must take reasonable steps to ensure that the CDR data is, having regard to the purpose for which it is held, accurate, up to date and complete.\n\nNote 1: This subsection is a civil penalty provision (see section 56EU).\n\nNote 2: The valid request referred to in paragraph (a) could be given through a designated gateway (see section 56BG).\n\nDisclosures by action service providers\n\n (2A) If a person as an action service provider for a type of CDR action is required or authorised under the consumer data rules to disclose CDR data, the action service provider must take reasonable steps to ensure that the CDR data is, having regard to the purpose for which it is held, accurate, up to date and complete.\n\nNote: This subsection is a civil penalty provision (see section 56EU).\n\nBecoming aware after disclosure that the CDR data was incorrect—advising CDR consumer\n\n (3) If a person:\n\n (a) makes a disclosure referred to in subsection (1), (2) or (2A) for a CDR consumer for CDR data; and\n\n (b) later becomes aware that some or all of the CDR data was incorrect when it was disclosed because, having regard to the purpose for which it was held, it was inaccurate, out of date or incomplete;\n\nthe person must advise the CDR consumer accordingly in accordance with the consumer data rules.\n\nNote: This subsection is a civil penalty provision (see section 56EU).\n\nBecoming aware after disclosure that the CDR data was incorrect—disclosing corrected CDR data\n\n (4) A person, who is required by subsection (3) to advise a CDR consumer for CDR data that some or all of the CDR data was incorrect when it was earlier disclosed, must:\n\n (a) correct the CDR data; and\n\n (b) disclose the corrected CDR data, in accordance with the consumer data rules, to the recipient of the earlier disclosure;\n\nif the person:\n\n (c) is requested to do so by the CDR consumer in accordance with the consumer data rules; or\n\n (d) is required to do so by the consumer data rules.\n\nNote: This subsection is a civil penalty provision (see section 56EU).\n\n (4A) Subsection (4) does not apply in the circumstances specified in the consumer data rules.\n\nPurpose for which the CDR data was held\n\n (5) When working out the purpose for which the CDR data is or was held, disregard the purpose of holding the CDR data so that it can be disclosed as required under the consumer data rules.\n\nNote: This subsection is relevant for subsections (1), (2) and (2A) and paragraph (3)(b).","sortOrder":836},{"sectionNumber":"56EO","sectionType":"section","heading":"Privacy safeguard 12—security of CDR data, and destruction or de-identification of redundant CDR data","content":"56EO  Privacy safeguard 12—security of CDR data, and destruction or de‑identification of redundant CDR data\n\n (1) Each person (a CDR entity) who is:\n\n (a) an accredited data recipient of CDR data; or\n\n (b) a designated gateway for CDR data;\n\nmust take the steps specified in the consumer data rules to protect the CDR data from:\n\n (c) misuse, interference and loss; and\n\n (d) unauthorised access, modification or disclosure.\n\nNote: This subsection is a civil penalty provision (see section 56EU).\n\n (2) If:\n\n (a) the CDR entity no longer needs any of that CDR data for either of the following purposes (the redundant data):\n\n (i) a purpose permitted under the consumer data rules;\n\n (ii) a purpose for which the person is able to use or disclose it in accordance with this Division; and\n\n (b) the CDR entity is not required to retain the redundant data by or under an Australian law or a court/tribunal order; and\n\n (c) the redundant data does not relate to any current or anticipated:\n\n (i) legal proceedings; or\n\n (ii) dispute resolution proceedings;\n\n  to which the CDR entity is a party;\n\nthe CDR entity must take the steps specified in the consumer data rules to destroy the redundant data or to ensure that the redundant data is de‑identified.\n\nNote 1: This subsection is a civil penalty provision (see section 56EU).\n\nNote 2: Australian Privacy Principle 11 will not apply for paragraph (b) (see paragraph 56EC(4)(a) or (d)).","sortOrder":837},{"sectionNumber":"56EP","sectionType":"section","heading":"Privacy safeguard 13—correction of CDR data","content":"56EP  Privacy safeguard 13—correction of CDR data\n\nObligation on data holders and action service providers\n\n (1) If:\n\n (a) a CDR consumer for CDR data gives a request to the following person (the CDR entity):\n\n (i) a data holder of the CDR data (including a request given through a designated gateway for the CDR data);\n\n (ii) a person as an action service provider for a type of CDR action; and\n\n (b) the request is for the CDR entity to correct the CDR data, and is not given in response to advice from the CDR entity under subsection 56EN(3); and\n\n (c) the CDR entity was earlier required or authorised under the consumer data rules to disclose the CDR data;\n\nthe CDR entity must respond to the request to correct the CDR data by taking such steps as are specified in the consumer data rules to deal with each of the matters in subsection (3) of this section.\n\nNote 1: This subsection is a civil penalty provision (see section 56EU).\n\nNote 2: Subsection 56EN(4) applies instead of this subsection if the request is given in response to advice from the CDR entity under subsection 56EN(3).\n\nObligation on accredited data recipients\n\n (2) If:\n\n (a) a CDR consumer for CDR data gives a request to an accredited data recipient of the CDR data (including a request given through a designated gateway for the CDR data); and\n\n (b) the request is for the accredited data recipient to correct the CDR data, and is not given in response to advice from the accredited data recipient under subsection 56EN(3);\n\nthe accredited data recipient must respond to the request by taking such steps as are specified in the consumer data rules to deal with each of the matters in subsection (3) of this section.\n\nNote 1: This subsection is a civil penalty provision (see section 56EU).\n\nNote 2: Subsection 56EN(4) applies instead of this subsection if the request is given in response to advice from the accredited data recipient under subsection 56EN(3).\n\nRelevant matters when responding to correction requests\n\n (3) The matters are as follows:\n\n (a) either:\n\n (i) to correct the CDR data; or\n\n (ii) to include a statement with the CDR data, to ensure that, having regard to the purpose for which the CDR data is held, the CDR data is accurate, up to date, complete and not misleading;\n\n (b) to give notice of any correction or statement, or notice of why a correction or statement is unnecessary or inappropriate.\n\n (4) When working out the purpose for which the CDR data is held (see subparagraph (3)(a)(ii)), disregard the purpose of holding the CDR data so that it can be disclosed as required under the consumer data rules.","sortOrder":839},{"sectionNumber":"56EQ","sectionType":"section","heading":"Information Commissioner to promote compliance etc.","content":"56EQ  Information Commissioner to promote compliance etc.\n\n (1) The Information Commissioner has the following functions:\n\n (a) making guidelines for the avoidance of acts or practices that may breach the privacy safeguards;\n\n (b) promoting an understanding and acceptance of the privacy safeguards;\n\n (c) undertaking educational programs for the purposes of promoting the protection of CDR data.\n\nNote: The Information Commissioner also has functions that relate to this Part more broadly (see section 56GA).\n\nExtra matters about guidelines under paragraph (1)(a)\n\n (2) Before making guidelines under paragraph (1)(a), the Information Commissioner must consult the Minister and the Commission about the proposed guidelines.\n\n (3) The Information Commissioner may publish guidelines made under paragraph (1)(a) in such manner as the Information Commissioner considers appropriate.\n\n (4) If there is an inconsistency between the guidelines made under paragraph (1)(a) and the consumer data rules, those rules prevail over the guidelines to the extent of the inconsistency.\n\n (5) Guidelines made under paragraph (1)(a) are not a legislative instrument.\n\nExtra matters about educational programs under paragraph (1)(c)\n\n (6) The educational programs referred to in paragraph (1)(c) may be undertaken by:\n\n (a) the Information Commissioner; or\n\n (b) a person or authority acting on behalf of the Information Commissioner.","sortOrder":841},{"sectionNumber":"56ER","sectionType":"section","heading":"Information Commissioner may conduct an assessment relating to the management and handling of CDR data","content":"56ER  Information Commissioner may conduct an assessment relating to the management and handling of CDR data\n\n (1) The Information Commissioner may assess whether a CDR participant, or designated gateway, for CDR data is maintaining and handling the CDR data in accordance with:\n\n (a) the privacy safeguards; or\n\n (b) the consumer data rules to the extent that those rules relate to:\n\n (i) the privacy safeguards; or\n\n (ii) the privacy or confidentiality of the CDR data.\n\n (1A) The Information Commissioner may assess whether an accredited person who may become an accredited data recipient of CDR data is complying with:\n\n (a) section 56ED (about privacy safeguard 1); or\n\n (b) the consumer data rules to the extent that those rules relate to that section.\n\n (1B) The Information Commissioner may assess whether an action service provider for a type of CDR action, who has been or may be disclosed CDR data under the consumer data rules, is maintaining and handling the CDR data in accordance with:\n\n (a) the privacy safeguards; or\n\n (b) the consumer data rules to the extent that those rules relate to:\n\n (i) the privacy safeguards; or\n\n (ii) the privacy or confidentiality of the CDR data.\n\n (2) The Information Commissioner may conduct an assessment under subsection (1), (1A) or (1B) in such manner as the Information Commissioner considers fit.\n\n (3) The Information Commissioner may report to the Minister, the Commission or the Data Standards Chair about an assessment under subsection (1), (1A) or (1B).","sortOrder":842},{"sectionNumber":"56ES","sectionType":"section","heading":"Notification of CDR data security breaches","content":"56ES  Notification of CDR data security breaches\n\nObject\n\n (1) The object of this section is for Part IIIC of the Privacy Act 1988 to apply to an accredited data recipient, or designated gateway, that holds a CDR consumer’s CDR data in a corresponding way to the way that Part applies to an entity that holds an individual’s personal information.\n\nNote: That Part is about notification of eligible data breaches.\n\nExtended application of Part IIIC of the Privacy Act 1988\n\n (2) Part IIIC of the Privacy Act 1988, and any other provision of that Act that relates to that Part, also apply in relation to:\n\n (a) an accredited data recipient of CDR data; or\n\n (b) a designated gateway for CDR data;\n\nas if the substitutions in the following table, and the modifications in subsection (3), were made.\n\n\n\n- Substitutions to be made\n- Item Subject to subsection (4), for a reference in Part IIIC to … … substitute a reference to …\n- 1 any of the following:(a) personal information;(b) information CDR data.\n- 2 any of the following:(a) entity;(b) APP entity;(c) APP entity, credit reporting body, credit provider or file number recipient, as the case may be each of the following:(a) accredited data recipient;(b) designated gateway.\n- 3 any of the following:(a) individual to whom information relates;(b) individual CDR consumer for CDR data.\n\n\nNote: When CDR data and the other terms in the last column of the table appear in this notional version of Part IIIC, they have the same meanings as in this Act.\n\n (3) For the purposes of subsection (2), assume that:\n\n (a) sections 26WB to 26WD of the Privacy Act 1988 were not enacted; and\n\n (b) subsection 26WE(1) of that Act were replaced with the following:\n\n“Scope\n\n (1) This section applies if:\n\n (a) CDR data of one or more CDR consumers is held by (or on behalf of) either of the following entities (the CDR entity):\n\n (i) an accredited data recipient of the CDR data;\n\n (ii) a designated gateway for the CDR data; and\n\n (b) section 56EO (about privacy safeguard 12) of the Competition and Consumer Act 2010 applies to the CDR entity in relation to the CDR data.”.\n\n (4) For the purposes of the table in subsection (2):\n\n (a) for item 1 of the table, disregard the following references to information in Part IIIC of the Privacy Act 1988:\n\n (ia) the last reference in section 26WA;\n\n (i) the last reference in paragraph 26WG(h);\n\n (ii) the reference in the note to section 26WG;\n\n (iii) all references in Division 4 of Part IIIC other than the reference in paragraph 26WU(2)(e); and\n\n (b) for item 2 of the table, disregard each reference to entity in paragraphs 26WF(1)(f), (2)(f), (3)(f), (4)(f) and (5)(f) of the Privacy Act 1988.","sortOrder":843},{"sectionNumber":"56ET","sectionType":"section","heading":"Investigating breaches of the privacy safeguards etc.","content":"56ET  Investigating breaches of the privacy safeguards etc.\n\nBreaches to which this section applies\n\n (1) This section applies to a breach (a privacy safeguard breach) of any of the following:\n\n (a) one or more of the privacy safeguards;\n\n (b) the consumer data rules to the extent that those rules relate:\n\n (i) to one or more of the privacy safeguards; or\n\n (ii) to the privacy or confidentiality of CDR data;\n\n (c) section 26WH, 26WK or 26WL or subsection 26WR(10) of the Privacy Act 1988, as they apply because of section 56ES of this Act;\n\nin relation to the CDR data of:\n\n (d) a CDR consumer who is an individual; or\n\n (e) a small business (within the meaning of the Privacy Act 1988) carried on by a CDR consumer for the CDR data.\n\n (2) This section also applies to a breach of section 56ED (privacy safeguard 1).\n\nObject\n\n (3) The object of this section is for Part V of the Privacy Act 1988 to apply to an act or practice:\n\n (a) of a CDR participant, designated gateway, accredited person or action service provider for a type of CDR action; and\n\n (b) that may be:\n\n (i) a privacy safeguard breach relating to CDR data covered by subsection (1); or\n\n (ii) a breach of section 56ED (privacy safeguard 1);\n\nin a corresponding way to the way that Part applies to an act or practice of an organisation, person or entity that may be an interference with the privacy of an individual or a breach of Australian Privacy Principle 1.\n\nNote: That Part is about investigations of interferences with privacy etc. The Information Commissioner also has the power, under Division 1AC of Part VIB of the Privacy Act 1988, to investigate contraventions of civil penalty provisions in Division 5 of Part IVD of this Act.\n\nExtended application of Part V of the Privacy Act 1988\n\n (4) Part V of the Privacy Act 1988, and any other provision of that Act that relates to that Part, also apply in relation to:\n\n (a) a CDR participant for CDR data; or\n\n (b) a designated gateway for CDR data; or\n\n (c) an accredited person who may become an accredited data recipient of CDR data; or\n\n (d) an action service provider for a type of CDR action, who has been or may be disclosed CDR data under the consumer data rules;\n\nas if the substitutions in the following table, and the modifications in subsection (5), were made.\n\n\n\n- Substitutions to be made\n- Item Subject to subsection (6), for a reference in Part V to … … substitute a reference to …\n- 1 interference with the privacy of an individual a privacy safeguard breach relating to the CDR data of:(a) a CDR consumer who is an individual; or(b) a small business (within the meaning of the Privacy Act 1988) carried on by a CDR consumer for the CDR data.\n- 2 Australian Privacy Principle 1 section 56ED (privacy safeguard 1) of this Act.\n- 3 individual a person who:(a) is a CDR consumer for the CDR data to which the privacy safeguard breach (or possible privacy safeguard breach) relates; and(b) is an individual, or is carrying on a small business (within the meaning of the Privacy Act 1988) to which the CDR data relates.\n- 4 recognised external dispute resolution scheme an external dispute resolution scheme for which an instrument is in force under subsection 56DA(1) of this Act.\n\n\nNote: When CDR data and the other terms in the last column of the table appear in this notional version of Part V, they have the same meanings as in this Act.\n\n (5) For the purposes of subsection (4), assume that:\n\n (a) subsection 5B(4) of the Privacy Act 1988 were not enacted; and\n\n (b) section 36 of that Act also stated that:\n\n (i) in the case of a complaint about an act or practice of a CDR participant—the CDR participant is the respondent; or\n\n (ii) in the case of a complaint about an act or practice of a designated gateway—the designated gateway is the respondent; or\n\n (iii) in the case of a complaint about an act or practice of an accredited person who may become an accredited data recipient of CDR data—the accredited person is the respondent; or\n\n (iv) in the case of a complaint about an act or practice of an action service provider for a type of CDR action, who has been or may be disclosed CDR data under the consumer data rules—the action service provider is the respondent; and\n\n (c) subsections 36(6) to (8), section 37, subsections 40(1B), 43(1A), (8), (8A) and (9) and 48(2), section 50A, sub‑subparagraph 52(1)(b)(i)(A) and sections 53A and 53B of that Act were not enacted; and\n\n (d) the paragraphs in each of subsections 55B(1) and (3) of that Act were replaced by:\n\n (i) a paragraph that states that an act or practice of a specified CDR participant for CDR data has breached a privacy safeguard; and\n\n (ii) a paragraph that states that an act or practice of a specified designated gateway for CDR data has breached a privacy safeguard; and\n\n (iii) a paragraph that states that an act or practice of an accredited person who may become an accredited data recipient of CDR data has breached a privacy safeguard; and\n\n (iv) a paragraph that states that an act or practice of an action service provider for a type of CDR action, who has been or may be disclosed CDR data under the consumer data rules, has breached a privacy safeguard; and\n\n (e) Division 4 of Part V, and subsection 63(2A), of that Act were not enacted.\n\n (6) For the purposes of item 3 of the table in subsection (4), disregard the reference to individual in the heading to section 39 of the Privacy Act 1988.","sortOrder":844},{"sectionNumber":"56EU","sectionType":"section","heading":"Civil penalty provisions","content":"56EU  Civil penalty provisions\n\nThe provisions of this Division that are civil penalty provisions\n\n (1) For the purposes of subparagraph 79(2)(a)(ii) of the Regulatory Powers Act, each of the following provisions of this Division (the privacy safeguard penalty provisions) is a civil penalty provision:\n\n (a) subsection 56ED(3);\n\n (b) subsection 56EF(1);\n\n (c) subsection 56EG(1);\n\n (d) section 56EH;\n\n (e) subsection 56EI(1) or (2);\n\n (f) subsection 56EJ(1) or (2);\n\n (g) subsection 56EK(1);\n\n (h) subsection 56EL(1) or (2);\n\n (i) subsection 56EM(1), (2) or (4);\n\n (j) subsection 56EN(1), (2), (2A), (3) or (4);\n\n (k) subsection 56EO(1) or (2);\n\n (l) subsection 56EP(1) or (2).\n\nEnforceable civil penalty provisions\n\n (2) Each privacy safeguard penalty provision is enforceable under Part 4 of the Regulatory Powers Act.\n\nNote: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.\n\nAuthorised applicant\n\n (3) For the purposes of Part 4 of the Regulatory Powers Act, the Information Commissioner is an authorised applicant in relation to each privacy safeguard penalty provision.\n\nRelevant court\n\n (4) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to each privacy safeguard penalty provision:\n\n (a) the Federal Court;\n\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n\n (c) a court of a State or Territory that has jurisdiction in relation to the matter.\n\nAct or omission also contravening a civil penalty provision of the consumer data rules\n\n (5) If an act or omission constitutes:\n\n (a) a contravention of one or more of the privacy safeguard penalty provisions; and\n\n (b) a contravention of one or more civil penalty provisions of the consumer data rules;\n\nproceedings may be instituted against a person in relation to the contravention of any one or more of those provisions.\n\nNote 1: The proceedings for a contravention referred to in paragraph (a) would be instituted under Part 4 of the Regulatory Powers Act.\n\nNote 2: The proceedings for a contravention referred to in paragraph (b) would be instituted under Part VI of this Act.\n\n (6) However, the person is not liable to more than one pecuniary penalty under:\n\n (a) Part 4 of the Regulatory Powers Act for a contravention referred to in paragraph (5)(a) of this section; and\n\n (b) Part VI of this Act for a contravention referred to in paragraph (5)(b) of this section;\n\nin relation to the same act or omission.\n\nNote: This means the person cannot be liable for a pecuniary penalty for a contravention of the privacy safeguards, and for a pecuniary penalty for a contravention of the consumer data rules, in relation to the same act or omission.","sortOrder":845},{"sectionNumber":"56EV","sectionType":"section","heading":"Civil penalty provisions—maximum amount of penalty","content":"56EV  Civil penalty provisions—maximum amount of penalty\n\n (1) Despite subsection 82(5) of the Regulatory Powers Act, the pecuniary penalty payable:\n\n (a) by a person; and\n\n (b) under a civil penalty order under Part 4 of that Act (as that Part applies because of section 56EU of this Act);\n\nmust not be more than the maximum penalty amount worked out under this section for a contravention by the person.\n\nMaximum amount of civil penalty for a body corporate\n\n (2) For the purposes of subsection (1), the maximum penalty amount for a contravention by a body corporate of a privacy safeguard penalty provision is the greater of the following:\n\n (a) $10,000,000;\n\n (b) if the relevant court (see subsection 56EU(4)) can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the contravention—3 times the value of that benefit;\n\n (c) if that court cannot determine the value of that benefit—10% of the adjusted turnover of the body corporate during the 12‑month period ending at the end of the month in which the contravention happened or began.\n\nMaximum amount of civil penalty for other persons\n\n (4) For the purposes of subsection (1), the maximum penalty amount for a contravention by a person other than a body corporate of a privacy safeguard penalty provision is $500,000.","sortOrder":846},{"sectionNumber":"56EW","sectionType":"section","heading":"Enforceable undertakings","content":"56EW  Enforceable undertakings\n\nEnforceable provisions\n\n (1) Each provision of the privacy safeguards is enforceable under Part 6 of the Regulatory Powers Act.\n\nNote: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.\n\nAuthorised person\n\n (2) For the purposes of Part 6 of the Regulatory Powers Act, the Information Commissioner is an authorised person in relation to each provision referred to in subsection (1).\n\nRelevant court\n\n (3) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to each provision referred to in subsection (1):\n\n (a) the Federal Court;\n\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n\n (c) a court of a State or Territory that has jurisdiction in relation to the matter.","sortOrder":847},{"sectionNumber":"56EX","sectionType":"section","heading":"Injunctions","content":"56EX  Injunctions\n\nEnforceable provisions\n\n (1) Each provision of the privacy safeguards is enforceable under Part 7 of the Regulatory Powers Act.\n\nNote: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.\n\nAuthorised person\n\n (2) For the purposes of Part 7 of the Regulatory Powers Act, the Information Commissioner is an authorised person in relation to each provision referred to in subsection (1).\n\nRelevant court\n\n (3) For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to each provision referred to in subsection (1):\n\n (a) the Federal Court;\n\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n\n (c) a court of a State or Territory that has jurisdiction in relation to the matter.","sortOrder":848},{"sectionNumber":"56EY","sectionType":"section","heading":"Actions for damages","content":"56EY  Actions for damages\n\nRight to bring an action for damages\n\n (1) A person who suffers loss or damage (within the meaning of subsection 25(1) of the Privacy Act 1988) by an act or omission:\n\n (a) of another person; and\n\n (b) that was in contravention of:\n\n (i) a provision of the privacy safeguards; or\n\n (ii) the consumer data rules to the extent that those rules relate to the privacy safeguards or to the privacy or confidentiality of CDR data;\n\nmay recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.\n\nNote: Subsections 84(2) and (4) (about attributing conduct engaged in on behalf of a person) apply for the purposes of this section.\n\n (2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the contravention happened or began.\n\nFindings in related proceedings to be prima facie evidence\n\n (3) If a finding of any fact is made by a court in relation to a person, or an admission of any fact is made by a person, in proceedings:\n\n (a) under the Regulatory Powers Act (as that Act applies because of this Subdivision) in which the person is found to have contravened a provision of the privacy safeguards; or\n\n (b) under Part VI of this Act in which the person is found to:\n\n (i) have contravened; or\n\n (ii) have been involved in a contravention;\n\n  of the consumer data rules to the extent that those rules relate to the privacy safeguards or to the privacy or confidentiality of CDR data;\n\nthe finding or admission is prima facie evidence of that fact in any proceeding under subsection (1) against the person.\n\n (4) The finding or admission may be proved by production of:\n\n (a) in any case—a document under the seal of the court from which the finding or admission appears; or\n\n (b) in the case of an admission—a document from which the admission appears that is filed in the court.\n\nJurisdiction etc.\n\n (5) The following are conferred with jurisdiction to hear and determine actions under subsection (1):\n\n (a) the Federal Circuit and Family Court of Australia (Division 2);\n\n (b) subject to the Constitution, the several courts of the Territories.\n\nThis subsection does not enable an inferior court of a Territory to grant a remedy of a kind that the court is unable to grant under the law of that Territory.\n\nNote: State courts and the Federal Court also have jurisdiction for these actions (see subsection 39(2) and paragraph 39B(1A)(c) of the Judiciary Act 1903).\n\n (6) Section 86AA (about limits on jurisdiction) applies to proceedings under subsection (1) of this section in a corresponding way to the way that section applies to proceedings under section 82.\n\n (7) Section 86A (about transfer of matters) applies in relation to a proceeding under subsection (1) of this section as if paragraph 86A(1)(b) also referred to a matter for determination arising under:\n\n (a) a provision of the privacy safeguards; or\n\n (b) the consumer data rules to the extent that those rules relate to the privacy safeguards or to the privacy or confidentiality of CDR data.\n\nInvolved in a contravention\n\n (8) Subsection 75B(1) applies to a reference that:\n\n (a) is in this section; and\n\n (b) is to a person involved in a contravention covered by paragraph (1)(b) of this section;\n\nin a corresponding way to the way that subsection 75B(1) applies to a reference in Part VI to a person involved in a contravention of section 56CD.","sortOrder":849},{"sectionNumber":"56EZ","sectionType":"section","heading":"Delegation to the Commission etc.","content":"56EZ  Delegation to the Commission etc.\n\n (1) This section applies in relation to the following functions or powers (the safeguard enforcement functions or powers):\n\n (a) the Information Commissioner’s functions or powers under section 56ER;\n\n (b) the Information Commissioner’s functions or powers under Part IIIC or V of the Privacy Act 1988, as those Parts apply because of sections 56ES and 56ET of this Act;\n\n (c) the Information Commissioner’s functions or powers under Part 4, 6 or 7 of the Regulatory Powers Act, that are conferred because of this Subdivision.\n\n (2) The Information Commissioner may delegate, in writing, any of the safeguard enforcement functions or powers to:\n\n (a) the Commission; or\n\n (b) a member of the Commission; or\n\n (c) a member of the staff of the Commission referred to in section 27 of this Act.\n\n (3) However, the Information Commissioner must not delegate a safeguard enforcement function or power under subsection (2) unless:\n\n (a) the Commission has agreed to the delegation in writing; and\n\n (b) in the case of a delegation to a staff member referred to in paragraph (2)(c)—the Commission is satisfied that the staff member:\n\n (i) is an SES employee or acting SES employee; or\n\n (ii) is holding or performing the duties of a sufficiently senior office or position for the function or power.","sortOrder":850},{"sectionNumber":"56FA","sectionType":"section","heading":"Making data standards","content":"56FA  Making data standards\n\n (1) The Data Standards Chair may, by writing, make one or more data standards about each of the following matters:\n\n (a) the format and description of CDR data;\n\n (b) the disclosure of CDR data;\n\n (c) the collection, use, accuracy, storage, security and deletion of CDR data;\n\n (d) de‑identifying CDR data, including so that it no longer relates to:\n\n (i) an identifiable person; or\n\n (ii) a person who is reasonably identifiable;\n\n (da) the format and description of a valid instruction for the performance of a type of CDR action;\n\n (db) the giving of a valid instruction for the performance of a type of CDR action;\n\n (e) other matters prescribed by the regulations.\n\nNote: For variation and repeal, see subsection 33(3) of the Acts Interpretation Act 1901.\n\nComplying with consumer data rules when making standards etc.\n\n (2) The Data Standards Chair must comply with the consumer data rules when:\n\n (a) making a data standard; or\n\n (b) varying or revoking a data standard;\n\nincluding complying with any related requirements specified in those rules about approval, consultation and the formation of committees, advisory panels and consultative groups.\n\nNote: The rules could, for example, require a proposed data standard to be approved by the Commission before it is made.\n\n (3) Without limiting subsection (2), the Data Standards Chair must:\n\n (a) make, under subsection (1), a data standard about a particular matter mentioned in subsection (1) if the consumer data rules so requires; and\n\n (b) specify in that data standard that it is binding if the consumer data rules so requires.\n\nA data standard is a binding data standard if it is made under subsection (1) in accordance with paragraph (b) of this subsection.\n\nData standards are not legislative instruments\n\n (4) A data standard made under subsection (1) is not a legislative instrument.","sortOrder":853},{"sectionNumber":"56FB","sectionType":"section","heading":"What data standards can set out etc.","content":"56FB  What data standards can set out etc.\n\n (1) Without limiting subsection 56FA(1), a single data standard may set out:\n\n (a) different provisions for different designated sectors; or\n\n (b) different provisions for different classes of CDR data; or\n\n (ba) different provisions for different types of CDR actions; or\n\n (c) different provisions for different classes of persons specified, as described in paragraph 56AC(2)(b), in an instrument designating a sector under subsection 56AC(2); or\n\n (ca) different provisions for different classes of action service providers for types of CDR actions; or\n\n (d) different provisions for different classes of accredited persons.\n\n (2) Without limiting subsection 56FA(1), a separate data standard could deal with:\n\n (a) each of the different designated sectors referred to in paragraph (1)(a) of this section; or\n\n (b) each of the different classes or types referred to in any of paragraphs (1)(b) to (d) of this section.","sortOrder":854},{"sectionNumber":"56FC","sectionType":"section","heading":"Data standards must be published","content":"56FC  Data standards must be published\n\n  The Data Standards Chair must publish on the internet a copy of each data standard made under subsection 56FA(1).\n\nNote: Once published, the data standards will be available for free.","sortOrder":855},{"sectionNumber":"56FD","sectionType":"section","heading":"Legal effect of data standards","content":"56FD  Legal effect of data standards\n\n (1) A contract is taken to be in force between:\n\n (a) a data holder of CDR data to which a binding data standard applies; and\n\n (b) each accredited person;\n\nunder which each of those persons:\n\n (c) agrees to observe the standard to the extent that the standard applies to the person; and\n\n (d) agrees to engage in conduct that the person is required by the standard to engage in.\n\nNote: This means the data holder will be taken to have a separate contract with each accredited person.\n\n (2) If there is a designated gateway for CDR data to which a binding data standard applies, a contract is taken to be in force between:\n\n (a) a data holder of the CDR data; and\n\n (b) the designated gateway for the CDR data; and\n\n (c) each accredited person;\n\nunder which each of those persons:\n\n (d) agrees to observe the standard to the extent that the standard applies to the person; and\n\n (e) agrees to engage in conduct that the person is required by the standard to engage in.\n\nNote: This means the data holder will be taken to have a separate 3‑party contract with the designated gateway and each accredited person.\n\n (2A) A contract is taken to be in force between:\n\n (a) an action service provider for a type of CDR action to which a binding data standard applies; and\n\n (b) each accredited action initiator for a CDR action of that type;\n\nunder which each of those persons:\n\n (c) agrees to observe the standard to the extent that the standard applies to the person; and\n\n (d) agrees to engage in conduct that the person is required by the standard to engage in.\n\nNote: This means the action service provider will be taken to have a separate contract with each of those accredited action initiators.\n\n (3) However, if there is an inconsistency between a data standard, and the consumer data rules, those rules prevail over the standard to the extent of the inconsistency.","sortOrder":856},{"sectionNumber":"56FE","sectionType":"section","heading":"Enforcement of binding data standards","content":"56FE  Enforcement of binding data standards\n\n (1) If a person who is under an obligation to comply with a binding data standard fails to meet that obligation, an application to the Court may be made by:\n\n (a) the Commission; or\n\n (b) a person aggrieved by the failure.\n\n (2) After giving an opportunity to be heard to the applicant and the person against whom the order is sought, the Court may make an order giving directions to:\n\n (a) the person against whom the order is sought; or\n\n (b) if that person is a body corporate—the directors of the body corporate;\n\nabout compliance with, or enforcement of, the binding data standard.\n\n (3) Without limiting subsection (1), an obligation to comply with a binding data standard includes an obligation arising under a contract referred to in section 56FD.","sortOrder":857},{"sectionNumber":"56FF","sectionType":"section","heading":"Data Standards Chair","content":"56FF  Data Standards Chair\n\n  There is to be a Data Standards Chair.","sortOrder":859},{"sectionNumber":"56FG","sectionType":"section","heading":"Appointment of the Data Standards Chair","content":"56FG  Appointment of the Data Standards Chair\n\n (1) The Data Standards Chair is to be appointed, on a full‑time basis or a part‑time basis, by the Minister by written instrument.\n\n (2) The Data Standards Chair holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.\n\nNote 1: The Minister will be the Data Standards Chair in the absence of an appointment under this section (see the definition of Data Standards Chair in subsection 4(1)).\n\nNote 2: The Data Standards Chair may be reappointed (see section 33AA of the Acts Interpretation Act 1901).","sortOrder":860},{"sectionNumber":"56FH","sectionType":"section","heading":"Functions and powers of the Data Standards Chair","content":"56FH  Functions and powers of the Data Standards Chair\n\n (1) The functions of the Data Standards Chair are:\n\n (a) to make standards under Subdivision A; and\n\n (b) to review those standards regularly; and\n\n (c) such other functions as are prescribed by the regulations.\n\n (2) The Data Standards Chair has the following powers:\n\n (a) the power to establish committees, advisory panels and consultative groups;\n\n (b) the power to do all other things necessary or convenient to be done for or in connection with the performance of the Chair’s functions.","sortOrder":861},{"sectionNumber":"56FI","sectionType":"section","heading":"Directions by Minister","content":"56FI  Directions by Minister\n\n (1) The Minister may, by legislative instrument, give written directions to the Data Standards Chair about the performance of the Chair’s functions and the exercise of the Chair’s powers.\n\nNote: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).\n\n (2) A direction under subsection (1) must be of a general nature only.\n\n (3) The Data Standards Chair must comply with a direction under subsection (1).","sortOrder":862},{"sectionNumber":"56FJ","sectionType":"section","heading":"Appointment of the Data Standards Body","content":"56FJ  Appointment of the Data Standards Body\n\n (1) The Minister may, by written instrument, appoint as the Data Standards Body:\n\n (a) the Department; or\n\n (b) another Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013).\n\nNote: For variation, see subsection 33(3) of the Acts Interpretation Act 1901.\n\n (2) The Minister may, at any time by written instrument, terminate an appointment made under subsection (1).","sortOrder":864},{"sectionNumber":"56FK","sectionType":"section","heading":"Function and powers of the Data Standards Body","content":"56FK  Function and powers of the Data Standards Body\n\n (1) The function of the Data Standards Body is to assist the Data Standards Chair.\n\n (2) The Data Standards Body has the power to do all other things necessary or convenient to be done for or in connection with the performance of the Data Standards Body’s function.\n\n (3) The Data Standards Body must comply with the consumer data rules when assisting the Data Standards Chair, including complying with any requirements specified in those rules about:\n\n (a) the Body’s composition; or\n\n (b) the Body’s governance or processes.\n\n (4) To avoid doubt, for a body that is the Data Standards Body, the body’s functions and powers in its capacity other than as the Data Standards Body are taken to include the function and powers of the Data Standards Body while it is the Data Standards Body.","sortOrder":865},{"sectionNumber":"56FL","sectionType":"section","heading":"Acting appointments","content":"56FL  Acting appointments\n\n  The Minister may, by written instrument, appoint a person to act as the Data Standards Chair:\n\n (a) during a vacancy in the office of Data Standards Chair (whether or not an appointment has previously been made to the office); or\n\n (b) during any period, or during all periods, when the Data Standards Chair:\n\n (i) is absent from duty or from Australia; or\n\n (ii) is, for any reason, unable to perform the duties of the office.\n\nNote: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.","sortOrder":867},{"sectionNumber":"56FM","sectionType":"section","heading":"Terms and conditions","content":"56FM  Terms and conditions\n\n (1) The Data Standards Chair holds office on the terms and conditions (if any) in relation to matters not covered by this Division that are determined by the Minister.\n\n (2) Subsection (1) does not apply while the Data Standards Chair is the Minister.","sortOrder":868},{"sectionNumber":"56FN","sectionType":"section","heading":"Remuneration","content":"56FN  Remuneration\n\n (1) The Data Standards Chair is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Data Standards Chair is to be paid the remuneration that is prescribed by the regulations.\n\n (2) The Data Standards Chair is to be paid the allowances that are prescribed by the regulations.\n\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n (4) Subsections (1) and (2) do not apply while the Data Standards Chair is the Minister.","sortOrder":869},{"sectionNumber":"56FO","sectionType":"section","heading":"Leave","content":"56FO  Leave\n\n (1) If the Data Standards Chair is appointed on a full‑time basis, the Data Standards Chair has the recreation leave entitlements that are determined by the Remuneration Tribunal.\n\n (2) If the Data Standards Chair is appointed on a full‑time basis, the Minister may grant the Data Standards Chair leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.\n\n (3) If the Data Standards Chair is appointed on a part‑time basis, the Secretary of the Department may grant leave of absence to the Data Standards Chair on the terms and conditions that the Secretary determines.","sortOrder":870},{"sectionNumber":"56FP","sectionType":"section","heading":"Application of the finance law etc.","content":"56FP  Application of the finance law etc.\n\n (1) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013), the Data Standards Chair is taken to be an official of the Department.\n\nNote: A consequence of this subsection is that the Secretary of the Department will be the accountable authority (within the meaning of that Act) applicable to the Data Standards Chair.\n\n (2) The Secretary of the Department, when preparing the Department’s annual report under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period, must include information in that report about:\n\n (a) the performance of the Data Standards Chair’s functions; and\n\n (b) the exercise of the Data Standards Chair’s powers;\n\nduring the period.\n\n (3) If at any time the Data Standards Chair is the Minister then:\n\n (a) subsections (1) and (2) do not apply; and\n\n (b) the Department’s annual report under section 46 of that Act for the period that includes that time must include information about the performance of the Data Standards Chair’s functions, and the exercise of the Data Standards Chair’s powers, at that time.","sortOrder":871},{"sectionNumber":"56FQ","sectionType":"section","heading":"Resignation","content":"56FQ  Resignation\n\n (1) The Data Standards Chair may resign the Data Standards Chair’s appointment by giving the Minister a written resignation.\n\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.","sortOrder":872},{"sectionNumber":"56FR","sectionType":"section","heading":"Termination of appointment","content":"56FR  Termination of appointment\n\n (1) The Minister may terminate the appointment of the Data Standards Chair:\n\n (a) for misbehaviour; or\n\n (b) if the Data Standards Chair is unable to perform the duties of the Data Standards Chair’s office because of physical or mental incapacity.\n\n (2) The Minister may terminate the appointment of the Data Standards Chair if:\n\n (a) the Data Standards Chair:\n\n (i) becomes bankrupt; or\n\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n\n (iii) compounds with the Data Standards Chair’s creditors; or\n\n (iv) makes an assignment of the Data Standards Chair’s remuneration for the benefit of the Data Standards Chair’s creditors; or\n\n (b) if the Data Standards Chair is appointed on a full‑time basis—the Data Standards Chair is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12‑month period; or\n\n (c) the Data Standards Chair fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.","sortOrder":873},{"sectionNumber":"56FS","sectionType":"section","heading":"Delegation","content":"56FS  Delegation\n\n (1) The Data Standards Chair may delegate, in writing, any or all of the Chair’s functions or powers to:\n\n (a) an SES employee, or an acting SES employee, in the Data Standards Body, in the Department or in the Commission; or\n\n (b) an APS employee who is holding or performing the duties of a specified office or position that:\n\n (i) is in the Data Standards Body, in the Department or in the Commission; and\n\n (ii) is an office or position that the Chair is satisfied is sufficiently senior for the APS employee to perform the function or exercise the power; or\n\n (c) if there are no APS employees (including SES employees) in the Data Standards Body—a person:\n\n (i) who holds an office or position in the Data Standards Body that the Chair considers is sufficiently senior for the person to perform the function; and\n\n (ii) who the Chair considers has appropriate qualifications or expertise to perform the function.\n\n (2) Subsection (1) does not apply to the function referred to in paragraph 56FH(1)(a) (about making standards).\n\nNote: This subsection does not prevent a person who is acting as the Data Standards Chair from making a standard.\n\n (3) In performing a delegated function or exercising a delegated power, the delegate under subsection (1) must comply with any directions of the Data Standards Chair.","sortOrder":874},{"sectionNumber":"56GA","sectionType":"section","heading":"CDR functions of the Information Commissioner","content":"56GA  CDR functions of the Information Commissioner\n\n (1) The Information Commissioner has the following functions:\n\n (a) the functions conferred on the Information Commissioner by another provision of this Part, or by an instrument made under this Part;\n\n (b) to consult with or advise any of the following about any matter relevant to the operation of this Part (or the operation of instruments made under this Part):\n\n (i) the Minister;\n\n (ii) the Secretary of the Department;\n\n (iii) the Commission;\n\n (iv) the Data Standards Chair.\n\nNote: The Commission may also delegate to the Information Commissioner any of the Commission’s functions relating to this Part (see subsection 26(3)).\n\n (2) The functions referred to in subsection (1) may be performed by the Information Commissioner on request or on the Information Commissioner’s own initiative.","sortOrder":876},{"sectionNumber":"56GAA","sectionType":"section","heading":"Delegation by the Minister or the Secretary","content":"56GAA  Delegation by the Minister or the Secretary\n\nDelegation by the Minister of functions or powers relating to voluntary action service providers\n\n (1A) The Minister may, in writing, delegate all or any of the Minister’s functions or powers included:\n\n (a) as described in paragraph 56BHA(1)(j); and\n\n (b) in the consumer data rules;\n\nto an SES employee, or an acting SES employee, in the Department or in the Commission.\n\nNote: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (1B) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Minister.\n\nDelegation by the Secretary\n\n (1) The Secretary of the Department may, in writing, delegate all or any of the Secretary’s functions or powers under this Part to an SES employee, or an acting SES employee, in the Department.\n\nNote: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (2) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Secretary.","sortOrder":877},{"sectionNumber":"56GAB","sectionType":"section","heading":"Concurrent operation of other laws","content":"56GAB  Concurrent operation of other laws\n\n  The CDR provisions are not intended to exclude or limit the operation of a law of the Commonwealth, or of a State or Territory, that is capable of operating concurrently with the CDR provisions.","sortOrder":878},{"sectionNumber":"56GB","sectionType":"section","heading":"Referring to instruments as in force from time to time","content":"56GB  Referring to instruments as in force from time to time\n\n (1) This section applies to the following instruments:\n\n (a) designations under section 56AC (about designated sectors);\n\n (aa) CDR declarations for types of CDR actions;\n\n (b) regulations made for the purposes of a provision of this Part;\n\n (c) the consumer data rules;\n\n (d) data standards.\n\n (2) An instrument to which this section applies may make provision in relation to a matter by applying, adopting or incorporating (with or without modification) any matter contained in any other instrument or writing:\n\n (a) as in force or existing at a particular time; or\n\n (b) as in force or existing from time to time.\n\n (3) Subsection (2) has effect despite subsection 14(2) of the Legislation Act 2003.","sortOrder":879},{"sectionNumber":"56GC","sectionType":"section","heading":"Complying with CDR requirements etc.: protection from liability","content":"56GC  Complying with CDR requirements etc.: protection from liability\n\n (1) If a person (the CDR entity), acting as described in an item of the following table, does something mentioned in that item:\n\n (a) in good faith; and\n\n (b) in compliance with the CDR provisions; and\n\n (c) in compliance with each law (if any) of the Commonwealth, of a State or of a Territory prescribed by the regulations;\n\nthe CDR entity is not liable to an action or other proceeding, whether civil or criminal, for or in relation to the thing in that item.\n\n\n\n- Doing a CDR thing in good faith in compliance with the CDR provisions etc.\n- Item When acting: the things are:\n- 1 (a) as a data holder of CDR data; or(b) as an accredited data recipient of CDR data; or(c) as a designated gateway for CDR data (a) providing the data to another person; or(b) otherwise allowing another person access to the data.\n- 2 as an accredited action initiator for a type of CDR action giving an instruction that is a valid instruction for the performance of a CDR action of that type.\n- 3 as an action service provider for a type of CDR action processing an instruction that is a valid instruction for the performance of a CDR action of that type.\n\n\nNote 1: Item 3 of the table is focussing on the instruction layer not the action layer, and so does not cover performance of the CDR action.\n\nNote 2: A defendant bears an evidential burden in relation to the matter in this subsection for a criminal action or criminal proceeding (see subsection 13.3(3) of the Criminal Code).\n\n (2) A person who wishes to rely on subsection (1) in relation to a civil action or civil proceeding bears an evidential burden in relation to that matter.\n\n (3) In this section:\n\nevidential 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.","sortOrder":880},{"sectionNumber":"56GD","sectionType":"section","heading":"Exemptions by the Commission","content":"56GD  Exemptions by the Commission\n\n (1) The provisions covered by this section are:\n\n (a) the following provisions:\n\n (i) the provisions of this Part;\n\n (ii) the provisions of regulations made for the purposes of the provisions of this Part;\n\n (iii) the provisions of the consumer data rules; and\n\n (b) definitions in this Act, or in the regulations or consumer data rules, as they apply to references in provisions referred to in paragraph (a).\n\n (2) The Commission may, by written notice given to a person, exempt the person in relation to:\n\n (a) particular CDR data or one or more classes of CDR data; or\n\n (b) a particular CDR action or one or more types of CDR actions;\n\nfrom all or specified provisions covered by this section.\n\n (3) An exemption under subsection (2):\n\n (a) may or may not be limited to a specified period; and\n\n (b) may apply unconditionally or subject to specified conditions.\n\n (4) The Commission must publish on its website the details of each exemption under subsection (2).\n\n (5) Applications may be made to the Administrative Review Tribunal for review of a decision of the Commission exempting, or refusing to exempt, a person under subsection (2).","sortOrder":881},{"sectionNumber":"56GE","sectionType":"section","heading":"Exemptions and modifications by regulations","content":"56GE  Exemptions and modifications by regulations\n\n (1) The provisions covered by this section are:\n\n (a) the following provisions:\n\n (i) the provisions of this Part;\n\n (ii) the provisions of regulations made for the purposes of the provisions of this Part;\n\n (iii) the provisions of the consumer data rules; and\n\n (b) definitions in this Act, or in the regulations or consumer data rules, as they apply to references in provisions referred to in paragraph (a).\n\n (2) The regulations may:\n\n (a) exempt a particular person in relation to:\n\n (i) particular CDR data or one or more classes of CDR data; or\n\n (ii) a particular CDR action or one or more types of CDR actions;\n\n  from all or specified provisions covered by this section; or\n\n (b) exempt a class of persons in relation to:\n\n (i) particular CDR data or one or more classes of CDR data; or\n\n (ii) a particular CDR action or one or more types of CDR actions;\n\n  from all or specified provisions covered by this section; or\n\n (c) declare that provisions covered by this section apply in relation to:\n\n (i) a particular person in relation to particular CDR data or one or more classes of CDR data; or\n\n (ii) a class of persons in relation to particular CDR data or one or more classes of CDR data; or\n\n (iii) a particular person in relation to a particular CDR action or one or more types of CDR actions; or\n\n (iv) a class of persons in relation to a particular CDR action or one or more types of CDR actions;\n\n  as if specified provisions were omitted, modified or varied as specified in the declaration.\n\n (3) An exemption under paragraph (2)(a) or (b), or a declaration under paragraph (2)(c):\n\n (a) may or may not be limited to a specified period; and\n\n (b) may apply unconditionally or subject to specified conditions.","sortOrder":882},{"sectionNumber":"56GF","sectionType":"section","heading":"Application of the CDR provisions","content":"56GF  Application of the CDR provisions\n\n (1) The CDR provisions apply to a person if:\n\n (a) the person is a corporation; or\n\n (b) the person is not a corporation, but the person:\n\n (i) acts; or\n\n (ii) omits to act;\n\n  in a way that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a corporation.\n\nNote: For the meaning of corporation, see subsection 4(1).\n\n (2) The CDR provisions also apply to:\n\n (a) a person (whether or not a corporation) acting or omitting to act in the course of, or in relation to, the carrying on of:\n\n (i) a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or\n\n (ii) the business of banking, other than State banking (within the meaning of paragraph 51(xiii) of the Constitution) not extending beyond the limits of the State concerned; or\n\n (iii) the business of insurance, other than State insurance (within the meaning of paragraph 51(xiv) of the Constitution) not extending beyond the limits of the State concerned; or\n\n (b) a person (whether or not a corporation):\n\n (i) making a supply or communication; or\n\n (ii) conducting an activity or otherwise doing something;\n\n  using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or\n\n (c) a person (whether or not a corporation) acting or omitting to act in the course of, or in relation to:\n\n (i) trade or commerce between Australia and places outside Australia; or\n\n (ii) trade or commerce among the States; or\n\n (iii) trade or commerce within a Territory, between a State or Territory or between 2 Territories; or\n\n (d) an individual who is being, has been or is at risk of being subjected to interference, or attacks, of the kind described in paragraph 1 of Article 17 of the ICCPR; or\n\n (e) a person (whether or not a corporation) who is undertaking, has undertaken or could undertake interference, or attacks, of the kind described in paragraph 1 of Article 17 of the ICCPR.\n\n (3) Paragraphs (2)(d) and (e) give effect to Australia’s obligations under the ICCPR.\n\n (4) Section 6 (about the application of this Act to persons who are not corporations) does not apply in relation to the CDR provisions.\n\n (5) In this section:\n\nICCPR means the International Covenant on Civil and Political Rights, done at New York on 16 December 1966, as amended and in force for Australia from time to time.\n\nNote: The text of the International Covenant is set out in Australian Treaty Series 1980 No. 23 ([1980] ATS 23). In 2024, the text of a Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).","sortOrder":883},{"sectionNumber":"56GG","sectionType":"section","heading":"Compensation for acquisition of property","content":"56GG  Compensation for acquisition of property\n\n (1) This section applies if the operation of the CDR provisions 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).\n\n (2) The person who acquires the property is liable to pay a reasonable amount of compensation to the first‑mentioned person.\n\n (3) If the 2 persons do not agree on the amount of the compensation, the person to whom compensation is payable may institute proceedings in:\n\n (a) the Federal Court; or\n\n (b) the Supreme Court of a State or Territory;\n\nfor the recovery from the other person of such reasonable amount of compensation as the Court determines.","sortOrder":884},{"sectionNumber":"56GH","sectionType":"section","heading":"Review of the operation of this Part","content":"56GH  Review of the operation of this Part\n\n (1) The Minister must cause an independent review to be conducted of the operation of this Part.\n\n (2) The persons who conduct the review must complete it, and give the Minister a written report of the review, before 1 July 2022.\n\n (3) The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.","sortOrder":885},{"sectionNumber":"Part IVE","sectionType":"part","heading":"Motor vehicle service and repair information sharing scheme","content":"Part IVE—Motor vehicle service and repair information sharing scheme","sortOrder":886},{"sectionNumber":"57AA","sectionType":"section","heading":"Objects of Part","content":"57AA  Objects of Part\n\n  The objects of this Part are to:\n\n (a) promote competition between Australian repairers of passenger and light goods motor vehicles and establish a fair playing field by mandating access, on fair and reasonable commercial terms, to information used to diagnose, repair, service, modify or dismantle scheme vehicles; and\n\nNote: These vehicles are defined as scheme vehicles (see section 57BA).\n\n (b) enable consumers to have scheme vehicles diagnosed, repaired, serviced, modified or dismantled safely and effectively by an Australian repairer of their choice; and\n\n (c) encourage the provision of accessible and affordable information about scheme vehicles to Australian repairers, and to registered training organisations (for training purposes); and\n\n (d) protect safety and security information about scheme vehicles to ensure the safety and security of consumers, information users and the general public; and\n\n (e) provide for the resolution of disputes about the application of this Part.","sortOrder":888},{"sectionNumber":"57AB","sectionType":"section","heading":"Simplified outline","content":"57AB  Simplified outline\n\nThis Part sets up a scheme to improve access by Australian motor vehicle repairers and registered training organisations (called “scheme RTOs”) to information used to diagnose faults with, service, repair, modify or dismantle motor vehicles covered by the scheme.\n\nSuch information (called “scheme information”) is required to be offered for supply to Australian repairers and scheme RTOs at a price that does not exceed fair market value.\n\nThose who supply scheme information (called “data providers”) to Australian repairers and scheme RTOs are protected from certain civil claims in doing so.\n\nTo protect the safety and security of vehicle owners, individuals working for an Australian repairer or scheme RTO who access scheme information relating to vehicle safety and security must satisfy certain criteria relating to whether they are fit and proper persons to have access to such information.\n\nSensitive information about such individuals may be obtained by data providers for this purpose. The handling of such information is also restricted under this Part. The information cannot be made available to anyone outside Australia (including to any data provider).\n\nProvision is made for resolving disputes about the application of the Part.\n\nProvision is made for a scheme adviser. The scheme adviser’s functions include facilitating mediation of disputes between data providers and Australian repairers or scheme RTOs, and providing information about the operation of the scheme.","sortOrder":889},{"sectionNumber":"57BA","sectionType":"section","heading":"Meaning of scheme vehicle","content":"57BA  Meaning of scheme vehicle\n\n  A scheme vehicle is:\n\n (a) a light goods vehicle, within the meaning of a national road vehicle standard made under the Road Vehicle Standards Act 2018 that specifies definitions and vehicle categories for the purposes of that Act, that was manufactured on or after:\n\n (i) 1 January 2002; or\n\n (ii) a later date prescribed by the scheme rules; or\n\n (b) a passenger vehicle (other than an omnibus), within the meaning of a national road vehicle standard made under the Road Vehicle Standards Act 2018 that specifies definitions and vehicle categories for the purposes of that Act, that was manufactured on or after:\n\n (i) 1 January 2002; or\n\n (ii) a later date prescribed by the scheme rules; or\n\n (c) another kind of vehicle prescribed by the scheme rules.","sortOrder":891},{"sectionNumber":"57BB","sectionType":"section","heading":"Meaning of Australian repairer","content":"57BB  Meaning of Australian repairer\n\n  A person is an Australian repairer to the extent that the person carries on or actively seeks to carry on, in Australia, a business that involves diagnosing faults with, servicing, repairing, modifying or dismantling scheme vehicles.\n\nNote: In some State and Territory jurisdictions, a person may need to hold a licence or particular qualifications to lawfully carry on such a business.","sortOrder":892},{"sectionNumber":"57BC","sectionType":"section","heading":"Meaning of scheme RTO and RTO course","content":"57BC  Meaning of scheme RTO and RTO course\n\n  A scheme RTO is a registered training organisation that provides, or seeks to provide, a course (an RTO course) in Australia providing training in diagnosing faults with, servicing, repairing, modifying or dismantling scheme vehicles.\n\nNote: RTO is short for registered training organisation.","sortOrder":893},{"sectionNumber":"57BD","sectionType":"section","heading":"Meaning of scheme information","content":"57BD  Meaning of scheme information\n\nMain definition\n\n (1) Scheme information is information in relation to scheme vehicles prepared by or for manufacturers of scheme vehicles (or their related bodies corporate) for use in diagnosing faults with, servicing or repairing those vehicles, as supplied to the market.\n\nExceptions\n\n (2) However, scheme information does not include any of the following:\n\n (a) a trade secret;\n\n (b) the intellectual property of a person, other than intellectual property protected under the Copyright Act 1968;\n\n (c) a source code version of a program;\n\n (d) data automatically generated and transmitted by a scheme vehicle, while it is being driven, regarding driver or vehicle performance;\n\n (e) global positioning system data;\n\n (f) information supplied, or to be supplied, only to a restricted number of Australian repairers for the purposes of developing solutions to emerging or unexpected faults with a scheme vehicle;\n\n (g) information that is commercially sensitive about an agreement between a data provider and another person;\n\n (h) information relating to an automated driving system of a scheme vehicle;\n\n (i) any other information prescribed by the scheme rules.\n\nNote: Scheme information may include safety and security information (see the definition of safety and security information in section 57BF). However, for restrictions on the supply of safety and security information to Australian repairers and scheme RTOs: see section 57DB.\n\n (3) An automated driving system is a system which has a SAE level of 3 or greater under the Surface Vehicle Information Report J3016 published by SAE International, as amended from time to time.\n\nNote: The Report, as amended to 2021, could in 2021 be viewed on SAE International’s website (https://www.sae.org).","sortOrder":894},{"sectionNumber":"57BE","sectionType":"section","heading":"Meaning of data provider","content":"57BE  Meaning of data provider\n\n  A data provider is:\n\n (a) a corporation carrying on a business that includes supplying, to any extent and whether directly or indirectly, scheme information to one or more Australian repairers or scheme RTOs; or\n\n (b) any person who carries on such a business in the course of, or in relation to, trade or commerce.","sortOrder":895},{"sectionNumber":"57BF","sectionType":"section","heading":"Meaning of safety and security information","content":"57BF  Meaning of safety and security information\n\n (1) Safety and security information, for a scheme vehicle, is either or both of the following:\n\n (a) safety information;\n\n (b) security information.\n\nNote: Restrictions apply in relation to the supply of scheme information that is safety and security information: see section 57DB.\n\n (2) Safety information, for a scheme vehicle, is information relating to any of the following systems installed in the vehicle, of a kind prescribed by the scheme rules:\n\n (a) the hydrogen system;\n\n (b) the high voltage system;\n\n (c) the hybrid system;\n\n (d) the electric propulsion system;\n\n (e) another system prescribed by the scheme rules for the purposes of this paragraph.\n\n (3) Security information, for a scheme vehicle, is information relating to any of the following systems installed in the vehicle, of a kind prescribed by the scheme rules:\n\n (a) the vehicle’s mechanical and electrical security system;\n\n (b) another system prescribed by the scheme rules for the purposes of this paragraph.","sortOrder":896},{"sectionNumber":"57BG","sectionType":"section","heading":"Supply of scheme information between related bodies corporate","content":"57BG  Supply of scheme information between related bodies corporate\n\n  To avoid doubt, this Part applies in relation to a supply of scheme information about a scheme vehicle from a data provider to an Australian repairer even if the data provider and the Australian repairer are related bodies corporate.","sortOrder":897},{"sectionNumber":"57CA","sectionType":"section","heading":"Scheme information—offer to supply to Australian repairers and scheme RTOs","content":"57CA  Scheme information—offer to supply to Australian repairers and scheme RTOs\n\nScope\n\n (1) This section applies if a data provider supplies, or offers to supply, scheme information of one or more kinds in relation to one or more kinds of scheme vehicles to one or more Australian repairers or scheme RTOs.\n\nMain obligation\n\n (2) The data provider must make an offer (a scheme offer) to supply, on terms and conditions that comply with section 57CC, the same scheme information in relation to that kind, or those kinds, of vehicle to all Australian repairers and scheme RTOs:\n\n (a) in the same form in which it is supplied or offered for supply under subsection (1); or\n\n (b) if supply in that form is not practicable or accessible—in an electronic form that is reasonably accessible to all Australian repairers and scheme RTOs.\n\nNote 1: A pecuniary penalty of up to $10,000,000 may be imposed for a contravention of this subsection: see section 76.\n\nNote 2: Restrictions apply in relation to the packaging and supply of scheme information that is safety and security information: see section 57DB.\n\nChoice of supply period in scheme offer\n\n (3) If the form in which scheme information is supplied allows for variability in the period for which the information is supplied, the data provider must make the scheme offer on terms and conditions that include provision for the supply of the scheme information:\n\n (a) for any period nominated by an Australian repairer or scheme RTO; or\n\n (b) by day, by month and by year.\n\nCivil penalty:\n\n (a) for a body corporate—600 penalty units; and\n\n (b) for a person other than a body corporate—120 penalty units.\n\nScheme offer not to exceed fair market price\n\n (4) The data provider must make a scheme offer for the supply of the scheme information in relation to a particular make, model or year of scheme vehicle at a price (the scheme price) that does not exceed the fair market value of the information, as determined by reference to matters including those covered by subsection (5).\n\nNote: A pecuniary penalty of up to $10,000,000 may be imposed for a contravention of this subsection: see section 76.\n\n (5) For the purposes of subsection (4), this subsection covers the following matters:\n\n (a) the price charged to other Australian repairers and scheme RTOs for supplying scheme information (whether under this Part or otherwise) in relation to a scheme vehicle:\n\n (i) of that particular make, model and year; or\n\n (ii) if pricing is not available for information in relation to a scheme vehicle of that particular make, model and year—pricing for information in relation to a scheme vehicle of a similar make, model and year;\n\n (b) the terms and conditions on which such scheme information is offered for supply to Australian repairers and scheme RTOs (whether under this Part or otherwise), including as to the permitted use of the information, the means of access to the information, the number of permitted users, and the frequency or duration of use of the information;\n\n (c) the anticipated demand by Australian repairers and scheme RTOs for supply of the scheme information on the basis of the scheme offer;\n\n (d) the reasonable recovery of costs incurred in creating, producing and providing the scheme information for supply on the basis of the scheme offer;\n\n (e) the price charged for the supply of information similar to scheme information in overseas markets;\n\n (f) the amount (if any) payable by the data provider to any person who has a proprietary interest in the scheme information.\n\nNote: A data provider must pay compensation to a person whose copyright is infringed by a supply of scheme information: see subsection 57CD(3).\n\nPublication of scheme offer\n\n (6) The data provider must publish the scheme offer:\n\n (a) in English; and\n\n (b) on the internet; and\n\n (c) in a form that is accessible free of charge.\n\nCivil penalty:\n\n (a) for a body corporate—600 penalty units; and\n\n (b) for a person other than a body corporate—120 penalty units.\n\n (7) The data provider must:\n\n (a) as soon as reasonably practicable after it publishes a scheme offer under subsection (6)—provide a copy of the scheme offer, in writing, to the scheme adviser; and\n\n (b) notify the scheme adviser, in writing, as soon as reasonably practicable after any change to the scheme offer.\n\nCivil penalty:\n\n (a) for a body corporate—600 penalty units; and\n\n (b) for a person other than a body corporate—120 penalty units.","sortOrder":899},{"sectionNumber":"57CB","sectionType":"section","heading":"Scheme information—supply on request by Australian repairers or scheme RTOs","content":"57CB  Scheme information—supply on request by Australian repairers or scheme RTOs\n\nScope\n\n (1) This section applies if:\n\n (a) a data provider makes, or is required to make, a scheme offer to supply scheme information in relation to a particular make, model and year of scheme vehicle; and\n\n (b) either:\n\n (i) an Australian repairer has a need to access the scheme information for that particular make, model and year of scheme vehicle in carrying on the Australian repairer’s business; or\n\n (ii) a scheme RTO has a need to access the scheme information to provide an RTO course; and\n\n (c) the Australian repairer or scheme RTO requests, in writing, the data provider to supply the scheme information about that particular make, model and year of scheme vehicle; and\n\n (d) the Australian repairer or scheme RTO pays, or offers to pay, the scheme price, or another agreed price, for the scheme information.\n\nNote: Restrictions apply in relation to the supply of scheme information that is safety and security information: see section 57DB.\n\nSupply of scheme information\n\n (2) The data provider must supply the scheme information to the Australian repairer or scheme RTO:\n\n (a) in accordance with terms and conditions that comply with section 57CC; and\n\n (b) within the period covered by subsection (3).\n\nNote: A pecuniary penalty of up to $10,000,000 may be imposed for a contravention of this subsection: see section 76.\n\n (3) For the purposes of subsection (2), the period covered by this subsection:\n\n (a) starts when (at the payment or offer time) the Australian repairer or scheme RTO pays, or offers to pay, the scheme price, or another agreed price, for the scheme information; and\n\n (b) in the circumstances described in column 1 of an item of the following table, ends at the time described in column 2 of that item.\n\n\n\n- Period for supply of scheme information\n- Item Column 1 Column 2\n- If … the period ends …\n- 1 (a) either:(i) the data provider has previously supplied the scheme information in the form requested to the Australian repairer or scheme RTO, or to any other person; or(ii) the scheme information is readily accessible by the data provider and can be provided in the form requested; and(b) item 2 of this table does not apply immediately after the payment or offer time.\n- 2 paragraph (a) of item 1 of this table applies to the scheme information, but:(a) the scheme information is, or includes, safety and security information; and(b) the data provider has not been given the information required to determine whether or not the scheme information may be supplied under section 57DB; and(c) as a result, the scheme information cannot be provided immediately after the payment or offer time at the end of 2 business days after the day on which the Australian repairer or scheme RTO provides the required information to the data provider.\n- 3 items 1 and 2 of this table do not apply at the later of the following times:(a) at a time agreed by the data provider and the Australian repairer or scheme RTO;(b) at the end of 5 business days after the payment or offer time.\n\n\nData provider to notify scheme adviser of terms and conditions of supply\n\n (4) If the data provider supplies scheme information to an Australian repairer or scheme RTO under this Part, the data provider must, within 2 business days after the supply, notify the scheme adviser, in writing, of the terms and conditions of the supply, including the price for which the information is supplied.\n\nCivil penalty:\n\n (a) for a body corporate—600 penalty units; and\n\n (b) for a person other than a body corporate—120 penalty units.","sortOrder":900},{"sectionNumber":"57CC","sectionType":"section","heading":"Scheme information—terms and conditions of supply and use","content":"57CC  Scheme information—terms and conditions of supply and use\n\nTerms and conditions of supply generally\n\n (1) Subject to this section, nothing in this Part prevents a data provider from supplying scheme information under this Part subject to reasonable terms and conditions that do not prevent, restrict or limit the access to, or use of, the information for the purposes of diagnosing faults with, servicing, repairing, modifying or dismantling scheme vehicles.\n\nProhibited terms or conditions\n\n (2) However, a data provider must not enter into a contract for the supply of scheme information under this Part that contains any of the following terms or conditions:\n\n (a) a term or condition requiring an Australian repairer or scheme RTO to acquire one or more services or products from the data provider or any other person;\n\n (b) a term or condition allowing an increase, after the contract is made, in the price for the supply of the scheme information under the contract;\n\n (c) a term or condition prohibited by the scheme rules.\n\nCivil penalty:\n\n (a) for a body corporate—600 penalty units; and\n\n (b) for a person other than a body corporate—120 penalty units.\n\n (3) A term or condition of a contract for the supply of scheme information under this Part that contravenes subsection (2) is of no effect.","sortOrder":901},{"sectionNumber":"57CD","sectionType":"section","heading":"Scheme information—interaction of supply obligations and other rights and obligations","content":"57CD  Scheme information—interaction of supply obligations and other rights and obligations\n\nData provider must comply with supply obligations despite existence of other rights and obligations\n\n (1) A data provider must comply with an obligation under this Part in relation to scheme information even if such compliance would constitute or result in one or more of the following:\n\n (a) an infringement of copyright by the data provider or any other person;\n\n (b) a breach of contract in relation to the supply of the scheme information;\n\n (c) a breach of an equitable obligation of confidence to which the data provider is subject in relation to the supply of the scheme information.\n\nNote 1: Division 4 of Part IVA of the Copyright Act 1968 (which provides that certain uses of material by educational institutions do not infringe copyright) does not apply in relation to scheme information supplied under this Part (see paragraph 113P(1)(b) of that Act).\n\nNote 2: A data provider is not criminally responsible for conduct that is justified or excused by or under this Part: see section 10.5 of the Criminal Code (lawful authority).\n\nCompensation for third party copyright holders\n\n (2) Subsection (3) applies if:\n\n (a) a data provider supplies scheme information to an Australian repairer or scheme RTO under this Part; and\n\n (b) a person (the third party claimant) holds copyright in relation to some or all of the scheme information that is the subject of the supply; and\n\n (c) the supply constitutes or results in an infringement of the copyright of the third party claimant; and\n\n (d) apart from this section, the infringement would constitute an acquisition of property otherwise than on just terms (within the meaning of paragraph 51(xxxi) of the Constitution).\n\n (3) The data provider must pay to the third party claimant an amount that represents compensation on just terms (within the meaning of paragraph (xxxi) of the Constitution) for the supply of the scheme information to the Australian repairer or scheme RTO.\n\n (4) An amount payable by the data provider under subsection (3):\n\n (a) is a debt due by the data provider to the third party claimant; and\n\n (b) may be recovered by action in a court of competent jurisdiction.\n\n (5) In a civil action by a third party claimant against a data provider for infringement of copyright in relation to scheme information supplied, or offered for supply, under this Part, it is a defence if the data provider proves that:\n\n (a) the data provider was required to supply the scheme information, or offer to supply the scheme information, under this Part; and\n\n (b) the data provider has paid to the third party claimant the compensation required to be paid under subsection (3).","sortOrder":902},{"sectionNumber":"57DA","sectionType":"section","heading":"Safety and security information—packaging","content":"57DA  Safety and security information—packaging\n\n  A data provider must, in a scheme offer, separate safety and security information from other scheme information to the extent it is reasonably practicable to do so.\n\nCivil penalty:\n\n (a) for a body corporate—600 penalty units; and\n\n (b) for a person other than a body corporate—120 penalty units.","sortOrder":904},{"sectionNumber":"57DB","sectionType":"section","heading":"Safety and security information—supply to Australian repairers and scheme RTOs","content":"57DB  Safety and security information—supply to Australian repairers and scheme RTOs\n\nSupply of safety and security information—restrictions on supply\n\n (1) A data provider must not supply scheme information under this Part that is, or includes, safety and security information for a scheme vehicle of a particular make, model and year unless:\n\n (a) there are reasonable grounds, based on information provided by the Australian repairer or scheme RTO, to believe that the requirements covered by subsection (2) are satisfied in relation to the scheme information for that vehicle; and\n\n (b) the Australian repairer or scheme RTO has provided the required declaration, or declarations, covered by subsection (3) in relation to that vehicle.\n\nCivil penalty:\n\n (a) for a body corporate—600 penalty units; and\n\n (b) for a person other than a body corporate—120 penalty units.\n\n (2) The requirements covered by this subsection are that:\n\n (a) the safety and security information is solely for use by an individual or individuals:\n\n (i) in the case of an Australian repairer—for the purposes of the Australian repairer’s business; or\n\n (ii) in the case of a scheme RTO—for the purposes of providing an RTO course; and\n\n (b) based only on personal information about the individual covered by subsection (6), the individual is a fit and proper person to access and use the safety and security information.\n\n (3) The required declarations covered by this subsection are that:\n\n (a) if security information is to be supplied—a declaration:\n\n (i) confirming that the Australian repairer or scheme RTO is authorised by the owner of the scheme vehicle to access and use the security information for that vehicle; and\n\n (ii) specifying the vehicle identification number of the vehicle; and\n\n (b) in any case, if the scheme rules prescribe a standard in relation to premises at which work is to be carried out on scheme vehicles of that particular make, model and year—a declaration that the premises used by the Australian repairer or scheme RTO comply with that standard.\n\nFit and proper persons\n\n (4) An individual is a fit and proper person to access and use safety and security information if the individual meets the criteria (the prescribed safety and security criteria) prescribed by the scheme rules.\n\n (5) For the purposes of subsection (4), different criteria may be prescribed in relation to each of the following:\n\n (a) safety information;\n\n (b) security information.\n\nPersonal information\n\n (6) For the purposes of paragraph (2)(b), the following personal information about an individual is covered by this subsection:\n\n (a) the individual’s name and residential address;\n\n (b) information about the individual’s relationship to the Australian repairer or scheme RTO (as the case may be);\n\n (c) the individual’s qualifications for using the safety and security information for the applicable purpose mentioned in paragraph (2)(a);\n\n (d) a criminal records check about the individual;\n\n (e) any other information (except sensitive information) prescribed by the scheme rules relevant to working out whether the individual is a fit and proper person to access and use the safety and security information.\n\nNote: This section applies despite section 57CB (which deals with the supply of scheme information on request by an Australian repairer or scheme RTO).\n\n (7) The scheme rules may prescribe matters in relation to the circumstances in which personal information covered by subsection (6) may be sought or given.","sortOrder":905},{"sectionNumber":"57DC","sectionType":"section","heading":"Safety and security information—use or disclosure of sensitive information","content":"57DC  Safety and security information—use or disclosure of sensitive information\n\nScope\n\n (1) This section applies in relation to sensitive information if:\n\n (a) the information is about an individual mentioned in paragraph 57DB(2)(a); and\n\n (b) the information is obtained by a data provider for the purpose of determining whether the individual is a fit and proper person to access and use safety and security information; and\n\n (c) the data provider is a small business operator within the meaning of the Privacy Act 1988; and\n\n (d) that Act would not, apart from this section, apply to the data provider in relation to the information about the individual.\n\nNote: The Privacy Act 1988 generally does not apply in relation to small business operators, except in relation to certain activities (see sections 6C to 6E of that Act).\n\nApplication of Privacy Act 1988\n\n (2) Subject to this Division, the Privacy Act 1988 applies in relation to the sensitive information as if the data provider were an organisation within the meaning of that Act.\n\n (3) The administration of this section is a privacy function for the purposes of the Australian Information Commissioner Act 2010.\n\nNote: See the definition of privacy function in section 9 of the Australian Information Commissioner Act 2010.","sortOrder":906},{"sectionNumber":"57DD","sectionType":"section","heading":"Safety and security information—storage of, and access to, sensitive information","content":"57DD  Safety and security information—storage of, and access to, sensitive information\n\nScope\n\n (1) This section applies in relation to sensitive information if:\n\n (a) the information is about an individual mentioned in paragraph 57DB(2)(a); and\n\n (b) the information is obtained by a data provider for the purposes of determining whether the individual is a fit and proper person to access and use safety and security information.\n\nSensitive information must be stored in Australia\n\n (2) If a data provider holds the sensitive information, the data provider must store the information in Australia or an external Territory.\n\nCivil penalty:\n\n (a) for a body corporate—1,500 penalty units; and\n\n (b) for a person other than a body corporate—300 penalty units.\n\nPreventing access to sensitive information outside Australia\n\n (3) A person must not do anything that might reasonably enable the sensitive information to be accessed outside Australia by the data provider, or any other person.\n\nCivil penalty:\n\n (a) for a body corporate—1,500 penalty units; and\n\n (b) for a person other than a body corporate—300 penalty units.","sortOrder":907},{"sectionNumber":"57DE","sectionType":"section","heading":"Security information—records of access","content":"57DE  Security information—records of access\n\nScope\n\n (1) This section applies if a data provider supplies security information about a scheme vehicle to an Australian repairer or a scheme RTO under this Part.\n\nNote: For restrictions on the supply of such information, see section 57DB.\n\nRecord‑keeping requirement\n\n (2) The data provider must keep a record of the supply of the security information for a period of 5 years after the day it is supplied, including the following:\n\n (a) the time and date of supply;\n\n (b) the name and contact details of the Australian repairer or scheme RTO;\n\n (c) any personal information used by the data provider to determine whether an individual is a fit and proper person to access and use the security information;\n\n (d) the vehicle identification number of each vehicle for which the security information is supplied;\n\n (e) details of the security information supplied.\n\nNote: For restrictions on the use and disclosure of the information mentioned in paragraph (c), see sections 57DB and 57DC.\n\nCivil penalty:\n\n (a) for a body corporate—600 penalty units; and\n\n (b) for a person other than a body corporate—120 penalty units.","sortOrder":908},{"sectionNumber":"57EA","sectionType":"section","heading":"Scope of Division","content":"57EA  Scope of Division\n\n  This Division applies to a dispute about the operation of this Part.","sortOrder":910},{"sectionNumber":"57EB","sectionType":"section","heading":"Resolving disputes","content":"57EB  Resolving disputes\n\n  A party to the dispute (the initiating party) may initiate action to resolve the dispute against another party (the responding party) in accordance with the procedure set out in this Division.","sortOrder":911},{"sectionNumber":"57EC","sectionType":"section","heading":"Right to bring proceedings unaffected","content":"57EC  Right to bring proceedings unaffected\n\n  This Division does not affect the right of the initiating party or the responding party to bring legal proceedings, under this Act or otherwise.","sortOrder":912},{"sectionNumber":"57ED","sectionType":"section","heading":"Attempt to resolve dispute before mediation","content":"57ED  Attempt to resolve dispute before mediation\n\n (1) If the initiating party wishes to initiate action to resolve the dispute in accordance with this Division, the initiating party must give written notice to the responding party of the following:\n\n (a) the nature of the dispute;\n\n (b) the matter that is the subject of the dispute;\n\n (c) the way in which that matter relates to the application of this Part;\n\n (d) what outcome the initiating party wants;\n\n (e) what action the initiating party thinks will resolve the dispute.\n\n (2) The parties must then try to resolve the dispute.\n\nNote: For when a party is taken to have tried to resolve a dispute, see section 57EE.\n\n (3) If the parties cannot agree how to resolve the dispute within 2 business days, either party may refer the matter to a mediator for mediation under this Division.\n\n (4) If the parties cannot agree on who should be the mediator, either party may request the scheme adviser to nominate a mediator.\n\n (5) Within 2 business days after a request is made under subsection (4), the scheme adviser must nominate a mediator for the dispute.","sortOrder":913},{"sectionNumber":"57EE","sectionType":"section","heading":"When is a party taken to have tried to resolve a dispute?","content":"57EE  When is a party taken to have tried to resolve a dispute?\n\n  For the purposes of this Division, a party is taken to have tried to resolve a dispute if the party approaches the resolution of the dispute in a reconciliatory manner, including by doing any of the following:\n\n (a) attending and participating in meetings at reasonable times;\n\n (b) responding to communications to the party within a reasonable time;\n\n (c) if the party has agreed to use a technical expert in resolving the dispute—considering the opinions of the technical expert;\n\n (d) if a mediation process is being used to try to resolve the dispute—both:\n\n (i) making the party’s intention clear, at the beginning of the process, as to what the party is trying to achieve through the process; and\n\n (ii) observing any obligations relating to confidentiality that apply during or after the process.","sortOrder":914},{"sectionNumber":"57EF","sectionType":"section","heading":"Mediation","content":"57EF  Mediation\n\n (1) Subject to this section, a mediator appointed by the parties to a dispute may decide the time and place for mediation.\n\n (2) The mediator may, with the agreement of the parties to the dispute, appoint a technical expert to assist in the resolution of the dispute.\n\n (3) Unless the mediation is conducted using the technology referred to in subsection (4), the mediation must be conducted in Australia.\n\n (4) The mediation may be conducted using any technology that allows a person to participate in the mediation without being physically present at the mediation.\n\n (5) The parties must attend the mediation.\n\nCivil penalty:\n\n (a) for a body corporate—600 penalty units; and\n\n (b) for a person other than a body corporate—120 penalty units.\n\n (6) For the purposes of subsection (5), a party is taken to attend mediation in the following circumstances:\n\n (a) the party is represented at the mediation by a person who has the authority to enter into an agreement to settle the dispute on behalf of the party;\n\n (b) the party, or the party’s authorised representative mentioned in paragraph (a), participates in the mediation using the technology referred to in subsection (4).\n\n (7) The parties must then try to resolve the dispute.\n\nNote: For when a party is taken to have tried to resolve a dispute, see section 57EE.\n\n (8) Within 5 business days after the start of the mediation, the mediator must advise the scheme adviser that the mediation has started.","sortOrder":915},{"sectionNumber":"57EG","sectionType":"section","heading":"Termination of mediation","content":"57EG  Termination of mediation\n\n (1) This section applies to the mediation of a dispute if the dispute has not been resolved within 30 days after the day the mediation starts.\n\n (2) The mediator may terminate the mediation at any time unless satisfied that a resolution of the dispute is imminent.\n\n (3) However, if either party asks the mediator to terminate the mediation, the mediator must do so.\n\n (4) If the mediator terminates the mediation of a dispute under this section, the mediator must issue a certificate stating the following:\n\n (a) the names of the parties;\n\n (b) the nature of the dispute;\n\n (c) whether the parties attended the mediation;\n\n (d) that the mediation has finished;\n\n (e) that the dispute has not been resolved.\n\n (5) The mediator must give a copy of the certificate to:\n\n (a) the scheme adviser; and\n\n (b) each of the parties to the dispute.","sortOrder":916},{"sectionNumber":"57EH","sectionType":"section","heading":"Costs of mediation","content":"57EH  Costs of mediation\n\n (1) The parties are equally liable for the costs of mediation under this Division unless they agree otherwise.\n\n (2) The parties must pay their own costs of attending the mediation.\n\n (3) The costs of mediation under this Division under subsection (1) include the following:\n\n (a) the cost of the mediator;\n\n (b) the cost of any additional input (including from technical experts) agreed by both parties to be necessary to conduct the mediation.","sortOrder":917},{"sectionNumber":"57FA","sectionType":"section","heading":"Scheme adviser—establishment and appointment","content":"57FA  Scheme adviser—establishment and appointment\n\n (1) There is to be a motor vehicle service and repair information scheme adviser for the purposes of this Part.\n\n (2) The Minister may, by instrument, appoint a person to be the scheme adviser.\n\n (3) The scheme adviser is not entitled to any payment (including any remuneration or allowances) relating to this appointment.\n\nNote: The person appointed could be a body corporate or an individual.","sortOrder":919},{"sectionNumber":"57FB","sectionType":"section","heading":"Scheme adviser—functions","content":"57FB  Scheme adviser—functions\n\n (1) The scheme adviser has the following functions:\n\n (a) to nominate mediators or technical experts for the purposes of Division 5 (dispute resolution);\n\n (b) to report to the Minister at any time or by a time specified by the Minister:\n\n (i) on scheme prices, the terms and conditions of scheme offers or the availability of scheme information; and\n\n (ii) about whether or not, in the scheme adviser’s opinion, particular information is, or should be, scheme information; and\n\n (iii) about any other matter relevant to the operation of this Part;\n\n (c) to report to the Commission about any systemic regulatory or enforcement issues relating to the operation of this Part;\n\n (d) to provide general advice in relation to the application of this Part, but excluding any information obtained in confidence;\n\n (e) to publish on the scheme adviser’s website annual reports about:\n\n (i) the number and type of inquiries and disputes relating to the operation of this Part over the period of a financial year;\n\n (ii) the number and type of disputes for which a mediator has been appointed over that period;\n\n (iii) resolution rates for disputes for which a mediator has been appointed over that period;\n\n (iv) other relevant matters affecting the operation of this Part over the period, including any such matter directed by the Minister in writing;\n\n (f) to provide information online to data providers, Australian repairers and scheme RTOs about the availability of scheme information and dispute resolution under this Part, but excluding any information obtained in confidence.\n\n (2) Information about the terms and conditions of a contract on which scheme information is supplied under this Part that is notified to the scheme adviser under subsection 57CB(4) is taken not to be information obtained in confidence, except to the extent that it identifies, or enables identification of, the parties to the contract.\n\n (3) The scheme adviser has all the powers necessary or convenient for the performance of the functions of that office.\n\n (4) Section 34C of the Acts Interpretation Act 1901 does not apply in relation to a report mentioned in this section.\n\nNote: Section 34C of the Acts Interpretation Act 1901 would otherwise require any periodic reports to be given to the Minister and tabled in Parliament.","sortOrder":920},{"sectionNumber":"57GA","sectionType":"section","heading":"Civil penalty provisions","content":"57GA  Civil penalty provisions\n\n  A provision of this Part that is of one of the following kinds and sets out at its foot a pecuniary penalty indicated by the words “civil penalty” is a civil penalty provision for the purposes of this Part and item 11 of the table in subsection 76(1A):\n\n (a) a subsection;\n\n (b) a section that is not divided into subsections.","sortOrder":922},{"sectionNumber":"57GB","sectionType":"section","heading":"Infringement notices","content":"57GB  Infringement notices\n\n (1) Division 2A of Part IVB applies in relation to an alleged contravention of a civil penalty provision mentioned in an item in the table in subsection (2) in the same way in which it applies in relation to an alleged contravention of a civil penalty provision of an industry code (within the meaning of that Part).\n\n (2) For the purposes of the application of Division 2A of Part IVB under subsection (1), the penalty to be specified in an infringement notice in relation to an alleged contravention of a provision mentioned in columns 1 and 2 of an item of the following table must be a penalty equal to the applicable penalty for the contravention mentioned in column 3 or 4 of that item.\n\n\n\n- Penalties to be specified in infringement notices issued under this Part\n- Item Column 1 Column 2 Column 3 Column 4\n- For an alleged contravention of the following provision: that relates to: if the alleged contravention is by a body corporate—the number of penalty units must be: if the alleged contravention is by a person other than a body corporate—the number of penalty units must be:\n- 1 subsection 57CA(3) the choice of supply period in scheme offer 60 12\n- 2 subsection 57CA(6) publishing a scheme offer 60 12\n- 3 subsection 57CA(7) notifying the scheme adviser about scheme information offered 60 12\n- 4 subsection 57CB(2) failing to supply scheme information within the period covered by paragraph 57CB(2)(b) 600 120\n- 5 subsection 57CB(4) notifying the scheme adviser of terms and conditions of supply 60 12\n- 6 subsection 57CC(2) prohibited terms or conditions in contracts of supply 60 12\n- 7 Section 57DA packaging of scheme information 60 12\n- 8 subsection 57DB(1) restrictions on supplying safety and security information 60 12\n- 9 subsection 57DE(2) requiring a data provider to keep records 60 12\n- 10 subsection 57EF(5) failing to attend mediation 60 12","sortOrder":923},{"sectionNumber":"57GC","sectionType":"section","heading":"Concurrent operation of State and Territory laws","content":"57GC  Concurrent operation of State and Territory laws\n\n  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.","sortOrder":924},{"sectionNumber":"57GD","sectionType":"section","heading":"Acquisition of property","content":"57GD  Acquisition of property\n\nScope\n\n (1) This section applies to any of the following provisions:\n\n (a) a provision of Division 3;\n\n (b) any other provision of this Act, to the extent to which the provision relates to Division 3.\n\nEffect of provision\n\n (2) The provision has no effect to the extent (if any) to which its operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).","sortOrder":925},{"sectionNumber":"57GE","sectionType":"section","heading":"Scheme rules","content":"57GE  Scheme rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n\n (a) required or permitted by this Part to be prescribed by the rules; or\n\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.\n\n (2) To avoid doubt, the rules may not do the following:\n\n (a) create an offence or civil penalty;\n\n (b) provide powers of:\n\n (i) arrest or detention; or\n\n (ii) entry, search or seizure;\n\n (c) impose a tax;\n\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n\n (e) directly amend the text of this Act;\n\n (f) subject to section 57DB, authorise or require the disclosure of sensitive information.","sortOrder":926},{"sectionNumber":"Part IVF","sectionType":"part","heading":"Scams Prevention Framework","content":"Part IVF—Scams Prevention Framework","sortOrder":927},{"sectionNumber":"58AA","sectionType":"section","heading":"Object of this Part","content":"58AA  Object of this Part\n\n  The object of this Part is to prevent and respond to scams impacting:\n\n (a) either:\n\n (i) natural persons while they are in Australia; or\n\n (ii) persons who carry on small businesses in Australia;\n\n  if the scams relate to, are connected with, or use certain services that are or may be provided or purportedly provided to those persons; or\n\n (b) natural persons while they are outside of Australia if:\n\n (i) they are ordinarily resident in Australia; and\n\n (ii) the scams relate to, are connected with, or use certain services that are or may be provided or purportedly provided to those persons by Australian service providers or by foreign service providers through permanent establishments in Australia.","sortOrder":930},{"sectionNumber":"58AB","sectionType":"section","heading":"Simplified outline of this Part","content":"58AB  Simplified outline of this Part\n\nThe Scams Prevention Framework is a multifaceted approach for protecting Australian consumers from scams. The Framework requires service providers in selected sectors of the economy to take a variety of actions to combat scams relating to, connected with, or using their services.\n\nThese service providers must comply with the overarching principles of the Framework. These principles are about:\n\n (a) governance arrangements relating to scams; and\n\n (b) preventing, detecting, reporting, disrupting and responding to scams.\n\nUnder the Framework, the Minister may make a code (an SPF code) setting out sector‑specific requirements for the service providers in a selected sector of the economy relating to:\n\n (a) governance arrangements relating to scams; and\n\n (b) preventing, detecting, disrupting and responding to scams.\n\nUnder the Framework, the Minister may authorise external dispute resolution schemes for participation by these service providers. The operator of such a scheme will be able to determine complaints by consumers about how these service providers respond to scams.\n\nThe Commission is to regulate and enforce compliance with the overarching principles of the Framework. Other Commonwealth entities will be selected by the Minister to regulate and enforce compliance with SPF codes.","sortOrder":931},{"sectionNumber":"58AC","sectionType":"section","heading":"Regulated sectors subject to the Scams Prevention Framework","content":"58AC  Regulated sectors subject to the Scams Prevention Framework\n\n (1) The Minister may, by legislative instrument, designate one or more businesses or services to be a regulated sector of the Australian economy.\n\nNote 1: An individual business or service could be designated, or businesses or services could be designated by class (see subsection 13(3) of the Legislation Act 2003).\n\nNote 2: For variation and repeal, see subsection 33(3) of the Acts Interpretation Act 1901.\n\n (2) Without limiting subsection (1), the following classes of businesses or services could be designated:\n\n (a) businesses of banking, other than State banking (within the meaning of paragraph 51(xiii) of the Constitution) not extending beyond the limits of the State concerned;\n\n (b) businesses of insurance, other than State insurance (within the meaning of paragraph 51(xiv) of the Constitution) not extending beyond the limits of the State concerned;\n\n (c) postal, telegraphic, telephonic or other like services (within the meaning of paragraph 51(v) of the Constitution), such as one or more of the following:\n\n (i) carriage services (within the meaning of the Telecommunications Act 1997);\n\n (ii) electronic services (within the meaning of the Online Safety Act 2021), such as social media services (within the meaning of that Act);\n\n (iii) broadcasting services (within the meaning of the Broadcasting Services Act 1992).\n\nNote: This is not an exhaustive list. Similarly, a subset of paragraph (a), (b) or (c) could be designated.","sortOrder":933},{"sectionNumber":"58AD","sectionType":"section","heading":"Regulated entities for regulated sectors and their regulated services","content":"58AD  Regulated entities for regulated sectors and their regulated services\n\nEntities with businesses or services within the banking, insurance or communications constitutional powers\n\n (1) To the extent that a regulated sector includes a business or service covered by paragraph 58AC(2)(a), (b) or (c):\n\n (a) the person who carries on or provides that business or service is a regulated entity for the sector; and\n\n (b) that business or service is a regulated service of the regulated entity for the sector.\n\nNote 1: This subsection extends to a regulated sector consisting of businesses or services that are a subset of paragraph 58AC(2)(a), (b) or (c).\n\nNote 2: Sections 58GA to 58GC extend the meaning of person for partnerships, unincorporated associations and trusts.\n\nOther entities who may be regulated entities\n\n (2) Otherwise:\n\n (a) the regulated entities for a regulated sector; and\n\n (b) the regulated services of each of those regulated entities;\n\nare as set out in the following table:\n\n\n\n- Other regulated entities, and their regulated services, for the regulated sector\n- Item This person is a regulated entity: for this regulated service:\n- 1 a corporation that carries on or provides a business or service that is part of the regulated sector that business or service.\n- 2 a person to the extent that the person is both:(a) carrying on or providing a business or service that is part of the regulated sector; and(b) acting using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution) so much of that business or service as relates to the person acting in that way.\n- 3 a person to the extent that the person is both:(a) carrying on or providing a business or service that is part of the regulated sector; and(b) acting in the course of, or in relation to, a kind of trade or commerce mentioned in subsection (3) so much of that business or service as relates to the person acting in that way.\n\n\nNote 1: For the meaning of corporation, see section 4.\n\nNote 2: Sections 58GA to 58GC extend the meaning of person for partnerships, unincorporated associations and trusts.\n\n (3) For the purposes of item 3 of the table in subsection (2), the kinds of trade or commerce are as follows:\n\n (a) trade or commerce between Australia and places outside Australia;\n\n (b) trade or commerce among the States;\n\n (c) trade or commerce within a Territory, between a State or Territory or between 2 Territories.\n\nExceptions—complete\n\n (4) Despite subsections (1) and (2):\n\n (a) a person is not a regulated entity for a regulated sector to the extent that an exception prescribed by the SPF rules applies to the person; and\n\n (b) a business or service is not a regulated service of a person for a regulated sector to the extent that an exception prescribed by the SPF rules applies to the business or service.\n\nNote: A person, business or service may be specified by class (see subsection 13(3) of the Legislation Act 2003).\n\nExceptions—partial\n\n (5) Despite subsections (1) and (2), the instrument made under subsection 58AC(1) designating a business or service to be all or part of the regulated sector may declare that:\n\n (a) the person who carries on or provides the business or service is not a regulated entity for the regulated sector for the purposes of specified SPF provisions; or\n\n (b) the business or service is not a regulated service for the regulated sector for the purposes of specified SPF provisions.\n\nNote: An individual person, business or service could be declared, or persons, businesses or services could be declared by class (see subsection 13(3) of the Legislation Act 2003).","sortOrder":934},{"sectionNumber":"58AE","sectionType":"section","heading":"Minister must consider matters, and consult, before designating a sector","content":"58AE  Minister must consider matters, and consult, before designating a sector\n\n (1) Before making an instrument under subsection 58AC(1) about a sector of the economy, the Minister must:\n\n (a) consider all of the following:\n\n (i) scam activity in the sector;\n\n (ii) the effectiveness of existing industry initiatives to address scams in the sector;\n\n (iii) the interests of persons who would be SPF consumers of regulated services for the sector if the instrument were made;\n\n (iv) the likely consequences (including benefits and risks) to the public if the instrument were made;\n\n (v) the likely consequences (including benefits and risks) to the businesses or services making up the sector;\n\n (vi) any other matters the Minister considers relevant; and\n\n (b) consult the businesses or services making up the sector, or such associations or other bodies representing them as the Minister thinks appropriate; and\n\n (c) consult such associations or other bodies representing the persons referred to in subparagraph (a)(iii) as the Minister thinks appropriate.\n\nNote: For the meaning of SPF consumer, see section 58AH.\n\n (2) A failure to comply with subsection (1) does not invalidate an instrument made under subsection 58AC(1).","sortOrder":935},{"sectionNumber":"58AF","sectionType":"section","heading":"Delegation","content":"58AF  Delegation\n\n  The Minister may, in writing, delegate the Minister’s power to make an instrument under subsection 58AC(1) to another Minister.\n\nNote: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations. For example, section 34A of that Act means that section 58AE of this Act can be satisfied by the delegate.","sortOrder":936},{"sectionNumber":"58AG","sectionType":"section","heading":"Meaning of scam","content":"58AG  Meaning of scam\n\n (1) A scam is a direct or indirect attempt (whether or not successful) to engage an SPF consumer of a regulated service where it would be reasonable to conclude that the attempt:\n\n (a) involves deception (see subsection (2)); and\n\n (b) would, if successful, cause loss or harm including obtaining SPF personal information of, or a financial or other benefit from, the SPF consumer or the SPF consumer’s associates.\n\n (2) The attempt involves deception if the attempt:\n\n (a) deceptively represents something to be (or to be related to) the regulated service; or\n\n (b) impersonates a regulated entity in connection with the regulated service; or\n\n (c) is an attempt to deceive the SPF consumer into:\n\n (i) performing an action using the regulated service; or\n\n (ii) facilitating another person to perform an action using the regulated service; or\n\n (d) is an attempt to deceive the SPF consumer that is made using the regulated service.\n\n (3) The attempt may be a single act or a course of conduct.\n\n (4) However, the attempt is not a scam if the attempt is of a kind prescribed by the SPF rules.","sortOrder":938},{"sectionNumber":"58AH","sectionType":"section","heading":"Meaning of SPF consumer","content":"58AH  Meaning of SPF consumer\n\n (1) An SPF consumer, of a regulated service, is any of the following:\n\n (a) a natural person, or a small business operator, who is or may be provided or purportedly provided the service in Australia;\n\n (b) a natural person who:\n\n (i) is ordinarily resident in Australia; and\n\n (ii) is or may be provided or purportedly provided the service outside of Australia by a regulated entity that satisfies the residency requirements in subsection (2).\n\n (2) The regulated entity satisfies the residency requirements if it:\n\n (a) is an Australian resident (within the meaning of the Income Tax Assessment Act 1997); or\n\n (b) is so providing or purportedly providing the service through a permanent establishment (within the meaning of the Income Tax Assessment Act 1997) in Australia.\n\nNote 1: For paragraph (1)(a), a person who is a small business operator at the time the person is impacted by a scam continues to be an SPF consumer for that time even if the business later has 100 or more employees.\n\nNote 2: Sections 58GA to 58GC extend the meaning of person for partnerships, unincorporated associations and trusts.\n\n (3) Subsection (1) includes the provision or purported provision of a regulated service:\n\n (a) directly or indirectly to the person; or\n\n (b) whether or not under a contract, arrangement or understanding with the person; or\n\n (c) whether or not the regulated entity providing the service knows that the person is:\n\n (i) a natural person; or\n\n (ii) a small business operator; or\n\n (d) that involves the supply of goods.\n\nNote: This is not an exhaustive list.\n\n (4) However, the person is not an SPF consumer of the regulated service if a condition prescribed by the SPF rules applies to the person in relation to regulated services of that kind.\n\n (5) In this section:\n\nannual turnover has the same meaning as in the Corporations Act 2001.\n\nrelated body corporate has the same meaning as in the Corporations Act 2001.\n\nsmall business operator means a person who carries on a business if:\n\n (a) in the case of the person being a body corporate:\n\n (i) the sum of the person’s employees, and the employees of any body corporate related to the person, is less than 100 employees; and\n\n (ii) the person’s annual turnover during the last financial year is less than $10 million; and\n\n (b) in the case of the person not being a body corporate:\n\n (i) the person has less than 100 employees; and\n\n (ii) the person’s annual turnover (worked out as if the person were a body corporate) during the last financial year is less than $10 million; and\n\n (c) in every case—the business has a principal place of business in Australia.\n\n (6) Section 4B (about consumers) does not apply to this Part.","sortOrder":939},{"sectionNumber":"58AI","sectionType":"section","heading":"Meaning of actionable scam intelligence","content":"58AI  Meaning of actionable scam intelligence\n\n  A regulated entity identifies or has actionable scam intelligence if (and when) there are reasonable grounds for the entity to suspect that a communication, transaction or other activity relating to, connected with, or using a regulated service of the entity is a scam.\n\nNote 1: Whether there are reasonable grounds for such a suspicion is an objective test. Relevant information for this test may include:\n\n(a) information about the mechanism or identifier being used to scam SPF consumers, such as URLs, email addresses, phone numbers, social media profiles, digital wallets and bank account information of the scam promotors; and\n\n(b) information about the suspected scammer; and\n\n(c) information (including complaints) provided by SPF consumers.\n\nNote 2: Gathering and reporting this information will minimise the harm from scams (see SPF principles 4 and 5 in Subdivisions E and F of Division 2).","sortOrder":940},{"sectionNumber":"58AJ","sectionType":"section","heading":"Extension to external Territories and outside of Australia","content":"58AJ  Extension to external Territories and outside of Australia\n\n (1) Each of the following provisions (the SPF provisions) extends to every external Territory:\n\n (a) a provision of this Part;\n\n (b) a provision of a legislative instrument made under this Part;\n\n (c) another provision of this Act to the extent that it relates to a provision covered by paragraph (a) or (b);\n\n (d) a provision of the Regulatory Powers Act to the extent that it applies in relation to a provision covered by paragraph (a) or (b).\n\n (2) The SPF provisions extend to acts, omissions, matters and things outside Australia.","sortOrder":942},{"sectionNumber":"58AK","sectionType":"section","heading":"Acts done by or in relation to agents etc. of regulated entities","content":"58AK  Acts done by or in relation to agents etc. of regulated entities\n\nConduct of agents etc. of a regulated entity is attributable to the regulated entity\n\n (1) For the purposes of the SPF provisions, section 97 of the Regulatory Powers Act (to the extent that it applies in relation to the SPF provisions) applies to a regulated entity who is not a body corporate in a corresponding way to the way that provision applies to a regulated entity who is a body corporate.\n\nActs done in relation to an agent of a regulated entity taken to be done in relation to the regulated entity\n\n (2) For the purposes of SPF provisions, if an act is done by a person in relation to another person (the agent) who:\n\n (a) is acting on behalf of a regulated entity; and\n\n (b) is so acting within the scope of the agent’s actual or apparent authority;\n\nthe act is taken to have also been done in relation to the regulated entity.","sortOrder":944},{"sectionNumber":"58BA","sectionType":"section","heading":"Simplified outline of this Division","content":"58BA  Simplified outline of this Division\n\nEach regulated entity must comply with the overarching principles of the Scams Prevention Framework.\n\nThese principles require each regulated entity to:\n\n (a) document and implement governance arrangements to combat scams; and\n\n (b) take reasonable steps to prevent, detect, report, disrupt and respond to scams.\n\nThese requirements are civil penalty provisions. The Commission (in its capacity as the SPF general regulator) will monitor, investigate and enforce compliance with these provisions. Division 6 sets out remedies for non‑compliance with these provisions.","sortOrder":947},{"sectionNumber":"58BB","sectionType":"section","heading":"Meaning of reasonable steps","content":"58BB  Meaning of reasonable steps\n\n (1) Matters relevant to whether a regulated entity has taken reasonable steps for the purposes of a provision of this Division include:\n\n (a) the size of the regulated entity; and\n\n (b) the kind of regulated services concerned; and\n\n (c) the consumer base of those services; and\n\n (d) the kinds of scam risks those services face; and\n\n (e) whether the regulated entity has complied with any relevant SPF code obligations relating to that provision.\n\n (2) In determining whether a regulated entity has taken reasonable steps for the purposes of a provision of this Division, the primary consideration must be the matter in paragraph (1)(e) (if applicable).","sortOrder":948},{"sectionNumber":"58BC","sectionType":"section","heading":"Simplified outline of this Subdivision","content":"58BC  Simplified outline of this Subdivision\n\nEach regulated entity must document and implement governance policies, procedures, metrics and targets for combatting scams.\n\nThese must be reviewed, and certified by a senior officer of the entity, at least annually.\n\nThe entity must keep records and give reports about its compliance with this principle.\n\nThe SPF code for the sector may include sector‑specific provisions for this principle.","sortOrder":950},{"sectionNumber":"58BD","sectionType":"section","heading":"Documenting and implementing governance policies and procedures—civil penalty provision","content":"58BD  Documenting and implementing governance policies and procedures—civil penalty provision\n\n (1) A regulated entity for a regulated sector contravenes this subsection if the entity fails to do one or more of the following:\n\n (a) document governance policies and procedures about:\n\n (i) preventing, detecting and disrupting scams; and\n\n (ii) responding to scams; and\n\n (iii) reports relating to scams;\n\n  relating to, connected with, or using the entity’s regulated services for the sector;\n\n (b) implement those governance policies and procedures;\n\n (c) develop and implement performance metrics and targets that:\n\n (i) are for measuring the effectiveness of those governance policies and procedures; and\n\n (ii) comply with any requirements for those metrics and targets that are prescribed by the SPF rules.\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).","sortOrder":951},{"sectionNumber":"58BE","sectionType":"section","heading":"Annual certification about SPF governance policies, procedures, metrics and targets—civil penalty provision","content":"58BE  Annual certification about SPF governance policies, procedures, metrics and targets—civil penalty provision\n\n (1) A regulated entity for a regulated sector contravenes this subsection if:\n\n (a) no senior officer of the entity certifies in writing, within 12 months of the day the entity becomes a regulated entity for the sector, whether the entity’s SPF governance policies, procedures, metrics and targets for the sector comply with this Subdivision; or\n\n (b) no senior officer of the entity certifies in writing, within 7 days after each 12‑month anniversary of the day the entity becomes a regulated entity for the sector, whether the entity’s SPF governance policies, procedures, metrics and targets for the sector comply with this Subdivision.\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).","sortOrder":952},{"sectionNumber":"58BF","sectionType":"section","heading":"Record keeping of compliance with SPF provisions—civil penalty provision","content":"58BF  Record keeping of compliance with SPF provisions—civil penalty provision\n\n (1) A regulated entity for a regulated sector contravenes this subsection if the entity fails to keep records of information of a material nature relating to each of the following activities for at least 6 years after that activity happens:\n\n (a) the initial documenting, and each revision of the documenting, of the entity’s SPF governance policies, procedures, metrics and targets for the sector;\n\n (b) the initial implementation, and each reimplementation, of those SPF governance policies, procedures, metrics and targets;\n\n (c) each consideration (including certification) by one of the entity’s senior officers of those SPF governance policies, procedures, metrics and targets, including in relation to their documenting, implementation and review;\n\n (d) any other activities that are prescribed by the SPF rules.\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).","sortOrder":953},{"sectionNumber":"58BG","sectionType":"section","heading":"Reporting about compliance with this Subdivision—civil penalty provision","content":"58BG  Reporting about compliance with this Subdivision—civil penalty provision\n\n (1) A regulated entity for a regulated sector contravenes this subsection if:\n\n (a) the SPF general regulator, or the SPF sector regulator for the sector, gives the entity a written request for a copy of:\n\n (i) the entity’s SPF governance policies, procedures, metrics and targets for the sector; or\n\n (ii) specified kinds of other records required by this Subdivision to be kept for the sector by the entity; and\n\n (b) the entity fails to comply with the request within:\n\n (i) 10 business days after the day the entity is given the request; or\n\n (ii) such longer period as is allowed by the SPF regulator.\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).","sortOrder":954},{"sectionNumber":"58BH","sectionType":"section","heading":"Sector-specific details can be set out in SPF codes","content":"58BH  Sector‑specific details can be set out in SPF codes\n\n  For the purposes of (but without limiting) subsection 58CC(1), the SPF code for a regulated sector may include sector‑specific provisions describing:\n\n (a) the matters that a regulated entity for the sector must include in the entity’s governance policies and procedures for the purposes of this Subdivision; or\n\n (b) the factors that a regulated entity for the sector must have regard to when developing the entity’s governance policies and procedures for the purposes of this Subdivision.","sortOrder":955},{"sectionNumber":"58BI","sectionType":"section","heading":"Simplified outline of this Subdivision","content":"58BI  Simplified outline of this Subdivision\n\nEach regulated entity for a regulated sector must take reasonable steps to prevent scams.\n\nThe SPF code for the sector may include sector‑specific provisions for this principle.","sortOrder":957},{"sectionNumber":"58BJ","sectionType":"section","heading":"Taking reasonable steps to prevent scams from being committed—civil penalty provision","content":"58BJ  Taking reasonable steps to prevent scams from being committed—civil penalty provision\n\n (1) A regulated entity contravenes this subsection if the entity fails to take reasonable steps to prevent another person from committing a scam relating to, connected with, or using a regulated service of the entity.\n\nNote: Sections 58GA to 58GC extend the meaning of person for partnerships, unincorporated associations and trusts.\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).","sortOrder":958},{"sectionNumber":"58BK","sectionType":"section","heading":"Further detail about certain concepts","content":"58BK  Further detail about certain concepts\n\n (1) Taking reasonable steps for the purposes of subsection 58BJ(1) requires more than merely acting on actionable scam intelligence in the form of information provided to the regulated entity by another person.\n\nFurther sector‑specific details can be set out in SPF codes\n\n (2) For the purposes of (but without limiting) subsection 58CC(1), the SPF code for a regulated sector may include sector‑specific provisions:\n\n (a) describing what are reasonable steps for the purposes of this Subdivision (see also section 58BB); or\n\n (b) requiring each regulated entity for the sector to:\n\n (i) identify its SPF consumers who are at risk of being targeted by a scam; or\n\n (ii) identify its SPF consumers who have a higher risk of being targeted by a scam; or\n\n (c) requiring each regulated entity for the sector to provide information about such scams to an SPF consumer described in subparagraph (b)(i) or (ii).","sortOrder":959},{"sectionNumber":"58BL","sectionType":"section","heading":"Simplified outline of this Subdivision","content":"58BL  Simplified outline of this Subdivision\n\nEach regulated entity for a regulated sector must take reasonable steps to detect scams. This includes:\n\n (a) investigating, in a timely way, activities that are the subjects of its actionable scam intelligence; and\n\n (b) identifying, in a timely way, its consumers that have or may have been impacted by such activities.\n\nThe SPF code for the sector may include sector‑specific provisions for this principle.","sortOrder":961},{"sectionNumber":"58BM","sectionType":"section","heading":"Taking reasonable steps to detect scams—civil penalty provision","content":"58BM  Taking reasonable steps to detect scams—civil penalty provision\n\n (1) A regulated entity contravenes this subsection if the entity fails to take reasonable steps to detect a scam relating to, connected with, or using a regulated service of the entity.\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).\n\n (3) Without limiting subsection (1), the regulated entity fails to take reasonable steps to detect a scam relating to, connected with, or using a regulated service of the entity if the entity fails to take reasonable steps to:\n\n (a) detect such a scam as it happens; or\n\n (b) detect such a scam after it happens.\n\nNote: For further details about the meaning of reasonable steps, see sections 58BB and 58BP.","sortOrder":962},{"sectionNumber":"58BN","sectionType":"section","heading":"Investigating actionable scam intelligence—civil penalty provision","content":"58BN  Investigating actionable scam intelligence—civil penalty provision\n\n (1) A regulated entity contravenes this subsection if the entity:\n\n (a) has actionable scam intelligence about an activity relating to, connected with, or using a regulated service of the entity; and\n\n (b) fails to take reasonable steps to investigate whether or not the activity is a scam during the 28‑day period starting on the day that the intelligence becomes actionable scam intelligence for the entity.\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).","sortOrder":963},{"sectionNumber":"58BO","sectionType":"section","heading":"Identifying impacted SPF consumers—civil penalty provision","content":"58BO  Identifying impacted SPF consumers—civil penalty provision\n\n (1) A regulated entity contravenes this subsection if the entity:\n\n (a) has actionable scam intelligence about an activity relating to, connected with, or using a regulated service of the entity; and\n\n (b) fails to take reasonable steps within a reasonable time to identify the persons who were SPF consumers of that service at the time when the persons were or may have been impacted by the activity.\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).","sortOrder":964},{"sectionNumber":"58BP","sectionType":"section","heading":"Sector-specific details can be set out in SPF codes","content":"58BP  Sector‑specific details can be set out in SPF codes\n\n  For the purposes of (but without limiting) subsection 58CC(1), the SPF code for a regulated sector may include sector‑specific provisions describing:\n\n (a) what are reasonable steps (see also section 58BB); or\n\n (b) what is a reasonable time;\n\nfor the purposes of this Subdivision.","sortOrder":965},{"sectionNumber":"58BQ","sectionType":"section","heading":"Simplified outline of this Subdivision","content":"58BQ  Simplified outline of this Subdivision\n\nEach regulated entity must give the SPF general regulator reports of any actionable intelligence the entity has about activities relating to, connected with, or using the entity’s regulated services.\n\nA regulated entity must give an SPF regulator a report about a scam if the SPF regulator requests.\n\nThe SPF general regulator may disclose information about scams to certain other entities.","sortOrder":967},{"sectionNumber":"58BR","sectionType":"section","heading":"Reporting actionable scam intelligence to SPF regulators—civil penalty provision","content":"58BR  Reporting actionable scam intelligence to SPF regulators—civil penalty provision\n\n (1) This section applies if a regulated entity has actionable scam intelligence about an activity relating to, connected with, or using a regulated service of the entity.\n\nCivil penalty provision\n\n (2) The entity contravenes this subsection if the entity fails to give a report about the actionable scam intelligence:\n\n (a) to the SPF general regulator within the period, and in the manner and form, prescribed by the SPF rules; and\n\n (b) that contains the kinds of information prescribed by the SPF rules.\n\nNote: This subsection only applies to the entity when the SPF rules prescribe matters for paragraphs (a) and (b) that apply to the entity.\n\n (3) Subsection (2) is a civil penalty provision.\n\nNote: This means subsection (2) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).\n\nDefence\n\n (4) Subsection (2) does not apply to the entity if circumstances of a kind prescribed by the SPF rules apply to the entity.\n\nNote: A defendant bears an evidential burden in relation to the matter in this subsection (see section 96 of the Regulatory Powers Act).\n\nMatters relevant to reports\n\n (5) For the purposes of (but without limiting) subsection (2), the SPF rules may prescribe:\n\n (a) that the report may be given via access to a specified data gateway, portal or website; and\n\n (b) that the report include the sources or evidence that the entity has for that intelligence (see section 58AI); and\n\n (c) different matters for different kinds of regulated entities.\n\nNote: For more about the data gateways, portals or websites referred to in paragraph (a), see section 58BT.\n\n (6) The report may be required to include SPF personal information.","sortOrder":968},{"sectionNumber":"58BS","sectionType":"section","heading":"Reporting scams to SPF regulators—civil penalty provisions","content":"58BS  Reporting scams to SPF regulators—civil penalty provisions\n\n (1) This section applies if an SPF regulator gives a written request to a regulated entity for the entity to give the SPF regulator a report about a scam relating to, connected with, or using a regulated service of the entity.\n\nCivil penalty provision\n\n (2) The entity contravenes this subsection if the entity fails to give a report about the scam:\n\n (a) to the SPF regulator within the period, and in the manner and form, set out in the request; and\n\n (b) that contains the kinds of information set out in the request.\n\n (3) Subsection (2) is a civil penalty provision.\n\nNote: This means subsection (2) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).\n\n (4) For the purposes of (but without limiting) subsection (2), the SPF regulator’s request may:\n\n (a) provide that the report may be given via access to a specified data gateway, portal or website; and\n\n (b) ask that the report set out:\n\n (i) what loss or harm may have resulted from the scam, what disruptive actions the entity has taken and whether any of those actions have been reversed; and\n\n (ii) what steps the entity is taking to disrupt similar scams, and to prevent loss or harm resulting from similar scams.\n\nNote: For more about the data gateways, portals or websites referred to in paragraph (a), see section 58BT.\n\n (5) The request may ask for the report to include SPF personal information. If so, the request must require the entity to de‑identify the information unless the SPF regulator reasonably believes that doing so would not achieve the object of this Part.\n\n (6) If:\n\n (a) a regulated entity gives a scam report to an SPF regulator under this section; and\n\n (b) another SPF regulator later requests a scam report under this section from the regulated entity about the same matters;\n\nthen, despite subsection (2), the later scam report need only state that an earlier scam report about those matters was given to the first‑mentioned SPF regulator on a specified date and time.\n\nNote: The SPF regulators can share the earlier scam report under Subdivision C of Division 5.","sortOrder":969},{"sectionNumber":"58BT","sectionType":"section","heading":"Authorised third party data gateways, portals or websites for accessing reports","content":"58BT  Authorised third party data gateways, portals or websites for accessing reports\n\n (1) The SPF rules may prescribe a scheme for authorising third parties to operate data gateways, portals or websites that give access to reports under this Division.\n\n (2) For the purposes of (but without limiting) subsection (1), the SPF rules may include the following:\n\n (a) provisions conferring functions or powers on the SPF general regulator under the scheme;\n\n (b) the criteria for a person to be authorised under the scheme;\n\n (c) provisions providing that authorisations may be granted subject to conditions, and that conditions may be imposed on an authorisation after it has been granted;\n\n (d) provisions providing that authorisations may be granted at different levels corresponding to different risks;\n\n (e) provisions specifying what a person authorised at a particular level is authorised to do (or not authorised to do);\n\n (f) provisions dealing with the period, renewal, transfer, variation, suspension, revocation or surrender of authorisations;\n\n (g) notification requirements on persons whose authorisations have been varied, suspended, revoked or surrendered;\n\n (h) transitional rules for when an authorisation is varied, is suspended or ends, including in relation to SPF personal information;\n\n (i) provisions for the making of applications for internal review, or of applications to the Administrative Review Tribunal for review, of decisions of a person under the scheme.\n\n (3) A person authorised under the scheme may use or disclose SPF personal information to the extent that this is reasonably necessary to achieve the object of this Part.","sortOrder":970},{"sectionNumber":"58BU","sectionType":"section","heading":"Relationship with other duties and obligations","content":"58BU  Relationship with other duties and obligations\n\n  A duty of confidence owed under an agreement or arrangement is of no effect to the extent that it is contrary to section 58BR or 58BS.\n\nNote: Each of sections 58BR and 58BS is also a requirement by law to disclose the information contained in the report referred to in that section. So, complying with that section can be a defence to a secrecy provision such as section 276 of the Telecommunications Act 1997 (see paragraph 280(1)(b) of that Act).","sortOrder":971},{"sectionNumber":"58BV","sectionType":"section","heading":"SPF general regulator may share information relating to scamming actions with relevant entities","content":"58BV  SPF general regulator may share information relating to scamming actions with relevant entities\n\n (1) The SPF general regulator may disclose information relating to either of the following actions (a scamming action):\n\n (a) a scam (as defined in section 58AG);\n\n (b) a scam (within the ordinary meaning of that expression);\n\nto an entity mentioned in subsection (2).\n\nNote 1: This includes disclosing SPF personal information, but such information may first need to be de‑identified (see subsection (4)).\n\nNote 2: The SPF general regulator can also disclose the information to an SPF sector regulator (see section 58EG).\n\n (2) The entities are as follows:\n\n (a) a regulated entity;\n\n (b) a Commonwealth agency or authority involved in developing Government policy relating to this Part;\n\n (c) a law enforcement agency of the Commonwealth, or of a State or Territory;\n\n (d) an agency of a foreign country, or of part of a foreign country, that:\n\n (i) is a law enforcement agency; or\n\n (ii) is a regulatory agency responsible for scam prevention;\n\n  if subsection (3) applies to a disclosure of information to the agency.\n\n (3) This subsection applies to a disclosure of information to a foreign agency if the SPF general regulator is satisfied that:\n\n (a) the agency has given an undertaking for the following:\n\n (i) controlling the storage and handling of the information;\n\n (ii) controlling the use that will be made of the information;\n\n (iii) ensuring that the information will be used only for the purpose for which it is disclosed to the agency; and\n\n (b) it is appropriate, in all the circumstances, to disclose the information to the agency.\n\n (4) SPF personal information may be disclosed under subsection (1). However, for a disclosure to an entity mentioned in paragraph (2)(b) such information must be de‑identified unless the SPF general regulator reasonably believes that doing so would not achieve the object of this Part.","sortOrder":972},{"sectionNumber":"58BW","sectionType":"section","heading":"Simplified outline of this Subdivision","content":"58BW  Simplified outline of this Subdivision\n\nEach regulated entity for a regulated sector must take reasonable steps to:\n\n (a) disrupt an activity that is the subject of actionable scam intelligence; and\n\n (b) prevent losses from such an activity.\n\nThe entity will also need to report to the SPF general regulator the outcomes of the entity’s investigation about whether such an activity is a scam. The report may also need to describe any disruptive actions the entity has taken in relation to the activity.\n\nThe entity is not liable for damages etc. in taking certain actions to disrupt such an activity.\n\nThe SPF code for the sector may include sector‑specific provisions for this principle.","sortOrder":974},{"sectionNumber":"58BX","sectionType":"section","heading":"Taking reasonable steps to disrupt activities that are the subjects of actionable scam intelligence—civil penalty provision","content":"58BX  Taking reasonable steps to disrupt activities that are the subjects of actionable scam intelligence—civil penalty provision\n\n (1) A regulated entity contravenes this subsection if the entity:\n\n (a) has actionable scam intelligence about an activity relating to, connected with, or using a regulated service of the entity; and\n\n (b) fails to take reasonable steps within a reasonable time to:\n\n (i) disrupt the activity; or\n\n (ii) prevent loss or harm (including further loss or harm) arising from the activity.\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).\n\n (3) For the purposes of subsection (1), the steps taken should be proportionate to the actionable scam intelligence that the entity has.\n\nNote 1: For example, if a bank has received a substantial number of similar reports of suspicious activities, it may be appropriate to pause or delay authorised push payments while the bank investigates these suspicious activities.\n\nNote 2: For further details about the meaning of reasonable steps, see sections 58BB and 58BZ.","sortOrder":975},{"sectionNumber":"58BY","sectionType":"section","heading":"Reporting about the outcomes of investigations of activities that are the subjects of actionable scam intelligence—civil penalty provision","content":"58BY  Reporting about the outcomes of investigations of activities that are the subjects of actionable scam intelligence—civil penalty provision\n\n (1) This section applies if a regulated entity has actionable scam intelligence about an activity relating to, connected with, or using a regulated service of the entity.\n\nCivil penalty provision\n\n (2) The entity contravenes this subsection if the entity fails to give a report about the actionable scam intelligence:\n\n (a) to the SPF general regulator:\n\n (i) before the end of the period prescribed by the SPF rules that starts at the end of the period referred to in paragraph 58BZA(2)(d) for that intelligence; and\n\n (ii) in the manner and form prescribed by the SPF rules; and\n\n (b) that contains the kinds of information prescribed by the SPF rules.\n\nNote: This subsection only applies to the entity when the SPF rules prescribe matters for paragraphs (a) and (b) that apply to the entity.\n\n (3) Subsection (2) is a civil penalty provision.\n\nNote: This means subsection (2) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).\n\n (4) For the purposes of (but without limiting) subsection (2), the SPF rules may prescribe:\n\n (a) that the report may be given via access to a specified data gateway, portal or website; and\n\n (b) that the report set out whether the entity reasonably believes that the activity that is the subject of the intelligence is a scam; and\n\n (c) different matters for different kinds of regulated entities.\n\nNote: For more about the data gateways, portals or websites referred to in paragraph (a), see section 58BT.\n\n (5) The report may be required to include SPF personal information.\n\n (6) A duty of confidence owed under an agreement or arrangement is of no effect to the extent that it is contrary to this section.","sortOrder":976},{"sectionNumber":"58BZ","sectionType":"section","heading":"Sector-specific details can be set out in SPF codes","content":"58BZ  Sector‑specific details can be set out in SPF codes\n\n  For the purposes of (but without limiting) subsection 58CC(1), the SPF code for a regulated sector may include sector‑specific provisions:\n\n (a) describing what are reasonable steps (see also section 58BB), or what is a reasonable time, for the purposes of this Subdivision; or\n\n (b) requiring each regulated entity for the sector to provide its SPF consumers with information about activities that are the subjects of the entity’s actionable scam intelligence.","sortOrder":977},{"sectionNumber":"58BZA","sectionType":"section","heading":"Safe harbour for taking actions to disrupt an activity while investigating whether the activity is a scam","content":"58BZA  Safe harbour for taking actions to disrupt an activity while investigating whether the activity is a scam\n\n (1) This section applies if a regulated entity has actionable scam intelligence about an activity relating to, connected with, or using a regulated service of the entity.\n\n (2) The regulated entity is not liable in a civil action or civil proceeding for taking action to disrupt the activity if the action:\n\n (a) is taken in good faith; and\n\n (b) is taken in compliance with the SPF provisions; and\n\n (c) is reasonably proportionate to the activity, and to information that would reasonably be expected to be available to the entity about the activity; and\n\n (d) is taken during the period:\n\n (i) starting on the day that the intelligence becomes actionable scam intelligence for the entity; and\n\n (ii) ending when the entity reasonably believes that the activity is or is not a scam, or after 28 days, whichever is the earlier; and\n\n (e) is promptly reversed if:\n\n (i) the entity identifies that the activity is not a scam; and\n\n (ii) it is reasonably practicable to reverse the action.\n\nNote: Assume the regulated entity temporarily blocks an SPF consumer’s website while investigating whether an activity relating to the website is a scam. This subsection protects the regulated entity from civil actions brought by the consumer when the regulated entity is acting appropriately.\n\n (3) For the purposes of paragraph (2)(c), matters relevant to whether the action is reasonably proportionate to the activity include:\n\n (a) the potential loss or damage to SPF consumers, or to persons carrying on the activity, if the action is not taken; and\n\n (b) the potential loss or damage to SPF consumers, or to persons carrying on the activity, if the action is taken and the activity is not a scam.","sortOrder":978},{"sectionNumber":"58BZB","sectionType":"section","heading":"Simplified outline of this Subdivision","content":"58BZB  Simplified outline of this Subdivision\n\nEach regulated entity must have an accessible mechanism for its consumers to report activities that are or may be scams.\n\nThe entity must have an accessible and transparent internal dispute resolution mechanism for its consumers to complain about:\n\n (a) activities that are or may be scams; or\n\n (b) the entity’s conduct relating to such activities.\n\nThe entity must publish information about these mechanisms.\n\nWhen undertaking such internal dispute resolution about a complaint, the entity must give a statement, relevant to the complaint, about whether it has complied with its obligations.\n\nWhen undertaking such internal dispute resolution, the entity must have regard to:\n\n (a) any processes prescribed by the SPF rules; and\n\n (b) any guidelines prescribed by the SPF rules for apportioning any liability.\n\nThe entity must become a member of an authorised external dispute resolution scheme for dealing with complaints about scams if the entity provides services regulated by the Scams Prevention Framework.\n\nThe SPF code for the sector may include sector‑specific provisions for this principle.","sortOrder":980},{"sectionNumber":"58BZC","sectionType":"section","heading":"Enabling SPF consumers to easily report activities that are or may be scams—civil penalty provision","content":"58BZC  Enabling SPF consumers to easily report activities that are or may be scams—civil penalty provision\n\n (1) A regulated entity contravenes this subsection if the entity does not have an accessible mechanism for a person to report to the entity an activity that:\n\n (a) is or may be a scam; and\n\n (b) relates to, is connected with, or uses a regulated service of the entity; and\n\n (c) impacts the person at a time when the person is an SPF consumer of the service.\n\nNote: The reporting mechanism will need to extend to scams impacting the person at a time when the regulated service is only purportedly being provided to the person (see subsection 58AH(1) (about the meaning of SPF consumer)).\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).","sortOrder":981},{"sectionNumber":"58BZD","sectionType":"section","heading":"Having an accessible and transparent internal dispute resolution mechanism—civil penalty provision","content":"58BZD  Having an accessible and transparent internal dispute resolution mechanism—civil penalty provision\n\n (1) A regulated entity contravenes this subsection if the entity does not have an accessible and transparent internal dispute resolution mechanism to deal with a person’s complaint about:\n\n (a) an activity that:\n\n (i) is or may be a scam; and\n\n (ii) relates to, is connected with, or uses a regulated service of the entity; and\n\n (iii) impacts the person at a time when the person is an SPF consumer of the service; or\n\n (b) the entity’s conduct relating to an activity of a kind described in paragraph (a).\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).","sortOrder":982},{"sectionNumber":"58BZDA","sectionType":"section","heading":"Giving a statement of compliance—civil penalty provision","content":"58BZDA  Giving a statement of compliance—civil penalty provision\n\n (1) A regulated entity contravenes this subsection if the entity:\n\n (a) is undertaking internal dispute resolution in dealing with a person’s complaint of a kind described in paragraph 58BZD(1)(a) or (b); and\n\n (b) does not give the person a statement of compliance in accordance with subsection (2).\n\nNote: This subsection only applies to the entity when the SPF rules prescribe matters for paragraphs (2)(b), (d) and (e) that are relevant to the complaint.\n\n (2) For the purposes of paragraph (1)(b), the statement of compliance must:\n\n (a) include a statement by the regulated entity about whether, based on information reasonably available to the entity at the time of making the statement, it has complied with its obligations under the SPF provisions that are relevant to the complaint; and\n\n (b) contain the kinds of information prescribed by the SPF rules that are relevant to the complaint; and\n\n (c) not contain the kinds of information (if any) prescribed by the SPF rules that are relevant to the complaint; and\n\n (d) be in writing and signed by a person who is an authorised representative of the entity of a kind prescribed by the SPF rules; and\n\n (e) be given in accordance with the timeframes, and in the manner and form, prescribed by the SPF rules.\n\n (3) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).\n\n (4) A statement of compliance given by the entity under this section is admissible, in any proceeding that:\n\n (a) relates to the complaint; and\n\n (b) is under or relates to an SPF EDR scheme;\n\nas prima facie evidence of the entity’s position, at the time of making the statement, on the matters in the statement.\n\n (5) Nothing in this section limits or affects the admissibility in a proceeding of any other statement or evidence.","sortOrder":983},{"sectionNumber":"58BZE","sectionType":"section","heading":"Having regard to processes and guidelines when undertaking internal dispute resolution—civil penalty provision","content":"58BZE  Having regard to processes and guidelines when undertaking internal dispute resolution—civil penalty provision\n\n (1) A regulated entity contravenes this subsection if the entity:\n\n (a) is undertaking internal dispute resolution in dealing with a person’s complaint of a kind described in paragraph 58BZD(1)(a) or (b); and\n\n (b) in doing so, the entity fails to have regard to:\n\n (i) any process prescribed by the SPF rules for undertaking internal dispute resolution; or\n\n (ii) any guidelines prescribed by the SPF rules for apportioning any liability arising from the complaint.\n\n (1A) To avoid doubt, guidelines prescribed for the purposes of subparagraph (1)(b)(ii) do not have to be consistent with sections 58FZD to 58FZK (about proportionate liability for concurrent wrongdoers in actions for damages).\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).","sortOrder":984},{"sectionNumber":"58BZF","sectionType":"section","heading":"Publishing information about reporting and dispute resolution mechanisms—civil penalty provision","content":"58BZF  Publishing information about reporting and dispute resolution mechanisms—civil penalty provision\n\n (1) A regulated entity for a regulated sector contravenes this subsection if the entity fails to make publicly accessible information about the rights of SPF consumers of the entity’s regulated services for the sector under:\n\n (a) the reporting mechanism required by subsection 58BZC(1); or\n\n (b) the internal dispute resolution mechanism required by subsection 58BZD(1); or\n\n (c) if the entity is a member of an SPF EDR scheme for the sector—the SPF EDR scheme.\n\n (2) Subsection (1) is a civil penalty provision.\n\nNote: This means subsection (1) is a civil penalty provision of an SPF principle for the purposes of section 58FJ (about civil penalties).","sortOrder":985},{"sectionNumber":"58BZG","sectionType":"section","heading":"SPF external dispute resolution schemes—civil penalty provisions","content":"58BZG  SPF external dispute resolution schemes—civil penalty provisions\n\nRegulated entity must not provide a regulated service if the entity is not a member of an SPF EDR scheme\n\n (1) A regulated entity for a regulated sector contravenes this subsection if the entity:\n\n (a) provides a regulated service for the sector that has one or more SPF consumers; and\n\n (b) is not a member of an SPF EDR scheme for the sector.\n\nRegulated entity that is a member of an SPF EDR scheme must give reasonable assistance to, and cooperate with, the scheme operator\n\n (2) A regulated entity for a regulated sector contravenes this subsection if the entity:\n\n (a) is a member of an SPF EDR scheme for the sector; and\n\n (b) fails to give reasonable assistance to, or cooperate with, the operator of the scheme.\n\nRegulated entity that is a member of an SPF EDR scheme must comply with related obligations in an SPF code\n\n (3) A regulated entity for a regulated sector contravenes this subsection if the entity:\n\n (a) is a member of an SPF EDR scheme for the sector; and\n\n (b) fails to comply with an obligation in the SPF code for the sector that relates to the scheme.\n\nCivil penalty provisions\n\n (4) Subsections (1), (2) and (3) are civil penalty provisions.\n\nNote: This means these subsections are civil penalty provisions of an SPF principle for the purposes of section 58FJ (about civil penalties).","sortOrder":986},{"sectionNumber":"58BZH","sectionType":"section","heading":"Sector-specific details can be set out in SPF codes","content":"58BZH  Sector‑specific details can be set out in SPF codes\n\n  For the purposes of (but without limiting) subsection 58CC(1), the SPF code for a regulated sector may include sector‑specific provisions setting out:\n\n (a) conditions that must be met for a reporting mechanism required by subsection 58BZC(1); or\n\n (b) conditions (such as standards and requirements) that must be met for an internal dispute resolution mechanism required by subsection 58BZD(1); or\n\n (c) obligations that must be met in relation to an SPF EDR scheme for the sector by a regulated entity for the sector that is a member of the scheme.","sortOrder":987},{"sectionNumber":"58CA","sectionType":"section","heading":"Simplified outline of this Division","content":"58CA  Simplified outline of this Division\n\nThe Minister may make a code for each regulated sector.\n\nEach code is to include sector‑specific provisions for the following overarching principles of the Scams Prevention Framework (see Subdivisions B, C, D, F and G of Division 2):\n\n (a) SPF principle 1—governance;\n\n (b) SPF principle 2—prevent;\n\n (c) SPF principle 3—detect;\n\n (d) SPF principle 5—disrupt;\n\n (e) SPF principle 6—respond.\n\nRequirements in a code can be civil penalty provisions. The relevant SPF sector regulator will monitor, investigate and enforce compliance with these provisions. Division 6 sets out remedies for non‑compliance with these provisions.","sortOrder":989},{"sectionNumber":"58CB","sectionType":"section","heading":"Sector-specific codes (SPF codes)","content":"58CB  Sector‑specific codes (SPF codes)\n\n  The Minister may, by legislative instrument, make a code (an SPF code) for a regulated sector.","sortOrder":990},{"sectionNumber":"58CC","sectionType":"section","heading":"Content of SPF codes","content":"58CC  Content of SPF codes\n\nMain rule about the content of SPF codes\n\n (1) An SPF code must:\n\n (a) be consistent with the SPF principles; and\n\n (b) deal with only:\n\n (i) the themes or matters covered by Subdivisions B, C, D, F and G of Division 2; and\n\n (ii) related or incidental matters; and\n\n (c) subject to paragraphs (a) and (b), include provisions about matters of a kind (if any) prescribed by the SPF rules.\n\nRelated or incidental matters in SPF codes\n\n (2) Without limiting subparagraph (1)(b)(ii), an SPF code for a regulated sector may include the following:\n\n (a) provisions relating to only certain kinds of regulated services for the sector;\n\n (b) provisions relating to only certain kinds of SPF consumers of regulated services for the sector;\n\n (c) provisions dealing with the circumstances in which entities are, or may be, relieved from complying with requirements in the SPF code that would otherwise apply to them;\n\n (d) a provision that:\n\n (i) confers powers on the SPF sector regulator for the sector or on another person; or\n\n (ii) depends on the SPF sector regulator for the sector, or another person, being satisfied of one or more specified matters;\n\n (e) provisions for the making of applications for internal review, or of applications to the Administrative Review Tribunal for review, of decisions of a person under the SPF code;\n\n (f) provisions about the manner or form in which persons or bodies:\n\n (i) may exercise powers under the SPF code; or\n\n (ii) must comply with requirements imposed by the SPF code;\n\n  which could include requiring the use of a form approved by the SPF sector regulator for the sector or by the SPF general regulator;\n\n (g) provisions about the following matters:\n\n (i) whether a regulated entity for the sector may charge (or cause to be charged) a fee for a matter covered by the SPF code;\n\n (ii) the manner in which such a fee may be charged;\n\n (iii) the time for paying such a fee;\n\n (iv) giving notice of, or publicising, such a fee or matters about such a fee;\n\n (h) provisions requiring agents of a regulated entity for the sector to do or not to do specified things when acting on behalf of the regulated entity and within the scope of the agent’s actual or apparent authority;\n\n (i) provisions authorising a regulated entity for the sector to use or disclose SPF personal information to the extent necessary to comply with the entity’s obligations under the code;\n\n (j) provisions about any other matters that the provisions of this Part provide may be included, or otherwise dealt with, in the SPF code.\n\nCivil penalty provisions of the SPF code\n\n (3) An SPF code may provide that specified provisions of the SPF code are civil penalty provisions (within the meaning of the Regulatory Powers Act).\n\nNote: Division 6 of this Part deals with enforcing the civil penalty provisions.\n\nAdopting matters in instruments as in force from time to time etc.\n\n (4) An SPF code may make provision in relation to a matter by applying, adopting or incorporating (with or without modification) any matter contained in any other instrument or writing:\n\n (a) as in force or existing at a particular time; or\n\n (b) as in force or existing from time to time.\n\n (5) Subsection (4) has effect despite subsection 14(2) of the Legislation Act 2003.","sortOrder":991},{"sectionNumber":"58CD","sectionType":"section","heading":"Delegation","content":"58CD  Delegation\n\n  The Minister may, in writing, delegate the Minister’s power under section 58CB to make a code for a regulated sector to:\n\n (a) another Minister; or\n\n (b) the Commission; or\n\n (c) the entity that is, or is to be, the SPF sector regulator for the sector.\n\nNote: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.","sortOrder":992},{"sectionNumber":"58DA","sectionType":"section","heading":"Simplified outline of this Division","content":"58DA  Simplified outline of this Division\n\nOne or more external dispute resolution schemes may be authorised for dealing with consumer complaints about scams relating to, connected with, or using regulated services.\n\nAn existing scheme like the AFCA scheme could be authorised for this purpose, or new schemes could be developed and authorised.","sortOrder":994},{"sectionNumber":"58DB","sectionType":"section","heading":"Minister may authorise external dispute resolution schemes for a regulated sector","content":"58DB  Minister may authorise external dispute resolution schemes for a regulated sector\n\n (1) The Minister may, by legislative instrument, authorise an external dispute resolution scheme (an SPF EDR scheme) for the purposes of this Part and one or more regulated sectors if:\n\n (a) the scheme is already authorised under a Commonwealth law for another purpose; or\n\n (b) the Minister is satisfied that the requirements prescribed by the SPF rules for the purposes of subsection 58DC(1) are met for the scheme.\n\nNote 1: For paragraph (a), the Minister could, for example, authorise the AFCA scheme (within the meaning of the Corporations Act 2001) to apply for the purposes of this Part and a regulated sector. If that happens, ASIC’s functions and powers relating to the AFCA scheme (for example, under section 1052A of that Act) will also apply for the purposes of this Part and the regulated sector.\n\nNote 2: For variation and repeal, see subsection 33(3) of the Acts Interpretation Act 1901.\n\n (2) Before authorising a scheme, the Minister must consider:\n\n (a) the accessibility of the scheme; and\n\n (b) the independence of the scheme; and\n\n (c) the fairness of the scheme; and\n\n (d) the accountability of the scheme; and\n\n (e) the efficiency of the scheme; and\n\n (f) the effectiveness of the scheme; and\n\n (g) any other matters the Minister considers relevant.\n\nA failure to comply with this subsection does not invalidate an instrument made under subsection (1) authorising the scheme.\n\n (3) An instrument made under subsection (1) may make the authorisation of the scheme subject to specified conditions.\n\n (4) An instrument made under subsection (1) authorising a scheme for which paragraph (1)(b) applies must set out the scheme.\n\n (5) More than one scheme may be authorised under subsection (1).","sortOrder":995},{"sectionNumber":"58DC","sectionType":"section","heading":"Content, including requirements, of a scheme that is not already authorised under a Commonwealth law","content":"58DC  Content, including requirements, of a scheme that is not already authorised under a Commonwealth law\n\n (1) The SPF rules may prescribe the following requirements for a scheme for which paragraph 58DB(1)(b) is to apply:\n\n (a) organisational requirements for membership of the scheme;\n\n (b) requirements for the operator (the operator) of the scheme;\n\n (c) requirements for how the scheme is to operate;\n\n (d) requirements to be complied with by members of the scheme;\n\n (e) requirements for making changes to the scheme.\n\n (2) A scheme for which paragraph 58DB(1)(b) is to apply may also include provisions dealing with the following:\n\n (a) powers of one or more of the following under the scheme:\n\n (i) the Minister;\n\n (ii) an SPF regulator;\n\n (iii) a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013);\n\n (b) powers of the operator under the scheme, including powers to:\n\n (i) seek information; and\n\n (ii) make determinations of complaints; and\n\n (iii) make determinations imposing financial and non‑financial remedies; and\n\n (c) appeals to the Federal Court from such determinations by the operator;\n\n (d) information sharing and reporting;\n\n (e) a provision that depends on the operator or another person being satisfied of one or more specified matters;\n\n (f) provisions about the following matters:\n\n (i) the manner in which the operator may charge (or cause to be charged) a fee under the scheme;\n\n (ii) the time for paying such a fee;\n\n (iii) giving notice of, or publicising, such a fee or matters about such a fee;\n\n (g) provisions about any other matters that the provisions of this Part provide may be specified, or otherwise dealt with, in the scheme.","sortOrder":996},{"sectionNumber":"58DD","sectionType":"section","heading":"Scheme operator to report to SPF regulators","content":"58DD  Scheme operator to report to SPF regulators\n\nReferring contraventions, failures and systemic issues\n\n (1) If the operator of an SPF EDR scheme for a regulated sector becomes aware that:\n\n (a) a serious contravention of any law may have occurred in connection with a complaint under the scheme; or\n\n (b) a party to a complaint under the scheme may have failed to give effect to a determination by the operator relating to the complaint; or\n\n (c) there is a systemic issue arising from the consideration of complaints under the scheme;\n\nthe operator must give particulars of the contravention, failure or issue to the SPF general regulator and to the SPF sector regulator for the sector.\n\nReferring settled complaints\n\n (2) If:\n\n (a) the parties to a complaint made under an SPF EDR scheme for a regulated sector agree to a settlement of the complaint; and\n\n (b) the operator of the scheme thinks the settlement may require investigation;\n\nthe operator may give particulars of the settlement to the SPF general regulator and to the SPF sector regulator for the sector.\n\nDe‑identifying any SPF personal information\n\n (3) If any SPF personal information is to be given under subsection (1) or (2) by the operator of the scheme, the operator must de‑identify the information unless the operator reasonably believes that doing so would not achieve the object of this Part.","sortOrder":997},{"sectionNumber":"58DE","sectionType":"section","heading":"Disclosing information to the operator of an SPF EDR scheme","content":"58DE  Disclosing information to the operator of an SPF EDR scheme\n\n (1) An SPF regulator may disclose information to the operator of an SPF EDR scheme for the purposes of enabling or assisting the operator to perform any of the operator’s functions or powers.\n\n (2) The SPF regulator may impose conditions to be complied with by the operator in relation to the information.\n\n (3) If an SPF regulator is to disclose SPF personal information under subsection (1), the SPF regulator must de‑identify the information unless the SPF regulator reasonably believes that doing so would not achieve the object of this Part.","sortOrder":998},{"sectionNumber":"58EA","sectionType":"section","heading":"Simplified outline of this Division","content":"58EA  Simplified outline of this Division\n\nThe Commission is the regulator (the SPF general regulator) of most aspects of the Scams Prevention Framework, in particular of the overarching principles of the Framework.\n\nOther Commonwealth entities may be selected to be regulators (SPF sector regulators) of each of the SPF codes.\n\nThe SPF general regulator must enter into arrangements with the SPF sector regulators about the regulation and enforcement of the Framework. These regulators may disclose relevant information and documents to each other for this purpose.","sortOrder":1001},{"sectionNumber":"58EB","sectionType":"section","heading":"General regulator of the Scams Prevention Framework","content":"58EB  General regulator of the Scams Prevention Framework\n\n (1) The Commission is the SPF general regulator for all SPF provisions apart from the provisions of SPF codes.\n\n (2) The functions and powers of the SPF general regulator include:\n\n (a) reviewing, and advising the Minister about, the operation of the SPF provisions; and\n\n (ab) monitoring, investigating and enforcing compliance with the SPF provisions, other than the provisions of SPF codes; and\n\n (b) the Commission’s powers under section 155 to the extent that section 155 relates to:\n\n (i) the SPF provisions, other than the provisions of SPF codes; or\n\n (ii) a designated scams prevention framework matter (within the meaning of that section) of a kind not mentioned in subparagraph 58ED(3)(c)(ii); and\n\n (c) developing and publishing non‑binding guidance material relating to the SPF provisions, other than the provisions of SPF codes; and\n\n (d) the functions and powers of the SPF general regulator conferred by any other SPF provisions.\n\nNote: Paragraph (d) includes the SPF general regulator’s powers under the Regulatory Powers Act that are referred to in Division 6.","sortOrder":1003},{"sectionNumber":"58EC","sectionType":"section","heading":"Delegation of the SPF general regulator’s functions and powers","content":"58EC  Delegation of the SPF general regulator’s functions and powers\n\n (1) The Commission may, by resolution, delegate any of:\n\n (a) the Commission’s functions and powers (as the SPF general regulator) under an SPF provision; or\n\n (b) the Commission’s powers under section 155 as described in paragraph 58EB(2)(b);\n\nto a person to whom subsection (3) applies.\n\n (2) A member of the Commission may, by writing, delegate any of the member’s powers under section 155 to the extent that section 155 relates to:\n\n (a) the SPF provisions, other than the provisions of SPF codes; or\n\n (b) a designated scams prevention framework matter (within the meaning of that section) of a kind not mentioned in subparagraph 58ED(3)(c)(ii);\n\nto a person to whom any of paragraphs (3)(b) to (e) applies.\n\n (3) This subsection applies to the following persons:\n\n (a) a member of the Commission;\n\n (b) person who is an employee of the Commission who:\n\n (i) is an SES employee or acting SES employee; or\n\n (ii) holds or performs the duties of an Executive Level 1 or 2 position;\n\n  and who the Commission is satisfied has appropriate qualifications, training, skills or experience to perform the functions or exercise the powers;\n\n (c) an SPF sector regulator;\n\n (d) a member (if any) of an SPF sector regulator;\n\n (e) an employee of an SPF sector regulator who holds or performs the duties of a position that is equivalent to a position mentioned in subparagraph (b)(i) or (ii).\n\n (4) A delegation of functions or powers must not be made under subsection (1) or (2) to a person to whom paragraph (3)(c), (d) or (e) applies unless the relevant SPF sector regulator:\n\n (a) has agreed to the delegation in writing; and\n\n (b) in the case of a person to whom paragraph (3)(e) applies—is satisfied that the person has appropriate qualifications, training, skills or experience to perform the functions or exercise the powers.\n\n (5) In performing any functions or exercising any powers under a delegation under subsection (1) or (2), the delegate must comply with any directions of the delegator.","sortOrder":1004},{"sectionNumber":"58ED","sectionType":"section","heading":"Regulator of a regulated sector","content":"58ED  Regulator of a regulated sector\n\n (1) The Minister may, by legislative instrument, designate an entity that:\n\n (a) is a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); and\n\n (b) is already conferred functions by or under a law;\n\nto be the SPF sector regulator for a regulated sector.\n\n (2) The Commission is the SPF sector regulator for a regulated sector if (and while) no instrument under subsection (1) is in force for the sector.\n\nNote: The Commission could also be designated under subsection (1) to be the SPF sector regulator for a regulated sector.\n\n (3) The functions and powers of the SPF sector regulator for a regulated sector include:\n\n (a) those conferred by:\n\n (i) the SPF code for the sector; and\n\n (ii) any other SPF provisions; and\n\n (b) monitoring, investigating and enforcing compliance with the provisions of the SPF code for the sector; and\n\n (c) if the SPF sector regulator is the Commission—the Commission’s powers under section 155 to the extent that section 155 relates to:\n\n (i) the provisions of the SPF code for the sector; or\n\n (ii) a designated scams prevention framework matter (within the meaning of that section) involving the performance of a function, or the exercise of a power, mentioned in paragraph (a) or (b) of this subsection.\n\nNote: The functions and powers of SPF regulators other than the Commission include the monitoring and investigating functions and powers referred to in Division 6 (see subparagraph (a)(ii) of this subsection).\n\n (4) The Minister may, in writing, delegate the Minister’s power under subsection (1) to another Minister.\n\nNote: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.","sortOrder":1005},{"sectionNumber":"58EE","sectionType":"section","heading":"Delegation of an SPF sector regulator’s functions and powers","content":"58EE  Delegation of an SPF sector regulator’s functions and powers\n\n (1) An SPF sector regulator may, by writing, delegate any of the SPF sector regulator’s functions and powers under:\n\n (a) an SPF provision, other than a provision of the Regulatory Powers Act; or\n\n (b) if the SPF sector regulator is the Commission—the Commission’s powers under section 155 as described in paragraph 58ED(3)(c);\n\nto a person to whom subsection (3) applies.\n\nNote: A function or power of the SPF sector regulator under a provision of the Regulatory Powers Act may be able to be delegated under the Subdivision of Division 6 of this Part that refers to that provision of that Act (for example, see subsection 58FE(5) of this Act).\n\n (2) If an SPF sector regulator is the Commission, a member of the Commission may, by writing, delegate any of the member’s powers under section 155 to the extent that section 155 relates to:\n\n (a) the provisions of the SPF code for the sector; or\n\n (b) a designated scams prevention framework matter (within the meaning of that section) of a kind mentioned in subparagraph 58ED(3)(c)(ii);\n\nto a person to whom paragraph (3)(b) applies.\n\n (3) This subsection applies to the following persons:\n\n (a) a member (if any) of the SPF sector regulator;\n\n (b) person who is an employee of the SPF sector regulator who:\n\n (i) is an SES employee or acting SES employee; or\n\n (ii) holds or performs the duties of an Executive Level 1 or 2 position; or\n\n (iii) holds or performs the duties of a position that is equivalent to a position mentioned in subparagraph (i) or (ii);\n\n  and who the SPF sector regulator is satisfied has appropriate qualifications, training, skills or experience to perform the functions or exercise the powers.\n\n (4) In performing any functions or exercising any powers under a delegation under subsection (1) or (2), the delegate must comply with any directions of the delegator.","sortOrder":1006},{"sectionNumber":"58EF","sectionType":"section","heading":"Arrangements for regulating the Scams Prevention Framework","content":"58EF  Arrangements for regulating the Scams Prevention Framework\n\n (1) The SPF general regulator, and each SPF sector regulator, must enter into an arrangement relating to the regulation and enforcement of the SPF provisions.\n\n (2) The SPF general regulator may choose to comply with subsection (1) by entering into:\n\n (a) a single arrangement with all, or one or more, SPF sector regulators; or\n\n (b) a separate arrangement with each SPF sector regulator.\n\nHowever, subsection (1) does not apply to the extent that the Commission is an SPF sector regulator.\n\n (3) The arrangement must include provisions relating to the matters (if any) prescribed by the SPF rules.\n\nNote: For example, the SPF rules could require an SPF regulator that requests a scam report under subsection 58BS(1) to:\n\n(a) notify each other SPF regulator of the request; and\n\n(b) give a copy of the scam report to any of those other SPF regulators that asks for one.\n\n (4) Each SPF regulator that is a party to such an arrangement must publish the arrangement on its website.\n\n (5) A failure to comply with this section does not invalidate the performance or exercise of a function or power by an SPF regulator.","sortOrder":1007},{"sectionNumber":"58EFA","sectionType":"section","heading":"Roles and responsibilities statement","content":"58EFA  Roles and responsibilities statement\n\n (1) The SPF general regulator must publish a statement on its website summarising, in general terms, the roles and responsibilities of:\n\n (a) each SPF regulator; and\n\n (b) each operator of an SPF EDR scheme; and\n\n (c) any other entity the SPF general regulator considers appropriate;\n\nwith respect to the regulation, enforcement and administration of the SPF provisions.\n\nNote: The purpose of the statement is to explain these matters at a high level.\n\n (2) Before publishing the statement, the SPF general regulator must consult the entities mentioned in subsection (1).\n\n (3) The statement is not a legislative instrument.","sortOrder":1008},{"sectionNumber":"58EG","sectionType":"section","heading":"SPF regulators may disclose information to each other","content":"58EG  SPF regulators may disclose information to each other\n\n (1) An SPF regulator may disclose to another SPF regulator:\n\n (a) particular information or documents; or\n\n (b) information or documents of a particular kind;\n\nheld by the first‑mentioned SPF regulator that are relevant to the operation (including enforcement) of the SPF provisions.\n\n (2) An SPF regulator may make a disclosure under subsection (1) on request or on its own initiative.\n\nNote: This section means such a disclosure is permitted by provisions like:\n\n(a) paragraph 155AAA(1)(b); and\n\n(b) section 59DB of the Australian Communications and Media Authority Act 2005; and\n\n(c) subsection 127(2) of the Australian Securities and Investments Commission Act 2001.\n\n Similarly, the exception in paragraph 6.2(b) of Australian Privacy Principle 6 will apply to such a disclosure.\n\n (3) SPF personal information may be disclosed under subsection (1).","sortOrder":1010},{"sectionNumber":"58EH","sectionType":"section","heading":"Regard must be had to the object of this Part when considering whether to make such a disclosure","content":"58EH  Regard must be had to the object of this Part when considering whether to make such a disclosure\n\n  An SPF regulator must have regard to the object of this Part when deciding whether to make a disclosure under this Subdivision.\n\nNote: Arrangements made under section 58EF between SPF regulators could deal with when disclosures should be made (see subsection 58EF(3) in particular).","sortOrder":1011},{"sectionNumber":"58EI","sectionType":"section","heading":"Notice need not be given of a collection, use or disclosure of information or documents under this Part","content":"58EI  Notice need not be given of a collection, use or disclosure of information or documents under this Part\n\n  An SPF regulator need not notify any person that the SPF regulator:\n\n (a) has collected SPF personal information under this Part; or\n\n (b) plans to make a disclosure of information or documents under this Part; or\n\n (c) has made such a disclosure under this Part; or\n\n (d) plans to use information or documents disclosed under this Part; or\n\n (e) has used such information or documents under this Part.","sortOrder":1012},{"sectionNumber":"58EJ","sectionType":"section","heading":"Information that need not be disclosed","content":"58EJ  Information that need not be disclosed\n\n  Nothing in this Part requires an SPF regulator to disclose information or documents that:\n\n (a) concern the internal administrative functioning of that regulator; or\n\n (b) disclose a matter in respect of which that regulator or any other person has claimed legal professional privilege; or\n\n (c) are of a kind prescribed by the SPF rules.","sortOrder":1013},{"sectionNumber":"58FA","sectionType":"section","heading":"Simplified outline of this Division","content":"58FA  Simplified outline of this Division\n\nThe Commission, in its role as the SPF general regulator or an SPF sector regulator, may use its powers under this Act (including section 155) to monitor and investigate compliance with the aspects of the Scams Prevention Framework that are relevant for that role.\n\nIf the ACMA or ASIC is an SPF sector regulator, it must use powers in its own legislation to monitor and investigate compliance with an SPF code for the sector. Other SPF sector regulators may monitor and investigate compliance with an SPF code either using the powers in Subdivision B or, with the Minister’s permission, powers in their own legislation.\n\nThe maximum penalties for contraventions of the civil penalty provisions of the Scams Prevention Framework are set out in Subdivision C.\n\nOther remedies for contraventions of the Framework are set out in later Subdivisions of this Division, and include:\n\n (a) infringement notices; and\n\n (b) enforceable undertakings; and\n\n (c) injunctions; and\n\n (d) actions for damages; and\n\n (e) public warning notices; and\n\n (f) remedial directions; and\n\n (g) adverse publicity orders; and\n\n (h) other punitive and non‑punitive orders.\n\nSome of these remedies may also be available against a person involved in a contravention of the Framework by a regulated entity, such as a senior officer of the regulated entity (for example, see subsection 58FW(1)).\n\nNote: Sections 58GA to 58GC extend the meaning of person for partnerships, unincorporated associations and trusts.","sortOrder":1016},{"sectionNumber":"58FB","sectionType":"section","heading":"Appointment of inspectors","content":"58FB  Appointment of inspectors\n\n (1) An SPF regulator may, in writing, appoint a person who is one of the following to be an inspector of that regulator for the purposes of one or more Subdivisions of this Division:\n\n (a) a person who is an employee of that regulator who:\n\n (i) is an SES employee or acting SES employee; or\n\n (ii) holds or performs the duties of an Executive Level 1 or 2 position; or\n\n (iii) holds or performs the duties of a position that is equivalent to a position mentioned in subparagraph (i) or (ii);\n\n (b) a member or special member of the Australian Federal Police.\n\n (2) However, the SPF regulator must not appoint a person as an inspector unless the SPF regulator is satisfied that the person has appropriate qualifications, training, skills or experience to exercise the powers of an inspector.\n\n (3) A person must, in exercising powers as an inspector of an SPF regulator, comply with any directions of the SPF regulator that are of an administrative character.\n\n (4) If (and while) no appointments under subsection (1) by an SPF regulator are in force for the purposes of a Subdivision of this Division, the SPF regulator is an inspector of the SPF regulator for the purposes of that Subdivision.","sortOrder":1017},{"sectionNumber":"58FC","sectionType":"section","heading":"Multiple remedies can be sought for a single contravention","content":"58FC  Multiple remedies can be sought for a single contravention\n\n  Subject to section 58FM (about civil penalties), a provision of this Division does not limit a court’s powers under any other provision of this Act or of any other Act.","sortOrder":1018},{"sectionNumber":"58FD","sectionType":"section","heading":"Preference must be given to compensation for victims","content":"58FD  Preference must be given to compensation for victims\n\n  If a court considers that:\n\n (a) it is appropriate to order a person (the defendant) to pay a pecuniary penalty under an SPF civil penalty order in relation to a contravention or conduct; and\n\n (b) it is appropriate to order under Subdivision G the defendant to pay compensation to a person who has suffered loss or damage as result of that contravention or conduct; and\n\n (c) the defendant does not have sufficient financial resources to pay both the pecuniary penalty and the compensation;\n\nthe court must give preference to making an order for compensation.","sortOrder":1019},{"sectionNumber":"58FE","sectionType":"section","heading":"Monitoring compliance with an SPF code—default","content":"58FE  Monitoring compliance with an SPF code—default\n\nNo alternative monitoring powers apply\n\n (1) This section applies for the SPF code for a regulated sector unless:\n\n (a) the ACMA, ASIC or the Commission is the SPF sector regulator for the sector; or\n\n (b) a declaration is in force under subsection 58FI(2) declaring that provisions that include monitoring powers of the kind mentioned in subparagraph 58FI(1)(a)(i) apply in relation to provisions of the SPF code.\n\nProvisions subject to monitoring\n\n (2) Each provision of the SPF code is subject to monitoring under Part 2 of the Regulatory Powers Act.\n\nNote: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether these provisions have been complied with. That Part includes powers of entry and inspection.\n\nInformation subject to monitoring\n\n (3) Information given in compliance or purported compliance with the SPF code is subject to monitoring under Part 2 of the Regulatory Powers Act.\n\nNote: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.\n\nRelated provisions, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court\n\n (4) For the purposes of Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (2) and the information mentioned in subsection (3):\n\n (a) there are no related provisions; and\n\n (b) an inspector of the SPF sector regulator is an authorised applicant; and\n\n (c) an inspector of the SPF sector regulator is an authorised person; and\n\n (d) a magistrate is an issuing officer; and\n\n (e) the SPF sector regulator is the relevant chief executive; and\n\n (f) each of the following courts is a relevant court:\n\n (i) the Federal Court;\n\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n\n (iii) a court of a State or Territory that has jurisdiction in relation to the matter.\n\n (5) The relevant chief executive may, in writing, delegate the powers and functions mentioned in subsection (6) to:\n\n (a) an SES employee, or acting SES employee, of the SPF sector regulator; or\n\n (b) an employee of the SPF sector regulator who holds or performs the duties of a position that is equivalent to an SES employee;\n\nif the relevant chief executive is satisfied that the employee has appropriate qualifications, training, skills or experience to exercise the powers and perform the functions.\n\n (6) The powers and functions that may be delegated are:\n\n (a) powers and functions under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (2) and the information mentioned in subsection (3); and\n\n (b) powers and functions under the Regulatory Powers Act that are incidental to a power or function mentioned in paragraph (a) of this subsection.\n\n (7) A person exercising powers or performing functions under a delegation under subsection (5) must comply with any directions of the relevant chief executive.\n\nPerson assisting\n\n (8) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (2) and the information mentioned in subsection (3).","sortOrder":1021},{"sectionNumber":"58FF","sectionType":"section","heading":"Investigating compliance with an SPF code—default","content":"58FF  Investigating compliance with an SPF code—default\n\nNo alternative investigation powers apply\n\n (1) This section applies for the SPF code for a regulated sector unless:\n\n (a) the ACMA, ASIC or the Commission is the SPF sector regulator for the sector; or\n\n (b) a declaration is in force under subsection 58FI(2) declaring that provisions that include investigation powers of the kind mentioned in subparagraph 58FI(1)(a)(ii) apply in relation to provisions of the SPF code.\n\nProvisions subject to investigation\n\n (2) Each civil penalty provision of the SPF code is subject to investigation under Part 3 of the Regulatory Powers Act.\n\nNote: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.\n\nRelated provisions, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court\n\n (3) For the purposes of Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (2):\n\n (a) there are no related provisions; and\n\n (b) an inspector of the SPF sector regulator is an authorised applicant; and\n\n (c) an inspector of the SPF sector regulator is an authorised person; and\n\n (d) a magistrate is an issuing officer; and\n\n (e) the SPF sector regulator is the relevant chief executive; and\n\n (f) each of the following courts is a relevant court:\n\n (i) the Federal Court;\n\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n\n (iii) a court of a State or Territory that has jurisdiction in relation to the matter.\n\n (4) The relevant chief executive may, in writing, delegate the powers and functions mentioned in subsection (5) to:\n\n (a) an SES employee, or acting SES employee, of the SPF sector regulator; or\n\n (b) an employee of the SPF sector regulator who holds or performs the duties of a position that is equivalent to an SES employee.\n\nif the relevant chief executive is satisfied that the employee has appropriate qualifications, training, skills or experience to exercise the powers and perform the functions.\n\n (5) The powers and functions that may be delegated are:\n\n (a) powers and functions under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (2); and\n\n (b) powers and functions under the Regulatory Powers Act that are incidental to a power or function mentioned in paragraph (a).\n\n (6) A person exercising powers or performing functions under a delegation under subsection (4) must comply with any directions of the relevant chief executive.\n\nPerson assisting\n\n (7) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (2).","sortOrder":1022},{"sectionNumber":"58FG","sectionType":"section","heading":"Monitoring or investigating—the ACMA","content":"58FG  Monitoring or investigating—the ACMA\n\n (1) This section applies if the ACMA is the SPF sector regulator for a regulated sector.\n\n (2) Part 26 of the Telecommunications Act 1997 also applies:\n\n (a) to the ACMA in the ACMA’s capacity as the SPF sector regulator; and\n\n (b) in relation to a contravention of the SPF code for the sector in a corresponding way to the way that Part applies in relation to a contravention of that Act that does not relate to the content of a content service.\n\n (3) Part 27 of the Telecommunications Act 1997 also applies:\n\n (a) to the ACMA in the ACMA’s capacity as the SPF sector regulator; and\n\n (b) in relation to the performance of any of the ACMA’s functions under the SPF code for the sector in a corresponding way to the way that Part applies in relation to the performance of any of the ACMA’s telecommunications functions; and\n\n (c) in relation to the exercise of any of the ACMA’s powers under the SPF code for the sector in a corresponding way to the way that Part applies in relation to the exercise of any of the ACMA’s telecommunications powers.\n\n (3) For the purposes of this additional application of Parts 26 and 27 of the Telecommunications Act 1997, the Minister may, by legislative instrument, specify modifications of one or more provisions of those Parts to remove any doubt about how those provisions apply in such a corresponding way in relation to the SPF code.\n\nNote: The modifications are for this additional application of those Parts, and are not modifications of those Parts as they ordinarily apply.\n\n (4) The instrument has effect accordingly.\n\n (5) In this section:\n\nACMA’s telecommunications functions has the same meaning as in the Telecommunications Act 1997.\n\nACMA’s telecommunications powers has the same meaning as in the Telecommunications Act 1997.\n\ncontent service has the same meaning as in the Telecommunications Act 1997.","sortOrder":1023},{"sectionNumber":"58FH","sectionType":"section","heading":"Monitoring or investigating—ASIC","content":"58FH  Monitoring or investigating—ASIC\n\n (1) This section applies if ASIC is the SPF sector regulator for a regulated sector.\n\n (2) ASIC’s alternative power provisions also apply:\n\n (a) to ASIC in ASIC’s capacity as the SPF sector regulator; and\n\n (b) in relation to the provisions of the SPF code for the sector in a corresponding way to the way:\n\n (i) ASIC’s alternative power provisions (other than those mentioned in subparagraph (ii)) apply in relation to the corporations legislation (other than the excluded provisions); and\n\n (ii) sections 28, 30, 31 to 39, 39B and 39C and subsection 67(2) of the ASIC Act apply in relation to the corporations legislation.\n\n (3) For the purposes of this additional application of ASIC’s alternative power provisions, the Minister may, by legislative instrument, specify modifications of one or more of those provisions to remove any doubt about how those provisions apply in such a corresponding way in relation to the provisions of the SPF code.\n\nNote: The modifications are for this additional application of ASIC’s alternative power provisions, and are not modifications of those provisions as they ordinarily apply.\n\n (4) The instrument has effect accordingly.\n\n (5) In this section:\n\nASIC Act means the Australian Securities and Investments Commission Act 2001.\n\nASIC’s alternative power provisions means Divisions 1, 2, 3 (other than sections 30A, 30B and 39A), 7, 9 and 10 of Part 3 of the ASIC Act.\n\ncorporations legislation has the same meaning as in the ASIC Act.\n\nexcluded provisions has the same meaning as in the ASIC Act.","sortOrder":1024},{"sectionNumber":"58FI","sectionType":"section","heading":"Monitoring or investigating—Minister may declare that alternative powers apply for other SPF sector regulators","content":"58FI  Monitoring or investigating—Minister may declare that alternative powers apply for other SPF sector regulators\n\n (1) This section applies if provisions of another law (the alternative power provisions):\n\n (a) provide an entity with powers to:\n\n (i) monitor compliance or purported compliance with provisions of a law (the alternative regulatory provisions); or\n\n (ii) investigate provisions of a law (also the alternative regulatory provisions); or\n\n (b) enable the effective operation and enforcement of such powers.\n\nNote: Paragraph (b) covers, for example, a provision making it an offence to fail to appear to answer questions in relation to an investigation.\n\n (2) The Minister may, by legislative instrument, declare that specified alternative power provisions (that relate to a specified entity and specified alternative regulatory provisions) also apply:\n\n (a) to the entity in the entity’s capacity as the SPF sector regulator for a regulated sector; and\n\n (b) in relation to specified provisions of the SPF code for the sector in a corresponding way to the way the alternative power provisions apply in relation to the alternative regulatory provisions.\n\n (3) For the purposes of this additional application of the alternative power provisions, the instrument may specify modifications of one or more of those provisions to remove any doubt about how those provisions apply in such a corresponding way in relation to the specified provisions of the SPF code.\n\nNote: The modifications are for this additional application of the alternative power provisions, and are not modifications of those provisions as they ordinarily apply.\n\n (4) The instrument has effect accordingly.","sortOrder":1025},{"sectionNumber":"58FJ","sectionType":"section","heading":"Civil penalty provisions","content":"58FJ  Civil penalty provisions\n\nEnforcing civil penalty provisions\n\n (1) Each of the following is enforceable under Part 4 of the Regulatory Powers Act:\n\n (a) a civil penalty provision of an SPF principle;\n\n (b) a civil penalty provision of an SPF code.\n\nNote: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.\n\nAuthorised applicant\n\n (2) For the purposes of Part 4 of the Regulatory Powers Act:\n\n (a) the SPF general regulator is an authorised applicant in relation to each civil penalty provision of an SPF principle; and\n\n (b) the SPF sector regulator for a regulated sector is an authorised applicant in relation to each civil penalty provision of the SPF code for the sector.\n\nRelevant court\n\n (3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to each provision referred to in subsection (1):\n\n (a) the Federal Court;\n\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n\n (c) a court of a State or Territory that has jurisdiction in relation to the matter.","sortOrder":1027},{"sectionNumber":"58FK","sectionType":"section","heading":"Maximum penalty for tier 1 contraventions","content":"58FK  Maximum penalty for tier 1 contraventions\n\n (1) Despite subsection 82(5) of the Regulatory Powers Act, the pecuniary penalty payable by a person:\n\n (a) under an SPF civil penalty order; and\n\n (b) for a contravention of a civil penalty provision of an SPF principle in any of Subdivisions C, D, F or G of Division 2 of this Part;\n\nmust not be more than the maximum penalty amount worked out under this section for such a contravention by the person.\n\nMaximum amount of civil penalty for bodies corporate\n\n (2) For the purposes of subsection (1), the maximum penalty amount for such a contravention by a body corporate is the greater of the following:\n\n (a) 159,745 penalty units;\n\n (b) if the relevant court (see subsection 58FJ(3)) can determine the total value of the benefit that:\n\n (i) the body corporate; and\n\n (ii) any body corporate related to the body corporate;\n\n  have obtained directly or indirectly and that is reasonably attributable to the contravention—3 times that total value;\n\n (c) if that court cannot determine that total value—30% of the adjusted turnover of the body corporate during the breach turnover period for the contravention.\n\nMaximum amount of civil penalty for other persons\n\n (3) For the purposes of subsection (1), the maximum penalty amount for such a contravention by a person other than a body corporate is 7,990 penalty units.","sortOrder":1028},{"sectionNumber":"58FL","sectionType":"section","heading":"Maximum penalty for tier 2 contraventions","content":"58FL  Maximum penalty for tier 2 contraventions\n\n (1) Despite subsection 82(5) of the Regulatory Powers Act, the pecuniary penalty payable by a person:\n\n (a) under an SPF civil penalty order; and\n\n (b) for a contravention of:\n\n (i) a civil penalty provision of an SPF principle in Subdivision B or E of Division 2 of this Part; or\n\n (ii) a civil penalty provision of an SPF code;\n\nmust not be more than the maximum penalty amount worked out under this section for such a contravention by the person.\n\nMaximum amount of civil penalty for bodies corporate\n\n (2) For the purposes of subsection (1), the maximum penalty amount for such a contravention by a body corporate is the greater of the following:\n\n (a) 31,950 penalty units;\n\n (b) if the relevant court (see subsection 58FJ(3)) can determine the total value of the benefit that:\n\n (i) the body corporate; and\n\n (ii) any body corporate related to the body corporate;\n\n  have obtained directly or indirectly and that is reasonably attributable to the contravention—3 times that total value;\n\n (c) if that court cannot determine that total value—10% of the adjusted turnover of the body corporate during the breach turnover period for the contravention.\n\nMaximum amount of civil penalty for other persons\n\n (3) For the purposes of subsection (1), the maximum penalty amount for such a contravention by a person other than a body corporate is 1,600 penalty units.","sortOrder":1029},{"sectionNumber":"58FM","sectionType":"section","heading":"Civil penalty double jeopardy","content":"58FM  Civil penalty double jeopardy\n\n  If a person is ordered under an SPF civil penalty order to pay a pecuniary penalty in respect of particular conduct, the person is not liable to:\n\n (a) a pecuniary penalty for contravening another civil penalty provision of an SPF principle or of an SPF code; or\n\n (b) a pecuniary penalty under some other provision of a law of the Commonwealth;\n\nin respect of that conduct.\n\nNote: A court may make other kinds of orders under this Division, for example under section 58FZC (actions for damages), in relation to particular conduct even if the court has made an SPF civil penalty order in relation to that conduct.","sortOrder":1030},{"sectionNumber":"58FN","sectionType":"section","heading":"Purpose and effect of this Subdivision","content":"58FN  Purpose and effect of this Subdivision\n\n (1) The purpose of this Subdivision is to provide for the issue of an infringement notice to a person for an alleged contravention of:\n\n (a) a civil penalty provision of an SPF principle in Subdivision B or E of Division 2 of this Part; or\n\n (b) a civil penalty provision of an SPF code;\n\nas an alternative to proceedings for an SPF civil penalty order.\n\n (2) This Subdivision does not:\n\n (a) require an SPF infringement notice to be issued for an alleged contravention of such a civil penalty provision; or\n\n (b) affect a person’s liability to proceedings for an SPF civil penalty order in relation to an alleged contravention of a civil penalty provision if:\n\n (i) an SPF infringement notice is not issued to the person for the contravention; or\n\n (ii) an SPF infringement notice issued to the person for the contravention is withdrawn under section 58FU; or\n\n (c) prevent a court from imposing a higher penalty than the penalty specified in the SPF infringement notice if the person does not comply with the notice.","sortOrder":1032},{"sectionNumber":"58FO","sectionType":"section","heading":"Issuing an SPF infringement notice","content":"58FO  Issuing an SPF infringement notice\n\nNotices for contraventions of certain SPF principles\n\n (1) If an inspector of the SPF general regulator reasonably believes that a person has contravened a civil penalty provision of an SPF principle in Subdivision B or E of Division 2 of this Part, the inspector may issue a notice (an SPF infringement notice) to the person.\n\nNotices for contraventions of SPF codes\n\n (2) If an inspector of the SPF sector regulator for a regulated sector reasonably believes that a person has contravened a civil penalty provision of the SPF code for the sector, the inspector may issue a notice (an SPF infringement notice) to the person.\n\nOnly one notice for each contravention\n\n (3) Inspectors for an SPF regulator must not issue more than one SPF infringement notice to the person for the same alleged contravention of a civil penalty provision.\n\nWhen notices do not have any effect\n\n (4) An SPF infringement notice does not have any effect if the notice:\n\n (a) is issued more than 12 months after the day that the relevant contravention is alleged to have occurred; or\n\n (b) relates to more than one alleged contravention of a civil penalty provision by the person.","sortOrder":1033},{"sectionNumber":"58FP","sectionType":"section","heading":"Matters to be included in an SPF infringement notice","content":"58FP  Matters to be included in an SPF infringement notice\n\n  An SPF infringement notice must:\n\n (a) be identified by a unique number; and\n\n (b) state the day on which it is issued; and\n\n (c) state the name of the person to whom it is issued; and\n\n (d) state the name of the inspector who issued the notice, that the inspector is an inspector of the applicable SPF regulator, and how that SPF regulator may be contacted; and\n\n (e) give details of the alleged contravention, including:\n\n (i) the day of the alleged contravention; and\n\n (ii) the civil penalty provision that was allegedly contravened; and\n\n (f) state the maximum pecuniary penalty that a court could order the person to pay if the court were to make an SPF civil penalty order for the alleged contravention; and\n\n (g) specify the penalty that is payable in relation to the alleged contravention; and\n\n (h) state that the penalty is payable within the infringement notice compliance period for the notice; and\n\n (i) state that the penalty is payable to the SPF regulator on behalf of the Commonwealth; and\n\n (j) explain how payment of the penalty is to be made; and\n\n (k) explain the effect of sections 58FR to 58FU.","sortOrder":1034},{"sectionNumber":"58FQ","sectionType":"section","heading":"Amount of penalty","content":"58FQ  Amount of penalty\n\n  The penalty to be specified in an SPF infringement notice that is to be issued to a person must be equal to the following amount:\n\n (a) if the person is a body corporate—60 penalty units;\n\n (b) otherwise—12 penalty units.","sortOrder":1035},{"sectionNumber":"58FR","sectionType":"section","heading":"Effect of compliance with an SPF infringement notice","content":"58FR  Effect of compliance with an SPF infringement notice\n\n (1) This section applies if:\n\n (a) an SPF infringement notice for an alleged contravention of a civil penalty provision is issued to a person; and\n\n (b) the person pays the penalty specified in the notice within the infringement notice compliance period and in accordance with the notice; and\n\n (c) the notice is not withdrawn under section 58FU.\n\n (2) The person is not, merely because of the payment, regarded as having contravened the civil penalty provision.\n\n (3) No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to the alleged contravention of the civil penalty provision.","sortOrder":1036},{"sectionNumber":"58FS","sectionType":"section","heading":"Effect of failure to comply with an SPF infringement notice","content":"58FS  Effect of failure to comply with an SPF infringement notice\n\n  If:\n\n (a) an SPF infringement notice for an alleged contravention of a civil penalty provision is issued to a person; and\n\n (b) the person fails to pay the penalty specified in the notice within the infringement notice compliance period and in accordance with the notice; and\n\n (c) the notice is not withdrawn under section 58FU;\n\nthe person is liable to proceedings for an SPF civil penalty order in relation to the alleged contravention of the civil penalty provision.","sortOrder":1037},{"sectionNumber":"58FT","sectionType":"section","heading":"Infringement notice compliance period for infringement notice","content":"58FT  Infringement notice compliance period for infringement notice\n\n (1) Subject to this section, the infringement notice compliance period, for an SPF infringement notice issued to a person, is the period of 28 days beginning on the day after the day that the notice is so issued by an inspector of an SPF regulator.\n\n (2) The SPF regulator may, by giving written notice to the person, extend that infringement notice compliance period if the SPF regulator is satisfied that it is appropriate to do so.\n\n (3) Only one extension may be given and the extension must not be for longer than 28 days.\n\n (4) A failure to give the person written notice of the extension does not affect the validity of the extension.\n\n (5) If an infringement notice compliance period for an SPF infringement notice is extended under this section, a reference in this Subdivision to the infringement notice compliance period is taken to be a reference to that period as so extended.","sortOrder":1038},{"sectionNumber":"58FU","sectionType":"section","heading":"Withdrawal of an infringement notice","content":"58FU  Withdrawal of an infringement notice\n\nRepresentations to the SPF regulator\n\n (1) A person to whom an SPF infringement notice has been issued:\n\n (a) by an inspector of an SPF regulator; and\n\n (b) for an alleged contravention of a civil penalty provision;\n\nmay make written representations to the SPF regulator seeking the withdrawal of the notice.\n\n (2) Evidence or information that:\n\n (a) the person; or\n\n (b) a representative of the person;\n\ngives to the SPF regulator in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).\n\nWithdrawal by the SPF regulator\n\n (3) If an inspector of an SPF regulator issues an SPF infringement notice to a person, the SPF regulator may, by giving written notice (a withdrawal notice) to the person, withdraw the SPF infringement notice if the SPF regulator is satisfied that it is appropriate to do so.\n\n (4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal.\n\nContent of withdrawal notices\n\n (5) The withdrawal notice must state:\n\n (a) the name and address of the person; and\n\n (b) the day on which the SPF infringement notice was issued to the person; and\n\n (c) that the SPF infringement notice is withdrawn; and\n\n (d) that proceedings for an SPF civil penalty order may be started or continued against the person in relation to the alleged contravention of the civil penalty provision.\n\nTime limit for giving withdrawal notices\n\n (6) To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the SPF infringement notice.\n\nRefunds\n\n (7) If an SPF regulator withdraws an SPF infringement notice given to a person after the person has paid the penalty specified in the SPF infringement notice, the SPF regulator must refund to the person an amount equal to the amount paid.","sortOrder":1039},{"sectionNumber":"58FV","sectionType":"section","heading":"Enforceable undertakings","content":"58FV  Enforceable undertakings\n\nAccepting an undertaking\n\n (1) The SPF general regulator may accept a written undertaking given by a person for the purposes of this section in connection with compliance with a provision of the SPF principles.\n\n (2) The SPF sector regulator for a regulated sector may accept a written undertaking given by a person for the purposes of this section in connection with compliance with a provision of the SPF code for the sector.\n\nWithdrawing or varying the undertaking\n\n (3) The person who gave the undertaking may withdraw or vary it at any time, but only with the consent of the SPF regulator who accepted it.\n\nOrders for enforcing the undertaking\n\n (4) If an SPF regulator considers that the person who gave the SPF regulator an undertaking has breached any of its terms, the SPF regulator may apply to the Court for an order under subsection (5).\n\n (5) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:\n\n (a) an order directing the person to comply with that term of the undertaking;\n\n (b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;\n\n (c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;\n\n (d) any other order that the Court considers appropriate.\n\nDefinitions\n\n (6) In this section:\n\nCourt, in relation to a matter, means any court having jurisdiction in the matter.","sortOrder":1041},{"sectionNumber":"58FW","sectionType":"section","heading":"Granting injunctions","content":"58FW  Granting injunctions\n\n (1) The Court may, on application, grant an injunction in such terms as the Court considers appropriate if the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:\n\n (a) a contravention of:\n\n (i) a civil penalty provision of an SPF principle; or\n\n (ii) a civil penalty provision of an SPF code; or\n\n (b) attempting to contravene such a provision; or\n\n (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or\n\n (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or\n\n (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n\n (f) conspiring with others to contravene such a provision.\n\n (2) In this Subdivision:\n\nCourt, in relation to a matter, means any court having jurisdiction in the matter.","sortOrder":1043},{"sectionNumber":"58FX","sectionType":"section","heading":"Particular kinds of injunctions","content":"58FX  Particular kinds of injunctions\n\n (1) The Court may grant an injunction under section 58FW restraining a person from engaging in conduct:\n\n (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and\n\n (b) whether or not the person has previously engaged in conduct of that kind; and\n\n (c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.\n\n (2) The Court may grant an injunction under section 58FW requiring a person to do an act or thing:\n\n (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and\n\n (b) whether or not the person has previously refused or failed to do that act or thing; and\n\n (c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that act or thing.\n\n (3) The Court may grant an injunction under section 58FW 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 that section.","sortOrder":1044},{"sectionNumber":"58FY","sectionType":"section","heading":"Interim injunctions","content":"58FY  Interim injunctions\n\n  The Court may, if in the opinion of the Court it is desirable to do so, grant an interim injunction pending determination of an application for an injunction under section 58FW.","sortOrder":1045},{"sectionNumber":"58FZ","sectionType":"section","heading":"Rescinding or varying injunctions","content":"58FZ  Rescinding or varying injunctions\n\n  The Court may rescind or vary an injunction granted under this Subdivision.","sortOrder":1046},{"sectionNumber":"58FZA","sectionType":"section","heading":"Applying for injunctions","content":"58FZA  Applying for injunctions\n\n (1) An application for an injunction under this Subdivision may be made by an SPF regulator or any other person.\n\n (2) If an SPF regulator applies for such an injunction, the Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.\n\n (3) If:\n\n (a) a person other than an SPF regulator:\n\n (i) applies for such an injunction; and\n\n (ii) apart from this subsection, would be required by the Court to give an undertaking as to damages or costs; and\n\n (b) an SPF regulator gives the undertaking;\n\nthe Court must accept the undertaking by the SPF regulator and must not require a further undertaking from any other person.","sortOrder":1047},{"sectionNumber":"58FZB","sectionType":"section","heading":"Other powers of the Court unaffected","content":"58FZB  Other powers of the Court unaffected\n\n  The powers conferred on the Court by this Subdivision are in addition to, and not instead of, any other powers of the Court, whether conferred by this Act or otherwise.","sortOrder":1048},{"sectionNumber":"58FZC","sectionType":"section","heading":"Actions for damages—general rule","content":"58FZC  Actions for damages—general rule\n\n (1) A person (the victim) who suffers loss or damage by conduct of another person that was done in contravention of:\n\n (a) a civil penalty provision of an SPF principle; or\n\n (b) a civil penalty provision of an SPF code;\n\nmay recover the amount of the loss or damage by action against that other person.\n\n (2) An SPF regulator may make a claim under subsection (1) on behalf of the victim if the SPF regulator has the victim’s written consent to do so.\n\n (3) A claim under subsection (1) may be made at any time within 6 years after the day the cause of action that relates to the conduct accrued.\n\n (4) However, this section applies subject to sections 58FZD to 58FZK (about proportionate liability for concurrent wrongdoers).\n\nNote: See subsection 58FZF(1) in particular.","sortOrder":1050},{"sectionNumber":"58FZD","sectionType":"section","heading":"Meaning of concurrent wrongdoers","content":"58FZD  Meaning of concurrent wrongdoers\n\n (1) In this Subdivision, a concurrent wrongdoer, in relation to a claim under subsection 58FZC(1), is a person who is one of 2 or more persons:\n\n (a) who each contravened a civil penalty provision of an SPF principle or a civil penalty provision of an SPF code (whether or not the same civil penalty provision); and\n\n (b) whose contraventions caused, independently of each other or jointly, the loss or damage that is the subject of the claim.\n\n (2) For the purposes of this Subdivision, a person can be a concurrent wrongdoer if the person is insolvent, is being wound up or has ceased to exist or died.","sortOrder":1051},{"sectionNumber":"58FZE","sectionType":"section","heading":"Certain concurrent wrongdoers not to have benefit of apportionment","content":"58FZE  Certain concurrent wrongdoers not to have benefit of apportionment\n\n (1) Nothing in this Subdivision operates to exclude the liability of a concurrent wrongdoer (an excluded concurrent wrongdoer) in proceedings involving a claim under subsection 58FZC(1) to recover an amount of loss or damage if:\n\n (a) the concurrent wrongdoer intended to cause the loss or damage; or\n\n (b) the concurrent wrongdoer fraudulently caused the loss or damage.\n\n (2) The liability of an excluded concurrent wrongdoer is to be determined in accordance with the legal rules (if any) that (apart from sections 58FZD to 58FZK) are relevant.\n\n (3) The liability of any other concurrent wrongdoer who is not an excluded concurrent wrongdoer is to be determined in accordance with the other provisions of this Subdivision.","sortOrder":1052},{"sectionNumber":"58FZF","sectionType":"section","heading":"Proportionate liability for claims involving concurrent wrongdoers","content":"58FZF  Proportionate liability for claims involving concurrent wrongdoers\n\n (1) In any proceedings involving a claim under subsection 58FZC(1) to recover an amount of loss or damage:\n\n (a) the liability of a defendant who is a concurrent wrongdoer in relation to the claim is limited to an amount reflecting that proportion of the loss or damage that the court considers just having regard to the extent of the defendant’s responsibility for the loss or damage; and\n\n (b) the court may give judgment against the defendant for not more than that amount.\n\n (2) If the proceedings also involve another claim that is not a claim under subsection 58FZC(1), liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Subdivision) are relevant.\n\n (3) In apportioning responsibility between defendants in the proceedings:\n\n (a) the court is to exclude that proportion of the loss or damage in relation to which the victim is contributorily negligent under any relevant law; and\n\n (b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings.\n\n (4) This section applies in proceedings whether or not all concurrent wrongdoers are parties to the proceedings.\n\n (5) A reference in this Subdivision to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Subdivision, under rules of court or otherwise.","sortOrder":1053},{"sectionNumber":"58FZG","sectionType":"section","heading":"Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware","content":"58FZG  Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware\n\n (1) If:\n\n (a) a defendant in proceedings involving a claim under subsection 58FZC(1) has reasonable grounds to believe that a particular person (the other person) may be a concurrent wrongdoer in relation to the claim; and\n\n (b) the defendant fails to give the plaintiff, as soon as practicable, written notice of the information that the defendant has about:\n\n (i) the identity of the other person; and\n\n (ii) the circumstances that may make the other person a concurrent wrongdoer in relation to the claim; and\n\n (c) the plaintiff unnecessarily incurs costs in the proceedings because the plaintiff was not aware that the other person may be a concurrent wrongdoer in relation to the claim;\n\nthe court hearing the proceedings may order that the defendant pay all or any of those costs of the plaintiff.\n\nNote: The plaintiff is the victim or an SPF regulator (see subsections 58FZC(1) and (2)).\n\n (2) The court may order that the costs to be paid by the defendant be assessed on an indemnity basis or otherwise.","sortOrder":1054},{"sectionNumber":"58FZH","sectionType":"section","heading":"Contribution not recoverable from defendant","content":"58FZH  Contribution not recoverable from defendant\n\n  A defendant against whom judgment is given under this Subdivision as a concurrent wrongdoer in relation to a claim under subsection 58FZC(1):\n\n (a) cannot be required to contribute to any damages or contribution recovered from another concurrent wrongdoer in respect of the claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant); and\n\n (b) cannot be required to indemnify any such wrongdoer.","sortOrder":1055},{"sectionNumber":"58FZI","sectionType":"section","heading":"Subsequent actions","content":"58FZI  Subsequent actions\n\n (1) For a claim under subsection 58FZC(1), nothing in this Subdivision or any other law prevents a plaintiff (or a victim) who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any loss or damage from bringing another action against any other concurrent wrongdoer for that loss or damage.\n\n (2) However, in any proceedings in respect of any such action, an amount of damages cannot be recovered by or for the victim that, having regard to any damages previously recovered by or for the victim in respect of the loss or damage, would result in the victim receiving compensation for loss or damage that is greater than the loss or damage actually sustained by the victim.","sortOrder":1056},{"sectionNumber":"58FZJ","sectionType":"section","heading":"Joining non-party concurrent wrongdoer in the action","content":"58FZJ  Joining non‑party concurrent wrongdoer in the action\n\n (1) The court may give leave for any one or more persons to be joined as defendants in proceedings involving a claim under subsection 58FZC(1).\n\n (2) The court is not to give leave for the joinder of any person who was a party to any previously concluded proceedings in respect of the claim.","sortOrder":1057},{"sectionNumber":"58FZK","sectionType":"section","heading":"Application of this Subdivision","content":"58FZK  Application of this Subdivision\n\n  Nothing in this Subdivision:\n\n (a) prevents a person being held vicariously liable for a proportion of a claim under subsection 58FZC(1) for which another person is liable; or\n\n (b) prevents a person from being held severally liable with another person for that proportion of a claim under subsection 58FZC(1) for which the other person is liable; or\n\n (c) affects the operation of any other provision of this Act or of any other Act to the extent that the provision imposes several liability on any person in respect of what would otherwise be a claim under subsection 58FZC(1).","sortOrder":1058},{"sectionNumber":"Subdivision H","sectionType":"subdivision","heading":"Public warning notices","content":"Subdivision H—Public warning notices","sortOrder":1059},{"sectionNumber":"58FZL","sectionType":"section","heading":"Public warning notices","content":"58FZL  Public warning notices\n\nSuspected contraventions of a provision of the SPF principles\n\n (1) The SPF general regulator may issue to the public a written notice containing a warning about the conduct of a person if the SPF general regulator:\n\n (a) reasonably suspects that the person’s conduct may constitute a contravention of a specified provision of the SPF principles; and\n\n (b) is satisfied that one or more persons has suffered, or is likely to suffer, detriment as a result of the conduct; and\n\n (c) is satisfied that it is in the public interest to issue the notice.\n\nSuspected contraventions of a provision of an SPF code\n\n (2) The SPF sector regulator for a regulated sector may issue to the public a written notice containing a warning about the conduct of a person if the SPF sector regulator:\n\n (a) reasonably suspects that the person’s conduct may constitute a contravention of a specified provision of the SPF code for the sector; and\n\n (b) is satisfied that one or more persons has suffered, or is likely to suffer, detriment as a result of the conduct; and\n\n (c) is satisfied that it is in the public interest to issue the notice.\n\nRelated matters\n\n (3) An SPF regulator that issues a notice under subsection (1) or (2) must publish the notice on the SPF regulator’s website.\n\n (4) A notice under subsection (1) or (2) is not a legislative instrument.","sortOrder":1060},{"sectionNumber":"Subdivision I","sectionType":"subdivision","heading":"Remedial directions","content":"Subdivision I—Remedial directions","sortOrder":1061},{"sectionNumber":"58FZM","sectionType":"section","heading":"Remedial directions","content":"58FZM  Remedial directions\n\nGiving directions—to comply with an SPF principle\n\n (1) If the SPF general regulator reasonably suspects that a regulated entity:\n\n (a) is failing to comply with an SPF principle; or\n\n (b) will fail to comply with an SPF principle;\n\nthe SPF general regulator may, by written notice given to the entity, direct the entity to take specified action to comply with that SPF principle.\n\nGiving directions—to comply with an SPF code\n\n (2) If the SPF sector regulator for a regulated sector reasonably suspects that a regulated entity for the sector:\n\n (a) is failing to comply with a provision of the SPF code for the sector; or\n\n (b) will fail to comply with such a provision;\n\nthe SPF sector regulator may, by written notice given to the entity, direct the entity to take specified action to comply with that provision of the SPF code.\n\nComplying with a direction\n\n (3) A regulated entity given a direction under subsection (1) or (2) must comply with the direction.\n\n (a) within the time specified in the direction, which must be a reasonable time; or\n\n (b) if the direction does not specify a reasonable time—within a reasonable time.\n\n (4) Subsection (3) is a civil penalty provision.\n\nNote: To work out how sections 58FJ to 58FL (about civil penalties) apply to subsection (3), see the definitions of civil penalty provision of an SPF principle, and civil penalty provision of an SPF code in subsection 4(1).\n\nExtending the time for complying with a direction\n\n (5) The SPF regulator who gives a direction under subsection (1) or (2) to an entity may extend the time for complying with the direction by written notice given to the entity.\n\nBefore giving a direction\n\n (6) Before an SPF regulator gives an entity a direction under subsection (1) or (2), the SPF regulator must give the entity an opportunity to make submissions to the SPF regulator on the matter.\n\nVarying and revoking directions\n\n (7) An SPF regulator may vary or revoke a direction given by the SPF regulator under subsection (1) or (2) in like manner and subject to like conditions.\n\nPublishing directions\n\n (8) As soon as practicable after an SPF regulator gives, varies or revokes a direction under subsection (1) or (2), the SPF regulator must publish a notice of its action on its website.","sortOrder":1062},{"sectionNumber":"Subdivision J","sectionType":"subdivision","heading":"Adverse publicity orders","content":"Subdivision J—Adverse publicity orders","sortOrder":1063},{"sectionNumber":"58FZN","sectionType":"section","heading":"Adverse publicity orders","content":"58FZN  Adverse publicity orders\n\nMaking adverse publicity orders\n\n (1) The Court may, on application, make an adverse publicity order against a person who has been ordered to pay a pecuniary penalty under an SPF civil penalty order.\n\n (2) Such an order may require the person to:\n\n (a) disclose, in the way and to the persons specified in the order, specified information that the person has possession of or access to; and\n\n (b) publish, at the person’s expense and in in a specified way, an advertisement in the terms specified in, or determined in accordance with, the order.\n\nApplying for adverse publicity orders\n\n (3) An application for such an order may be made by:\n\n (a) if the SPF civil penalty order was for a contravention of a civil penalty provision of an SPF principle—the SPF general regulator; or\n\n (b) if the SPF civil penalty order was for a contravention of a civil penalty provision of an SPF code for a regulated sector—the SPF sector regulator for the sector.\n\nDefinitions\n\n (4) In this section:\n\nCourt, in relation to a matter, means any court having jurisdiction in the matter.","sortOrder":1064},{"sectionNumber":"Subdivision K","sectionType":"subdivision","heading":"Non-punitive orders","content":"Subdivision K—Non‑punitive orders","sortOrder":1065},{"sectionNumber":"58FZO","sectionType":"section","heading":"Non-punitive orders","content":"58FZO  Non‑punitive orders\n\nMaking non‑punitive orders\n\n (1) The Court may, on application, make one or more of the following orders in relation to a person who has engaged in conduct contravening an SPF principle or a provision of an SPF code:\n\n (a) a community service order;\n\n (b) a probation order for a period of no longer than 3 years;\n\n (c) an order requiring the person to disclose, in the way and to the persons specified in the order, specified information that the person has possession of or access to;\n\n (d) an order requiring the person to publish, at the person’s expense and in a specified way, an advertisement in the terms specified in, or determined in accordance with, the order.\n\nApplying for non‑punitive orders\n\n (2) An application for such an order may be made by:\n\n (a) for conduct contravening an SPF principle—the SPF general regulator; or\n\n (b) for conduct contravening a provision of the SPF code for a regulated sector—the SPF sector regulator for the sector.\n\nDefinitions\n\n (3) For the purposes of this section, a probation order is an order made to ensure that a person does not engage in:\n\n (a) the conduct that resulted in the order; or\n\n (b) similar conduct or related conduct;\n\nduring the period of the order.\n\n (4) Without limiting subsection (3), a probation order includes:\n\n (a) an order directing a person to establish a compliance program, or an education and training program, that:\n\n (i) is for employees or other persons involved in the person’s business; and\n\n (ii) is designed to ensure awareness of responsibilities and obligations relating to conduct covered by paragraph (3)(a) or (b); and\n\n (b) an order directing a person to revise the internal operations of the person’s business that lead to conduct covered by paragraph (3)(a) or (b).\n\n (5) In this section:\n\ncommunity service order means an order directing a person to perform a service that:\n\n (a) is specified in the order; and\n\n (b) is or relates to the conduct that resulted in the order;\n\nfor the benefit of the community or a section of the community.\n\ncontravening: conduct contravening an SPF principle or a provision of an SPF code includes conduct that constitutes being involved in such a contravention.\n\nNote: For the meaning of involved, see subsection 4(1).\n\nCourt, in relation to a matter, means any court having jurisdiction in the matter.","sortOrder":1066},{"sectionNumber":"Subdivision L","sectionType":"subdivision","heading":"Orders (other than awards of damages) to redress loss or damage","content":"Subdivision L—Orders (other than awards of damages) to redress loss or damage","sortOrder":1067},{"sectionNumber":"58FZP","sectionType":"section","heading":"Orders (other than awards of damages) to redress loss or damage—making such orders","content":"58FZP  Orders (other than awards of damages) to redress loss or damage—making such orders\n\nMaking orders\n\n (1) The Court may, on application, make such orders (other than an award of damages) as the Court thinks appropriate against a person who:\n\n (a) engaged in conduct (the contravening conduct) contravening a civil penalty provision of an SPF principle or a civil penalty provision of an SPF code; or\n\n (b) is involved in the contravening conduct;\n\nif the contravening conduct caused, or is likely to cause, a class of persons (the victims) to suffer loss or damage.\n\nNote 1: The orders that the court may make include all or any of the orders set out in section 58FZQ.\n\nNote 2: For the meaning of involved, see subsection 4(1).\n\n (2) Subsection (1) applies whether or not the victims include persons (non‑parties) who are not, or have not been, parties to a proceeding (an enforcement proceeding) instituted under another provision in or referred to in this Division in relation to the contravening conduct.\n\n (3) The Court must not make such an order unless the Court considers that the order will:\n\n (a) redress, in whole or in part, the loss or damage suffered by the victims in relation to the contravening conduct; or\n\n (b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the victims in relation to the contravening conduct.\n\nApplying for orders\n\n (4) An application for such an order may be made:\n\n (a) by the following:\n\n (i) if the contravening conduct contravened a civil penalty provision of an SPF principle—the SPF general regulator;\n\n (ii) if the contravening conduct contravened a civil penalty provision of an SPF code for a regulated sector—the SPF sector regulator for the sector; and\n\n (b) even if an enforcement proceeding in relation to the contravening conduct has not been instituted; and\n\n (c) at any time within 6 years after the day on which the cause of action that relates to the contravening conduct accrues.\n\nWorking out whether to make an order\n\n (5) In working out whether to make such an order against a person referred to in paragraph (1)(a) or (b), the Court may have regard to the conduct of:\n\n (a) the person; and\n\n (b) the victims;\n\nin relation to the contravening conduct since the contravention occurred.\n\n (6) However, the Court need not make a finding about either of the following matters:\n\n (a) which persons are victims in relation to the contravening conduct;\n\n (b) the nature of the loss or damage suffered, or likely to be suffered, by such persons.\n\nWhen a non‑party victim is bound by an order etc.\n\n (7) If all of the following happen:\n\n (a) such an order is made against a person;\n\n (b) the loss or damage suffered, or likely to be suffered, by a non‑party victim in relation to the contravening conduct has been redressed, prevented or reduced in accordance with the order;\n\n (c) the non‑party victim has accepted the redress, prevention or reduction;\n\nthen:\n\n (d) the non‑party victim is bound by the order; and\n\n (e) any other order made under subsection (1) relating to that loss or damage has no effect in relation to the non‑party victim; and\n\n (f) despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory, no claim, action or demand may be made or taken against the person by the non‑party victim in relation to that loss or damage.\n\nDefinitions\n\n (8) In this section:\n\nCourt, in relation to a matter, means any court having jurisdiction in the matter.","sortOrder":1068},{"sectionNumber":"58FZQ","sectionType":"section","heading":"Orders (other than awards of damages) to redress loss or damage—kinds of such orders","content":"58FZQ  Orders (other than awards of damages) to redress loss or damage—kinds of such orders\n\n (1) Without limiting subsection 58FZP(1), the orders that the Court may make under that subsection against a person (the respondent) include all or any of the following:\n\n (a) an order declaring the whole or any part of a contract made between the respondent and a victim referred to in that subsection, or a collateral arrangement relating to such a contract:\n\n (i) to be void; and\n\n (ii) if the Court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);\n\n (b) an order:\n\n (i) varying such a contract or arrangement in such manner as is specified in the order; and\n\n (ii) if the Court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);\n\n (c) an order refusing to enforce any or all of the provisions of such a contract or arrangement;\n\n (d) an order directing the respondent to refund money or return property to a victim referred to in that subsection;\n\n (e) an order directing the respondent, at the respondent’s own expense, to repair, or provide parts for, goods that have been supplied under the contract or arrangement to a victim referred to in that subsection;\n\n (f) an order directing the respondent, at the respondent’s own expense, to supply specified services to a victim referred to in that subsection;\n\n (g) an order, in relation to an instrument creating or transferring an interest in land, directing the respondent to execute an instrument that:\n\n (i) varies, or has the effect of varying, the first‑mentioned instrument; or\n\n (ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first‑mentioned instrument.\n\n (2) In this section:\n\ninterest, in land, means:\n\n (a) a legal or equitable estate or interest in the land; or\n\n (b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or\n\n (c) a right, power or privilege over, or in connection with, the land.","sortOrder":1069},{"sectionNumber":"58GA","sectionType":"section","heading":"Treatment of partnerships","content":"58GA  Treatment of partnerships\n\n (1) The SPF provisions apply to a partnership as if it were a person, but with the changes set out in this section.\n\n (2) An obligation that would otherwise be imposed on the partnership by an SPF provision is imposed on each partner instead, but may be discharged by any of the partners.\n\n (3) If an SPF provision would otherwise permit something to be done by the partnership, the thing may be done by one or more of the partners on behalf of the partnership.\n\n (4) For the purposes of the SPF provisions, a change in the composition of a partnership does not affect the continuity of the partnership.","sortOrder":1071},{"sectionNumber":"58GB","sectionType":"section","heading":"Treatment of unincorporated associations","content":"58GB  Treatment of unincorporated associations\n\n (1) The SPF provisions apply to an unincorporated association as if it were a person, but with the changes set out in this section.\n\n (2) An obligation that would otherwise be imposed on the association by an SPF provision is imposed on each member of the association’s committee of management instead, but may be discharged by any of the members.\n\n (3) If an SPF provision would otherwise permit something to be done by the unincorporated association, the thing may be done by one or more of the members of the association’s committee of management on behalf of the association.","sortOrder":1072},{"sectionNumber":"58GC","sectionType":"section","heading":"Treatment of trusts","content":"58GC  Treatment of trusts\n\n (1) The SPF provisions apply to a trust as if it were a person, but with the changes set out in this section.\n\nTrusts with a single trustee\n\n (2) If the trust has a single trustee:\n\n (a) an obligation that would otherwise be imposed on the trust by an SPF provision is imposed on the trustee instead; and\n\n (b) if an SPF provision would otherwise permit something to be done by the trust, the thing may be done by the trustee.\n\nTrusts with multiple trustees\n\n (3) If the trust has 2 or more trustees:\n\n (a) an obligation that would otherwise be imposed on the trust by an SPF provision is imposed on each trustee instead, but may be discharged by any of the trustees; and\n\n (b) if an SPF provision would otherwise permit something to be done by the trust, the thing may be done by any of the trustees.","sortOrder":1073},{"sectionNumber":"58GD","sectionType":"section","heading":"Compensation for acquisition of property","content":"58GD  Compensation for acquisition of property\n\n (1) This section applies if the operation of the SPF provisions 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).\n\n (2) The person who acquires the property is liable to pay a reasonable amount of compensation to the first‑mentioned person.\n\n (3) If the 2 persons do not agree on the amount of the compensation, the person to whom compensation is payable may institute proceedings in:\n\n (a) the Federal Court; or\n\n (b) the Supreme Court of a State or Territory;\n\nfor the recovery from the other person of such reasonable amount of compensation as the Court determines.","sortOrder":1074},{"sectionNumber":"58GE","sectionType":"section","heading":"Rules for the purposes of this Part","content":"58GE  Rules for the purposes of this Part\n\n (1) The Minister may, by legislative instrument, make rules (the SPF rules) prescribing matters:\n\n (a) required or permitted by this Part to be prescribed by the SPF rules; or\n\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.\n\nNote: A matter may be prescribed by the SPF rules by class (see subsection 13(3) of the Legislation Act 2003). For example, a specific regulated entity or a class of regulated entities may be able to be prescribed in some cases.\n\n (2) The Minister may, in writing, delegate the Minister’s power to make SPF rules to another Minister or to an SPF regulator.\n\n (3) To avoid doubt, the SPF rules may not do the following:\n\n (a) create an offence or civil penalty;\n\n (b) provide powers of:\n\n (i) arrest or detention; or\n\n (ii) entry, search or seizure;\n\n (c) impose a tax;\n\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n\n (e) directly amend the text of this Act.","sortOrder":1075},{"sectionNumber":"58GF","sectionType":"section","heading":"Report of the operation of the SPF provisions","content":"58GF  Report of the operation of the SPF provisions\n\n (1) The Minister must cause a review to be conducted of the operation of the SPF provisions.\n\n (2) The review must be conducted as soon as practicable after the end of the 3‑year period starting on the day the first SPF code is made under section 58CB.\n\n (3) The persons who conduct the review must give the Minister a written report of the review.\n\n (4) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.","sortOrder":1076},{"sectionNumber":"Part V","sectionType":"part","heading":"Carbon tax price reduction obligation","content":"Part V—Carbon tax price reduction obligation","sortOrder":1077},{"sectionNumber":"60","sectionType":"section","heading":"Simplified outline of this Part","content":"60  Simplified outline of this Part\n\n• An entity must not engage in price exploitation in relation to the carbon tax repeal.\n\n• The Commission may monitor prices in relation to the carbon tax repeal and the carbon tax scheme.\n\n• An entity must not make false or misleading representations about the effect of the carbon tax repeal, or the carbon tax scheme, on the price for the supply of goods or services.\n\n• An entity that sells electricity or natural gas, or an entity that is a bulk SGG importer and sells synthetic greenhouse gas, will be required to explain and substantiate:\n\n (a) how the carbon tax repeal has affected, or is affecting, the entity’s regulated supply input costs; and\n\n (b) how reductions in the entity’s regulated supply input costs that are directly or indirectly attributable to the carbon tax repeal are reflected in the prices charged by the entity for regulated supplies of electricity, natural gas or synthetic greenhouse gas.\n\n• An entity that sells electricity or natural gas to customers, or an entity that is a bulk SGG importer and sells synthetic greenhouse gas to customers, must:\n\n (a) give a carbon tax removal substantiation statement to the Commission; and\n\n (b) include in the statement the entity’s estimate, on an average annual percentage price basis, or an average annual dollar price basis, of the entity’s cost savings that have been, are, or will be, attributable to the carbon tax repeal and that have been, are being, or will be, passed on to customers during the financial year that began on 1 July 2014; and\n\n (c) provide information with the statement that substantiates such an estimate; and\n\n (d) in a case where the entity sells electricity or natural gas to customers—communicate to customers a statement that identifies, on an average annual percentage price basis, or an average annual dollar price basis, the estimated cost savings to customers that are for the financial year that began on 1 July 2014.\n\n• Infringement notices may be issued for certain contraventions of this Part.","sortOrder":1079},{"sectionNumber":"60AA","sectionType":"section","heading":"Objects etc.","content":"60AA  Objects etc.\n\n (1) The main objects of this Part are:\n\n (a) to deter price exploitation in relation to the carbon tax repeal at each point in the supply chain for regulated goods; and\n\n (b) to ensure that all cost savings attributable to the carbon tax repeal are passed through the supply chain for regulated goods.\n\n (2) The intention of the Parliament in enacting this Part is to ensure that all cost savings attributable to the carbon tax repeal are passed on to consumers of regulated goods through lower prices.","sortOrder":1080},{"sectionNumber":"60A","sectionType":"section","heading":"Definitions","content":"60A  Definitions\n\n  In this Part:\n\napplicable compliance period, for a carbon tax removal substantiation notice, has the meaning given by subsection 60FC(2).\n\nbulk SGG importer means an entity that:\n\n (a) holds a controlled substances licence under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 that allows the entity to import synthetic greenhouse gases; and\n\n (b) supplies synthetic greenhouse gas to SGG customers.\n\ncarbon charge component of levy means so much of the amount of the levy as is calculated by multiplying the number of tonnes of carbon dioxide equivalence by a per unit charge applicable under subsection 100(1) of the Clean Energy Act 2011 for the issue of a carbon unit.\n\ncarbon tax removal substantiation notice has the meaning given by subsection 60FA(3).\n\ncarbon tax removal substantiation statement has the meaning given by subsection 60FD(3).\n\ncarbon tax repeal means:\n\n (a) the repeal of the following Acts by the Clean Energy Legislation (Carbon Tax Repeal) Act 2014:\n\n (i) the Clean Energy Act 2011;\n\n (ii) the Clean Energy (Charges—Customs) Act 2011;\n\n (iii) the Clean Energy (Charges—Excise) Act 2011;\n\n (iv) the Clean Energy (Unit Issue Charge—Auctions) Act 2011;\n\n (v) the Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011;\n\n (vi) the Clean Energy (Unit Shortfall Charge—General) Act 2011; and\n\n (b) the amendments of the following Acts made by the Clean Energy Legislation (Carbon Tax Repeal) Act 2014:\n\n (i) the Fuel Tax Act 2006;\n\n (ii) the Fuel Tax (Consequential and Transitional Provisions) Act 2006; and\n\n (c) the amendments made by the following Acts:\n\n (i) the Customs Tariff Amendment (Carbon Tax Repeal) Act 2014;\n\n (ii) the Excise Tariff Amendment (Carbon Tax Repeal) Act 2014;\n\n (iii) the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Amendment (Carbon Tax Repeal) Act 2014;\n\n (iv) the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Amendment (Carbon Tax Repeal) Act 2014.\n\ncarbon tax repeal transition period means the period:\n\n (a) beginning at the start of 1 July 2014; and\n\n (b) ending at the end of 30 June 2015.\n\ncarbon tax scheme means the scheme embodied in the following:\n\n (a) the Clean Energy Act 2011, as in force at the start of 1 January 2014;\n\n (b) the associated provisions (within the meaning of that Act as in force at that time);\n\n (c) the following provisions of the Fuel Tax Act 2006, as in force at the start of 1 January 2014:\n\n (i) Division 42A;\n\n (ii) section 43‑5, so far as that section relates to a carbon reduction;\n\n (iii) section 43‑8;\n\n (iv) section 43‑11;\n\n (d) section 3A of the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995, as in force at the start of 1 January 2014, so far as that section relates to carbon charge component;\n\n (e) section 4A of the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995, as in force at the start of 1 January 2014, so far as that section relates to carbon charge component;\n\n (f) section 3A of the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995, as in force at the start of 1 January 2014, so far as that section relates to carbon charge component;\n\n (g) sections 6FA, 6FB and 6FC of the Excise Tariff Act 1921, as in force at the start of 1 January 2014;\n\n (h) section 19A of the Customs Tariff Act 1995, as in force at the start of 1 January 2014.\n\nelectricity customer means an entity that purchases electricity.\n\nelectricity retailer means:\n\n (a) an entity who:\n\n (i) is a retailer within the meaning of the National Energy Retail Law as it applies in a State or a Territory; and\n\n (ii) sells electricity to electricity customers; or\n\n (b) an entity who is a retailer within the meaning of the Electricity Industry Act 2000 (Vic.); or\n\n (c) an entity who is a retail entity within the meaning of the Electricity Act 1994 (Qld); or\n\n (d) an entity who:\n\n (i) holds a retail licence within the meaning of the Electricity Industry Act 2004 (WA); or\n\n (ii) holds an integrated regional licence within the meaning of the Electricity Industry Act 2004 (WA) that authorises the entity to sell electricity; or\n\n (e) an entity who is an electricity entity within the meaning of the Electricity Reform Act 2000 (NT) and whose licence under that Act authorises the entity to sell electricity; or\n\n (f) any other entity who produces electricity in Australia.\n\nengages in price exploitation in relation to the carbon tax repeal: see section 60C.\n\nentity means any of the following:\n\n (a) a corporation (as defined by section 4);\n\n (b) an individual;\n\n (c) a body corporate;\n\n (d) a corporation sole;\n\n (e) a body politic;\n\n (f) a partnership;\n\n (g) any other unincorporated association or body of entities;\n\n (h) a trust;\n\n (i) any party or entity which can or does buy or sell electricity, natural gas or synthetic greenhouse gas.\n\ninfringement notice means an infringement notice issued under subsection 60L(1).\n\ninfringement notice compliance period: see section 60P.\n\ninfringement notice provision means section 60C or 60K.\n\nlisted corporation has the meaning given by section 9 of the Corporations Act 2001.\n\nNational Energy Retail Law means the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 (SA).\n\nnatural gas has the same meaning as in the National Gas (Commonwealth) Law (as defined by the Australian Energy Market Act 2004).\n\nnatural gas customer means an entity that purchases natural gas.\n\nnatural gas retailer means:\n\n (a) an entity who:\n\n (i) is a retailer within the meaning of the National Energy Retail Law as it applies in a State or a Territory; and\n\n (ii) sells natural gas to natural gas customers; or\n\n (b) an entity who is a gas retailer within the meaning of the Gas Industry Act 2001 (Vic.); or\n\n (c) an entity who is a retailer within the meaning of the Gas Supply Act 2003 (Qld); or\n\n (d) an entity who holds a trading licence under the Energy Coordination Act 1994 (WA); or\n\n (e) an entity who holds a licence under the Gas Act 2000 (Tas.) to sell gas by retail.\n\nprice, in relation to a supply, includes:\n\n (a) a charge of any description for the supply; and\n\n (b) any pecuniary or other benefit, whether direct or indirect, received or to be received by a person for or in connection with the supply.\n\nregulated goods: see section 60B.\n\nregulated supply means a supply that:\n\n (a) occurs during the carbon tax repeal transition period; and\n\n (b) is of regulated goods.\n\nregulated supply input costs of an entity means the entity’s input costs in relation to the making by the entity of regulated supplies of electricity, natural gas or synthetic greenhouse gas.\n\nRoyal Assent day means the day on which the Act that inserted this Part receives the Royal Assent.\n\nSGG customer means an entity that purchases synthetic greenhouse gas.\n\nSGG equipment has the same meaning as in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989.\n\nsynthetic greenhouse gas has the same meaning as in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989.","sortOrder":1081},{"sectionNumber":"60B","sectionType":"section","heading":"Regulated goods","content":"60B  Regulated goods\n\n (1) For the purposes of this Part, regulated goods means:\n\n (a) natural gas; or\n\n (b) electricity; or\n\n (c) synthetic greenhouse gas; or\n\n (d) SGG equipment; or\n\n (e) other goods of a kind specified in a legislative instrument under subsection (2).\n\n (2) The Minister may, by legislative instrument, specify one or more kinds of goods for the purposes of paragraph (1)(e).","sortOrder":1082},{"sectionNumber":"60C","sectionType":"section","heading":"Price exploitation in relation to the carbon tax repeal","content":"60C  Price exploitation in relation to the carbon tax repeal\n\n (1) An entity must not engage in price exploitation in relation to the carbon tax repeal.\n\n (2) For the purposes of this Part, an entity engages in price exploitation in relation to the carbon tax repeal if, and only if:\n\n (a) it makes a regulated supply; and\n\n (b) the price for the supply does not pass through all of the entity’s cost savings relating to the supply that are directly or indirectly attributable to the carbon tax repeal.\n\n (3) For the purposes of this Part, in determining whether the price for a supply made by an entity does not pass through all of the entity’s cost savings relating to the supply that are directly or indirectly attributable to the carbon tax repeal, have regard to the following matters:\n\n (a) the entity’s cost savings that are directly or indirectly attributable to the carbon tax repeal;\n\n (b) how the cost savings mentioned in paragraph (a) can reasonably be attributed to the different supplies that the entity makes;\n\n (c) the entity’s costs;\n\n (d) any other relevant matter that may reasonably influence the price.","sortOrder":1084},{"sectionNumber":"60CA","sectionType":"section","heading":"Failure to pass on cost savings—250% penalty","content":"60CA  Failure to pass on cost savings—250% penalty\n\n (1) If:\n\n (a) either:\n\n (i) an entity contravenes subsection 60C(1) in relation to a particular supply of electricity or natural gas; or\n\n (ii) an entity that is a bulk SGG importer contravenes subsection 60C(1) in relation to a particular supply of synthetic greenhouse gas; and\n\n (b) the contravention involved a failure to pass through all of the entity’s cost savings relating to the supply that are directly or indirectly attributable to the carbon tax repeal;\n\nthere is payable by the entity to the Commonwealth, and the entity shall pay to the Commonwealth, by way of penalty, an amount equal to 250% of those cost savings that were not passed through.\n\nWhen penalty becomes due and payable\n\n (2) An amount payable by an entity under subsection (1) is due and payable on 1 July 2015.\n\nLate payment penalty\n\n (3) If an amount payable by an entity under subsection (1) remains unpaid after the time when it became due for payment, there is payable by the entity to the Commonwealth, and the entity shall pay to the Commonwealth, by way of penalty, an amount calculated at the rate of 6% per annum on the amount unpaid, computed from that time.\n\nRecovery of penalties\n\n (4) An amount payable by an entity under subsection (1) or (3):\n\n (a) is a debt due to the Commonwealth; and\n\n (b) shall be recovered by the Commission, on behalf of the Commonwealth, by action in a court of competent jurisdiction, unless the cost of doing so exceeds the amount.\n\nReport to Parliament\n\n (5) Within 13 months after the Royal Assent day, the Commission must report to Parliament in respect of penalties payable by entities.","sortOrder":1085},{"sectionNumber":"60D","sectionType":"section","heading":"Notice to entity that is considered to have engaged in price exploitation in relation to the carbon tax repeal","content":"60D  Notice to entity that is considered to have engaged in price exploitation in relation to the carbon tax repeal\n\n (1) The Commission may give an entity a written notice under this section if the Commission considers that the entity has engaged in price exploitation in relation to the carbon tax repeal.\n\n (2) The notice must:\n\n (a) be expressed to be given under this section; and\n\n (b) identify:\n\n (i) the entity that made the supply; and\n\n (ii) the kind of supply made; and\n\n (iii) the circumstances in which the supply was made; and\n\n (c) state that, in the Commission’s opinion, the price for the supply did not pass through all of the entity’s cost savings relating to the supply that were directly or indirectly attributable to the carbon tax repeal.\n\n (3) In any proceedings:\n\n (aa) under section 60CA; or\n\n (a) under section 76 for a pecuniary penalty order relating to section 60C; or\n\n (b) under section 80 for an injunction relating to section 60C; or\n\n (c) under section 80A, 82, 86C, 86D or 87 for an order relating to section 60C;\n\nthe notice is prima facie evidence that the price for the supply did not pass through all of the entity’s cost savings relating to the supply that were directly or indirectly attributable to the carbon tax repeal.\n\n (4) The Commission may vary or revoke the notice on its own initiative or on application made by the entity. The Commission must give the entity written notice of the variation or revocation.\n\n (5) A notice under this section is not a legislative instrument.","sortOrder":1086},{"sectionNumber":"60E","sectionType":"section","heading":"Commission may issue notice to aid prevention of price exploitation in relation to the carbon tax repeal","content":"60E  Commission may issue notice to aid prevention of price exploitation in relation to the carbon tax repeal\n\n (1) The Commission may give an entity a written notice under this section if the Commission considers that doing so will aid the prevention of the entity engaging in price exploitation in relation to the carbon tax repeal.\n\n (2) The notice must:\n\n (a) be expressed to be given under this section; and\n\n (b) be expressed to relate to any supply that the entity makes that is:\n\n (i) of a kind specified in the notice; and\n\n (ii) made in circumstances specified in the notice; and\n\n (iii) made during the period specified in the notice (which must not be a period ending after the end of the carbon tax repeal transition period); and\n\n (c) specify the maximum price that, in the Commission’s opinion, may be charged for a supply to which the notice is expressed to relate.\n\n (3) The Commission may, on its own initiative or on application made by the entity:\n\n (a) vary the notice to:\n\n (i) change the period specified as required by subparagraph (2)(b)(iii); or\n\n (ii) change the price specified in the notice as required by paragraph (2)(c); or\n\n (b) revoke the notice.\n\nThe Commission must give the entity written notice of the variation or revocation.\n\n (4) The Commission may publish the notice, or particulars of any variation or revocation of the notice, in such manner as the Commission considers appropriate.\n\n (5) A notice under this section is not a legislative instrument.","sortOrder":1087},{"sectionNumber":"60F","sectionType":"section","heading":"Acquisition of property","content":"60F  Acquisition of property\n\nScope\n\n (1) This section applies to the following provisions of this Act:\n\n (a) section 60C;\n\n (b) any other provision to the extent to which it relates to section 60C.\n\nEffect of provision\n\n (2) The provision has no effect to the extent (if any) to which its operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).","sortOrder":1088},{"sectionNumber":"60FA","sectionType":"section","heading":"Carbon tax removal substantiation notices","content":"60FA  Carbon tax removal substantiation notices\n\nScope\n\n (1) This section applies to an entity if the entity:\n\n (a) is an electricity retailer that sells electricity to electricity customers; or\n\n (b) is a natural gas retailer that sells natural gas to natural gas customers; or\n\n (c) is a bulk SGG importer that sells synthetic greenhouse gas to SGG customers.\n\nCarbon tax removal substantiation notice\n\n (2) The Commission must, within 30 days after the Royal Assent day, by written notice given to the entity, require the entity:\n\n (a) to give to the Commission, within the period specified in the notice, a written statement that explains:\n\n (i) how the carbon tax repeal has affected, or is affecting, the entity’s regulated supply input costs; and\n\n (ii) how reductions in the entity’s regulated supply input costs that are directly or indirectly attributable to the carbon tax repeal are reflected in the prices charged by the entity for regulated supplies of electricity, natural gas or synthetic greenhouse gas; and\n\n (b) to do either or both of the following:\n\n (i) give to the Commission, within the period and in the manner and form specified in the notice, information that substantiates the explanation set out in the statement;\n\n (ii) produce to the Commission, within the period and in the manner specified in the notice, documents that substantiate the explanation set out in the statement.\n\n (3) A notice under subsection (2) is to be known as a carbon tax removal substantiation notice.\n\n (4) A period specified in a carbon tax removal substantiation notice must be 21 days after the notice is given.\n\n (5) A carbon tax removal substantiation notice must explain the effect of:\n\n (a) section 60FB; and\n\n (b) section 60FC; and\n\n (c) sections 137.1 and 137.2 of the Criminal Code.\n\nSection does not limit section 60H\n\n (6) This section does not limit section 60H (which is about the price‑related information‑gathering powers of the Commission).\n\nSection does not limit section 155\n\n (7) This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).","sortOrder":1090},{"sectionNumber":"60FB","sectionType":"section","heading":"Extending periods for complying with carbon tax removal substantiation notices","content":"60FB  Extending periods for complying with carbon tax removal substantiation notices\n\n (1) An entity that has been given a carbon tax removal substantiation notice may, at any time within 14 days after the notice was given to the entity by the Commission, apply in writing to the Commission for an extension of the period for complying with the notice.\n\n (2) The Commission may, by written notice given to the entity, extend the period within which the entity must comply with the notice, so long as the extension is for a period of not more than 28 days.","sortOrder":1091},{"sectionNumber":"60FC","sectionType":"section","heading":"Compliance with carbon tax removal substantiation notices","content":"60FC  Compliance with carbon tax removal substantiation notices\n\n (1) An entity that is given a carbon tax removal substantiation notice must comply with it within the applicable compliance period for the notice.\n\n (2) The applicable compliance period for a carbon tax removal substantiation notice is:\n\n (a) the period of 21 days specified in the notice; or\n\n (b) if the period for complying with the notice has been extended under section 60FB—the period as so extended;\n\nand includes (if an application has been made under section 60FB for an extension of the period for complying with the notice) the period up until the time when the applicant is given notice of the Commission’s decision on the application.\n\n (3) An entity commits an offence if:\n\n (a) the entity is subject to a requirement under subsection (1); and\n\n (b) the entity is capable of complying with the requirement; and\n\n (c) the entity omits to do an act; and\n\n (d) the omission breaches the requirement.\n\nPenalty: 200 penalty units.\n\n (4) Subsection (3) is an offence of strict liability.\n\nNote: For strict liability, see section 6.1 of the Criminal Code.\n\n (5) If subsection (3) of this section applies to an individual (whether or not because of subsection 6(2)), subsection (3) of this section has effect, in relation to the individual, as if the reference to 200 penalty units were a reference to 40 penalty units.\n\n (6) If subsection (1) of this section applies to an individual (whether or not because of subsection 6(2)), the individual is excused from giving information or producing a document in accordance with a carbon tax removal substantiation notice on the ground that the information or the production of the document might tend to incriminate the individual or expose the individual to a penalty.","sortOrder":1092},{"sectionNumber":"60FD","sectionType":"section","heading":"Carbon tax removal substantiation statements","content":"60FD  Carbon tax removal substantiation statements\n\nScope\n\n (1) This section applies to an entity if the entity:\n\n (a) is an electricity retailer that sells electricity to electricity customers; or\n\n (b) is a natural gas retailer that sells natural gas to natural gas customers; or\n\n (c) is a bulk SGG importer that sells synthetic greenhouse gas to SGG customers.\n\nCarbon tax removal substantiation statement\n\n (2) Within 30 days after the Royal Assent day, the entity must give to the Commission:\n\n (a) a written statement that sets out:\n\n (i) if the entity has electricity customers—the entity’s estimate, on an average annual percentage price basis, or an average annual dollar price basis, of the entity’s cost savings that have been, are, or will be, directly or indirectly attributable to the carbon tax repeal and that have been, are being, or will be, passed on to each class of electricity customers during the financial year that began on 1 July 2014; and\n\n (ii) if the entity has natural gas customers—the entity’s estimate, on an average annual percentage price basis, or an average annual dollar price basis, of the entity’s cost savings that have been, are, or will be, directly or indirectly attributable to the carbon tax repeal and that have been, are being, or will be, passed on to each class of natural gas customers during the financial year that began on 1 July 2014; and\n\n (iii) if the entity has SGG customers—the entity’s estimate, on an average annual percentage price basis, or an average annual dollar price basis, of the entity’s cost savings that have been, are, or will be, directly or indirectly attributable to the carbon tax repeal and that have been, are being, or will be, passed on to each class of SGG customers during the financial year that began on 1 July 2014; and\n\n (b) information that substantiates the estimate or estimates set out in the statement.\n\nNote: Section 137.1 of the Criminal Code creates an offence of providing false or misleading information.\n\n (3) A statement under paragraph (2)(a) is to be known as a carbon tax removal substantiation statement.\n\n (4) If the entity has given a carbon tax removal substantiation statement to the Commission, the entity must ensure that a copy of the statement is available on the entity’s website, in a way that is readily accessible by the public, until the end of 30 June 2015.\n\nCompliance\n\n (5) An entity commits an offence if:\n\n (a) the entity is subject to a requirement under subsection (2) or (4); and\n\n (b) the entity is capable of complying with the requirement; and\n\n (c) the entity omits to do an act; and\n\n (d) the omission breaches the requirement.\n\nPenalty: 500 penalty units.\n\n (6) Subsection (5) is an offence of strict liability.\n\nNote: For strict liability, see section 6.1 of the Criminal Code.\n\n (7) If subsection (5) of this section applies to an individual (whether or not because of subsection 6(2)), subsection (5) of this section has effect, in relation to the individual, as if the reference to 500 penalty units were a reference to 40 penalty units.\n\n (8) If subsection (2) of this section applies to an individual (whether or not because of subsection 6(2)), the individual is excused from giving an estimate or information under subsection (2) of this section on the ground that the estimate or information might tend to incriminate the individual or expose the individual to a penalty.\n\nSection does not limit section 60H\n\n (9) This section does not limit section 60H (which is about the price‑related information‑gathering powers of the Commission).\n\nSection does not limit section 155\n\n (10) This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).\n\nReport to Parliament\n\n (11) Within 13 months after the Royal Assent day, the Commission must report to Parliament in respect of compliance by all entities.","sortOrder":1094},{"sectionNumber":"60FE","sectionType":"section","heading":"Statements for customers","content":"60FE  Statements for customers\n\nScope\n\n (1) This section applies to an entity if the entity:\n\n (a) is an electricity retailer that sells electricity to electricity customers; or\n\n (b) is a natural gas retailer that sells natural gas to natural gas customers.\n\nPreparation of statement\n\n (2) Within 30 days after the Royal Assent day, the entity must prepare a statement that:\n\n (a) if the entity has electricity customers—identifies, on an average annual percentage price basis, or an average annual dollar price basis, the estimated cost savings, to each class of electricity customers, that:\n\n (i) have been, are, or will be, directly or indirectly attributable to the carbon tax repeal; and\n\n (ii) are for the financial year that began on 1 July 2014; and\n\n (b) if the entity has natural gas customers—identifies, on an average annual percentage price basis, or an average annual dollar price basis, the estimated cost savings, to each class of natural gas customers, that:\n\n (i) have been, are, or will be, directly or indirectly attributable to the carbon tax repeal; and\n\n (ii) are for the financial year that began on 1 July 2014.\n\nCommunication of contents of statement to customers\n\n (3) During the period:\n\n (a) beginning 30 days after the Royal Assent day; and\n\n (b) ending 60 days after the Royal Assent day;\n\nthe entity must ensure that the contents of the statement prepared by it under subsection (2) that relates to a class of electricity customers or natural gas customers is communicated to each customer of that class.\n\nNote: Section 137.1 of the Criminal Code creates an offence of providing false or misleading information.\n\nCompliance\n\n (4) An entity commits an offence if:\n\n (a) the entity is subject to a requirement under subsection (2) or (3); and\n\n (b) the entity is capable of complying with the requirement; and\n\n (c) the entity omits to do an act; and\n\n (d) the omission breaches the requirement.\n\nPenalty: 400 penalty units.\n\n (5) Subsection (4) is an offence of strict liability.\n\nNote: For strict liability, see section 6.1 of the Criminal Code.\n\n (6) If subsection (4) of this section applies to an individual (whether or not because of subsection 6(2)), subsection (4) of this section has effect, in relation to the individual, as if the reference to 400 penalty units were a reference to 40 penalty units.\n\n (7) If subsection (2) or (3) of this section applies to an individual (whether or not because of subsection 6(2)), the individual is excused from:\n\n (a) preparing a statement under subsection (2) of this section; or\n\n (b) communicating the contents of a statement under subsection (3) of this section;\n\non the ground that the information in the statement might tend to incriminate the individual or expose the individual to a penalty.","sortOrder":1096},{"sectionNumber":"60G","sectionType":"section","heading":"Commission may monitor prices in relation to the carbon tax repeal etc.","content":"60G  Commission may monitor prices in relation to the carbon tax repeal etc.\n\nPrice monitoring—carbon tax repeal transition period\n\n (1) The Commission may monitor prices to assess the general effect of the carbon tax repeal on prices charged by entities for supplies, in the carbon tax repeal transition period, of relevant goods.\n\nNote: For relevant goods, see subsection (11).\n\n (2) The Commission may monitor prices to assess the general effect of the carbon tax repeal on prices:\n\n (a) advertised; or\n\n (b) displayed; or\n\n (c) offered;\n\nfor supplies, in the carbon tax repeal transition period, of relevant goods by entities.\n\nNote: For relevant goods, see subsection (11).\n\n (3) The Commission may monitor prices to assess the general effect of the carbon tax repeal on prices charged for supplies, in the carbon tax repeal transition period, of goods by an entity for which there is an entry in the Information Database (within the meaning of the Clean Energy Act 2011).\n\n (4) The Commission may monitor prices to assess the general effect of the carbon tax repeal on prices:\n\n (a) advertised; or\n\n (b) displayed; or\n\n (c) offered;\n\nfor supplies, in the carbon tax repeal transition period, of goods by an entity for which there is an entry in the Information Database (within the meaning of the Clean Energy Act 2011).\n\nPrice monitoring—price exploitation\n\n (5) The Commission may monitor prices to assist the Commission’s consideration of whether an entity has engaged, is engaging, or may in the future engage, in price exploitation in relation to the carbon tax repeal.\n\nPrice monitoring—pre‑repeal transition period\n\n (6) The Commission may monitor prices to assess the general effect of the carbon tax scheme on prices charged by entities for supplies, in the pre‑repeal transition period, of relevant goods.\n\nNote 1: For pre‑repeal transition period, see subsection (13).\n\nNote 2: For relevant goods, see subsection (11).\n\n (7) The Commission may monitor prices to assess the general effect of the carbon tax scheme on prices:\n\n (a) advertised; or\n\n (b) displayed; or\n\n (c) offered;\n\nfor supplies, in the pre‑repeal transition period, of relevant goods by entities.\n\nNote 1: For pre‑repeal transition period, see subsection (13).\n\nNote 2: For relevant goods, see subsection (11).\n\n (8) The Commission may monitor prices to assess the general effect of the carbon tax scheme on prices charged for supplies, in the pre‑repeal transition period, of goods by an entity for which there is an entry in the Information Database (within the meaning of the Clean Energy Act 2011).\n\nNote: For pre‑repeal transition period, see subsection (13).\n\n (9) The Commission may monitor prices to assess the general effect of the carbon tax scheme on prices:\n\n (a) advertised; or\n\n (b) displayed; or\n\n (c) offered;\n\nfor supplies, in the pre‑repeal transition period, of goods by an entity for which there is an entry in the Information Database (within the meaning of the Clean Energy Act 2011).\n\nNote: For pre‑repeal transition period, see subsection (13).\n\nSection does not limit Part VIIA\n\n (10) This section does not limit Part VIIA (which is about prices surveillance).\n\nRelevant goods\n\n (11) For the purposes of this section, the following are relevant goods:\n\n (a) regulated goods;\n\n (b) other goods of a kind specified in a legislative instrument under subsection (12).\n\n (12) The Minister may, by legislative instrument, specify one or more kinds of goods for the purposes of paragraph (11)(b).\n\nPre‑repeal transition period\n\n (13) For the purposes of this section, pre‑repeal transition period means the period:\n\n (a) beginning at the commencement of this section; and\n\n (b) ending at the end of 30 June 2014.","sortOrder":1098},{"sectionNumber":"60H","sectionType":"section","heading":"Information-gathering powers","content":"60H  Information‑gathering powers\n\n (1) A member of the Commission may, by written notice given to a person, require the person:\n\n (a) to give the Commission specified information in writing signed by:\n\n (i) the person; or\n\n (ii) if the person is a body corporate—a competent officer of the body corporate; or\n\n (b) to produce to the Commission specified documents;\n\nif:\n\n (c) the information, or information contained in the documents, relates to prices or the setting of prices; and\n\n (d) the member reasonably believes that the information, or information contained in the documents, will or may be useful to the Commission in monitoring prices as mentioned in any of subsections 60G(1) to (9).\n\nNote: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.\n\n (2) Information or documents that may be required under subsection (1) may relate to prices, or the setting of prices:\n\n (a) before or after the carbon tax repeal; and\n\n (b) before or after the start of the carbon tax repeal transition period; and\n\n (c) in a situation, or during a period, specified in the notice.\n\n (3) Subsection (2) does not limit subsection (1).\n\n (4) A person commits an offence if:\n\n (a) the person is subject to a requirement under subsection (1); and\n\n (b) the person is capable of complying with the requirement; and\n\n (c) the person omits to do an act; and\n\n (d) the omission breaches the requirement.\n\nPenalty: 20 penalty units.\n\n (5) An individual is excused from giving information or producing a document in accordance with a requirement under subsection (1) on the ground that the information or the production of the document might tend to incriminate the individual or expose the individual to a penalty.\n\nSection does not limit section 60FA\n\n (5A) This section does not limit section 60FA (which is about carbon tax removal substantiation notices).\n\nSection does not limit section 155\n\n (6) This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).","sortOrder":1099},{"sectionNumber":"60J","sectionType":"section","heading":"Reporting","content":"60J  Reporting\n\n (1) The Commission must, within 28 days after the end of each quarter, give the Minister a written report about the operations of the Commission under this Part during the quarter.\n\n (2) A report under subsection (1) must include particulars of:\n\n (a) all notices given under section 60E during the quarter; and\n\n (b) all variations or revocations during the quarter of notices given under section 60E.\n\n (3) Subsection (2) does not limit subsection (1).\n\n (4) For the purposes of this section, a quarter is a period of 3 months:\n\n (a) that occurs wholly or partly during the carbon tax repeal transition period; and\n\n (b) that starts on any of the following days in a year:\n\n (i) 1 January;\n\n (ii) 1 April;\n\n (iii) 1 July;\n\n (iv) 1 October.\n\n (5) As soon as practicable after the Minister receives a report under subsection (1), the Minister must make the report public by such means as the Minister considers appropriate.\n\n (6) If this section commences during a quarter (but not on the first day of a quarter):\n\n (a) no report is to be made at the end of the quarter; but\n\n (b) the report made at the end of the next quarter is also to include the information required by subsections (1) and (2) in relation to the previous quarter.","sortOrder":1100},{"sectionNumber":"60K","sectionType":"section","heading":"False or misleading representations about the effect of the carbon tax repeal etc. on prices","content":"60K  False or misleading representations about the effect of the carbon tax repeal etc. on prices\n\n  An entity must not, in trade or commerce, in connection with:\n\n (a) the supply or possible supply of goods or services; or\n\n (b) the promotion by any means of the supply or use of goods or services;\n\nmake a false or misleading representation, during the carbon tax repeal transition period, concerning the effect of:\n\n (c) the carbon tax repeal or a part of the carbon tax repeal; or\n\n (d) the carbon tax scheme or a part of the carbon tax scheme;\n\non the price for the supply of the goods or services.","sortOrder":1102},{"sectionNumber":"60L","sectionType":"section","heading":"Issuing an infringement notice","content":"60L  Issuing an infringement notice\n\nIssuing an infringement notice\n\n (1) If the Commission has reasonable grounds to believe that a person has contravened an infringement notice provision, the Commission may issue an infringement notice to the person.\n\n (2) The Commission must not issue more than one infringement notice to the person for the same alleged contravention of the infringement notice provision.\n\n (3) The infringement notice does not have any effect if the notice:\n\n (a) is issued more than 12 months after the day on which the contravention of the infringement notice provision is alleged to have occurred; or\n\n (b) relates to more than one alleged contravention of an infringement notice provision by the person.\n\nMatters to be included in an infringement notice\n\n (4) An infringement notice must:\n\n (a) be identified by a unique number; and\n\n (b) state the day on which it is issued; and\n\n (c) state the name and address of the person to whom it is issued; and\n\n (d) identify the Commission; and\n\n (e) state how the Commission may be contacted; and\n\n (f) give details of the alleged contravention by the person, including:\n\n (i) the date of the alleged contravention; and\n\n (ii) the particular infringement notice provision that was allegedly contravened; and\n\n (g) state the maximum pecuniary penalty that the court could order the person to pay under section 76 for the alleged contravention; and\n\n (h) specify the penalty that is payable in relation to the alleged contravention; and\n\n (i) state that the penalty is payable within the infringement notice compliance period for the notice; and\n\n (j) state that the penalty is payable to the Commission on behalf of the Commonwealth; and\n\n (k) explain how payment of the penalty is to be made; and\n\n (l) explain the effect of sections 60M, 60N, 60P and 60Q.\n\nAmount of penalty\n\n (5) The penalty to be specified in an infringement notice that is to be issued to a person in relation to an alleged contravention of an infringement notice provision must be:\n\n (a) if the person is a listed corporation—600 penalty units; or\n\n (b) if the person is a body corporate other than a listed corporation—60 penalty units; or\n\n (c) if the person is not a body corporate—12 penalty units.","sortOrder":1104},{"sectionNumber":"60M","sectionType":"section","heading":"Effect of compliance with an infringement notice","content":"60M  Effect of compliance with an infringement notice\n\nScope\n\n (1) This section applies if:\n\n (a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and\n\n (b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and\n\n (c) the infringement notice is not withdrawn under section 60Q.\n\nEffect\n\n (2) The person is not, merely because of the payment, regarded as:\n\n (a) having contravened the infringement notice provision; or\n\n (b) having been convicted of an offence constituted by the same conduct that constituted the alleged contravention of the infringement notice provision.\n\n (3) No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to:\n\n (a) the alleged contravention of the infringement notice provision; or\n\n (b) an offence constituted by the same conduct that constituted the alleged contravention.","sortOrder":1105},{"sectionNumber":"60N","sectionType":"section","heading":"Effect of failure to comply with an infringement notice","content":"60N  Effect of failure to comply with an infringement notice\n\n  If:\n\n (a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and\n\n (b) the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and\n\n (c) the infringement notice is not withdrawn under section 60Q;\n\nthe person is liable to proceedings under Part VI in relation to the alleged contravention of the infringement notice provision.","sortOrder":1106},{"sectionNumber":"60P","sectionType":"section","heading":"Infringement notice compliance period for infringement notice","content":"60P  Infringement notice compliance period for infringement notice\n\n (1) The infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day on which the infringement notice is issued by the Commission.\n\n (2) Subsection (1) has effect subject to subsection (7).\n\n (3) The Commission may extend, by notice in writing, the infringement notice compliance period for the notice if the Commission is satisfied that it is appropriate to do so.\n\n (4) Only one extension may be given, and the extension must not be for longer than 28 days.\n\n (5) Notice of the extension must be given to the person who was issued the infringement notice.\n\n (6) A failure to comply with subsection (5) does not affect the validity of the extension.\n\n (7) If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.","sortOrder":1107},{"sectionNumber":"60Q","sectionType":"section","heading":"Withdrawal of an infringement notice","content":"60Q  Withdrawal of an infringement notice\n\nRepresentations to the Commission\n\n (1) A person to whom an infringement notice has been issued for an alleged contravention of an infringement notice provision may make written representations to the Commission seeking the withdrawal of the infringement notice.\n\n (2) Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).\n\nWithdrawal by the Commission\n\n (3) The Commission may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so.\n\n (4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal.\n\nContent of withdrawal notices\n\n (5) The withdrawal notice must state:\n\n (a) the name and address of the person; and\n\n (b) the day on which the infringement notice was issued to the person; and\n\n (c) that the infringement notice is withdrawn; and\n\n (d) that proceedings under Part VI may be started or continued against the person in relation to:\n\n (i) the alleged contravention the infringement notice provision; or\n\n (ii) an offence constituted by the same conduct that constituted the alleged contravention.\n\nTime limit for giving withdrawal notices\n\n (6) To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice.\n\nRefunds\n\n (7) If the infringement notice is withdrawn after the person has paid the penalty specified in the infringement notice, the Commission must, on behalf of the Commonwealth, refund to the person an amount equal to the amount paid.\n\nNote: For the appropriation for the refund, see section 77 of the Public Governance, Performance and Accountability Act 2013.","sortOrder":1108},{"sectionNumber":"60R","sectionType":"section","heading":"Effect of this Division","content":"60R  Effect of this Division\n\n  This Division does not:\n\n (a) require an infringement notice to be issued to a person for an alleged contravention of an infringement notice provision; or\n\n (b) affect the liability of a person to proceedings under Part VI in relation to an alleged contravention of an infringement notice provision if:\n\n (i) an infringement notice is not issued to the person for the alleged contravention; or\n\n (ii) an infringement notice issued to a person for the alleged contravention is withdrawn under section 60Q; or\n\n (c) prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice.\n\nChapter 5—Enforcement and remedies","sortOrder":1109},{"sectionNumber":"Part VI","sectionType":"part","heading":"Enforcement and remedies","content":"Part VI—Enforcement and remedies","sortOrder":1110},{"sectionNumber":"75B","sectionType":"section","heading":"Interpretation","content":"75B  Interpretation\n\n (1) A reference in this Part to a person involved in a contravention of a provision of Part IV, IVB, IVBA, IVBB or IVE, or of section 55B, subsection 56BN(1), 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1) or 56BZI(1), section 56BZJ, 60C, 60K or 92, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules, shall be read as a reference to a person who:\n\n (a) has aided, abetted, counselled or procured the contravention;\n\n (b) has induced, whether by threats or promises or otherwise, the contravention;\n\n (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or\n\n (d) has conspired with others to effect the contravention.\n\n (2) In this Part, unless the contrary intention appears:\n\n (a) a reference to the Court in relation to a matter is a reference to any court having jurisdiction in the matter;\n\n (b) a reference to the Federal Court is a reference to the Federal Court of Australia; and\n\n (c) a reference to a judgment is a reference to a judgment, decree or order, whether final or interlocutory.","sortOrder":1112},{"sectionNumber":"76","sectionType":"section","heading":"Pecuniary penalties","content":"76  Pecuniary penalties\n\n (1) If the Court is satisfied that a person:\n\n (a) has contravened any of the following provisions:\n\n (i) a provision of Part IV (other than section 45AF or 45AG);\n\n (iaa) a provision of Part IVBA specified in subsection (4A);\n\n (iab) subsection 53ZQ(1), (2) or (3), section 53ZV, subsection 53ZW(1) or a civil penalty provision of a gas market instrument; or\n\n (ia) section 55B;\n\n (ib) subsection 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1), section 56BZJ or a civil penalty provision of the consumer data rules;\n\n (ic) a provision of Part IVE;\n\n (ii) section 60C;\n\n (iia) section 60K;\n\n (iii) section 92;\n\n (iiia) a provision of Division 2 of Part XICA;\n\n (iiib) subsection 153ZEL(2);\n\n (iiic) paragraph 155(5)(b);\n\n (iv) a civil penalty provision of an industry code; or\n\n (b) has attempted to contravene such a provision; or\n\n (c) has aided, abetted, counselled or procured a person to contravene such a provision; or\n\n (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or\n\n (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n\n (f) has conspired with others to contravene such a provision;\n\nthe Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this Part or Part XIB to have engaged in any similar conduct.\n\nNote: 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).)\n\n (1A) The pecuniary penalty payable by a person under subsection (1) is not to exceed the amount worked out using the following table.\n\n\n\n- Amount of pecuniary penalty\n- Item For each act or omission to which this section applies that relates to … if the person is a body corporate—the pecuniary penalty is not to exceed … if the person is not a body corporate—the pecuniary penalty is not to exceed …\n- 1 section 45AJ or 45AK the greater of the amounts mentioned in subsection (1B) $2,500,000\n- 2 section 45D, 45DB, 45E or 45EA $750,000 (see subsection (2))\n- 3 any provision of Part IV not covered by items 1 and 2 of this table(see note 1) the greater of the amounts mentioned in subsection (1B) $2,500,000(for acts or omissions relating to section 45DA, see subsection (2))\n- 4 a civil penalty provision of an industry code the amount set out in the civil penalty provision of the industry code the amount set out in the civil penalty provision of the industry code\n- 5 a provision of Division 4 of Part IVBA 6,000 penalty units $500,000\n- 6 section 52ZC, 52ZH, 52ZS or 52ZZE the greater of the amounts mentioned in subsection (1B) $2,500,000\n- 7 any provision of Part IVBA not covered by items 5 and 6 of this table 600 penalty units $500,000\n- 7A subsection 53ZQ(1), (2) or (3) the greater of the amounts mentioned in subsection (1B) $2,500,000\n- 7B section 53ZV or subsection 53ZW(1) 3,000 penalty units 600 penalty units\n- 7C a civil penalty provision of a gas market instrument not covered by item 7D of this table the greater of the amounts mentioned in subsection (1B) $2,500,000\n- 7D a civil penalty provision of a gas market instrument that sets out at its foot a pecuniary penalty indicated by the words “Civil penalty” the lesser of:(a) the amount of the pecuniary penalty for a body corporate set out at the foot of the provision; and(b) the greater of the amounts mentioned in subsection (1B) the lesser of:(a) the amount of the pecuniary penalty for a person other than a body corporate set out at the foot of the provision; and(b) $2,500,000\n- 8 section 55B, 60C or 60K 6,471 penalty units 1,295 penalty units\n- 9 subsection 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1), section 56BZJ or a civil penalty provision of the consumer data rules not covered by item 10 of this table the greater of the amounts mentioned in subsection (1C) $500,000\n- 10 a civil penalty provision of the consumer data rules that sets out at its foot a pecuniary penalty indicated by the words “Civil penalty” the amount of the pecuniary penalty for a body corporate set out at the foot of the provision the amount of the pecuniary penalty for a person other than a body corporate set out at the foot of the provision\n- 11 a civil penalty provision of Part IVE described by section 57GA the number of penalty units for a body corporate set out at the foot of the provision the number of penalty units for a person other than a body corporate set out at the foot of the provision\n- 12 section 92 $33,000 $6,600\n- 13 a provision of Division 2 of Part XICA the greater of the amounts mentioned in subsection (1B) $2,500,000(see note 2)\n- 13A subsection 153ZEL(2) 600 penalty units $500,000\n- 13B paragraph 155(5)(b) 1,000 penalty units 200 penalty units\n- 14 any other provision to which this section applies $10,000,000 $500,000\n\n\nNote 1: Item 3 also applies to pecuniary penalties ordered under subsection (1) in respect of an act or omission that relates to subsection 10.49A(1), 10.60(1) or 10.65(1): see subsection 10.49A(2), 10.60(2) or 10.65(2).\n\nNote 2: Pecuniary penalties may not be ordered under subsection (1) against certain individuals in relation to contraventions of section 153E, 153F, 153G or 153H in certain circumstances: see section 153ZD.\n\n (1B) For the purposes of items 1, 3, 6, 7A, 7C, 7D and 13 of the table in subsection (1A), the amounts are as follows:\n\n (a) $100,000,000;\n\n (b) if item 1 or 13 of the table applies, and the Court can determine the total value of the benefits that have been obtained (within the meaning of Division 1 of Part IV) by one or more persons and that are reasonably attributable to the act or omission—3 times that total value;\n\n (c) if item 3, 6, 7A, 7C or 7D of the table applies, and the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;\n\n (d) if the Court cannot determine the value of those benefits or that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the act or omission.\n\n (1C) For the purposes of item 9 of the table in subsection (1A), the amounts are as follows:\n\n (a) $10,000,000;\n\n (b) if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;\n\n (c) if the Court cannot determine the value of that benefit—10% of the body corporate’s adjusted turnover during the 12‑month period ending at the end of the month in which the act or omission occurred or started to occur.\n\n (2) Nothing in subsection (1) authorises the making of an order against an individual because the individual has contravened or attempted to contravene, or been involved in a contravention of, section 45D, 45DA, 45DB, 45E or 45EA.\n\n (3) If conduct constitutes a contravention of two or more provisions of Part IV (other than section 45AF or 45AG), or two or more provisions of section 53ZQ, a proceeding may be instituted under this Act against a person in relation to the contravention of any one or more of the provisions but a person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.\n\n (4) The single pecuniary penalty that may be imposed in accordance with subsection (3) in respect of conduct that contravenes provisions to which 2 or more of the limits in items 1, 2 and 3 of the table in subsection (1A) apply is an amount up to the highest of those limits.\n\n (4AA) Subsection (3) does not apply to conduct to the extent it constitutes a contravention of both:\n\n (a) section 45AW; and\n\n (b) section 45AY.\n\nSpecified provisions of Part IVBA\n\n (4A) For the purposes of subparagraph 76(1)(a)(iaa), the following provisions of Part IVBA are specified:\n\n (a) section 52J;\n\n (b) section 52ZI;\n\n (c) a provision of Division 4 of Part IVBA;\n\n (d) section 52ZC;\n\n (e) section 52ZH;\n\n (f) section 52ZS;\n\n (g) subsection 52ZT(5);\n\n (h) subsection 52ZV(3);\n\n (i) section 52ZZE;\n\n (j) subsection 52ZZF(1).","sortOrder":1114},{"sectionNumber":"76A","sectionType":"section","heading":"Defence to proceedings under section 76 relating to a contravention of section 92","content":"76A  Defence to proceedings under section 76 relating to a contravention of section 92\n\n (1) In this section:\n\ncontravention, in relation to a section, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section.\n\n (2) In proceedings against a person (the respondent) under section 76 in relation to an alleged contravention of section 92, it is a defence if the respondent establishes:\n\n (a) that the contravention in respect of which the proceedings were instituted was due to reasonable mistake; or\n\n (b) that the contravention in respect of which the proceedings were instituted was due to reasonable reliance on information supplied by another person; or\n\n (c) that:\n\n (i) the contravention in respect of which the proceedings were instituted was due to the act or default of another person, to an accident or to some other cause beyond the respondent’s control; and\n\n (ii) the respondent took reasonable precautions and exercised due diligence to avoid the contravention.\n\n (3) In paragraphs (2)(b) and (c), another person does not include a person who was:\n\n (a) a servant or agent of the respondent; or\n\n (b) if the respondent is a body corporate—a director, servant or agent of the respondent;\n\nat the time when the alleged contravention occurred.","sortOrder":1115},{"sectionNumber":"76B","sectionType":"section","heading":"Consequences in some cases if substantially the same conduct contravenes a provision of this Act and is an offence","content":"76B  Consequences in some cases if substantially the same conduct contravenes a provision of this Act and is an offence\n\n (1) In this section:\n\ncontravention, 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.\n\npecuniary penalty order means an order under section 76 for the payment of a pecuniary penalty.\n\n (2) The Court must not make a pecuniary penalty order against a person in relation to a contravention of Part IV, subsection 56BO(1) or section 56BZJ or 92 if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.\n\n (3) Proceedings for a pecuniary penalty order against a person in relation to a contravention of Part IV, subsection 56BO(1) or section 56BZJ or 92 are stayed if:\n\n (a) criminal proceedings are started or have already been started against the person for an offence; and\n\n (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.\n\nThe proceedings for the pecuniary penalty order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.\n\n (4) Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of Part IV, subsection 56BO(1) or section 56BZJ or 92 regardless of whether a pecuniary penalty order has been made against the person in respect of the contravention.\n\n (5) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:\n\n (a) the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of Part IV, subsection 56BO(1) or section 56BZJ or 92 (whether or not the order was made); and\n\n (b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.\n\nHowever, 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.\n\n (6) In this section:\n\noffence means an offence against a law of the Commonwealth, a State or a Territory.","sortOrder":1116},{"sectionNumber":"77","sectionType":"section","heading":"Civil action for recovery of pecuniary penalties","content":"77  Civil action for recovery of pecuniary penalties\n\n (1) The Commission may institute a proceeding in the Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 76.\n\n (2) A proceeding under subsection (1) may be commenced within 6 years after the contravention.","sortOrder":1117},{"sectionNumber":"77A","sectionType":"section","heading":"Indemnification of officers","content":"77A  Indemnification of officers\n\n (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:\n\n (a) a civil liability;\n\n (b) legal costs incurred in defending or resisting proceedings in which the person is found to have such a liability.\n\nPenalty: 25 penalty units.\n\n (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.\n\nDefinitions\n\n (3) In this section:\n\ncivil liability means a liability to pay a pecuniary penalty under section 76 for a contravention of a provision of Part IV or Part V.\n\nofficer has the same meaning as in the Corporations Act 2001.","sortOrder":1118},{"sectionNumber":"77B","sectionType":"section","heading":"Certain indemnities not authorised and certain documents void","content":"77B  Certain indemnities not authorised and certain documents void\n\n (1) Section 77A does not authorise anything that would otherwise be unlawful.\n\n (2) Anything that purports to indemnify a person against a liability is void to the extent that it contravenes section 77A.","sortOrder":1119},{"sectionNumber":"77C","sectionType":"section","heading":"Application of section 77A to a person other than a body corporate","content":"77C  Application of section 77A to a person other than a body corporate\n\n  If, as a result of the operation of Part 2.4 of the Criminal Code, a person other than a body corporate is:\n\n (a) convicted of an offence (the relevant offence) against subsection 77A(1) of this Act; or\n\n (b) convicted of an offence (the relevant offence) against section 11.4 of the Criminal Code in relation to an offence referred to in subsection 77A(1) of this Act;\n\nthe relevant offence is taken to be punishable on conviction by a fine not exceeding 5 penalty units.","sortOrder":1120},{"sectionNumber":"77D","sectionType":"section","heading":"Orders relating to void acquisitions","content":"77D  Orders relating to void acquisitions\n\n (1) This section applies if an acquisition:\n\n (a) is void to any extent by force of subsection 45AZA(2); or\n\n (b) would be void to any extent by force of that subsection apart from an order under this section.\n\n (2) The Federal Court may, on the application of the Commission or any other person, make any of the following orders that the Court believes appropriate:\n\n (a) an order that subsection 45AZA(2) is to be taken not to apply, and never to have applied, to the acquisition;\n\n (b) such other order as the Court believes appropriate (including, if the Court does not make any order under paragraph (a), such other order as the Court believes appropriate to give effect to the voiding or to deal with the consequences of the voiding).\n\n (3) The application may be made:\n\n (a) at any time no later than 6 years after the acquisition was put into effect or purportedly put into effect; or\n\n (b) at a later time:\n\n (i) with the leave of the Court and subject to any conditions imposed by the Court; and\n\n (ii) so long as the application is only for an order to deal with the consequences of the voiding.\n\n (4) Before making an order under paragraph (2)(a), the Court must have regard to the seriousness of the related contravention of section 45AY, including the effect of the contravention on persons who are not parties to the acquisition.\n\n (5) If an application is made under subsection (2) by a person other than the Commission:\n\n (a) the Court must give a copy of the application to the Commission; and\n\n (b) the Commission may intervene in the proceedings on the application.\n\n (6) If the Commission intervenes in a proceeding under paragraph (5)(b), the Commission is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.","sortOrder":1122},{"sectionNumber":"77E","sectionType":"section","heading":"Orders relating to acquisitions that were not notified even though they were required to be","content":"77E  Orders relating to acquisitions that were not notified even though they were required to be\n\nOrder declaring an acquisition to be void\n\n (1) The Federal Court must, on the application of the Commission, make an order declaring that an acquisition is, and is taken always to have been, void if the Court is satisfied that the acquisition:\n\n (a) is stayed because of subsection 51ABE(2); and\n\n (b) is put into effect;\n\nunless the Court believes it is undesirable to make the order.\n\nNote: Subsection 51ABE(2) applies if the acquisition is required to be notified, but is not a notified acquisition.\n\nOther orders such as divestiture orders\n\n (2) The Federal Court may, on the application of the Commission, make such orders (other than an order described in subsection (1)) as the Court believes are desirable to deal with an acquisition that the Court is satisfied:\n\n (a) is stayed because of subsection 51ABE(2); and\n\n (b) is put into effect.\n\nExample: An order for the divestiture of shares or assets.\n\nNote: Subsection 51ABE(2) applies if the acquisition is required to be notified, but is not a notified acquisition.\n\nOrders giving effect to, or dealing with the consequences of, a voiding order\n\n (3) The Federal Court may, on the application of the Commission or any other person, make such orders as the Court believes are desirable to give effect to, or to deal with the consequences of, an order made under subsection (1) about an acquisition.\n\nTiming for applying for orders\n\n (4) An application under subsection (1), (2) or (3) must be made no later than 6 years after the acquisition was put into effect.\n\nMatters to which the Court must not have regard\n\n (5) In determining whether to make an order under subsection (1), (2) or (3), the Court must not have regard to any of the following:\n\n (a) whether the acquisition would or could, in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in any market;\n\n (b) whether the acquisition would or could, in all the circumstances, result, or be likely to result, in a benefit to the public;\n\n (c) whether a benefit described in paragraph (b) would or could, in all the circumstances, outweigh the detriment to the public that would result, or be likely to result, from the acquisition.\n\nNote: For lessening of competition, see section 4G.\n\nCommission may intervene in proceedings\n\n (6) If an application is made under subsection (3) by a person other than the Commission:\n\n (a) the Court must give a copy of the application to the Commission; and\n\n (b) the Commission may intervene in the proceedings on the application.\n\n (7) If the Commission intervenes in a proceeding under paragraph (6)(b), the Commission is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.","sortOrder":1123},{"sectionNumber":"77F","sectionType":"section","heading":"Injunctions relating to acquisitions for which orders may be, or are being, sought under section 77E","content":"77F  Injunctions relating to acquisitions for which orders may be, or are being, sought under section 77E\n\n (1) This section applies if the Commission:\n\n (a) is investigating whether an order could be sought under subsection 77E(1) or (2) in relation to an acquisition; or\n\n (b) is applying for an order under subsection 77E(1) or (2) in relation to an acquisition.\n\n (2) The Federal Court may, on the application of the Commission, grant an injunction restraining a person from engaging in conduct if the Court is of the opinion that it is desirable to do so:\n\n (a) if paragraph (1)(a) applies—pending the outcome of the Commission’s investigation; or\n\n (b) if paragraph (1)(b) applies—pending the determination of the application for an order under subsection 77E(1) or (2).\n\n (3) The Court may rescind or vary such an injunction.\n\n (4) The power of the Court to grant such an injunction restraining a person from engaging in conduct may be exercised:\n\n (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and\n\n (b) whether or not the person has previously engaged in conduct of that kind; and\n\n (c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.\n\n (5) The Court must not require the Commission or any other person, as a condition of granting such an injunction, to give any undertakings as to damages.","sortOrder":1124},{"sectionNumber":"77G","sectionType":"section","heading":"Orders may include directions relating to registers of titles","content":"77G  Orders may include directions relating to registers of titles\n\n (1) For the purposes of (but without limiting) paragraph 77D(2)(b) or subsection 77E(2) or (3), the Federal Court may make an order directing a person to take steps under a State or Territory law to arrange for:\n\n (a) a transfer of title to an asset; and\n\n (b) a related amendment of any applicable register of titles.\n\n (2) Such an order cannot direct an officer or employee of a department, body or authority of a State or Territory whose duties relate to such a register.","sortOrder":1125},{"sectionNumber":"78","sectionType":"section","heading":"Criminal proceedings not to be brought for contraventions of Part IV","content":"78  Criminal proceedings not to be brought for contraventions of Part IV\n\n  Criminal proceedings do not lie against a person by reason only that the person:\n\n (a) has contravened a provision of Part IV (other than section 45AF or 45AG); or\n\n (b) has attempted to contravene such a provision;\n\n (c) has aided, abetted, counselled or procured a person to contravene such a provision;\n\n (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision;\n\n (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n\n (f) has conspired with others to contravene such a provision.","sortOrder":1127},{"sectionNumber":"79","sectionType":"section","heading":"Offences against section 45AF or 45AG","content":"79  Offences against section 45AF or 45AG\n\n (1) A person who:\n\n (aa) attempts to contravene; or\n\n (a) aids, abets, counsels or procures a person to contravene; or\n\n (b) induces, or attempts to induce, a person (whether by threats or promises or otherwise) to contravene; or\n\n (c) is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of; or\n\n (d) conspires with others to contravene;\n\na cartel offence provision is taken to have contravened that provision and is punishable:\n\n (e) in a case where:\n\n (i) the provision is a cartel offence provision; and\n\n (ii) the person is not a body corporate;\n\n  by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both; or\n\n (f) in any other case—accordingly.\n\n (1AA) For the purposes of the application of subsection (1) to a case where:\n\n (a) the provision is a cartel offence provision; and\n\n (b) the person is a body corporate other than a corporation;\n\nassume that each reference in paragraph 45AF(3)(c) or 45AG(3)(c) to a corporation were read as a reference to a body corporate.\n\n (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.\n\n (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.\n\n (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.\n\n (5) Subsections 11.1(1), 11.2(1), 11.2A(1), 11.4(1) and 11.5(1) of the Criminal Code do not apply in relation to an offence against a cartel offence provision.\n\n (7) In this section:\n\ncartel offence provision means section 45AF or 45AG.","sortOrder":1128},{"sectionNumber":"79A","sectionType":"section","heading":"Enforcement and recovery of certain fines","content":"79A  Enforcement and recovery of certain fines\n\n (1) If:\n\n (a) a fine has been imposed on a person for:\n\n (i) an offence against section 44AAFB, 45AF or 45AG, subsection 56BN(1) or 56BZI(1) or section 154Q or 155; or\n\n (ii) an offence against section 149.1 of the Criminal Code that relates to Part XID; and\n\n (b) the person defaults in payment of the fine;\n\na Court may:\n\n (c) exercise any power that the Court has apart from this section with respect to the enforcement and recovery of fines imposed by the Court; or\n\n (d) make an order, on the application of the Minister, the Commission or (in the case of an offence against section 44AAFB) the AER declaring that the fine is to have effect, and may be enforced, as if it were a judgment debt under a judgment of the Court.\n\n (2) Where a person in relation to whom an order is made under subsection (1) in respect of a fine gives security for the payment of the fine, the Court shall cancel the order in respect of the fine.\n\n (3) Where the Court makes an order in relation to a person in respect of a fine, the Court may, at any time before the order is executed in respect of the fine, allow the person a specified time in which to pay the fine or allow the person to pay the fine by specified instalments, and, in that case:\n\n (a) the order shall not be executed unless the person fails to pay the fine within that time or fails to pay an instalment at or before the time when it becomes payable, as the case may be; and\n\n (b) if the person pays the fine within that time or pays all the instalments, as the case may be, the order shall be deemed to have been discharged in respect of the fine.\n\n (4) Subject to subsection (7), an order under subsection (1) in respect of a fine ceases to have effect:\n\n (a) on payment of the fine; or\n\n (b) if the fine is not paid—on full compliance with the order.\n\n (5) The term of a sentence of imprisonment imposed by an order under a law of a State or Territory applied by section 15A of the Crimes Act 1914 (including an order described in subsection 15A(1AA) of that Act) in respect of a fine shall be calculated at the rate of one day’s imprisonment for each $25 of the amount of the fine that is from time to time unpaid.\n\n (6) Subject to subsection (7), where a person is required to serve periods of imprisonment by virtue of an order or orders under subsection (1) in respect of 2 or more fines, those periods of imprisonment shall be served consecutively.\n\n (7) Subject to subsection (8), where:\n\n (a) a person would, but for this subsection, be required by virtue of an order or orders under subsection (1) in respect of 3 or more fines to serve periods of imprisonment in respect of those fines exceeding in the aggregate 3 years; and\n\n (b) those fines were imposed (whether or not in the same proceedings) for offences constituted by contraventions that occurred within a period of 2 years, being contraventions that appear to the Court to have been of the same nature or a substantially similar nature;\n\nthe 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.\n\n (8) Where subsection (7) would, but for this subsection, apply to a person with respect to offences committed by the person within 2 or more overlapping periods of 2 years, the Court shall make an order under that subsection with respect to one only of those periods, being whichever period would give the person the maximum benefit from the application of that subsection.\n\n (9) For the purposes of subsection (8), the Court may vary or revoke an order made under subsection (7).\n\n (11) This section applies only in relation to fines imposed for offences committed after the commencement of this section.","sortOrder":1130},{"sectionNumber":"79B","sectionType":"section","heading":"Preference must be given to compensation for victims","content":"79B  Preference must be given to compensation for victims\n\n  If the Court considers that:\n\n (a) it is appropriate to order a person (the defendant):\n\n (i) to pay a pecuniary penalty under section 76; or\n\n (ii) to impose a fine under section 45AF or 45AG or subsection 56BN(1) or 56BZI(1);\n\n  in respect of a contravention, or an involvement in a contravention, of this Act, a gas market instrument or the consumer data rules; and\n\n (b) it is appropriate to order the defendant to pay compensation to a person who has suffered loss or damage in respect of the contravention or the involvement; and\n\n (c) the defendant does not have sufficient financial resources to pay both the pecuniary penalty or fine and the compensation;\n\nthe Court must give preference to making an order for compensation.","sortOrder":1131},{"sectionNumber":"80","sectionType":"section","heading":"Injunctions","content":"80  Injunctions\n\n (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:\n\n (a) a contravention of any of the following provisions:\n\n (i) a provision of Part IV;\n\n (ii) a provision of Division 2 or 5 of Part IVB;\n\n (iiaa) a provision of Part IVBA;\n\n (iiab) subsection 53ZQ(1), (2) or (3), section 53ZV, subsection 53ZW(1) or a civil penalty provision of a gas market instrument;\n\n (iia) section 55B;\n\n (iib) subsection 56BN(1), 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1) or 56BZI(1), section 56BZJ or a civil penalty provision of the consumer data rules;\n\n (iic) a provision of Division 3 of Part IVE;\n\n (iii) section 60C;\n\n (iv) section 60K;\n\n (v) a provision of Division 2 of Part XICA;\n\n (vi) section 153ZEL; or\n\n (b) attempting to contravene such a provision; or\n\n (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or\n\n (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or\n\n (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n\n (f) conspiring with others to contravene such a provision;\n\nthe Court may grant an injunction in such terms as the Court determines to be appropriate.\n\nNote: 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).)\n\n (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).\n\n (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, Subdivision B of Division 1A of Part IV or section 50, 60C or 60K.\n\n (1AAA) Subject to subsection (1B), a person other than the Minister or the Commission may not apply for an injunction on the ground of:\n\n (a) a person’s actual, attempted or proposed contravention of section 50A; or\n\n (b) a person’s actual or proposed involvement in a contravention of section 50A.\n\n (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.\n\n (2) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).\n\n (3) The Court may rescind or vary an injunction granted under subsection (1) or (2).\n\n (4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:\n\n (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;\n\n (b) whether or not the person has previously engaged in conduct of that kind; and\n\n (c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.\n\n (5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:\n\n (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;\n\n (b) whether or not the person has previously refused or failed to do that act or thing; and\n\n (c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that act or thing.\n\n (6) Where the Minister or the Commission makes an application to the Court for the grant of an injunction under this section, the Court shall not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.\n\n (6A) Subsection (6) does not apply to an application by the Minister for an injunction relating to Part IV.\n\n (7) Where:\n\n (a) in a case to which subsection (6) does not apply the Court would, but for this subsection, require a person to give an undertaking as to damages or costs; and\n\n (b) the Minister gives the undertaking;\n\nthe Court shall accept the undertaking by the Minister and shall not require a further undertaking from any other person.\n\n (8) Subsection (7) does not apply in relation to an application for an injunction relating to Part IV.\n\n (9) If the Director of Public Prosecutions makes an application to the Court for the grant of an injunction under this section in relation to:\n\n (a) a person’s contravention, or proposed contravention, of section 45AF or 45AG or subsection 56BN(1) or 56BZI(1); or\n\n (b) a person’s involvement, or proposed involvement, in a contravention of section 45AF or 45AG or subsection 56BN(1) or 56BZI(1);\n\nthe 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.","sortOrder":1132},{"sectionNumber":"80A","sectionType":"section","heading":"Price exploitation in relation to the carbon tax repeal—orders limiting prices or requiring refunds of money","content":"80A  Price exploitation in relation to the carbon tax repeal—orders limiting prices or requiring refunds of money\n\n (1) If, on the application of the Commission, the Court is satisfied that a person has engaged in conduct constituting a contravention of section 60C, the Court may make either or both of the following orders:\n\n (a) an order requiring that person, or a person involved in the contravention, not to make a regulated supply of a kind specified in the order for a price in excess of the price specified in the order while the order remains in force;\n\n (b) an order requiring that person, or a person involved in the contravention, to refund money to a person specified in the order.\n\nNote: Section 60C is about price exploitation in relation to the carbon tax repeal.\n\n (2) This section does not limit section 80.\n\n (3) In this section:\n\nprice has the same meaning as in Part V.\n\nregulated supply has the same meaning as in Part V.","sortOrder":1133},{"sectionNumber":"80AB","sectionType":"section","heading":"Stay of injunctions","content":"80AB  Stay of injunctions\n\n (1) The Court may stay the operation of an injunction granted under section 80 if:\n\n (a) the injunction is in respect of conduct that constitutes or would constitute a contravention of subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA or an associated contravention; and\n\n (b) there is a proceeding in respect of a dispute relating to the conduct pending before a court, tribunal or authority of a State or Territory under a prescribed provision of a law of the State or Territory; and\n\n (c) the conduct relates to the supply of goods or services to, or the acquisition of goods or services from, a person who is or becomes a party to the proceeding referred to in paragraph (b); and\n\n (d) any of the following has applied for the stay:\n\n (i) a Minister of the Commonwealth;\n\n (ii) if subparagraph (b)(ii) applies—a Minister of the State or Territory concerned;\n\n (iii) a party to the proceeding for the injunction; and\n\n (e) the Court considers that granting the stay:\n\n (i) would be likely to facilitate the settlement of the dispute by conciliation; and\n\n (ii) would, in all the circumstances, be just.\n\n (2) An order staying the operation of the injunction may be expressed to have effect for a specified period and may be varied or rescinded by the Court at any time.\n\n (3) If the proceeding referred to in paragraph (1)(b) is terminated because the State or Territory court, tribunal or authority has settled the dispute to which the conduct relates by conciliation, the Court must not make any order in relation to the costs of the proceedings in respect of the granting of the injunction or in relation to the costs of any proceedings for the rescission of the injunction.\n\n (4) Nothing in this section affects other powers of the Court.\n\n (5) In this section:\n\nassociated contravention means:\n\n (a) attempting to contravene subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA; or\n\n (b) aiding, abetting, counselling or procuring a person to contravene any of those provisions; or\n\n (c) inducing, or attempting to induce, a person (whether by threats, promises or otherwise) to contravene any of those provisions; or\n\n (d) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of any of those provisions; or\n\n (e) conspiring with others to contravene any of those provisions.\n\ninjunction includes an interim injunction.","sortOrder":1134},{"sectionNumber":"80AC","sectionType":"section","heading":"Injunctions to prevent mergers if authorisation granted on the basis of false or misleading information","content":"80AC  Injunctions to prevent mergers if authorisation granted on the basis of false or misleading information\n\n  If, on the application of the Commission, the Court is satisfied that:\n\n (a) a person is proposing to acquire shares in the capital of a body corporate or assets of a person; and\n\n (b) the person was granted a merger authorisation for the proposed acquisition on the basis of information that was false or misleading in a material particular; and\n\n (c) that information was given by the person or a body corporate that was related to the person; and\n\n (d) if that information had not been given, the authorisation would not have been granted; and\n\n (e) apart from the authorisation, the acquisition would contravene section 50 if it occurred;\n\nthen the Court may grant an injunction in such terms as the Court determines to be appropriate.","sortOrder":1135},{"sectionNumber":"80AD","sectionType":"section","heading":"Injunctions if acquisition determinations made on the basis of false or misleading information","content":"80AD  Injunctions if acquisition determinations made on the basis of false or misleading information\n\n  If, on the application of the Commission, the Federal Court is satisfied that:\n\n (a) a person is proposing to put an acquisition into effect; and\n\n (b) the Commission made an acquisition determination under paragraph 51ABZE(1)(a) or 51ABZW(1)(a) in respect of a notification of the acquisition on the basis of information that was false or misleading in a material particular; and\n\n (c) the information was material to the Commission making the determination; and\n\n (d) that information was given by:\n\n (i) the person; or\n\n (ii) if the person is a body corporate—a body corporate that was related to the person; and\n\n (e) apart from the determination, putting the acquisition into effect would contravene Subdivision B of Division 1A of Part IV;\n\nthen the Court may grant an injunction in such terms as the Court determines to be appropriate.","sortOrder":1136},{"sectionNumber":"81","sectionType":"section","heading":"Divestiture where merger contravenes section 50 or 50A","content":"81  Divestiture where merger contravenes section 50 or 50A\n\n (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.\n\n (1A) Where:\n\n (a) the Court finds, in a proceeding instituted under this Part, that a person (in this subsection referred to as the acquirer) has acquired shares in the capital of a body corporate or any assets of a person in contravention of section 50;\n\n (b) the Court finds, whether in that proceeding or any other proceeding instituted under this Part, that the person (in this section referred to as the vendor) from whom the acquirer acquired those shares or those assets, as the case may be, was involved in the contravention; and\n\n (c) at the time when the finding referred to in paragraph (b) is made, any of those shares or those assets, as the case may be, are vested in the acquirer or, if the acquirer is a body corporate, in any body corporate that is related to the acquirer;\n\nthe 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:\n\n (d) the shares or the assets to which the declaration relates shall be deemed not to have been disposed of by the vendor; and\n\n (e) the vendor shall refund to the acquirer any amount paid to the vendor in respect of the acquisition of the shares or assets to which the declaration relates.\n\n (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.\n\n (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.\n\n (2) An application under subsection (1), (1A) or (1B) may be made at any time within 3 years after the date on which the contravention occurred.\n\n (3) Where an application for directions under subsection (1) or for a declaration under subsection (1A) has been made, whether before or after the commencement of this subsection, the Court may, if the Court determines it to be appropriate, give directions or make a declaration by consent of all the parties to the proceedings, whether or not the Court has made the findings referred to in subsections (1) and (1A).","sortOrder":1137},{"sectionNumber":"81A","sectionType":"section","heading":"Divestiture where merger done under authorisation granted on false etc. information","content":"81A  Divestiture where merger done under authorisation granted on false etc. information\n\nCircumstances when this section applies\n\n (1) This section applies if the Court is satisfied that:\n\n (a) a person (the acquirer) has acquired shares in the capital of a body corporate or assets of another person; and\n\n (b) before the acquisition, the acquirer was granted a merger authorisation for the acquisition on the basis of information that was false or misleading in a material particular; and\n\n (c) that information was provided by the acquirer or a body corporate that was related to the acquirer; and\n\n (d) the Court or another court has found that the acquirer or related body corporate has contravened section 92 or Part 7.4 of the Criminal Code by giving that information; and\n\n (e) if that information had not been given, the authorisation would not have been granted; and\n\n (f) apart from the authorisation, the acquisition would have contravened section 50; and\n\n (g) any or all of those shares or assets are vested in the acquirer, the related body corporate or any other body corporate that is related to the acquirer.\n\nDivestiture by the acquirer and related bodies corporate\n\n (2) The Court may, on the application of the Commission, by order, give directions for the purpose of securing the disposal of all or any of those shares or assets by the acquirer, the related body corporate or any other body corporate that is related to the acquirer.\n\nDeclaration that acquisition void—when vendor involved\n\n (4) In addition to being satisfied of the matters in subsection (1), if the Court, or another court, has found that the person (the vendor) from whom the acquirer acquired the shares or assets was involved in the contravention referred to in paragraph (1)(d), then the Court may, on the application of the Commission, by order, declare that the acquisition, in so far as it relates to those shares or assets, is void as from the day on which it occurred.\n\n (5) If the Court makes an order under subsection (4), then:\n\n (a) the shares or assets to which the declaration relates are taken not to have been disposed of by the vendor; and\n\n (b) the vendor must refund to the acquirer any amount paid to the vendor for acquiring the shares or assets.\n\nAlternative to orders under subsections (2) and (4)\n\n (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.\n\nWhen application for orders under this section must be made\n\n (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.\n\nCourt may make orders even if not satisfied of all matters\n\n (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:\n\n (a) for an order under subsection (2)—the matters in subsection (1); and\n\n (b) for an order under subsection (4)—the matters in subsections (1) and (4).","sortOrder":1138},{"sectionNumber":"81B","sectionType":"section","heading":"Divestiture etc. if acquisition determinations made on false etc. information or conditions not complied with","content":"81B  Divestiture etc. if acquisition determinations made on false etc. information or conditions not complied with\n\n (1) This section applies in relation to a notification of an acquisition if the Federal Court is satisfied that:\n\n (a) as part of putting the acquisition into effect, a notifying party of the notification, or a related body corporate, acquired a thing (including a share in the capital of a body corporate, any assets of a person or a thing determined under paragraph 51ABB(2)(a)); and\n\n (b) the Commission made an acquisition determination in respect of the notification; and\n\n (c) apart from the determination, putting the acquisition into effect would have contravened Subdivision B of Division 1A of Part IV; and\n\n (d) subsection (2) or (3) applies.\n\n (2) This subsection applies if:\n\n (a) the Commission made the determination on the basis of information that was false or misleading in a material particular; and\n\n (b) the information was material to the Commission making the acquisition determination; and\n\n (c) the information was given by:\n\n (i) the notifying party of the notification; or\n\n (ii) a related body corporate; and\n\n (d) the Court or another court has found that the person who gave the information contravened section 45AZB of this Act or Part 7.4 of the Criminal Code by giving that information.\n\n (3) This subsection applies if:\n\n (a) putting the acquisition into effect is subject to a condition; and\n\n (b) the condition is not complied with.\n\nDivestiture\n\n (4) The Federal Court may, on the application of the Commission, by order, give directions for the purpose of securing the disposal of anything acquired as mentioned in paragraph (1)(a).\n\nDeclaration that acquisition void\n\n (5) The Federal Court may, on the application of the Commission, by order, declare that the acquisition mentioned in paragraph (1)(a) is void as from the day on which it occurred.\n\n (6) However, the Court may make an order under subsection (5) only if, in addition to the Court being satisfied of the matters in subsection (1), the Court, or another court, has found that the person (the vendor) from whom the thing was acquired was involved in:\n\n (a) the contravention mentioned in paragraph (2)(d); or\n\n (b) the non‑compliance mentioned in paragraph (3)(b).\n\n (7) If the Court makes an order under subsection (5) in relation to the acquisition of a thing, then:\n\n (a) the thing is taken not to have been disposed of by the vendor; and\n\n (b) the vendor must refund to the acquirer any amount paid to the vendor for acquiring the thing.\n\nAlternative to orders under subsections (4) and (5)\n\n (8) If an application is made to the Court for an order under subsection (4) or (5) 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 any other thing owned by the person.\n\nWhen application for orders under this section must be made\n\n (9) An application under subsection (4) or (5) may be made at any time within 3 years after the day on which the acquisition was put into effect.\n\nCourt may make orders even if not satisfied of all matters\n\n (10) If an application for an order under subsection (4) or (5) 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:\n\n (a) for an order under subsection (4)—the matters in subsection (1); and\n\n (b) for an order under subsection (5)—the matters in subsections (1) and (6).","sortOrder":1139},{"sectionNumber":"82","sectionType":"section","heading":"Actions for damages","content":"82  Actions for damages\n\n (1) A person who suffers loss or damage by conduct of another person that was done in contravention of:\n\n (a) a provision of Part IV, IVB, IVBA, IVBB or IVE; or\n\n (b) section 55B, 60C or 60K; or\n\n (c) subsection 56BN(1), 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1) or 56BZI(1) or section 56BZJ; or\n\n (ca) a civil penalty provision of a gas market instrument; or\n\n (d) a civil penalty provision of the consumer data rules;\n\nmay recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.\n\n (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.\n\nNo adverse costs orders\n\n (3) A person who brings an action under subsection (1) in relation to a contravention of a provision of Part IV may at any time during proceedings on the matter seek an order under subsection (4) from the court hearing, or that will hear, the matter.\n\n (4) The court may order that the applicant is not liable for the costs of any respondent to the proceedings, regardless of the outcome or likely outcome of the proceedings.\n\n (5) The court may only make an order under subsection (4) if the court is satisfied that:\n\n (a) the action raises a reasonable issue for trial; and\n\n (b) the action raises an issue that is not only significant for the applicant, but may also be significant for other persons or groups of persons; and\n\n (c) the disparity between the financial position of the applicant and the financial position of the respondent or respondents is such that the possibility of a costs order that does not favour the applicant might deter the applicant from pursuing the action.\n\n (6) The court may satisfy itself of the matters in subsection (5) by having regard only to the documents filed with the court in the proceedings.\n\n (7) A person who appeals a decision of the court under subsection (4) is liable for any costs in relation to the appeal.","sortOrder":1140},{"sectionNumber":"83","sectionType":"section","heading":"Findings and admissions of fact in proceedings to be evidence","content":"83  Findings and admissions of fact in proceedings to be evidence\n\n (1) In a proceeding against a person under section 82 or in an application under subsection 51ADB(1), 53ZO(1) or 87(1A) for an order against a person, a finding of any fact made by a court, or an admission of any fact made by the person, is prima facie evidence of that fact if the finding or admission is made in proceedings:\n\n (a) that are proceedings:\n\n (i) under section 77, 80, 81, 86C, 86D or 86E; or\n\n (ii) for an offence against section 45AF or 45AG or subsection 56BN(1) or 56BZI(1); and\n\n (b) in which that person has been found to have contravened, or to have been involved in a contravention of:\n\n (i) a provision of Part IV, IVB, IVBA, IVBB or IVE; or\n\n (ii) section 55B, 60C or 60K; or\n\n (iia) a civil penalty provision of a gas market instrument; or\n\n (iii) subsection 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1), section 56BZJ or a civil penalty provision of the consumer data rules.\n\n (2) The finding or admission may be proved by production of:\n\n (a) in any case—a document under the seal of the court from which the finding or admission appears; or\n\n (b) in the case of an admission—a document from which the admission appears that is filed in the court.","sortOrder":1141},{"sectionNumber":"84","sectionType":"section","heading":"Conduct by directors, employees or agents","content":"84  Conduct by directors, employees or agents\n\n (1) If, in:\n\n (a) a prosecution for an offence against section 45AF or 45AG or subsection 56BN(1) or 56BZI(1) in respect of conduct engaged in by a body corporate; or\n\n (b) a proceeding under this Part in respect of conduct engaged in by a body corporate, being conduct in relation to which section 45AJ, 45AK, 46 or 46A, Part IVB, IVBA, IVBB or IVE, section 55B, Part V, subsection 56BN(1), 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1) or 56BZI(1), section 56BZJ, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules applies; or\n\n (ba) a proceeding in respect of conduct engaged in by a body corporate, being conduct in relation to which section 153E, 153F, 153G or 153H applies;\n\nit is necessary to establish the state of mind of the body corporate, it is sufficient to show that:\n\n (c) a director, employee or agent of the body corporate engaged in that conduct; and\n\n (d) the director, employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and\n\n (e) the director, employee or agent had that state of mind.\n\n (2) Any conduct engaged in on behalf of a body corporate:\n\n (a) by a director, employee or agent of the body corporate within the scope of the person’s actual or apparent authority; or\n\n (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;\n\nshall be deemed, for the purposes of this Act, a gas market instrument and the consumer data rules, to have been engaged in also by the body corporate.\n\n (3) If, in:\n\n (a) a prosecution for an offence against section 45AF or 45AG or subsection 56BN(1) or 56BZI(1) in respect of conduct engaged in by a person other than a body corporate; or\n\n (b) a proceeding under this Part in respect of conduct engaged in by a person other than a body corporate, being conduct in relation to which section 45AJ or 45AK, Part IVB, IVBA, IVBB or IVE, section 55B, Part V, subsection 56BN(1), 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1) or 56BZI(1), section 56BZJ, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules applies;\n\nit is necessary to establish the state of mind of the person, it is sufficient to show that:\n\n (c) an employee or agent of the person engaged in that conduct; and\n\n (d) the employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and\n\n (e) the employee or agent had that state of mind.\n\n (4) Conduct engaged in on behalf of a person other than a body corporate:\n\n (a) by an employee or agent of the person within the scope of the actual or apparent authority of the employee or agent; or\n\n (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first‑mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;\n\nshall be deemed, for the purposes of this Act, a gas market instrument and the consumer data rules, to have been engaged in also by the first‑mentioned person.\n\n (4A) If:\n\n (a) a person other than a body corporate is convicted of an offence; and\n\n (b) subsection (3) or (4) applied in relation to the conviction on the basis that the person was the person first mentioned in that subsection; and\n\n (c) the person would not have been convicted of the offence if that subsection had not been enacted;\n\nthe person is not liable to be punished by imprisonment for that offence.\n\n (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.","sortOrder":1142},{"sectionNumber":"85","sectionType":"section","heading":"Defences","content":"85  Defences\n\n  If, in any proceedings under this Part against a person other than a body corporate, it appears to the Court that the person has or may have:\n\n (a) engaged in conduct in contravention of a provision of Part IV; or\n\n (aa) engaged in conduct in contravention of section 60C or 60K; or\n\n (b) engaged in conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f);\n\nbut that the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused, the Court may relieve the person either wholly or partly from liability to any penalty or damages on such terms as the Court thinks fit.","sortOrder":1143},{"sectionNumber":"86","sectionType":"section","heading":"Jurisdiction of courts","content":"86  Jurisdiction of courts\n\n (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.\n\n (1) Jurisdiction is conferred on the Federal Court in any matter arising under this Act, a gas market instrument or the consumer data rules in respect of which a civil proceeding has, whether before or after the commencement of this section, been instituted under this Part.\n\n (1A) Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in any matter arising under section 46, Part IVB or IVBB, section 55B, subsection 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1), section 56BZJ, Part IVE, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules in respect of which a civil proceeding is instituted by a person other than the Minister.\n\n (2) The several courts of the States are invested with federal jurisdiction within the limits of their several jurisdictions, whether those limits are as to locality, subject‑matter or otherwise, and, subject to the Constitution, jurisdiction is conferred on the several courts of the Territories, with respect to any matter arising under Part IVB or IVBB, section 55B, subsection 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1), section 56BZJ, Part IVE, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules in respect of which a civil proceeding is instituted by a person other than the Minister or the Commission.\n\n (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.\n\n (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 45AI is instituted in that Court.\n\n (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 45AI is instituted in that Court.\n\n (4) The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than:\n\n (a) the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) under subsection (1A); and\n\n (b) the jurisdiction of the several courts of the States and Territories under subsection (2); and\n\n (ba) the jurisdiction of the Supreme Courts of the States under subsection (3A); and\n\n (bb) the jurisdiction of the Supreme Courts of the Territories under subsection (3B); and\n\n (c) the jurisdiction of the High Court under section 75 of the Constitution.","sortOrder":1144},{"sectionNumber":"86AA","sectionType":"section","heading":"Limit on jurisdiction of Federal Circuit and Family Court of Australia (Division 2)","content":"86AA  Limit on jurisdiction of Federal Circuit and Family Court of Australia (Division 2)\n\n  If proceedings under section 82 are instituted in, or transferred to, the Federal Circuit and Family Court of Australia (Division 2), the Court does not have jurisdiction to award an amount for loss or damage that exceeds:\n\n (a) $750,000; or\n\n (b) if another amount is specified in the regulations—that other amount.\n\nNote 1: For transfers of proceedings from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Court, see section 153 of the Federal Circuit and Family Court of Australia Act 2021 and section 32AC of the Federal Court of Australia Act 1976.\n\nNote 2: For transfers of proceedings from the Federal Court to the Federal Circuit and Family Court of Australia (Division 2), see section 32AB of the Federal Court of Australia Act 1976.","sortOrder":1145},{"sectionNumber":"86A","sectionType":"section","heading":"Transfer of matters","content":"86A  Transfer of matters\n\n (1) Where:\n\n (a) a civil proceeding instituted (whether before or after the commencement of this section) by a person other than the Minister or the Commission is pending in the Federal Court; and\n\n (b) a matter for determination in the proceeding arose under Part IVB or IVBB, section 55B, subsection 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1), section 56BZJ, Part IVE, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules;\n\nthe 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.\n\n (2) The Federal Court shall not transfer a matter to another court under subsection (1) unless the other court has power to grant the remedies sought before the Federal Court in the matter and it appears to the Federal Court that:\n\n (a) the matter arises out of or is related to a proceeding that is pending in the other court; or\n\n (b) it is otherwise in the interests of justice that the matter be determined by the other court.\n\n (3) Where the Federal Court transfers a matter to another court under subsection (1):\n\n (a) further proceedings in the matter shall be as directed by the other court; and\n\n (b) the judgment of the other court in the matter is enforceable throughout Australia and the external Territories as if it were a judgment of the Federal Court.","sortOrder":1146},{"sectionNumber":"86C","sectionType":"section","heading":"Non-punitive orders","content":"86C  Non‑punitive orders\n\n (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.\n\n (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:\n\n (a) a contravention of section 45AF or 45AG; or\n\n (b) an involvement in a contravention of section 45AF or 45AG.\n\n (2) The orders that the Court may make in relation to the person are:\n\n (a) except in the case of contravening conduct that relates to section 60C or 60K or Part IVE—a community service order; and\n\n (b) except in the case of contravening conduct that relates to section 60C or 60K or Part IVE—a probation order for a period of no longer than 3 years; and\n\n (c) an order requiring the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; and\n\n (d) an order requiring the person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.\n\n (3) This section does not limit the Court’s powers under any other provision of this Act.\n\n (4) In this section:\n\ncommunity service order, in relation to a person who has engaged in contravening conduct, means an order directing the person to perform a service that:\n\n (a) is specified in the order; and\n\n (b) relates to the conduct;\n\nfor the benefit of the community or a section of the community.\n\nExample: The following are examples of community service orders:\n\n(a) an order requiring a person who has made false representations to make available a training video which explains advertising obligations under this Act; and\n\n(b) an order requiring a person who has engaged in misleading or deceptive conduct in relation to a product to carry out a community awareness program to address the needs of consumers when purchasing the product.\n\ncontravening conduct means conduct that:\n\n (a) contravenes Part IV, IVB, IVBA, IVBB or IVE, section 55B, subsection 56BN(1), 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1) or 56BZI(1), section 56BZJ, 60C, 60K or 92, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules; or\n\n (b) constitutes an involvement in a contravention of any of those provisions.\n\nprobation 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:\n\n (a) an order directing the person to establish a compliance program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and\n\n (b) an order directing the person to establish an education and training program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and\n\n (c) an order directing the person to revise the internal operations of the person’s business which lead to the person engaging in the contravening conduct.","sortOrder":1147},{"sectionNumber":"86D","sectionType":"section","heading":"Punitive orders—adverse publicity","content":"86D  Punitive orders—adverse publicity\n\n (1) The Court may, on application by the Commission, make an adverse publicity order in relation to a person who:\n\n (a) has been ordered to pay a pecuniary penalty under section 76; or\n\n (b) is guilty of an offence against section 45AF or 45AG or subsection 56BN(1) or 56BZI(1).\n\n (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 45AF or 45AG or subsection 56BN(1) or 56BZI(1).\n\n (2) In this section, an adverse publicity order, in relation to a person, means an order that:\n\n (a) requires the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; and\n\n (b) requires the person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.\n\n (3) This section does not limit the Court’s powers under any other provision of this Act.","sortOrder":1148},{"sectionNumber":"86E","sectionType":"section","heading":"Order disqualifying a person from managing corporations","content":"86E  Order disqualifying a person from managing corporations\n\n (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:\n\n (a) the Court is satisfied that the person has contravened, has attempted to contravene or has been involved in a contravention of Part IV or IVE, subsection 56BN(1), 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1) or 56BZI(1), section 56BZJ, a civil penalty provision of a gas market instrument, a civil penalty provision of Part 5 or 5A (other than for the purposes of Division 3 of that Part) of the Water Act 2007 or of the Water Markets Intermediaries Code within the meaning of that Act, or a civil penalty provision of the consumer data rules; and\n\n (b) the Court is satisfied that the disqualification is justified.\n\nNote: 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.\n\n (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:\n\n (a) the Court is satisfied that the person has contravened or has been involved in a contravention of section 45AF or 45AG or subsection 56BN(1) or 56BZI(1); and\n\n (b) the Court is satisfied that the disqualification is justified.\n\nNote: 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.\n\n (2) In determining under subsection (1) or (1A) whether the disqualification is justified, the Court may have regard to:\n\n (a) the person’s conduct in relation to the management, business or property of any corporation; and\n\n (b) any other matters that the Court considers appropriate.\n\n (3) The Commission must notify ASIC if the Court makes an order under subsection (1). The Commission must give ASIC a copy of the order.\n\nNote: ASIC must keep a register of persons who have been disqualified from managing corporations: see section 1274AA of the Corporations Act 2001.\n\n (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.\n\nNote: ASIC must keep a register of persons who have been disqualified from managing corporations—see section 1274AA of the Corporations Act 2001.\n\n (3B) For the purposes of this Act (other than this section or section 86F), an order under this section is not a penalty.","sortOrder":1149},{"sectionNumber":"86F","sectionType":"section","heading":"Privilege against exposure to penalty—disqualification from managing corporations","content":"86F  Privilege against exposure to penalty—disqualification from managing corporations\n\nCourt proceeding\n\n (1) In a civil or criminal proceeding under, or arising out of, this Act, a gas market instrument or the consumer data rules, a person is not entitled to refuse or fail to comply with a requirement:\n\n (a) to answer a question or give information; or\n\n (b) to produce a document or any other thing; or\n\n (c) to do any other act;\n\non 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.\n\n (2) Subsection (1) applies whether or not the person is a defendant in the proceeding or in any other proceeding.\n\nStatutory requirement\n\n (3) A person is not entitled to refuse or fail to comply with a requirement under this Act, a gas market instrument or the consumer data rules:\n\n (a) to answer a question or give information; or\n\n (b) to produce a document or any other thing; or\n\n (c) to do any other act;\n\non 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.\n\nDefinition\n\n (4) In this section:\n\npenalty includes forfeiture.","sortOrder":1150},{"sectionNumber":"87","sectionType":"section","heading":"Other orders","content":"87  Other orders\n\n (1) Without limiting the generality of section 80, where, in a proceeding instituted under this Part, or for an offence against section 45AF or 45AG or subsection 56BN(1) or 56BZI(1), 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, Division 2 of Part IVB, or Part IVBA or IVE, or of section 55B, subsection 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1), section 56BZJ, 60C or 60K, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules, 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.\n\n (1A) Without limiting the generality of sections 51ADB, 53ZO and 80, the Court may:\n\n (a) on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of Division 2 of Part IVB, Part IVBA or IVE, subsection 56BN(1), 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1) or 56BZI(1), section 56BZJ, 60C or 60K, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules; or\n\n (b) on the application of the Commission in accordance with subsection (1B) on behalf of one or more persons who have suffered, or who are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of Part IV (other than section 45D or 45E), Division 2 of Part IVB, Part IVBA or IVE, subsection 56BN(1), 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1) or 56BZI(1), section 56BZJ, 60C or 60K, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules; or\n\n (baa) on the application of the Commission in accordance with subsection (1BAA) on behalf of a class of persons who have suffered, or who are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of section 55B, subsection 56BN(1), 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1) or 56BZI(1), section 56BZJ, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules; or\n\n (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 45AF or 45AG or subsection 56BN(1) or 56BZI(1);\n\nmake 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:\n\n (c) compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage; or\n\n (d) prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person.\n\n (1B) The Commission may make an application under paragraph (1A)(b) on behalf of one or more persons identified in the application who:\n\n (a) have suffered, or are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of a provision referred to in that paragraph; and\n\n (b) have, before the application is made, consented in writing to the making of the application.\n\n (1BAA) The Commission may make an application under paragraph (1A)(baa) on behalf of a class of persons identified in the application who have suffered, or are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of a provision referred to in that paragraph.\n\n (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:\n\n (a) have suffered, or are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of a provision referred to in that paragraph; and\n\n (b) have, before the application is made, consented in writing to the making of the application.\n\n (1C) An application may be made under subsection (1A) in relation to a contravention of Part IV, Division 2 of Part IVB, Part IVBA or IVE, subsection 56BN(1), 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1) or 56BZI(1), section 56BZJ, 60C or 60K, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules even if a proceeding has not been instituted under another provision in relation to that contravention.\n\n (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.\n\n (2) The orders referred to in subsections (1) and (1A) are:\n\n (a) an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void ab initio or at all times on and after such date before the date on which the order is made as is specified in the order;\n\n (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;\n\n (ba) an order refusing to enforce any or all of the provisions of such a contract;\n\n (c) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage;\n\n (d) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage;\n\n (e) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to repair, or provide parts for, goods that had been supplied by the person who engaged in the conduct to the person who suffered, or is likely to suffer, the loss or damage;\n\n (f) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage; and\n\n (g) an order, in relation to an instrument creating or transferring an interest in land, directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to execute an instrument that:\n\n (i) varies, or has the effect of varying, the first‑mentioned instrument; or\n\n (ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first‑mentioned instrument.\n\n (3) Where:\n\n (a) a provision of a contract made, whether before or after the commencement of the Trade Practices Amendment Act 1977, is unenforceable because of section 45 in so far as it confers rights or benefits or imposes duties or obligations on a corporation; or\n\n (b) the engaging in conduct by a corporation in pursuance of or in accordance with a contract made before the commencement of the Trade Practices Amendment Act 1977 would constitute a contravention of section 47;\n\nthe Court may, on the application of a party to the contract, make an order:\n\n (c) varying the contract, or a collateral arrangement relating to the contract, in such manner as the Court considers just and equitable; or\n\n (d) directing another party to the contract to do any act in relation to the first‑mentioned party that the Court considers just and equitable.\n\n (4) The orders that may be made under subsection (3) include an order directing the termination of a lease or the increase or reduction of any rent or premium payable under a lease.\n\n (5) The powers conferred on the Court under this section in relation to a contract do not affect any powers that any other court may have in relation to the contract in proceedings instituted in that other court in respect of the contract.\n\n (6) In subsection (2), interest, in relation to land, means:\n\n (a) a legal or equitable estate or interest in the land; or\n\n (b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or\n\n (c) a right, power or privilege over, or in connection with, the land.","sortOrder":1151},{"sectionNumber":"87AA","sectionType":"section","heading":"Special provision relating to Court’s exercise of powers under this Part in relation to boycott conduct","content":"87AA  Special provision relating to Court’s exercise of powers under this Part in relation to boycott conduct\n\n (1) In exercising its powers in proceedings under this Part in relation to boycott conduct, the Court is to have regard to any action the applicant in the proceedings has taken, or could take, before an industrial authority in relation to the boycott conduct. In particular, the Court is to have regard to any application for conciliation that the applicant has made or could make.\n\n (2) In this section:\n\nboycott conduct means conduct that constitutes or would constitute:\n\n (a) a contravention of subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA; or\n\n (b) attempting to contravene one of those provisions; or\n\n (c) aiding, abetting, counselling or procuring a person to contravene one of those provisions; or\n\n (d) inducing, or attempting to induce, a person (whether by threats, promises or otherwise) to contravene one of those provisions; or\n\n (e) being in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of one of those provisions; or\n\n (f) conspiring with others to contravene one of those provisions.\n\nindustrial authority means:\n\n (a) a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a law of a State to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State; or\n\n (b) a special board constituted under a law of a State relating to factories; or\n\n (c) any other State board, court, tribunal, body or official prescribed by the regulations for the purposes of this definition.","sortOrder":1152},{"sectionNumber":"87B","sectionType":"section","heading":"Enforcement of undertakings","content":"87B  Enforcement of undertakings\n\n (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), a gas market instrument, the cash distribution framework or the consumer data rules.\n\n (1A) The Commission may accept a written undertaking given by a person for the purposes of this section in connection with a merger authorisation.\n\n (2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Commission.\n\n (3) If the Commission considers that the person who gave the undertaking has breached any of its terms, the Commission may apply to the Court for an order under subsection (4).\n\n (4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:\n\n (a) an order directing the person to comply with that term of the undertaking;\n\n (b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;\n\n (c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;\n\n (d) any other order that the Court considers appropriate.","sortOrder":1153},{"sectionNumber":"87C","sectionType":"section","heading":"Enforcement of undertakings—Secretary of the Department","content":"87C  Enforcement of undertakings—Secretary of the Department\n\n (1) The Secretary of the Department may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the Secretary has a power or function under this Act.\n\n (2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Secretary of the Department.\n\n (3) If the Secretary of the Department considers that the person who gave the undertaking has breached any of its terms, the Secretary may apply to the Court for an order under subsection (4).\n\n (4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:\n\n (a) an order directing the person to comply with that term of the undertaking;\n\n (b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;\n\n (c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;\n\n (d) any other order that the Court considers appropriate.","sortOrder":1154},{"sectionNumber":"87CA","sectionType":"section","heading":"Intervention by Commission","content":"87CA  Intervention by Commission\n\n (1) The Commission may, with the leave of the Court and subject to any conditions imposed by the Court, intervene in any proceeding instituted under this Act.\n\n (2) If the Commission intervenes in a proceeding, the Commission is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.","sortOrder":1155},{"sectionNumber":"Part VIA","sectionType":"part","heading":"Proportionate liability for misleading and deceptive conduct","content":"Part VIA—Proportionate liability for misleading and deceptive conduct","sortOrder":1156},{"sectionNumber":"87CB","sectionType":"section","heading":"Application of Part","content":"87CB  Application of Part\n\n (1) This Part applies to a claim (an apportionable claim) if the claim is a claim for damages made under section 236 of the Australian Consumer Law for:\n\n (a) economic loss; or\n\n (b) damage to property;\n\ncaused by conduct that was done in a contravention of section 18 of the Australian Consumer Law.\n\n (2) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind).\n\n (3) In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.\n\n (4) For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1).\n\n (5) For the purposes of this Part, it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died.","sortOrder":1157},{"sectionNumber":"87CC","sectionType":"section","heading":"Certain concurrent wrongdoers not to have benefit of apportionment","content":"87CC  Certain concurrent wrongdoers not to have benefit of apportionment\n\n (1) Nothing in this Part operates to exclude the liability of a concurrent wrongdoer (an excluded concurrent wrongdoer) in proceedings involving an apportionable claim if:\n\n (a) the concurrent wrongdoer intended to cause the economic loss or damage to property that is the subject of the claim; or\n\n (b) the concurrent wrongdoer fraudulently caused the economic loss or damage to property that is the subject of the claim.\n\n (2) The liability of an excluded concurrent wrongdoer is to be determined in accordance with the legal rules (if any) that (apart from this Part) are relevant.\n\n (3) The liability of any other concurrent wrongdoer who is not an excluded concurrent wrongdoer is to be determined in accordance with the provisions of this Part.","sortOrder":1158},{"sectionNumber":"87CD","sectionType":"section","heading":"Proportionate liability for apportionable claims","content":"87CD  Proportionate liability for apportionable claims\n\n (1) In any proceedings involving an apportionable claim:\n\n (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant’s responsibility for the damage or loss; and\n\n (b) the court may give judgment against the defendant for not more than that amount.\n\n (2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim:\n\n (a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part; and\n\n (b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant.\n\n (3) In apportioning responsibility between defendants in the proceedings:\n\n (a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law; and\n\n (b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings.\n\n (4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings.\n\n (5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise.","sortOrder":1159},{"sectionNumber":"87CE","sectionType":"section","heading":"Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware","content":"87CE  Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware\n\n (1) If:\n\n (a) a defendant in proceedings involving an apportionable claim has reasonable grounds to believe that a particular person (the other person) may be a concurrent wrongdoer in relation to the claim; and\n\n (b) the defendant fails to give the plaintiff, as soon as practicable, written notice of the information that the defendant has about:\n\n (i) the identity of the other person; and\n\n (ii) the circumstances that may make the other person a concurrent wrongdoer in relation to the claim; and\n\n (c) the plaintiff unnecessarily incurs costs in the proceedings because the plaintiff was not aware that the other person may be a concurrent wrongdoer in relation to the claim;\n\nthe court hearing the proceedings may order that the defendant pay all or any of those costs of the plaintiff.\n\n (2) The court may order that the costs to be paid by the defendant be assessed on an indemnity basis or otherwise.","sortOrder":1160},{"sectionNumber":"87CF","sectionType":"section","heading":"Contribution not recoverable from defendant","content":"87CF  Contribution not recoverable from defendant\n\n  A defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim:\n\n (a) cannot be required to contribute to any damages or contribution recovered from another concurrent wrongdoer in respect of the apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant); and\n\n (b) cannot be required to indemnify any such wrongdoer.","sortOrder":1161},{"sectionNumber":"87CG","sectionType":"section","heading":"Subsequent actions","content":"87CG  Subsequent actions\n\n (1) In relation to an apportionable claim, nothing in this Part or any other law prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss from bringing another action against any other concurrent wrongdoer for that damage or loss.\n\n (2) However, in any proceedings in respect of any such action, the plaintiff cannot recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in respect of the damage or loss, would result in the plaintiff receiving compensation for damage or loss that is greater than the damage or loss actually sustained by the plaintiff.","sortOrder":1162},{"sectionNumber":"87CH","sectionType":"section","heading":"Joining non-party concurrent wrongdoer in the action","content":"87CH  Joining non‑party concurrent wrongdoer in the action\n\n (1) The court may give leave for any one or more persons to be joined as defendants in proceedings involving an apportionable claim.\n\n (2) The court is not to give leave for the joinder of any person who was a party to any previously concluded proceedings in respect of the apportionable claim.","sortOrder":1163},{"sectionNumber":"87CI","sectionType":"section","heading":"Application of Part","content":"87CI  Application of Part\n\n  Nothing in this Part:\n\n (a) prevents a person being held vicariously liable for a proportion of an apportionable claim for which another person is liable; or\n\n (b) prevents a partner from being held severally liable with another partner for that proportion of an apportionable claim for which the other partner is liable; or\n\n (c) affects the operation of any other Act to the extent that it imposes several liability on any person in respect of what would otherwise be an apportionable claim.","sortOrder":1164},{"sectionNumber":"Part VIB","sectionType":"part","heading":"Claims for damages or compensation for death or personal injury","content":"Part VIB—Claims for damages or compensation for death or personal injury","sortOrder":1165},{"sectionNumber":"87D","sectionType":"section","heading":"Definitions","content":"87D  Definitions\n\n  In this Part, unless the contrary intention appears:\n\napplicable percentage has the meaning given by subsection 87Q(2).\n\naverage weekly earnings has the meaning given by section 87V.\n\ncapable 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.\n\ndate of discoverability has the meaning given by section 87G.\n\ngratuitous attendant care services has the meaning given by subsection 87W(5).\n\nincapacitated 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:\n\n (a) any disease, or any impairment of his or her mental condition; or\n\n (b) restraint of his or her person, lawful or unlawful, including detention or custody under a law of a State or Territory relating to mental health; or\n\n (c) war or warlike operations, or circumstances arising out of war or warlike operations.\n\nindex number has the meaning given by section 87N.\n\nlong‑stop period has the meaning given by section 87H.\n\nmaximum amount of damages for non‑economic loss has the meaning given by section 87M.\n\nminor means a person under 18.\n\nmost extreme case has the meaning given by subsection 87P(2).\n\nnon‑economic loss means any one or more of the following:\n\n (a) pain and suffering;\n\n (b) loss of amenities of life;\n\n (c) loss of expectation of life;\n\n (d) disfigurement.\n\npersonal injury damages means damages or compensation for loss or damage that is, or results from, the death of or personal injury to a person.\n\nplaintiff, in relation to a proceeding, means:\n\n (a) if the proceeding is a proceeding that the Commission commences under paragraph 87(1A)(b), or under section 149 or paragraph 237(1)(b) of the Australian Consumer Law—a person on whose behalf the Commission commences the proceeding; or\n\n (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\n\n (b) in any other case—the person by whom the proceeding is brought (however described).\n\nproceeding to which this Part applies means a proceeding referred to in section 87E.\n\nquarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.\n\nsmoking has the same meaning as in the Public Health (Tobacco and Other Products) Act 2023.\n\ntobacco product has the same meaning as in the Public Health (Tobacco and Other Products) Act 2023.","sortOrder":1167},{"sectionNumber":"87E","sectionType":"section","heading":"Proceedings to which this Part applies","content":"87E  Proceedings to which this Part applies\n\n (1) This Part applies to proceedings taken under the Australian Consumer Law:\n\n (a) that relate to Part 2‑2, 3‑3, 3‑4 or 3‑5, or Division 2 of Part 5‑4, of the Australian Consumer Law; and\n\n (b) in which the plaintiff is seeking an award of personal injury damages; and\n\n (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.\n\n (2) However, for the purposes of Divisions 2 and 7, paragraph (1)(c) does not apply.","sortOrder":1168},{"sectionNumber":"87F","sectionType":"section","heading":"Basic rule","content":"87F  Basic rule\n\n (1) A court must not award personal injury damages in a proceeding to which this Part applies if the proceeding was commenced:\n\n (a) after the end of the period of 3 years after the date of discoverability for the death or injury to which the personal injury damages would relate; or\n\n (b) after the end of the long‑stop period for that death or injury.\n\n (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.\n\n (2) This diagram shows when this Division prevents an award of personal injury damages.\n\n\n\n![A flowchart which summarises the steps to determine whether personal injury damages may be awarded](image.002.png)","sortOrder":1170},{"sectionNumber":"87G","sectionType":"section","heading":"Date of discoverability","content":"87G  Date of discoverability\n\nDefinition\n\n (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:\n\n (a) that the death or personal injury has occurred;\n\n (b) that the death or personal injury was attributable to a contravention of this Act;\n\n (c) that in the case of a personal injury—the injury was significant enough to justify bringing an action.\n\nConstructive knowledge\n\n (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.\n\nUse of the plaintiff’s conduct and statements\n\n (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.\n\nMinors\n\n (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.\n\nIncapacitated persons\n\n (5) If:\n\n (a) the plaintiff is an incapacitated person; and\n\n (b) there is a guardian of the plaintiff, or other person to manage all or part of the plaintiff’s estate, under a law of a State or Territory relating to the protection of incapacitated persons;\n\nfacts 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.\n\nProceedings by personal representatives\n\n (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:\n\n (a) if, had the deceased person commenced a proceeding, in relation to the contravention to which the death or injury relates, before his or her death, the date of discoverability under subsection (1) would have occurred more than 3 years before the death—that date; or\n\n (b) if, at the time of the plaintiff’s appointment as personal representative, the plaintiff knew, or ought to have known, all of the matters referred to in paragraphs (1)(a), (b) and (c)—the date of the appointment; or\n\n (c) if the first time at which the plaintiff knew, or ought to have known, all of the matters referred to in paragraphs (1)(a), (b) and (c) was after the date of appointment—the date of that first time.","sortOrder":1171},{"sectionNumber":"87H","sectionType":"section","heading":"Long-stop period","content":"87H  Long‑stop period\n\n (1) The long‑stop period for the death or injury of a person is:\n\n (a) the period of 12 years following the act or omission alleged to have caused the death or injury; or\n\n (b) that period as extended by the court.\n\n (2) The court must not extend the period by more than 3 years beyond the date of discoverability for the death or injury.\n\n (3) In considering whether to extend the period, the court must have regard to the justice of the case, and, in particular, must have regard to:\n\n (a) whether the passage of time has prejudiced a fair trial; and\n\n (b) the nature and extent of the person’s loss or damage; and\n\n (c) the nature of the defendant’s conduct alleged to have caused the death or injury; and\n\n (d) the nature of the defendant’s conduct since the alleged act or omission.","sortOrder":1172},{"sectionNumber":"87J","sectionType":"section","heading":"The effect of minority or incapacity","content":"87J  The effect of minority or incapacity\n\n  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:\n\n (a) a minor who is not in the custody of a capable parent or guardian; or\n\n (b) an incapacitated person in respect of whom there is no guardian, and no other person to manage all or part of the person’s estate, under a law of a State or Territory relating to the protection of incapacitated persons.","sortOrder":1173},{"sectionNumber":"87K","sectionType":"section","heading":"The effect of close relationships","content":"87K  The effect of close relationships\n\n (1) If:\n\n (a) a cause of action to which the proceeding relates is founded on the death or injury to a person (the victim) who was a minor at the time of the act or omission alleged to have caused the death or injury; and\n\n (b) the proceeding is taken against a person who was at that time:\n\n (i) a parent or guardian of the victim; or\n\n (ii) a person in a close relationship with a parent or guardian of the victim;\n\nin working out whether the period of 3 years after the date of discoverability, or the long‑stop period, has expired, disregard any period:\n\n (c) before the victim turns 25; or\n\n (d) if the victim dies before turning 25—before the victim’s death.\n\n (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:\n\n (a) the person might influence the parent or guardian not to bring a claim on behalf of the victim against the person; or\n\n (b) the victim might be unwilling to disclose to the parent or guardian the acts, omissions or events in respect of which the cause of action is founded.","sortOrder":1174},{"sectionNumber":"87L","sectionType":"section","heading":"Limits on damages for non-economic loss","content":"87L  Limits on damages for non‑economic loss\n\n  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.","sortOrder":1176},{"sectionNumber":"87M","sectionType":"section","heading":"Maximum amount of damages for non-economic loss","content":"87M  Maximum amount of damages for non‑economic loss\n\n (1) The maximum amount of damages for non‑economic loss is:\n\n (a) during the year in which this Part commences—$250,000; or\n\n (b) during a later year—the amount worked out (to the nearest multiple of $10) as follows:\n\n![Start formula Previous maximum amount times start fraction Current September CPI number over Previous September CPI number end fraction end formula](image.003.png)\n\n  where:\n\n  current September CPI number is the index number for the quarter ending on 30 September in the year immediately preceding that later year.\n\n  previous maximum amount is the maximum amount of damages for non‑economic loss during the year immediately preceding that later year.\n\n  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.\n\n (2) If an amount worked out under paragraph (1)(b) is a multiple of $5 (but not a multiple of $10), round the amount up to the nearest multiple of $10.\n\n (3) This section does not affect the operation of section 86AA.","sortOrder":1177},{"sectionNumber":"87N","sectionType":"section","heading":"Index numbers","content":"87N  Index numbers\n\n (1) The index number for a quarter is the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter.\n\n (2) Subject to subsection (3), if, at any time before or after the commencement of this Act:\n\n (a) the Australian Statistician has published or publishes an index number in respect of a quarter; and\n\n (b) that index number is in substitution for an index number previously published by the Australian Statistician in respect of that quarter;\n\ndisregard the publication of the later index number for the purposes of this section.\n\n (3) If, at any time, the Australian Statistician has changed or changes the index reference period for the Consumer Price Index, then, in applying this section after the change took place or takes place, have regard only to index numbers published in terms of the new index reference period.\n\n (4) In this section:\n\nAustralian Statistician means the Australian Statistician referred to in subsection 5(2) of the Australian Bureau of Statistics Act 1975.","sortOrder":1178},{"sectionNumber":"87P","sectionType":"section","heading":"Most extreme cases","content":"87P  Most extreme cases\n\n (1) The court must not award as personal injury damages for non‑economic loss the maximum amount of damages for non‑economic loss except in a most extreme case.\n\n (2) A most extreme case is a case in which the plaintiff suffers non‑economic loss of the gravest conceivable kind.","sortOrder":1179},{"sectionNumber":"87Q","sectionType":"section","heading":"Cases of 33% or more (but not 100%) of a most extreme case","content":"87Q  Cases of 33% or more (but not 100%) of a most extreme case\n\n (1) If the non‑economic loss the plaintiff suffers is at least 33%, but less than 100%, of a most extreme case, the court must not award as personal injury damages for non‑economic loss an amount that exceeds the applicable percentage of the maximum amount of damages for non‑economic loss.\n\n (2) The applicable percentage is the extent of the non‑economic loss the plaintiff suffers, expressed as a percentage of a most extreme case.","sortOrder":1180},{"sectionNumber":"87R","sectionType":"section","heading":"Cases of 15% or more (but less than 33%) of a most extreme case","content":"87R  Cases of 15% or more (but less than 33%) of a most extreme case\n\n  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:\n\n\n\n- Cases of 15% or more (but less than 33%) of a most extreme case\n- 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)\n- 1 15% 1%\n- 2 16% 1.5%\n- 3 17% 2%\n- 4 18% 2.5%\n- 5 19% 3%\n- 6 20% 3.5%\n- 7 21% 4%\n- 8 22% 4.5%\n- 9 23% 5%\n- 10 24% 5.5%\n- 11 25% 6.5%\n- 12 26% 8%\n- 13 27% 10%\n- 14 28% 14%\n- 15 29% 18%\n- 16 30% 23%\n- 17 31% 26%\n- 18 32% 30%","sortOrder":1181},{"sectionNumber":"87S","sectionType":"section","heading":"Cases of less than 15% of a most extreme case","content":"87S  Cases of less than 15% of a most extreme case\n\n  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.","sortOrder":1182},{"sectionNumber":"87T","sectionType":"section","heading":"Referring to earlier decisions on non-economic loss","content":"87T  Referring to earlier decisions on non‑economic loss\n\n (1) In determining personal injury damages for non‑economic loss, the court may refer to earlier decisions of the court or of other courts for the purpose of establishing the appropriate award in the proceeding.\n\n (2) For that purpose, the parties to the proceeding or their counsel may bring the court’s attention to awards of personal injury damages for non‑economic loss in those earlier decisions.\n\n (3) This section does not affect the rules for determination of other damages or compensation.","sortOrder":1183},{"sectionNumber":"87U","sectionType":"section","heading":"Personal injury damages for loss of earning capacity","content":"87U  Personal injury damages for loss of earning capacity\n\n  In determining, in a proceeding to which this Part applies, personal injury damages for:\n\n (a) past economic loss due to loss of earnings or the deprivation or impairment of earning capacity; or\n\n (b) future economic loss due to the deprivation or impairment of earning capacity; or\n\n (c) the loss of expectation of financial support;\n\na court must disregard the amount by which the plaintiff’s gross weekly earnings during any quarter would (but for the personal injury or death in question) have exceeded:\n\n (d) if, at the time the award was made, the amount of average weekly earnings for the quarter was ascertainable—an amount that is twice the amount of average weekly earnings for the quarter; or\n\n (e) if:\n\n (i) at the time the award was made, the amount of average weekly earnings for the quarter was not ascertainable; or\n\n (ii) the award was made during, or before the start of, the quarter;\n\n  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.","sortOrder":1185},{"sectionNumber":"87V","sectionType":"section","heading":"Average weekly earnings","content":"87V  Average weekly earnings\n\n (1) Average weekly earnings, for a quarter, means the amount:\n\n (a) published by the Australian Statistician as the average weekly earnings for all employees (total earnings, seasonally adjusted) for the reference period in that quarter; or\n\n (b) if the Australian Statistician fails or ceases to publish the amount referred to in paragraph (a)—the amount determined in the manner specified in the regulations.\n\n (2) Regulations made for the purposes of paragraph (1)(b) may specify matters by reference to which an amount is to be determined.\n\n (3) In this section:\n\nreference 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.","sortOrder":1186},{"sectionNumber":"87W","sectionType":"section","heading":"Personal injury damages for gratuitous attendant care services for plaintiff","content":"87W  Personal injury damages for gratuitous attendant care services for plaintiff\n\n (1) A court must not, in a proceeding to which this Part applies, award personal injury damages for gratuitous attendant care services for the plaintiff, except in accordance with this section.\n\n (2) The court must be satisfied that:\n\n (a) there is (or was) a reasonable need for the services to be provided; and\n\n (b) the need has arisen (or arose) solely because of personal injury to which the personal injury damages relate; and\n\n (c) the services would not be (or would not have been) provided to the plaintiff but for the injury; and\n\n (d) the services are provided (or are to be provided) for at least 6 hours per week; and\n\n (e) the services are provided (or are to be provided) over a period of at least 6 months.\n\n (3) If the services were provided during a quarter for which, at the time the award was made, the amount of average weekly earnings was ascertainable, the court must not award as personal injury damages for the services:\n\n (a) if the services were provided for at least 40 hours per week—an amount per week that exceeds average weekly earnings for that quarter; or\n\n (b) if the services were provided for less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.\n\n (4) If the services:\n\n (a) were provided during a quarter for which, at the time the award was made, the amount of average weekly earnings was not ascertainable; or\n\n (b) are to be provided after the time the award was made;\n\nthe court must not award as personal injury damages for the services:\n\n (c) if the services were provided for at least 40 hours per week—an amount per week that exceeds average weekly earnings for the quarter that, at the time the award was made, was the most recent quarter for which the amount of average weekly earnings was ascertainable; or\n\n (d) if the services were provided for less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.\n\n (5) Gratuitous attendant care services are services that one person provides to another person:\n\n (a) that:\n\n (i) are of a domestic nature; or\n\n (ii) relate to nursing; or\n\n (iii) aim to alleviate the consequences of a personal injury; and\n\n (b) for which the other person has not paid or is not liable to pay.","sortOrder":1188},{"sectionNumber":"87X","sectionType":"section","heading":"Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant care services","content":"87X  Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant care services\n\n (1) A court must not, in a proceeding to which this Part applies, award personal injury damages for loss of the plaintiff’s capacity to provide gratuitous attendant care services to other persons, except in accordance with this section.\n\n (2) The court must be satisfied that:\n\n (a) prior to his or her loss of capacity to provide the services, the plaintiff had provided the services:\n\n (i) for at least 6 hours per week; and\n\n (ii) over a period of at least 6 months; and\n\n (b) the other person would have been entitled, if the plaintiff had died as a result of the contravention of this Act to which the award relates, to recover damages under a law of a State or Territory for loss of the plaintiff’s services.\n\n (3) If the plaintiff would have provided the services during a quarter for which, at the time the award was made, the amount of average weekly earnings was ascertainable, the court must not award as personal injury damages for the services:\n\n (a) if the services would have been provided for at least 40 hours per week—an amount per week that exceeds average weekly earnings for that quarter; and\n\n (b) if the services would have been provided for less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.\n\n (4) If the plaintiff:\n\n (a) would have provided the services during a quarter for which, at the time the award was made, the amount of average weekly earnings was not ascertainable; or\n\n (b) would have provided the services after the time the award was made;\n\nthe court must not award as personal injury damages for the services:\n\n (c) if the services were provided for at least 40 hours per week—an amount per week that exceeds average weekly earnings for the quarter that, at the time the award was made, was the most recent quarter for which the amount of average weekly earnings was ascertainable; or\n\n (d) if the services were provided for less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.","sortOrder":1189},{"sectionNumber":"87Y","sectionType":"section","heading":"Damages for future economic loss—discount rate","content":"87Y  Damages for future economic loss—discount rate\n\n (1) If an award of personal injury damages in a proceeding to which this Part applies is to include any component, assessed as a lump sum, for future economic loss of any kind, the present value of that future economic loss is to be determined by applying:\n\n (a) a discount rate of the percentage prescribed by the regulations; or\n\n (b) if no percentage is prescribed—a discount rate of 5%.\n\n (2) A regulation made for the purposes of paragraph (1)(a) does not commence before the end of the period of 6 months starting:\n\n (a) if the regulation is laid before each House of the Parliament under section 38 of the Legislation Act 2003 on the same day—on that day; or\n\n (b) if it is laid before each House of the Parliament under that section on different days—on the later of those days.\n\n (3) Except as provided by this section, this section does not affect any other law relating to the discounting of sums awarded as damages or compensation.","sortOrder":1191},{"sectionNumber":"87Z","sectionType":"section","heading":"Damages for loss of superannuation entitlements","content":"87Z  Damages for loss of superannuation entitlements\n\n  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:\n\n![Start formula Superannuation percentage times Damages for earnings loss end formula](image.004.png)\n\nwhere:\n\ndamages for earnings loss are the personal injury damages payable (in accordance with this Part) for:\n\n (a) any past economic loss due to loss of earnings, or the deprivation or impairment of earning capacity, on which the entitlement to those contributions is based; and\n\n (b) any future economic loss due to the deprivation or impairment of earning capacity on which the entitlement to those contributions would be based.\n\nsuperannuation percentage means the charge percentage (within the meaning of subsection 17A(2) of the Superannuation Guarantee (Administration) Act 1992) divided by 100.","sortOrder":1192},{"sectionNumber":"87ZA","sectionType":"section","heading":"Interest on damages","content":"87ZA  Interest on damages\n\n (1) A court must not, in a proceeding to which this Part applies, order the payment of interest on personal injury damages for:\n\n (a) non‑economic loss; or\n\n (b) gratuitous attendant care services for the plaintiff; or\n\n (c) loss of the plaintiff’s capacity to provide gratuitous attendant care services to other persons.\n\n (2) If, in a proceeding to which this Part applies, a court is satisfied that interest is payable on personal injury damages of another kind, the rate of interest to be used in working out the interest is:\n\n (a) the rate of interest prescribed by the regulations; or\n\n (b) if no rate is prescribed—the 10‑year benchmark bond rate on the day on which the court determines the personal injury damages.\n\n (3) This section does not affect the payment of interest on a debt under a judgment or order of a court.\n\n (4) In this section:\n\n10‑year benchmark bond rate, on a day, means:\n\n (a) if the day occurs on or after 1 March in a particular year and before 1 September in that year—the Commonwealth Government 10‑year benchmark bond rate:\n\n (i) as published by the Reserve Bank of Australia in the Reserve Bank of Australia Bulletin (however described); and\n\n (ii) applying on the first business day of January in that year; or\n\n (b) otherwise—the Commonwealth Government 10‑year benchmark bond rate, as so published, applying on the first business day of July in the preceding year.\n\nbusiness 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.","sortOrder":1193},{"sectionNumber":"87ZB","sectionType":"section","heading":"Exemplary and aggravated damages","content":"87ZB  Exemplary and aggravated damages\n\n (1) A court must not, in a proceeding to which this Part applies, award exemplary damages or aggravated damages in respect of death or personal injury.\n\n (2) This section does not affect whether a court has power to award exemplary damages or aggravated damages:\n\n (a) otherwise than in respect of death or personal injury; or\n\n (b) in a proceeding other than a proceeding to which this Part applies.","sortOrder":1194},{"sectionNumber":"87ZC","sectionType":"section","heading":"Court may make orders under section 87 for structured settlements","content":"87ZC  Court may make orders under section 87 for structured settlements\n\n (1) In a proceeding to which this Part applies, a court may, on the application of the parties, make an order under section 87 approving a structured settlement, or the terms of a structured settlement, even though the payment of damages is not in the form of a lump sum award of damages.\n\n (2) This section does not limit the powers of a court to make an order under section 87 in a proceeding that is not a proceeding to which this Part applies.\n\n (3) In this section:\n\nstructured 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.\n\nChapter 6—Other provisions","sortOrder":1196},{"sectionNumber":"Part VII","sectionType":"part","heading":"Authorisations and notifications","content":"Part VII—Authorisations and notifications","sortOrder":1197},{"sectionNumber":"87ZP","sectionType":"section","heading":"Definitions","content":"87ZP  Definitions\n\n (1) In this Division:\n\nindustry 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.\n\nminor variation, in relation to an authorisation, is a single variation that does not involve a material change in the effect of the authorisation.\n\n (2) A reference in this Division to a proposal of the Commission is a reference to a notice of the Commission:\n\n (a) so far as the revocation of an authorisation is concerned—under subsection 91B(3); and\n\n (b) so far as the revocation of an authorisation and the substitution of another—under subsection 91C(3).\n\n (3) A reference in this Division to an authorisation is a reference to an authorisation under this Division.","sortOrder":1199},{"sectionNumber":"88","sectionType":"section","heading":"Commission may grant authorisations","content":"88  Commission may grant authorisations\n\nGranting an authorisation\n\n (1) Subject to this Part, the Commission may, on an application by a person, grant an authorisation to a person to engage in conduct, specified in the authorisation, to which one or more provisions of Division 1 or 2 of Part IV specified in the authorisation would or might apply.\n\nNote: For an extended meaning of engaging in conduct, see subsection 4(2).\n\n (1A) The application must be made on or before 30 June 2025 if any of the specified provisions is section 50.\n\nEffect of an authorisation\n\n (2) While the authorisation remains in force, the provisions of Division 1 or 2 of Part IV specified in the authorisation do not apply in relation to the conduct to the extent that it is engaged in by:\n\n (a) the applicant; and\n\n (b) any other person named or referred to in the application as a person who is engaged in, or who is proposed to be engaged in, the conduct; and\n\n (c) any particular persons or classes of persons, as specified in the authorisation, who become engaged in the conduct.\n\nConditions\n\n (3) The Commission may specify conditions in the authorisation. Subsection (2) does not apply if any of the conditions are not complied with.\n\n (4) Without limiting subsection (3), the Commission may grant a merger authorisation on the condition that a person must give, and comply with, an undertaking to the Commission under section 87B.\n\nSingle authorisation may deal with several types of conduct\n\n (5) The Commission may grant a single authorisation for all the conduct specified in an application for authorisation, or may grant separate authorisations for any of the conduct.\n\nPast conduct\n\n (6) The Commission does not have power to grant an authorisation for conduct engaged in before the Commission decides the application for the authorisation.\n\nWithdrawing an application\n\n (7) An applicant for an authorisation may at any time, by writing to the Commission, withdraw the application.","sortOrder":1200},{"sectionNumber":"89","sectionType":"section","heading":"Procedure for applications and the keeping of a register","content":"89  Procedure for applications and the keeping of a register\n\n (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:\n\n (a) be in a form approved by the Commission in writing and contain the information required by the form; and\n\n (b) be accompanied by any other information or documents prescribed by the regulations; and\n\n (c) be accompanied by the fee (if any) prescribed by the regulations.\n\n (1AA) Without limiting paragraph (1)(a), the form may require an application for a merger authorisation to contain an undertaking under section 87B that the applicant will not make the acquisition to which the authorisation relates while the Commission is considering the application.\n\n (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:\n\n (a) stating that the person has not made a valid application; and\n\n (b) giving reasons why the purported application does not comply with this Division.\n\n (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.\n\n (2) If the Commission receives an application referred to in subsection (1), the Commission must cause notice of the receipt of that application to be made public in such manner as it thinks fit.\n\n (3) The Commission must keep a register of:\n\n (a) applications for authorisations; and\n\n (b) applications for minor variations of authorisations; and\n\n (c) applications for, or the Commission’s proposals for, the revocation of authorisations; and\n\n (d) applications for, or the Commission’s proposals for, the revocation of authorisations and the substitution of other authorisations;\n\nincluding applications that have been withdrawn or proposals that have been abandoned.\n\n (4) Subject to this section, the register kept under subsection (3) shall include:\n\n (a) any document furnished to the Commission in relation to an application or proposal referred to in subsection (3);\n\n (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;\n\n (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;\n\n (b) particulars of any oral submission made to the Commission in relation to such an application or proposal; and\n\n (c) the determination of the Commission on such an application or proposal and the statement of the reasons given by the Commission for that determination.\n\n (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.\n\n (5A) Where such a request is made:\n\n (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:\n\n (i) a secret formula or process;\n\n (ii) the cash consideration offered for the acquisition of shares in the capital of a body corporate or assets of a person; or\n\n (iii) the current costs of manufacturing, producing or marketing goods or services;\n\n  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\n\n (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.\n\n (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.\n\n (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.\n\n (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).\n\n (5E) If a person requests, in accordance with subsection (5) that a document or a part of a document, or that particulars of a submission or of part of a submission, be excluded from the register kept under subsection (3), the document or part of the document, or particulars of the submission or of the part of the submission, shall not be included in that register until the Commission has made a determination in relation to the request.\n\n (6) A document shall not be included in the register kept under subsection (3) if a direction in relation to that document was in force under paragraph 22(1)(b) of this Act immediately before the commencement of the Trade Practices Amendment Act 1977.\n\n (7) The Commission may disclose information excluded under this section from the register kept under subsection (3) to such persons and on such terms as it considers reasonable and appropriate for the purposes of making its determination on the application concerned.","sortOrder":1201},{"sectionNumber":"90","sectionType":"section","heading":"Determination of applications for authorisations","content":"90  Determination of applications for authorisations\n\n (1) The Commission shall, in respect of an application for an authorisation:\n\n (a) make a determination in writing granting such authorisation as it considers appropriate; or\n\n (b) make a determination in writing dismissing the application.\n\n (4) The Commission shall state in writing its reasons for a determination made by it.\n\n (5) Before making a determination in respect of an application for an authorisation other than a merger authorisation the Commission shall comply with the requirements of section 90A.\n\nNote: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.\n\n (6) Before making a determination in respect of an application for an authorisation, the Commission may do any one or more of the following:\n\n (a) give any persons who appear to the Commission to be interested a written notice inviting submissions in respect of the application within a specified period;\n\n (b) give the applicant a written notice requesting the applicant to give the Commission, within a specified period, additional information relevant to making its determination in respect of the application;\n\n (c) give a person a written notice requesting the person to give the Commission, within a specified period, particular information relevant to making its determination in respect of the application;\n\n (d) consult with such persons as it considers reasonable and appropriate for the purposes of making its determination in respect of the application.\n\n (6A) In making a determination in respect of an application for an authorisation, the Commission must take into account:\n\n (a) any submissions or information received under paragraph (6)(a), (b) or (c) within the period specified in the notice mentioned in that paragraph; and\n\n (b) any information obtained from consultations under paragraph (6)(d)).\n\nThe Commission may, but need not, take into account any submissions or information received after the end of those periods.\n\nNote: Unless the application is for a merger authorisation, the Commission may instead rely on consultations undertaken by the AEMC: see section 90B.\n\n (7) The Commission must not make a determination granting an authorisation under section 88 in relation to conduct unless:\n\n (a) the Commission is satisfied in all the circumstances that the conduct would not have the effect, or would not be likely to have the effect, of substantially lessening competition; or\n\n (b) the Commission is satisfied in all the circumstances that:\n\n (i) the conduct would result, or be likely to result, in a benefit to the public; and\n\n (ii) the benefit would outweigh the detriment to the public that would result, or be likely to result, from the conduct.\n\n (8) Paragraph (7)(a) does not apply if any of the following provisions would (apart from an authorisation under section 88) apply to the conduct:\n\n (a) one or more provisions of Division 1 of Part IV (cartel conduct);\n\n (b) one or more of sections 45D to 45DB (secondary boycotts);\n\n (ba) one or more provisions of section 45E or 45EA (contracts etc. affecting the supply or acquisition of goods or services);\n\n (c) section 48 (resale price maintenance).\n\n (9A) In relation to the Commission’s consideration of an application for an authorisation to engage in conduct to which section 49 would or might apply or for a merger authorisation, in determining what amounts to a benefit to the public for the purposes of paragraph (7)(b):\n\n (a) the Commission must regard the following as benefits to the public (in addition to any other benefits to the public that may exist apart from this paragraph):\n\n (i) a significant increase in the real value of exports;\n\n (ii) a significant substitution of domestic products for imported goods; and\n\n (b) without limiting the matters that may be taken into account, the Commission must take into account all other relevant matters that relate to the international competitiveness of any Australian industry.\n\n (10) If the Commission does not determine an application for an authorisation (other than an application for a merger authorisation) within the relevant period, then it is taken to have granted the application at the end of that period.\n\n (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:\n\n (a) the Commission has prepared a draft determination under subsection 90A(1) in relation to the application; and\n\n (b) the Commission determines in writing that that period is extended by a specified period of not more than 6 months; and\n\n (c) the applicant agrees to that period being so extended;\n\nthe relevant period is that period as so extended.\n\n (10B) Subject to subsections (12) and (13), if:\n\n (a) the Commission does not determine an application for a merger authorisation within the 90‑day period beginning on the day the Commission received the application; and\n\n (b) the application is not an application for an overseas merger authorisation;\n\nthe Commission is taken to have refused, at the end of that period, to grant the authorisation applied for.\n\n (11) Subject to subsections (12) and (13), if the Commission does not determine an application for an overseas merger authorisation within:\n\n (a) 30 days from the day on which the application is received by the Commission; or\n\n (b) if the Commission, before the end of that period of 30 days, gives to the applicant a notice in writing requesting the applicant to give to the Commission additional information relevant to the determination of the application—the period consisting of 30 days from the day on which the application is received by the Commission increased by the number of days in the period commencing on the day on which the notice is given to the applicant and ending on the day on which the applicant gives to the Commission such of the additional information as the applicant is able to provide;\n\nthe Commission shall be deemed to have granted, at the end of that period, the authorisation applied for.\n\n (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.\n\n (12) If the applicant for an authorisation informs the Commission in writing before the expiration of the period referred to in subsection (10B) or (11) (the base period) that the applicant agrees to the Commission taking a specified longer period for the determination of the application, a reference to that longer period shall be deemed for the purposes of that application to be substituted in that subsection for the reference in that subsection to the base period.\n\n (13) For the purposes of any application of subsection (12), a reference in that subsection to the base period shall, if a reference to another period is deemed by any other application or applications of that subsection to have been substituted in subsection (10B) or (11) for the reference in subsection (10B) or (11) to the base period, be construed as a reference to that other period.\n\n (14) If a person to whom a notice has been sent under subsection 90A(2) in relation to a draft determination in respect of an application for an authorisation notifies the Commission in accordance with subsection 90A(6) that he or she wishes the Commission to hold a conference in relation to the draft determination, the relevant period (worked out under subsection (10A) of this section) shall be deemed to be increased by a period equal to the period commencing on the day on which the first notification in relation to the draft determination was received by the Commission and ending on the seventh day after the day specified in the certificate given by a member of the Commission in pursuance of subsection 90A(9) as the day on which the conference terminated.\n\n (15) Where a party to a joint venture makes at the one time two or more applications for authorisations (other than an application for a merger authorisation), being applications each of which deals with a matter relating to the joint venture:\n\n (a) the Commission shall not make a determination in respect of any one of those applications unless it also makes a determination or determinations at the same time in respect of the other application or other applications; and\n\n (b) if the Commission does not make a determination in respect of any one of the applications within the relevant period (worked out under subsection (10A)) in relation to that application, the Commission shall be deemed to have granted, at the expiration of that period, all the authorisations applied for.\n\n (16) The Commission must not grant a merger authorisation on or after 1 January 2026.","sortOrder":1202},{"sectionNumber":"90A","sectionType":"section","heading":"Commission to afford opportunity for conference before determining application for authorisation","content":"90A  Commission to afford opportunity for conference before determining application for authorisation\n\n (1) Before determining an application for an authorisation (other than an application for a merger authorisation), the Commission shall prepare a draft determination in relation to the application.\n\n (2) The Commission shall, by notice in writing sent to the applicant and to each other interested person, invite the applicant or other person to notify the Commission, within 14 days after a date fixed by the Commission being not earlier than the day on which the notice is sent, whether the applicant or other person wishes the Commission to hold a conference in relation to the draft determination.\n\n (3) If:\n\n (a) the draft determination provides for the granting of the application unconditionally; and\n\n (b) no person has made a written submission to the Commission opposing the application;\n\neach notice by the Commission under subsection (2) shall inform the person to whom the notice is sent that the draft determination so provides.\n\n (4) If:\n\n (a) the draft determination does not provide for the granting of the application or provides for the granting of the application subject to conditions; or\n\n (b) the draft determination provides for the granting of the application unconditionally but a written submission has, or written submissions have, been made to the Commission opposing the application;\n\nthe Commission shall send with each notice under subsection (2) a copy of the draft determination and:\n\n (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\n\n (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.\n\n (5) If each of the persons to whom a notice was sent under subsection (2):\n\n (a) notifies the Commission within the period of 14 days mentioned in that subsection that he or she does not wish the Commission to hold a conference in relation to the draft determination; or\n\n (b) does not notify the Commission within that period that he or she wishes the Commission to hold such a conference;\n\nthe Commission may make the determination at any time after the expiration of that period.\n\n (6) If any of the persons to whom a notice was sent under subsection (2) notifies the Commission in writing within the period of 14 days mentioned in that subsection that he or she wishes the Commission to hold a conference in relation to the draft determination, the Commission shall appoint a date (being not later than 30 days after the expiration of that period), time and place for the holding of the conference and give notice of the date, time and place so appointed to each of the persons to whom a notice was sent under subsection (2).\n\n (7) At the conference:\n\n (a) the Commission shall be represented by a member or members of the Commission (being a member or members who participated in the preparation of the draft determination) nominated by the Chairperson; and\n\n (b) each person to whom a notice was sent under subsection (2) and any other interested person whose presence at the conference is considered by the Commission to be appropriate is entitled to attend and participate personally or, in the case of a body corporate, may be represented by a person who, or by persons each of whom, is a director, officer or employee of the body corporate; and\n\n (c) a person participating in the conference in accordance with paragraph (a) or (b) is entitled to have another person or other persons present to assist him or her but a person who so assists another person at the conference is not entitled to participate in the discussion; and\n\n (e) no other person is entitled to be present.\n\n (8) A member of the Commission participating in the conference shall make such record of the discussions as is sufficient to set out the matters raised by the persons participating in the conference.\n\n (9) The member of the Commission who represents the Commission at the conference, or, if the Commission is represented by more than one member of the Commission, one of those members appointed by the Chairperson:\n\n (a) may exclude from the conference any person who uses insulting language at the conference, creates, or takes part in creating or continuing, a disturbance at the conference or repeatedly interrupts the conference;\n\n (b) may terminate the conference when he or she is of the opinion that a reasonable opportunity has been given for the expression of the views of persons participating in the conference (other than persons excluded from the conference under paragraph (a)); and\n\n (c) shall give a certificate certifying the day on which the first notification under subsection (6) in relation to the draft determination was received by the Commission and the day on which the conference terminated;\n\nand any such certificate shall be received in all courts as prima facie evidence of the matters certified.\n\n (10) A document purporting to be a certificate referred to in subsection (9) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.\n\n (11) The Commission shall take account of all matters raised at the conference and may at any time after the termination of the conference make a determination in respect of the application.\n\n (12) For the purposes of this section, interested person means a person who has notified the Commission in writing that he or she, or a specified unincorporated association of which he or she is a member, claims to have an interest in the application, being an interest that, in the opinion of the Commission, is real and substantial.\n\n (13) Where the Commission is of the opinion that two or more applications for authorisations 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.","sortOrder":1203},{"sectionNumber":"90B","sectionType":"section","heading":"Commission may rely on consultations undertaken by the AEMC","content":"90B  Commission may rely on consultations undertaken by the AEMC\n\n (1) This section applies if:\n\n (a) an application under section 88, 91A, 91B or 91C is made in relation to the National Electricity Rules or a provision of the Rules; and\n\n (b) the AEMC has done the following:\n\n (i) published the Rules or the provision and invited people to make submissions to it on the Rules or the provision;\n\n (ii) specified the effect of subsection (2) when it published the Rules or the provision;\n\n (iii) considered any submissions that were received within the time limit specified by it when it published the Rules or the provision.\n\n (2) In making a determination under section 90, 91A, 91B or 91C:\n\n (a) the Commission may rely on the process mentioned in paragraph (1)(b), instead of undertaking the process mentioned in section 90A, subsection 91A(2), 91B(2) or 91C(2) or (5); and\n\n (b) the Commission may take into account:\n\n (i) any submissions mentioned in subparagraph (1)(b)(iii); and\n\n (ii) any submissions, in respect of the application, made by the AEMC; and\n\n (c) despite subsection 90(6A), the Commission may disregard any submissions, in relation to the application, made by the Commonwealth, by a State or Territory, or by any other person (other than the AEMC).\n\n (3) In this section:\n\nNational Electricity Rules means:\n\n (a) the National Electricity Rules, as in force from time to time, made under the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia; or\n\n (b) those Rules as they apply as a law of another State; or\n\n (c) those Rules as they apply as a law of a Territory; or\n\n (d) those Rules as they apply as a law of the Commonwealth.","sortOrder":1204},{"sectionNumber":"91","sectionType":"section","heading":"Grant and variation of authorisations","content":"91  Grant and variation of authorisations\n\n (1) An authorisation may be expressed to be in force for a period specified in the authorisation and, if so expressed, remains in force for that period only.\n\n (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:\n\n (a) where paragraph (b) or (c) does not apply—the end of the period in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the authorisation;\n\n (b) if such an application is made to the Tribunal and the application is not withdrawn—the day on which the Tribunal makes a determination on the review;\n\n (c) if such an application is made to the Tribunal and the application is withdrawn—the day on which the application is withdrawn.\n\n (1B) A minor variation of an authorisation comes into force on a day specified by the Commission in the determination making the variation, not being a day earlier than:\n\n (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\n\n (b) if such an application is made to the Tribunal and the application is not withdrawn—the day on which the Tribunal makes a determination on the review; or\n\n (c) if such an application is made to the Tribunal and the application is withdrawn—the day on which the application is withdrawn.\n\n (1C) If an authorisation (the prior authorisation) is revoked and another authorisation is made in substitution for it, that other authorisation comes into force on the day specified for the purpose in that other authorisation, not being a day earlier than:\n\n (a) if neither paragraph (b) nor (c) applies—the end of the period in which an application may be made to the Tribunal for a review of an application, or the Commission’s proposal, for the revocation of the prior authorisation and the substitution of that other authorisation; or\n\n (b) if such an application is made to the Tribunal and the application is not withdrawn—the day on which the Tribunal makes a determination on the review; or\n\n (c) if such an application is made to the Tribunal and the application is withdrawn—the day on which the application is withdrawn.\n\n (2) If the Commission considers that it is appropriate to do so:\n\n (a) for the purpose of enabling due consideration to be given to:\n\n (i) an application for an authorisation; or\n\n (ii) an application for a minor variation of an authorisation; or\n\n (iii) an application for the revocation of an authorisation and the substitution of a new one; or\n\n (b) pending the expiration of the time allowed for the making of an application to the Tribunal for review of a determination by the Commission of an application referred to in paragraph (a) and, if such an application for a review is made, pending the making of a determination by the Tribunal on the review; or\n\n (c) for any other reason;\n\nthe Commission may at any time:\n\n (d) in the case of an application for an authorisation—grant an authorisation that is expressed to be an interim authorisation; and\n\n (e) in the case of an application for a minor variation of an authorisation—grant an authorisation that is expressed to be an interim authorisation dealing only with the matter the subject of the application for a variation; and\n\n (f) in the case of an application for the revocation of an authorisation and the substitution of another—suspend the operation of the authorisation sought to be revoked and grant an authorisation that is expressed to be an interim authorisation in substitution for the authorisation suspended.\n\n (2AA) An authorisation granted under paragraph 91(2)(d), (e) or (f) and expressed to be an interim authorisation comes into force on such a date, not being a date before the grant of the interim authorisation, as is specified by the Commission in the interim authorisation.\n\n (2AB) The Commission may, at any time, revoke an authorisation that is expressed to be an interim authorisation and, where that interim authorisation is in substitution for an authorisation the operation of which has been suspended, the revocation of the interim authorisation has the effect of reviving the operation of the suspended authorisation.\n\n (2A) Subsections 90(4) to (7), inclusive, do not apply in relation to an authorisation that is expressed to be an interim authorisation.","sortOrder":1205},{"sectionNumber":"91A","sectionType":"section","heading":"Minor variations of authorisations","content":"91A  Minor variations of authorisations\n\n (1) A person to whom an authorisation was granted, or another person on behalf of such a person, may apply to the Commission for a minor variation of the authorisation.\n\n (2) On receipt of an application, the Commission must, if it is satisfied that the variation sought in the application is a minor variation, by notice in writing given to any persons who appear to the Commission to be interested:\n\n (a) indicate the nature of the variation applied for; and\n\n (b) invite submissions in respect of the variation within a period specified by the Commission.\n\nNote: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.\n\n (2A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation to an application for a minor variation of an authorisation in a corresponding way to the way in which it applies in relation to an application for an authorisation.\n\n (3) The Commission may make a determination in writing varying the authorisation or dismissing the application after taking into account the following:\n\n (a) the application;\n\n (b) any submissions that are received within the period specified under paragraph (2)(b);\n\n (c) any information received under paragraph 90(6)(b) or (c) (as that paragraph applies because of subsection (2A) of this section) within the period specified in the notice mentioned in that paragraph;\n\n (d) any information obtained from consultations under paragraph 90(6)(d) (as that paragraph applies because of subsection (2A) of this section).\n\nThe Commission may, but need not, take into account any submissions or information received after the end of those periods.\n\n (4) The Commission must not make a determination varying an authorisation in relation to conduct unless the Commission is satisfied in all the circumstances that:\n\n (a) if, in making the determination to grant the authorisation in relation to conduct, the Commission was satisfied that the conduct would not have the effect, or would not be likely to have the effect, of substantially lessening competition—the variation would not have the effect, or would not be likely to have the effect, of increasing the extent to which the conduct lessens competition; or\n\n (b) if paragraph (a) does not apply—the variation would not result, or would not be likely to result, in a reduction in the extent to which the benefit to the public of the authorisation outweighs any detriment to the public caused by the authorisation.\n\n (4A) For the purposes of subsection (4), the Commission need not have regard to conduct that is unaffected by the variation.\n\n (5) Subsections 90(10B), (12) and (13) apply in relation to an application for a minor variation of a merger authorisation that is not an overseas merger authorisation in a corresponding way to the way those subsections apply in relation to an application for a merger authorisation that is not an overseas merger authorisation.\n\nNote: Those subsections deem the Commissioner to have refused to grant the application if the Commission does not determine the application within 90 days (or an extended period in some cases).\n\n (6) Nothing in this section prevents a person from applying for 2 or more variations in the same application.\n\n (7) If:\n\n (a) a person applies for 2 or more variations:\n\n (i) at the same time; or\n\n (ii) in such close succession that the variations could conveniently be dealt with by the Commission at the same time; and\n\n (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 authorisation;\n\nthe Commission may deal with all of those variations together as if they were a single minor variation.\n\n (8) An application for a minor variation may be withdrawn by notice in writing to the Commission at any time.","sortOrder":1206},{"sectionNumber":"91B","sectionType":"section","heading":"Revocation of an authorisation","content":"91B  Revocation of an authorisation\n\n (1) A person to whom an authorisation was granted, or another person on behalf of such a person, may apply to the Commission for a revocation of the authorisation.\n\n (2) On receipt of such an application, the Commission must, by notice in writing given to any persons who appear to the Commission to be interested:\n\n (a) indicate that the revocation of the authorisation has been applied for; and\n\n (b) indicate the basis on which the revocation has been applied for; and\n\n (c) invite submissions in respect of the revocation within a period specified by the Commission.\n\nNote: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.\n\n (3) If, at any time after granting an authorisation, it appears to the Commission that:\n\n (a) the authorisation was granted on the basis of evidence or information that was false or misleading in a material particular; or\n\n (b) a condition to which the authorisation was expressed to be subject has not been complied with; or\n\n (c) there has been a material change of circumstances since the authorisation was granted;\n\nthe Commission may, by notice in writing given to any persons who appear to the Commission to be interested:\n\n (d) inform those persons that it is considering the revocation of the authorisation; and\n\n (e) indicate the basis on which the revocation is being proposed; and\n\n (f) invite submissions in respect of the revocation within a period specified by the Commission.\n\n (3A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation to an application for a revocation of an authorisation in a corresponding way to the way in which it applies in relation to an application for an authorisation.\n\n (3B) Subsection 90(6) (other than paragraphs 90(6)(a) and (b)) applies in relation to a proposal for a revocation of an authorisation in a corresponding way to the way in which it applies in relation to an application for an authorisation.\n\n (4) The Commission may make a determination in writing revoking the authorisation, or deciding not to revoke the authorisation, after taking into account the following:\n\n (a) if subsection (2) applies—the application;\n\n (b) any submissions that are received within the period specified under paragraph (2)(c) or (3)(f);\n\n (c) any information received under paragraph 90(6)(b) (as it applies because of subsection (3A) of this section) within the period specified in the notice mentioned in that paragraph;\n\n (d) any information received under paragraph 90(6)(c) (as it applies because of subsection (3A) or (3B) of this section) within the period specified in the notice mentioned in that paragraph;\n\n (e) any information obtained from consultations under paragraph 90(6)(d) (as it applies because of subsection (3A) or (3B) of this section).\n\nThe Commission may, but need not, take into account any submissions or information received after the end of those periods.\n\n (5) If an objection to revoking the authorisation is included in any submission or information:\n\n (a) referred to in subsection (4); and\n\n (b) received by the Commission within the period (if any) referred to in that subsection;\n\nthe Commission must not make a determination revoking the authorisation unless the Commission is satisfied that it would, if the authorisation had not already been granted, be prevented under subsection 90(7) from granting the authorisation.\n\n (5A) Subsections 90(10B), (12) and (13) apply in relation to an application for a revocation of a merger authorisation that is not an overseas merger authorisation in a corresponding way to the way those subsections apply in relation to an application for a merger authorisation that is not an overseas merger authorisation.\n\nNote: Those subsections deem the Commissioner to have refused to grant the application if the Commission does not determine the application within 90 days (or an extended period in some cases).\n\n (6) An application for revocation may be withdrawn by notice in writing to the Commission at any time.\n\n (7) The Commission may disregard any objection that, in its opinion, is either vexatious or frivolous.","sortOrder":1207},{"sectionNumber":"91C","sectionType":"section","heading":"Revocation of an authorisation and substitution of a replacement","content":"91C  Revocation of an authorisation and substitution of a replacement\n\n (1) A person to whom an authorisation was granted, or another person on behalf of such a person, may apply to the Commission for a revocation of the authorisation and the substitution of a new authorisation for the one revoked.\n\n (2) On receipt of such an application, the Commission must, by notice in writing given to any persons who appear to the Commission to be interested:\n\n (a) indicate that the revocation of the authorisation, and the substitution of another authorisation for it, has been applied for; and\n\n (b) indicate the basis upon which the revocation and substitution has been applied for and the nature of the substituted authorisation so applied for; and\n\n (c) invite submissions in respect of the revocation and substitution within a period specified by the Commission.\n\nNote: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.\n\n (3) If, at any time after granting an authorisation, it appears to the Commission that:\n\n (a) the authorisation was granted on the basis of evidence or information that was false or misleading in a material particular; or\n\n (b) a condition to which the authorisation was expressed to be subject has not been complied with; or\n\n (c) there has been a material change of circumstances since the authorisation was granted;\n\nthe Commission may, by notice in writing given to any persons who appear to be interested:\n\n (d) inform those persons that it is considering the revocation of the authorisation and the substitution of a new authorisation; and\n\n (e) indicate the basis on which the revocation and substitution is being proposed and the nature of the substituted authorisation proposed; and\n\n (f) invite submissions in respect of the proposed action within a period specified by the Commission.\n\n (3A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation to an application for a revocation and substitution of an authorisation in a corresponding way to the way in which it applies in relation to an application for an authorisation.\n\n (3B) Subsection 90(6) (other than paragraphs 90(6)(a) and (b)) applies in relation to a proposal for a revocation and substitution of an authorisation in a corresponding way to the way in which it applies in relation to an application for an authorisation.\n\n (4) The Commission may make a determination in writing revoking the authorisation and granting a substitute authorisation that it considers appropriate, or deciding not to revoke the authorisation, after taking into account the following:\n\n (a) if subsection (2) applies—the application;\n\n (b) any submissions that are received within the period specified under paragraph (2)(c) or (3)(f);\n\n (c) any information received under paragraph 90(6)(b) (as it applies because of subsection (3A) of this section) within the period specified in the notice mentioned in that paragraph;\n\n (d) any information received under paragraph 90(6)(c) (as it applies because of subsection (3A) or (3B) of this section) within the period specified in the notice mentioned in that paragraph;\n\n (e) any information obtained from consultations under paragraph 90(6)(d) (as it applies because of subsection (3A) or (3B) of this section).\n\nThe Commission may, but need not, take into account any submissions or information received after the end of those periods.\n\n (5) Before making a determination under subsection (4) in relation to an application, or a proposal, for the revocation of an authorisation other than a merger authorisation and the substitution of another, the Commission must comply with the requirements of section 90A.\n\nNote: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.\n\n (6) For the purposes of complying with section 90A in accordance with subsection (5), section 90A has effect:\n\n (a) as if the reference in subsection (1) to an application for an authorisation (other than an application for a merger authorisation) were a reference to an application, or to a proposal, for the revocation of an authorisation (other than a merger authorisation) and the substitution of another authorisation; and\n\n (b) as if references in other provisions of that section to an application, or to an application for an authorisation, were references either to an application, or to a proposal, for the revocation of an authorisation and the substitution of another; and\n\n (c) as if subsection 90A(2) had provided, in its operation in relation to a proposal for the revocation of an authorisation and the substitution of another, that:\n\n (i) the reference to the applicant and to each other interested person were a reference only to each interested person; and\n\n (ii) each reference to the applicant or other person were a reference only to the other person.\n\n (7) The Commission must not make a determination revoking an authorisation and substituting another authorisation unless the Commission is satisfied that it would not be prevented under subsection 90(7) from making a determination granting the substituted authorisation, if it were a new authorisation sought under section 88.\n\n (7A) Subsections 90(10B), (12) and (13) apply in relation to an application for a revocation and substitution of a merger authorisation that is not an overseas merger authorisation in a corresponding way to the way those subsections apply in relation to an application for a merger authorisation that is not an overseas merger authorisation.\n\nNote: Those subsections deem the Commissioner to have refused to grant the application if the Commission does not determine the application within 90 days (or an extended period in some cases).\n\n (8) An application for the revocation of an authorisation and the substitution of another authorisation may be withdrawn by notice in writing to the Commission at any time.","sortOrder":1208},{"sectionNumber":"92","sectionType":"section","heading":"Providing false or misleading information","content":"92  Providing false or misleading information\n\n (1) A person must not give information to the Commission or Tribunal under this Division or Part IX in connection with any of the following if the person is negligent as to whether the information is false or misleading in a material particular:\n\n (a) an application for a merger authorisation;\n\n (b) an application for a minor variation of a merger authorisation;\n\n (c) an application for, or the Commission’s proposal for, the revocation of a merger authorisation;\n\n (d) an application for, or the Commission’s proposal for, the revocation of a merger authorisation and the substitution of another merger authorisation;\n\n (e) a review of a determination in relation to an application or proposal referred to in paragraph (a), (b), (c) or (d).\n\nNote: 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.\n\n (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.","sortOrder":1209},{"sectionNumber":"92A","sectionType":"section","heading":"Definitions","content":"92A  Definitions\n\n (1) In this Division:\n\nbusiness day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.\n\n (2) A reference in this Division to an authorisation is a reference to an authorisation under this Division.","sortOrder":1211},{"sectionNumber":"92B","sectionType":"section","heading":"Commission may grant authorisations in exceptional circumstances and emergencies","content":"92B  Commission may grant authorisations in exceptional circumstances and emergencies\n\nGranting an authorisation in exceptional circumstances and emergencies\n\n (1) Subject to this Division, the Commission may, on an application by a person, grant an authorisation to a person to engage in conduct, specified in the authorisation, to which one or more provisions of Division 1 or 2 of Part IV specified in the authorisation would or might apply.\n\nNote: For an extended meaning of engaging in conduct, see subsection 4(2).\n\nEffect of an authorisation\n\n (2) While the authorisation remains in force, the provisions of Division 1 or 2 of Part IV specified in the authorisation do not apply in relation to the conduct to the extent that it is engaged in by:\n\n (a) the applicant; and\n\n (b) any other person named or referred to in the application as a person who is engaged in, or who is proposed to be engaged in, the conduct; and\n\n (c) any particular persons or classes of persons, as specified in the authorisation, who become engaged in the conduct.\n\nConditions\n\n (3) The Commission may specify conditions in the authorisation. Subsection (2) does not apply if any of the conditions are not complied with.\n\n (4) Without limiting subsection (3), a condition may include a requirement to obtain the approval of the Commission before engaging in certain conduct.\n\nSingle authorisation may deal with several types of conduct\n\n (5) The Commission may grant a single authorisation for all the conduct specified in an application for authorisation, or may grant separate authorisations for any of the conduct.\n\nPast conduct\n\n (6) The Commission may grant an authorisation for conduct engaged in before the Commission decided the application.\n\nWithdrawing an application\n\n (7) An applicant for an authorisation may at any time, by writing to the Commission, withdraw the application.","sortOrder":1212},{"sectionNumber":"92C","sectionType":"section","heading":"Procedure for applications","content":"92C  Procedure for applications\n\n  An application for an authorisation under this Division must:\n\n (a) be in a form approved by the Commission in writing and contain the information required by the form; and\n\n (b) be accompanied by any other information or documents prescribed by the regulations; and\n\n (c) specify that it is an application made under this Division.","sortOrder":1213},{"sectionNumber":"92D","sectionType":"section","heading":"Determination of applications","content":"92D  Determination of applications\n\n (1) If a declaration mentioned in subsection (2) is in force, the Commission may, in respect of an application for an authorisation under this Division:\n\n (a) make a determination in writing granting such authorisation as it considers appropriate; or\n\n (b) make a determination in writing dismissing the application.\n\n (2) The declarations are the following:\n\n (a) a declaration under section 95AE;\n\n (b) a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020).\n\n (3) The Commission must not make a determination under subsection (1) granting an authorisation in relation to conduct unless the Commission is satisfied that, in all the circumstances, the conduct would assist, or would be likely to assist, in the response to or recovery from the exceptional circumstances or emergency to which the declaration relates.\n\n (4) In making a determination under subsection (1), the Commission:\n\n (a) must have regard to:\n\n (i) the likely benefit to the public resulting from the assistance, or likely assistance, in response to or recovery from the exceptional circumstances to which the declaration relates; and\n\n (ii) the detriment to the public that would result, or be likely to result, from the conduct; and\n\n (b) may have regard to any other public benefit that would result or likely result from the conduct.\n\n (5) A determination under subsection (1) must specify the exceptional circumstances or emergency to which it relates.\n\n (6) The Commission must state in writing its reasons for a determination under subsection (1).\n\n (7) The Commission must give the person who made the application written notice of the determination.\n\n (8) The Commission must not make a determination to grant a merger authorisation under this section.","sortOrder":1214},{"sectionNumber":"92E","sectionType":"section","heading":"Period for which authorisations remain in force","content":"92E  Period for which authorisations remain in force\n\n  An authorisation under this Division is in force for the period:\n\n (a) starting on the day specified in the determination (which may be before the commencement of this section, but must not be before 1 April 2026); and\n\n (b) ending at the earliest of the following:\n\n (i) the start of the day specified in the determination;\n\n (ii) if the determination is revoked—the end of the day the revocation takes effect;\n\n (iii) the end of the last day on which a declaration mentioned in subsection 92D(2) to which the determination relates is in force.","sortOrder":1215},{"sectionNumber":"92F","sectionType":"section","heading":"Variation of authorisations","content":"92F  Variation of authorisations\n\n (1) The Commission may, at any time, make a determination in writing to vary an authorisation under this Division if the Commission considers it appropriate to do so.\n\n (2) The Commission must not make a determination under subsection (1) varying an authorisation unless the Commission is satisfied that, in all the circumstances, the conduct specified in the authorisation as varied would assist, or would be likely to assist, in the response to or recovery from the exceptional circumstances or emergency to which the declaration relates.\n\n (3) In making a determination under subsection (1), the Commission:\n\n (a) must have regard to:\n\n (i) the likely benefit to the public resulting from the assistance, or likely assistance, in response to or recovery from the exceptional circumstances to which the declaration relates; and\n\n (ii) the detriment to the public that would result, or be likely to result, from the conduct; and\n\n (b) may have regard to any other public benefit that would result or likely result from the conduct.\n\n (4) The Commission must give the person who applied for the authorisation written notice stating:\n\n (a) that the authorisation is varied; and\n\n (b) details of the variation; and\n\n (c) the date on which the variation takes effect.\n\n (5) The variation takes effect on the business day after the day on which the notice is given.","sortOrder":1216},{"sectionNumber":"92G","sectionType":"section","heading":"Revocation of authorisations","content":"92G  Revocation of authorisations\n\n (1) The Commission may, at any time, revoke an authorisation under this Division if the Commission considers that:\n\n (a) the conduct would not assist, or would not be likely to assist, in the response to or recovery from the exceptional circumstances or emergency specified in the determination; or\n\n (b) the conduct is not appropriate; or\n\n (c) the authorisation was granted on the basis of evidence or information that was false or misleading in a material particular; or\n\n (d) a condition to which the authorisation was expressed to be subject has not been complied with.\n\n (2) The Commission must give the person who applied for the authorisation written notice stating:\n\n (a) that the authorisation is revoked; and\n\n (b) the date on which the revocation takes effect.\n\n (3) The revocation takes effect on the business day after the day on which the notice is given.","sortOrder":1217},{"sectionNumber":"92H","sectionType":"section","heading":"Register of applications and proposals","content":"92H  Register of applications and proposals\n\n (1) The Commission must keep a register of the following things under this Division:\n\n (a) determinations of applications for authorisations;\n\n (b) variations of authorisations;\n\n (c) revocation of authorisations.\n\n (2) The register must include the statement of the reasons given by the Commissioner for a determination.\n\n (3) The Commission is not required under subsection (2) to include the determination of an application on the register until the end of the period of 7 business days beginning on:\n\n (a) if a declaration under section 95AE is in force—the day on which the declaration ceases to be in force; or\n\n (b) if a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) is in force—the day on which the declaration ceases to be in force; or\n\n (c) if both a declaration under section 95AE and a national emergency declaration are in force—the later of the days on which they cease to be in force.","sortOrder":1218},{"sectionNumber":"93","sectionType":"section","heading":"Notification of exclusive dealing or resale price maintenance","content":"93  Notification of exclusive dealing or resale price maintenance\n\n (1) Subject to subsection (2):\n\n (a) 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); or\n\n (b) a corporation or other person who engages, or proposes to engage, in conduct of a kind referred to in section 48;\n\nmay give to the Commission a notice setting out particulars of the conduct or proposed conduct.\n\n (1A) To be valid, a notice under subsection (1) must:\n\n (a) be in a form approved by the Commission in writing and contain the information required by the form; and\n\n (b) be accompanied by any other information or documents prescribed by the regulations; and\n\n (c) be accompanied by the fee (if any) prescribed by the regulations.\n\n (2) A corporation or other person may not give a notice under subsection (1) for conduct or proposed conduct if:\n\n (a) the corporation or other person applied for an authorisation for the conduct or proposed conduct; and\n\n (b) the Commission or the Trade Practices Commission made a determination dismissing the application; and\n\n (c) either:\n\n (i) the Tribunal or the Trade Practices Tribunal made a determination on an application for a review of a determination described in paragraph (b); or\n\n (ii) the time for making such an application for review has ended without the making of an application.\n\n (2A) In subsection (2):\n\nTrade Practices Commission means the Trade Practices Commission established by section 6A of this Act as in force immediately before this subsection commenced.\n\nTrade Practices Tribunal means the Trade Practices Tribunal continued in existence by section 30 of this Act as in force immediately before this subsection commenced.\n\n (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:\n\n (a) stating that the person has not given a valid notice; and\n\n (b) giving reasons why the purported notice does not comply with this Division.\n\nDefinition\n\n (2C) In subsection (2B):\n\nbusiness day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.\n\n (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), (5), (6), (7), (8) or (9) and referred to in a notice given by the corporation under subsection (1):\n\n (a) has or would have the purpose or has or is likely to have, or would have or be likely to have, the effect of substantially lessening competition within the meaning of section 47; and\n\n (b) in all the circumstances:\n\n (i) 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\n\n (ii) has resulted or is likely to result, or would result or be likely to result, in a benefit to the public that has not or would not outweigh the detriment to the public that has resulted or is likely to result from the conduct or would result or be likely to result from the proposed conduct;\n\nthe 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.\n\n (3A) If:\n\n (a) a corporation or other person has notified the Commission under subsection (1) of conduct or proposed conduct described in section 48; and\n\n (b) the Commission is satisfied that the likely benefit to the public from the conduct or proposed conduct will not outweigh the likely detriment to the public from the conduct or proposed conduct;\n\nthe Commission may give the corporation or other person a written notice stating that the Commission is so satisfied and accompanied by a statement setting out its reasons for being so satisfied.\n\n (3B) If:\n\n (a) a corporation or other person has notified the Commission under subsection (1) of conduct or proposed conduct; and\n\n (b) the Commission has given the corporation or other person a notice under subsection 93AAA(1) imposing conditions relating to the conduct or proposed conduct; and\n\n (c) the Commission is satisfied that the corporation or other person has failed to comply with those conditions;\n\nthe Commission may at any time give notice in writing to the corporation or other person stating that the Commission is so satisfied and accompanied by a statement setting out its reasons for being so satisfied.\n\n (4) Before giving a notice under subsection (3), (3A) or (3B) the Commission shall comply with the requirements of section 93A.\n\n (5) In satisfying itself for the purposes of subsection (3), (3A) or (3B) in relation to any conduct or proposed conduct referred to in a notice given to the Commission by a corporation or other person under subsection (1), the Commission shall seek such relevant information as it considers reasonable and appropriate and may make a decision on the basis of any information so obtained and any other information furnished to it by the corporation or other person or any other person or otherwise in its possession.\n\n (6) A corporation or other person that has given a notice to the Commission under this section in relation to any conduct or proposed conduct may, at any time before the Commission has given to the corporation or other person a notice under subsection (3), (3A) or (3B) in relation to the conduct or proposed conduct, by notice in writing to the Commission, withdraw the first‑mentioned notice.\n\n (7) Where a corporation has given notice to the Commission under subsection (1) describing conduct or proposed conduct referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9):\n\n (a) in the case of a notice given before the expiration of the period of 3 months commencing on the date of commencement of the Trade Practices Amendment Act 1977, the engaging by the corporation in the conduct referred to in the notice on or after that date and before the giving of the notice shall not be taken, for the purposes of section 47, to have had the effect of substantially lessening competition within the meaning of that section; and\n\n (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:\n\n (i) the Commission has given notice to the corporation under subsection (3) of this section in relation to the conduct and the conduct takes place more than 30 days (or such longer period as the Commission by writing permits) after the day on which the Commission gave the notice; or\n\n (ii) the notice has been, or is deemed to have been, withdrawn and the conduct takes place after the day on which the notice was, or is deemed to have been, withdrawn.\n\n (7A) A notice under subsection (1) describing conduct or proposed conduct referred to in section 48 comes into force:\n\n (a) at the end of the period of 60 days, or such other period as is prescribed by the regulations, starting on the day when the corporation or other person gave the Commission the notice; or\n\n (b) if the Commission gives notice to the corporation or other person under subsection 93A(2) during that period—when the Commission decides not to give the corporation or other person a notice under subsection (3A) or (3B) of this section.\n\n (7B) A notice under subsection (1) describing conduct or proposed conduct referred to in section 48 does not come into force:\n\n (a) if the notice is withdrawn, or deemed to be withdrawn, before it would come into force under subsection (7A); or\n\n (b) if the Commission:\n\n (i) gives notice to the corporation or other person under subsection 93A(2) during the period described in paragraph (7A)(a); and\n\n (ii) gives notice to the corporation or other person under subsection (3A) or (3B).\n\n (7C) A notice under subsection (1) describing conduct referred to in section 48 ceases to be in force:\n\n (a) when the notice is withdrawn or deemed to be withdrawn; or\n\n (b) if the Commission gives the corporation or other person a notice under subsection (3A)—on the 31st day after the Commission gave the notice under subsection (3A) or on a later day specified in writing by the Commission; or\n\n (c) if the Commission gives the corporation or other person a notice under subsection (3B)—on the 31st day after the Commission gave the notice under subsection (3B) or on a later day specified in writing by the Commission.\n\n (8) Where:\n\n (a) a corporation or other person gives a notice to the Commission under subsection (1) in relation to any conduct or proposed conduct;\n\n (b) before or after the notice is given the corporation or other person makes an application to the Commission for an authorisation to engage in that conduct;\n\n (c) the Commission:\n\n (i) makes a determination dismissing the application; or\n\n (ii) makes a determination granting an authorisation in respect of the application; and\n\n (d) the Tribunal makes a determination on an application for a review of the determination of the Commission or the time for making such an application for review expires without an application for review having been made;\n\nthe notice shall thereupon be deemed to be withdrawn.\n\n (9) If an application is made to the Tribunal for a review of the giving of a notice by the Commission under subsection (3), (3A) or (3B), a reference in subsection (7) or paragraph (7C)(b) or (7C)(c) to the day on which the Commission gave the notice shall be read as a reference to:\n\n (a) if the application is withdrawn—the day on which the application is withdrawn;\n\n (b) if the Tribunal, on the application of the Commission or of any other person who the Tribunal is satisfied has an interest in the subject matter of the review, declares that the application for the review is not being proceeded with by the applicant with due diligence—the day on which the Tribunal makes the declaration; or\n\n (c) in any other case—the day on which the Tribunal makes a determination on the review.\n\n (10) Where:\n\n (a) a corporation or other person has given a notice to the Commission under subsection (1) in relation to conduct or proposed conduct and the Commission has given notice to the corporation or other person in writing under subsection (3), (3A) or (3B) in relation to the conduct or the proposed conduct; or\n\n (b) a notice given by a corporation or other person to the Commission under subsection (1) in relation to conduct or proposed conduct is withdrawn or deemed to be withdrawn;\n\nthe corporation or other person 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.","sortOrder":1221},{"sectionNumber":"93AAA","sectionType":"section","heading":"Imposing conditions relating to notifications","content":"93AAA  Imposing conditions relating to notifications\n\n (1) If:\n\n (a) a corporation or other person gives the Commission a notice under subsection 93(1) relating to particular conduct, or proposed conduct, of a kind referred to in section 48; and\n\n (b) the Commission reasonably believes that:\n\n (i) apart from this section, the Commission would have grounds to give the corporation or other person a notice under subsection 93(3A) relating to that notice; and\n\n (ii) those grounds would not exist if particular conditions relating to the conduct or proposed conduct were complied with;\n\nthe Commission may give the corporation or other person a written notice imposing those conditions.\n\n (2) The Commission must, at the time it gives the corporation or other person the notice under subsection (1), give the corporation or other person a written statement of its reasons for giving the notice.","sortOrder":1222},{"sectionNumber":"93AA","sectionType":"section","heading":"Definitions","content":"93AA  Definitions\n\n  In this Subdivision:\n\ncollective bargaining notice means a notice under subsection 93AB(1A) or (1).\n\nconference notice means a notice under subsection 93A(2).\n\ncontract means a contract, arrangement or understanding.\n\nobjection notice means a notice under subsection 93AC(1), (2) or (2A).","sortOrder":1224},{"sectionNumber":"93AB","sectionType":"section","heading":"Notification of collective bargaining","content":"93AB  Notification of collective bargaining\n\nNotice to Commission—cartel provisions\n\n (1A) A corporation that:\n\n (a) has made, or proposes to make, a contract (the initial contract) that contains a cartel provision that:\n\n (i) has the purpose; or\n\n (ii) has or is likely to have the effect;\n\n  mentioned in subsection 45AD(2); or\n\n (b) has made, or proposes to make, a contract (the initial contract) that contains a cartel provision that has the purpose mentioned in a paragraph of subsection 45AD(3) other than paragraph (c); or\n\n (c) proposes to give effect to a provision of a contract (the initial contract) where the provision is a cartel provision that:\n\n (i) has the purpose; or\n\n (ii) has or is likely to have the effect;\n\n  mentioned in subsection 45AD(2); or\n\n (d) proposes to give effect to a provision of a contract (the initial contract) where the provision is a cartel provision that has the purpose mentioned in a paragraph of subsection 45AD(3) other than paragraph (c);\n\nmay 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.\n\nNote 1: Subsection (6) deals with the form etc. of a collective bargaining notice.\n\nNote 2: Section 93AD sets out when a collective bargaining notice comes into force.\n\nNotice to Commission—competition provisions\n\n (1) A corporation that:\n\n (a) has made, or proposes to make, a contract (the initial contract) containing a provision of the kind referred to in paragraph 45(1)(a); or\n\n (b) proposes to give effect to a provision of a contract (the initial contract) where the provision is of the kind referred to in paragraph 45(1)(b);\n\nmay 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.\n\nNote 1: Subsection (6) deals with the form etc. of a collective bargaining notice.\n\nNote 2: Section 93AD sets out when a collective bargaining notice comes into force.\n\nFirst—making of initial contract\n\n (2) First, the corporation must have made, or propose to make, the initial contract with 1 or more persons (the contracting parties) about:\n\n (a) the supply of particular goods or services to; or\n\n (b) the acquisition of particular goods or services from;\n\none or more other persons (the target or targets) by the corporation and the contracting parties.\n\nSecond—making of contracts\n\n (3) Second, the corporation must reasonably expect that it will make 1 or more contracts with the target, or with one or more of those targets, about:\n\n (a) the supply of 1 or more of those goods or services to; or\n\n (b) the acquisition of 1 or more of those goods or services from;\n\nthat target or those targets by the corporation.\n\nThird—price of contracts\n\n (4) Third, the corporation must reasonably expect that:\n\n (a) in the case where the corporation reasonably expects to make only 1 contract with the target or targets—the price for the supply or acquisition of those goods or services under that contract; or\n\n (b) in the case where the corporation reasonably expects to make 2 or more contracts with the target or targets—the sum of the prices for the supply or acquisition of those goods or services under those contracts;\n\nwill 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.\n\nTiming of reasonable expectation\n\n (5) The corporation must have the reasonable expectation referred to in subsections (3) and (4):\n\n (a) at the time of giving the collective bargaining notice; and\n\n (b) if the initial contract has been made—at the time it was made.\n\nForm of notice etc.\n\n (6) To be valid, a collective bargaining notice must:\n\n (a) be in a form approved by the Commission in writing and contain the information required by the form; and\n\n (b) be accompanied by any other information or documents prescribed by the regulations; and\n\n (c) be accompanied by the fee (if any) prescribed by the regulations.\n\nNotice given by, or on behalf of, contracting persons\n\n (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.\n\n (7A) A collective bargaining notice for a group of contracting parties may be expressed to be given on behalf of persons who become members of the group after the notice is given, but only if those persons could have given the notice on their own behalf at the time they became members of the group. If the notice is so expressed, then it is also taken to have been given by those persons.\n\nWhen a notice may not be given\n\n (8) A corporation may not give a collective bargaining notice in relation to a contract or proposed contract if:\n\n (a) it has applied for an authorisation in relation to the contract or proposed contract; and\n\n (b) the Commission has made a determination dismissing the application; and\n\n (c) either:\n\n (i) the Tribunal has made a determination on an application for a review of the Commission’s determination; or\n\n (ii) the time for making such an application for review has ended without the making of an application.\n\nNotice is invalid if given by union etc. on behalf of the corporation\n\n (9) A notice given by a corporation under subsection (1A) or (1) is not a valid collective bargaining notice if it is given, on behalf of the corporation, by:\n\n (a) a trade union; or\n\n (b) an officer of a trade union; or\n\n (c) a person acting on the direction of a trade union.\n\nInvalid collective bargaining notice\n\n (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:\n\n (a) stating that the person has not given a valid collective bargaining notice; and\n\n (b) giving reasons why the purported collective bargaining notice does not comply with this Division.\n\n (10A) The Commission must, as soon as practicable after receiving a valid collective bargaining notice, give a copy of the notice to the target.\n\nPurpose/effect of a provision\n\n (10B) Subsections 45AD(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.\n\nPurpose of a provision\n\n (10C) Subsections 45AD(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.\n\nDefinition\n\n (11) In this section:\n\nbusiness day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.\n\ntrade union means the following:\n\n (a) an association of employees that is registered as an organisation, or recognised, under the Fair Work (Registered Organisations) Act 2009;\n\n (b) an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory;\n\n (c) an association of employees a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment.","sortOrder":1225},{"sectionNumber":"93AC","sectionType":"section","heading":"Commission’s objection notice","content":"93AC  Commission’s objection notice\n\nCommission’s objection notice—cartel provisions\n\n (1) If:\n\n (a) a corporation gives the Commission 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; and\n\n (b) the Commission 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;\n\nthe Commission may give the corporation a written notice (the objection notice) stating that it is so satisfied.\n\nCommission’s objection notice—competition provisions\n\n (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 paragraph 45(1)(a) or (b), then the Commission may, if it is satisfied that:\n\n (a) the provision has or would have the purpose, or has or is likely to have or would have or be likely to have the effect, of substantially lessening competition (within the meaning of section 45); and\n\n (b) in all the circumstances, either:\n\n (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\n\n (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;\n\ngive the corporation a written notice (the objection notice) stating that it is so satisfied.\n\nCommission’s objection notice—non‑compliance with conditions\n\n (2A) If:\n\n (a) a corporation gives the Commission a collective bargaining notice that relates (wholly or partly) to collective boycott conduct or proposed collective boycott conduct; and\n\n (b) the Commission has given the corporation a notice under subsection 93ACA(1) imposing conditions relating to the conduct or proposed conduct; and\n\n (c) the Commission is satisfied that the corporation has failed to comply with those conditions;\n\nthe Commission may give the corporation a written notice (the objection notice) stating that the Commission is so satisfied.\n\nReasons for objection notice\n\n (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.\n\nConference before objection notice\n\n (4) The Commission must comply with section 93A (conferences about draft objection notices) before giving an objection notice.\n\nCommission to seek additional information\n\n (5) For the purposes of deciding whether or not to give an objection notice:\n\n (a) the Commission must seek such relevant information as it considers reasonable and appropriate; and\n\n (b) the Commission may make a decision on the basis of:\n\n (i) any information so obtained; or\n\n (ii) any other information given to it by the corporation or any other person; or\n\n (iii) any other information in its possession.","sortOrder":1226},{"sectionNumber":"93ACA","sectionType":"section","heading":"Imposing conditions relating to collective boycott conduct","content":"93ACA  Imposing conditions relating to collective boycott conduct\n\n (1) If:\n\n (a) a corporation gives the Commission a collective bargaining notice that relates (wholly or partly) to collective boycott conduct or proposed collective boycott conduct; and\n\n (b) the Commission reasonably believes that:\n\n (i) apart from this section, the Commission would have grounds to give the corporation an objection notice relating to the collective bargaining notice; and\n\n (ii) those grounds would not exist if particular conditions relating to the conduct or proposed conduct were complied with;\n\nthe Commission may give the corporation a written notice imposing those conditions.\n\n (2) The Commission must, in or with the notice under subsection (1), give the corporation a written statement of its reasons for giving the notice.","sortOrder":1227},{"sectionNumber":"93AD","sectionType":"section","heading":"When collective bargaining notice comes into force and ceases to be in force","content":"93AD  When collective bargaining notice comes into force and ceases to be in force\n\nWhen collective bargaining notice comes into force\n\n (1) A collective bargaining notice comes into force:\n\n (a) at the end of the period which is:\n\n (i) if the notice relates (wholly or partly) to collective boycott conduct or proposed collective boycott conduct—60 days or such other period as is prescribed by the regulations; or\n\n (ii) otherwise—14 days or such other period as is prescribed by the regulations;\n\n  starting on the day the corporation gave the Commission the notice; or\n\n (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.\n\n (2) However, a collective bargaining notice does not come into force if:\n\n (a) it is withdrawn, or taken to be withdrawn, before it would come into force under subsection (1); or\n\n (b) the Commission gives the corporation a conference notice during the period referred to in paragraph (1)(a) and then gives the corporation an objection notice.\n\nNote: Section 93AE deals with the withdrawal of a collective bargaining notice.\n\nWhen collective bargaining notice ceases to be in force\n\n (3) A collective bargaining notice ceases to be in force at the earliest of the following times:\n\n (a) when it is withdrawn or taken to be withdrawn;\n\n (b) if the Commission gives the corporation an objection notice—on the 31st day after the relevant day or on a later day specified in writing by the Commission;\n\n (c) at the end of:\n\n (i) if subparagraph (ii) does not apply—the period of 3 years beginning on the day the corporation gave the collective bargaining notice; or\n\n (ii) the period determined under subsection (5).\n\nNote 1: A collective bargaining notice is not in force, to the extent that it relates to collective boycott conduct, while a stop notice is in force in relation to the collective bargaining notice: see section 93AG.\n\nNote 2: Section 93AE deals with the withdrawal of a collective bargaining notice.\n\n (4) For the purposes of subsection (3), the relevant day is worked out in accordance with this table:\n\n\n\n- Relevant day\n- In this situation: the relevant day is:\n- 1 If an application is not made to the Tribunal for a review of the Commission’s decision to give the objection notice the day the Commission gave the notice.\n- 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.\n\n\nCommission may determine expiry of collective bargaining notice\n\n (5) If the Commission is satisfied that:\n\n (a) the period provided for in subparagraph (3)(c)(i) is not appropriate in all the circumstances; and\n\n (b) another period, ending no later than the end of the period of 10 years beginning on the day the corporation gave the collective bargaining notice, is appropriate in all the circumstances;\n\nthe Commission may give to the corporation a written notice determining that other period for the purposes of subparagraph (3)(c)(ii).\n\n (6) The Commission must, in or with the notice under subsection (5), give the corporation a written statement of its reasons for giving the notice.","sortOrder":1228},{"sectionNumber":"93AE","sectionType":"section","heading":"Withdrawal of collective bargaining notice","content":"93AE  Withdrawal of collective bargaining notice\n\nWithdrawal by corporation\n\n (1) A corporation may, by written notice given to the Commission, withdraw a collective bargaining notice it has given the Commission.\n\n (2) The corporation may do so at any time before the Commission gives it an objection notice in relation to the collective bargaining notice.\n\nDeemed withdrawal\n\n (3) If:\n\n (a) a corporation gives the Commission a collective bargaining notice in relation to a contract or proposed contract; and\n\n (b) before or after the corporation gave the notice, it applies to the Commission for an authorisation for that contract or proposed contract; and\n\n (c) the Commission makes a determination either dismissing the application or granting an authorisation in respect of the application; and\n\n (d) either:\n\n (i) the Tribunal makes a determination on an application for a review of the Commission’s determination; or\n\n (ii) the time for making such an application for review ends without the making of an application;\n\nthen the collective bargaining notice is taken to be withdrawn.","sortOrder":1229},{"sectionNumber":"93AEA","sectionType":"section","heading":"Only 1 collective bargaining notice under subsection 93AB(1A) may be given","content":"93AEA  Only 1 collective bargaining notice under subsection 93AB(1A) may be given\n\n  If:\n\n (a) a corporation gives the Commission a collective bargaining notice under subsection 93AB(1A) in relation to a contract or proposed contract; and\n\n (b) either:\n\n (i) the Commission gives the corporation an objection notice in relation to the contract or proposed contract; or\n\n (ii) the collective bargaining notice is taken to be withdrawn under subsection 93AE(3);\n\nthen 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.","sortOrder":1230},{"sectionNumber":"93AF","sectionType":"section","heading":"Only 1 collective bargaining notice under subsection 93AB(1) may be given","content":"93AF  Only 1 collective bargaining notice under subsection 93AB(1) may be given\n\n  If:\n\n (a) a corporation gives the Commission a collective bargaining notice under subsection 93AB(1) in relation to a contract or proposed contract; and\n\n (b) either:\n\n (i) the Commission gives the corporation an objection notice in relation to the contract or proposed contract; or\n\n (ii) the collective bargaining notice is taken to be withdrawn under subsection 93AE(3);\n\nthen 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.","sortOrder":1231},{"sectionNumber":"93AG","sectionType":"section","heading":"Stop notice for collective boycott conduct","content":"93AG  Stop notice for collective boycott conduct\n\n (1) The Commission may give a corporation a written notice (a stop notice) if:\n\n (a) the corporation has given the Commission a collective bargaining notice that relates (wholly or partly) to collective boycott conduct; and\n\n (b) the collective bargaining notice is in force under section 93AD; and\n\n (c) there has been a material change of circumstances since:\n\n (i) if the Commission has previously given the corporation notice under this subsection in relation to the collective boycott conduct—that notice was given; or\n\n (ii) in any other case—the collective bargaining notice came into force; and\n\n (d) the Commission reasonably believes that:\n\n (i) the collective boycott conduct has resulted in serious detriment to the public; or\n\n (ii) serious detriment to the public is imminent as a result of the collective boycott conduct.\n\n (2) The Commission must, in or with the stop notice, give the corporation a written statement of its reasons for giving the stop notice.\n\n (3) While the stop notice is in force, the collective bargaining notice is taken, for the purposes of this Act, not to be in force under section 93AD to the extent that the collective bargaining notice relates to collective boycott conduct.\n\n (4) The stop notice comes into force at the time the Commission gives the corporation the stop notice.\n\n (5) The stop notice ceases to be in force at the earliest of the following times:\n\n (a) at the end of the period provided under subsection (6);\n\n (b) if, before the end of that period, the Commission gives the corporation an objection notice under subsection 93AC(1) or (2) that relates to the collective bargaining notice—when that objection notice is given;\n\n (c) if, before the end of that period, the Commission gives the corporation a notice under subsection 93ACA(1) imposing conditions relating to conduct or proposed conduct that relates to the collective bargaining notice—when that notice under subsection 93ACA(1) is given;\n\n (d) if the Commission withdraws the stop notice—when it is withdrawn.\n\n (6) For the purposes of paragraph (5)(a), the period is:\n\n (a) the period of 90 days beginning on the day the Commission gives the corporation the stop notice; or\n\n (b) if the Commission extends it under subsection (7)—that period as so extended.\n\n (7) Before the end of the period referred to in paragraph (6)(a), the Commission may extend the period by up to a further 90 days:\n\n (a) if satisfied that in all the circumstances it is reasonable to do so; and\n\n (b) by giving written notice of the extended period to the corporation.\n\n (8) The Commission must, in or with the notice under subsection (7), give the corporation a written statement of its reasons for giving the notice.","sortOrder":1232},{"sectionNumber":"93A","sectionType":"section","heading":"Commission to afford opportunity for conference before giving notice","content":"93A  Commission to afford opportunity for conference before giving notice\n\n (1) Before giving a notice under subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A) in relation to any conduct or proposed conduct, the Commission shall prepare a draft notice in relation to that conduct or proposed conduct.\n\n (2) The Commission shall, by notice in writing sent to the corporation or other person to whose conduct or proposed conduct the draft notice relates and to each other interested person, invite the corporation or other person to notify the Commission, within 14 days after a date fixed by the Commission being not earlier than the day on which the notice is sent, whether the corporation or other person wishes the Commission to hold a conference in relation to the draft notice.\n\n (3) The Commission shall send with each notice under subsection (2) a copy of the draft notice and a summary of the reasons why it proposes to give the notice under subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A).\n\n (4) If each of the persons to whom a notice was sent under subsection (2):\n\n (a) notifies the Commission in writing within the period of 14 days mentioned in that subsection that the person does not wish the Commission to hold a conference in relation to the draft notice; or\n\n (b) does not notify the Commission within that period that he or she wishes the Commission to hold such a conference;\n\nthe Commission must decide after the end of that period whether or not to give the notice under subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A).\n\n (5) If any of the persons to whom a notice was sent under subsection (2) notifies the Commission in writing within the period of 14 days mentioned in that subsection that he or she wishes the Commission to hold a conference in relation to the draft notice, the Commission shall appoint a date (being not later than 30 days after the expiration of that period), time and place for the holding of the conference and give notice of the date, time and place so appointed to each of the persons to whom a notice was sent under subsection (2).\n\n (6) At the conference:\n\n (a) the Commission shall be represented by a member or members of the Commission (being a member or members who participated in the preparation of the draft notice) nominated by the Chairperson; and\n\n (b) each person to whom a notice was sent under subsection (2) and any other interested person whose presence at the conference is considered by the Commission to be appropriate is entitled to attend and participate personally or, in the case of a body corporate, may be represented by a person who, or by persons each of whom, is a director, officer or employee of the body corporate; and\n\n (c) a person participating in the conference in accordance with paragraph (a) or (b) is entitled to have another person or other persons present to assist him or her but a person who so assists another person at the conference is not entitled to participate in the discussion; and\n\n (e) no other person is entitled to be present.\n\n (7) A member of the Commission participating in the conference shall make such record of the discussions as is sufficient to set out the matters raised by the persons participating in the conference.\n\n (8) The member of the Commission who represents the Commission at the conference, or, if the Commission is represented by more than one member of the Commission, one of those members appointed by the Chairperson:\n\n (a) may exclude from the conference any person who uses insulting language at the conference, creates, or takes part in creating or continuing, a disturbance at the conference or repeatedly interrupts the conference;\n\n (b) may terminate the conference when he or she is of the opinion that a reasonable opportunity has been given for the expression of the views of persons participating in the conference (other than persons excluded from the conference under paragraph (a)); and\n\n (c) shall give a certificate certifying the day on which the first notification under subsection (5) in relation to the draft notice was received by the Commission and the day on which the conference terminated;\n\nand any such certificate shall be received in all courts as prima facie evidence of the matters certified.\n\n (9) A document purporting to be a certificate referred to in subsection (8) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.\n\n (10) The Commission must take account of all matters raised at the conference.\n\n (10A) After the conference, the Commission must decide whether or not to give a notice under subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A).\n\n (11) For the purposes of this section, interested person means a person who has notified the Commission in writing that he or she, or a specified unincorporated association of which he or she is a member, claims to have an interest in the matter, being an interest that, in the opinion of the Commission, is real and substantial.\n\n (12) Where the Commission is of the opinion that two or more notices given to the Commission under subsection 93(1) or 93AB(1A) or (1) by the same person, or by persons being bodies corporate that are related to each other, deal with substantially similar conduct or proposed conduct, the Commission may treat the notices as if they constituted a single notice and may prepare one draft notice in relation to the notices so given to the Commission and hold one conference in relation to that draft notice.","sortOrder":1234},{"sectionNumber":"95","sectionType":"section","heading":"Register of notifications","content":"95  Register of notifications\n\n (1) The Commission shall keep a register containing:\n\n (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\n\n (a) draft notices, and summaries of reasons, by the Commission furnished to any person under section 93A; and\n\n (b) records of conferences made in accordance with subsection 93A(7) and certificates in relation to conferences given under subsection 93A(8); and\n\n (c) notices (including notices that have been withdrawn) given to the Commission under section 93 or 93AB; and\n\n (d) documents furnished to the Commission in relation to such notices; and\n\n (e) particulars of any oral submissions made to the Commission in relation to such notices; and\n\n (f) particulars of notices given by the Commission to corporations in relation to notices given by corporations under section 93 or 93AB; and\n\n (g) particulars of any permits given by the Commission under subparagraph 93(7)(b)(i); and\n\n (ga) details of the specification of any day by the Commission under paragraph 93(7C)(b) or (c); and\n\n (gb) details of the specification of any day by the Commission under paragraph 93AD(3)(b).\n\n (2) Where a person furnishes a document to the Commission:\n\n (a) in relation to a notice given to the Commission under section 93 or 93AB; or\n\n (b) in relation to a conference held under Division 3 of Part XI;\n\nor makes an oral submission to the Commission in relation to the notice or the conference, he or she may, at the time when the document is furnished or the submission is made, request that the document or a part of the document, or that particulars of the submission or of part of the submission, be excluded from the register kept under subsection (1) by reason of the confidential nature of any of the matters contained in the document or submission.\n\n (3) Where such a request is made:\n\n (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:\n\n (i) a secret formula or process;\n\n (ii) the cash consideration offered for the acquisition of shares in the capital of a body corporate or of assets of a person; or\n\n (iii) the current costs of manufacturing, producing or marketing goods or services;\n\n  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\n\n (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.\n\n (4) If the Commission refuses a request to exclude a document or a part of a document from the register kept under subsection (1), the Commission shall, if the person who furnished the document to the Commission so requires, return the document or part of the document to him or her and, in that case, paragraph (1)(d) does not apply in relation to the document or part of the document.\n\n (5) Subsection (4) does not apply in relation to a document that was produced to the Minister or the Commission in pursuance of a notice under section 65Q or 155.\n\n (6) If the Commission refuses a request to exclude particulars of an oral submission or of part of an oral submission from the register kept under subsection (1), the person who made the submission may inform the Commission that he or she withdraws the submission or that part of the submission and, in that case, paragraph (1)(e) does not apply in relation to the submission or that part of the submission, as the case may be.\n\n (7) Where the Commission is satisfied that it is desirable to do so for any reason other than the confidential nature of matters contained in a document or submission, the Commission may exclude a document or part of a document referred to in paragraph (1)(d) or particulars referred to in paragraph (1)(e) from the register kept under subsection (1).\n\n (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.","sortOrder":1236},{"sectionNumber":"95AA","sectionType":"section","heading":"Commission may determine class exemptions","content":"95AA  Commission may determine class exemptions\n\n (1) The Commission may, by legislative instrument, determine that one or more specified provisions of Division 1 or 2 of Part IV do not apply to a kind of conduct specified in the determination, if the Commission is satisfied in all the circumstances:\n\n (a) that conduct of that kind would not have the effect, or would not be likely to have the effect, of substantially lessening competition; or\n\n (b) that conduct of that kind would result, or would be likely to result, in a benefit to the public that would outweigh the detriment to the public that would result, or would be likely to result, from conduct of that kind.\n\nNote: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.\n\n (2) The Commission may specify in the determination any one or more of the following limitations:\n\n (a) a limitation to persons of a specified kind;\n\n (b) a limitation to circumstances of a specified kind;\n\n (c) a limitation to conduct that complies with specified conditions.\n\n (3) The determination must specify the period, ending no later than the end of the period of 10 years beginning on the day it is made, for which it is to be in force.\n\n (4) The determination:\n\n (a) enters into force on the day it is made or on such later day (if any) as is specified in the determination; and\n\n (b) ceases to be in force at the earlier of the following times:\n\n (i) if the determination is revoked—at the time the revocation takes effect;\n\n (ii) at the end of the period specified under subsection (3) of this section.\n\n (5) While the determination remains in force, but subject to section 95AB and any limitations specified under subsection (2), the provisions of Division 1 or 2 of Part IV specified in the determination do not apply in relation to conduct of the kind specified in the determination.\n\n (6) Despite subsection 44(1) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a legislative instrument made under subsection (1) of this section.","sortOrder":1238},{"sectionNumber":"95AB","sectionType":"section","heading":"Commission may withdraw the benefit of class exemption in particular case","content":"95AB  Commission may withdraw the benefit of class exemption in particular case\n\n (1) The Commission may give a person a written notice if:\n\n (a) a determination in force under section 95AA specifies a kind of conduct; and\n\n (b) the Commission is satisfied that particular conduct of that kind engaged in by the person:\n\n (i) would have the effect, or would be likely to have the effect, of substantially lessening competition; and\n\n (ii) would not result or be likely to result in a benefit to the public that would outweigh the detriment to the public that would result, or would be likely to result, from the conduct.\n\nNote: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.\n\n (2) The Commission must, in or with the notice under subsection (1), give the person a written statement of its reasons for giving the notice.\n\n (3) While a notice under subsection (1) is in force, the determination does not apply to the conduct specified in the notice engaged in by the person.\n\n (4) The notice under subsection (1):\n\n (a) comes into force at the time the Commission gives the person the notice; and\n\n (b) ceases to be in force at the earliest of the following times:\n\n (i) if the Tribunal sets it aside under subsection 102(5G)—at the end of the day on which the Tribunal sets it aside;\n\n (ii) if the Commission revokes the notice—when it is revoked;\n\n (iii) the time the determination under section 95AA ceases to be in force.","sortOrder":1239},{"sectionNumber":"95AC","sectionType":"section","heading":"Exceptional circumstances class exemptions","content":"95AC  Exceptional circumstances class exemptions\n\n (1) If a declaration mentioned in subsection (2) is in force, the Commission may, in writing, determine that one or more specified provisions of Division 1 or 2 of Part IV do not apply to a kind of conduct specified in the determination.\n\n (2) The declarations are the following:\n\n (a) a declaration under section 95AE;\n\n (b) a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020).\n\n (3) The Commission must not make a determination under subsection (1) unless the Commission is satisfied that, in all the circumstances, the conduct of that kind would assist, or would be likely to assist, in the response to or recovery from the exceptional circumstances or emergency to which the declaration relates.\n\n (4) In making a determination under subsection (1), the Commission:\n\n (a) must have regard to:\n\n (i) the likely benefit to the public resulting from the assistance, or likely assistance, in response to or recovery from the exceptional circumstances to which the declaration relates; and\n\n (ii) the detriment to the public that would result, or be likely to result, from the conduct; and\n\n (b) may have regard to any other public benefit that would result or likely result from the conduct.\n\n (5) The Commission may specify in the determination any one or more of the following limitations:\n\n (a) a limitation to persons of a specified kind;\n\n (b) a limitation to circumstances of a specified kind;\n\n (c) a limitation to conduct that complies with specified conditions.\n\n (6) Without limiting paragraph (5)(c), a condition may include a requirement to obtain the approval of the Commission before engaging in certain conduct.\n\n (7) The determination is in force for the period:\n\n (a) starting on the day specified in the determination (which may be before the commencement of this section, but must not be before 1 April 2026); and\n\n (b) ending at the earliest of the following:\n\n (i) the start of the day specified in the determination;\n\n (ii) if the determination is revoked—the end of the day the revocation takes effect;\n\n (iii) the end of the last day on which a declaration mentioned in subsection (2) to which the determination relates is in force.\n\n (8) While the determination remains in force, but subject to section 95AD and any limitations specified under subsection (5) of this section, the provisions of Division 1 or 2 of Part IV specified in the determination do not apply in relation to conduct of the kind specified in the determination.\n\n (9) The determination must specify the exceptional circumstances or emergency to which it relates.\n\n (10) A determination made under subsection (1) is a legislative instrument and, despite anything in section 44 of the Legislation Act 2003, section 42 (disallowance) of that Act applies to the instrument.\n\nNote: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.","sortOrder":1240},{"sectionNumber":"95AD","sectionType":"section","heading":"Commission may withdraw the benefit of exceptional circumstances class exemptions in particular case","content":"95AD  Commission may withdraw the benefit of exceptional circumstances class exemptions in particular case\n\n (1) The Commission may give a person a written notice if:\n\n (a) a determination in force under section 95AC specifies a kind of conduct; and\n\n (b) the Commission considers that:\n\n (i) conduct of that kind would not assist, or would not be likely to assist, in the response to or recovery from the exceptional circumstances or emergency specified in the determination; or\n\n (ii) conduct of that kind is not appropriate.\n\n (2) The Commission must, in or with the notice under subsection (1), give the person a written statement of its reasons for giving the notice.\n\n (3) While a notice under subsection (1) is in force, the determination does not apply to the conduct specified in the notice engaged in by the person.\n\n (4) The notice under subsection (1):\n\n (a) comes into force at the time the Commission gives the person the notice; and\n\n (b) ceases to be in force at the earlier of the following times:\n\n (i) if the Commission revokes the notice—the day after the day the Commission gives the person the written notice;\n\n (ii) the time the determination under section 95AC ceases to be in force.","sortOrder":1241},{"sectionNumber":"95AE","sectionType":"section","heading":"Minister may declare exceptional circumstances","content":"95AE  Minister may declare exceptional circumstances\n\n (1) The Minister may, by legislative instrument, make a declaration under this section if the Minister is satisfied that:\n\n (a) either:\n\n (i) exceptional circumstances that are causing significant harm to the Australian economy or Australian consumers exist; or\n\n (ii) exceptional circumstances that would cause significant harm to the Australian economy or Australian consumers are likely to exist; and\n\n (b) it is in the public interest to empower the Commission to make determinations under either or both of the following:\n\n (i) section 92D;\n\n (ii) section 95AC.\n\n (2) A declaration under subsection (1) is in force for the period:\n\n (a) starting on the day specified in the declaration (which may be before the commencement of this section, but must not be before 1 April 2026); and\n\n (b) ending at the earlier of:\n\n (i) the start of the day specified in the declaration; and\n\n (ii) if the declaration is revoked—the end of the day the revocation takes effect.\n\n (3) A day specified for the purposes of subparagraph (2)(b)(i) must ensure that the period the declaration is in force:\n\n (a) is no longer than the period that the Minister considers necessary for the purposes of emergency management; and\n\n (b) is not longer than 6 months.\n\nNote 1: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.\n\nNote 2: The period may be extended under section 95AF.","sortOrder":1243},{"sectionNumber":"95AF","sectionType":"section","heading":"Extension of declaration of exceptional circumstances","content":"95AF  Extension of declaration of exceptional circumstances\n\n (1) The Minister may, by legislative instrument, extend the operation of a declaration under section 95AE if the Minister is satisfied that the exceptional circumstances mentioned in subparagraph 95AE(1)(a)(i) are likely to continue to exist beyond the period in which the order will be in force.\n\n (2) The Minister may, under subsection (1), extend the operation of an order more than once. However, each period of extension must not exceed 3 months.","sortOrder":1244},{"sectionNumber":"Part VIIA","sectionType":"part","heading":"Prices surveillance","content":"Part VIIA—Prices surveillance","sortOrder":1245},{"sectionNumber":"95A","sectionType":"section","heading":"Interpretation","content":"95A  Interpretation\n\n (1) In this Part, unless the contrary intention appears:\n\napplicable period, in relation to a locality notice, has the meaning given by section 95ZB.\n\nbody means any organisation or body, whether incorporated or unincorporated, and includes a group of 2 or more individuals.\n\nbusiness notice means a notice under subsection 95L(3).\n\nCommonwealth authority means:\n\n (a) the Commonwealth; or\n\n (b) an authority, institution or other body (other than a society, association or incorporated company) established for a public purpose by or under:\n\n (i) a law of the Commonwealth, other than the Northern Territory (Self‑Government) Act 1978 (or a law made under, or continued in force by, that Act); or\n\n (ii) another law as in force in Norfolk Island, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; or\n\n (c) a society, association or incorporated company in which the Commonwealth, or an authority, institution or other body of the kind referred to in paragraph (b), has a controlling interest.\n\ndeclared 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.\n\nexempt 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.\n\nexternal inquiry means an inquiry by a body other than the Commission.\n\ngoods includes:\n\n (a) ships, aircraft and other vehicles; and\n\n (b) animals, including fish; and\n\n (c) minerals, trees and crops, whether on, under or attached to land or not; and\n\n (d) water; and\n\n (e) gas and electricity.\n\ninquiry means an inquiry held in accordance with this Part into a matter or matters relating to prices for the supply of goods or services.\n\ninquiry body means:\n\n (a) in relation to an inquiry to be held, or being held, by the Commission—the Commission; or\n\n (b) in relation to an inquiry to be held, or being held, by a body other than the Commission—the other body.\n\ninquiry Chair means:\n\n (a) in relation to an inquiry to be held, or being held, by the Commission—the member of the Commission presiding at the inquiry; or\n\n (b) in relation to an inquiry to be held, or being held, by a body other than the Commission—the person presiding at the inquiry.\n\ninquiry notice means a notice under section 95H.\n\nlocality notice means a notice under subsection 95Z(5).\n\nmember of the staff of the Commission means a person referred to in subsection 27(1) or a person engaged under section 27A.\n\nnotified goods or services means goods or services of a particular description in relation to which a declaration under subsection 95X(1) is in force.\n\nperson includes a Commonwealth authority and a State or Territory authority.\n\nprice includes:\n\n (a) a charge of any description; and\n\n (b) in relation to goods or services—any pecuniary benefit, whether direct or indirect, received or to be received by a person for or in connection with the supply by the person of the goods or services.\n\nresponse notice means a notice under subparagraph 95Z(6)(c)(i).\n\nservices 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:\n\n (a) a contract for or in relation to:\n\n (i) the performance of work (including work of a professional nature), whether with or without the supply of goods; or\n\n (ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or\n\n (iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or\n\n (b) a contract of insurance; or\n\n (c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or\n\n (d) any contract for or in relation to the lending of moneys;\n\nbut does not include rights or benefits being the supply of goods or the performance of work under a contract of service.\n\nState or Territory authority means:\n\n (a) a State, the Australian Capital Territory or the Northern Territory; or\n\n (b) an authority, institution or other body (except a society, association or incorporated company) established for a public purpose by or under a law of a State, the Australian Capital Territory or the Northern Territory; or\n\n (c) a society, association or incorporated company in which a State, the Australian Capital Territory or the Northern Territory, or an authority, institution or other body of the kind referred to in paragraph (b), has a controlling interest.\n\nsupply includes:\n\n (a) in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and\n\n (b) in relation to services—provide, grant or confer.\n\n (2) In this Part, unless the contrary intention appears:\n\n (a) a reference to the supply of goods or services includes a reference to agreeing to supply goods or services; and\n\n (b) a reference to the supply of goods includes a reference to the supply of goods together with other property or services, or both; and\n\n (c) a reference to the supply of services includes a reference to the supply of services together with property or other services, or both; and\n\n (d) a reference to the supply of goods does not include a reference to:\n\n (i) a supply for use outside Australia; or\n\n (ii) a supply for which a price is not charged; or\n\n (iii) any other supply prescribed by the regulations; and\n\n (e) a reference to the supply of services does not include a reference to:\n\n (i) a supply outside Australia; or\n\n (ii) a supply for which a price is not charged; or\n\n (iii) any other supply prescribed by the regulations.\n\n (3) For the purposes of this Part, a supply by way of retail sale is taken not to be a supply on terms and conditions that are the same as, or substantially similar to, the terms and conditions of a supply by way of wholesale sale.","sortOrder":1247},{"sectionNumber":"95B","sectionType":"section","heading":"Exempt supplies","content":"95B  Exempt supplies\n\n (1) The Minister, or the Commission with the approval of the Minister, may by notice published in the Gazette declare a supply of goods or services of a specified description, that is a supply in a specified manner, of a specified kind or in specified circumstances, to be an exempt supply for the purposes of this Part.\n\n (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).","sortOrder":1248},{"sectionNumber":"95C","sectionType":"section","heading":"Application of Part","content":"95C  Application of Part\n\n  This Part applies in relation to the supply of goods or services:\n\n (a) by a Commonwealth authority; or\n\n (b) by a foreign corporation; or\n\n (c) by a trading corporation in the course of, or for the purposes of, its trading operations; or\n\n (d) by a financial corporation in the course of, or for the purposes of, its business operations; or\n\n (e) by a body corporate incorporated in a Territory (other than the Northern Territory); or\n\n (f) in a Territory (other than the Northern Territory); or\n\n (g) in the course of, or in connection with, trade or commerce:\n\n (i) among the States; or\n\n (ii) between a State and a Territory; or\n\n (iii) between 2 Territories;\n\nand not otherwise.","sortOrder":1249},{"sectionNumber":"95D","sectionType":"section","heading":"Crown to be bound","content":"95D  Crown to be bound\n\n (1) This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n (2) Nothing in this Part makes the Crown liable to be prosecuted for an offence.\n\n (3) The protection in subsection (2) does not apply to an incorporated Commonwealth authority or an incorporated State or Territory authority.","sortOrder":1250},{"sectionNumber":"95E","sectionType":"section","heading":"Object of this Part","content":"95E  Object of this Part\n\n  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.","sortOrder":1251},{"sectionNumber":"95F","sectionType":"section","heading":"Simplified overview of this Part","content":"95F  Simplified overview of this Part\n\n (1) This Part deals with 3 main things.\n\nPrice inquiries\n\n (2) First, it provides for the Commission or another body to hold price inquiries in relation to the supply of goods or services.\n\n (3) These inquiries may relate to the supply of goods or services by a particular person. If so, the person’s ability to increase the prices of those goods or services during a particular period is restricted. However, there is a way for the person to increase prices during that period.\n\nPrice notifications\n\n (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.\n\n (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.\n\nPrice monitoring\n\n (6) Third, this Part allows the Minister to direct the Commission to undertake price monitoring.\n\n (7) This may be in relation to supplies of goods or services in a particular industry or in relation to supplies of goods or services by particular persons.","sortOrder":1252},{"sectionNumber":"95G","sectionType":"section","heading":"Commission’s functions under this Part","content":"95G  Commission’s functions under this Part\n\n (1) The Commission’s functions under this Part are set out in this section.\n\nPrice inquiries\n\n (2) The Commission is to hold such inquiries as it is required to hold under section 95H.\n\n (3) The Commission may, with the Minister’s approval under section 95H, hold such other inquiries as it thinks fit.\n\n (4) The Commission is to give the Minister a report on the results of each inquiry it holds.\n\nPrice notifications\n\n (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.\n\nPrice monitoring\n\n (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.\n\nGeneral\n\n (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:\n\n (a) the need to maintain investment and employment, including the influence of profitability on investment and employment;\n\n (b) the need to discourage a person who is in a position to substantially influence a market for goods or services from taking advantage of that power in setting prices;\n\n (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.","sortOrder":1254},{"sectionNumber":"95H","sectionType":"section","heading":"Price inquiries","content":"95H  Price inquiries\n\nInquiries by Commission\n\n (1) The Minister may, by notice in writing given to the Chairperson, require the Commission to hold an inquiry into a specified matter or specified matters.\n\n (2) The Minister may, by notice in writing given to the Chairperson, approve the Commission holding an inquiry into a specified matter or specified matters.\n\nInquiries by other bodies\n\n (3) The Minister may, by notice in writing, request a body other than the Commission to hold an inquiry into a specified matter or specified matters.\n\n (4) The other body must, if it agrees to hold the inquiry, appoint a person to preside at the inquiry. The appointment must be in writing.\n\n (5) However, if the other body is a group of 2 or more individuals, the Minister must, by writing, appoint one of those individuals to preside at the inquiry.\n\n (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:\n\n (a) specifying that the body will hold the inquiry; and\n\n (b) giving the Minister’s reasons for requesting the body, rather than the Commission, to hold the inquiry.\n\nNo inquiry in relation to exempt supply\n\n (6) A notice under this section must not authorise the holding of an inquiry into a supply of goods or services of a particular description that is an exempt supply in relation to goods or services of that description.\n\nNo inquiry in relation to a State or Territory authority\n\n (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.","sortOrder":1257},{"sectionNumber":"95J","sectionType":"section","heading":"Content of inquiry notices","content":"95J  Content of inquiry notices\n\nDescription of goods or services\n\n (1) An inquiry notice must specify the description of the goods or services in relation to which the inquiry is to be held.\n\nSupply of goods or services by particular persons\n\n (2) An inquiry notice must also specify whether the inquiry is to be held in relation to the supply of goods or services of that description by a particular person or persons.\n\n (3) If such an inquiry is to be held, the notice may also specify that person or persons. If it does not, the inquiry body must, by writing, determine that person or persons.\n\n (4) The inquiry Chair must give the Minister notice in writing of the determination.\n\nNo inquiry in relation to a State or Territory authority\n\n (5) The inquiry body must not determine a State or Territory authority as a person in relation to whom an inquiry will be held.\n\nMinisterial directions\n\n (6) The Minister may, in an inquiry notice, give such directions as he or she thinks fit as to the holding of the inquiry and the matters to be taken into consideration in the inquiry.\n\n (7) The inquiry body must comply with any such directions.","sortOrder":1258},{"sectionNumber":"95K","sectionType":"section","heading":"Period for completing inquiry","content":"95K  Period for completing inquiry\n\nInquiry period\n\n (1) An inquiry notice must specify the period within which the inquiry is to be completed and a report on the inquiry is to be given to the Minister.\n\n (2) The inquiry body must complete the inquiry and give the report to the Minister within that period.\n\nExtensions\n\n (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.\n\nExample: A notice under subsection (1) specifies that an inquiry is to be completed and a report given by 1 August.\n\n On 30 July the Minister gives a notice under subsection (3) extending the deadline to 8 August.\n\n On 6 August the Minister gives another notice under subsection (3) further extending the deadline to 12 August.\n\n (4) If the Minister does so, the inquiry body must complete the inquiry and give its report within the completion period as so extended or further extended.\n\n (5) In this section:\n\ncompletion 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.","sortOrder":1259},{"sectionNumber":"95L","sectionType":"section","heading":"Notice of holding of inquiry","content":"95L  Notice of holding of inquiry\n\nGeneral notice\n\n (1) An inquiry body must, by notifiable instrument, give notice of an inquiry it is to hold.\n\nNotice to particular person or persons\n\n (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.\n\nContent of notice\n\n (4) A notice under this section must:\n\n (a) state that the inquiry body is to hold the inquiry; and\n\n (b) specify the matter or matters in relation to which the inquiry is to be held; and\n\n (c) specify the time and place at which the inquiry is to start; and\n\n (d) in the case of a notice under subsection (3)—set out the effect of section 95N; and\n\n (e) specify any other matter prescribed by the regulations.","sortOrder":1260},{"sectionNumber":"95M","sectionType":"section","heading":"Notice of extension of period for completing inquiry","content":"95M  Notice of extension of period for completing inquiry\n\n  If:\n\n (a) an inquiry is being held in relation to the supply of goods or services of a particular description by a particular person or persons; and\n\n (b) the Minister extends, or further extends, the period within which the inquiry is required to be completed and a report on the inquiry given to the Minister;\n\nthe 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.","sortOrder":1261},{"sectionNumber":"95N","sectionType":"section","heading":"Price restrictions","content":"95N  Price restrictions\n\n (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.\n\nOffence: previous local supply\n\n (2) The person commits an offence if:\n\n (a) before the applicable day in relation to the business notice, the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions; and\n\n (b) the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the period of 12 months before the current supply; and\n\n (c) the current supply is at a price that exceeds the highest price at which the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in that period; and\n\n (d) in a case where a notice has been given to the person under subsection (5)—the current supply is not in accordance with the notice.\n\nPenalty: 100 penalty units.\n\nOffence: no previous local supply\n\n (3) The person commits an offence if:\n\n (a) before the applicable day in relation to the business notice, the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions; and\n\n (b) the person has not supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the period of 12 months before the current supply, but has supplied goods or services of that description elsewhere in Australia on the same or substantially similar terms and conditions in that period; and\n\n (c) the current supply is at a price that exceeds the highest price at which the person has supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in that period; and\n\n (d) in a case where a notice has been given to the person under subsection (5)—the current supply is not in accordance with the notice.\n\nPenalty: 100 penalty units.\n\nOffence: no previous supply in Australia\n\n (4) The person commits an offence if:\n\n (a) before the applicable day in relation to the business notice, the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions; and\n\n (b) the person has not supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in the period of 12 months before the current supply; and\n\n (c) in a case where a notice has been given to the person under subsection (5)—the current supply is not in accordance with the notice.\n\nPenalty: 100 penalty units.\n\nApproval to increase prices\n\n (5) The Commission may give the person a notice in writing stating that the person is permitted, during the period:\n\n (a) beginning on a specified day; and\n\n (b) ending at the beginning of the applicable day in relation to the business notice;\n\nto 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.\n\n (6) The Commission may give a notice under subsection (5) on its own initiative or on the application of the person.\n\nConsultation\n\n (7) In an external inquiry, the Commission must consult the body holding the inquiry before giving a notice under subsection (5).\n\nDefinition\n\n (8) In this section:\n\napplicable day, in relation to a business notice, means the 14th day after whichever is the earlier of the following days:\n\n (a) the day on which the person given the notice receives a copy of the report by the inquiry body on the inquiry to which the notice relates;\n\n (b) the last day of the period within which the inquiry body is required to complete the inquiry to which the notice relates and to give the Minister a report on the inquiry.","sortOrder":1262},{"sectionNumber":"95P","sectionType":"section","heading":"Copies of report to be made available","content":"95P  Copies of report to be made available\n\nInquiry into supply of goods or services by particular persons\n\n (1) For an inquiry held in relation to the supply of goods or services by a particular person or persons, the inquiry body must send the person, or each of the persons, a copy of the report on the inquiry on the day on which it gives the Minister the report.\n\n (2) A copy of a report sent to a person must be accompanied by a notice in writing setting out the effect of section 95Q.\n\nAll inquiries\n\n (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.","sortOrder":1264},{"sectionNumber":"95Q","sectionType":"section","heading":"Notification of proposed prices after receipt of report","content":"95Q  Notification of proposed prices after receipt of report\n\n (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.\n\nPrice notification\n\n (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.\n\nOffence\n\n (3) A person commits an offence if the person contravenes subsection (2).\n\nPenalty: 10 penalty units.\n\nPublic notification\n\n (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.","sortOrder":1265},{"sectionNumber":"95R","sectionType":"section","heading":"Public inquiries etc.","content":"95R  Public inquiries etc.\n\nPublic inquiries\n\n (1) An inquiry body must hold an inquiry in public, unless the Minister directs otherwise.\n\nTaking of evidence\n\n (2) The inquiry body may take evidence in private at an inquiry held in public if:\n\n (a) a witness objects to giving, in public, evidence that the inquiry body is satisfied is of a confidential nature; and\n\n (b) the inquiry body considers that it is desirable to do so.\n\n (3) The inquiry body may permit a person appearing as a witness at the inquiry to give evidence by giving, and verifying by oath or affirmation, a written statement.\n\n (4) If a statement is so given in an inquiry held in public, the inquiry body must make available to the public in such manner as it thinks fit the contents of the statement other than any matter:\n\n (a) that the person who gave the evidence objects to being made public; and\n\n (b) the evidence of which the body is satisfied would have been taken in private if that evidence had been given orally and the person had objected to giving it in public.\n\nWritten submissions\n\n (5) The inquiry body may require or permit a person desiring to make a submission to the body to make the submission in writing.\n\n (6) If a submission is so made in an inquiry held in public, the inquiry body must make available to the public in such manner as it thinks fit the contents of the submission.\n\nProcedure\n\n (7) The procedure to be followed at an inquiry is within the discretion of the inquiry Chair. The inquiry body is not bound by the rules of evidence.\n\n (8) Subsection (7) operates:\n\n (a) subject to this Part; and\n\n (b) in any case—subject to any direction given to the inquiry body by the Minister; and\n\n (c) in an inquiry held by the Commission and at which the inquiry Chair is not the Chairperson—subject to any direction given to the inquiry Chair by the Chairperson.\n\nNote: See also section 95ZN (about confidentiality of information).","sortOrder":1267},{"sectionNumber":"95S","sectionType":"section","heading":"Taking of evidence on oath or affirmation","content":"95S  Taking of evidence on oath or affirmation\n\nEvidence on oath or affirmation\n\n (1) An inquiry body may take evidence at an inquiry on oath or affirmation.\n\n (2) An oath or affirmation may be administered by:\n\n (a) in an inquiry by the Commission—a member of the Commission; or\n\n (b) in an external inquiry—the person presiding at the inquiry.\n\nSummons\n\n (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.\n\n (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.","sortOrder":1268},{"sectionNumber":"95T","sectionType":"section","heading":"Failure of witness to attend","content":"95T  Failure of witness to attend\n\n (1) A person commits an offence if:\n\n (a) the person is given a summons to appear as a witness at an inquiry; and\n\n (b) the person fails to attend as required by the summons or fails to appear and report himself or herself from day to day; and\n\n (c) the person has not been excused, or released from further attendance, by:\n\n (i) in an inquiry by the Commission—a member of the Commission; or\n\n (ii) in an external inquiry—the person presiding at the inquiry.\n\nPenalty: 10 penalty units.\n\n (2) Subsection (1) does not apply if the person has a reasonable excuse.\n\nNote: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).","sortOrder":1269},{"sectionNumber":"95U","sectionType":"section","heading":"Refusal to be sworn or to answer question","content":"95U  Refusal to be sworn or to answer question\n\n (1) A person appearing as a witness at an inquiry must not:\n\n (a) refuse or fail to swear an oath or to make an affirmation if required to do so by:\n\n (i) in an inquiry by the Commission—a member of the Commission; or\n\n (ii) in an external inquiry—the person presiding at the inquiry; or\n\n (b) refuse or fail to answer a question that he or she is required to answer by the inquiry Chair; or\n\n (c) refuse or fail to produce a document that he or she was required to produce by a summons under this Part given to him or her.\n\nPenalty: 10 penalty units.\n\n (2) Subsection (1) does not apply if the person has a reasonable excuse.\n\nNote: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) It is a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to answer a question on the ground that the answer might tend to incriminate the person or to expose the person to a penalty.\n\n (4) It is a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to produce a document on the ground that the production of the document might tend to incriminate the person or to expose the person to a penalty.\n\n (5) Subsections (3) and (4) do not limit what is a reasonable excuse for the purposes of subsection (2).","sortOrder":1270},{"sectionNumber":"95V","sectionType":"section","heading":"Protection of witnesses","content":"95V  Protection of witnesses\n\n  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.","sortOrder":1271},{"sectionNumber":"95W","sectionType":"section","heading":"Allowances to witnesses","content":"95W  Allowances to witnesses\n\n (1) A witness summoned under this Part to appear at an inquiry is entitled to be paid such allowances for his or her travelling, and such other expenses, as are prescribed by the regulations.\n\n (2) The witness is entitled to be paid by:\n\n (a) if the witness was summoned by the inquiry Chair—the Commonwealth; or\n\n (b) if the witness was summoned on the application of a person—that person.\n\n (3) The regulations may provide for those allowances and expenses by reference to a scale of expenses for witnesses who attend before a court specified in the regulations.","sortOrder":1272},{"sectionNumber":"95X","sectionType":"section","heading":"Declarations by Minister or Commission","content":"95X  Declarations by Minister or Commission\n\nNotified goods or services\n\n (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.\n\nDeclared persons\n\n (2) The Minister, or the Commission with the approval of the Minister, may by notice published in the Gazette declare a person to be, in relation to goods or services of a specified description, a declared person for the purposes of this Part.\n\n (3) The Commission must give the person notice in writing of a declaration under subsection (2). The notice must set out the effect of section 95Z.\n\n (4) A declaration under subsection (2) must specify the time when it is to cease to have effect. Such a declaration ceases to have effect at the time specified, unless it is revoked sooner.\n\nVariation or revocation\n\n (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.","sortOrder":1274},{"sectionNumber":"95Y","sectionType":"section","heading":"Declarations in relation to State or Territory authorities","content":"95Y  Declarations in relation to State or Territory authorities\n\n (1) The Minister must not make or approve a declaration of a State or Territory authority under section 95X unless:\n\n (a) the appropriate Minister of the State or Territory concerned has agreed to the declaration being made; or\n\n (b) the Council has, on the request (the current request) of an Australian government, recommended the declaration and the Minister has consulted the appropriate Minister of the State or Territory concerned.\n\nRole of Council\n\n (2) The Council must not recommend a declaration of a State or Territory authority in relation to goods or services unless it is satisfied that:\n\n (a) at least one Australian government has notified the State or Territory concerned that the government is not satisfied that there is effective supervision of the prices charged by the authority for the supply of those goods or services; and\n\n (b) there is not such effective supervision; and\n\n (c) the supply of those goods or services by the authority has a significant direct or indirect impact on qualifying trade or commerce.\n\n (3) The Council must also not recommend a declaration of a State or Territory authority in relation to goods or services if:\n\n (a) in the 5 year period before it received the current request, it was satisfied (when considering a previous request) that there was effective supervision of prices charged by the authority for the supply of those goods or services; and\n\n (b) it is satisfied that there has not been a substantial change in the mechanism for that supervision since it was satisfied as mentioned in paragraph (a).\n\n (4) In deciding whether there is effective supervision of prices charged by a State or Territory authority, if the State or Territory concerned is a party to the National Competition Policy Agreement, the Council must apply the relevant principles set out in the agreement.\n\nDefinitions\n\n (5) In this section:\n\nAustralian government means the Commonwealth, a State, the Australian Capital Territory or the Northern Territory.\n\nqualifying trade or commerce means trade or commerce described in paragraph 95C(1)(g) or trade and commerce between Australia and another place.","sortOrder":1275},{"sectionNumber":"95Z","sectionType":"section","heading":"Price restrictions","content":"95Z  Price restrictions\n\nOffence: previous local supply\n\n (1) A person commits an offence if:\n\n (a) the person is a declared person in relation to notified goods or services; and\n\n (b) the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions (the actual terms) at a particular price (the actual price); and\n\n (c) the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the period of 12 months before the current supply; and\n\n (d) the actual price exceeds the highest price at which the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in that period; and\n\n (e) the current supply is not an exempt supply.\n\nPenalty: 100 penalty units.\n\nNote: Subsection (4) contains a defence to this offence.\n\nOffence: no previous local supply\n\n (2) A person commits an offence if:\n\n (a) the person is a declared person in relation to notified goods or services; and\n\n (b) the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions (the actual terms) at a particular price (the actual price); and\n\n (c) the person has not supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the period of 12 months before the current supply, but has supplied goods or services of that description elsewhere in Australia on the same or substantially similar terms and conditions in that period; and\n\n (d) the actual price exceeds the highest price at which the person has supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in that period; and\n\n (e) the current supply is not an exempt supply.\n\nPenalty: 100 penalty units.\n\nNote: Subsection (4) contains a defence to this offence.\n\nOffence: no previous supply in Australia\n\n (3) A person commits an offence if:\n\n (a) the person is a declared person in relation to notified goods or services; and\n\n (b) the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions (the actual terms) at a particular price (the actual price); and\n\n (c) the person has not supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in the period of 12 months before the current supply; and\n\n (d) the current supply is not an exempt supply.\n\nPenalty: 100 penalty units.\n\nNote: Subsection (4) contains a defence to this offence.\n\nDefence\n\n (4) Subsection (1), (2) or (3) does not apply if the following 4 requirements are satisfied.\n\nNote: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).\n\nLocality notice\n\n (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).\n\nNote: The person may give further notices modifying the locality notice: see section 95ZA.\n\nResponse to locality notice\n\n (6) The second requirement is that:\n\n (a) the applicable period in relation to the locality notice has ended; or\n\n (b) the Commission has given the person a notice in writing stating that it has no objection to the person supplying goods or services of that description in that locality on the proposed terms at the proposed price; or\n\n (c) both of the following apply:\n\n (i) the Commission has given the person a notice (the response notice) in writing stating that it would have no objection to the person supplying goods or services of that description in that locality on the proposed terms at a specified price (the approved price) that is less than the proposed price;\n\n (ii) the person has, not later than 7 days after being given the response notice, given the Commission a notice in writing stating that the person proposes to supply goods or services of that description in that locality on the proposed terms at a price not exceeding the approved price.\n\nActual terms\n\n (7) The third requirement is that the actual terms are the same as, or substantially similar to, the proposed terms.\n\nActual price\n\n (8) The fourth requirement is that the actual price does not exceed:\n\n (a) if paragraph (6)(a) or (b) applies—the proposed price; or\n\n (b) if paragraph (6)(c) applies—the approved price.","sortOrder":1276},{"sectionNumber":"95ZA","sectionType":"section","heading":"Later notices modifying a locality notice","content":"95ZA  Later notices modifying a locality notice\n\n (1) If a person gives the Commission a locality notice, the person may give the Commission one or more further notices in writing stating that the locality notice is to have effect as if there were substituted for the proposed price another specified price.\n\n (2) A price specified in a notice under subsection (1) must be:\n\n (a) less than the proposed price; and\n\n (b) less than the price specified in any previous notice under that subsection in relation to the locality notice.\n\n (3) If a notice is given under subsection (1), the locality notice has effect accordingly.\n\n (4) In this section:\n\nproposed price has the meaning given by subsection 95Z(5).","sortOrder":1277},{"sectionNumber":"95ZB","sectionType":"section","heading":"Applicable period in relation to a locality notice","content":"95ZB  Applicable period in relation to a locality notice\n\n (1) The applicable period in relation to a locality notice is the period (the price‑freeze period) of 21 days starting on the day on which the notice was given.\n\n (2) However, the Commission may, with the consent of the person who gave the locality notice, determine, before the end of the price‑freeze period, that the applicable period in relation to the notice for the purposes of this section is a specified longer period.\n\n (3) If the Commission so determines, that longer period is taken to become the applicable period in relation to the locality notice.\n\n (4) Also, if the Commission has given a response notice, the period that is the applicable period (worked out under subsections (1) to (3)) in relation to the locality notice is taken to be increased by a period of 14 days.\n\nExample: On 1 May the person gives the Commission a locality notice.\n\n Under subsection (1), the applicable period ends on 21 May.\n\n On 9 May the Commission, with the consent of the person, determines, under subsection (2), that the applicable period ends on 31 May.\n\n 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.","sortOrder":1278},{"sectionNumber":"95ZC","sectionType":"section","heading":"Register of price notifications","content":"95ZC  Register of price notifications\n\nKeeping of register\n\n (1) The Commission must keep, at such place as it thinks fit, a register for the purposes of this section.\n\nInformation on the register\n\n (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:\n\n (a) a copy of the notice, on which has been endorsed, or to which has been attached, a statement indicating the outcome of the Commission’s consideration of the notice (including any action taken by it in relation to the notice and the outcome of any such action); and\n\n (b) a copy of each notice given under this Part to, or by, the Commission in relation to the locality notice; and\n\n (c) a statement of the reasons for the outcome of the Commission’s consideration of the locality notice.\n\nGazette notice\n\n (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:\n\n (a) stating that the Commission received the locality notice and specifying the date it received the notice; and\n\n (b) setting out such particulars (if any) relating to the outcome of the Commission’s consideration of the locality notice as it considers appropriate.\n\nExclusion of confidential information\n\n (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:\n\n (a) that was in the document given by the person or in the submission made by the person; and\n\n (b) that the person claims is confidential.\n\n (5) The Commission may exclude the information if it is satisfied that the claim is justified and is not of the opinion that disclosure of the information is necessary in the public interest.\n\n (6) An application may be made to the Administrative Review Tribunal for the review of a decision under subsection (5) to refuse to exclude the information.\n\nInspection of register\n\n (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.\n\nValidity of acts done\n\n (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.","sortOrder":1279},{"sectionNumber":"95ZD","sectionType":"section","heading":"Delegation by Commission","content":"95ZD  Delegation by Commission\n\n (1) The Commission may, by writing, delegate to a member of the Commission:\n\n (a) the Commission’s price notification powers in relation to specified locality notices; and\n\n (b) the Commission’s power under section 95ZJ relating to a notice given by the member exercising (as a delegate) the Commission’s price notification powers.\n\n (2) In this section:\n\nprice notification powers means the Commission’s powers under paragraph 95Z(6)(b) or (c).","sortOrder":1280},{"sectionNumber":"95ZE","sectionType":"section","heading":"Directions to monitor prices, costs and profits of an industry","content":"95ZE  Directions to monitor prices, costs and profits of an industry\n\n (1) The Minister may give the Commission a written direction:\n\n (a) to monitor prices, costs and profits relating to the supply of goods or services by persons in a specified industry; and\n\n (b) to give the Minister a report on the monitoring at a specified time or at specified intervals within a specified period.\n\nCommercial confidentiality\n\n (2) The Commission must, in preparing such a report, have regard to the need for commercial confidentiality.\n\nPublic inspection\n\n (3) The Commission must make copies of the report available for public inspection as soon as practicable after it gives the Minister the report.","sortOrder":1282},{"sectionNumber":"95ZF","sectionType":"section","heading":"Directions to monitor prices, costs and profits of a business","content":"95ZF  Directions to monitor prices, costs and profits of a business\n\n (1) The Minister may give the Commission a written direction:\n\n (a) to monitor prices, costs and profits relating to the supply of goods or services by a specified person; and\n\n (b) to give the Minister a report on the monitoring at a specified time or at specified intervals within a specified period.\n\nCommercial confidentiality\n\n (2) The Commission must, in preparing such a report, have regard to the need for commercial confidentiality.\n\nCommission to send person a copy of the report\n\n (3) The Commission must send the person a copy of the report on the day it gives the Minister the report.\n\nPublic inspection\n\n (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.","sortOrder":1283},{"sectionNumber":"95ZG","sectionType":"section","heading":"Exceptions to price monitoring","content":"95ZG  Exceptions to price monitoring\n\nExempt supplies\n\n (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.\n\nState or Territory authorities\n\n (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.","sortOrder":1284},{"sectionNumber":"95ZH","sectionType":"section","heading":"Ministerial directions","content":"95ZH  Ministerial directions\n\nCommission\n\n (1) The Minister may, by notice in writing give to the Chairperson, direct the Commission to give special consideration to a specified matter or matters in exercising its powers and performing its functions under this Part.\n\n (2) The Commission must comply with any such directions.\n\nOther bodies\n\n (3) The Minister may, by notice in writing given to the person presiding at an external inquiry, direct the body holding the inquiry to give special consideration to a specified matter or matters in holding the inquiry.\n\n (4) The body must comply with any such directions.","sortOrder":1286},{"sectionNumber":"95ZI","sectionType":"section","heading":"Inquiries by an unincorporated body or a group of 2 or more individuals","content":"95ZI  Inquiries by an unincorporated body or a group of 2 or more individuals\n\n (1) This section applies to inquiries by an unincorporated body or a group of 2 or more individuals.\n\n (2) The regulations may make provision for and in relation to the manner in which the unincorporated body or group of individuals is to:\n\n (a) give a notice, report or other document to a person under this Part; or\n\n (b) do any other thing under this Part.","sortOrder":1287},{"sectionNumber":"95ZJ","sectionType":"section","heading":"Withdrawal of notices","content":"95ZJ  Withdrawal of notices\n\nCommission\n\n (1) The Commission may give a person a notice (the withdrawal notice) in writing withdrawing a notice it previously gave the person under this Part (other than this section).\n\n (2) If the Commission does so, this Part has effect, from the time at which the withdrawal notice is given to the person, as if the other notice had not been given to the person.\n\nOther bodies\n\n (3) The body holding an external inquiry may give a person a notice (the withdrawal notice) in writing withdrawing a notice it previously gave the person under this Part (other than this section).\n\n (4) If the body does so, this Part has effect, from the time at which the withdrawal notice is given to the person, as if the other notice had not been given to the person.","sortOrder":1288},{"sectionNumber":"95ZK","sectionType":"section","heading":"Power to obtain information or documents","content":"95ZK  Power to obtain information or documents\n\nNotice by Commission\n\n (1) If the Chairperson has reason to believe that a person is capable of giving information or producing documents relevant to:\n\n (a) the Commission considering the matters contained in a locality notice that the person has given it; or\n\n (b) an inquiry that is being held in relation to the person; or\n\n (c) a supply of goods or services by the person that is of a kind in relation to which the Commission is carrying out an inquiry; or\n\n (d) a supply of goods or services by the person that is of a kind in relation to which the Commission is monitoring under section 95ZE or 95ZF;\n\nthe 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:\n\n (e) give the Commission, by writing signed by the person or his or her agent or, in the case of a Commonwealth authority or a body corporate, by a competent officer of the authority or body, within the specified period and in the specified manner, specified information relating to the affairs of the person;\n\n (f) produce to the Commission, within the specified period and in the specified manner, specified documents relating to the affairs of the person;\n\n (g) if the person is a body corporate and the notice relates to the matter in paragraph (d)—give the Commission, together with the information or documents concerned, a declaration in a form approved by the Chairperson and signed by:\n\n (i) the Chief Executive Officer (however described) of the body corporate; or\n\n (ii) a person nominated by the Chief Executive Officer;\n\n  stating that the information or documents are true and correct.\n\nNotice by other bodies\n\n (2) If:\n\n (a) an external inquiry is being held in relation to a person; and\n\n (b) the inquiry Chair has reason to believe that the person is capable of giving information or producing documents relevant to the inquiry;\n\nthe inquiry Chair may, by notice in writing signed by him or her and given to the person, require the person:\n\n (c) to give the body, by writing signed by the person or his or her agent or, in the case of a Commonwealth authority or a body corporate, by a competent officer of the authority or body, within the specified period and in the specified manner, specified information relating to the affairs of the person; or\n\n (d) to produce to the body, within the specified period and in the specified manner, specified documents relating to the affairs of the person.\n\nPeriod specified in notice\n\n (3) A period specified in a notice under subsection (1) or (2) must end at least 14 days after the notice was given.\n\n (3A) A member of the Commission may vary a notice under subsection (1) to extend, or further extend, the period.\n\n (3B) Subsection (3A) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a notice under subsection (1) of this section.\n\nOffence: refusal or failure to comply with notice\n\n (4) A person commits an offence if the person refuses or fails to comply with a notice given to the person under this section.\n\nPenalty: 20 penalty units.\n\n (5) Subsection (4) does not apply if the person has a reasonable excuse.\n\nNote: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).\n\n (6) It is a reasonable excuse for the purposes of subsection (4) for an individual to refuse or fail to give information or produce a document on the ground that the information or production of the document might tend to incriminate the individual or to expose the individual to a penalty.\n\n (7) Subsection (6) does not limit what is a reasonable excuse for the purposes of subsection (5).\n\nOffence: false or misleading declarations\n\n (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.\n\nPenalty: 20 penalty units.\n\nMaking information or documents publicly available\n\n (9) If:\n\n (a) a notice is given to a person under this section relating to an inquiry that is being held in public in relation to the person; and\n\n (b) the person gives the information concerned or produces the documents concerned to the inquiry body in connection with the inquiry;\n\nthe inquiry body must make the information or documents available to the public in such manner as it thinks fit.\n\nNote: See also section 95ZN (about confidentiality of information).\n\nDelegation\n\n (10) A member of the Commission may, by writing, delegate the member’s powers under subsection (3A) to a member of the staff of the Commission who is an SES employee or an acting SES employee.\n\nNote 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee.\n\nNote 2: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (11) In performing a function, or exercising a power, under a delegation, the delegate must comply with any directions of the member.","sortOrder":1289},{"sectionNumber":"95ZL","sectionType":"section","heading":"Inspection of documents etc.","content":"95ZL  Inspection of documents etc.\n\nMembers or staff members\n\n (1) A member of the Commission, or a member of the staff of the Commission, may inspect documents:\n\n (a) given to the Commission for the purposes of the exercise of its powers or the performance of its functions under this Part; or\n\n (b) produced at an inquiry.\n\n (2) A member of the Commission, or a member of the staff of the Commission, may also make copies of, or take extracts from, those documents.\n\nAssociate members\n\n (3) An associate member of the Commission may inspect documents:\n\n (a) given to the Commission for the purposes of the exercise of its powers or the performance of its functions under this Part in relation to an inquiry for the purposes of which the Chairperson has directed that the associate member be taken to be a member of the Commission; or\n\n (b) produced at that inquiry.\n\n (4) An associate member of the Commission may also make copies of, or take extracts from, those documents.\n\nExternal inquiries\n\n (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:\n\n (a) inspect documents given to the body for the purposes of the inquiry; and\n\n (b) make copies of, or take extracts from, those documents.","sortOrder":1290},{"sectionNumber":"95ZM","sectionType":"section","heading":"Retention of documents","content":"95ZM  Retention of documents\n\n (1) The Commission, or a body other than the Commission, may retain a document given or produced to it as mentioned in section 95ZL. It may retain the document for such reasonable period as it thinks fit.\n\n (2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Commission or other body, as the case may be, to be a true copy.\n\n (3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.\n\n (4) Until a certified copy is supplied, the Commission or other body, as the case may be, must, at such times and places as it thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.","sortOrder":1291},{"sectionNumber":"95ZN","sectionType":"section","heading":"Confidential information","content":"95ZN  Confidential information\n\n (1) This section applies if a person claims that disclosure of the following information would damage the competitive position of the person:\n\n (a) information made available, or to be made available, by or on behalf of the person (whether in oral evidence or in a written statement, submission or other document) at the hearing of an inquiry by the Commission or another body;\n\n (b) information given, or contained in a document produced, by the person under section 95ZK to the Commission or another body.\n\nCommission or other body to take confidentiality steps\n\n (2) If the Commission or other body, as the case may be:\n\n (a) is satisfied that the claim is justified; and\n\n (b) is not of the opinion that disclosure of the information is necessary in the public interest;\n\nit 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:\n\n (c) in relation to the Commission:\n\n (i) a member of the Commission or an associate member of the Commission; or\n\n (ii) a member of the staff of the Commission who receives the information in the course of his or her duties; or\n\n (d) in relation to the other body:\n\n (i) the person presiding at the inquiry concerned; or\n\n (ii) a person providing assistance in the inquiry to the other body.\n\nInterpretation\n\n (3) This section has effect despite anything in sections 95R and 95ZK.","sortOrder":1292},{"sectionNumber":"95ZO","sectionType":"section","heading":"Immunity","content":"95ZO  Immunity\n\nMembers or associate members of the Commission\n\n (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.\n\nPerson presiding at an external inquiry\n\n (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.","sortOrder":1293},{"sectionNumber":"95ZP","sectionType":"section","heading":"Secrecy: members or staff members of the Commission etc.","content":"95ZP  Secrecy: members or staff members of the Commission etc.\n\nOffence\n\n (1) An entrusted person commits an offence if:\n\n (a) the person:\n\n (i) makes a copy or other record of any protected information or of all or part of any protected document; or\n\n (ii) discloses any protected information to another person or to a court; or\n\n (iii) produces all or part of a protected document to another person or to a court; and\n\n (b) in doing so, the person is not acting in the course of performing or exercising functions, powers or duties under or in relation to this Act.\n\nPenalty: Imprisonment for 2 years.\n\nCourts\n\n (2) An entrusted person cannot be required to:\n\n (a) disclose any protected information to a court; or\n\n (b) produce all or part of a protected document to a court;\n\nunless that disclosure or production is necessary for the purpose of carrying into effect the provisions of this Act.\n\nDefinitions\n\n (3) In this section:\n\ncourt includes any tribunal, authority or person having power to require the production of documents or the answering of questions.\n\nentrusted person means a person who is or was:\n\n (a) a member of the Commission or an associate member of the Commission; or\n\n (b) a member of the staff of the Commission; or\n\n (c) appointed or engaged under the Public Service Act 1999.\n\nproduce includes permit access to.\n\nprotected document means a document that:\n\n (a) is given to or otherwise acquired by the Commission for the purposes of this Part; and\n\n (b) has not been made available to the public by the Commission under this Part.\n\nprotected information means information that:\n\n (a) is disclosed to, or obtained by, an entrusted person for the purposes of this Part or as permitted by the repealed Part; and\n\n (b) has not been made available to the public under this Part by the Commission and is not contained in oral evidence given in public at the hearing of an inquiry.\n\nrepealed 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.","sortOrder":1294},{"sectionNumber":"95ZPA","sectionType":"section","heading":"Disclosure of protected information to the Energy Department","content":"95ZPA  Disclosure of protected information to the Energy Department\n\n (1) An authorised entrusted person may disclose protected information to the Energy Department if the Chairperson is satisfied that the information will enable or assist an officer of the Energy Department to perform or exercise any function or power under the Petroleum and Other Fuels Reporting Act 2017 or the Fuel Security Act 2021.\n\n (2) The Chairperson may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (1).\n\n (3) An instrument under subsection (2) is not a legislative instrument.\n\nDelegation\n\n (4) The Chairperson may, by writing, delegate any or all of his or her powers under subsection (1) or (2) to:\n\n (a) another member of the Commission; or\n\n (b) a member of the staff of the Commission who is an SES employee or an acting SES employee.\n\nNote 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee.\n\nNote 2: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (5) In performing a function, or exercising a power, under a delegation, the delegate must comply with any directions of the Chairperson.\n\n (6) This section has effect despite anything in section 95ZN.\n\nDefinitions\n\n (7) In this section:\n\nauthorised entrusted person means an entrusted person authorised by the Chairperson, in writing, for the purposes of this definition.\n\nEnergy Department means the Department administered by the Minister administering the Petroleum and Other Fuels Reporting Act 2017.\n\nprotected information has the same meaning as in section 95ZP.","sortOrder":1295},{"sectionNumber":"95ZQ","sectionType":"section","heading":"Secrecy: persons involved in inquiries by bodies other than the Commission","content":"95ZQ  Secrecy: persons involved in inquiries by bodies other than the Commission\n\nOffence\n\n (1) An external person commits an offence if:\n\n (a) the person:\n\n (i) makes a copy or other record of any protected information or of all or part of any protected document; or\n\n (ii) discloses any protected information to another person or to a court; or\n\n (iii) produces all or part of a protected document to another person or to a court; and\n\n (b) in doing so, the person is not acting in the course of performing or exercising functions, powers or duties under or in relation to this Act.\n\nPenalty: Imprisonment for 2 years.\n\nCourts\n\n (2) An external person cannot be required to:\n\n (a) disclose any protected information to a court; or\n\n (b) produce all or part of a protected document to a court;\n\nunless that disclosure or production is necessary for the purpose of carrying into effect the provisions of this Act.\n\nDefinitions\n\n (3) In this section:\n\ncourt includes any tribunal, authority or person having power to require the production of documents or the answering of questions.\n\nexternal person means a person who is or was:\n\n (a) the person presiding at an external inquiry; or\n\n (b) a person providing assistance in such an inquiry to the body holding the inquiry.\n\nproduce includes permit access to.\n\nprotected document means a document that:\n\n (a) is given to or otherwise acquired by the body holding the external inquiry concerned for the purposes of that inquiry; and\n\n (b) has not been made available to the public by that body under this Part.\n\nprotected information means information that:\n\n (a) is disclosed to, or obtained by, an external person for the purposes of the inquiry concerned; and\n\n (b) has not been made available to the public under this Part by the body holding that inquiry and is not contained in oral evidence given in public at the hearing of that inquiry.","sortOrder":1296},{"sectionNumber":"Part VIII","sectionType":"part","heading":"Resale price maintenance","content":"Part VIII—Resale price maintenance","sortOrder":1297},{"sectionNumber":"96","sectionType":"section","heading":"Acts constituting engaging in resale price maintenance","content":"96  Acts constituting engaging in resale price maintenance\n\n (1) Subject to this Part, a corporation (in this section called the supplier) engages in the practice of resale price maintenance if that corporation does an act referred to in any of the paragraphs of subsection (3).\n\n (2) Subject to this Part, a person (not being a corporation and also in this section called the supplier) engages in the practice of resale price maintenance if that person does an act referred to in any of the paragraphs of subsection (3) where the second person mentioned in that paragraph is a corporation.\n\n (3) The acts referred to in subsections (1) and (2) are the following:\n\n (a) the supplier making it known to a second person that the supplier will not supply goods to the second person unless the second person agrees not to sell those goods at a price less than a price specified by the supplier;\n\n (b) the supplier inducing, or attempting to induce, a second person not to sell, at a price less than a price specified by the supplier, goods supplied to the second person by the supplier or by a third person who, directly or indirectly, has obtained the goods from the supplier;\n\n (c) the supplier entering into an agreement, or offering to enter into an agreement, for the supply of goods to a second person, being an agreement one of the terms of which is, or would be, that the second person will not sell the goods at a price less than a price specified, or that would be specified, by the supplier;\n\n (d) the supplier withholding the supply of goods to a second person for the reason that the second person:\n\n (i) has not agreed as mentioned in paragraph (a); or\n\n (ii) has sold, or is likely to sell, goods supplied to him or her by the supplier, or goods supplied to him or her by a third person who, directly or indirectly, has obtained the goods from the supplier, at a price less than a price specified by the supplier as the price below which the goods are not to be sold;\n\n (e) the supplier withholding the supply of goods to a second person for the reason that a third person who, directly or indirectly, has obtained, or wishes to obtain, goods from the second person:\n\n (i) has not agreed not to sell those goods at a price less than a price specified by the supplier; or\n\n (ii) has sold, or is likely to sell, goods supplied to him or her, or to be supplied to him or her, by the second person, at a price less than a price specified by the supplier as the price below which the goods are not to be sold; and\n\n (f) the supplier using, in relation to any goods supplied, or that may be supplied, by the supplier to a second person, a statement of a price that is likely to be understood by that person as the price below which the goods are not to be sold.\n\n (4) For the purposes of subsection (3):\n\n (a) where a price is specified by another person on behalf of the supplier, it shall be deemed to have been specified by the supplier;\n\n (b) where the supplier makes it known, in respect of goods, that the price below which those goods are not to be sold is a price specified by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first‑mentioned goods, by the supplier;\n\n (c) where a formula is specified by or on behalf of the supplier and a price may be ascertained by calculation from, or by reference to, that formula, that price shall be deemed to have been specified by the supplier; and\n\n (d) where the supplier makes it known, in respect of goods, that the price below which those goods are not to be sold is a price ascertained by calculation from, or by reference to, a formula specified by another person in respect of those goods or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first‑mentioned goods, by the supplier.\n\n (5) In subsection (4), formula includes a set form or method.\n\n (6) For the purposes of subsection (3), anything done by a person acting on behalf of, or by arrangement with, the supplier shall be deemed to have been done by the supplier.\n\n (7) A reference in any of paragraphs (3)(a) to (e), inclusive, including a reference in negative form, to the selling of goods at a price less than a price specified by the supplier shall be construed as including references to:\n\n (a) the advertising of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be advertised for sale;\n\n (b) the displaying of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be displayed for sale; and\n\n (c) the offering of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be offered for sale;\n\nand 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.\n\n (8) Subsection (1) does not apply with respect to any act referred to in a paragraph of subsection (3) if the supplier and the second person referred to in that paragraph are bodies corporate that are related to each other.","sortOrder":1298},{"sectionNumber":"96A","sectionType":"section","heading":"Resale price maintenance in relation to services","content":"96A  Resale price maintenance in relation to services\n\n (1) This Part applies to conduct in relation to services in a way that corresponds to the way it applies to conduct in relation to goods.\n\n (2) For the purposes of subsection (1), this Part is to be read with appropriate modifications, including the following modifications:\n\n (a) references in this Part to goods are to be read as references to services;\n\n (b) references to the sale of goods are to be read as references to the re‑supply of services.","sortOrder":1299},{"sectionNumber":"97","sectionType":"section","heading":"Recommended prices","content":"97  Recommended prices\n\nFor 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:\n\n (a) by reason only of a statement of a price being applied to the goods as mentioned in paragraph 99(1)(a) or being applied to a covering, label, reel or thing as mentioned in paragraph 99(1)(b), provided that the statement is preceded by the words “recommended price”; or\n\n (b) by reason only of his or her having given notification in writing to the second person (not being a notification by way of a statement being applied as mentioned in paragraph (a)) of the price that he or she recommends as appropriate for the sale of those goods, provided that there is included in the notification, and in each writing that refers, whether expressly or by implication, to the notification, a statement to the following effect:\n\n  “The price set out or referred to herein is a recommended price only and there is no obligation to comply with the recommendation.”.","sortOrder":1300},{"sectionNumber":"98","sectionType":"section","heading":"Withholding the supply of goods","content":"98  Withholding the supply of goods\n\n (1) For the purposes of paragraph 96(3)(d) or (e), the supplier shall be deemed to withhold the supply of goods to another person if:\n\n (a) the supplier refuses or fails to supply those goods to, or as requested by, the other person;\n\n (b) the supplier refuses to supply those goods except on terms that are disadvantageous to the other person;\n\n (c) in supplying goods to the other person, the supplier treats that person less favourably, whether in respect of time, method or place of delivery or otherwise, than the supplier treats other persons to whom the supplier supplies the same or similar goods; or\n\n (d) the supplier causes or procures a person to withhold the supply of goods to the other person as mentioned in paragraph (a), (b) or (c) of this subsection.\n\n (2) Paragraph 96(3)(d) does not apply in relation to the withholding by the supplier of the supply of goods to another person who, within the preceding year, has sold goods obtained, directly or indirectly, from the supplier at less than their cost to that other person:\n\n (a) for the purpose of attracting to the establishment at which the goods were sold persons likely to purchase other goods; or\n\n (b) otherwise for the purpose of promoting the business of that other person.\n\n (3) For the purposes of subsection (2), there shall be disregarded:\n\n (a) a genuine seasonal or clearance sale of goods that were not acquired for the purpose of being sold at that sale; or\n\n (b) a sale of goods that took place with the consent of the supplier.","sortOrder":1301},{"sectionNumber":"99","sectionType":"section","heading":"Statements as to the minimum price of goods","content":"99  Statements as to the minimum price of goods\n\n (1) For the purposes of paragraph 96(3)(f), if:\n\n (a) a statement is applied to goods, whether by being woven in, impressed on, worked into or annexed or affixed to the goods or otherwise;\n\n (b) a statement is applied to a covering, label, reel or thing in or with which goods are supplied; or\n\n (c) a statement is used in a sign, advertisement, invoice, catalogue, business letter, business paper, price list or other document or otherwise in a manner likely to lead to the belief that it refers to goods;\n\nthe statement shall be deemed to have been used in relation to those goods.\n\n (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.","sortOrder":1302},{"sectionNumber":"100","sectionType":"section","heading":"Evidentiary provisions","content":"100  Evidentiary provisions\n\n (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:\n\n (a) the defendant has acted, in relation to the plaintiff, as mentioned in paragraph 98(1)(a), (b), (c) or (d);\n\n (b) during a period ending immediately before the time when the defendant so acted, the defendant had been supplying goods of the kind withheld to the plaintiff or to another person carrying on a business similar to that of the plaintiff; and\n\n (c) during the period of 6 months immediately before the time when the defendant so acted, the defendant became aware of a matter or circumstance capable of constituting a reason referred to in paragraph 96(3)(d) or (e) for the defendant’s so acting;\n\nthen, 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.\n\n (2) Subsection (1) does not apply where the plaintiff establishes the matter mentioned in paragraph 98(1)(b) or (c) but the terms disadvantageous to the plaintiff, or the less favourable treatment of the plaintiff, consisted only of a requirement by the defendant as to the time at which, or the form in which, payment was to be made or as to the giving of security to secure payment.\n\n (3) In the application of this section in proceedings by the Commission for an injunction, references to the plaintiff shall be construed as references to a person specified in the application for the injunction as the person in relation to whom the defendant is claimed to have acted as mentioned in paragraph (1)(a).","sortOrder":1303},{"sectionNumber":"Part IX","sectionType":"part","heading":"Review by Tribunal of decisions of Commission","content":"Part IX—Review by Tribunal of decisions of Commission","sortOrder":1304},{"sectionNumber":"100A","sectionType":"section","heading":"Applications for review","content":"100A  Applications for review\n\n (1) This section applies if a provision of this Act provides that a person may apply under this Division for review of a decision of the Commission.\n\n (2) The person may:\n\n (a) as determined under subsection (3); and\n\n (b) within the time allowed by or under subsection (3);\n\napply to the Tribunal for a review of the decision.\n\n (3) The Minister may, by legislative instrument, determine requirements for making applications for review under subsection (2), including requirements relating to the time by which such reviews are allowed to be made.\n\n (4) The Tribunal must review the decision.\n\n (5) For the purposes of the review, this Act applies in relation to the Tribunal in like manner as it applies in relation to the Commission.","sortOrder":1306},{"sectionNumber":"100B","sectionType":"section","heading":"Functions and powers of Tribunal","content":"100B  Functions and powers of Tribunal\n\n (1) On a review under section 100A, the Tribunal:\n\n (a) may make a decision affirming, setting aside or varying the decision of the Commission; and\n\n (b) for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.\n\n (2) If a person applies to the Tribunal for review of a decision of the Commission mentioned in subsection 51ABZZG(7), the Tribunal must:\n\n (a) make its decision on the review within 14 days after the day the Tribunal receives the application for review; and\n\n (b) give to the applicant:\n\n (i) written notice of the Tribunal’s decision; and\n\n (ii) a written statement of the Tribunal’s reasons for making the decision;\n\n  within 1 business day (within the meaning of section 51ABK) after the Tribunal makes its decision.\n\n (3) A decision of the Tribunal affirming, setting aside or varying a decision of the Commission is, for the purposes of this Act other than this Part, to be taken to be a decision of the Commission.\n\n (4) For the purposes of a review by the Tribunal under this Division, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.\n\n (5) For the purposes of a review under this Division, 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 by the Commission to which the review relates.","sortOrder":1307},{"sectionNumber":"Division 1B","sectionType":"division","heading":"Applications for review of acquisition determinations","content":"Division 1B—Applications for review of acquisition determinations","sortOrder":1308},{"sectionNumber":"100C","sectionType":"section","heading":"Applications for review","content":"100C  Applications for review\n\n (1) A person dissatisfied with an acquisition determination in respect of a notification of an acquisition may:\n\n (a) as determined under subsection (2); and\n\n (b) before the end of 14 days after the statement of the Commission’s reasons for making the determination is included on the acquisitions register;\n\napply to the Tribunal for a review of the determination if the person is:\n\n (c) the notifying party of the notification; or\n\n (d) is allowed to apply under subsection (3).\n\n (2) The Minister may, by legislative instrument, determine requirements for making an application for the purposes of paragraph (1)(a).\n\n (3) The Tribunal may, by written notice given to a person, allow the person to apply to the Tribunal for review of the determination.\n\n (4) In considering whether to allow a person to apply to the Tribunal under subsection (3), the Tribunal must have regard to:\n\n (a) the person’s interest in the matter; and\n\n (b) the efficient administration of the acquisitions provisions; and\n\n (c) whether the application has any reasonable prospects of success; and\n\n (d) any other matter that the Tribunal considers relevant.","sortOrder":1310},{"sectionNumber":"100D","sectionType":"section","heading":"Further information and documents in relation to applications","content":"100D  Further information and documents in relation to applications\n\n (1) An applicant for review under this Division must give to the Tribunal the information or documents that are determined under subsection (2) in relation to the application for the purposes of this subsection.\n\n (2) The Minister may, by legislative instrument, determine information or documents in relation to an application for the purposes of subsection (1).\n\n (3) The applicant must give the information or documents:\n\n (a) when the applicant applies for the review; or\n\n (b) no later than 30 days after the applicant applies for review.\n\n (4) If the applicant does not give the information or documents to the Tribunal by the end of those 30 days, the applicant is taken to withdraw the application under subsection 100E(1) at the end of those 30 days.","sortOrder":1311},{"sectionNumber":"100E","sectionType":"section","heading":"Applicants may withdraw applications","content":"100E  Applicants may withdraw applications\n\n (1) The applicant may, at any time, by giving written notice to the Tribunal, withdraw an application for review made to the Tribunal under subsection 100C(1).\n\n (2) If the application is withdrawn, a participant in the proceedings for review (other than the applicant) may apply to the Tribunal for reinstatement of the application within 7 days after the person receives notice that the application is withdrawn (or such longer period as the Tribunal, in special circumstances, allows).\n\n (3) If:\n\n (a) a participant applies under subsection (2); and\n\n (b) the Tribunal believes it to be appropriate to reinstate the application for review;\n\nthe Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.","sortOrder":1312},{"sectionNumber":"100F","sectionType":"section","heading":"Tribunal may dismiss applications if parties consent","content":"100F  Tribunal may dismiss applications if parties consent\n\n  The Tribunal may, at any time, dismiss an application for review made to the Tribunal under subsection 100C(1) if the Tribunal has the consent of the participants in the proceedings for review.","sortOrder":1313},{"sectionNumber":"100G","sectionType":"section","heading":"Tribunal may dismiss applications if fees not paid","content":"100G  Tribunal may dismiss applications if fees not paid\n\n  The Tribunal may dismiss an application for review made to the Tribunal under subsection 100C(1) if a fee payable by the applicant to the Tribunal in respect of the application is not paid by the time determined under subsection 112(2).","sortOrder":1314},{"sectionNumber":"100H","sectionType":"section","heading":"Tribunal may dismiss applications if applicants fail to comply with order etc.","content":"100H  Tribunal may dismiss applications if applicants fail to comply with order etc.\n\n  The Tribunal may dismiss an application for review made to the Tribunal under subsection 100C(1) if the applicant fails to comply with:\n\n (a) this Act; or\n\n (b) an order of the Tribunal in relation to the proceedings for review.","sortOrder":1315},{"sectionNumber":"100J","sectionType":"section","heading":"Tribunal may dismiss application if frivolous, vexatious etc.","content":"100J  Tribunal may dismiss application if frivolous, vexatious etc.\n\n  The Tribunal may, at any time, dismiss an application made to the Tribunal under subsection 100C(1) if the Tribunal is satisfied that the application:\n\n (a) is frivolous, vexatious, misconceived or lacking in substance; or\n\n (b) has no reasonable prospects of success; or\n\n (c) is otherwise an abuse of the process of the Tribunal.\n\nNote: See also section 111 (costs).","sortOrder":1316},{"sectionNumber":"100K","sectionType":"section","heading":"Certain participants may seek to withdraw from being participants","content":"100K  Certain participants may seek to withdraw from being participants\n\nGeneral rule\n\n (1) The Tribunal may order that a participant in a proceeding before the Tribunal under this Division ceases to be a participant in the proceeding if the participant gives written notice to the Tribunal that the participant wishes to cease being a participant in the proceeding.\n\nException\n\n (2) However, subsection (1) does not apply in relation to the applicant.\n\nNote: The applicant may withdraw the application (see section 100E).","sortOrder":1317},{"sectionNumber":"100L","sectionType":"section","heading":"Notice of withdrawals and dismissals","content":"100L  Notice of withdrawals and dismissals\n\n  If, under this Subdivision:\n\n (a) an applicant withdraws an application for review; or\n\n (b) the Tribunal dismisses an application;\n\nthe Tribunal must give the Commission and each participant in the proceedings for review notice of the withdrawal or dismissal.","sortOrder":1318},{"sectionNumber":"100M","sectionType":"section","heading":"Tribunal not to review determinations while Commission considering public benefit applications","content":"100M  Tribunal not to review determinations while Commission considering public benefit applications\n\nApplications for review\n\n (1) A person must not apply under subsection 100C(1) for review of an acquisition determination made under subsection 51ABZE(1) in respect of a notification of an acquisition if:\n\n (a) a public benefit application has been made in relation to the notification; and\n\n (b) the Commission has not decided under section 51ABZV to cease considering the public benefit application; and\n\n (c) the Commission has not made a determination under subsection 51ABZW(1) in respect of the public benefit application.\n\n (2) A day is not counted for the purposes of paragraph 100C(1)(b) in relation to applying for review of an acquisition determination made under subsection 51ABZE(1) in respect of a notification of an acquisition if the day occurs:\n\n (a) on or after the day a public benefit application is made in relation to the notification; and\n\n (b) on or before the day on which the Commission:\n\n (i) decides under section 51ABZV to cease considering the public benefit application; or\n\n (ii) makes a determination under subsection 51ABZW(1) in respect of the public benefit application.\n\nProceedings for review\n\n (3) If:\n\n (a) a person applies under subsection 100C(1) for review of an acquisition determination made under subsection 51ABZE(1) in respect of a notification of an acquisition; and\n\n (b) before the proceedings for review have ended, a public benefit application is made in relation to the notification;\n\nthe Tribunal must cease the proceedings for review until the Commission:\n\n (c) decides under section 51ABZV to cease considering the public benefit application; or\n\n (d) makes a determination under subsection 51ABZW(1) in respect of the public benefit application.\n\n (4) A day is not counted for the purposes of section 100P in relation to review of an acquisition determination made under subsection 51ABZE(1) in respect of a notification of an acquisition if the day occurs:\n\n (a) on or after the day a public benefit application is made in relation to the notification; and\n\n (b) on or before the day on which the Commission:\n\n (i) decides under section 51ABZV to cease considering the public benefit application; or\n\n (ii) makes a determination under subsection 51ABZW(1) in respect of the public benefit application.","sortOrder":1319},{"sectionNumber":"100N","sectionType":"section","heading":"Functions and powers of Tribunal","content":"100N  Functions and powers of Tribunal\n\n (1) On a review of an acquisition determination under this Division, the Tribunal:\n\n (a) may make a determination affirming, setting aside or varying the determination; and\n\n (b) for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.\n\n (2) Subject to subsection (3) of this section:\n\n (a) paragraph 51ABZE(2)(c); or\n\n (b) subsection 51ABZF(2); or\n\n (c) subsection 51ABZW(2);\n\n(whichever is relevant) applies in relation to the Tribunal in the same way as it applies in relation to the Commission.\n\n (3) The Tribunal may, if the Tribunal determines it to be appropriate, make an acquisition determination by consent of:\n\n (a) the applicant for the review; and\n\n (b) if the applicant for the review is not the notifying party of the notification of the acquisition—the notifying party; and\n\n (c) all persons (if any) who have been permitted under subsection 109(2) to intervene in the proceedings for review;\n\neven if the Tribunal does not have the satisfaction referred to in paragraph 51ABZE(2)(c) or subsection 51ABZF(2) or 51ABZW(2) (whichever is relevant).\n\n (4) For the purposes of this Act other than this Part, a determination of the Tribunal affirming, setting aside or varying an acquisition determination is taken to be a determination of the Commission.","sortOrder":1321},{"sectionNumber":"100P","sectionType":"section","heading":"Time within which Tribunal must make determination on review","content":"100P  Time within which Tribunal must make determination on review\n\n (1) The Tribunal must not make its determination on a review of an acquisition determination under this Division earlier than the 45th day after the day the Commission makes the acquisition determination.\n\n (2) Subject to subsections (3) and (5), the Tribunal must make its determination on a review of an acquisition determination under this Division no later than 90 days after the later of:\n\n (a) the last day on which an application for review of the determination could have been made under subsection 100C(1); and\n\n (b) the day the applicant gives to the Tribunal the additional information or documents required under subsection 100D(1).\n\nNote: See also subsections 100M(3) and (4) if a public benefit application is made.\n\nExtensions\n\n (3) Before the end of the period within which the Tribunal must make its determination on the review (including that period as extended under subsection (5)), the Tribunal may, in writing, extend the period by 60 days.\n\n (4) The Tribunal may extend the period under subsection (3) only once.\n\n (5) If, during the period within which the Tribunal must make its determination on the review (including that period as extended under subsection (3)), the Tribunal is satisfied that the matter cannot be dealt with properly within the period because:\n\n (a) of the matter’s complexity, or the volume of information, documents and evidence before the Tribunal in relation to the matter; or\n\n (b) the Tribunal has allowed new information, documents or evidence under subsection 100S(2); or\n\n (c) of other special circumstances;\n\nthe Tribunal may, in writing, extend the period by 90 days.\n\n (6) The Tribunal may extend the period under subsection (5) of this section only once.\n\n (7) If the Tribunal extends the period under subsection (3) or (5), the Tribunal must give a copy of the extension to each participant in the proceedings for review and to the Commission.","sortOrder":1322},{"sectionNumber":"100Q","sectionType":"section","heading":"Technical experts","content":"100Q  Technical experts\n\n  For the purposes of a review under this Division, the Tribunal:\n\n (a) may, in such manner as it sees fit:\n\n (i) ask questions of a technical expert; or\n\n (ii) seek information, documents or evidence from a technical expert; and\n\n (b) if it does so:\n\n (i) may allow a participant in the proceedings or the Commission to ask questions of the technical expert before the Tribunal; and\n\n (ii) may have regard to any information furnished, documents produced or evidence given to the Tribunal by the expert.","sortOrder":1323},{"sectionNumber":"100R","sectionType":"section","heading":"Commission information","content":"100R  Commission information\n\n (1) For the purposes of a review under this Division, 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.\n\n (2) For the purposes of a review under this Division, the Tribunal may have regard to any information furnished, documents produced or evidence given to the Commission in connection with the making of the determination to which the review relates.\n\n (3) Subsection (2) does not apply to information, documents or evidence to which the Commission was not permitted to have regard in making the determination.","sortOrder":1324},{"sectionNumber":"100S","sectionType":"section","heading":"Information gathering etc.","content":"100S  Information gathering etc.\n\n (1) For the purposes of a review under this Division, the Tribunal:\n\n (a) may consult, in such a manner as it sees fit, any consumer associations or consumer interest groups; and\n\n (b) may have regard to any information furnished, documents produced or evidence given to the Tribunal in connection with such consultation.\n\n (2) For the purposes of a review under this Division in relation to an acquisition determination in respect of a notification of an acquisition, the Tribunal may allow a person to provide new information, documents or evidence if:\n\n (a) the Tribunal is satisfied that the information, document or evidence was not in existence at the time the Commission made the determination; or\n\n (b) the person is the notifying party of the notification, and the Tribunal is satisfied that:\n\n (i) the information, documents or evidence are relevant to the grounds on which the Commission made the determination; and\n\n (ii) the person was not given a reasonable opportunity to make submissions to the Commission in relation to those grounds, or the evidence or other material on which those grounds were based, before the Commission made the determination (including because the person was not informed of the grounds, evidence or other material).","sortOrder":1325},{"sectionNumber":"100T","sectionType":"section","heading":"Information etc. to which Tribunal may have regard","content":"100T  Information etc. to which Tribunal may have regard\n\n  Despite section 100N, the Tribunal must not, for the purposes of a review under this Division, have regard to any information, documents or evidence other than:\n\n (a) information that was referred to in the Commission’s reasons for making the determination to which the review relates; and\n\n (b) the information, documents or evidence referred to in subsection 100B(5); and\n\n (c) the information or documents given to the Tribunal under subsection 100D(1); and\n\n (d) the information, documents or evidence referred to in subparagraph 100Q(b)(ii); and\n\n (e) any information or report given to the Tribunal under subsection 100R(1); and\n\n (f) the information, documents or evidence referred to in subsection 100R(2); and\n\n (g) information given to the Tribunal as a result of the Tribunal seeking such relevant information, and consulting with such persons, as it believes reasonable and appropriate for the sole purpose of clarifying the information, documents or evidence referred to in subsection 100R(2); and\n\n (h) the information, documents or evidence referred to in paragraph 100S(1)(b); and\n\n (i) any information, documents or evidence referred to in subsection 100S(2).","sortOrder":1326},{"sectionNumber":"101","sectionType":"section","heading":"Applications for review","content":"101  Applications for review\n\n (1) A person dissatisfied with a determination by the Commission under Division 1 of Part VII:\n\n (a) in relation to an application for an authorisation or a minor variation of an authorisation; or\n\n (b) in relation to the revocation of an authorisation, or the revocation of an authorisation and the substitution of another authorisation;\n\nmay, 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.\n\n (1AAA) Subsection (1) does not apply to a determination under subsection 89(1A).\n\n (1AA) If:\n\n (a) the person applying under subsection (1) for review of a determination was the applicant for an authorisation, or for the minor variation of an authorisation, for the revocation of an authorisation or for the revocation of an authorisation and the substitution of another authorisation; or\n\n (b) the Tribunal is satisfied that the person has a sufficient interest;\n\nthe Tribunal must review the determination.\n\n (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 referred to in subsection 90(7).\n\n (1B) A presidential member may, on the application of a person concerned:\n\n (a) in an application for an overseas merger authorisation; or\n\n (b) in an application for a minor variation or a revocation of such an authorisation; or\n\n (c) in an application for the revocation of such an authorisation and the substitution of another authorisation;\n\nshorten 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.\n\n (1C) The regulations may make it a requirement that a person applying under subsection (1) for review of a determination relating to a merger authorisation give an undertaking under section 87B that the person will not make the acquisition to which the authorisation relates while the Tribunal is considering the application.\n\n (3) Subsections 90(7), 91A(4) and (4A), 91B(5) and 91C(7) apply in relation to the Tribunal in like manner as they apply in relation to the Commission.","sortOrder":1328},{"sectionNumber":"101A","sectionType":"section","heading":"Application for review of notices under Division 2 of Part VII","content":"101A  Application for review of notices under Division 2 of Part VII\n\n  A person dissatisfied with the giving of a notice by the Commission under subsection 93(3), (3A) or (3B), 93AAA(1), 93AC(1), (2) or (2A), 93ACA(1), 93AD(5) or 93AG(7) 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.","sortOrder":1329},{"sectionNumber":"101B","sectionType":"section","heading":"Application for review of notice under section 95AB","content":"101B  Application for review of notice under section 95AB\n\n (1) A person dissatisfied with the giving of a notice under section 95AB 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.\n\n (2) If the person is the person to whom the notice was given or the Tribunal is satisfied that the person has a sufficient interest, the Tribunal must review the giving of the notice.","sortOrder":1330},{"sectionNumber":"102","sectionType":"section","heading":"Functions and powers of Tribunal","content":"102  Functions and powers of Tribunal\n\n (1) On a review of a determination of the Commission under Division 1 of Part VII in relation to:\n\n (a) an application for an authorisation; or\n\n (b) an application for a minor variation of an authorisation; or\n\n (c) an application for, or the Commission’s proposal for, the revocation of an authorisation; or\n\n (d) an application for, or the Commission’s proposal for, the revocation of an authorisation and the substitution of another authorisation;\n\nthe 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.\n\nNote: Subsections (9) and (10) contain limitations in relation to determinations relating to merger authorisations.\n\n (1AA) If a person applies to the Tribunal for review of a determination of the Commission relating to:\n\n (a) the grant of a merger authorisation (a domestic merger authorisation) that is not an overseas merger authorisation; or\n\n (b) the minor variation, or the revocation, of a domestic merger authorisation; or\n\n (c) the revocation of a domestic merger authorisation and the substitution of another domestic merger authorisation;\n\nthe Tribunal must make its determination on the review within the period applying under subsection (1AC) (the relevant period).\n\n (1AB) If the Tribunal has not made its determination on the review of a determination of the Commission mentioned in subsection (1AA) within the relevant period, the Tribunal is taken to have made a determination affirming the Commission’s determination.\n\n (1AC) The period applying under this subsection is as follows:\n\n (a) unless paragraph (b) or (c) applies—90 days;\n\n (b) if the Tribunal allows new information, documents or evidence under subsection (9), and paragraph (c) does not apply—120 days;\n\n (c) if an extended period is determined under subsection (1AD)—that extended period;\n\nbeginning on the day the Tribunal receives the application for review.\n\n (1AD) Before the end of the period (the initial period) otherwise applying under paragraph (1AC)(a) or (b) for the review, the Tribunal may determine in writing that:\n\n (a) the matter cannot be dealt with properly within the initial period, either because of its complexity or because of other special circumstances; and\n\n (b) an extended period applies for the review, which consists of the initial period and a further specified period of not more than 90 days.\n\nThe Tribunal must, before the end of the initial period, notify the applicant and the Commission of any determination under this subsection.\n\n (1A) If a person applies to the Tribunal for review of a determination of the Commission relating to:\n\n (a) the grant of an overseas merger authorisation; or\n\n (b) the minor variation, or the revocation, of an overseas merger authorisation; or\n\n (c) the revocation of an overseas merger authorisation and the substitution of another overseas merger authorisation;\n\nthe Tribunal must make its determination on the review within 60 days after receiving the application for review.\n\n (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.\n\n (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.\n\n (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:\n\n (a) an application for an authorisation; or\n\n (b) an application for a minor variation of an authorisation; or\n\n (c) an application for, or the Commission’s proposal for, the revocation of an authorisation; or\n\n (d) an application for, or the Commission’s proposal for, the revocation of an authorisation and the substitution of another authorisation;\n\nis, for the purposes of this Act other than this Part, to be taken to be a determination of the Commission.\n\n (4) Upon a review of the giving of a notice by the Commission under subsection 93(3):\n\n (a) if the person who applied for the review satisfies the Tribunal that:\n\n (i) the conduct or proposed conduct does not and would not have the purpose, and does not and is not likely to have or would not have and would not be likely to have the effect, of substantially lessening competition (within the meaning of section 47); or\n\n (ii) in all the circumstances:\n\n (A) the conduct or proposed conduct has resulted or is likely to result, or would result or be likely to result, in a benefit to the public; and\n\n (B) that benefit 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 conduct or proposed conduct;\n\n  the Tribunal must make a determination setting aside the notice; or\n\n (b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.\n\n (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.\n\n (5AAA) Upon a review of the giving of a notice by the Commission under subsection 93(3B):\n\n (a) if the person who applied for the review satisfies the Tribunal that the corporation or other person on whom the conditions relating to the conduct or proposed conduct have been imposed has not failed to comply with those conditions—the Tribunal must make a determination setting aside the notice; or\n\n (b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.\n\n (5AAB) Upon a review of the giving of a notice by the Commission under subsection 93AAA(1):\n\n (a) if the person who applied for the review satisfies the Tribunal that:\n\n (i) apart from section 93AAA, the Commission would not have had grounds referred to in subparagraph 93AAA(1)(b)(i); or\n\n (ii) compliance with the conditions imposed by the notice would not ensure those grounds would not exist;\n\n  the Tribunal must make a determination setting aside the notice; or\n\n (b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.\n\n (5AA) Upon a review of the giving of a notice by the Commission under subsection 93AC(1):\n\n (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\n\n (b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.\n\n (5AB) Upon a review of the giving of a notice by the Commission under subsection 93AC(2):\n\n (a) if the person who applied for the review satisfies the Tribunal that:\n\n (i) the provision does not and would not have the purpose, and does not and is not likely to have or would not have and would not be likely to have the effect, of substantially lessening competition (within the meaning of section 45); or\n\n (ii) in all the circumstances:\n\n (A) the provision has resulted or is likely to result, or would result or be likely to result, in a benefit to the public; and\n\n (B) that benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result, or would result or be likely to result, from the provision;\n\n  the Tribunal must make a determination setting aside the notice; or\n\n (b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.\n\n (5ABA) Upon a review of the giving of a notice by the Commission under subsection 93AC(2A):\n\n (a) if the person who applied for the review satisfies the Tribunal that the corporation on whom the conditions relating to the conduct or proposed conduct have been imposed has not failed to comply with those conditions—the Tribunal must make a determination setting aside the notice; or\n\n (b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.\n\n (5AC) If the Tribunal sets aside a notice (the objection notice) given by the Commission under subsection 93AC(1), (2) or (2A), then:\n\n (a) if the Commission gave the objection notice as part of a process starting when the Commission gave a notice under subsection 93A(2) (conference notice) during the period described in paragraph 93AD(1)(a)—the Commission is taken for the purposes of paragraph 93AD(1)(b) to have decided not to give the objection notice at the time the Tribunal set it aside; and\n\n (b) for the purposes of subsections 93AD(2) and (3), the objection notice is taken not to have been given.\n\n (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.\n\n (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).\n\n (5C) If the Tribunal sets aside a notice given by the Commission under subsection 93(3A), then:\n\n (a) if the Commission gave the notice as part of a process starting when the Commission gave a notice under subsection 93A(2) during the period described in paragraph 93(7A)(a)—the Commission is taken for the purposes of paragraph 93(7A)(b) to have decided not to give the notice under subsection 93(3A) at the time the Tribunal set aside the notice given under subsection 93(3A); and\n\n (b) for the purposes of subsections 93(7B) and (7C) the notice is taken not to have been given.\n\n (5D) Upon a review of the giving of a notice by the Commission under subsection 93ACA(1):\n\n (a) if the person who applied for the review satisfies the Tribunal that:\n\n (i) apart from section 93ACA, the Commission would not have had grounds referred to in subparagraph 93ACA(1)(b)(i); or\n\n (ii) compliance with the conditions imposed by the notice would not ensure those grounds would not exist;\n\n  the Tribunal must make a determination setting aside the notice; or\n\n (b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.\n\n (5E) Upon a review of the giving of a notice by the Commission under subsection 93AD(5):\n\n (a) if the person who applied for the review satisfies the Tribunal that:\n\n (i) the period provided for in subparagraph 93AD(3)(c)(i) in relation to the relevant collective bargaining notice is appropriate in all the circumstances; or\n\n (ii) the other period determined by the Commission under subsection 93AD(5) is not appropriate in all the circumstances;\n\n  the Tribunal must make a determination setting aside the notice under subsection 93AD(5); or\n\n (b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.\n\n (5F) Upon a review of the giving of a notice by the Commission under subsection 93AG(7) extending a period for a further period:\n\n (a) if the person who applied for the review satisfies the Tribunal that in all the circumstances it is not reasonable to extend the period for the further period, the Tribunal must make a determination setting aside the notice; or\n\n (b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.\n\n (5G) Upon a review of the giving of a notice under section 95AB:\n\n (a) if the person who applied for the review satisfies the Tribunal that conduct of the kind specified in the notice:\n\n (i) would not have the effect, or would not be likely to have the effect, of substantially lessening competition; or\n\n (ii) would result, or would be likely to result, in a benefit to the public that would outweigh the detriment to the public that would result, or would be likely to result, from conduct of that kind;\n\n  the Tribunal must make a determination setting aside the notice under section 95AB; or\n\n (b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.\n\n (6) For the purposes of a review by the Tribunal under this Division, the member of the Tribunal presiding at the review may require the Commission to furnish such information, make such reports and provide such other assistance to the Tribunal as the member specifies.\n\n (7) For the purposes of a review under this Division, the Tribunal may have regard to any information furnished, documents produced or evidence given to the Commission in connexion with the making of the determination, or the giving of the notice, to which the review relates.\n\n (8) Subsections (9) and (10) apply to a review of a determination of the Commission in relation to:\n\n (a) an application for a merger authorisation; or\n\n (b) an application for a minor variation of a merger authorisation; or\n\n (c) an application for, or the Commission’s proposal for, the revocation of a merger authorisation; or\n\n (d) an application for, or the Commission’s proposal for, the revocation of a merger authorisation and the substitution of another merger authorisation.\n\n (9) For the purposes of the review, the Tribunal may allow a person to provide new information, documents or evidence that the Tribunal is satisfied was not in existence at the time the Commission made the determination.\n\n (10) Despite subsection (1), the Tribunal must not, for the purposes of the review, have regard to any information, documents or evidence other than:\n\n (a) information that was referred to in the Commission’s reasons for making the determination; and\n\n (b) any information or report given to the Tribunal under subsection (6); and\n\n (c) the information, documents or evidence referred to in subsection (7); and\n\n (d) information given to the Tribunal as a result of the Tribunal seeking such relevant information, and consulting with such persons, as it considers reasonable and appropriate for the sole purpose of clarifying the information, documents or evidence referred to in subsection (7); and\n\n (e) any information, documents or evidence referred to in subsection (9).","sortOrder":1331},{"sectionNumber":"102A","sectionType":"section","heading":"Reviews are re-hearings","content":"102A  Reviews are re‑hearings\n\n  A review by the Tribunal under this Part is a re‑hearing of the matter, unless it is a review of:\n\n (a) a determination by the Commission:\n\n (i) in relation to an application for a merger authorisation or a minor variation of a merger authorisation; or\n\n (ii) in relation to the revocation of a merger authorisation, or the revocation of a merger authorisation and the substitution of another merger authorisation; or\n\n (b) an acquisition determination.","sortOrder":1333},{"sectionNumber":"103","sectionType":"section","heading":"Procedure generally","content":"103  Procedure generally\n\n (1) In proceedings before the Tribunal:\n\n (a) the procedure of the Tribunal is, subject to this Act and the regulations, within the discretion of the Tribunal;\n\n (b) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Tribunal permit; and\n\n (c) the Tribunal is not bound by the rules of evidence.\n\n (2) The powers of the Tribunal with respect to matters of procedure in particular proceedings may be exercised by a presidential member.\n\n (3) The powers mentioned in subsection (2) may be exercised by a presidential member:\n\n (a) whether or not the Tribunal has been constituted under section 37 in relation to the proceedings; and\n\n (b) once the Tribunal is so constituted—whether or not that member is part of the Division of the Tribunal so constituted.","sortOrder":1334},{"sectionNumber":"104","sectionType":"section","heading":"Regulations as to certain matters","content":"104  Regulations as to certain matters\n\n  The regulations may make provision:\n\n (a) for securing, by means of preliminary statements of facts and contentions, and by the production of documents, that all material facts and considerations are brought before the Tribunal by all persons participating in any proceedings before the Tribunal or by the Commission; and\n\n (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\n\n (b) with respect to the representation in any such proceedings of persons having a common interest in the proceedings.","sortOrder":1335},{"sectionNumber":"105","sectionType":"section","heading":"Power to take evidence on oath","content":"105  Power to take evidence on oath\n\n (1) The Tribunal may take evidence on oath or affirmation and for that purpose a member of the Tribunal may administer an oath or affirmation.\n\n (2) A member of the Tribunal may summon a person to appear before the Tribunal to give evidence and to produce such documents (if any) as are referred to in the summons.","sortOrder":1336},{"sectionNumber":"106","sectionType":"section","heading":"Hearings to be in public except in special circumstances","content":"106  Hearings to be in public except in special circumstances\n\n (1) Subject to this section, the hearing of proceedings before the Tribunal shall be in public.\n\n (2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may:\n\n (a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; or\n\n (b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents filed or lodged with the Registrar, received in evidence by the Tribunal or placed in the records of the Tribunal.\n\n (3) The powers of the Tribunal under this section may be exercised by the Tribunal as constituted for the purposes of the hearing or by the Tribunal constituted by a presidential member.","sortOrder":1337},{"sectionNumber":"107","sectionType":"section","heading":"Evidence in form of written statement","content":"107  Evidence in form of written statement\n\n  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.","sortOrder":1338},{"sectionNumber":"108","sectionType":"section","heading":"Taking of evidence by single member","content":"108  Taking of evidence by single member\n\n  The Tribunal as constituted for the purposes of any proceedings in which evidence may be taken may authorise 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:\n\n (a) that member may take evidence accordingly; and\n\n (b) for the purposes of this Act, that member shall, in relation to the taking of evidence in accordance with the authority, be deemed to constitute the Tribunal.","sortOrder":1339},{"sectionNumber":"109","sectionType":"section","heading":"Participants in proceedings before Tribunal","content":"109  Participants in proceedings before Tribunal\n\n (1) A person to whom an authorisation 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 authorisation.\n\n (1AA) A notifying party of a notification of an acquisition is entitled to participate in any proceedings before the Tribunal under Division 1B instituted by another person for review of an acquisition determination in respect of the notification.\n\n (1A) A person to whom a notice was given by the Commission under subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A) is entitled to participate in any proceedings before the Tribunal instituted by another person in relation to that notice.\n\n (2) The Tribunal may, upon such conditions as it thinks fit, permit a person to intervene in proceedings before the Tribunal.","sortOrder":1340},{"sectionNumber":"110","sectionType":"section","heading":"Representation","content":"110  Representation\n\n  In proceedings before the Tribunal:\n\n (a) a natural person may appear in person;\n\n (aa) a person other than a body corporate may be represented by an employee of the person approved by the Tribunal;\n\n (b) a body corporate may be represented by an employee, or a director or other officer, of the body corporate approved by the Tribunal;\n\n (c) an unincorporated association of persons or a member of an unincorporated association of persons may be represented by a member or officer of the association approved by the Tribunal; and\n\n (d) any person may be represented by a barrister or a solicitor of the Supreme Court of a State or Territory or of the High Court.","sortOrder":1341},{"sectionNumber":"111","sectionType":"section","heading":"Tribunal may order costs be awarded","content":"111  Tribunal may order costs be awarded\n\n (1) If the Tribunal is satisfied that it is appropriate to do so, the Tribunal may order that a participant in proceedings for review under Division 1A or 1B pay all or a specified part of the costs of another participant in the proceedings.\n\n (2) If the Tribunal makes an order under subsection (1), it may make further orders that it believes appropriate in relation to the assessment or taxation of the costs.\n\n (3) The Minister may, by legislative instrument, make provision for and in relation to fees payable for the assessment or taxation of costs ordered by the Tribunal to be paid.\n\n (4) If a participant (the first participant) is ordered to pay some or all of the costs of another participant under subsection (1), the amount of the costs may be recovered in the Federal Court as a debt due by the first participant to the other participant.","sortOrder":1342},{"sectionNumber":"112","sectionType":"section","heading":"Tribunal may charge fees","content":"112  Tribunal may charge fees\n\n (1) For the purposes of Division 1A or 1B, the Tribunal may, on behalf of the Commonwealth, charge fees determined under subsection (2) for the purposes of this subsection.\n\n (2) The Minister may, by legislative instrument, determine fees for the purposes of subsection (1).\n\n (3) A determination under subsection (2) may provide for fees to be payable in respect of the following:\n\n (a) applications to the Tribunal under Division 1A or 1B;\n\n (b) proceedings in the Tribunal under Division 1A or 1B;\n\n (c) taxation of costs by the Tribunal in relation to such proceedings.\n\n (4) Without limiting the scope of a determination that may be made under subsection (2), such a determination may determine, or determine matters relating to, any or all of the following:\n\n (a) the circumstances in which a fee is to be paid;\n\n (b) who must pay;\n\n (c) the time when payment is required;\n\n (d) remittal, refund and waiver of fees.\n\n (5) A determination made under subsection (2) may do any or all of the following:\n\n (a) determine fees in respect of a particular class or classes of applications, costs or proceedings;\n\n (b) determine different fees in respect of different classes of applications, costs or proceedings;\n\n (c) determine the amount of, or a method for working out the amount of, a fee;\n\n (d) make provision in relation to the whole or a part of a fee;\n\n (e) provide for the Tribunal to make orders relating to the payment of a fee in relation to a proceeding.\n\n (6) A fee must not be such as to amount to taxation.\n\n (7) A fee charged under subsection (1):\n\n (a) is a debt due to the Tribunal, on behalf of the Commonwealth; and\n\n (b) is recoverable by the Tribunal, on behalf of the Commonwealth, in a court of competent jurisdiction.","sortOrder":1343},{"sectionNumber":"113","sectionType":"section","heading":"Standing of Commission to seek judicial review","content":"113  Standing of Commission to seek judicial review\n\n (1) This section extends (and does not limit) the meaning of the term person aggrieved in the Administrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:\n\n (a) a decision made by the Tribunal under this Part (including a decision of the Tribunal that is taken to be a decision of the Commission); or\n\n (b) a failure to make a decision under this Part; or\n\n (c) conduct engaged in for the purpose of making a decision under this Part.\n\n (2) The Commission is taken to be a person aggrieved by the decision, failure or conduct.\n\n (3) A term (except person aggrieved) used in this section and in the Administrative Decisions (Judicial Review) Act 1977 has the same meaning in this section as it has in that Act.","sortOrder":1344},{"sectionNumber":"Part X","sectionType":"part","heading":"International liner cargo shipping","content":"Part X—International liner cargo shipping","sortOrder":1345},{"sectionNumber":"10.01","sectionType":"section","heading":"Objects of Part","content":"10.01  Objects of Part\n\n (1) The principal objects of this Part are:\n\n (a) to ensure that Australian exporters have continued access to outwards liner cargo shipping services of adequate frequency and reliability at freight rates that are internationally competitive; and\n\n (b) to promote conditions in the international liner cargo shipping industry that encourage stable access to export markets for exporters in all States and Territories; and\n\n (c) to ensure that efficient Australian flag shipping is not unreasonably hindered from normal commercial participation in any outwards liner cargo shipping trade; and\n\n (d) as far as practicable, to extend to Australian importers in each State and Territory the protection given by this Part to Australian exporters.\n\n (2) It is the intention of the Parliament that the principal objects of this Part should be achieved:\n\n (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:\n\n (i) enacting additional restrictive trade practice provisions applying to ocean carriers;\n\n (ii) requiring conference agreements to meet certain minimum standards;\n\n (iii) making conference agreements generally publicly available;\n\n (iv) permitting only partial and conditional exemption from restrictive trade practice prohibitions; and\n\n (v) requiring conferences to take part in negotiations with representative shipper bodies;\n\n (b) through increased reliance on private commercial and legal processes and a reduced level of government regulation of routine commercial matters; and\n\n (c) by the exercise of jurisdiction, consistent with international law:\n\n (i) over ocean carriers who have a substantial connection with Australia because they provide international liner cargo shipping services; and\n\n (ii) to enable remedies for contravention of the provisions of this Part to be enforced within Australia.","sortOrder":1347},{"sectionNumber":"10.01A","sectionType":"section","heading":"Simplified outline","content":"10.01A  Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part sets up a system for regulating international liner cargo shipping services.\n\n• The main components of that system are as follows:\n\n (a) registration of conference agreements;\n\n (b) regulation of non‑conference ocean carriers with substantial market power;\n\n (c) regulation of unfair pricing practices;\n\n (d) registration of agents of ocean carriers.\n\n• The parties to a conference agreement relating to international liner cargo shipping services may apply for the registration of the agreement.\n\n• If the conference agreement is registered, the parties will be given partial and conditional exemptions from:\n\n (a) sections 45AF, 45AG, 45AJ and 45AK (cartel conduct); and\n\n (b) section 45 (contracts etc. that restrict dealings or affect competition); and\n\n (c) section 47 (exclusive dealing).\n\n• The parties to a registered conference agreement are required to negotiate with, and provide information to, representative shipper bodies.\n\n• The Commission may investigate whether grounds exist for the Minister to deregister a conference agreement.\n\n• The main ground for deregistration is a breach by the parties to the agreement of requirements imposed on them by this Part.","sortOrder":1348},{"sectionNumber":"10.02","sectionType":"section","heading":"Interpretation","content":"10.02  Interpretation\n\n (1) In this Part, unless the contrary intention appears:\n\nagreement means any contract, agreement, arrangement or understanding, whether made in or outside Australia.\n\nancillary service, in relation to a scheduled cargo shipping service, means:\n\n (a) an inter‑terminal transport service; or\n\n (b) a stevedoring service; or\n\n (c) a service provided outside Australia;\n\nthat:\n\n (d) relates to the cargo transported, or to be transported, on the scheduled cargo shipping service; and\n\n (e) is provided by, or on behalf of, the provider of the scheduled cargo shipping service.\n\nassociation includes a body corporate.\n\nAustralian exporter means a person who exports goods from Australia.\n\nAustralian flag shipping operator means a person who:\n\n (a) is an Australian citizen or a body corporate incorporated by or under the law of the Commonwealth or of a State or Territory;\n\n (b) provides, or proposes to provide, shipping services; and\n\n (c) normally uses, or proposes normally to use, in providing the services only:\n\n (i) a ship that is registered in Australia; or\n\n (ii) 2 or more ships, all or most of which are registered in Australia.\n\nAustralian importer means a person who imports goods into Australia.\n\nauthorised officer means an officer of the Department who is authorised, in writing, by the Minister for the purposes of this Part.\n\nconference 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.\n\nconference agreement means:\n\n (a) an outwards conference agreement; or\n\n (b) an inwards conference agreement.\n\ndesignated inwards peak shipper body means an association specified in a notice under subsection 10.03(2A).\n\ndesignated inwards secondary shipper body means an association specified in a notice under subsection 10.03(2B).\n\ndesignated inwards shipper body means:\n\n (a) a designated inwards peak shipper body; or\n\n (b) a designated inwards secondary shipper body.\n\ndesignated outwards peak shipper body means an association specified in a notice under subsection 10.03(1).\n\ndesignated outwards secondary shipper body means an association specified in a notice under subsection 10.03(2).\n\ndesignated outwards shipper body means:\n\n (a) a designated outwards peak shipper body; or\n\n (b) a designated outwards secondary shipper body.\n\ndesignated 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.\n\ndesignated secondary shipper body means:\n\n (a) a designated outwards secondary shipper body; or\n\n (b) a designated inwards secondary shipper body.\n\ndesignated shipper body means:\n\n (a) a designated outwards shipper body; or\n\n (b) a designated inwards shipper body.\n\nexemption order means an order under section 10.72A.\n\nfreight rate agreement means a conference agreement that consists of or includes freight rate charges.\n\nfreight rate charges:\n\n (a) in relation to an outwards conference agreement—means those parts of the conference agreement that specify freight rates (including base freight rates, surcharges, rebates and allowances) for outwards liner cargo shipping services; and\n\n (b) in relation to an inwards conference agreement—means those parts of the conference agreement that specify freight rates (including base freight rates, surcharges, rebates and allowances) for inwards liner cargo shipping services.\n\nhandling cargo includes a service that is related to handling of cargo.\n\ninland terminal has the meaning given by section 10.02A.\n\ninternational liner cargo shipping service means:\n\n (a) an outwards liner cargo shipping service; or\n\n (b) an inwards liner cargo shipping service.\n\ninter‑terminal transport service means a service for the transport of various types of general cargo:\n\n (a) from an inland terminal to a port terminal; or\n\n (b) from a port terminal to an inland terminal; or\n\n (c) from a port terminal to another port terminal;\n\nand includes the handling of the cargo within any of those terminals.\n\ninwards 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.\n\ninwards 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.\n\ninwards loyalty agreement means an agreement:\n\n (a) between an ocean carrier or conference and a shipper or designated inwards shipper body; and\n\n (b) that makes provision, in relation to inwards liner cargo shipping services, having the purpose or effect of giving certain benefits to the shipper, or a shipper represented by the designated inwards shipper body, if the shipper ships with the ocean carrier, or members of the conference:\n\n (i) all or particular cargo, or a particular portion of all or particular cargo, shipped by the shipper; or\n\n (ii) a particular quantity of cargo or of particular cargo.\n\ninwards 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.\n\ninwards varying conference agreement means an agreement:\n\n (a) that varies an inwards conference agreement; or\n\n (b) that otherwise affects an inwards conference agreement (including an agreement referred to in subsection (4)).\n\nloyalty agreement means:\n\n (a) an outwards loyalty agreement; or\n\n (b) an inwards loyalty agreement.\n\nocean carrier means a person who provides, or proposes to provide, international liner cargo shipping services.\n\noutwards 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.\n\noutwards 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.\n\noutwards loyalty agreement means an agreement:\n\n (a) between an ocean carrier or conference and a shipper or designated outwards shipper body; and\n\n (b) that makes provision, in relation to outwards liner cargo shipping services, having the purpose or effect of giving certain benefits to the shipper, or a shipper represented by the designated outwards shipper body, if the shipper ships with the ocean carrier, or members of the conference:\n\n (i) all or particular cargo, or a particular portion of all or particular cargo, shipped by the shipper; or\n\n (ii) a particular quantity of cargo or of particular cargo.\n\noutwards 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.\n\noutwards varying conference agreement means an agreement:\n\n (a) that varies an outwards conference agreement; or\n\n (b) that otherwise affects an outwards conference agreement (including an agreement referred to in subsection (3)).\n\nport terminal means:\n\n (a) the area within the limits of a wharf appointed under section 15 of the Customs Act 1901, being the limits fixed under that section; or\n\n (b) a terminal facility within the limits of a designated port area.\n\npricing 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.\n\nprovisionally registered conference agreement means a conference agreement that is provisionally registered under this Part.\n\nregistered 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.\n\nregistered conference agreement means a conference agreement that is finally registered under this Part.\n\nregistered 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.\n\nRegistrar means the Registrar of Liner Shipping.\n\nscheduled 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.\n\nstevedoring service means:\n\n (a) the loading or unloading of cargo into or from a ship; or\n\n (b) the handling of cargo within a port terminal.\n\nterminal‑to‑terminal service means:\n\n (a) an outwards scheduled cargo shipping service, together with any ancillary service that relates to the outwards scheduled cargo shipping service; or\n\n (b) an inwards scheduled cargo shipping service, together with any ancillary service that relates to the inwards scheduled cargo shipping service.\n\nvary, in relation to a conference agreement, includes vary by way of:\n\n (a) omitting or altering any of the provisions of, or parties to, the agreement;\n\n (b) adding new provisions or parties to the agreement; or\n\n (c) substituting new provisions or parties for any of the provisions of, or parties to, the agreement.\n\nvarying conference agreement means:\n\n (a) an outwards varying conference agreement; or\n\n (b) an inwards varying conference agreement.\n\n (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.\n\n (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.\n\n (3) A reference in this Part to an agreement that affects an outwards conference agreement includes a reference to an agreement between parties to the conference agreement or between parties to the conference agreement and other ocean carriers:\n\n (a) that affects the conduct of parties to the conference agreement in relation to outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement;\n\n (b) that affects the minimum level of outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or\n\n (c) that otherwise affects:\n\n (i) the operation, or proposed operation, of the conference agreement; or\n\n (ii) outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement.\n\n (4) A reference in this Part to an agreement that affects an inwards conference agreement includes a reference to an agreement between parties to the conference agreement or between parties to the conference agreement and other ocean carriers:\n\n (a) that affects the conduct of parties to the conference agreement in relation to inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or\n\n (b) that affects the minimum level of inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or\n\n (c) that otherwise affects:\n\n (i) the operation, or proposed operation, of the conference agreement; or\n\n (ii) inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement.\n\n (5) For the purposes of this Part (except where the contrary intention appears), if:\n\n (a) an ancillary service relates to a scheduled cargo shipping service; and\n\n (b) the ancillary service is provided on behalf of the provider of the scheduled cargo shipping service by a third person;\n\nthe ancillary service is taken to be provided by the provider of the scheduled cargo shipping service instead of by the third person.","sortOrder":1349},{"sectionNumber":"10.02A","sectionType":"section","heading":"Inland terminals","content":"10.02A  Inland terminals\n\n (1) The Minister may, by legislative instrument, declare that a specified facility is an inland terminal for the purposes of this Part.\n\n (2) The facility must be in Australia, but outside a designated port area.\n\n (3) In making a declaration under subsection (1), the Minister must have regard to the following matters:\n\n (a) whether the facility is under the control of a person who is, or of persons each of whom is:\n\n (i) an ocean carrier; or\n\n (ii) a person who provides services at the facility at the request of an ocean carrier;\n\n (b) whether the facility is used for either or both of the following purposes:\n\n (i) assembling export cargoes for transport to a port terminal located at the port where the cargoes are to be loaded onto ships for export;\n\n (ii) delivering imported cargoes to importers or their representatives;\n\n (c) any other matters that the Minister thinks are relevant.\n\n (4) In making a declaration under subsection (1), the Minister must not give preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State.\n\n (5) A declaration under subsection (1) has effect accordingly.","sortOrder":1350},{"sectionNumber":"10.03","sectionType":"section","heading":"Designated shipper bodies","content":"10.03  Designated shipper bodies\n\n (1) If the Minister is of the opinion that an association represents the interests, in relation to outwards liner cargo shipping services, of Australian shippers generally, the Minister may, by legislative instrument, declare that the association is a designated outwards peak shipper body for the purposes of this Part.\n\n (2) If the Minister is of the opinion:\n\n (a) that an association represents the interests, in relation to outwards liner cargo shipping services, of all or any of the following kinds of persons:\n\n (i) Australian shippers in a particular trade;\n\n (ii) Australian shippers of particular kinds of goods;\n\n (iii) shippers in a particular part of Australia;\n\n (iv) producers of goods of a kind exported, or proposed to be exported, from Australia; and\n\n (b) that it is desirable that the association be a designated outwards secondary shipper body for the purposes of this Part;\n\nthe Minister may, by legislative instrument, declare that the association is a designated outwards secondary shipper body for the purposes of this Part.\n\n (2A) If the Minister is of the opinion that an association represents the interests, in relation to inwards liner cargo shipping services, of Australian shippers generally, the Minister may, by legislative instrument, declare that the association is a designated inwards peak shipper body for the purposes of this Part.\n\n (2B) If the Minister is of the opinion:\n\n (a) that an association represents the interests, in relation to inwards liner cargo shipping services, of all or any of the following kinds of persons:\n\n (i) Australian shippers in a particular trade;\n\n (ii) Australian shippers of particular kinds of goods;\n\n (iii) shippers in a particular part of Australia; and\n\n (b) that it is desirable that the association be a designated inwards secondary shipper body for the purposes of this Part;\n\nthe Minister may, by legislative instrument, declare that the association is a designated inwards secondary shipper body for the purposes of this Part.\n\n (3) Where the Minister declares that an association is a designated outwards peak shipper body, a designated inwards peak shipper body, a designated outwards secondary shipper body or a designated inwards secondary shipper body for the purposes of this Part, the Registrar shall enter particulars of the association in the register of designated shipper bodies.\n\n (4) The particulars entered in the register shall include whether the association is a designated outwards peak shipper body, a designated inwards peak shipper body, a designated outwards secondary shipper body or a designated inwards secondary shipper body.\n\n (5) The Minister may, by legislative instrument, make guidelines to be applied by the Registrar in the exercise of the Registrar’s powers to nominate designated secondary shipper bodies for the purposes of sections 10.29, 10.41 and 10.52.\n\n (6) The Registrar shall enter particulars of any nomination of a designated secondary shipper body for the purposes of section 10.29, 10.41 or 10.52 in the register of designated shipper bodies.","sortOrder":1351},{"sectionNumber":"10.04","sectionType":"section","heading":"Application of section 46 in relation to conference agreements","content":"10.04  Application of section 46 in relation to conference agreements\n\n (1) For the purposes of section 46, if the parties to a conference agreement together have a substantial degree of power in a market in which any party to the agreement provides international liner cargo shipping services under the agreement, each party to the conference agreement shall be taken to have a substantial degree of power in the market.\n\n (2) In subsection (1):\n\nconference 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.","sortOrder":1353},{"sectionNumber":"10.06","sectionType":"section","heading":"Application of Australian law to outwards conference agreements and withdrawal from agreements","content":"10.06  Application of Australian law to outwards conference agreements and withdrawal from agreements\n\n (1) An outwards conference agreement must expressly provide for a question arising under the agreement in relation to an outwards liner cargo shipping service provided, or proposed to be provided, under the agreement to be determined in Australia in accordance with Australian law unless the parties and the Minister agree, in writing, to the particular question being otherwise determined.\n\n (2) An outwards conference agreement must expressly permit any party to the agreement to withdraw from the agreement on reasonable notice without penalty.","sortOrder":1355},{"sectionNumber":"10.07","sectionType":"section","heading":"Minimum levels of shipping services to be specified in conference agreements","content":"10.07  Minimum levels of shipping services to be specified in conference agreements\n\n (1) An outwards conference agreement must contain provisions specifying the minimum level of outwards liner cargo shipping services to be provided under the agreement.\n\n (2) An inwards conference agreement must contain provisions specifying the minimum level of inwards liner cargo shipping services to be provided under the agreement.\n\nNote: See also paragraph 10.33(1)(b) and section 10.72A.","sortOrder":1356},{"sectionNumber":"10.08","sectionType":"section","heading":"Conference agreements may include only certain restrictive trade practice provisions","content":"10.08  Conference agreements may include only certain restrictive trade practice provisions\n\n (1) If a conference agreement includes a provision:\n\n (aa) that is a provision where the following conditions are satisfied in relation to the provision:\n\n (i) the purpose/effect condition set out in subsection 45AD(2);\n\n (ii) the competition condition set out in subsection 45AD(4); or\n\n (ab) that is a provision where the following conditions are satisfied in relation to the provision:\n\n (i) the purpose condition set out in subsection 45AD(3);\n\n (ii) the competition condition set out in subsection 45AD(4); or\n\n (b) that has the purpose, or has or is likely to have the effect, of substantially lessening competition (within the meaning of section 45);\n\nthe provision, so far as it is covered by paragraph (aa), (ab) or (b), must either:\n\n (c) deal only with the following matters:\n\n (i) the fixing or other regulation of freight rates;\n\n (ii) the pooling or apportionment of earnings, losses or traffic;\n\n (iii) the restriction or other regulation of the quantity or kind of cargo to be carried by parties to the agreement;\n\n (iv) the restriction or other regulation of the entry of new parties to the agreement; or\n\n (d) be necessary for the effective operation of the agreement and of overall benefit to:\n\n (i) in the case of an outwards conference agreement—Australian exporters; or\n\n (ii) in the case of an inwards conference agreement—Australian importers.\n\n (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:\n\n (a) in the case of an outwards conference agreement—Australian exporters; or\n\n (b) in the case of an inwards conference agreement—Australian importers.\n\nNote: See also paragraph 10.33(1)(ba) and section 10.72A.\n\n (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.","sortOrder":1357},{"sectionNumber":"10.09","sectionType":"section","heading":"Where may consequences of conference agreements not complying with minimum standards be found?","content":"10.09  Where may consequences of conference agreements not complying with minimum standards be found?\n\n  The consequences of a conference agreement not complying with this Division are to be found in the following provisions:\n\n (a) section 10.28 (decision on application for provisional registration);\n\n (b) section 10.33 (decision on application for final registration);\n\n (c) section 10.45 (circumstances in which Minister may exercise powers in relation to registered conference agreements).","sortOrder":1358},{"sectionNumber":"10.10","sectionType":"section","heading":"Registers and conference agreement files open to public inspection","content":"10.10  Registers and conference agreement files open to public inspection\n\n (1) The registers and conference agreement files kept by the Registrar and the Commission under this Part are open to public inspection.\n\n (2) A person is entitled, on application to the Registrar or the Commission, as the case requires, and payment of the prescribed fee, to obtain a copy of the whole or any part of:\n\n (a) an entry in a register kept under this Part; or\n\n (b) a conference agreement file kept under this Part.","sortOrder":1360},{"sectionNumber":"10.11","sectionType":"section","heading":"What registers are to be kept by the Registrar?","content":"10.11  What registers are to be kept by the Registrar?\n\n (1) The Registrar shall keep:\n\n (a) a register of conference agreements; and\n\n (b) a register of designated shipper bodies; and\n\n (c) a register of non‑conference ocean carriers with substantial market power; and\n\n (d) a register of obligations concerning unfair pricing practices; and\n\n (e) a register of ocean carrier agents; and\n\n (f) a register of exemption orders.\n\n (2) An entry in a register must contain such particulars as are prescribed in relation to the register.","sortOrder":1361},{"sectionNumber":"10.12","sectionType":"section","heading":"What conference agreement files are to be kept by the Registrar?","content":"10.12  What conference agreement files are to be kept by the Registrar?\n\n (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).\n\n (2) The conference agreement file for a conference agreement must include:\n\n (a) documents filed with the Registrar under Division 6 in relation to the agreement or any relevant varying conference agreement (other than any part of a document that is not open to public inspection);\n\n (b) abstracts accepted by the Registrar under section 10.36 in relation to such documents (being abstracts of those parts of the documents that are not open to public inspection); and\n\n (c) notifications given to the Registrar under subsection 10.40(1) or 10.43(1) in relation to the agreement or any relevant varying conference agreement.","sortOrder":1362},{"sectionNumber":"10.13","sectionType":"section","heading":"What register is to be kept by the Commission?","content":"10.13  What register is to be kept by the Commission?\n\n (1) The Commission shall keep a register of Commission investigations.\n\n (2) Subject to section 10.88, the register of Commission investigations shall contain:\n\n (a) references given to the Commission by the Minister under subsections 10.47(1), 10.50(1), 10.57(1) and 10.63(1);\n\n (b) particulars of decisions made by the Commission under subsections 10.48(2), 10.48(2A) and 10.58(2) to hold investigations;\n\n (c) requests made to the Commission by the Minister under subsections 10.48(3) and 10.58(3);\n\n (d) documents given to the Commission in relation to investigations by it under this Part;\n\n (e) particulars of oral submissions made to the Commission in relation to such investigations; and\n\n (f) reports given to the Minister by the Commission in relation to such investigations.","sortOrder":1363},{"sectionNumber":"10.14","sectionType":"section","heading":"Exemptions apply only to certain activities","content":"10.14  Exemptions apply only to certain activities\n\n (1) Subject to this section, the exemptions provided by this Subdivision apply only in relation to the following parts of an outwards liner cargo shipping service or an inwards liner cargo shipping service:\n\n (a) the parts of the service that consist of the transport of the cargo by sea;\n\n (b) stevedoring services;\n\n (c) activities that take place outside Australia.\n\n (2) The exemptions provided by this Subdivision extend to the fixing of charges for an inter‑terminal transport service where the service is part of an outwards liner cargo shipping service or an inwards liner cargo shipping service.\n\n (3) The exemptions provided by this Subdivision extend to the determination of common terms and conditions for bills of lading for use in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.\n\n (4) To avoid doubt, the exemptions provided by this Subdivision do not extend to any dealings between the parties to a conference agreement and a person who provides ancillary services on behalf of the provider of a scheduled cargo shipping service.","sortOrder":1366},{"sectionNumber":"10.15","sectionType":"section","heading":"When do exemptions commence to apply in relation to registered conference agreements?","content":"10.15  When do exemptions commence to apply in relation to registered conference agreements?\n\n (1) The exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply in relation to the operation of a registered outwards conference agreement only after the end of 30 days after the conference agreement is finally registered.\n\n (2) The exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply in relation to the operation of a registered inwards conference agreement only after whichever is the later of the following times:\n\n (a) the end of 30 days after the conference agreement is finally registered;\n\n (b) the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.","sortOrder":1367},{"sectionNumber":"10.16","sectionType":"section","heading":"Exemptions do not apply to variations of conference agreement unless varying agreement registered","content":"10.16  Exemptions do not apply to variations of conference agreement unless varying agreement registered\n\n  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.","sortOrder":1368},{"sectionNumber":"10.17","sectionType":"section","heading":"Exemptions from sections 45AF, 45AG, 45AJ, 45AK and 45","content":"10.17  Exemptions from sections 45AF, 45AG, 45AJ, 45AK and 45\n\n (1) Sections 45AF, 45AJ and 45 do not apply in relation to the making of a contract or arrangement, or the arriving at an understanding, if:\n\n (a) the contract, arrangement or understanding is a conference agreement; and\n\n (b) the parties apply for its provisional registration under this Part within 30 days after the making of the contract or arrangement or arriving at the understanding.\n\n (2) Sections 45AG, 45AK and 45 do not apply in relation to conduct engaged in by a party to a registered conference agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.","sortOrder":1369},{"sectionNumber":"10.17A","sectionType":"section","heading":"Exemptions from sections 45AF, 45AG, 45AJ, 45AK and 45 for freight rate agreements","content":"10.17A  Exemptions from sections 45AF, 45AG, 45AJ, 45AK and 45 for freight rate agreements\n\n (1) Sections 45AF, 45AJ and 45 do not apply to the making of freight rate charges in a freight rate agreement if:\n\n (a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last‑mentioned agreement is finally registered; and\n\n (b) the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement.\n\n (2) Sections 45AF, 45AJ and 45 do not apply to the making of freight rate charges in a freight rate agreement if:\n\n (a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times:\n\n (i) the end of 30 days after the last‑mentioned agreement is finally registered;\n\n (ii) the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and\n\n (b) the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.\n\n (3) Sections 45AG, 45AK 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:\n\n (a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last‑mentioned agreement is finally registered; and\n\n (b) the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement.\n\n (4) Sections 45AG, 45AK 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:\n\n (a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times:\n\n (i) the end of 30 days after the last‑mentioned agreement is finally registered;\n\n (ii) the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and\n\n (b) the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.","sortOrder":1370},{"sectionNumber":"10.18","sectionType":"section","heading":"Exemption from section 47","content":"10.18  Exemption from section 47\n\n (1) Section 47 does not apply in relation to conduct engaged in by a party to a registered conference agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.\n\n (2) The exemption provided by subsection (1) does not apply in relation to subsections 47(6) and (7).","sortOrder":1371},{"sectionNumber":"10.18A","sectionType":"section","heading":"Exemptions from section 47 for freight rate agreements","content":"10.18A  Exemptions from section 47 for freight rate agreements\n\n (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:\n\n (a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last‑mentioned agreement is finally registered; and\n\n (b) the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement.\n\n (2) Section 47 does not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:\n\n (a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times:\n\n (i) the end of 30 days after the last‑mentioned agreement is finally registered;\n\n (ii) the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and\n\n (b) the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.\n\n (3) The exemptions provided by subsections (1) and (2) do not apply in relation to subsections 47(6) and (7).","sortOrder":1372},{"sectionNumber":"10.19","sectionType":"section","heading":"Exemptions from sections 45AF, 45AG, 45AJ, 45AK and 45","content":"10.19  Exemptions from sections 45AF, 45AG, 45AJ, 45AK and 45\n\n (1) Sections 45AF, 45AJ and 45 do not apply in relation to the making of a contract or arrangement, or the arriving at an understanding, if the contract, arrangement or understanding is a loyalty agreement.\n\n (2) Sections 45AG, 45AK and 45 do not apply in relation to conduct engaged in by a party to a loyalty agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.","sortOrder":1374},{"sectionNumber":"10.20","sectionType":"section","heading":"Exemption from section 47","content":"10.20  Exemption from section 47\n\n (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.\n\n (2) The exemption provided by subsection (1) does not apply in relation to subsections 47(6) and (7).","sortOrder":1375},{"sectionNumber":"10.21","sectionType":"section","heading":"Exemptions cease to apply in relation to a shipper at the shipper’s option","content":"10.21  Exemptions cease to apply in relation to a shipper at the shipper’s option\n\n  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.","sortOrder":1376},{"sectionNumber":"10.24","sectionType":"section","heading":"Exemptions from sections 45AF, 45AG, 45AJ, 45AK, 45 and 47 in relation to certain negotiations","content":"10.24  Exemptions from sections 45AF, 45AG, 45AJ, 45AK, 45 and 47 in relation to certain negotiations\n\n (1) Sections 45AF, 45AJ, 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier, conference, shipper or designated shipper body so far as the conduct relates to the determination of terms and conditions of loyalty agreements.\n\n (2) Sections 45AF, 45AG, 45AJ, 45AK, 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier, conference, shipper or designated shipper body so far as the conduct relates to the obligations of an ocean carrier under any of the following provisions:\n\n (a) section 10.29 (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement);\n\n (b) section 10.41 (parties to registered conference agreement to negotiate with certain designated shipper bodies etc.);\n\n (c) section 10.52 (non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.).\n\n (3) The exemptions provided by this section do not apply in relation to subsections 47(6) and (7).","sortOrder":1378},{"sectionNumber":"10.24A","sectionType":"section","heading":"Exemptions from sections 45AF, 45AG, 45AJ, 45AK, 45 and 47 in relation to stevedoring contracts","content":"10.24A  Exemptions from sections 45AF, 45AG, 45AJ, 45AK, 45 and 47 in relation to stevedoring contracts\n\n (1) Sections 45AF, 45AJ and 45 do not apply in relation to the making of a stevedoring contract.\n\nNote: For stevedoring contract, see subsection (5).\n\n (2) Sections 45AG, 45AK, 45 and 47 do not apply in relation to conduct engaged in by a party to a stevedoring contract so far as the conduct gives effect to a provision of the contract.\n\n (3) Sections 45AF, 45AJ, 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier or a stevedoring operator so far as the conduct relates to the determination of terms and conditions of a stevedoring contract.\n\nNote: For stevedoring operator, see subsection (5).\n\n (3A) The exemptions provided by this section do not extend to any dealings between stevedoring operators.\n\n (4) The exemptions provided by this section do not apply in relation to subsections 47(6) and (7).\n\n (5) In this section:\n\nstevedoring contract means a contract between:\n\n (a) an ocean carrier; and\n\n (b) a stevedoring operator;\n\nunder which the stevedoring operator provides, or arranges for the provision of, stevedoring services to the ocean carrier in connection with cargo transported on international liner cargo shipping services provided by the ocean carrier.\n\nstevedoring operator means a person who:\n\n (a) provides, or proposes to provide; or\n\n (b) arranges for the provision of, or proposes to arrange for the provision of;\n\nstevedoring services in connection with cargo transported on international liner cargo shipping services.","sortOrder":1379},{"sectionNumber":"10.25","sectionType":"section","heading":"Application for provisional registration of conference agreement","content":"10.25  Application for provisional registration of conference agreement\n\n (1) The parties to a conference agreement may apply for its provisional registration under this Part.\n\n (2) The application must comply with the following provisions:\n\n (a) subsections 10.26(1) and (2) (how application is to be made and verified);\n\n (b) section 10.27 (copy of agreement to be filed with application etc.).","sortOrder":1382},{"sectionNumber":"10.26","sectionType":"section","heading":"How application is to be made and verified","content":"10.26  How application is to be made and verified\n\n (1) An application for the provisional registration of a conference agreement must be:\n\n (a) in the appropriate prescribed form;\n\n (b) made to the Registrar in accordance with the regulations; and\n\n (c) accompanied by the appropriate prescribed fee.\n\n (2) The application must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.\n\n (3) The application may be made by a party to the agreement on behalf of the party and other parties to the agreement.","sortOrder":1383},{"sectionNumber":"10.27","sectionType":"section","heading":"Copy of agreement to be filed with application etc.","content":"10.27  Copy of agreement to be filed with application etc.\n\n (1) Subject to subsections (1A) and (1B), an application for the provisional registration of a conference agreement must be accompanied by:\n\n (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\n\n (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);\n\nother than any parts of the agreement that relate to the minimum level of:\n\n (c) in the case of an outwards conference agreement—outwards liner cargo shipping services to be provided under the agreement or an outwards conference agreement that is varied or otherwise affected by the agreement; or\n\n (d) in the case of an inwards conference agreement—inwards liner cargo shipping services to be provided under the agreement or an inwards conference agreement that is varied or otherwise affected by the agreement.\n\n (1A) The copy of the agreement referred to in paragraph (1)(a) need not include the freight rate charges in the agreement.\n\n (1B) The written memorandum referred to in paragraph (1)(b) need not include the freight rate charges in the agreement.\n\n (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.","sortOrder":1384},{"sectionNumber":"10.27A","sectionType":"section","heading":"Copy of conference agreement to be given to designated peak shipper body","content":"10.27A  Copy of conference agreement to be given to designated peak shipper body\n\n (1) If:\n\n (a) the parties to an outwards conference agreement apply for its provisional registration; and\n\n (b) at the time of the application, there is a designated outwards peak shipper body;\n\nthe parties must give the designated outwards peak shipper body a copy of:\n\n (c) the complete copy of the agreement referred to in paragraph 10.27(1)(a); and\n\n (d) the written memorandum referred to in paragraph 10.27(1)(b);\n\nas soon as practicable after the application is made.\n\n (2) If:\n\n (a) the parties to an inwards conference agreement apply for its provisional registration; and\n\n (b) at the time of the application, there is a designated inwards peak shipper body;\n\nthe parties must give the designated inwards peak shipper body a copy of:\n\n (c) the complete copy of the agreement referred to in paragraph 10.27(1)(a); and\n\n (d) the written memorandum referred to in paragraph 10.27(1)(b);\n\nas soon as practicable after the application is made.","sortOrder":1385},{"sectionNumber":"10.28","sectionType":"section","heading":"Decision on application for provisional registration","content":"10.28  Decision on application for provisional registration\n\n (1) If the Registrar is satisfied:\n\n (a) that an application has properly been made for the provisional registration of a conference agreement; and\n\n (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\n\n (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\n\n (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\n\n (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\n\n (c) that provisional registration of the agreement is not prevented by one or more of the following provisions:\n\n (i) section 10.38 (application for registration to be returned where request for confidentiality refused etc.);\n\n (ii) section 10.39 (application also to be made for registration of varying agreements);\n\n (iii) subsection 10.40(1) (notification of happening of affecting events prior to final registration etc.);\n\nthe Registrar shall, within 14 days after the making of the application, provisionally register the agreement by entering in the register of conference agreements:\n\n (d) particulars of the agreement; and\n\n (e) a notation to the effect that the agreement has been provisionally registered.\n\n (2) If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse to provisionally register the agreement.\n\n (3) When the Registrar provisionally registers the agreement or refuses to provisionally register the agreement, the Registrar shall immediately notify the applicants.\n\n (4) If the Registrar provisionally registers the agreement, the Registrar must give the Commission a copy of:\n\n (a) the complete copy of the agreement referred to in paragraph 10.27(1)(a); and\n\n (b) the written memorandum referred to in paragraph 10.27(1)(b).","sortOrder":1386},{"sectionNumber":"10.29","sectionType":"section","heading":"Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement","content":"10.29  Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement\n\n (1) The parties to a provisionally registered outwards conference agreement shall:\n\n (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;\n\n (b) if a shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties—make the information available to the shipper body; and\n\n (c) provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.\n\n (1A) The parties to a provisionally registered inwards conference agreement must:\n\n (a) take part in negotiations with:\n\n (i) the designated inwards peak shipper bodies; or\n\n (ii) if there is not at that time a designated inwards peak shipper body—the designated inwards secondary shipper bodies nominated by the Registrar for the purposes of the agreement for the purposes of this section;\n\n  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\n\n (b) if a shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties—make the information available to the shipper body; and\n\n (c) provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.\n\n (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.\n\n (2) Subsections (1) and (1A) do not apply in relation to a conference agreement if the shipper bodies notify, as prescribed, the Registrar and the parties to the agreement that they do not wish to have negotiations in relation to the agreement.\n\n (3) The nomination of a designated secondary shipper body for the purposes of a provisionally registered conference agreement must be made by written notice given to the parties to the agreement.","sortOrder":1387},{"sectionNumber":"10.30","sectionType":"section","heading":"Application for final registration of conference agreement","content":"10.30  Application for final registration of conference agreement\n\n (1) The parties to a provisionally registered conference agreement may apply for its final registration under this Part.\n\n (2) The application must comply with the following provisions:\n\n (a) subsections 10.31(1) and (2) (how application is to be made and verified);\n\n (b) section 10.32 (copy of agreement to be filed with application etc.).","sortOrder":1389},{"sectionNumber":"10.31","sectionType":"section","heading":"How application is to be made and verified","content":"10.31  How application is to be made and verified\n\n (1) An application for the final registration of a conference agreement must be:\n\n (a) in the appropriate prescribed form;\n\n (b) made to the Registrar in accordance with the regulations; and\n\n (c) accompanied by the appropriate prescribed fee.\n\n (2) The application must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.\n\n (3) The application may be made by a party to the agreement on behalf of the party and other parties to the agreement.","sortOrder":1390},{"sectionNumber":"10.32","sectionType":"section","heading":"Copy of agreement to be filed with application etc.","content":"10.32  Copy of agreement to be filed with application etc.\n\n (1) Subject to subsections (1A) and (1B), an application for the final registration of a conference agreement must be accompanied by:\n\n (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\n\n (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).\n\n (1A) The copy of the agreement referred to in paragraph (1)(a) need not include the freight rate charges in the agreement.\n\n (1B) The written memorandum referred to in paragraph (1)(b) need not include the freight rate charges in the agreement.\n\n (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.","sortOrder":1391},{"sectionNumber":"10.33","sectionType":"section","heading":"Decision on application for final registration","content":"10.33  Decision on application for final registration\n\n (1) If the Registrar is satisfied:\n\n (a) that an application has properly been made for the final registration of a conference agreement; and\n\n (b) any of the following subparagraphs applies:\n\n (i) that the agreement complies with section 10.07 (minimum levels of shipping services to be specified in conference agreements) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with section 10.07;\n\n (ii) that section 10.07 does not apply in relation to the agreement because of an exemption order;\n\n (iii) that the agreement is an inwards conference agreement that was in force at the commencement of this subparagraph; and\n\n (ba) any of the following subparagraphs applies:\n\n (i) that the agreement complies with section 10.08 (conference agreements may include only certain restrictive trade practice provisions) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with section 10.08;\n\n (ii) that section 10.08 does not apply in relation to the agreement because of an exemption order;\n\n (iii) that the agreement is an inwards conference agreement that was in force at the commencement of this subparagraph; and\n\n (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\n\n (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\n\n (d) that final registration of the agreement is not prevented by one or more of the following provisions:\n\n (i) section 10.38 (application for registration to be returned where request for confidentiality refused etc.);\n\n (ii) section 10.39 (application also to be made for registration of varying conference agreements);\n\n (iii) subsection 10.40(1) (notification of happening of affecting events prior to final registration etc.);\n\nthe 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.\n\n (2) If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse to finally register the agreement.\n\n (3) When the Registrar finally registers the agreement or refuses to finally register the agreement, the Registrar shall immediately notify the applicants.\n\n (4) If the Registrar finally registers the agreement, the Registrar must give the Commission a copy of:\n\n (a) the complete copy of the agreement referred to in paragraph 10.32(1)(a); and\n\n (b) the written memorandum referred to in paragraph 10.32(1)(b).","sortOrder":1392},{"sectionNumber":"10.34","sectionType":"section","heading":"Request for confidentiality","content":"10.34  Request for confidentiality\n\n (1) An application for the provisional or final registration of a conference agreement may include a request that a specified part of the application, or of a document accompanying the application, not be open to public inspection under this Part.\n\n (2) If such a request is included in the application, the application must include a statement of reasons in support of the request.","sortOrder":1394},{"sectionNumber":"10.35","sectionType":"section","heading":"Abstract to accompany request for confidentiality","content":"10.35  Abstract to accompany request for confidentiality\n\n (1) Where a request is made under section 10.34 that a part of the application in which the request is included, or of a document accompanying the application, not be open to public inspection under this Part, the application must be accompanied by an abstract of the part of the application or other document in relation to which the request is made.\n\n (2) The abstract must:\n\n (a) be in the appropriate prescribed form; and\n\n (b) comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.","sortOrder":1395},{"sectionNumber":"10.36","sectionType":"section","heading":"Examination of abstract","content":"10.36  Examination of abstract\n\n (1) Where:\n\n (a) a request is properly made under section 10.34 that a part of a document not be open to public inspection under this Part; and\n\n (b) the request is accompanied by an abstract of the part of the document;\n\nthe Registrar shall first determine whether to accept the abstract.\n\n (2) If the Registrar is satisfied:\n\n (a) that the abstract adequately describes the scope of the part of the document; and\n\n (b) that the abstract complies with subsection 10.35(2);\n\nthe Registrar shall accept the abstract.\n\n (3) If the Registrar is not so satisfied, the Registrar shall:\n\n (a) refuse to accept the abstract; and\n\n (b) refuse the request and immediately notify the applicants of the decision.","sortOrder":1396},{"sectionNumber":"10.37","sectionType":"section","heading":"Decision on request for confidentiality","content":"10.37  Decision on request for confidentiality\n\n (1) If:\n\n (a) the Registrar is satisfied that a request has properly been made under section 10.34 that a part of a document not be open to public inspection under this Part;\n\n (b) the Registrar has, under section 10.36, accepted an abstract for the part of the document; and\n\n (c) the Registrar is also satisfied, on the basis of the statement of reasons in support of the request that is included in the application for provisional or final registration of the conference agreement concerned:\n\n (i) in the case of an outwards conference agreement—that granting the request would not disadvantage Australian exporters; and\n\n (ia) in the case of an inwards conference agreement—that granting the request would not disadvantage Australian importers; and\n\n (ii) that the request is justified because disclosure of the part of the document would disclose:\n\n (A) trade secrets;\n\n (B) information (other than trade secrets) having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or\n\n (C) any other information concerning a person in relation to the person’s business or professional affairs, or concerning the business, commercial or financial affairs of an organisation or undertaking, the disclosure of which would, or could reasonably be expected to, unreasonably affect the person adversely in relation to the person’s lawful business or professional affairs or the organisation or undertaking in relation to its lawful business, commercial or financial affairs;\n\nthe 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.\n\n (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.","sortOrder":1397},{"sectionNumber":"10.38","sectionType":"section","heading":"Application for registration to be returned where request for confidentiality refused etc.","content":"10.38  Application for registration to be returned where request for confidentiality refused etc.\n\nWhere:\n\n (a) an application for the provisional or final registration of a conference agreement includes a request under section 10.34 that a part of a document not be open to public inspection under this Part; and\n\n (b) the request is refused by the Registrar;\n\nthe Registrar shall also refuse the application, and shall return the application, and any documents that accompanied the application, to the applicants.","sortOrder":1398},{"sectionNumber":"10.39","sectionType":"section","heading":"Application also to be made for registration of varying conference agreements","content":"10.39  Application also to be made for registration of varying conference agreements\n\n (1) Subject to subsection (2), if:\n\n (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\n\n (b) another conference agreement that varies or otherwise affects the original agreement is or has been made or arrived at;\n\nthe Registrar shall not provisionally or finally register the original agreement unless application has been made for the provisional registration of the other conference agreement.\n\n (2) Subsection (1) does not apply if the conference agreement referred to in paragraph (1)(b) consists solely of freight rate charges.","sortOrder":1400},{"sectionNumber":"10.40","sectionType":"section","heading":"Notification of happening of affecting events prior to final registration etc.","content":"10.40  Notification of happening of affecting events prior to final registration etc.\n\n (1) If:\n\n (a) application has been made for the provisional or final registration of a conference agreement, but the agreement has not been finally registered; and\n\n (b) either of the following subparagraphs applies:\n\n (i) the proposed operation of the conference agreement is affected, or outwards liner cargo shipping services or inwards liner cargo shipping services proposed to be provided under the agreement are affected, by the happening of an event or otherwise than by a varying conference agreement;\n\n (ii) parties to the conference agreement have made or arrived at an agreement with other ocean carriers that affects outwards liner cargo shipping services or inwards liner cargo shipping services provided, or that would, but for the agreement, have been provided, by the other ocean carriers;\n\nthe Registrar shall not provisionally or finally register the original agreement unless the parties to the agreement have notified the Registrar of the matter.\n\n (2) The notice must be:\n\n (a) in the appropriate prescribed form; and\n\n (b) given to the Registrar in accordance with the regulations.\n\n (3) The notice must comply with any regulations requiring its verification (in whole or part).\n\n (4) Where the parties to a conference agreement give a notice under subsection (1), the Registrar may make such variations (if any) to the particulars entered in the register of conference agreements in relation to the agreement as the Registrar considers necessary or desirable to take account of the notice.","sortOrder":1401},{"sectionNumber":"10.41","sectionType":"section","heading":"Parties to registered conference agreement to negotiate with certain designated shipper bodies etc.","content":"10.41  Parties to registered conference agreement to negotiate with certain designated shipper bodies etc.\n\n (1) The parties to a registered conference agreement shall:\n\n (a) take part in negotiations with a relevant designated shipper body in relation to negotiable shipping arrangements (including any provisions of the agreement that affect those arrangements) whenever reasonably requested by the shipper body, and consider the matters raised, and representations made, by the shipper body;\n\n (b) if the shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties—make the information available to the shipper body; and\n\n (c) provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.\n\n (2) The parties to the agreement shall give each relevant designated shipper body at least 30 days notice of any change in negotiable shipping arrangements unless the shipper body agrees to a lesser period of notice for the change.\n\n (3) In this section:\n\neligible Australian contract means:\n\n (a) a contract entered into in Australia; or\n\n (b) a contract where questions arising under the contract are to be determined in accordance with Australian law.\n\nfreight rates includes base freight rates, surcharges, rebates and allowances.\n\nnegotiable shipping arrangements:\n\n (a) in relation to an outwards conference agreement—means the arrangements for, or the terms and conditions applicable to, outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call); or\n\n (b) in relation to an inwards conference agreement—means:\n\n (i) the arrangements for, or the terms and conditions applicable to, inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call), where those arrangements or those terms and conditions, as the case may be, are embodied in an eligible Australian contract; or\n\n (ii) the arrangements for, or the terms and conditions applicable to, the parts of the inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement that consist of activities that take place on land in Australia (including, for example, terminal handling charges and charges for inter‑terminal transport services).\n\nrelevant designated shipper body:\n\n (a) in relation to an outwards conference agreement—means:\n\n (i) a designated outwards peak shipper body; or\n\n (ii) a designated outwards secondary shipper body nominated by the Registrar (by written notice given to the parties to the agreement) for the purposes of the agreement for the purposes of this section; or\n\n (b) in relation to an inwards conference agreement—means:\n\n (i) a designated inwards peak shipper body; or\n\n (ii) a designated inwards secondary shipper body nominated by the Registrar (by written notice given to the parties to the agreement) for the purposes of the agreement for the purposes of this section.","sortOrder":1403},{"sectionNumber":"10.42","sectionType":"section","heading":"Application to be made for registration of varying conference agreements","content":"10.42  Application to be made for registration of varying conference agreements\n\n (1) Subject to subsection (3), where a conference agreement that varies or otherwise affects a registered conference agreement is made or arrived at, application shall be made for its provisional registration.\n\n (2) The application must be made within 30 days after the making of or arriving at the agreement.\n\n (3) Subsection (1) does not apply to a conference agreement that consists solely of freight rate charges.","sortOrder":1404},{"sectionNumber":"10.43","sectionType":"section","heading":"Parties to registered conference agreement to notify happening of affecting events etc.","content":"10.43  Parties to registered conference agreement to notify happening of affecting events etc.\n\n (1) Where:\n\n (a) the operation, or proposed operation, of a registered conference agreement is affected, or outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, under the agreement are affected, by the happening of an event or otherwise than by a varying conference agreement; or\n\n (b) parties to a registered conference agreement make or arrive at an agreement with other ocean carriers that affects outwards liner cargo shipping services or inwards liner cargo shipping services provided, or that would, but for the agreement, have been provided, by the other ocean carriers;\n\nthe parties to the registered conference agreement shall notify the Registrar of the matter.\n\n (2) The notice must be:\n\n (a) in the appropriate prescribed form; and\n\n (b) given to the Registrar in accordance with the regulations within 30 days after the operation, or proposed operation, of the agreement is affected, the services are affected or the agreement is made or arrived at, as the case may be.\n\n (3) The notice must comply with any regulations requiring its verification (in whole or part).\n\n (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.","sortOrder":1405},{"sectionNumber":"10.44","sectionType":"section","heading":"Powers exercisable by Minister in relation to registered conference agreements etc.","content":"10.44  Powers exercisable by Minister in relation to registered conference agreements etc.\n\n (1) Subject to sections 10.45 and 10.46, the Minister may direct the Registrar:\n\n (a) to cancel the registration of a registered conference agreement; or\n\n (b) to cancel the registration of a registered conference agreement so far as it relates to:\n\n (i) a particular provision of the agreement;\n\n (ii) a particular party to the agreement; or\n\n (iii) particular conduct.\n\n (2) Where the Minister gives a direction under subsection (1), the Registrar shall immediately enter particulars of the direction in the register of conference agreements.\n\n (3) On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the agreement.\n\n (4) On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to a particular provision of the agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the provision.\n\n (5) On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to a particular party to the agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the party.\n\n (6) On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to particular conduct, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to conduct of that kind in relation to the agreement.\n\n (7) A direction under subsection (1) must be given in writing, and the Registrar shall serve a copy of the direction on the parties to the conference agreement concerned.\n\n (8) If:\n\n (a) the Commission reports to the Minister under section 10.47 or 10.48 in relation to either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix); and\n\n (b) after taking the report into account, the Minister is satisfied of either or both of those matters and decides to give a direction under subsection (1);\n\nthe Minister must:\n\n (c) prepare a statement about the decision; and\n\n (d) cause:\n\n (i) a copy of the statement; and\n\n (ii) a copy of the Commission’s report;\n\n  to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made.","sortOrder":1407},{"sectionNumber":"10.45","sectionType":"section","heading":"Circumstances in which Minister may exercise powers in relation to registered conference agreements","content":"10.45  Circumstances in which Minister may exercise powers in relation to registered conference agreements\n\n (1) The Minister shall not give a direction under subsection 10.44(1) in relation to a registered conference agreement unless:\n\n (a) the Minister is satisfied of one or more of the following matters:\n\n (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);\n\n (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;\n\n (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;\n\n (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;\n\n (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.);\n\n (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;\n\n (iv) that parties to the agreement have given effect to or applied, or propose to give effect to or apply, the agreement without due regard to the need for outwards liner cargo shipping services or inwards liner cargo shipping services provided under the agreement to be:\n\n (A) efficient and economical; and\n\n (B) provided at the capacity and frequency reasonably required to meet the needs of shippers who use, and shippers who may reasonably be expected to need to use, the services;\n\n (v) in the case of an outwards conference agreement—that parties to the agreement have given effect to or applied, or propose to give effect to or apply, the agreement in a manner that prevents or hinders an Australian flag shipping operator from engaging efficiently in the provision of outwards liner cargo shipping services to an extent that is reasonable;\n\n (vi) that provisional or final registration of the agreement was granted on the basis of a statement or information that was false or misleading in a material particular;\n\n (vii) that parties to the agreement have breached an undertaking given by the parties to the agreement under section 10.49;\n\n (viii) that subsection (3) applies to parties to the agreement;\n\n (ix) that subsection (4) applies to parties to the agreement; and\n\n (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\n\n (b) the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the parties to the agreement directed at obtaining an undertaking or action by the parties that would have made a direction under subsection 10.44(1) unnecessary; and\n\n (c) either of the following subparagraphs applies:\n\n (i) the Commission has reported to the Minister under section 10.47 or 10.48 in relation to matters referred to in paragraph (a) of which the Minister is satisfied and the Minister has taken the report into account;\n\n (ii) the Minister is satisfied that the special circumstances of the case make it desirable to give the direction before he or she receives such a report from the Commission.\n\n (2) For the purposes of subparagraph (1)(a)(v), in determining what is reasonable, have regard to:\n\n (a) the national interest; and\n\n (b) the interests of the following:\n\n (i) Australian shippers generally;\n\n (ii) Australian shippers in a particular trade;\n\n (iii) Australian shippers of particular kinds of goods;\n\n (iv) shippers in a particular part of Australia; and\n\n (c) any other relevant matters.\n\n (3) This subsection applies to the parties to a registered conference agreement if:\n\n (a) the agreement includes a provision that is covered by paragraph 10.08(1)(aa) or (b); and\n\n (b) the parties to the agreement have engaged in conduct, or propose to engage in conduct, to give effect to or apply the provision; and\n\n (c) that conduct or proposed conduct has not resulted in, or is unlikely to result in, a benefit to the public that outweighs the detriment to the public constituted by any lessening of competition that:\n\n (i) has resulted, or is likely to result, from the conduct; or\n\n (ii) would result, or be likely to result, if the proposed conduct were engaged in; and\n\n (d) there are exceptional circumstances that warrant the giving of a direction under subsection 10.44(1).\n\n (4) This subsection applies to the parties to a registered conference agreement if:\n\n (a) the parties to the agreement have prevented, or are proposing to prevent, the entry of a prospective party to the agreement; and\n\n (b) the prevention or proposed prevention is unreasonable; and\n\n (c) the prevention or proposed prevention is contrary to the interests of any or all of the following:\n\n (i) Australian shippers generally;\n\n (ii) Australian shippers in a particular trade;\n\n (iii) Australian shippers of particular kinds of goods;\n\n (iv) shippers in a particular part of Australia;\n\n (v) in the case of an outwards conference agreement—producers of goods of a kind exported, or proposed to be exported, from Australia.","sortOrder":1408},{"sectionNumber":"10.46","sectionType":"section","heading":"Action to be taken where powers exercised by Minister without first obtaining Commission report","content":"10.46  Action to be taken where powers exercised by Minister without first obtaining Commission report\n\n (1) Where the Minister gives a direction under subsection 10.44(1) before receiving a report under section 10.47 or 10.48 in relation to matters referred to in paragraph 10.45(1)(a) of which the Minister was satisfied before giving the direction, the Minister shall immediately refer the matters to the Commission under section 10.47.\n\n (2) The Commission shall report to the Minister within a period of not more than 60 days in relation to those matters and any other matters that the Commission is then investigating under this Division in relation to the conference agreement concerned.\n\n (3) If, after taking the Commission’s report into account, the Minister is satisfied of one or more of the matters referred to in paragraph 10.45(1)(a), the Minister may, within 21 days after receiving the Commission’s report, direct the Registrar not to take action under subsection (4) in relation to the agreement, and may also give such further directions under subsection 10.44(1) in relation to the agreement as the Minister considers appropriate.\n\n (4) The Registrar shall delete the particulars of the direction under subsection 10.44(1) from the register of conference agreements at the end of 21 days after the Minister receives the Commission’s report unless the Minister has given a direction under subsection (3) in relation to the agreement.\n\n (5) On the deletion of the particulars of the direction, Subdivision A of Division 5 applies in relation to the agreement to the extent to which it would have applied but for the entry of the particulars.\n\n (6) Subsection (1) shall not be taken by implication to limit the matters that may be referred to the Commission under section 10.47.\n\n (7) A direction under subsection (3) must be given in writing, and the Registrar must serve a copy of the direction on the parties to the conference agreement concerned.\n\n (8) If, after taking the Commission’s report into account:\n\n (a) the Minister is satisfied of either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix); and\n\n (b) the Minister decides to give a direction under subsection (3);\n\nthe Minister must:\n\n (c) prepare a statement about the decision; and\n\n (d) cause:\n\n (i) a copy of the statement; and\n\n (ii) a copy of the Commission’s report;\n\n  to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made.","sortOrder":1409},{"sectionNumber":"10.47","sectionType":"section","heading":"Investigation and report by Commission on reference by Minister","content":"10.47  Investigation and report by Commission on reference by Minister\n\n (1) The Minister may refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied in relation to a registered conference agreement of one or more specified matters referred to in paragraph 10.45(1)(a).\n\n (2) The Commission shall hold an investigation into the question and report to the Minister.\n\n (3) In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.","sortOrder":1410},{"sectionNumber":"10.48","sectionType":"section","heading":"Investigation and report by Commission on own initiative or on application by affected person","content":"10.48  Investigation and report by Commission on own initiative or on application by affected person\n\n (1) A person affected by the operation of a registered conference agreement may apply to the Commission for an investigation into the question whether grounds exist for the Minister to be satisfied in relation to the agreement of one or more specified matters referred to in paragraph 10.45(1)(a).\n\n (2) If subsection (1) applies, the Commission may hold an investigation into the question, and, if it decides to do so, it shall inform the Minister of its decision and report to the Minister.\n\n (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).\n\n (2B) If subsection (2A) applies, the Commission must inform the Minister of its decision to hold an investigation and report to the Minister.\n\n (3) In its investigation, the Commission shall give special consideration to such matters (if any) as the Minister requests it to give special consideration.\n\n (4) A request under subsection (3) must be made in writing.\n\n (5) Without limiting subsection (1), each of the following persons shall be taken to be a person affected by the operation of a registered conference agreement:\n\n (a) a party to the agreement;\n\n (b) a designated shipper body;\n\n (c) in the case of an outwards conference agreement—an Australian flag shipping operator;\n\n (d) a shipper who uses, or may reasonably be expected to need to use, outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, under the agreement;\n\n (e) an association representing shippers who use, or may reasonably be expected to need to use, such services.","sortOrder":1411},{"sectionNumber":"10.49","sectionType":"section","heading":"Undertakings by parties to registered conference agreement","content":"10.49  Undertakings by parties to registered conference agreement\n\n (1) The parties to a registered conference agreement may, at any time, offer to give an undertaking to do, or not to do, a specified act or thing.\n\n (2) The offer must be:\n\n (a) in the appropriate prescribed form; and\n\n (b) made to the Minister in accordance with the regulations.\n\n (3) If the Minister accepts the offer, the Minister may do one or more of the following:\n\n (a) revoke any reference made to the Commission under section 10.47 in relation to the agreement;\n\n (b) direct the Commission, in writing, to cease holding any investigation being held by it under section 10.48 in relation to the agreement;\n\n (c) revoke any direction given under subsection 10.44(1) in relation to the agreement.\n\n (4) If the Minister accepts the offer, the parties shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of conference agreements.\n\n (5) If the Minister revokes a direction given under subsection 10.44(1), the Registrar shall immediately include in the register a notation to the effect that the direction has been revoked.\n\n (6) On the inclusion of the notation, Subdivision A of Division 5 applies in relation to the agreement to the extent to which it would have applied but for the entry of the particulars of the direction.","sortOrder":1412},{"sectionNumber":"10.49A","sectionType":"section","heading":"Enforcement of undertakings","content":"10.49A  Enforcement of undertakings\n\n (1) A party to a registered conference agreement must not contravene an undertaking given under section 10.49.\n\n (2) Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV (but not of Division 1A of Part IV).","sortOrder":1413},{"sectionNumber":"10.50","sectionType":"section","heading":"Investigations by Commission into market power of ocean carriers","content":"10.50  Investigations by Commission into market power of ocean carriers\n\n (1) The Minister may refer to the Commission for investigation and report the question whether an ocean carrier has a substantial degree of market power in the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on a trade route otherwise than because the ocean carrier is a party to a conference agreement.\n\n (2) The Commission shall hold an investigation into the question and report to the Minister.\n\n (3) In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.","sortOrder":1415},{"sectionNumber":"10.51","sectionType":"section","heading":"Determination by Minister of market power of ocean carriers","content":"10.51  Determination by Minister of market power of ocean carriers\n\n (1) Where:\n\n (a) the Commission reports to the Minister under section 10.50 that an ocean carrier has a substantial degree of market power in the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on a trade route otherwise than because the ocean carrier is a party to a conference agreement; or\n\n (b) an ocean carrier agrees, in writing, to the Minister giving a direction under this subsection in relation to the ocean carrier in relation to a trade route;\n\nthe 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.\n\n (2) Where the Minister gives a direction under subsection (1), the Registrar shall immediately enter particulars of the ocean carrier and the trade route in the register of non‑conference ocean carriers with substantial market power.\n\n (3) A direction under subsection (1) must be in writing, and the Registrar shall serve a copy of the direction on the ocean carrier concerned.","sortOrder":1416},{"sectionNumber":"10.52","sectionType":"section","heading":"Non-conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.","content":"10.52  Non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.\n\n (1) A registered non‑conference ocean carrier with substantial market power shall:\n\n (a) take part in negotiations with a relevant designated shipper body in relation to negotiable shipping arrangements whenever reasonably requested by the shipper body, and consider the matters raised, and representations made, by the shipper body;\n\n (b) if the shipper body requests the ocean carrier to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the ocean carrier—make the information available to the shipper body; and\n\n (c) provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.\n\n (2) The ocean carrier shall give each relevant designated shipper body at least 30 days notice of any change in negotiable shipping arrangements unless the shipper body agrees to a lesser period of notice for the change.\n\n (3) In this section:\n\neligible Australian contract means:\n\n (a) a contract entered into in Australia; or\n\n (b) a contract where questions arising under the contract are to be determined in accordance with Australian law.\n\nfreight rates includes base freight rates, surcharges, rebates and allowances.\n\nnegotiable shipping arrangements means:\n\n (a) the arrangements for, or the terms and conditions applicable to, outwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call); or\n\n (b) the arrangements for, or the terms and conditions applicable to, inwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call), where those arrangements or those terms and conditions, as the case may be, are embodied in an eligible Australian contract; or\n\n (c) the arrangements for, or the terms and conditions applicable to, the parts of the inwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route that consist of activities that take place on land in Australia (including, for example, terminal handling charges and charges for inter‑terminal transport services).\n\nrelevant designated shipper body:\n\n (a) in relation to negotiations connected with outwards liner cargo shipping services—means:\n\n (i) a designated outwards peak shipper body; or\n\n (ii) a designated outwards secondary shipper body nominated by the Registrar (by written notice given to the ocean carrier) for the purposes of the relevant trade route; or\n\n (b) in relation to negotiations connected with inwards liner cargo shipping services—means:\n\n (i) a designated inwards peak shipper body; or\n\n (ii) a designated inwards secondary shipper body nominated by the Registrar (by written notice given to the ocean carrier) for the purposes of the relevant trade route.\n\nrelevant 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.","sortOrder":1417},{"sectionNumber":"10.53","sectionType":"section","heading":"Non-conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc.","content":"10.53  Non‑conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc.\n\n (1) A registered non‑conference ocean carrier with substantial market power shall not prevent or hinder an Australian flag shipping operator from engaging efficiently in the provision of outwards liner cargo shipping services to an extent that is reasonable.\n\n (2) For the purposes of subsection (1), in determining what is reasonable, have regard to:\n\n (a) the national interest; and\n\n (b) the interests of the following:\n\n (i) Australian shippers generally;\n\n (ii) Australian shippers in a particular trade;\n\n (iii) Australian shippers of particular kinds of goods;\n\n (iv) shippers in a particular part of Australia; and\n\n (c) any other relevant matters.","sortOrder":1418},{"sectionNumber":"10.54","sectionType":"section","heading":"Powers exercisable by Minister in relation to obligations of non-conference ocean carriers with substantial market power","content":"10.54  Powers exercisable by Minister in relation to obligations of non‑conference ocean carriers with substantial market power\n\n (1) Subject to sections 10.55 and 10.56, the Minister may, by writing served on a registered non‑conference ocean carrier with substantial market power, order the ocean carrier to comply with any of the ocean carrier’s obligations under Division 9.\n\n (2) Where the Minister makes an order under subsection (1), the Registrar shall immediately enter particulars of the order in the register of non‑conference ocean carriers with substantial market power.","sortOrder":1420},{"sectionNumber":"10.55","sectionType":"section","heading":"Circumstances in which Minister may exercise powers","content":"10.55  Circumstances in which Minister may exercise powers\n\n  The Minister shall not make an order under subsection 10.54(1) unless:\n\n (a) the Minister is satisfied of either or both of the following matters:\n\n (i) that section 10.52 (non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.) applies to the ocean carrier concerned, and that the ocean carrier has contravened, or proposes to contravene, that section;\n\n (ii) that the ocean carrier concerned has contravened, or proposes to contravene, section 10.53 (non‑conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc.);\n\n (b) the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the ocean carrier directed at obtaining an undertaking or action by the ocean carrier that would have made an order under subsection 10.54(1) unnecessary; and\n\n (c) either of the following subparagraphs applies:\n\n (i) the Commission has reported to the Minister under section 10.57 or 10.58 in relation to matters referred to in paragraph (a) of which the Minister is satisfied and the Minister has taken the report into account;\n\n (ii) the Minister is satisfied that the special circumstances of the case make it desirable to make the order before he or she receives such a report from the Commission.","sortOrder":1421},{"sectionNumber":"10.56","sectionType":"section","heading":"Action to be taken where powers exercised by Minister without first obtaining Commission report","content":"10.56  Action to be taken where powers exercised by Minister without first obtaining Commission report\n\n (1) Where the Minister makes an order under subsection 10.54(1) before receiving a report under section 10.57 or 10.58 in relation to matters referred to in paragraph 10.55(a) of which the Minister was satisfied before making the order, the Minister shall immediately refer the matters to the Commission under section 10.57.\n\n (2) The Commission shall report to the Minister within a period of not more than 60 days in relation to those matters and any other matters that the Commission is then investigating under this Division in relation to the ocean carrier concerned.\n\n (3) If, after taking the Commission’s report into account, the Minister is satisfied of one or more of the matters referred to in paragraph 10.55(a), the Minister may, within 21 days after receiving the Commission’s report, direct the Registrar not to take action under subsection (4) in relation to the ocean carrier, and may also make such further orders under subsection 10.54(1) in relation to the ocean carrier as the Minister considers appropriate.\n\n (4) The Registrar shall delete the particulars of the order under subsection 10.54(1) from the register of non‑conference ocean carriers with substantial market power at the end of 21 days after the Minister receives the Commission’s report unless the Minister has given a direction under subsection (3) in relation to the ocean carrier.\n\n (5) Subsection (1) shall not be taken by implication to limit the matters that may be referred to the Commission under section 10.57.\n\n (6) A direction under subsection (3) must be given in writing, and the Registrar must serve a copy of the direction on the ocean carrier.","sortOrder":1422},{"sectionNumber":"10.57","sectionType":"section","heading":"Investigation and report by Commission on reference by Minister","content":"10.57  Investigation and report by Commission on reference by Minister\n\n (1) The Minister may refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied in relation to a registered non‑conference ocean carrier with substantial market power of one or more specified matters referred to in paragraph 10.55(a).\n\n (2) The Commission shall hold an investigation into the question and report to the Minister.\n\n (3) In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.","sortOrder":1423},{"sectionNumber":"10.58","sectionType":"section","heading":"Investigation and report by Commission on application by affected person","content":"10.58  Investigation and report by Commission on application by affected person\n\n (1) A person affected by the conduct of a registered non‑conference ocean carrier with substantial market power may apply to the Commission for an investigation into the question whether grounds exist for the Minister to be satisfied in relation to the ocean carrier of one or more specified matters referred to in paragraph 10.55(a).\n\n (2) The Commission may hold an investigation into the question, and, if it decides to do so, it shall inform the Minister of its decision and report to the Minister.\n\n (3) In its investigation, the Commission shall give special consideration to such matters (if any) as the Minister requests it to give special consideration.\n\n (4) A request under subsection (3) must be made in writing.\n\n (5) Without limiting subsection (1), each of the following persons shall be taken to be a person affected by the conduct of a registered non‑conference ocean carrier with substantial market power:\n\n (a) a designated shipper body;\n\n (b) in the case of an investigation relating to outwards liner cargo shipping services—an Australian flag shipping operator;\n\n (c) a shipper who uses, or may reasonably be expected to need to use, outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, on the trade route specified in relation to the ocean carrier in the register of non‑conference ocean carriers with substantial market power;\n\n (d) an association representing shippers who use, or may reasonably be expected to need to use, such services.","sortOrder":1424},{"sectionNumber":"10.59","sectionType":"section","heading":"Undertakings by ocean carrier","content":"10.59  Undertakings by ocean carrier\n\n (1) A registered non‑conference ocean carrier with substantial market power may, at any time, offer to give an undertaking to do, or not to do, a specified act or thing.\n\n (2) The offer must be:\n\n (a) in the appropriate prescribed form; and\n\n (b) made to the Minister in accordance with the regulations.\n\n (3) If the Minister accepts the offer, the Minister may do one or more of the following:\n\n (a) revoke any reference made to the Commission under section 10.57 in relation to the ocean carrier;\n\n (b) direct the Commission, in writing, to cease holding any investigation being held by it under section 10.58 in relation to the ocean carrier;\n\n (c) revoke any order made under subsection 10.54(1) in relation to the ocean carrier.\n\n (4) If the Minister accepts the offer, the ocean carrier shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of non‑conference ocean carriers with substantial market power.\n\n (5) If the Minister revokes an order made under subsection 10.54(1), the Registrar shall immediately include in the register a notation to the effect that the order has been revoked.","sortOrder":1425},{"sectionNumber":"10.60","sectionType":"section","heading":"Enforcement of orders and undertakings","content":"10.60  Enforcement of orders and undertakings\n\n (1) An ocean carrier shall not contravene an order made under subsection 10.54(1) or an undertaking given under section 10.59.\n\n (2) Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV (but not of Division 1A of Part IV).","sortOrder":1426},{"sectionNumber":"10.61","sectionType":"section","heading":"Powers exercisable by Minister in relation to pricing practices etc.","content":"10.61  Powers exercisable by Minister in relation to pricing practices etc.\n\n (1) Subject to section 10.62, the Minister may, by writing served on an ocean carrier, order the ocean carrier not to engage in a pricing practice.\n\n (2) Where the Minister makes an order under subsection (1), the Registrar shall immediately enter particulars of the order in the register of obligations concerning unfair pricing practices.","sortOrder":1428},{"sectionNumber":"10.62","sectionType":"section","heading":"Circumstances in which Minister may exercise powers","content":"10.62  Circumstances in which Minister may exercise powers\n\n  The Minister shall not make an order under subsection 10.61(1) unless:\n\n (a) the Minister is satisfied:\n\n (i) that the ocean carrier concerned has engaged in the pricing practice concerned in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on a particular trade route;\n\n (ii) that the practice has resulted in the freight rates charged by the ocean carrier for all or some outwards liner cargo shipping services or inwards liner cargo shipping services provided on the trade route being less than normal freight rates for services of that kind (as determined in accordance with section 10.66);\n\n (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:\n\n (A) efficient and economical; and\n\n (B) provided at the capacity and frequency reasonably required to meet the needs of shippers who use, and shippers who may reasonably be expected to need to use, the services; and\n\n (iv) that the practice is contrary to the national interest (as determined in accordance with section 10.67);\n\n (b) the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the ocean carrier directed at obtaining an undertaking or action by the ocean carrier that would have made an order under subsection 10.61(1) unnecessary; and\n\n (c) the Commission has reported to the Minister under section 10.63 in relation to the ocean carrier in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on the trade route and the Minister has taken the report into account.","sortOrder":1429},{"sectionNumber":"10.63","sectionType":"section","heading":"Investigation and report by Commission","content":"10.63  Investigation and report by Commission\n\n (1) The Minister may, on the complaint of an affected person or otherwise, refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied, in relation to an ocean carrier in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on a trade route, of the matters referred to in paragraph 10.62(a).\n\n (2) The Commission shall hold an investigation into the question and report to the Minister.\n\n (3) In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.","sortOrder":1430},{"sectionNumber":"10.64","sectionType":"section","heading":"Undertakings not to engage in pricing practices","content":"10.64  Undertakings not to engage in pricing practices\n\n (1) An ocean carrier may, at any time, offer to give an undertaking:\n\n (a) not to engage in a pricing practice; and\n\n (b) to give the Registrar such information as the Registrar from time to time requires (verified as the Registrar requires) for the purpose of ascertaining whether the ocean carrier is engaging in, or has engaged in, the pricing practice.\n\n (2) The offer must be:\n\n (a) in the appropriate prescribed form; and\n\n (b) made to the Minister in accordance with the regulations.\n\n (3) If the Minister accepts the offer, the Minister may do either or both of the following:\n\n (a) revoke any reference made to the Commission under subsection 10.63(1) in relation to the ocean carrier;\n\n (b) revoke any order made under subsection 10.61(1) in relation to the ocean carrier.\n\n (4) If the Minister accepts the offer, the ocean carrier shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of obligations concerning unfair pricing practices.\n\n (5) If the Minister revokes an order made under subsection 10.61(1), the Registrar shall immediately include in the register a notation to the effect that the order has been revoked.","sortOrder":1431},{"sectionNumber":"10.65","sectionType":"section","heading":"Enforcement of orders and undertakings","content":"10.65  Enforcement of orders and undertakings\n\n (1) An ocean carrier shall not contravene an order made under subsection 10.61(1) or an undertaking given under section 10.64.\n\n (2) Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV (but not of Division 1A of Part IV).","sortOrder":1432},{"sectionNumber":"10.66","sectionType":"section","heading":"Determination of normal freight rates for shipping services","content":"10.66  Determination of normal freight rates for shipping services\n\n (1) The normal freight rates for outwards liner cargo shipping services or inwards liner cargo shipping services provided on a trade route are, subject to subsection (2), the freight rates actually charged in the ordinary course of shipping business for the same or similar services on the same or a comparable trade route by ocean carriers who do not enjoy non‑commercial advantages given by a government (including a government of a foreign country).\n\n (2) If such actual freight rates do not exist or it is not possible to ascertain satisfactorily what they are, the normal freight rates for the services may be determined by:\n\n (a) comparing the costs of the ocean carrier concerned and comparable ocean carriers who do not enjoy non‑commercial advantages given by a government (including a government of a foreign country); and\n\n (b) allowing reasonable margins of profit.\n\n (3) The comparison shall:\n\n (a) take into account all costs incurred in the ordinary course of shipping business, whether the costs are fixed or variable; and\n\n (b) allow for reasonable overhead expenses.","sortOrder":1433},{"sectionNumber":"10.67","sectionType":"section","heading":"Determination of whether practice contrary to national interest","content":"10.67  Determination of whether practice contrary to national interest\n\n (1) In determining whether a pricing practice in relation to outwards liner cargo shipping services is contrary to the national interest, regard shall be had, in particular, to:\n\n (a) the effect that the practice has had, or is likely to have, in relation to:\n\n (i) continued access by Australian exporters to outwards liner cargo shipping services of adequate frequency and reliability at freight rates that are internationally competitive; and\n\n (ii) stable access to export markets for exporters in all States and Territories;\n\n (b) the extent to which any advantages provided by the practice or similar practices are enjoyed by competitors of Australian exporters; and\n\n (c) the effect that denial of any advantages provided by the practice would have on the competitiveness of Australian industries.\n\n (2) Subsection (3) applies when determining whether a pricing practice in relation to inwards liner cargo shipping services is contrary to the national interest.\n\n (3) Regard must be had, in particular, to the effect that the practice has had, or is likely to have, in relation to continuous stable access by Australian importers in all States and Territories to inwards liner cargo shipping services that:\n\n (a) are of adequate frequency and reliability; and\n\n (b) are at freight rates that are internationally competitive.","sortOrder":1434},{"sectionNumber":"Division 12","sectionType":"division","heading":"Registration of ocean carrier agents","content":"Division 12—Registration of ocean carrier agents","sortOrder":1435},{"sectionNumber":"10.68","sectionType":"section","heading":"Ocean carrier who provides international liner cargo shipping services to have registered agent","content":"10.68  Ocean carrier who provides international liner cargo shipping services to have registered agent\n\n (1) Every ocean carrier who provides international liner cargo shipping services shall, at all times, be represented for the purposes of this Act by a person who:\n\n (a) is an individual resident in Australia;\n\n (b) has been appointed by the ocean carrier as the ocean carrier’s agent for the purposes of this Act; and\n\n (c) is specified in the register of ocean carrier agents as the ocean carrier’s agent.\n\n (2) An ocean carrier who, without reasonable excuse, contravenes subsection (1) commits an offence punishable, on conviction, by a fine not exceeding:\n\n (a) in the case of a natural person—20 penalty units; and\n\n (b) in the case of a body corporate—100 penalty units.","sortOrder":1436},{"sectionNumber":"10.69","sectionType":"section","heading":"Representation of ocean carrier by registered agent","content":"10.69  Representation of ocean carrier by registered agent\n\n (1) Everything done by or in relation to an ocean carrier’s registered agent in that capacity shall, for the purposes of this Act, be taken to be done by or in relation to the ocean carrier.\n\n (2) Without limiting subsection (1), a document required or permitted to be served on, or given to, an ocean carrier under or for the purposes of this Act (including the process of any court) may be served on, or given to, the ocean carrier by serving it on, or giving it to, the ocean carrier’s registered agent.\n\n (3) A document that is, under subsection (2), permitted to be served on, or given to, an ocean carrier’s registered agent may be served on, or given to, the agent by:\n\n (a) delivering it to the agent personally; or\n\n (b) leaving it at, or sending it by pre‑paid post to, the address for service specified in relation to the agent in the register of ocean carrier agents.\n\n (4) Subsection (3) does not affect:\n\n (a) the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or\n\n (b) the power of a court to authorise service of a document otherwise than as provided in that subsection.","sortOrder":1437},{"sectionNumber":"10.70","sectionType":"section","heading":"Application by ocean carrier for registration of agent","content":"10.70  Application by ocean carrier for registration of agent\n\n (1) An ocean carrier may apply for the registration of a person as the ocean carrier’s agent for the purposes of this Act.\n\n (2) The person must:\n\n (a) be an individual resident in Australia;\n\n (b) have been appointed by the ocean carrier as the ocean carrier’s agent for the purposes of this Act; and\n\n (c) have an address for service in Australia.\n\n (3) The application must be:\n\n (a) made to the Registrar;\n\n (b) made in the prescribed form and in accordance with the regulations; and\n\n (c) accompanied by the prescribed fee.","sortOrder":1438},{"sectionNumber":"10.71","sectionType":"section","heading":"Registration of agent","content":"10.71  Registration of agent\n\n (1) Where an ocean carrier properly applies under section 10.70 for the registration of an agent, the Registrar shall register the agent by entering particulars of the ocean carrier and the agent in the register of ocean carrier agents.\n\n (2) The particulars entered in the register must include:\n\n (a) the name of the ocean carrier; and\n\n (b) the name, and address for service, of the agent.","sortOrder":1439},{"sectionNumber":"10.72","sectionType":"section","heading":"Change of agent etc.","content":"10.72  Change of agent etc.\n\n (1) An ocean carrier may, by notice given to the Registrar:\n\n (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;\n\n (b) change the address for service of the ocean carrier’s registered agent to another address in Australia; or\n\n (c) request the Registrar to vary any of the particulars entered in the register of ocean carrier agents in relation to the ocean carrier.\n\n (2) A new agent appointed under paragraph (1)(a) must:\n\n (a) be an individual resident in Australia; and\n\n (b) have an address for service in Australia.\n\n (3) A notice under paragraph (1)(a), (b) or (c):\n\n (a) must be in the appropriate prescribed form;\n\n (b) must be given to the Registrar in accordance with the regulations; and\n\n (c) may be expressed to take effect on and from a specified future day.\n\n (4) Where an ocean carrier properly gives a notice under paragraph (1)(a) or (b), the Registrar shall immediately make such variations to the particulars entered in the register of ocean carrier agents in relation to the ocean carrier as are necessary to give effect to the notice.\n\n (5) Where an ocean carrier properly gives a notice under paragraph (1)(c), the Registrar shall make such variations (if any) to the particulars entered in the register of ocean carrier agents in relation to the ocean carrier as the Registrar considers necessary or desirable to give effect to the notice.","sortOrder":1440},{"sectionNumber":"Division 12A","sectionType":"division","heading":"Exemption orders for inwards conference agreements etc.","content":"Division 12A—Exemption orders for inwards conference agreements etc.","sortOrder":1441},{"sectionNumber":"10.72A","sectionType":"section","heading":"Exemption orders for inwards conference agreements etc.","content":"10.72A  Exemption orders for inwards conference agreements etc.\n\n (1) The Minister may, by legislative instrument, make an order exempting:\n\n (a) a specified inwards conference agreement; or\n\n (b) specified inwards liner cargo shipping services; or\n\n (c) specified conduct in relation to the provision, or proposed provision, of inwards liner cargo shipping services;\n\nfrom the scope of any or all of the eligible regulatory provisions.\n\nNote: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\n (2) The Registrar must enter particulars of any order under subsection (1) in the register of exemption orders.\n\n (4) For the purposes of this section, each of the following provisions is an eligible regulatory provision:\n\n (a) subsection 10.07(2);\n\n (b) section 10.08;\n\n (c) paragraph 10.28(1)(ba);\n\n (d) subsection 10.29(1A);\n\n (e) section 10.40;\n\n (f) section 10.41;\n\n (g) section 10.43;\n\n (h) subparagraph 10.45(1)(a)(iv);\n\n (i) subsection 10.45(3);\n\n (j) subsection 10.45(4);\n\n (k) section 10.52;\n\n (l) subparagraph 10.62(a)(i).","sortOrder":1442},{"sectionNumber":"10.72B","sectionType":"section","heading":"Criteria for making exemption order","content":"10.72B  Criteria for making exemption order\n\n (1) The Minister must not make an exemption order unless the Minister is of the opinion that it is in the national interest to make the order.\n\n (2) For the purposes of subsection (1), in determining what is in the national interest, the Minister must have regard to each of the following:\n\n (a) Australia’s international relations;\n\n (b) Australia’s international obligations;\n\n (c) any relevant principle of international law or practice;\n\n (d) the interests of Australian exporters;\n\n (e) the interests of Australian importers;\n\n (f) any other relevant matters.","sortOrder":1443},{"sectionNumber":"10.72C","sectionType":"section","heading":"Duration of exemption order may be limited","content":"10.72C  Duration of exemption order may be limited\n\n (1) An exemption order may be expressed to be in force for a period specified in the order.\n\n (2) Subsection (1) does not prevent the revocation of an exemption order in accordance with subsection 33(3) of the Acts Interpretation Act 1901.","sortOrder":1444},{"sectionNumber":"10.72D","sectionType":"section","heading":"Conditions of exemption order","content":"10.72D  Conditions of exemption order\n\n  An exemption order may be expressed to be subject to such conditions as are specified in the order.","sortOrder":1445},{"sectionNumber":"Division 13","sectionType":"division","heading":"General provisions relating to registers and conference agreement files","content":"Division 13—General provisions relating to registers and conference agreement files","sortOrder":1446},{"sectionNumber":"10.73","sectionType":"section","heading":"Form of registers and conference agreement files","content":"10.73  Form of registers and conference agreement files\n\n (1) The registers and conference agreement files kept by the Registrar may be kept in such form (whether or not documentary form) as the Registrar considers appropriate.\n\n (2) The register of Commission investigations may be kept in such form (whether or not documentary form) as the Commission considers appropriate.","sortOrder":1447},{"sectionNumber":"10.74","sectionType":"section","heading":"Deletion of entries wrongly existing in certain registers","content":"10.74  Deletion of entries wrongly existing in certain registers\n\n  Where the Registrar is satisfied that an entry wrongly exists in a register kept by the Registrar, the Registrar shall delete the entry.","sortOrder":1448},{"sectionNumber":"10.75","sectionType":"section","heading":"Deletion of obsolete entries in certain registers","content":"10.75  Deletion of obsolete entries in certain registers\n\n  Where the Registrar is satisfied that an entry in a register kept by the Registrar is obsolete, the Registrar may delete the entry.","sortOrder":1449},{"sectionNumber":"10.76","sectionType":"section","heading":"Correction of clerical errors and other mistakes in certain registers etc.","content":"10.76  Correction of clerical errors and other mistakes in certain registers etc.\n\n  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.","sortOrder":1450},{"sectionNumber":"Division 14","sectionType":"division","heading":"Administration","content":"Division 14—Administration","sortOrder":1451},{"sectionNumber":"10.77","sectionType":"section","heading":"Registrar of Liner Shipping","content":"10.77  Registrar of Liner Shipping\n\n  There shall be a Registrar of Liner Shipping.","sortOrder":1452},{"sectionNumber":"10.78","sectionType":"section","heading":"Appointment of Registrar etc.","content":"10.78  Appointment of Registrar etc.\n\n  The Registrar shall be appointed by the Minister, and holds office during the pleasure of the Minister.","sortOrder":1453},{"sectionNumber":"10.79","sectionType":"section","heading":"Acting Registrar","content":"10.79  Acting Registrar\n\n  The Minister may appoint a person to act as Registrar:\n\n (a) during a vacancy in the office of Registrar (whether or not an appointment has previously been made to the office); or\n\n (b) during any period, or during all periods, when the Registrar is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.","sortOrder":1454},{"sectionNumber":"10.80","sectionType":"section","heading":"Registrar and staff to be public servants","content":"10.80  Registrar and staff to be public servants\n\n  The Registrar, and any staff of the Registrar, shall be persons engaged under the Public Service Act 1999.","sortOrder":1455},{"sectionNumber":"10.81","sectionType":"section","heading":"Delegation by Minister","content":"10.81  Delegation by Minister\n\n  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).","sortOrder":1456},{"sectionNumber":"10.82","sectionType":"section","heading":"Delegation by Registrar","content":"10.82  Delegation by Registrar\n\n  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.","sortOrder":1457},{"sectionNumber":"Division 14A","sectionType":"division","heading":"Review of decisions of Commission","content":"Division 14A—Review of decisions of Commission","sortOrder":1458},{"sectionNumber":"10.82A","sectionType":"section","heading":"Review by Tribunal","content":"10.82A  Review by Tribunal\n\n (1) For the purposes of this section, each of the following decisions of the Commission is a reviewable decision:\n\n (a) a decision to refuse to hold an investigation under subsection 10.48(2) or 10.58(2);\n\n (b) a decision under section 10.88 to:\n\n (i) exclude a document, or the particulars of a submission, from the register of Commission investigations; or\n\n (ii) refuse to exclude a document, or the particulars of a submission, from the register of Commission investigations.\n\n (2) If the Commission makes a reviewable decision:\n\n (a) a person whose interests are affected by the decision; or\n\n (b) a designated shipper body;\n\nmay apply in writing to the Tribunal for a review of the decision.\n\n (3) An application under this section for a review of a decision must be made within 21 days after the Commission made the decision.\n\n (4) If the Tribunal receives an application under this section for a review of a decision, the Tribunal must review the decision.","sortOrder":1459},{"sectionNumber":"10.82B","sectionType":"section","heading":"Functions and powers of Tribunal","content":"10.82B  Functions and powers of Tribunal\n\n (1) On a review of a decision of the Commission of a kind mentioned in section 10.82A, the Tribunal may make a decision affirming, setting aside or varying the decision of the Commission and, for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.\n\n (2) A decision by the Tribunal affirming, setting aside or varying a decision of the Commission is taken for the purposes of this Act (other than this Division) to be a decision of the Commission.\n\n (3) For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.\n\n (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.\n\nNote: Division 2 of Part IX applies to proceedings before the Tribunal.","sortOrder":1460},{"sectionNumber":"10.82C","sectionType":"section","heading":"Provisions that do not apply in relation to a Tribunal review","content":"10.82C  Provisions that do not apply in relation to a Tribunal review\n\n  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.","sortOrder":1461},{"sectionNumber":"Division 14B","sectionType":"division","heading":"Review of decisions of Minister","content":"Division 14B—Review of decisions of Minister","sortOrder":1462},{"sectionNumber":"10.82D","sectionType":"section","heading":"Review by Tribunal","content":"10.82D  Review by Tribunal\n\n (1) For the purposes of this section, each of the following decisions of the Minister is a reviewable decision:\n\n (a) a decision to:\n\n (i) give; or\n\n (ii) refuse to give;\n\n  a direction under subsection 10.44(1), subsection 10.46(3), paragraph 10.49(3)(b), subsection 10.51(1), subsection 10.56(3) or paragraph 10.59(3)(b);\n\n (b) a decision under section 10.49, 10.59 or 10.64 to:\n\n (i) accept an offer; or\n\n (ii) refuse to accept an offer;\n\n (c) a decision under paragraph 10.49(3)(a), 10.59(3)(a) or 10.64(3)(a) to:\n\n (i) revoke a reference; or\n\n (ii) refuse to revoke a reference;\n\n (d) a decision under paragraph 10.49(3)(c) to:\n\n (i) revoke a direction; or\n\n (ii) refuse to revoke a direction;\n\n (e) a decision to:\n\n (i) make; or\n\n (ii) refuse to make;\n\n  an order under subsection 10.54(1) or 10.61(1);\n\n (f) a decision under paragraph 10.59(3)(c) or 10.64(3)(b) to:\n\n (i) revoke an order; or\n\n (ii) refuse to revoke an order.\n\n (2) If the Minister makes a reviewable decision:\n\n (a) a person whose interests are affected by the decision; or\n\n (b) a designated shipper body;\n\nmay apply in writing to the Tribunal for a review of the decision.\n\n (3) An application under this section for a review of a decision must be made within 21 days after the Minister made the decision.\n\n (4) If the Tribunal receives an application under this section for a review of a decision, the Tribunal must review the decision.","sortOrder":1463},{"sectionNumber":"10.82E","sectionType":"section","heading":"Functions and powers of Tribunal","content":"10.82E  Functions and powers of Tribunal\n\n (1) On a review of a decision of the Minister of a kind mentioned in section 10.82D, the Tribunal may make a decision affirming, setting aside or varying the decision of the Minister and, for the purposes of the review, may perform all the functions and exercise all the powers of the Minister.\n\n (2) A decision by the Tribunal affirming, setting aside or varying a decision of the Minister is taken for the purposes of this Act (other than this Division) to be a decision of the Minister.\n\n (3) For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may request the Minister to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies. The Minister must comply with such a request.\n\n (4) For the purposes of a review, the Tribunal may have regard to any information given, documents produced or evidence given to the Minister in connection with the making of the decision to which the review relates.\n\nNote: Division 2 of Part IX applies to proceedings before the Tribunal.","sortOrder":1464},{"sectionNumber":"10.82F","sectionType":"section","heading":"Modifying register after Tribunal review","content":"10.82F  Modifying register after Tribunal review\n\n (1) If:\n\n (a) the Tribunal decides to set aside or vary a decision of the Minister; and\n\n (b) a register kept by the Registrar is not consistent with the decision of the Tribunal;\n\nthe 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.\n\n (2) The Registrar must comply with a direction under subsection (1).\n\n (3) If, in accordance with subsection (2), the Registrar:\n\n (a) deletes particulars of a direction under subsection 10.44(1) from the register of conference agreements; or\n\n (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;\n\nSubdivision 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.","sortOrder":1465},{"sectionNumber":"10.82G","sectionType":"section","heading":"Provisions that do not apply in relation to a Tribunal review","content":"10.82G  Provisions that do not apply in relation to a Tribunal review\n\n  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.","sortOrder":1466},{"sectionNumber":"Division 15","sectionType":"division","heading":"Miscellaneous","content":"Division 15—Miscellaneous","sortOrder":1467},{"sectionNumber":"10.83","sectionType":"section","heading":"Act not to affect rights under Freedom of Information Act","content":"10.83  Act not to affect rights under Freedom of Information Act\n\n  Nothing in this Part affects a right that a person may have under the Freedom of Information Act 1982.","sortOrder":1468},{"sectionNumber":"10.84","sectionType":"section","heading":"Review of decisions of Registrar","content":"10.84  Review of decisions of Registrar\n\n (1) Application may be made to the Administrative Review Tribunal for review of a reviewable decision.\n\n (2) In subsection (1):\n\ndecision has the same meaning as in the Administrative Review Tribunal Act 2024.\n\nreviewable decision means a decision of the Registrar under this Part, other than:\n\n (a) a decision to provisionally or finally register a conference agreement; or\n\n (b) a decision as to the form of a register.","sortOrder":1469},{"sectionNumber":"10.85","sectionType":"section","heading":"Statement to accompany notices of Registrar","content":"10.85  Statement to accompany notices of Registrar\n\n (1) Where the Registrar makes a reviewable decision (within the meaning of section 10.84) and gives to a person whose interests are affected by the decision written notice of the making of the decision, the notice must include:\n\n (a) a statement to the effect that application may be made to the Administrative Review Tribunal under the Administrative Review Tribunal Act 2024 for review of a decision of the Registrar under this Part; and\n\n (b) a statement to the effect that a person who is entitled to apply to the Administrative Review Tribunal for review of a decision may, under section 268 of that Act, request a statement of reasons (within the meaning of that Act).\n\n (2) Paragraph (1)(b) does not apply if the person has been given a statement of reasons under the Administrative Review Tribunal Act 2024 (see subsection 269(7) of that Act).\n\n (3) A contravention of subsection (1) in relation to a decision does not affect the validity of the decision.","sortOrder":1470},{"sectionNumber":"10.86","sectionType":"section","heading":"Evidence","content":"10.86  Evidence\n\n (1) A certificate signed by the Registrar stating any matter in relation to the registration under this Part of an ocean carrier, ocean carrier’s agent, conference agreement, direction, undertaking, determination or order, or any other matter in relation to a register, or conference agreement file, kept by the Registrar under this Part, is prima facie evidence of the matter.\n\n (2) Without limiting subsection (1), the matters that may be certified under that subsection include:\n\n (a) whether an ocean carrier, ocean carrier’s agent, conference agreement, undertaking, determination or order is or is not registered under this Part;\n\n (b) the name and address for service of an ocean carrier’s agent; and\n\n (c) the provisions and other particulars of a conference agreement, direction, undertaking, determination or order.\n\n (3) A document purporting to be a certificate under subsection (1) shall, unless the contrary is established, be taken to be such a certificate and to have been properly given.","sortOrder":1471},{"sectionNumber":"10.87","sectionType":"section","heading":"Notification by Commission of references etc.","content":"10.87  Notification by Commission of references etc.\n\n  The Commission may make public, in such manner as it considers appropriate:\n\n (a) receipt of references under subsections 10.47(1), 10.50(1), 10.57(1) and 10.63(1); and\n\n (b) decisions made by it under subsections 10.48(2), 10.48(2A) and 10.58(2) to hold investigations.","sortOrder":1472},{"sectionNumber":"10.88","sectionType":"section","heading":"Exclusion of documents etc. from register of Commission investigations","content":"10.88  Exclusion of documents etc. from register of Commission investigations\n\n (1) Where:\n\n (a) a person gives a document to the Commission in relation to an investigation; or\n\n (b) a person makes an oral submission to the Commission in relation to an investigation;\n\nthe 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.\n\n (2) If the Commission is satisfied that the request is justified because disclosure of matters contained in the document or submission would disclose:\n\n (a) trade secrets;\n\n (b) information (other than trade secrets) having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or\n\n (c) any other information concerning a person in relation to the person’s business or professional affairs, or concerning the business, commercial or financial affairs of an organisation or undertaking, the disclosure of which would, or could reasonably be expected to, unreasonably affect the person adversely in relation to the person’s lawful business or professional affairs or the organisation or undertaking in relation to its lawful business, commercial or financial affairs;\n\nthe Commission shall exclude the document, or the particulars of the submission, from the register.\n\n (3) If:\n\n (a) the Commission refuses a request to exclude a document from the register; and\n\n (b) the person who gave the document requests the Commission to return it;\n\nthe Commission shall return the document and, in that case, paragraph 10.13(2)(d) does not apply in relation to the document.\n\n (4) If:\n\n (a) the Commission refuses a request to exclude the particulars of an oral submission from the register; and\n\n (b) the person who made the submission withdraws it;\n\nparagraph 10.13(2)(e) does not apply in relation to the submission.\n\n (5) If the Commission is satisfied that it is otherwise desirable to do so, the Commission may exclude a document, or the particulars of a submission, from the register.\n\n (6) If a person makes a request under subsection (1), the document or the particulars of the submission concerned must not be included in the register until the Commission has dealt with the request.\n\n (7) In this section:\n\ndocument includes a part of a document.\n\ninvestigation means an investigation under section 10.47, 10.48, 10.50, 10.57, 10.58 or 10.63.\n\nregister means the register of Commission investigations.\n\nsubmission includes a part of a submission.","sortOrder":1473},{"sectionNumber":"10.89","sectionType":"section","heading":"Disclosure of confidential information","content":"10.89  Disclosure of confidential information\n\n (1) In this section:\n\ncourt includes any tribunal, authority or person having power to require the production of documents or the answering of questions.\n\ngive includes permit access to.\n\nofficer means a person who is or has been:\n\n (a) the Registrar;\n\n (b) a member of the staff assisting the Registrar; or\n\n (c) a person to whom powers under this Part have been delegated by the Minister or the Registrar.\n\nproduce includes permit access to.\n\n (2) This section applies in relation to information if the information relates to a person and was obtained by an officer, either directly or indirectly, from a part of a document filed with the Registrar, being a part that is not open to public inspection.\n\n (3) This section applies in relation to a part of a document filed with the Registrar, being a part that is not open to public inspection.\n\n (4) An officer shall not:\n\n (a) make a record of any information to which this section applies;\n\n (b) divulge or communicate to a person any information to which this section applies; or\n\n (c) give a person a part of a document to which this section applies;\n\nunless the record is made, the information divulged or communicated or the part of the document given:\n\n (d) for the purposes of this Act; or\n\n (e) in relation to the performance of a duty or the exercise of a power under or in relation to this Act.\n\nPenalty: $5,000 or imprisonment for 2 years, or both.\n\n (5) Subsection (4) applies in relation to the divulging or communicating of information whether directly or indirectly, but does not apply in relation to the divulging or communicating of information to, or the giving of a part of a document to, the Minister.\n\n (6) An officer shall not be required:\n\n (a) to produce in a court a part of a document to which this section applies; or\n\n (b) to divulge or communicate to a court any information to which this section applies;\n\nexcept so far as it is necessary to do so for the purposes of carrying into effect the provisions of this Act.","sortOrder":1474},{"sectionNumber":"10.90","sectionType":"section","heading":"Fees","content":"10.90  Fees\n\n (1) The regulations may prescribe fees for the purposes of this Part, including fees payable on applications and requests made under this Part.\n\n (2) The regulations shall not fix fees exceeding:\n\n (a) in the case of an application for provisional registration of a conference agreement—$1,200; and\n\n (b) in the case of an application for final registration of a conference agreement—$700; and\n\n (c) in the case of an application for the registration of a person as an ocean carrier’s agent—$160; and\n\n (ca) in the case of variation of the register of ocean carrier agents following a notice under subsection 10.72(1)—$160; and\n\n (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.","sortOrder":1475},{"sectionNumber":"10.91","sectionType":"section","heading":"Application of Part XID and section 155 to investigations under Part","content":"10.91  Application of Part XID and section 155 to investigations under Part\n\n (1) Part XID and section 155 apply in relation to an investigation by the Commission under this Part as if the investigation were an investigation by the Commission relating to a matter that constitutes, or may constitute, a contravention of this Act.\n\n (2) Subsection (1) shall not be taken to limit by implication any powers that the Commission has apart from that subsection.","sortOrder":1476},{"sectionNumber":"Part XI","sectionType":"part","heading":"Application of the Australian Consumer Law as a law of the Commonwealth","content":"Part XI—Application of the Australian Consumer Law as a law of the Commonwealth","sortOrder":1477},{"sectionNumber":"130","sectionType":"section","heading":"Definitions","content":"130  Definitions\n\n  In this Part:\n\nassociate: a person (the first person) is an associate of another person if:\n\n (a) the first person holds money or other property on behalf of the other person; or\n\n (b) if the other person is a body corporate—the first person is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of the other person.\n\nAustralian Consumer Law means Schedule 2 as applied under Subdivision A of Division 2 of this Part.\n\nChairperson has the same meaning as in subsection 4(1).\n\ncorporation has the same meaning as in subsection 4(1).\n\ndisclosure notice: see subsection 133D(3).\n\nembargo notice: see subsection 135S(1).\n\nembargo period for an embargo notice means the period specified in the embargo notice under paragraph 135S(3)(c) or (d).\n\nenforcement order: see paragraph 139D(1)(b).\n\nFederal Court means the Federal Court of Australia.\n\ninfringement notice means an infringement notice issued under subsection 134A(1).\n\ninfringement notice compliance period: see subsection 134F(1).\n\ninfringement notice provision: see subsection 134A(2).\n\ninspector means a person who is appointed as an inspector under subsection 133(1).\n\nlisted corporation has the meaning given by section 9 of the Corporations Act 2001.\n\nmember of the Commission has the same meaning as in subsection 4(1).\n\noccupational liability: see subsection 137(5).\n\npersonal injury includes:\n\n (a) prenatal injury; and\n\n (b) impairment of a person’s physical or mental condition; and\n\n (c) disease;\n\nbut does not include an impairment of a person’s mental condition unless the impairment consists of a recognised psychiatric illness.\n\nperson assisting: see subsection 135D(2).\n\nprofessional standards law: see subsection 137(4).\n\nproposed ban notice: see subsection 132(1).\n\nproposed recall notice: see subsection 132A(1).\n\nreckless conduct: see subsection 139A(5).\n\nrecreational services: see subsection 139A(2).\n\nsearch‑related powers: see subsections 135A(1) and (2).\n\nsearch warrant means a warrant issued or signed under section 135Z or 136.\n\nsmoking has the same meaning as in the Public Health (Tobacco and Other Products) Act 2023.\n\nstate of mind, of a person, includes a reference to:\n\n (a) the knowledge, intention, opinion, belief or purpose of the person; and\n\n (b) the person’s reasons for the person’s intention, opinion, belief or purpose.\n\ntobacco product has the same meaning as in the Public Health (Tobacco and Other Products) Act 2023.","sortOrder":1479},{"sectionNumber":"130A","sectionType":"section","heading":"Expressions defined in Schedule 2","content":"130A  Expressions defined in Schedule 2\n\n  An expression has the same meaning in this Part as in Schedule 2.","sortOrder":1480},{"sectionNumber":"131","sectionType":"section","heading":"Application of the Australian Consumer Law in relation to corporations etc.","content":"131  Application of the Australian Consumer Law in relation to corporations etc.\n\n (1) Schedule 2 applies as a law of the Commonwealth to the conduct of corporations, and in relation to contraventions of Chapter 2, 3 or 4 of Schedule 2 by corporations.\n\nNote: Sections 5 and 6 of this Act extend the application of this Part (and therefore extend the application of the Australian Consumer Law as a law of the Commonwealth).\n\n (2) Without limiting subsection (1):\n\n (a) section 21 of Schedule 2 also applies as a law of the Commonwealth in relation to:\n\n (i) a supply or possible supply of goods or services by any person to a corporation; or\n\n (ii) an acquisition or possible acquisition of goods or services from any person by a corporation; and\n\n (b) section 147 of Schedule 2 also applies as a law of the Commonwealth to, and in relation to, a corporation as a supplier referred to in that section; and\n\n (c) Division 2 of Part 5‑1 of Schedule 2 also applies as a law of the Commonwealth to and in relation to a person if the other person referred to in section 219 of Schedule 2 is a corporation; and\n\n (d) section 33 of Schedule 2 also applies as a law of the Commonwealth to, and in relation to, the conduct of any person.\n\n (3) The table of contents in Schedule 2 is additional information that is not part of this Act. Information in the table may be added to or edited in any published version of this Act.","sortOrder":1483},{"sectionNumber":"131A","sectionType":"section","heading":"Division does not apply to financial services","content":"131A  Division does not apply to financial services\n\n (1) Despite section 131, this Division does not apply, other than in relation to the following provisions of Schedule 2 as they apply as a law of the Commonwealth, to the supply, or possible supply, of services that are financial services, or of financial products:\n\n (a) Division 3A of Part 3‑2;\n\n (b) Division 3A of Part 4‑2;\n\n (c) Part 5‑5.\n\n (2) Without limiting subsection (1):\n\n (a) Part 2‑1 of Schedule 2 and sections 34 and 156 of Schedule 2 do not apply to conduct engaged in in relation to financial services; and\n\n (b) Part 2‑3 of Schedule 2 does not apply to, or in relation to:\n\n (i) contracts that are financial products; or\n\n (ii) contracts for the supply, or possible supply, of services that are financial services; and\n\n (c) if a financial product consists of or includes an interest in land—the following provisions of Schedule 2 do not apply to that interest:\n\n (i) section 30;\n\n (ii) paragraphs 32(1)(c) and (d) and (2)(c) and (d);\n\n (iii) paragraphs 50(1)(c) and (d);\n\n (iv) section 152;\n\n (v) subparagraphs 154(1)(b)(iii) and (iv) and (2)(b)(iii) and (iv);\n\n (vi) subparagraphs 168(1)(b)(iii) and (iv); and\n\n (d) sections 39 and 161 of Schedule 2 do not apply to:\n\n (i) a credit card that is part of, or that provides access to, a credit facility that is a financial product; or\n\n (ii) a debit card that allows access to an account that is a financial product.","sortOrder":1484},{"sectionNumber":"131B","sectionType":"section","heading":"Division does not apply to interim bans imposed by State or Territory Ministers","content":"131B  Division does not apply to interim bans imposed by State or Territory Ministers\n\n  Despite section 131, this Division does not apply to an interim ban that is not imposed by the Commonwealth Minister.","sortOrder":1485},{"sectionNumber":"131C","sectionType":"section","heading":"Saving of other laws and remedies","content":"131C  Saving of other laws and remedies\n\n (1) This Part is not intended to exclude or limit the concurrent operation of any law, whether written or unwritten, of a State or a Territory.\n\n (2) Section 73 of the Australian Consumer Law does not operate in a State or a Territory to the extent necessary to ensure that no inconsistency arises between:\n\n (a) that section; and\n\n (b) a provision of a law of the State or Territory that would, but for this subsection, be inconsistent with that section.\n\n (3) Despite subsection (1):\n\n (a) if an act or omission of a person is both:\n\n (i) an offence against this Part or the Australian Consumer Law; and\n\n (ii) an offence against a law of a State or a Territory; and\n\n (b) the person is convicted of either of those offences;\n\nhe or she is not liable to be convicted of the other of those offences.\n\n (4) Except as expressly provided by this Part or the Australian Consumer Law, nothing in this Part or the Australian Consumer Law is taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Part and the Australian Consumer Law had not been enacted.","sortOrder":1486},{"sectionNumber":"131D","sectionType":"section","heading":"Effect of Part VIB on Chapter 5 of the Australian Consumer Law","content":"131D  Effect of Part VIB on Chapter 5 of the Australian Consumer Law\n\n  Chapter 5 of the Australian Consumer Law has effect subject to Part VIB.","sortOrder":1488},{"sectionNumber":"131E","sectionType":"section","heading":"Application of the Legislation Act 2003","content":"131E  Application of the Legislation Act 2003\n\n (1) The following instruments made under the Australian Consumer Law by the Commonwealth Minister are to be made by legislative instrument:\n\n (a) a determination under subsection 66(1) (display notices);\n\n (b) a notice under subsection 104(1) (safety standards);\n\n (c) a notice under subsection 109(1) or (2) (interim bans);\n\n (d) a notice under section 111 (extensions of interim bans);\n\n (e) a notice under section 113 (revocation of interim bans);\n\n (f) a notice under subsection 114(1) or (2) (permanent bans);\n\n (g) a notice under section 117 (revocation of permanent bans);\n\n (h) a notice under subsection 122(1) (recall notices);\n\n (i) a notice under subsection 134(1) (information standards).\n\n (2) The following instruments made under the Australian Consumer Law are not legislative instruments:\n\n (a) an approval given under paragraph 106(5)(b) (approval to export);\n\n (b) an approval given under paragraph 118(5)(b) (approval to export);\n\n (c) a notice under subsection 128(3) (voluntary recalls);\n\n (d) a notice under subsection 129(1) or (2) (safety warning notices);\n\n (e) a notice under subsection 130(1) (announcement of results of an investigation);\n\n (f) a notice under subsection 223(1) or (2) (public warning notices).\n\n (3) To avoid doubt, an instrument made under the Australian Consumer Law by a responsible Minister who is not the Commonwealth Minister, or a regulator that is not the Commission, is not a legislative instrument.\n\n (4) Subsections 104(5) and 134(4) of the Australian Consumer Law have effect despite subsection 14(2) of the Legislation Act 2003.","sortOrder":1489},{"sectionNumber":"131F","sectionType":"section","heading":"Section 4AB of the Crimes Act does not apply","content":"131F  Section 4AB of the Crimes Act does not apply\n\n  Section 4AB of the Crimes Act 1914 does not apply to any provision of this Part or the Australian Consumer Law.","sortOrder":1490},{"sectionNumber":"131G","sectionType":"section","heading":"Application of the Criminal Code","content":"131G  Application of the Criminal Code\n\nCorporate criminal responsibility\n\n (1) Part 2.5 of the Criminal Code does not apply to an offence against this Part or the Australian Consumer Law.\n\nMistake of fact defence\n\n (2) Section 9.2 of the Criminal Code does not apply to an offence against Chapter 4 of the Australian Consumer Law.\n\nNote: Section 207 of the Australian Consumer Law provides a mistake of fact defence for offences under Chapter 4 of the Australian Consumer Law.","sortOrder":1491},{"sectionNumber":"132","sectionType":"section","heading":"Commonwealth Minister must issue a proposed ban notice","content":"132  Commonwealth Minister must issue a proposed ban notice\n\n (1) The Commonwealth Minister must issue a proposed ban notice if the Commonwealth Minister proposes to impose an interim ban, or a permanent ban:\n\n (a) on consumer goods of a particular kind; or\n\n (b) on product related services of a particular kind.\n\n (2) Subsection (1) does not apply in relation to an interim ban if the Commonwealth Minister has issued a notice under section 132J certifying that the ban should be imposed without delay.\n\n (3) The proposed ban notice must:\n\n (a) be in writing; and\n\n (b) be published on the internet; and\n\n (c) set out a copy of a draft notice for the imposition of the interim ban or permanent ban; and\n\n (d) set out a summary of the reasons for the proposed imposition of the ban; and\n\n (e) invite any person who supplies, or proposes to supply:\n\n (i) consumer goods of that kind; or\n\n (ii) product related services of that kind;\n\n  to notify the Commission, in writing and within a period specified in the notice, if the person wishes the Commission to hold a conference in relation to the proposed imposition of the ban.\n\n (4) The period specified in the proposed ban notice under paragraph (3)(e):\n\n (a) must be a period of at least 10 days, or such longer period as the Commonwealth Minister specifies in the notice; and\n\n (b) must not commence before the day on which the notice is published.\n\n (5) A proposed ban notice is not a legislative instrument.","sortOrder":1494},{"sectionNumber":"132A","sectionType":"section","heading":"Commonwealth Minister must issue a proposed recall notice","content":"132A  Commonwealth Minister must issue a proposed recall notice\n\n (1) The Commonwealth Minister must issue a proposed recall notice if the Commonwealth Minister proposes to issue a recall notice for consumer goods of a particular kind.\n\n (2) Subsection (1) does not apply in relation to a recall notice if the Commonwealth Minister has issued a notice under section 132J certifying that the recall notice should be issued without delay.\n\n (3) The proposed recall notice must:\n\n (a) be in writing; and\n\n (b) be published on the internet; and\n\n (c) set out a copy of a draft recall notice; and\n\n (d) set out a summary of the reasons for the proposed issue of the recall notice; and\n\n (e) invite any person who supplies, or proposes to supply, consumer goods of that kind to notify the Commission, in writing and within a period specified in the notice, if the person wishes the Commission to hold a conference in relation to the proposed issue of the recall notice.\n\n (4) The period specified in the proposed recall notice under paragraph (3)(e):\n\n (a) must be a period of at least 10 days, or such longer period as the Commonwealth Minister specifies in the notice; and\n\n (b) must not commence before the day on which the notice is published.\n\n (5) A proposed recall notice is not a legislative instrument.","sortOrder":1495},{"sectionNumber":"132B","sectionType":"section","heading":"Commonwealth Minister to be notified if no person wishes a conference to be held","content":"132B  Commonwealth Minister to be notified if no person wishes a conference to be held\n\n (1) If no person notifies the Commission in accordance with a proposed ban notice, or a proposed recall notice, that the person wishes the Commission to hold a conference, the Commission must, in writing, notify the Commonwealth Minister of that fact.\n\n (2) A notice under subsection (1) is not a legislative instrument.","sortOrder":1496},{"sectionNumber":"132C","sectionType":"section","heading":"Notification of conference","content":"132C  Notification of conference\n\n (1) If one or more persons notify the Commission in accordance with a proposed ban notice, or a proposed recall notice, that they wish the Commission to hold a conference, the Commission must:\n\n (a) appoint a day, time and place for the holding of the conference; and\n\n (b) give written notice to the Commonwealth Minister, and to each person who so notified the Commission, of that day, time and place.\n\n (2) The day appointed must be at least 5 days, but not more than 14 days, after the end of the period:\n\n (a) for a proposed ban notice—specified under paragraph 132(3)(e); or\n\n (b) for a proposed recall notice—specified under paragraph 132A(3)(e).\n\n (3) A notice under paragraph (1)(b) is not a legislative instrument.","sortOrder":1497},{"sectionNumber":"132D","sectionType":"section","heading":"Recommendation after conclusion of conference","content":"132D  Recommendation after conclusion of conference\n\n (1) As soon as is practicable after the conclusion of a conference held under this Subdivision in relation to the proposed imposition of an interim ban or permanent ban, the Commission must:\n\n (a) by written notice given to the Commonwealth Minister, recommend that the Commonwealth Minister:\n\n (i) impose the ban in the same terms as the draft notice referred to in paragraph 132(3)(c); or\n\n (ii) impose the ban with such modifications to that notice as are specified by the Commission; or\n\n (iii) not impose the ban; and\n\n (b) cause a copy of the notice given under paragraph (a) to be given to each person who was present or represented at the conference.\n\n (2) As soon as is practicable after the conclusion of a conference held under this Subdivision in relation to the proposed issue of a recall notice, the Commission must:\n\n (a) by written notice given to the Commonwealth Minister, recommend that the Commonwealth Minister:\n\n (i) issue the recall notice in the same terms as the draft recall notice referred to in paragraph 132A(3)(c); or\n\n (ii) issue the recall notice with such modifications to that draft recall notice as are specified by the Commission; or\n\n (iii) not issue the recall notice; and\n\n (b) cause a copy of the notice given under paragraph (a) to be given to each person who was present or represented at the conference.\n\n (3) The Commonwealth Minister must:\n\n (a) have regard to a recommendation made under paragraph (1)(a) or (2)(a); and\n\n (b) if he or she decides to act otherwise than in accordance with the recommendation—the Commonwealth Minister must, by written notice published on the internet, set out the reasons for his or her decision.","sortOrder":1498},{"sectionNumber":"132E","sectionType":"section","heading":"Opportunity for a conference after an interim ban has been imposed by the Commonwealth Minister","content":"132E  Opportunity for a conference after an interim ban has been imposed by the Commonwealth Minister\n\n (1) This section applies if:\n\n (a) an interim ban on consumer goods of a particular kind, or on product related services of a particular kind, is in force; and\n\n (b) the interim ban was imposed by the Commonwealth Minister; and\n\n (c) before the ban was imposed, the Commonwealth Minister published a notice under section 132J certifying that the interim ban should be imposed without delay.\n\n (2) The Commonwealth Minister must, by written notice published on the internet, invite any person who supplied, or proposes to supply:\n\n (a) consumer goods of that kind; or\n\n (b) product related services of that kind;\n\nto notify the Commission, in writing and within a period specified in the notice, if the person wishes the Commission to hold a conference in relation to the interim ban.\n\n (3) The period specified in the notice under subsection (2):\n\n (a) must be a period of at least 10 days, or such longer period as the Commonwealth Minister specifies in the notice; and\n\n (b) must not commence before the day on which the notice is published.\n\n (4) A notice under subsection (2) is not a legislative instrument.","sortOrder":1500},{"sectionNumber":"132F","sectionType":"section","heading":"Notification of conference","content":"132F  Notification of conference\n\n (1) If one or more persons notify the Commission in accordance with a notice published under subsection 132E(2) that they wish the Commission to hold a conference, the Commission must:\n\n (a) appoint a day, time and place for the holding of the conference; and\n\n (b) give written notice to the Commonwealth Minister, and to each person who so notified the Commission, of that day, time and place.\n\n (2) The day appointed must be at least 5 days, but not more than 14 days, after the end of the period specified in the notice under subsection 132E(2).\n\n (3) A notice under paragraph (1)(b) is not a legislative instrument.","sortOrder":1501},{"sectionNumber":"132G","sectionType":"section","heading":"Recommendation after conclusion of conference","content":"132G  Recommendation after conclusion of conference\n\n (1) As soon as is practicable after the conclusion of a conference held under this Subdivision in relation to an interim ban, the Commission must:\n\n (a) by written notice given to the Commonwealth Minister, recommend that the interim ban remain in force, be varied or be revoked; and\n\n (b) cause a copy of the notice to be given to each person who was present or represented at the conference.\n\n (2) The Commonwealth Minister must:\n\n (a) have regard to a recommendation made under paragraph (1)(a); and\n\n (b) if he or she decides to act otherwise than in accordance with the recommendation—the Commonwealth Minister must, by written notice published on the internet, set out the reasons for his or her decision.","sortOrder":1502},{"sectionNumber":"132H","sectionType":"section","heading":"Conduct of conferences","content":"132H  Conduct of conferences\n\n (1) At a conference held under Subdivision A or B of this Division:\n\n (a) the Commission must be represented by a member or members of the Commission who are nominated by the Chairperson; and\n\n (b) each person who notified the Commission in accordance with whichever of the following is applicable:\n\n (i) a proposed ban notice;\n\n (ii) a proposed recall notice;\n\n (iii) a notice under subsection 132E(2);\n\n  is entitled to be present or to be represented; and\n\n (c) any other person whose presence at the conference is considered by the Commission to be appropriate is entitled to be present or to be represented; and\n\n (d) the Commonwealth Minister is, or a person or persons nominated in writing by the Commonwealth Minister are, entitled to be present; and\n\n (e) the procedure to be followed must be as determined by the Commission.\n\n (2) The Commission must cause a record of the proceedings at the conference to be kept.\n\n (3) The Commission must, as far as is practicable, ensure that each person who is entitled to be present, or who is representing such a person, at the conference is given a reasonable opportunity at the conference to present his or her case and in particular:\n\n (a) to inspect any documents (other than a document that contains particulars of a secret formula or process) which the Commission proposes to consider for the purpose of making a recommendation after the conclusion of the conference; and\n\n (b) to make submissions in relation to those documents.","sortOrder":1504},{"sectionNumber":"132J","sectionType":"section","heading":"Interim ban and recall notice without delay in case of danger to the public","content":"132J  Interim ban and recall notice without delay in case of danger to the public\n\n (1) If it appears to the Commonwealth Minister that consumer goods of a particular kind create an imminent risk of death, serious illness or serious injury, he or she may, by written notice published on the internet, certify that:\n\n (a) an interim ban on consumer goods of that kind should be imposed without delay; or\n\n (b) a recall notice for consumer goods of that kind should be issued without delay.\n\n (2) If it appears to the Commonwealth Minister that product related services of a particular kind create an imminent risk of death, serious illness or serious injury, he or she may, by written notice published on the internet, certify that an interim ban on services of that kind should be imposed without delay.\n\n (3) If:\n\n (a) the Commonwealth Minister publishes a notice under subsection (1) or (2); and\n\n (b) action of any kind has been taken under Subdivision A of this Division in relation to the interim ban or recall notice, but no recommendation has been made under section 132D;\n\nthe Commonwealth Minister may impose the interim ban, or issue the recall notice, without regard to that action.\n\n (4) A notice under subsection (1) or (2) is not a legislative instrument.","sortOrder":1506},{"sectionNumber":"132K","sectionType":"section","heading":"Copy of notices under this Division to be given to suppliers","content":"132K  Copy of notices under this Division to be given to suppliers\n\n (1) If the Commonwealth Minister:\n\n (a) issues a proposed ban notice; or\n\n (b) issues a proposed recall notice; or\n\n (c) publishes a notice under subsection 132E(2); or\n\n (d) publishes a notice under subsection 132J(1) or (2);\n\nhe or she must cause a copy of the notice to be given to each person who, to the knowledge of the Commonwealth Minister, supplies the consumer goods, or the product related services, to which the notice relates.\n\n (2) The copy must be given:\n\n (a) within 2 days after the publication or issue of the notice; or\n\n (b) if it is not practicable to give the copy within that period—as soon as practicable after the end of that period.\n\n (3) A failure to comply with subsection (1) does not invalidate the notice.","sortOrder":1507},{"sectionNumber":"133","sectionType":"section","heading":"Appointment of inspectors","content":"133  Appointment of inspectors\n\n (1) The Chairperson may, in writing, appoint a member of the staff assisting the Commission as an inspector.\n\n (2) The Chairperson must not appoint a person as an inspector unless the Chairperson is satisfied that the person has suitable qualifications and experience to exercise properly the powers of an inspector.\n\n (3) An inspector must, in exercising powers as an inspector, comply with any directions of the Chairperson.\n\n (4) If a direction under subsection (3) is given in writing, the direction is not a legislative instrument.","sortOrder":1510},{"sectionNumber":"133A","sectionType":"section","heading":"Identity cards","content":"133A  Identity cards\n\n (1) The Chairperson must issue an identity card to a person appointed as an inspector.\n\nForm of identity card\n\n (2) The identity card must:\n\n (a) contain the information prescribed by the regulations; and\n\n (b) contain a recent photograph of the person.\n\nOffence\n\n (3) A person commits an offence if:\n\n (a) the person has been issued with an identity card under subsection (1); and\n\n (b) the person ceases to be an inspector; and\n\n (c) the person does not, as soon as practicable after so ceasing, return the identity card to the Chairperson.\n\nPenalty: 1 penalty unit.\n\n (4) An offence against subsection (3) is an offence of strict liability.\n\nNote: For strict liability, see section 6.1 of the Criminal Code.\n\nDefence: card lost or destroyed\n\n (5) Subsection (3) does not apply if the identity card was lost or destroyed.\n\nNote: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.\n\nInspector must carry card\n\n (6) An inspector issued with an identity card under subsection (1) must carry his or her identity card at all times when exercising powers as an inspector.","sortOrder":1511},{"sectionNumber":"133B","sectionType":"section","heading":"Power to enter premises to which the public has access—consumer goods","content":"133B  Power to enter premises to which the public has access—consumer goods\n\n (1) An inspector may enter premises in or from which a person, in trade or commerce, supplies consumer goods, if the public has access to the premises at the time of entry, for the purpose of ascertaining whether:\n\n (a) any of those consumer goods will or may cause injury to any person; or\n\n (b) a reasonably foreseeable use (including a misuse) of those consumer goods will or may cause injury to any person;\n\nand remain on the premises for such a purpose while the public has access to the premises.\n\n (2) While on the premises, the inspector may:\n\n (a) take photographs of:\n\n (i) any of those consumer goods; or\n\n (ii) equipment used in the manufacturing, processing or storage any of those consumer goods; and\n\n (b) inspect, handle and measure any of those consumer goods; and\n\n (c) purchase any of those consumer goods.","sortOrder":1513},{"sectionNumber":"133C","sectionType":"section","heading":"Power to enter premises to which the public has access—product related services","content":"133C  Power to enter premises to which the public has access—product related services\n\n (1) An inspector may enter premises in or from which a person, in trade or commerce, supplies product related services, if the public has access to the premises at the time of entry, for the purposes of ascertaining whether:\n\n (a) as a result of any of those product related services being supplied, any consumer goods will or may cause injury to any person; or\n\n (b) a reasonably foreseeable use (including a misuse) of any consumer goods, to which any of those product related services relate, will or may cause injury to any person as a result of those services being supplied;\n\nand remain on the premises for such a purpose while the public has access to the premises.\n\n (2) While on the premises, the inspector may:\n\n (a) take photographs of:\n\n (i) the premises; or\n\n (ii) equipment used to supply any of those product related services; and\n\n (b) inspect, handle and measure such equipment; and\n\n (c) purchase any of those product related services.","sortOrder":1514},{"sectionNumber":"133D","sectionType":"section","heading":"Power to obtain information etc.","content":"133D  Power to obtain information etc.\n\nConsumer goods\n\n (1) The Commonwealth Minister or an inspector may give a disclosure notice to a person (the notice recipient) if the person giving the notice has reason to believe:\n\n (a) that the notice recipient is capable of giving information, producing documents or giving evidence in relation to the supply, or possible supply, in trade or commerce, of consumer goods of a particular kind as specified in the notice; and\n\n (b) that:\n\n (i) consumer goods of that kind will or may cause injury to any person; or\n\n (ii) a reasonably foreseeable use (including a misuse) of consumer goods of that kind will or may cause injury to any person.\n\nProduct related services\n\n (2) The Commonwealth Minister or an inspector may give a disclosure notice to a person (the notice recipient) if the person giving the notice has reason to believe:\n\n (a) that the notice recipient is capable of giving information, producing documents or giving evidence in relation to the supply, or possible supply, in trade or commerce, of product related services of a particular kind as specified in the notice; and\n\n (b) that:\n\n (i) as a result of services of that kind being supplied, consumer goods of a particular kind will or may cause injury to any person; or\n\n (ii) a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which such services relate, will or may cause injury to any person as a result of such services being supplied.\n\nDisclosure notice\n\n (3) A disclosure notice is a written notice requiring the notice recipient:\n\n (a) to give, in writing signed by the notice recipient, any such information to the person specified in the notice:\n\n (i) in the manner specified in the notice; and\n\n (ii) within such reasonable time as is specified in the notice; or\n\n (b) to produce, in accordance with such reasonable requirements as are specified in the notice, any such documents to the person specified in the notice; or\n\n (c) to appear before the person specified in the notice at such reasonable time, and at such place, as is specified in the notice:\n\n (i) to give any such evidence, on oath or affirmation; and\n\n (ii) to produce any such documents.\n\n (4) The person specified in the notice may be:\n\n (a) the Commonwealth Minister; or\n\n (b) an inspector (whether or not that inspector gave the notice).","sortOrder":1516},{"sectionNumber":"133E","sectionType":"section","heading":"Self-incrimination","content":"133E  Self‑incrimination\n\n (1) A person is not excused from:\n\n (a) giving information or evidence; or\n\n (b) producing a document;\n\nas required by a disclosure notice given to the person on the ground that the information or evidence, or production of the document, might tend to incriminate the person or expose the person to a penalty.\n\n (2) However, in the case of an individual:\n\n (a) the information or evidence given, or the document produced; and\n\n (b) giving the information or evidence, or producing the document;\n\nare not admissible in evidence against the individual:\n\n (c) in any proceedings instituted by the individual; or\n\n (d) in any criminal proceedings, other than proceedings against the individual for an offence against section 133F or 133G.","sortOrder":1517},{"sectionNumber":"133F","sectionType":"section","heading":"Compliance with disclosure notices","content":"133F  Compliance with disclosure notices\n\n (1) A person commits an offence if:\n\n (a) the person is given a disclosure notice; and\n\n (b) the person refuses or fails to comply with the notice.\n\nPenalty:\n\n (a) if the person is a body corporate—200 penalty units; or\n\n (b) if the person is not a body corporate—40 penalty units.\n\n (2) Subsection (1) does not apply if the person complies with the disclosure notice to the extent to which the person is capable of complying with the notice.\n\nNote: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.\n\n (3) Subsection (1) is an offence of strict liability.\n\nNote: For strict liability, see section 6.1 of the Criminal Code.","sortOrder":1518},{"sectionNumber":"133G","sectionType":"section","heading":"False or misleading information etc.","content":"133G  False or misleading information etc.\n\n  A person commits an offence if:\n\n (a) the person gives information, evidence or a document in purported compliance with a disclosure notice; and\n\n (b) the person does so knowing that the information, evidence or document is false or misleading in a material particular.\n\nPenalty:\n\n (a) if the person is a body corporate—300 penalty units; or\n\n (b) if the person is not a body corporate—60 penalty units or imprisonment for 12 months, or both.","sortOrder":1519},{"sectionNumber":"133H","sectionType":"section","heading":"Court orders relating to consumer goods that do not comply with a safety standard etc.","content":"133H  Court orders relating to consumer goods that do not comply with a safety standard etc.\n\n (1) If a court is satisfied that:\n\n (a) a person possesses or has control of consumer goods of a particular kind; and\n\n (b) any of the following apply:\n\n (i) the consumer goods do not comply with a safety standard that is in force for consumer goods of that kind and the cause of that non‑compliance cannot be remedied;\n\n (ii) a permanent ban on consumer goods of that kind is in force;\n\n (iii) a recall notice for consumer goods of that kind is in force and a defect or dangerous characteristic of such consumer goods identified in the notice cannot be remedied;\n\nthe court may, on the application of an inspector, make an order of a kind referred to in subsection (2).\n\n (2) The court may make an order under subsection (1) authorising one or more inspectors to do the following in accordance with any requirements specified in the order:\n\n (a) to enter the premises of the person that are specified in the order;\n\n (b) to search the premises for consumer goods of a kind specified in the order;\n\n (c) to seize any such consumer goods that are found at those premises;\n\n (d) to destroy or otherwise dispose of any such consumer goods that are so seized.\n\n (3) Before making an application under subsection (1), the inspector must:\n\n (a) take reasonable steps to discover who has an interest in the consumer goods; and\n\n (b) if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.\n\n (4) A person notified under subsection (3) is entitled to be heard in relation to the application.","sortOrder":1521},{"sectionNumber":"133J","sectionType":"section","heading":"Recovery of reasonable costs of seizing, and destroying or disposing of, consumer goods","content":"133J  Recovery of reasonable costs of seizing, and destroying or disposing of, consumer goods\n\n (1) If an inspector seizes, and destroys or otherwise disposes of, consumer goods in accordance with an order made under subsection 133H(1):\n\n (a) the person from whom the consumer goods were seized; or\n\n (b) if that person is not entitled to possess the consumer goods—the owner of the consumer goods;\n\nis liable to pay an amount equal to the costs reasonably incurred by the inspector in seizing, and in destroying or disposing of, the consumer goods.\n\n (2) An amount payable by a person under subsection (1):\n\n (a) is a debt due by the person to the Commonwealth; and\n\n (b) may be recovered by action in a court of competent jurisdiction.","sortOrder":1522},{"sectionNumber":"134","sectionType":"section","heading":"Purpose and effect of this Division","content":"134  Purpose and effect of this Division\n\n (1) The purpose of this Division is to provide for the issue of an infringement notice to a person for an alleged contravention of an infringement notice provision as an alternative to proceedings for an order under section 224 of the Australian Consumer Law.\n\n (2) This Division does not:\n\n (a) require an infringement notice to be issued to a person for an alleged contravention of an infringement notice provision; or\n\n (b) affect the liability of a person to proceedings under Chapter 4 or Part 5‑2 of the Australian Consumer Law in relation to an alleged contravention of an infringement notice provision if:\n\n (i) an infringement notice is not issued to the person for the alleged contravention; or\n\n (ii) an infringement notice issued to a person for the alleged contravention is withdrawn under section 134G; or\n\n (c) prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice.","sortOrder":1524},{"sectionNumber":"134A","sectionType":"section","heading":"Issuing an infringement notice","content":"134A  Issuing an infringement notice\n\n (1) If the Commission has reasonable grounds to believe that a person has contravened an infringement notice provision, the Commission may issue an infringement notice to the person.\n\n (2) Each of the following provisions of the Australian Consumer Law is an infringement notice provision:\n\n (a) a provision of Part 2‑2;\n\n (b) a provision of Part 3‑1 (other than subsection 32(1), 35(1) or 36(1), (2) or (3) or section 40 or 43);\n\n (c) subsection 66(2);\n\n (d) a provision of Division 2 of Part 3‑2 (other than section 85);\n\n (e) a provision of Division 3 of Part 3‑2 (other than subsection 96(2));\n\n (ea) subsection 99B(1), section 99C, subsection 99D(1), section 99E or subsection 99F(2);\n\n (f) subsection 100(1) or (3), 101(3) or (4), 102(2) or 103(2);\n\n (g) subsection 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6), 131(1), 132(1), 136(1), (2) or (3) or 137(1) or (2);\n\n (h) subsection 221(1) or 222(1).\n\n (3) The Commission must not issue more than one infringement notice to the person for the same alleged contravention of the infringement notice provision.\n\n (4) The infringement notice does not have any effect if the notice:\n\n (a) is issued more than 12 months after the day on which the contravention of the infringement notice provision is alleged to have occurred; or\n\n (b) relates to more than one alleged contravention of an infringement notice provision by the person.","sortOrder":1525},{"sectionNumber":"134B","sectionType":"section","heading":"Matters to be included in an infringement notice","content":"134B  Matters to be included in an infringement notice\n\n  An infringement notice must:\n\n (a) be identified by a unique number; and\n\n (b) state the day on which it is issued; and\n\n (c) state the name and address of the person to whom it is issued; and\n\n (d) identify the Commission; and\n\n (e) state how the Commission may be contacted; and\n\n (f) give details of the alleged contravention by the person, including:\n\n (i) the date of the alleged contravention; and\n\n (ii) the particular infringement notice provision that was allegedly contravened; and\n\n (g) state the maximum pecuniary penalty that the court could order the person to pay under section 224 of the Australian Consumer Law for the alleged contravention; and\n\n (h) specify the penalty that is payable in relation to the alleged contravention; and\n\n (i) state that the penalty is payable within the infringement notice compliance period for the notice; and\n\n (j) state that the penalty is payable to the Commission on behalf of the Commonwealth; and\n\n (k) explain how payment of the penalty is to be made; and\n\n (l) explain the effect of sections 134D, 134E, 134F and 134G.","sortOrder":1526},{"sectionNumber":"134C","sectionType":"section","heading":"Amount of penalty","content":"134C  Amount of penalty\n\n  The penalty to be specified in an infringement notice that is to be issued to a person, in relation to an alleged contravention of a provision of the Australian Consumer Law, must be a penalty equal to the amount worked out using the following table:\n\n\n\n- Amount of penalty\n- Item If the infringement notice is for an alleged contravention of one of the following provisions of the Australian Consumer Law ... the amount is ...\n- 1 a provision of Part 2‑2 (a) if the person is a listed corporation—600 penalty units; or(b) if the person is a body corporate other than a listed corporation—60 penalty units; or(c) if the person is not a body corporate—12 penalty units.\n- 2 a provision of Part 3‑1 (other than subsection 32(1), 35(1), 36(1), (2) or (3), section 40 or 43 or subsection 47(1)) (a) if the person is a listed corporation—600 penalty units; or(b) if the person is a body corporate other than a listed corporation—60 penalty units; or(c) if the person is not a body corporate—12 penalty units.\n- 3 subsection 47(1) (a) if the person is a body corporate—10 penalty units; or(b) if the person is not a body corporate—2 penalty units.\n- 4 subsection 66(2) (a) if the person is a body corporate—55 penalty units; or(b) if the person is not a body corporate—11 penalty units.\n- 5 a provision of Division 2 of Part 3‑2 (other than section 85) (a) if the person is a body corporate—60 penalty units; or(b) if the person is not a body corporate—12 penalty units.\n- 6 a provision of Division 3 of Part 3‑2 (other than subsection 96(2)) (a) if the person is a body corporate—55 penalty units; or(b) if the person is not a body corporate—11 penalty units.\n- 6A subsection 99B(1), section 99C, subsection 99D(1), section 99E or subsection 99F(2) (a) if the person is a body corporate—55 penalty units; or(b) if the person is not a body corporate—11 penalty units.\n- 7 subsection 100(1) or (3) or 101(3) or (4) (a) if the person is a body corporate—20 penalty units; or(b) if the person is not a body corporate—4 penalty units.\n- 8 subsection 102(2) or 103(2) (a) if the person is a body corporate—60 penalty units; or(b) if the person is not a body corporate—12 penalty units.\n- 9 subsection 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2) (a) if the person is a listed corporation—600 penalty units; or(b) if the person is a body corporate other than a listed corporation—60 penalty units; or(c) if the person is not a body corporate—12 penalty units.\n- 10 subsection 125(4) (a) if the person is a body corporate—30 penalty units; or(b) if the person is not a body corporate—6 penalty units.\n- 11 subsection 127(1) or (2) (a) if the person is a listed corporation—600 penalty units; or(b) if the person is a body corporate other than a listed corporation—60 penalty units; or(c) if the person is not a body corporate—12 penalty units.\n- 12 subsection 128(2) or (6), 131(1) or 132(1) (a) if the person is a body corporate—30 penalty units; or(b) if the person is not a body corporate—6 penalty units.\n- 13 subsection 136(1), (2) or (3) or 137(1) or (2) (a) if the person is a listed corporation—600 penalty units; or(b) if the person is a body corporate other than a listed corporation—60 penalty units; or(c) if the person is not a body corporate—12 penalty units.\n- 14 subsection 221(1) (a) if the person is a body corporate—30 penalty units; or(b) if the person is not a body corporate—6 penalty units.\n- 15 subsection 222(1) (a) if the person is a body corporate—50 penalty units; or(b) if the person is not a body corporate—10 penalty units.","sortOrder":1527},{"sectionNumber":"134D","sectionType":"section","heading":"Effect of compliance with an infringement notice","content":"134D  Effect of compliance with an infringement notice\n\n (1) This section applies if:\n\n (a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and\n\n (b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and\n\n (c) the infringement notice is not withdrawn under section 134G.\n\n (2) The person is not, merely because of the payment, regarded as:\n\n (a) having contravened the infringement notice provision; or\n\n (b) having been convicted of an offence constituted by the same conduct that constituted the alleged contravention of the infringement notice provision.\n\n (3) No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to:\n\n (a) the alleged contravention of the infringement notice provision; or\n\n (b) an offence constituted by the same conduct that constituted the alleged contravention.","sortOrder":1528},{"sectionNumber":"134E","sectionType":"section","heading":"Effect of failure to comply with an infringement notice","content":"134E  Effect of failure to comply with an infringement notice\n\n  If:\n\n (a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and\n\n (b) the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and\n\n (c) the infringement notice is not withdrawn under section 134G;\n\nthe person is liable to proceedings under Chapter 4 or Part 5‑2 of the Australian Consumer Law in relation to the alleged contravention of the infringement notice provision.","sortOrder":1529},{"sectionNumber":"134F","sectionType":"section","heading":"Infringement notice compliance period for infringement notice","content":"134F  Infringement notice compliance period for infringement notice\n\n (1) Subject to this section, the infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day on which the infringement notice is issued by the Commission.\n\n (2) The Commission may extend, by notice in writing, the infringement notice compliance period for the notice if the Commission is satisfied that it is appropriate to do so.\n\n (3) Only one extension may be given and the extension must not be for longer than 28 days.\n\n (4) Notice of the extension must be given to the person who was issued the infringement notice.\n\n (5) A failure to comply with subsection (4) does not affect the validity of the extension.\n\n (6) If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.","sortOrder":1530},{"sectionNumber":"134G","sectionType":"section","heading":"Withdrawal of an infringement notice","content":"134G  Withdrawal of an infringement notice\n\nRepresentations to the Commission\n\n (1) The person to whom an infringement notice has been issued for an alleged contravention of an infringement notice provision may make written representations to the Commission seeking the withdrawal of the infringement notice.\n\n (2) Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).\n\nWithdrawal by the Commission\n\n (3) The Commission may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so.\n\n (4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal.\n\nContent of withdrawal notices\n\n (5) The withdrawal notice must state:\n\n (a) the name and address of the person; and\n\n (b) the day on which the infringement notice was issued to the person; and\n\n (c) that the infringement notice is withdrawn; and\n\n (d) that proceedings under Chapter 4 or Part 5‑2 of the Australian Consumer Law may be started or continued against the person in relation to:\n\n (i) the alleged contravention of the infringement notice provision; or\n\n (ii) an offence constituted by the same conduct that constituted the alleged contravention.\n\nTime limit for giving withdrawal notices\n\n (6) To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice.\n\nRefunds\n\n (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.","sortOrder":1531},{"sectionNumber":"135","sectionType":"section","heading":"Inspector may enter premises","content":"135  Inspector may enter premises\n\nConsumer goods\n\n (1) If an inspector has reason to believe that:\n\n (a) consumer goods of a particular kind will or may cause injury to any person; or\n\n (b) a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind will or may cause injury to any person;\n\nthe inspector may, for the purposes of ascertaining the matter referred to in paragraph (a) or (b):\n\n (c) enter any premises in or from which the inspector has reason to believe that a person supplies consumer goods of that kind in trade or commerce; and\n\n (d) exercise search‑related powers in relation to the premises.\n\nProduct related services\n\n (2) If an inspector has reason to believe that:\n\n (a) as a result of product related services of a particular kind being supplied, consumer goods of a particular kind will or may cause injury to any person; or\n\n (b) a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which product related services of a particular kind relate, will or may cause injury to any person as a result of such services being supplied;\n\nthe inspector may, for the purposes of ascertaining the matter referred to in paragraph (a) or (b):\n\n (c) enter any premises in or from which the inspector has reason to believe that a person supplies product related services of that kind in trade or commerce; and\n\n (d) exercise search‑related powers in relation to the premises.\n\nLimitation on entry\n\n (3) However, the inspector is not entitled to enter premises under subsection (1) or (2) unless:\n\n (a) the occupier of the premises has consented to the entry and the inspector has shown his or her identity card if required by the occupier; or\n\n (b) the entry is made under a search warrant; or\n\n (c) the entry is made in circumstances in which the exercise of search‑related powers is required without delay in order to protect life or public safety.\n\nNote: For requirements relating to the occupier’s consent, see section 135H.","sortOrder":1534},{"sectionNumber":"135A","sectionType":"section","heading":"Search-related powers of inspectors","content":"135A  Search‑related powers of inspectors\n\nSearch‑related powers—consumer goods\n\n (1) The following are the search‑related powers that an inspector may exercise, under subsection 135(1), in relation to premises in or from which the inspector has reason to believe that a person supplies consumer goods of a particular kind:\n\n (a) if entry to the premises is under a search warrant—the power to seize consumer goods of that kind;\n\n (b) the power to inspect, handle and measure consumer goods of that kind;\n\n (c) the power to take samples of consumer goods of that kind;\n\n (d) the power:\n\n (i) to inspect, handle and read any documents relating to consumer goods of that kind; and\n\n (ii) to make copies of, or take extracts from, those documents;\n\n (e) the power:\n\n (i) to inspect, handle and measure equipment used in the manufacturing, processing or storage of consumer goods of that kind; and\n\n (ii) if entry to the premises is under a search warrant—to seize such equipment;\n\n (f) the power to make any still or moving image or any recording of:\n\n (i) consumer goods of that kind; or\n\n (ii) the premises; or\n\n (iii) any equipment referred to in subparagraph (e)(i).\n\nSearch‑related powers—product related services\n\n (2) The following are the search‑related powers that an inspector may exercise, under subsection 135(2), in relation to premises in or from which the inspector has reason to believe that a person supplies product related services of a particular kind:\n\n (a) the power:\n\n (i) to inspect, handle and read any documents relating to services of that kind; and\n\n (ii) to make copies of, or take extracts from, those documents;\n\n (b) the power:\n\n (i) to inspect, handle and measure equipment used to supply services of that kind; and\n\n (ii) if entry to the premises is under a search warrant—to seize such equipment;\n\n (c) the power to make any still or moving image or any recording of:\n\n (i) any consumer goods to which product related services of that kind relate; or\n\n (ii) the premises; or\n\n (iii) any equipment referred to in subparagraph (b)(i).","sortOrder":1535},{"sectionNumber":"135B","sectionType":"section","heading":"Inspector may ask questions and seek production of documents","content":"135B  Inspector may ask questions and seek production of documents\n\nEntry with consent etc.\n\n (1) If an inspector enters premises because the occupier of the premises consents to the entry or in the circumstances referred to in paragraph 135(3)(c), the inspector may ask the occupier to:\n\n (a) answer any questions relating to the reasons for the inspector entering the premises that are put by the inspector; and\n\n (b) produce any document relating to the reasons for the inspector entering the premises that is requested by the inspector.\n\nEntry under a search warrant\n\n (2) If an inspector enters premises under a search warrant, the inspector may require any person on the premises to:\n\n (a) answer any questions relating to the reasons for the inspector entering the premises that are put by the inspector; and\n\n (b) produce any document relating to the reasons for the inspector entering the premises that is requested by the inspector.","sortOrder":1536},{"sectionNumber":"135C","sectionType":"section","heading":"Failure to answer questions or produce documents","content":"135C  Failure to answer questions or produce documents\n\n (1) A person commits an offence if:\n\n (a) the person is subject to a requirement under subsection 135B(2); and\n\n (b) the person fails to comply with the requirement.\n\nPenalty:\n\n (a) if the person is a body corporate—150 penalty units; or\n\n (b) if the person is not a body corporate—30 penalty units.\n\n (2) A person is not excused from:\n\n (a) answering a question; or\n\n (b) producing a document;\n\nas required under subsection 135B(2) on the ground that the answer, or production of the document, might tend to incriminate the person or expose the person to a penalty.\n\n (3) However, in the case of an individual:\n\n (a) the answer, or the document produced; and\n\n (b) giving the answer, or producing the document;\n\nare not admissible in evidence against the individual in any criminal proceedings other than:\n\n (c) proceedings for any offence against subsection (1); or\n\n (d) proceedings for an offence based on the answer or document being false or misleading; or\n\n (e) proceedings for an offence based on the obstruction of public officials.\n\n (4) Subsection (1) is an offence of strict liability.\n\nNote: For strict liability, see section 6.1 of the Criminal Code.","sortOrder":1537},{"sectionNumber":"135D","sectionType":"section","heading":"Persons assisting inspectors","content":"135D  Persons assisting inspectors\n\nInspectors may be assisted by other persons\n\n (1) An inspector may, in entering premises under section 135 and in exercising search‑related powers in relation to the premises, be assisted by other persons if that assistance is necessary and reasonable.\n\n (2) A person giving such assistance is a person assisting the inspector.\n\nPowers of a person assisting the inspector\n\n (3) A person assisting the inspector may:\n\n (a) enter the premises; and\n\n (b) exercise search‑related powers in relation to the premises, but only in accordance with a direction given to the person by the inspector.\n\n (4) A power exercised by a person assisting the inspector as mentioned in subsection (3) is taken for all purposes to have been exercised by the inspector.","sortOrder":1538},{"sectionNumber":"135E","sectionType":"section","heading":"Use of force in executing a search warrant","content":"135E  Use of force in executing a search warrant\n\n  In executing a search warrant, an inspector executing the warrant may use such force against persons and things as is necessary and reasonable in the circumstances.","sortOrder":1539},{"sectionNumber":"135F","sectionType":"section","heading":"Announcement before entry under warrant","content":"135F  Announcement before entry under warrant\n\n (1) An inspector must, before entering premises under a search warrant:\n\n (a) announce that he or she is authorised to enter the premises; and\n\n (b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and\n\n (c) give any person at the premises an opportunity to allow entry to the premises.\n\n (2) However, an inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required:\n\n (a) to ensure the safety of a person (including the inspector or a person assisting the inspector); or\n\n (b) to ensure that the effective execution of the warrant is not frustrated.\n\n (3) If:\n\n (a) the inspector does not comply with subsection (1) because of subsection (2); and\n\n (b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;\n\nthe inspector must, as soon as practicable after entering the premises, show his or her identity card to the occupier or other person.","sortOrder":1540},{"sectionNumber":"135G","sectionType":"section","heading":"Inspector must be in possession of search warrant","content":"135G  Inspector must be in possession of search warrant\n\n  If a search warrant is being executed in relation to premises, an inspector executing the warrant must be in possession of:\n\n (a) the warrant issued under section 135Z or a copy of that warrant; or\n\n (b) the form of warrant completed under subsection 136(7), or a copy of that form.","sortOrder":1541},{"sectionNumber":"135H","sectionType":"section","heading":"Consent","content":"135H  Consent\n\n (1) An inspector must, before obtaining the consent of an occupier of premises for the purposes of paragraph 135(3)(a), inform the occupier that the occupier may refuse consent.\n\n (2) A consent has no effect unless the consent is voluntary.\n\n (3) If an inspector enters premises because the occupier of the premises consented to the entry, the inspector, and a person assisting the inspector, must leave the premises if the consent ceases to have effect.","sortOrder":1543},{"sectionNumber":"135J","sectionType":"section","heading":"Details of search warrant etc. must be given to the occupier of the premises","content":"135J  Details of search warrant etc. must be given to the occupier of the premises\n\n  If:\n\n (a) a search warrant is being executed in relation to premises; and\n\n (b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;\n\nan inspector executing the warrant must, as soon as practicable:\n\n (c) do one of the following:\n\n (i) if the warrant was issued under section 135Z—make a copy of the warrant available to the occupier or other person (which need not include the signature of the judge who issued it);\n\n (ii) if the warrant was signed under section 136—make a copy of the form of warrant completed under subsection 136(7) available to the occupier or other person; and\n\n (d) inform the occupier or other person of the rights and responsibilities of the occupier or other person under Subdivision C.","sortOrder":1544},{"sectionNumber":"135K","sectionType":"section","heading":"Occupier etc. entitled to observe execution of search warrant","content":"135K  Occupier etc. entitled to observe execution of search warrant\n\n (1) If:\n\n (a) a search warrant is being executed in relation to premises; and\n\n (b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;\n\nthe occupier or other person is entitled to observe the execution of the warrant.\n\n (2) The right to observe the execution of the search warrant ceases if the occupier or other person impedes that execution.\n\n (3) This section does not prevent the execution of the search warrant in 2 or more areas of the premises at the same time.","sortOrder":1546},{"sectionNumber":"135L","sectionType":"section","heading":"Occupier etc. to provide inspector etc. with facilities and assistance","content":"135L  Occupier etc. to provide inspector etc. with facilities and assistance\n\n (1) A person commits an offence if:\n\n (a) the person is:\n\n (i) the occupier of premises to which a search warrant relates; or\n\n (ii) another person who apparently represents the occupier of those premises; and\n\n (b) the person fails to provide:\n\n (i) an inspector executing the warrant; and\n\n (ii) a person assisting the inspector;\n\n  with all reasonable facilities and assistance for the effective exercise of their powers.\n\nPenalty:\n\n (a) if the person is a body corporate—600 penalty units; or\n\n (b) if the person is not a body corporate—120 penalty units or imprisonment for 2 years, or both.\n\n (2) Subsection (1) is an offence of strict liability.\n\nNote: For strict liability, see section 6.1 of the Criminal Code.","sortOrder":1547},{"sectionNumber":"135M","sectionType":"section","heading":"Receipts for seized consumer goods and equipment","content":"135M  Receipts for seized consumer goods and equipment\n\n (1) If consumer goods are seized under a search warrant, an inspector must provide a receipt for the goods.\n\n (2) If equipment is seized under a search warrant, an inspector must provide a receipt for the equipment.\n\n (3) One receipt may cover:\n\n (a) consumer goods and equipment that have been so seized; and\n\n (b) 2 or more kinds of consumer goods or equipment that have been so seized.","sortOrder":1548},{"sectionNumber":"135N","sectionType":"section","heading":"Return of seized consumer goods and equipment","content":"135N  Return of seized consumer goods and equipment\n\n (1) Subject to any order under section 135P, if an inspector seizes consumer goods or equipment under a search warrant, the inspector must take reasonable steps to return the consumer goods or equipment if:\n\n (a) the reason for the seizure no longer exists; or\n\n (b) the period of 60 days after the seizure ends;\n\nwhichever happens first.\n\n (2) Subsection (1) does not apply if:\n\n (a) the consumer goods are, or the equipment is, forfeited or forfeitable to the Commonwealth; or\n\n (b) the consumer goods are, or the equipment is, the subject of a dispute as to ownership.\n\n (3) If, apart from this subsection, the inspector would be required to take reasonable steps to return consumer goods or equipment under subsection (1) because of paragraph (b) of that subsection, the inspector is not required to do so if:\n\n (a) the return of the consumer goods or equipment could cause an imminent risk of death, serious illness or serious injury; or\n\n (b) the inspector is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or a Territory) to retain, destroy, dispose of or otherwise deal with the consumer goods or equipment.\n\n (4) Consumer goods that are required to be returned under this section must be returned to the person from whom they were seized (or to the owner if that person is not entitled to possess them).\n\n (5) Equipment that is required to be returned under this section must be returned to the person from whom it was seized (or to the owner if that person is not entitled to possess it).","sortOrder":1549},{"sectionNumber":"135P","sectionType":"section","heading":"Judge may permit consumer goods or equipment to be retained","content":"135P  Judge may permit consumer goods or equipment to be retained\n\n (1) An inspector who has seized consumer goods or equipment under a search warrant may, before the end of the period referred to in paragraph 135N(1)(b), apply to a judge of the Federal Court for an order that the inspector may retain the consumer goods or equipment for a further period of up to 60 days.\n\n (2) If:\n\n (a) an application to a judge is made under subsection (1); and\n\n (b) the judge is satisfied that it is necessary in all the circumstances for the inspector to continue to retain the consumer goods or equipment;\n\nthe judge may order that the inspector may retain the consumer goods or equipment for a further period (not exceeding 60 days) specified in the order.\n\n (3) Before making the application under subsection (1), the inspector must:\n\n (a) take reasonable steps to discover who has an interest in the retention of the consumer goods or equipment; and\n\n (b) if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.","sortOrder":1550},{"sectionNumber":"135Q","sectionType":"section","heading":"Recovery of reasonable costs of seizing consumer goods or equipment","content":"135Q  Recovery of reasonable costs of seizing consumer goods or equipment\n\n (1) If an inspector seizes consumer goods or equipment under a search warrant:\n\n (a) the person from whom the consumer goods were seized, or the equipment was seized; or\n\n (b) if that person is not entitled to possess the consumer goods or equipment—the owner of the consumer goods or equipment;\n\nis liable to pay an amount equal to the costs reasonably incurred by the inspector in seizing the consumer goods or equipment.\n\n (2) An amount payable by a person under subsection (1):\n\n (a) is a debt due by the person to the Commonwealth; and\n\n (b) may be recovered by action in a court of competent jurisdiction.","sortOrder":1552},{"sectionNumber":"135R","sectionType":"section","heading":"Destruction or disposal of seized consumer goods or equipment","content":"135R  Destruction or disposal of seized consumer goods or equipment\n\n (1) If:\n\n (a) an inspector seizes consumer goods, or equipment used to supply product‑related services, under a search warrant; and\n\n (b) apart from this section, the inspector is required to return the consumer goods or equipment to a person; and\n\n (c) either:\n\n (i) the inspector cannot, despite making reasonable efforts, locate the person; or\n\n (ii) the person has refused to take possession of the consumer goods or equipment;\n\na court may, on the application of the inspector, make an order authorising the inspector to destroy or otherwise dispose of the consumer goods or equipment.\n\n (2) If subparagraph (1)(c)(ii) applies, the inspector must, before making an application under subsection (1), inform the person referred to in that subparagraph that the inspector proposes to make an application under that subsection.\n\n (3) If:\n\n (a) an order is made under subsection (1); and\n\n (b) subparagraph (1)(c)(ii) applies;\n\nthe person referred to in that subparagraph is liable to pay an amount equal to the costs reasonably incurred by the inspector in destroying or disposing of the consumer goods or equipment.\n\n (4) An amount payable by a person under subsection (3):\n\n (a) is a debt due by the person to the Commonwealth; and\n\n (b) may be recovered by action in a court of competent jurisdiction.","sortOrder":1553},{"sectionNumber":"135S","sectionType":"section","heading":"Embargo notices","content":"135S  Embargo notices\n\n (1) An inspector who enters premises under a search warrant may give an embargo notice to the occupier of the premises.\n\n (2) The inspector may give the notice to the occupier of the premises:\n\n (a) by causing a copy of the notice to be served on the occupier; or\n\n (b) if the occupier cannot be located after all reasonable steps have been taken to do so—by:\n\n (i) causing a copy of the notice to be served on a person on the premises who is reasonably believed to be in regular contact with the occupier; or\n\n (ii) causing a copy of the notice to be affixed to the premises, or to a thing on the premises, in a prominent position.\n\n (3) The embargo notice must:\n\n (a) be in writing; and\n\n (b) specify the consumer goods, or product related services, to which the notice relates; and\n\n (c) if the notice relates to consumer goods—state that the specified consumer goods must not be:\n\n (i) supplied in or from the premises; or\n\n (ii) transferred, moved, altered, destroyed or otherwise interfered with;\n\n  during the period specified in the notice; and\n\n (d) if the notice relates to product related services—state that the specified product related services must not be supplied in or from the premises during the period specified in the notice; and\n\n (e) explain the effect of section 135V or 135W.\n\n (4) Despite anything in any other law, a contract for a supply of consumer goods or product related services that is prohibited by an embargo notice is void.\n\n (5) If consumer goods are supplied in contravention of an embargo notice:\n\n (a) the supplier must immediately return or refund to the person who acquired the goods any consideration (or the value of any consideration) that that person gave:\n\n (i) under an agreement for the supply; or\n\n (ii) under a related contract or instrument; and\n\n (b) if the goods have been removed from the premises in which they were subject to the embargo notice—the person who acquired the goods must:\n\n (i) return the goods to the premises; or\n\n (ii) notify the supplier of the place where the supplier may collect the goods; and\n\n (c) if subparagraph (b)(ii) applies—the supplier must collect the goods from the place notified to the supplier, and return them to the premises.","sortOrder":1555},{"sectionNumber":"135T","sectionType":"section","heading":"Embargo period for embargo notices","content":"135T  Embargo period for embargo notices\n\nEmbargo period\n\n (1) Subject to this section, the embargo period for an embargo notice must not be longer than:\n\n (a) if the inspector giving the notice secures consumer goods under section 135V or secures equipment under section 135W—24 hours; or\n\n (b) otherwise—28 days.\n\nExtensions of embargo period\n\n (2) An inspector may, before the embargo period ends, apply to a judge of the Federal Court for an extension of the period.\n\n (3) If an inspector intends to make an application under subsection (2), the inspector must, before making the application, notify the occupier of the premises to which the embargo notice relates of that intention.\n\n (4) The occupier of the premises is entitled to be heard in relation to the application.\n\n (5) The judge may extend the embargo period for a specified period if the judge is satisfied that the extension is necessary in all the circumstances.","sortOrder":1556},{"sectionNumber":"135U","sectionType":"section","heading":"Multiple embargo notices for the same consumer goods or product related services","content":"135U  Multiple embargo notices for the same consumer goods or product related services\n\n  An inspector must not give an embargo notice in relation to consumer goods, or product related services, of a particular kind if:\n\n (a) an embargo notice (the earlier embargo notice) has already been given in relation to consumer goods, or product related services, of that kind; and\n\n (b) the embargo period for the earlier embargo notice did not end at least 5 days ago.","sortOrder":1557},{"sectionNumber":"135V","sectionType":"section","heading":"Power of inspectors to secure consumer goods","content":"135V  Power of inspectors to secure consumer goods\n\n  If:\n\n (a) an embargo notice relates to consumer goods; and\n\n (b) the inspector who gives the notice believes on reasonable grounds that it is necessary to secure the consumer goods in order to ensure that the notice is complied with;\n\nthe inspector may, during the embargo period for the embargo notice, do anything that the inspector thinks is necessary to secure those consumer goods (whether by locking them up, placing a guard or otherwise).","sortOrder":1558},{"sectionNumber":"135W","sectionType":"section","heading":"Power of inspectors to secure equipment used to supply product related services","content":"135W  Power of inspectors to secure equipment used to supply product related services\n\n  If:\n\n (a) an embargo notice relates to product related services; and\n\n (b) the inspector who gives the notice believes on reasonable grounds that it is necessary to secure equipment used to supply the services in order to ensure that the notice is complied with;\n\nthe inspector may, during the embargo period for the embargo notice, do anything that the inspector thinks is necessary to secure that equipment (whether by locking it up, placing a guard or otherwise).","sortOrder":1559},{"sectionNumber":"135X","sectionType":"section","heading":"Consent to supply etc. embargoed consumer goods etc.","content":"135X  Consent to supply etc. embargoed consumer goods etc.\n\n (1) If an embargo notice relating to consumer goods has been given, the owner of the goods or another person who has an interest in the goods may, in writing, request consent to do any of the following:\n\n (a) to supply the goods;\n\n (b) to transfer, move, alter, destroy or otherwise interfere with the goods.\n\n (2) If an embargo notice relating to product related services has been given, the following persons may, in writing, request consent to supply the services:\n\n (a) the person who would, but for the embargo notice, supply the services;\n\n (b) another person whose interests would be affected if the services were not supplied.\n\n (3) If a request for consent is made under subsection (1) or (2), the requested consent may be given, in writing, by the Commonwealth Minister, the Chairperson or any inspector.\n\n (4) A consent given under subsection (3) is not a legislative instrument.","sortOrder":1560},{"sectionNumber":"135Y","sectionType":"section","heading":"Compliance with embargo notices","content":"135Y  Compliance with embargo notices\n\n (1) A person commits an offence if:\n\n (a) the person knows that an embargo notice has been given; and\n\n (b) the person, contrary to the embargo notice, does an act or omits to do an act.\n\nPenalty:\n\n (a) if the person is a body corporate—200 penalty units; or\n\n (b) if the person is not a body corporate—40 penalty units.\n\n (2) A person commits an offence if:\n\n (a) the person knows that an embargo notice has been given; and\n\n (b) the person causes another person:\n\n (i) to do an act that is contrary to the embargo notice; or\n\n (ii) contrary to the embargo notice, to omit to do an act.\n\nPenalty:\n\n (a) if the person is a body corporate—200 penalty units; or\n\n (b) if the person is not a body corporate—40 penalty units.\n\n (3) Subsection (1) or (2) does not apply in relation to:\n\n (a) an act done in accordance with a consent given under section 135X; or\n\n (b) if the embargo notice relates to consumer goods—an act done for the purpose of protecting or preserving the consumer goods; or\n\n (c) if the embargo notice relates to product related services—an act done for the purpose of protecting or preserving equipment used to supply the services.\n\nNote: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.\n\n (4) Strict liability applies to paragraphs (1)(b) and (2)(b).\n\nNote: For strict liability, see section 6.1 of the Criminal Code.","sortOrder":1561},{"sectionNumber":"135Z","sectionType":"section","heading":"Issue of search warrants","content":"135Z  Issue of search warrants\n\nApplication for warrant\n\n (1) An inspector may apply to a judge of the Federal Court for a warrant in relation to premises.\n\nIssue of warrant\n\n (2) The judge may issue the warrant if:\n\n (a) an affidavit has been given to the judge setting out the grounds on which the issue of the warrant is being sought; and\n\n (b) the applicant, or some other person, has given to the judge such further information (if any) as the judge requires concerning the grounds on which the issue of the warrant is being sought; and\n\n (c) the judge is satisfied that there are reasonable grounds for issuing the warrant.\n\nContent of warrant\n\n (3) The warrant must:\n\n (a) specify the purpose for which the warrant is issued; and\n\n (b) describe the premises to which the warrant relates; and\n\n (c) state that the warrant is issued under this section; and\n\n (d) name one or more inspectors; and\n\n (e) authorise the inspector or inspectors so named:\n\n (i) to enter the premises; and\n\n (ii) to exercise search‑related powers in relation to the premises; and\n\n (f) state whether the entry is authorised to be made at any time of the day or night, or during specified hours of the day or night; and\n\n (g) specify a day (which must not be more than 7 days after the day the warrant is issued) on which the warrant ceases to be in force.","sortOrder":1563},{"sectionNumber":"136","sectionType":"section","heading":"Search warrants by telephone, fax etc.","content":"136  Search warrants by telephone, fax etc.\n\nApplication for warrant\n\n (1) An inspector may apply to a judge of the Federal Court by telephone, fax or other electronic means for a warrant under section 135Z in relation to premises if the inspector believes on reasonable grounds that the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.\n\nVoice communication\n\n (2) The judge may require communication by voice to the extent that it is practicable in the circumstances.\n\nAffidavit\n\n (3) Before applying for the warrant, the inspector must prepare an affidavit of the kind mentioned in paragraph 135Z(2)(a).\n\n (4) If it is necessary to do so, the inspector may apply for the warrant before the affidavit has been sworn.\n\nSigning of warrant\n\n (5) If the judge is satisfied:\n\n (a) after considering the terms of the affidavit; and\n\n (b) after receiving such further information (if any) as the judge requires concerning the grounds on which the issue of the warrant is being sought;\n\nthat there are reasonable grounds for issuing the warrant, the judge may complete and sign the same warrant that the judge would issue under section 135Z if the application had been made under that section.\n\nNotification\n\n (6) If the judge completes and signs the warrant, the judge must inform the inspector, by telephone, fax or other electronic means, of:\n\n (a) the terms of the warrant; and\n\n (b) the day on which and the time at which the warrant was signed.\n\nForm of warrant\n\n (7) The inspector must then complete a form of warrant in the same terms as the warrant completed and signed by the judge, stating on the form the name of the judge and the day on which and the time at which the warrant was signed.\n\nCompleted form of warrant to be given to judge\n\n (8) The inspector must also, not later than the day after the day on which the warrant ceased to be in force or the day of execution of the warrant, whichever is the earlier, send to the judge:\n\n (a) the form of warrant completed by the inspector; and\n\n (b) the affidavit referred to in subsection (3), which must have been duly sworn.\n\nAttachment\n\n (9) The judge must attach to the documents provided under subsection (8) the warrant signed by the judge.\n\nAuthority of warrant\n\n (10) A form of warrant duly completed under subsection (7) is authority for the same powers as are authorised by the warrant signed by the judge.\n\n (11) If:\n\n (a) it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and\n\n (b) the warrant signed by the judge authorising the exercise of the power is not produced in evidence;\n\nthe court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.","sortOrder":1564},{"sectionNumber":"136A","sectionType":"section","heading":"Offence relating to warrants by telephone, fax etc.","content":"136A  Offence relating to warrants by telephone, fax etc.\n\n  An inspector commits an offence if the inspector:\n\n (a) states in a document that purports to be a form of warrant under section 136 the name of a judge unless that judge signed the warrant; or\n\n (b) states on a form of warrant under that section a matter that, to the inspector’s knowledge, departs in a material particular from the terms of the warrant signed by the judge under that section; or\n\n (c) purports to execute, or presents to another person, a document that purports to be a form of warrant under that section that the inspector knows:\n\n (i) has not been approved by a judge under that section; or\n\n (ii) departs in a material particular from the terms of a warrant signed by a judge under that section; or\n\n (d) gives to a judge a form of warrant under that section that is not the form of warrant that the inspector purported to execute.\n\nPenalty: 120 penalty units or imprisonment for 2 years, or both.","sortOrder":1565},{"sectionNumber":"136B","sectionType":"section","heading":"Powers of judges","content":"136B  Powers of judges\n\nPowers conferred personally\n\n (1) A power conferred on a judge by this Division is conferred on the judge:\n\n (a) in a personal capacity; and\n\n (b) not as a court or a member of a court.\n\nPowers need not be accepted\n\n (2) The judge need not accept the power conferred.\n\nProtection and immunity\n\n (3) A judge exercising a power conferred by this Division has the same protection and immunity as if he or she were exercising the power:\n\n (a) as the court of which the judge is a member; or\n\n (b) as a member of the court of which the judge is a member.","sortOrder":1567},{"sectionNumber":"137","sectionType":"section","heading":"Limit on occupational liability","content":"137  Limit on occupational liability\n\nState or Territory professional standards law limits liability\n\n (1) A professional standards law of a State or Territory applies to limit occupational liability relating to an action for a contravention of section 18 of the Australian Consumer Law in the same way as it limits occupational liability arising under a law of the State or Territory.\n\n (2) However, the professional standards law applies for that purpose:\n\n (a) only in relation to a scheme that was prescribed by the regulations at the time (the contravention time) of the contravention; and\n\n (b) as if the scheme were in force under that law at the contravention time, in the form the scheme would have been in if:\n\n (i) the scheme had not been amended or revoked under that law since the scheme was first prescribed; and\n\n (ii) any additions, omissions, substitutions and other modifications prescribed by the regulations at the contravention time had been made to the scheme.\n\nOperation of choice of law rules\n\n (3) For the purposes of working out whether a professional standards law of a particular State or Territory applies under subsection (1) in relation to a particular contravention of section 18 of the Australian Consumer Law, choice of law rules operate in relation to the contravention in the same way as they operate in relation to a tort.\n\nProfessional standards laws\n\n (4) A professional standards law is a law that provides for the limitation of occupational liability by reference to schemes for limiting that liability that were formulated and published in accordance with that law.\n\nOccupational liability\n\n (5) Occupational liability is civil liability arising directly or vicariously from anything done or omitted by a person who:\n\n (a) does or omits to do the thing in the course of his or her profession, trade or occupation; and\n\n (b) is a member of a body:\n\n (i) that represents the interests of persons who have the same profession, trade or occupation; and\n\n (ii) whose membership is limited principally to such persons.","sortOrder":1569},{"sectionNumber":"137A","sectionType":"section","heading":"Contributory acts or omissions to reduce compensation in defective goods actions","content":"137A  Contributory acts or omissions to reduce compensation in defective goods actions\n\n (1) If the loss or damage to which a defective goods action under section 138 or 139 of the Australian Consumer Law relates was caused by both:\n\n (a) an act or omission of:\n\n (i) the individual who suffers the injuries referred to in that section; or\n\n (ii) a person for whom that individual is responsible; and\n\n (b) a safety defect of the goods to which the action relates;\n\nthe amount of the loss or damage is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to that individual’s share in the responsibility for the loss or damage.\n\n (2) If the loss or damage to which a defective goods action under section 140 or 141 of the Australian Consumer Law relates was caused by both:\n\n (a) an act or omission of:\n\n (i) the person who suffered the loss or damage; or\n\n (ii) another person for whom that person is responsible; and\n\n (b) a safety defect of the goods to which the action relates;\n\nthe amount of the loss or damage is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to the person’s share in the responsibility for the loss or damage.","sortOrder":1570},{"sectionNumber":"137B","sectionType":"section","heading":"Reduction of the amount of loss or damage if the claimant fails to take reasonable care","content":"137B  Reduction of the amount of loss or damage if the claimant fails to take reasonable care\n\n  If:\n\n (a) a person (the claimant) makes a claim under subsection 236(1) of the Australian Consumer Law in relation to economic loss, or damage to property, suffered by the claimant because of the conduct of another person; and\n\n (b) the conduct contravened section 18 of the Australian Consumer Law; and\n\n (c) the claimant suffered the loss or damage as result:\n\n (i) partly of the claimant’s failure to take reasonable care; and\n\n (ii) partly of the conduct of the other person; and\n\n (d) the other person did not intend to cause the loss or damage and did not fraudulently cause the loss or damage;\n\nthe amount of the loss or damage that the claimant may recover under subsection 236(1) of the Australian Consumer Law is to be reduced to the extent to which a court thinks just and equitable having regard to the claimant’s share in the responsibility for the loss or damage.","sortOrder":1571},{"sectionNumber":"137C","sectionType":"section","heading":"Limits on recovery of amounts for death or personal injury","content":"137C  Limits on recovery of amounts for death or personal injury\n\n (1) A person is not entitled to recover an amount of loss or damage by action under subsection 236(1) of the Australian Consumer Law to the extent to which:\n\n (a) the action would be based on the conduct contravening a provision of Part 2‑1 or 3‑1 of the Australian Consumer Law; and\n\n (b) the loss or damage is, or results from, death or personal injury; and\n\n (c) the death or personal injury does not result from smoking or other use of tobacco products.\n\n (2) Divisions 2 and 7 of Part VIB of this Act apply to an action under subsection 236(1) of the Australian Consumer Law for loss or damage a person suffers to the extent to which:\n\n (a) the action is based on the conduct contravening a provision of Part 2‑1 or 3‑1 of the Australian Consumer Law; and\n\n (b) the loss or damage is, or results from, death or personal injury; and\n\n (c) the death or personal injury results from smoking or other use of tobacco products;\n\nas if the action were a proceeding to which Part VIB of this Act applied.\n\nNote 1: Division 2 of Part VIB of this Act deals with the limitation periods that apply for claims for damages or compensation for death or personal injury and, to the extent to which that Division is applied to the action by this subsection, it overrides subsection 236(2) of the Australian Consumer Law.\n\nNote 2: Division 7 of Part VIB of this Act deals with structured settlements for claims for damages or compensation for death or personal injury.","sortOrder":1572},{"sectionNumber":"137D","sectionType":"section","heading":"Compensation orders etc. arising out of unconscionable conduct or unfair contract term","content":"137D  Compensation orders etc. arising out of unconscionable conduct or unfair contract term\n\n  In determining whether to make an order under subsection 237(1) or 238(1) of the Australian Consumer Law in relation to a contravention of a provision of Part 2‑2 or 2‑3 of the Australian Consumer Law, the court may have regard to the conduct of the parties to the proceeding referred to in that subsection since the contravention occurred.","sortOrder":1573},{"sectionNumber":"137E","sectionType":"section","heading":"Limits on compensation orders etc. for death or personal injury","content":"137E  Limits on compensation orders etc. for death or personal injury\n\n (1) A court must not make an order under subsection 237(1) or 238(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person to the extent to which:\n\n (a) the action would be based on the conduct contravening a provision of Part 2‑1 or 3‑1 of the Australian Consumer Law; and\n\n (b) the loss or damage is, or results from, death or personal injury; and\n\n (c) the death or personal injury does not result from smoking or other use of tobacco products.\n\n (2) Division 2 of Part VIB of this Act applies to an application for an order under subsection 237(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person to the extent to which:\n\n (a) the action would be based on the conduct contravening a provision of Part 2‑1 or 3‑1 of the Australian Consumer Law; and\n\n (b) the loss or damage is, or results from, death or personal injury; and\n\n (c) the death or personal injury results from smoking or other use of tobacco products;\n\nas if the proceeding in relation to the application were a proceeding to which Part VIB of this Act applies and as if the making of the application were the commencement of the proceeding.\n\nNote: Division 2 of Part VIB of this Act deals with the limitation periods that apply for claims for damages or compensation for death or personal injury and, to the extent to which that Division is applied to the application by this subsection, it overrides subsection 237(3) of the Australian Consumer Law.\n\n (3) Division 7 of Part VIB of this Act applies to a proceeding in which an order under subsection 237(1) or 238(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person is made, to the extent to which:\n\n (a) the action would be based on the conduct contravening a provision of Part 2‑1 or Part 3‑1 of the Australian Consumer Law; and\n\n (b) the loss or damage is, or results from, death or personal injury; and\n\n (c) the death or personal injury results from smoking or other use of tobacco products;\n\nas if the proceeding were a proceeding to which Part VIB of this Act applied.\n\nNote: Division 7 of Part VIB of this Act deals with structured settlements for claims for damages or compensation for death or personal injury.","sortOrder":1574},{"sectionNumber":"137F","sectionType":"section","heading":"Court may make orders for the purpose of preserving money or other property held by a person","content":"137F  Court may make orders for the purpose of preserving money or other property held by a person\n\n (1) A court may, on the application of the Commonwealth Minister or the Commission, make an order or orders mentioned in subsection (3) if:\n\n (a) proceedings of a kind referred to in subsection (2) have been taken against a person, or proceedings of a kind referred to in paragraph (2)(d) may be taken against a person; and\n\n (b) the court is satisfied that it is necessary or desirable to make the order or orders for the purpose of preserving money or other property held by, or on behalf of, the person if the person is liable, or may become liable, under the Australian Consumer Law:\n\n (i) to pay money by way of a fine, damages, compensation, refund or otherwise; or\n\n (ii) to transfer, sell or refund other property; and\n\n (c) the court is satisfied that the making of such an order or orders will not unduly prejudice the rights and interests of any other person.\n\nKinds of proceedings taken against the person\n\n (2) For the purposes of paragraph (1)(a), the kinds of proceedings taken against the person are:\n\n (a) proceedings against the person for an offence against a provision of Chapter 4 of the Australian Consumer Law; or\n\n (b) an application under section 232 of the Australian Consumer Law for an injunction against the person in relation to a contravention of a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or\n\n (c) an action under subsection 236(1) of the Australian Consumer Law against the person in relation to a contravention of a provision of Part 2‑1 or 2‑3, or of Chapter 3, of the Australian Consumer Law; or\n\n (d) an application for an order under subsection 237(1) or 239(1) of the Australian Consumer Law against the person in relation to a contravention of a provision of Chapter 2, 3 or 4 of the Australian Consumer Law.\n\nKinds of orders that may be made\n\n (3) The court may make the following orders under subsection (1) of this section in a relation to money or other property held by, or on behalf of, a person (the respondent):\n\n (a) an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the respondent, or to an associate of the respondent, from making a payment, in total or partial discharge of the debt:\n\n (i) to the respondent; or\n\n (ii) to another person at the direction or request of the respondent;\n\n (b) an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property on behalf of the respondent, or on behalf of an associate of the respondent:\n\n (i) from paying all or any of the money to the respondent, or to another person at the direction or request of the respondent; or\n\n (ii) from transferring the other property to the respondent, or to another person at the direction or request of the respondent, or otherwise parting with possession of that property;\n\n (c) an order prohibiting, either absolutely or subject to conditions, the taking or sending by any person of money of the respondent, or of an associate of the respondent, to a place outside the State or Territory in which the money is held;\n\n (d) an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by any person of other property of the respondent, or of an associate of the respondent, to a place outside the State or Territory in which that property is located;\n\n (e) if the respondent is a natural person—an order appointing a receiver or trustee of the property, or of part of the property, of the respondent with such powers as are specified in the order.\n\nOperation of order\n\n (4) If the court makes such an order, the order operates:\n\n (a) for the period specified in the order (which must not be longer than 30 days if the application for the order was an ex parte application); or\n\n (b) if proceedings in relation to which the order is made are concluded before the end of that period—until the conclusion of those proceedings.\n\nOther\n\n (5) This section:\n\n (a) has effect subject to the Bankruptcy Act 1966; and\n\n (b) does not affect any other powers of the court.","sortOrder":1575},{"sectionNumber":"137G","sectionType":"section","heading":"Compliance with orders made under section 137F","content":"137G  Compliance with orders made under section 137F\n\n (1) A person commits an offence if:\n\n (a) an order made under section 137F applies to the person; and\n\n (b) the person contravenes, or refuses or fails to comply with, the order.\n\nPenalty:\n\n (a) if the person is a body corporate—900 penalty units; or\n\n (b) if the person is not a body corporate—180 penalty units.\n\n (2) Subsection (1) is an offence of strict liability.\n\nNote: For strict liability, see section 6.1 of the Criminal Code.","sortOrder":1576},{"sectionNumber":"137H","sectionType":"section","heading":"Findings and admissions of fact in proceedings to be evidence","content":"137H  Findings and admissions of fact in proceedings to be evidence\n\n (1) In:\n\n (a) an action against a person under subsection 236(1) of the Australian Consumer Law; or\n\n (b) proceedings for an order against a person under subsection 237(1), 239(1), 243A(1) or 243B(1) of the Australian Consumer Law;\n\na finding of any fact made by a court, or an admission of any fact made by the person, is prima facie evidence of that fact if the finding or admission is made in proceedings to which subsection (3) of this section applies.\n\n (2) The finding or admission may be proved by production of:\n\n (a) in any case—a document under the seal of the court from which the finding or admission appears; or\n\n (b) in the case of an admission—a document from which the admission appears that is filed in the court.\n\n (3) This subsection applies to proceedings under section 228, 232, 246, 247 or 248 of the Australian Consumer Law, or for an offence against a provision of Chapter 4 of the Australian Consumer Law, in which the person has been found:\n\n (a) to have contravened a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or\n\n (b) to have attempted to contravene such a provision; or\n\n (c) to have aided, abetted, counselled or procured a person to contravene such a provision; or\n\n (d) to have induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or\n\n (e) to have been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n\n (f) to have conspired with others to contravene such a provision.","sortOrder":1577},{"sectionNumber":"138","sectionType":"section","heading":"Conferring jurisdiction on the Federal Court","content":"138  Conferring jurisdiction on the Federal Court\n\n (1) Jurisdiction is conferred on the Federal Court in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding has been instituted under this Part or the Australian Consumer Law.\n\n (2) The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than:\n\n (a) the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) under section 138A; and\n\n (b) the jurisdiction of the several courts of the States and Territories under section 138B; and\n\n (c) the jurisdiction of the High Court under section 75 of the Constitution.","sortOrder":1579},{"sectionNumber":"138A","sectionType":"section","heading":"Conferring jurisdiction on the Federal Circuit and Family Court of Australia (Division 2)","content":"138A  Conferring jurisdiction on the Federal Circuit and Family Court of Australia (Division 2)\n\n (1) Subject to this section, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than the Commonwealth Minister.\n\n (2) If proceedings under Part 3‑5, or section 236, of the Australian Consumer Law are instituted in, or transferred to, the Federal Circuit and Family Court of Australia (Division 2), the Court does not have jurisdiction to award an amount for loss or damage that exceeds:\n\n (a) $750,000; or\n\n (b) if another amount is specified in the regulations—that other amount.\n\nNote: For transfers from the Federal Court to the Federal Circuit and Family Court of Australia (Division 2): see section 32AB of the Federal Court of Australia Act 1976.","sortOrder":1580},{"sectionNumber":"138B","sectionType":"section","heading":"Conferring jurisdiction on State and Territory Courts","content":"138B  Conferring jurisdiction on State and Territory Courts\n\n (1) Jurisdiction is conferred on the several courts of the States and Territories in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than the Commonwealth Minister or the Commission.\n\n (3) The jurisdiction conferred by subsection (1) on the several courts of the States is conferred within the limits of their several jurisdictions, whether those limits are as to locality, subject matter or otherwise.\n\n (4) The jurisdiction conferred by subsection (1) on the several courts of the Territories is conferred to the extent that the Constitution permits.\n\n (5) This section is not to be taken to enable an inferior court of a State or a Territory to grant a remedy other than a remedy of a kind that the court is able to grant under the law of that State or Territory.","sortOrder":1581},{"sectionNumber":"138C","sectionType":"section","heading":"Transfer of matters by the Federal Court","content":"138C  Transfer of matters by the Federal Court\n\n (1) Subject to subsection (2), if:\n\n (a) a civil proceeding instituted by a person (other than the Commonwealth Minister or the Commission) is pending in the Federal Court; and\n\n (b) a matter for determination in the proceeding arises under this Part or the Australian Consumer Law;\n\nthe Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the matter, and any other matter for determination in the proceeding, to a court of a State or a Territory.\n\n (2) The Federal Court must not transfer a matter to another court under subsection (1) unless:\n\n (a) the other court has power to grant the remedies sought before the Federal Court in the matter; and\n\n (b) it appears to the Federal Court that:\n\n (i) the matter arises out of, or is related to, a proceeding that is pending in the other court; or\n\n (ii) it is otherwise in the interests of justice that the matter be determined by the other court.\n\n (4) If the Federal Court transfers a matter to another court under subsection (1):\n\n (a) further proceedings in the matter must be as directed by the other court; and\n\n (b) the judgment of the other court in the matter is enforceable throughout Australia and the external Territories as if it were a judgment of the Federal Court.","sortOrder":1582},{"sectionNumber":"138D","sectionType":"section","heading":"Transfer of matters by a State or Territory court","content":"138D  Transfer of matters by a State or Territory court\n\n (1) This section applies if:\n\n (a) a proceeding is pending in a court (other than the Supreme Court) of a State or a Territory; and\n\n (b) a matter for determination in the proceeding arises under this Part or the Australian Consumer Law, other than under Chapter 4 of the Australian Consumer Law.\n\n (2) The court must, if directed to do so by the Federal Court, transfer to the Federal Court:\n\n (a) the matter; and\n\n (b) such other matters for determination in the proceeding, the determination of which would (apart from any law of a State or of the Northern Territory relating to cross‑vesting of jurisdiction) be within the jurisdiction of the Federal Court, as the Federal Court determines.\n\n (3) Subject to subsection (4), the court may, on the application of a party to the proceeding or of its own motion, transfer the matter to a court (other than the Supreme Court) of another State or Territory.\n\n (4) The court (the first court) must not transfer a matter to another court under subsection (3) unless:\n\n (a) the other court has power to grant the remedies sought before the first court in the matter; and\n\n (b) it appears to the first court that:\n\n (i) the matter arises out of, or is related to, a proceeding that is pending in the other court; or\n\n (ii) it is otherwise in the interests of justice that the matter be determined by the other court.\n\n (5) If the court transfers a matter to another court under subsection (3), further proceedings in the matter must be as directed by the other court.","sortOrder":1583},{"sectionNumber":"138E","sectionType":"section","heading":"Transfer of proceedings to the Federal Circuit and Family Court of Australia (Division 1)","content":"138E  Transfer of proceedings to the Federal Circuit and Family Court of Australia (Division 1)\n\n (1) If:\n\n (a) a civil proceeding is pending in the Federal Court; and\n\n (b) a matter for determination in the proceeding arises under this Part or the Australian Consumer Law;\n\nthe Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the proceeding to the Federal Circuit and Family Court of Australia (Division 1).\n\n (2) Subject to subsection (3), if a proceeding is transferred to the Federal Circuit and Family Court of Australia (Division 1) under subsection (1):\n\n (a) the Court has jurisdiction to hear and determine the proceeding; and\n\n (b) the Court also has jurisdiction to hear and determine matters not otherwise within its jurisdiction (whether because of paragraph (a) or otherwise):\n\n (i) that are associated with matters arising in the proceeding; or\n\n (ii) that, apart from subsection 32(1) of the Federal Court of Australia Act 1976, the Federal Court would have had jurisdiction to hear and determine in the proceeding; and\n\n (c) the Federal Circuit and Family Court of Australia (Division 1) may, in and in relation to the proceeding:\n\n (i) grant such remedies; and\n\n (ii) make orders of such kinds; and\n\n (iii) issue, and direct the issue of, writs of such kinds;\n\n  as the Federal Court could have granted, made, issued or directed the issue of, in and in relation to the proceeding; and\n\n (d) remedies, orders and writs granted, made or issued by the Federal Circuit and Family Court of Australia (Division 1) in and in relation to the proceeding have effect, and may be enforced by that Court, as if they had been granted, made or issued by the Federal Court; and\n\n (e) appeals lie from judgments of the Federal Circuit and Family Court of Australia (Division 1) given in and in relation to the proceeding as if the judgments were judgments of the Federal Court constituted by a single Judge of that Court, and do not otherwise lie; and\n\n (f) subject to paragraphs (a) to (e) of this subsection, this Act, the regulations, the Federal Court of Australia Act 1976, the Rules of Court made under that Act, and other laws of the Commonwealth, apply in and in relation to the proceeding as if:\n\n (i) a reference to the Federal Court (other than in the expression the Court or a Judge) included a reference to the Federal Circuit and Family Court of Australia (Division 1); and\n\n (ii) a reference to a Judge of the Federal Court (other than in the expression the Court or a Judge) included a reference to a Judge of the Federal Circuit and Family Court of Australia (Division 1); and\n\n (iii) a reference to the expression the Court or a Judge when used in relation to the Federal Court included a reference to a Judge of the Federal Circuit and Family Court of Australia (Division 1) sitting in Chambers; and\n\n (iv) a reference to a Registrar of the Federal Court included a reference to a Registrar of the Federal Circuit and Family Court of Australia (Division 1); and\n\n (v) any other necessary changes were made.\n\n (3) If any difficulty arises in the application of paragraphs (2)(c), (d) and (f) in or in relation to a particular proceeding, the Federal Circuit and Family Court of Australia (Division 1) may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.\n\n (4) An appeal does not lie from a decision of the Federal Court in relation to the transfer of a proceeding under this Act to the Federal Circuit and Family Court of Australia (Division 1).","sortOrder":1584},{"sectionNumber":"139","sectionType":"section","heading":"Intervention by the Commission","content":"139  Intervention by the Commission\n\n (1) The Commission may, with the leave of a court and subject to any conditions imposed by the court, intervene in any proceeding instituted under this Part or the Australian Consumer Law.\n\n (2) If the Commission intervenes in a proceeding, the Commission is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.","sortOrder":1586},{"sectionNumber":"139A","sectionType":"section","heading":"Terms excluding consumer guarantees from supplies of recreational services","content":"139A  Terms excluding consumer guarantees from supplies of recreational services\n\n (1) A term of a contract for the supply of recreational services to a consumer by a person is not void under section 64 of the Australian Consumer Law only because the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying:\n\n (a) the application of all or any of the provisions of Subdivision B of Division 1 of Part 3‑2 of the Australian Consumer Law; or\n\n (b) the exercise of a right conferred by such a provision; or\n\n (c) any liability of the person for a failure to comply with a guarantee that applies under that Subdivision to the supply.\n\n (2) Recreational services are services that consist of participation in:\n\n (a) a sporting activity or a similar leisure time pursuit; or\n\n (b) any other activity that:\n\n (i) involves a significant degree of physical exertion or physical risk; and\n\n (ii) is undertaken for the purposes of recreation, enjoyment or leisure.\n\n (3) This section does not apply unless the exclusion, restriction or modification is limited to liability for:\n\n (a) death; or\n\n (b) a physical or mental injury of an individual (including the aggravation, acceleration or recurrence of such an injury of the individual); or\n\n (c) the contraction, aggravation or acceleration of a disease of an individual; or\n\n (d) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual:\n\n (i) that is or may be harmful or disadvantageous to the individual or community; or\n\n (ii) that may result in harm or disadvantage to the individual or community.\n\n (4) This section does not apply if the exclusion, restriction or modification would apply to significant personal injury suffered by a person that is caused by the reckless conduct of the supplier of the recreational services.\n\n (5) The supplier’s conduct is reckless conduct if the supplier:\n\n (a) is aware, or should reasonably have been aware, of a significant risk that the conduct could result in personal injury to another person; and\n\n (b) engages in the conduct despite the risk and without adequate justification.","sortOrder":1587},{"sectionNumber":"139B","sectionType":"section","heading":"Conduct of directors, employees or agents of bodies corporate","content":"139B  Conduct of directors, employees or agents of bodies corporate\n\n (1) If, in a proceeding under this Part or the Australian Consumer Law in respect of conduct that is engaged in by a body corporate and to which this Part or the Australian Consumer Law applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show:\n\n (a) that a director, employee or agent of the body corporate engaged in that conduct within the scope of the actual or apparent authority of the director, employee or agent; and\n\n (b) that the director, employee or agent had that state of mind.\n\n (2) Any conduct engaged in on behalf of a body corporate:\n\n (a) by a director, employee or agent of the body corporate within the scope of the actual or apparent authority of the director, employee or agent; or\n\n (b) by any other person:\n\n (i) at the direction of a director, employee or agent of the body corporate; or\n\n (ii) with the consent or agreement (whether express or implied) of such a director, employee or agent;\n\n  if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;\n\nis taken, for the purposes of this Part or the Australian Consumer Law, to have been engaged in also by the body corporate.","sortOrder":1588},{"sectionNumber":"139C","sectionType":"section","heading":"Conduct of employees or agents of persons other than bodies corporate","content":"139C  Conduct of employees or agents of persons other than bodies corporate\n\n (1) If, in a proceeding under this Part or the Australian Consumer Law in respect of conduct that is engaged in by a person (the principal) other than a body corporate and to which this Part or the Australian Consumer Law applies, it is necessary to establish the state of mind of the principal, it is sufficient to show:\n\n (a) that an employee or agent of the principal engaged in that conduct within the scope of the actual or apparent authority of the employee or agent; and\n\n (b) the employee or agent had that state of mind.\n\n (2) Any conduct engaged in on behalf of a person (the principal) other than a body corporate:\n\n (a) by an employee or agent of the principal within the scope of the actual or apparent authority of the employee or agent; or\n\n (b) by any other person:\n\n (i) at the direction of an employee or agent of the principal; or\n\n (ii) with the consent or agreement (whether express or implied) of such an employee or agent;\n\n  if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;\n\nis taken, for the purposes of this Part or the Australian Consumer Law, to have been engaged in also by the principal.\n\n (3) If:\n\n (a) a person other than a body corporate is convicted of an offence; and\n\n (b) subsection (1) or (2) applied in relation to the conviction on the basis that the person was the principal mentioned in that subsection; and\n\n (c) the person would not have been convicted of the offence if that subsection had not been enacted;\n\nthe person is not liable to be punished by imprisonment for that offence.","sortOrder":1589},{"sectionNumber":"139D","sectionType":"section","heading":"Enforcement and recovery of certain fines","content":"139D  Enforcement and recovery of certain fines\n\n (1) If a person defaults in paying a fine that has been imposed on the person for an offence against a provision of Chapter 4 of the Australian Consumer Law or section 137G of this Act, a court may:\n\n (a) exercise any power that the court has apart from this section in relation to the enforcement and recovery of the fine; or\n\n (b) make an order (the enforcement order), on the application of the Commonwealth Minister or the Commission, declaring that the fine is to have effect, and may be enforced, as if it were a judgment debt under a judgment of the court.\n\n (2) If:\n\n (a) the court makes an enforcement order; and\n\n (b) the person gives security for the payment of the fine;\n\nthe court must cancel the enforcement order.\n\n (3) If the court makes an enforcement order, the court may, at any time before the enforcement order is executed:\n\n (a) allow the person a specified time in which to pay the fine; or\n\n (b) allow the person to pay the fine by specified instalments.\n\n (4) If the court allows the person a specified time in which to pay the fine:\n\n (a) the enforcement order must not be executed unless the person fails to pay the fine within that time; and\n\n (b) if the person pays the fine within that time—the enforcement order is taken to have been discharged.\n\n (5) If the court allows the person to pay the fine by specified instalments:\n\n (a) the enforcement order must not be executed unless the person fails to pay such an instalment at or before the time when it becomes payable; and\n\n (b) if the person pays all those instalments—the enforcement order is taken to have been discharged.\n\n (6) The term of a sentence of imprisonment imposed by an order under a law of a State or a Territory applied by section 15A of the Crimes Act 1914 (including an order described in subsection 15A(1AA) of that Act) in respect of a fine is to be calculated at the rate of one day’s imprisonment for each $25 of the amount of the fine that is from time to time unpaid.","sortOrder":1590},{"sectionNumber":"139DA","sectionType":"section","heading":"Application of section 229 of the Australian Consumer Law to a person other than a body corporate","content":"139DA  Application of section 229 of the Australian Consumer Law to a person other than a body corporate\n\n  If, as a result of the operation of Part 2.4 of the Criminal Code, a person other than a body corporate is:\n\n (a) convicted of an offence (the relevant offence) against subsection 229(1) of the Australian Consumer Law; or\n\n (b) convicted of an offence (the relevant offence) against section 11.4 of the Criminal Code in relation to an offence referred to in subsection 229(1) of the Australian Consumer Law;\n\nthe relevant offence is taken to be punishable on conviction by a fine not exceeding $550.","sortOrder":1591},{"sectionNumber":"139E","sectionType":"section","heading":"Cessation of enforcement orders etc.","content":"139E  Cessation of enforcement orders etc.\n\n (1) Subject to this section, an enforcement order in relation to a fine ceases to have effect:\n\n (a) on payment of the fine; or\n\n (b) if the fine is not paid—on full compliance with the enforcement order.\n\n (2) Subject to this section, if a person is required under one or more enforcement orders to serve periods of imprisonment, those periods must be served consecutively.\n\n (3) If:\n\n (a) a person would, but for this subsection, be required under one or more enforcement orders that relate to 3 or more fines to serve periods of imprisonment that in aggregate are longer than 3 years; and\n\n (b) those fines were imposed (whether or not in the same proceedings) for offences constituted by contraventions:\n\n (i) that occurred within a period of 2 years; and\n\n (ii) that appear to a court to have been of the same nature or of a substantially similar nature;\n\nthe court must, by order, declare that the enforcement order or orders cease to have effect in respect of those fines after the person has served an aggregate of 3 years’ imprisonment.\n\n (4) If subsection (3) would, but for this subsection, apply to a person with respect to offences committed by the person within 2 or more overlapping periods of 2 years, the court must make an order under that subsection in relation to only one of those periods.\n\n (5) The order under subsection (4) must relate to the period which would give the person the maximum benefit under subsection (3).\n\n (6) For the purposes of subsection (4), the court may vary or revoke an order made under subsection (3).","sortOrder":1592},{"sectionNumber":"139F","sectionType":"section","heading":"Compensation for acquisition of property","content":"139F  Compensation for acquisition of property\n\n (1) If the operation of this Part (including Schedule 2 as applied by this Part) would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.\n\n (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n\n (3) In this section:\n\nacquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\njust terms has the same meaning as in paragraph 51(xxxi) of the Constitution.","sortOrder":1593},{"sectionNumber":"139G","sectionType":"section","heading":"Regulations","content":"139G  Regulations\n\n (1) The Governor‑General may make regulations prescribing matters:\n\n (a) required or permitted by Schedule 2 to be prescribed; or\n\n (b) necessary or convenient to be prescribed for carrying out or giving effect to that Schedule.\n\n (2) Before the Governor‑General makes a regulation for the purposes of paragraph 25(n) of Schedule 2 prescribing a kind of term of a contract, or a kind of effect that such a term has, the Commonwealth Minister must take into consideration:\n\n (a) the detriment that a term of that kind would cause to consumers; and\n\n (aa) the detriment that a term of that kind would cause to persons who carry on a business and employ fewer than 100 persons; and\n\n (b) the impact on business generally of prescribing that kind of term or effect; and\n\n (c) the public interest.\n\n (2A) Before the Governor‑General makes a regulation prescribing a law for the purposes of subsection 28(4) of Schedule 2:\n\n (a) the Commonwealth Minister must be satisfied that the law provides enforceable protections for persons who carry on a business and employ fewer than 100 persons that are equivalent to the protections provided by Part 2‑3, together with Parts 5‑1 and 5‑2, of Schedule 2; and\n\n (b) the Commonwealth Minister must take into consideration:\n\n (i) any detriment to businesses of that kind resulting from prescribing the law; and\n\n (ii) the impact on business generally resulting from prescribing the law; and\n\n (iii) the public interest.\n\n (3) Before the Governor‑General makes a regulation under subsection (1) for the purposes of paragraph 65(1)(a) of Schedule 2 in relation to supplies of a particular kind, the Commonwealth Minister must be satisfied that:\n\n (a) the laws of the Commonwealth; and/or\n\n (b) the laws of the States and Territories;\n\nadequately provide for consumer rights in relation to supplies of that kind.\n\n (4) The regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of Schedule 2 or of specified provisions of Schedule 2:\n\n (a) conduct engaged in by a specified organisation or body that performs functions in relation to the marketing of primary products; or\n\n (b) any of the following:\n\n (i) a specified contract or proposed contract made;\n\n (ii) contracts included in a specified class of contracts made;\n\n (iii) specified conduct entered into;\n\n  pursuant to or for the purposes of a specified agreement, arrangement or understanding between the Government of Australia and the Government of a foreign country; or\n\n (c) prescribed conduct engaged in in the course of a business carried on by the Commonwealth or by a prescribed authority of the Commonwealth.\n\n (5) Strict compliance with a form of application or notice prescribed for the purposes of Schedule 2 is not, and is taken never to have been, required and substantial compliance is, and is taken always to have been, sufficient.","sortOrder":1594},{"sectionNumber":"Part XIAA","sectionType":"part","heading":"Application of the Australian Consumer Law as a law of a State or Territory","content":"Part XIAA—Application of the Australian Consumer Law as a law of a State or Territory","sortOrder":1595},{"sectionNumber":"140","sectionType":"section","heading":"Definitions","content":"140  Definitions\n\n  In this Part:\n\napplication law means:\n\n (a) a law of a participating jurisdiction that applies the applied Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or\n\n (b) any regulations or other legislative instrument made under a law described in paragraph (a); or\n\n (c) the applied Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications.\n\napplied Australian Consumer Law means (according to the context):\n\n (a) the text described in section 140B; or\n\n (b) that text, applying as a law of a participating jurisdiction, either with or without modifications.\n\napply, in relation to the applied Australian Consumer Law, means apply the applied Australian Consumer Law by reference:\n\n (a) as in force from time to time; or\n\n (b) as in force at a particular time.\n\nCommonwealth entity means:\n\n (a) an authority of the Commonwealth; or\n\n (b) an officer of the Commonwealth.\n\nimposes a duty has the meaning given by section 140G.\n\nmodifications includes additions, omissions and substitutions.\n\nofficer, in relation to the Commonwealth, includes the following:\n\n (a) a Minister;\n\n (b) a person who holds:\n\n (i) an office established by or under an Act; or\n\n (ii) an appointment made under an Act; or\n\n (iii) an appointment made by the Governor‑General or a Minister but not under an Act;\n\n (c) a person who is a member or officer of an authority of the Commonwealth;\n\n (d) a person who is:\n\n (i) in the service or employment of the Commonwealth, or of an authority of the Commonwealth; or\n\n (ii) employed or engaged under an Act.\n\nparticipating jurisdiction means a participating State or participating Territory.\n\nparticipating 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.\n\nparticipating 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.\n\nTerritory means the Australian Capital Territory or the Northern Territory.","sortOrder":1596},{"sectionNumber":"140A","sectionType":"section","heading":"Object of this Part","content":"140A  Object of this Part\n\n  The object of this Part is to facilitate the application of the Australian Consumer Law by participating States and participating Territories.","sortOrder":1597},{"sectionNumber":"140B","sectionType":"section","heading":"The applied Australian Consumer Law","content":"140B  The applied Australian Consumer Law\n\n  The applied Australian Consumer Law consists of:\n\n (a) Schedule 2; and\n\n (b) the regulations made under section 139G of this Act.","sortOrder":1598},{"sectionNumber":"140C","sectionType":"section","heading":"Federal Court may exercise jurisdiction under application laws of Territories","content":"140C  Federal Court may exercise jurisdiction under application laws of Territories\n\n  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.","sortOrder":1599},{"sectionNumber":"140D","sectionType":"section","heading":"Exercise of jurisdiction under cross-vesting provisions","content":"140D  Exercise of jurisdiction under cross‑vesting provisions\n\n  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.","sortOrder":1600},{"sectionNumber":"140E","sectionType":"section","heading":"Commonwealth consent to conferral of functions etc. on Commonwealth entities","content":"140E  Commonwealth consent to conferral of functions etc. on Commonwealth entities\n\n (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.\n\nNote: Section 140G sets out when such a law imposes a duty on a Commonwealth entity.\n\n (2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which:\n\n (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or\n\n (b) the authorisation would otherwise exceed the legislative power of the Commonwealth.\n\n (3) The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.","sortOrder":1601},{"sectionNumber":"140F","sectionType":"section","heading":"How duty is imposed","content":"140F  How duty is imposed\n\nApplication\n\n (1) This section applies if an application law purports to impose a duty on a Commonwealth entity.\n\nNote: Section 140G sets out when such a law imposes a duty on a Commonwealth entity.\n\nState or Territory legislative power sufficient to support duty\n\n (2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:\n\n (a) imposing the duty is within the legislative powers of the State or Territory concerned; and\n\n (b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.\n\nNote: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 140E to the imposition of the duty by that law).\n\nCommonwealth legislative power sufficient to support duty but State or Territory legislative powers are not\n\n (3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.\n\n (4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.\n\n (5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:\n\n (a) is within the legislative powers of the Commonwealth; and\n\n (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.\n\n (6) Subsections (1) to (5) do not limit section 140E.","sortOrder":1602},{"sectionNumber":"140G","sectionType":"section","heading":"When an application law imposes a duty","content":"140G  When an application law imposes a duty\n\n  For the purposes of this Part, an application law imposes a duty on a Commonwealth entity if:\n\n (a) the law confers a function or power on the entity; and\n\n (b) the circumstances in which the function or power is conferred give rise to an obligation on the entity to perform the function or to exercise the power.","sortOrder":1603},{"sectionNumber":"140H","sectionType":"section","heading":"Application laws may operate concurrently with this Act","content":"140H  Application laws may operate concurrently with this Act\n\n  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.","sortOrder":1604},{"sectionNumber":"140J","sectionType":"section","heading":"No doubling-up of liabilities","content":"140J  No doubling‑up of liabilities\n\n (1) If:\n\n (a) an act or omission is an offence against this Act and is also an offence against an application law; and\n\n (b) the offender has been punished for the offence under the application law;\n\nthe offender is not liable to be punished for the offence against this Act.\n\n (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.","sortOrder":1605},{"sectionNumber":"140K","sectionType":"section","heading":"References in instruments to the Australian Consumer Law","content":"140K  References in instruments to the Australian Consumer Law\n\n (1) A reference in any instrument to the Australian Consumer Law is a reference to:\n\n (a) the Australian Consumer Law as applied under Division 2 of Part XI; and\n\n (b) the applied Australian Consumer Laws of any or all of the participating jurisdictions.\n\n (2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.","sortOrder":1606},{"sectionNumber":"Part XIA","sectionType":"part","heading":"The Competition Code","content":"Part XIA—The Competition Code","sortOrder":1607},{"sectionNumber":"150A","sectionType":"section","heading":"Definitions","content":"150A  Definitions\n\n  In this Part, unless the contrary intention appears:\n\napplication law means:\n\n (a) a law of a participating jurisdiction that applies the Competition Code, either with or without modifications, as a law of the participating jurisdiction; or\n\n (b) any regulations or other legislative instrument made under a law described in paragraph (a); or\n\n (c) the Competition Code, applying as a law of the participating jurisdiction, either with or without modifications.\n\napply, in relation to the Competition Code, means apply the Competition Code by reference:\n\n (a) as in force from time to time; or\n\n (b) as in force at a particular time.\n\nCommonwealth entity means:\n\n (a) an authority of the Commonwealth; or\n\n (b) an officer of the Commonwealth.\n\nCompetition Code means (according to the context):\n\n (a) the text described in section 150C; or\n\n (b) that text, applying as a law of a participating jurisdiction, either with or without modifications.\n\nmodifications includes additions, omissions and substitutions.\n\nofficer, in relation to the Commonwealth, includes the following:\n\n (a) a Minister;\n\n (b) a person who holds:\n\n (i) an office established by or under an Act;\n\n (ii) an appointment made under an Act;\n\n (iii) an appointment made by the Governor‑General or a Minister but not under an Act;\n\n (c) a person who is a member or officer of an authority of the Commonwealth;\n\n (d) a person who is in the service or employment of the Commonwealth, or of an authority of the Commonwealth, or is employed or engaged under an Act.\n\nparticipating jurisdiction means a participating State or Territory.\n\nparticipating State means a State that is a party to the National Competition Policy Agreement and applies the Competition Code as a law of the State, either with or without modifications.\n\nparticipating Territory means a Territory that is a party to the National Competition Policy Agreement and applies the Competition Code as a law of the Territory, either with or without modifications.\n\nSchedule version of Part IV means the text that is set out in Part 1 of Schedule 1 to this Act.\n\nTerritory means the Australian Capital Territory or the Northern Territory.","sortOrder":1608},{"sectionNumber":"150B","sectionType":"section","heading":"Objects of this Part","content":"150B  Objects of this Part\n\n  The objects of this Part are:\n\n (a) to facilitate the application of the Competition Code by participating Territories; and\n\n (b) to facilitate the application of the Competition Code by participating States.","sortOrder":1609},{"sectionNumber":"150C","sectionType":"section","heading":"The Competition Code","content":"150C  The Competition Code\n\n (1) The Competition Code consists of:\n\n (a) the Schedule version of Part IV;\n\n (b) the remaining provisions of this Act (except sections 2A, 5, 6 and 172), so far as they would relate to the Schedule version if the Schedule version were substituted for Part IV;\n\n (c) the regulations under this Act, so far as they relate to any provision covered by paragraph (a) or (b).\n\n (2) For the purpose of forming part of the Competition Code, the provisions referred to in paragraphs (1)(b) and (c) are to be modified as necessary to fit in with the Schedule version of Part IV. In particular:\n\n (a) references to corporations are to include references to persons who are not corporations; and\n\n (b) paragraphs 51ABB(1)(d) to (f) and 51ABC(2)(b) are to be omitted.","sortOrder":1610},{"sectionNumber":"150D","sectionType":"section","heading":"Federal Court may exercise jurisdiction under application laws of Territories","content":"150D  Federal Court may exercise jurisdiction under application laws of Territories\n\n  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.","sortOrder":1611},{"sectionNumber":"150E","sectionType":"section","heading":"Exercise of jurisdiction under cross-vesting provisions","content":"150E  Exercise of jurisdiction under cross‑vesting provisions\n\n  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.","sortOrder":1612},{"sectionNumber":"150F","sectionType":"section","heading":"Commonwealth consent to conferral of functions etc. on Commonwealth entities","content":"150F  Commonwealth consent to conferral of functions etc. on Commonwealth entities\n\n (1) An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the Competition Code.\n\nNote: Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.\n\n (2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which:\n\n (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or\n\n (b) the authorisation would otherwise exceed the legislative power of the Commonwealth.\n\n (3) The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.","sortOrder":1613},{"sectionNumber":"150FA","sectionType":"section","heading":"How duty is imposed","content":"150FA  How duty is imposed\n\nApplication\n\n (1) This section applies if an application law purports to impose a duty on a Commonwealth entity.\n\nNote: Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.\n\nState or Territory legislative power sufficient to support duty\n\n (2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:\n\n (a) imposing the duty is within the legislative powers of the State or Territory concerned; and\n\n (b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.\n\nNote: 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).\n\nCommonwealth legislative power sufficient to support duty but State or Territory legislative powers are not\n\n (3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.\n\n (4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.\n\n (5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:\n\n (a) is within the legislative powers of the Commonwealth; and\n\n (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.\n\n (5A) To avoid doubt, neither this Act (nor any other law of the Commonwealth) imposes a duty on the Commonwealth entity to the extent to which imposing such a duty would:\n\n (a) contravene any constitutional doctrine restricting the duties that may be imposed on a Commonwealth entity; or\n\n (b) otherwise exceed the legislative power of the Commonwealth.\n\n (6) Subsections (1) to (5) do not limit section 150F.","sortOrder":1614},{"sectionNumber":"150FAA","sectionType":"section","heading":"Imposing a duty under State or Territory law","content":"150FAA  Imposing a duty under State or Territory law\n\n (1) This section:\n\n (a) applies only for the purposes of the application of the provisions of the Competition Code or another law of the Commonwealth (with or without modification) as a law of a participating State or participating Territory by a provision of an application law; and\n\n (b) does not apply for those purposes if the application law otherwise provides.\n\n (2) If the application law purports to impose a duty on a Commonwealth entity to do a particular thing, the duty is taken to be imposed by the application law to the extent to which imposing the duty:\n\n (a) is within the legislative powers of the State or Territory; and\n\n (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on a Commonwealth entity.\n\n (3) To avoid doubt, the application law does not impose the duty on the Commonwealth entity to the extent to which imposing the duty would:\n\n (a) contravene any constitutional doctrine restricting the duties that may be imposed on a Commonwealth entity; or\n\n (b) otherwise exceed the legislative powers of the State or Territory.\n\n (4) If imposing on the Commonwealth entity the duty to do that thing would:\n\n (a) contravene any constitutional doctrine restricting the duties that may be imposed on a Commonwealth entity; or\n\n (b) otherwise exceed the legislative powers of both the State or Territory and the Commonwealth;\n\nthe application law is taken instead to confer on the Commonwealth entity a power to do that thing at the discretion of the Commonwealth entity.","sortOrder":1615},{"sectionNumber":"150FB","sectionType":"section","heading":"When an application law imposes a duty","content":"150FB  When an application law imposes a duty\n\n  For the purposes of sections 150F and 150FA, an application law imposes a duty on a Commonwealth entity if:\n\n (a) the law confers a function or power on the entity; and\n\n (b) the circumstances in which the function or power is conferred give rise to an obligation on the entity to perform the function or to exercise the power.","sortOrder":1616},{"sectionNumber":"150G","sectionType":"section","heading":"Application laws may operate concurrently with this Act","content":"150G  Application laws may operate concurrently with this Act\n\n  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.","sortOrder":1617},{"sectionNumber":"150H","sectionType":"section","heading":"No doubling-up of liabilities","content":"150H  No doubling‑up of liabilities\n\n (1) If:\n\n (a) an act or omission is an offence against this Act and is also an offence against an application law; and\n\n (b) the offender has been punished for the offence under the application law;\n\nthe offender is not liable to be punished for the offence against this Act.\n\n (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.","sortOrder":1618},{"sectionNumber":"150I","sectionType":"section","heading":"References in instruments to the Competition Code","content":"150I  References in instruments to the Competition Code\n\n (1) A reference in any instrument to the Competition Code is a reference to the Competition Codes of any or all of the participating jurisdictions.\n\n (2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.","sortOrder":1619},{"sectionNumber":"150J","sectionType":"section","heading":"Authorisations etc. under this Act may relate also to Competition Code","content":"150J  Authorisations etc. under this Act may relate also to Competition Code\n\n  The validity of an authorisation, notification, determination 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.","sortOrder":1620},{"sectionNumber":"150K","sectionType":"section","heading":"Gazettal of jurisdictions that excessively modify the Code","content":"150K  Gazettal of jurisdictions that excessively modify the Code\n\n (1) If the Minister is satisfied that the laws of a participating jurisdiction have made significant modifications to the Competition Code in its application to persons within the legislative competence of the participating jurisdiction, the Minister may publish a notice in the Gazette stating that the Minister is so satisfied.\n\n (2) The Minister may, by further notice in the Gazette, revoke a notice published under subsection (1).\n\nChapter 7—Further provisions relating to particular industries etc.","sortOrder":1621},{"sectionNumber":"Part XIB","sectionType":"part","heading":"The Telecommunications Industry: Anti-competitive conduct and record-keeping rules","content":"Part XIB—The Telecommunications Industry: Anti‑competitive conduct and record‑keeping rules","sortOrder":1622},{"sectionNumber":"151AA","sectionType":"section","heading":"Simplified outline","content":"151AA  Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part sets up a special regime for regulating anti‑competitive conduct in the telecommunications industry. The regime applies in addition to Part IV.\n\n• The Part sets out the circumstances in which carriers and carriage service providers are said to engage in anti‑competitive conduct.\n\n• A carrier or carriage service provider must not engage in anti‑competitive conduct. This rule is called the competition rule.\n\n• The Commission may issue a notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in anti‑competitive conduct. The notice is called a Part A competition notice.\n\n• Proceedings for the enforcement of the competition rule (other than proceedings for injunctive relief) must not be instituted unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force at the time when the alleged conduct occurred.\n\n• The Commission may issue a notice stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule. The notice is called a Part B competition notice.\n\n• A Part B competition notice is prima facie evidence of the matters in the notice.\n\n• The Commission may make an order exempting specified conduct from the scope of the definition of anti‑competitive conduct. The order is called an exemption order.\n\n• The Commission may make record‑keeping rules that apply to carriers and carriage service providers.\n\n• Carriers and carriage service providers may be directed by the Commission to make certain reports available. The direction is called a disclosure direction.","sortOrder":1624},{"sectionNumber":"151AB","sectionType":"section","heading":"Definitions","content":"151AB  Definitions\n\n  In this Part, unless the contrary intention appears:\n\nanti‑competitive conduct has the meaning given by section 151AJ.\n\ncarriage service has the same meaning as in the Telecommunications Act 1997.\n\ncarriage service provider has the same meaning as in the Telecommunications Act 1997.\n\ncarrier has the same meaning as in the Telecommunications Act 1997.\n\ncarrier licence has the same meaning as in the Telecommunications Act 1997.\n\ncompetition notice means:\n\n (a) a Part A competition notice; or\n\n (b) a Part B competition notice.\n\ncompetition rule means the rule set out in section 151AK.\n\ncontent service has the same meaning as in the Telecommunications Act 1997.\n\ndata 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.\n\ndisclosure direction means a direction under subsection 151BUB(2), 151BUC(2), 151BUDB(2) or 151BUDC(2).\n\neligible partnership has the same meaning as in the Telecommunications Act 1997.\n\nexemption order means an order under section 151BA.\n\nfacility has the same meaning as in the Telecommunications Act 1997.\n\nFederal Court means the Federal Court of Australia.\n\nlisted carriage service has the same meaning as in the Telecommunications Act 1997.\n\nMinisterially‑directed report has the meaning given by section 151BUAA.\n\nNBN corporation has the same meaning as in the National Broadband Network Companies Act 2011.\n\nPart A competition notice means a notice issued under subsection 151AKA(1) or (2).\n\nPart B competition notice means a notice issued under subsection 151AL(1).\n\nperson includes a partnership.\n\nNote: Section 151CH sets out additional rules about partnerships.\n\nrecord‑keeping rule means a rule under section 151BU.\n\nservice provider rule has the same meaning as in the Telecommunications Act 1997.\n\ntelecommunications market has the meaning given by section 151AF.","sortOrder":1625},{"sectionNumber":"151AC","sectionType":"section","heading":"Extension to external Territories","content":"151AC  Extension to external Territories\n\n (1) This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).\n\n (2) The operation of this Part, and the other provisions of this Act so far as they relate to this Part, in relation to Norfolk Island is not affected by the amendments made by Division 1 of Part 1 of Schedule 5 to the Territories Legislation Amendment Act 2016.","sortOrder":1626},{"sectionNumber":"151AD","sectionType":"section","heading":"Continuity of partnerships","content":"151AD  Continuity of partnerships\n\n  For the purposes of this Part, a change in the composition of a partnership does not affect the continuity of the partnership.","sortOrder":1627},{"sectionNumber":"151AE","sectionType":"section","heading":"Additional operation of Part","content":"151AE  Additional operation of Part\n\n (1) Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.\n\n (2) This Part has, by force of this subsection, the effect it would have if:\n\n (a) any references in this Part to a carrier were, by express provision, confined to a carrier that is a corporation; and\n\n (b) any references in this Part to a carriage service provider were, by express provision, confined to a carriage service provider that is a corporation.\n\n (3) In addition to the effect that this Part has as provided by subsection (2), this Part has, by force of this subsection, the effect it would have if subsections 151AJ(2) and (3) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:\n\n (a) trade or commerce between Australia and places outside Australia; or\n\n (b) trade or commerce among the States; or\n\n (c) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or\n\n (d) the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth.","sortOrder":1628},{"sectionNumber":"151AF","sectionType":"section","heading":"Telecommunications market","content":"151AF  Telecommunications market\n\n  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:\n\n (a) carriage services;\n\n (b) goods or services for use in connection with a carriage service;\n\n (c) access to facilities;\n\n (d) content services.\n\nNote: Market has a meaning affected by section 4E.","sortOrder":1629},{"sectionNumber":"151AG","sectionType":"section","heading":"When a body corporate is related to a partnership","content":"151AG  When a body corporate is related to a partnership\n\n  For the purposes of this Part, if:\n\n (a) a carrier or a carriage service provider is a partnership; and\n\n (b) a body corporate is related to a partner in the partnership;\n\nthe body corporate is taken to be related to the carrier or carriage service provider, as the case requires.","sortOrder":1630},{"sectionNumber":"151AH","sectionType":"section","heading":"Degree of power in a telecommunications market","content":"151AH  Degree of power in a telecommunications market\n\n (1) For the purposes of this Part, if:\n\n (a) a body corporate is related to:\n\n (i) a carrier; or\n\n (ii) a carriage service provider; and\n\n (b) the body corporate has a substantial degree of power in a telecommunications market;\n\nthe carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.\n\n (2) For the purposes of this Part, if:\n\n (a) 2 or more bodies corporate are related to the one:\n\n (i) carrier; or\n\n (ii) carriage service provider; and\n\n (b) those bodies corporate together have a substantial degree of power in a telecommunications market;\n\nthe carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.\n\n (3) For the purposes of this Part, if:\n\n (a) a body corporate is related to:\n\n (i) a carrier; or\n\n (ii) a carriage service provider; and\n\n (b) the body corporate and the carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market;\n\nthe carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.\n\n (4) For the purposes of this Part, if:\n\n (a) 2 or more bodies corporate are related to:\n\n (i) a carrier; or\n\n (ii) a carriage service provider; and\n\n (b) those bodies corporate and that carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market;\n\nthe carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.\n\n (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:\n\n (a) competitors, or potential competitors, of the person or of any of those persons in that market; or\n\n (b) persons to whom or from whom the person or any of those persons supplies or acquires goods or services in that market.\n\n (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:\n\n (a) any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the person has or may have, or that the persons have or may have, with another party or parties; and\n\n (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.\n\n (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.\n\n (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:\n\n (a) the person does not substantially control the market; or\n\n (b) the person does not have absolute freedom from constraint by the conduct of:\n\n (i) competitors, or potential competitors, of the person in that market; or\n\n (ii) persons to whom or from whom the person supplies or acquires goods or services in that market.\n\n (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.\n\n (7) In this Part:\n\n (a) a reference to power is a reference to market power; and\n\n (b) a reference to power in relation to, or to conduct in, a telecommunications market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.","sortOrder":1631},{"sectionNumber":"151AI","sectionType":"section","heading":"Interpretation of Part IV, IVA or VII not affected by this Part","content":"151AI  Interpretation of Part IV, IVA or VII not affected by this Part\n\n  In determining the meaning of a provision of Part IV, IVA or VII, the provisions of this Part are to be ignored.","sortOrder":1632},{"sectionNumber":"151AJ","sectionType":"section","heading":"Anti-competitive conduct","content":"151AJ  Anti‑competitive conduct\n\n (1) This section sets out the 2 circumstances in which:\n\n (a) a carrier; or\n\n (b) a carriage service provider;\n\nis said to engage in anti‑competitive conduct for the purposes of this Part.\n\n (2) A carrier or carriage service provider engages in anti‑competitive conduct if the carrier or carriage service provider:\n\n (a) has a substantial degree of power in a telecommunications market; and\n\n (b) either:\n\n (i) takes advantage of that power in that or any other market with the effect, or likely effect, of substantially lessening competition in that or any other telecommunications market; or\n\n (ii) takes advantage of that power in that or any other market, and engages in other conduct on one or more occasions, with the combined effect, or likely combined effect, of substantially lessening competition in that or any other telecommunications market.\n\n (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:\n\n (a) any conduct of the carrier or carriage service provider that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the carrier or carriage service provider of supplying such goods or services; and\n\n (b) the reasons for that conduct.\n\n (3) A carrier or carriage service provider engages in anti‑competitive conduct if the carrier or carriage service provider:\n\n (a) engages in conduct in contravention of section 45AJ, 45AK, 45, 47 or 48; and\n\n (b) the conduct relates to a telecommunications market.\n\n (4) For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation, in determining whether conduct of the carrier or provider is in contravention of section 45AJ, 45AK, 45, 47 or 48, the following assumptions are to be made:\n\n (a) the assumption that each reference to a corporation in:\n\n (i) those sections; and\n\n (ii) sections 45AL and 45AM;\n\n  included a reference to a carrier, or a carriage service provider, that is not a corporation;\n\n (b) the assumption that subsections 45(8) and 47(12) and section 45AN had not been enacted.\n\n (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, 47 or 48, the following assumptions are to be made:\n\n (a) the assumption that subparagraphs 45(3)(a)(ii) and (b)(ii) had not been enacted;\n\n (b) the assumption that the expression “or a body corporate related to the corporation” were omitted from paragraph 45(4)(b);\n\n (e) the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from each of the following provisions:\n\n (i) paragraphs 47(2)(d) and (e);\n\n (ii) paragraphs 47(3)(d) and (e);\n\n (iii) subparagraphs 47(8)(a)(i) and (ii);\n\n (f) the assumption that the expression “not being a body corporate related to the corporation” were omitted from subsections 47(6) and (7) and paragraphs 47(8)(c) and 47(9)(d);\n\n (g) the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from paragraphs 47(9)(a) and (b);\n\n (h) the assumption that the expression “, or by a body corporate related to the corporation,” were omitted from paragraph 47(10)(b);\n\n (i) the assumption that the expression “or any body corporate related to that corporation” were omitted from subparagraph 47(13)(b)(i);\n\n (j) the assumption that the expression “or any body corporate related to either of those corporations” were omitted from paragraph 47(13)(c) and the expression “any body corporate related to the last‑mentioned corporation” were substituted;\n\n (k) the assumption that the expression “where the second person mentioned in that paragraph is a corporation” were omitted from subsection 96(2).\n\n (6) A person may be taken to have engaged in anti‑competitive conduct even if the conduct involves the exercise, or proposed exercise, of an existing legal or equitable right (whether under a contract or otherwise).\n\n (7) Despite anything in this section, a carrier or carriage service provider does not engage in anti‑competitive conduct if that conduct does not constitute a contravention of section 45AJ, 45AK, 45, 47 or 48:\n\n (a) because an authorisation is in force; or\n\n (b) because of the operation of subsection 45AL(1) or 45(8A) or section 93; or\n\n (c) because of the operation of subsection 45(9); or\n\n (e) because of the operation of section 45AM.\n\n (8) A carrier or carriage service provider does not engage in anti‑competitive conduct if that conduct occurred before 1 July 1997.\n\n (9) Despite anything in this section, a person does not engage in anti‑competitive conduct if, under section 577BA of the Telecommunications Act 1997, the conduct is authorised for the purposes of subsection 51(1) of this Act.\n\n (10) Despite anything in this section, a person does not engage in anti‑competitive conduct if, under section 151DA, the conduct is authorised for the purposes of subsection 51(1).","sortOrder":1634},{"sectionNumber":"151AK","sectionType":"section","heading":"The competition rule","content":"151AK  The competition rule\n\n (1) A carrier or carriage service provider must not engage in anti‑competitive conduct.\n\n (2) For the purposes of this Part, the rule set out in subsection (1) is to be known as the competition rule.\n\nNote: For enforcement of the competition rule, see Division 7.","sortOrder":1635},{"sectionNumber":"151AKA","sectionType":"section","heading":"Part A competition notices","content":"151AKA  Part A competition notices\n\nParticular anti‑competitive conduct\n\n (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.\n\nKind of anti‑competitive conduct\n\n (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.\n\nPart A competition notice\n\n (3) A notice under subsection (1) or (2) is to be known as a Part A competition notice.\n\nPart A competition notices under subsection (2)\n\n (4) For the purposes of this Part, a kind of anti‑competitive conduct described in a Part A competition notice under subsection (2) is taken to be conduct of a kind dealt with in the notice.\n\n (5) To avoid doubt, a Part A competition notice under subsection (2) is not required to specify any instance of anti‑competitive conduct.\n\n (6) In deciding how to describe a kind of anti‑competitive conduct in a Part A competition notice under subsection (2), the Commission may have regard to:\n\n (a) whether the carrier or carriage service provider concerned could, by varying its conduct, continue to engage in anti‑competitive conduct and avoid proceedings against it under one or more provisions of Division 7; and\n\n (b) any other matters that the Commission thinks are relevant.\n\nThreshold for issuing Part A competition notices\n\n (7) The Commission may issue a Part A competition notice under subsection (1) that specifies an instance of anti‑competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in that instance of anti‑competitive conduct.\n\n (8) The Commission may issue a Part A competition notice under subsection (2) that describes a kind of anti‑competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in at least one instance of anti‑competitive conduct of that kind.\n\nProcedural fairness\n\n (9) The Commission is not required to observe any requirements of procedural fairness in relation to the issue of a Part A competition notice.\n\nNote: For the effect of a Part A competition notice, see subsections 151BY(3), 151CB(3), 151CC(3) and 151CE(5).","sortOrder":1638},{"sectionNumber":"151AL","sectionType":"section","heading":"Part B competition notices","content":"151AL  Part B competition notices\n\n (1) The Commission may issue a written notice:\n\n (a) stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule; and\n\n (b) setting out particulars of that contravention.\n\n (2) A notice under subsection (1) is to be known as a Part B competition notice.\n\nThreshold for issuing Part B competition notices\n\n (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.\n\nNotice may be issued after proceedings have been instituted\n\n (4) To avoid doubt, a Part B competition notice may be issued even if any relevant proceedings under Division 7 have been instituted.\n\nNote: For the effect of a Part B competition notice, see subsection 151AN(1).","sortOrder":1639},{"sectionNumber":"151AM","sectionType":"section","heading":"Competition notice to be given to carrier or carriage service provider","content":"151AM  Competition notice to be given to carrier or carriage service provider\n\n  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.","sortOrder":1640},{"sectionNumber":"151AN","sectionType":"section","heading":"Evidentiary effect of competition notice","content":"151AN  Evidentiary effect of competition notice\n\n (1) In any proceedings under, or arising out of, this Part, a Part B competition notice is prima facie evidence of the matters in the notice.\n\n (2) A document purporting to be a competition notice must, unless the contrary is established, be taken to be a competition notice and to have been properly issued.\n\n (3) The Commission may certify that a document is a copy of a competition notice.\n\n (4) This section applies to the certified copy as if it were the original.","sortOrder":1641},{"sectionNumber":"151AO","sectionType":"section","heading":"Duration of Part A competition notice","content":"151AO  Duration of Part A competition notice\n\n (1) A Part A competition notice comes into force:\n\n (a) when it is issued; or\n\n (b) if the notice specifies a later time—at that later time;\n\nand, unless sooner revoked, remains in force until the end of the period specified in the notice. The period must not be longer than 12 months.\n\n (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.","sortOrder":1642},{"sectionNumber":"151AOA","sectionType":"section","heading":"Variation of competition notice","content":"151AOA  Variation of competition notice\n\n (1) If a competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice so long as the variation is of a minor nature.\n\n (2) If a Part A competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice by omitting the time at which the notice is expressed to come into force and substituting a later time.\n\n (3) If a competition notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation.","sortOrder":1643},{"sectionNumber":"151AOB","sectionType":"section","heading":"Revocation of competition notice","content":"151AOB  Revocation of competition notice\n\n (1) The Commission may revoke a competition notice.\n\n (2) If a competition notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the notice has been revoked.","sortOrder":1644},{"sectionNumber":"151AP","sectionType":"section","heading":"Guidelines","content":"151AP  Guidelines\n\n (1) In deciding whether to issue a competition notice, the Commission must have regard to:\n\n (a) any guidelines in force under subsection (2); and\n\n (b) such other matters as the Commission considers relevant.\n\n (2) The Commission must, by written instrument, formulate guidelines for the purposes of subsection (1).\n\n (3) Guidelines under subsection (2) must address the appropriateness of the Commission issuing a competition notice as opposed to the Commission taking other action under this Act.\n\n (4) The Commission must take all reasonable steps to ensure that guidelines under subsection (2) comply with subsection (3) within 12 months after the commencement of this subsection.","sortOrder":1645},{"sectionNumber":"151AQ","sectionType":"section","heading":"Commission to act expeditiously","content":"151AQ  Commission to act expeditiously\n\n (1) If the Commission has reason to suspect that a carrier or carriage service provider has contravened, or is contravening, the competition rule, the Commission must act expeditiously in deciding whether to issue a competition notice in relation to that contravention.\n\n (2) A failure to comply with subsection (1) does not affect the validity of a competition notice.","sortOrder":1646},{"sectionNumber":"151AQA","sectionType":"section","heading":"Stay of proceedings relating to competition notices","content":"151AQA  Stay of proceedings relating to competition notices\n\n (1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision to issue a competition notice.\n\n (2) If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application. However, this subsection does not apply to an order under subsection (3).\n\n (3) If:\n\n (a) either:\n\n (i) a person applies to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision to issue a competition notice; or\n\n (ii) a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice; and\n\n (b) any relevant proceedings have been instituted under Division 7 of this Part;\n\nthe 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.\n\n (4) If:\n\n (a) a person applies to the Federal Circuit and Family Court of Australia (Division 2) under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision to issue a competition notice; and\n\n (b) any relevant proceedings have been instituted under Division 7 of this Part;\n\nthe Federal Circuit and Family Court of Australia (Division 2) or a Judge of the Court may, by order, on such conditions as the Court or the Judge thinks fit, stay those proceedings.","sortOrder":1647},{"sectionNumber":"151AQB","sectionType":"section","heading":"Advisory notices","content":"151AQB  Advisory notices\n\nIssue of advisory notice\n\n (1) The Commission may give a carrier or carriage service provider a written notice (an advisory notice) advising the carrier or provider of the action it should take, or consider taking, in order to ensure that it does not engage, or continue to engage, in anti‑competitive conduct.\n\n (2) The Commission does not have a duty to consider whether to issue an advisory notice in relation to:\n\n (a) a particular instance of anti‑competitive conduct; or\n\n (b) a particular kind of anti‑competitive conduct;\n\nbefore it issues a Part A competition notice in relation to that instance or kind of conduct.\n\nNature of advisory notice\n\n (3) An advisory notice is an instrument of an advisory character.\n\nVarying or revoking advisory notice\n\n (5) The Commission may vary or revoke an advisory notice.\n\n (6) If an advisory notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation.\n\n (7) If an advisory notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the advisory notice has been revoked.\n\nPublication of advisory notice\n\n (8) If the Commission is satisfied that:\n\n (a) the publication of an advisory notice would result, or be likely to result, in a benefit to the public; and\n\n (b) that benefit would outweigh any substantial prejudice to the commercial interests of a person that would result, or be likely to result, if the advisory notice were published;\n\nthe Commission may publish the advisory notice in such manner as it thinks fit.","sortOrder":1648},{"sectionNumber":"151AR","sectionType":"section","heading":"Register of competition notices","content":"151AR  Register of competition notices\n\n (1) The Commission must keep a Register in relation to competition notices.\n\n (2) The Register must include particulars of all competition notices (including notices that have expired).\n\n (3) The Register may be maintained by electronic means.\n\n (4) A person may, on payment of the fee (if any) specified in the regulations:\n\n (a) inspect the Register; and\n\n (b) make a copy of, or take extracts from, the Register.\n\n (5) For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.\n\n (6) If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:\n\n (a) on a data processing device; or\n\n (b) by way of electronic transmission.","sortOrder":1649},{"sectionNumber":"151AS","sectionType":"section","heading":"Exemption orders","content":"151AS  Exemption orders\n\n (1) A person may apply to the Commission for an order exempting specified conduct of the person from the scope of section 151AJ (which deals with anti‑competitive conduct). The order is called an exemption order.\n\n (2) An exemption order is not invalid only because the conduct specified in the order is conduct of a kind that, apart from the order, is outside the scope of section 151AJ (which deals with anti‑competitive conduct).","sortOrder":1651},{"sectionNumber":"151AT","sectionType":"section","heading":"Form of application","content":"151AT  Form of application\n\n  An application for an exemption order must be:\n\n (a) in writing; and\n\n (b) in a form approved in writing by the Commission; and\n\n (c) accompanied by the prescribed fee.","sortOrder":1652},{"sectionNumber":"151AU","sectionType":"section","heading":"Further information","content":"151AU  Further information\n\n (1) The Commission may request an applicant for an exemption order to give the Commission further information about the application.\n\n (2) The Commission may refuse to consider the application until the applicant gives the Commission the information.\n\n (3) The Commission may withdraw its request for further information, in whole or in part.","sortOrder":1653},{"sectionNumber":"151AV","sectionType":"section","heading":"Withdrawal of application","content":"151AV  Withdrawal of application\n\n  An applicant for an exemption order may withdraw the application by written notice given to the Commission.","sortOrder":1654},{"sectionNumber":"151AW","sectionType":"section","heading":"Commission must publicise receipt of applications","content":"151AW  Commission must publicise receipt of applications\n\n  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.","sortOrder":1655},{"sectionNumber":"151AX","sectionType":"section","heading":"Commission may refuse to consider application if it relates to the same conduct as an authorisation application","content":"151AX  Commission may refuse to consider application if it relates to the same conduct as an authorisation application\n\n (1) This section applies if:\n\n (a) the Commission receives, or has received, an application for an exemption order; and\n\n (b) the Commission receives, or has received, an application for an authorisation under Division 1 of Part VII; and\n\n (c) the application for the exemption order and the application for the authorisation relate to the same conduct.\n\n (2) The Commission may refuse to:\n\n (a) consider the application for the exemption order; or\n\n (b) convene a conference under section 151AZ to discuss the application for the exemption order;\n\nuntil:\n\n (c) the Commission has made a determination under section 90 in relation to the application for the authorisation; or\n\n (d) if the Commission makes such a determination—the expiry of the time limit allowed for a person to apply to the Tribunal for a review of the determination; or\n\n (e) if a person applies to the Tribunal for a review of the determination—the review (including any court proceedings arising out of the review) is finalised.","sortOrder":1656},{"sectionNumber":"151AY","sectionType":"section","heading":"Commission may refuse to consider application if it relates to the same conduct as a Part VII notification","content":"151AY  Commission may refuse to consider application if it relates to the same conduct as a Part VII notification\n\n (1) This section applies if:\n\n (a) the Commission receives, or has received, an application for an exemption order; and\n\n (b) the Commission receives, or has received, a notice under subsection 93(1) or 93AB(1A) or (1); and\n\n (c) the application for the exemption order and the notice relate to the same conduct.\n\n (2) The Commission may refuse to:\n\n (a) consider the application for the exemption order; or\n\n (b) convene a conference under section 151AZ to discuss the application for the exemption order;\n\nuntil:\n\n (c) the Commission decides whether or not to give a notice under subsection 93(3) or (3A) or 93AC(1) or (2); or\n\n (d) if the Commission gives such a notice—the expiry of the time limit allowed for a person to apply to the Tribunal for review of the decision; or\n\n (e) if a person applies to the Tribunal for a review of the decision—the review (including any court proceedings arising out of the review) is finalised.","sortOrder":1657},{"sectionNumber":"151AZ","sectionType":"section","heading":"Commission may convene conference to discuss application","content":"151AZ  Commission may convene conference to discuss application\n\n (1) If the Commission receives an application for an exemption order, the Commission may convene a conference to discuss the application.\n\n (2) If the Commission decides to convene a conference, the Commission must give:\n\n (a) the applicant (or a representative of the applicant); and\n\n (b) any other persons whom the Commission considers interested;\n\na reasonable opportunity to attend and take part in the conference.\n\n (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.","sortOrder":1658},{"sectionNumber":"151BA","sectionType":"section","heading":"Commission must grant or reject application","content":"151BA  Commission must grant or reject application\n\n  If the Commission receives an application for an exemption order, the Commission must either:\n\n (a) make the order; or\n\n (b) refuse to make the order.","sortOrder":1659},{"sectionNumber":"151BB","sectionType":"section","heading":"Commission to give opportunity for submissions","content":"151BB  Commission to give opportunity for submissions\n\n  Before making an exemption order, the Commission must give:\n\n (a) the applicant; and\n\n (b) any other person whom the Commission considers interested;\n\na reasonable opportunity to make submissions to the Commission about the order.","sortOrder":1660},{"sectionNumber":"151BC","sectionType":"section","heading":"Criteria for making exemption order","content":"151BC  Criteria for making exemption order\n\n (1) The Commission must not make an exemption order in relation to particular conduct of a person unless it is satisfied that:\n\n (a) both:\n\n (i) the conduct will result, or is likely to result, in a benefit to the public; and\n\n (ii) that benefit outweighs, or will outweigh, the detriment to the public constituted by any lessening of competition that will result, or is likely to result, from engaging in the conduct; or\n\n (b) the conduct is not anti‑competitive conduct.\n\n (2) In determining whether the Commission is satisfied about the matters referred to in paragraph (1)(a), the Commission may have regard to the following matters:\n\n (a) the extent to which the conduct relates to the supply of goods or services on favourable terms and conditions to:\n\n (i) a financially disadvantaged individual; or\n\n (ii) an individual who is disadvantaged on health grounds; or\n\n (iii) a registered charity; or\n\n (iiia) a community organisation that is a not‑for‑profit entity and is not a charity; or\n\n (iv) an educational institution; or\n\n (v) a health facility;\n\n (b) the extent to which the conduct relates to the supply of goods or services for:\n\n (i) community, charitable or educational purposes; or\n\n (ii) the promotion of health or safety;\n\n  on favourable terms and conditions;\n\n (c) the need to satisfy any applicable universal service obligation;\n\n (d) the extent to which the conduct prevents or reduces, or is likely to prevent or reduce, pollution or other forms of degradation of environmental amenity;\n\n (e) the extent to which the conduct contributes, or is likely to contribute, to technical innovation, or the development of new goods or services, by Australian industry.\n\n (3) Subsection (2) does not, by implication, limit the matters to which the Commission may have regard.\n\n (6) In this section:\n\nenvironment includes all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings.","sortOrder":1661},{"sectionNumber":"151BD","sectionType":"section","heading":"Notification of decision","content":"151BD  Notification of decision\n\n (1) If the Commission makes an exemption order, the Commission must give the applicant a written notice setting out the order and the reasons for the order.\n\n (2) If the Commission refuses to make an exemption order, the Commission must give the applicant a written notice stating that the order has been refused and setting out the reasons for the refusal.","sortOrder":1662},{"sectionNumber":"151BE","sectionType":"section","heading":"Duration of exemption order may be limited","content":"151BE  Duration of exemption order may be limited\n\n  An exemption order may be expressed to be in force for a period specified in the order.","sortOrder":1663},{"sectionNumber":"151BF","sectionType":"section","heading":"Conditions of exemption order","content":"151BF  Conditions of exemption order\n\n  An exemption order may be expressed to be subject to such conditions as are specified in the order.","sortOrder":1664},{"sectionNumber":"151BG","sectionType":"section","heading":"Revocation of exemption order","content":"151BG  Revocation of exemption order\n\n (1) If:\n\n (a) an exemption order is in force in relation to a person; and\n\n (b) the Commission is satisfied that:\n\n (i) the order was made on the basis of information that was false or misleading in a material particular; or\n\n (ii) a condition to which the order is subject has been contravened; or\n\n (iii) there has been a material change of circumstances since the order was made;\n\nthe Commission may revoke the order.\n\n (2) The Commission must not revoke an exemption order unless the Commission has first:\n\n (a) published a draft notice of revocation and invited people to make submissions to the Commission on the draft notice; and\n\n (b) considered any submissions that were received within the time limit specified by the Commission when it published the draft notice.\n\n (3) The Commission may make a further exemption order under section 151BA in substitution for the revoked order.\n\n (4) If the Commission revokes an exemption order relating to a person, the Commission must give the person a written notice stating that the order has been revoked and setting out the reasons for the revocation.\n\n (5) A revocation of an exemption order takes effect:\n\n (a) at the time when notice of the revocation is given; or\n\n (b) if a later time is specified in the notice of the revocation—at that later time.","sortOrder":1665},{"sectionNumber":"151BH","sectionType":"section","heading":"Register of exemption orders","content":"151BH  Register of exemption orders\n\n (1) The Commission must keep a Register in relation to exemption orders.\n\n (2) The Register must include the following:\n\n (a) particulars of all exemption orders (including orders that have expired);\n\n (b) applications for exemption orders received by the Commission (including applications that have been withdrawn);\n\n (c) particulars of decisions refusing to make exemption orders;\n\n (d) particulars of decisions revoking, or refusing to revoke, exemption orders;\n\n (e) particulars of the Commission’s reasons for making exemption orders.\n\n (3) Despite subsection (2), the Register must not set out information covered by subsection (2) if the disclosure of the information could reasonably be expected to prejudice substantially the commercial interests of the person, or any of the persons, to whom the information relates.\n\n (4) The Register may be maintained by electronic means.\n\n (5) A person may, on payment of the fee (if any) specified in the regulations:\n\n (a) inspect the Register; and\n\n (b) make a copy of, or take extracts from, the Register.\n\n (6) For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.\n\n (7) If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:\n\n (a) on a data processing device; or\n\n (b) by way of electronic transmission.","sortOrder":1666},{"sectionNumber":"151BJ","sectionType":"section","heading":"Conduct includes proposed conduct","content":"151BJ  Conduct includes proposed conduct\n\n  A reference in this Division to conduct includes a reference to proposed conduct.","sortOrder":1668},{"sectionNumber":"151BU","sectionType":"section","heading":"Commission may make record-keeping rules","content":"151BU  Commission may make record‑keeping rules\n\n (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.\n\nNote 1: Carriers and carriage service providers may be specified by name, by inclusion in a specified class or in any other way.\n\nNote 2: For enforcement of the record‑keeping rules, see Division 7.\n\n (2) The rules may specify the manner and form in which the records are to be kept.\n\n (2A) The rules may specify the manner and form in which reports are to be prepared.\n\n (2B) The rules may provide for:\n\n (a) the preparation of reports as and when required by the Commission; or\n\n (b) the preparation of periodic reports relating to such regular intervals as are specified in the rules.\n\n (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:\n\n (a) on a specified kind of data processing device; or\n\n (b) by way of a specified kind of electronic transmission.\n\n (2D) Subsections (2), (2A), (2B) and (2C) do not limit subsection (1).\n\n (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.\n\n (4) The Commission must not exercise its powers under this section so as to require the keeping or retention of records unless the records contain, or will contain, information that is relevant to:\n\n (a) ascertaining whether the competition rule has been, or is being, complied with; or\n\n (c) the operation of this Part (other than this Division); or\n\n (d) the operation of Part XIC (which deals with access); or\n\n (da) the operation of the National Broadband Network Companies Act 2011 or regulations under that Act; or\n\n (db) the operation of Part 8 of the Telecommunications Act 1997 (which deals with local access lines); or\n\n (dc) the operation of Part 3 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with the funding of fixed wireless broadband and satellite broadband); or\n\n (dd) the operation of the Telecommunications (Regional Broadband Scheme) Charge Act 2020; or\n\n (e) the operation of Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or\n\n (f) the operation of Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with the regulation of the charges of designated Telstra successor companies).\n\n (4A) The Commission must review any rules for keeping or retaining records containing information relevant to the operation of Division 12 of this Part at least once in each of the following periods:\n\n (a) the period of 1 year after the commencement of this subsection;\n\n (b) the period of 5 years after the completion of the previous review.\n\n (4B) In reviewing rules under subsection (4A), the Commission must have regard to:\n\n (a) whether the information is publicly available; and\n\n (b) whether consumer demand for the goods and services to which the information relates has changed; and\n\n (c) the usefulness of the information to consumers, industry, the Minister and Parliament.\n\n (5) Record‑keeping rules made before 1 July 1997 come into force on 1 July 1997.\n\n (6) This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).","sortOrder":1670},{"sectionNumber":"151BUAA","sectionType":"section","heading":"Minister may give directions to Commission","content":"151BUAA  Minister may give directions to Commission\n\n (1) The Minister may, by legislative instrument, give a direction to the Commission in relation to the exercise of its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC.\n\n (1A) The Minister may only give a direction under subsection (1) that:\n\n (a) requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC; or\n\n (b) requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC in a particular way.\n\n (1B) The Minister may, by legislative instrument, give a direction to the Commission requiring it, in the event that it receives a specified Ministerially‑directed report, to:\n\n (a) prepare a specified kind of analysis of the report; and\n\n (b) publish the analysis within a specified period after receiving the report.\n\nNote: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\n (1C) The Minister may, by legislative instrument, give a direction to the Commission requiring it, in the event that it receives a report in a specified series of Ministerially‑directed periodic reports, to:\n\n (a) prepare a specified kind of analysis of the report; and\n\n (b) publish the analysis within a specified period after receiving the report.\n\n (2) The Commission must comply with a direction under this section.\n\n (3) If:\n\n (a) a record‑keeping rule is made as a result of a direction under subsection (1); and\n\n (b) the rule requires the preparation of a report;\n\nthen:\n\n (c) the rule must contain a statement to the effect that the rule was made as a result of a Ministerial direction; and\n\n (d) a report prepared under the rule is to be known as a Ministerially‑directed report.","sortOrder":1671},{"sectionNumber":"151BUAB","sectionType":"section","heading":"Request for disclosure","content":"151BUAB  Request for disclosure\n\n (1) A person may request the Commission to exercise its powers under:\n\n (a) section 151BUA or 151BUB in relation to a particular report; or\n\n (b) section 151BUC in relation to a particular series of periodic reports.\n\n (2) The request must be in writing.\n\n (3) The Commission must consider the request.\n\n (4) However, the Commission need not consider the request if it considers that the request is frivolous, vexatious or was not made in good faith.","sortOrder":1672},{"sectionNumber":"151BUA","sectionType":"section","heading":"Commission gives access to reports","content":"151BUA  Commission gives access to reports\n\n (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.\n\nCriteria for disclosure\n\n (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:\n\n (a) promote competition in markets for listed carriage services; or\n\n (b) facilitate the operation of:\n\n (i) this Part (other than this Division); or\n\n (ii) Part XIC (which deals with access); or\n\n (iia) the National Broadband Network Companies Act 2011 or regulations under that Act; or\n\n (iib) the operation of Part 8 of the Telecommunications Act 1997 (which deals with local access lines); or\n\n (iic) the operation of Part 3 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with the funding of fixed wireless broadband and satellite broadband); or\n\n (iid) the operation of the Telecommunications (Regional Broadband Scheme) Charge Act 2020; or\n\n (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\n\n (iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with the regulation of the charges of designated Telstra successor companies);\n\nthe Commission may give the carrier or carriage service provider concerned:\n\n (c) a written notice stating that the Commission intends to make copies of the report or extracts, together with other relevant material (if any) specified in the notice, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; or\n\n (d) a written notice stating that the Commission intends to make copies of the report or extracts, together with other relevant material (if any) specified in the notice, available for inspection and purchase:\n\n (i) by such persons as are specified in the notice; and\n\n (ii) on such terms and conditions (if any) as are specified in the notice;\n\n  as soon as practicable after the end of the period specified in the notice.\n\nNote: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.\n\nPeriod specified in notice\n\n (3) The period specified in a notice under subsection (2) must run for at least 28 days after the notice was given.\n\nCriteria for giving notice\n\n (4) In deciding whether to give a notice under subsection (2), the Commission must have regard to:\n\n (a) the legitimate commercial interests of the carrier or carriage service provider concerned; and\n\n (b) such other matters as the Commission considers relevant.\n\nConsultation before giving notice\n\n (5) The Commission must not give the carrier or carriage service provider concerned a notice under subsection (2) unless the Commission has first:\n\n (a) given the carrier or carriage service provider a written notice:\n\n (i) setting out a draft version of the notice under subsection (2); and\n\n (ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and\n\n (b) considered any submission that was received within that time limit.\n\nThe time limit specified in a notice under paragraph (a) must be at least 28 days after the notice was given.\n\nPublic access\n\n (6) If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(c), the Commission:\n\n (a) must make copies of the report or extracts, together with the other material (if any) specified in the notice, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; and\n\n (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.\n\nNote: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.\n\n (7) A person must comply with a direction under paragraph (6)(b).\n\nLimited access\n\n (8) If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(d), the Commission must:\n\n (a) make copies of the report or extracts, together with the other material (if any) specified in the notice, available for inspection and purchase by the persons specified in the notice as soon as practicable after the end of the period specified in the notice; and\n\n (b) take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the notice.\n\n (9) If, in accordance with subsection (8), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the notice concerned.\n\nOffences\n\n (10) A person who contravenes subsection (7) commits an offence punishable on conviction by a fine not exceeding 20 penalty units.\n\n (11) A person who contravenes subsection (9) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.","sortOrder":1673},{"sectionNumber":"151BUB","sectionType":"section","heading":"Carrier or carriage service provider gives access to reports","content":"151BUB  Carrier or carriage service provider gives access to reports\n\n (1) This section applies to a report prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.\n\nDisclosure direction\n\n (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:\n\n (a) promote competition in markets for listed carriage services; or\n\n (b) facilitate the operation of:\n\n (i) this Part (other than this Division); or\n\n (ii) Part XIC (which deals with access); or\n\n (iia) the National Broadband Network Companies Act 2011 or regulations under that Act; or\n\n (iib) the operation of Part 8 of the Telecommunications Act 1997 (which deals with local access lines); or\n\n (iic) the operation of Part 3 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with the funding of fixed wireless broadband and satellite broadband); or\n\n (iid) the operation of the Telecommunications (Regional Broadband Scheme) Charge Act 2020; or\n\n (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\n\n (iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with the regulation of the charges of designated Telstra successor companies);\n\nthe Commission may give the carrier or carriage service provider concerned:\n\n (c) a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the direction; or\n\n (d) a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase:\n\n (i) by such persons as are specified in the direction; and\n\n (ii) on such terms and conditions (if any) as are specified in the direction;\n\n  as soon as practicable after the end of the period specified in the direction.\n\nNote: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.\n\n (3) The period specified in a direction under subsection (2) must run for at least 28 days after the direction was given.\n\n (4) A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.\n\nCriteria for giving direction\n\n (5) In deciding whether to give a direction under subsection (2), the Commission must have regard to:\n\n (a) the legitimate commercial interests of the carrier or carriage service provider concerned; and\n\n (b) such other matters as the Commission considers relevant.\n\nConsultation before giving direction\n\n (6) The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:\n\n (a) given the carrier or carriage service provider a written notice:\n\n (i) setting out a draft version of the direction; and\n\n (ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and\n\n (b) considered any submission that was received within that time limit.\n\nThe time limit specified in the notice must be at least 28 days after the notice was given.\n\nDirection to give information about availability of report\n\n (7) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that the report is, or extracts are, available for inspection and purchase.\n\n (8) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that the report is, or the extracts are, available for inspection and purchase.\n\n (9) A person must comply with a direction under subsection (7) or (8).\n\nReasonable charge\n\n (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.\n\nCompliance with terms and conditions\n\n (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.\n\nOffences\n\n (12) A person who contravenes subsection (9) commits an offence punishable on conviction by a fine not exceeding 20 penalty units.\n\n (13) A person who contravenes subsection (11) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.\n\nSection 151BUC does not limit this section\n\n (14) Section 151BUC does not limit this section.","sortOrder":1674},{"sectionNumber":"151BUC","sectionType":"section","heading":"Carrier or carriage service provider gives access to periodic reports","content":"151BUC  Carrier or carriage service provider gives access to periodic reports\n\n (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.\n\nDisclosure direction\n\n (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:\n\n (a) promote competition in markets for listed carriage services; or\n\n (b) facilitate the operation of:\n\n (i) this Part (other than this Division); or\n\n (ii) Part XIC (which deals with access); or\n\n (iia) the National Broadband Network Companies Act 2011 or regulations under that Act; or\n\n (iib) the operation of Part 8 of the Telecommunications Act 1997 (which deals with local access lines); or\n\n (iic) the operation of Part 3 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with the funding of fixed wireless broadband and satellite broadband); or\n\n (iid) the operation of the Telecommunications (Regional Broadband Scheme) Charge Act 2020; or\n\n (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\n\n (iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with the regulation of the charges of designated Telstra successor companies);\n\nthe Commission may give the carrier or carriage service provider concerned:\n\n (c) a written direction requiring it to make copies of each of those reports or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase by the public by such times as are ascertained in accordance with the direction; or\n\n (d) a written direction requiring it to make copies of each of those reports or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase:\n\n (i) by such persons as are specified in the direction; and\n\n (ii) on such terms and conditions (if any) as are specified in the direction;\n\n  by such times as are ascertained in accordance with the direction.\n\nNote 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.\n\nNote 2: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.\n\n (3) In the case of the first report in the series (or extracts from that report), the applicable time ascertained in accordance with a direction under subsection (2) must be later than the 28th day after the day on which the direction was given.\n\n (4) A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.\n\nCriteria for giving direction\n\n (5) In deciding whether to give a direction under subsection (2), the Commission must have regard to:\n\n (a) the legitimate commercial interests of the carrier or carriage service provider concerned; and\n\n (b) such other matters as the Commission considers relevant.\n\nConsultation before giving direction\n\n (6) The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:\n\n (a) given the carrier or carriage service provider a written notice:\n\n (i) setting out a draft version of the direction; and\n\n (ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and\n\n (b) considered any submission that was received within that time limit.\n\nThe time limit specified in the notice must be at least 28 days after the notice was given.\n\nDirection to give information about availability of reports\n\n (7) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that each of those reports is, or extracts are, available for inspection and purchase.\n\n (8) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that each of those reports is, or the extracts are, available for inspection and purchase.\n\n (9) A person must comply with a direction under subsection (7) or (8).\n\nReasonable charge\n\n (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.\n\nCompliance with terms and conditions\n\n (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.\n\nOffences\n\n (12) A person who contravenes subsection (9) commits an offence punishable on conviction by a fine not exceeding 20 penalty units.\n\n (13) A person who contravenes subsection (11) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.","sortOrder":1675},{"sectionNumber":"151BUD","sectionType":"section","heading":"Exemption of reports from access requirements","content":"151BUD  Exemption of reports from access requirements\n\nFull exemption\n\n (1) The Commission may, by legislative instrument, make a determination exempting specified reports from the scope of sections 151BUA, 151BUB and 151BUC, either:\n\n (a) unconditionally; or\n\n (b) subject to such conditions (if any) as are specified in the determination.\n\nThe determination has effect accordingly.\n\nNote: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\n (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.\n\nPartial exemption\n\n (3) The Commission may, by legislative instrument, make a determination that specified information is exempt information for the purposes of this section, either:\n\n (a) unconditionally; or\n\n (b) subject to such conditions (if any) as are specified in the determination.\n\nThe determination has effect accordingly.\n\nNote: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\n (4) If some, but not all, of the information contained in a report is, or is to be, set out in a report under Division 12A, so much of the information as is, or is to be, set out in the Division 12A report is exempt information for the purposes of this section.\n\n (5) If a report contains exempt information, sections 151BUA, 151BUB and 151BUC apply as if:\n\n (a) the exempt information were not part of the report; and\n\n (b) so much of the report as does not consist of the exempt information were a report in its own right.","sortOrder":1676},{"sectionNumber":"151BUDA","sectionType":"section","heading":"Commission gives access to Ministerially-directed reports","content":"151BUDA  Commission gives access to Ministerially‑directed reports\n\n (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.\n\nPublic access\n\n (2) The Commission:\n\n (a) may make:\n\n (i) copies of the report or copies of extracts from the report; and\n\n (ii) such other relevant material (if any) as the Commission determines;\n\n  available to the public; and\n\n (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.\n\nNote: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.\n\nLimited access\n\n (3) The Commission may make:\n\n (a) copies of the report or copies of extracts from the report; and\n\n (b) such other relevant material (if any) as the Commission determines;\n\navailable:\n\n (c) to particular persons; and\n\n (d) on such terms and conditions (if any) as the Commission determines.\n\n (4) If subsection (3) applies, the Commission must take reasonable steps to inform the persons who access copies of the report or extracts of the terms and conditions (if any) on which the copies are available.\n\n (5) If, in accordance with subsection (3), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) on which the copy is available.\n\nOffences\n\n (6) A person commits an offence if:\n\n (a) the person is subject to a direction under paragraph (2)(b); and\n\n (b) the person omits to do an act; and\n\n (c) the omission breaches the direction.\n\nPenalty: 20 penalty units.\n\n (7) A person commits an offence if:\n\n (a) the person is subject to a requirement under subsection (5); and\n\n (b) the person does an act or omits to do an act; and\n\n (c) the act or omission breaches the requirement.\n\nPenalty: 100 penalty units.\n\nExercise of power by Commission\n\n (8) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.\n\nApplication of section 151BUA\n\n (9) This section does not limit section 151BUA.","sortOrder":1677},{"sectionNumber":"151BUDB","sectionType":"section","heading":"Carrier or carriage service provider gives access to Ministerially-directed reports","content":"151BUDB  Carrier or carriage service provider gives access to Ministerially‑directed reports\n\n (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.\n\nDisclosure direction\n\n (2) The Commission may give the carrier or provider:\n\n (a) a written direction requiring it to make copies of the report or copies of particular extracts from the report, together with other relevant material (if any) specified in the direction, available:\n\n (i) to the public; and\n\n (ii) in the manner specified in the direction; and\n\n (iii) as soon as practicable after the end of the period specified in the direction; or\n\n (b) a written direction requiring it to make copies of the report or copies of particular extracts from the report, together with other relevant material (if any) specified in the direction, available:\n\n (i) to such persons as are specified in the direction; and\n\n (ii) on such terms and conditions (if any) as are specified in the direction; and\n\n (iii) in the manner specified in the direction; and\n\n (iv) as soon as practicable after the end of the period specified in the direction.\n\nNote: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.\n\n (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.\n\nDirection to give information about availability of report\n\n (4) If the Commission gives the carrier or provider a direction under paragraph (2)(a), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public:\n\n (a) that the report is, or extracts are, available; and\n\n (b) of the way in which the report or extracts may be accessed.\n\n (5) If the Commission gives the carrier or provider a direction under paragraph (2)(b), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(b) direction that:\n\n (a) the report is, or the extracts are, available; and\n\n (b) of the way in which the report or extracts may be accessed.\n\nCompliance with terms and conditions\n\n (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.\n\nOffences\n\n (7) A person commits an offence if:\n\n (a) the person is subject to a direction under subsection (4) or (5); and\n\n (b) the person omits to do an act; and\n\n (c) the omission breaches the direction.\n\nPenalty: 20 penalty units.\n\n (8) A person commits an offence if:\n\n (a) the person is subject to a requirement under subsection (6); and\n\n (b) the person does an act or omits to do an act; and\n\n (c) the act or omission breaches the requirement.\n\nPenalty: 100 penalty units.\n\nExercise of power by Commission\n\n (9) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.\n\nApplication of section 151BUB\n\n (10) This section does not limit section 151BUB.\n\nApplication of section 151BUDC\n\n (11) Section 151BUDC does not limit this section.","sortOrder":1678},{"sectionNumber":"151BUDC","sectionType":"section","heading":"Carrier or carriage service provider gives access to Ministerially-directed periodic reports","content":"151BUDC  Carrier or carriage service provider gives access to Ministerially‑directed periodic reports\n\n (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.\n\nDisclosure direction\n\n (2) The Commission may give the carrier or provider:\n\n (a) a written direction requiring it to make copies of each of the reports in that series or copies of particular extracts from each of the reports in that series, together with other relevant material (if any) specified in the direction, available:\n\n (i) to the public; and\n\n (ii) in the manner specified in the direction; and\n\n (iii) by such times as are ascertained in accordance with the direction; or\n\n (b) a written direction requiring it to make copies of each of the reports in the series or copies of particular extracts from each of the reports in the series, together with other relevant material (if any) specified in the direction, available:\n\n (i) to such persons as are specified in the direction; and\n\n (ii) on such terms and conditions (if any) as are specified in the direction; and\n\n (iii) in the manner specified in the direction; and\n\n (iv) by such times as are ascertained in accordance with the direction.\n\nNote 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.\n\nNote 2: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.\n\n (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.\n\nDirection to give information about availability of report\n\n (4) If the Commission gives the carrier or provider a direction under paragraph (2)(a), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public:\n\n (a) that each of those reports is, or extracts are, available; and\n\n (b) of the way in which those reports or extracts may be accessed.\n\n (5) If the Commission gives the carrier or provider a direction under paragraph (2)(b), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(b) direction:\n\n (a) that each of those reports is, or extracts are, available; and\n\n (b) of the way in which those reports or extracts may be accessed.\n\nCompliance with terms and conditions\n\n (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.\n\nOffences\n\n (7) A person commits an offence if:\n\n (a) the person is subject to a direction under subsection (4) or (5); and\n\n (b) the person omits to do an act; and\n\n (c) the omission breaches the direction.\n\nPenalty: 20 penalty units.\n\n (8) A person commits an offence if:\n\n (a) the person is subject to a requirement under subsection (6); and\n\n (b) the person does an act or omits to do an act; and\n\n (c) the act or omission breaches the requirement.\n\nPenalty: 100 penalty units.\n\nExercise of power by Commission\n\n (9) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.\n\nApplication of section 151BUC\n\n (10) This section does not limit section 151BUC.\n\nApplication of section 151BUDB\n\n (11) Section 151BUDB does not limit this section.","sortOrder":1679},{"sectionNumber":"151BUE","sectionType":"section","heading":"Access via the internet","content":"151BUE  Access via the internet\n\n  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.","sortOrder":1680},{"sectionNumber":"151BUF","sectionType":"section","heading":"Self-incrimination","content":"151BUF  Self‑incrimination\n\n (1) An individual is not excused from giving a report under the record‑keeping rules, or from making a report or extracts available under this Division, on the ground that the report or extracts might tend to incriminate the individual or expose the individual to a penalty.\n\n (2) However:\n\n (a) giving the report or making the report or extracts available; or\n\n (b) any information, document or thing obtained as a direct or indirect consequence of giving the report or making the report or extracts available;\n\nis not admissible in evidence against the individual in:\n\n (c) criminal proceedings other than proceedings under, or arising out of, section 151BV; or\n\n (d) proceedings under section 151BY for recovery of a pecuniary penalty in relation to a contravention of a disclosure direction.","sortOrder":1681},{"sectionNumber":"151BV","sectionType":"section","heading":"Incorrect records","content":"151BV  Incorrect records\n\n (1) A person must not, in purported compliance with a requirement imposed by the record‑keeping rules, make a record of any matter or thing in such a way that it does not correctly record the matter or thing.\n\n (2) A person who contravenes subsection (1) commits an offence punishable on conviction by imprisonment for a term not exceeding 6 months.\n\nNote: See also sections 4AA and 4B of the Crimes Act 1914.","sortOrder":1682},{"sectionNumber":"151BW","sectionType":"section","heading":"Person involved in a contravention of the competition rule, a record-keeping rule or a disclosure direction","content":"151BW  Person involved in a contravention of the competition rule, a record‑keeping rule or a disclosure direction\n\n  A reference in this Division to a person involved in a contravention of the competition rule, a record‑keeping rule or a disclosure direction is a reference to a person who:\n\n (a) has aided, abetted, counselled or procured the contravention; or\n\n (b) has induced, whether by threats or promises or otherwise, the contravention; or\n\n (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or\n\n (d) has conspired with others to effect the contravention.","sortOrder":1684},{"sectionNumber":"151BX","sectionType":"section","heading":"Pecuniary penalties for breach of the competition rule, a record-keeping rule or a disclosure direction","content":"151BX  Pecuniary penalties for breach of the competition rule, a record‑keeping rule or a disclosure direction\n\n (1) If the Federal Court is satisfied that a person:\n\n (a) has contravened the competition rule, a record‑keeping rule or a disclosure direction; or\n\n (b) has attempted to contravene the competition rule, a record‑keeping rule or a disclosure direction; or\n\n (c) has been involved in a contravention of the competition rule, a record‑keeping rule or a disclosure direction;\n\nthe 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.\n\n (2) In determining a pecuniary penalty, the Court must have regard to all relevant matters, including:\n\n (a) the nature and extent of the contravention; and\n\n (b) the nature and extent of any loss or damage suffered as a result of the contravention; and\n\n (c) the circumstances in which the contravention took place; and\n\n (d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.\n\n (3) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed:\n\n (a) in the case of a contravention of the competition rule—for each contravention, the greater of the following:\n\n (i) if the contravention continued for 21 days or fewer—the sum of $100 million and $1 million for each day that the contravention continued;\n\n (ii) if the contravention continued for more than 21 days—the sum of $121 million and $3 million for each day in excess of 21 that the contravention continued;\n\n (iii) if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the contravention—3 times the value of that benefit;\n\n (iv) if the Court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the contravention; or\n\n (c) in the case of a contravention of a record‑keeping rule or of a disclosure direction—$250,000 for each contravention.\n\n (4) The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed:\n\n (a) in the case of a contravention of a record‑keeping rule or of a disclosure direction—$50,000 for each contravention; or\n\n (b) in the case of a contravention of the competition rule—$2.5 million for each contravention.\n\n (5) If conduct constitutes a contravention of:\n\n (b) 2 or more record‑keeping rules; or\n\n (c) 2 or more disclosure directions;\n\nproceedings may be instituted under this Act against a person in relation to the contravention of any one or more of the record‑keeping rules or disclosure directions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.\n\n (6) If a person’s conduct gives rise to a liability to pay a pecuniary penalty under:\n\n (a) this Part; and\n\n (b) Part VI;\n\nproceedings relating to the conduct may be instituted against the person under this Part or under Part VI. However, the person is not liable to more than one pecuniary penalty in respect of the same conduct.\n\n (7) Section 4AB of the Crimes Act 1914 does not apply to this section.","sortOrder":1685},{"sectionNumber":"151BY","sectionType":"section","heading":"Civil action for recovery of pecuniary penalties","content":"151BY  Civil action for recovery of pecuniary penalties\n\n (1) The Commission may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 151BX.\n\n (2) A proceeding under subsection (1) may be commenced within 6 years after the contravention.\n\n (3) A proceeding under subsection (1) must not be instituted in relation to:\n\n (a) a contravention of the competition rule; or\n\n (b) attempting to contravene the competition rule; or\n\n (c) aiding, abetting, counselling or procuring a person to contravene the competition rule; or\n\n (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene the competition rule; or\n\n (e) being in any way, directly or indirectly, knowingly concerned in, or party to, a contravention by a person of the competition rule; or\n\n (f) conspiring with others to contravene the competition rule;\n\nunless:\n\n (g) in a case where paragraph (a) applies—the alleged conduct is of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred; or\n\n (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.","sortOrder":1686},{"sectionNumber":"151BZ","sectionType":"section","heading":"Criminal proceedings not to be brought for contraventions of the competition rule, record-keeping rules or disclosure directions","content":"151BZ  Criminal proceedings not to be brought for contraventions of the competition rule, record‑keeping rules or disclosure directions\n\n (1) Criminal proceedings do not lie against a person only because the person:\n\n (a) has contravened the competition rule, a record‑keeping rule or a disclosure direction; or\n\n (b) has attempted to contravene the competition rule, a record‑keeping rule or a disclosure direction; or\n\n (c) has been involved in a contravention of the competition rule, a record‑keeping rule or a disclosure direction.\n\n (3) To avoid doubt, subsection (1) does not apply in relation to proceedings for an offence against section 45AF or 45AG.","sortOrder":1687},{"sectionNumber":"151CA","sectionType":"section","heading":"Injunctions","content":"151CA  Injunctions\n\n (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:\n\n (a) a contravention of the competition rule, a record‑keeping rule or a disclosure direction; or\n\n (b) attempting to contravene the competition rule, a record‑keeping rule or a disclosure direction; or\n\n (c) aiding, abetting, counselling or procuring a person to contravene the competition rule, a record‑keeping rule or a disclosure direction; or\n\n (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene the competition rule, a record‑keeping rule or a disclosure direction; or\n\n (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of the competition rule, a record‑keeping rule or a disclosure direction; or\n\n (f) conspiring with others to contravene the competition rule, a record‑keeping rule or a disclosure direction;\n\nthe 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.\n\n (2) If:\n\n (a) an application for an injunction under subsection (1) has been made; and\n\n (b) the Court determines it to be appropriate to do so;\n\nthe Court may grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1).\n\n (3) If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).\n\n (4) The Court may rescind or vary an injunction granted under subsection (1) or (3).\n\n (5) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:\n\n (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and\n\n (b) whether or not the person has previously engaged in conduct of that kind; and\n\n (c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.\n\n (6) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:\n\n (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and\n\n (b) whether or not the person has previously refused or failed to do that act or thing; and\n\n (c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that act or thing.\n\n (7) If the Commission makes an application to the Court for the grant of an injunction under this section, the Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.","sortOrder":1688},{"sectionNumber":"151CB","sectionType":"section","heading":"Orders to disclose information or publish an advertisement—breach of the competition rule","content":"151CB  Orders to disclose information or publish an advertisement—breach of the competition rule\n\n (1) If, on the application of the Commission, the Federal Court is satisfied that a person (the first person) has engaged in conduct constituting a contravention of the competition rule, the Court may make either or both of the following orders:\n\n (a) an order requiring the first person, or a person involved in the contravention, to disclose to the public, or to one or more specified persons, in such manner as is specified in the order, specified information, where the information is:\n\n (i) in the possession of the first person; or\n\n (ii) information to which the first person has access;\n\n (b) an order requiring the first person, or a person involved in the contravention, to publish, at the person’s own expense, in a manner and at times specified in the order, advertisements the terms of which are specified in, or are to be determined in accordance with, the order.\n\n (2) Subsection (1) does not limit section 151CA.\n\n (3) An application under subsection (1) must not be made in relation to a contravention of the competition rule unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred.","sortOrder":1689},{"sectionNumber":"151CC","sectionType":"section","heading":"Actions for damages—breach of the competition rule","content":"151CC  Actions for damages—breach of the competition rule\n\n (1) A person who suffers loss or damage by conduct of another person that was done in contravention of the competition rule may recover the amount of the loss or damage by action against:\n\n (a) that other person; or\n\n (b) any person involved in the contravention.\n\n (2) An action under subsection (1) may be commenced at any time within 3 years after the date on which the cause of action accrued.\n\n (3) An action under subsection (1) must not be brought in relation to a contravention of the competition rule unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred.","sortOrder":1690},{"sectionNumber":"151CD","sectionType":"section","heading":"Finding of fact in proceedings to be evidence","content":"151CD  Finding of fact in proceedings to be evidence\n\n (1) This section applies to a finding of any fact by a court made in proceedings under section 151BY, 151CA or 151CB in which a person has been found to have contravened, or to have been involved in a contravention of, the competition rule.\n\n (2) In:\n\n (a) a proceeding under section 151CC against the person; or\n\n (b) an application under subsection 151CE(1) for an order against the person;\n\nthe finding:\n\n (c) is prima facie evidence of that fact; and\n\n (d) may be proved by production of a document under the seal of the court from which the finding appears.","sortOrder":1691},{"sectionNumber":"151CE","sectionType":"section","heading":"Other orders—compensation for breach of the competition rule","content":"151CE  Other orders—compensation for breach of the competition rule\n\n (1) If, in a proceeding instituted under this Division in relation to a contravention of the competition rule, the Federal Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of the competition rule, the Court may, on the application of a party to the proceedings, make such orders as it thinks appropriate against:\n\n (a) the person who engaged in the conduct; or\n\n (b) a person who was involved in the contravention;\n\nif the Court considers that the orders concerned will:\n\n (c) compensate the first‑mentioned person, in whole or in part, for the loss or damage; or\n\n (d) prevent or reduce the loss or damage.\n\n (2) The Federal Court may make an order under subsection (1) whether or not it:\n\n (a) grants an injunction under section 151CA; or\n\n (b) makes an order under section 151BX, 151CB or 151CC.\n\n (3) Subsection (1) does not, by implication, limit section 151CA.\n\n (4) The Federal Court’s orders include, but are not limited to, the following:\n\n (a) an order declaring the whole or any part of:\n\n (i) a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct; or\n\n (ii) a collateral arrangement relating to such a contract;\n\n  to be void and, if the Court thinks fit, to have been void ab initio or at all times on and after such date before the date on which the order is made as is specified in the order;\n\n (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;\n\n (c) an order refusing to enforce any or all of the provisions of such a contract or collateral arrangement;\n\n (d) an order directing:\n\n (i) the person who engaged in the conduct; or\n\n (ii) a person who was involved in the contravention constituted by the conduct;\n\n  to refund money or return property to the person who suffered the loss or damage;\n\n (e) an order directing:\n\n (i) the person who engaged in the conduct; or\n\n (ii) a person who was involved in the contravention constituted by the conduct;\n\n  to pay to the person who suffered the loss or damage the amount of the loss or damage;\n\n (f) an order directing:\n\n (i) the person who engaged in the conduct; or\n\n (ii) a person who was involved in the contravention constituted by the conduct;\n\n  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.\n\n (5) An application under subsection (1) must not be made in relation to a contravention of the competition rule unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred.\n\n (6) The powers conferred on the Federal Court by this section in relation to a contract do not affect any powers that any other court may have in relation to the contract in proceedings instituted in that other court in respect of the contract.","sortOrder":1692},{"sectionNumber":"151CF","sectionType":"section","heading":"Conduct by directors, employees or agents","content":"151CF  Conduct by directors, employees or agents\n\n  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).","sortOrder":1693},{"sectionNumber":"151CG","sectionType":"section","heading":"Disclosure of documents by Commission","content":"151CG  Disclosure of documents by Commission\n\n (1) This section applies to a person if:\n\n (a) the person makes an application to the Commission for an exemption order; or\n\n (b) under section 151BG, the Commission gives the person an opportunity to make a submission to the Commission about a proposal to revoke an exemption order; or\n\n (c) the Commission institutes a proceeding against the person under Division 7.\n\n (2) The Commission must, at the request of the person and on payment of the fee (if any) specified in the regulations, give to the person:\n\n (a) a copy of each document that has been given to, or obtained by, the Commission in connection with the matter to which the application, proposal or proceeding relates and tends to establish the person’s case; and\n\n (b) a copy of any other document in the possession of the Commission that comes to the attention of the Commission in connection with the matter and to which the application, proposal or proceeding relates and tends to establish the person’s case;\n\nso long as the document is not obtained from the person or prepared by an officer or professional adviser of the Commission.\n\n (3) If the Commission does not comply with a request under subsection (2), the Federal Court must, upon application by the person, make an order directing the Commission to comply with the request. This rule has effect subject to subsection (4).\n\n (4) The Federal Court may refuse to make an order under subsection (3) about a document or a part of a document if the Federal Court considers it inappropriate to make the order on the grounds that the disclosure of the contents of the document or part of the document would prejudice any person, or for any other reason.\n\n (5) Before the Federal Court gives a decision on an application under subsection (3), the Federal Court may require any documents to be produced to it for inspection.\n\n (6) An order under this section may be expressed to be subject to such conditions as are specified in the order.","sortOrder":1695},{"sectionNumber":"151CH","sectionType":"section","heading":"Treatment of partnerships","content":"151CH  Treatment of partnerships\n\n  This Part applies to a partnership as if the partnership was a person, but it applies with the following changes:\n\n (a) obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners;\n\n (b) any offence against this Part that would otherwise be committed by the partnership is taken to have been committed by each partner who:\n\n (i) aided, abetted, counselled or procured the relevant act or omission; or\n\n (ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).","sortOrder":1697},{"sectionNumber":"151CI","sectionType":"section","heading":"Review by Tribunal","content":"151CI  Review by Tribunal\n\n (1) If the Commission makes a decision under section 151BA to refuse to make an exemption order relating to conduct of a person, the person may apply to the Tribunal for a review of the decision.\n\n (2) If the Commission makes a decision under section 151BG to revoke an exemption order relating to conduct of a person, the person may apply to the Tribunal for a review of the decision.\n\n (3A) If the Commission:\n\n (a) makes a decision under section 151BUA to make a report obtained from a person, or an extract from such a report, available for inspection and purchase; or\n\n (b) makes a decision under section 151BUB or 151BUC to give a person a written direction to make a report or extract available for inspection and purchase;\n\nthe person may apply to the Tribunal for a review of the decision.\n\n (4) An application under this section for a review of a decision must be:\n\n (a) in writing; and\n\n (b) in the case of an application under subsection (1) or (2)—made within 21 days after the Commission made the decision; and\n\n (c) in the case of an application under subsection (3)—made within 7 days after the Commission made the decision; and\n\n (d) in the case of an application under subsection (3A)—made within 28 days after the Commission made the decision.\n\n (5) If the Tribunal receives an application under this section for a review of a decision, the Tribunal must review the decision.","sortOrder":1699},{"sectionNumber":"151CJ","sectionType":"section","heading":"Functions and powers of Tribunal","content":"151CJ  Functions and powers of Tribunal\n\nDecision on review\n\n (1) On a review of a decision of the Commission of a kind mentioned in section 151CI, the Tribunal may make a decision:\n\n (a) in any case—affirming the Commission’s decision; or\n\n (b) in the case of a review of a decision of the Commission under section 151BA refusing to make an exemption order—both:\n\n (i) setting aside the Commission’s decision; and\n\n (ii) in substitution for the decision so set aside, making an exemption order; or\n\n (c) in the case of a review of a decision of the Commission under section 151BG to revoke an exemption order—setting aside the Commission’s decision; or\n\n (d) in the case of a review of a decision of the Commission under section 151BUA, 151BUB or 151BUC—setting aside or varying the Commission’s decision;\n\nand, for the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission.\n\n (2) A decision by the Tribunal:\n\n (a) affirming a decision of the Commission; or\n\n (b) setting aside a decision of the Commission; or\n\n (c) made in substitution for a decision of the Commission; or\n\n (d) varying a decision of the Commission;\n\nis taken, for the purposes of this Act (other than this Division), to be a decision of the Commission.\n\nConduct of review\n\n (3) For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.\n\n (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.\n\nNote: Division 2 of Part IX applies to proceedings before the Tribunal.","sortOrder":1700},{"sectionNumber":"151CK","sectionType":"section","heading":"Provisions that do not apply in relation to a Tribunal review","content":"151CK  Provisions that do not apply in relation to a Tribunal review\n\n  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.","sortOrder":1701},{"sectionNumber":"151CL","sectionType":"section","heading":"Reviews of competitive safeguards within the telecommunications industry","content":"151CL  Reviews of competitive safeguards within the telecommunications industry\n\n (1) The Commission must review, and report each financial year on, competitive safeguards within the telecommunications industry, including:\n\n (a) matters relating to the operation of this Part and Part XIC; and\n\n (b) such other matters relating to competition in the telecommunications industry as the Commission thinks appropriate.\n\n (2) The Commission must publish a report under subsection (1) on its website as soon as practicable and no later than 6 months after the end of the financial year concerned.\n\n (3) The Commission must, if directed in writing to do so by the Minister, review, and report to the Minister on, specified matters relating to competitive safeguards within the telecommunications industry.\n\n (4) The Commission must give a report under subsection (3) to the Minister before the end of the period specified in the direction.\n\n (5) The Minister must cause a copy of a report under subsection (3) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.\n\n (7) In this section:\n\ntelecommunications industry has the same meaning as in the Telecommunications Act 1997.","sortOrder":1703},{"sectionNumber":"151CM","sectionType":"section","heading":"Monitoring of telecommunications charges paid by consumers","content":"151CM  Monitoring of telecommunications charges paid by consumers\n\n (1) The Commission must monitor, and report each financial year on, charges paid by consumers in telecommunications markets.\n\n (2) The Commission may decide which charges to monitor and report on, having regard to which goods or services are most commonly used by consumers.\n\n (3) The Commission must publish the report on its website as soon as practicable and no later than 6 months after the end of the financial year concerned.","sortOrder":1705},{"sectionNumber":"151CMA","sectionType":"section","heading":"Public reports about competition in the telecommunications industry","content":"151CMA  Public reports about competition in the telecommunications industry\n\n (1) The Commission must monitor, and report to the Minister on, such matters relating to competition in the telecommunications industry as are specified in a determination made by the Minister for the purposes of this subsection.\n\nNote: For examples of matters that may be specified in a determination under subsection (1), see section 151CMC.\n\n (2) Reports under subsection (1) are to be given to the Minister in respect of such regular intervals as are specified in a determination made by the Minister for the purposes of this subsection.\n\n (3) Reports under subsection (1) must comply with such requirements in relation to the protection of confidential information as are specified in a determination made by the Minister for the purposes of this subsection. For this purpose, information is confidential information if, and only if, the publication of the information could reasonably be expected to prejudice substantially the commercial interests of a person.\n\n (4) The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the regular interval to which the report relates.\n\n (5) The Minister must cause a copy of a report under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.\n\n (6) The Minister may, by legislative instrument, make a determination for the purposes of subsection (1), (2) or (3).\n\n (7) In this section:\n\ntelecommunications industry has the same meaning as in the Telecommunications Act 1997.","sortOrder":1707},{"sectionNumber":"151CMB","sectionType":"section","heading":"Confidential reports about competition in the telecommunications industry","content":"151CMB  Confidential reports about competition in the telecommunications industry\n\n (1) The Commission must monitor, and report to the Minister on, such matters relating to competition in the telecommunications industry as are specified in a determination made by the Minister for the purposes of this subsection.\n\nNote: For examples of matters that may be specified in a determination under subsection (1), see section 151CMC.\n\n (2) Reports under subsection (1) are to be given to the Minister in respect of such regular intervals as are specified in a determination made by the Minister for the purposes of this subsection.\n\n (3) The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the regular interval to which the report relates.\n\n (4) The Minister may, by legislative instrument, make a determination for the purposes of subsection (1) or (2).\n\n (5) In this section:\n\ntelecommunications industry has the same meaning as in the Telecommunications Act 1997.","sortOrder":1708},{"sectionNumber":"151CMC","sectionType":"section","heading":"Examples of matters that may be specified in a determination under section 151CMA or 151CMB","content":"151CMC  Examples of matters that may be specified in a determination under section 151CMA or 151CMB\n\n  The following are examples of matters that may be specified in a determination made for the purposes of subsection 151CMA(1) or 151CMB(1):\n\n (a) charges for:\n\n (i) carriage services; or\n\n (ii) goods for use in connection with a carriage service; or\n\n (iii) services for use in connection with a carriage service;\n\n (b) carriers’ and carriage service providers’ respective shares of the total supply of:\n\n (i) carriage services; or\n\n (ii) goods for use in connection with a carriage service; or\n\n (iii) services for use in connection with a carriage service;\n\n (c) carriers’ and carriage service providers’ revenues relating to their respective shares of the total supply of:\n\n (i) carriage services; or\n\n (ii) goods for use in connection with a carriage service; or\n\n (iii) services for use in connection with a carriage service;\n\n (d) other indicators (whether quantitative or qualitative) relating to the supply of:\n\n (i) carriage services; or\n\n (ii) goods for use in connection with a carriage service; or\n\n (iii) services for use in connection with a carriage service.","sortOrder":1709},{"sectionNumber":"151CMD","sectionType":"section","heading":"Voluntary undertakings originally given by Telstra","content":"151CMD  Voluntary undertakings originally given by Telstra\n\nScope\n\n (1) This section applies if an undertaking is in force under section 577A of the Telecommunications Act 1997.\n\nNote: Section 577A of the Telecommunications Act 1997 deals with undertakings about structural separation.\n\nCommission must have regard to the conduct of a designated Telstra successor company\n\n (2) If a designated Telstra successor company has engaged, or is required to engage, in conduct in order to comply with the undertaking, then, in performing a function, or exercising a power, under this Part in relation to the designated Telstra successor company, the Commission must have regard to the conduct to the extent that the conduct is relevant.","sortOrder":1711},{"sectionNumber":"151CQ","sectionType":"section","heading":"Voluntary undertakings given by Telstra","content":"151CQ  Voluntary undertakings given by Telstra\n\nScope\n\n (1) This section applies if an undertaking given by Telstra is in force under section 577C or 577E of the Telecommunications Act 1997.\n\nNote 2: Section 577C of the Telecommunications Act 1997 deals with undertakings about hybrid fibre‑coaxial networks.\n\nNote 3: Section 577E of the Telecommunications Act 1997 deals with undertakings about subscription television broadcasting licences.\n\nCommission must have regard to Telstra’s conduct\n\n (2) If Telstra has engaged, or is required to engage, in conduct in order to comply with the undertaking, then, in performing a function, or exercising a power, under this Part in relation to Telstra, the Commission must have regard to the conduct to the extent that the conduct is relevant.","sortOrder":1712},{"sectionNumber":"Division 16","sectionType":"division","heading":"NBN corporations","content":"Division 16—NBN corporations","sortOrder":1713},{"sectionNumber":"151DA","sectionType":"section","heading":"Authorised conduct—subsection 51(1)","content":"151DA  Authorised conduct—subsection 51(1)\n\nObjects\n\n (1) The objects of this section are:\n\n (a) to promote the national interest in structural reform of the telecommunications industry; and\n\n (b) to promote uniform national pricing of eligible services supplied by NBN corporations by authorising, for the purposes of subsection 51(1), certain conduct engaged in by NBN corporations.\n\nNote 1: If conduct is authorised for the purposes of subsection 51(1), the conduct is disregarded in deciding whether a person has contravened Part IV.\n\nNote 2: See also subsection 151AJ(10).\n\nAuthorised conduct—points of interconnection\n\n (2) If:\n\n (a) an NBN corporation is a carrier or carriage service provider; and\n\n (b) the NBN corporation:\n\n (i) owns or controls one or more facilities; or\n\n (ii) is a nominated carrier in relation to one or more facilities; and\n\n (c) the NBN corporation refuses to permit interconnection of those facilities at a particular location with one or more facilities of:\n\n (i) a service provider; or\n\n (ii) a utility; and\n\n (d) the location is not a listed point of interconnection; and\n\n (e) the refusal is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities;\n\nthe refusal is authorised for the purposes of subsection 51(1).\n\nNote: For listed point of interconnection, see section 151DB.\n\nAuthorised conduct—bundling of designated access services\n\n (3) If:\n\n (a) an NBN corporation is a carrier or carriage service provider; and\n\n (b) the NBN corporation:\n\n (i) refuses to supply; or\n\n (ii) refuses to offer to supply;\n\n  a designated access service to a service provider or utility unless the service provider or utility acquires, or agrees to acquire, one or more other designated access services (other than voice telephony facilitation services) from the NBN corporation; and\n\n (c) the refusal is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities;\n\nthe refusal is authorised for the purposes of subsection 51(1).\n\nAuthorised conduct—uniform national pricing\n\n (4) If an NBN corporation engages in conduct that is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities, that conduct is authorised for the purposes of subsection 51(1).\n\nUniform national pricing\n\n (5) For the purposes of this section, uniform national pricing of an eligible service supplied, or offered to be supplied, by an NBN corporation to service providers and utilities is achieved, if, and only if, the price‑related terms and conditions on which the NBN corporation supplies, or offers to supply, the eligible service to service providers and utilities are the same throughout Australia.\n\n (6) For the purposes of this section, in determining whether there is uniform national pricing of an eligible service supplied, or offered to be supplied, by an NBN corporation, disregard any discrimination by the NBN corporation against another person on the grounds that the NBN corporation has reasonable grounds to believe that the other person would fail, to a material extent, to comply with the terms and conditions on which the NBN corporation supplies, or on which the NBN corporation is reasonably likely to supply, the eligible service.\n\n (6A) Examples of grounds for believing as mentioned in subsection (6) include:\n\n (a) evidence that the other person is not creditworthy; and\n\n (b) repeated failures by the other person to comply with the terms and conditions on which the same or a similar eligible service has been supplied (whether or not by the NBN corporation).\n\n (7) For the purposes of this section, in determining whether eligible services are characterised as:\n\n (a) the same eligible service; or\n\n (b) different eligible services;\n\nit is immaterial whether the services are supplied, or offered to be supplied, using:\n\n (c) the same facilities or kinds of facilities; or\n\n (d) different facilities or kinds of facilities.\n\n (8) For example, the same eligible service could be supplied, or offered to be supplied, using:\n\n (a) an optical fibre line; or\n\n (b) terrestrial radiocommunications equipment; or\n\n (c) a satellite.\n\nDefinitions\n\n (9) In this section:\n\naccess virtual circuit service means an eligible service that is known as:\n\n (a) an access virtual circuit service; or\n\n (b) the access virtual circuit component of a fibre access service.\n\nconnectivity virtual circuit service means an eligible service that is known as:\n\n (a) a connectivity virtual circuit service; or\n\n (b) the connectivity virtual circuit component of a fibre access service.\n\ndesignated access service means:\n\n (a) an access virtual circuit service; or\n\n (b) a connectivity virtual circuit service; or\n\n (c) a network‑network interface service; or\n\n (d) a user network interface service; or\n\n (e) a voice telephony facilitation service.\n\neligible service has the same meaning as in section 152AL.\n\nlisted point of interconnection has the meaning given by section 151DB.\n\nnetwork‑network interface service means an eligible service that is known as:\n\n (a) a network‑network interface service; or\n\n (b) the network‑network interface component of a fibre access service.\n\nnominated carrier has the same meaning as in the Telecommunications Act 1997.\n\npoint of interconnection means a location for the interconnection of facilities.\n\nprice‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.\n\nservice provider has the same meaning as in the Telecommunications Act 1997.\n\nspecial access undertaking has the same meaning as in Part XIC.\n\ntelecommunications industry has the same meaning as in the Telecommunications Act 1997.\n\nuniform national pricing has the meaning given by subsections (5) and (6).\n\nuse, in relation to a facility, means use:\n\n (a) in isolation; or\n\n (b) in conjunction with one or more other things.\n\nuser network interface service means an eligible service that is known as:\n\n (a) a user network interface service; or\n\n (b) the user network interface service component of a fibre access service.\n\nutility means:\n\n (a) Airservices Australia; or\n\n (b) a State or Territory transport authority; or\n\n (c) a rail corporation (within the meaning of the National Broadband Network Companies Act 2011); or\n\n (d) an electricity supply body (within the meaning of that Act); or\n\n (e) a gas supply body (within the meaning of that Act); or\n\n (f) a water supply body (within the meaning of that Act); or\n\n (g) a sewerage services body (within the meaning of that Act); or\n\n (h) a storm water drainage services body (within the meaning of that Act); or\n\n (i) a State or Territory road authority (within the meaning of that Act).\n\nvoice telephony facilitation service means a service that facilitates the supply of a carriage service that is a carriage service for the purpose of voice telephony.","sortOrder":1714},{"sectionNumber":"151DB","sectionType":"section","heading":"Listed points of interconnection","content":"151DB  Listed points of interconnection\n\n (1) The Commission:\n\n (a) must prepare a written list setting out points of interconnection; and\n\n (b) may, by writing, vary that list.\n\n (2) For the purposes of this Division, a point of interconnection specified in a list in force under subsection (1) is a listed point of interconnection.\n\n (3) The Commission must publish on its website a copy of a list in force under subsection (1).\n\n (4) A list under subsection (1) is not a legislative instrument.\n\n (5) A variation of a list under subsection (1) is not a legislative instrument.","sortOrder":1715},{"sectionNumber":"Part XIC","sectionType":"part","heading":"Telecommunications access regime","content":"Part XIC—Telecommunications access regime","sortOrder":1716},{"sectionNumber":"152AA","sectionType":"section","heading":"Simplified outline","content":"152AA  Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part sets out a telecommunications access regime.\n\n• A carriage service, or a related service, supplied, or capable of being supplied, by a carrier (other than an NBN corporation) or a carriage service provider (other than an NBN corporation) is a declared service if:\n\n (a) the Commission has declared the service to be a declared service; or\n\n (b) the service is supplied by the carrier or carriage service provider, and a special access undertaking given by the carrier or carriage service provider is in operation in relation to the service.\n\n• A carriage service, or a related service, supplied, or capable of being supplied, by an NBN corporation is a declared service if:\n\n (a) the Commission has declared the service to be a declared service; or\n\n (b) the NBN corporation has formulated a standard form of access agreement that relates to access to the service; or\n\n (c) the service is supplied by the NBN corporation, and a special access undertaking given by the NBN corporation is in operation in relation to the service.\n\n• Carriers and carriage service providers who provide declared services are required to comply with standard access obligations in relation to those services.\n\n• The standard access obligations facilitate the provision of access to declared services by service providers in order that service providers can provide carriage services and/or content services.\n\n• The terms and conditions on which carriers and carriage service providers are required to comply with the standard access obligations are subject to agreement.\n\n• If agreement cannot be reached, but the carrier or carriage service provider has given an access undertaking, the terms and conditions are as set out in the access undertaking.\n\n• If agreement cannot be reached, no access undertaking is in operation, but the Commission has made binding rules of conduct, the terms and conditions are as specified in the binding rules of conduct.\n\n• If agreement cannot be reached, no access undertaking is in operation, and no binding rules of conduct have been made, the terms and conditions are as specified in an access determination made by the Commission.\n\n• A carrier, carriage service provider or related body must not prevent or hinder the fulfilment of a standard access obligation.\n\nNote: Even though this section mentions binding rules of conduct, binding rules of conduct may only be made if the Commission considers that there is an urgent need to do so.","sortOrder":1718},{"sectionNumber":"152AB","sectionType":"section","heading":"Object of this Part","content":"152AB  Object of this Part\n\nObject\n\n (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.\n\nPromotion of the long‑term interests of end‑users\n\n (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):\n\n (a) carriage services;\n\n (b) services supplied by means of carriage services;\n\nregard must be had to the extent to which the thing is likely to result in the achievement of the following objectives:\n\n (c) the objective of promoting competition in markets for listed services;\n\n (d) the objective of achieving any‑to‑any connectivity in relation to carriage services that involve communication between end‑users;\n\n (e) the objective of encouraging the economically efficient use of, and the economically efficient investment in:\n\n (i) the infrastructure by which listed services are supplied; and\n\n (ii) any other infrastructure by which listed services are, or are likely to become, capable of being supplied.\n\nSubsection (2) limits matters to which regard may be had\n\n (3) Subsection (2) is intended to limit the matters to which regard may be had.\n\nPromoting competition\n\n (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.\n\nSubsection (4) does not limit matters to which regard may be had\n\n (5) Subsection (4) does not, by implication, limit the matters to which regard may be had.\n\nEncouraging efficient use of infrastructure etc.\n\n (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:\n\n (a) whether it is, or is likely to become, technically feasible for the services to be supplied and charged for, having regard to:\n\n (i) the technology that is in use, available or likely to become available; and\n\n (ii) whether the costs that would be involved in supplying, and charging for, the services are reasonable or likely to become reasonable; and\n\n (iii) the effects, or likely effects, that supplying, and charging for, the services would have on the operation or performance of telecommunications networks;\n\n (b) the legitimate commercial interests of the supplier or suppliers of the services, including the ability of the supplier or suppliers to exploit economies of scale and scope;\n\n (c) the incentives for investment in:\n\n (i) the infrastructure by which the services are supplied; and\n\n (ii) any other infrastructure by which the services are, or are likely to become, capable of being supplied.\n\nSubsection (6) does not limit matters to which regard may be had\n\n (7) Subsection (6) does not, by implication, limit the matters to which regard may be had.\n\nInvestment risks\n\n (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.\n\n (7B) Subsection (7A) does not, by implication, limit the matters to which regard may be had.\n\nAchieving any‑to‑any connectivity\n\n (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.","sortOrder":1719},{"sectionNumber":"152AC","sectionType":"section","heading":"Definitions","content":"152AC  Definitions\n\n  In this Part, unless the contrary intention appears:\n\naccess has the meaning given by section 152AF.\n\naccess agreement has the meaning given by section 152BE.\n\naccess determination means a determination under section 152BC.\n\naccess seeker has the meaning given by section 152AG.\n\naccess undertaking means a special access undertaking.\n\nbinding rules of conduct means rules made under subsection 152BD(1).\n\ncarriage service has the same meaning as in the Telecommunications Act 1997, and includes a proposed carriage service.\n\ncarriage service provider has the same meaning as in the Telecommunications Act 1997.\n\ncarrier has the same meaning as in the Telecommunications Act 1997.\n\ncarrier licence has the same meaning as in the Telecommunications Act 1997.\n\ncategory A standard access obligation has the meaning given by section 152AR.\n\ncategory B standard access obligation has the meaning given by section 152AXB.\n\nconditional‑access customer equipment means customer equipment that:\n\n (a) consists of or incorporates a conditional access system that allows a service provider to determine whether an end‑user is able to receive a particular service; and\n\n (b) either:\n\n (i) is for use in connection with the supply of a content service; or\n\n (ii) is of a kind specified in the regulations.\n\nconstitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.\n\ncontent service has the same meaning as in the Telecommunications Act 1997, and includes a proposed content service.\n\ncustomer equipment has the same meaning as in the Telecommunications Act 1997.\n\ndata 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.\n\ndeclared service has the meaning given by section 152AL.\n\nfacility has the same meaning as in the Telecommunications Act 1997.\n\nFederal Court means the Federal Court of Australia.\n\nfinal access determination means an access determination other than an interim access determination.\n\nfinal migration plan has the same meaning as in the Telecommunications Act 1997.\n\nfixed principles provision has the meaning given by section 152BCD.\n\nfixed principles term or condition has the meaning given by section 152CBAA.\n\ninterim access determination means an access determination that is expressed to be an interim access determination.\n\nMinisterial pricing determination means a determination under section 152CH.\n\nmodifications includes additions, omissions and substitutions.\n\nNBN Co has the same meaning as in the National Broadband Network Companies Act 2011.\n\nNBN corporation has the same meaning as in the National Broadband Network Companies Act 2011.\n\nnominated carrier has the same meaning as in the Telecommunications Act 1997.\n\nperson includes a partnership.\n\nNote: Section 152EN sets out additional rules about partnerships.\n\nProcedural Rules means Procedural Rules made under section 152ELA.\n\nquarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.\n\nservice provider has the same meaning as in the Telecommunications Act 1997.\n\nspecial access undertaking means an undertaking under Subdivision B of Division 5.\n\nstandard access obligation means:\n\n (a) a category A standard access obligation; or\n\n (b) a category B standard access obligation.\n\ntelecommunications network has the same meaning as in the Telecommunications Act 1997.\n\nvariation agreement has the meaning given by subsection 152BE(3).","sortOrder":1720},{"sectionNumber":"152AD","sectionType":"section","heading":"This Part binds the Crown","content":"152AD  This Part binds the Crown\n\n (1) The following provisions of this Act bind the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory:\n\n (a) this Part;\n\n (b) the other provisions of this Act so far as they relate to this Part.\n\n (2) This Part does not make the Crown liable to be prosecuted for an offence.\n\n (3) The protection in subsection (2) does not apply to an authority of the Commonwealth or an authority of a State or Territory.","sortOrder":1721},{"sectionNumber":"152AE","sectionType":"section","heading":"Extension to external Territories","content":"152AE  Extension to external Territories\n\n (1) This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).\n\n (2) The operation of this Part, and the other provisions of this Act so far as they relate to this Part, in relation to Norfolk Island is not affected by the amendments made by Division 1 of Part 1 of Schedule 5 to the Territories Legislation Amendment Act 2016.","sortOrder":1722},{"sectionNumber":"152AF","sectionType":"section","heading":"Access","content":"152AF  Access\n\n (1) A reference in this Part to access, in relation to a declared service, is a reference to access by a service provider in order that the service provider can provide carriage services and/or content services.\n\n (2) For the purposes of this Part, anything done by a carrier or carriage service provider in fulfilment of a standard access obligation is taken to be an aspect of access to a declared service.\n\n (3) For the purposes of this Part, if an access determination imposes a requirement on a carrier or carriage service provider as mentioned in paragraph 152BC(3)(e), anything done by the carrier or provider in fulfilment of the requirement is taken to be an aspect of access to a declared service.","sortOrder":1723},{"sectionNumber":"152AG","sectionType":"section","heading":"Access seeker","content":"152AG  Access seeker\n\n (1) This section sets out the circumstances in which a person is taken to be an access seeker in relation to a declared service for the purposes of this Part.\n\n (2) A service provider is an access seeker in relation to a declared service if the provider makes, or proposes to make, a request in relation to that service under section 152AR (which deals with the category A standard access obligations) or section 152AXB (which deals with the category B standard access obligations), whether or not:\n\n (a) the request is refused; or\n\n (b) the request is being complied with.\n\n (3) A service provider is an access seeker in relation to a declared service if:\n\n (a) the provider wants access to the service; or\n\n (b) the provider wants to change some aspect of the provider’s existing access to the service; or\n\n (c) the supplier of the service wants to change some aspect of the provider’s existing access to the service.","sortOrder":1724},{"sectionNumber":"152AH","sectionType":"section","heading":"Reasonableness—terms and conditions","content":"152AH  Reasonableness—terms and conditions\n\n (1) For the purposes of this Part, in determining whether particular terms and conditions are reasonable, regard must be had to the following matters:\n\n (a) whether the terms and conditions promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services;\n\n (b) the legitimate business interests of the carrier or carriage service provider concerned, and the carrier’s or provider’s investment in facilities used to supply the declared service concerned;\n\n (c) the interests of persons who have rights to use the declared service concerned;\n\n (d) the direct costs of providing access to the declared service concerned;\n\n (e) the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility;\n\n (f) the economically efficient operation of a carriage service, a telecommunications network or a facility.\n\n (2) Subsection (1) does not, by implication, limit the matters to which regard may be had.","sortOrder":1725},{"sectionNumber":"152AI","sectionType":"section","heading":"When public inquiry commences","content":"152AI  When public inquiry commences\n\n  For the purposes of this Part, a public inquiry held by the Commission under Part 25 of the Telecommunications Act 1997 commences when the Commission publishes the notice under section 498 of that Act about the inquiry.","sortOrder":1726},{"sectionNumber":"152AJ","sectionType":"section","heading":"Interpretation of Part IIIA not affected by this Part","content":"152AJ  Interpretation of Part IIIA not affected by this Part\n\n  In determining the meaning of a provision of Part IIIA, the provisions of this Part (other than section 152CK) are to be ignored.","sortOrder":1727},{"sectionNumber":"152AK","sectionType":"section","heading":"Operation of Parts IV, IVA and VII not affected by this Part","content":"152AK  Operation of Parts IV, IVA and VII not affected by this Part\n\n  This Part does not affect the operation of Parts IV, IVA and VII.","sortOrder":1728},{"sectionNumber":"152AL","sectionType":"section","heading":"Declared services","content":"152AL  Declared services\n\nEligible service\n\n (1) For the purposes of this section, an eligible service is:\n\n (a) a listed carriage service (within the meaning of the Telecommunications Act 1997); or\n\n (b) a service that facilitates the supply of a listed carriage service (within the meaning of that Act);\n\nwhere 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).\n\nDeclaration made after public inquiry—services not supplied by an NBN corporation\n\n (3) The Commission may, by written instrument, declare that a specified eligible service is a declared service if:\n\n (a) the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the declaration; and\n\n (b) the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997; and\n\n (c) the report was published during the 180‑day period ending when the declaration was made; and\n\n (d) the Commission is satisfied that the making of the declaration will promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services.\n\nNote: Eligible services may be specified by name, by inclusion in a specified class or in any other way.\n\n (3A) A declaration under subsection (3) does not apply to an eligible service to the extent to which the service is supplied, or is capable of being supplied, by an NBN corporation (whether to itself or to other persons).\n\n (3B) Before commencing to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make a declaration under subsection (3) in relation to an eligible service, the Commission must consider whether to hold a public inquiry under that Part about a proposal to make a declaration under subsection (8A) in relation to the service.\n\nNote: For combined public inquiries, see section 152AN.\n\nDeclaration has effect\n\n (4) A declaration under subsection (3) has effect accordingly.\n\nGazettal of declaration\n\n (5) A copy of a declaration under subsection (3) is to be published in the Gazette.\n\nRelated services\n\n (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.\n\nServices covered by special access undertakings—services not supplied by an NBN corporation\n\n (7) If:\n\n (a) a person (other than an NBN corporation) gives the Commission a special access undertaking in relation to a service or a proposed service; and\n\n (b) the undertaking is in operation; and\n\n (c) the person supplies the service or proposed service (whether to itself or to other persons);\n\nthe 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.\n\n (8) The Commission may declare a service under subsection (3) even if the service is, to any extent, covered by subsection (7).\n\nDeclaration made after public inquiry—services supplied by an NBN corporation\n\n (8A) The Commission may, by written instrument, declare that a specified eligible service, to the extent to which the service is supplied, or is capable of being supplied, by a specified NBN corporation (whether to itself or to other persons), is a declared service if:\n\n (a) the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the declaration; and\n\n (b) the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997; and\n\n (c) the report was published during the 180‑day period ending when the declaration was made; and\n\n (d) the Commission is satisfied that the making of the declaration will promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services.\n\nIf the Commission does so, the declared service relates to the NBN corporation for the purposes of subsections 152AXB(2) and 152AXC(7).\n\nNote: Eligible services may be specified by name, by inclusion in a specified class or in any other way.\n\n (8B) A declaration under subsection (8A) has effect accordingly.\n\n (8C) A copy of a declaration under section (8A) is to be published in the Gazette.\n\nServices supplied by an NBN corporation—standard form of access agreement\n\n (8D) If:\n\n (a) an eligible service is supplied, or is capable of being supplied, by an NBN corporation (whether to itself or to other persons); and\n\n (b) the NBN corporation is a carrier or a carriage service provider; and\n\n (c) the NBN corporation has formulated a standard form of access agreement that relates to access to the service; and\n\n (d) the standard form of access agreement is available on the NBN corporation’s website;\n\nthen:\n\n (e) the service, to the extent to which it is supplied, or is capable of being supplied, by the NBN corporation (whether to itself or to other persons) is a declared service; and\n\n (f) the declared service relates to the NBN corporation for the purposes of subsections 152AXB(2) and 152AXC(7).\n\nServices covered by special access undertakings—services supplied by an NBN corporation\n\n (8E) If:\n\n (a) an NBN corporation gives the Commission a special access undertaking in relation to a service or a proposed service; and\n\n (b) the undertaking is in operation; and\n\n (c) the NBN corporation supplies the service or proposed service (whether to itself or to other persons);\n\nthen:\n\n (d) the service supplied by the NBN corporation is a declared service; and\n\n (e) the declared service relates to the NBN corporation for the purposes of subsections 152AXB(2) and 152AXC(7).\n\nTo avoid doubt, if the undertaking is subject to limitations, the service supplied by the NBN corporation is a declared service only to the extent to which the service falls within the scope of the limitations.\n\n (8F) The Commission may declare a service under subsection (8A) even if the service is, to any extent, covered by subsection (8E).\n\nDeclaration is not a legislative instrument\n\n (9) A declaration under this section is not, and is taken never to have been, a legislative instrument.\n\n (10) A variation of a declaration made under this section is not, and is taken never to have been, a legislative instrument.\n\n (11) A revocation of a declaration made under this section is not, and is taken never to have been, a legislative instrument.\n\n (12) If:\n\n (a) a declaration was made under this section before the commencement of this subsection; and\n\n (b) the declaration ceased to be in force before the commencement of this subsection;\n\nthen:\n\n (c) the declaration is taken never to have been a legislative instrument; and\n\n (d) if the declaration was varied or revoked before the commencement of this subsection—the variation or revocation is taken never to have been a legislative instrument.\n\n (13) For the purposes of paragraph (12)(b), assume that the Legislation Act 2003 had never been enacted.\n\n (14) Subsections (9) to (12) are enacted for the avoidance of doubt.","sortOrder":1730},{"sectionNumber":"152ALA","sectionType":"section","heading":"Duration of declaration","content":"152ALA  Duration of declaration\n\nExpiry date\n\n (1) A declaration under section 152AL must specify an expiry date for the declaration.\n\n (2) In specifying an expiry date, the Commission must have regard to:\n\n (a) the principle that the expiry date for a declaration should occur in the period:\n\n (i) beginning 3 years after the declaration was made; and\n\n (ii) ending 5 years after the declaration was made;\n\n  unless, in the Commission’s opinion, there are circumstances that warrant the expiry date occurring in a shorter or longer period; and\n\n (b) such other matters (if any) as the Commission considers relevant.\n\n (3) Subsection (2) has effect subject to subsection (4).\n\nExtension of expiry date\n\n (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.\n\nDuration of declaration\n\n (5) Unless sooner revoked, a declaration under section 152AL ceases to be in force on the expiry date of the declaration.\n\nFresh declaration\n\n (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.\n\n (6A) If the fresh declaration comes into force immediately after the expiry of the expired declaration, the fresh declaration is taken to be a declaration that replaces the expired declaration.\n\nPublic inquiry during 18‑month period ending on the expiry date of a declaration\n\n (7) The Commission must:\n\n (a) during the 18‑month period ending on the expiry date of a declaration, hold a public inquiry under Part 25 of the Telecommunications Act 1997 about:\n\n (i) whether to extend or further extend the expiry date of the declaration; and\n\n (ii) whether to revoke the declaration; and\n\n (iii) whether to vary the declaration; and\n\n (iv) whether to allow the declaration to expire without making a new declaration under section 152AL; and\n\n (v) whether to allow the declaration to expire and then to make a new declaration under section 152AL; and\n\n (vi) whether to extend or further extend the expiry date of a declaration by a period of not more than 12 months and then to allow the declaration to expire without making a new declaration under section 152AL; and\n\n (b) prepare a report about the inquiry under section 505 of the Telecommunications Act 1997; and\n\n (c) publish the report during the 180‑day period ending on the expiry date of the first‑mentioned declaration.\n\n (8) If:\n\n (a) after holding a public inquiry under subsection (7) in relation to a declaration, the Commission allows the declaration to expire and then makes a new declaration under section 152AL; and\n\n (b) the report mentioned in paragraph (7)(b) was published during the 180‑day period ending when the new declaration was made;\n\nthe Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c), or paragraphs 152AL(8A)(a), (b) and (c), as the case requires, in relation to the new declaration.\n\n (9) If:\n\n (a) after holding a public inquiry under subsection (7) in relation to a declaration, the Commission revokes or varies the declaration; and\n\n (b) the report mentioned in paragraph (7)(b) was published during the 180‑day period ending at the time of the revocation or variation;\n\nthe Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c), or paragraphs 152AL(8A)(a), (b) and (c), as the case requires, in relation to the revocation or variation (as those paragraphs apply to the power of revocation and variation because of subsection 152AO(1)).\n\nExtension notice is not a legislative instrument\n\n (10) A notice under subsection (4) is not, and is taken never to have been, a legislative instrument.\n\n (11) If:\n\n (a) a declaration was made under section 152AL before the commencement of this subsection; and\n\n (b) a notice relating to the declaration was published under subsection (4) of this section before the commencement of this subsection; and\n\n (c) the declaration ceased to be in force before the commencement of this subsection;\n\nthe notice is taken never to have been a legislative instrument.\n\n (12) For the purposes of paragraph (11)(c), assume that the Legislation Act 2003 had never been enacted.\n\n (13) Subsections (10) and (11) are enacted for the avoidance of doubt.","sortOrder":1731},{"sectionNumber":"152AM","sectionType":"section","heading":"Inquiries about proposals to declare services","content":"152AM  Inquiries about proposals to declare services\n\n (1) This section applies to a public inquiry of a kind mentioned in paragraph 152AL(3)(a) or (8A)(a) or 152ALA(7)(a).\n\n (2) The Commission may hold the inquiry:\n\n (a) on its own initiative; or\n\n (b) if requested in writing to do so by a person.\n\n (3) The Commission does not have a duty to consider whether to hold a public inquiry of a kind mentioned in paragraph 152AL(3)(a) or (8A)(a) if the Commission is requested to do so by a person.\n\n (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.\n\n (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.","sortOrder":1732},{"sectionNumber":"152AN","sectionType":"section","heading":"Combined inquiries about proposals to declare services","content":"152AN  Combined inquiries about proposals to declare services\n\n (1) The Commission may decide to combine 2 or more public inquiries of a kind mentioned in paragraph 152AL(3)(a), or (8A)(a) or 152ALA(7)(a).\n\n (2) If the Commission makes such a decision:\n\n (a) the Commission may publish a single notice relating to the combined inquiry under section 498 of the Telecommunications Act 1997; and\n\n (b) the Commission may prepare a single discussion paper about the combined inquiry under section 499 of that Act; and\n\n (c) the Commission may hold hearings relating to the combined inquiry under section 501 of that Act; and\n\n (d) the Commission must ensure that each inquiry is covered by a report under section 505 of that Act, whether the report relates:\n\n (i) to a single one of those inquiries; or\n\n (ii) to any 2 or more of those inquiries.","sortOrder":1733},{"sectionNumber":"152AO","sectionType":"section","heading":"Variation or revocation of declaration","content":"152AO  Variation or revocation of declaration\n\n (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.\n\n (1A) If:\n\n (a) a declaration under section 152AL relates to a particular service; and\n\n (b) in the Commission’s opinion, the service is of minor importance;\n\nthe Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to revoke the declaration.\n\n (3) If a variation of a declaration under subsection 152AL(3) or (8A) is a variation that, under the Procedural Rules, is taken to be a variation of a minor nature, the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about the proposed variation.","sortOrder":1734},{"sectionNumber":"152AQ","sectionType":"section","heading":"Register of declared services","content":"152AQ  Register of declared services\n\n (1) The Commission must keep a Register in relation to declarations under section 152AL.\n\n (2) The Register must include the following:\n\n (a) particulars of all such declarations (including declarations that have been revoked);\n\n (b) particulars of variations and revocations of such declarations;\n\n (c) copies of reports prepared in accordance with section 505 of the Telecommunications Act 1997 in relation to inquiries mentioned in paragraph 152AL(3)(a) or (8A)(a) or 152ALA(7)(a) of this Act.\n\n (3) The Register is to be maintained by electronic means.\n\n (4) The Register is to be made available for inspection on the Commission’s website.\n\n (5) The Register is not a legislative instrument.","sortOrder":1735},{"sectionNumber":"152AQC","sectionType":"section","heading":"Compensation for acquisition of property","content":"152AQC  Compensation for acquisition of property\n\n (1) If the operation of any or all of the following provisions:\n\n (a) subsection 152AL(9), (10), (11), (12), (13) or (14);\n\n (b) subsection 152ALA(10), (11), (12) or (13);\n\nwould result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.\n\n (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n\n (3) In this section:\n\nacquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\njust terms has the same meaning as in paragraph 51(xxxi) of the Constitution.","sortOrder":1736},{"sectionNumber":"152AR","sectionType":"section","heading":"Category A standard access obligations","content":"152AR  Category A standard access obligations\n\n (1) This section sets out the category A standard access obligations.\n\nAccess provider and active declared services\n\n (2) For the purposes of this section, if a carrier (other than an NBN corporation) or a carriage service provider (other than an NBN corporation) supplies declared services, whether to itself or to other persons:\n\n (a) the carrier or provider is an access provider; and\n\n (b) the declared services are active declared services.\n\nSupply of active declared service to service provider\n\n (3) An access provider must, if requested to do so by a service provider:\n\n (a) supply an active declared service to the service provider in order that the service provider can provide carriage services and/or content services; and\n\n (b) take all reasonable steps to ensure that the technical and operational quality of the active declared service supplied to the service provider is equivalent to that which the access provider provides to itself; and\n\n (c) take all reasonable steps to ensure that the service provider receives, in relation to the active declared service supplied to the service provider, fault detection, handling and rectification of a technical and operational quality and timing that is equivalent to that which the access provider provides to itself.\n\nLimit on paragraph (3)(a) obligation\n\n (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:\n\n (a) preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the request was made;\n\n (b) preventing the access provider from obtaining a sufficient amount of the service to be able to meet the access provider’s reasonably anticipated requirements, measured at the time when the request was made;\n\n (c) preventing a person from obtaining, by the exercise of a pre‑request right, a sufficient level of access to the declared service to be able to meet the person’s actual requirements;\n\n (d) depriving any person of a protected contractual right;\n\n (da) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A of the Telecommunications Act 1997;\n\n (e) preventing Telstra from complying with an undertaking in force under section 577C or 577E of the Telecommunications Act 1997; or\n\n (f) if a final migration plan is in force—requiring a designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.\n\nOrdering and provisioning—paragraph (3)(b)\n\n (4A) To avoid doubt, ordering and provisioning are taken to be aspects of technical and operational quality referred to in paragraph (3)(b).\n\n (4B) The regulations may provide that, for the purposes of subsection (4A), a specified act or thing is taken to be ordering.\n\nNote: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\n (4C) The regulations may provide that, for the purposes of subsection (4A), a specified act or thing is taken to be provisioning.\n\nNote: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\nInterconnection of facilities\n\n (5) If an access provider:\n\n (a) owns or controls one or more facilities; or\n\n (b) is a nominated carrier in relation to one or more facilities;\n\nthe access provider must, if requested to do so by a service provider:\n\n (c) permit interconnection of those facilities with the facilities of the service provider for the purpose of enabling the service provider to be supplied with active declared services in order that the service provider can provide carriage services and/or content services; and\n\n (d) take all reasonable steps to ensure that:\n\n (i) the technical and operational quality and timing of the interconnection is equivalent to that which the access provider provides to itself; and\n\n (ii) if a standard is in force under section 384 of the Telecommunications Act 1997—the interconnection complies with the standard; and\n\n (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.\n\nProvision of billing information\n\n (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.\n\nTiming and content of billing information\n\n (7) The billing information referred to in subsection (6) must:\n\n (a) be given at such times or intervals as are ascertained in accordance with the regulations; and\n\n (b) be given in a manner and form ascertained in accordance with the regulations; and\n\n (c) set out such particulars as are ascertained in accordance with the regulations.\n\nConditional‑access customer equipment\n\n (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.\n\nExceptions\n\n (9) This section does not impose an obligation on an access provider if there are reasonable grounds to believe that:\n\n (a) the access seeker would fail, to a material extent, to comply with the terms and conditions on which the access provider complies, or on which the access provider is reasonably likely to comply, with that obligation; or\n\n (b) the access seeker would fail, in connection with that obligation, to protect:\n\n (i) the integrity of a telecommunications network; or\n\n (ii) the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility.\n\nExamples—paragraph (9)(a) grounds\n\n (10) Examples of grounds for believing as mentioned in paragraph (9)(a) include:\n\n (a) evidence that the access seeker is not creditworthy; and\n\n (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the access provider).\n\nStarting date for obligations\n\n (11) An obligation imposed by this section does not arise before 1 July 1997.\n\nDefinitions\n\n (12) In this section:\n\npre‑request right, in relation to a request made for the purposes of paragraph (3)(a), means a right under a contract that was in force at the time when the request was made.\n\nprotected contractual right means a right under a contract that was in force at the beginning of 13 September 1996.","sortOrder":1739},{"sectionNumber":"152ASA","sectionType":"section","heading":"Anticipatory class exemptions from category A standard access obligations","content":"152ASA  Anticipatory class exemptions from category A standard access obligations\n\nDetermination providing for exemption\n\n (1) The Commission may, by written instrument, determine that, in the event that a specified service or proposed service becomes an active declared service, each of the members of a specified class of carrier or of a specified class of carriage service provider are exempt from any or all of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service.\n\n (1A) A service or a proposed service must not be specified in a determination under this section if, at the time when the determination is made, the service or proposed service is a declared service.\n\n (2) A determination under this section may be unconditional or subject to such conditions or limitations as are specified in the determination.\n\nNote: For judicial enforcement of conditions and limitations, see section 152BBAA.\n\n (2A) A determination under this section may:\n\n (a) provide that the determination must not be varied; or\n\n (b) provide that the determination must not be varied except in such circumstances as are specified in the determination.\n\n (2B) A determination under this section may:\n\n (a) provide that the determination must not be revoked; or\n\n (b) provide that the determination must be revoked except in such circumstances as are specified in the determination.\n\n (3) A determination under this section has effect accordingly.\n\nCriteria for making determination\n\n (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.\n\nExpiry time of determination\n\n (8) A determination under this section must specify the expiry time of the determination. If a determination expires, this Part does not prevent the Commission from making a fresh determination under this section in the same terms as the expired determination.\n\n (9) The expiry time of the determination may be described by reference to the end of a period beginning when the service or proposed service becomes an active declared service.\n\n (10) Subsection (9) does not, by implication, limit subsection (8).\n\nConsultation\n\n (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:\n\n (a) publish a draft of the determination and invite people to make submissions to the Commission on the question of whether the draft determination should be made; and\n\n (b) consider any submissions that were received within the time limit specified by the Commission when it published the draft determination.\n\nVariation or revocation of determination\n\n (11A) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by subsection (1), but it applies with the following changes.\n\n (11B) A provision referred to in paragraph (2A)(a) or (b) or (2B)(a) or (b) cannot be varied or removed.\n\n (11C) A determination under this section must not be varied or revoked in a manner that is inconsistent with a provision referred to in paragraph (2A)(a) or (b) or (2B)(a) or (b).\n\nDetermination is not a legislative instrument\n\n (12) A determination made under subsection (1) is not a legislative instrument.\n\nDefinition\n\n (13) In this section:\n\nactive declared service has the same meaning as in section 152AR.","sortOrder":1740},{"sectionNumber":"152ATA","sectionType":"section","heading":"Anticipatory individual exemptions from category A standard access obligations","content":"152ATA  Anticipatory individual exemptions from category A standard access obligations\n\nApplication for exemption order\n\n (1) A person who is, or expects to be, a carrier or a carriage service provider may apply to the Commission for a written order that, in the event that a specified service or proposed service becomes an active declared service, the person is exempt from any or all of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service.\n\n (2) An application under subsection (1) must be:\n\n (a) in writing; and\n\n (b) in a form approved in writing by the Commission for the purposes of this paragraph.\n\n (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.\n\nCommission must make exemption order or refuse application\n\n (3) After considering the application, the Commission must:\n\n (a) make a written order that, in the event that the service or proposed service becomes an active declared service, the applicant is exempt from one or more of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service; or\n\n (b) refuse the application.\n\n (3A) A service or a proposed service must not be specified in an order under paragraph (3)(a) if, at the time when the order is made, the service or proposed service is a declared service.\n\n (4) An order under paragraph (3)(a) may be unconditional or subject to such conditions or limitations as are specified in the order.\n\nNote: For judicial enforcement of conditions and limitations, see section 152BBAA.\n\n (4A) An order under paragraph (3)(a) may:\n\n (a) provide that the order must not be varied; or\n\n (b) provide that the order must not be varied except in such circumstances as are specified in the order.\n\n (4B) An order under paragraph (3)(a) may:\n\n (a) provide that the order must not be revoked; or\n\n (b) provide that the order must not be revoked except in such circumstances as are specified in the order.\n\n (5) An order under paragraph (3)(a) has effect accordingly.\n\nCriteria for making exemption order\n\n (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.\n\nSerial applications\n\n (7) If:\n\n (a) a person makes an application (the first application) under subsection (1) for an order in relation to a service or proposed service; and\n\n (b) the Commission refuses the first application; and\n\n (c) the person subsequently makes another application under subsection (1); and\n\n (d) the Commission is satisfied that:\n\n (i) the first application and the other application have material similarities; or\n\n (ii) the grounds on which the person made the first application are materially similar to the grounds on which the person has made the other application;\n\nthe Commission may refuse to consider the other application.\n\nExpiry time for exemption order\n\n (10) An order under paragraph (3)(a) must specify the expiry time for the order. If an order expires, this Part does not prevent the Commission from making a fresh order under paragraph (3)(a) in the same terms as the expired order.\n\n (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.\n\n (10B) Subsection (10A) does not, by implication, limit subsection (10).\n\nConsultation\n\n (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:\n\n (a) publish the application for the order and invite people to make submissions to the Commission on the question of whether the order should be made; and\n\n (b) consider any submissions that were received within the time limit specified by the Commission when it published the application.\n\nCommission to make decision within 6 months\n\n (12) If the Commission does not make a decision on an application under this section within 6 months after receiving the application, the Commission is taken to have made, at the end of that 6‑month period, an order under paragraph (3)(a) in accordance with the terms of the application.\n\n (13) In calculating the 6‑month period referred to in subsection (12), disregard:\n\n (a) if the Commission has published the application under subsection (11)—a day in the period:\n\n (i) beginning on the date of publication; and\n\n (ii) ending at the end of the time limit specified by the Commission when it published the application; and\n\n (b) if the Commission has requested further information under section 152AU in relation to the application—a day during any part of which the request, or any part of the request, remains unfulfilled.\n\nExtension of decision‑making period\n\n (14) The Commission may, by written notice given to the applicant, extend or further extend the 6‑month period referred to in subsection (12), so long as:\n\n (a) the extension or further extension is for a period of not more than 3 months; and\n\n (b) the notice includes a statement explaining why the Commission has been unable to make a decision on the application within that 6‑month period or that 6‑month period as previously extended, as the case may be.\n\n (15) As soon as practicable after the Commission gives a notice under subsection (14), the Commission must cause a copy of the notice to be made available on the internet.\n\nNotification of refusal of application\n\n (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.\n\n (16A) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by paragraph (3)(a), but it applies with the following changes.\n\n (16B) A provision referred to in paragraph (4A)(a) or (b) or (4B)(a) or (b) cannot be varied or removed.\n\n (16C) An order under paragraph (3)(a) must not be varied or revoked in a manner that is inconsistent with a provision referred to in (4A)(a) or (b) or (4B)(a) or (b).\n\nDefinition\n\n (18) In this section:\n\nactive declared service has the same meaning as in section 152AR.","sortOrder":1741},{"sectionNumber":"152AU","sectionType":"section","heading":"Individual exemptions—request for further information","content":"152AU  Individual exemptions—request for further information\n\n (1) This section applies to an application under subsection 152ATA(1).\n\n (2) The Commission may request the applicant to give the Commission further information about the application.\n\n (2A) If:\n\n (a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and\n\n (b) the applicant does not give the Commission the information within the time limit allowed by the Procedural Rules;\n\nthe Commission may, by written notice given to the applicant, refuse the application.\n\n (2B) Subsection (2A) has effect despite anything in this Division.\n\n (3) If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the application until the applicant gives the Commission the information.\n\n (4) The Commission may withdraw its request for further information, in whole or in part.","sortOrder":1742},{"sectionNumber":"152AXA","sectionType":"section","heading":"Statement of reasons for decision—specification of documents","content":"152AXA  Statement of reasons for decision—specification of documents\n\n  If the Commission:\n\n (a) makes a decision under section 152ATA; and\n\n (b) gives a person a written statement setting out the reasons for the decision;\n\nthe statement must specify the documents that the Commission examined in the course of making the decision.","sortOrder":1743},{"sectionNumber":"152AXB","sectionType":"section","heading":"Category B standard access obligations","content":"152AXB  Category B standard access obligations\n\n (1) This section sets out the category B standard access obligations.\n\nSupply of declared service to service provider\n\n (2) If:\n\n (a) an NBN corporation is a carrier or carriage service provider; and\n\n (b) under subsection 152AL(8A), (8D) or (8E), a declared service relates to the NBN corporation;\n\nthe NBN corporation must, if requested to do so by a service provider, supply the service to the service provider in order that the service provider can provide carriage services and/or content services.\n\nNote: For declared services, see subsections 152AL(8A), (8D) and (8E).\n\nLimit on subsection (2) obligations\n\n (3) Subsection (2) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects:\n\n (a) preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the request was made;\n\n (b) preventing the NBN corporation from obtaining a sufficient amount of the service to be able to meet the NBN corporation’s reasonably anticipated requirements, measured at the time when the request was made;\n\n (c) preventing a person from obtaining, by the exercise of a pre‑request right, a sufficient level of access to the declared service to be able to meet the person’s actual requirements.\n\n (3A) Subsection (2) does not impose an obligation on an NBN corporation to supply a service in circumstances where a refusal by the NBN corporation to supply the service is authorised under section 151DA for the purposes of subsection 51(1).\n\nInterconnection of facilities\n\n (4) If:\n\n (a) an NBN corporation is a carrier or carriage service provider; and\n\n (b) the NBN corporation:\n\n (i) owns or controls one or more facilities; or\n\n (ii) is a nominated carrier in relation to one or more facilities;\n\nthe NBN corporation must, if requested to do so by a service provider:\n\n (c) permit interconnection of those facilities with the facilities of the service provider for the purpose of enabling the service provider to be supplied with declared services in order that the service provider can provide carriage services and/or content services; and\n\n (d) take all reasonable steps to ensure that, if a standard is in force under section 384 of the Telecommunications Act 1997, the interconnection complies with the standard.\n\n (4A) Subsection (4) does not apply to an interconnection at a location that is not a listed point of interconnection (within the meaning of section 151DB).\n\nConditional‑access customer equipment\n\n (5) If:\n\n (a) an NBN corporation is a carrier or carriage service provider; and\n\n (b) the NBN corporation supplies a declared service by means of conditional‑access customer equipment;\n\nthe NBN corporation must, if requested to do so by a service provider who has made a request referred to in subsection (2), supply to the service provider any service that is necessary to enable the service provider to supply carriage services and/or content services by means of the declared service and using the equipment.\n\nExceptions\n\n (6) This section does not impose an obligation on an NBN corporation if there are reasonable grounds to believe that:\n\n (a) the access seeker would fail, to a material extent, to comply with the terms and conditions on which the NBN corporation complies, or on which the NBN corporation is reasonably likely to comply, with that obligation; or\n\n (b) the access seeker would fail, in connection with that obligation, to protect:\n\n (i) the integrity of a telecommunications network; or\n\n (ii) the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility.\n\nExamples—paragraph (6)(a) grounds\n\n (7) Examples of grounds for believing as mentioned in paragraph (6)(a) include:\n\n (a) evidence that the access seeker is not creditworthy; and\n\n (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the NBN corporation).\n\nDefinition\n\n (8) In this section:\n\npre‑request right, in relation to a request made for the purposes of subsection (2), means a right under a contract that was in force at the time when the request was made.","sortOrder":1745},{"sectionNumber":"152AXC","sectionType":"section","heading":"NBN corporation to supply declared services on a non-discriminatory basis","content":"152AXC  NBN corporation to supply declared services on a non‑discriminatory basis\n\nNo discrimination between access seekers\n\n (1) An NBN corporation must not, in complying with any of its category B standard access obligations, discriminate between access seekers.\n\nNote: For explanatory material, see section 152CJH.\n\n (2) The rule in subsection (1) does not prevent discrimination against an access seeker if the NBN corporation has reasonable grounds to believe that the access seeker would fail, to a material extent, to comply with the terms and conditions on which the NBN corporation complies, or on which the NBN corporation is reasonably likely to comply, with the relevant obligation.\n\n (3) Examples of grounds for believing as mentioned in subsection (2) include:\n\n (a) evidence that the access seeker is not creditworthy; and\n\n (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the NBN corporation).\n\nNo discrimination by an NBN corporation in favour of itself\n\n (7) If:\n\n (a) an NBN corporation is a carrier or carriage service provider; and\n\n (b) under subsection 152AL(8A), (8D) or (8E), a declared service relates to the NBN corporation; and\n\n (c) the NBN corporation is subject to a category B standard access obligation in relation to the service;\n\nthe NBN corporation must not discriminate in favour of itself in relation to the supply of the service.\n\nAuthorised conduct\n\n (12) If conduct is authorised under section 151DA for the purposes of subsection 51(1), the conduct is taken not to be discrimination for the purposes of this section.","sortOrder":1746},{"sectionNumber":"152AXD","sectionType":"section","heading":"NBN corporation to carry on related activities on a non-discriminatory basis","content":"152AXD  NBN corporation to carry on related activities on a non‑discriminatory basis\n\n (1) An NBN corporation must not, in carrying on any of the following activities, discriminate between access seekers:\n\n (a) developing a new eligible service;\n\n (b) enhancing a declared service;\n\n (c) extending or enhancing the capability of a facility or telecommunications network by means of which a declared service is, or is to be, supplied;\n\n (d) planning for a facility or telecommunications network by means of which a declared service is, or is to be, supplied;\n\n (e) an activity that is preparatory to the supply of a declared service;\n\n (f) an activity that is ancillary or incidental to the supply of a declared service;\n\n (g) giving information to service providers about any of the above activities.\n\nNote: For explanatory material, see section 152CJH.\n\n (5A) If conduct is authorised under section 151DA for the purposes of subsection 51(1), the conduct is taken not to be discrimination for the purposes of this section.\n\nDefinition\n\n (6) In this section:\n\neligible service has the same meaning as in section 152AL.","sortOrder":1747},{"sectionNumber":"152AY","sectionType":"section","heading":"Compliance with standard access obligations","content":"152AY  Compliance with standard access obligations\n\n (1) This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations.\n\n (2) The carrier or carriage service provider must comply with the obligations:\n\n (a) if an access agreement between:\n\n (i) the carrier or carriage service provider, as the case requires; and\n\n (ii) the access seeker;\n\n  is in operation and specifies terms and conditions about a particular matter—on such terms and conditions relating to that matter as are set out in the agreement; or\n\n (b) if:\n\n (i) paragraph (a) does not apply in relation to terms and conditions about a particular matter; and\n\n (ii) a special access undertaking given by the carrier or carriage service provider is in operation, and the undertaking specifies terms and conditions about that matter—on such terms and conditions relating to that matter as are set out in the undertaking; or\n\n (c) if:\n\n (i) neither paragraph (a) nor (b) applies to terms and conditions about a particular matter; and\n\n (ii) binding rules of conduct specify terms and conditions about that matter;\n\n  on such terms and conditions relating to that matter as are set out in the binding rules of conduct; or\n\n (d) if:\n\n (i) none of the above paragraphs applies to terms and conditions about a particular matter; and\n\n (ii) an access determination specifies terms and conditions about that matter;\n\n  on such terms and conditions relating to that matter as are set out in the access determination.\n\nNote 1: Sections 152BCC, 152BDB, 152BDE, 152CBIA, 152CBIB and 152CBIC, which deal with inconsistency, should be read and applied before this section is read and applied.\n\nNote 2: Even though subsection (2) mentions binding rules of conduct, binding rules of conduct may only be made if the Commission considers that there is an urgent need to do so.\n\nNote 3: For transitional provisions, see Division 2 of Part 2 of Schedule 1 to the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010.","sortOrder":1749},{"sectionNumber":"152AYA","sectionType":"section","heading":"Ancillary obligations—confidential information","content":"152AYA  Ancillary obligations—confidential information\n\n  If:\n\n (a) a carrier or carriage service provider is required to comply with a standard access obligation that arose because of a request made by an access seeker; and\n\n (b) at or after the time when the request was made, the access seeker gives particular information to the carrier or carriage service provider to enable the carrier or carriage service provider to comply with the standard access obligation; and\n\n (c) at or before the time when the information was given, the access seeker gave the carrier or carriage service provider a written notice to the effect that:\n\n (i) that information; or\n\n (ii) a class of information that includes that information;\n\n  is to be regarded as having been given on a confidential basis for the purpose of enabling the carrier or carriage service provider to comply with the standard access obligation;\n\nthe carrier or carriage service provider must not, without the written consent of the access seeker, use that information for a purpose other than enabling the carrier or carriage service provider to comply with:\n\n (d) the standard access obligation; or\n\n (e) any other standard access obligation that arose because of a request made by the access seeker; or\n\n (f) any other obligation imposed by a law.","sortOrder":1750},{"sectionNumber":"152AZ","sectionType":"section","heading":"Carrier licence condition","content":"152AZ  Carrier licence condition\n\n  A carrier licence held by a carrier is subject to a condition that the carrier must comply with:\n\n (a) any standard access obligations that are applicable to the carrier; and\n\n (aa) any rule in section 152AXC or 152AXD that is applicable to the carrier; and\n\n (b) any obligations under section 152AYA that are applicable to the carrier.","sortOrder":1751},{"sectionNumber":"152BA","sectionType":"section","heading":"Service provider rule","content":"152BA  Service provider rule\n\n (1) In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act.\n\n (2) A carriage service provider must comply with:\n\n (a) any standard access obligations that are applicable to the provider; and\n\n (aa) any rule in section 152AXC or 152AXD that is applicable to the provider; and\n\n (b) any obligations under section 152AYA that are applicable to the provider.","sortOrder":1752},{"sectionNumber":"152BB","sectionType":"section","heading":"Judicial enforcement of standard access obligations","content":"152BB  Judicial enforcement of standard access obligations\n\n (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:\n\n (a) the Commission; or\n\n (b) any person whose interests are affected by the contravention;\n\nmake all or any of the following orders:\n\n (c) an order directing the carrier or provider to comply with the obligation;\n\n (d) an order directing the carrier or provider to compensate any other person who had suffered loss or damage as a result of the contravention;\n\n (e) any other order that the Court thinks appropriate.\n\n (1AB) If the Federal Court is satisfied that an NBN corporation has contravened the rule in subsection 152AXC(1) or (7) or 152AXD(1), the Court may, on the application of:\n\n (a) the Commission; or\n\n (b) any person whose interests are affected by the contravention;\n\nmake all or any of the following orders:\n\n (c) an order directing the NBN corporation to comply with that rule;\n\n (d) an order directing the NBN corporation to compensate any other person who had suffered loss or damage as a result of the contravention;\n\n (e) any other order that the Court thinks appropriate.\n\n (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:\n\n (a) the Commission; or\n\n (b) the access seeker who gave the information concerned;\n\nmake all or any of the following orders:\n\n (c) an order directing the carrier or carriage service provider to comply with the obligation;\n\n (d) an order directing the carrier or carriage service provider to compensate any other person who has suffered loss or damage as a result of the contravention;\n\n (e) any other order that the Court thinks appropriate.\n\n (2) The Federal Court may discharge or vary an order granted under this section.\n\n (3) This section does not limit section 152BBAA.","sortOrder":1753},{"sectionNumber":"152BBAA","sectionType":"section","heading":"Judicial enforcement of conditions and limitations of exemption determinations and orders","content":"152BBAA  Judicial enforcement of conditions and limitations of exemption determinations and orders\n\n (1) If the Federal Court is satisfied that a person has contravened any of the conditions or limitations of:\n\n (a) a determination under section 152ASA; or\n\n (b) an order under section 152ATA;\n\nthe Court may, on the application of:\n\n (c) the Commission; or\n\n (d) any person whose interests are affected by the contravention;\n\nmake all or any of the following orders:\n\n (e) an order directing the person to comply with the condition or limitation;\n\n (f) an order directing the person to compensate any other person who had suffered loss or damage as a result of the contravention;\n\n (g) any other order that the Court thinks appropriate.\n\n (2) The Federal Court may discharge or vary an order granted under this section.\n\n (3) This section does not limit section 152BB.","sortOrder":1754},{"sectionNumber":"152BBA","sectionType":"section","heading":"Commission may give directions in relation to negotiations","content":"152BBA  Commission may give directions in relation to negotiations\n\n (1) This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations.\n\n (2) If the following parties:\n\n (a) the carrier or carriage service provider, as the case requires;\n\n (b) the access seeker;\n\npropose 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.\n\n (3) The following are examples of the kinds of procedural directions that may be given under subsection (2):\n\n (a) a direction requiring a party to give relevant information to the other party;\n\n (b) a direction requiring a party to carry out research or investigations in order to obtain relevant information;\n\n (c) a direction requiring a party not to impose unreasonable procedural conditions on the party’s participation in negotiations;\n\n (d) a direction requiring a party to respond in writing to the other party’s proposal or request in relation to the time and place of a meeting;\n\n (e) a direction requiring a party, or a representative of a party, to attend a mediation conference;\n\n (f) a direction requiring a party, or a representative of a party, to attend a conciliation conference.\n\n (4) For the purposes of paragraph (3)(c), if a party (the first party) imposes, as a condition on the first party’s participation in negotiations, a requirement that the other party must not disclose to the Commission any or all information, or the contents of any or all documents, provided in the course of negotiations, that condition is taken to be an unreasonable procedural condition on the first party’s participation in those negotiations.\n\n (5) A person must not contravene a direction under subsection (2).\n\n (6) A person must not:\n\n (a) aid, abet, counsel or procure a contravention of subsection (5); or\n\n (b) induce, whether by threats or promises or otherwise, a contravention of subsection (5); or\n\n (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (5); or\n\n (d) conspire with others to effect a contravention of subsection (5).\n\n (7) In deciding whether to give a direction under subsection (2), the Commission must have regard to:\n\n (a) any guidelines in force under subsection (8); and\n\n (b) such other matters as the Commission considers relevant.\n\n (8) The Commission may, by written instrument, formulate guidelines for the purposes of subsection (7).\n\n (9) In addition to its effect apart from this subsection, this section also has the effect it would have if:\n\n (a) each reference to a carrier were, by express provision, confined to a carrier that is a constitutional corporation; and\n\n (b) each reference to a carriage service provider were, by express provision, confined to a carriage service provider that is a constitutional corporation; and\n\n (c) each reference to an access seeker were, by express provision, confined to an access seeker that is a constitutional corporation.","sortOrder":1755},{"sectionNumber":"152BBB","sectionType":"section","heading":"Enforcement of directions","content":"152BBB  Enforcement of directions\n\n (1) If the Federal Court is satisfied that a person has contravened subsection 152BBA(5) or (6), the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate.\n\n (2) In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:\n\n (a) the nature and extent of the contravention; and\n\n (b) the nature and extent of any loss or damage suffered as a result of the contravention; and\n\n (c) the circumstances in which the contravention took place; and\n\n (d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.\n\n (3) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed $250,000 for each contravention.\n\n (4) The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed $50,000 for each contravention.\n\n (5) The Commission may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in subsection (1).\n\n (6) A proceeding under subsection (5) may be commenced within 6 years after the contravention.\n\n (7) Criminal proceedings do not lie against a person only because the person has contravened subsection 152BBA(5) or (6).","sortOrder":1756},{"sectionNumber":"152BBC","sectionType":"section","heading":"Commission’s role in negotiations","content":"152BBC  Commission’s role in negotiations\n\n (1) This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations.\n\n (2) If the following parties:\n\n (a) the carrier or carriage service provider, as the case requires;\n\n (b) the access seeker;\n\npropose to negotiate, or are negotiating, with a view to agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a), the parties may jointly request the Commission in writing to arrange for a representative of the Commission to attend, or mediate at, those negotiations.\n\n (3) The Commission may comply with the request if the Commission considers that compliance with the request would be likely to facilitate those negotiations.\n\n (4) For the purposes of this section, each of the following persons may be a representative of the Commission:\n\n (a) a member, or associate member, of the Commission; or\n\n (b) a person referred to in subsection 27(1); or\n\n (c) a person engaged under section 27A.","sortOrder":1757},{"sectionNumber":"152BBD","sectionType":"section","heading":"Reaching agreement on terms and conditions of access","content":"152BBD  Reaching agreement on terms and conditions of access\n\n (1) The Commission must, in exercising its powers under sections 152BBA and 152BBC in relation to any of the category A standard access obligations, have regard to the desirability of access providers (within the meaning of section 152AR) and access seekers agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a) in a timely manner.\n\n (2) The Commission must, in exercising its powers under sections 152BBA and 152BBC in relation to any of the category B standard access obligations, have regard to the desirability of NBN corporations and access seekers agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a) in a timely manner.","sortOrder":1758},{"sectionNumber":"152BC","sectionType":"section","heading":"Access determinations","content":"152BC  Access determinations\n\n (1) The Commission may make a written determination relating to access to a declared service.\n\n (2) A determination under subsection (1) is to be known as an access determination.\n\n (3) An access determination may:\n\n (a) specify any or all of the terms and conditions on which a carrier or carriage service provider is to comply with any or all of the standard access obligations applicable to the carrier or provider; or\n\n (b) specify any other terms and conditions of an access seeker’s access to the declared service; or\n\n (c) require a carrier or carriage service provider to comply with any or all of the standard access obligations applicable to the carrier or provider in a manner specified in the determination; or\n\n (d) require a carrier or carriage service provider to extend or enhance the capability of a facility by means of which the declared service is supplied; or\n\n (e) impose other requirements on a carrier or carriage service provider in relation to access to the declared service; or\n\n (f) specify the terms and conditions on which a carrier or carriage service provider is to comply with any or all of those other requirements; or\n\n (g) require access seekers to accept, and pay for, access to the declared service; or\n\n (h) provide that any or all of the obligations referred to in section 152AR are not applicable to a carrier or carriage service provider, either:\n\n (i) unconditionally; or\n\n (ii) subject to such conditions or limitations as are specified in the determination; or\n\n (i) restrict or limit the application to a carrier or carriage service provider of any or all of the obligations referred to in section 152AR; or\n\n (j) deal with any other matter relating to access to the declared service.\n\n (4) Subsection (3) does not limit subsection (1).\n\n (4A) An access determination may be expressed to be an NBN‑specific access determination.\n\n (4B) An access determination does not apply in relation to access to a declared service to the extent to which the service is supplied, or is capable of being supplied, by an NBN corporation unless the access determination is expressed to be an NBN‑specific access determination.\n\n (4C) If an access determination is expressed to be an NBN‑specific access determination, the access determination does not apply in relation to access to a declared service to the extent to which the service is supplied, or is capable of being supplied, by a person other than an NBN corporation.\n\n (5) An access determination may make different provision with respect to:\n\n (a) different carriers or carriage service providers; or\n\n (b) different classes of carriers or carriage service providers; or\n\n (c) different access seekers; or\n\n (d) different classes of access seekers.\n\n (6) Subsection (5) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.\n\n (7) An access determination may provide for the Commission to perform functions, and exercise powers, under the determination.\n\n (8) Terms and conditions specified in an access determination as mentioned in paragraph (3)(a), (b) or (f) must include terms and conditions relating to price or a method of ascertaining price.\n\n (9) An access determination is not a legislative instrument.","sortOrder":1761},{"sectionNumber":"152BCA","sectionType":"section","heading":"Matters that the Commission must take into account","content":"152BCA  Matters that the Commission must take into account\n\n (1) The Commission must take the following matters into account in making an access determination:\n\n (a) whether the determination will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services;\n\n (b) the legitimate business interests of a carrier or carriage service provider who supplies, or is capable of supplying, the declared service, and the carrier’s or provider’s investment in facilities used to supply the declared service;\n\n (c) the interests of all persons who have rights to use the declared service;\n\n (d) the direct costs of providing access to the declared service;\n\n (e) the value to a person of extensions, or enhancement of capability, whose cost is borne by someone else;\n\n (f) the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility;\n\n (g) the economically efficient operation of a carriage service, a telecommunications network or a facility.\n\n (2) If a carrier or carriage service provider who supplies, or is capable of supplying, the declared service supplies one or more other eligible services, then, in making an access determination that is applicable to the carrier or provider, as the case may be, the Commission may take into account:\n\n (a) the characteristics of those other eligible services; and\n\n (b) the costs associated with those other eligible services; and\n\n (c) the revenues associated with those other eligible services; and\n\n (d) the demand for those other eligible services.\n\n (3) The Commission may take into account any other matters that it thinks are relevant.\n\n (4) This section does not apply to an interim access determination.\n\n (5) In this section:\n\neligible service has the same meaning as in section 152AL.","sortOrder":1762},{"sectionNumber":"152BCB","sectionType":"section","heading":"Restrictions on access determinations","content":"152BCB  Restrictions on access determinations\n\n (1) The Commission must not make an access determination that would have any of the following effects:\n\n (a) preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR or 152AXB;\n\n (b) preventing a carrier or carriage service provider from obtaining a sufficient amount of the service to be able to meet the carrier’s or provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR or 152AXB;\n\n (c) preventing a person from obtaining, by the exercise of a pre‑determination right, a sufficient level of access to the declared service to be able to meet the person’s actual requirements;\n\n (d) depriving any person of a protected contractual right;\n\n (e) resulting in an access seeker becoming the owner (or one of the owners) of any part of a facility without the consent of the owner of the facility;\n\n (f) requiring a person (other than an access seeker) to bear an unreasonable amount of the costs of:\n\n (i) extending or enhancing the capability of a facility; or\n\n (ii) maintaining extensions to or enhancements of the capability of a facility;\n\n (g) requiring a carrier or carriage service provider to provide an access seeker with access to a declared service if there are reasonable grounds to believe that:\n\n (i) the access seeker would fail, to a material extent, to comply with the terms and conditions on which the carrier or provider provides, or is reasonably likely to provide, that access; or\n\n (ii) the access seeker would fail, in connection with that access, to protect the integrity of a telecommunications network or to protect the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility.\n\n (2) Examples of grounds for believing as mentioned in subparagraph (1)(g)(i) include:\n\n (a) evidence that the access seeker is not creditworthy; and\n\n (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the carrier or carriage service provider).\n\n (3) The Commission must not make an access determination that is inconsistent with any of the standard access obligations that are, or will be, applicable to a carrier or carriage service provider.\n\n (3A) If a final migration plan is in force and imposes obligations or prohibitions on a designated Telstra successor company, the Commission must not make an access determination that would have the effect of requiring the designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.\n\n (3B) The Commission must not make an access determination that would have the effect of:\n\n (a) requiring an NBN corporation to engage in conduct that is inconsistent with conduct authorised under subsection 151DA(2) or (3) for the purposes of subsection 51(1); or\n\n (b) preventing an NBN corporation from giving a refusal that is authorised under subsection 151DA(3) for the purposes of subsection 51(1).\n\n (3C) The Commission must not make an access determination that would have the effect of preventing an NBN corporation from engaging in conduct that is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities.\n\n (3D) In subsection (3C), eligible services, uniform national pricing and utilities have the same meaning as in section 151DA.\n\n (4) If the Commission makes an access determination that has the effect of depriving a person (the second person) of a pre‑determination right to require the carrier or provider to provide access to the declared service to the second person, the determination must also require the access seeker:\n\n (a) to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and\n\n (b) to reimburse the carrier or provider and the Commonwealth for any compensation that the carrier or provider or the Commonwealth agrees, or is required by a court order, to pay to the second person as compensation for the deprivation.\n\n (4A) The Commission must not make an access determination that:\n\n (a) relates to any or all of the category B standard access obligations applicable to an NBN corporation; and\n\n (b) has the effect (whether direct or indirect) of discriminating between access seekers.\n\nNote: For explanatory material, see section 152CJH.\n\n (4B) Subsection (4A) does not prevent discrimination against an access seeker if the Commission has reasonable grounds to believe that the access seeker would fail, to a material extent, to comply with the terms and conditions on which the NBN corporation complies, or on which the NBN corporation is reasonably likely to comply, with the relevant obligation.\n\n (4C) Examples of grounds for believing as mentioned in subsection (4B) include:\n\n (a) evidence that the access seeker is not creditworthy; and\n\n (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the NBN corporation).\n\n (5) An access determination is of no effect to the extent to which it contravenes subsection (1), (3), (3A), (3B), (3C) or (4A).\n\n (6) In this section:\n\npre‑determination right means a right under a contract that was in force:\n\n (a) if the access determination is one of a series of 2 or more successive access determinations—immediately before the first access determination came into force; or\n\n (b) otherwise—immediately before the access determination came into force.\n\nprotected contractual right means a right under a contract that was in force at the beginning of 13 September 1996.","sortOrder":1763},{"sectionNumber":"152BCC","sectionType":"section","heading":"Access agreements prevail over inconsistent access determinations","content":"152BCC  Access agreements prevail over inconsistent access determinations\n\n  If an access determination is applicable to the following parties:\n\n (a) a carrier or carriage service provider;\n\n (b) an access seeker;\n\nthe access determination has no effect to the extent to which it is inconsistent with an access agreement that is applicable to those parties.","sortOrder":1764},{"sectionNumber":"152BCCA","sectionType":"section","heading":"Final migration plan prevails over inconsistent access determinations","content":"152BCCA  Final migration plan prevails over inconsistent access determinations\n\n  If a final migration plan is in force and imposes obligations or prohibitions on a designated Telstra successor company, an access determination has no effect to the extent to which it would have the effect of:\n\n (a) preventing the designated Telstra successor company from complying with the final migration plan; or\n\n (b) requiring the designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.","sortOrder":1765},{"sectionNumber":"152BCCB","sectionType":"section","heading":"Statutory infrastructure provider standards and rules prevail over inconsistent access determinations","content":"152BCCB  Statutory infrastructure provider standards and rules prevail over inconsistent access determinations\n\n  An access determination has no effect to the extent to which it is inconsistent with:\n\n (a) a standard determined, or a benchmark set, under section 360U of the Telecommunications Act 1997; or\n\n (b) rules made under section 360V of that Act.","sortOrder":1766},{"sectionNumber":"152BCD","sectionType":"section","heading":"Fixed principles provisions","content":"152BCD  Fixed principles provisions\n\n (1) An access determination may include a provision that is specified in the determination to be a fixed principles provision.\n\n (2) If a fixed principles provision is included in an access determination, the determination must provide that a specified date is the nominal termination date for the fixed principles provision. The nominal termination date may be later than the expiry date for the determination.\n\n (3) If:\n\n (a) an access determination (the replacement access determination) is expressed to replace a previous access determination; and\n\n (b) the previous access determination included a fixed principles provision; and\n\n (c) the nominal termination date for the fixed principles provision is later than the day on which the replacement access determination comes into force;\n\nthen:\n\n (d) the replacement access determination must include a provision in the same terms as the fixed principles provision; and\n\n (e) the provision must be specified in the replacement access determination to be a fixed principles provision; and\n\n (f) the nominal termination date for the fixed principles provision so included in the replacement access determination must be the same as, or later than, the nominal termination date for the fixed principles provision included in the previous access determination; and\n\n (g) if the previous access determination provided that the previous access determination must not be varied so as to alter or remove the fixed principles provision—the replacement access determination must provide that the replacement access determination must not be varied so as to alter or remove the fixed principles provision; and\n\n (h) if the previous access determination provided that the previous access determination must not be varied so as to alter or remove the fixed principles provision except in such circumstances as are specified in the previous access determination:\n\n (i) the replacement access determination must provide that the replacement access determination must not be varied so as to alter or remove the fixed principles provision except in such circumstances as are specified in the replacement access determination; and\n\n (ii) those circumstances must be the same as the circumstances specified in the previous access determination.\n\n (4) If:\n\n (a) a fixed principles provision is included in an access determination; and\n\n (b) the access determination ceases to be in force before the nominal termination date for the fixed principles provision;\n\nthe fixed principles provision ceases to be in force when the access determination ceases to be in force.\n\nNote: Even though a fixed principles provision ceases to be in force when the access determination ceases to be in force, subsection (3) requires that a replacement access determination include a provision in the same terms as the fixed principles provision.\n\n (5) If a fixed principles provision is included in an access determination, the access determination must:\n\n (a) provide that the access determination must not be varied so as to alter or remove the fixed principles provision; or\n\n (b) provide that the access determination must not be varied so as to alter or remove the fixed principles provision except in such circumstances as are specified in the access determination.","sortOrder":1767},{"sectionNumber":"152BCE","sectionType":"section","heading":"Access determinations may be set out in the same document","content":"152BCE  Access determinations may be set out in the same document\n\n  Two or more access determinations may be set out in the same document.","sortOrder":1768},{"sectionNumber":"152BCF","sectionType":"section","heading":"Duration of access determination","content":"152BCF  Duration of access determination\n\n (1) An access determination relating to access to a declared service:\n\n (a) comes into force on the day specified in the determination as the day on which the determination is to come into force; and\n\n (b) unless sooner revoked, ceases to be in force on the expiry date for the determination.\n\n (2) The specified day may be earlier than the day on which the determination was made.\n\n (2A) The specified day must not be earlier than the date of commencement of this section.\n\n (3) If the declared service is covered by a declaration under section 152AL, and the declaration is not a fresh declaration that replaces a previous declaration, the specified day must not be earlier than the day on which the declaration came into force.\n\n (3A) If the declared service is covered by subsection 152AL(7), the specified day must not be earlier than the day on which the service became a declared service under that subsection.\n\n (3B) If the declared service is covered by subsection 152AL(8D), the specified day must not be earlier than the day on which the service became a declared service under that subsection.\n\n (3C) If the declared service is covered by subsection 152AL(8E), the specified day must not be earlier than the day on which the service became a declared service under that subsection.\n\n (4) If:\n\n (a) an access determination is expressed to replace a previous access determination relating to access to the declared service; and\n\n (b) the previous access determination is not an interim access determination;\n\nthe specified day must be the first day after the expiry of the previous access determination.\n\n (4A) If:\n\n (a) an access determination is expressed to replace a previous access determination relating to access to the declared service; and\n\n (b) the previous access determination is an interim access determination; and\n\n (c) the declared service is covered by a declaration under section 152AL;\n\nthe specified day must not be earlier than the day on which the declaration came into force.\n\nExpiry date\n\n (5) An access determination must specify an expiry date for the determination.\n\n (6) In specifying an expiry date for an access determination, the Commission must have regard to:\n\n (a) in a case where the declared service is covered by a declaration under section 152AL—the principle that the expiry date for the determination should be the same as the expiry date for the declaration (as that declaration stood at the time when the access determination was made) unless, in the Commission’s opinion, there are circumstances that warrant the specification of another date as the expiry date for the access determination; and\n\n (b) such other matters (if any) as the Commission considers relevant.\n\n (7) If an access determination expires, this Part does not prevent the Commission from making a fresh access determination under section 152BC in the same terms as the expired access determination.\n\nAutomatic revocation of access determination\n\n (8) If:\n\n (a) an access determination relating to access to a declared service is in force; and\n\n (b) the declared service is covered by a declaration under section 152AL, and the declaration ceases to be in force; and\n\n (c) the Commission does not make a fresh declaration under section 152AL that replaces the declaration referred to in paragraph (b) of this subsection;\n\nthe access determination is taken to be revoked at the time of the cessation.\n\n (9) If:\n\n (a) an access determination relating to access to a declared service is in force; and\n\n (b) the declared service is covered by a declaration under section 152AL, and the declaration is revoked; and\n\n (c) the Commission does not make a fresh declaration under section 152AL that replaces the declaration referred to in paragraph (b) of this subsection;\n\nthe access determination is taken to be revoked at the time of the revocation of the declaration.\n\n (9A) If:\n\n (a) an interim access determination relating to access to a declared service is in force; and\n\n (b) a final access determination relating to access to the declared service comes into force;\n\nthe interim access determination is taken to be revoked at the time when the final access determination comes into force.\n\nExtension of access determination\n\n (10) If:\n\n (a) an access determination (the original access determination) relating to access to a declared service is in force; and\n\n (b) the Commission has commenced to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make another access determination in relation to access to the service; and\n\n (c) the Commission considers that it will make the other access determination, but will not be in a position to do so before the expiry date for the original access determination;\n\nthe Commission may, by writing, declare that the expiry date for the original access determination is taken to be the day immediately before the day on which the other access determination comes into force.\n\n (11) The Commission must publish a declaration under subsection (10) on the Commission’s website.\n\n (12) If:\n\n (a) after holding a public inquiry under subsection 152ALA(7) in relation to a section 152AL declaration, the Commission:\n\n (i) extends or further extends the expiry date for the declaration by a period of not more than 12 months; and\n\n (ii) decides to allow the declaration to expire after the end of that period; and\n\n (b) an access determination is in force in relation to access to the declared service;\n\nthe Commission may, by writing, extend the expiry date for the access determination by the same period.\n\n (13) The Commission must publish an instrument under subsection (12) on the Commission’s website.\n\n (14) The Commission is not required to observe any requirements of procedural fairness in relation to a decision under subsection (10) or (12).\n\n (15) A declaration under subsection (10) is not a legislative instrument.\n\n (16) An instrument under subsection (12) is not a legislative instrument.","sortOrder":1769},{"sectionNumber":"152BCG","sectionType":"section","heading":"Interim access determinations","content":"152BCG  Interim access determinations\n\n (1) If:\n\n (a) the Commission makes a declaration under section 152AL after the commencement of this section; and\n\n (b) the declaration is not a fresh declaration that replaces a previous declaration; and\n\n (c) the Commission has commenced to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination in relation to access to the declared service; and\n\n (d) either:\n\n (i) the Commission considers that it is unlikely that a final access determination in relation to access to the service will be made within 6 months after the commencement of the public inquiry; or\n\n (ii) the Commission considers that there is an urgent need to make an access determination in relation to access to the service before the completion of the public inquiry;\n\nthe Commission must make an interim access determination in relation to access to the service.\n\n (2) If:\n\n (a) a declaration is in force under section 152AL; and\n\n (b) no access determination has previously been made in relation to access to the declared service;\n\nthe Commission may make an interim access determination in relation to access to the service.\n\n (3) The day specified in an interim access determination as the day on which the determination is to come into force must not be earlier than the day on which the declaration mentioned in paragraph (1)(a) or (2)(a), as the case may be, came into force.\n\n (4) The Commission is not required to observe any requirements of procedural fairness in relation to the making of an interim access determination.\n\n (5) The Commission must not make an interim access determination otherwise than in accordance with this section.","sortOrder":1770},{"sectionNumber":"152BCGA","sectionType":"section","heading":"Stay of access determinations","content":"152BCGA  Stay of access determinations\n\n (1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision of the Commission to make an access determination.\n\n (2) If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision of the Commission to make an access determination, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application.","sortOrder":1771},{"sectionNumber":"152BCH","sectionType":"section","heading":"Access determination to be made after public inquiry","content":"152BCH  Access determination to be made after public inquiry\n\n (1) The Commission must not make an access determination unless:\n\n (a) the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the determination; and\n\n (b) the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997; and\n\n (c) the report was published during the 180‑day period ending when the determination was made.\n\n (2) Subsection (1) does not apply to an interim access determination.\n\n (3) Subsection (1) has effect subject to section 152BCI.","sortOrder":1773},{"sectionNumber":"152BCI","sectionType":"section","heading":"When public inquiry must be held","content":"152BCI  When public inquiry must be held\n\n (1) If:\n\n (a) the Commission makes a declaration under section 152AL after the commencement of this section; and\n\n (b) no access determination has previously been made in relation to access to the declared service;\n\nthe Commission must, within 30 days after the declaration is made, commence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.\n\n (2) If:\n\n (a) a declaration is in force under section 152AL immediately after the commencement of this section; and\n\n (b) no access determination has previously been made in relation to access to the declared service;\n\nthe Commission must, during the 12‑month period beginning at the commencement of this section, commence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.\n\n (3) If:\n\n (a) a declaration is in force under section 152AL; and\n\n (b) an access determination has previously been made in relation to access to the declared service;\n\nthe Commission must, during the period:\n\n (c) beginning 18 months before the expiry date for the access determination; and\n\n (d) ending 6 months before the expiry date for the access determination;\n\ncommence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.\n\n (4) Subsection (3) has effect subject to subsections (5), (6) and (7).\n\n (5) If:\n\n (a) a declaration (the current declaration) is in force under section 152AL; and\n\n (b) an access determination has previously been made in relation to access to the declared service; and\n\n (c) the expiry date of the current declaration is extended or further extended for a period of not more than 12 months; and\n\n (d) the Commission decides to allow the current declaration to expire without making a new declaration under section 152AL;\n\nthe Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.\n\n (6) If:\n\n (a) a declaration is in force under section 152AL; and\n\n (b) an access determination (the current determination) is in force in relation to access to the declared service; and\n\n (c) the Commission commences to hold a public inquiry under subsection 152ALA(7) in relation to the declaration;\n\nthen:\n\n (d) the Commission may defer holding a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service until the Commission decides whether to extend or further extend the expiry date for the declaration; and\n\n (e) if the Commission decides to extend or further extend the expiry date for the declaration—the Commission must commence to hold such a public inquiry before the expiry date for the current access determination; and\n\n (f) if the Commission decides not to extend or further extend the expiry date for the declaration—the Commission is not required to hold such a public inquiry.\n\n (7) If:\n\n (a) a declaration is in force under section 152AL; and\n\n (b) an access determination has previously been made in relation to access to the declared service; and\n\n (c) after holding a public inquiry under subsection 152ALA(7) in relation to the declaration, the Commission decides to allow the declaration to expire without making a new declaration under section 152AL;\n\nthe Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.\n\nNote: If a service is a declared service under subsection 152AL(7) (which deals with special access undertakings), there is no need for the Commission to make a declaration of the service under section 152AL.\n\n (8) Despite anything else in this section, if:\n\n (a) the Commission makes binding rules of conduct that relate to access to a declared service; and\n\n (b) no access determination is in force in relation to access to the declared service;\n\nthe Commission must, within 30 days after the binding rules of conduct are made, commence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.","sortOrder":1774},{"sectionNumber":"152BCJ","sectionType":"section","heading":"Combined inquiries about proposals to make access determinations","content":"152BCJ  Combined inquiries about proposals to make access determinations\n\n (1) The Commission may decide to combine 2 or more public inquiries of a kind mentioned in section 152BCH.\n\n (2) If the Commission makes such a decision:\n\n (a) the Commission may publish a single notice relating to the combined inquiry under section 498 of the Telecommunications Act 1997; and\n\n (b) the Commission may prepare a single discussion paper about the combined inquiry under section 499 of that Act; and\n\n (c) the Commission may hold hearings relating to the combined inquiry under section 501 of that Act; and\n\n (d) the Commission must ensure that each inquiry is covered by a report under section 505 of that Act, whether the report relates:\n\n (i) to a single one of those inquiries; or\n\n (ii) to any 2 or more of those inquiries.","sortOrder":1775},{"sectionNumber":"152BCK","sectionType":"section","heading":"Time limit for making an access determination","content":"152BCK  Time limit for making an access determination\n\n (1) This section applies if the Commission commences to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination, and the declared service to which the access determination relates is not covered by subsection 152AL(8D).\n\n (2) The Commission must make a final access determination within 6 months after that commencement.\n\nExtension of decision‑making period\n\n (3) The Commission may, by written notice published on its website, extend or further extend the 6‑month period referred to in subsection (2), so long as:\n\n (a) the extension or further extension is for a period of not more than 6 months; and\n\n (b) the notice includes a statement explaining why the Commission has been unable to make a final access determination within that 6‑month period or that 6‑month period as previously extended, as the case may be.\n\nNote: The Commission may be required to make an interim access determination—see section 152BCG.","sortOrder":1776},{"sectionNumber":"152BCN","sectionType":"section","heading":"Variation or revocation of access determinations","content":"152BCN  Variation or revocation of access determinations\n\n (1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by section 152BC, but it applies with the following changes.\n\n (2) The Commission is not required to hold a public inquiry under Part 25 the Telecommunications Act 1997 about a proposal to vary an access determination if:\n\n (a) the variation is of a minor nature; or\n\n (b) each:\n\n (i) carrier or carriage service provider; and\n\n (ii) access seeker;\n\n  whose interests are likely to be affected by the variation has consented in writing to the variation.\n\n (3) The Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to revoke an access determination if the Commission is satisfied that each:\n\n (a) carrier or service provider; and\n\n (b) access seeker;\n\nwhose interests are likely to be affected by the revocation has consented in writing to the revocation.\n\n (4) If a fixed principles provision is included in an access determination:\n\n (a) a provision referred to in paragraph 152BCD(5)(a) or (b) cannot be varied or removed; and\n\n (b) the access determination must not be varied in a manner that is inconsistent with a provision referred to in paragraph 152BCD(5)(a) or (b).\n\n (5) The Commission does not have a duty to consider whether to exercise the power to vary or revoke an access determination, whether the Commission is requested to do so by another person, or in any other circumstances.\n\n (6) If the Commission has commenced to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to vary an access determination, the Commission may alter the proposed variation.\n\n (7) Notice of the alteration is to be published in the same way in which a notice relating to the public inquiry was published under section 498 of the Telecommunications Act 1997.\n\n (8) Subsection (7) does not apply in relation to an alteration if:\n\n (a) the alteration is of a minor nature; or\n\n (b) each:\n\n (i) carrier or carriage service provider; and\n\n (ii) access seeker;\n\n  whose interests are likely to be affected by the alteration has consented in writing to the alteration.\n\n (9) Despite anything else in this section, if:\n\n (a) the Commission makes binding rules of conduct that relate to access to a declared service; and\n\n (b) an access determination is in force in relation to access to the declared service;\n\nthe Commission must, within 30 days after the binding rules of conduct are made, commence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to vary the access determination.","sortOrder":1778},{"sectionNumber":"152BCO","sectionType":"section","heading":"Carrier licence condition","content":"152BCO  Carrier licence condition\n\n  A carrier licence held by a carrier is subject to a condition that the carrier must comply with any access determinations that are applicable to the carrier.","sortOrder":1780},{"sectionNumber":"152BCP","sectionType":"section","heading":"Service provider rule","content":"152BCP  Service provider rule\n\n (1) In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act.\n\n (2) A carriage service provider must comply with any access determinations that are applicable to the provider.","sortOrder":1781},{"sectionNumber":"152BCQ","sectionType":"section","heading":"Private enforcement of access determinations","content":"152BCQ  Private enforcement of access determinations\n\n (1) If the Federal Court is satisfied, on the application of:\n\n (a) an access seeker; or\n\n (b) a carrier; or\n\n (c) a carriage service provider;\n\nthat a person has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of an access determination, the Court may make any or all of the following orders:\n\n (d) an order granting an injunction on such terms as the Court thinks appropriate:\n\n (i) restraining the person from engaging in the conduct; or\n\n (ii) if the conduct involves refusing or failing to do something—requiring the person to do that thing;\n\n (e) an order directing the person to compensate the applicant for loss or damage suffered as a result of the contravention;\n\n (f) any other order that the Court thinks appropriate.\n\n (2) The revocation or expiry of an access determination does not affect any remedy under subsection (1) in respect of a contravention of the access determination that occurred when the access determination was in force.\n\n (3) If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.\n\n (4) A reference in this section to a person involved in the contravention is a reference to a person who has:\n\n (a) aided, abetted, counselled or procured the contravention; or\n\n (b) induced the contravention, whether through threats or promises or otherwise; or\n\n (c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or\n\n (d) conspired with others to effect the contravention.","sortOrder":1783},{"sectionNumber":"152BCR","sectionType":"section","heading":"Consent injunctions","content":"152BCR  Consent injunctions\n\n  On an application for an injunction under section 152BCQ, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.","sortOrder":1784},{"sectionNumber":"152BCS","sectionType":"section","heading":"Interim injunctions","content":"152BCS  Interim injunctions\n\n  The Federal Court may grant an interim injunction pending determination of an application under section 152BCQ.","sortOrder":1785},{"sectionNumber":"152BCT","sectionType":"section","heading":"Factors relevant to granting a restraining injunction","content":"152BCT  Factors relevant to granting a restraining injunction\n\n  The power of the Federal Court to grant an injunction under section 152BCQ restraining a person from engaging in conduct may be exercised whether or not:\n\n (a) it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or\n\n (b) the person has previously engaged in conduct of that kind; or\n\n (c) there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.","sortOrder":1786},{"sectionNumber":"152BCU","sectionType":"section","heading":"Factors relevant to granting a mandatory injunction","content":"152BCU  Factors relevant to granting a mandatory injunction\n\n  The power of the Federal Court to grant an injunction under section 152BCQ requiring a person to do a thing may be exercised whether or not:\n\n (a) it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or\n\n (b) the person has previously refused or failed to do that thing; or\n\n (c) there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that thing.","sortOrder":1787},{"sectionNumber":"152BCV","sectionType":"section","heading":"Discharge or variation of injunction or other order","content":"152BCV  Discharge or variation of injunction or other order\n\n  The Federal Court may discharge or vary an injunction or order granted under this Subdivision.","sortOrder":1788},{"sectionNumber":"152BCW","sectionType":"section","heading":"Register of Access Determinations","content":"152BCW  Register of Access Determinations\n\n (1) The Commission is to maintain a register, to be known as the Register of Access Determinations, in which the Commission includes all access determinations in force.\n\n (2) The Register is to be maintained by electronic means.\n\n (3) The Register is to be made available for inspection on the Commission’s website.\n\n (4) The Register is not a legislative instrument.\n\n (5) If the Commission is satisfied that:\n\n (a) publication of a particular provision of an access determination could reasonably be expected to prejudice substantially the commercial interests of a person; and\n\n (b) the prejudice outweighs the public interest in the publication of the provision;\n\nthe Commission may remove the provision from the version of the access determination that is included in the Register.\n\n (6) If the Commission does so, the Commission must include in the Register an annotation to that effect.","sortOrder":1790},{"sectionNumber":"Division 4A","sectionType":"division","heading":"Binding rules of conduct","content":"Division 4A—Binding rules of conduct","sortOrder":1791},{"sectionNumber":"152BD","sectionType":"section","heading":"Binding rules of conduct","content":"152BD  Binding rules of conduct\n\n (1) The Commission may make written rules that:\n\n (a) specify any or all of the terms and conditions on which a carrier or carriage service provider is to comply with any or all of the standard access obligations applicable to the carrier or provider in relation to a specified declared service; or\n\n (b) require a carrier or carriage service provider to comply with any or all of the standard access obligations applicable to the carrier or provider in relation to a specified declared service in a manner specified in the rules;\n\nif the Commission considers that there is an urgent need to do so.\n\nNote: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.\n\n (2) Rules under subsection (1) are to be known as binding rules of conduct.\n\n (3) Binding rules of conduct may be of general application or may be limited as provided in the rules.\n\n (4) In particular, binding rules of conduct may be limited to:\n\n (a) particular carriers or carriage service providers; or\n\n (b) particular classes of carriers or carriage service providers; or\n\n (c) particular access seekers; or\n\n (d) particular classes of access seekers.\n\n (4A) Binding rules of conduct may be expressed to be NBN‑specific binding rules of conduct.\n\n (4B) Binding rules of conduct do not apply in relation to access to a declared service to the extent to which the service is supplied, or is capable of being supplied, by an NBN corporation unless the binding rules of conduct are expressed to be NBN‑specific binding rules of conduct.\n\n (4C) If binding rules of conduct are expressed to be NBN‑specific binding rules of conduct, the binding rules of conduct do not apply in relation to access to a declared service to the extent to which the service is supplied, or is capable of being supplied, by a person other than an NBN corporation.\n\n (5) Subsection (4) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.\n\n (6) The Commission is not required to observe any requirements of procedural fairness in relation to the making of binding rules of conduct.\n\n (7) The Commission does not have a duty to consider whether to make binding rules of conduct, whether at the request of a person or in any other circumstances.\n\n (8) Binding rules of conduct may provide for the Commission to perform functions, and exercise powers, under the rules.\n\n (9) An instrument under subsection (1) is not a legislative instrument.","sortOrder":1793},{"sectionNumber":"152BDAA","sectionType":"section","heading":"Matters that the Commission must take into account","content":"152BDAA  Matters that the Commission must take into account\n\n (1) The Commission must take the following matters into account in making binding rules of conduct:\n\n (a) whether the binding rules of conduct will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services;\n\n (b) the legitimate business interests of a carrier or carriage service provider who supplies, or is capable of supplying, the declared service, and the carrier’s or provider’s investment in facilities used to supply the declared service;\n\n (c) the interests of all persons who have rights to use the declared service;\n\n (d) the direct costs of providing access to the declared service;\n\n (e) the value to a person of extensions, or enhancement of capability, whose cost is borne by someone else;\n\n (f) the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility;\n\n (g) the economically efficient operation of a carriage service, a telecommunications network or a facility.\n\n (2) If a carrier or carriage service provider who supplies, or is capable of supplying, the declared service supplies one or more other eligible services, then, in making binding rules of conduct that are applicable to the carrier or provider, as the case may be, the Commission may take into account:\n\n (a) the characteristics of those other eligible services; and\n\n (b) the costs associated with those other eligible services; and\n\n (c) the revenues associated with those other eligible services; and\n\n (d) the demand for those other eligible services.\n\n (3) The Commission may take into account any other matters that it thinks are relevant.\n\n (4) The Commission is not required by subsection (1) or (2) to take a matter into account if it is not reasonably practicable for the Commission to do so, having regard to the urgent need to make the binding rules of conduct.\n\n (5) For the purposes of taking a particular matter into account under this section, the Commission is not required to obtain information, or further information, that is not already in the possession of the Commission if it is not reasonably practicable for the Commission to do so, having regard to the urgent need to make the binding rules of conduct.\n\n (6) In this section:\n\neligible service has the same meaning as in section 152AL.","sortOrder":1794},{"sectionNumber":"152BDA","sectionType":"section","heading":"Restrictions on binding rules of conduct","content":"152BDA  Restrictions on binding rules of conduct\n\n (1) The Commission must not make binding rules of conduct that would have any of the following effects:\n\n (a) preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR or 152AXB;\n\n (b) preventing a carrier or carriage service provider from obtaining a sufficient amount of the service to be able to meet the carrier’s or provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR or 152AXB;\n\n (c) preventing a person from obtaining, by the exercise of a pre‑rules right, a sufficient level of access to the declared service to be able to meet the person’s actual requirements;\n\n (d) depriving any person of a protected contractual right;\n\n (e) resulting in an access seeker becoming the owner (or one of the owners) of any part of a facility without the consent of the owner of the facility;\n\n (f) requiring a person (other than an access seeker) to bear an unreasonable amount of the costs of:\n\n (i) extending or enhancing the capability of a facility; or\n\n (ii) maintaining extensions to or enhancements of the capability of a facility;\n\n (g) requiring a carrier or carriage service provider to provide an access seeker with access to a declared service if there are reasonable grounds to believe that:\n\n (i) the access seeker would fail, to a material extent, to comply with the terms and conditions on which the carrier or provider provides, or is reasonably likely to provide, that access; or\n\n (ii) the access seeker would fail, in connection with that access, to protect the integrity of a telecommunications network or to protect the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility.\n\n (2) Examples of grounds for believing as mentioned in subparagraph (1)(g)(i) include:\n\n (a) evidence that the access seeker is not creditworthy; and\n\n (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the carrier or carriage service provider).\n\n (3) The Commission must not make binding rules of conduct that are inconsistent with any of the standard access obligations that are, or will be, applicable to a carrier or carriage service provider.\n\n (3A) If a final migration plan is in force and imposes obligations or prohibitions on a designated Telstra successor company, the Commission must not make binding rules of conduct that would have the effect of requiring the designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.\n\n (3B) The Commission must not make binding rules of conduct that would have the effect of:\n\n (a) requiring an NBN corporation to engage in conduct that is inconsistent with conduct authorised under subsection 151DA(2) or (3) for the purposes of subsection 51(1); or\n\n (b) preventing an NBN corporation from giving a refusal that is authorised under subsection 151DA(3) for the purposes of subsection 51(1).\n\n (3C) The Commission must not make binding rules of conduct that would have the effect of preventing an NBN corporation from engaging in conduct that is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities.\n\n (3D) In subsection (3C), eligible services, uniform national pricing and utilities have the same meaning as in section 151DA.\n\n (4) If the Commission makes binding rules of conduct that have the effect of depriving a person (the second person) of a pre‑rules right to require the carrier or provider to provide access to the declared service to the second person, the rules must also require the access seeker:\n\n (a) to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and\n\n (b) to reimburse the carrier or provider and the Commonwealth for any compensation that the carrier or provider or the Commonwealth agrees, or is required by a court order, to pay to the second person as compensation for the deprivation.\n\n (4A) The Commission must not make binding rules of conduct that:\n\n (a) relate to any or all of the category B standard access obligations applicable to an NBN corporation; and\n\n (b) have the effect (whether direct or indirect) of discriminating between access seekers.\n\nNote: For explanatory material, see section 152CJH.\n\n (4B) Subsection (4A) does not prevent discrimination against an access seeker if the Commission has reasonable grounds to believe that the access seeker would fail, to a material extent, to comply with the terms and conditions on which the NBN corporation complies, or on which the NBN corporation is reasonably likely to comply, with the relevant obligation.\n\n (4C) Examples of grounds for believing as mentioned in subsection (4B) include:\n\n (a) evidence that the access seeker is not creditworthy; and\n\n (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the NBN corporation).\n\n (5) Binding rules of conduct are of no effect to the extent to which they contravene subsection (1), (3), (3A), (3B), (3C) or (4A).\n\n (6) In this section:\n\npre‑rules right means a right under a contract that was in force immediately before the binding rules of conduct came into force.\n\nprotected contractual right means a right under a contract that was in force at the beginning of 13 September 1996.","sortOrder":1795},{"sectionNumber":"152BDB","sectionType":"section","heading":"Access agreements prevail over inconsistent binding rules of conduct","content":"152BDB  Access agreements prevail over inconsistent binding rules of conduct\n\n  If binding rules of conduct are applicable to the following parties:\n\n (a) a carrier or carriage service provider;\n\n (b) an access seeker;\n\nthe binding rules of conduct have no effect to the extent to which they are inconsistent with an access agreement that is applicable to those parties.","sortOrder":1796},{"sectionNumber":"152BDC","sectionType":"section","heading":"Duration of binding rules of conduct","content":"152BDC  Duration of binding rules of conduct\n\n (1) Binding rules of conduct come into force on the day specified in the rules as the day on which the rules are to come into force.\n\n (2) Binding rules of conduct must specify an expiry date for the rules.\n\n (3) An expiry date must occur in the 12‑month period beginning when the rules were made.\n\n (4) Unless sooner revoked, binding rules of conduct cease to be in force on the expiry date for the rules.","sortOrder":1797},{"sectionNumber":"152BDCA","sectionType":"section","heading":"Final migration plan prevails over inconsistent binding rules of conduct","content":"152BDCA  Final migration plan prevails over inconsistent binding rules of conduct\n\n  If a final migration plan is in force and imposes obligations or prohibitions on a designated Telstra successor company, binding rules of conduct have no effect to the extent to which they would have the effect of:\n\n (a) preventing the designated Telstra successor company from complying with the final migration plan; or\n\n (b) requiring the designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.","sortOrder":1798},{"sectionNumber":"152BDCB","sectionType":"section","heading":"Statutory infrastructure provider standards and rules prevail over inconsistent binding rules of conduct","content":"152BDCB  Statutory infrastructure provider standards and rules prevail over inconsistent binding rules of conduct\n\n  Binding rules of conduct have no effect to the extent to which they are inconsistent with:\n\n (a) a standard determined, or a benchmark set, under section 360U of the Telecommunications Act 1997; or\n\n (b) rules made under section 360V of that Act.","sortOrder":1799},{"sectionNumber":"152BDD","sectionType":"section","heading":"Commission must give copy of binding rules of conduct to carrier etc.","content":"152BDD  Commission must give copy of binding rules of conduct to carrier etc.\n\n  If binding rules of conduct are limited to a particular carrier, carriage service provider or access seeker, as soon as practicable after making the rules, the Commission must give a copy of the rules to the carrier, carriage service provider or access seeker, as the case may be.","sortOrder":1800},{"sectionNumber":"152BDE","sectionType":"section","heading":"Access determinations that are inconsistent with binding rules of conduct","content":"152BDE  Access determinations that are inconsistent with binding rules of conduct\n\n  If a provision of an access determination (other than a fixed principles provision) is inconsistent with binding rules of conduct, the provision has no effect to the extent of the inconsistency.","sortOrder":1801},{"sectionNumber":"152BDEA","sectionType":"section","heading":"Stay of binding rules of conduct","content":"152BDEA  Stay of binding rules of conduct\n\n (1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision of the Commission to make binding rules of conduct.\n\n (2) If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision of the Commission to make binding rules of conduct, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application.","sortOrder":1802},{"sectionNumber":"152BDF","sectionType":"section","heading":"Carrier licence condition","content":"152BDF  Carrier licence condition\n\n  A carrier licence held by a carrier is subject to a condition that the carrier must comply with any binding rules of conduct that are applicable to the carrier.","sortOrder":1804},{"sectionNumber":"152BDG","sectionType":"section","heading":"Service provider rule","content":"152BDG  Service provider rule\n\n (1) In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act.\n\n (2) A carriage service provider must comply with any binding rules of conduct that are applicable to the provider.","sortOrder":1805},{"sectionNumber":"152BDH","sectionType":"section","heading":"Private enforcement of binding rules of conduct","content":"152BDH  Private enforcement of binding rules of conduct\n\n (1) If the Federal Court is satisfied, on the application of:\n\n (a) an access seeker; or\n\n (b) a carrier; or\n\n (c) a carriage service provider;\n\nthat a person has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of binding rules of conduct, the Court may make any or all of the following orders:\n\n (d) an order granting an injunction on such terms as the Court thinks appropriate:\n\n (i) restraining the person from engaging in the conduct; or\n\n (ii) if the conduct involves refusing or failing to do something—requiring the person to do that thing;\n\n (e) an order directing the person to compensate the applicant for loss or damage suffered as a result of the contravention;\n\n (f) any other order that the Court thinks appropriate.\n\n (2) The revocation or expiry of binding rules of conduct does not affect any remedy under subsection (1) in respect of a contravention of the rules that occurred when the rules were in force.\n\n (3) If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.\n\n (4) A reference in this section to a person involved in the contravention is a reference to a person who has:\n\n (a) aided, abetted, counselled or procured the contravention; or\n\n (b) induced the contravention, whether through threats or promises or otherwise; or\n\n (c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or\n\n (d) conspired with others to effect the contravention.","sortOrder":1807},{"sectionNumber":"152BDI","sectionType":"section","heading":"Consent injunctions","content":"152BDI  Consent injunctions\n\n  On an application for an injunction under section 152BDH, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.","sortOrder":1808},{"sectionNumber":"152BDJ","sectionType":"section","heading":"Interim injunctions","content":"152BDJ  Interim injunctions\n\n  The Federal Court may grant an interim injunction pending determination of an application under section 152BDH.","sortOrder":1809},{"sectionNumber":"152BDK","sectionType":"section","heading":"Factors relevant to granting a restraining injunction","content":"152BDK  Factors relevant to granting a restraining injunction\n\n  The power of the Federal Court to grant an injunction under section 152BDH restraining a person from engaging in conduct may be exercised whether or not:\n\n (a) it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or\n\n (b) the person has previously engaged in conduct of that kind; or\n\n (c) there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.","sortOrder":1810},{"sectionNumber":"152BDL","sectionType":"section","heading":"Factors relevant to granting a mandatory injunction","content":"152BDL  Factors relevant to granting a mandatory injunction\n\n  The power of the Federal Court to grant an injunction under section 152BDH requiring a person to do a thing may be exercised whether or not:\n\n (a) it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or\n\n (b) the person has previously refused or failed to do that thing; or\n\n (c) there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that thing.","sortOrder":1811},{"sectionNumber":"152BDM","sectionType":"section","heading":"Discharge or variation of injunction or other order","content":"152BDM  Discharge or variation of injunction or other order\n\n  The Federal Court may discharge or vary an injunction or order granted under this Subdivision.","sortOrder":1812},{"sectionNumber":"152BDN","sectionType":"section","heading":"Register of Binding Rules of Conduct","content":"152BDN  Register of Binding Rules of Conduct\n\n (1) The Commission is to maintain a register, to be known as the Register of Binding Rules of Conduct, in which the Commission includes all binding rules of conduct in force.\n\n (2) The Register is to be maintained by electronic means.\n\n (3) The Register is to be made available for inspection on the Commission’s website.\n\n (4) The Register is not a legislative instrument.\n\n (5) If the Commission is satisfied that:\n\n (a) publication of a particular provision of binding rules of conduct could reasonably be expected to prejudice substantially the commercial interests of a person; and\n\n (b) the prejudice outweighs the public interest in the publication of the provision;\n\nthe Commission may remove the provision from the version of the rules that is included in the Register.\n\n (6) If the Commission does so, the Commission must include in the Register an annotation to that effect.","sortOrder":1814},{"sectionNumber":"Division 4B","sectionType":"division","heading":"Access agreements","content":"Division 4B—Access agreements","sortOrder":1815},{"sectionNumber":"152BE","sectionType":"section","heading":"Access agreements","content":"152BE  Access agreements\n\n (1) For the purposes of this Part, an access agreement is an agreement, where:\n\n (a) the agreement is in writing; and\n\n (b) the agreement is legally enforceable; and\n\n (c) the agreement relates to access to a declared service; and\n\n (d) the parties to the agreement are:\n\n (i) an access seeker; and\n\n (ii) the carrier or carriage service provider who supplies, or proposes to supply, the declared service; and\n\n (e) any of the following subparagraphs applies:\n\n (i) the agreement embodies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any or all of the standard access obligations applicable to the carrier or provider;\n\n (ii) if an access determination imposes requirements on a carrier or carriage service provider in relation to access to the declared service, as mentioned in paragraph 152BC(3)(e)—the agreement embodies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any or all of those requirements;\n\n (iii) the agreement embodies any other terms and conditions of the access seeker’s access to the declared service;\n\n (iv) the agreement requires the carrier or carriage service provider to comply with any or all of the standard access obligations applicable to the carrier or provider in a manner specified in the agreement;\n\n (v) the agreement requires the carrier or carriage service provider to extend or enhance the capability of a facility by means of which the declared service is supplied;\n\n (vi) the agreement imposes other requirements on the carrier or carriage service provider in relation to access to the declared service;\n\n (vii) the agreement specifies the terms and conditions on which the carrier or carriage service provider is to comply with any or all of those other requirements;\n\n (viii) the agreement requires the access seeker to accept, and pay for, access to the declared service;\n\n (ix) the agreement provides that any or all of the obligations referred to in section 152AR are not applicable to the carrier or carriage service provider, either unconditionally or subject to such conditions or limitations as are specified in the agreement;\n\n (x) the agreement restricts or limits the application to the carrier or carriage service provider of any or all of the obligations referred to in section 152AR;\n\n (xi) the agreement deals with any other matter relating to access to the declared service.\n\n (1A) Paragraph (1)(b) does not apply to the agreement to the extent (if any) to which the agreement is covered by subparagraph (1)(e)(ix) or (x).\n\n (2) If:\n\n (a) an agreement relates to access to an eligible service (within the meaning of section 152AL); and\n\n (b) at the time the agreement was entered into to, the eligible service was a not a declared service; and\n\n (c) at a later time (the declaration time), the eligible service becomes a declared service; and\n\n (d) if the agreement had been entered into immediately after the declaration time, the agreement would have been an access agreement;\n\nthe agreement becomes an access agreement immediately after the declaration time.\n\n (3) If:\n\n (a) an access agreement is varied by another agreement (the variation agreement); and\n\n (b) the variation agreement is in writing; and\n\n (c) the variation agreement is legally enforceable;\n\na reference in this Part to the access agreement is a reference to the access agreement as varied by the variation agreement.\n\n (4) It is immaterial whether an access agreement or variation agreement was entered into before or after the commencement of this section.\n\n (5) An access agreement is not a legislative instrument.\n\n (6) A variation agreement is not a legislative instrument.","sortOrder":1816},{"sectionNumber":"152BEA","sectionType":"section","heading":"Quarterly reports about access agreements","content":"152BEA  Quarterly reports about access agreements\n\n (1) Within 30 days after the end of each quarter, a carrier or carriage service provider who supplies, or proposes to supply, a declared service must give the Commission a written statement setting out details of any access agreement in relation to the service in force at any time during that quarter.\n\n (2) The details that must be given under subsection (1) are:\n\n (a) the parties to the agreement; and\n\n (b) the service to which the agreement relates; and\n\n (c) the date the agreement was entered into; and\n\n (d) the period of the agreement; and\n\n (e) if the agreement was varied during the quarter—the details referred to in paragraphs (a) to (d) and (g) in relation to the variation agreement; and\n\n (f) if the agreement was terminated, rescinded or cancelled before the expiry of the agreement—the date the agreement was terminated, rescinded or cancelled; and\n\n (g) such information (if any) about the agreement as is specified in an instrument in force under subsection (3).\n\n (3) The Commission may, by writing, specify information for the purposes of paragraph (2)(g).\n\n (4) An instrument under subsection (3) (including the instrument as amended) ceases to be in force 5 years after the day it is made (unless it is revoked sooner).\n\n (5) The Commission must publish an instrument under subsection (3) on the Commission’s website.\n\n (6) An instrument under subsection (3) is not a legislative instrument.\n\n (7) The Commission may, by writing, require information in a statement given to the Commission under this section to be verified by statutory declaration.\n\n (8) This section does not limit section 155.","sortOrder":1817},{"sectionNumber":"152BEB","sectionType":"section","heading":"Commission may request copy of access agreement or variation agreement","content":"152BEB  Commission may request copy of access agreement or variation agreement\n\n (1) The Commission may, by writing, request a carrier or carriage service provider who supplies, or proposes to supply, a declared service to provide a copy of either or both of the following:\n\n (a) an access agreement in relation to the service;\n\n (b) a variation agreement for an access agreement in relation to the service.\n\nNote: The Procedural Rules may provide for the practice and procedure to be followed by the Commission in making a request under this subsection.\n\n (2) The carrier or carriage service provider must provide a copy of the document within 10 days after the day the request was made under subsection (1).\n\n (3) An instrument under subsection (1) is not a legislative instrument.\n\n (4) This section does not limit section 155.","sortOrder":1818},{"sectionNumber":"152BEBA","sectionType":"section","heading":"NBN corporation to give the Commission a statement about the differences between an access agreement and a standard form of access agreement","content":"152BEBA  NBN corporation to give the Commission a statement about the differences between an access agreement and a standard form of access agreement\n\nAccess agreement\n\n (1) If:\n\n (a) an access agreement is covered by subsection 152BE(1); and\n\n (b) the carrier or carriage service provider who supplies, or proposes to supply, the declared service is an NBN corporation; and\n\n (c) immediately before the access agreement was entered into, a standard form of access agreement relating to access to the service was available on the NBN corporation’s website; and\n\n (d) the terms and conditions set out in the access agreement are not the same as the terms and conditions set out in the standard form of access agreement;\n\nthe NBN corporation must, within 7 days after the day on which the access agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission:\n\n (e) identifying the parties to the access agreement; and\n\n (f) describing the differences between the terms and conditions set out in the access agreement and the terms and conditions set out in the standard form of access agreement; and\n\n (j) setting out such other information (if any) about the access agreement as is required by the form.\n\nVariation agreement\n\n (2) If:\n\n (a) a variation agreement is entered into after the commencement of this section; and\n\n (b) the carrier or carriage service provider who supplies, or proposes to supply, the service to which the relevant access agreement relates is an NBN corporation; and\n\n (c) immediately before the variation agreement was entered into, a standard form of access agreement relating to access to the service was available on the NBN corporation’s website; and\n\n (d) the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) are not the same as the terms and conditions set out in the standard form of access agreement;\n\nthe NBN corporation must, within 7 days after the day on which the variation agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission:\n\n (e) identifying the parties to the relevant access agreement (as varied by the variation agreement); and\n\n (f) describing the differences between the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) and the terms and conditions set out in the standard form of access agreement; and\n\n (j) setting out such other information (if any) about the relevant access agreement (as varied by the variation agreement) as is required by the form.","sortOrder":1819},{"sectionNumber":"152BEBB","sectionType":"section","heading":"NBN corporation to give the Commission a statement about the differences between an access agreement and a special access undertaking","content":"152BEBB  NBN corporation to give the Commission a statement about the differences between an access agreement and a special access undertaking\n\nAccess agreement\n\n (1) If:\n\n (a) an access agreement is covered by subsection 152BE(1); and\n\n (b) the carrier or carriage service provider who supplies, or proposes to supply, the declared service is an NBN corporation; and\n\n (c) immediately before the access agreement was entered into, a special access undertaking that:\n\n (i) relates to access to the service; and\n\n (ii) was given by the NBN corporation;\n\n  was in operation; and\n\n (d) the terms and conditions set out in the access agreement are not the same as the terms and conditions set out in the special access undertaking;\n\nthe NBN corporation must, within 7 days after the day on which the access agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission:\n\n (e) identifying the parties to the access agreement; and\n\n (f) describing the differences between the terms and conditions set out in the access agreement and the terms and conditions set out in the special access undertaking; and\n\n (j) setting out such other information (if any) about the access agreement as is required by the form.\n\nVariation agreement\n\n (2) If:\n\n (a) a variation agreement is entered into after the commencement of this section; and\n\n (b) the carrier or carriage service provider who supplies, or proposes to supply, the service to which the relevant access agreement relates is an NBN corporation; and\n\n (c) immediately before the variation agreement was entered into, a special access undertaking that:\n\n (i) relates to access to the service; and\n\n (ii) was given by the NBN corporation;\n\n  was in operation; and\n\n (d) the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) are not the same as the terms and conditions set out in the special access undertaking;\n\nthe NBN corporation must, within 7 days after the day on which the variation agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission:\n\n (e) identifying the parties to the relevant access agreement (as varied by the variation agreement); and\n\n (f) describing the differences between the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) and the terms and conditions set out in the special access undertaking; and\n\n (j) setting out such other information (if any) about the relevant access agreement (as varied by the variation agreement) as is required by the form.","sortOrder":1820},{"sectionNumber":"152BEBC","sectionType":"section","heading":"NBN corporation to give the Commission a statement about the differences between an access agreement and an access determination","content":"152BEBC  NBN corporation to give the Commission a statement about the differences between an access agreement and an access determination\n\nAccess agreement\n\n (1) If:\n\n (a) an access agreement is covered by subsection 152BE(1); and\n\n (b) the carrier or carriage service provider who supplies, or proposes to supply, the declared service is an NBN corporation; and\n\n (c) immediately before the access agreement was entered into, an access determination relating to access to the service was in force; and\n\n (d) the terms and conditions set out in the access agreement are not the same as the terms and conditions set out in the access determination;\n\nthe NBN corporation must, within 7 days after the day on which the access agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission:\n\n (e) identifying the parties to the access agreement; and\n\n (f) describing the differences between the terms and conditions set out in the access agreement and the terms and conditions set out in the access determination; and\n\n (j) setting out such other information (if any) about the access agreement as is required by the form.\n\nVariation agreement\n\n (2) If:\n\n (a) a variation agreement is entered into after the commencement of this section; and\n\n (b) the carrier or carriage service provider who supplies, or proposes to supply, the service to which the relevant access agreement relates is an NBN corporation; and\n\n (c) immediately before the variation agreement was entered into, an access determination relating to access to the service was in force; and\n\n (d) the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) are not the same as the terms and conditions set out in the access determination;\n\nthe NBN corporation must, within 7 days after the day on which the variation agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission:\n\n (e) identifying the parties to the relevant access agreement (as varied by the variation agreement); and\n\n (f) describing the differences between the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) and the terms and conditions set out in the access determination; and\n\n (j) setting out such other information (if any) about the relevant access agreement (as varied by the variation agreement) as is required by the form.","sortOrder":1821},{"sectionNumber":"152BEBD","sectionType":"section","heading":"Register of NBN Access Agreement Statements","content":"152BEBD  Register of NBN Access Agreement Statements\n\n (1) The Commission is to maintain a register, to be known as the Register of NBN Access Agreement Statements, in which the Commission includes all statements given to it under the following provisions:\n\n (a) section 152BEBA;\n\n (b) section 152BEBB;\n\n (c) section 152BEBC.\n\n (2) The Register is to be maintained by electronic means.\n\n (3) The Register is to be made available for inspection on the Commission’s website.\n\n (4) The Register is not a legislative instrument.\n\n (5) If the Commission is satisfied that:\n\n (a) publication of particular material contained in a statement could reasonably be expected to prejudice substantially the commercial interests of a person; and\n\n (b) the prejudice outweighs the public interest in the publication of the matter;\n\nthe Commission may remove the material from the version of the statement that is included in the Register.\n\n (6) If the Commission does so, the Commission must include in the Register an annotation to that effect.","sortOrder":1822},{"sectionNumber":"152BEBH","sectionType":"section","heading":"Statutory infrastructure provider standards prevail over inconsistent access agreements","content":"152BEBH  Statutory infrastructure provider standards prevail over inconsistent access agreements\n\n (1) An access agreement entered into after the commencement of this section has no effect to the extent to which it is inconsistent with a standard determined, or a benchmark set, under section 360U of the Telecommunications Act 1997.\n\n (2) Subsection (1) does not apply to an access agreement covered by subsection 360U(5) of the Telecommunications Act 1997.","sortOrder":1823},{"sectionNumber":"152BEBI","sectionType":"section","heading":"Statutory infrastructure provider rules prevail over inconsistent access agreements","content":"152BEBI  Statutory infrastructure provider rules prevail over inconsistent access agreements\n\n (1) An access agreement entered into after the commencement of this section has no effect to the extent to which it is inconsistent with rules made under section 360V of the Telecommunications Act 1997.\n\n (2) Subsection (1) does not apply to an access agreement covered by subsection 360V(3) of the Telecommunications Act 1997.","sortOrder":1824},{"sectionNumber":"152BEC","sectionType":"section","heading":"Carrier licence condition","content":"152BEC  Carrier licence condition\n\n  A carrier licence held by a carrier is subject to a condition that the carrier must comply with sections 152BEA, 152BEB, 152BEBA, 152BEBB and 152BEBC.","sortOrder":1825},{"sectionNumber":"152BED","sectionType":"section","heading":"Service provider rule","content":"152BED  Service provider rule\n\n (1) In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act.\n\n (2) A carriage service provider must comply with sections 152BEA, 152BEB, 152BEBA, 152BEBB and 152BEBC.","sortOrder":1826},{"sectionNumber":"152CBA","sectionType":"section","heading":"What is a special access undertaking?","content":"152CBA  What is a special access undertaking?\n\nScope\n\n (1) This section applies to:\n\n (a) a person (other than an NBN corporation) who is, or expects to be, a carrier or a carriage service provider supplying:\n\n (i) a listed carriage service (within the meaning of the Telecommunications Act 1997); or\n\n (ii) a service that facilitates the supply of a listed carriage service (within the meaning of that Act);\n\n  whether to itself or to other persons, so long as the service is not a declared service; or\n\n (b) a person who is an NBN corporation and who is, or expects to be, a carrier or carriage service provider supplying or capable of supplying:\n\n (i) a listed carriage service (within the meaning of the Telecommunications Act 1997); or\n\n (ii) a service that facilitates the supply of a listed carriage service (within the meaning of that Act);\n\n  whether to itself or to other persons, so long as:\n\n (iii) the service is not a declared service under subsection 152AL(8A); and\n\n (iv) there is no access determination that applies in relation to access to the service.\n\nUndertaking\n\n (2) The person may give a written undertaking (a special access undertaking) to the Commission in connection with the provision of access to the service.\n\n (3) If paragraph (1)(a) applies, the undertaking must state that, in the event that the person supplies the service (whether to itself or to other persons), the person:\n\n (a) agrees to be bound by the obligations referred to in section 152AR, to the extent that those obligations would apply to the person in relation to the service if the service were treated as an active declared service; and\n\n (b) undertakes to comply with the terms and conditions specified in the undertaking in relation to the obligations referred to in paragraph (a).\n\nNote: The undertaking need not specify all terms and conditions—see subparagraph 152AY(2)(b)(ii).\n\n (3A) If paragraph (1)(b) applies, the undertaking must state that, in the event that the person supplies, or becomes capable of supplying, the service (whether to itself or to other persons), the person:\n\n (a) agrees to be bound by the obligations referred to in section 152AXB, to the extent that those obligations would apply to the person in relation to the service if the service were treated as a declared service; and\n\n (b) undertakes to comply with the terms and conditions specified in the undertaking in relation to the obligations referred to in section 152AXB.\n\nNote: The undertaking need not specify all terms and conditions—see subparagraph 152AY(2)(b)(ii).\n\n (3B) The undertaking may also state, in the event that the person supplies the service (whether to itself or to other persons), the person:\n\n (a) will engage in specified conduct in relation to access to the service; and\n\n (b) will do so on such terms and conditions as are specified in the undertaking.\n\n (3C) If the person is an NBN corporation, the undertaking may also state that the NBN corporation will engage in specified conduct in relation to:\n\n (a) developing a new eligible service (within the meaning of section 152AL); or\n\n (b) enhancing a declared service; or\n\n (c) extending or enhancing the capability of a facility or telecommunications network by means of which a declared service is, or is to be, supplied; or\n\n (d) planning for a facility or telecommunications network by means of which a declared service is, or is to be, supplied; or\n\n (e) an activity that is preparatory to the supply of a declared service; or\n\n (f) an activity that is ancillary or incidental to the supply of a declared service; or\n\n (g) giving information to service providers about any of the above activities.\n\n (3D) For the purposes of this Part, in determining whether the undertaking relates to a particular service or proposed service, disregard a statement included in the undertaking in accordance with subsection (3C).\n\n (4) The undertaking must be in a form approved in writing by the Commission.\n\n (5) The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking.\n\nExpiry time\n\n (6) The undertaking must specify the expiry time of the undertaking.\n\n (7) The expiry time of the undertaking may be described by reference to the end of a period beginning:\n\n (a) when the undertaking comes into operation; or\n\n (b) when the person begins to supply the service (whether to itself or to other persons).\n\n (8) Subsection (7) does not, by implication, limit subsection (6).\n\n (9) The undertaking may provide for the person to extend, or further extend, the expiry time of the undertaking, so long as:\n\n (a) the extension or further extension is approved by the Commission; and\n\n (b) the undertaking sets out criteria that are to be applied by the Commission in deciding whether to approve the extension or further extension.\n\n (10) If the undertaking expires, this Part does not prevent the person from giving a fresh special access undertaking in the same terms as the expired undertaking.\n\nCommission may perform functions or exercise powers\n\n (10A) If the undertaking provides for the Commission to perform functions or exercise powers in relation to the undertaking, the Commission may perform those functions, and exercise those powers, in accordance with the undertaking.\n\nRelated services\n\n (11) A reference in subparagraphs (1)(a)(ii) and (b)(ii) to a service that facilitates the supply of a carriage service does not include a reference to the use of intellectual property except to the extent that it is an integral but subsidiary part of the first‑mentioned service.\n\nDefinition\n\n (12) In this section:\n\nactive declared service has the same meaning as in section 152AR (disregarding subsection 152AL(7)).\n\nNote: A service includes a proposed service—see section 152CBJ.","sortOrder":1829},{"sectionNumber":"152CBAA","sectionType":"section","heading":"Fixed principles terms and conditions","content":"152CBAA  Fixed principles terms and conditions\n\n (1) A special access undertaking may provide that a term or condition specified in the undertaking is a fixed principles term or condition for a period that, under the undertaking, is expressed to be the notional fixed period for the fixed principles term or condition.\n\n (2) If the undertaking does so, the undertaking may also provide that one or more specified circumstances are qualifying circumstances in relation to the fixed principles term or condition.\n\n (3) The notional fixed period for a fixed principles term or condition must:\n\n (a) begin when the undertaking comes into operation; and\n\n (b) end:\n\n (i) at the expiry time of the undertaking; or\n\n (ii) if an earlier time is ascertained in accordance with the undertaking—at that earlier time; or\n\n (iii) if a later time is ascertained in accordance with the undertaking—at that later time.\n\n (4) If:\n\n (a) a fixed principles term or condition is specified in a special access undertaking; and\n\n (b) the undertaking ceases to be in operation before the end of the notional fixed period for the fixed principles term or condition;\n\nthe fixed principles term or condition ceases to be in operation when the undertaking ceases to be in operation.\n\nNote: Even though the fixed principles term or condition ceases to be in operation when the undertaking ceases to be in operation, subsection (5) ensures that a fresh undertaking can include an identical fixed principles term or condition.\n\nConsequences—acceptance of other undertaking\n\n (5) If:\n\n (a) a special access undertaking (the original undertaking) given by a person in relation to a particular service contained a fixed principles term or condition (the original fixed principles term or condition); and\n\n (b) the original undertaking was accepted by the Commission; and\n\n (c) during the notional fixed period for the original fixed principles term or condition, the person gives the Commission another special access undertaking (the other undertaking) in relation to the service; and\n\n (d) the other undertaking contains a fixed principles term or condition (the corresponding fixed principles term or condition) that is identical to the original fixed principles term or condition; and\n\n (e) the notional fixed period for the corresponding fixed principles term or condition ends at or before the end of the notional fixed period for the original fixed principles term or condition; and\n\n (f) if there are qualifying circumstances in relation to the original fixed principles term or condition:\n\n (i) there are qualifying circumstances in relation to the corresponding fixed principles term or condition; and\n\n (ii) those qualifying circumstances are identical to the qualifying circumstances in relation to the original fixed principles term or condition; and\n\n (g) if there are qualifying circumstances in relation to the original fixed principles term or condition—none of those circumstances exist;\n\nthen:\n\n (h) the Commission must not reject the other undertaking for a reason that concerns:\n\n (i) the corresponding fixed principles term or condition; or\n\n (ii) the notional fixed period for the corresponding fixed principles term or condition; or\n\n (iii) if there are qualifying circumstances in relation to the corresponding fixed principles term or condition—the specification of those circumstances; and\n\n (i) paragraphs 152CBD(2)(a), (b), (c) and (ca) do not apply to:\n\n (i) the corresponding fixed principles term or condition; or\n\n (ii) the notional fixed period for the corresponding fixed principles term or condition; or\n\n (iii) if there are qualifying circumstances in relation to the corresponding fixed principles term or condition—those circumstances; and\n\n (j) if the corresponding fixed principles term or condition is the only term or condition contained in the other undertaking—paragraph 152CBD(2)(d) does not apply to the other undertaking; and\n\n (k) if the corresponding fixed principles term or condition is not the only term or condition contained in the other undertaking—subparagraph 152CBD(2)(d)(ii) does not require the Commission to consider any submissions to the extent to which they relate to:\n\n (i) the corresponding fixed principles term or condition; or\n\n (ii) the notional fixed period for the corresponding fixed principles term or condition; or\n\n (iii) if there are qualifying circumstances in relation to the corresponding fixed principles term or condition—those circumstances.\n\nConsequences—variation of undertaking\n\n (6) If:\n\n (a) a special access undertaking given by a person in relation to a particular service contains a fixed principles term or condition (the original fixed principles term or condition); and\n\n (b) the undertaking has been accepted by the Commission; and\n\n (c) during the notional fixed period for the original fixed principles term or condition, the person gives the Commission a variation of the undertaking; and\n\n (d) the varied undertaking contains a fixed principles term or condition (the corresponding fixed principles term or condition) that is identical to the original fixed principles term or condition; and\n\n (e) the notional fixed period for the corresponding fixed principles term or condition is identical to the notional fixed period for the original fixed principles term or condition; and\n\n (f) if there are qualifying circumstances in relation to the original fixed principles term or condition:\n\n (i) there are qualifying circumstances in relation to the corresponding fixed principles term or condition; and\n\n (ii) those qualifying circumstances are identical to the qualifying circumstances in relation to the original fixed principles term or condition; and\n\n (g) if there are qualifying circumstances in relation to the original fixed principles term or condition—none of those circumstances exist;\n\nthe Commission must not reject the variation for a reason that concerns:\n\n (h) the corresponding fixed principles term or condition; or\n\n (i) the notional fixed period for the corresponding fixed principles term or condition; or\n\n (j) if there are qualifying circumstances in relation to the corresponding fixed principles term or condition—the specification of those circumstances.","sortOrder":1830},{"sectionNumber":"152CBB","sectionType":"section","heading":"Further information about undertaking","content":"152CBB  Further information about undertaking\n\n (1) This section applies if a person gives a special access undertaking to the Commission.\n\n (2) The Commission may request the person to give the Commission further information about the undertaking.\n\n (2A) If:\n\n (a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and\n\n (b) the person does not give the Commission the information within the time limit allowed by the Procedural Rules;\n\nthe Commission may, by written notice given to the person, reject the undertaking.\n\n (2B) Subsection (2A) has effect despite anything in this Division.\n\n (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).\n\n (3) If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the undertaking until the person gives the Commission the information.\n\n (4) The Commission may withdraw its request for further information, in whole or in part.","sortOrder":1831},{"sectionNumber":"152CBC","sectionType":"section","heading":"Commission to accept or reject access undertaking","content":"152CBC  Commission to accept or reject access undertaking\n\n (1) This section applies if a person gives a special access undertaking to the Commission.\n\n (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.\n\nDecision to accept or reject undertaking\n\n (2) After considering the undertaking, the Commission must:\n\n (a) accept the undertaking; or\n\n (b) reject the undertaking.\n\nNotice of decision\n\n (3) If the Commission accepts the undertaking, the Commission must give the person a written notice stating that the undertaking has been accepted.\n\n (4) If the Commission rejects the undertaking, the Commission must give the person a written notice:\n\n (a) stating that the undertaking has been rejected; and\n\n (b) setting out the reasons for the rejection.\n\nCommission to make decision within 6 months\n\n (5) If the Commission does not make a decision under subsection (2) about the undertaking within 6 months after receiving the undertaking, the Commission is taken to have made, at the end of that 6‑month period, a decision under subsection (2) to accept the undertaking.\n\n (6) In calculating the 6‑month period referred to in subsection (5), disregard:\n\n (aa) if:\n\n (i) the Commission has given a notice under section 152CBDA in relation to the undertaking; and\n\n (ii) no varied undertaking was given to the Commission in response to the notice;\n\n  a day in the period specified in the notice; and\n\n (ab) if:\n\n (i) the Commission has given a notice under section 152CBDA in relation to the undertaking; and\n\n (ii) a varied undertaking was given to the Commission in response to the notice; and\n\n (iii) the Commission did not publish the varied undertaking under paragraph 152CBD(2)(d);\n\n  a day in the period:\n\n (iv) beginning on the day in which the notice was given; and\n\n (v) ending when the varied undertaking was given to the Commission in response to the notice; and\n\n (ac) if:\n\n (i) the Commission has given a notice under section 152CBDA in relation to the undertaking; and\n\n (ii) a varied undertaking was given to the Commission in response to the notice; and\n\n (iii) the varied undertaking was published under paragraph 152CBD(2)(d);\n\n  a day in the period:\n\n (iv) beginning on the day on which the notice was given; and\n\n (v) ending at the end of the time specified by the Commission when it published the varied undertaking; and\n\n (a) if paragraph (ac) does not apply and the Commission has published the undertaking under paragraph 152CBD(2)(d)—a day in the period:\n\n (i) beginning on the date of publication; and\n\n (ii) ending at the end of the time limit specified by the Commission when it published the undertaking; and\n\n (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.\n\nExtension of decision‑making period\n\n (7) The Commission may, by written notice given to the person, extend or further extend the 6‑month period referred to in subsection (5), so long as:\n\n (a) the extension or further extension is for a period of not more than 3 months; and\n\n (b) the notice includes a statement explaining why the Commission has been unable to make a decision on the undertaking within that 6‑month period or that 6‑month period as previously extended, as the case may be.\n\n (8) As soon as practicable after the Commission gives a notice under subsection (7), the Commission must cause a copy of the notice to be made available on the internet.","sortOrder":1832},{"sectionNumber":"152CBCA","sectionType":"section","heading":"Serial undertakings","content":"152CBCA  Serial undertakings\n\n  If:\n\n (a) a person gives a special access undertaking (the first special access undertaking) to the Commission; and\n\n (b) the Commission rejects the first special access undertaking; and\n\n (c) the person subsequently gives another special access undertaking to the Commission; and\n\n (d) the Commission is satisfied that any or all of the provisions of the first special access application are materially similar to any or all of the provisions of the other special access undertaking;\n\nthe Commission may refuse to consider the other special access undertaking.","sortOrder":1833},{"sectionNumber":"152CBD","sectionType":"section","heading":"Criteria for accepting access undertaking","content":"152CBD  Criteria for accepting access undertaking\n\n (1) This section applies if a person gives the Commission a special access undertaking relating to a service.\n\n (2) The Commission must not accept the undertaking unless:\n\n (a) if paragraph 152CBA(1)(a) applies—the Commission is satisfied that:\n\n (i) the terms and conditions referred to in paragraph 152CBA(3)(b) would be consistent with the obligations referred to in paragraph 152CBA(3)(a); and\n\n (ii) those terms and conditions are reasonable; and\n\n (b) if paragraph 152CBA(1)(b) applies—the Commission is satisfied that:\n\n (i) the terms and conditions referred to in subsection 152CBA(3A) would be consistent with the obligations referred to in section 152AXB; and\n\n (ii) those terms and conditions are reasonable; and\n\n (c) the Commission is satisfied that the undertaking is consistent with any Ministerial pricing determination; and\n\n (ca) if subsection 152CBA(3B) applies—the Commission is satisfied that:\n\n (i) the conduct referred to in paragraph 152CBA(3B)(a) will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services; and\n\n (ii) the terms and conditions referred to in paragraph 152CBA(3B)(b) are reasonable; and\n\n (cb) if subsection 152CBA(3C) applies—the Commission is satisfied that the conduct specified in accordance with that subsection will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services; and\n\n (d) the Commission has:\n\n (i) published the undertaking and invited people to make submissions to the Commission on the undertaking; and\n\n (ii) considered any submissions that were received within the time limit specified by the Commission when it published the undertaking.\n\nNote: Section 152AH contains a list of matters to be taken into account in determining whether terms and conditions are reasonable.\n\n (3) Subsection (2) has effect subject to subsection 152CBAA(5) (fixed principles terms and conditions).\n\n (4) If the undertaking provides that a term or condition specified in the undertaking is a fixed principles term or condition for a period that, under the undertaking, is expressed to be the notional fixed period for the fixed principles term or condition, the Commission must refuse to accept the undertaking if the Commission considers that:\n\n (a) the fixed principles term or condition should not be a fixed principles term or condition; or\n\n (b) that notional fixed period should not be the notional fixed period for the fixed principles term or condition; or\n\n (c) if the undertaking provides that one or more specified circumstances are qualifying circumstances in relation to the fixed principles term or condition—any of the qualifying circumstances should not be qualifying circumstances in relation to the fixed principles term or condition; or\n\n (d) if the undertaking does not provide that particular circumstances are qualifying circumstances in relation to the fixed principles term or condition—those circumstances should be qualifying circumstances in relation to the fixed principles term or condition.\n\n (5) Subsection (4) has effect subject to subsection 152CBAA(5) (fixed principles terms and conditions).\n\n (5A) If:\n\n (a) the undertaking contains price‑related terms and conditions relating to the supply of a service; and\n\n (b) the price‑related terms and conditions are reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities;\n\nthen:\n\n (c) the Commission must not reject the undertaking for a reason that concerns the price‑related terms and conditions; and\n\n (d) paragraph (2)(b) does not apply to the price‑related terms and conditions.\n\n (5B) In subsection (5A), eligible services, price‑related terms and conditions, uniform national pricing and utilities have the same meaning as in section 151DA.\n\n (5C) If a refusal is authorised under subsection 151DA(2) or (3) for the purposes of subsection 51(1):\n\n (a) the Commission must not reject the undertaking for a reason that concerns that refusal; and\n\n (b) paragraph (2)(b) of this section does not apply to that refusal.\n\n (6) If a special access undertaking is given to the Commission in response to a notice under section 152CBDA, the Commission is not required to publish the undertaking under paragraph (2)(d) of this section unless the Commission is satisfied that:\n\n (a) the variations specified in the notice are not of a minor nature; or\n\n (b) the variations specified in the notice are likely to have a material adverse effect on the legitimate commercial interests of any person.","sortOrder":1834},{"sectionNumber":"152CBDA","sectionType":"section","heading":"Variation of special access undertaking","content":"152CBDA  Variation of special access undertaking\n\n (1) This section applies if a person gives a special access undertaking (the original undertaking) to the Commission.\n\n (2) The Commission may give the person a written notice stating that, if the person:\n\n (a) makes such variations to the original undertaking as are specified in the notice; and\n\n (b) gives the varied undertaking to the Commission within the period specified in the notice;\n\nthe Commission will consider the varied undertaking under section 152CBC as if the varied undertaking had been given to the Commission instead of the original undertaking.\n\n (3) If the person gives the Commission a varied undertaking in response to the notice, the Commission must consider the varied undertaking under section 152CBC as if the varied undertaking had been given to the Commission instead of the original undertaking.\n\n (4) The Commission does not have a duty to consider whether to give a notice under subsection (2).","sortOrder":1835},{"sectionNumber":"152CBE","sectionType":"section","heading":"Extension of access undertaking","content":"152CBE  Extension of access undertaking\n\n (1) This section applies if:\n\n (a) a special access undertaking is given by a person; and\n\n (b) the undertaking is in operation; and\n\n (c) the undertaking provides for the person to extend the expiry time of the undertaking, so long as the extension is approved by the Commission; and\n\n (d) the undertaking sets out criteria that are to be applied by the Commission in deciding whether to approve the extension.\n\n (2) The person may apply to the Commission for approval of the extension. The application must be made in the 12‑month period ending at the expiry time.\n\n (3) An application under subsection (2) must be:\n\n (a) in writing; and\n\n (b) in a form approved in writing by the Commission.\n\n (4) After considering the application, the Commission must decide whether to:\n\n (a) approve the extension; or\n\n (b) refuse to approve the extension.\n\n (5) The Commission must approve the extension if the Commission is satisfied that the criteria referred to in paragraph (1)(d) have been met.\n\n (6) If the Commission approves the extension, the Commission must give the person a written notice stating that the extension has been approved.\n\n (7) If the Commission refuses to approve the extension, the Commission must give the person a written notice:\n\n (a) stating that the Commission has refused to approve the extension; and\n\n (b) setting out the reasons for the refusal.\n\n (8) In this section, a reference to an extension includes a reference to a further extension.","sortOrder":1836},{"sectionNumber":"152CBF","sectionType":"section","heading":"Duration of access undertaking","content":"152CBF  Duration of access undertaking\n\n (1) This section applies if a person gives the Commission a special access undertaking relating to a service.\n\n (2) If the Commission accepts the undertaking:\n\n (a) the undertaking comes into operation at the time of acceptance; and\n\n (b) the undertaking continues in operation until:\n\n (i) it expires; or\n\n (ii) it is withdrawn as mentioned in section 152CBI;\n\n  even if, in the case of an undertaking covered by subsection 152CBA(3), the service becomes an active declared service.\n\n (3) In this section:\n\nactive declared service has the same meaning as in section 152AR (disregarding subsection 152AL(7)).","sortOrder":1837},{"sectionNumber":"152CBG","sectionType":"section","heading":"Variation of access undertakings","content":"152CBG  Variation of access undertakings\n\n (1) This section applies if a special access undertaking given by a person is in operation.\n\n (2) The person may give the Commission a variation of the undertaking.\n\n (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.\n\nDecision to accept or reject variation\n\n (3) After considering the variation, the Commission must decide to:\n\n (a) accept the variation; or\n\n (b) reject the variation.\n\n (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.\n\n (4A) Subsection (4) has effect subject to subsection 152CBAA(6) (fixed principles terms and conditions).\n\nNotice of decision\n\n (5) If the Commission accepts the variation, the Commission must give the person a written notice:\n\n (a) stating that the variation has been accepted; and\n\n (b) setting out the terms of the variation.\n\n (6) If the Commission rejects the variation, the Commission must give the person a written notice:\n\n (a) stating that the variation has been rejected; and\n\n (b) setting out the reasons for the rejection.\n\nCommission to make decision within 6 months\n\n (7) If the Commission does not make a decision under subsection (3) about the variation within 6 months after receiving the variation, the Commission is taken to have made, at the end of that 6‑month period, a decision under subsection (3) to accept the variation.\n\n (8) In calculating the 6‑month period referred to in subsection (7), disregard:\n\n (a) if the Commission has published the variation under paragraph 152CBD(2)(d)—a day in the period:\n\n (i) beginning on the date of publication; and\n\n (ii) ending at the end of the time limit specified by the Commission when it published the variation; and\n\n (b) if the Commission has requested further information under section 152CBH in relation to the variation—a day during any part of which the request, or any part of the request, remains unfulfilled.\n\nExtension of decision‑making period\n\n (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:\n\n (a) the extension or further extension is for a period of not more than 3 months; and\n\n (b) the notice includes a statement explaining why the Commission has been unable to make a decision on the variation within that 6‑month period or that 6‑month period as previously extended, as the case may be.\n\n (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.","sortOrder":1838},{"sectionNumber":"152CBH","sectionType":"section","heading":"Further information about variation of access undertaking","content":"152CBH  Further information about variation of access undertaking\n\n (1) This section applies if a person gives the Commission a variation of a special access undertaking.\n\n (2) The Commission may request the person to give the Commission further information about the variation.\n\n (2A) If:\n\n (a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and\n\n (b) the person does not give the Commission the information within the time limit allowed by the Procedural Rules;\n\nthe Commission may, by written notice given to the person, reject the variation.\n\n (2B) Subsection (2A) has effect despite anything in this Division.\n\n (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).\n\n (3) If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the variation until the person gives the Commission the information.\n\n (4) The Commission may withdraw its request for further information, in whole or in part.","sortOrder":1839},{"sectionNumber":"152CBI","sectionType":"section","heading":"Voluntary withdrawal of undertaking","content":"152CBI  Voluntary withdrawal of undertaking\n\n (1) This section applies if a special access undertaking given by a person is in operation.\n\n (2) The person may, by written notice given to the Commission, withdraw the undertaking if:\n\n (a) the service to which the undertaking relates is a declared service when the notice is given; or\n\n (b) both:\n\n (i) the service to which the undertaking relates is not a declared service when the notice is given; and\n\n (ii) at least 12 months before the notice is given, the person informed the Commission in writing that the person proposed to withdraw the undertaking.\n\n (3) For the purposes of this section, in determining whether a service is a declared service, disregard subsections 152AL(7) and (8E).","sortOrder":1840},{"sectionNumber":"152CBIA","sectionType":"section","heading":"Special access undertakings prevail over inconsistent access determinations","content":"152CBIA  Special access undertakings prevail over inconsistent access determinations\n\n  An access determination has no effect to the extent to which it is inconsistent with a special access undertaking that is in operation.","sortOrder":1841},{"sectionNumber":"152CBIB","sectionType":"section","heading":"Special access undertakings prevail over inconsistent binding rules of conduct","content":"152CBIB  Special access undertakings prevail over inconsistent binding rules of conduct\n\n  Binding rules of conduct have no effect to the extent to which they are inconsistent with a special access undertaking that is in operation.","sortOrder":1842},{"sectionNumber":"152CBIC","sectionType":"section","heading":"Access agreements prevail over special access undertakings","content":"152CBIC  Access agreements prevail over special access undertakings\n\n  A special access undertaking has no effect to the extent to which it is inconsistent with an access agreement.","sortOrder":1843},{"sectionNumber":"152CBID","sectionType":"section","heading":"Statutory infrastructure provider standards and rules prevail over inconsistent special access undertakings","content":"152CBID  Statutory infrastructure provider standards and rules prevail over inconsistent special access undertakings\n\n  A special access undertaking has no effect to the extent to which it is inconsistent with:\n\n (a) a standard determined, or a benchmark set, under section 360U of the Telecommunications Act 1997; or\n\n (b) rules made under section 360V of that Act.","sortOrder":1844},{"sectionNumber":"152CBJ","sectionType":"section","heading":"Proposed service","content":"152CBJ  Proposed service\n\n  In this Subdivision, a reference to a service includes a reference to a proposed service.","sortOrder":1845},{"sectionNumber":"152CC","sectionType":"section","heading":"Register of access undertakings","content":"152CC  Register of access undertakings\n\n (1) The Commission is to maintain a Register in which the Commission includes:\n\n (a) all access undertakings that have been accepted by the Commission (including those that are no longer in operation); and\n\n (b) all variations of access undertakings.\n\n (2) The Register is to be maintained by electronic means.\n\n (3) The Register is to be made available for inspection on the Commission’s website.\n\n (4) The Register is not a legislative instrument.","sortOrder":1847},{"sectionNumber":"152CD","sectionType":"section","heading":"Enforcement of access undertakings","content":"152CD  Enforcement of access undertakings\n\n (1) This section applies if an access undertaking given by a person (the first person) is in operation.\n\n (2) If:\n\n (a) the Commission; or\n\n (b) any person (the affected person) whose interests are affected by the undertaking;\n\nthinks 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).\n\n (3) If the Federal Court is satisfied that the first person has breached the undertaking, the Court may make all or any of the following orders:\n\n (a) an order directing the first person to comply with the undertaking;\n\n (b) an order directing the first person to compensate any other person who has suffered loss or damage as a result of the breach;\n\n (c) any other order that the Court thinks appropriate.\n\n (4) The Federal Court may discharge or vary an order granted under this section.","sortOrder":1848},{"sectionNumber":"152CDA","sectionType":"section","heading":"Deferral of consideration of an access undertaking etc.","content":"152CDA  Deferral of consideration of an access undertaking etc.\n\n (1) The Procedural Rules may authorise the Commission to defer consideration of:\n\n (a) an access undertaking; or\n\n (b) a variation of an access undertaking.\n\n (2) Subsection (1) has effect despite anything in this Division.","sortOrder":1849},{"sectionNumber":"152CH","sectionType":"section","heading":"Ministerial pricing determinations","content":"152CH  Ministerial pricing determinations\n\n (1) The Minister may, by legislative instrument, make a determination setting out principles dealing with price‑related terms and conditions relating to the standard access obligations. The determination is to be known as a Ministerial pricing determination.\n\nNote 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.\n\nNote 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.\n\nNote 5: Subsection 152CI(2) provides that a provision of an access determination has no effect to the extent that the provision is inconsistent with any Ministerial pricing determination.\n\nNote 5A: Subsection 152CI(3) provides that a provision of binding rules of conduct have no effect to the extent that the provision is inconsistent with any Ministerial pricing determination.\n\n (3) In this section:\n\nprice‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.","sortOrder":1851},{"sectionNumber":"152CI","sectionType":"section","heading":"Undertakings, access determinations and binding rules of conduct that are inconsistent with Ministerial pricing determinations","content":"152CI  Undertakings, access determinations and binding rules of conduct that are inconsistent with Ministerial pricing determinations\n\n (1) If a provision of an access undertaking is inconsistent with any Ministerial pricing determination, the provision has no effect to the extent of the inconsistency.\n\n (2) If a provision of an access determination is inconsistent with any Ministerial pricing determination, the provision has no effect to the extent of the inconsistency.\n\n (3) If a provision of binding rules of conduct is inconsistent with any Ministerial pricing determination, the provision has no effect to the extent of the inconsistency.","sortOrder":1852},{"sectionNumber":"152CJ","sectionType":"section","heading":"Register of Ministerial pricing determinations","content":"152CJ  Register of Ministerial pricing determinations\n\n (1) The Commission must keep a Register of Ministerial pricing determinations.\n\n (2) The Register is to be maintained by electronic means.\n\n (3) The Register is to be made available for inspection on the Commission’s website.\n\n (4) The Register is not a legislative instrument.","sortOrder":1853},{"sectionNumber":"152CJA","sectionType":"section","heading":"Supply of services by NBN corporations","content":"152CJA  Supply of services by NBN corporations\n\n (1) An NBN corporation must not supply an eligible service (within the meaning of section 152AL) to another person unless:\n\n (a) the service is a declared service under subsection 152AL(8A); or\n\n (b) both:\n\n (i) the NBN corporation has formulated a standard form of access agreement that relates to access to the service; and\n\n (ii) the standard form of access agreement is available on the NBN corporation’s website; or\n\n (c) both:\n\n (i) a special access undertaking given by the NBN corporation is in operation; and\n\n (ii) the undertaking relates to the service.\n\n (2) If:\n\n (a) as the result of a request made by an access seeker under section 152AXB, an NBN corporation is subject to a category B standard access obligation in relation to a declared service; and\n\n (b) the NBN corporation has formulated a standard form of access agreement that relates to access to the service; and\n\n (c) the standard form of access agreement is available on the NBN corporation’s website; and\n\n (d) the access seeker requests the NBN corporation to enter into an access agreement that:\n\n (i) relates to access to the service; and\n\n (ii) sets out terms and conditions that are the same as the terms and conditions set out in the standard form of access agreement;\n\nthe NBN corporation must comply with the request mentioned in paragraph (d).\n\nNote: An NBN corporation will not be subject to a category B standard access obligation in the circumstances set out in subsection 152AXB(3) or (6).\n\n (3) If an access seeker does not make a request under paragraph (2)(d), this Part does not, by implication, prevent the NBN corporation and the access seeker from entering into an access agreement that sets out terms and conditions that are not the same as the terms and conditions set out in the standard form of access agreement.","sortOrder":1855},{"sectionNumber":"152CJB","sectionType":"section","heading":"Mandatory NBN services","content":"152CJB  Mandatory NBN services\n\nScope\n\n (1) This section applies if a condition of a carrier licence held by an NBN corporation requires the NBN corporation to comply with this section in relation to a specified eligible service (within the meaning of section 152AL) that is supplied, or is capable of being supplied, by the NBN corporation (whether to itself or other persons).\n\nNote 1: See section 41 of the National Broadband Network Companies Act 2011.\n\nNote 2: For declaration of carrier licence conditions, see section 63 of the Telecommunications Act 1997.\n\nCompliance by NBN corporation\n\n (2) The NBN corporation must, within 90 days after the carrier licence condition comes into force:\n\n (a) both:\n\n (i) formulate a standard form of access agreement that relates to access to the service; and\n\n (ii) make the standard form of access agreement available on the NBN corporation’s website; or\n\n (b) give the Commission a special access undertaking in connection with the provision of access to the service.\n\n (3) If:\n\n (a) the NBN corporation, in accordance with paragraph (2)(b), gives the Commission a special access undertaking in connection with the provision of access to the service; and\n\n (b) the Commission rejects the undertaking;\n\nthe NBN corporation must, within 90 days after the rejection of the undertaking:\n\n (c) formulate a standard form of access agreement that relates to access to the service; and\n\n (d) make the standard form of access agreement available on the NBN corporation’s website.\n\n (4) If the NBN corporation, in accordance with\n\n (a) subparagraph (2)(a)(ii); or\n\n (b) paragraph (3)(d);\n\nmakes a standard form of access agreement available on the NBN corporation’s website, the NBN corporation must ensure that a standard form of access agreement that:\n\n (c) relates to access to the service; and\n\n (d) is formulated by the NBN corporation;\n\nis available on the NBN corporation’s website at all times during the remainder of the period when the carrier licence condition is in force.\n\n (5) If:\n\n (a) the NBN corporation, in accordance with paragraph (2)(b), gives the Commission a special access undertaking in connection with the provision of access to the service; and\n\n (b) the Commission accepts the undertaking; and\n\n (c) the undertaking subsequently ceases to be in operation;\n\nthe NBN corporation must ensure that a standard form of access agreement that:\n\n (d) relates to access to the service; and\n\n (e) is formulated by the NBN corporation;\n\nis available on the NBN corporation’s website at all times during the remainder of the period when the carrier licence condition is in force.","sortOrder":1856},{"sectionNumber":"152CJC","sectionType":"section","heading":"Carrier licence condition","content":"152CJC  Carrier licence condition\n\n  A carrier licence held by an NBN corporation is subject to a condition that the NBN corporation must comply with any rules in section 152CJA that are applicable to the NBN corporation.\n\nNote: See also section 62D of the Telecommunications Act 1997.","sortOrder":1857},{"sectionNumber":"152CJD","sectionType":"section","heading":"Service provider rule","content":"152CJD  Service provider rule\n\n (1) In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act.\n\n (2) If an NBN corporation is a service provider, the NBN corporation must comply with any rules in section 152CJA that are applicable to the NBN corporation.","sortOrder":1858},{"sectionNumber":"152CJE","sectionType":"section","heading":"Judicial enforcement of obligations","content":"152CJE  Judicial enforcement of obligations\n\n (1) If the Federal Court is satisfied that an NBN corporation has contravened an obligation imposed by section 152CJA or 152CJB, the Court may, on the application of:\n\n (a) the Commission; or\n\n (b) any person whose interests are affected by the contravention;\n\nmake all or any of the following orders:\n\n (c) an order directing the NBN corporation to comply with the obligation;\n\n (d) an order directing the NBN corporation to compensate any other person who has suffered loss or damage as a result of the contravention;\n\n (e) any other order that the Court thinks appropriate.\n\n (2) The Federal Court may discharge or vary an order granted under this section.","sortOrder":1859},{"sectionNumber":"152CJF","sectionType":"section","heading":"Standard form of access agreement","content":"152CJF  Standard form of access agreement\n\n  For the purposes of this Part, if, at a particular time, a service is not a declared service, a standard form of access agreement relating to access to the service may be formulated by an NBN corporation at that time on the assumption that the service is a declared service.","sortOrder":1860},{"sectionNumber":"152CJG","sectionType":"section","heading":"When NBN corporation is not capable of supplying a carriage service","content":"152CJG  When NBN corporation is not capable of supplying a carriage service\n\nCondition of a carrier licence\n\n (1) If a condition of a carrier licence held by an NBN corporation prohibits the NBN corporation from supplying a specified carriage service to carriers or service providers, then, for the purposes of:\n\n (a) this Part; and\n\n (b) subsections 41(1) and (2) of the National Broadband Network Companies Act 2011;\n\nthe NBN corporation is taken not to be capable of supplying the service.\n\nNote: See subsection 41(3) of the National Broadband Network Companies Act 2011.\n\nAvoidance of doubt\n\n (2) Subsection (1) is enacted for the avoidance of doubt.","sortOrder":1861},{"sectionNumber":"152CJH","sectionType":"section","heading":"Explanatory material relating to anti-discrimination provisions","content":"152CJH  Explanatory material relating to anti‑discrimination provisions\n\n  The Commission must:\n\n (a) as soon as practicable after the commencement of this section, publish on its website explanatory material relating to the following provisions:\n\n (i) section 152AXC;\n\n (ii) section 152AXD;\n\n (iii) subsections 152BCB(4A) to (4C);\n\n (iv) subsections 152BDA(4A) to (4C); and\n\n (b) keep that statement up‑to‑date.","sortOrder":1863},{"sectionNumber":"152CK","sectionType":"section","heading":"Relationship between this Part and Part IIIA","content":"152CK  Relationship between this Part and Part IIIA\n\n (1) A notification must not be given under section 44S in relation to an access dispute if:\n\n (a) the dispute relates to one or more aspects of access to a declared service (within the meaning of this Part); and\n\n (b) the third party referred to in that section is a service provider (within the meaning of this Part).\n\n (2) The Commission must not accept an undertaking under section 44ZZA that relates to a declared service (within the meaning of this Part) if the terms and conditions set out in the undertaking relate to the provision of access to one or more service providers (within the meaning of this Part).\n\n (3) If:\n\n (a) an undertaking under section 44ZZA is in operation in relation to a particular service; and\n\n (b) at a particular time, the service becomes a declared service (within the meaning of this Part);\n\nthe 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).\n\n (4) For the purposes of this section, if a special access undertaking given by a person other than an NBN corporation is in operation, assume that subsection 152AL(7) has effect in relation to the undertaking as if paragraph 152AL(7)(c) had not been enacted.\n\n (5) For the purposes of this section, if a special access undertaking given by an NBN corporation is in operation, assume that subsection 152AL(8E) has effect in relation to the undertaking as if paragraph 152AL(8E)(c) had not been enacted.","sortOrder":1865},{"sectionNumber":"152EF","sectionType":"section","heading":"Prohibition on hindering the fulfilment of a standard access obligation etc.","content":"152EF  Prohibition on hindering the fulfilment of a standard access obligation etc.\n\n (1) A person must not engage in conduct for the purpose of preventing or hindering the fulfilment of:\n\n (a) a standard access obligation; or\n\n (b) a requirement imposed by an access determination; or\n\n (ba) a requirement imposed by binding rules of conduct;\n\nif the person is:\n\n (c) a carrier or a carriage service provider who supplies a declared service; or\n\n (d) a service provider to whom a declared service is being supplied by a carrier or carriage service provider; or\n\n (e) a body corporate that is related to a carrier or provider referred to in paragraph (c) or (d).\n\n (2) A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or from other relevant circumstances. This subsection does not limit the manner in which the purpose of a person may be established for the purposes of subsection (1).\n\n (3) Subsection (1) does not have effect before 1 July 1997.","sortOrder":1867},{"sectionNumber":"152EG","sectionType":"section","heading":"Enforcement of prohibition on hindering the fulfilment of a standard access obligation etc.","content":"152EG  Enforcement of prohibition on hindering the fulfilment of a standard access obligation etc.\n\n (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:\n\n (a) an order granting an injunction on such terms as the Court thinks appropriate:\n\n (i) restraining the obstructor from engaging in the conduct; or\n\n (ii) if the conduct involves refusing or failing to do something—requiring the obstructor to do that thing;\n\n (b) an order directing the obstructor to compensate a person who has suffered loss or damage as a result of the contravention;\n\n (c) any other order that the Court thinks appropriate.\n\n (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.","sortOrder":1868},{"sectionNumber":"152EH","sectionType":"section","heading":"Consent injunctions","content":"152EH  Consent injunctions\n\n  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.","sortOrder":1869},{"sectionNumber":"152EI","sectionType":"section","heading":"Interim injunctions","content":"152EI  Interim injunctions\n\n (1) The Federal Court may grant an interim injunction pending determination of an application under section 152EG.\n\n (2) If the Commission makes an application under section 152EG to the Federal Court for an injunction, the Court must not require the Commission or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.","sortOrder":1870},{"sectionNumber":"152EJ","sectionType":"section","heading":"Factors relevant to granting a restraining injunction","content":"152EJ  Factors relevant to granting a restraining injunction\n\n  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:\n\n (a) it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or\n\n (b) the person has previously engaged in conduct of that kind; or\n\n (c) there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.","sortOrder":1871},{"sectionNumber":"152EK","sectionType":"section","heading":"Factors relevant to granting a mandatory injunction","content":"152EK  Factors relevant to granting a mandatory injunction\n\n  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:\n\n (a) it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or\n\n (b) the person has previously refused or failed to do that thing; or\n\n (c) there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that thing.","sortOrder":1872},{"sectionNumber":"152EL","sectionType":"section","heading":"Discharge or variation of injunction or other order","content":"152EL  Discharge or variation of injunction or other order\n\n  The Federal Court may discharge or vary an injunction or order granted under this Division.","sortOrder":1873},{"sectionNumber":"Division 10A","sectionType":"division","heading":"Procedural Rules","content":"Division 10A—Procedural Rules","sortOrder":1874},{"sectionNumber":"152ELA","sectionType":"section","heading":"Procedural Rules","content":"152ELA  Procedural Rules\n\n (1) The Commission may, by written instrument, make rules:\n\n (a) making provision for or in relation to the practice and procedure to be followed by the Commission in performing functions, or exercising powers, under this Part; or\n\n (b) making provision for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Commission under this Part; or\n\n (c) prescribing matters required or permitted by any other provision of this Part to be prescribed by the Procedural Rules.\n\n (2) Rules under subsection (1) are to be known as Procedural Rules.\n\n (3) The Procedural Rules may make provision for or in relation to any or all of the following:\n\n (a) the confidentiality of information or documents given to the Commission by:\n\n (i) an applicant for an order under subsection 152ATA(1); or\n\n (ii) a person who gave the Commission an access undertaking or a variation of an access undertaking;\n\n (c) the form and content of applications, undertakings, variations or other documents given to the Commission under this Part.\n\n (4) Subsection (3) does not limit subsection (1).\n\n (5) The Procedural Rules may make provision for or in relation to a matter by empowering the Commission to make decisions of an administrative character.\n\n (6) Subsection (5) does not limit subsection (1).\n\n (8) An instrument under subsection (1) is a legislative instrument.\n\nNote: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.","sortOrder":1875},{"sectionNumber":"152ELC","sectionType":"section","heading":"Plan for the development of Procedural Rules","content":"152ELC  Plan for the development of Procedural Rules\n\n (1) Within 6 months after the commencement of this section, the Commission must:\n\n (a) prepare a written plan setting out:\n\n (i) an outline of the Commission’s proposals for making Procedural Rules; and\n\n (ii) an indicative timetable for making those Procedural Rules; and\n\n (b) make a copy of the plan available on the Commission’s website.\n\n (2) A failure to comply with the plan does not affect the validity of an instrument under subsection 152ELA(1).\n\n (3) The plan is not a legislative instrument.","sortOrder":1876},{"sectionNumber":"152ELD","sectionType":"section","heading":"Compensation for acquisition of property","content":"152ELD  Compensation for acquisition of property\n\n (1) If the operation of this Part would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.\n\n (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n\n (3) In this section:\n\nacquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\njust terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\nthis Part includes Division 2 of Part 2 of Schedule 1 to the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010.","sortOrder":1878},{"sectionNumber":"152EM","sectionType":"section","heading":"Continuity of partnerships","content":"152EM  Continuity of partnerships\n\n  For the purposes of this Part, a change in the composition of a partnership does not affect the continuity of the partnership.","sortOrder":1879},{"sectionNumber":"152EN","sectionType":"section","heading":"Treatment of partnerships","content":"152EN  Treatment of partnerships\n\n  This Part applies to a partnership as if the partnership were a person, but it applies with the following changes:\n\n (a) obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners;\n\n (b) any offence against this Part that would otherwise be committed by the partnership is taken to have been committed by each partner who:\n\n (i) aided, abetted, counselled or procured the relevant act or omission; or\n\n (ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).","sortOrder":1880},{"sectionNumber":"152EO","sectionType":"section","heading":"Conduct by directors, servants or agents","content":"152EO  Conduct by directors, servants or agents\n\n (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:\n\n (a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and\n\n (b) that the director, servant or agent had the state of mind.\n\n (2) Any conduct engaged in on behalf of a body corporate:\n\n (a) by a director, servant or agent of the body corporate within the scope of the person’s actual or apparent authority; or\n\n (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;\n\nis 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.\n\n (3) A reference in subsection (1) to the state of mind of a person includes a reference to:\n\n (a) the knowledge, intention, opinion, belief or purpose of the person; and\n\n (b) the person’s reasons for the intention, opinion, belief or purpose.\n\n (4) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.","sortOrder":1881},{"sectionNumber":"152EP","sectionType":"section","heading":"Regulations about fees for inspection etc. of registers","content":"152EP  Regulations about fees for inspection etc. of registers\n\n  The regulations may make provision about the inspection of registers maintained under this Part (including provision about fees).","sortOrder":1882},{"sectionNumber":"152EQ","sectionType":"section","heading":"Assistance to independent telecommunications adjudicator","content":"152EQ  Assistance to independent telecommunications adjudicator\n\n (1) For the purposes of this section, the independent telecommunications adjudicator is a company that:\n\n (a) is limited by guarantee; and\n\n (b) is identified, in an undertaking in force under section 577A of the Telecommunications Act 1997, as the independent telecommunications adjudicator for the purpose of this section.\n\n (2) The Commission may assist the independent telecommunications adjudicator.\n\n (3) The assistance may include the following:\n\n (a) the provision of information (including protected information within the meaning of section 155AAA);\n\n (b) the provision of advice;\n\n (c) the making available of resources and facilities (including secretariat services and clerical assistance).","sortOrder":1883},{"sectionNumber":"152EQA","sectionType":"section","heading":"Voluntary undertakings originally given by Telstra","content":"152EQA  Voluntary undertakings originally given by Telstra\n\nScope\n\n (1) This section applies if an undertaking is in force under section 577A of the Telecommunications Act 1997.\n\nNote: Section 577A of the Telecommunications Act 1997 deals with undertakings about structural separation.\n\nCommission must have regard to the conduct of a designated Telstra successor company\n\n (2) If a designated Telstra successor company has engaged, or is required to engage, in conduct in order to comply with the undertaking, then, in performing a function, or exercising a power, under this Part in relation to the designated Telstra successor company, the Commission must have regard to the conduct to the extent that the conduct is relevant.\n\nCommission must not prevent a designated Telstra successor company from complying with the undertaking\n\n (3) The Commission must not perform a function, or exercise a power, under this Part so as to prevent a designated Telstra successor company from complying with the undertaking.","sortOrder":1884},{"sectionNumber":"152ER","sectionType":"section","heading":"Voluntary undertakings given by Telstra","content":"152ER  Voluntary undertakings given by Telstra\n\nScope\n\n (1) This section applies if an undertaking given by Telstra is in force under section 577C or 577E of the Telecommunications Act 1997.\n\nNote 2: Section 577C of the Telecommunications Act 1997 deals with undertakings about hybrid fibre‑coaxial networks.\n\nNote 3: Section 577E of the Telecommunications Act 1997 deals with undertakings about subscription television broadcasting licences.\n\nCommission must have regard to Telstra’s conduct\n\n (2) If Telstra has engaged, or is required to engage, in conduct in order to comply with the undertaking, then, in performing a function, or exercising a power, under this Part in relation to Telstra, the Commission must have regard to the conduct to the extent that the conduct is relevant.\n\nCommission must not prevent Telstra from complying with the undertaking\n\n (3) The Commission must not perform a function, or exercise a power, under this Part so as to prevent Telstra from complying with the undertaking.","sortOrder":1885},{"sectionNumber":"Part XICA","sectionType":"part","heading":"The Electricity Industry","content":"Part XICA—The Electricity Industry","sortOrder":1886},{"sectionNumber":"153A","sectionType":"section","heading":"Simplified outline of this Part","content":"153A  Simplified outline of this Part\n\nThis Part deals with prohibited conduct by corporations in relation to electricity. It ceases to be in force on 1 January 2031.\n\nDivision 2 of this Part sets out the circumstances in which a corporation engages in prohibited conduct.\n\nResponses to a corporation engaging in prohibited conduct include the following:\n\n (a) the Commission may issue a public warning notice;\n\n (b) the Commission may give the corporation an infringement notice;\n\n (c) the Commission may give the corporation a prohibited conduct notice that sets out proposed orders (and the Commission may later give the Treasurer a prohibited conduct recommendation that recommends orders);\n\n (d) if the Commission has given the Treasurer a prohibited conduct recommendation, the Treasurer may:\n\n  (i) make a contracting order that requires making offers to enter into electricity financial contracts; and\n\n  (ii) apply to the Court for a divestiture order that requires divestment of interests in assets and securities.","sortOrder":1888},{"sectionNumber":"153B","sectionType":"section","heading":"Part etc. ceases to be in force","content":"153B  Part etc. ceases to be in force\n\n  The following cease to be in force on 1 January 2031:\n\n (a) this Part;\n\n (b) any other provision of this Act, to the extent that the provision relates to this Part.","sortOrder":1889},{"sectionNumber":"153C","sectionType":"section","heading":"Interpretation","content":"153C  Interpretation\n\n  In this Part:\n\nassociate has the same meaning as in the Foreign Acquisitions and Takeovers Act 1975.\n\nconnected body corporate has the meaning given by section 153D.\n\ncontracting order means an order of the Treasurer under section 153X.\n\nCourt means the Federal Court of Australia.\n\ndivestiture order means an order of the Court under section 153ZB.\n\nelectricity financial contract: a contract is an electricity financial contract if:\n\n (a) rights under the contract are derived from or relate to the price of electricity on an electricity spot market; and\n\n (b) the operator of that electricity spot market is not a party to the contract.\n\nelectricity market means any of the following:\n\n (a) a market in relation to the supply of electricity;\n\n (b) a market for electricity financial contracts.\n\nelectricity spot market means a spot market for the supply of electricity.\n\ninterest, in an asset or a security, has the same meaning as in the Foreign Acquisitions and Takeovers Act 1975.\n\nno Treasurer action notice means a notice under section 153U.\n\nprohibited conduct: a corporation engages in prohibited conduct if the corporation engages in conduct that contravenes section 153E, 153F, 153G or 153H.\n\nprohibited conduct notice means a notice under section 153P.\n\nprohibited conduct recommendation means a notice under section 153S.\n\nresidential customer means a customer who purchases, or proposes to purchase, electricity principally for personal, household or domestic use at premises.\n\nsmall business customer means a customer who purchases, or proposes to purchase, electricity at a rate less than 100 MWh a financial year and is not a residential customer in relation to that electricity.\n\nsmall customer means a residential customer or a small business customer.","sortOrder":1890},{"sectionNumber":"153D","sectionType":"section","heading":"Meaning of connected body corporate in relation to prohibited conduct","content":"153D  Meaning of connected body corporate in relation to prohibited conduct\n\n (1) A corporation is a connected body corporate in relation to prohibited conduct engaged in by the corporation.\n\n (2) A body corporate is a connected body corporate in relation to prohibited conduct engaged in by a corporation if:\n\n (a) the body corporate is related to the corporation; and\n\n (b) any of the following conditions are satisfied:\n\n (i) the prohibited conduct involves the direct or indirect use of assets held by the body corporate;\n\n (ii) the prohibited conduct involves direct or indirect dealings between the body corporate and the corporation.\n\n (3) A body corporate is a connected body corporate in relation to prohibited conduct if:\n\n (a) the body corporate is a holding company of another body corporate; and\n\n (b) the other body corporate is a connected body corporate in relation to the prohibited conduct because of a previous operation of this section.","sortOrder":1891},{"sectionNumber":"153E","sectionType":"section","heading":"Prohibited conduct—retail pricing","content":"153E  Prohibited conduct—retail pricing\n\n (1) A corporation contravenes this section if:\n\n (a) the corporation offers to supply electricity, or supplies electricity, to small customers; and\n\n (b) the corporation fails to make reasonable adjustments to the price of those offers, or to the price of those supplies, to reflect sustained and substantial reductions in its underlying cost of procuring electricity.\n\nNote 1: The Treasurer cannot make a contracting order in respect of a contravention of this section (see paragraph 153W(e)).\n\nNote 2: The Treasurer cannot apply for a divestiture order in respect of a contravention of this section (see paragraph 153ZA(e)).\n\n (2) Despite subsection (1), the corporation does not contravene this section if the price is a standing offer price (within the meaning of the Competition and Consumer (Industry Code—Electricity Retail) Regulations 2019).\n\n (3) Despite subsection (1), the corporation does not contravene this section if the adjustments would contravene:\n\n (a) an Act of the Commonwealth, a State or a Territory; or\n\n (b) an instrument made under such an Act.","sortOrder":1893},{"sectionNumber":"153F","sectionType":"section","heading":"Prohibited conduct—electricity financial contract liquidity","content":"153F  Prohibited conduct—electricity financial contract liquidity\n\n  A corporation contravenes this section if:\n\n (a) any of the following conditions are satisfied:\n\n (i) the corporation generates electricity;\n\n (ii) a body corporate that is related to the corporation generates electricity; and\n\n (b) the corporation does any of the following:\n\n (i) fails to offer electricity financial contracts;\n\n (ii) limits or restricts its offers to enter into electricity financial contracts;\n\n (iii) offers to enter into electricity financial contracts in a way that has, or on terms that have, the effect or likely effect of preventing, limiting or restricting acceptance of those offers; and\n\n (c) the corporation does so for the purpose of substantially lessening competition in any electricity market.\n\nNote: The Treasurer cannot apply for a divestiture order in respect of a contravention of this section (see paragraph 153ZA(e)).","sortOrder":1894},{"sectionNumber":"153G","sectionType":"section","heading":"Prohibited conduct—electricity spot market (basic case)","content":"153G  Prohibited conduct—electricity spot market (basic case)\n\n  A corporation contravenes this section if:\n\n (a) the corporation:\n\n (i) bids or offers to supply electricity in relation to an electricity spot market; or\n\n (ii) fails to bid or offer to supply electricity in relation to an electricity spot market; and\n\n (b) the corporation does so:\n\n (i) fraudulently, dishonestly or in bad faith; or\n\n (ii) for the purpose of distorting or manipulating prices in that electricity spot market.\n\nNote 1: The Treasurer cannot make a contracting order in respect of a contravention of this section (see paragraph 153W(e)).\n\nNote 2: The Treasurer cannot apply for a divestiture order in respect of a contravention of this section (see paragraph 153ZA(e)).","sortOrder":1895},{"sectionNumber":"153H","sectionType":"section","heading":"Prohibited conduct—electricity spot market (aggravated case)","content":"153H  Prohibited conduct—electricity spot market (aggravated case)\n\n  A corporation contravenes this section if:\n\n (a) the corporation:\n\n (i) bids or offers to supply electricity in relation to an electricity spot market; or\n\n (ii) fails to bid or offer to supply electricity in relation to an electricity spot market; and\n\n (b) the corporation does so fraudulently, dishonestly or in bad faith, for the purpose of distorting or manipulating prices in that electricity spot market.","sortOrder":1896},{"sectionNumber":"153J","sectionType":"section","heading":"Prohibited conduct—purpose","content":"153J  Prohibited conduct—purpose\n\n (1) This section:\n\n (a) applies for the purposes of sections 153F, 153G and 153H; and\n\n (b) does not limit the manner in which the purpose of a person may be established for the purposes of any other provision of this Act.\n\n (2) A corporation may be taken to have done something:\n\n (a) for the purpose of substantially lessening competition in an electricity market; or\n\n (b) for the purpose of distorting or manipulating prices in an electricity spot market;\n\neven though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the corporation or of any other person or from other relevant circumstances.","sortOrder":1897},{"sectionNumber":"153K","sectionType":"section","heading":"Prohibited conduct may be covered by other provisions","content":"153K  Prohibited conduct may be covered by other provisions\n\n  To avoid doubt, this Division does not limit the operation of any other provision of this Act.\n\nExample: Particular conduct of a corporation could result in the corporation contravening both section 46 and section 153F.","sortOrder":1898},{"sectionNumber":"153L","sectionType":"section","heading":"Commission may give draft public warning notice","content":"153L  Commission may give draft public warning notice\n\n (1) The Commission may give a corporation a notice in writing if the Commission reasonably believes that:\n\n (a) any of the following conditions are satisfied:\n\n (i) the corporation has engaged in prohibited conduct;\n\n (ii) the corporation is engaging in prohibited conduct; and\n\n (b) one or more persons has suffered, or is likely to suffer, detriment as a result of the prohibited conduct; and\n\n (c) it is in the public interest to issue the notice.\n\n (2) The notice must:\n\n (a) state the day on which the notice is given; and\n\n (b) identify:\n\n (i) the corporation mentioned in paragraph (1)(a); and\n\n (ii) the prohibited conduct mentioned in paragraph (1)(a); and\n\n (c) explain the reasons why the Commission reasonably believes that the requirements in paragraphs (1)(a), (b) and (c) are met; and\n\n (d) state that:\n\n (i) the corporation may, within 21 days after being given the notice, make representations to the Commission regarding the matters mentioned in paragraphs (1)(a), (b) and (c); and\n\n (ii) the Commission may issue a public warning notice under section 153M in relation to the prohibited conduct after those 21 days have passed.\n\n (3) A notice given under subsection (1) is not a legislative instrument.","sortOrder":1901},{"sectionNumber":"153M","sectionType":"section","heading":"Commission may issue public warning notice","content":"153M  Commission may issue public warning notice\n\n (1) This section applies if:\n\n (a) the Commission gave a corporation a notice under section 153L in relation to prohibited conduct; and\n\n (b) at least 21 days have passed since the Commission gave the corporation the notice; and\n\n (c) no more than 90 days have passed since the Commission gave the corporation the notice.\n\n (2) The Commission may issue to the public a written notice containing a warning about the prohibited conduct if the Commission reasonably believes that:\n\n (a) any of the following conditions are satisfied:\n\n (i) the corporation has engaged in the prohibited conduct;\n\n (ii) the corporation is engaging in the prohibited conduct; and\n\n (b) one or more persons has suffered, or is likely to suffer, detriment as a result of the prohibited conduct; and\n\n (c) it is in the public interest to issue the notice.\n\n (3) The notice must:\n\n (a) state the day on which the notice is issued; and\n\n (b) identify:\n\n (i) the corporation mentioned in paragraph (2)(a); and\n\n (ii) the prohibited conduct mentioned in paragraph (2)(a).\n\n (4) A notice issued under subsection (2) is not a legislative instrument.","sortOrder":1902},{"sectionNumber":"153N","sectionType":"section","heading":"Infringement notices","content":"153N  Infringement notices\n\n (1) Subject to subsection (2), Division 5 of Part V applies in relation to an alleged contravention of section 153E, 153F, 153G or 153H in the same way in which it applies in relation to an alleged contravention of an infringement notice provision (within the meaning of that Part).\n\n (2) For the purposes of applying Division 5 of Part V in accordance with subsection (1), treat the reference in paragraph 60L(5)(b) to 60 penalty units as being a reference to 600 penalty units.","sortOrder":1904},{"sectionNumber":"153P","sectionType":"section","heading":"Prohibited conduct notices","content":"153P  Prohibited conduct notices\n\n (1) The Commission may give a corporation a notice (a prohibited conduct notice) in writing, stating one or more recommendations for the kind or kinds of order the Treasurer or the Court could make under Division 5 or 6, if the Commission reasonably believes that:\n\n (a) any of the following conditions are satisfied:\n\n (i) the corporation has engaged in prohibited conduct;\n\n (ii) the corporation is engaging in prohibited conduct; and\n\n (b) the Treasurer or the Court making that kind or those kinds of order in relation to the corporation, or any other connected body corporate in relation to the prohibited conduct, is a proportionate means of preventing the corporation, or any related body corporate, from engaging in that kind of prohibited conduct in the future; and\n\n (c) if that kind of order is, or those kinds of order include, a divestiture order—the following conditions are satisfied:\n\n (i) such a divestiture order will result, or is likely to result, in a benefit to the public;\n\n (ii) if such a divestiture order will result, or is likely to result, in a detriment to the public—the benefit mentioned in subparagraph (i) would, or is likely to, outweigh that detriment.\n\n (2) The notice must:\n\n (a) be expressed to be given under this section; and\n\n (b) state the day on which the notice is given; and\n\n (c) identify:\n\n (i) the corporation; and\n\n (ii) the prohibited conduct mentioned in paragraph (1)(a); and\n\n (iii) each connected body corporate in relation to the prohibited conduct (other than the corporation); and\n\n (d) state the recommendations mentioned in subsection (1); and\n\n (e) explain the reasons why the Commission reasonably believes that:\n\n (i) the requirements in paragraphs (1)(a) and (b) are met; and\n\n (ii) if paragraph (1)(c) applies—the requirement in that paragraph is met; and\n\n (f) state that the corporation may, within the period mentioned in subsection (3), make representations to the Commission regarding the conduct mentioned in subparagraph (c)(ii) and the recommendations mentioned in paragraph (d).\n\n (3) For the purposes of paragraph (2)(f), the period:\n\n (a) starts on the day on which the notice is given; and\n\n (b) ends:\n\n (i) if subparagraph (ii) does not apply—45 days after that day; or\n\n (ii) if the Commission allows a later day—that later day.\n\n (4) A failure to comply with subparagraph (2)(c)(iii) does not affect the validity of the notice.\n\n (5) The Commission must give a copy of the notice to each body corporate identified in the notice (in accordance with subparagraph (2)(c)(iii)) as soon as practicable after issuing it.\n\n (6) A prohibited conduct notice is not a legislative instrument.","sortOrder":1907},{"sectionNumber":"153Q","sectionType":"section","heading":"Commission may vary or revoke prohibited conduct notice","content":"153Q  Commission may vary or revoke prohibited conduct notice\n\n (1) The Commission may, in writing, vary or revoke a prohibited conduct notice given to a corporation.\n\n (2) A variation or revocation under subsection (1) must:\n\n (a) state the day on which it is made; and\n\n (b) in the case of a variation—state that the corporation may, within the period mentioned in subsection (3), make representations to the Commission regarding the prohibited conduct notice as varied.\n\n (3) For the purposes of paragraph (2)(b), the period:\n\n (a) starts on the day on which the Commission gives the corporation the copy of the variation; and\n\n (b) ends:\n\n (i) if subparagraph (ii) does not apply—45 days after that day; or\n\n (ii) if the Commission allows a later day—that later day.\n\n (4) The Commission must give each of the following a copy of a variation or revocation under subsection (1) as soon as practicable after making it:\n\n (a) the corporation;\n\n (b) each body corporate identified in the prohibited conduct notice (in accordance with subparagraph 153P(2)(c)(iii));\n\n (c) each connected body corporate in relation to the prohibited conduct (other than a body corporate mentioned in paragraph (b)) identified in the prohibited conduct notice as varied.\n\n (5) A variation or revocation under subsection (1) is not a legislative instrument.\n\n (6) Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to a prohibited conduct notice.","sortOrder":1908},{"sectionNumber":"153R","sectionType":"section","heading":"Commission must give Treasurer prohibited conduct recommendation or no Treasurer action notice","content":"153R  Commission must give Treasurer prohibited conduct recommendation or no Treasurer action notice\n\n (1) If the Commission has given a corporation a prohibited conduct notice, the Commission must, within 45 days after the end of the period mentioned in subsection (3), give the Treasurer:\n\n (a) a prohibited conduct recommendation in respect of the prohibited conduct notice; or\n\n (b) a no Treasurer action notice in respect of the prohibited conduct notice.\n\n (2) Subsection (1) does not apply if the prohibited conduct notice has been revoked under section 153Q.\n\n (3) The period is:\n\n (a) unless paragraph (b) applies—the period mentioned in subsection 153P(3) for the prohibited conduct notice; or\n\n (b) if there has been a variation of the prohibited conduct notice under section 153Q—the period mentioned in subsection 153Q(3) for the variation.\n\n (4) Subsection (5) applies if:\n\n (a) the Commission has given the Treasurer a no Treasurer action notice in respect of the prohibited conduct notice, in accordance with paragraph (1)(b); and\n\n (b) the Commission has made a revocation of the no Treasurer action notice under subsection 153V(1).\n\n (5) The Commission must, within 45 days after making the revocation:\n\n (a) give the Treasurer a prohibited conduct recommendation in respect of the prohibited conduct notice; or\n\n (b) give the corporation a new prohibited conduct notice in respect of the prohibited conduct identified in the prohibited conduct notice (in accordance with subparagraph 153P(2)(c)(ii)).","sortOrder":1910},{"sectionNumber":"153S","sectionType":"section","heading":"Prohibited conduct recommendations","content":"153S  Prohibited conduct recommendations\n\n (1) The Commission may give the Treasurer a notice in writing (a prohibited conduct recommendation) in respect of the prohibited conduct notice, stating one or more recommendations for the kind or kinds of order the Treasurer or the Court could make under Division 5 or 6, if the Commission reasonably believes that:\n\n (a) any of the following conditions are satisfied:\n\n (i) the corporation has engaged in the kind of prohibited conduct specified in the prohibited conduct notice;\n\n (ii) the corporation is continuing to engage in the kind of prohibited conduct specified in the prohibited conduct notice; and\n\n (b) the Treasurer or the Court making that kind or those kinds of order in relation to the corporation, or any other connected body corporate in relation to the prohibited conduct, is a proportionate means of preventing the corporation, or any related body corporate, from engaging in that kind of prohibited conduct in the future; and\n\n (c) if that kind of order is, or those kinds of order include, a divestiture order—the following conditions are satisfied:\n\n (i) such a divestiture order will result, or is likely to result, in a benefit to the public;\n\n (ii) if such a divestiture order will result, or is likely to result, in a detriment to the public—the benefit mentioned in subparagraph (i) would, or is likely to, outweigh that detriment.\n\n (2) The notice must:\n\n (a) be expressed to be given under this section; and\n\n (b) state the day on which the notice is given; and\n\n (c) identify:\n\n (i) the corporation; and\n\n (ii) the prohibited conduct mentioned in paragraph (1)(a); and\n\n (iii) each connected body corporate in relation to the prohibited conduct (other than the corporation); and\n\n (d) state the recommendations mentioned in subsection (1); and\n\n (e) explain the reasons why the Commission reasonably believes that:\n\n (i) the requirements in paragraphs (1)(a) and (b) are met; and\n\n (ii) if paragraph (1)(c) applies—the requirement in that paragraph is met.\n\n (3) To avoid doubt, the recommendations stated in the notice (in accordance with paragraph (2)(d)) may be different from the recommendations stated in the prohibited conduct notice (in accordance with paragraph 153P(2)(d)).\n\n (4) A failure to comply with subparagraph (2)(c)(iii) does not affect the validity of the notice.\n\n (5) To avoid doubt, the bodies corporate identified in the notice (in accordance with subparagraph (2)(c)(iii)) need not be the same as the bodies corporate identified in the prohibited conduct notice (in accordance with subparagraph 153P(2)(c)(iii)).\n\n (6) A prohibited conduct recommendation is not a legislative instrument.","sortOrder":1911},{"sectionNumber":"153T","sectionType":"section","heading":"Commission may vary or revoke prohibited conduct recommendation","content":"153T  Commission may vary or revoke prohibited conduct recommendation\n\n (1) The Commission may, in writing, vary or revoke a prohibited conduct recommendation.\n\n (2) The Commission cannot make a variation or revocation under subsection (1) later than 45 days after:\n\n (a) unless paragraph (b) applies—the day on which the Commission made the prohibited conduct recommendation; or\n\n (b) if there has been a previous variation of the prohibited conduct recommendation under this section—the day on which the Commission made the previous variation.\n\n (3) The Commission cannot make a variation or revocation under subsection (1) if:\n\n (a) the Treasurer has made a contracting order in relation to the prohibited conduct recommendation; or\n\n (b) the Treasurer has applied to the Court for a divestiture order in relation to the prohibited conduct recommendation.\n\n (4) The Commission cannot make a variation under subsection (1) unless the Commission is satisfied that:\n\n (a) the variation is minor or insubstantial; or\n\n (b) all of the following conditions are met:\n\n (i) the corporation or any related body corporate gave the Commission information relevant to the prohibited conduct notice that is false or misleading in a material particular, or failed to give the Commission information relevant to the prohibited conduct notice that is not publicly available;\n\n (ii) the variation is reasonably necessary to address the circumstances described in subparagraph (i); or\n\n (c) the variation is reasonably necessary to address information that was not in existence, or that the Commission did not have, when the prohibited conduct notice was given.\n\n (5) A variation or revocation under subsection (1) must state the day on which it is made.\n\n (6) The Commission must give a copy of a variation or revocation under subsection (1) to the Treasurer as soon as practicable after making it.\n\n (7) A variation or revocation under subsection (1) is not a legislative instrument.\n\n (8) Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to a prohibited conduct recommendation.","sortOrder":1912},{"sectionNumber":"153U","sectionType":"section","heading":"No Treasurer action notice","content":"153U  No Treasurer action notice\n\n (1) The Commission must give the Treasurer a notice in writing (a no Treasurer action notice) in respect of the prohibited conduct notice mentioned in section 153R if the Commission considers that it is not appropriate to give the Treasurer a prohibited conduct recommendation in respect of the prohibited conduct notice.\n\n (2) The notice must:\n\n (a) be expressed to be given under this section; and\n\n (b) state the day on which the notice is given; and\n\n (c) explain the reasons why the Commission considers that it is not appropriate to give the Treasurer a prohibited conduct recommendation in respect of the prohibited conduct notice.\n\n (3) The Commission must give a copy of the notice to the corporation:\n\n (a) unless paragraph (b) applies—45 days after issuing it; or\n\n (b) if the Commission and the Treasurer agree that it is appropriate to give a copy of the notice to the corporation at an earlier time—at that earlier time.\n\n (4) A no Treasurer action notice is not a legislative instrument.","sortOrder":1913},{"sectionNumber":"153V","sectionType":"section","heading":"Commission may vary or revoke no Treasurer action notice","content":"153V  Commission may vary or revoke no Treasurer action notice\n\n (1) The Commission may, in writing, vary or revoke a no Treasurer action notice.\n\n (2) The Commission cannot make a variation or revocation under subsection (1) later than 45 days after:\n\n (a) unless paragraph (b) applies—the day on which the Commission made the no Treasurer action notice; or\n\n (b) if there has been a previous variation of the no Treasurer action notice under this section—the day on which the Commission made the previous variation.\n\n (3) The Commission cannot make a variation under subsection (1) unless the Commission is satisfied that the variation is minor or insubstantial.\n\n (4) The Commission cannot make a revocation under subsection (1) unless the Commission is satisfied that the conditions in subsections (5) and (6) are met.\n\n (5) The condition in this subsection is met if the Commission reasonably believes that it is appropriate to:\n\n (a) give the Treasurer a prohibited conduct recommendation in respect of the prohibited conduct notice; or\n\n (b) give the corporation a new prohibited conduct notice in respect of the prohibited conduct identified in the prohibited conduct notice (in accordance with subparagraph 153P(2)(c)(ii)).\n\n (6) The condition in this subsection is met if the Commission reasonably believes that:\n\n (a) all of the following conditions are met:\n\n (i) the corporation or any related body corporate gave the Commission information relevant to the prohibited conduct notice that is false or misleading in a material particular, or failed to give the Commission information relevant to the prohibited conduct notice that is not publicly available;\n\n (ii) the revocation is reasonably necessary to address the circumstances described in subparagraph (i); or\n\n (b) the revocation is reasonably necessary to address information that was not in existence, or that the Commission did not have, when the prohibited conduct notice was given.\n\n (7) A variation or revocation under subsection (1) must state the day on which it is made.\n\n (8) The Commission must give a copy of a variation or revocation under subsection (1) to the Treasurer as soon as practicable after making it.\n\n (9) The Commission must give a copy of a variation or revocation under subsection (1) to the corporation as soon as practicable after making it.\n\n (10) If the no Treasurer action notice has not yet been given to the corporation in accordance with subsection 153U(3) by the time the Commission makes a variation or revocation under subsection (1):\n\n (a) in the case of a variation:\n\n (i) for the purposes of subsection 153U(3), the Commission must give the corporation a copy of the no Treasurer action notice as varied; and\n\n (ii) despite subsection (9), the Commission must not give the corporation a copy of the variation; or\n\n (b) in the case of a revocation:\n\n (i) despite subsection 153U(3), the Commission must not give the corporation a copy of the no Treasurer action notice; and\n\n (ii) despite subsection (9), the Commission must not give the corporation a copy of the revocation.\n\n (11) A variation or revocation under subsection (1) is not a legislative instrument.\n\n (12) Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to a no Treasurer action notice.","sortOrder":1914},{"sectionNumber":"153W","sectionType":"section","heading":"Conditions for making contracting order","content":"153W  Conditions for making contracting order\n\n  The Treasurer may make an order under section 153X in respect of a body corporate if the Treasurer is satisfied that the following conditions are met:\n\n (a) the Commission has given the Treasurer a prohibited conduct recommendation under section 153S;\n\n (b) the body corporate is identified in the recommendation (in accordance with subparagraph 153S(2)(c)(i) or (iii));\n\n (c) the order is made no later than 45 days after:\n\n (i) unless subparagraph (ii) applies—the day on which the Commission gave the Treasurer the recommendation; or\n\n (ii) if there has been a variation of the recommendation under section 153T—the day on which the Commission made the variation;\n\n (d) the order is of a kind stated in the recommendation (in accordance with paragraph 153S(2)(d));\n\n (e) the conduct identified in the recommendation (in accordance with subparagraph 153S(2)(c)(ii)):\n\n (i) is prohibited conduct engaged in by the corporation identified in the recommendation (in accordance with subparagraph 153S(2)(c)(i)) (the relevant corporation); and\n\n (ii) is, or includes, prohibited conduct under section 153F (electricity financial contract liquidity) or section 153H (electricity spot market (aggravated case));\n\n (f) the order is a proportionate means of preventing the relevant corporation, or any related body corporate, from engaging in that kind of prohibited conduct in the future;\n\n (g) any of the following generate electricity:\n\n (i) the body corporate;\n\n (ii) another body corporate that is related to the body corporate.","sortOrder":1917},{"sectionNumber":"153X","sectionType":"section","heading":"Treasurer may make contracting order","content":"153X  Treasurer may make contracting order\n\n (1) The Treasurer may, in writing, order the body corporate to make offers to enter into electricity financial contracts.\n\n (2) The order must:\n\n (a) be expressed to be made under this section; and\n\n (b) state the day on which the order is made; and\n\n (c) identify:\n\n (i) the body corporate; and\n\n (ii) if the body corporate is not the relevant corporation—the relevant corporation; and\n\n (iii) the prohibited conduct mentioned in paragraph 153W(e); and\n\n (d) explain the reasons why the Treasurer is satisfied that the conditions in paragraphs 153W(e) and (f) are met; and\n\n (e) specify the matters mentioned in subsection (3).\n\n (3) The matters are as follows:\n\n (a) the kind of offers that the body corporate must make to enter into electricity financial contracts;\n\n (b) the manner in which the body corporate must make those offers;\n\n (c) the kind of entities to which those offers must be made;\n\n (d) the period or periods during which the body corporate must make those offers;\n\n (e) any other matter that the Treasurer considers necessary for the order to be effective.\n\n (4) The order may specify the kind of offers that the body corporate must make in any of the following ways:\n\n (a) the kind of electricity financial contracts that must be offered;\n\n (b) the price or range of prices in respect of electricity under the electricity financial contracts that must be offered, or a method or methods of working out that price or that range;\n\n (c) the minimum number of megawatt hours of electricity to which the electricity financial contracts that must be offered must relate.\n\n (5) In determining the minimum number of megawatt hours to specify for the purposes of paragraph (4)(c), the Treasurer must have regard to the following matters:\n\n (a) the total electricity generation capacity of the electricity generation assets held by each connected body corporate in relation to the prohibited conduct and related bodies corporate;\n\n (b) the nature and location of those electricity generation assets;\n\n (c) the commitments that the body corporate has, and related bodies corporate have, to supply electricity to customers;\n\n (d) any other matter that the Treasurer considers to be relevant.\n\n (6) The specified period or periods during which the body corporate must make those offers must:\n\n (a) start no earlier than 6 months after the order is made; and\n\n (b) end no later than 3 years after the order is made.\n\n (7) The Treasurer must publish, by electronic or other means, the following information:\n\n (a) the fact that the order has been made;\n\n (b) the day on which the order is made;\n\n (c) the name of the body corporate.","sortOrder":1918},{"sectionNumber":"153Y","sectionType":"section","heading":"Variation and revocation of contracting order","content":"153Y  Variation and revocation of contracting order\n\n (1) The Treasurer may, in writing, vary or revoke a contracting order in respect of a body corporate, on the Treasurer’s own initiative or on application made by the body corporate.\n\n (2) The Treasurer cannot make a variation under subsection (1) unless the Treasurer is satisfied that:\n\n (a) the order as varied is a proportionate means of preventing the relevant corporation, or any related body corporate, from engaging in the kind of prohibited conduct (mentioned in the order) in the future; and\n\n (b) if the body corporate does not consent to the variation—the variation is minor or insubstantial, or all of the following conditions are met:\n\n (i) the corporation or any related body corporate gave the Treasurer or the Commission information relevant to the prohibited conduct recommendation that is false or misleading in a material particular, or failed to give the Treasurer or the Commission information relevant to the prohibited conduct recommendation that is not publicly available;\n\n (ii) the variation is reasonably necessary to address the circumstances described in subparagraph (i).\n\n (3) A variation can be of a kind that results in the order, as varied, not being of a kind recommended in the prohibited conduct recommendation (in accordance with paragraph 153S(2)(d)).\n\n (4) The Treasurer need not consider an application by the body corporate to vary or revoke a contracting order if the application is made after:\n\n (a) if there is only one period mentioned in paragraph 153X(3)(d)—that period has ended; or\n\n (b) if there is more than one such period—all of those periods have ended.\n\n (5) The Treasurer must publish, by electronic or other means, the following information:\n\n (a) the fact that the variation or revocation has been made;\n\n (b) the day on which the variation or revocation is made;\n\n (c) the name of the body corporate.","sortOrder":1919},{"sectionNumber":"153Z","sectionType":"section","heading":"Enforcement of contracting orders","content":"153Z  Enforcement of contracting orders\n\n (1) This section applies if the Treasurer has made a contracting order in respect of a body corporate.\n\n (2) If the Commission considers that the body corporate has failed to comply with the contracting order, the Commission may apply to the Court for an order under subsection (3).\n\n (3) If the Court is satisfied that the body corporate has failed to comply with the contracting order, the Court may make all or any of the following orders:\n\n (a) an order directing the body corporate to comply with the contracting order;\n\n (b) if the period or periods specified in the contracting order (in accordance with paragraph 153X(3)(d)) have already passed—an order directing the body corporate to comply with the contracting order, within a new period, or new periods, specified in the order;\n\n (c) any other order that the Court considers appropriate.","sortOrder":1921},{"sectionNumber":"153ZA","sectionType":"section","heading":"Treasurer may apply to Federal Court for divestiture order","content":"153ZA  Treasurer may apply to Federal Court for divestiture order\n\n  The Treasurer may apply to the Court for an order under subsection 153ZB(2) or (3) in respect of a body corporate if the Treasurer is satisfied that the following conditions are met:\n\n (a) the Commission has given the Treasurer a prohibited conduct recommendation under section 153S;\n\n (b) the body corporate is identified in the recommendation (in accordance with subparagraph 153S(2)(c)(i) or (iii));\n\n (c) the application is made no later than 45 days after:\n\n (i) unless subparagraph (ii) applies—the day on which the Commission gave the Treasurer the recommendation; or\n\n (ii) if there has been a variation of the recommendation under section 153T—the day on which the Commission made the variation;\n\n (d) the order applied for is of a kind stated in the recommendation (in accordance with paragraph 153S(2)(d));\n\n (e) the conduct identified in the recommendation (in accordance with subparagraph 153S(2)(c)(ii)):\n\n (i) is prohibited conduct engaged in by the corporation identified in the recommendation (in accordance with subparagraph 153S(2)(c)(i)) (the relevant corporation); and\n\n (ii) is, or includes, prohibited conduct under section 153H (electricity spot market (aggravated case));\n\n (f) the order applied for is a proportionate means of preventing the relevant corporation, or any related body corporate, from engaging in that kind of prohibited conduct in the future;\n\n (g) the following conditions are satisfied:\n\n (i) the order applied for will result, or is likely to result, in a benefit to the public;\n\n (ii) if the order applied for will result, or is likely to result, in a detriment to the public—the benefit mentioned in subparagraph (i) would, or is likely to, outweigh that detriment.","sortOrder":1923},{"sectionNumber":"153ZB","sectionType":"section","heading":"Making of divestiture order","content":"153ZB  Making of divestiture order\n\n (1) The Court may, on the application of the Treasurer under section 153ZA, make an order under subsection (2) or (3) in relation to the body corporate if:\n\n (a) the Court finds, or has in another proceeding instituted under this Act found, that the conduct identified in the recommendation (in accordance with subparagraph 153S(2)(c)(ii)):\n\n (i) is prohibited conduct engaged in by the relevant corporation; and\n\n (ii) is, or includes, prohibited conduct under section 153H (electricity spot market (aggravated case)); and\n\n (b) the Court is satisfied that the order is a proportionate means of preventing the relevant corporation, or any related body corporate, from engaging in that kind of prohibited conduct in the future.\n\n (2) If the body corporate is not an authority of the Commonwealth or an authority of a State or Territory, the Court may order the body corporate to:\n\n (a) dispose of interests in securities or assets, other than to any of the following:\n\n (i) another body corporate that is related to the body corporate;\n\n (ii) an associate of the body corporate; and\n\n (b) comply with conditions (if any) specified in the order in accordance with subsection (7).\n\n (3) If the body corporate is an authority of the Commonwealth or an authority of a State or Territory, the Court may order the body corporate to:\n\n (a) dispose of interests in securities or assets to:\n\n (i) if the body corporate is an authority of the Commonwealth—an authority of the Commonwealth that is genuinely in competition in relation to electricity markets with the body corporate in relation to which the order is made and that the Commonwealth has a controlling interest in that is equal to or greater than the controlling interest that the Commonwealth has in that body corporate; and\n\n (ii) if the body corporate is an authority of a State or Territory—an authority of that State or Territory that is genuinely in competition in relation to electricity markets with the body corporate in relation to which the order is made and that the State or Territory has a controlling interest in that is equal to or greater than the controlling interest that the State or Territory has in that body corporate; and\n\n (b) comply with conditions (if any) specified in the order in accordance with subsection (7).\n\n (4) To avoid doubt, the Court cannot make an order under subsection (3) for the body corporate to dispose of interests in securities or assets otherwise than in accordance with paragraph (3)(a).\n\n (5) An order under subsection (2) or (3) must specify:\n\n (a) the interests in the securities and assets, or the kinds of interests in the securities and assets, that the body corporate must dispose of; and\n\n (b) the day by which the disposal must be made; and\n\n (c) any other matter that the Court considers necessary for the order to be effective.\n\n (6) The day by which the disposal must be made must be no earlier than 12 months after the day on which the order is made.\n\n (7) The order may specify conditions with which the body corporate must comply during the period between the making of the order and the disposal of an interest, if the Court is satisfied that those conditions are necessary to preserve any of the following:\n\n (a) the value of the interest;\n\n (b) in the case of an interest in an asset—the commercial operation of the asset.\n\n (8) Without limiting the scope of subsection (7), those conditions may relate to any of the following:\n\n (a) the interest to be disposed;\n\n (b) if the interest is a share or other security in a body corporate—the exercise of rights attached to the share or other security.\n\n (9) If a body corporate disposes of interests in assets to another body corporate as required by an order made under this section, then for the purposes of paragraph 311(1)(d) or 768AD(1)(d) of the Fair Work Act 2009, there is taken to be a connection between the body corporate and the other body corporate as described in subsection 311(3) or 768AD(2), as the case may be, of that Act.\n\nNote: This means any employees of the body corporate who become employees of the other body corporate and satisfy paragraphs 311(1)(a) to (c) or 768AD(1)(a) to (c) will be transferring employees in relation to a transfer of business for the purposes of Part 2‑8 or Part 6‑3A of that Act.","sortOrder":1924},{"sectionNumber":"153ZBA","sectionType":"section","heading":"Arrangements or undertakings in relation to employees","content":"153ZBA  Arrangements or undertakings in relation to employees\n\n (1) This section applies if:\n\n (a) a body corporate (the old employer) has made arrangements or undertakings in relation to employees of the body corporate (whether or not those arrangements or undertakings bind the old employer); and\n\n (b) the Court makes an order under subsection 153ZB(2) or (3) for the old employer to dispose of assets; and\n\n (c) the old employer disposes of the assets to another entity (the new employer); and\n\n (d) regulations made for the purposes of this paragraph before the disposal specify requirements in respect of arrangements or undertakings in relation to employees; and\n\n (e) the arrangements or undertakings satisfy those requirements.\n\n (2) The new employer must comply with the arrangements or undertakings.\n\n (3) Subsection (2) applies despite anything in the Fair Work Act 2009.","sortOrder":1925},{"sectionNumber":"153ZC","sectionType":"section","heading":"Acquisition of property","content":"153ZC  Acquisition of property\n\nScope\n\n (1) This section applies to the following:\n\n (a) Divisions 5 and 6;\n\n (b) any other provision of this Act, to the extent to which the provision relates to Division 5 or 6.\n\nEffect of provision\n\n (2) The provision has no effect to the extent (if any) to which its operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).","sortOrder":1927},{"sectionNumber":"153ZD","sectionType":"section","heading":"No orders under subsection 76(1) against certain individuals","content":"153ZD  No orders under subsection 76(1) against certain individuals\n\n (1) Nothing in subsection 76(1) authorises the making of an order against an individual covered under subsection (2) because the individual:\n\n (a) has aided, abetted, counselled or procured a corporation to contravene section 153E, 153F, 153G or 153H; or\n\n (b) has induced, or attempted to induce, a corporation, whether by threats or promises or otherwise, to contravene section 153E, 153F, 153G or 153H; or\n\n (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a corporation of section 153E, 153F, 153G or 153H; or\n\n (d) has conspired with others for a corporation to contravene section 153E, 153F, 153G or 153H.\n\n (2) An individual is covered under this section unless the individual is a director, secretary or senior manager (within the meaning of the Corporations Act 2001) of the corporation.","sortOrder":1928},{"sectionNumber":"Part XICB","sectionType":"part","heading":"Access to CS services","content":"Part XICB—Access to CS services","sortOrder":1929},{"sectionNumber":"153ZEA","sectionType":"section","heading":"Objects of Part","content":"153ZEA  Objects of Part\n\n  The objects of this Part are to:\n\n (a) facilitate access to CS services on terms and conditions, including pricing, that are transparent, non‑discriminatory, fair and reasonable; and\n\n (b) support the long‑term interests of the Australian market by delivering outcomes that are consistent with those that might be expected in a competitive market for CS services; and\n\n (c) address the imbalance in bargaining power between providers of CS services and access seekers in Australia; and\n\n (d) provide incentives for providers of CS services to negotiate commercial and non‑discriminatory terms of access with access seekers of the CS services in Australia; and\n\n (e) provide for the timely resolution of access disputes between providers of CS services and access seekers, if they arise; and\n\n (f) discourage providers of CS services from exerting market power to the detriment of competition in upstream and downstream markets.","sortOrder":1931},{"sectionNumber":"153ZEB","sectionType":"section","heading":"Definitions","content":"153ZEB  Definitions\n\n  In this Part:\n\naccess dispute means an access dispute notified under section 153ZEM.\n\naccess seeker, for a CS service, means a person who wants access to the CS service or wants a change to some aspect of the person’s existing access to the CS service.\n\nAustralian CS facility licence has the same meaning as in the Corporations Act 2001.\n\nconstitutional trade or commerce has the same meaning as in section 53B.\n\ncovered by a declaration: see subsection 153ZEF(3).\n\nCS facility means a clearing and settlement facility (within the meaning of the Corporations Act 2001).\n\nCS facility licensee has the same meaning as in the Corporations Act 2001.\n\nCS service has the same meaning as in section 828 of the Corporations Act 2001.\n\ndeclared CS service: a CS service is a declared CS service if:\n\n (a) the provider of the CS service is a CS facility licensee or a person that is related to a CS facility licensee; and\n\n (b) the CS facility licensee holds an Australian CS facility licence that authorises the CS facility licensee to operate a CS facility; and\n\n (c) the CS service can only be provided because it has access to, or to data used in the operation of, the CS facility; and\n\n (d) the CS service is covered by a declaration under section 153ZEF.\n\ndetermination means:\n\n (a) a final determination made under paragraph 153ZEP(1)(a); and\n\n (b) an interim determination made under paragraph 153ZEP(1)(b).\n\nlinked: a CS facility is linked to a CS service if:\n\n (a) the CS service is a declared CS service; and\n\n (b) the CS facility is the CS facility mentioned in paragraphs (b) and (c) of the definition of declared CS service.","sortOrder":1932},{"sectionNumber":"153ZEC","sectionType":"section","heading":"How this Part applies to partnerships and joint ventures","content":"153ZEC  How this Part applies to partnerships and joint ventures\n\n (1) This section applies if a provider of a CS service is a partnership or joint venture that consists of 2 or more corporations. Those corporations are referred to in this section as the participants.\n\n (2) If this Part requires or permits something to be done by the provider, the thing may be done by one or more of the participants on behalf of the provider.\n\n (3) If a provision of this Part refers to the provider bearing any costs, the provision applies as if the provision referred to any of the participants bearing any costs.\n\n (4) If a provision of this Part refers to the provider doing something, the provision applies as if the provision referred to one or more of the participants doing that thing on behalf of the provider.\n\n (5) If:\n\n (a) a provision of this Part requires the provider to do something, or prohibits the provider from doing something; and\n\n (b) a contravention of the provision is an offence;\n\nthe provision applies as if a reference to the provider were a reference to any person responsible for the day‑to‑day management and control of the provider.\n\n (6) If:\n\n (a) a provision of this Part requires a provider to do something, or prohibits a provider doing something; and\n\n (b) a contravention of the provision is not an offence;\n\nthe provision applies as if the reference to provider were a reference to each participant and to any other person responsible for the day‑to‑day management and control of the provider.","sortOrder":1933},{"sectionNumber":"153ZED","sectionType":"section","heading":"Constitutional limits on operation of this Part","content":"153ZED  Constitutional limits on operation of this Part\n\n  This Part does not apply in relation to an access seeker’s access to a CS service unless:\n\n (a) the provider of the CS service is a corporation (or a partnership or joint venture consisting wholly of corporations); or\n\n (b) the access seeker is a corporation; or\n\n (c) the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.","sortOrder":1934},{"sectionNumber":"153ZEE","sectionType":"section","heading":"This Part binds the Crown","content":"153ZEE  This Part binds the Crown\n\n (1) This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n (2) Nothing in this Part makes the Crown liable to be prosecuted for an offence.\n\n (3) The protection in subsection (2) does not apply to an authority of the Commonwealth or an authority of a State or Territory.","sortOrder":1935},{"sectionNumber":"153ZEF","sectionType":"section","heading":"Minister may declare a CS service","content":"153ZEF  Minister may declare a CS service\n\n (1) The Minister may, by legislative instrument, make a declaration specifying any of the following as services to which access may be the subject of negotiation or arbitration under this Part:\n\n (a) one or more CS services;\n\n (b) one or more classes of CS services.\n\n (2) A declaration under subsection (1) may also specify one or more CS services that are taken not to be covered by the declaration.\n\n (3) A CS service is covered by a declaration if:\n\n (a) the CS service is specified, or is in a class of CS services specified, in a declaration under subsection (1) that is in force; and\n\n (b) the CS service is not specified as a CS service that is taken not to be covered by a declaration in a declaration under subsection (1) that is in force.\n\nMatters to which the Minister has regard\n\n (4) In considering whether to make a declaration under subsection (1), the Minister:\n\n (a) must have regard to:\n\n (i) the likely effect on the Australian economy, and on the efficiency, integrity and stability of the Australian financial system, of making the declaration; and\n\n (ii) the likely regulatory impact of the declaration; and\n\n (iii) the extent to which a provider of a CS service that will be affected by the declaration has a monopoly or significant market power over the provision of the CS service; and\n\n (b) must have regard to the matters (if any) raised by the Commission in advice provided under subsection (5) in relation to the declaration; and\n\n (c) may have regard to any other matters that the Minister considers relevant.\n\nNote: Matters that the Minister may have regard to under paragraph (c) may, for example, include any relevant international standards and international commitments.\n\nCommission may advise Minister\n\n (5) The Commission may (on its own initiative) and must (at the request of the Minister):\n\n (a) consider whether a declaration should be made under subsection (1); and\n\n (b) advise the Minister accordingly.\n\nCommission may request advice from ASIC or Reserve Bank\n\n (6) The Commission may request advice from ASIC or the Reserve Bank of Australia for the purposes of informing its consideration and advice under subsection (5).\n\n (7) ASIC and the Reserve Bank of Australia may give advice to the Commission relating to whether a declaration should be made under subsection (1).","sortOrder":1937},{"sectionNumber":"153ZEG","sectionType":"section","heading":"Amendment and revocation of declarations","content":"153ZEG  Amendment and revocation of declarations\n\n (1) The Minister may amend or revoke a declaration under subsection 153ZEF(1) in like manner and subject to like conditions (see subsections 33(3) and (3AA) of the Acts Interpretation Act 1901).\n\n (2) The amendment or revocation of a declaration does not affect:\n\n (a) the arbitration of an access dispute that was notified under subsection 153ZEM(2) before the amendment or revocation; or\n\n (b) the operation or enforcement of any determination made in the arbitration of an access dispute that was notified under subsection 153ZEM(2) before the amendment or revocation.","sortOrder":1938},{"sectionNumber":"153ZEH","sectionType":"section","heading":"Notification of negotiations under this Division","content":"153ZEH  Notification of negotiations under this Division\n\n (1) This section applies in relation to a CS service if it is a declared CS service.\n\n (2) An access seeker for the CS service may notify the provider that it wishes to negotiate under this Division over one or more specified issues relating to any aspect of access to the CS service, including:\n\n (a) whether access can be granted; and\n\n (b) the price and other terms and conditions of the access.\n\n (3) The notification must set out the following matters:\n\n (a) a contact person for the access seeker;\n\n (b) contact details for the contact person;\n\n (c) the specified issues mentioned in subsection (2);\n\n (d) if regulations made for the purposes of this paragraph specify other matters—those matters.\n\nNotifying the Commission\n\n (4) The access seeker must give a copy of the notification to the Commission as soon as practicable after notifying the provider under subsection (2).","sortOrder":1940},{"sectionNumber":"153ZEI","sectionType":"section","heading":"Ending negotiations under this Division","content":"153ZEI  Ending negotiations under this Division\n\n (1) The access seeker may give notice to the provider that the negotiation is at an end, whether or not the access seeker also refers or has referred a related access dispute to arbitration under this Part.\n\n (2) The provider may give notice to the access seeker that the negotiation is at an end for the purposes of this Part if the CS service ceases to be a declared CS service.\n\nTiming\n\n (3) The negotiation is taken to have ended for the purposes of this Part when the notice under subsection (1) or (2) is given.\n\nNotifying the Commission\n\n (4) If the negotiation ends under subsection (1) or (2), the following person must notify the Commission as soon as practicable:\n\n (a) if subsection (1) applies—the access seeker;\n\n (b) if subsection (2) applies—the provider.","sortOrder":1941},{"sectionNumber":"153ZEJ","sectionType":"section","heading":"Conducting negotiations under this Division","content":"153ZEJ  Conducting negotiations under this Division\n\nParties to the negotiation\n\n (1) The parties to the negotiation are:\n\n (a) the access seeker; and\n\n (b) the provider; and\n\n (c) any other person that the access seeker and the provider agree to include as a party to the negotiations.\n\nGood faith\n\n (2) Each party to the negotiation must participate in the negotiation in good faith.\n\nTimetable for negotiations\n\n (3) Each party to the negotiation must seek to accommodate all reasonable requirements of the other parties regarding the timetable for the negotiation.\n\nSubject of negotiations\n\n (4) The negotiation must be about:\n\n (a) the specified issues mentioned in subsection 153ZEH(2); and\n\n (b) any other issue that the parties to the negotiation agree, in writing, that they wish to negotiate over.\n\nNotifying the Commission if agreement reached\n\n (5) If the parties to the negotiation reach agreement over each issue mentioned in subsection (4), they must ensure that a written notification of the agreement is given to the Commission as soon as practicable.","sortOrder":1942},{"sectionNumber":"153ZEK","sectionType":"section","heading":"Information request by bargaining party—general","content":"153ZEK  Information request by bargaining party—general\n\n (1) A party (the requesting party) to the negotiation may give another party (the responding party) a request that the responding party give the requesting party specified information if:\n\n (a) the information is held by the responding party or a related body corporate of the responding party; and\n\n (b) it is reasonable for the requesting party to make the request for the purposes of this Division.\n\n (2) The request must:\n\n (a) be made in writing; and\n\n (b) set out reasons why it is reasonable for the requesting party to make the request for the purposes of this Division; and\n\n (c) if regulations made for the purposes of this paragraph specify other requirements—comply with those requirements.\n\n (3) After the request is made, the responding party must ensure that:\n\n (a) the request is complied with no later than 21 days after the request was given to the responding party, or any later date the requesting party agrees to; and\n\n (b) the information requested is given in a readily readable form, including (where requested) in electronic file format with all underlying data files and inputs; and\n\n (c) the information given is, or is relevant to, the specified information mentioned in subsection (1); and\n\n (d) if regulations made for the purposes of this paragraph specify other requirements for that information—those requirements are satisfied.\n\nDuty of good faith\n\n (4) Each party to a negotiation under this Division must request or provide information under this section in a manner and at a time consistent with the duty of the party to negotiate in good faith under subsection 153ZEJ(2).","sortOrder":1943},{"sectionNumber":"153ZEL","sectionType":"section","heading":"Information request by bargaining party—miscellaneous rules","content":"153ZEL  Information request by bargaining party—miscellaneous rules\n\n (1) Nothing in section 153ZEK requires or authorises the giving of information that is personal information (within the meaning of the Privacy Act 1988).\n\n (2) If the responding party gives information to the requesting party in order to comply with subsection 153ZEK(3), the requesting party must ensure that the information is not used for a purpose other than a purpose relating to this Part.","sortOrder":1944},{"sectionNumber":"153ZEM","sectionType":"section","heading":"Notification of access disputes","content":"153ZEM  Notification of access disputes\n\n (1) This section applies in relation to a CS service if it is a declared CS service.\n\n (2) If:\n\n (a) an access seeker for the CS service is unable to agree with the provider on one or more aspects of access to the CS service that are or have been the subject of a negotiation under Division 3; and\n\n (b) the access seeker and the provider are or were parties to the negotiation;\n\neither party may notify the Commission in writing that an access dispute exists.\n\nNote: An example of one of the things on which a provider and an access seeker for a CS service might disagree is whether a previous determination ought to be varied.\n\n (3) The notification must include information about:\n\n (a) the issues (if any) on which agreement has been reached in the negotiation under Division 3; and\n\n (b) the issues that are in dispute; and\n\n (c) if regulations made for the purposes of this paragraph specify other matters—those matters.\n\n (4) On receiving the notification, the Commission must give notice in writing of the access dispute, as soon as practicable, to:\n\n (a) the provider, if the access seeker notified the access dispute; and\n\n (b) the access seeker, if the provider notified the access dispute; and\n\n (c) any other person whom the Commission thinks might want to become a party to the arbitration.","sortOrder":1946},{"sectionNumber":"153ZEN","sectionType":"section","heading":"Withdrawal of notifications","content":"153ZEN  Withdrawal of notifications\n\n (1) A notification under subsection 153ZEM(2) may be withdrawn as follows (and not otherwise):\n\n (a) if the provider notified the dispute:\n\n (i) the provider may withdraw the notification at any time before the Commission makes its final determination;\n\n (ii) the access seeker may withdraw the provider’s notification at any time after the Commission issues a draft final determination, but before it makes its final determination;\n\n (b) if the access seeker notified the dispute, the access seeker may withdraw the notification at any time before the Commission makes its final determination.\n\n (2) Despite subparagraph (1)(a)(ii), if the provider notified a dispute over variation of a final determination, the access seeker may not withdraw the provider’s notification.\n\n (3) If the notification is withdrawn, it is taken for the purposes of this Part never to have been given.","sortOrder":1947},{"sectionNumber":"153ZEO","sectionType":"section","heading":"Parties to the arbitration","content":"153ZEO  Parties to the arbitration\n\n  The parties to the arbitration of an access dispute notified under subsection 153ZEM(2) regarding access to a CS service are:\n\n (a) the provider mentioned in the notification; and\n\n (b) the access seeker mentioned in the notification; and\n\n (c) any other person who applies in writing to be made a party and is accepted by the Commission as having a sufficient interest.","sortOrder":1949},{"sectionNumber":"153ZEP","sectionType":"section","heading":"Determination by Commission","content":"153ZEP  Determination by Commission\n\n (1) Unless it terminates the arbitration under section 153ZEU, the Commission:\n\n (a) must make a written final determination; and\n\n (b) may make a written interim determination;\n\non access by the access seeker to the CS service.\n\n (2) A determination may deal with any matter relating to access to the CS service by the access seeker, including matters that were not the basis for notification of the access dispute.\n\nExample: A determination may do any of the following:\n\n(a) require the provider to provide access to the CS service by the access seeker;\n\n(b) require the access seeker to accept, and pay for, access to the CS service;\n\n(c) specify the terms and conditions of the access seeker’s access to the CS service;\n\n(d) vary or revoke an earlier determination relating to access to the CS service by the access seeker.\n\n (3) Before making a determination, the Commission must:\n\n (a) give a draft determination to the parties; and\n\n (b) consult ASIC and the Reserve Bank of Australia about the determination.\n\n (4) When the Commission makes a determination, it must give the parties its reasons for making the determination.\n\nNote: The Commission must also publish a written report about a final determination it makes (see section 153ZET).\n\n (5) A determination is not a legislative instrument.","sortOrder":1950},{"sectionNumber":"153ZEQ","sectionType":"section","heading":"Restrictions on access determinations","content":"153ZEQ  Restrictions on access determinations\n\n (1) The Commission must not make a determination that would have any of the following effects:\n\n (a) preventing an existing user that is not related to the provider from obtaining sufficient access to the CS service to be able to meet the user’s reasonably anticipated requirements, measured at the time when the dispute was notified;\n\n (b) preventing a person that is not related to the provider from obtaining, by the exercise of a pre‑notification right, sufficient access to the CS service to be able to meet the person’s actual requirements;\n\n (d) resulting in the access seeker becoming the owner (or one of the owners) of any part of the CS facility that is linked to the CS service, or of extensions of the CS facility, without the consent of the provider;\n\n (e) requiring the provider to bear some or all of the costs of extending the CS facility;\n\n (f) requiring the provider to bear some or all of the costs of maintaining extensions of the CS facility.\n\n (2) Paragraphs (1)(a) and (b) do not apply in relation to the requirements and rights of the access seeker and the provider when the Commission is making a determination in arbitration of an access dispute relating to an earlier determination of an access dispute between the access seeker and the provider.\n\n (3) A determination is of no effect to the extent it has any of the effects mentioned in subsection (1).\n\n (4) If the Commission makes a determination that has the effect of depriving a person (the second person) of a pre‑notification right to require the provider to supply the CS service to the second person, the determination must also require the access seeker:\n\n (a) to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and\n\n (b) to reimburse the provider and the Commonwealth for any compensation that the provider or the Commonwealth agrees, or is required by a court order, to pay to the second party as compensation for the deprivation.\n\nNote: Without infringing paragraph (1)(b), a determination may deprive a second person of the right to be supplied with an amount of CS service equal to the difference between the total amount of CS service the person was entitled to under a pre‑notification right and the amount that the person actually needs to meet the person’s actual requirements.\n\n (5) If the provider is not the holder of the Australian CS facility licence that authorises the operation of the CS facility, this section applies in relation to the holder in the same way as it applies in relation to the provider.\n\n (6) In this section:\n\nexisting user means a person (including the provider) who was using the CS service at the time when the access dispute was notified.\n\npre‑notification right means a right under a contract, or under a determination, that was in force at the time when the access dispute was notified.","sortOrder":1951},{"sectionNumber":"153ZER","sectionType":"section","heading":"Matters that the Commission must take into account","content":"153ZER  Matters that the Commission must take into account\n\nFinal determinations\n\n (1) The Commission must take the following matters into account in making a final determination:\n\n (a) the objects of this Part;\n\n (b) the operational and technical requirements (including those relating to interoperability and financial stability) necessary for the safe and reliable operation of a current or proposed CS facility that is or may be linked to the CS service;\n\n (c) the pricing principles specified in subsection (3);\n\n (d) if an obligation of the provider under an Australian law in relation to the CS service is mentioned in a party’s case—that obligation;\n\n (e) if the provider is not the holder of the Australian CS facility licence that authorises the operation of the CS facility, and an obligation of the holder under an Australian law in relation to the CS service is mentioned in a party’s case—that obligation;\n\n (f) any advice provided by ASIC or the Reserve Bank of Australia in response to consultations undertaken under paragraph 153ZEP(3)(b);\n\n (g) any advice provided by ASIC or the Reserve Bank of Australia under subsection 153ZEX(3) in relation to the arbitration;\n\n (h) any guidance or policies relating to CS services made by the Commission, ASIC or the Reserve Bank of Australia;\n\n (i) the legitimate business interests of the provider, and the provider’s investment in the CS facility;\n\n (j) if the provider is not the holder of the Australian CS facility licence that authorises the operation of the CS facility—the legitimate business interests of the holder, and the holder’s investment in the CS facility;\n\n (k) the interests of all persons who have rights to access the CS service;\n\n (l) the public interest, including the public interest in having competition in markets (whether or not in Australia).\n\n (2) The Commission may take any other matters that it thinks are relevant into account in making a final determination.\n\n (3) For the purposes of paragraph (1)(c), the pricing principles are as follows:\n\n (a) access prices should generate expected revenue for a CS service that reflects the costs of providing access to the CS service;\n\n (b) access prices should include a return on investment commensurate with the regulatory and commercial risks involved;\n\n (c) access price structures should not allow a vertically integrated provider to set terms and conditions that discriminate in favour of its related entities, except to the extent that the cost of providing access to other access seekers is higher;\n\n (d) access pricing should provide incentives to reduce costs or otherwise improve productivity.\n\nInterim determinations\n\n (4) The Commission may take a matter referred to in subsection (1) or (2) into account in making an interim determination.\n\n (5) In making an interim determination, the Commission does not have a duty to consider whether to take into account a matter referred to in subsection (1).","sortOrder":1952},{"sectionNumber":"153ZES","sectionType":"section","heading":"Time limit for Commission’s final determination","content":"153ZES  Time limit for Commission’s final determination\n\nCommission to make final determination within 180 days\n\n (1) The Commission must make a final determination within the period of 180 days (the expected period) starting at the start of the day the access dispute is notified.\n\nExtending the period\n\n (2) Before the end of the expected period, the Commission may, if satisfied it is appropriate to do so, extend the expected period.\n\n (3) When the Commission extends the expected period, it must:\n\n (a) notify the parties of the extension before it takes effect; and\n\n (b) give the parties reasons for the extension.\n\n (4) The expected period may be extended one or more times, but must not exceed 365 days.\n\nDeemed final determination\n\n (5) If the Commission does not make a final determination within the expected period, it is taken, immediately after the end of the expected period, to have:\n\n (a) made a final determination that does not impose any obligations on the parties or alter any obligations (if any) that exist at that time between the parties; and\n\n (b) published a written report about the final determination under section 153ZET.","sortOrder":1953},{"sectionNumber":"153ZET","sectionType":"section","heading":"Arbitration reports","content":"153ZET  Arbitration reports\n\n (1) The Commission must prepare a written report about a final determination it makes. It must publish, by electronic or other means, the report.\n\n (2) The report may include the whole or a part of the determination and the reasons for the determination or the part of the determination.\n\nReport must include certain matters\n\n (3) The report must set out the following matters:\n\n (a) the issues on which agreement was reached between the parties to the arbitration and the issues which were in dispute;\n\n (b) the principles the Commission applied in making the determination;\n\n (c) the methodologies the Commission applied in making the determination;\n\n (d) how the Commission took into account the matters mentioned in subsection 153ZER(1) in making the determination;\n\n (e) any matter the Commission took into account under subsection 153ZER(2) in making the determination and the reasons for doing so;\n\n (f) any information provided by the parties to the arbitration that was relevant to those principles or methodologies.\n\nNote: Confidentiality issues are dealt with in subsections (5) and (6).\n\nReport may include other matters\n\n (4) The report may include any other matter that the Commission considers relevant.\n\nConfidentiality\n\n (5) The Commission must not include in the report any information the Commission decided not to give to a party to the arbitration under section 44ZL (as applied in relation to the arbitration by section 153ZEV).\n\n (6) Before publishing the report, the Commission must give each party to the arbitration a notice in writing:\n\n (a) specifying what the Commission is proposing to publish; and\n\n (b) inviting the party to make a written submission to the Commission within 14 days after the notice is given identifying any information the party considers should not be published because of its confidential commercial nature.\n\n (7) The Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant.\n\nLegislation Act 2003\n\n (8) A report prepared under subsection (1) is not a legislative instrument.","sortOrder":1954},{"sectionNumber":"153ZEU","sectionType":"section","heading":"Commission may terminate arbitration in certain cases","content":"153ZEU  Commission may terminate arbitration in certain cases\n\n (1) The Commission must terminate the arbitration of an access dispute (without making a final determination) if paragraphs (a), (b) and (c) of the definition of declared CS service no longer apply to the CS service.\n\n (2) The Commission may at any time terminate the arbitration of an access dispute (without making a final determination) if it thinks that:\n\n (a) the notification of the access dispute was vexatious; or\n\n (b) the subject matter of the access dispute is trivial, misconceived or lacking in substance; or\n\n (c) the party who notified the access dispute has not engaged in negotiations (including negotiations under Division 3) in good faith; or\n\n (d) the negotiation under Division 3 that led to the notification of the access dispute is insufficiently relevant to the matters that a final determination is likely to deal with; or\n\n (e) access to the CS service should continue to be governed by an existing contract between some or all of the parties to the arbitration.\n\n (3) In addition, if the dispute is about varying an existing determination, the Commission may terminate the arbitration if it thinks there is no sufficient reason why the previous determination should not continue to have effect in its present form.","sortOrder":1955},{"sectionNumber":"153ZEV","sectionType":"section","heading":"Subdivision D of Division 3 of Part IIIA to apply","content":"153ZEV  Subdivision D of Division 3 of Part IIIA to apply\n\n (1) The following provisions apply in relation to an arbitration of an access dispute under this Part as if they were provisions of this Division:\n\n (a) Subdivision D of Division 3 of Part IIIA;\n\n (b) regulations made for the purposes of provisions in that Subdivision.\n\n (2) For the purposes of subsection (1):\n\n (a) treat an arbitration of an access dispute under this Part as an arbitration of an access dispute under Part IIIA; and\n\n (b) treat any reference in that Subdivision or in those regulations to:\n\n (i) a provision in that Subdivision or those regulations as a reference to a provision in that Subdivision or those regulations as they apply because of this section; and\n\n (ii) a third party as a reference to an access seeker; and\n\n (b) treat the reference in subsection 44ZG(3) to any other provision of this Part as a reference to any other provision of that Subdivision or Part XICB.\n\n (3) The regulations may modify the provisions mentioned in paragraph (1)(b) in their application under subsection (1) in relation to an arbitration of an access dispute under this Part.\n\n (4) If the Commission holds a joint arbitration hearing in respect of 2 or more access disputes under section 44ZNA (as applied by subsection (1)), the Commission may make a single determination that covers all of the disputes.","sortOrder":1957},{"sectionNumber":"153ZEW","sectionType":"section","heading":"Commission’s powers if information not provided in negotiations","content":"153ZEW  Commission’s powers if information not provided in negotiations\n\nUse in arbitration of information requested but not provided in negotiations\n\n (1) If:\n\n (a) a party to the arbitration of an access dispute seeks to include certain information in its case; and\n\n (b) in the negotiation under Division 3 that led to the notification of the access dispute, the information was the subject of a request under section 153ZEK; and\n\n (c) the party, or a person related to the party, was the responding party (within the meaning of subsection 153ZEK(1)) to the request; and\n\n (d) the responding party did not ensure that the requirements in subsection 153ZEK(3) were satisfied in respect of the request;\n\nthe party must seek the Commission’s permission in writing to include the information in its case.\n\n (2) In determining whether to grant permission under subsection (1), the Commission must have regard to:\n\n (a) the desirability of the parties to the negotiation complying with the requirements in section 153ZEK; and\n\n (b) whether the responding party was given a reasonable opportunity to ensure that the requirements in subsection 153ZEK(3) were satisfied in respect of the request before the access dispute was notified.\n\nCommission’s powers generally\n\n (3) If the Commission is satisfied that a party to the arbitration of an access dispute has failed to provide information in accordance with section 153ZEK in the negotiation under Division 3 that led to the notification of the access dispute, the Commission may do any of the following in the arbitration:\n\n (a) direct that the party is not entitled to rely on specified information or materials;\n\n (b) draw such adverse inferences from the failure as the circumstances justify;\n\n (c) for the purposes of making a determination, not have regard to information that the party in the negotiation failed to provide in accordance with section 153ZEK.","sortOrder":1958},{"sectionNumber":"153ZEX","sectionType":"section","heading":"Sharing information with and requesting advice from ASIC and Reserve Bank","content":"153ZEX  Sharing information with and requesting advice from ASIC and Reserve Bank\n\n (1) The Commission may do any of the following:\n\n (a) notify ASIC or the Reserve Bank of Australia that an access dispute exists;\n\n (b) request advice from ASIC or the Reserve Bank of Australia relating to the arbitration of an access dispute;\n\n (c) give information relating to an access dispute to ASIC or the Reserve Bank of Australia for the purposes of a notification or request under paragraph (a) or (b).\n\n (2) To avoid doubt, paragraph (1)(c) applies to confidential commercial information that the Commission thinks should not be given to the other parties to the arbitration under section 44ZL (as applied in relation to the arbitration by section 153ZEV).\n\n (3) ASIC and the Reserve Bank of Australia may give advice to the Commission relating to the arbitration of an access dispute.","sortOrder":1959},{"sectionNumber":"153ZEY","sectionType":"section","heading":"Operation of final determinations","content":"153ZEY  Operation of final determinations\n\n (1) Unless otherwise specified, a final determination of an access dispute has effect 21 days after the determination is made.\n\nBackdating\n\n (2) Any or all of the provisions of the 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).\n\nExample: 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.\n\n (3) The specified day must not be earlier than the day on which the notification of negotiations under section 153ZEH was given that led to the notification of the access dispute under section 153ZEM.\n\n (4) However, the specified day cannot be a day on which the access seeker did not have access to the CS service.\n\nOperation of interim determination\n\n (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.\n\nInterest\n\n (6) If:\n\n (a) a provision of a final determination is covered by subsection (2); and\n\n (b) the provision requires a party to the determination (the first party) to pay money to another party;\n\nthe 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:\n\n (c) beginning on the day specified under subsection (2); and\n\n (d) ending on the day on which the determination takes effect under subsection (1).","sortOrder":1961},{"sectionNumber":"153ZEZ","sectionType":"section","heading":"Effect and duration of interim determinations","content":"153ZEZ  Effect and duration of interim determinations\n\n (1) An interim determination made in the arbitration of an access dispute takes effect on the day specified in the determination.\n\n (2) Unless sooner revoked, such an interim determination continues in effect until the earliest of the following:\n\n (a) the notification of the access dispute is withdrawn under section 153ZEN;\n\n (b) the arbitration is terminated under section 153ZEU;\n\n (c) a final determination relating to the access dispute takes effect.\n\nNote: A backdated final determination may prevail over an interim determination: see subsection 153ZEY(5).","sortOrder":1962},{"sectionNumber":"153ZFA","sectionType":"section","heading":"Variation and revocation of determinations","content":"153ZFA  Variation and revocation of determinations\n\n (1) The Commission may, if satisfied it is appropriate to do so, by written instrument vary or revoke a determination:\n\n (a) on its own initiative; or\n\n (b) on the application of any party to the determination.\n\n (2) Sections 153ZEQ and 153ZER apply to the making of a variation of a final determination as if:\n\n (a) an access dispute arising out of the final determination had been notified when the application was made to the Commission for the variation of the determination; and\n\n (b) the variation were the making of a final determination in the terms of the varied determination.\n\n (3) Before making a variation, the Commission may give a draft variation to the parties.\n\n (4) When the Commission varies or revokes a determination, it must give the parties to the determination its reasons for doing so.\n\n (5) A variation or revocation is not a legislative instrument.","sortOrder":1964},{"sectionNumber":"153ZFB","sectionType":"section","heading":"Prohibition on hindering access to declared services","content":"153ZFB  Prohibition on hindering access to declared services\n\n (1) The provider or a user of a CS service to which an access seeker has access under a determination, or a body corporate related to the provider or a user of the CS service, must not engage in conduct for the purpose of preventing or hindering the access seeker’s access to the CS service under the determination.\n\n (2) A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or from other relevant circumstances. This subsection does not limit the manner in which the purpose of a person may be established for the purposes of subsection (1).\n\n (3) In this section, a user of a CS service includes a person who has a right to use the CS service.","sortOrder":1966},{"sectionNumber":"153ZFC","sectionType":"section","heading":"Division 7 of Part IIIA to apply","content":"153ZFC  Division 7 of Part IIIA to apply\n\n (1) Division 7 of Part IIIA applies in relation to a determination under this Part as if they were provisions of this Division.\n\n (2) For the purposes of subsection (1), treat:\n\n (a) a reference in that Division to:\n\n (i) a determination as a reference to a determination made under this Part; and\n\n (ii) section 44ZZ as a reference to section 153ZFB; and\n\n (b) the reference in subsection 44ZZE(3) to Divisions 2 and 3 as a reference to this Part (other than this section); and\n\n (c) section 44ZZJ as having been omitted; and\n\n (d) any reference in Division 7 of Part IIIA to a provision in that Division as a reference to the provision as it applies because of this section.","sortOrder":1967},{"sectionNumber":"153ZFD","sectionType":"section","heading":"Register of determinations","content":"153ZFD  Register of determinations\n\n (1) The Commission must maintain a public register that specifies the following information for each determination:\n\n (a) the names of the parties to the determination;\n\n (b) the CS service to which the determination relates;\n\n (c) the date on which the determination was made.\n\n (2) The regulations may make provision about the inspection of the public register (including provision about fees).","sortOrder":1969},{"sectionNumber":"153ZFE","sectionType":"section","heading":"Provisions of Division 8 of Part IIIA to apply","content":"153ZFE  Provisions of Division 8 of Part IIIA to apply\n\n (1) The following provisions apply in relation to a determination under this Part as if they were provisions of this Division:\n\n (a) section 44ZZN;\n\n (b) section 44ZZNA;\n\n (c) section 44ZZO.\n\n (2) For the purposes of subsection (1), the provisions apply:\n\n (a) in relation to a determination under this Part in the same way as they apply in relation to a determination made under Part IIIA; and\n\n (b) in relation to this Part in the same way as they apply in relation to Part IIIA.\n\nChapter 8—Miscellaneous","sortOrder":1970},{"sectionNumber":"Part XID","sectionType":"part","heading":"Search and seizure","content":"Part XID—Search and seizure","sortOrder":1971},{"sectionNumber":"154","sectionType":"section","heading":"Simplified outline","content":"154  Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part sets out an enforcement regime for the purposes of finding out whether there has been a contravention of this Act, a gas market instrument or the consumer data rules, Part 20 of the Telecommunications Act 1997 or Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999, or Part 5 or 5A of the Water Act 2007 or the Water Markets Intermediaries Code.\n\n• Division 2 provides for the appointment of inspectors and the issue of identity cards.\n\n• Division 3 deals with entry to premises with the consent of the occupier of the premises.\n\n• Division 4 deals with entry to premises under a search warrant issued by a magistrate. It sets out the powers available under a search warrant, the obligations of persons entering the premises and the rights and responsibilities of the occupier of the premises.\n\n• Division 5 contains some general provisions relating to the operation of electronic equipment at premises.\n\nNote: See also section 155 (which deals with the obtaining of information, documents and evidence).","sortOrder":1973},{"sectionNumber":"154A","sectionType":"section","heading":"Definitions","content":"154A  Definitions\n\n  In this Part:\n\nconsultant means a person engaged under section 27A.\n\ncontravention, 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.\n\ndata includes:\n\n (a) information in any form; or\n\n (b) any program (or part of a program).\n\ndata held in a computer includes:\n\n (a) data held in any removable data storage device for the time being held in a computer; or\n\n (b) data held in a data storage device on a computer network of which the computer forms a part.\n\ndata storage device means a thing containing, or designed to contain, data for use by a computer.\n\nevidential material means a document or other thing that may afford evidence relating to:\n\n (a) a contravention of this Act, a gas market instrument or the consumer data rules; or\n\n (b) a contravention of Part 20 of the Telecommunications Act 1997; or\n\n (c) a contravention of Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or\n\n (cb) a contravention of Part 5A of the Water Act 2007, other than Division 3 of that Part (water announcements); or\n\n (ca) a contravention of Part 5 of the Water Act 2007 or of the Water Markets Intermediaries Code within the meaning of that Act; or\n\n (d) a contravention of section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part.\n\nexecuting officer, for a search warrant, means:\n\n (a) the inspector named in the warrant as being responsible for executing the warrant; or\n\n (b) if that inspector does not intend to be present at the execution of the warrant—another inspector whose name has been written in the warrant by the inspector so named; or\n\n (c) another inspector whose name has been written in the warrant by the inspector last named in the warrant.\n\ninspector means a person appointed as an inspector under section 154B.\n\noccupier, in relation to premises, includes a person present at the premises who apparently represents the occupier.\n\nofficer assisting, for a search warrant, means:\n\n (a) an inspector who is assisting in executing the warrant; or\n\n (b) a person authorised under section 154K in relation to the warrant.\n\npremises means:\n\n (a) an area of land or any other place (whether or not it is enclosed or built on); or\n\n (b) a building or other structure; or\n\n (c) a vehicle, vessel or aircraft; or\n\n (d) a part of any such premises.\n\nsearch warrant means a warrant issued by a magistrate under section 154X or signed by a magistrate under section 154Y.\n\nthing includes a thing in electronic or magnetic form.","sortOrder":1974},{"sectionNumber":"154B","sectionType":"section","heading":"Appointment of inspectors","content":"154B  Appointment of inspectors\n\n (1) The Chairperson may, by writing, appoint a member of the staff assisting the Commission to be an inspector.\n\nStaff member to have suitable qualifications and experience\n\n (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.\n\nInspector to comply with Chairperson’s directions\n\n (3) An inspector must comply with any directions of the Chairperson in exercising powers or performing functions as an inspector.","sortOrder":1976},{"sectionNumber":"154C","sectionType":"section","heading":"Identity cards","content":"154C  Identity cards\n\n (1) The Chairperson must issue an identity card to an inspector.\n\nForm of identity card\n\n (2) The identity card must:\n\n (a) contain the information prescribed by the regulations; and\n\n (b) contain a recent photograph of the inspector.\n\nOffence\n\n (3) A person commits an offence if:\n\n (a) the person has been issued with an identity card; and\n\n (b) the person ceases to be an inspector; and\n\n (c) the person does not return the identity card to the Chairperson as soon as practicable.\n\nPenalty: 1 penalty unit.\n\n (4) An offence against subsection (3) is an offence of strict liability.\n\nNote: For strict liability, see section 6.1 of the Criminal Code.\n\nCard lost or destroyed\n\n (5) Subsection (3) does not apply if the identity card was lost or destroyed.\n\nNote: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.\n\nInspector must carry card\n\n (6) An inspector must carry his or her identity card at all times when exercising powers or performing functions as an inspector.\n\nInspector must produce card on request\n\n (7) An inspector is not entitled to exercise any powers under this Part in relation to premises if:\n\n (a) the occupier of the premises has requested the inspector to produce the inspector’s identity card for inspection by the occupier; and\n\n (b) the inspector fails to comply with the request.","sortOrder":1977},{"sectionNumber":"154D","sectionType":"section","heading":"Entry with consent","content":"154D  Entry with consent\n\nEntry\n\n (1) An inspector may enter premises if:\n\n (a) the Commission, the Chairperson or a Deputy Chairperson has reasonable grounds for suspecting that there may be evidential material on the premises; and\n\n (b) the inspector obtains the consent of the occupier of the premises to enter the premises.\n\n (2) The inspector may be accompanied by any one or more of the following persons (each of whom is an assistant):\n\n (a) another member of the staff assisting the Commission;\n\n (b) a consultant.\n\nObtaining consent\n\n (3) Before obtaining the consent of a person to enter premises under this Division, the inspector must inform the person that the person may refuse consent.\n\n (4) A consent of a person is not effective for the purposes of this section unless it is voluntary.","sortOrder":1979},{"sectionNumber":"154E","sectionType":"section","heading":"Powers in relation to premises","content":"154E  Powers in relation to premises\n\n (1) The inspector or an assistant may do any of the following after entering premises under this Division:\n\n (a) search the premises, and any thing on the premises, for the evidential material;\n\n (b) make copies of the evidential material found on the premises;\n\n (c) operate electronic equipment at the premises to see whether the evidential material is accessible by doing so;\n\nNote: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).\n\n (d) remove the evidential material from the premises with the consent of the owner of the material;\n\nNote: See also subsection (2).\n\n (e) secure the evidential material, pending the obtaining of a search warrant to seize it;\n\n (f) take equipment and material onto the premises, and use it, for any of the above purposes.\n\nObtaining consent to remove evidential material\n\n (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.","sortOrder":1980},{"sectionNumber":"154F","sectionType":"section","heading":"Operation of electronic equipment at premises","content":"154F  Operation of electronic equipment at premises\n\n (1) If:\n\n (a) an inspector or an assistant enters premises under this Division; and\n\n (b) he or she believes on reasonable grounds that any data accessed by operating electronic equipment at the premises (including data not held at the premises) might constitute evidential material;\n\nhe or she may do only 1 of 2 things.\n\nRemoval of documents\n\n (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.\n\nRemoval of disk, tape or other storage device\n\n (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:\n\n (a) is brought to the premises for the exercise of the power; or\n\n (b) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;\n\nand remove the disk, tape or other storage device from the premises.","sortOrder":1981},{"sectionNumber":"154G","sectionType":"section","heading":"The things that are authorised by a search warrant","content":"154G  The things that are authorised by a search warrant\n\n (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:\n\n (a) enter the premises;\n\n (b) search the premises, and any thing on the premises, for the kind of evidential material specified in the warrant, and seize things of that kind found on the premises;\n\n (c) make copies of the kind of evidential material specified in the warrant found on the premises;\n\n (d) operate electronic equipment at the premises to see whether the kind of evidential material specified in the warrant is accessible by doing so (including evidential material not held at the premises);\n\nNote: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).\n\n (e) take equipment and material onto the premises, and use it, for any of the above purposes.\n\n (1A) In executing a search warrant that is in force in relation to premises, the executing officer or an officer assisting may:\n\n (a) for a purpose incidental to the execution of the warrant; or\n\n (b) with the written consent of the occupier of the premises;\n\ntake photographs, or make video recordings, of the premises or of anything at the premises.\n\n (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:\n\n (a) for not more than one hour; or\n\n (b) for a longer period if the occupier of the premises consents in writing.\n\nSeizing other evidence\n\n (2) If:\n\n (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:\n\n (i) an indictable offence against this Act; or\n\n (ii) an indictable offence against Part 20 of the Telecommunications Act 1997; or\n\n (iii) an indictable offence against Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or\n\n (iv) an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part; and\n\n (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;\n\nthen he or she may seize that other thing.","sortOrder":1984},{"sectionNumber":"154GA","sectionType":"section","heading":"Removing things for examination or processing","content":"154GA  Removing things for examination or processing\n\n (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:\n\n (a) both of the following subparagraphs apply:\n\n (i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;\n\n (ii) there are reasonable grounds to believe that the thing contains or constitutes evidential material; or\n\n (b) the occupier of the premises consents in writing.\n\nNotice to occupier\n\n (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:\n\n (a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and\n\n (b) allow the occupier or his or her representative to be present during the examination or processing.\n\nPeriod of removal\n\n (3) The thing may be moved to another place for examination or processing for no longer than 72 hours.\n\nExtensions\n\n (4) An executing officer may apply to a magistrate for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended.\n\n (5) The executing officer must give notice of the application to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.\n\n (6) The magistrate may order an extension for a period specified in the order if the magistrate is satisfied that the extension is necessary.","sortOrder":1985},{"sectionNumber":"154H","sectionType":"section","heading":"Operation of electronic equipment at premises","content":"154H  Operation of electronic equipment at premises\n\n (1) If:\n\n (a) a search warrant is in force in relation to premises; and\n\n (b) the executing officer or an officer assisting believes on reasonable grounds that any data accessed by operating electronic equipment at the premises (including data not held at the premises) might constitute evidential material of the kind specified in the warrant;\n\nhe or she may do only 1 of 3 things.\n\nSeizure\n\n (2) One thing he or she may do is seize the equipment and any disk, tape or other associated device.\n\nNote: Subsection (5) sets out limitations on seizure.\n\nRemoval of documents\n\n (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.\n\nNote: An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance—see section 154RA.\n\nRemoval of disk, tape or other storage device\n\n (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:\n\n (a) is brought to the premises; or\n\n (b) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;\n\nand remove the disk, tape or other storage device from the premises.\n\nNote: An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance—see section 154RA.\n\nLimitation on seizure\n\n (5) A person may seize a thing under subsection (2) only if:\n\n (a) it is not practicable to put the data in documentary form as mentioned in subsection (3) or to transfer the data as mentioned in subsection (4); or\n\n (b) possession of the thing by the occupier could constitute an offence against a law of the Commonwealth.","sortOrder":1986},{"sectionNumber":"154J","sectionType":"section","heading":"Securing electronic equipment for use by experts","content":"154J  Securing electronic equipment for use by experts\n\n (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:\n\n (a) the kind of evidential material specified in the warrant may be accessible by operating electronic equipment at the premises; and\n\n (b) expert assistance is required to operate the equipment; and\n\n (c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;\n\nhe or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.\n\nNotice to occupier\n\n (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.\n\nPeriod equipment may be secured\n\n (3) The equipment may be secured:\n\n (a) for a period not exceeding 24 hours; or\n\n (b) until the equipment has been operated by the expert;\n\nwhichever happens first.\n\nExtensions\n\n (4) If the executing officer or officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of that period.\n\n (5) The executing officer or officer assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.\n\n (6) The magistrate may order an extension for a period specified in the order if the magistrate is satisfied that the extension is necessary.","sortOrder":1987},{"sectionNumber":"154K","sectionType":"section","heading":"Authorisation of officers assisting","content":"154K  Authorisation of officers assisting\n\n  The executing officer for a search warrant may, by writing, authorise a member of the Australian Federal Police, a member of the staff assisting the Commission, or a consultant, to assist in executing the warrant.","sortOrder":1989},{"sectionNumber":"154L","sectionType":"section","heading":"Availability of assistance and use of force in executing a search warrant","content":"154L  Availability of assistance and use of force in executing a search warrant\n\n  In executing a search warrant:\n\n (a) the executing officer may obtain such assistance as is necessary and reasonable in the circumstances; and\n\n (b) the executing officer, or another inspector who is an officer assisting, may use such force against persons and things as is necessary and reasonable in the circumstances; and\n\n (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\n\n (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.","sortOrder":1990},{"sectionNumber":"154M","sectionType":"section","heading":"Announcement before entry","content":"154M  Announcement before entry\n\n (1) Before any person enters premises under a search warrant, the executing officer must:\n\n (a) announce that he or she is authorised to enter the premises; and\n\n (b) give any person at the premises an opportunity to allow entry to the premises.\n\n (2) However, the executing officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure that the effective execution of the warrant is not frustrated.","sortOrder":1992},{"sectionNumber":"154N","sectionType":"section","heading":"Details of warrant to be given to occupier","content":"154N  Details of warrant to be given to occupier\n\n  If a search warrant in relation to premises is being executed and the occupier of the premises is present at the premises, the executing officer or an officer assisting must make available to the occupier a copy of the warrant or a copy of the form of warrant.","sortOrder":1993},{"sectionNumber":"154P","sectionType":"section","heading":"Occupier entitled to observe search being conducted","content":"154P  Occupier entitled to observe search being conducted\n\n (1) If a search warrant in relation to premises is being executed and the occupier of the premises is present at the premises, the occupier is entitled to observe the search being conducted.\n\n (2) The occupier’s right to observe the search being conducted ends if the occupier impedes the search.\n\n (3) This section does not prevent 2 or more areas of the premises being searched at the same time.","sortOrder":1995},{"sectionNumber":"154Q","sectionType":"section","heading":"Occupier to provide reasonable facilities and assistance","content":"154Q  Occupier to provide reasonable facilities and assistance\n\n  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.\n\nPenalty: 30 penalty units.","sortOrder":1996},{"sectionNumber":"154R","sectionType":"section","heading":"Answering of questions or producing evidential material","content":"154R  Answering of questions or producing evidential material\n\n (1) If a search warrant in relation to premises is being executed, the executing officer or an officer assisting may:\n\n (a) require a person at the premises to answer questions or produce evidential material to which the warrant relates; and\n\n (b) seize that evidential material.\n\n (2) A person commits an offence if the person fails to comply with a requirement under subsection (1).\n\nPenalty: 30 penalty units or imprisonment for 12 months, or both.\n\nSelf‑incrimination is no excuse\n\n (3) An individual is not excused from answering a question or producing evidential material on the ground that the answer, or the production of the material, might tend to incriminate the individual or make the individual liable to a penalty.\n\n (4) However, the answer is not admissible in evidence against the individual in any criminal proceedings, other than:\n\n (a) proceedings for an offence against subsection (2); or\n\n (b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part.","sortOrder":1997},{"sectionNumber":"154RA","sectionType":"section","heading":"Person with computer knowledge to assist access etc.","content":"154RA  Person with computer knowledge to assist access etc.\n\n (1) The executing officer for a search warrant may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following:\n\n (a) access data held in, or accessible from, a computer that is on premises to which the warrant relates;\n\n (b) transfer the data to a disk, tape or other storage device;\n\n (c) convert the data into documentary form.\n\n (2) The magistrate may grant the order if the magistrate is satisfied that:\n\n (a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and\n\n (b) the specified person is:\n\n (i) reasonably suspected of having committed the contravention, or one or more of the contraventions, stated in the search warrant; or\n\n (ii) the owner or lessee of the computer; or\n\n (iii) an employee of the owner or lessee of the computer; and\n\n (c) the specified person has relevant knowledge of:\n\n (i) the computer or a computer network of which the computer forms a part; or\n\n (ii) measures applied to protect data held in, or accessible from, the computer.\n\n (3) A person commits an offence if:\n\n (a) the person is subject to an order under this section; and\n\n (b) the person engages in conduct; and\n\n (c) the person’s conduct breaches the order.\n\nPenalty for a contravention of this subsection: Imprisonment for 6 months.","sortOrder":1998},{"sectionNumber":"154S","sectionType":"section","heading":"Copies of seized things to be provided","content":"154S  Copies of seized things to be provided\n\n (1) If, under a search warrant relating to premises, the executing officer or an officer assisting seizes:\n\n (a) a document, film, computer file or other thing that can be readily copied; or\n\n (b) a storage device the information in which can be readily copied;\n\nthen 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.\n\n (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.","sortOrder":2000},{"sectionNumber":"154T","sectionType":"section","heading":"Receipts for things seized or moved under warrant","content":"154T  Receipts for things seized or moved under warrant\n\n (1) If a thing is seized under a search warrant or moved under subsection 154GA(1), the executing officer or an officer assisting must provide a receipt for the thing.\n\n (2) If 2 or more things are seized or moved, they may be covered in the one receipt.","sortOrder":2001},{"sectionNumber":"154U","sectionType":"section","heading":"Return of seized things","content":"154U  Return of seized things\n\n (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:\n\n (a) the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or\n\n (b) the period of 120 days after its seizure ends;\n\nwhichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.\n\n (2) At the end of the 120 days specified in subsection (1), the seizer must take reasonable steps to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it), unless:\n\n (a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 120 days and have not been completed (including an appeal to a court in relation to those proceedings); or\n\n (b) an inspector may retain the thing because of an order under section 154V; or\n\n (c) the seizer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the thing.","sortOrder":2002},{"sectionNumber":"154V","sectionType":"section","heading":"Magistrate may permit a thing to be retained","content":"154V  Magistrate may permit a thing to be retained\n\nApplication for extension\n\n (1) An inspector may apply to a magistrate for an order that he or she may retain the thing for a further period if:\n\n (a) before the end of 120 days after the seizure; or\n\n (b) before the end of a period previously specified in an order of a magistrate under this section;\n\nproceedings in respect of which the thing may afford evidence have not commenced.\n\nGrant of extension\n\n (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:\n\n (a) a contravention of this Act, a gas market instrument or the consumer data rules; or\n\n (b) a contravention of Part 20 of the Telecommunications Act 1997; or\n\n (c) a contravention of Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or\n\n (ca) a contravention of Part 5 of the Water Act 2007 or the Water Markets Intermediaries Code within the meaning of that Act; or\n\n (cb) a contravention of Part 5A of the Water Act 2007, other than Division 3 of that Part (water announcements); or\n\n (d) a contravention of section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part;\n\nthe magistrate may order that the inspector may retain the thing for a period (not exceeding 3 years) specified in the order.\n\nEffect on interested parties\n\n (3) Before making the application, the inspector must:\n\n (a) take reasonable steps to discover who has an interest in the retention of the thing; and\n\n (b) if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.","sortOrder":2003},{"sectionNumber":"154W","sectionType":"section","heading":"Disposal of things if there is no owner or owner cannot be located","content":"154W  Disposal of things if there is no owner or owner cannot be located\n\n  If:\n\n (a) a thing is seized under this Division; and\n\n (b) a person would otherwise be required to return the thing to its owner; and\n\n (c) there is no owner or the person cannot, despite making reasonable efforts, locate the owner;\n\nthe person may dispose of the thing in such manner as he or she thinks appropriate.","sortOrder":2004},{"sectionNumber":"154X","sectionType":"section","heading":"Issue of search warrants","content":"154X  Issue of search warrants\n\nApplication for warrant\n\n (1) An inspector may apply to a magistrate for a warrant under this section in relation to premises.\n\nIssue of warrant\n\n (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:\n\n (a) there is evidential material on the premises; or\n\n (b) there may be evidential material on the premises within the next 72 hours.\n\nNote: 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.\n\n (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.\n\nContent of warrant\n\n (4) The warrant must state:\n\n (a) a description of the premises to which the warrant relates; and\n\n (b) the kind of evidential material that is to be searched for under the warrant (including stating the contraventions to which the warrant relates); and\n\n (c) the name of the inspector who is to be responsible for executing the warrant; and\n\n (d) whether the warrant may be executed at any time of the day or night or during specified hours of the day or night; and\n\n (e) the day (not more than one week after the issue of the warrant) on which the warrant ceases to have effect.","sortOrder":2006},{"sectionNumber":"154Y","sectionType":"section","heading":"Search warrants by telephone, fax etc.","content":"154Y  Search warrants by telephone, fax etc.\n\nApplication for warrant\n\n (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.\n\nVoice communication\n\n (2) The magistrate may require communication by voice to the extent that it is practicable in the circumstances.\n\nInformation\n\n (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.\n\nIssue of warrant\n\n (4) If the magistrate is satisfied:\n\n (a) after having considered the terms of the information; and\n\n (b) after having received such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought;\n\nthat 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.\n\nNotification\n\n (5) If the magistrate completes and signs the warrant, the magistrate must inform the applicant, by telephone, fax or other electronic means, of:\n\n (a) the terms of the warrant; and\n\n (b) the day on which and the time at which the warrant was signed; and\n\n (c) the day (not more than one week after the magistrate completes and signs the warrant) on which the warrant ceases to have effect.\n\nForm of warrant\n\n (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.\n\nCompleted form of warrant to be given to magistrate\n\n (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:\n\n (a) the form of warrant completed by the applicant; and\n\n (b) the information referred to in subsection (3), which must have been duly sworn or affirmed.\n\nAttachment\n\n (8) The magistrate is to attach to the documents provided under subsection (7) the warrant completed by the magistrate.\n\nAuthority of warrant\n\n (9) A form of warrant duly completed under subsection (6) is authority for the same powers as are authorised by the warrant signed by the magistrate.\n\n (10) If:\n\n (a) it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and\n\n (b) the warrant signed by the magistrate authorising the exercise of the power is not produced in evidence;\n\nthe court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.","sortOrder":2007},{"sectionNumber":"154Z","sectionType":"section","heading":"Offences relating to warrants","content":"154Z  Offences relating to warrants\n\n (1) An inspector must not make, in an application for a warrant, a statement that the inspector knows to be false or misleading in a material particular.\n\nPenalty: Imprisonment for 2 years.\n\n (2) An inspector must not:\n\n (a) state in a document that purports to be a form of warrant under section 154Y the name of a magistrate unless that magistrate issued the warrant; or\n\n (b) state on a form of warrant under that section a matter that, to the inspector’s knowledge, departs in a material particular from the form authorised by the magistrate; or\n\n (c) purport to execute, or present to another person, a document that purports to be a form of warrant under that section that the inspector knows:\n\n (i) has not been approved by a magistrate under that section; or\n\n (ii) departs in a material particular from the terms authorised by a magistrate under that section; or\n\n (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.\n\nPenalty: Imprisonment for 2 years.","sortOrder":2008},{"sectionNumber":"154ZA","sectionType":"section","heading":"Powers conferred on magistrates","content":"154ZA  Powers conferred on magistrates\n\n (1) A power conferred on a magistrate by this Division is conferred on the magistrate in a personal capacity and not as a court or a member of a court. The magistrate need not accept the power conferred.\n\n (2) A magistrate exercising such a power has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.","sortOrder":2010},{"sectionNumber":"154ZB","sectionType":"section","heading":"Operation of electronic equipment at premises","content":"154ZB  Operation of electronic equipment at premises\n\n  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.","sortOrder":2012},{"sectionNumber":"154ZC","sectionType":"section","heading":"Compensation for damage to electronic equipment","content":"154ZC  Compensation for damage to electronic equipment\n\n (1) This section applies if:\n\n (a) as a result of electronic equipment being operated as mentioned in section 154E, 154F, 154G, 154H or 154J:\n\n (i) damage is caused to the equipment; or\n\n (ii) the data recorded on the equipment is damaged; or\n\n (iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and\n\n (b) the damage or corruption occurs because:\n\n (i) insufficient care was exercised in selecting the person who was to operate the equipment; or\n\n (ii) insufficient care was exercised by the person operating the equipment.\n\n (2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.\n\n (3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.\n\n (4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.\n\n (5) Compensation is payable out of money appropriated by the Parliament.\n\n (6) For the purposes of subsection (1):\n\ndamage, in relation to data, includes damage by erasure of data or addition of other data.","sortOrder":2013},{"sectionNumber":"Part XIE","sectionType":"part","heading":"Designated complaints","content":"Part XIE—Designated complaints","sortOrder":2014},{"sectionNumber":"154ZD","sectionType":"section","heading":"Simplified outline of this Part","content":"154ZD  Simplified outline of this Part\n\nThis Part sets out a scheme under which designated complainants may make designated complaints to the Commission.\n\nThe Commission must respond to a designated complaint within 90 days. If the complaint meets certain criteria, the Commission must give the designated complainant a notice that sets out the actions the Commission proposes to take in response to the complaint.\n\nA designated complainant is an entity that the Minister is satisfied (among other things) represents the interests of consumers or small businesses in Australia in relation to a range of market issues that affect them.\n\nA complaint is treated as a designated complaint if the Commission is satisfied (among other things) that it:\n\n (a) relates to a significant or systemic market issue that affects consumers or small businesses in Australia; and\n\n (b) relates to a potential breach of this Act or to one or more of the Commission’s powers or functions under this Act.","sortOrder":2016},{"sectionNumber":"154ZE","sectionType":"section","heading":"Definitions","content":"154ZE  Definitions\n\n  In this Part:\n\napproval means an approval as a designated complainant granted under subsection 154ZQ(1).\n\ndesignated complainant means an entity that has an approval that is in force.\n\ndesignated complaints determination means the determination made by the Minister under section 154ZZ.\n\nentity means any of the following:\n\n (a) a corporation;\n\n (b) an individual;\n\n (c) a body corporate;\n\n (d) a corporation sole;\n\n (e) a body politic;\n\n (f) a partnership;\n\n (g) any other unincorporated association or body of entities;\n\n (h) a trust.","sortOrder":2017},{"sectionNumber":"154ZF","sectionType":"section","heading":"Designated complaints","content":"154ZF  Designated complaints\n\n (1) A designated complainant may make a complaint under this section to the Commission.\n\n (2) The complaint must:\n\n (a) be in writing; and\n\n (b) if the Commission has approved a manner for making the complaint—be made in that manner; and\n\n (c) if the Commission has approved a form for making the complaint:\n\n (i) be made in the approved form; and\n\n (ii) include the information required by the form; and\n\n (iii) be accompanied by any documents required by the form; and\n\n (d) meet the requirements (if any) prescribed in the designated complaints determination relating to the number and types of designated complaints that a designated complainant may make during a specified period.\n\n (3) The complaint is a designated complaint starting from the day it meets the requirements mentioned in subsection (2).","sortOrder":2019},{"sectionNumber":"154ZG","sectionType":"section","heading":"Commission to respond by giving notice","content":"154ZG  Commission to respond by giving notice\n\n (1) If the Commission receives a designated complaint from a designated complainant, the Commission must, within 90 days, assess the complaint and give the complainant one of the following:\n\n (a) a notice under subsection 154ZH(1) (no further action on complaint);\n\n (b) a notice under subsection 154ZK(1) (further action to deal with complaint).\n\n (2) If, before the Commission gives a notice mentioned in subsection (1) to the complainant, it ceases to be a designated complainant, for the purposes of subsection (1), the complaint is taken never to have been made.","sortOrder":2020},{"sectionNumber":"154ZH","sectionType":"section","heading":"Notice—no further action on complaint","content":"154ZH  Notice—no further action on complaint\n\n (1) The Commission:\n\n (a) must give the designated complainant a notice under this subsection if subsection (2) applies in relation to the complaint; and\n\n (b) may give the designated complainant a notice under this subsection if subsection (3), (4) or (5) applies in relation to the complaint.\n\nComplaint does not meet mandatory content requirements\n\n (2) This subsection applies if the Commission is not satisfied that the complaint:\n\n (a) relates to a significant or systemic market issue that affects consumers or small businesses in Australia (or both); and\n\n (b) either:\n\n (i) relates to a potential breach of this Act; or\n\n (ii) relates to one or more of the Commission’s powers or functions under this Act.\n\nComplaint does not meet other content requirements\n\n (3) This subsection applies if the Commission is not satisfied that the complaint meets any requirements prescribed in the designated complaints determination.\n\nSubject matter of complaint is subject of other inquiry or action\n\n (4) This subsection applies if the Commission is satisfied that the subject matter of the complaint is, or is part of, a matter:\n\n (a) into which any of the following is inquiring or has within the past 2 years inquired:\n\n (i) a committee of the Parliament or of either House of the Parliament;\n\n (ii) a Royal Commission;\n\n (iii) a coronial inquiry, coronial investigation or coronial inquest; or\n\n (b) which is the subject of:\n\n (i) legal proceedings; or\n\n (ii) an inquiry, investigation or review conducted by the Commonwealth, a State or Territory, an industry organisation, a consumer organisation or another person;\n\n  that is, or is of a kind, prescribed in the designated complaints determination.\n\nAppropriate to take no further action on complaint\n\n (5) This subsection applies if:\n\n (a) the Commission has assessed the complaint; and\n\n (b) the Commission is satisfied that it is appropriate to take no further action in relation to the complaint.\n\n (6) For the purposes of paragraph (5)(b), in considering whether the Commission is satisfied that it is appropriate, the Commission:\n\n (a) must have regard to any matter prescribed for the purposes of this paragraph in the designated complaints determination; and\n\n (b) may have regard to any matter prescribed for the purposes of this paragraph in the designated complaints determination.","sortOrder":2021},{"sectionNumber":"154ZJ","sectionType":"section","heading":"Notice—no further action on complaint—contents","content":"154ZJ  Notice—no further action on complaint—contents\n\n  A notice given under subsection 154ZH(1) must set out the following:\n\n (a) a summary of the complaint;\n\n (b) which of subsections 154ZH(2), (3), (4) and (5) apply in relation to the complaint;\n\n (c) the reasons for the Commission’s decision.","sortOrder":2022},{"sectionNumber":"154ZK","sectionType":"section","heading":"Notice—further action to deal with complaint","content":"154ZK  Notice—further action to deal with complaint\n\n (1) The Commission may give the designated complainant a notice under this subsection if the Commission is satisfied that the complaint:\n\n (a) relates to a significant or systemic market issue that affects consumers or small businesses in Australia (or both); and\n\n (b) either:\n\n (i) relates to a potential breach of this Act; or\n\n (ii) relates to one or more of the Commission’s powers or functions under this Act.\n\n (2) The notice must set out:\n\n (a) a summary of the complaint; and\n\n (b) the actions the Commission proposes to take in response to the complaint.\n\n (3) The Commission must:\n\n (a) use its best endeavours to commence the actions set out in the notice as soon as practicable after giving the notice; and\n\n (b) in any case, commence the actions set out in the notice within the period of 6 months after giving the notice; and\n\n (c) when the actions set out in the notice have been completed, use its best endeavours to notify this to the entity that made the complaint (even if the entity has ceased to be a designated complainant).\n\nCircumstances in which Commission not required to take further action\n\n (4) However, subsection (3) does not apply if the Commission is satisfied that circumstances prescribed in the designated complaints determination apply.\n\n (5) If subsection (4) applies, the Commission must use its best endeavours to notify this to the entity that made the complaint (even if the entity has ceased to be a designated complainant).","sortOrder":2023},{"sectionNumber":"154ZL","sectionType":"section","heading":"Replacement notices","content":"154ZL  Replacement notices\n\n (1) If the Commission has given the designated complainant a notice under subsection 154ZK(1), the Commission may replace that notice with either of the following:\n\n (a) if the Commission considers it appropriate—a replacement notice under subsection 154ZK(1);\n\n (b) if subsection 154ZH(4) (other inquiry or action) or (5) (appropriate to take no further action) applies—a notice under subsection 154ZH(1).\n\n (2) If paragraph (1)(a) applies:\n\n (a) the Commission must give the designated complainant the replacement notice; and\n\n (b) the replacement notice must set out the matters specified in subsection 154ZK(2); and\n\n (c) the replacement notice is taken to be the notice given to the designated complainant under subsection 154ZK(1) from the day the replacement notice is given; and\n\n (d) treat paragraphs 154ZK(3)(a) and (b) as requiring the Commission to commence the actions set out in the replacement notice as soon as practicable after it is given.\n\n (3) If paragraph (1)(b) applies:\n\n (a) the Commission must give the designated complainant the notice mentioned in that paragraph; and\n\n (b) subsection 154ZK(3) ceases to apply in relation to the complaint.","sortOrder":2024},{"sectionNumber":"154ZM","sectionType":"section","heading":"Withdrawal of complaint","content":"154ZM  Withdrawal of complaint\n\n (1) If:\n\n (a) an entity has made a designated complaint to the Commission; and\n\n (b) the Commission has not, in relation to the complaint, given the entity either of the following:\n\n (i) a notice under subsection 154ZH(1) (no further action);\n\n (ii) a notification under paragraph 154ZK(3)(c) (further action completed);\n\nthe entity may, in writing, withdraw the complaint (even if the entity has ceased to be a designated complainant).\n\n (2) The Commission must notify the entity in writing that the complaint has been withdrawn.\n\n (3) From the time the notification in subsection (2) is given:\n\n (a) if the Commission has not yet given the entity a notice under subsection 154ZH(1) or 154ZK(1) in relation to the withdrawn complaint—sections 154ZG and 154ZH cease to apply in relation to the withdrawn complaint; and\n\n (b) if the Commission has given the entity a notice under subsection 154ZK(1) in relation to the withdrawn complaint—subsection 154ZK(3) ceases to apply in relation to the withdrawn complaint.\n\n (4) The withdrawn complaint continues to be a designated complaint for the purposes of this Act (including subsection 154ZF(3) and paragraph 171(3)(dd)).","sortOrder":2025},{"sectionNumber":"154ZN","sectionType":"section","heading":"Publication requirements","content":"154ZN  Publication requirements\n\n (1) If the Commission gives:\n\n (a) a notice under subsection 154ZH(1) (no further action on complaint); or\n\n (b) a notice under subsection 154ZK(1) (further action to deal with complaint); or\n\n (c) a notification under paragraph 154ZK(3)(c) (actions have been completed); or\n\n (d) a notification under subsection 154ZK(5) (Commission not required to take further action); or\n\n (e) a notice under paragraph 154ZL(2)(a) (replacement notice with further action to deal with complaint); or\n\n (f) a notice under paragraph 154ZL(3)(a) (replacement notice where other inquiry or action, or appropriate to take no further action); or\n\n (g) if the Commission has given a notice under subsection 154ZK(1) in relation to a designated complaint—a notification under subsection 154ZM(2) that the complaint has been withdrawn;\n\nthe Commission must, as soon as practicable, publish the notice, notification or replacement notice on its website.\n\n (2) However, subsection (1) does not require the Commission to publish information if:\n\n (a) the Commission is satisfied that it is appropriate not to publish the information because of its confidential nature; or\n\n (b) the Commission is satisfied that a circumstance prescribed in the designated complaints determination applies to the publication of the information.","sortOrder":2026},{"sectionNumber":"154ZP","sectionType":"section","heading":"Application for approval as designated complainant","content":"154ZP  Application for approval as designated complainant\n\n (1) An entity may apply to the Minister for approval as a designated complainant.\n\n (2) However, a State or Territory may not apply under subsection (1).\n\n (3) The application must:\n\n (a) be in writing; and\n\n (b) if the Minister has approved a manner for making the application—be made in that manner; and\n\n (c) be made during a period prescribed under subsection (4); and\n\n (d) if the Minister has approved a form:\n\n (i) be made in the approved form; and\n\n (ii) include the information required by the form; and\n\n (iii) be accompanied by any documents required by the form.\n\n (4) For the purposes of paragraph (3)(c), the designated complaints determination may:\n\n (a) prescribe a period, which may be a single period or a recurring period; and\n\n (b) provide for the start or end date of the period or each period (as the case may be) to be as is or will be set out on the Department’s website.\n\nWithdrawal of application\n\n (5) The applicant may, in writing, withdraw the application before the Minister makes a decision.\n\n (6) If the application is withdrawn, it is taken never to have been made.","sortOrder":2028},{"sectionNumber":"154ZQ","sectionType":"section","heading":"Minister may grant approval","content":"154ZQ  Minister may grant approval\n\n (1) The Minister may, in writing, grant the approval if:\n\n (a) where the approval is to be subject to conditions:\n\n (i) the Minister has given the entity a notice under subsection 154ZR(3) setting out those conditions; and\n\n (ii) 14 business days have passed since that notice was given; and\n\n (b) the Minister is satisfied that it is appropriate to grant the approval.\n\nConsiderations\n\n (2) For the purposes of being satisfied that it is appropriate to grant the approval, the Minister must have regard to the following matters:\n\n (a) the experience and ability of the applicant in representing the interests of consumers or small businesses (or both) in Australia in relation to a range of market issues that affect them;\n\n (b) the extent to which the Minister is satisfied that the applicant will, if approved as a designated complainant, act with integrity in connection with being a designated complainant;\n\n (c) any other matter prescribed under paragraph (4)(a).\n\n (3) The Minister may also have regard to the following matters:\n\n (a) any matter prescribed under paragraph (4)(b);\n\n (b) any other matter the Minister considers relevant.\n\n (4) For the purposes of paragraphs (2)(c) and (3)(a), the designated complaints determination may prescribe matters to which the Minister:\n\n (a) must have regard; or\n\n (b) may have regard.\n\nMaximum number of designated complainants\n\n (5) However, the Minister must not grant the approval if doing so would result in the number of designated complainants being above the limit prescribed in the designated complaints determination.","sortOrder":2029},{"sectionNumber":"154ZR","sectionType":"section","heading":"Conditions in approval","content":"154ZR  Conditions in approval\n\n (1) The approval may specify that it is subject to conditions if the Minister is satisfied that the conditions are appropriate.\n\nConsiderations\n\n (2) For the purposes of being satisfied that the conditions are appropriate, the Minister:\n\n (a) must have regard to the matters mentioned in subsection 154ZQ(2); and\n\n (b) may have regard to the matters mentioned in subsection 154ZQ(3).\n\nConditions notices\n\n (3) If the Minister is considering:\n\n (a) granting the approval; and\n\n (b) specifying that it is subject to conditions;\n\nthe Minister may give the applicant a notice in writing setting out those conditions.\n\n (4) If the Minister gives the applicant a notice under subsection (3), the Minister must give the Commission a copy of the notice as soon as practicable.","sortOrder":2030},{"sectionNumber":"154ZS","sectionType":"section","heading":"Contents of approval","content":"154ZS  Contents of approval\n\n  The approval must set out the following:\n\n (a) the name of the designated complainant;\n\n (b) the date (if any) on which the approval ceases to be in force;\n\n (c) the conditions (if any) to which the approval is subject.","sortOrder":2031},{"sectionNumber":"154ZT","sectionType":"section","heading":"Notice of decision on application for approval","content":"154ZT  Notice of decision on application for approval\n\n (1) If the Minister:\n\n (a) decides to grant the approval; or\n\n (b) decides not to grant the approval;\n\nthe Minister must give the applicant, as soon as practicable:\n\n (c) notice of the decision; and\n\n (d) if the decision is to grant the approval—a copy of the approval.\n\n (2) If the Minister decides to grant the approval, as soon as practicable after granting the approval, the Minister:\n\n (a) must give a copy of the notice of the decision to the Commission; and\n\n (b) must publish the name of the entity on the Department’s website; and\n\n (c) may publish all or parts of the conditions (if any) to which the approval is subject on the Department’s website.","sortOrder":2032},{"sectionNumber":"154ZU","sectionType":"section","heading":"Variation or revocation of approval","content":"154ZU  Variation or revocation of approval\n\n (1) A designated complainant may apply to the Minister for a variation or revocation of its approval.\n\n (2) The application must be:\n\n (a) in writing; and\n\n (b) in the approved form.\n\nWithdrawal of application\n\n (3) The designated complainant may, in writing, withdraw the application if the Minister has not decided it.\n\n (4) If the designated complainant withdraws the application, it is taken never to have been made.","sortOrder":2033},{"sectionNumber":"154ZV","sectionType":"section","heading":"Minister may vary or revoke approval","content":"154ZV  Minister may vary or revoke approval\n\n (1) The Minister may, in writing, vary or revoke the approval if:\n\n (a) the Minister has given the designated complainant a notice under subsection (5) in relation to the variation or revocation; and\n\n (b) 14 business days have passed since that notice was given; and\n\n (c) the Minister is satisfied that it is appropriate to make the variation or revocation.\n\n (2) Paragraphs (1)(a) and (b) do not apply if:\n\n (a) the variation or revocation is in accordance with an application under subsection 154ZU(1); or\n\n (b) in the case of a variation—the Minister is satisfied that the variation is of a minor or technical nature.\n\nConsiderations\n\n (3) For the purposes of being satisfied that it is appropriate to make the variation or revocation, the Minister may have regard to the following matters:\n\n (a) any matter mentioned in subsection 154ZQ(2) or (3);\n\n (b) whether the designated complainant has contravened, or is contravening, a condition to which the approval is subject;\n\n (c) any matter prescribed in the designated complaints determination;\n\n (d) any other matter the Minister considers relevant.\n\nNotice of proposed variation or revocation\n\n (4) The Minister may give a designated complainant a notice in writing stating that the Minister is proposing to vary or revoke the designated complainant’s approval.\n\n (5) The notice must set out the following:\n\n (a) the proposed variation or revocation;\n\n (b) the reasons for the proposed variation or revocation;\n\n (c) the day on which the proposed variation or revocation is to take effect (which must be at least 14 business days after the notice is given).","sortOrder":2034},{"sectionNumber":"154ZW","sectionType":"section","heading":"Contents of variation or revocation of approval","content":"154ZW  Contents of variation or revocation of approval\n\n  A variation or revocation made under section 154ZV must specify the details of the variation or revocation, including:\n\n (a) the day on which the decision to make the variation or revocation was made; and\n\n (b) the day on which the variation or revocation takes effect; and\n\n (c) in the case of a variation that changes or removes the date on which the approval ceases to be in force—that change or removal; and\n\n (d) in the case of a variation that changes or removes conditions to which the approval is subject—that change or removal.","sortOrder":2035},{"sectionNumber":"154ZX","sectionType":"section","heading":"Notice of decision on application for variation or revocation of approval","content":"154ZX  Notice of decision on application for variation or revocation of approval\n\n (1) If the Minister:\n\n (a) decides to vary or revoke a designated complainant’s approval; or\n\n (b) in a case where a designated complainant has applied for a variation or revocation of its approval—decides not to vary or revoke the approval;\n\nthe Minister must give the designated complainant, as soon as practicable:\n\n (c) notice of the decision; and\n\n (d) if the decision is to vary or revoke the approval—a copy of the variation or revocation.\n\n (2) As soon as practicable after varying or revoking the approval, the Minister:\n\n (a) must give a copy of the notice of the decision to the Commission; and\n\n (b) in the case of a revocation—must publish that fact on the Department’s website; and\n\n (c) in the case of a variation that changes or removes conditions to which the approval is subject—may publish details of that change or removal on the Department’s website.","sortOrder":2036},{"sectionNumber":"154ZY","sectionType":"section","heading":"Delegation","content":"154ZY  Delegation\n\n (1) The Minister may, in writing, delegate all or any of the Minister’s powers or functions under this Part (other than under section 154ZZ) to the Secretary, or a SES employee or acting SES employee in the Department.\n\n (2) In exercising a power under a delegation under this section, the delegate must comply with any written directions of the Minister.","sortOrder":2038},{"sectionNumber":"154ZZ","sectionType":"section","heading":"Designated complaints determination","content":"154ZZ  Designated complaints determination\n\n  The Minister may, by legislative instrument, make a determination (the designated complaints determination) prescribing matters required or permitted by this Part to be prescribed by the designated complaints determination.","sortOrder":2039},{"sectionNumber":"Part XII","sectionType":"part","heading":"Miscellaneous","content":"Part XII—Miscellaneous","sortOrder":2040},{"sectionNumber":"155","sectionType":"section","heading":"Power to obtain information, documents and evidence","content":"155  Power to obtain information, documents and evidence\n\n (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 referred to in subsection (2), a member of the Commission may, by notice in writing served on that person (whether in Australia or outside Australia), require that person:\n\n (a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;\n\n (b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or\n\n (c) to appear before the Commission, or before a member of the staff assisting the Commission who is an SES employee or an acting SES employee and who is specified in the notice, at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.\n\n (2) For the purposes of subsection (1), the matter must be a matter that:\n\n (a) constitutes, or may constitute, a contravention of:\n\n (i) this Act; or\n\n (ii) Division 4B of Part 3.3 of the Radiocommunications Act 1992; or\n\n (iii) any of the terms of an undertaking under section 87B of this Act or under section 218 of the Australian Consumer Law; or\n\n (iiia) a gas market instrument; or\n\n (iv) the consumer data rules; or\n\n (v) an SPF code; or\n\n (vi) the Cash Distribution Framework Act 2026 (other than Part 6 or 7, or Division 3 or 4 of Part 8, of that Act); or\n\n (b) is relevant to:\n\n (i) a designated communications matter (as defined by subsection (9) of this section); or\n\n (iaa) a gas market instrument matter (as defined by subsection (9AAA) of this section); or\n\n (iab) a designated cash distribution framework matter (as defined by subsection (9AAB) of this section); or\n\n (ia) a designated consumer data right matter (as defined by subsection (9AA) of this section); or\n\n (ib) a designated digital platform matter (as defined by subsection (9AB) of this section); or\n\n (ic) a designated scams prevention framework matter (as defined by subsection (9AC) of this section); or\n\n (ii) a designated water matter (as defined by subsection (9A) of this section); or\n\n (iia) the making of an acquisition determination by the Commission; or\n\n (iii) the making of a decision by the Commission under subsection 90(1) in relation to an application for a merger authorisation; or\n\n (iv) the making of a decision by the Commission under subsection 91B(4), 91C(4), 93(3), (3A) or (3B) or 93AC(1), (2) or (2A); or\n\n (v) the Commission investigating or inquiring into the terms of a consumer contract or small business contract for the purposes of determining whether or not to make an application to the court under section 250 of the Australian Consumer Law; or\n\n (vi) a contracting order (within the meaning of Part XICA); or\n\n (vii) a divestiture order (within the meaning of Part XICA).\n\n (2AA) A member of the Commission may vary the time specified in a notice under subsection (1) within which the information must be furnished, or the documents produced, or at which the person is required to appear before the Commission or the member of the staff assisting the Commission who is specified in the notice.\n\n (2AB) Subsection (2AA) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a notice under subsection (1).\n\n (2A) A member of the Commission may not give a notice under subsection (1) merely because:\n\n (a) a person has refused or failed to comply with a notice under subsection 95ZK(1) or (2) on the ground that complying with the notice would tend to incriminate the person, or to expose the person to a penalty; or\n\n (b) a person has refused or failed to answer a question that the person was required to answer by the person presiding at an inquiry under Part VIIA, on the ground that the answer would tend to incriminate the person, or to expose the person to a penalty; or\n\n (c) a person has refused or failed to produce a document referred to in a summons under subsection 95S(3), on the ground that production of the document would tend to incriminate the person, or to expose the person to a penalty.\n\n (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.\n\n (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.\n\n (4) A member of the Commission may exercise, or continue to exercise, a power under subsection (1) in relation to a matter referred to in that subsection until:\n\n (a) the Commission commences proceedings in relation to the matter (other than proceedings for an injunction, whether interim or final); or\n\n (b) the close of pleadings in relation to an application by the Commission for a final injunction in relation to the matter.\n\n (5) A person shall not:\n\n (a) refuse or fail to comply with a notice under this section;\n\n (b) in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading.\n\nNote: Under section 76, the Court may order a person who contravenes paragraph (b) of this subsection to pay a pecuniary penalty.\n\n (5A) Paragraph (5)(a) does not apply to the extent that the person is not capable of complying with the notice.\n\nNote: A defendant bears an evidential burden in relation to the matters in subsection (5A), see subsection 13.3(3) of the Criminal Code.\n\n (5B) Paragraph (5)(a) does not apply to the extent that:\n\n (a) the notice relates to producing documents; and\n\n (b) the person proves that, after a reasonable search, the person is not aware of the documents; and\n\n (c) the person provides a written response to the notice, including a description of the scope and limitations of the search.\n\nNote: A defendant bears a legal burden in relation to the matter in paragraph (5B)(b) (see section 13.4 of the Criminal Code).\n\n (6) For the purposes of (but without limiting) paragraph (5B)(b), a determination of whether a search is reasonable may take into account the following:\n\n (a) the nature and complexity of the matter to which the notice relates;\n\n (b) the number of documents involved;\n\n (c) the ease and cost of retrieving a document relative to the resources of the person who was given the notice;\n\n (d) any other relevant matter.\n\n (6A) A person who contravenes subsection (5) is guilty of an offence punishable on conviction by imprisonment for 2 years or a fine not exceeding 100 penalty units.\n\nNote 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\nNote 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.\n\n (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:\n\n (a) proceedings for an offence against this section; or\n\n (b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this section.\n\n (7A) This section does not require a person:\n\n (a) to give information or evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or\n\n (b) to produce a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or\n\n (c) to give information or evidence, or to produce a document, that would disclose the deliberations of the Cabinet of a State or Territory.\n\nNote: A defendant bears an evidential burden in relation to the matters in subsection (7A), see subsection 13.3(3) of the Criminal Code.\n\n (7B) This section does not require a person to produce a document that would disclose information that is the subject of legal professional privilege.\n\nNote: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).\n\n (8) Nothing in this section implies that notices may not be served under this section and section 155A in relation to the same conduct.\n\n (8A) If a person refuses or fails to comply with a notice under this section, a court may, on application by the Commission, make an order directing the person to comply with the notice.\n\n (9) A reference in this section to a designated communications matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under:\n\n (a) the Telecommunications Act 1997; or\n\n (b) the Telecommunications (Consumer Protection and Service Standards) Act 1999; or\n\n (ba) the National Broadband Network Companies Act 2011; or\n\n (c) Part XIB or XIC of this Act; or\n\n (d) Division 4B of Part 3.3 of the Radiocommunications Act 1992.\n\n (9AAA) A reference in this section to a gas market instrument matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under:\n\n (a) Part IVBB; or\n\n (b) regulations made under this Act for the purposes of that Part (including a gas market code); or\n\n (c) a gas market emergency price order.\n\n (9AAB) A reference in this section to a designated cash distribution framework matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under the cash distribution framework.\n\n (9AA) A reference in this section to a designated consumer data right matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under:\n\n (a) Part IVD (other than Division 5); or\n\n (b) regulations made under this Act for the purposes of that Part; or\n\n (c) the consumer data rules.\n\n (9AB) A reference in this section to a designated digital platform matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under:\n\n (a) Part IVBA; or\n\n (b) regulations made under this Act for the purposes of that Part.\n\n (9AC) A reference in this section to a designated scams prevention framework matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission (as an SPF regulator) by or under:\n\n (a) Part IVF; or\n\n (b) a legislative instrument (such as an SPF code) made under that Part; or\n\n (c) the Regulatory Powers Act to the extent that it applies in relation to a provision of that Part.\n\n (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:\n\n (a) Part 4 or 4A of the Water Act 2007; or\n\n (b) regulations made under that Act for the purposes of Part 4 of that Act; or\n\n (c) water charge rules, or water market rules, made under Part 4 of that Act.\n\n (10) In this section:\n\nlegal professional privilege includes privilege under Division 1 of Part 3.10 of the Evidence Act 1995.","sortOrder":2041},{"sectionNumber":"155AAAA","sectionType":"section","heading":"Power to obtain information, documents and evidence—delegation","content":"155AAAA  Power to obtain information, documents and evidence—delegation\n\n (1) This section applies in relation to a function or power of any of the following (the delegator) under section 155:\n\n (a) the Commission;\n\n (b) the Chairperson;\n\n (c) a Deputy Chairperson;\n\n (d) a member of the Commission.\n\n (2) The delegator may, in writing, delegate any or all of the delegator’s functions or powers under section 155 to a member of the staff of the Commission who is an SES employee or an acting SES employee.\n\n (3) The delegator may delegate a function or power to a person under subsection (2) only if the delegator is satisfied that the person has appropriate qualifications, training or experience to perform the function or exercise the power.\n\n (4) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the delegator.","sortOrder":2042},{"sectionNumber":"155AAA","sectionType":"section","heading":"Protection of certain information","content":"155AAA  Protection of certain information\n\n (1) A Commission official must not disclose any protected information to any person except:\n\n (a) when the Commission official is performing duties or functions as a Commission official; or\n\n (b) when the Commission official or the Commission is required or permitted by:\n\n (i) this Act or any other law of the Commonwealth; or\n\n (ii) a prescribed law of a State or internal Territory;\n\n  to disclose the information.\n\n (2) Subsection (1) does not allow a Commission official to disclose protected information when performing a function of the Commission described in section 28.\n\nDisclosure to Ministers\n\n (3) A Commission official may disclose protected information to the designated Minister.\n\n (4) If protected information relates to a matter arising under:\n\n (a) a provision of this Act; or\n\n (b) a provision of another Act;\n\nthat is administered by a Minister other than the designated Minister, a Commission official may disclose the protected information to the other Minister.\n\n (5) Subsection (4) does not limit subsection (3).\n\nDisclosure to Secretaries etc.\n\n (6) A Commission official may disclose protected information to:\n\n (a) the Secretary of the designated Department; or\n\n (b) an officer of the designated Department who is authorised by the Secretary of that Department, in writing, for the purposes of this subsection;\n\nfor the purpose of advising the designated Minister.\n\n (7) If protected information relates to a matter arising under:\n\n (a) a provision of this Act; or\n\n (b) a provision of another Act;\n\nthat is administered by a Minister other than the designated Minister, a Commission official may disclose the protected information to:\n\n (c) the Secretary of the Department that is administered by the other Minister; or\n\n (d) an officer of that Department who is authorised by the Secretary of that Department, in writing, for the purposes of this subsection;\n\nfor the purpose of advising the other Minister.\n\n (8) Subsection (7) does not limit subsection (6).\n\nDisclosure to a Royal Commission\n\n (9) A Commission official may disclose protected information to a Royal Commission.\n\n (10) The Chairperson may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (9).\n\n (11) An instrument under subsection (10) is not a legislative instrument.\n\nDisclosure to certain agencies, bodies and persons\n\n (12) If the Chairperson is satisfied that particular protected information will enable or assist any of the following agencies, bodies or persons:\n\n (a) the Australian Bureau of Statistics;\n\n (b) the ACMA;\n\n (c) the Australian Prudential Regulation Authority;\n\n (d) ASIC;\n\n (e) the National Competition Council;\n\n (f) the Productivity Commission;\n\n (g) any other agency within the meaning of the Freedom of Information Act 1982;\n\n (h) the Australian Statistician;\n\n (i) the Commissioner of Taxation;\n\n (j) the Australian Competition Tribunal;\n\n (k) the Director of Public Prosecutions;\n\n (l) the Reserve Bank of Australia;\n\n (la) the Clean Energy Regulator;\n\n (lb) the Climate Change Authority;\n\n (lc) the Australian Energy Regulator;\n\n (m) a State/Territory government body;\n\n (n) a foreign government body;\n\nto perform or exercise any of the functions or powers of the agency, body or person, an authorised Commission official may disclose that protected information to the agency, body or person concerned.\n\n (13) The Chairperson may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (12).\n\n (14) An instrument under subsection (13) is not a legislative instrument.\n\nDisclosure with consent\n\n (15) A Commission official may disclose protected information that relates to the affairs of a person if:\n\n (a) the person has consented to the disclosure; and\n\n (b) the disclosure is in accordance with that consent.\n\nDisclosure of publicly available information\n\n (16) A Commission official may disclose protected information if it is already publicly available.\n\nDisclosure of summaries or statistics\n\n (17) A Commission official may disclose:\n\n (a) summaries of protected information; or\n\n (b) statistics derived from protected information;\n\nif those summaries or statistics, as the case may be, are not likely to enable the identification of a person.\n\nDisclosure authorised by regulations\n\n (18) The regulations may:\n\n (a) authorise a Commission official to disclose protected information in specified circumstances; and\n\n (b) provide that the Chairperson may, by writing, impose conditions to be complied with in relation to the disclosure of protected information in those circumstances.\n\n (19) An instrument under regulations made for the purposes of paragraph (18)(b) is not a legislative instrument.\n\nDelegation\n\n (20) The Chairperson may, by writing, delegate any or all of his or her functions and powers under:\n\n (a) this section; or\n\n (b) regulations made for the purposes of subsection (18);\n\nto a member of the Commission.\n\nDefinitions\n\n (21) In this section:\n\nauthorised Commission official means a Commission official authorised by the Chairperson, in writing, for the purposes of this section.\n\nCommission official means:\n\n (a) a member, or associate member, of the Commission; or\n\n (b) a person referred to in subsection 27(1); or\n\n (c) a person engaged under section 27A.\n\ncore statutory provision means:\n\n (a) a provision of Part IV, IVA, IVBA, IVBB, IVD (other than Division 5), IVE, V, VII, VIII, XI, XIB, XIC or XICA, of a gas market instrument or of the consumer data rules; or\n\n (b) the remaining provisions of this Act so far as they relate to a provision covered by paragraph (a); or\n\n (c) a provision of the regulations made under section 172 so far as it relates to a provision covered by paragraph (a) or (b); or\n\n (d) a provision of the Australian Consumer Law (other than Part 5‑3); or\n\n (e) a provision of the regulations made under section 139G so far as it relates to a provision covered by paragraph (d).\n\ndesignated Department means the Department that is responsible for the administration of this section (other than subsections (4) and (7)).\n\ndesignated Minister means the Minister who is responsible for the administration of this section (other than subsections (4) and (7)).\n\ndisclose means divulge or communicate.\n\nforeign country includes a region where:\n\n (a) the region is a colony, territory or protectorate of a foreign country; or\n\n (b) the region is part of a foreign country; or\n\n (c) the region is under the protection of a foreign country; or\n\n (d) a foreign country exercises jurisdiction or control over the region; or\n\n (e) a foreign country is responsible for the region’s international relations.\n\nforeign government body means:\n\n (a) the government of a foreign country; or\n\n (b) an agency or authority of a foreign country; or\n\n (c) the government of part of a foreign country; or\n\n (d) an agency or authority of part of a foreign country.\n\ninformation includes information in a document and information given in evidence.\n\nprotected information means:\n\n (a) information that:\n\n (i) was given in confidence to the Commission; and\n\n (ii) relates to a matter arising under a core statutory provision; or\n\n (b) information that:\n\n (i) was obtained by the Commission under Part XID or section 155; and\n\n (ii) relates to a matter arising under a core statutory provision; or\n\n (ba) information that was obtained by the Commission under paragraph 60FD(2)(b) or section 60FA or 60H; or\n\n (c) information that:\n\n (i) was obtained by the Commission under section 151AU, 152AU, 152CBB or 152CBH or rules in force under section 151BU; and\n\n (ii) relates to a matter arising under Part XIB or XIC; or\n\n (d) information that was obtained by the Commission under section 118NE or 118NI of the Radiocommunications Act 1992; or\n\n (e) information that:\n\n (i) was given in confidence to the Commission by a foreign government body; and\n\n (ii) relates to a matter arising under a provision of a law of a foreign country or of a part of a foreign country; or\n\n (f) information that:\n\n (i) was obtained by the Commission under section 155; and\n\n (ii) relates to a designated water matter within the meaning of that section; or\n\n (g) information that was:\n\n (i) obtained by the Commission under section 239AJ, 100ZD or 101D of the Water Act 2007; or\n\n (ii) disclosed to the Commission under section 215UB(2A) or 135P of the Water Act 2007; or\n\n (iii) obtained under Part XID of this Act and relates to a matter arising under Part 5 or Part 5A of the Water Act 2007 or the Water Market Intermediaries Code within the meaning of the Water Act 2007; or\n\n (h) information that:\n\n (i) was given in confidence to the Commission; and\n\n (ii) relates to a matter arising under the cash distribution framework; or\n\n (i) information that was:\n\n (i) obtained by the Commission under the cash distribution framework; or\n\n (ii) obtained by the Commission under section 155 of this Act and relates to a designated cash distribution framework matter within the meaning of that section.\n\nFor 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.\n\nRoyal Commission has the same meaning as in the Royal Commissions Act 1902.\n\nState/Territory government body means:\n\n (a) the government of a State or Territory; or\n\n (b) an agency or authority of a State or Territory.","sortOrder":2043},{"sectionNumber":"155AA","sectionType":"section","heading":"Protection of Part VB information","content":"155AA  Protection of Part VB information\n\n (1) A Commission official must not disclose any protected Part VB information to any person, except:\n\n (a) when the Commission official is performing duties or functions as a Commission official; or\n\n (b) when the Commission official or the Commission is required or permitted by law to disclose the information.\n\n (2) Subsection (1) does not allow a Commission official to disclose protected Part VB information when performing a function of the Commission described in section 28.\n\n (3) In this section:\n\nCommission official means:\n\n (a) a member, or associate member, of the Commission;\n\n (b) a person referred to in subsection 27(1);\n\n (c) a person engaged under section 27A.\n\ndisclose means divulge or communicate.\n\ninformation includes information in a document and information given in evidence.\n\nprotected Part VB information means:\n\n (a) information that:\n\n (i) was obtained by the Commission under Part XID or section 155; and\n\n (ii) relates to a matter that arose under Part VB before its repeal by item 32 of Schedule 1 to the Statute Stocktake (Regulatory and Other Laws) Act 2009; or\n\n (b) information that was obtained by the Commission under section 75AY before its repeal by item 32 of Schedule 1 to the Statute Stocktake (Regulatory and Other Laws) Act 2009.","sortOrder":2044},{"sectionNumber":"155A","sectionType":"section","heading":"Power to obtain information and documents in New Zealand relating to trans-Tasman markets","content":"155A  Power to obtain information and documents in New Zealand relating to trans‑Tasman markets\n\n (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:\n\n (a) to furnish to the Commission, by writing signed by the person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information; or\n\n (b) to produce to the Commission, or to a person specified in the notice acting on behalf of the Commission, in accordance with the notice, any such documents.\n\n (2) The person may comply with the notice by providing the information or document to the New Zealand Commerce Commission for transmission to the Australian Competition and Consumer Commission.\n\n (3) Nothing in this section implies that notices may not be served under this section and section 155 in relation to the same conduct.\n\n (4) This section binds the Crown in all its capacities.","sortOrder":2045},{"sectionNumber":"155B","sectionType":"section","heading":"Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission","content":"155B  Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission\n\n (1) Where, by notice under section 98H of the Commerce Act 1986 of New Zealand, the New Zealand Commerce Commission requires a person to furnish any information or produce any document, the information or document may be provided to the Australian Competition and Consumer Commission for transmission to the New Zealand Commerce Commission.\n\n (2) As soon as practicable after the information or document is provided to the Australian Competition and Consumer Commission, the Australian Competition and Consumer Commission is to transmit it to the New Zealand Commerce Commission.\n\n (3) A person must not:\n\n (a) contravene a notice under section 98H of the Commerce Act 1986 of New Zealand; or\n\n (b) in purported compliance with such a notice, knowingly furnish information that is false or misleading in a material particular.\n\nPenalty: 20 penalty units.\n\nNote 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\nNote 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.\n\n (3A) Paragraph (3)(a) does not apply if the person has a reasonable excuse.\n\nNote: A defendant bears an evidential burden in relation to the matters in subsection (3A), see subsection 13.3(3) of the Criminal Code.\n\n (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:\n\n (a) any information furnished or document produced under such a notice; and\n\n (b) any information, document or thing obtained as a direct or indirect consequence of furnishing the information or producing the document;\n\nis not admissible in evidence against the person in any criminal proceedings, other than proceedings for an offence against subsection (3).\n\n (5) This section binds the Crown in all its capacities, but nothing in this section permits the Crown in any of its capacities to be prosecuted for an offence.\n\n (6) This section applies in and outside Australia.","sortOrder":2046},{"sectionNumber":"156","sectionType":"section","heading":"Inspection of documents by Commission","content":"156  Inspection of documents by Commission\n\n (1) A member of the Commission, or a person authorised by a member of the Commission, may inspect a document produced in pursuance of a notice under section 155 or 155A and may make copies of, or take extracts from, the document.\n\n (2) The Commission may, for the purposes of this Act, take, and retain for as long as is necessary for those purposes, possession of a document produced in pursuance of a notice under section 155 or 155A but the person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by a member of the Commission under his or her hand to be a true copy and the certified copy shall be received in all courts as evidence as if it were the original.\n\n (3) Until such a certified copy is supplied, the Commission shall, at such times and places as it thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of or take extracts from the document.","sortOrder":2047},{"sectionNumber":"157","sectionType":"section","heading":"Disclosure of documents by Commission","content":"157  Disclosure of documents by Commission\n\n (1) Subject to subsection (1A), if:\n\n (a) a corporation makes an application to the Commission under section 88, 91A, 91B or 91C; or\n\n (b) the Commission proposes the revocation of an authorisation under subsection 91B(3) or the revocation of an authorisation and the substitution of another authorisation under subsection 91C(3); or\n\n (c) a proceeding is instituted against a corporation or other person under section 77, 80, 80AC, 80AD, 81, 81A or 81B; or\n\n (d) an application is made under subsection 51ADB(1) or 53ZO(1), section 86C or 86D or subsection 87(1A) for an order against a corporation or other person;\n\nthe 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:\n\n (e) a copy of every document that has been furnished to, or obtained by, the Commission in connexion with the matter to which the application, notice or proceeding relates and tends to establish the case of the corporation or other person; and\n\n (f) a copy of any other document in the possession of the Commission that comes to the attention of the Commission in connexion with the matter to which the application, notice or proceeding relates and tends to establish the case of the corporation or other person;\n\nnot being a document obtained from the corporation or other person or prepared by an officer or professional adviser of the Commission.\n\n (1AA) Subject to subsections (1AB) and (1A), if an application for an order against a person is made under:\n\n (a) section 137F; or\n\n (b) subsection 237(1), 243A(1) or 243B(1), or section 246 or 247, of the Australian Consumer Law;\n\nthe Commission must, at the request of the person and upon payment of the prescribed fee (if any), give the person:\n\n (c) a copy of every document that has been given to, or obtained by, the Commission in connection with the matter to which the application relates and tends to establish the case of the person; and\n\n (d) a copy of any other document in the possession of the Commission that comes to the attention of the Commission in connection with the matter to which the application relates and tends to establish the case of the person.\n\n (1AB) Subsection (1AA) does not apply to a document obtained from the person, or prepared by an officer or professional adviser of the Commission.\n\nProtected cartel information—Commission may refuse to comply with request\n\n (1A) If a request under subsection (1) relates to a document containing protected cartel information, the Commission may refuse to comply with the request.\n\n (1B) In exercising its powers under subsection (1A), the Commission must have regard to the following matters:\n\n (a) the fact that the protected cartel information was given to the Commission in confidence;\n\n (b) Australia’s relations with other countries;\n\n (c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence and criminal investigation;\n\n (d) in a case where the protected cartel information was given by an informant:\n\n (i) the protection or safety of the informant or of persons associated with the informant; and\n\n (ii) the fact that the production of a document containing protected cartel information, or the disclosure of protected cartel information, may discourage informants from giving protected cartel information in the future;\n\n (e) the legitimate interests of the corporation which, or the person who, made the request under subsection (1);\n\n (f) such other matters (if any) as the Commission considers relevant.\n\nCourt order\n\n (2) If the Commission does not comply with a request under subsection (1) otherwise than because of a refusal under subsection (1A), the Court shall, subject to subsection (3), upon application by the corporation which, or other person who, made the request, make an order directing the Commission to comply with the request.\n\n (3) The Court may refuse to make an order under subsection (2) in respect of a document or part of a document if the Court considers it inappropriate to make the order by reason that the disclosure of the contents of the document or part of the document would prejudice any person, or for any other reason.\n\n (4) Before the Court gives a decision on an application under subsection (2), the Court may require any documents to be produced to it for inspection.\n\n (5) An order under this section may be expressed to be subject to conditions specified in the order.\n\nDefinition\n\n (6) In this section:\n\nprotected cartel information has the same meaning as in section 157B.","sortOrder":2048},{"sectionNumber":"157A","sectionType":"section","heading":"Disclosure of energy-related information by Commission","content":"157A  Disclosure of energy‑related information by Commission\n\n (1) The Commission or a Commission official may disclose to:\n\n (a) the AER; or\n\n (b) the AEMC; or\n\n (c) any staff or consultant assisting the AEMC in performing its functions or exercising its powers; or\n\n (d) a member of the staff of the AER, a person assisting the AER referred to in section 44AACA or a consultant engaged under section 44AACB;\n\nany information that it obtains under this Act or a gas market instrument that is relevant to the functions or powers of the AER or the AEMC.\n\nNote: The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information.\n\n (2) The AER or a person mentioned in paragraph (1)(d) may use the information for any purpose connected with the performance of the AER’s functions or the exercise of its powers.\n\n (3) The AEMC or a person mentioned in paragraph (1)(c) may use the information for any purpose connected with the performance of the AEMC’s functions or the exercise of its powers.\n\n (4) The Commission or a Commission official may impose conditions to be complied with in relation to information disclosed.\n\n (5) In this section:\n\nCommission official means:\n\n (a) a member, or associate member, of the Commission; or\n\n (b) a person referred to in subsection 27(1); or\n\n (c) a person engaged under section 27A.","sortOrder":2049},{"sectionNumber":"157AAA","sectionType":"section","heading":"Disclosure of information related to cash distribution framework by Commission","content":"157AAA  Disclosure of information related to cash distribution framework by Commission\n\n (1) The Commission or a Commission official may disclose to:\n\n (a) the Reserve Bank of Australia; or\n\n (b) a person who is an officer within the meaning of subsection 79A(1) of the Reserve Bank Act 1959, except a person mentioned in paragraph (d) or (e) of the definition of officer in that subsection;\n\nany information that it obtains under this Act that is relevant to the functions or powers of the Reserve Bank of Australia under the cash distribution framework.\n\nNote: The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information.\n\n (2) The Reserve Bank of Australia or a person mentioned in paragraph (1)(b) may use the information for any purpose connected with the performance of the Reserve Bank’s functions or the exercise of its powers under the cash distribution framework.\n\n (3) The Commission or a Commission official may impose conditions to be complied with in relation to information disclosed.\n\n (4) In this section:\n\nCommission official means:\n\n (a) a member, or associate member, of the Commission; or\n\n (b) a person referred to in subsection 27(1); or\n\n (c) a person engaged under section 27A.","sortOrder":2050},{"sectionNumber":"157AA","sectionType":"section","heading":"Disclosure of CDR-related information by Commission","content":"157AA  Disclosure of CDR‑related information by Commission\n\nDisclosure to the Information Commissioner\n\n (1) The Commission or a Commission official may disclose to:\n\n (a) the Information Commissioner; or\n\n (b) any staff or consultant assisting the Information Commissioner in performing that Commissioner’s functions, or exercising that Commissioner’s powers, relating to Part IVD or the consumer data rules;\n\nany information that the Commission obtains under this Act, or the consumer data rules, that is relevant or likely to be relevant to the functions or powers referred to in paragraph (b).\n\nNote: The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information.\n\n (2) The Information Commissioner or a person mentioned in paragraph (1)(b) must only use the information:\n\n (a) for a purpose connected with the performance of the functions, or the exercise of the powers, referred to in paragraph (1)(b); and\n\n (b) in accordance with any conditions imposed under subsection (4).\n\nDisclosure to the Secretary\n\n (2A) The Commission or a Commission official may disclose to:\n\n (a) the Secretary of the Department; or\n\n (b) any employee of the Department or consultant assisting the Secretary in performing the Secretary’s functions, or exercising the Secretary’s powers, relating to Part IVD;\n\nany information that the Commission obtains under this Act, or the consumer data rules, that is relevant or likely to be relevant to the functions or powers referred to in paragraph (b).\n\nNote: The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information.\n\n (2B) The Secretary or a person mentioned in paragraph (2A)(b) must only use the information:\n\n (a) for a purpose connected with the performance of the functions, or the exercise of the powers, referred to in paragraph (2A)(b); and\n\n (b) in accordance with any conditions imposed under subsection (4).\n\nDisclosure to a foreign agency\n\n (3) The Commission or a Commission official may disclose to:\n\n (a) an agency having the function in a foreign country of supervising or regulating the disclosure of similar information to that covered by an instrument designating a sector under subsection 56AC(2); or\n\n (aa) an agency having the function in a foreign country of supervising or regulating types of actions similar to those declared under section 56ACA; or\n\n (b) an agency, that is prescribed by the regulations, of a foreign country;\n\nany information that the Commission obtains:\n\n (c) under this Act in relation to Part IVD or the consumer data rules; or\n\n (d) under the consumer data rules.\n\nConditions\n\n (4) The Commission or a Commission official may impose conditions to be complied with in relation to information disclosed under subsection (1), (2A) or (3).\n\nDefinitions\n\n (5) In this section:\n\nCommission official means:\n\n (a) a member, or associate member, of the Commission; or\n\n (b) a person referred to in subsection 27(1); or\n\n (c) a person engaged under section 27A.\n\nforeign country includes a region where:\n\n (a) the region is a colony, territory or protectorate of a foreign country; or\n\n (b) the region is part of a foreign country; or\n\n (c) the region is under the protection of a foreign country; or\n\n (d) a foreign country exercises jurisdiction or control over the region; or\n\n (e) a foreign country is responsible for the region’s international relations.","sortOrder":2051},{"sectionNumber":"157B","sectionType":"section","heading":"Disclosure of protected cartel information to a court or tribunal","content":"157B  Disclosure of protected cartel information to a court or tribunal\n\nCommission or a Commission official not required to disclose protected cartel information\n\n (1) The Commission or a Commission official is not to be required:\n\n (a) to produce to a court or tribunal a document containing protected cartel information; or\n\n (b) to disclose protected cartel information to a court or tribunal;\n\nexcept with the leave of the court or tribunal.\n\n (2) In exercising its powers to grant leave under subsection (1), the court or tribunal must have regard to the following matters:\n\n (a) the fact that the protected cartel information was given to the Commission in confidence;\n\n (b) Australia’s relations with other countries;\n\n (c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence and criminal investigation;\n\n (d) in a case where the protected cartel information was given by an informant:\n\n (i) the protection or safety of the informant or of persons associated with the informant; and\n\n (ii) the fact that the production of a document containing protected cartel information, or the disclosure of protected cartel information, may discourage informants from giving protected cartel information in the future;\n\n (e) in the case of a court—the interests of the administration of justice;\n\n (f) in the case of a tribunal—the interests of securing the effective performance of the tribunal’s functions;\n\nand must not have regard to any other matters.\n\n (3) If:\n\n (a) a document is produced; or\n\n (b) information is disclosed;\n\nto a court or tribunal in accordance with leave granted under subsection (1) in relation to particular proceedings, the document or information must not be adduced in other proceedings before the court or tribunal except:\n\n (c) in accordance with leave granted under subsection (1) in relation to the other proceedings; or\n\n (d) as a result of an exercise of power under subsection (4) in relation to the other proceedings.\n\nCommission or a Commission official may disclose protected cartel information\n\n (4) The Commission or a Commission official may:\n\n (a) produce to the court or tribunal a document containing protected cartel information; or\n\n (b) disclose protected cartel information to the court or tribunal.\n\n (5) In exercising the powers conferred by subsection (4), the Commission or Commission official must have regard to the following matters:\n\n (a) the fact that the protected cartel information was given to the Commission in confidence;\n\n (b) Australia’s relations with other countries;\n\n (c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence and criminal investigation;\n\n (d) in a case where the protected cartel information was given by an informant:\n\n (i) the protection or safety of the informant or of persons associated with the informant; and\n\n (ii) the fact that the production of a document containing protected cartel information, or the disclosure of protected cartel information, may discourage informants from giving protected cartel information in the future;\n\n (e) in the case of production or disclosure to a court—the interests of the administration of justice;\n\n (f) in the case of production or disclosure to a tribunal—the interests of securing the effective performance of the tribunal’s functions;\n\nand must not have regard to any other matters.\n\n (6) If:\n\n (a) a document is produced; or\n\n (b) information is disclosed;\n\nto a court or tribunal as a result of an exercise of power under subsection (4) in relation to particular proceedings, the document or information must not be adduced in other proceedings before the court or tribunal except:\n\n (c) in accordance with leave granted under subsection (1) in relation to the other proceedings; or\n\n (d) as a result of an exercise of power under subsection (4) in relation to the other proceedings.\n\nDefinitions\n\n (7) In this section:\n\nCommission official means:\n\n (a) a member, or associate member, of the Commission; or\n\n (b) a person referred to in subsection 27(1); or\n\n (c) a person engaged under section 27A.\n\ndisclose means divulge or communicate.\n\nprotected cartel information means information that:\n\n (a) was given to the Commission in confidence; and\n\n (b) relates to a breach, or a possible breach, of section 45AF, 45AG, 45AJ or 45AK.","sortOrder":2052},{"sectionNumber":"157C","sectionType":"section","heading":"Disclosure of protected cartel information to a party to court proceedings etc.","content":"157C  Disclosure of protected cartel information to a party to court proceedings etc.\n\nCommission or Commission official not required to make discovery of documents containing protected cartel information etc.\n\n (1) If:\n\n (a) a person is a party to proceedings before a court; and\n\n (b) the Commission is not a party to the proceedings;\n\nthe Commission or a Commission official is not to be required, in connection with the proceedings, to:\n\n (c) make discovery (however described) to the person of a document containing protected cartel information; or\n\n (d) produce to the person a document containing protected cartel information.\n\n (2) If:\n\n (a) a person is considering instituting proceedings before a court; and\n\n (b) the proceedings have not yet been instituted;\n\nthe Commission or a Commission official is not to be required, in connection with the prospective proceedings, to:\n\n (c) make discovery (however described) to the person of a document containing protected cartel information; or\n\n (d) produce to the person a document containing protected cartel information.\n\nCommission or Commission official may disclose protected cartel information\n\n (3) If:\n\n (a) a person is a party to proceedings before a court; and\n\n (b) the Commission is not a party to the proceedings;\n\nthe Commission or a Commission official may, on application by the person:\n\n (c) make a copy of a document containing protected cartel information; and\n\n (d) give the copy to the person.\n\n (4) If:\n\n (a) a person is considering instituting proceedings before a court; and\n\n (b) the proceedings have not yet been instituted;\n\nthe Commission or a Commission official may, on application by the person:\n\n (c) make a copy of a document containing protected cartel information; and\n\n (d) give the copy to the person.\n\n (5) In exercising the powers conferred by subsection (3) or (4), the Commission or Commission official must have regard to the following matters:\n\n (a) the fact that the protected cartel information was given to the Commission in confidence;\n\n (b) Australia’s relations with other countries;\n\n (c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence and criminal investigation;\n\n (d) in a case where the protected cartel information was given by an informant:\n\n (i) the protection or safety of the informant or of persons associated with the informant; and\n\n (ii) the fact that the production of a document containing protected cartel information, or the disclosure of protected cartel information, may discourage informants from giving protected cartel information in the future;\n\n (e) the interests of the administration of justice;\n\nand must not have regard to any other matters.\n\n (6) If a copy of a document is given to a party, or prospective party, to proceedings before a court as a result of an exercise of power under subsection (3) or (4), the copy must not be adduced in other proceedings before:\n\n (a) the court; or\n\n (b) another court; or\n\n (c) a tribunal;\n\nexcept:\n\n (d) as a result of an exercise of power under subsection (3) or (4) in relation to the other proceedings; or\n\n (e) in accordance with leave granted under subsection 157B(1) in relation to the other proceedings; or\n\n (f) as a result of an exercise of power under subsection 157B(4) in relation to the other proceedings.\n\nDefinitions\n\n (7) In this section:\n\nCommission official means:\n\n (a) a member, or associate member, of the Commission; or\n\n (b) a person referred to in subsection 27(1); or\n\n (c) a person engaged under section 27A.\n\nprotected cartel information means information that:\n\n (a) was given to the Commission in confidence; and\n\n (b) relates to a breach, or a possible breach, of section 45AF, 45AG, 45AJ or 45AK.","sortOrder":2053},{"sectionNumber":"157D","sectionType":"section","heading":"General powers of a court","content":"157D  General powers of a court\n\nPower of a court in a criminal or civil proceeding\n\n (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.\n\nStay order—criminal proceeding\n\n (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.\n\nStay order—civil proceeding\n\n (3) A refusal by a court to grant leave under subsection 157B(1) does not prevent the court from later ordering that a civil proceeding be stayed on the ground that the refusal would have a substantial adverse effect on the hearing in the proceeding.\n\n (4) In deciding whether to order a stay of the civil proceeding, the court must consider:\n\n (a) the extent of any financial loss that a party would suffer as a result of the proceeding being stayed; and\n\n (b) whether a party has reasonable prospects of obtaining a remedy in the proceeding; and\n\n (c) any other matter the court considers relevant.","sortOrder":2054},{"sectionNumber":"158","sectionType":"section","heading":"Protection of members of Tribunal, counsel and witnesses","content":"158  Protection of members of Tribunal, counsel and witnesses\n\n (1) A member of the Tribunal has, in the performance of his or her duty as a member, the same protection and immunity as a Justice of the High Court.\n\n (2) A person appearing before the Tribunal on behalf of a person, or assisting the Tribunal as counsel, has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.\n\n (3) Subject to this Act, a person appearing before the Tribunal or the Commission to give evidence has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, in any civil or criminal proceedings as a witness in proceedings in the High Court.","sortOrder":2055},{"sectionNumber":"158A","sectionType":"section","heading":"Proceedings without initiation notice—use of virtual enquiry technology","content":"158A  Proceedings without initiation notice—use of virtual enquiry technology\n\n (1) This section applies to the following (the proceedings):\n\n (a) an arbitration of an access dispute under Part IIIA by the Commission as constituted by members of the Commission under section 44Z;\n\n (b) an inquiry under Part VIIA by an inquiry body (within the meaning of that Part) before an inquiry Chair (within the meaning of that Part);\n\n (c) a conference convened under subsection 151AZ(1) by the Commission.\n\n (2) The members of the Commission, the inquiry Chair or the Commission (as applicable) may decide to hold the proceedings:\n\n (a) at one or more physical venues; or\n\n (b) at one or more physical venues and using virtual enquiry technology; or\n\n (c) using virtual enquiry technology only.\n\n (3) Subsections (4) and (5) apply if the proceedings are held:\n\n (a) at one or more physical venues and using virtual enquiry technology; or\n\n (b) using virtual enquiry technology only.\n\n (4) The members of the Commission, the inquiry Chair or the Commission (as applicable) must ensure that the use of the virtual enquiry technology is reasonable.\n\n (5) If the proceedings are held in public, the members of the Commission, the inquiry Chair or the Commission (as applicable) must ensure that:\n\n (a) the virtual enquiry technology provides the public with a reasonable opportunity to observe the proceedings; and\n\n (b) information sufficient to allow the public to observe the proceedings using the virtual enquiry technology is made publicly available in a reasonable way.\n\n (6) If the proceedings are or will be held:\n\n (a) at more than one physical venue; or\n\n (b) at one or more physical venues and using virtual enquiry technology; or\n\n (c) using virtual enquiry technology only;\n\nthe members of the Commission, the inquiry Chair or the Commission (as applicable) may appoint a single place and time at which the proceedings are taken to be or have been held.\n\n (7) This section applies to part of the proceedings in the same way that it applies to all of the proceedings.","sortOrder":2056},{"sectionNumber":"158B","sectionType":"section","heading":"Proceedings with initiation notice—use of virtual enquiry technology","content":"158B  Proceedings with initiation notice—use of virtual enquiry technology\n\n (1) This section applies to the following (the proceedings):\n\n (a) an appearance to give evidence or produce documents under section 44AAFA before the AER, a member of the staff of the AER or a person assisting the AER;\n\n (b) a conference held under subsection 90A(6) by the Commission as represented by a member or members of the Commission under paragraph 90A(7)(a);\n\n (c) a conference held under subsection 93A(5) by the Commission as represented by a member or members of the Commission under paragraph 93A(6)(a);\n\n (d) a conference held under Subdivision A or B of Division 3 of Part XI by the Commission as represented by a member or members of the Commission under paragraph 132H(1)(a);\n\n (e) an appearance to give evidence or produce documents under section 133D before the Commonwealth Minister or an inspector;\n\n (f) an appearance to give evidence or produce documents under paragraph 155(1)(c) before the Commission or a member of the staff assisting the Commission.\n\n (2) The person who appoints the date or day (if applicable), time and place for the proceedings may decide that the proceedings are to be held:\n\n (a) at one or more physical venues; or\n\n (b) at one or more physical venues and using virtual enquiry technology; or\n\n (c) using virtual enquiry technology only.\n\n (3) If the proceedings are to be held:\n\n (a) at more than one physical venue; or\n\n (b) at one or more physical venues and using virtual enquiry technology; or\n\n (c) using virtual enquiry technology only;\n\nthe single place and time at which the proceedings are taken to be held is that specified in the notice for the proceedings.\n\n (4) Subsections (5) and (6) apply if the proceedings are held:\n\n (a) at one or more physical venues and using virtual enquiry technology; or\n\n (b) using virtual enquiry technology only.\n\n (5) The AER, the person assisting the AER, the member or members of the Commission, the Commission, the Commonwealth Minister, the inspector or the member of the staff assisting the Commission (as applicable) (the relevant person) must ensure that the use of the virtual enquiry technology is reasonable.\n\n (6) If the proceedings are held in public, the relevant person must ensure that:\n\n (a) the virtual enquiry technology provides the public with a reasonable opportunity to observe the proceedings; and\n\n (b) information sufficient to allow the public to observe the proceedings using the virtual enquiry technology is made publicly available in a reasonable way.\n\n (7) This section applies to part of the proceedings in the same way that it applies to all of the proceedings.","sortOrder":2057},{"sectionNumber":"159","sectionType":"section","heading":"Incriminating answers","content":"159  Incriminating answers\n\n (1) A person appearing before the Commission to give evidence or produce documents is not excused from answering a question, or producing a document, on the ground that the answer to the question, or the document, may tend to incriminate the person or expose the person to a penalty.\n\n (2) Evidence given by an individual before the Commission is not admissible against the individual in any criminal proceedings, other than:\n\n (a) proceedings for an offence against this Part; or\n\n (b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part.","sortOrder":2058},{"sectionNumber":"160","sectionType":"section","heading":"Failure of witness to attend","content":"160  Failure of witness to attend\n\n (1) A person served, as prescribed, with a summons to appear as a witness before the Tribunal shall not:\n\n (a) fail to attend as required by the summons; or\n\n (b) fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by a member of the Tribunal.\n\n (1A) Subsection (1) does not apply if the person has a reasonable excuse.\n\nNote: A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.\n\n (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.\n\nNote 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\nNote 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.","sortOrder":2059},{"sectionNumber":"161","sectionType":"section","heading":"Refusal to be sworn or to answer questions","content":"161  Refusal to be sworn or to answer questions\n\n (1) A person appearing as a witness before the Tribunal shall not:\n\n (a) refuse or fail to be sworn or to make an affirmation;\n\n (b) refuse or fail to answer a question that he or she is required to answer by the member presiding at the proceedings; or\n\n (c) refuse or fail to produce a document that he or she was required to produce by a summons under this Act served on him or her as prescribed.\n\n (1A) Subsection (1) does not apply if the person has a reasonable excuse.\n\nNote: A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.\n\n (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.\n\nNote: A defendant bears an evidential burden in relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal Code.\n\n (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.\n\nNote 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\nNote 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.","sortOrder":2060},{"sectionNumber":"162","sectionType":"section","heading":"Contempt","content":"162  Contempt\n\n (1) A person shall not:\n\n (a) insult a member of the Tribunal, a member of the Commission or an AER member in the exercise of his or her powers or functions as a member;\n\n (b) interrupt the proceedings of the Tribunal or a conference held by the Commission under section 90 or 93A, Division 3 of Part XI or section 151AZ;\n\n (c) create a disturbance, or take part in creating or continuing a disturbance, in or near a place where the Tribunal is sitting or the Commission is holding such a conference; or\n\n (d) do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court.\n\n (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.\n\nNote 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\nNote 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.","sortOrder":2061},{"sectionNumber":"162A","sectionType":"section","heading":"Intimidation etc.","content":"162A  Intimidation etc.\n\n  A person who:\n\n (a) threatens, intimidates or coerces another person; or\n\n (b) causes or procures damage, loss or disadvantage to another person;\n\nfor 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.\n\nNote 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\nNote 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.","sortOrder":2062},{"sectionNumber":"163","sectionType":"section","heading":"Prosecutions","content":"163  Prosecutions\n\n (1) Prosecutions for offences against this Act may be brought in any court having jurisdiction in the matter.\n\n (2) In so far as this section has effect as a law of the Commonwealth, the Federal Court has jurisdiction in any matter in respect of which a criminal proceeding is instituted for an offence to which subsection (1) applies, and that jurisdiction is exclusive of the jurisdiction of any other court other than:\n\n (a) the jurisdiction of a Supreme Court of a State or Territory under section 68 of the Judiciary Act 1903 with respect to any matter in respect of which a criminal proceeding is instituted for an offence against section 45AF or 45AG or subsection 56BN(1) or 56BZI(1); and\n\n (b) the jurisdiction of a court under section 68 of the Judiciary Act 1903 with respect to the examination and commitment for trial on indictment of a person who is charged with an indictable offence; and\n\n (c) the jurisdiction of the High Court under section 75 of the Constitution.\n\n (4) Proceedings under this section, other than proceedings instituted by:\n\n (aa) the Director of Public Prosecutions; or\n\n (a) the Commission; or\n\n (b) a person authorised in writing by the Commission; or\n\n (c) a person authorised in writing by the Secretary of the Department;\n\nshall 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.\n\n (5) A prosecution for an offence against section 44AAFB, 154Q, 155 or 155B may be commenced at any time after the commission of the offence.\n\n (6) Despite subsection (2), the Federal Court does not have jurisdiction in any matter in respect of which a criminal proceeding is instituted for an offence against section 45AF or 45AG if the proceeding is instituted before the commencement of Schedule 1 to the Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009.","sortOrder":2063},{"sectionNumber":"163A","sectionType":"section","heading":"Declarations and orders","content":"163A  Declarations and orders\n\nDeclarations and orders\n\n (1) Subject to this section, a person may, in relation to a matter arising under this Act, a gas market instrument or the consumer data rules, institute a proceeding in a court having jurisdiction to hear and determine proceedings under this section seeking the making of:\n\n (a) a declaration in relation to the operation or effect of any provision of this Act, a gas market instrument or the consumer data rules other than the following provisions:\n\n (i) Part V;\n\n (ii) Part XIB;\n\n (iii) Part XIC; or\n\n (aaa) a declaration in relation to the operation or effect of any provision of the Australian Consumer Law other than Division 1 of Part 3‑2 or Part 5‑4; or\n\n (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, a gas market instrument or the consumer data rules; or\n\n (b) an order by way of, or in the nature of, prohibition, certiorari or mandamus;\n\nor both such a declaration and such an order.\n\n (1A) Subsection (1) does not apply in relation to a matter arising under Part IIIAA.\n\nWhen Minister may institute, or intervene in, proceedings\n\n (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).\n\n (2A) Subsections (1) and (2) do not permit the Minister:\n\n (a) to institute a proceeding seeking a declaration, or an order described in paragraph (1)(b), that relates to Part IV; or\n\n (b) to intervene in a proceeding so far as it relates to a matter that arises under Part IV.\n\nWhen Commission may institute proceedings\n\n (3) The Commission may institute a proceeding in the Court seeking, in relation to a matter arising under this Act, a gas market instrument or the consumer data rules, the making of a declaration of the kind that may be made under paragraph (1)(a).\n\nJurisdiction of Federal Court\n\n (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.\n\n (4) The jurisdiction of the Federal Court under subsection (3A) to make:\n\n (a) a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act, a gas market instrument or the consumer data rules by the Tribunal; or\n\n (b) an order of a kind mentioned in paragraph (1)(b) directed to the Tribunal;\n\nshall be exercised by not less than 3 Judges.\n\nJurisdiction of State/Territory Supreme Courts etc.\n\n (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.\n\n (4B) If a decision to prosecute a person for an offence against section 45AF or 45AG or subsection 56BN(1) or 56BZI(1) has been made and the prosecution is proposed to be commenced in the Supreme Court of a State or Territory:\n\n (a) the Federal Court does not have jurisdiction with respect to any matter in which a person seeks the making of a paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in relation to that decision; and\n\n (b) if the Supreme Court is the Supreme Court of a State—in so far as this section has effect as a law of the Commonwealth, the Supreme Court is invested with federal jurisdiction with respect to any such matter; and\n\n (c) if the Supreme Court is the Supreme Court of a Territory, then:\n\n (i) in so far as this section has effect as a law of the Commonwealth; and\n\n (ii) subject to the Constitution;\n\n  the Supreme Court is conferred with jurisdiction with respect to any such matter.\n\n (4C) Subject to subsection (4D), at any time when:\n\n (a) a prosecution for an offence against section 45AF or 45AG or subsection 56BN(1) or 56BZI(1) is before the Supreme Court of a State or Territory; or\n\n (b) an appeal arising out of such a prosecution is before the Supreme Court of a State or Territory;\n\nthe following apply:\n\n (c) the Federal Court does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks the making of a paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in relation to a related criminal justice process decision;\n\n (d) if the Supreme Court is the Supreme Court of a State—in so far as this section has effect as a law of the Commonwealth, the Supreme Court is invested with federal jurisdiction with respect to any such matter;\n\n (e) if the Supreme Court is the Supreme Court of a Territory, then:\n\n (i) in so far as this section has effect as a law of the Commonwealth; and\n\n (ii) subject to the Constitution;\n\n  the Supreme Court is conferred with jurisdiction with respect to any such matter.\n\n (4D) Subsection (4C) does not apply if, before the commencement of a prosecution for an offence against section 45AF or 45AG or subsection 56BN(1) or 56BZI(1), 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.\n\n (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:\n\n (a) the matters the subject of the proceedings are more appropriately dealt with in the criminal justice process; and\n\n (b) a stay of proceedings will not substantially prejudice the person.\n\nDefinitions\n\n (5) In this section, proceeding includes a cross‑proceeding.\n\n (6) In this section:\n\nrelated criminal justice process decision has the same meaning as in section 39B of the Judiciary Act 1903.","sortOrder":2064},{"sectionNumber":"165","sectionType":"section","heading":"Inspection of, furnishing of copies of, and evidence of, documents","content":"165  Inspection of, furnishing of copies of, and evidence of, documents\n\n (1) A person may, on application in accordance with the regulations and on payment of the prescribed fee (if any):\n\n (a) inspect any document contained in the register kept under subsection 89(3) or 95(1); and\n\n (b) obtain a copy of such a document (including, where the person so requests, a copy certified to be a true copy under the hand of a person authorised by the Commission to certify such copies).\n\n (2) Subject to subsection (3) and to any direction under subsection 106(2), a person may, on application in accordance with the regulations and on payment of the prescribed fee (if any):\n\n (a) inspect the document recording a declaration under section 50A or a determination of the Tribunal or any document furnished to, or recorded in the records of, the Tribunal in pursuance of this Act or the regulations; and\n\n (b) obtain a copy of such a document (including, where the person so requests, a copy certified to be a true copy under the hand of the Registrar or of a Deputy Registrar).\n\n (3) Unless the Tribunal in a particular case otherwise directs, subsection (2) does not apply in relation to a document furnished to the Tribunal if the person by whom the document was furnished claims, as prescribed, that the document contains matter of a confidential nature.\n\n (4) A copy of a determination of the Commission, certified to be a true copy by a person authorised by the Commission to certify copies of determinations of the Commission, shall be received in all courts as evidence of the determination.\n\n (5) A document purporting to be a copy of a determination of the Commission and to be certified to be a true copy in accordance with subsection (4) shall, unless the contrary is established, be deemed to be such a copy and to be so certified.\n\n (6) A copy of a declaration under section 50A or a determination of, or undertaking given to, the Tribunal, certified to be a true copy under the hand of the Registrar or of a Deputy Registrar, shall be received in all courts as evidence of the declaration, determination or undertaking.","sortOrder":2065},{"sectionNumber":"166","sectionType":"section","heading":"Certificates as to furnishing of particulars to Commission","content":"166  Certificates as to furnishing of particulars to Commission\n\n (1) Where particulars of a provision of a contract, arrangement or understanding, or particulars of a concerted practice, have been furnished to the Commission for the purposes of paragraph 51(2)(g), the Commission shall, on application by a party to the contract, arrangement, understanding or concerted practice, cause to be furnished to the party a certificate signed by a member of the Commission specifying the particulars so furnished and the date on which the particulars were furnished.\n\n (2) A certificate referred to in subsection (1) shall be received in all courts as evidence that the particulars specified in the certificate were furnished to the Commission on the date so specified.\n\n (3) A person is not entitled to inspect any particulars that have been furnished to the Commission for the purposes of paragraph 51(2)(g), but the Commission may make those particulars available to the Minister or to an officer acting on behalf of, and with the authority of, the Minister or to a court.","sortOrder":2066},{"sectionNumber":"167","sectionType":"section","heading":"Judicial notice","content":"167  Judicial notice\n\n (1) All courts shall take judicial notice of:\n\n (a) the official signature of any person who holds or has held the office of President, Deputy President, member of the Tribunal, Chairperson, Deputy Chairperson, member of the Commission, Registrar, Deputy Registrar, AER Chair or AER member and of the fact that that person holds or has held that office; and\n\n (b) the official seal of the Tribunal, of the Commission or of the AER;\n\nif the signature or seal purports to be attached or appended to an official document.\n\n (1A) All courts must take judicial notice of:\n\n (a) the official signature of a person who holds or has held the office of Chairman, Deputy Chairman, or member (including associate member) of the New Zealand Commerce Commission and of the fact that the person holds or has held the office; and\n\n (b) the imprint of the common seal of the New Zealand Commerce Commission;\n\nif the signature or imprint purports to be attached or appended to an official document.\n\n (2) In this section, court includes a Federal Court or a court of a State or Territory and all persons authorised by law or by consent of parties to receive evidence.","sortOrder":2067},{"sectionNumber":"170","sectionType":"section","heading":"Legal and financial assistance","content":"170  Legal and financial assistance\n\n (1) A person:\n\n (a) who has instituted, or proposes to institute, a proceeding before the Commission or the Tribunal, or a proceeding before the Court under Part IVB, Part VI or section 163A, or under Part 3‑5 or Chapter 5 of the Australian Consumer Law;\n\n (b) who is entitled to participate, or has been permitted to intervene, in a proceeding before the Commission or the Tribunal; or\n\n (c) against whom a proceeding before the Court has been instituted under Part IVB, Part VI or section 163A, or under Part 3‑5 or Chapter 5 of the Australian Consumer Law;\n\nmay apply to the Attorney‑General for a grant of assistance under this section in respect of the proceeding.\n\n (2) Where an application is made by a person under subsection (1), the Attorney‑General, or a person appointed or engaged under the Public Service Act 1999 (the public servant) authorised in writing by the Attorney‑General, may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorise the grant by the Commonwealth to the person, either unconditionally or subject to such conditions as the Attorney‑General or public servant determines, of such legal or financial assistance in relation to the proceeding as the Attorney‑General or public servant determines.\n\n (3) In this section:\n\n (a) a reference to a proceeding before the Commission is a reference to a proceeding in relation to an application for, or in relation to the revocation of, an authorisation under Division 1 of Part VII; and\n\n (b) a reference to a proceeding before the Tribunal is a reference to:\n\n (i) an application to the Tribunal for a declaration under subsection 50A(1); or\n\n (iii) an application for a review of a determination, or of the giving of a notice, by the Commission.","sortOrder":2068},{"sectionNumber":"171","sectionType":"section","heading":"Annual report by Commission","content":"171  Annual report by Commission\n\n (2) An annual report prepared by the Chairperson and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include a cumulative list of all Commonwealth, State and Territory laws that the Commission knows about that authorise things for the purposes of subsection 51(1) of this Act or subsection 51(1) of the Competition Code (as defined in section 150A).\n\n (3) The report must also include:\n\n (aa) details of the time taken by the Commission to:\n\n (i) make final determinations under section 44V in relation to access disputes; and\n\n (ii) make decisions on access undertaking applications (within the meaning of section 44B) or access code applications (within the meaning of that section); and\n\n (iii) make decisions on applications under subsection 44PA(1) (about government tendering); and\n\n (ab) the following information relating to the acquisitions provisions:\n\n (i) the number of notification waiver applications made, and a general summary of the kinds of acquisitions to which the applications related;\n\n (ii) the number of notifications of acquisitions made, and a general description of the kinds of acquisitions notified;\n\n (iii) the number of notifications that the Commission decided were to be subject to phase 2 review, and a general summary of the circumstances in which the Commission made such decisions;\n\n (iv) the number of acquisition determinations the Commission made that included conditions, and a general description of the kinds of conditions included;\n\n (v) a general summary of the kinds of goodwill protection provisions specified in notifications of acquisitions (see subsection 51ABY(6));\n\n (vi) the number of declarations the Commission included in determinations under subsection 51ABZG(1), and a general summary of the circumstances in which the Commission included such declarations; and\n\n (a) the number of:\n\n (i) notices given by the Commission under section 155; and\n\n (iii) notices given by the Commission under section 155A; and\n\n (b) a general description of the nature of the matters in respect of which the notices were given; and\n\n (c) the number of proceedings brought to challenge the validity of the notices; and\n\n (ca) the number of search warrants issued by a judge under section 135Z or signed by a judge under section 136; and\n\n (d) the number of search warrants issued by a magistrate under section 154X or signed by a magistrate under section 154Y; and\n\n (da) a general description of the nature of the matters in respect of which the search warrants referred to in paragraph (ca) or (d) were issued or signed; and\n\n (db) the number of proceedings brought to challenge the validity of the search warrants referred to in paragraph (ca) or (d); and\n\n (dc) the number of entries onto premises under section 133B or 133C, Division 6 of Part XI or Part XID; and\n\n (dd) the number of designated complaints received by the Commission; and\n\n (de) the number of designated complaints in respect of which the Commission did not comply with each of the following:\n\n (i) section 154ZG;\n\n (ii) paragraph 154ZK(3)(b); and\n\n (e) the number of complaints (other than designated complaints) received by the Commission; and\n\n (f) a general summary of the kinds of complaints (including designated complaints) received by the Commission and how it dealt with them; and\n\n (g) a general description of the major matters investigated by the Commission; and\n\n (h) the number of times the Commission has intervened in proceedings and a general description of the reasons for doing so.","sortOrder":2069},{"sectionNumber":"171A","sectionType":"section","heading":"Charges by the Commission","content":"171A  Charges by the Commission\n\n (1) The Commission may make a charge of an amount, or at a rate, determined by the Commission for:\n\n (a) supplying a person with material published by the Commission in the course of carrying out its functions or exercising its powers; or\n\n (b) permitting a person to attend or take part in a prescribed activity arranged by or on behalf of the Commission for the purpose of carrying out any of its functions.\n\n (2) Where:\n\n (a) the Commission provides a discretionary service for a person; and\n\n (b) this Act does not otherwise provide for a charge for the service;\n\nthe Commission may make a charge of such amount, or at such a rate, as is agreed between the Commission and the person.\n\n (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:\n\n (a) the Commission has power to do but is not required to do by or under any law; and\n\n (b) the Commission does at the person’s request.","sortOrder":2070},{"sectionNumber":"171B","sectionType":"section","heading":"Division 3 of Part IIIA does not confer judicial power on the Commission","content":"171B  Division 3 of Part IIIA does not confer judicial power on the Commission\n\n (1) Division 3 of Part IIIA has no effect to the extent (if any) to which it purports to confer judicial power on the Commission.\n\n (2) In this section:\n\njudicial power means the judicial power of the Commonwealth referred to in section 71 of the Constitution.","sortOrder":2071},{"sectionNumber":"172","sectionType":"section","heading":"Regulations","content":"172  Regulations\n\n (1) The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act (other than Schedule 2) to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act (other than Schedule 2) and, in particular, prescribing:\n\n (a) matters in connexion with the procedure of the Tribunal, the Commission and the AER; and\n\n (b) the fees and expenses of witnesses in proceedings before the Tribunal and the Commission; and\n\n (c) matters for and in relation to the costs, if any, that may be awarded by the Court in proceedings before the Court under this Act; and\n\n (d) the fees payable to the Commission on making a prescribed application, or giving a prescribed notice, to the Commission under this Act or the regulations.\n\n (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.\n\nNote: See section 44ZZR.\n\n (2) The regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of this Act (other than Part IV or Schedule 2) or of specified provisions of this Act (other than Part IV or Schedule 2):\n\n (a) conduct engaged in by a specified organization or body that performs functions in relation to the marketing of primary products;\n\n (b) a prescribed contract or proposed contract, contracts included in a prescribed class of contracts, or prescribed conduct, being a contract, proposed contract or class of contracts made, or conduct engaged in, in pursuance of or for the purposes of a specified agreement, arrangement or understanding between the Government of Australia and the Government of a country outside Australia; or\n\n (c) prescribed conduct engaged in in the course of a business carried on by the Commonwealth or by a prescribed authority of the Commonwealth.\n\n (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).\n\n (2B) Subsection (2A) does not apply to an application for a merger authorisation, 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.\n\n (3) Strict compliance with a form of application or notice prescribed or approved 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.","sortOrder":2072},{"sectionNumber":"173","sectionType":"section","heading":"Authorisation for the purposes of subsection 51(1)","content":"173  Authorisation for the purposes of subsection 51(1)\n\n (1) In deciding whether a person (including a corporation) has contravened section 50 of this Act, the vesting of ownership of primary products in the person by legislation is to be taken, for the purposes of subparagraph 51(1)(a)(i), to be specified in, and specifically authorised by, this section.\n\n (2) In this section:\n\nprimary products means:\n\n (a) agricultural or horticultural produce, including produce that has been subjected to a manufacturing process; or\n\n (b) crops, whether on or attached to the land or not; or\n\n (c) animals (whether dead or alive); or\n\n (d) the bodily produce (including natural increase) of animals.\n\nNote: An example of agricultural produce that has been subjected to a manufacturing process is sugar cane that has been transformed into raw sugar.","sortOrder":2073},{"sectionNumber":"Part XIII","sectionType":"part","heading":"Application and transitional provisions relating to the competition provisions","content":"Part XIII—Application and transitional provisions relating to the competition provisions","sortOrder":2074},{"sectionNumber":"174","sectionType":"section","heading":"Definitions","content":"174  Definitions\n\n (1) In this Division:\n\ncommencement time means the commencement of Division 1 of Part IV.\n\n (2) A reference in this Division to subsection 88(1A) or paragraph 88(1A)(b) is a reference to that subsection or paragraph as in force before the commencement of Schedule 9 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017.","sortOrder":2076},{"sectionNumber":"175","sectionType":"section","heading":"Giving effect after the commencement time to a cartel provision in existence before that time","content":"175  Giving effect after the commencement time to a cartel provision in existence before that time\n\n  The following provisions of this Act:\n\n (a) paragraph 88(1A)(b);\n\n (b) paragraph 93AB(1A)(c);\n\n (c) paragraph 93AB(1A)(d);\n\napply in relation to a contract or arrangement made, or an understanding arrived at, before, at or after the commencement time.","sortOrder":2077},{"sectionNumber":"176","sectionType":"section","heading":"Proceedings relating to price-fixing contraventions taking place before the commencement time","content":"176  Proceedings relating to price‑fixing contraventions taking place before the commencement time\n\n  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.","sortOrder":2078},{"sectionNumber":"177","sectionType":"section","heading":"Authorisations in force before the commencement time","content":"177  Authorisations in force before the commencement time\n\n (1) This section applies if:\n\n (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\n\n (b) the provision is a cartel provision; and\n\n (c) the authorisation was in force immediately before the commencement time.\n\n (2) This Act has effect, after the commencement time, as if:\n\n (a) the Commission had, at the commencement time, granted to the person an authorisation under subsection 88(1A) to give effect to the cartel provision; and\n\n (b) the day specified in the subsection 88(1A) authorisation as the day the authorisation comes into force were the day on which Division 1 of Part IV commenced; and\n\n (c) if, immediately before the commencement time, the pre‑commencement authorisation was expressed to be in force for a period (the initial period) specified in that authorisation—the subsection 88(1A) authorisation were expressed to be in force for a period specified in the subsection 88(1A) authorisation, and that period were the period:\n\n (i) starting at the commencement time; and\n\n (ii) ending at the end of the initial period; and\n\n (d) any requirements for the granting of the subsection 88(1A) authorisation were satisfied.\n\n (3) Subsection (2) does not prevent the subsection 88(1A) authorisation from being varied, revoked or set aside in accordance with this Act.","sortOrder":2079},{"sectionNumber":"178","sectionType":"section","heading":"Notifications in force before the commencement time","content":"178  Notifications in force before the commencement time\n\n (1) This section applies if:\n\n (a) a person gave the Commission a collective bargaining notice under subsection 93AB(1) in relation to a proposal to give effect to a provision of a contract, arrangement or understanding; and\n\n (b) the provision is a cartel provision of the kind referred to in paragraph 93AB(1A)(c) or (d); and\n\n (c) the subsection 93AB(1) notice is in force immediately before the commencement time.\n\n (2) This Act has effect, after the commencement time, as if:\n\n (a) the person had, at the commencement time, given the Commission a collective bargaining notice under subsection 93AB(1A) in relation to a proposal to give effect to the cartel provision; and\n\n (b) despite subsections 93AD(1) and (2), the subsection 93AB(1A) notice had come into force at the commencement time; and\n\n (c) despite paragraph 93AD(3)(c), the period applicable to the subsection 93AB(1A) notice for the purposes of paragraph 93AD(3)(c) were the period:\n\n (i) starting at the commencement time; and\n\n (ii) ending at the end of the period of 3 years starting on the day the person gave the subsection 93AB(1) notice to the Commission; and\n\n (d) any requirements for the giving of the subsection 93AB(1A) notice were satisfied.\n\n (3) Subsection (2) does not prevent the subsection 93AB(1A) notice from ceasing to be in force in accordance with this Act.","sortOrder":2080},{"sectionNumber":"179","sectionType":"section","heading":"Amendments of section 50","content":"179  Amendments of section 50\n\n  The amendments of section 50 made by Schedule 1 to the Competition and Consumer Legislation Amendment Act 2011 apply to acquisitions occurring after the commencement of that Schedule.","sortOrder":2082},{"sectionNumber":"180","sectionType":"section","heading":"Definitions","content":"180  Definitions\n\n  In this Division:\n\namended Act means this Act as amended by the amending Act.\n\namending Act means the Competition and Consumer Amendment (Competition Policy Review) Act 2017.\n\ncommencement time means the commencement of Schedule 1 to the amending Act.","sortOrder":2084},{"sectionNumber":"181","sectionType":"section","heading":"Amendment of the definition of competition","content":"181  Amendment of the definition of competition\n\n  The repeal and substitution of the definition of competition in subsection 4(1) made by Schedule 1 to the amending Act applies in relation to conduct engaged in at or after the commencement time.","sortOrder":2085},{"sectionNumber":"182","sectionType":"section","heading":"Orders under section 87","content":"182  Orders under section 87\n\n  If:\n\n (a) before the commencement time, an order was made under section 87 relating to a contravention of section 45B; and\n\n (b) the order was still in force immediately before the commencement time;\n\nthe amendments made to section 87 by Schedule 5 to the amending Act do not apply in relation to, and do not affect the validity of, the order.","sortOrder":2086},{"sectionNumber":"183","sectionType":"section","heading":"Authorisations under section 88","content":"183  Authorisations under section 88\n\n (1) An authorisation granted under section 88 (other than former subsection 88(5) or (6A)) that was in force immediately before the commencement time continues in force (and may be dealt with) at and after the commencement time as if:\n\n (a) it were granted under that section as amended by Schedule 9 to the amending Act; and\n\n (b) it specified the following provision or provisions of Part IV:\n\n (i) if the authorisation was granted under former subsection 88(1A)—sections 45AF, 45AG, 45AJ and 45AK;\n\n (ii) if the authorisation was granted under former subsection 88(1)—section 45;\n\n (iii) if the authorisation was granted under former subsection 88(7)—sections 45D, 45DA and 45DB;\n\n (iv) if the authorisation was granted under former subsection 88(7A)—sections 45E and 45EA;\n\n (v) if the authorisation was granted under former subsection 88(8)—section 47;\n\n (vi) if the authorisation was granted under former subsection 88(8A)—section 48;\n\n (vii) if the authorisation was granted under former subsection 88(8B)—section 49;\n\n (viii) if the authorisation was granted under former subsection 88(9)—section 50A.\n\n (2) If:\n\n (a) a valid application for an authorisation under section 88 (other than former subsection 88(5) or (6A)) is made before the commencement time; and\n\n (b) before the commencement time, the Commission has not made a determination in respect of the application under subsection 90(1);\n\nat and after the commencement time, the application is taken to be (and may be dealt with as) an application made under section 88 of the amended Act.\n\n (3) An authorisation granted before the commencement time under section 88 (other than former subsection 88(5) or (6A)) which had not come into force before the commencement time is, after the authorisation comes into force, taken to be (and may be dealt with as) an authorisation:\n\n (a) granted under that section as amended by Schedule 9 to the amending Act; and\n\n (b) that specifies the following provision or provisions of Part IV:\n\n (i) if the authorisation was granted under former subsection 88(1A)—sections 45AF, 45AG, 45AJ and 45AK;\n\n (ii) if the authorisation was granted under former subsection 88(1)—section 45;\n\n (iii) if the authorisation was granted under former subsection 88(7)—sections 45D, 45DA and 45DB;\n\n (iv) if the authorisation was granted under former subsection 88(7A)—sections 45E and 45EA;\n\n (v) if the authorisation was granted under former subsection 88(8)—section 47;\n\n (vi) if the authorisation was granted under former subsection 88(8A)—section 48;\n\n (vii) if the authorisation was granted under former subsection 88(8B)—section 49;\n\n (viii) if the authorisation was granted under former subsection 88(9)—section 50A.","sortOrder":2087},{"sectionNumber":"184","sectionType":"section","heading":"Notices under section 93","content":"184  Notices under section 93\n\n  A notice that was in force under a provision of section 93 immediately before the commencement time continues in force (and may be dealt with) at and after the commencement time as if it had been given under that provision as amended by the amending Act.","sortOrder":2088},{"sectionNumber":"185","sectionType":"section","heading":"Merger clearances and authorisations","content":"185  Merger clearances and authorisations\n\nExisting old law merger clearances and authorisations to be treated as new law merger authorisations\n\n (1) A clearance or authorisation granted under former Division 3 of Part VII that was in force immediately before the commencement time continues in force (and may be dealt with) at and after the commencement time as if:\n\n (a) it were an authorisation granted under section 88 of the amended Act; and\n\n (b) it specified section 50.\n\nOld law continues to apply to applications for merger clearances and authorisations pending at commencement\n\n (2) Despite the repeal of Subdivisions A and B of Division 3 of Part VII by Schedule 9 to the amending Act, those Subdivisions (other than sections 95AH, 95AI, 95AR and 95AS) continue to apply at and after the commencement time, as if the repeal had not happened, in relation to an application for a clearance made under section 95AD before the commencement time, unless:\n\n (a) a determination was made before the commencement time under section 95AM refusing to grant the clearance; or\n\n (b) the clearance came into force before the commencement time.\n\nNote: If a clearance is granted in relation to the application, it is taken to be an authorisation under section 88 that specifies section 50: see subsections (6) and (7).\n\n (3) Despite the repeal of Subdivisions A and C of Division 3 of Part VII by Schedule 9 to the amending Act, those Subdivisions (other than sections 95AZ, 95AZA, 95AZL and 95AZM) continue to apply at and after the commencement time, as if the repeal had not happened, in relation to an application:\n\n (a) made under section 95AU before the commencement time; and\n\n (b) in relation to which a determination under section 95AZG had not been made before the commencement time.\n\nNote: If an authorisation is granted in relation to the application, it is taken to be an authorisation under section 88 that specifies section 50: see subsection (6).\n\nNew law generally applies for review of merger clearance determinations\n\n (4) At and after the commencement time, Part IX as amended by Schedule 9 to the amending Act applies in relation to a determination (a clearance determination) made by the Commission before, at or after the commencement time under former section 95AM in relation to a clearance, as if the clearance determination related to a merger authorisation that is not an overseas merger authorisation.\n\nNote: Former section 95AM is repealed by Schedule 9 to the amending Act, but has a continued limited application: see subsection (2).\n\nOld law continues to apply to review of merger clearance determinations if proceedings are pending at commencement\n\n (5) However, if:\n\n (a) an application for a review of a clearance determination is made under former Division 3 of Part IX before the commencement time; and\n\n (b) the Tribunal has not made its decision on the review before the commencement time;\n\nthen:\n\n (c) subsection (4) does not apply in relation to the clearance determination; and\n\n (d) despite the repeal of that Division by Schedule 9 to the amending Act, that Division continues to apply in relation to the clearance determination at and after the commencement time, as if the repeal had not happened.\n\nOld law merger clearances and authorisations granted or coming into force after commencement to be treated as new law merger authorisations\n\n (6) A clearance or authorisation granted at or after the commencement time in relation to an application made under former section 95AD or 95AU before the commencement time is, after it is granted, taken to be (and may be dealt with as) an authorisation:\n\n (a) granted under section 88 of the amended Act; and\n\n (b) that specifies section 50.\n\nNote: This subsection covers applications processed after the commencement time under the old law as it continues to apply under subsection (2), (3) or (5).\n\n (7) A clearance granted before the commencement time in relation to an application made under former section 95AD which had not come into force before the commencement time is, after the clearance comes into force, taken to be (and may be dealt with as) an authorisation:\n\n (a) granted under section 88 of the amended Act; and\n\n (b) that specifies section 50.\n\nProhibition against providing false or misleading information applies to information given as a result of this section\n\n (8) Section 92 applies to information given to the Commission or Tribunal, at or after the commencement time, under Division 3 of Part VII, or Division 3 of Part IX, as it continues to apply under subsection (2), (3) or (5), in connection with a clearance or authorisation as if the information were information given:\n\n (a) to the Commission or Tribunal under Division 1 of Part VII, or Part IX, of the amended Act; and\n\n (b) in connection with a merger authorisation.\n\nNote: Remedies can be obtained after the commencement time in relation to false or misleading information given to the Commission or Tribunal before the commencement time: see former section 95AZN, and subsection 7(2) of the Acts Interpretation Act 1901.\n\nNormal application of provisions unaffected\n\n (9) Nothing in this section limits the application of Part IX, or section 92, of the amended Act.","sortOrder":2089},{"sectionNumber":"186","sectionType":"section","heading":"Application of repeal of subsection 51(3)","content":"186  Application of repeal of subsection 51(3)\n\n (1) The amendment made by item 1 of Schedule 4 to the Treasury Laws Amendment (2018 Measures No. 5) Act 2019 applies in relation to a licence granted, an assignment made, or a contract, arrangement or understanding entered into, on or after the commencement of that Schedule.\n\n (2) The amendment also applies to a licence granted, an assignment made, or a contract, arrangement or understanding entered into, before the commencement of that Schedule in relation to:\n\n (a) conditions imposed, or provisions included, on or after that commencement; and\n\n (b) conditions imposed, or provisions included, before that commencement.\n\n (3) Despite subsections (1) and (2), the amendment does not apply to the extent (if any) to which its operation 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).","sortOrder":2091},{"sectionNumber":"187","sectionType":"section","heading":"Application of amendments","content":"187  Application of amendments\n\n  The amendments made by Part 2 of Schedule 1 to the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 apply in relation to offences committed on or after the commencement of that Schedule.","sortOrder":2093},{"sectionNumber":"188","sectionType":"section","heading":"Notifications may be made on or after 1 July 2025","content":"188  Notifications may be made on or after 1 July 2025\n\n  Division 3 of Part IVA applies in relation to a notification made on or after 1 July 2025.","sortOrder":2095},{"sectionNumber":"189","sectionType":"section","heading":"Requirement to notify","content":"189  Requirement to notify\n\n (1) Division 2 of Part IVA does not apply in relation to an acquisition to which subsection (2) applies.\n\n (2) This subsection applies to an acquisition if:\n\n (a) between 1 July 2025 and 31 December 2025, the Commission:\n\n (i) grants a merger authorisation for the authorisation; or\n\n (ii) advises a party to the acquisition, in writing, that the Commission does not intend to take action under this Act in relation to a contravention, or possible contravention, of section 50 in relation to the acquisition; and\n\n (b) the acquisition is put into effect during the 12 months starting on the day the Commission grants the merger authorisation or gives the advice.\n\n (3) To avoid doubt, subparagraph (2)(a)(ii) does not:\n\n (a) give the Commission any power, duty or function, including the power, duty or function of giving the advice referred to in that subparagraph or of making a decision in relation to giving such advice; or\n\n (b) limit the ability of the Commission to take any action referred to in that subparagraph; or\n\n (c) affect the operation of any law other than Division 2 of Part IVA.\n\nNotification waiver applications\n\n (4) An application may be made under subsection 51ABU(1) on or after 1 January 2026.","sortOrder":2096},{"sectionNumber":"190","sectionType":"section","heading":"Annual reports by Commission","content":"190  Annual reports by Commission\n\n  Paragraph 171(3)(ab) applies in relation to an annual report for a period ending on or after 30 June 2026.","sortOrder":2097},{"sectionNumber":"191","sectionType":"section","heading":"Amendments of section 50","content":"191  Amendments of section 50\n\n  The amendments made by Division 1 of Part 3 of Schedule 1 to the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 apply in relation to an acquisition that is put into effect on or after 1 January 2026, other than an acquisition to which subsection 189(2) of this Act applies.","sortOrder":2098},{"sectionNumber":"192","sectionType":"section","heading":"Acquisition of property","content":"192  Acquisition of property\n\n (1) The amendments made by Schedule 1 to the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 do not apply in relation to an acquisition if:\n\n (a) apart from this section, the operation of the amendments in relation to the acquisition would result in an acquisition of property from a person otherwise than on just terms; and\n\n (b) the acquisition of property would be invalid because of paragraph 51(xxxi) of the Constitution.\n\n (2) In this section:\n\nacquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\njust terms has the same meaning as in paragraph 51(xxxi) of the Constitution.","sortOrder":2099},{"sectionNumber":"193","sectionType":"section","heading":"Application of amendments","content":"193  Application of amendments\n\n  The amendments made by item 5 of Schedule 1 to the Treasury Laws Amendment (Doubling Penalties for ACCC Enforcement) Act 2026 apply in relation to offences committed on or after the commencement of that Schedule.","sortOrder":2101},{"sectionNumber":"194","sectionType":"section","heading":"Application of amendments","content":"194  Application of amendments\n\n (1) The amendments made by Parts 1 and 2 of Schedule 4 to the Treasury Laws Amendment (Strengthening Accountability for Tax Adviser Misconduct and Other Measures) Act 2026 apply in relation to an acquisition that is put into effect, or purportedly put into effect, on or after the commencement of that Schedule.\n\n (2) The amendments made by Part 3 of Schedule 4 to the Treasury Laws Amendment (Strengthening Accountability for Tax Adviser Misconduct and Other Measures) Act 2026 apply in relation to a notification of an acquisition if either of the following determinations:\n\n (a) a determination under paragraph 51ABZE(1)(a) in respect of the notification;\n\n (b) a determination under paragraph 51ABZW(1)(a) in respect of a public benefit application that relates to the notification;\n\nis made after the day that is 12 months before the commencement of that Schedule.","sortOrder":2103},{"sectionNumber":"Schedule 1","sectionType":"schedule","heading":"The Schedule version of Part IV","content":"Schedule 1—The Schedule version of Part IV","sortOrder":2104},{"sectionNumber":"Sch 1 Part 1","sectionType":"part","heading":"Schedule version of Part IV","content":"Part 1—Schedule version of Part IV\n\nNote: See section 150A.","sortOrder":2105},{"sectionNumber":"Sch 1 Division 1","sectionType":"division","heading":"Cartel conduct","content":"Division 1—Cartel conduct","sortOrder":2106},{"sectionNumber":"Sch 1 Subdivision A","sectionType":"subdivision","heading":"Introduction","content":"Subdivision A—Introduction","sortOrder":2107},{"sectionNumber":"Sch 1 s 45AA","sectionType":"section","heading":"Simplified outline","content":"45AA  Simplified outline\n\n  The following is a simplified outline of this Division:\n\n• This Division sets out parallel offences and civil penalty provisions relating to cartel conduct.\n\n• A person must not make, or give effect to, a contract, arrangement or understanding that contains a cartel provision.\n\n• A cartel provision is a provision relating to:\n\n (a) price‑fixing; or\n\n (b) restricting outputs in the production and supply chain; or\n\n (c) allocating customers, suppliers or territories; or\n\n (d) bid‑rigging;\n\n by parties that are, or would otherwise be, in competition with each other.","sortOrder":2108},{"sectionNumber":"Sch 1 s 45AB","sectionType":"section","heading":"Definitions","content":"45AB  Definitions\n\n  In this Division:\n\nbenefit includes any advantage and is not limited to property.\n\nbid includes:\n\n (a) tender; and\n\n (b) the taking, by a potential bidder or tenderer, of a preliminary step in a bidding or tendering process.\n\nevidential 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.\n\nknowledge has the same meaning as in the Criminal Code.\n\nlikely, in relation to any of the following:\n\n (a) a supply of goods or services;\n\n (b) an acquisition of goods or services;\n\n (c) the production of goods;\n\n (d) the capacity to supply services;\n\nincludes a possibility that is not remote.\n\nobtaining includes:\n\n (a) obtaining for another person; and\n\n (b) inducing a third person to do something that results in another person obtaining.\n\nparty has a meaning affected by section 45AC.\n\nproduction includes manufacture, processing, treatment, assembly, disassembly, renovation, restoration, growing, raising, mining, extraction, harvesting, fishing, capturing and gathering.","sortOrder":2109},{"sectionNumber":"Sch 1 s 45AC","sectionType":"section","heading":"Extended meaning of party","content":"45AC  Extended meaning of party\n\n  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.","sortOrder":2110},{"sectionNumber":"Sch 1 s 45AD","sectionType":"section","heading":"Cartel provisions","content":"45AD  Cartel provisions\n\n (1) For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if:\n\n (a) either of the following conditions is satisfied in relation to the provision:\n\n (i) the purpose/effect condition set out in subsection (2);\n\n (ii) the purpose condition set out in subsection (3); and\n\n (b) the competition condition set out in subsection (4) is satisfied in relation to the provision.\n\nPurpose/effect condition\n\n (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:\n\n (a) fixing, controlling or maintaining; or\n\n (b) providing for the fixing, controlling or maintaining of;\n\nthe price for, or a discount, allowance, rebate or credit in relation to:\n\n (c) goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or\n\n (d) goods or services acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or\n\n (e) goods or services re‑supplied, or likely to be re‑supplied, by persons or classes of persons to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or\n\n (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.\n\nNote 1: The purpose/effect condition can be satisfied when a provision is considered with related provisions—see subsection (8).\n\nNote 2: Party has an extended meaning—see section 45AC.\n\nPurpose condition\n\n (3) The purpose condition is satisfied if the provision has the purpose of directly or indirectly:\n\n (a) preventing, restricting or limiting:\n\n (i) the production, or likely production, of goods by any or all of the parties to the contract, arrangement or understanding; or\n\n (ii) the capacity, or likely capacity, of any or all of the parties to the contract, arrangement or understanding to supply services; or\n\n (iii) the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or\n\n (iv) the acquisition, or likely acquisition, of goods or services from persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or\n\n (b) allocating between any or all of the parties to the contract, arrangement or understanding:\n\n (i) the persons or classes of persons who have acquired, or who are likely to acquire, goods or services from any or all of the parties to the contract, arrangement or understanding; or\n\n (ii) the persons or classes of persons who have supplied, or who are likely to supply, goods or services to any or all of the parties to the contract, arrangement or understanding; or\n\n (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\n\n (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\n\n (c) ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services:\n\n (i) one or more parties to the contract, arrangement or understanding bid, but one or more other parties do not; or\n\n (ii) 2 or more parties to the contract, arrangement or understanding bid, but at least 2 of them do so on the basis that one of those bids is more likely to be successful than the others; or\n\n (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\n\n (iv) 2 or more parties to the contract, arrangement or understanding bid and proceed with their bids, but at least 2 of them proceed with their bids on the basis that one of those bids is more likely to be successful than the others; or\n\n (v) 2 or more parties to the contract, arrangement or understanding bid, but a material component of at least one of those bids is worked out in accordance with the contract, arrangement or understanding.\n\nNote 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.\n\nNote 2: The purpose condition can be satisfied when a provision is considered with related provisions—see subsection (9).\n\nNote 3: Party has an extended meaning—see section 45AC.\n\nCompetition condition\n\n (4) The competition condition is satisfied if at least 2 of the parties to the contract, arrangement or understanding:\n\n (a) are or are likely to be; or\n\n (b) but for any contract, arrangement or understanding, would be or would be likely to be;\n\nin competition with each other in relation to:\n\n (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 in trade or commerce; or\n\n (d) if paragraph (2)(d) or (3)(b) applies in relation to an acquisition, or likely acquisition, of goods or services—the acquisition of those goods or services in trade or commerce; or\n\n (e) if paragraph (2)(e) or (f) applies in relation to a re‑supply, or likely re‑supply, of goods or services—the supply of those goods or services in trade or commerce to that re‑supplier; or\n\n (f) if subparagraph (3)(a)(i) applies in relation to preventing, restricting or limiting the production, or likely production, of goods—the production of those goods in trade or commerce; or\n\n (g) if subparagraph (3)(a)(ii) applies in relation to preventing, restricting or limiting the capacity, or likely capacity, to supply services—the supply of those services in trade or commerce; or\n\n (h) if subparagraph (3)(a)(iii) applies in relation to preventing, restricting or limiting the supply, or likely supply, of goods or services—the supply of those goods or services in trade or commerce; or\n\n (i) if subparagraph (3)(a)(iv) applies in relation to preventing, restricting or limiting the acquisition, or likely acquisition, of goods or services—the acquisition of those goods or services in trade or commerce; or\n\n (j) if paragraph (3)(c) applies in relation to a supply of goods or services—the supply of those goods or services in trade or commerce; or\n\n (k) if paragraph (3)(c) applies in relation to an acquisition of goods or services—the acquisition of those goods or services in trade or commerce.\n\nNote 1: Party has an extended meaning—see section 45AC.\n\nNote 2: Trade or commerce is defined in section 4 to mean trade or commerce within Australia or between Australia and places outside Australia.\n\nImmaterial whether identities of persons can be ascertained\n\n (5) It is immaterial whether the identities of the persons referred to in paragraph (2)(e) or (f) or subparagraph (3)(a)(iii) or (iv) or (b)(i) or (ii) can be ascertained.\n\nRecommending prices etc.\n\n (6) For the purposes of this Division, a provision of a contract, arrangement or understanding is not taken:\n\n (a) to have the purpose mentioned in subsection (2); or\n\n (b) to have, or be likely to have, the effect mentioned in subsection (2);\n\nby reason only that it recommends, or provides for the recommending of, a price, discount, allowance, rebate or credit.\n\nImmaterial whether particular circumstances or particular conditions\n\n (7) It is immaterial whether:\n\n (a) for the purposes of subsection (2), subparagraphs (3)(a)(iii) and (iv) and paragraphs (3)(b) and (c)—a supply or acquisition happens, or a likely supply or likely acquisition is to happen, in particular circumstances or on particular conditions; and\n\n (b) for the purposes of subparagraph (3)(a)(i)—the production happens, or the likely production is to happen, in particular circumstances or on particular conditions; and\n\n (c) for the purposes of subparagraph (3)(a)(ii)—the capacity exists, or the likely capacity is to exist, in particular circumstances or on particular conditions.\n\nConsidering related provisions—purpose/effect condition\n\n (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:\n\n (a) the other provisions of the contract, arrangement or understanding;\n\n (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first‑mentioned contract, arrangement or understanding;\n\nhas that purpose, or has or is likely to have that effect.\n\nConsidering related provisions—purpose condition\n\n (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:\n\n (a) the other provisions of the contract, arrangement or understanding;\n\n (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first‑mentioned contract, arrangement or understanding;\n\nhas that purpose.\n\nPurpose/effect of a provision\n\n (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:\n\n (a) the form of the provision; or\n\n (b) the form of the contract, arrangement or understanding; or\n\n (c) any description given to the provision, or to the contract, arrangement or understanding, by the parties.\n\nPurpose of a provision\n\n (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:\n\n (a) the form of the provision; or\n\n (b) the form of the contract, arrangement or understanding; or\n\n (c) any description given to the provision, or to the contract, arrangement or understanding, by the parties.","sortOrder":2111},{"sectionNumber":"Sch 1 s 45AE","sectionType":"section","heading":"Meaning of expressions in other provisions of this Act","content":"45AE  Meaning of expressions in other provisions of this Act\n\n  In determining the meaning of an expression used in a provision of this Act (other than this Division, subsection 6(2C), paragraph 76(1B)(b) or subsection 93AB(1A)), this Division is to be disregarded.","sortOrder":2112},{"sectionNumber":"Sch 1 Subdivision B","sectionType":"subdivision","heading":"Offences etc.","content":"Subdivision B—Offences etc.","sortOrder":2113},{"sectionNumber":"Sch 1 s 45AF","sectionType":"section","heading":"Making a contract etc. containing a cartel provision","content":"45AF  Making a contract etc. containing a cartel provision\n\nOffence\n\n (1) A person commits an offence if:\n\n (a) the person makes a contract or arrangement, or arrives at an understanding; and\n\n (b) the contract, arrangement or understanding contains a cartel provision.\n\n (2) The fault element for paragraph (1)(b) is knowledge or belief.\n\nPenalty\n\n (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:\n\n (a) $100,000,000;\n\n (b) if the court can determine the total value of the benefits that:\n\n (i) have been obtained by one or more persons; and\n\n (ii) are reasonably attributable to the commission of the offence;\n\n  3 times that total value;\n\n (c) if the court cannot determine the total value of those benefits—30% of the corporation’s adjusted turnover during the breach turnover period for the offence.\n\n (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.\n\nIndictable offence\n\n (5) An offence against subsection (1) is an indictable offence.","sortOrder":2114},{"sectionNumber":"Sch 1 s 45AG","sectionType":"section","heading":"Giving effect to a cartel provision","content":"45AG  Giving effect to a cartel provision\n\nOffence\n\n (1) A person commits an offence if:\n\n (a) a contract, arrangement or understanding contains a cartel provision; and\n\n (b) the person gives effect to the cartel provision.\n\n (2) The fault element for paragraph (1)(a) is knowledge or belief.\n\nPenalty\n\n (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:\n\n (a) $100,000,000;\n\n (b) if the court can determine the total value of the benefits that:\n\n (i) have been obtained by one or more persons; and\n\n (ii) are reasonably attributable to the commission of the offence;\n\n  3 times that total value;\n\n (c) if the court cannot determine the total value of those benefits—30% of the corporation’s adjusted turnover during the breach turnover period for the offence.\n\n (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.\n\nPre‑commencement contracts etc.\n\n (5) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section.\n\nIndictable offence\n\n (6) An offence against subsection (1) is an indictable offence.","sortOrder":2115},{"sectionNumber":"Sch 1 s 45AH","sectionType":"section","heading":"Determining guilt","content":"45AH  Determining guilt\n\n (1) A person may be found guilty of an offence against section 45AF or 45AG even if:\n\n (a) each other party to the contract, arrangement or understanding is a person who is not criminally responsible; or\n\n (b) subject to subsection (2), all other parties to the contract, arrangement or understanding have been acquitted of the offence.\n\nNote: Party has an extended meaning—see section 45AC.\n\n (2) A person cannot be found guilty of an offence against section 45AF or 45AG if:\n\n (a) all other parties to the contract, arrangement or understanding have been acquitted of such an offence; and\n\n (b) a finding of guilt would be inconsistent with their acquittal.","sortOrder":2116},{"sectionNumber":"Sch 1 s 45AI","sectionType":"section","heading":"Court may make related civil orders","content":"45AI  Court may make related civil orders\n\n  If a prosecution against a person for an offence against section 45AF or 45AG is being, or has been, heard by a court, the court may:\n\n (a) grant an injunction under section 80 against the person in relation to:\n\n (i) the conduct that constitutes, or is alleged to constitute, the offence; or\n\n (ii) other conduct of that kind; or\n\n (b) make an order under section 86C, 86D, 86E or 87 in relation to the offence.","sortOrder":2117},{"sectionNumber":"Sch 1 s 45AIA","sectionType":"section","heading":"Section 4AB of the Crimes Act does not apply","content":"45AIA  Section 4AB of the Crimes Act does not apply\n\n  Section 4AB of the Crimes Act 1914 does not apply to any provision of this Subdivision.","sortOrder":2118},{"sectionNumber":"Sch 1 Subdivision C","sectionType":"subdivision","heading":"Civil penalty provisions","content":"Subdivision C—Civil penalty provisions","sortOrder":2119},{"sectionNumber":"Sch 1 s 45AJ","sectionType":"section","heading":"Making a contract etc. containing a cartel provision","content":"45AJ  Making a contract etc. containing a cartel provision\n\n  A person contravenes this section if:\n\n (a) the person makes a contract or arrangement, or arrives at an understanding; and\n\n (b) the contract, arrangement or understanding contains a cartel provision.\n\nNote: For enforcement, see Part VI.","sortOrder":2120},{"sectionNumber":"Sch 1 s 45AK","sectionType":"section","heading":"Giving effect to a cartel provision","content":"45AK  Giving effect to a cartel provision\n\n (1) A person contravenes this section if:\n\n (a) a contract, arrangement or understanding contains a cartel provision; and\n\n (b) the person gives effect to the cartel provision.\n\nNote: For enforcement, see Part VI.\n\n (2) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section.","sortOrder":2121},{"sectionNumber":"Sch 1 Subdivision D","sectionType":"subdivision","heading":"Exceptions","content":"Subdivision D—Exceptions","sortOrder":2122},{"sectionNumber":"Sch 1 s 45AL","sectionType":"section","heading":"Conduct notified","content":"45AL  Conduct notified\n\n (1) Sections 45AF, 45AG, 45AJ and 45AK do not apply to a person in relation to a contract, arrangement or understanding containing a cartel provision, in so far as:\n\n (a) the cartel provision:\n\n (i) has the purpose, or has or is likely to have the effect, mentioned in subsection 45AD(2); or\n\n (ii) has the purpose mentioned in a paragraph of subsection 45AD(3) other than paragraph (c); and\n\n (b) the person has given the Commission a collective bargaining notice under subsection 93AB(1A) setting out particulars of the contract, arrangement or understanding; and\n\n (c) the notice is in force under section 93AD.\n\n (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.","sortOrder":2123},{"sectionNumber":"Sch 1 s 45AM","sectionType":"section","heading":"Cartel provision subject to grant of authorisation","content":"45AM  Cartel provision subject to grant of authorisation\n\n (1) Sections 45AF and 45AJ do not apply in relation to the making of a contract that contains a cartel provision if:\n\n (a) the contract is subject to a condition that the provision will not come into force unless and until the person is granted an authorisation to give effect to the provision; and\n\n (b) the person applies for the grant of such an authorisation within 14 days after the contract is made.\n\n (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.","sortOrder":2124},{"sectionNumber":"Sch 1 s 45AMA","sectionType":"section","heading":"Acquisition subject to notification","content":"45AMA  Acquisition subject to notification\n\n (1) Sections 45AF and 45AJ do not apply in relation to the making of a contract that contains a cartel provision, in so far as the cartel provision provides for an acquisition if the contract is subject to a condition that the provision will not come into force unless and until the acquisition becomes a notified acquisition.\n\n (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.","sortOrder":2125},{"sectionNumber":"Sch 1 s 45AN","sectionType":"section","heading":"Contracts, arrangements or understandings between related bodies corporate","content":"45AN  Contracts, arrangements or understandings between related bodies corporate\n\n (1) Sections 45AF, 45AG, 45AJ and 45AK 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.\n\n (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.","sortOrder":2126},{"sectionNumber":"Sch 1 s 45AO","sectionType":"section","heading":"Joint ventures—prosecution","content":"45AO  Joint ventures—prosecution\n\n (1) Sections 45AF and 45AG do not apply in relation to a contract, arrangement or understanding containing a cartel provision if the defendant proves that:\n\n (a) the cartel provision is:\n\n (i) for the purposes of a joint venture; and\n\n (ii) reasonably necessary for undertaking the joint venture; and\n\n (b) the joint venture is for any one or more of the following:\n\n (i) production of goods;\n\n (ii) supply of goods or services;\n\n (iii) acquisition of goods or services; and\n\n (c) the joint venture is not carried on for the purpose of substantially lessening competition; and\n\n (d) in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the contract, arrangement or understanding; and\n\n (e) in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the contract, arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of:\n\n (i) their joint control; or\n\n (ii) their ownership of shares in the capital;\n\n  of that body corporate.\n\nNote: 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.\n\n (2) A defendant who wishes to rely on subsection (1) must prove that matter on the balance of probabilities.","sortOrder":2127},{"sectionNumber":"Sch 1 s 45AP","sectionType":"section","heading":"Joint ventures—civil penalty proceedings","content":"45AP  Joint ventures—civil penalty proceedings\n\n (1) Sections 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision if the defendant proves that:\n\n (a) the cartel provision is:\n\n (i) for the purposes of a joint venture; and\n\n (ii) reasonably necessary for undertaking the joint venture; and\n\n (b) the joint venture is for any one or more of the following:\n\n (i) production of goods;\n\n (ii) supply of goods or services;\n\n (iii) acquisition of goods or services; and\n\n (c) the joint venture is not carried on for the purpose of substantially lessening competition; and\n\n (d) in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the contract, arrangement or understanding; and\n\n (e) in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the contract, arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of:\n\n (i) their joint control; or\n\n (ii) their ownership of shares in the capital;\n\n  of that body corporate.\n\nNote: 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.\n\n (2) A defendant who wishes to rely on subsection (1) must prove that matter on the balance of probabilities.","sortOrder":2128},{"sectionNumber":"Sch 1 s 45AQ","sectionType":"section","heading":"Resale price maintenance","content":"45AQ  Resale price maintenance\n\n (1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision relates to:\n\n (a) conduct that contravenes section 48; or\n\n (b) conduct that would contravene section 48 but for the operation of section 88; or\n\n (c) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply.\n\n (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.","sortOrder":2129},{"sectionNumber":"Sch 1 s 45AR","sectionType":"section","heading":"Exclusive dealing","content":"45AR  Exclusive dealing\n\n (1) Sections 45AF and 45AJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as giving effect to the cartel provision would, or would but for the operation of subsection 47(10) or section 88 or 93, constitute a contravention of section 47.\n\n (2) Sections 45AG and 45AK do not apply in relation to the giving effect to a cartel provision by way of:\n\n (a) engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or section 88 or 93 contravene, section 47; or\n\n (b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when:\n\n (i) an authorisation under section 88 is in force in relation to conduct engaged in by that person on that condition; or\n\n (ii) by reason of subsection 93(7), conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or\n\n (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.\n\n (3) A person who wishes to rely on subsection (1) or (2) bears an evidential burden in relation to that matter.","sortOrder":2130},{"sectionNumber":"Sch 1 s 45AS","sectionType":"section","heading":"Dual listed company arrangement","content":"45AS  Dual listed company arrangement\n\n (1) Sections 45AF and 45AJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as:\n\n (a) the contract, arrangement or understanding is a dual listed company arrangement; and\n\n (b) the making of the contract, arrangement or understanding would, or would apart from section 88, contravene section 49.\n\n (2) Sections 45AG and 45AK do not apply in relation to the giving effect to a cartel provision, in so far as:\n\n (a) the cartel provision is a provision of a dual listed company arrangement; and\n\n (b) the giving effect to the cartel provision would, or would apart from section 88, contravene section 49.\n\n (3) A person who wishes to rely on subsection (1) or (2) bears an evidential burden in relation to that matter.","sortOrder":2131},{"sectionNumber":"Sch 1 s 45AT","sectionType":"section","heading":"Acquisition of shares or assets","content":"45AT  Acquisition of shares or assets\n\n (1) Sections 45AF, 45AG, 45AJ and 45AK 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:\n\n (a) any shares in the capital of a body corporate; or\n\n (b) any assets of a person.\n\n (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.\n\n (3) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision provides for an acquisition, if the acquisition is a notified acquisition.\n\n (4) A person who wishes to rely on subsection (3) bears an evidential burden in relation to that matter.","sortOrder":2132},{"sectionNumber":"Sch 1 s 45AU","sectionType":"section","heading":"Collective acquisition of goods or services by the parties to a contract, arrangement or understanding","content":"45AU  Collective acquisition of goods or services by the parties to a contract, arrangement or understanding\n\n (1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as:\n\n (a) the cartel provision has the purpose, or has or is likely to have the effect, mentioned in subsection 45AD(2); and\n\n (b) either:\n\n (i) the cartel provision relates to the price for goods or services to be collectively acquired, whether directly or indirectly, by the parties to the contract, arrangement or understanding; or\n\n (ii) the cartel provision is for the joint advertising of the price for the re‑supply of goods or services so acquired.\n\n (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.","sortOrder":2133},{"sectionNumber":"Sch 1 Division 1A","sectionType":"division","heading":"Acquisitions","content":"Division 1A—Acquisitions","sortOrder":2134},{"sectionNumber":"Sch 1 s 45AV","sectionType":"section","heading":"Purportedly putting acquisitions into effect","content":"45AV  Purportedly putting acquisitions into effect\n\n (1) A reference in this Division to putting an acquisition into effect includes a reference to purportedly putting the acquisition into effect.\n\n (2) A person purportedly puts into effect an acquisition if the person engages in conduct that, apart from this Division, would constitute putting the acquisition into effect.","sortOrder":2136},{"sectionNumber":"Sch 1 s 45AW","sectionType":"section","heading":"Commission must be notified of acquisitions","content":"45AW  Commission must be notified of acquisitions\n\n  A person contravenes this section if:\n\n (a) the person is a principal party to an acquisition; and\n\n (b) the acquisition is required to be notified; and\n\n (c) the acquisition is put into effect; and\n\n (d) when the acquisition is put into effect:\n\n (i) the acquisition is not a notified acquisition; or\n\n (ii) no notification of the acquisition has an effective notification date (see section 51ABZ); or\n\n (iii) the latest notification of the acquisition that has an effective notification date is stale.\n\nNote 1: For when an acquisition is required to be notified, see Division 2 of Part IVA.\n\nNote 2: For when an acquisition is stale, see section 51ABG.\n\nNote 3: For enforcement, see Part VI.","sortOrder":2138},{"sectionNumber":"Sch 1 s 45AX","sectionType":"section","heading":"Commission must be notified of material changes of fact in relation to notified acquisitions","content":"45AX  Commission must be notified of material changes of fact in relation to notified acquisitions\n\n (1) This section applies if:\n\n (a) a person is the notifying party of a notification of an acquisition; and\n\n (b) a change of fact occurs; and\n\n (c) the change of fact is material to the Commission making a determination under subsection 51ABZE(1) in respect of the notification; and\n\n (d) the person becomes aware of the change of fact at a time:\n\n (i) occurring on or after the effective notification date of the notification; and\n\n (ii) at which the Commission has not decided to cease considering the notification under section 51ABZD; and\n\n (iii) at which the Commission has not made a determination in respect of the notification under subsection 51ABZE(1); and\n\n (iv) if the notification is subject to phase 2 review—occurring at least 15 business days (within the meaning of section 51ABK) before the end of the phase 2 determination period for the notification.\n\n (2) For the purposes of this section, the person is taken to become aware of the change of fact at the earliest time at which the person is:\n\n (a) aware of the change of fact; and\n\n (b) aware that the change of fact is material in the way described in paragraph (1)(c).\n\n (3) This section also applies if:\n\n (a) a person is the notifying party of a notification of an acquisition; and\n\n (b) the notifying party has made a public benefit application in relation to the notification; and\n\n (c) a change of fact occurs; and\n\n (d) the change of fact is material to the Commission making a determination under subsection 51ABZW(1) in respect of the application; and\n\n (e) the person becomes aware of the change of fact at a time:\n\n (i) occurring on or after the effective application date of the application; and\n\n (ii) at which the Commission has not decided to cease considering the application under section 51ABZV; and\n\n (iii) at which the Commission has not made a determination under subsection 51ABZW(1) in respect of the application.\n\n (4) For the purposes of this section, the person is taken to become aware of the change of fact at the earliest time at which the person is:\n\n (a) aware of the change of fact; and\n\n (b) aware that the change of fact is material in the way described in paragraph (3)(d).\n\n (5) The person contravenes this subsection if the Commission is not notified of the change of fact, as soon as practicable after the person becomes aware of the change, by:\n\n (a) if the person is the only notifying party of the notification of the acquisition—the person; or\n\n (b) otherwise—all of the notifying parties jointly.\n\nNote: For enforcement, see Part VI.\n\n (6) For the purposes of this section, a person who ought reasonably to be aware of something is taken to be aware of it.","sortOrder":2139},{"sectionNumber":"Sch 1 s 45AY","sectionType":"section","heading":"Stayed acquisitions must not be put into effect","content":"45AY  Stayed acquisitions must not be put into effect\n\n  A person contravenes this section if:\n\n (a) the person puts an acquisition into effect; and\n\n (b) the acquisition is stayed.\n\nNote 1: For when an acquisition is stayed, see section 51ABE.\n\nNote 2: For enforcement, see Part VI.","sortOrder":2140},{"sectionNumber":"Sch 1 s 45AZ","sectionType":"section","heading":"Conditions must be complied with","content":"45AZ  Conditions must be complied with\n\n (1) This section applies to a person who puts a notified acquisition into effect, if putting the acquisition into effect is subject to conditions.\n\nNote: For when putting an acquisition into effect is subject to conditions, see section 51ABH.\n\n (2) The person contravenes this subsection if any of those conditions are not complied with.\n\nNote: For enforcement, see Part VI.","sortOrder":2141},{"sectionNumber":"Sch 1 s 45AZA","sectionType":"section","heading":"Certain stayed acquisitions void if put into effect","content":"45AZA  Certain stayed acquisitions void if put into effect\n\n (1) This section applies to an acquisition that:\n\n (a) is stayed because of subsection 51ABE(3), (4) or (5); and\n\n (b) is put into effect, or purportedly put into effect, in contravention of section 45AY.\n\n (2) The acquisition is, and is taken always to have been, void by force of this subsection.","sortOrder":2143},{"sectionNumber":"Sch 1 s 45AZB","sectionType":"section","heading":"Providing false or misleading information","content":"45AZB  Providing false or misleading information\n\n  A person contravenes this section if:\n\n (a) the person gives information to the Commission or the Tribunal under an acquisitions provision; and\n\n (b) the information is false or misleading in a material particular; and\n\n (c) the person knows that, or is reckless as to whether, the information is false or misleading in a material particular.\n\nNote: For enforcement, see Part VI.","sortOrder":2145},{"sectionNumber":"Sch 1 Division 2","sectionType":"division","heading":"Other provisions","content":"Division 2—Other provisions","sortOrder":2146},{"sectionNumber":"Sch 1 s 45","sectionType":"section","heading":"Contracts, arrangements or understandings that restrict dealings or affect competition","content":"45  Contracts, arrangements or understandings that restrict dealings or affect competition\n\n (1) A person must not:\n\n (a) make a contract or arrangement, or arrive at an understanding, if a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or\n\n (b) give effect to a provision of a contract, arrangement or understanding, if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition; or\n\n (c) engage with one or more other persons in a concerted practice that has the purpose, or has or is likely to have the effect, of substantially lessening competition.\n\n (2) Paragraph (1)(b) applies in relation to contracts or arrangements made, or understandings arrived at, before or after the commencement of this section.\n\n (3) For the purposes of this section, competition means:\n\n (a) in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding—competition in any market in which:\n\n (i) a person who is a party to the contract, arrangement or understanding, or would be a party to the proposed contract, arrangement or understanding; or\n\n (ii) any body corporate related to such a person;\n\n  supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services; or\n\n (b) in relation to a concerted practice—competition in any market in which:\n\n (i) a person who is a party to the practice; or\n\n (ii) any body corporate related to such a person;\n\n  supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the practice, supply or acquire, or be likely to supply or acquire, goods or services.\n\n (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:\n\n (a) the other provisions of that contract, arrangement or understanding or proposed contract, arrangement or understanding; and\n\n (b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the person or a body corporate related to the person is or would be a party;\n\ntogether have or are likely to have that effect.\n\n (5) This section does not apply to or in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, or to or in relation to a concerted practice, in so far as the provision or practice relates to:\n\n (a) conduct that contravenes section 48; or\n\n (b) conduct that would contravene section 48 if subsection 48(2) did not apply; or\n\n (c) conduct that would contravene section 48 if it were not authorised under section 88; or\n\n (d) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply.\n\n (5A) The making of a contract, arrangement or understanding does not constitute a contravention of this section because the contract, arrangement or understanding contains a provision the giving effect to which would, or would apart from subsection 47(10) or section 88 or 93, constitute a contravention of section 47.\n\n (6) This section does not apply to or in relation to the giving effect to a provision of a contract, arrangement or understanding, or to or in relation to engaging in a concerted practice, by way of:\n\n (a) engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or section 88 or 93 contravene, section 47; or\n\n (b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when:\n\n (i) an authorisation under section 88 is in force in relation to conduct engaged in by that person on that condition; or\n\n (ii) by reason of subsection 93(7) conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or\n\n (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.\n\n (6A) The following conduct:\n\n (a) the making of a dual listed company arrangement;\n\n (b) the giving effect to a provision of a dual listed company arrangement;\n\ndoes not contravene this section if the conduct would, or would apart from section 88, contravene section 49.\n\n (7) This section does not apply to or in relation to:\n\n (a) a contract, arrangement or understanding to the extent that the contract, arrangement or understanding directly or indirectly provides for; or\n\n (b) a proposed contract, arrangement or understanding to the extent that the proposed contract, arrangement or understanding would directly or indirectly provide for; or\n\n (c) a concerted practice to the extent that the practice directly or indirectly involves;\n\nthe acquisition of any shares in the capital of a body corporate or any assets of a person or a notified acquisition.\n\n (8) This section does not apply to or in relation to:\n\n (a) a contract, arrangement or understanding, or\n\n (b) a proposed contract, arrangement or understanding; or\n\n (c) a concerted practice;\n\nthe only parties to which are or would be bodies corporate that are related to each other.\n\n (8AA) This section does not apply to or in relation to a concerted practice if the only persons engaging in it are or would be:\n\n (a) the Crown in right of the Commonwealth and one or more authorities of the Commonwealth; or\n\n (b) the Crown in right of a State or Territory and one or more authorities of that State or Territory.\n\n (8A) Subsection (1) does not apply to a person engaging in conduct described in that subsection if:\n\n (a) the person has given the Commission a collective bargaining notice under subsection 93AB(1) describing the conduct; and\n\n (b) the notice is in force under section 93AD.\n\n (8B) The making by a person of a contract is not a contravention of subsection (1) to the extent that the contract provides for an acquisition, if the contract is subject to a condition that the provision of the contract will not come into force unless and until the acquisition becomes a notified acquisition.\n\n (8C) Nothing in subsection (8B) prevents the giving effect by a person to such a provision of a contract from constituting a contravention of subsection (1).\n\n (9) The making by a person of a contract that contains a provision in relation to which the person intends to apply for an authorisation under section 88 is not a contravention of subsection (1) of this section if:\n\n (a) the contract is subject to a condition that the provision will not come into force unless and until the person is granted an authorisation to give effect to the provision; and\n\n (b) the person applies for the grant of such an authorisation within 14 days after the contract is made;\n\nbut nothing in this subsection prevents the giving effect by a person to such a provision from constituting a contravention of subsection (1).","sortOrder":2147},{"sectionNumber":"Sch 1 s 45D","sectionType":"section","heading":"Secondary boycotts for the purpose of causing substantial loss or damage","content":"45D  Secondary boycotts for the purpose of causing substantial loss or damage\n\n (1) A person must not, in concert with a second person, engage in conduct:\n\n (a) that hinders or prevents:\n\n (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\n\n (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\n\n (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.\n\nNote 1: Conduct that would otherwise contravene this section can be authorised under section 88.\n\nNote 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.\n\n (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.","sortOrder":2148},{"sectionNumber":"Sch 1 s 45DA","sectionType":"section","heading":"Secondary boycotts for the purpose of causing substantial lessening of competition","content":"45DA  Secondary boycotts for the purpose of causing substantial lessening of competition\n\n (1) A person must not, in concert with a second person, engage in conduct:\n\n (a) that hinders or prevents:\n\n (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\n\n (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\n\n (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing a substantial lessening of competition in any market in which the fourth person supplies or acquires goods or services.\n\nNote 1: Conduct that would otherwise contravene this section can be authorised under section 88.\n\nNote 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.\n\n (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.\n\nNote: This version of Part IV does not contain an equivalent of section 45DB of the Competition and Consumer Act 2010.","sortOrder":2149},{"sectionNumber":"Sch 1 s 45DC","sectionType":"section","heading":"Involvement and liability of employee organisations","content":"45DC  Involvement and liability of employee organisations\n\nCertain organisations taken to be acting in concert\n\n (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:\n\n (a) to engage in that conduct in concert with the participants; and\n\n (b) to have engaged in that conduct for the purposes for which the participants engaged in it.\n\nConsequences of organisation contravening subsection 45D(1) or 45DA(1)\n\n (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).\n\nLoss or damage taken to have been caused by organisation’s conduct\n\n (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.\n\nTaking proceedings if organisation is a body corporate\n\n (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.\n\nTaking proceedings if organisation is not a body corporate\n\n (5) If the organisation is not a body corporate:\n\n (a) a proceeding in respect of the conduct may be brought under section 77, 80 or 82 against an officer of the organisation as a representative of the organisation’s members and the proceeding is taken to be a proceeding against all the persons who were members of the organisation at the time when the conduct was engaged in; and\n\n (b) subsection 76(2) does not prevent an order being made in a proceeding mentioned in paragraph (a) that was brought under section 77; and\n\n (c) the maximum pecuniary penalty that may be imposed in a proceeding mentioned in paragraph (a) that was brought under section 77 is the penalty applicable under section 76 in relation to a body corporate; and\n\n (d) except as provided by paragraph (a), a proceeding in respect of the conduct must not be brought under section 77 or 82 against any of the members or officers of the organisation; and\n\n (e) for the purpose of enforcing any judgment or order given or made in a proceeding mentioned in paragraph (a) that was brought under section 77 or 82, process may be issued and executed against the following property or interests as if the organisation were a body corporate and the absolute owner of the property or interests:\n\n (i) any property of the organisation or of any branch or part of the organisation, whether vested in trustees or however otherwise held;\n\n (ii) any property in which the organisation or any branch or part of the organisation has a beneficial interest, whether vested in trustees or however otherwise held;\n\n (iii) any property in which any members of the organisation or of a branch or part of the organisation have a beneficial interest in their capacity as members, whether vested in trustees or however otherwise held; and\n\n (f) if paragraph (e) applies, no process is to be issued or executed against any property of members or officers of the organisation or of a branch or part of the organisation except as provided in that paragraph.","sortOrder":2150},{"sectionNumber":"Sch 1 s 45DD","sectionType":"section","heading":"Situations in which boycotts permitted","content":"45DD  Situations in which boycotts permitted\n\nDominant purpose of conduct relates to employment matters—conduct by a person\n\n (1) A person does not contravene, and is not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person.\n\nDominant purpose of conduct relates to employment matters—conduct by employee organisation and employees\n\n (2) If:\n\n (a) an employee, or 2 or more employees who are employed by the same employer, engage in conduct in concert with another person who is, or with other persons each of whom is:\n\n (i) an organisation of employees; or\n\n (ii) an officer of an organisation of employees; and\n\n (b) the conduct is only engaged in by the persons covered by paragraph (a); and\n\n (c) the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the employee, or any of the employees, covered by paragraph (a);\n\nthe 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.\n\nDominant purpose of conduct relates to environmental protection or consumer protection\n\n (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:\n\n (a) the dominant purpose for which the conduct is engaged in is substantially related to environmental protection or consumer protection; and\n\n (b) engaging in the conduct is not industrial action.\n\nNote 1: If an environmental organisation or a consumer organisation is a body corporate:\n\n(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\n\n(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.\n\nNote 2: If an environmental organisation or a consumer organisation is not a body corporate:\n\n(a) it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1) and 45DA(1) (consequently, this exemption does not cover the organisation as such); but\n\n(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.\n\nMeaning of industrial action—basic definition\n\n (4) In subsection (3), industrial action means:\n\n (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:\n\n (i) the terms and conditions of the work are prescribed, wholly or partly, by a workplace instrument or an order of an industrial body; or\n\n (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or\n\n (b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by a workplace instrument or by an order of an industrial body; or\n\n (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or\n\n (d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work.\n\nFor this purpose, industrial body and workplace instrument have the same meanings as in the Fair Work Act 2009.\n\nMeaning of industrial action—further clarification\n\n (5) For the purposes of subsection (3):\n\n (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\n\n (b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.\n\nSubsections (1), (2) and (3) do not protect people not covered by them\n\n (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.\n\nNote: 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.","sortOrder":2151},{"sectionNumber":"Sch 1 s 45E","sectionType":"section","heading":"Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services","content":"45E  Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services\n\nSituations to which section applies\n\n (1) This section applies in the following situations:\n\n (a) a supply situation—in this situation, a person (the first person) has been accustomed, or is under an obligation, to supply goods or services to another person (the second person); or\n\n (b) an acquisition situation—in this situation, a person (the first person) has been accustomed, or is under an obligation, to acquire goods or services from another person (the second person).\n\nNote : For the meanings of accustomed to supply and accustomed to acquire, see subsections (5) and (7).\n\nProhibition in a supply situation\n\n (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:\n\n (a) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or\n\n (b) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person, except subject to a condition:\n\n (i) that is not a condition to which the supply of such goods or services by the first person to the second person has previously been subject because of a provision in a contract between those persons; and\n\n (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.\n\nProhibition in an acquisition situation\n\n (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:\n\n (a) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person; or\n\n (b) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person, except subject to a condition:\n\n (i) that is not a condition to which the acquisition of such goods or services by the first person from the second person has previously been subject because of a provision in a contract between those persons; and\n\n (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.\n\nNo contravention if second person gives written consent to written contract etc.\n\n (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.\n\nMeaning of accustomed to supply\n\n (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)):\n\n (a) a regular supplier of such goods or services to the second person; or\n\n (b) the latest supplier of such goods or services to the second person; or\n\n (c) a person who, at any time during the immediately preceding 3 months, supplied such goods or services to the second person.\n\nException to subsection (5)\n\n (6) If:\n\n (a) goods or services have been supplied by a person to a second person under a contract between them that required the first person to supply such goods or services over a period; and\n\n (b) the period has ended; and\n\n (c) after the end of the period, the second person has been supplied with such goods or services by another person and has not also been supplied with such goods or services by the first person;\n\nthen, 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.\n\nMeaning of accustomed to acquire\n\n (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)):\n\n (a) a regular acquirer of such goods or services from the second person; or\n\n (b) a person who, when last acquiring such goods or services, acquired them from the second person; or\n\n (c) a person who, at any time during the immediately preceding 3 months, acquired such goods or services from the second person.\n\nException to subsection (7)\n\n (8) If:\n\n (a) goods or services have been acquired by a person from a second person under a contract between them that required the first person to acquire such goods or services over a period; and\n\n (b) the period has ended; and\n\n (c) after the end of the period, the second person has refused to supply such goods or services to the first person;\n\nthen, 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.\n\nNote: Conduct that would otherwise contravene this section can be authorised under section 88.","sortOrder":2152},{"sectionNumber":"Sch 1 s 45EA","sectionType":"section","heading":"Provisions contravening section 45E not to be given effect","content":"45EA  Provisions contravening section 45E not to be given effect\n\n  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:\n\n (a) contravened subsection 45E(2) or (3); or\n\n (b) would have contravened subsection 45E(2) or (3) if:\n\n (i) section 45E had been in force when the contract or arrangement was made, or the understanding was arrived at; and\n\n (ii) the words “is in writing and” and “written” were not included in subsection 45E(4).\n\nNote: Conduct that would otherwise contravene this section can be authorised under section 88.","sortOrder":2153},{"sectionNumber":"Sch 1 s 45EB","sectionType":"section","heading":"Sections 45D to 45EA do not affect operation of other provisions of Part","content":"45EB  Sections 45D to 45EA do not affect operation of other provisions of Part\n\n  Nothing in section 45D, 45DA, 45DC, 45DD, 45E or 45EA affects the operation of any other provision of this Part.","sortOrder":2154},{"sectionNumber":"Sch 1 s 46","sectionType":"section","heading":"Misuse of market power","content":"46  Misuse of market power\n\n (1) A person who has a substantial degree of power in a market must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in:\n\n (a) that market; or\n\n (b) any other market in which that person, or a body corporate that is related to that person:\n\n (i) supplies goods or services, or is likely to supply goods or services; or\n\n (ii) supplies goods or services, or is likely to supply goods or services, indirectly through one or more other persons; or\n\n (c) any other market in which that person, or a body corporate that is related to that person:\n\n (i) acquires goods or services, or is likely to acquire goods or services; or\n\n (ii) acquires goods or services, or is likely to acquire goods or services, indirectly through one or more other persons.\n\n (3) A person (the first person) is taken for the purposes of this section to have a substantial degree of power in a market if:\n\n (a) a body corporate that is related to the first person has, or 2 or more bodies corporate each of which is related to the first person together have, a substantial degree of power in that market; or\n\n (b) the first person and a body corporate that is, or the first person and 2 or more bodies corporate each of which is, related to the first person, together have a substantial degree of power in that market.\n\n (4) In determining for the purposes of this section the degree of power that a person (the first person) or bodies corporate have in a market:\n\n (a) regard must be had 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:\n\n (i) competitors, or potential competitors, of the first person or of any of those bodies corporate in that market; or\n\n (ii) persons to whom or from whom the first person or any of those bodies corporate supplies or acquires goods or services in that market; and\n\n (b) regard may be had to the power the first person or bodies corporate have in that market that results from:\n\n (i) any contracts, arrangements or understandings that the first person or bodies corporate have with another party or other parties; or\n\n (ii) any proposed contracts, arrangements or understandings that the first person or bodies corporate may have with another party or other parties.\n\n (5) For the purposes of this section, a person may have a substantial degree of power in a market even though:\n\n (a) the person does not substantially control that market; or\n\n (b) the person does not have absolute freedom from constraint by the conduct of:\n\n (i) competitors, or potential competitors, of the person in that market; or\n\n (ii) persons to whom or from whom the person supplies or acquires goods or services in that market.\n\n (6) Subsections (4) and (5) do not 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 have in a market.\n\n (7) To avoid doubt, for the purposes of this section, more than one person may have a substantial degree of power in a market.\n\n (8) In this section:\n\n (a) a reference to power is a reference to market power; and\n\n (b) a reference to a market is a reference to a market for goods or services; and\n\n (c) a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.","sortOrder":2155},{"sectionNumber":"Sch 1 s 47","sectionType":"section","heading":"Exclusive dealing","content":"47  Exclusive dealing\n\n (1) Subject to this section, a person shall not, in trade or commerce, engage in the practice of exclusive dealing.\n\n (2) A person (the first person) engages in the practice of exclusive dealing if the first person:\n\n (a) supplies, or offers to supply, goods or services;\n\n (b) supplies, or offers to supply, goods or services at a particular price; or\n\n (c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the first person;\n\non 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:\n\n (d) will not, or will not except to a limited extent, acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;\n\n (e) will not, or will not except to a limited extent, re‑supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or\n\n (f) in the case where the first person supplies or would supply goods or services, will not re‑supply the goods or services to any person, or will not, or will not except to a limited extent, re‑supply the goods or services:\n\n (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or\n\n (ii) in particular places or classes of places or in places other than particular places or classes of places.\n\n (3) A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:\n\n (a) to supply goods or services to a second person;\n\n (b) to supply goods or services to a second person at a particular price; or\n\n (c) to give or allow a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services to a second person;\n\nfor the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate:\n\n (d) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;\n\n (e) has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or\n\n (f) has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired from the first person to any person, or has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired from the first person:\n\n (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or\n\n (ii) in particular places or classes of places or in places other than particular places or classes of places.\n\n (4) A person (the first person) also engages in the practice of exclusive dealing if the first person:\n\n (a) acquires, or offers to acquire, goods or services; or\n\n (b) acquires, or offers to acquire, goods or services at a particular price;\n\non 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:\n\n (c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or\n\n (d) in particular places or classes of places or in places other than particular places or classes of places.\n\n (5) A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:\n\n (a) to acquire goods or services from a second person; or\n\n (b) to acquire goods or services at a particular price from a second person;\n\nfor 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:\n\n (c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or\n\n (d) in particular places or classes of places or in places other than particular places or classes of places.\n\n (6) A person (the first person) also engages in the practice of exclusive dealing if the first person:\n\n (a) supplies, or offers to supply, goods or services;\n\n (b) supplies, or offers to supply, goods or services at a particular price; or\n\n (c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the first person;\n\non 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.\n\n (7) A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:\n\n (a) to supply goods or services to a second person;\n\n (b) to supply goods or services at a particular price to a second person; or\n\n (c) to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a second person;\n\nfor 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.\n\n (8) A person (the first person) also engages in the practice of exclusive dealing if the first person grants or renews, or makes it known that the first person will not exercise a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building on the condition that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate:\n\n (a) will not, or will not except to a limited extent:\n\n (i) acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or\n\n (ii) re‑supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;\n\n (b) will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description:\n\n (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or\n\n (ii) in particular places or classes of places or in places other than particular places or classes of places; or\n\n (c) will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person.\n\n (9) A person (the first person) also engages in the practice of exclusive dealing if the first person refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building for the reason that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate:\n\n (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;\n\n (b) has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;\n\n (c) has supplied goods or services, or goods or services of a particular kind or description:\n\n (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or\n\n (ii) in particular places or classes of places or in places other than particular places or classes of places; or\n\n (d) has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person.\n\n (10) Subsection (1) does not apply to the practice of exclusive dealing by a person unless:\n\n (a) the engaging by the person in the conduct that constitutes the practice of exclusive dealing has the purpose, or has or is likely to have the effect, of substantially lessening competition; or\n\n (b) the engaging by the person in the conduct that constitutes the practice of exclusive dealing, and the engaging by the person, or by a body corporate related to the person, in other conduct of the same or a similar kind, together have or are likely to have the effect of substantially lessening competition.\n\n (11) Subsections (8) and (9) do not apply with respect to:\n\n (a) conduct engaged in:\n\n (i) by a registered charity; and\n\n (ii) for or in accordance with the purposes or objects of that registered charity; or\n\n (b) conduct engaged in in pursuance of a legally enforceable requirement made by a registered charity, being a requirement made for or in accordance with the purposes or objects of that registered charity.\n\n (12) Subsection (1) does not apply with respect to any conduct engaged in by a body corporate by way of restricting dealings by another body corporate if those bodies corporate are related to each other.\n\n (13) In this section:\n\n (a) a reference to a condition shall be read as a reference to any condition, whether direct or indirect and whether having legal or equitable force or not, and includes a reference to a condition the existence or nature of which is ascertainable only by inference from the conduct of persons or from other relevant circumstances;\n\n (b) a reference to competition, in relation to conduct to which a provision of this section other than subsection (8) or (9) applies, shall be read as a reference to competition in any market in which:\n\n (i) the person engaging in the conduct or any body corporate related to that person; or\n\n (ii) any person whose business dealings are restricted, limited or otherwise circumscribed by the conduct or, if that person is a body corporate, any body corporate related to that body corporate;\n\n  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\n\n (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.","sortOrder":2156},{"sectionNumber":"Sch 1 s 48","sectionType":"section","heading":"Resale price maintenance","content":"48  Resale price maintenance\n\n (1) A person shall not engage in the practice of resale price maintenance.\n\n (2) Subsection (1) does not apply to a person engaging in conduct that constitutes the practice of resale price maintenance if:\n\n (a) the person has given the Commission a notice under subsection 93(1) describing the conduct; and\n\n (b) the notice is in force under section 93.","sortOrder":2157},{"sectionNumber":"Sch 1 s 49","sectionType":"section","heading":"Dual listed company arrangements that affect competition","content":"49  Dual listed company arrangements that affect competition\n\n (1) A person must not:\n\n (a) make a dual listed company arrangement if a provision of the proposed arrangement has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or\n\n (b) give effect to a provision of a dual listed company arrangement if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition.\n\nNote: Conduct that would otherwise contravene this section can be authorised under section 88.\n\nException\n\n (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:\n\n (a) the arrangement is subject to a condition that the provision will not come into force unless and until the person is granted an authorisation to give effect to the provision; and\n\n (b) the person applies for the grant of such an authorisation within 14 days after the arrangement is made.\n\nHowever, this subsection does not permit the person to give effect to such a provision.\n\nMeaning of competition\n\n (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:\n\n (a) a person that is a party to the arrangement or would be a party to the proposed arrangement; or\n\n (b) any body corporate related to such a person;\n\nsupplies 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.\n\n (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:\n\n (a) the other provisions of that arrangement or proposed arrangement;\n\n (b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the person or a body corporate related to the person is or would be a party;\n\ntogether have or are likely to have that effect.","sortOrder":2158},{"sectionNumber":"Sch 1 s 50","sectionType":"section","heading":"Prohibition of acquisitions that would result in a substantial lessening of competition","content":"50  Prohibition of acquisitions that would result in a substantial lessening of competition\n\n (1) A person must not directly or indirectly:\n\n (a) acquire shares in the capital of a body corporate; or\n\n (b) acquire any assets of a person;\n\nif the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market.\n\nNote: The person will not be prevented from making the acquisition if the corporation is granted an authorisation for the acquisition under section 88.\n\n (3) For the purposes of this section, an acquisition may have the effect or be likely to have the effect of substantially lessening competition in a market if the acquisition would, in all the circumstances, have the effect, or be likely to have the effect, of creating, strengthening or entrenching a substantial degree of power in the market.\n\n (3A) Subsections 46(3) to (8) have effect for the purposes of this section as if:\n\n (a) a reference in those subsections (other than in paragraph 46(8)(b)) to section 46 included a reference to this section; and\n\n (b) a reference in those subsections to a market were a reference to a market (within the meaning of this section).\n\nNote: Subsections 46(3) to (8) contain matters relevant to working out whether a corporation has a substantial degree of power in a market.\n\n (3B) To avoid doubt, subsection (3) does not affect the meaning of substantially lessening competition outside this section.\n\n (4) Where:\n\n (a) a person has entered into a contract to acquire shares in the capital of a body corporate or assets of a person;\n\n (b) the contract is subject to a condition that the provisions of the contract relating to the acquisition will not come into force unless and until the person has been granted an authorisation to acquire the shares or assets; and\n\n (c) the person applied for the grant of such an authorisation before the expiration of 14 days after the contract was entered into;\n\nthe 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:\n\n (d) the application for the authorisation is disposed of; or\n\n (e) the contract ceases to be subject to the condition;\n\nwhichever first happens.\n\n (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.\n\nNotified acquisitions\n\n (5B) This section does not apply to a notified acquisition.\n\nDefinitions\n\n (6) In this section:\n\nmarket means a market for goods or services in:\n\n (a) Australia; or\n\n (b) a State; or\n\n (c) a Territory; or\n\n (d) a region of Australia.","sortOrder":2159},{"sectionNumber":"Sch 1 s 51","sectionType":"section","heading":"Exceptions","content":"51  Exceptions\n\n (1) In deciding whether a person has contravened this Part, the following must be disregarded:\n\n (a) anything that is disregarded for the purposes of Part IV of the Competition and Consumer Act 2010 because of subsection 51(1) of that Act;\n\n (b) anything done in a State, if the thing is specified in, and specifically authorised by:\n\n (i) an Act passed by the Parliament of that State; or\n\n (ii) regulations made under such an Act;\n\n (c) anything done in the Australian Capital Territory, if the thing is specified in, and specifically authorised by:\n\n (i) an enactment as defined in section 3 of the Australian Capital Territory (Self‑Government) Act 1988; or\n\n (ii) regulations made under such an enactment;\n\n (d) anything done in the Northern Territory, if the thing is specified in, and specifically authorised by:\n\n (i) an enactment as defined in section 4 of the Northern Territory (Self‑Government) Act 1978; or\n\n (ii) regulations made under such an enactment;\n\n (e) anything done in another Territory, if the thing is specified in, and specifically authorised by:\n\n (i) an Ordinance of that Territory; or\n\n (ii) regulations made under such an Ordinance.\n\n (1A) Without limiting subsection (1), conduct is taken to be specified in, and authorised by, a law for the purposes of that subsection if:\n\n (a) a licence or other instrument issued or made under the law specifies one or both of the following:\n\n (i) the person authorised to engage in the conduct;\n\n (ii) the place where the conduct is to occur; and\n\n (b) the law specifies the attributes of the conduct except those mentioned in paragraph (a).\n\nFor this purpose, law means a State Act, enactment or Ordinance.\n\n (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.\n\n (1C) The operation of subsection (1) (other than paragraph (1)(a)) is subject to the following limitations:\n\n (a) in order for something to be regarded as specifically authorised for the purposes of subsection (1), the authorising provision must expressly refer to the Competition Code;\n\n (b) paragraphs (1)(b), (c), (d) and (e) do not apply in deciding whether a person has contravened Division 1A or section 50;\n\n (c) regulations referred to in subparagraph (1)(b)(ii), (c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a particular thing to be disregarded if the thing happens more than 2 years after those regulations came into operation;\n\n (d) regulations referred to in subparagraph (1)(b)(ii), (c)(ii) or (d)(ii) do not have the effect of requiring a particular thing to be disregarded to the extent that the regulations are the same in substance as other regulations that:\n\n (i) were made for the purposes of the subparagraph concerned; and\n\n (ii) came into operation more than 2 years before the particular thing happened.\n\n (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:\n\n (a) to any act done, or concerted practice, to the extent that it relates to the remuneration, conditions of employment, hours of work or working conditions of employees; or\n\n (aa) to:\n\n (i) the making of a contract or arrangement, or the entering into of an understanding; or\n\n (ii) any provision of a contract, arrangement or understanding;\n\n  to the extent that the contract, arrangement, understanding or provision relates to the remuneration, conditions of employment, hours of work or working conditions of employees; or\n\n (b) to any provision of a contract of service or of a contract for the provision of services, being a provision under which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which he or she may engage during, or after the termination of, the contract; or\n\n (c) to:\n\n (i) any provision of a contract, arrangement or understanding; or\n\n (ii) any concerted practice;\n\n  to the extent that the provision or concerted practice obliges a person to comply with or apply standards of dimension, design, quality or performance prepared or approved by Standards Australia or a prescribed association or body; or\n\n (d) to:\n\n (i) any provision of a contract, arrangement or understanding; or\n\n (ii) any concerted practice;\n\n  between partners none of whom is a body corporate, to the extent that the provision or concerted practice relates to:\n\n (iii) the terms of the partnership; or\n\n (iv) the conduct of the partnership business; or\n\n (v) competition between the partnership and a party to the contract, arrangement, understanding or concerted practice, while the party is, or after the party ceases to be, a partner; or\n\n (e) in the case of a contract for the sale of a business or of shares in the capital of a body corporate carrying on a business—to any provision of the contract that is solely for the protection of the purchaser in respect of the goodwill of the business and is not declared under subsection 51ABZG(1); or\n\n (g) to:\n\n (i) any provision of a contract, arrangement or understanding; or\n\n (ii) any concerted practice;\n\n  to the extent that the provision or concerted practice relates exclusively to:\n\n (iii) the export of goods from Australia; or\n\n (iv) the supply of services outside Australia;\n\n  if full and accurate particulars of the provision or concerted practice were given to the Commission no more than 14 days after the day the contract or arrangement was made or the understanding or concerted practice was entered into, or before 8 September 1976, whichever was the later.\n\n (2AA) For the purposes of paragraph (2)(g), the particulars to be given to the Commission:\n\n (a) need not include particulars of prices for the goods or services; but\n\n (b) must include particulars of any method of fixing, controlling or maintaining such prices.\n\n (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.","sortOrder":2160},{"sectionNumber":"Schedule 2","sectionType":"schedule","heading":"The Australian Consumer Law","content":"Schedule 2—The Australian Consumer Law\n\nNote: See Part XI.\n\n  \n\n  \n\nChapter 1—Introduction\n\n1 Application of this Schedule\n\n2 Definitions\n\n3 Meaning of consumer\n\n4 Misleading representations with respect to future matters\n\n5 When donations are treated as supplies or acquisitions\n\n6 Related bodies corporate\n\n7 Meaning of manufacturer\n\n8 Goods affixed to land or premises\n\n9 Meaning of safety defect in relation to goods\n\n10 Asserting a right to payment\n\n11 References to acquisition, supply and re‑supply\n\n12 Application of Schedule in relation to leases and licences of land and buildings\n\n13 Loss or damage to include injury\n\n14 Meaning of continuing credit contract\n\n15 Contraventions of this Schedule\n\n16 Severability\n\n17 References to provisions in this Schedule\n\nChapter 2—General protections\n\nPart 2‑1—Misleading or deceptive conduct\n\n18 Misleading or deceptive conduct\n\n19 Application of this Part to information providers\n\nPart 2‑2—Unconscionable conduct\n\n20 Unconscionable conduct within the meaning of the unwritten law\n\n21 Unconscionable conduct in connection with goods or services\n\n22 Matters the court may have regard to for the purposes of section 21\n\n22A Presumptions relating to whether representations are misleading\n\nPart 2‑3—Unfair contract terms\n\n23 Unfair terms of consumer contracts and small business contracts\n\n24 Meaning of unfair\n\n25 Examples of unfair terms\n\n26 Terms that define main subject matter of consumer contracts or small business contracts etc. are unaffected\n\n27 Standard form contracts\n\n28 Contracts to which this Part does not apply\n\n28A This Part does not apply to certain contracts connected with financial markets\n\nChapter 3—Specific protections\n\nPart 3‑1—Unfair practices\n\nDivision 1—False or misleading representations etc.\n\n29 False or misleading representations about goods or services\n\n30 False or misleading representations about sale etc. of land\n\n31 Misleading conduct relating to employment\n\n32 Offering rebates, gifts, prizes etc.\n\n33 Misleading conduct as to the nature etc. of goods\n\n34 Misleading conduct as to the nature etc. of services\n\n35 Bait advertising\n\n36 Wrongly accepting payment\n\n37 Misleading representations about certain business activities\n\n38 Application of provisions of this Division to information providers\n\nDivision 2—Unsolicited supplies\n\n39 Unsolicited cards etc.\n\n40 Assertion of right to payment for unsolicited goods or services\n\n41 Liability etc. of recipient for unsolicited goods\n\n42 Liability of recipient for unsolicited services\n\n43 Assertion of right to payment for unauthorised entries or advertisements\n\nDivision 3—Pyramid schemes\n\n44 Participation in pyramid schemes\n\n45 Meaning of pyramid scheme\n\n46 Marketing schemes as pyramid schemes\n\nDivision 4—Pricing\n\n47 Multiple pricing\n\n48 Single price to be specified in certain circumstances\n\nDivision 5—Other unfair practices\n\n49 Referral selling\n\n50 Harassment and coercion\n\nPart 3‑2—Consumer transactions\n\nDivision 1—Consumer guarantees\n\nSubdivision A—Guarantees relating to the supply of goods\n\n51 Guarantee as to title\n\n52 Guarantee as to undisturbed possession\n\n53 Guarantee as to undisclosed securities etc.\n\n54 Guarantee as to acceptable quality\n\n55 Guarantee as to fitness for any disclosed purpose etc.\n\n56 Guarantee relating to the supply of goods by description\n\n57 Guarantees relating to the supply of goods by sample or demonstration model\n\n58 Guarantee as to repairs and spare parts\n\n59 Guarantee as to express warranties\n\nSubdivision B—Guarantees relating to the supply of services\n\n60 Guarantee as to due care and skill\n\n61 Guarantees as to fitness for a particular purpose etc.\n\n62 Guarantee as to reasonable time for supply\n\n63 Services to which this Subdivision does not apply\n\nSubdivision C—Guarantees not to be excluded etc. by contract\n\n64 Guarantees not to be excluded etc. by contract\n\n64A Limitation of liability for failures to comply with guarantees\n\nSubdivision D—Miscellaneous\n\n65 Application of this Division to supplies of gas, electricity and telecommunications\n\n66 Display notices\n\n67 Conflict of laws\n\n68 Convention on Contracts for the International Sale of Goods\n\nDivision 2—Unsolicited consumer agreements\n\nSubdivision A—Introduction\n\n69 Meaning of unsolicited consumer agreement\n\n70 Presumption that agreements are unsolicited consumer agreements\n\n71 Meaning of dealer\n\n72 Meaning of negotiation\n\nSubdivision B—Negotiating unsolicited consumer agreements\n\n73 Permitted hours for negotiating an unsolicited consumer agreement\n\n74 Disclosing purpose and identity\n\n75 Ceasing to negotiate on request\n\n76 Informing person of termination period etc.\n\n77 Liability of suppliers for contraventions by dealers\n\nSubdivision C—Requirements for unsolicited consumer agreements etc.\n\n78 Requirement to give document to the consumer\n\n79 Requirements for all unsolicited consumer agreements etc.\n\n80 Additional requirements for unsolicited consumer agreements not negotiated by telephone\n\n81 Requirements for amendments of unsolicited consumer agreements\n\nSubdivision D—Terminating unsolicited consumer agreements\n\n82 Terminating an unsolicited consumer agreement during the termination period\n\n83 Effect of termination\n\n84 Obligations of suppliers on termination\n\n85 Obligations and rights of consumers on termination\n\n86 Prohibition on supplies etc.\n\n87 Repayment of payments received after termination\n\n88 Prohibition on recovering amounts after termination\n\nSubdivision E—Miscellaneous\n\n89 Certain provisions of unsolicited consumer agreements void\n\n90 Waiver of rights\n\n91 Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.\n\n92 Application of this Division to supplies to third parties\n\n93 Effect of contravening this Division\n\n94 Regulations may limit the application of this Division\n\n95 Application of this Division to certain conduct covered by the Corporations Act\n\nDivision 3—Lay‑by agreements\n\n96 Lay‑by agreements must be in writing etc.\n\n97 Termination of lay‑by agreements by consumers\n\n98 Termination of lay‑by agreements by suppliers\n\n99 Effect of termination\n\nDivision 3A—Gift cards\n\nSubdivision A—Introduction\n\n99A Meaning of gift card\n\nSubdivision B—Requirements relating to gift cards\n\n99B Gift cards to be redeemable for at least 3 years\n\n99C When gift card ceases to be redeemable to appear prominently on gift card\n\n99D Terms and conditions not to allow post‑supply fees\n\n99E Post‑supply fees not to be demanded or received\n\n99F Certain terms and conditions of gift card void\n\nSubdivision C—Miscellaneous\n\n99G Regulations may limit application of this Division\n\nDivision 4—Miscellaneous\n\n100 Supplier must provide proof of transaction etc.\n\n101 Consumer may request an itemised bill\n\n102 Prescribed requirements for warranties against defects\n\n103 Repairers must comply with prescribed requirements\n\nPart 3‑3—Safety of consumer goods and product related services\n\nDivision 1—Safety standards\n\n104 Making safety standards for consumer goods and product related services\n\n105 Declaring safety standards for consumer goods and product related services\n\n106 Supplying etc. consumer goods that do not comply with safety standards\n\n107 Supplying etc. product related services that do not comply with safety standards\n\n108 Requirement to nominate a safety standard\n\nDivision 2—Bans on consumer goods and product related services\n\nSubdivision A—Interim bans\n\n109 Interim bans on consumer goods or product related services that will or may cause injury to any person etc.\n\n110 Places in which interim bans apply\n\n111 Ban period for interim bans\n\n112 Interaction of multiple interim bans\n\n113 Revocation of interim bans\n\nSubdivision B—Permanent bans\n\n114 Permanent bans on consumer goods or product related services\n\n115 Places in which permanent bans apply\n\n116 When permanent bans come into force\n\n117 Revocation of permanent bans\n\nSubdivision C—Compliance with interim bans and permanent bans\n\n118 Supplying etc. consumer goods covered by a ban\n\n119 Supplying etc. product related services covered by a ban\n\nSubdivision D—Temporary exemption from mutual recognition principles\n\n120 Temporary exemption under the Trans‑Tasman Mutual Recognition Act 1997\n\n121 Temporary exemption under the Mutual Recognition Act 1992\n\nDivision 3—Recall of consumer goods\n\nSubdivision A—Compulsory recall of consumer goods\n\n122 Compulsory recall of consumer goods\n\n123 Contents of a recall notice\n\n124 Obligations of a supplier in relation to a recall notice\n\n125 Notification by persons who supply consumer goods outside Australia if there is compulsory recall\n\n126 Interaction of multiple recall notices\n\n127 Compliance with recall notices\n\nSubdivision B—Voluntary recall of consumer goods\n\n128 Notification requirements for a voluntary recall of consumer goods\n\nDivision 4—Safety warning notices\n\n129 Safety warning notices about consumer goods and product related services\n\n130 Announcement of the results of an investigation etc.\n\nDivision 5—Consumer goods, or product related services, associated with death or serious injury or illness\n\n131 Suppliers to report consumer goods associated with the death or serious injury or illness of any person\n\n132 Suppliers to report product related services associated with the death or serious injury or illness of any person\n\n132A Confidentiality of notices given under this Division\n\nDivision 6—Miscellaneous\n\n133 Liability under a contract of insurance\n\nPart 3‑4—Information standards\n\n134 Making information standards for goods and services\n\n135 Declaring information standards for goods and services\n\n136 Supplying etc. goods that do not comply with information standards\n\n137 Supplying etc. services that do not comply with information standards\n\n137A Safe harbour for complying with information standards about free range eggs\n\nPart 3‑5—Liability of manufacturers for goods with safety defects\n\nDivision 1—Actions against manufacturers for goods with safety defects\n\n138 Liability for loss or damage suffered by an injured individual\n\n139 Liability for loss or damage suffered by a person other than an injured individual\n\n140 Liability for loss or damage suffered by a person if other goods are destroyed or damaged\n\n141 Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged\n\n142 Defences to defective goods actions\n\nDivision 2—Defective goods actions\n\n143 Time for commencing defective goods actions\n\n144 Liability joint and several\n\n145 Survival of actions\n\n146 No defective goods action where workers’ compensation law etc. applies\n\n147 Unidentified manufacturer\n\n148 Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard\n\n149 Representative actions by the regulator\n\nDivision 3—Miscellaneous\n\n150 Application of all or any provisions of this Part etc. not to be excluded or modified\n\nChapter 4—Offences\n\nPart 4‑1—Offences relating to unfair practices\n\nDivision 1—False or misleading representations etc.\n\n151 False or misleading representations about goods or services\n\n152 False or misleading representations about sale etc. of land\n\n153 Misleading conduct relating to employment\n\n154 Offering rebates, gifts, prizes etc.\n\n155 Misleading conduct as to the nature etc. of goods\n\n156 Misleading conduct as to the nature etc. of services\n\n157 Bait advertising\n\n158 Wrongly accepting payment\n\n159 Misleading representations about certain business activities\n\n160 Application of provisions of this Division to information providers\n\nDivision 2—Unsolicited supplies\n\n161 Unsolicited cards etc.\n\n162 Assertion of right to payment for unsolicited goods or services\n\n163 Assertion of right to payment for unauthorised entries or advertisements\n\nDivision 3—Pyramid schemes\n\n164 Participation in pyramid schemes\n\nDivision 4—Pricing\n\n165 Multiple pricing\n\n166 Single price to be specified in certain circumstances\n\nDivision 5—Other unfair practices\n\n167 Referral selling\n\n168 Harassment and coercion\n\nPart 4‑2—Offences relating to consumer transactions\n\nDivision 1—Consumer guarantees\n\n169 Display notices\n\nDivision 2—Unsolicited consumer agreements\n\nSubdivision A—Negotiating unsolicited consumer agreements\n\n170 Permitted hours for negotiating an unsolicited consumer agreement\n\n171 Disclosing purpose and identity\n\n172 Ceasing to negotiate on request\n\n173 Informing person of termination period etc.\n\nSubdivision B—Requirements for unsolicited consumer agreements etc.\n\n174 Requirement to give document to the consumer\n\n175 Requirements for all unsolicited consumer agreements etc.\n\n176 Additional requirements for unsolicited consumer agreements not negotiated by telephone\n\n177 Requirements for amendments of unsolicited consumer agreements\n\nSubdivision C—Terminating unsolicited consumer agreements\n\n178 Obligations of suppliers on termination\n\n179 Prohibition on supplies etc.\n\n180 Repayment of payments received after termination\n\n181 Prohibition on recovering amounts after termination\n\nSubdivision D—Miscellaneous\n\n182 Certain provisions of unsolicited consumer agreements void\n\n183 Waiver of rights\n\n184 Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.\n\n185 Application of this Division to supplies to third parties\n\n186 Regulations may limit the application of this Division\n\n187 Application of this Division to certain conduct covered by the Corporations Act\n\nDivision 3—Lay‑by agreements\n\n188 Lay‑by agreements must be in writing etc.\n\n189 Termination charges\n\n190 Termination of lay‑by agreements by suppliers\n\n191 Refund of amounts\n\nDivision 3A—Gift cards\n\n191A Gift cards to be redeemable for at least 3 years\n\n191B When gift card ceases to be redeemable to appear prominently on gift card\n\n191C Terms and conditions not to allow post‑supply fees\n\n191D Post‑supply fees not to be demanded or received\n\n191E Regulations may limit the application of this Division\n\nDivision 4—Miscellaneous\n\n192 Prescribed requirements for warranties against defects\n\n193 Repairers must comply with prescribed requirements\n\nPart 4‑3—Offences relating to safety of consumer goods and product related services\n\nDivision 1—Safety standards\n\n194 Supplying etc. consumer goods that do not comply with safety standards\n\n195 Supplying etc. product related services that do not comply with safety standards\n\n196 Requirement to nominate a safety standard\n\nDivision 2—Bans on consumer goods and product related services\n\n197 Supplying etc. consumer goods covered by a ban\n\n198 Supplying etc. product related services covered by a ban\n\nDivision 3—Recall of consumer goods\n\n199 Compliance with recall orders\n\n200 Notification by persons who supply consumer goods outside Australia if there is compulsory recall\n\n201 Notification requirements for a voluntary recall of consumer goods\n\nDivision 4—Consumer goods, or product related services, associated with death or serious injury or illness\n\n202 Suppliers to report consumer goods etc. associated with the death or serious injury or illness of any person\n\nPart 4‑4—Offences relating to information standards\n\n203 Supplying etc. goods that do not comply with information standards\n\n204 Supplying etc. services that do not comply with information standards\n\nPart 4‑5—Offences relating to substantiation notices\n\n205 Compliance with substantiation notices\n\n206 False or misleading information etc.\n\nPart 4‑6—Defences\n\n207 Reasonable mistake of fact\n\n208 Act or default of another person etc.\n\n209 Publication of advertisements in the ordinary course of business\n\n210 Supplying goods acquired for the purpose of re‑supply\n\n211 Supplying services acquired for the purpose of re‑supply\n\nPart 4‑7—Miscellaneous\n\n212 Prosecutions to be commenced within 3 years\n\n213 Preference must be given to compensation for victims\n\n214 Penalties for contraventions of the same nature etc.\n\n215 Penalties for previous contraventions of the same nature etc.\n\n216 Granting of injunctions etc.\n\n217 Criminal proceedings not to be brought for contraventions of Chapter 2 or 3\n\nChapter 5—Enforcement and remedies\n\nPart 5‑1—Enforcement\n\nDivision 1—Undertakings\n\n218 Regulator may accept undertakings\n\nDivision 2—Substantiation notices\n\n219 Regulator may require claims to be substantiated etc.\n\n220 Extending periods for complying with substantiation notices\n\n221 Compliance with substantiation notices\n\n222 False or misleading information etc.\n\nDivision 3—Public warning notices\n\n223 Regulator may issue a public warning notice\n\nPart 5‑2—Remedies\n\nDivision 1—Pecuniary penalties\n\n224 Pecuniary penalties\n\n225 Pecuniary penalties and offences\n\n226 Defence\n\n227 Preference must be given to compensation for victims\n\n228 Civil action for recovery of pecuniary penalties\n\n229 Indemnification of officers\n\n230 Certain indemnities not authorised and certain documents void\n\nDivision 2—Injunctions\n\n232 Injunctions\n\n233 Consent injunctions\n\n234 Interim injunctions\n\n235 Variation and discharge of injunctions\n\nDivision 3—Damages\n\n236 Actions for damages\n\nDivision 4—Compensation orders etc. for injured persons and orders for non‑parties\n\n237 Compensation orders etc. on application by an injured person or the regulator\n\n238 Compensation orders etc. arising out of other proceedings\n\n239 Orders to redress etc. loss or damage suffered by non‑parties\n\n240 Determining whether to make a redress order etc. for non‑parties\n\n241 When a non‑party is bound by a redress order etc.\n\n243 Kinds of orders that may be made\n\n243A Orders made in favour of party to contract containing unfair term\n\n243B Orders made on application of the regulator to prevent and remedy unfair contract terms\n\n245 Interaction with other provisions\n\nDivision 5—Other remedies\n\n246 Non‑punitive orders\n\n247 Adverse publicity orders\n\n248 Order disqualifying a person from managing corporations\n\n249 Privilege against exposure to penalty or forfeiture—disqualification from managing corporations\n\n250 Declarations relating to consumer contracts and small business contracts\n\nDivision 6—Defences\n\n251 Publication of advertisement in the ordinary course of business\n\n252 Supplying consumer goods for the purpose of re‑supply\n\n253 Supplying product related services for the purpose of re‑supply\n\nPart 5‑3—Country of origin representations\n\n254 Overview\n\n255 Country of origin representations do not contravene certain provisions\n\n258 Proceedings relating to false, misleading or deceptive conduct or representations\n\nPart 5‑4—Remedies relating to guarantees\n\nDivision 1—Action against suppliers\n\nSubdivision A—Action against suppliers of goods\n\n259 Action against suppliers of goods\n\n260 When a failure to comply with a guarantee is a major failure\n\n261 How suppliers may remedy a failure to comply with a guarantee\n\n262 When consumers are not entitled to reject goods\n\n263 Consequences of rejecting goods\n\n264 Replaced goods\n\n265 Termination of contracts for the supply of services that are connected with rejected goods\n\n266 Rights of gift recipients\n\nSubdivision B—Action against suppliers of services\n\n267 Action against suppliers of services\n\n268 When a failure to comply with a guarantee is a major failure\n\n269 Termination of contracts for the supply of services\n\n270 Termination of contracts for the supply of goods that are connected with terminated services\n\nDivision 2—Action for damages against manufacturers of goods\n\n271 Action for damages against manufacturers of goods\n\n272 Damages that may be recovered by action against manufacturers of goods\n\n273 Time limit for actions against manufacturers of goods\n\nDivision 3—Miscellaneous\n\n274 Indemnification of suppliers by manufacturers\n\n275 Limitation of liability etc.\n\n276 This Part not to be excluded etc. by contract\n\n276A Limitation in certain circumstances of liability of manufacturer to seller\n\n277 Representative actions by the regulator\n\nPart 5‑5—Liability of suppliers and credit providers\n\nDivision 1—Linked credit contracts\n\n278 Liability of suppliers and linked credit providers relating to linked credit contracts\n\n279 Action by consumer to recover amount of loss or damage\n\n280 Cases where a linked credit provider is not liable\n\n281 Amount of liability of linked credit providers\n\n282 Counter‑claims and offsets\n\n283 Enforcement of judgments etc.\n\n284 Award of interest to consumers\n\n285 Liability of suppliers to linked credit providers, and of linked credit providers to suppliers\n\n286 Joint liability proceedings and recovery under section 135 of the National Credit Code\n\nDivision 2—Non‑linked credit contracts\n\n287 Liability of suppliers and credit providers relating to non‑linked credit contracts\n\nChapter 6—Application and transitional provisions\n\nPart 1—Application and transitional provisions relating to the Consumer Credit Legislation Amendment (Enhancements) Act 2012\n\n288 Application of amendments relating to lay‑by agreements\n\n289 Application of amendment relating to repairs\n\n290 Saving of regulations relating to repairs\n\nPart 1A—Application provision relating to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015\n\n290A Application\n\nPart 2—Application and transitional provisions relating to the Competition and Consumer Amendment (Competition Policy Review) Act 2017\n\n291 Application of amendments relating to confidentiality of notices\n\n292 Application of amendments relating to prohibition on supplies\n\nPart 3—Application provision relating to the Treasury Laws Amendment (2018 Measures No. 3) Act 2018\n\n295 Application of amendments\n\nPart 4—Application provisions relating to the Treasury Laws Amendment (Australian Consumer Law Review) Act 2018\n\n296 Application—listed public companies\n\n297 Application—unsolicited supplies\n\n298 Application—unsolicited consumer agreements\n\n299 Application—single price\n\n300 Application—non‑punitive orders\n\n301 Application—guarantees relating to the supply of services\n\nPart 5—Application and transitional provisions relating to the Treasury Laws Amendment (Gift Cards) Act 2018\n\n302 Application of amendments relating to gift cards\n\nPart 6—Application and transitional provisions relating to the Treasury Laws Amendment (2020 Measures No. 6) Act 2020\n\n303 Application of amendments relating to multiple non‑major consumer guarantee failures\n\nPart 7—Application provision relating to the Treasury Laws Amendment (More Competition, Better Prices) Act 2022\n\n304 Application of amendments relating to penalties\n\n305 Application of amendments relating to unfair contract terms\n\nPart 8—Application and saving provisions relating to the Treasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Act 2024\n\n306 Definitions\n\n307 Saving—safety standards declared by the Minister\n\n308 Application—nomination and compliance with safety standards\n\n309 Application—requests for information or documents\n\nPart 9—Application provision relating to the Treasury Laws Amendment (Doubling Penalties for ACCC Enforcement) Act 2026\n\n310 Application of amendments relating to penalties","sortOrder":2161},{"sectionNumber":"Sch 2 Chapter 1","sectionType":"part","heading":"Introduction","content":"Chapter 1—Introduction","sortOrder":2162},{"sectionNumber":"Sch 2 s 1","sectionType":"section","heading":"Application of this Schedule","content":"1  Application of this Schedule\n\n  This Schedule applies to the extent provided by:\n\n (a) Part XI of the Competition and Consumer Act; or\n\n (b) an application law.","sortOrder":2163},{"sectionNumber":"Sch 2 s 2","sectionType":"section","heading":"Definitions","content":"2  Definitions\n\n (1) In this Schedule:\n\nABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.\n\nacceptable quality: see sections 54(2) to (7).\n\nACN has the meaning given by section 9 of the Corporations Act 2001.\n\nacquire includes:\n\n (a) in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hire‑purchase; and\n\n (b) in relation to services—accept.\n\nNote: Section 5 deals with when receipt of a donation is an acquisition.\n\nadjusted turnover, of a body corporate during a 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 period, other than:\n\n (a) supplies made from any of those bodies corporate to any other of those bodies corporate; or\n\n (b) supplies that are input taxed; or\n\n (c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999); or\n\n (d) supplies that are not made in connection with an enterprise that the body corporate carries on; or\n\n (e) supplies that are not connected with the indirect tax zone.\n\nExpressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.\n\nadverse publicity order: see section 247(2).\n\naffected person, in relation to goods, means:\n\n (a) a consumer who acquires the goods; or\n\n (b) a person who acquires the goods from the consumer (other than for the purpose of re‑supply); or\n\n (c) a person who derives title to the goods through or under the consumer.\n\nagreement document: see section 78(2).\n\napplicable industry code has the meaning given by section 51ACA(1) of the Competition and Consumer Act.\n\napplication law has the same meaning as in section 140 of the Competition and Consumer Act.\n\narticle includes a token, card or document.\n\nASIC means the Australian Securities and Investments Commission.\n\nassert a right to payment: see section 10(1).\n\nassociate regulator:\n\n (a) for the purposes of the application of this Schedule as a law of the Commonwealth—means a body that is, for the purposes of the application of this Schedule as a law of a State or a Territory, the regulator within the meaning of the application law of the State or Territory; or\n\n (b) for the purposes of the application of this Schedule as a law of a State or a Territory—means:\n\n (i) the Commission; or\n\n (ii) a body that is, for the purposes of the application of this Schedule as a law of another State or a Territory, the regulator within the meaning of the application law of that other State or Territory.\n\nauthority, in relation to a State or a Territory (including an external Territory), means:\n\n (a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or\n\n (b) an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.\n\nauthority of the Commonwealth means:\n\n (a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or\n\n (b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.\n\nbanker has the same meaning as in section 4(1) of the Competition and Consumer Act.\n\nban period for an interim ban: see section 111(1).\n\nbreach turnover period, of a body corporate, for an offence or an act or omission, means the longer of the following periods:\n\n (a) the period of 12 months ending at the end of the month in which:\n\n (i) for an offence—the body corporate ceased committing the offence, or was charged with the offence (whichever is earlier); or\n\n (ii) for an act or omission—the act or omission ceased, or proceedings in relation to the act or omission were instituted (whichever is earlier);\n\n (b) the period ending at the same time as the period determined under paragraph (a) and starting:\n\n (i) for an offence—at the beginning of the month in which the body corporate committed, or began committing, the offence (as the case requires); or\n\n (ii) for an act or omission—at the beginning of the month in which the act or omission occurred or began occurring (as the case requires).\n\nbusiness includes a business not carried on for profit.\n\nbusiness day, in relation to an unsolicited consumer agreement, means a day that is not:\n\n (a) a Saturday or Sunday; or\n\n (b) a public holiday in the place where the agreement was made.\n\nbusiness or professional relationship includes a relationship between employer and employee, or a similar relationship.\n\ncall on, in relation to negotiating an unsolicited consumer agreement, does not include call by telephone.\n\nCommission has the same meaning as in section 4(1) of the Competition and Consumer Act.\n\nCommonwealth mandatory standard, in relation to goods, means a mandatory standard in respect of the goods imposed by a law of the Commonwealth.\n\nCommonwealth Minister means the Minister who administers Part XI of the Competition and Consumer Act.\n\nCompetition and Consumer Act means the Competition and Consumer Act 2010.\n\nconsumer: see section 3.\n\nconsumer contract: see section 23(3).\n\nconsumer goods means goods that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption, and includes any such goods that have become fixtures since the time they were supplied if:\n\n (a) a recall notice for the goods has been issued; or\n\n (b) a person has voluntarily taken action to recall the goods.\n\ncontinuing credit contract: see section 14(1).\n\ncontravening conduct: see section 239(1)(a)(i).\n\ncourt, in relation to a matter, means any court having jurisdiction in the matter.\n\ncovering includes a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper.\n\ncredit card: see section 39(5).\n\ncredit provider means a person providing, or proposing to provide, in the course of a business carried on by the person, credit to consumers in relation to the acquisition of goods or services.\n\ndealer: see section 71.\n\ndebit card: see section 39(6).\n\ndeclared term: see sections 239(1)(a)(ii), 243A(1) and 243B(1).\n\ndefective goods action means an action under section 138, 139, 140 or 141, and includes such an action because of section 138(3) or 145.\n\ndisclosed purpose: see section 55(2).\n\ndisplayed price: see sections 47(2) to (5).\n\ndocument means any record of information, and includes:\n\n (a) anything on which there is writing; and\n\n (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and\n\n (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and\n\n (d) a map, plan, drawing or photograph.\n\negg has the meaning given by subsection 137A(3).\n\nenforcement proceeding means:\n\n (a) a proceeding for an offence against Chapter 4; or\n\n (b) a proceeding instituted under Chapter 5 (other than under sections 237, 239, 243A and 243B).\n\nevidential 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.\n\nexpress warranty, in relation to goods, means an undertaking, assertion or representation:\n\n (a) that relates to:\n\n (i) the quality, state, condition, performance or characteristics of the goods; or\n\n (ii) the provision of services that are or may at any time be required for the goods; or\n\n (iii) the supply of parts that are or may at any time be required for the goods; or\n\n (iv) the future availability of identical goods, or of goods constituting or forming part of a set of which the goods, in relation to which the undertaking, assertion or representation is given or made, form part; and\n\n (b) that is given or made in connection with the supply of the goods, or in connection with the promotion by any means of the supply or use of the goods; and\n\n (c) the natural tendency of which is to induce persons to acquire the goods.\n\nfinancial product has the meaning given by section 12BAA of the Australian Securities and Investments Commission Act 2001.\n\nfinancial service has the meaning given by section 12BAB of the Australian Securities and Investments Commission Act 2001.\n\nfree item includes a free service.\n\nfree range egg has the meaning given by subsection 137A(4).\n\ngift card: see section 99A.\n\ngoods includes:\n\n (a) ships, aircraft and other vehicles; and\n\n (b) animals, including fish; and\n\n (c) minerals, trees and crops, whether on, under or attached to land or not; and\n\n (d) gas and electricity; and\n\n (e) computer software; and\n\n (f) second‑hand goods; and\n\n (g) any component part of, or accessory to, goods.\n\ngrown: see section 255(7).\n\nGST has the meaning given by section 195‑1 of the A New Tax System (Goods and Services Tax) Act 1999.\n\nindustry code has the meaning given by section 51ACA of the Competition and Consumer Act.\n\ninformation provider: see sections 19(5) and (6).\n\ninformation standard: see section 134(1).\n\ninner container includes any container into which goods are packed, other than a shipping or airline container, pallet or other similar article.\n\ninterest, in relation to land, means:\n\n (a) a legal or equitable estate or interest in the land; or\n\n (b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or\n\n (c) a right, power or privilege over, or in connection with, the land.\n\ninterim ban: see sections 109(1) and (2).\n\ninvolved: a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person:\n\n (a) has aided, abetted, counselled or procured the contravention; or\n\n (b) has induced, whether by threats or promises or otherwise, the contravention; or\n\n (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or\n\n (d) has conspired with others to effect the contravention.\n\njoint liability proceedings means proceedings relating to the joint and several liability under section 278 of a linked credit provider and a supplier of goods or services.\n\nlabel includes a band or ticket.\n\nlay‑by agreement: see section 96(3).\n\nlinked credit contract: see section 278(2).\n\nlinked credit provider, in relation to a supplier of goods or services, means a credit provider:\n\n (a) with whom the supplier has a contract, arrangement or understanding relating to:\n\n (i) the supply to the supplier of goods in which the supplier deals; or\n\n (ii) the business carried on by the supplier of supplying goods or services; or\n\n (iii) the provision to persons to whom goods or services are supplied by the supplier of credit in respect of payment for those goods or services; or\n\n (b) to whom the supplier, by arrangement with the credit provider, regularly refers persons for the purpose of obtaining credit; or\n\n (c) whose forms of contract, forms of application or offers for credit are, by arrangement with the credit provider, made available to persons by the supplier; or\n\n (d) with whom the supplier has a contract, arrangement or understanding under which contracts, applications or offers for credit from the credit provider may be signed by persons at premises of the supplier.\n\nloan 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:\n\n (a) by paying an amount to, or in accordance with the instructions of, the consumer;\n\n (b) by applying an amount in satisfaction or reduction of an amount owed to the person by the consumer;\n\n (c) by varying the terms of a contract under which money owed to the person by the consumer is payable;\n\n (d) by deferring an obligation of the consumer to pay an amount to the person;\n\n (e) by taking from the consumer a bill of exchange or other negotiable instrument on which the consumer (whether alone or with another person or other persons) is liable as drawer, acceptor or endorser.\n\nmajor failure: see sections 260 and 268.\n\nmandatory standard, in relation to goods, means a standard:\n\n (a) for the goods or anything relating to the goods; and\n\n (b) that, under a law of the Commonwealth, a State or a Territory, must be complied with when the goods are supplied by their manufacturer, being a law creating an offence or liability if there is such non‑compliance;\n\nbut does not include a standard which may be complied with by meeting a higher standard.\n\nmanufacturer: see section 7.\n\nmarket has the same meaning as in section 4E of the Competition and Consumer Act.\n\nmaterials, in relation to goods, means:\n\n (a) if the goods are unmanufactured raw products—those products; and\n\n (b) if the goods are manufactured goods—all matter or substances used or consumed in the manufacture of the goods (other than matter or substances that are treated as overheads); and\n\n (c) in either case—the inner containers in which the goods are packed.\n\nmixed supply: see section 3(11).\n\nNational Credit Code has the meaning given by section 5(1) of the National Consumer Credit Protection Act 2009.\n\nnegotiated by telephone: see section 78(3).\n\nnegotiation: see section 72.\n\nnew participant: see section 45(2).\n\nnon‑linked credit contract: see section 287(5).\n\nnon‑party means:\n\n (a) in relation to conduct—a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct; or\n\n (b) in relation to a term of a contract—a person who is not, or has not been, a party to an enforcement proceeding in relation to the term.\n\nparticipant, in a pyramid scheme, means a person who participates in the scheme.\n\nparticipate, in a pyramid scheme: see section 44(3).\n\nparticipation payment: see section 45(1)(a).\n\npermanent ban: see sections 114(1) and (2).\n\npost‑supply fee: see section 99D(2).\n\npremises means:\n\n (a) an area of land or any other place (whether or not it is enclosed or built on); or\n\n (b) a building or other structure; or\n\n (c) a vehicle, vessel or aircraft; or\n\n (d) a part of any such premises.\n\nprice, of goods or services, means:\n\n (a) the amount paid or payable (including any charge of any description) for their acquisition; or\n\n (b) if such an amount is not specified because the acquisition is part only of a transaction for which a total amount is paid or payable:\n\n (i) the lowest amount (including any charge of any description) for which the goods or services could reasonably have been acquired from the supplier at the time of the transaction or, if not from the supplier, from another supplier; or\n\n (ii) if they could not reasonably have been acquired separately from another supplier—their value at the time of the transaction.\n\nprior negotiations or arrangements, in relation to the acquisition of goods by a consumer, means negotiations or arrangements:\n\n (a) that were conducted or made with the consumer by another person in the course of a business carried on by the other person; and\n\n (b) that induced the consumer to acquire the goods, or otherwise promoted the acquisition of the goods by the consumer.\n\nproduct related service means a service for or relating to:\n\n (a) the installation of consumer goods of a particular kind; or\n\n (b) the maintenance, repair or cleaning of consumer goods of a particular kind; or\n\n (c) the assembly of consumer goods of a particular kind; or\n\n (d) the delivery of consumer goods of a particular kind;\n\nand, without limiting paragraphs (a) to (d), includes any other service that relates to the supply of consumer goods of that kind.\n\nproof of transaction: see section 100(4).\n\npublish, in relation to an advertisement, means include in a publication intended for sale or public distribution (whether to the public generally or to a restricted class or number of persons) or for public display (including in an electronic form).\n\npyramid scheme: see section 45(1).\n\nrecall notice: see section 122(1).\n\nrecovery period: see section 41(4).\n\nrecruitment payment: see section 45(1)(b).\n\nregulations means regulations made under section 139G of the Competition and Consumer Act.\n\nregulator:\n\n (a) for the purposes of the application of this Schedule as a law of the Commonwealth—means the Commission; or\n\n (b) for the purposes of the application of this Schedule as a law of a State or a Territory—has the meaning given by the application law of the State or Territory.\n\nrejection period: see section 262(2).\n\nrelated, in relation to a body corporate: see section 6.\n\nrelated contract or instrument: see section 83(2).\n\nrely on, in relation to a term of a consumer contract or small business contract, includes the following:\n\n (a) attempt to enforce the term;\n\n (b) attempt to exercise a right conferred, or purportedly conferred, by the term;\n\n (c) assert the existence of a right conferred, or purportedly conferred, by the term.\n\nresponsible Minister means:\n\n (a) the Commonwealth Minister; or\n\n (b) the Minister of a State who administers the application law of the State; or\n\n (c) the Minister of a Territory who administers the application law of the Territory.\n\nsafety defect, in relation to goods: see section 9.\n\nsafety standard: see section 104(1).\n\nsale by auction, in relation to the supply of goods by a person, means a sale by auction that is conducted by an agent of the person (whether the agent acts in person or by electronic means).\n\nsend includes deliver, and sent and sender have corresponding meanings.\n\nserious injury or illness means an acute physical injury or illness that requires medical or surgical treatment by, or under the supervision of, a medical practitioner or a nurse (whether or not in a hospital, clinic or similar place), but does not include:\n\n (a) an ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or\n\n (b) the recurrence, or aggravation, of such an ailment, disorder, defect or morbid condition.\n\nservices includes:\n\n (a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and\n\n (b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:\n\n (i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or\n\n (ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or\n\n (iii) a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or\n\n (iv) a contract of insurance; or\n\n (v) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or\n\n (vi) any contract for or in relation to the lending of money;\n\nbut does not include rights or benefits being the supply of goods or the performance of work under a contract of service.\n\nshare includes stock.\n\nship has the meaning given by section 3(1) of the Admiralty Act 1988.\n\nsingle price: see section 48(7).\n\nsmall business contract: see subsection 23(4).\n\nstandard form contract has a meaning affected by section 27.\n\nsubstantially transformed, in relation to goods: see section 255(2).\n\nsubstantiation notice means a notice under section 219.\n\nsubstantiation notice compliance period: see section 221(2).\n\nsupply, when used as a verb, includes:\n\n (a) in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and\n\n (b) in relation to services—provide, grant or confer;\n\nand, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.\n\nNote: Section 5 deals with when a donation is a supply.\n\nsupply of limited title: see section 51(2).\n\ntelecommunications service: see section 65(2).\n\ntermination charge: see section 97(2).\n\ntermination period, in relation to an unsolicited consumer agreement, means the period within which the consumer under the agreement is, under section 82 or under the agreement, entitled to terminate the agreement.\n\ntied 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.\n\ntied loan contract means a loan contract entered into between a credit provider and a consumer where:\n\n (a) the credit provider knows, or ought reasonably to know, that the consumer enters into the loan contract wholly or partly for the purposes of payment for goods or services supplied by a supplier; and\n\n (b) at the time the loan contract is entered into the credit provider is a linked credit provider of the supplier.\n\ntrade or commerce means:\n\n (a) trade or commerce within Australia; or\n\n (b) trade or commerce between Australia and places outside Australia;\n\nand includes any business or professional activity (whether or not carried on for profit).\n\ntransparent:\n\n (a) in relation to a document—means:\n\n (i) expressed in reasonably plain language; and\n\n (ii) legible; and\n\n (iii) presented clearly; and\n\n (b) in relation to a term of a consumer contract or small business contract—see section 24(3).\n\nunfair, in relation to a term of a consumer contract or small business contract: see section 24(1).\n\nunsolicited consumer agreement: see section 69.\n\nunsolicited goods means goods sent to a person without any request made by the person or on his or her behalf.\n\nunsolicited services means:\n\n (a) services supplied to a person; or\n\n (b) services purported to have been supplied to a person which have not been supplied;\n\nwithout any request made by the person or on his or her behalf.\n\nupfront price: see section 26(2).\n\nwarranty against defects: see section 102(3).\n\n (2) In this Schedule:\n\n (a) a reference to engaging in conduct is a reference to doing or refusing to do any act, including:\n\n (i) the making of, or the giving effect to a provision of, a contract or arrangement; or\n\n (ii) the arriving at, or the giving effect to a provision of, an understanding; or\n\n (iii) the requiring of the giving of, or the giving of, a covenant; and\n\n (b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), is a reference to the doing of or the refusing to do any act, including:\n\n (i) the making of, or the giving effect to a provision of, a contract or arrangement; or\n\n (ii) the arriving at, or the giving effect to a provision of, an understanding; or\n\n (iii) the requiring of the giving of, or the giving of, a covenant; and\n\n (c) a reference to refusing to do an act includes a reference to:\n\n (i) refraining (otherwise than inadvertently) from doing that act; or\n\n (ii) making it known that that act will not be done; and\n\n (d) a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.","sortOrder":2164},{"sectionNumber":"Sch 2 s 3","sectionType":"section","heading":"Meaning of consumer","content":"3  Meaning of consumer\n\nAcquiring goods as a consumer\n\n (1) A person is taken to have acquired particular goods as a consumer if, and only if:\n\n (a) the amount paid or payable for the goods, as worked out under subsections (4) to (9), did not exceed:\n\n (i) $40,000; or\n\n (ii) if a greater amount is prescribed for the purposes of this paragraph—that greater amount; or\n\n (b) the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or\n\n (c) the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads.\n\n (2) However, subsection (1) does not apply if the person acquired the goods, or held himself or herself out as acquiring the goods:\n\n (a) for the following purpose:\n\n (i) for goods other than gift cards—for the purpose of re‑supply;\n\n (ii) for gift cards—for the purpose of re‑supply in trade or commerce; or\n\n (b) for the purpose of using them up or transforming them, in trade or commerce:\n\n (i) in the course of a process of production or manufacture; or\n\n (ii) in the course of repairing or treating other goods or fixtures on land.\n\nAcquiring services as a consumer\n\n (3) A person is taken to have acquired particular services as a consumer if, and only if:\n\n (a) the amount paid or payable for the services, as worked out under subsections (4) to (9), did not exceed:\n\n (i) $40,000; or\n\n (ii) if a greater amount is prescribed for the purposes of subsection (1)(a)—that greater amount; or\n\n (b) the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.\n\nAmounts paid or payable for purchases\n\n (4) For the purposes of subsection (1) or (3), the amount paid or payable for goods or services purchased by a person is taken to be the price paid or payable by the person for the goods or services, unless subsection (5) applies.\n\n (5) For the purposes of subsection (1) or (3), if a person purchased goods or services by a mixed supply and a specified price was not allocated to the goods or services in the contract under which they were purchased, the amount paid or payable for goods or services is taken to be:\n\n (a) if, at the time of the acquisition, the person could have purchased from the supplier the goods or services other than by a mixed supply—the price at which they could have been purchased from the supplier; or\n\n (b) if:\n\n (i) paragraph (a) does not apply; but\n\n (ii) at the time of the acquisition, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply;\n\n  the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or\n\n (c) if, at the time of the acquisition, goods or services of the kind acquired could not have been purchased from any supplier except by a mixed supply—the value of the goods or services at that time.\n\nAmounts paid or payable for other acquisitions\n\n (6) For the purposes of subsection (1) or (3), the amount paid or payable for goods or services acquired by a person other than by way of purchase is taken to be the price at which, at the time of the acquisition, the person could have purchased the goods or services from the supplier, unless subsection (7) or (8) applies.\n\n (7) For the purposes of subsection (1) or (3), if:\n\n (a) goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from the supplier, or could have been purchased only by a mixed supply; but\n\n (b) at that time, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply;\n\nthe amount paid or payable for the goods or services is taken to be the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier.\n\n (8) For the purposes of subsection (1) or (3), if goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from any supplier other than by a mixed supply, the amount paid or payable for the goods or services is taken to be the value of the goods or services at that time.\n\nAmounts paid or payable for obtaining credit\n\n (9) If:\n\n (a) a person obtains credit in connection with the acquisition of goods or services by him or her; and\n\n (b) the amount paid or payable by him or her for the goods or services is increased because he or she so obtains credit;\n\nobtaining the credit is taken for the purposes of subsection (3) to be the acquisition of a service, and the amount paid or payable by him or her for the service of being provided with the credit is taken to include the amount of the increase.\n\nPresumption that persons are consumers\n\n (10) If it is alleged in any proceeding under this Schedule, or in any other proceeding in respect of a matter arising under this Schedule, that a person was a consumer in relation to particular goods or services, it is presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services.\n\nMixed supplies\n\n (11) A purchase or other acquisition of goods or services is made by a mixed supply if the goods or services are purchased or acquired together with other property or services, or together with both other property and other services.\n\nSupplies to consumers\n\n (12) In this Schedule, a reference to a supply of goods or services to a consumer is a reference to a supply of goods or services to a person who is taken to have acquired them as a consumer.","sortOrder":2165},{"sectionNumber":"Sch 2 s 4","sectionType":"section","heading":"Misleading representations with respect to future matters","content":"4  Misleading representations with respect to future matters\n\n (1) If:\n\n (a) a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and\n\n (b) the person does not have reasonable grounds for making the representation;\n\nthe representation is taken, for the purposes of this Schedule, to be misleading.\n\n (2) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:\n\n (a) a party to the proceeding; or\n\n (b) any other person;\n\nthe party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.\n\n (3) To avoid doubt, subsection (2) does not:\n\n (a) have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or\n\n (b) have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.\n\n (4) Subsection (1) does not limit by implication the meaning of a reference in this Schedule to:\n\n (a) a misleading representation; or\n\n (b) a representation that is misleading in a material particular; or\n\n (c) conduct that is misleading or is likely or liable to mislead;\n\nand, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.","sortOrder":2166},{"sectionNumber":"Sch 2 s 5","sectionType":"section","heading":"When donations are treated as supplies or acquisitions","content":"5  When donations are treated as supplies or acquisitions\n\n (1) For the purposes of this Schedule, other than Parts 3‑3, 3‑4, 4‑3 and 4‑4:\n\n (a) a donation of goods or services is not treated as a supply of the goods or services unless the donation is for promotional purposes; and\n\n (b) receipt of a donation of goods or services is not treated as an acquisition of the goods or services unless the donation is for promotional purposes.\n\n (2) For the purposes of Parts 3‑3, 3‑4, 4‑3 and 4‑4:\n\n (a) any donation of goods or services is treated as a supply of the goods or services; and\n\n (b) receipt of any donation of goods or services is treated as an acquisition of the goods or services.","sortOrder":2167},{"sectionNumber":"Sch 2 s 6","sectionType":"section","heading":"Related bodies corporate","content":"6  Related bodies corporate\n\n (1) A body corporate is taken to be related to another body corporate if the bodies corporate would, under section 4A(5) of the Competition and Consumer Act, be deemed to be related to each other.\n\n (2) In proceedings under this Schedule, it is presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.","sortOrder":2168},{"sectionNumber":"Sch 2 s 7","sectionType":"section","heading":"Meaning of manufacturer","content":"7  Meaning of manufacturer\n\n (1) A manufacturer includes the following:\n\n (a) a person who grows, extracts, produces, processes or assembles goods;\n\n (b) a person who holds himself or herself out to the public as the manufacturer of goods;\n\n (c) a person who causes or permits the name of the person, a name by which the person carries on business or a brand or mark of the person to be applied to goods supplied by the person;\n\n (d) a person (the first person) who causes or permits another person, in connection with:\n\n (i) the supply or possible supply of goods by that other person; or\n\n (ii) the promotion by that other person by any means of the supply or use of goods;\n\n  to hold out the first person to the public as the manufacturer of the goods;\n\n (e) a person who imports goods into Australia if:\n\n (i) the person is not the manufacturer of the goods; and\n\n (ii) at the time of the importation, the manufacturer of the goods does not have a place of business in Australia.\n\n (2) For the purposes of subsection (1)(c):\n\n (a) a name, brand or mark is taken to be applied to goods if:\n\n (i) it is woven in, impressed on, worked into or annexed or affixed to the goods; or\n\n (ii) it is applied to a covering, label, reel or thing in or with which the goods are supplied; and\n\n (b) if the name of a person, a name by which a person carries on business or a brand or mark of a person is applied to goods, it is presumed, unless the contrary is established, that the person caused or permitted the name, brand or mark to be applied to the goods.\n\n (3) If goods are imported into Australia on behalf of a person, the person is taken, for the purposes of paragraph (1)(e), to have imported the goods into Australia.","sortOrder":2169},{"sectionNumber":"Sch 2 s 8","sectionType":"section","heading":"Goods affixed to land or premises","content":"8  Goods affixed to land or premises\n\n  For the purposes of this Schedule, goods are taken to be supplied to a consumer even if they are affixed to land or premises at the time of the supply.","sortOrder":2170},{"sectionNumber":"Sch 2 s 9","sectionType":"section","heading":"Meaning of safety defect in relation to goods","content":"9  Meaning of safety defect in relation to goods\n\n (1) For the purposes of this Schedule, goods have a safety defect if their safety is not such as persons generally are entitled to expect.\n\n (2) In determining the extent of the safety of goods, regard is to be given to all relevant circumstances, including:\n\n (a) the manner in which, and the purposes for which, they have been marketed; and\n\n (b) their packaging; and\n\n (c) the use of any mark in relation to them; and\n\n (d) any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and\n\n (e) what might reasonably be expected to be done with or in relation to them; and\n\n (f) the time when they were supplied by their manufacturer.\n\n (3) An inference that goods have a safety defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer goods of the same kind were supplied.\n\n (4) An inference that goods have a safety defect is not to be made only because:\n\n (a) there was compliance with a Commonwealth mandatory standard for them; and\n\n (b) that standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by their manufacturer.","sortOrder":2171},{"sectionNumber":"Sch 2 s 10","sectionType":"section","heading":"Asserting a right to payment","content":"10  Asserting a right to payment\n\n (1) A person is taken to assert a right to payment from another person if the person:\n\n (a) makes a demand for the payment or asserts a present or prospective right to the payment; or\n\n (b) threatens to bring any legal proceedings with a view to obtaining the payment; or\n\n (c) places or causes to be placed the name of the other person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining the payment; or\n\n (d) invokes or causes to be invoked any other collection procedure, or threatens to do so, with a view to obtaining the payment; or\n\n (e) sends any invoice or other document that:\n\n (i) states the amount of the payment; or\n\n (ii) sets out the price of unsolicited goods or unsolicited services; or\n\n (iii) sets out the charge for placing, in a publication, an entry or advertisement;\n\n  and does not contain a statement, to the effect that the document is not an assertion of a right to a payment, that complies with any requirements prescribed by the regulations.\n\n (2) For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a person is taken to have been sent by that person unless the contrary is established.","sortOrder":2172},{"sectionNumber":"Sch 2 s 11","sectionType":"section","heading":"References to acquisition, supply and re-supply","content":"11  References to acquisition, supply and re‑supply\n\n  In this Schedule:\n\n (a) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods pursuant to a supply of the goods; and\n\n (b) a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services; and\n\n (c) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both; and\n\n (d) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; and\n\n (e) a reference to the re‑supply of goods acquired from a person includes a reference to:\n\n (i) a supply of the goods to another person in an altered form or condition; and\n\n (ii) a supply to another person of goods in which the first‑mentioned goods have been incorporated; and\n\n (f) a reference to the re‑supply of services (the original services) acquired from a person (the original supplier) includes a reference to:\n\n (i) a supply of the original services to another person in an altered form or condition; and\n\n (ii) a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.","sortOrder":2173},{"sectionNumber":"Sch 2 s 12","sectionType":"section","heading":"Application of Schedule in relation to leases and licences of land and buildings","content":"12  Application of Schedule in relation to leases and licences of land and buildings\n\n  In this Schedule:\n\n (a) a reference to a contract includes a reference to a lease of, or a licence in respect of, land or a building or part of a building (despite the express references in this Schedule to such leases or licences); and\n\n (b) a reference to making or entering into a contract, in relation to such a lease or licence, is a reference to granting or taking the lease or licence; and\n\n (c) a reference to a party to a contract, in relation to such a lease or licence, includes a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.","sortOrder":2174},{"sectionNumber":"Sch 2 s 13","sectionType":"section","heading":"Loss or damage to include injury","content":"13  Loss or damage to include injury\n\n  In this Schedule:\n\n (a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and\n\n (b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.","sortOrder":2175},{"sectionNumber":"Sch 2 s 14","sectionType":"section","heading":"Meaning of continuing credit contract","content":"14  Meaning of continuing credit contract\n\n (1) If:\n\n (a) a person (the creditor), in the course of a business carried on by the creditor, agrees with a consumer to provide credit to the consumer in relation to:\n\n (i) payment for goods or services; or\n\n (ii) cash supplied by the creditor to the consumer from time to time; or\n\n (iii) payment by the creditor to another person in relation to goods or services, or cash, supplied by that other person to the consumer from time to time; and\n\n (b) the creditor:\n\n (i) has an agreement, arrangement or understanding (the credit agreement) with the consumer in relation to the provision of the credit; or\n\n (ii) is engaged in a course of dealing (the credit dealing) with the consumer in relation to the provision of the credit; and\n\n (c) the amounts owing to the creditor from time to time under the credit agreement or credit dealing are, or are to be, calculated on the basis that:\n\n (i) all amounts owing; and\n\n (ii) all payments made;\n\n  by the consumer under, or in respect of, the credit agreement or credit dealing are entered in one or more accounts kept for the purpose of that agreement or dealing;\n\nthe credit agreement or credit dealing is taken, for the purposes of this Schedule, to be a continuing credit contract.\n\n (2) If subsection (1)(a)(iii) applies, the creditor is taken, for the purposes of this section, to have provided credit to the consumer in relation to any goods or services, or cash, supplied by another person to the consumer to the extent of any payments made, or to be made, by the creditor to that other person.","sortOrder":2176},{"sectionNumber":"Sch 2 s 15","sectionType":"section","heading":"Contraventions of this Schedule","content":"15  Contraventions of this Schedule\n\n  Conduct is not taken, for the purposes of this Schedule, to contravene a provision of this Schedule merely because of the application of:\n\n (a) section 23(1); or\n\n (b) a provision of Division 1 of Part 3‑2 (other than section 66(2)); or\n\n (c) a provision of Part 3‑5.","sortOrder":2177},{"sectionNumber":"Sch 2 s 16","sectionType":"section","heading":"Severability","content":"16  Severability\n\n (1) If the making of a contract after the commencement of this section contravenes this Schedule because the contract includes a particular provision, nothing in this Schedule affects the validity or enforceability of the contract otherwise than in relation to that provision, so far as that provision is severable.\n\n (2) This section has effect subject to any order made under Division 4 of Part 5‑2.","sortOrder":2178},{"sectionNumber":"Sch 2 s 17","sectionType":"section","heading":"References to provisions in this Schedule","content":"17  References to provisions in this Schedule\n\n  In this Schedule, a reference to a provision is a reference to a provision of this Schedule, unless the contrary intention appears.","sortOrder":2179},{"sectionNumber":"Sch 2 Chapter 2","sectionType":"part","heading":"General protections","content":"Chapter 2—General protections","sortOrder":2180},{"sectionNumber":"Sch 2 Part 2-1","sectionType":"division","heading":"Misleading or deceptive conduct","content":"Part 2‑1—Misleading or deceptive conduct","sortOrder":2181},{"sectionNumber":"Sch 2 s 18","sectionType":"section","heading":"Misleading or deceptive conduct","content":"18  Misleading or deceptive conduct\n\n (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.\n\n (2) Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1).\n\nNote: For rules relating to representations as to the country of origin of goods, see Part 5‑3.","sortOrder":2182},{"sectionNumber":"Sch 2 s 19","sectionType":"section","heading":"Application of this Part to information providers","content":"19  Application of this Part to information providers\n\n (1) This Part does not apply to a publication of matter by an information provider if:\n\n (a) in any case—the information provider made the publication in the course of carrying on a business of providing information; or\n\n (b) if the information provider is the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or the holder of a licence granted under the Broadcasting Services Act 1992—the publication was by way of a radio or television broadcast by the information provider.\n\n (2) Subsection (1) does not apply to a publication of an advertisement.\n\n (3) Subsection (1) does not apply to a publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, goods or services (the publicised goods or services), if:\n\n (a) the publicised goods or services were goods or services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or\n\n (b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised goods or services; or\n\n (c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies goods or services of the same kind as the publicised goods or services.\n\n (4) Subsection (1) does not apply to a publication of matter in connection with the sale or grant, or possible sale or grant, of, or the promotion by any means of the sale or grant of, interests in land (the publicised interests in land), if:\n\n (a) the publicised interests in land were interests of a kind sold or granted by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or\n\n (b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who sells or grants interests of the same kind as the publicised interests in land; or\n\n (c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that sells or grants interests of the same kind as the publicised interests in land.\n\n (5) An information provider is a person who carries on a business of providing information.\n\n (6) Without limiting subsection (5), each of the following is an information provider:\n\n (a) the holder of a licence granted under the Broadcasting Services Act 1992;\n\n (b) a person who is the provider of a broadcasting service under a class licence under that Act;\n\n (d) the Australian Broadcasting Corporation;\n\n (e) the Special Broadcasting Service Corporation.","sortOrder":2183},{"sectionNumber":"Sch 2 Part 2-2","sectionType":"division","heading":"Unconscionable conduct","content":"Part 2‑2—Unconscionable conduct","sortOrder":2184},{"sectionNumber":"Sch 2 s 20","sectionType":"section","heading":"Unconscionable conduct within the meaning of the unwritten law","content":"20  Unconscionable conduct within the meaning of the unwritten law\n\n (1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) This section does not apply to conduct that is prohibited by section 21.","sortOrder":2185},{"sectionNumber":"Sch 2 s 21","sectionType":"section","heading":"Unconscionable conduct in connection with goods or services","content":"21  Unconscionable conduct in connection with goods or services\n\n (1) A person must not, in trade or commerce, in connection with:\n\n (a) the supply or possible supply of goods or services to a person; or\n\n (b) the acquisition or possible acquisition of goods or services from a person;\n\nengage in conduct that is, in all the circumstances, unconscionable.\n\n (2) This section does not apply to conduct that is engaged in only because the person engaging in the conduct:\n\n (a) institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or\n\n (b) refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.\n\n (3) For the purpose of determining whether a person has contravened subsection (1):\n\n (a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and\n\n (b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.\n\n (4) It is the intention of the Parliament that:\n\n (a) this section is not limited by the unwritten law relating to unconscionable conduct; and\n\n (b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and\n\n (c) in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of:\n\n (i) the terms of the contract; and\n\n (ii) the manner in which and the extent to which the contract is carried out;\n\n  and is not limited to consideration of the circumstances relating to formation of the contract.","sortOrder":2186},{"sectionNumber":"Sch 2 s 22","sectionType":"section","heading":"Matters the court may have regard to for the purposes of section 21","content":"22  Matters the court may have regard to for the purposes of section 21\n\n (1) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer), the court may have regard to:\n\n (a) the relative strengths of the bargaining positions of the supplier and the customer; and\n\n (b) whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and\n\n (c) whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and\n\n (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and\n\n (e) the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and\n\n (f) the extent to which the supplier’s conduct towards the customer was consistent with the supplier’s conduct in similar transactions between the supplier and other like customers; and\n\n (g) the requirements of any applicable industry code; and\n\n (h) the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and\n\n (i) the extent to which the supplier unreasonably failed to disclose to the customer:\n\n (i) any intended conduct of the supplier that might affect the interests of the customer; and\n\n (ii) any risks to the customer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and\n\n (j) if there is a contract between the supplier and the customer for the supply of the goods or services:\n\n (i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and\n\n (ii) the terms and conditions of the contract; and\n\n (iii) the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and\n\n (iv) any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and\n\n (k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and\n\n (l) the extent to which the supplier and the customer acted in good faith.\n\n (2) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the acquirer) has contravened section 21 in connection with the acquisition or possible acquisition of goods or services from a person (the supplier), the court may have regard to:\n\n (a) the relative strengths of the bargaining positions of the acquirer and the supplier; and\n\n (b) whether, as a result of conduct engaged in by the acquirer, the supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and\n\n (c) whether the supplier was able to understand any documents relating to the acquisition or possible acquisition of the goods or services; and\n\n (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the supplier or a person acting on behalf of the supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the goods or services; and\n\n (e) the amount for which, and the circumstances in which, the supplier could have supplied identical or equivalent goods or services to a person other than the acquirer; and\n\n (f) the extent to which the acquirer’s conduct towards the supplier was consistent with the acquirer’s conduct in similar transactions between the acquirer and other like suppliers; and\n\n (g) the requirements of any applicable industry code; and\n\n (h) the requirements of any other industry code, if the supplier acted on the reasonable belief that the acquirer would comply with that code; and\n\n (i) the extent to which the acquirer unreasonably failed to disclose to the supplier:\n\n (i) any intended conduct of the acquirer that might affect the interests of the supplier; and\n\n (ii) any risks to the supplier arising from the acquirer’s intended conduct (being risks that the acquirer should have foreseen would not be apparent to the supplier); and\n\n (j) if there is a contract between the acquirer and the supplier for the acquisition of the goods or services:\n\n (i) the extent to which the acquirer was willing to negotiate the terms and conditions of the contract with the supplier; and\n\n (ii) the terms and conditions of the contract; and\n\n (iii) the conduct of the acquirer and the supplier in complying with the terms and conditions of the contract; and\n\n (iv) any conduct that the acquirer or the supplier engaged in, in connection with their commercial relationship, after they entered into the contract; and\n\n (k) without limiting paragraph (j), whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the supplier for the acquisition of the goods or services; and\n\n (l) the extent to which the acquirer and the supplier acted in good faith.","sortOrder":2187},{"sectionNumber":"Sch 2 s 22A","sectionType":"section","heading":"Presumptions relating to whether representations are misleading","content":"22A  Presumptions relating to whether representations are misleading\n\n  Section 4 applies for the purposes of sections 21 and 22 in the same way as it applies for the purposes of Division 1 of Part 3‑1.","sortOrder":2188},{"sectionNumber":"Sch 2 Part 2-3","sectionType":"division","heading":"Unfair contract terms","content":"Part 2‑3—Unfair contract terms","sortOrder":2189},{"sectionNumber":"Sch 2 s 23","sectionType":"section","heading":"Unfair terms of consumer contracts and small business contracts","content":"23  Unfair terms of consumer contracts and small business contracts\n\n (1) A term of a consumer contract or small business contract is void if:\n\n (a) the term is unfair; and\n\n (b) the contract is a standard form contract.\n\n (2) The contract continues to bind the parties if it is capable of operating without the unfair term.\n\n (2A) A person contravenes this subsection if:\n\n (a) the person makes a contract; and\n\n (b) the contract is a consumer contract or small business contract; and\n\n (c) the contract is a standard form contract; and\n\n (d) a term of the contract is unfair; and\n\n (e) the person proposed the unfair term.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection: see section 224.\n\n (2B) A person who contravenes subsection (2A) commits a separate contravention of that subsection in respect of each term that is unfair and that the person proposed.\n\n (2C) A person contravenes this subsection if:\n\n (a) the person applies or relies on, or purports to apply or rely on, a term of a contract; and\n\n (b) the contract is a consumer contract or small business contract; and\n\n (c) the contract is a standard form contract; and\n\n (d) the term is unfair.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection: see section 224.\n\n (3) A consumer contract is a contract for:\n\n (a) a supply of goods or services; or\n\n (b) a sale or grant of an interest in land;\n\nto an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.\n\n (4) A contract is a small business contract if:\n\n (a) the contract is for a supply of goods or services, or a sale or grant of an interest in land; and\n\n (b) at least one party to the contract satisfies either or both of the following conditions:\n\n (i) the party makes the contract in the course of carrying on a business and at a time when the party employs fewer than 100 persons;\n\n (ii) the party’s turnover, worked out under subsection (6) for the party’s last income year (within the meaning of the Income Tax Assessment Act 1997) that ended at or before the time when the contract is made, is less than $10,000,000.\n\n (5) In counting for the purposes of subparagraph (4)(b)(i) the number of persons that a person employs:\n\n (a) a casual employee is not to be counted unless employed on a regular and systematic basis; and\n\n (b) a part‑time employee (including a part‑time casual employee counted under paragraph (a) of this subsection) is to be counted as an appropriate fraction of a full‑time equivalent.\n\n (6) For the purposes of subparagraph (4)(b)(ii), a party’s turnover for a period is the sum of the values of all supplies the party made during the period, other than the following:\n\n (a) supplies that are input taxed;\n\n (b) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999);\n\n (c) supplies that are not made in connection with an enterprise that the party carries on;\n\n (d) supplies that are not connected with the indirect tax zone.\n\n (7) Expressions used in subsection (6) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.","sortOrder":2190},{"sectionNumber":"Sch 2 s 24","sectionType":"section","heading":"Meaning of unfair","content":"24  Meaning of unfair\n\n (1) A term of a consumer contract or small business contract is unfair if:\n\n (a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and\n\n (b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and\n\n (c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.\n\n (2) In determining whether a term of a contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:\n\n (a) the extent to which the term is transparent;\n\n (b) the contract as a whole.\n\n (3) A term is transparent if the term is:\n\n (a) expressed in reasonably plain language; and\n\n (b) legible; and\n\n (c) presented clearly; and\n\n (d) readily available to any party affected by the term.\n\n (4) For the purposes of subsection (1)(b), a term of a contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.","sortOrder":2191},{"sectionNumber":"Sch 2 s 25","sectionType":"section","heading":"Examples of unfair terms","content":"25  Examples of unfair terms\n\n  Without limiting section 24, the following are examples of the kinds of terms of a consumer contract or small business contract that may be unfair:\n\n (a) a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract;\n\n (b) a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract;\n\n (c) a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract;\n\n (d) a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract;\n\n (e) a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract;\n\n (f) a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract;\n\n (g) a term that permits, or has the effect of permitting, one party unilaterally to vary the characteristics of the goods or services to be supplied, or the interest in land to be sold or granted, under the contract;\n\n (h) a term that permits, or has the effect of permitting, one party unilaterally to determine whether the contract has been breached or to interpret its meaning;\n\n (i) a term that limits, or has the effect of limiting, one party’s vicarious liability for its agents;\n\n (j) a term that permits, or has the effect of permitting, one party to assign the contract to the detriment of another party without that other party’s consent;\n\n (k) a term that limits, or has the effect of limiting, one party’s right to sue another party;\n\n (l) a term that limits, or has the effect of limiting, the evidence one party can adduce in proceedings relating to the contract;\n\n (m) a term that imposes, or has the effect of imposing, the evidential burden on one party in proceedings relating to the contract;\n\n (n) a term of a kind, or a term that has an effect of a kind, prescribed by the regulations.","sortOrder":2192},{"sectionNumber":"Sch 2 s 26","sectionType":"section","heading":"Terms that define main subject matter of consumer contracts or small business contracts etc. are unaffected","content":"26  Terms that define main subject matter of consumer contracts or small business contracts etc. are unaffected\n\n (1) Section 23 does not apply to a term of a contract to the extent, but only to the extent, that:\n\n (a) the term defines the main subject matter of the contract; or\n\n (b) the term sets the upfront price payable under the contract; or\n\n (c) the term is required, or expressly permitted, by a law of the Commonwealth or of a State or Territory; or\n\n (d) the term is included in the contract, or is taken to be so included, by operation of a law of the Commonwealth, or of a State or Territory, that regulates the contract; or\n\n (e) inclusion of the term has either or both of the following results:\n\n (i) one or more other terms are included in the contract, or are taken to be so included, by operation of a law of the Commonwealth, or of a State or Territory, that regulates the contract;\n\n (ii) such a law requires one or more other terms to be included in the contract.\n\nExample: A State law provides that, if a retail lease contains a provision for termination on the ground of proposed demolition of the building containing the leased premises, then provisions set out in the State law are taken to be included in the lease.\n\n Paragraph (d) covers the provisions that are set out in the State law and taken to be included in the lease. Paragraph (e) covers inclusion of the provision for termination, since it has the result that the provisions set out in the State law are taken to be included in the lease.\n\n (2) The upfront price payable under a contract is the consideration that:\n\n (a) is provided, or is to be provided, for the supply, sale or grant under the contract; and\n\n (b) is disclosed at or before the time the contract is entered into;\n\nbut does not include any other consideration that is contingent on the occurrence or non‑occurrence of a particular event.","sortOrder":2193},{"sectionNumber":"Sch 2 s 27","sectionType":"section","heading":"Standard form contracts","content":"27  Standard form contracts\n\n (1) If a party to a proceeding alleges that a contract is a standard form contract, it is presumed to be a standard form contract unless another party to the proceeding proves otherwise.\n\n (2) In determining whether a contract is a standard form contract, a court may take into account such matters as it thinks relevant, but must take into account the following:\n\n (a) whether one of the parties has all or most of the bargaining power relating to the transaction;\n\n (ba) whether one of the parties has made another contract, in the same or substantially similar terms, prepared by that party, and, if so, how many such contracts that party has made;\n\n (b) whether the contract was prepared by one party before any discussion relating to the transaction occurred between the parties;\n\n (c) whether another party was, in effect, required either to accept or reject the terms of the contract (other than the terms referred to in section 26(1)) in the form in which they were presented;\n\n (d) whether another party was given an effective opportunity to negotiate the terms of the contract that were not the terms referred to in section 26(1);\n\n (e) whether the terms of the contract (other than the terms referred to in section 26(1)) take into account the specific characteristics of another party or the particular transaction;\n\n (f) any other matter prescribed by the regulations.\n\n (3) A contract may be determined to be a standard form contract despite the existence of one or more of the following:\n\n (a) an opportunity for a party to negotiate changes, to terms of the contract, that are minor or insubstantial in effect;\n\n (b) an opportunity for a party to select a term from a range of options determined by another party;\n\n (c) an opportunity for a party to another contract or proposed contract to negotiate terms of the other contract or proposed contract.","sortOrder":2194},{"sectionNumber":"Sch 2 s 28","sectionType":"section","heading":"Contracts to which this Part does not apply","content":"28  Contracts to which this Part does not apply\n\n (1) This Part does not apply to:\n\n (a) a contract of marine salvage or towage; or\n\n (b) a charterparty of a ship; or\n\n (c) a contract for the carriage of goods by ship.\n\n (2) Without limiting subsection (1)(c), the reference in that subsection to a contract for the carriage of goods by ship includes a reference to any contract covered by a sea carriage document within the meaning of the amended Hague Rules referred to in section 7(1) of the Carriage of Goods by Sea Act 1991.\n\n (3) This Part does not apply to a contract that is the constitution (within the meaning of section 9 of the Corporations Act 2001) of a company, managed investment scheme or other kind of body.\n\n (4) This Part does not apply to a small business contract to which a prescribed law of the Commonwealth, a State or a Territory applies.\n\n (5) This Part does not apply to a contract:\n\n (a) that establishes, contains or incorporates rules governing the operation of a payment or settlement system approved under section 9 of the Payment Systems and Netting Act 1998; or\n\n (b) that is made in the course of, or for the purposes of, operating such a system.","sortOrder":2195},{"sectionNumber":"Sch 2 s 28A","sectionType":"section","heading":"This Part does not apply to certain contracts connected with financial markets","content":"28A  This Part does not apply to certain contracts connected with financial markets\n\n (1) This Part does not apply to a contract:\n\n (a) that exists because of:\n\n (i) section 793B of the Corporations Act 2001 (legal effect of operating rules of a licensed market); or\n\n (ii) section 822B of that Act (legal effect of operating rules of a licensed CS facility); or\n\n (b) that is made under, or in accordance with:\n\n (i) the operating rules of a licensed market; or\n\n (ii) the operating rules of a licensed CS facility.\n\nNote: A licensed CS facility is a clearing and settlement facility whose operation is authorised by an Australian CS facility licence.\n\n (2) This Part does not apply to a contract between:\n\n (a) the operator of a licensed market; and\n\n (b) any of the following:\n\n (i) an entity included in the market’s official list;\n\n (ii) the responsible entity for a registered scheme that is so included;\n\n (iii) the operator of a foreign passport fund that is so included;\n\nto the extent that the contract consists of, or includes, listing rules of the licensed market.\n\n (3) An expression has in paragraph (1)(b) and subsection (2) the same meaning as in the Corporations Act 2001.","sortOrder":2196},{"sectionNumber":"Sch 2 Chapter 3","sectionType":"part","heading":"Specific protections","content":"Chapter 3—Specific protections","sortOrder":2197},{"sectionNumber":"Sch 2 Part 3-1","sectionType":"division","heading":"Unfair practices","content":"Part 3‑1—Unfair practices","sortOrder":2198},{"sectionNumber":"Sch 2 Division 1","sectionType":"subdivision","heading":"False or misleading representations etc.","content":"Division 1—False or misleading representations etc.","sortOrder":2199},{"sectionNumber":"Sch 2 s 29","sectionType":"section","heading":"False or misleading representations about goods or services","content":"29  False or misleading representations about goods or services\n\n (1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:\n\n (a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or\n\n (b) make a false or misleading representation that services are of a particular standard, quality, value or grade; or\n\n (c) make a false or misleading representation that goods are new; or\n\n (d) make a false or misleading representation that a particular person has agreed to acquire goods or services; or\n\n (e) make a false or misleading representation that purports to be a testimonial by any person relating to goods or services; or\n\n (f) make a false or misleading representation concerning:\n\n (i) a testimonial by any person; or\n\n (ii) a representation that purports to be such a testimonial;\n\n  relating to goods or services; or\n\n (g) make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or\n\n (h) make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or\n\n (i) make a false or misleading representation with respect to the price of goods or services; or\n\n (j) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods; or\n\n (k) make a false or misleading representation concerning the place of origin of goods; or\n\n (l) make a false or misleading representation concerning the need for any goods or services; or\n\n (m) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3‑2); or\n\n (n) make a false or misleading representation concerning a requirement to pay for a contractual right that:\n\n (i) is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3‑2); and\n\n (ii) a person has under a law of the Commonwealth, a State or a Territory (other than an unwritten law).\n\nNote 1: A pecuniary penalty may be imposed for a contravention of this subsection.\n\nNote 2: For rules relating to representations as to the country of origin of goods, see Part 5‑3.\n\n (2) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation of a kind referred to in subsection (1)(e) or (f), the representation is taken to be misleading unless evidence is adduced to the contrary.\n\n (3) To avoid doubt, subsection (2) does not:\n\n (a) have the effect that, merely because such evidence to the contrary is adduced, the representation is not misleading; or\n\n (b) have the effect of placing on any person an onus of proving that the representation is not misleading.","sortOrder":2200},{"sectionNumber":"Sch 2 s 30","sectionType":"section","heading":"False or misleading representations about sale etc. of land","content":"30  False or misleading representations about sale etc. of land\n\n (1) A person must not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of an interest in land or in connection with the promotion by any means of the sale or grant of an interest in land:\n\n (a) make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or\n\n (b) make a false or misleading representation concerning the nature of the interest in the land; or\n\n (c) make a false or misleading representation concerning the price payable for the land; or\n\n (d) make a false or misleading representation concerning the location of the land; or\n\n (e) make a false or misleading representation concerning the characteristics of the land; or\n\n (f) make a false or misleading representation concerning the use to which the land is capable of being put or may lawfully be put; or\n\n (g) make a false or misleading representation concerning the existence or availability of facilities associated with the land.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) This section does not affect the application of any other provision of Part 2‑1 or this Part in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.","sortOrder":2201},{"sectionNumber":"Sch 2 s 31","sectionType":"section","heading":"Misleading conduct relating to employment","content":"31  Misleading conduct relating to employment\n\n  A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:\n\n (a) the availability, nature, terms or conditions of the employment; or\n\n (b) any other matter relating to the employment.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2202},{"sectionNumber":"Sch 2 s 32","sectionType":"section","heading":"Offering rebates, gifts, prizes etc.","content":"32  Offering rebates, gifts, prizes etc.\n\n (1) A person must not, in trade or commerce, offer any rebate, gift, prize or other free item with the intention of not providing it, or of not providing it as offered, in connection with:\n\n (a) the supply or possible supply of goods or services; or\n\n (b) the promotion by any means of the supply or use of goods or services; or\n\n (c) the sale or grant, or the possible sale or grant, of an interest in land; or\n\n (d) the promotion by any means of the sale or grant of an interest in land.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) If a person offers any rebate, gift, prize or other free item in connection with:\n\n (a) the supply or possible supply of goods or services; or\n\n (b) the promotion by any means of the supply or use of goods or services; or\n\n (c) the sale or grant, or the possible sale or grant, of an interest in land; or\n\n (d) the promotion by any means of the sale or grant of an interest in land;\n\nthe person must, within the time specified in the offer or (if no such time is specified) within a reasonable time after making the offer, provide the rebate, gift, prize or other free item in accordance with the offer.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) Subsection (2) does not apply if:\n\n (a) the person’s failure to provide the rebate, gift, prize or other free item in accordance with the offer was due to the act or omission of another person, or to some other cause beyond the person’s control; and\n\n (b) the person took reasonable precautions and exercised due diligence to avoid the failure.\n\n (4) Subsection (2) does not apply to an offer that the person makes to another person if:\n\n (a) the person offers to the other person a different rebate, gift, prize or other free item as a replacement; and\n\n (b) the other person agrees to receive the different rebate, gift, prize or other free item.\n\n (5) This section does not affect the application of any other provision of Part 2‑1 or this Part in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.","sortOrder":2203},{"sectionNumber":"Sch 2 s 33","sectionType":"section","heading":"Misleading conduct as to the nature etc. of goods","content":"33  Misleading conduct as to the nature etc. of goods\n\n  A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2204},{"sectionNumber":"Sch 2 s 34","sectionType":"section","heading":"Misleading conduct as to the nature etc. of services","content":"34  Misleading conduct as to the nature etc. of services\n\n  A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2205},{"sectionNumber":"Sch 2 s 35","sectionType":"section","heading":"Bait advertising","content":"35  Bait advertising\n\n (1) A person must not, in trade or commerce, advertise goods or services for supply at a specified price if:\n\n (a) there are reasonable grounds for believing that the person will not be able to offer for supply those goods or services at that price for a period that is, and in quantities that are, reasonable, having regard to:\n\n (i) the nature of the market in which the person carries on business; and\n\n (ii) the nature of the advertisement; and\n\n (b) the person is aware or ought reasonably to be aware of those grounds.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A person who, in trade or commerce, advertises goods or services for supply at a specified price must offer such goods or services for supply at that price for a period that is, and in quantities that are, reasonable having regard to:\n\n (a) the nature of the market in which the person carries on business; and\n\n (b) the nature of the advertisement.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.","sortOrder":2206},{"sectionNumber":"Sch 2 s 36","sectionType":"section","heading":"Wrongly accepting payment","content":"36  Wrongly accepting payment\n\n (1) A person must not, in trade or commerce, accept payment or other consideration for goods or services if, at the time of the acceptance, the person intends not to supply the goods or services.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A person must not, in trade or commerce, accept payment or other consideration for goods or services if, at the time of the acceptance, the person intends to supply goods or services materially different from the goods or services in respect of which the payment or other consideration is accepted.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) A person must not, in trade or commerce, accept payment or other consideration for goods or services if, at the time of the acceptance:\n\n (a) there are reasonable grounds for believing that the person will not be able to supply the goods or services:\n\n (i) within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or\n\n (ii) if no period is specified at or before that time—within a reasonable time; and\n\n (b) the person is aware or ought reasonably to be aware of those grounds.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (4) A person who, in trade or commerce, accepts payment or other consideration for goods or services must supply all the goods or services:\n\n (a) within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or\n\n (b) if no period is specified at or before that time—within a reasonable time.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (5) Subsection (4) does not apply if:\n\n (a) the person’s failure to supply all the goods or services within the period, or within a reasonable time, was due to the act or omission of another person, or to some other cause beyond the person’s control; and\n\n (b) the person took reasonable precautions and exercised due diligence to avoid the failure.\n\n (6) Subsection (4) does not apply if:\n\n (a) the person offers to supply different goods or services as a replacement to the person (the customer) to whom the original supply was to be made; and\n\n (b) the customer agrees to receive the different goods or services.\n\n (7) Subsections (1), (2), (3) and (4) apply whether or not the payment or other consideration that the person accepted represents the whole or a part of the payment or other consideration for the supply of the goods or services.","sortOrder":2207},{"sectionNumber":"Sch 2 s 37","sectionType":"section","heading":"Misleading representations about certain business activities","content":"37  Misleading representations about certain business activities\n\n (1) A person must not, in trade or commerce, make a representation that:\n\n (a) is false or misleading in a material particular; and\n\n (b) concerns the profitability, risk or any other material aspect of any business activity that the person has represented as one that can be, or can be to a considerable extent, carried on at or from a person’s place of residence.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A person must not, in trade or commerce, make a representation that:\n\n (a) is false or misleading in a material particular; and\n\n (b) concerns the profitability, risk or any other material aspect of any business activity:\n\n (i) that the person invites (whether by advertisement or otherwise) other persons to engage or participate in, or to offer or apply to engage or participate in; and\n\n (ii) that requires the performance of work by other persons, or the investment of money by other persons and the performance by them of work associated with the investment.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.","sortOrder":2208},{"sectionNumber":"Sch 2 s 38","sectionType":"section","heading":"Application of provisions of this Division to information providers","content":"38  Application of provisions of this Division to information providers\n\n (1) Sections 29, 30, 33, 34 and 37 do not apply to a publication of matter by an information provider if:\n\n (a) in any case—the information provider made the publication in the course of carrying on a business of providing information; or\n\n (b) if the information provider is the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or the holder of a licence granted under the Broadcasting Services Act 1992—the publication was by way of a radio or television broadcast by the information provider.\n\n (2) Subsection (1) does not apply to a publication of an advertisement.\n\n (3) Subsection (1) does not apply to a publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, goods or services (the publicised goods or services), if:\n\n (a) the publicised goods or services were goods or services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or\n\n (b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised goods or services; or\n\n (c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies goods or services of the same kind as the publicised goods or services.\n\n (4) Subsection (1) does not apply to a publication of matter in connection with the sale or grant, or possible sale or grant, of, or the promotion by any means of the sale or grant of, interests in land (the publicised interests in land), if:\n\n (a) the publicised interests in land were interests of a kind sold or granted by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or\n\n (b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who sells or grants interests of the same kind as the publicised interests in land; or\n\n (c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that sells or grants interests of the same kind as the publicised interests in land.","sortOrder":2209},{"sectionNumber":"Sch 2 Division 2","sectionType":"subdivision","heading":"Unsolicited supplies","content":"Division 2—Unsolicited supplies","sortOrder":2210},{"sectionNumber":"Sch 2 s 39","sectionType":"section","heading":"Unsolicited cards etc.","content":"39  Unsolicited cards etc.\n\n (1) A person must not send a credit card or a debit card, or an article that may be used as a credit card and a debit card, to another person except:\n\n (a) pursuant to a written request by the person who will be under a liability to the person who issued the card or article in respect of the use of the card or article; or\n\n (b) in renewal or replacement of, or in substitution for:\n\n (i) a card or article of the same kind previously sent to the other person pursuant to a written request by the person who was under a liability, to the person who issued the card previously so sent, in respect of the use of that card; or\n\n (ii) a card or article of the same kind previously sent to the other person and used for a purpose for which it was intended to be used.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) Subsection (1) does not apply unless the card or article is sent by or on behalf of the person who issued it.\n\n (3) A person must not take any action that enables another person who has a credit card to use the card as a debit card, except in accordance with the other person’s written request.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (4) A person must not take any action that enables another person who has a debit card to use the card as a credit card, except in accordance with the other person’s written request.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (5) A credit card is an article that is one or more of the following:\n\n (a) an article of a kind commonly known as a credit card;\n\n (b) a similar article intended for use in obtaining cash, goods or services on credit;\n\n (c) an article of a kind that persons carrying on business commonly issue to their customers, or prospective customers, for use in obtaining goods or services from those persons on credit;\n\nand includes an article that may be used as an article referred to in paragraph (a), (b) or (c).\n\n (6) A debit card is:\n\n (a) an article intended for use by a person in obtaining access to an account that is held by the person for the purpose of withdrawing or depositing cash or obtaining goods or services; or\n\n (b) an article that may be used as an article referred to in paragraph (a).","sortOrder":2211},{"sectionNumber":"Sch 2 s 40","sectionType":"section","heading":"Assertion of right to payment for unsolicited goods or services","content":"40  Assertion of right to payment for unsolicited goods or services\n\n (1) A person must not, in trade or commerce, assert a right to payment from another person for unsolicited goods unless the person has reasonable cause to believe that there is a right to the payment.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A person must not, in trade or commerce, assert a right to payment from another person for unsolicited services unless the person has reasonable cause to believe that there is a right to the payment.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) A person must not, in trade or commerce, send to another person an invoice or other document that:\n\n (a) states the amount of a payment, or sets out the charge, for unsolicited goods or unsolicited services; and\n\n (b) does not contain a warning statement that complies with the requirements set out in the regulations;\n\nunless the person has reasonable cause to believe that there is a right to the payment or charge.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (4) In a proceeding against a person in relation to a contravention of this section, the person bears the onus of proving that the person had reasonable cause to believe that there was a right to the payment or charge.","sortOrder":2212},{"sectionNumber":"Sch 2 s 41","sectionType":"section","heading":"Liability etc. of recipient for unsolicited goods","content":"41  Liability etc. of recipient for unsolicited goods\n\n (1) If a person, in trade or commerce, supplies unsolicited goods to another person, the other person:\n\n (a) is not liable to make any payment for the goods; and\n\n (b) is not liable for loss of or damage to the goods, other than loss or damage resulting from the other person doing a wilful and unlawful act in relation to the goods during the recovery period.\n\n (2) If a person sends, in trade or commerce, unsolicited goods to another person:\n\n (a) neither the sender nor any person claiming under the sender is entitled, after the end of the recovery period, to take action for the recovery of the goods from the other person; and\n\n (b) at the end of the recovery period, the goods become, by force of this section, the property of the other person freed and discharged from all liens and charges of any description.\n\n (3) However, subsection (2) does not apply to or in relation to unsolicited goods sent to a person if:\n\n (a) the person has, at any time during the recovery period, unreasonably refused to permit the sender or the owner of the goods to take possession of the goods; or\n\n (b) the sender or the owner of the goods has within the recovery period taken possession of the goods; or\n\n (c) the goods were received by the person in circumstances in which the person knew, or might reasonably be expected to have known, that the goods were not intended for him or her.\n\n (4) The recovery period is whichever of the following periods ends first:\n\n (a) the period of 3 months starting on the day after the day on which the person received the goods;\n\n (b) if the person who receives the unsolicited goods gives notice with respect to the goods to the supplier or sender in accordance with subsection (5)—the period of one month starting on the day after the day on which the notice is given.\n\n (5) A notice under subsection (4)(b):\n\n (a) must be in writing; and\n\n (b) must state the name and address of the person who received the goods; and\n\n (c) must state the address at which possession may be taken of the goods, if it is not the address of the person; and\n\n (d) must contain a statement to the effect that the goods are unsolicited goods.","sortOrder":2213},{"sectionNumber":"Sch 2 s 42","sectionType":"section","heading":"Liability of recipient for unsolicited services","content":"42  Liability of recipient for unsolicited services\n\n  If a person, in trade or commerce, supplies, or purports to supply but does not supply, unsolicited services to another person, the other person:\n\n (a) is not liable to make any payment for the services; and\n\n (b) is not liable for loss or damage as a result of the supply or purported supply of the services.","sortOrder":2214},{"sectionNumber":"Sch 2 s 43","sectionType":"section","heading":"Assertion of right to payment for unauthorised entries or advertisements","content":"43  Assertion of right to payment for unauthorised entries or advertisements\n\n (1) A person must not assert a right to payment from another person of a charge for placing, in a publication, an entry or advertisement relating to:\n\n (a) the other person; or\n\n (b) the other person’s profession, business, trade or occupation;\n\nunless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the entry or advertisement.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A person must not send to another person an invoice or other document that:\n\n (a) states the amount of a payment, or sets out the charge, for placing, in a publication, an entry or advertisement relating to:\n\n (i) the other person; or\n\n (ii) the other person’s profession, business, trade or occupation; and\n\n (b) does not contain a warning statement that complies with the requirements set out in the regulations;\n\nunless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the entry or advertisement.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) Subsections (1) and (2) do not apply to an entry or advertisement that is placed in a publication published by a person who is:\n\n (a) the publisher of a publication that has an audited circulation of 10,000 copies or more per week, as confirmed by the most recent audit of the publication by a body specified in the regulations; or\n\n (b) a body corporate related to such a publisher; or\n\n (c) the Commonwealth, a State or a Territory, or an authority of the Commonwealth, a State or a Territory; or\n\n (d) a person specified in the regulations.\n\n (4) A person:\n\n (a) is not liable to make any payment to another person; and\n\n (b) is entitled to recover by action in a court against another person any payment made by the person to the other person;\n\nin full or part satisfaction of a charge for placing, in a publication, an entry or advertisement, unless the person authorised the placing of the entry or advertisement.\n\n (5) A person is not taken for the purposes of this section to have authorised the placing of the entry or advertisement, unless:\n\n (a) a document authorising the placing of the entry or advertisement has been signed by the person or by another person authorised by him or her; and\n\n (b) a copy of the document has been given to the person before the right to payment of a charge for the placing of the entry or advertisement is asserted; and\n\n (c) the document specifies:\n\n (i) the name and address of the person publishing the entry or advertisement; and\n\n (ii) particulars of the entry or advertisement; and\n\n (iii) the amount of the charge for the placing of the entry or advertisement, or the basis on which the charge is, or is to be, calculated.\n\n (6) In a proceeding against a person in relation to a contravention of this section, the person bears the onus of proving that the person knew or had reasonable cause to believe that the person against whom a right to payment was asserted had authorised the placing of the entry or advertisement.","sortOrder":2215},{"sectionNumber":"Sch 2 Division 3","sectionType":"subdivision","heading":"Pyramid schemes","content":"Division 3—Pyramid schemes","sortOrder":2216},{"sectionNumber":"Sch 2 s 44","sectionType":"section","heading":"Participation in pyramid schemes","content":"44  Participation in pyramid schemes\n\n (1) A person must not participate in a pyramid scheme.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A person must not induce, or attempt to induce, another person to participate in a pyramid scheme.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) To participate in a pyramid scheme is:\n\n (a) to establish or promote the scheme (whether alone or together with another person); or\n\n (b) to take part in the scheme in any capacity (whether or not as an employee or agent of a person who establishes or promotes the scheme, or who otherwise takes part in the scheme).","sortOrder":2217},{"sectionNumber":"Sch 2 s 45","sectionType":"section","heading":"Meaning of pyramid scheme","content":"45  Meaning of pyramid scheme\n\n (1) A pyramid scheme is a scheme with both of the following characteristics:\n\n (a) to take part in the scheme, some or all new participants must provide, to another participant or participants in the scheme, either of the following (a participation payment):\n\n (i) a financial or non‑financial benefit to, or for the benefit of, the other participant or participants;\n\n (ii) a financial or non‑financial benefit partly to, or for the benefit of, the other participant or participants and partly to, or for the benefit of, other persons;\n\n (b) the participation payments are entirely or substantially induced by the prospect held out to new participants that they will be entitled, in relation to the introduction to the scheme of further new participants, to be provided with either of the following (a recruitment payment):\n\n (i) a financial or non‑financial benefit to, or for the benefit of, new participants;\n\n (ii) a financial or non‑financial benefit partly to, or for the benefit of, new participants and partly to, or for the benefit of, other persons.\n\n (2) A new participant includes a person who has applied, or been invited, to participate in the scheme.\n\n (3) A scheme may be a pyramid scheme:\n\n (a) no matter who holds out to new participants the prospect of entitlement to recruitment payments; and\n\n (b) no matter who is to make recruitment payments to new participants; and\n\n (c) no matter who is to make introductions to the scheme of further new participants.\n\n (4) A scheme may be a pyramid scheme even if it has any or all of the following characteristics:\n\n (a) the participation payments may (or must) be made after the new participants begin to take part in the scheme;\n\n (b) making a participation payment is not the only requirement for taking part in the scheme;\n\n (c) the holding out of the prospect of entitlement to recruitment payments does not give any new participant a legally enforceable right;\n\n (d) arrangements for the scheme are not recorded in writing (whether entirely or partly);\n\n (e) the scheme involves the marketing of goods or services (or both).","sortOrder":2218},{"sectionNumber":"Sch 2 s 46","sectionType":"section","heading":"Marketing schemes as pyramid schemes","content":"46  Marketing schemes as pyramid schemes\n\n (1) To decide, for the purpose of this Schedule, whether a scheme that involves the marketing of goods or services (or both) is a pyramid scheme, a court must have regard to the following matters in working out whether participation payments under the scheme are entirely or substantially induced by the prospect held out to new participants of entitlement to recruitment payments:\n\n (a) whether the participation payments bear a reasonable relationship to the value of the goods or services that participants are entitled to be supplied with under the scheme (as assessed, if appropriate, by reference to the price of comparable goods or services available elsewhere);\n\n (b) the emphasis given in the promotion of the scheme to the entitlement of participants to the supply of goods or services by comparison with the emphasis given to their entitlement to recruitment payments.\n\n (2) Subsection (1) does not limit the matters to which the court may have regard in working out whether participation payments are entirely or substantially induced by the prospect held out to new participants of entitlement to recruitment payments.","sortOrder":2219},{"sectionNumber":"Sch 2 Division 4","sectionType":"subdivision","heading":"Pricing","content":"Division 4—Pricing","sortOrder":2220},{"sectionNumber":"Sch 2 s 47","sectionType":"section","heading":"Multiple pricing","content":"47  Multiple pricing\n\n (1) A person must not, in trade or commerce, supply goods if:\n\n (a) the goods have more than one displayed price; and\n\n (b) the supply takes place for a price that is not the lower, or lowest, of the displayed prices.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A displayed price for goods is a price for the goods, or any representation that may reasonably be inferred to be a representation of a price for the goods:\n\n (a) that is annexed or affixed to, or is written, printed, stamped or located on, or otherwise applied to, the goods or any covering, label, reel or thing used in connection with the goods; or\n\n (b) that is used in connection with the goods or anything on which the goods are mounted for display or exposed for supply; or\n\n (c) that is determined on the basis of anything encoded on or in relation to the goods; or\n\n (d) that is published in relation to the goods in a catalogue available to the public if:\n\n (i) a time is specified in the catalogue as the time after which the goods will not be sold at that price and that time has not passed; or\n\n (ii) in any other case—the catalogue may reasonably be regarded as not out‑of‑date; or\n\n (e) that is in any other way represented in a manner from which it may reasonably be inferred that the price or representation is applicable to the goods;\n\nand includes such a price or representation that is partly obscured by another such price or representation that is written, stamped or located partly over that price or representation.\n\n (3) If:\n\n (a) a price or representation is included in a catalogue; and\n\n (b) the catalogue is expressed to apply only to goods supplied at a specified location, or in a specified region;\n\nthe price or representation is taken, for the purposes of subsection (2)(d), not to have been made in relation to supply of the goods at a different location, or in a different region, as the case may be.\n\n (4) Despite subsection (2), a price or representation is not a displayed price for goods if:\n\n (a) the price or representation is wholly obscured by another such price or representation that is written, stamped or located wholly over that price or representation; or\n\n (b) the price or representation:\n\n (i) is expressed as a price per unit of mass, volume, length or other unit of measure; and\n\n (ii) is presented as an alternative means of expressing the price for supply of the goods that is a displayed price for the goods; or\n\n (c) the price or representation is expressed as an amount in a currency other than Australian currency; or\n\n (d) the price or representation is expressed in a way that is unlikely to be interpreted as an amount of Australian currency.\n\n (5) Despite subsection (2), a displayed price for goods that is a displayed price because it has been published in a catalogue or advertisement ceases to be a displayed price for the goods if:\n\n (a) the displayed price is retracted; and\n\n (b) the retraction is published in a manner that has at least a similar circulation or audience as the catalogue or advertisement.","sortOrder":2221},{"sectionNumber":"Sch 2 s 48","sectionType":"section","heading":"Single price to be specified in certain circumstances","content":"48  Single price to be specified in certain circumstances\n\n (1) A person must not, in trade or commerce, in connection with:\n\n (a) the supply, or possible supply, to another person of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption; or\n\n (b) the promotion by any means of the supply to another person, or of the use by another person, of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption;\n\nmake a representation with respect to an amount that, if paid, would constitute a part of the consideration for the supply of the goods or services unless the person also specifies, in a prominent way and as a single figure, the single price for the goods or services.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A person is not required to include, in the single price for goods, a charge that is payable in relation to sending the goods from the supplier to the other person.\n\n (3) However, if:\n\n (a) the person does not include in the single price a charge that is payable in relation to sending the goods from the supplier to the other person; and\n\n (b) the person knows, at the time of the representation, the minimum amount of a charge in relation to sending the goods from the supplier to the other person that must be paid by the other person;\n\nthe person must not make the representation referred to in subsection (1) unless the person also specifies that minimum amount.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (4) Subsection (1) does not apply if the representation is made exclusively to a body corporate.\n\n (4A) Subsection (1) does not apply if:\n\n (a) the representation is in a class of representations prescribed by the regulations; and\n\n (b) the conditions (if any) prescribed by the regulations in relation to representations in that class have been complied with.\n\nNote: If the representation is in a class prescribed for paragraph (a) of this subsection and subsection (1) is complied with in relation to the representation, there is no need to also comply with any conditions prescribed for paragraph (b) of this subsection.\n\n (5) For the purposes of subsection (1), the person is taken not to have specified a single price for the goods or services in a prominent way unless the single price is at least as prominent as the most prominent of the parts of the consideration for the supply.\n\n (6) Subsection (5) does not apply in relation to services to be supplied under a contract if:\n\n (a) the contract provides for the supply of the services for the term of the contract; and\n\n (b) the contract provides for periodic payments for the services to be made during the term of the contract; and\n\n (c) if the contract also provides for the supply of goods—the goods are directly related to the supply of the services.\n\n (7) The single price is the minimum quantifiable consideration for the supply of the goods or services at the time of the representation, including each of the following amounts (if any) that is quantifiable at that time:\n\n (a) a charge of any description payable to the person making the representation by another person unless:\n\n (i) the charge is payable at the option of the other person; and\n\n (ii) at or before the time of the representation, the other person has either deselected the charge or not expressly requested that the charge be applied;\n\n (b) the amount which reflects any tax, duty, fee, levy or charge imposed on the person making the representation in relation to the supply;\n\n (c) any amount paid or payable by the person making the representation in relation to the supply with respect to any tax, duty, fee, levy or charge if:\n\n (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\n\n (ii) the tax, duty, fee, levy or charge would have otherwise been payable by another person in relation to the supply.\n\nExample 1: An airline advertises a flight for sale. Persons have the option of paying for a carbon offset. If the carbon offset is preselected on the airline’s online booking system, the single price for the flight must include the carbon offset charge. This is because the person has not, at or before the time of the representation, deselected the charge on the online booking site. If the person deselects the optional carbon offset charge later in the online booking process, the single price does not need to include the carbon offset charge after the charge is deselected because of the exception provided by paragraphs (a)(i) and (ii).\n\nExample 2: The GST may be an example of an amount covered by paragraph (b).\n\nExample 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.","sortOrder":2222},{"sectionNumber":"Sch 2 Division 5","sectionType":"subdivision","heading":"Other unfair practices","content":"Division 5—Other unfair practices","sortOrder":2223},{"sectionNumber":"Sch 2 s 49","sectionType":"section","heading":"Referral selling","content":"49  Referral selling\n\n  A person must not, in trade or commerce, induce a consumer to acquire goods or services by representing that the consumer will, after the contract for the acquisition of the goods or services is made, receive a rebate, commission or other benefit in return for:\n\n (a) giving the person the names of prospective customers; or\n\n (b) otherwise assisting the person to supply goods or services to other consumers;\n\nif receipt of the rebate, commission or other benefit is contingent on an event occurring after that contract is made.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2224},{"sectionNumber":"Sch 2 s 50","sectionType":"section","heading":"Harassment and coercion","content":"50  Harassment and coercion\n\n (1) A person must not use physical force, or undue harassment or coercion, in connection with:\n\n (a) the supply or possible supply of goods or services; or\n\n (b) the payment for goods or services; or\n\n (c) the sale or grant, or the possible sale or grant, of an interest in land; or\n\n (d) the payment for an interest in land.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) Subsections (1)(c) and (d) do not affect the application of any other provision of Part 2‑1 or this Part in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.","sortOrder":2225},{"sectionNumber":"Sch 2 Part 3-2","sectionType":"division","heading":"Consumer transactions","content":"Part 3‑2—Consumer transactions","sortOrder":2226},{"sectionNumber":"Sch 2 Subdivision A","sectionType":"subdivision","heading":"Guarantees relating to the supply of goods","content":"Subdivision A—Guarantees relating to the supply of goods","sortOrder":2228},{"sectionNumber":"Sch 2 s 51","sectionType":"section","heading":"Guarantee as to title","content":"51  Guarantee as to title\n\n (1) If a person (the supplier) supplies goods to a consumer, there is a guarantee that the supplier will have a right to dispose of the property in the goods when that property is to pass to the consumer.\n\n (2) Subsection (1) does not apply to a supply (a supply of limited title) if an intention that the supplier of the goods should transfer only such title as the supplier, or another person, may have:\n\n (a) appears from the contract for the supply; or\n\n (b) is to be inferred from the circumstances of that contract.\n\n (3) This section does not apply if the supply is a supply by way of hire or lease.","sortOrder":2229},{"sectionNumber":"Sch 2 s 52","sectionType":"section","heading":"Guarantee as to undisturbed possession","content":"52  Guarantee as to undisturbed possession\n\n (1) If:\n\n (a) a person (the supplier) supplies goods to a consumer; and\n\n (b) the supply is not a supply of limited title;\n\nthere is a guarantee that the consumer has the right to undisturbed possession of the goods.\n\n (2) Subsection (1) does not apply to the extent that the consumer’s undisturbed possession of the goods may be lawfully disturbed by a person who is entitled to the benefit of any security, charge or encumbrance disclosed to the consumer before the consumer agreed to the supply.\n\n (3) If:\n\n (a) a person (the supplier) supplies goods to a consumer; and\n\n (b) the supply is a supply of limited title;\n\nthere is a guarantee that the following persons will not disturb the consumer’s possession of the goods:\n\n (c) the supplier;\n\n (d) if the parties to the contract for the supply intend that the supplier should transfer only such title as another person may have—that other person;\n\n (e) anyone claiming through or under the supplier or that other person (otherwise than under a security, charge or encumbrance disclosed to the consumer before the consumer agreed to the supply).\n\n (4) This section applies to a supply by way of hire or lease only for the period of the hire or lease.","sortOrder":2230},{"sectionNumber":"Sch 2 s 53","sectionType":"section","heading":"Guarantee as to undisclosed securities etc.","content":"53  Guarantee as to undisclosed securities etc.\n\n (1) If:\n\n (a) a person (the supplier) supplies goods to a consumer; and\n\n (b) the supply is not a supply of limited title;\n\nthere is a guarantee that:\n\n (c) the goods are free from any security, charge or encumbrance:\n\n (i) that was not disclosed to the consumer, in writing, before the consumer agreed to the supply; or\n\n (ii) that was not created by or with the express consent of the consumer; and\n\n (d) the goods will remain free from such a security, charge or encumbrance until the time when the property in the goods passes to the consumer.\n\n (2) A supplier does not fail to comply with the guarantee only because of the existence of a floating charge over the supplier’s assets unless and until the charge becomes fixed and enforceable by the person to whom the charge is given.\n\nNote: Section 339 of the Personal Property Securities Act 2009 affects the meaning of the references in this subsection to a floating charge and a fixed charge.\n\n (3) If:\n\n (a) a person (the supplier) supplies goods to a consumer; and\n\n (b) the supply is a supply of limited title;\n\nthere is a guarantee that all securities, charges or encumbrances known to the supplier, and not known to the consumer, were disclosed to the consumer before the consumer agreed to the supply.\n\n (4) This section does not apply if the supply is a supply by way of hire or lease.","sortOrder":2231},{"sectionNumber":"Sch 2 s 54","sectionType":"section","heading":"Guarantee as to acceptable quality","content":"54  Guarantee as to acceptable quality\n\n (1) If:\n\n (a) a person supplies, in trade or commerce, goods to a consumer; and\n\n (b) the supply does not occur by way of sale by auction;\n\nthere is a guarantee that the goods are of acceptable quality.\n\n (2) Goods are of acceptable quality if they are as:\n\n (a) fit for all the purposes for which goods of that kind are commonly supplied; and\n\n (b) acceptable in appearance and finish; and\n\n (c) free from defects; and\n\n (d) safe; and\n\n (e) durable;\n\nas a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).\n\n (3) The matters for the purposes of subsection (2) are:\n\n (a) the nature of the goods; and\n\n (b) the price of the goods (if relevant); and\n\n (c) any statements made about the goods on any packaging or label on the goods; and\n\n (d) any representation made about the goods by the supplier or manufacturer of the goods; and\n\n (e) any other relevant circumstances relating to the supply of the goods.\n\n (4) If:\n\n (a) goods supplied to a consumer are not of acceptable quality; and\n\n (b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply;\n\nthe goods are taken to be of acceptable quality.\n\n (5) If:\n\n (a) goods are displayed for sale or hire; and\n\n (b) the goods would not be of acceptable quality if they were supplied to a consumer;\n\nthe reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.\n\n (6) Goods do not fail to be of acceptable quality if:\n\n (a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and\n\n (b) they are damaged by abnormal use.\n\n (7) Goods do not fail to be of acceptable quality if:\n\n (a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and\n\n (b) the examination ought reasonably to have revealed that the goods were not of acceptable quality.","sortOrder":2232},{"sectionNumber":"Sch 2 s 55","sectionType":"section","heading":"Guarantee as to fitness for any disclosed purpose etc.","content":"55  Guarantee as to fitness for any disclosed purpose etc.\n\n (1) If:\n\n (a) a person (the supplier) supplies, in trade or commerce, goods to a consumer; and\n\n (b) the supply does not occur by way of sale by auction;\n\nthere is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.\n\n (2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:\n\n (a) the consumer makes known, expressly or by implication, to:\n\n (i) the supplier; or\n\n (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or\n\n (b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).\n\n (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.","sortOrder":2233},{"sectionNumber":"Sch 2 s 56","sectionType":"section","heading":"Guarantee relating to the supply of goods by description","content":"56  Guarantee relating to the supply of goods by description\n\n (1) If:\n\n (a) a person supplies, in trade or commerce, goods by description to a consumer; and\n\n (b) the supply does not occur by way of sale by auction;\n\nthere is a guarantee that the goods correspond with the description.\n\n (2) A supply of goods is not prevented from being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer.\n\n (3) If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply.","sortOrder":2234},{"sectionNumber":"Sch 2 s 57","sectionType":"section","heading":"Guarantees relating to the supply of goods by sample or demonstration model","content":"57  Guarantees relating to the supply of goods by sample or demonstration model\n\n (1) If:\n\n (a) a person supplies, in trade or commerce, goods to a consumer by reference to a sample or demonstration model; and\n\n (b) the supply does not occur by way of sale by auction;\n\nthere is a guarantee that:\n\n (c) the goods correspond with the sample or demonstration model in quality, state or condition; and\n\n (d) if the goods are supplied by reference to a sample—the consumer will have a reasonable opportunity to compare the goods with the sample; and\n\n (e) the goods are free from any defect that:\n\n (i) would not be apparent on reasonable examination of the sample or demonstration model; and\n\n (ii) would cause the goods not to be of acceptable quality.\n\n (2) If goods are supplied by reference to a sample or demonstration model as well as by description, the guarantees in section 56 and in this section both apply.","sortOrder":2235},{"sectionNumber":"Sch 2 s 58","sectionType":"section","heading":"Guarantee as to repairs and spare parts","content":"58  Guarantee as to repairs and spare parts\n\n (1) If:\n\n (a) a person supplies, in trade or commerce, goods to a consumer; and\n\n (b) the supply does not occur by way of sale by auction;\n\nthere is a guarantee that the manufacturer of the goods will take reasonable action to ensure that facilities for the repair of the goods, and parts for the goods, are reasonably available for a reasonable period after the goods are supplied.\n\n (2) This section does not apply if the manufacturer took reasonable action to ensure that the consumer would be given written notice, at or before the time when the consumer agrees to the supply of the goods, that:\n\n (a) facilities for the repair of the goods would not be available or would not be available after a specified period; or\n\n (b) parts for the goods would not be available or would not be available after a specified period.","sortOrder":2236},{"sectionNumber":"Sch 2 s 59","sectionType":"section","heading":"Guarantee as to express warranties","content":"59  Guarantee as to express warranties\n\n (1) If:\n\n (a) a person supplies, in trade or commerce, goods to a consumer; and\n\n (b) the supply does not occur by way of sale by auction;\n\nthere is a guarantee that the manufacturer of the goods will comply with any express warranty given or made by the manufacturer in relation to the goods.\n\n (2) If:\n\n (a) a person supplies, in trade or commerce, goods to a consumer; and\n\n (b) the supply does not occur by way of sale by auction;\n\nthere is a guarantee that the supplier will comply with any express warranty given or made by the supplier in relation to the goods.","sortOrder":2237},{"sectionNumber":"Sch 2 Subdivision B","sectionType":"subdivision","heading":"Guarantees relating to the supply of services","content":"Subdivision B—Guarantees relating to the supply of services","sortOrder":2238},{"sectionNumber":"Sch 2 s 60","sectionType":"section","heading":"Guarantee as to due care and skill","content":"60  Guarantee as to due care and skill\n\n  If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.","sortOrder":2239},{"sectionNumber":"Sch 2 s 61","sectionType":"section","heading":"Guarantees as to fitness for a particular purpose etc.","content":"61  Guarantees as to fitness for a particular purpose etc.\n\n (1) If:\n\n (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and\n\n (b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;\n\nthere is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.\n\n (2) If:\n\n (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and\n\n (b) the consumer makes known, expressly or by implication, to:\n\n (i) the supplier; or\n\n (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;\n\n  the result that the consumer wishes the services to achieve;\n\nthere is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.\n\n (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.\n\n (4) This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.","sortOrder":2240},{"sectionNumber":"Sch 2 s 62","sectionType":"section","heading":"Guarantee as to reasonable time for supply","content":"62  Guarantee as to reasonable time for supply\n\n  If:\n\n (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and\n\n (b) the time within which the services are to be supplied:\n\n (i) is not fixed by the contract for the supply of the services; or\n\n (ii) is not to be determined in a manner agreed to by the consumer and supplier;\n\nthere is a guarantee that the services will be supplied within a reasonable time.","sortOrder":2241},{"sectionNumber":"Sch 2 s 63","sectionType":"section","heading":"Services to which this Subdivision does not apply","content":"63  Services to which this Subdivision does not apply\n\n (1) This Subdivision does not apply to services that are, or are to be, supplied under:\n\n (a) a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored; or\n\n (b) a contract of insurance.\n\n (2) To avoid doubt, subsection (1)(a) does not apply if the consignee of the goods is not carrying on or engaged in a business, trade, profession or occupation in relation to the goods.\n\nNote: This subsection was inserted as a response to the decision of the High Court of Australia in Wallis v Downard‑Pickford (North Queensland) Pty Ltd [1994] HCA 17.","sortOrder":2242},{"sectionNumber":"Sch 2 Subdivision C","sectionType":"subdivision","heading":"Guarantees not to be excluded etc. by contract","content":"Subdivision C—Guarantees not to be excluded etc. by contract","sortOrder":2243},{"sectionNumber":"Sch 2 s 64","sectionType":"section","heading":"Guarantees not to be excluded etc. by contract","content":"64  Guarantees not to be excluded etc. by contract\n\n (1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying:\n\n (a) the application of all or any of the provisions of this Division; or\n\n (b) the exercise of a right conferred by such a provision; or\n\n (c) any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services.\n\n (2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision.","sortOrder":2244},{"sectionNumber":"Sch 2 s 64A","sectionType":"section","heading":"Limitation of liability for failures to comply with guarantees","content":"64A  Limitation of liability for failures to comply with guarantees\n\n (1) A term of a contract for the supply by a person of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 64 merely because the term limits the person’s liability for failure to comply with a guarantee (other than a guarantee under section 51, 52 or 53) to one or more of the following:\n\n (a) the replacement of the goods or the supply of equivalent goods;\n\n (b) the repair of the goods;\n\n (c) the payment of the cost of replacing the goods or of acquiring equivalent goods;\n\n (d) the payment of the cost of having the goods repaired.\n\n (2) A term of a contract for the supply by a person of services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 64 merely because the term limits the person’s liability for failure to comply with a guarantee to:\n\n (a) the supplying of the services again; or\n\n (b) the payment of the cost of having the services supplied again.\n\n (3) This section does not apply in relation to a term of a contract if the person to whom the goods or services were supplied establishes that it is not fair or reasonable for the person who supplied the goods or services to rely on that term of the contract.\n\n (4) In determining for the purposes of subsection (3) whether or not reliance on a term of a contract is fair or reasonable, a court is to have regard to all the circumstances of the case, and in particular to the following matters:\n\n (a) the strength of the bargaining positions of the person who supplied the goods or services and the person to whom the goods or services were supplied (the buyer) relative to each other, taking into account, among other things, the availability of equivalent goods or services and suitable alternative sources of supply;\n\n (b) whether the buyer received an inducement to agree to the term or, in agreeing to the term, had an opportunity of acquiring the goods or services or equivalent goods or services from any source of supply under a contract that did not include that term;\n\n (c) whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);\n\n (d) in the case of the supply of goods, whether the goods were manufactured, processed or adapted to the special order of the buyer.","sortOrder":2245},{"sectionNumber":"Sch 2 Subdivision D","sectionType":"subdivision","heading":"Miscellaneous","content":"Subdivision D—Miscellaneous","sortOrder":2246},{"sectionNumber":"Sch 2 s 65","sectionType":"section","heading":"Application of this Division to supplies of gas, electricity and telecommunications","content":"65  Application of this Division to supplies of gas, electricity and telecommunications\n\n (1) This Division does not apply to a supply if the supply:\n\n (a) is a supply of a kind specified in the regulations; and\n\n (b) is a supply of gas, electricity or a telecommunications service.\n\n (2) A telecommunications service is a service for carrying communications by means of guided or unguided electromagnetic energy or both.","sortOrder":2247},{"sectionNumber":"Sch 2 s 66","sectionType":"section","heading":"Display notices","content":"66  Display notices\n\n (1) The Commonwealth Minister may determine, in writing, that persons (the suppliers) who make supplies, or supplies of a specified kind, to which guarantees apply under this Division are required to display, in accordance with the determination, a notice that meets the requirements of the determination.\n\n (2) A supplier who makes a supply to a consumer to which a guarantee applies under this Division, and to which such a determination relates, must ensure that a notice that meets those requirements is, in accordance with the determination:\n\n (a) if the consumer takes delivery of the goods or services at the supplier’s premises—displayed at those premises; or\n\n (b) otherwise—drawn to the consumer’s attention before the consumer agrees to the supply of the goods.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) Without limiting subsection (1), a determination under that subsection may do all or any of the following:\n\n (a) require the notice to include specified information about the application of all or any of the provisions of this Division and Part 5‑4;\n\n (b) specify where the notice must be displayed;\n\n (c) specify how the notice must be drawn to the attention of consumers;\n\n (d) specify requirements as to the form of the notice.","sortOrder":2248},{"sectionNumber":"Sch 2 s 67","sectionType":"section","heading":"Conflict of laws","content":"67  Conflict of laws\n\n  If:\n\n (a) the proper law of a contract for the supply of goods or services to a consumer would be the law of any part of Australia but for a term of the contract that provides otherwise; or\n\n (b) a contract for the supply of goods or services to a consumer contains a term that purports to substitute, or has the effect of substituting, the following provisions for all or any of the provisions of this Division:\n\n (i) the provisions of the law of a country other than Australia;\n\n (ii) the provisions of the law of a State or a Territory;\n\nthe provisions of this Division apply in relation to the supply under the contract despite that term.","sortOrder":2249},{"sectionNumber":"Sch 2 s 68","sectionType":"section","heading":"Convention on Contracts for the International Sale of Goods","content":"68  Convention on Contracts for the International Sale of Goods\n\n  The provisions of the United Nations Convention on Contracts for the International Sale of Goods, done at Vienna on 11 April 1980, as amended and in force for Australia from time to time, prevail over the provisions of this Division to the extent of any inconsistency.\n\nNote: The text of the Convention is set out in Australian Treaty Series 1988 No. 32 ([1988] ATS 32). In 2010, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).","sortOrder":2250},{"sectionNumber":"Sch 2 s 69","sectionType":"section","heading":"Meaning of unsolicited consumer agreement","content":"69  Meaning of unsolicited consumer agreement\n\n (1) An agreement is an unsolicited consumer agreement if:\n\n (a) it is for the supply, in trade or commerce, of goods or services to a consumer; and\n\n (b) it is made as a result of negotiations between a dealer and the consumer:\n\n (i) in each other’s presence at a place other than the business or trade premises of the supplier of the goods or services; or\n\n (ii) by telephone;\n\n  whether or not they are the only negotiations that precede the making of the agreement; and\n\n (c) the consumer did not invite the dealer to come to that place, or to make a telephone call, for the purposes of entering into negotiations relating to the supply of those goods or services (whether or not the consumer made such an invitation in relation to a different supply); and\n\n (d) the total price paid or payable by the consumer under the agreement:\n\n (i) is not ascertainable at the time the agreement is made; or\n\n (ii) if it is ascertainable at that time—is more than $100 or such other amount prescribed by the regulations.\n\n (1AA) To avoid doubt, a place mentioned in subsection (1)(b)(i) may be a public place, and need not be a place the dealer cannot enter without the consumer’s consent or invitation.\n\nNote: This subsection was inserted as a response to the decision of the Federal Court of Australia in Australian Competition and Consumer Commission v A.C.N. 099 814 749 Pty Ltd [2016] FCA 403.\n\n (1A) The consumer is not taken, for the purposes of subsection (1)(c), to have invited the dealer to come to that place, or to make a telephone call, merely because the consumer has:\n\n (a) given his or her name or contact details other than for the predominant purpose of entering into negotiations relating to the supply of the goods or services referred to in subsection (1)(c); or\n\n (b) contacted the dealer in connection with an unsuccessful attempt by the dealer to contact the consumer.\n\n (2) An invitation merely to quote a price for a supply is not taken, for the purposes of subsection (1)(c), to be an invitation to enter into negotiations for a supply.\n\n (3) An agreement is also an unsolicited consumer agreement if it is an agreement of a kind that the regulations provide are unsolicited consumer agreements.\n\n (4) However, despite subsections (1) and (3), an agreement is not an unsolicited consumer agreement if it is an agreement of a kind that the regulations provide are not unsolicited consumer agreements.","sortOrder":2253},{"sectionNumber":"Sch 2 s 70","sectionType":"section","heading":"Presumption that agreements are unsolicited consumer agreements","content":"70  Presumption that agreements are unsolicited consumer agreements\n\n (1) In a proceeding relating to a contravention or possible contravention of this Division (other than a criminal proceeding), an agreement is presumed to be an unsolicited consumer agreement if:\n\n (a) a party to the proceeding alleges that the agreement is an unsolicited consumer agreement; and\n\n (b) no other party to the proceeding proves that the agreement is not an unsolicited consumer agreement.\n\n (2) In a proceeding relating to a contravention or possible contravention of this Division (other than a criminal proceeding), it is presumed that a proposed agreement would be an unsolicited consumer agreement if it were made if:\n\n (a) a party to the proceeding alleges that the proposed agreement would be an unsolicited consumer agreement if it were made; and\n\n (b) no other party to the proceeding proves that the proposed agreement would not be an unsolicited consumer agreement if it were made.","sortOrder":2254},{"sectionNumber":"Sch 2 s 71","sectionType":"section","heading":"Meaning of dealer","content":"71  Meaning of dealer\n\n  A dealer is a person who, in trade or commerce:\n\n (a) enters into negotiations with a consumer with a view to making an agreement for the supply of goods or services to the consumer; or\n\n (b) calls on, or telephones, a consumer for the purpose of entering into such negotiations;\n\nwhether or not that person is, or is to be, the supplier of the goods or services.","sortOrder":2255},{"sectionNumber":"Sch 2 s 72","sectionType":"section","heading":"Meaning of negotiation","content":"72  Meaning of negotiation\n\n  A negotiation, in relation to an agreement or a proposed agreement, includes any discussion or dealing directed towards the making of the agreement or proposed agreement (whether or not the terms of the agreement or proposed agreement are open to any discussion or dealing).","sortOrder":2256},{"sectionNumber":"Sch 2 s 73","sectionType":"section","heading":"Permitted hours for negotiating an unsolicited consumer agreement","content":"73  Permitted hours for negotiating an unsolicited consumer agreement\n\n (1) A dealer must not call on a person for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose:\n\n (a) at any time on a Sunday or a public holiday; or\n\n (b) before 9 am on any other day; or\n\n (c) after 6 pm on any other day (or after 5 pm if the other day is a Saturday).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) Subsection (1) does not apply if the dealer calls on the person in accordance with consent that:\n\n (a) was given by the person to the dealer or a person acting on the dealer’s behalf; and\n\n (b) was not given in the presence of the dealer or a person acting on the dealer’s behalf.\n\nNote: The Do Not Call Register Act 2006 may apply to a telephone call made for the purpose of negotiating an unsolicited consumer agreement.","sortOrder":2258},{"sectionNumber":"Sch 2 s 74","sectionType":"section","heading":"Disclosing purpose and identity","content":"74  Disclosing purpose and identity\n\n  A dealer who calls on a person for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose, must, as soon as practicable and in any event before starting to negotiate:\n\n (a) clearly advise the person that the dealer’s purpose is to seek the person’s agreement to a supply of the goods or services concerned; and\n\n (b) clearly advise the person that the dealer is obliged to leave the premises immediately on request; and\n\n (c) provide to the person such information relating to the dealer’s identity as is prescribed by the regulations.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2259},{"sectionNumber":"Sch 2 s 75","sectionType":"section","heading":"Ceasing to negotiate on request","content":"75  Ceasing to negotiate on request\n\n (1) A dealer who calls on a person at any premises for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose, must leave the premises immediately on the request of:\n\n (a) the occupier of the premises, or any person acting with the actual or apparent authority of the occupier; or\n\n (b) the person (the prospective consumer) with whom the negotiations are being conducted.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) If the prospective consumer makes such a request, the dealer must not contact the prospective consumer for the purpose of negotiating an unsolicited consumer agreement (or for an incidental or related purpose) for at least 30 days after the prospective consumer makes the request.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) If the dealer is not, or is not to be, the supplier of the goods or services to which the negotiations relate:\n\n (a) subsection (2) applies to that supplier, and any person acting on behalf of that supplier, in the same way that it applies to the dealer; but\n\n (b) subsection (2) does not apply to the dealer contacting the prospective customer in relation to a supply by another supplier.","sortOrder":2260},{"sectionNumber":"Sch 2 s 76","sectionType":"section","heading":"Informing person of termination period etc.","content":"76  Informing person of termination period etc.\n\n  A dealer must not make an unsolicited consumer agreement with a person unless:\n\n (a) before the agreement is made, the person is given information as to the following:\n\n (i) the person’s right to terminate the agreement during the termination period;\n\n (ii) the way in which the person may exercise that right;\n\n (iii) such other matters as are prescribed by the regulations; and\n\n (b) if the agreement is made in the presence of both the dealer and the person—the person is given the information in writing; and\n\n (c) if the agreement is made by telephone—the person is given the information by telephone, and is subsequently given the information in writing; and\n\n (d) the form in which, and the way in which, the person is given the information complies with any other requirements prescribed by the regulations.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2261},{"sectionNumber":"Sch 2 s 77","sectionType":"section","heading":"Liability of suppliers for contraventions by dealers","content":"77  Liability of suppliers for contraventions by dealers\n\n  If:\n\n (a) a dealer contravenes a provision of this Subdivision in relation to an unsolicited consumer agreement; and\n\n (b) the dealer is not, or is not to be, the supplier of the goods or services to which the agreement relates;\n\nthe supplier of the goods or services is also taken to have contravened that provision in relation to the agreement.","sortOrder":2262},{"sectionNumber":"Sch 2 s 78","sectionType":"section","heading":"Requirement to give document to the consumer","content":"78  Requirement to give document to the consumer\n\n (1) If an unsolicited consumer agreement was not negotiated by telephone, the dealer who negotiated the agreement must give a copy of the agreement to the consumer under the agreement immediately after the consumer signs the agreement.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) If an unsolicited consumer agreement was negotiated by telephone, the dealer who negotiated the agreement must, within 5 business days after the agreement was made or such longer period agreed by the parties, give to the consumer under the agreement:\n\n (a) personally; or\n\n (b) by post; or\n\n (c) with the consumer’s consent—by electronic communication;\n\na document (the agreement document) evidencing the agreement.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) An unsolicited consumer agreement was negotiated by telephone if the negotiations that resulted in the making of the agreement took place by telephone (whether or not other negotiations preceded the making of the agreement).","sortOrder":2264},{"sectionNumber":"Sch 2 s 79","sectionType":"section","heading":"Requirements for all unsolicited consumer agreements etc.","content":"79  Requirements for all unsolicited consumer agreements etc.\n\n  The supplier under an unsolicited consumer agreement must ensure that the agreement, or (if the agreement was negotiated by telephone) the agreement document, complies with the following requirements:\n\n (a) it must set out in full all the terms of the agreement, including:\n\n (i) the total consideration to be paid or provided by the consumer under the agreement or, if the total consideration is not ascertainable at the time the agreement is made, the way in which it is to be calculated; and\n\n (ii) any postal or delivery charges to be paid by the consumer;\n\n (b) its front page must include a notice that:\n\n (i) conspicuously and prominently informs the consumer of the consumer’s right to terminate the agreement; and\n\n (ii) conspicuously and prominently sets out any other information prescribed by the regulations; and\n\n (iii) complies with any other requirements prescribed by the regulations;\n\n (c) it must be accompanied by a notice that:\n\n (i) may be used by the consumer to terminate the agreement; and\n\n (ii) complies with any requirements prescribed by the regulations;\n\n (d) it must conspicuously and prominently set out in full:\n\n (i) the supplier’s name; and\n\n (ii) if the supplier has an ABN—the supplier’s ABN; and\n\n (iii) if the supplier does not have an ABN but has an ACN—the supplier’s ACN; and\n\n (iv) the supplier’s business address (not being a post box) or, if the supplier does not have a business address, the supplier’s residential address; and\n\n (v) if the supplier has an email address—the supplier’s email address; and\n\n (vi) if the supplier has a fax number—the supplier’s fax number;\n\n (e) it must be printed clearly or typewritten (apart from any amendments to the printed or typewritten form, which may be handwritten);\n\n (f) it must be transparent.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2265},{"sectionNumber":"Sch 2 s 80","sectionType":"section","heading":"Additional requirements for unsolicited consumer agreements not negotiated by telephone","content":"80  Additional requirements for unsolicited consumer agreements not negotiated by telephone\n\n  The supplier under an unsolicited consumer agreement that was not negotiated by telephone must ensure that, in addition to complying with the requirements of section 79, the agreement complies with the following requirements:\n\n (a) the agreement must be signed by the consumer under the agreement;\n\n (b) if the agreement is signed by a person on the supplier’s behalf—the agreement must state that the person is acting on the supplier’s behalf, and must set out in full:\n\n (i) the person’s name; and\n\n (ii) the person’s business address (not being a post box) or, if the person does not have a business address, the person’s residential address; and\n\n (iii) if the person has an email address—the person’s email address.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2266},{"sectionNumber":"Sch 2 s 81","sectionType":"section","heading":"Requirements for amendments of unsolicited consumer agreements","content":"81  Requirements for amendments of unsolicited consumer agreements\n\n  The supplier under an unsolicited consumer agreement must ensure that any amendments to the agreement are signed by both parties to the agreement.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2267},{"sectionNumber":"Sch 2 s 82","sectionType":"section","heading":"Terminating an unsolicited consumer agreement during the termination period","content":"82  Terminating an unsolicited consumer agreement during the termination period\n\n (1) The consumer under an unsolicited consumer agreement may, during the period provided under subsection (3), terminate the agreement by indicating, in an oral or written notice to the supplier under the agreement, an intention to terminate the agreement.\n\n (2) A right of termination under this section may be exercised:\n\n (a) despite affirmation of the agreement by the consumer; and\n\n (b) even though the agreement has been fully executed.\n\n (3) The period during which the consumer may terminate the agreement is whichever of the following periods is the longest:\n\n (a) if the agreement was not negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the agreement was made;\n\n (b) if the agreement was negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the consumer was given the agreement document relating to the agreement;\n\n (c) if one or more of sections 73 (permitted hours for negotiating an unsolicited consumer agreement), 74 (disclosing purpose and identity) and 75 (ceasing to negotiate on request) were contravened in relation to the agreement:\n\n (i) if the agreement was not negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the period of 3 months starting on the day after the day on which the agreement was made; or\n\n (ii) if the agreement was negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the period of 3 months starting on the day after the day on which the consumer was given the agreement document relating to the agreement;\n\n (d) if one or more of section 76 (informing consumer of termination period), a provision of Subdivision C (requirements for unsolicited consumer agreements) and section 86 (prohibition on supplies etc.) were contravened in relation to the agreement:\n\n (i) if the agreement was not negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the period of 6 months starting on the day after the day on which the agreement was made; or\n\n (ii) if the agreement was negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the period of 6 months starting on the day after the day on which the consumer was given the agreement document relating to the agreement;\n\n (e) such other period as the agreement provides.\n\n (4) If the notice under subsection (1) is written, it may be given:\n\n (a) by delivering it personally to the supplier; or\n\n (b) by delivering it, or sending it by post, in an envelope addressed to the supplier, to the supplier’s address referred to in section 79(d)(iv); or\n\n (c) if the supplier has an email address—by sending it to the supplier’s email address referred to in section 79(d)(v); or\n\n (d) if the supplier has a fax number—by faxing it to the supplier’s fax number referred to in section 79(d)(vi).\n\n (5) A notice under subsection (1) sent by post to a supplier is taken to have been given to the supplier at the time of posting.\n\n (6) There are no requirements relating to the form or content of a notice under subsection (1).","sortOrder":2269},{"sectionNumber":"Sch 2 s 83","sectionType":"section","heading":"Effect of termination","content":"83  Effect of termination\n\n (1) If an unsolicited consumer agreement is terminated in accordance with section 82:\n\n (a) the agreement is taken to have been rescinded by mutual consent; and\n\n (b) any related contract or instrument is void.\n\n (2) A related contract or instrument, in relation to an unsolicited consumer agreement, is:\n\n (a) any contract of guarantee or indemnity that is related to the agreement; or\n\n (b) any instrument related to the agreement that creates a mortgage or charge in favour of the supplier under the contract or the dealer in relation to the contract (or a person nominated by the supplier or dealer); or\n\n (c) any contract or instrument (other than an instrument of a kind referred to in paragraph (b)) that is collateral or related to the agreement;\n\nbut does not include a tied continuing credit contract (within the meaning of section 127(2) of Schedule 1 to the National Consumer Credit Protection Act 2009), or a tied loan contract (within the meaning of section 127(3) of that Schedule).\n\n (3) The termination of an unsolicited consumer agreement has effect for the purposes of section 82 and this section even if:\n\n (a) the supplier under the agreement has not received the notice of termination; or\n\n (b) the goods or services supplied under the agreement have been wholly or partly consumed or used.","sortOrder":2270},{"sectionNumber":"Sch 2 s 84","sectionType":"section","heading":"Obligations of suppliers on termination","content":"84  Obligations of suppliers on termination\n\n  If an unsolicited consumer agreement is terminated in accordance with section 82, the supplier under the agreement must, immediately upon being notified of the termination, return or refund to the consumer under the agreement any consideration (or the value of any consideration) that the consumer gave under the agreement or a related contract or instrument.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2271},{"sectionNumber":"Sch 2 s 85","sectionType":"section","heading":"Obligations and rights of consumers on termination","content":"85  Obligations and rights of consumers on termination\n\n (1) If an unsolicited consumer agreement is terminated in accordance with section 82, the consumer under the agreement must, within a reasonable time:\n\n (a) return to the supplier under the agreement any goods:\n\n (i) that have been received from the supplier under the agreement; and\n\n (ii) that the consumer has not already consumed; or\n\n (b) notify the supplier of the place where the supplier may collect the goods.\n\n (2) The goods become the property of the consumer, freed and discharged from all liens and charges of any description, if:\n\n (a) the consumer gives notice to the supplier under subsection (1)(b); and\n\n (b) the supplier does not collect the goods within 30 days after the termination of the contract.\n\n (3) If:\n\n (a) the agreement is terminated in accordance with section 82 after the end of:\n\n (i) if the agreement was not negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the agreement was made; or\n\n (ii) if the agreement was negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the consumer was given the agreement document relating to the agreement; and\n\n (b) the consumer returns the goods to the supplier, or the supplier collects the goods, under this section; and\n\n (c) the consumer has failed to take reasonable care of the goods;\n\nthe consumer is liable to pay compensation to the supplier for the damage to, or depreciation in the value of, the goods.\n\n (4) The compensation is recoverable in a court of competent jurisdiction.\n\n (5) However, the consumer is not liable for any such damage or depreciation attributable to normal use of the goods or to circumstances beyond the consumer’s control.\n\n (6) If:\n\n (a) an unsolicited consumer agreement is terminated in accordance with section 82 after the end of:\n\n (i) if the agreement was not negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the agreement was made; or\n\n (ii) if the agreement was negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the consumer was given the agreement document relating to the agreement; and\n\n (b) prior to the termination, but after the end of that period, a service was supplied under the agreement;\n\nthe termination does not affect any liability of the consumer under the agreement to provide consideration for the service.","sortOrder":2272},{"sectionNumber":"Sch 2 s 86","sectionType":"section","heading":"Prohibition on supplies etc.","content":"86  Prohibition on supplies etc.\n\n (1) The supplier under an unsolicited consumer agreement must not:\n\n (a) supply to the consumer under the agreement the goods or services to be supplied under the agreement; or\n\n (b) accept any payment, or any other consideration, in connection with those goods or services; or\n\n (c) require any payment, or any other consideration, in connection with those goods or services;\n\nduring:\n\n (d) if the agreement was not negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the agreement was made; or\n\n (e) if the agreement was negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the consumer was given the agreement document relating to the agreement.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) If the supplier supplies goods to the consumer in contravention of this section, the consumer has the same rights in relation to the goods as if the goods were unsolicited goods.\n\nNote: Section 41 deals with unsolicited goods.\n\n (3) If the supplier supplies services to the consumer in contravention of this section, the consumer has the same rights in relation to the services as if the services were unsolicited services.\n\nNote: Section 42 deals with unsolicited services.","sortOrder":2273},{"sectionNumber":"Sch 2 s 87","sectionType":"section","heading":"Repayment of payments received after termination","content":"87  Repayment of payments received after termination\n\n  If an unsolicited consumer agreement is terminated in accordance with section 82, the supplier under the agreement must immediately refund to the consumer under the agreement any payment:\n\n (a) that the consumer, or a person acting on the consumer’s behalf, makes to the supplier after the termination; and\n\n (b) that purports to be made under the agreement or a related contract or instrument.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2274},{"sectionNumber":"Sch 2 s 88","sectionType":"section","heading":"Prohibition on recovering amounts after termination","content":"88  Prohibition on recovering amounts after termination\n\n (1) If an unsolicited consumer agreement is terminated in accordance with section 82, a person must not:\n\n (a) bring, or assert an intention to bring, legal proceedings against the consumer; or\n\n (b) take, or assert an intention to take, any other action against the consumer;\n\nin relation to an amount alleged to be payable, under the agreement or a related contract or instrument, by the consumer under the agreement.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (1A) Subsection (1) does not apply to:\n\n (a) bringing, or asserting an intention to bring, legal proceedings against the consumer; or\n\n (b) taking, or asserting an intention to take, any other action against the consumer;\n\nto enforce a liability under section 85(3), or a liability of a kind referred to in section 85(6).\n\n (2) If an unsolicited consumer agreement is terminated in accordance with section 82, a person must not, for the purpose of recovering an amount alleged to be payable, under the agreement or a related contract or instrument, by the consumer under the agreement:\n\n (a) place the consumer’s name, or cause the consumer’s name to be placed, on a list of defaulters or debtors; or\n\n (b) assert an intention to place the consumer’s name, or cause the consumer’s name to be placed, on such a list.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) Without limiting Division 2 of Part 5‑2, an injunction granted under that Division may require a person responsible for keeping a list of defaulters or debtors on which the consumer’s name has been wrongly placed to remove the name from that list.","sortOrder":2275},{"sectionNumber":"Sch 2 Subdivision E","sectionType":"subdivision","heading":"Miscellaneous","content":"Subdivision E—Miscellaneous","sortOrder":2276},{"sectionNumber":"Sch 2 s 89","sectionType":"section","heading":"Certain provisions of unsolicited consumer agreements void","content":"89  Certain provisions of unsolicited consumer agreements void\n\n (1) A provision (however described) of an unsolicited consumer agreement is void if it has the effect of, or purports to have the effect of:\n\n (a) excluding, limiting, modifying or restricting a right of the consumer under the agreement to terminate the agreement under this Division; or\n\n (b) otherwise excluding, limiting, modifying or restricting the effect or operation of this Division; or\n\n (c) making a dispute relating to the agreement, or to a supply to which the agreement relates, justiciable by a court by which the dispute would not otherwise be justiciable.\n\n (2) The supplier under an unsolicited consumer agreement must ensure that the agreement does not include, or purport to include, a provision (however described) that is, or would be, void because of subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) The supplier under an unsolicited consumer agreement must not attempt to enforce or rely on a provision (however described) that is void because of subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.","sortOrder":2277},{"sectionNumber":"Sch 2 s 90","sectionType":"section","heading":"Waiver of rights","content":"90  Waiver of rights\n\n (1) The consumer under an unsolicited consumer agreement is not competent to waive any right conferred by this Division.\n\n (2) The supplier under the unsolicited consumer agreement must not induce, or attempt to induce, the consumer to waive any right conferred by this Division.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.","sortOrder":2278},{"sectionNumber":"Sch 2 s 91","sectionType":"section","heading":"Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.","content":"91  Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.\n\n (1) This Division applies in relation to a person to whom the rights of a consumer (the original consumer) under a contract for the supply of goods or services are assigned or transferred, or pass by operation of law, (whether from the original consumer or from another person) as if the person were the original consumer.\n\n (2) This Division applies in relation to a person to whom the rights of a supplier (the original supplier) under a contract for the supply of goods or services are assigned or transferred, or pass by operation of law, (whether from the original supplier or from another person) as if the person were the original supplier.","sortOrder":2279},{"sectionNumber":"Sch 2 s 92","sectionType":"section","heading":"Application of this Division to supplies to third parties","content":"92  Application of this Division to supplies to third parties\n\n  This Division applies in relation to a contract for the supply of goods or services to a consumer (the original consumer) on the order of another person as if the other person were also the consumer.","sortOrder":2280},{"sectionNumber":"Sch 2 s 93","sectionType":"section","heading":"Effect of contravening this Division","content":"93  Effect of contravening this Division\n\n (1) The supplier under an unsolicited consumer agreement cannot enforce the agreement against the consumer under the agreement if a provision of this Division (other than section 85) has been contravened in relation to the agreement.\n\n (2) This section does not prevent any action being taken under this Schedule in relation to the contravention.","sortOrder":2281},{"sectionNumber":"Sch 2 s 94","sectionType":"section","heading":"Regulations may limit the application of this Division","content":"94  Regulations may limit the application of this Division\n\n  This Division (other than section 73) does not apply, or provisions of this Division (other than section 73) that are specified in the regulations do not apply, to or in relation to:\n\n (a) circumstances of a kind specified in the regulations; or\n\n (b) agreements of a kind specified in the regulations; or\n\n (c) the conduct of businesses of a kind specified in the regulations.","sortOrder":2282},{"sectionNumber":"Sch 2 s 95","sectionType":"section","heading":"Application of this Division to certain conduct covered by the Corporations Act","content":"95  Application of this Division to certain conduct covered by the Corporations Act\n\n  This Division does not apply in relation to conduct to which section 992A of the Corporations Act 2001 applies.\n\nNote: Section 992A of the Corporations Act 2001 prohibits hawking of financial products.","sortOrder":2283},{"sectionNumber":"Sch 2 s 96","sectionType":"section","heading":"Lay-by agreements must be in writing etc.","content":"96  Lay‑by agreements must be in writing etc.\n\n (1) A supplier of goods who is a party to a lay‑by agreement must ensure that:\n\n (a) the agreement is in writing; and\n\n (b) a copy of the agreement is given to the consumer to whom the goods are, or are to be, supplied.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A supplier of goods who is a party to a lay‑by agreement must ensure that the agreement is transparent.\n\n (3) A lay‑by agreement is an agreement between a supplier of goods and a consumer for the supply, in trade or commerce, of the goods on terms (whether express or implied) which provide that:\n\n (a) the goods will not be delivered to the consumer until the total price of the goods has been paid; and\n\n (b) the price of the goods is to be paid by:\n\n (i) 3 or more instalments; or\n\n (ii) if the agreement specifies that it is a lay‑by agreement—2 or more instalments.\n\n (4) For the purposes of subsection (3)(b), any deposit paid by the consumer for the goods is taken to be an instalment.","sortOrder":2285},{"sectionNumber":"Sch 2 s 97","sectionType":"section","heading":"Termination of lay-by agreements by consumers","content":"97  Termination of lay‑by agreements by consumers\n\n (1) A consumer who is party to a lay‑by agreement may terminate the agreement at any time before the goods to which the agreement relates are delivered to the consumer under the agreement.\n\n (2) A supplier of goods who is a party to a lay‑by agreement must ensure that the agreement does not require the consumer to pay a charge (a termination charge) for the termination of the agreement unless:\n\n (a) the agreement is terminated by the consumer; and\n\n (b) the supplier has not breached the agreement.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) A supplier of goods who is a party to a lay‑by agreement must ensure that, if the agreement provides that a termination charge is payable, the amount of the charge is not more than the supplier’s reasonable costs in relation to the agreement.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.","sortOrder":2286},{"sectionNumber":"Sch 2 s 98","sectionType":"section","heading":"Termination of lay-by agreements by suppliers","content":"98  Termination of lay‑by agreements by suppliers\n\n  A supplier of goods who is a party to a lay‑by agreement must not terminate the agreement unless:\n\n (a) the consumer who is a party to the agreement breached a term of the agreement; or\n\n (b) the supplier is no longer engaged in trade or commerce; or\n\n (c) the goods to which the agreement relates are no longer available.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2287},{"sectionNumber":"Sch 2 s 99","sectionType":"section","heading":"Effect of termination","content":"99  Effect of termination\n\n (1) If a lay‑by agreement is terminated by a party to the agreement, the supplier must refund to the consumer all the amounts paid by the consumer under the agreement other than any termination charge that is payable under the agreement.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) The supplier is entitled to recover any unpaid termination charge from the consumer as a debt if the amounts paid by the consumer under the lay‑by agreement are not enough to cover the charge.\n\n (3) If a lay‑by agreement is terminated by a party to the agreement, the supplier is not entitled to damages, or to enforce any other remedy, in relation to that termination except as provided for by this section.","sortOrder":2288},{"sectionNumber":"Sch 2 Division 3A","sectionType":"subdivision","heading":"Gift cards","content":"Division 3A—Gift cards","sortOrder":2289},{"sectionNumber":"Sch 2 s 99A","sectionType":"section","heading":"Meaning of gift card","content":"99A  Meaning of gift card\n\n  A gift card is:\n\n (a) an article (whether in physical or electronic form) that:\n\n (i) is of a kind that is commonly known as a gift card or gift voucher; and\n\n (ii) is redeemable for goods or services; or\n\n (b) an article of a kind specified in regulations made for the purposes of this paragraph;\n\nbut does not include an article of a kind specified in the regulations.","sortOrder":2291},{"sectionNumber":"Sch 2 s 99B","sectionType":"section","heading":"Gift cards to be redeemable for at least 3 years","content":"99B  Gift cards to be redeemable for at least 3 years\n\n (1) A person must not, in trade or commerce, supply a gift card to a consumer if the day that the gift card ceases to be redeemable is earlier than 3 years after the day of that supply.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) If:\n\n (a) a gift card is, in trade or commerce, supplied to a consumer; and\n\n (b) the day that the gift card ceases to be redeemable is earlier than 3 years after the day of that supply;\n\nthe day that the gift card ceases to be redeemable is taken to be 3 years after the day of that supply.\n\n (3) Subsection (2) does not affect a person’s liability for an alleged contravention of subsection (1) or section 191A.","sortOrder":2293},{"sectionNumber":"Sch 2 s 99C","sectionType":"section","heading":"When gift card ceases to be redeemable to appear prominently on gift card","content":"99C  When gift card ceases to be redeemable to appear prominently on gift card\n\n  A person must not, in trade or commerce, supply a gift card to a consumer if one of the following does not appear prominently on the gift card:\n\n (a) the date the gift card ceases to be redeemable;\n\n (b) the month and year the gift card ceases to be redeemable;\n\n (c) the date the gift card is supplied and a statement that identifies the period during which the gift card is redeemable;\n\n (d) the month and year the gift card is supplied and a statement that identifies the period during which the gift card is redeemable;\n\n (e) the words “no expiry date” or words to that effect.\n\nNote: A pecuniary penalty may be imposed for a contravention of this section.","sortOrder":2294},{"sectionNumber":"Sch 2 s 99D","sectionType":"section","heading":"Terms and conditions not to allow post-supply fees","content":"99D  Terms and conditions not to allow post‑supply fees\n\n (1) A person must not, in trade or commerce, supply a gift card to a consumer if the terms or conditions (however described) of the gift card allow or require the payment of a post‑supply fee in relation to the gift card.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A post‑supply fee is a fee or charge payable in relation to a gift card after it is supplied to a consumer, other than a fee or charge of a kind specified in the regulations.","sortOrder":2295},{"sectionNumber":"Sch 2 s 99E","sectionType":"section","heading":"Post-supply fees not to be demanded or received","content":"99E  Post‑supply fees not to be demanded or received\n\n  A person must not, in trade or commerce, demand or receive payment of a post‑supply fee in relation to a gift card.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.","sortOrder":2296},{"sectionNumber":"Sch 2 s 99F","sectionType":"section","heading":"Certain terms and conditions of gift card void","content":"99F  Certain terms and conditions of gift card void\n\n (1) A term or condition (however described) of a gift card is void if it has the effect of, or purports to have the effect of:\n\n (a) allowing or requiring the payment of a post‑supply fee in relation to the gift card; or\n\n (b) reducing the period that the gift card ceases to be redeemable to a period that ends earlier than 3 years after the day the gift card is supplied to a consumer.\n\n (2) The supplier of a gift card must ensure that the terms or conditions (however described) of the gift card do not include, or purport to include, a term or condition that is, or would be, void because of subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) This section does not affect a person’s liability for an alleged contravention of:\n\n (a) section 99B(1); or\n\n (b) section 99C; or\n\n (c) section 99D(1); or\n\n (d) section 99E; or\n\n (e) section 191A; or\n\n (f) section 191B; or\n\n (g) section 191C; or\n\n (h) section 191D.","sortOrder":2297},{"sectionNumber":"Sch 2 s 99G","sectionType":"section","heading":"Regulations may limit application of this Division","content":"99G  Regulations may limit application of this Division\n\n  The regulations may provide that some or all of the provisions of this Division do not apply to or in relation to:\n\n (a) gift cards of a kind prescribed by the regulations; or\n\n (b) persons of a kind prescribed by the regulations; or\n\n (c) gift cards supplied in circumstances prescribed by the regulations.","sortOrder":2299},{"sectionNumber":"Sch 2 s 100","sectionType":"section","heading":"Supplier must provide proof of transaction etc.","content":"100  Supplier must provide proof of transaction etc.\n\n (1) If:\n\n (a) a person (the supplier), in trade or commerce, supplies goods or services to a consumer; and\n\n (b) the total price (excluding GST) of the goods or services is $75 or more;\n\nthe supplier must give the consumer a proof of transaction as soon as practicable after the goods or services are so supplied.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) If:\n\n (a) a person (the supplier), in trade or commerce, supplies goods or services to a consumer; and\n\n (b) the total price (excluding GST) of the goods or services is less than $75;\n\nthe consumer may request a proof of transaction from the supplier as soon as practicable after the goods or services are so supplied.\n\n (3) If a request is made under subsection (2), the supplier must give the proof of transaction within 7 days after the request is made.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (4) A proof of transaction for a supply of goods or services to a consumer is a document that:\n\n (a) identifies the supplier of the goods or services; and\n\n (b) if the supplier has an ABN—states the supplier’s ABN; and\n\n (c) if the supplier does not have an ABN but has an ACN—states the supplier’s ACN; and\n\n (d) states the date of the supply; and\n\n (e) states the goods or services supplied to the consumer; and\n\n (f) states the price of the goods or services.\n\nNote: The following are examples of a proof of transaction:\n\n(a) a tax invoice within the meaning of the A New Tax System (Goods and Services Tax) Act 1999;\n\n(b) a cash register receipt;\n\n(c) a credit card or debit card statement;\n\n(d) a handwritten receipt;\n\n(e) a lay‑by agreement;\n\n(f) a confirmation or receipt number provided for a telephone or internet transaction.\n\n (5) The supplier must ensure that the proof of transaction given under subsection (1) or (3) is transparent.","sortOrder":2301},{"sectionNumber":"Sch 2 s 101","sectionType":"section","heading":"Consumer may request an itemised bill","content":"101  Consumer may request an itemised bill\n\n (1) If a person (the supplier), in trade or commerce, supplies services to a consumer, the consumer may request that the supplier give the consumer an itemised bill that:\n\n (a) specifies how the price of the services was calculated; and\n\n (b) includes, if applicable, the number of hours of labour that related to the supply of the services and the hourly rate for that labour; and\n\n (c) includes, if applicable, a list of the materials used to supply the services and the amount charged for those materials.\n\n (2) The request under subsection (1) must be made within 30 days after:\n\n (a) the services are supplied; or\n\n (b) the consumer receives a bill or account from the supplier for the supply of the services;\n\nwhichever occurs later.\n\n (3) The supplier must give the consumer the itemised bill within 7 days after the request is made.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (4) The supplier must not charge the consumer for the itemised bill.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (5) The supplier must ensure that the itemised bill is transparent.","sortOrder":2302},{"sectionNumber":"Sch 2 s 102","sectionType":"section","heading":"Prescribed requirements for warranties against defects","content":"102  Prescribed requirements for warranties against defects\n\n (1) The regulations may prescribe requirements relating to the form and content of warranties against defects.\n\n (2) A person must not, in connection with the supply, in trade or commerce, of goods or services to a consumer:\n\n (a) give to the consumer a document that evidences a warranty against defects that does not comply with the requirements prescribed for the purposes of subsection (1); or\n\n (b) represent directly to the consumer that the goods or services are goods or services to which such a warranty against defects relates.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) A warranty against defects is a representation communicated to a consumer in connection with the supply of goods or services, at or about the time of supply, to the effect that a person will (unconditionally or on specified conditions):\n\n (a) repair or replace the goods or part of them; or\n\n (b) provide again or rectify the services or part of them; or\n\n (c) wholly or partly recompense the consumer;\n\nif the goods or services or part of them are defective, and includes any document by which such a representation is evidenced.","sortOrder":2303},{"sectionNumber":"Sch 2 s 103","sectionType":"section","heading":"Repairers must comply with prescribed requirements","content":"103  Repairers must comply with prescribed requirements\n\n (1) The regulations may prescribe requirements relating to the form and content of notices to be given relating to the repair of goods supplied to a consumer.\n\n (2) A person (the repairer) must not, in trade or commerce, accept from another person goods that the other person acquired as a consumer if the repairer:\n\n (a) accepts the goods for the purpose of repairing them; and\n\n (b) does not give to the other person a notice that complies with the requirements prescribed for the purposes of subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.","sortOrder":2304},{"sectionNumber":"Sch 2 Part 3-3","sectionType":"division","heading":"Safety of consumer goods and product related services","content":"Part 3‑3—Safety of consumer goods and product related services","sortOrder":2305},{"sectionNumber":"Sch 2 s 104","sectionType":"section","heading":"Making safety standards for consumer goods and product related services","content":"104  Making safety standards for consumer goods and product related services\n\n (1) The Commonwealth Minister may, by written notice, for the purposes of preventing or reducing the risk of injury to any person, make a safety standard for one or both of the following:\n\n (a) consumer goods of a particular kind;\n\n (b) product related services of a particular kind.\n\n (2) Without limiting subsection (1), a safety standard for consumer goods of a particular kind may consist of requirements about the following matters:\n\n (a) the performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging of consumer goods of that kind;\n\n (b) the testing of consumer goods of that kind during, or after the completion of, manufacture or processing;\n\n (c) the form and content of markings to accompany consumer goods of that kind;\n\n (d) the form and content of warnings, instructions or other information about consumer goods of that kind.\n\n (3) Without limiting subsection (1), a safety standard for product related services of a particular kind may consist of requirements about the following matters:\n\n (a) the manner in which services of that kind are supplied (including, but not limited to, the method of supply);\n\n (b) the skills or qualifications of persons who supply such services;\n\n (c) the materials used in supplying such services;\n\n (d) the testing of such services;\n\n (e) the form and content of warnings, instructions or other information about such services.\n\n (4) A safety standard may also deal with matters incidental or related to preventing or reducing the risk of injury to any person.\n\n (5) A safety standard may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing (an incorporated instrument):\n\n (a) as in force or existing at a particular time; or\n\n (b) as in force or existing from time to time.\n\n (6) If:\n\n (a) a safety standard makes provision in relation to a matter in accordance with subsection (5); and\n\n (b) the incorporated instrument is prepared or approved by an Australian or international standards body;\n\nthe safety standard may also make provision in relation to any matter dealt with in the incorporated instrument.","sortOrder":2307},{"sectionNumber":"Sch 2 s 106","sectionType":"section","heading":"Supplying etc. consumer goods that do not comply with safety standards","content":"106  Supplying etc. consumer goods that do not comply with safety standards\n\n (1) A person must not, in trade or commerce, supply consumer goods of a particular kind if:\n\n (a) a safety standard for consumer goods of that kind is in force; and\n\n (b) those goods do not comply with the standard.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A person must not, in trade or commerce, offer for supply (other than for export) consumer goods the supply of which is prohibited by subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) A person must not, in or for the purposes of trade or commerce, manufacture, possess or have control of consumer goods the supply of which is prohibited by subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (4) In a proceeding under Part 5‑2 in relation to a contravention of subsection (3), it is a defence if the defendant proves that the defendant’s manufacture, possession or control of the goods was not for the purpose of supplying the goods (other than for export).\n\n (5) A person must not, in trade or commerce, export consumer goods the supply of which is prohibited by subsection (1) unless:\n\n (a) the person applies, in writing, to the Commonwealth Minister for an approval to export those goods; and\n\n (b) the Commonwealth Minister gives such an approval by written notice given to the person.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (6) If the Commonwealth Minister gives an approval under subsection (5), he or she must cause a statement setting out particulars of the approval to be tabled in each House of the Parliament of the Commonwealth within 7 sitting days of that House after the approval is given.\n\n (7) If:\n\n (a) a person supplies consumer goods in contravention of this section; and\n\n (b) another person suffers loss or damage:\n\n (i) because of a defect in, or a dangerous characteristic of, the goods; or\n\n (ii) because of a reasonably foreseeable use (including a misuse) of the goods; or\n\n (iii) because, contrary to the safety standard, he or she was not provided with particular information in relation to the goods; and\n\n (c) the other person would not have suffered the loss or damage if the goods had complied with the safety standard;\n\nthe other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.","sortOrder":2308},{"sectionNumber":"Sch 2 s 107","sectionType":"section","heading":"Supplying etc. product related services that do not comply with safety standards","content":"107  Supplying etc. product related services that do not comply with safety standards\n\n (1) A person must not, in trade or commerce, supply product related services of particular kind if:\n\n (a) a safety standard for services of that kind is in force; and\n\n (b) those services do not comply with the standard.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A person must not, in trade or commerce, offer for supply product related services the supply of which is prohibited by subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) If:\n\n (a) a person supplies product related services in contravention of this section; and\n\n (b) another person suffers loss or damage:\n\n (i) because of defect in, or a dangerous characteristic of, consumer goods that results from the services being supplied; or\n\n (ii) because of a reasonably foreseeable use (including a misuse) of consumer goods that results from the services being supplied; or\n\n (iii) because, contrary to the safety standard, he or she was not provided with particular information in relation to the services; and\n\n (c) the other person would not have suffered the loss or damage if the services had complied with the safety standard;\n\nthe other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.","sortOrder":2309},{"sectionNumber":"Sch 2 s 108","sectionType":"section","heading":"Requirements relating to alternative methods of complying","content":"108  Requirements relating to alternative methods of complying\n\n (1) This section applies if:\n\n (a) a safety standard for consumer goods, or product related services, of a particular kind is in force; and\n\n (b) the standard specifies, as alternative methods of complying with the standard (or part of the standard), 2 or more sets of requirements.\n\n (2) If:\n\n (a) a person, in trade or commerce:\n\n (i) has supplied, or offered for supply, goods or services of that kind; or\n\n (ii) is supplying, or offering for supply, goods or services of that kind; or\n\n (iii) intends to supply, or offer for supply, goods or services of that kind; and\n\n (b) the regulator gives to the person a written request to nominate which of those sets of requirements the person has complied with, is complying with, or intends to comply with;\n\nthe person must, within the period specified in the request, give to the regulator a written notice nominating one of those sets of requirements.\n\nNote 1: A pecuniary penalty may be imposed for a contravention of this subsection.\n\nNote 2: A contravention of this subsection is an offence (see section 196).\n\n (3) A person contravenes this subsection if:\n\n (a) the person, in trade or commerce:\n\n (i) has supplied, or offered for supply, goods or services of that kind; or\n\n (ii) is supplying, or offering for supply, goods or services of that kind; and\n\n (b) the person nominates a set of requirements, either by giving to the regulator a written notice under subsection (2) of this section or by other means; and\n\n (c) those goods or services did not or do not comply with that set of requirements.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.","sortOrder":2310},{"sectionNumber":"Sch 2 s 108A","sectionType":"section","heading":"Requirement to give information or documents","content":"108A  Requirement to give information or documents\n\n  If:\n\n (a) a safety standard for consumer goods, or product related services, of a particular kind is in force; and\n\n (b) a person, in trade or commerce:\n\n (i) has supplied, or offered for supply, goods or services of that kind; or\n\n (ii) is supplying, or offering for supply, goods or services of that kind; or\n\n (iii) intends to supply, or offer for supply, goods or services of that kind; and\n\n (c) the regulator gives to the person a written request for information or documents to determine whether the person has complied, is complying, or will comply with the standard;\n\nthe person must, within the period specified in the request, give to the regulator the requested information or documents.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.","sortOrder":2311},{"sectionNumber":"Sch 2 s 109","sectionType":"section","heading":"Interim bans on consumer goods or product related services that will or may cause injury to any person etc.","content":"109  Interim bans on consumer goods or product related services that will or may cause injury to any person etc.\n\n (1) A responsible Minister may, by written notice published on the internet, impose an interim ban on consumer goods of a particular kind if:\n\n (a) it appears to the responsible Minister that:\n\n (i) consumer goods of that kind will or may cause injury to any person; or\n\n (ii) a reasonably foreseeable use (including a misuse) of consumer goods of that kind will or may cause injury to any person; or\n\n (b) another responsible Minister has imposed, under paragraph (a), an interim ban:\n\n (i) on consumer goods of the same kind; or\n\n (ii) on consumer goods of a kind that includes those goods;\n\n  and that ban is still in force.\n\n (2) A responsible Minister may, by written notice published on the internet, impose an interim ban on product related services of a particular kind if:\n\n (a) it appears to the responsible Minister that:\n\n (i) as a result of services of that kind being supplied, consumer goods of a particular kind will or may cause injury to any person; or\n\n (ii) a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which such services relate, will or may cause injury to any person as a result of such services being supplied; or\n\n (b) another responsible Minister has imposed, under paragraph (a), an interim ban:\n\n (i) on product related services of the same kind; or\n\n (ii) on product related services that include those services;\n\n  and that ban is still in force.","sortOrder":2314},{"sectionNumber":"Sch 2 s 110","sectionType":"section","heading":"Places in which interim bans apply","content":"110  Places in which interim bans apply\n\n (1) An interim ban imposed by the Commonwealth Minister applies in all States and Territories.\n\n (2) An interim ban imposed by a responsible Minister who is Minister of a State applies in the State.\n\n (3) An interim ban imposed by a responsible Minister who is a Minister of a Territory applies in the Territory.","sortOrder":2315},{"sectionNumber":"Sch 2 s 111","sectionType":"section","heading":"Ban period for interim bans","content":"111  Ban period for interim bans\n\n (1) An interim ban imposed by a responsible Minister is in force during the period (the ban period) that:\n\n (a) starts on the day (the start day) specified in the notice imposing the ban; and\n\n (b) subject to this Subdivision, ends at the end of 60 days after the start day.\n\n (2) Before the ban period for the interim ban ends, the responsible Minister may, by written notice published on the internet, extend the ban period for the ban by a period of up to 30 days.\n\n (3) If:\n\n (a) the ban period for the interim ban is extended under subsection (2); and\n\n (b) the extended ban period for the ban has not ended; and\n\n (c) the interim ban was not imposed by the Commonwealth Minister;\n\nthe responsible Minister may, in writing, request the Commonwealth Minister to extend the extended ban period for the ban.\n\n (4) If a request is made under subsection (3), the Commonwealth Minister may, by written notice published on the internet, extend the extended ban period for the interim ban by a further period of up to 30 days.\n\n (5) If:\n\n (a) a request is made under subsection (3); and\n\n (b) the Commonwealth Minister has not made a decision on the request immediately before the extended ban period for the interim ban is to end;\n\nthe Commonwealth Minister is taken to have decided to extend the extended ban period for the ban by a further period of 30 days.\n\n (6) If:\n\n (a) the ban period for the interim ban is extended under subsection (2); and\n\n (b) the extended ban period for the ban has not ended; and\n\n (c) the interim ban was imposed by the Commonwealth Minister;\n\nthe Commonwealth Minister may, by written notice published on the internet, extend the extended ban period for the interim ban by a further period of up to 30 days.","sortOrder":2316},{"sectionNumber":"Sch 2 s 112","sectionType":"section","heading":"Interaction of multiple interim bans","content":"112  Interaction of multiple interim bans\n\n (1) If:\n\n (a) an interim ban (the original ban) on consumer goods of a particular kind (the banned goods) is imposed by a responsible Minister other than the Commonwealth Minister; and\n\n (b) while the original ban is in force, the Commonwealth Minister imposes an interim ban (the Commonwealth ban):\n\n (i) on the banned goods; or\n\n (ii) on consumer goods of a kind that includes the banned goods;\n\nthe original ban, to the extent that it is a ban on the banned goods, ceases to be in force immediately before the Commonwealth ban comes into force.\n\n (2) If:\n\n (a) an interim ban (the original ban) on product related services of a particular kind (the banned services) is imposed by a responsible Minister other than the Commonwealth Minister; and\n\n (b) while the original ban is in force, the Commonwealth Minister imposes an interim ban (the Commonwealth ban):\n\n (i) on the banned services; or\n\n (ii) on product related services of a kind that includes the banned services;\n\nthe original ban, to the extent that it is a ban on the banned services, ceases to be in force immediately before the Commonwealth ban comes into force.","sortOrder":2317},{"sectionNumber":"Sch 2 s 113","sectionType":"section","heading":"Revocation of interim bans","content":"113  Revocation of interim bans\n\n  If a responsible Minister imposes an interim ban:\n\n (a) the responsible Minister may, by written notice published on the internet, revoke the ban at any time; and\n\n (b) the ban ceases to be in force on the day specified by the responsible Minister in the notice.","sortOrder":2318},{"sectionNumber":"Sch 2 s 114","sectionType":"section","heading":"Permanent bans on consumer goods or product related services","content":"114  Permanent bans on consumer goods or product related services\n\n (1) The Commonwealth Minister may, by written notice published on the internet, impose a permanent ban on consumer goods of a particular kind if:\n\n (a) one or more interim bans on consumer goods of that kind (the banned goods), or on consumer goods of a kind that include the banned goods, are in force; or\n\n (b) it appears to the Commonwealth Minister that:\n\n (i) consumer goods of that kind will or may cause injury to any person; or\n\n (ii) a reasonably foreseeable use (including a misuse) of consumer goods of that kind will or may cause injury to any person.\n\n (2) The Commonwealth Minister may, by written notice published on the internet, impose a permanent ban on product related services of a particular kind if:\n\n (a) one or more interim bans on product related services of that kind (the banned services), or on product related services of a kind that include the banned services, are in force; or\n\n (b) it appears to the Commonwealth Minister that:\n\n (i) as a result of services of that kind being supplied, consumer goods of a particular kind will or may cause injury to any person; or\n\n (ii) a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which such services relate, will or may cause injury to any person as a result of such services being supplied.","sortOrder":2320},{"sectionNumber":"Sch 2 s 115","sectionType":"section","heading":"Places in which permanent bans apply","content":"115  Places in which permanent bans apply\n\n  A permanent ban applies in all States and Territories.","sortOrder":2321},{"sectionNumber":"Sch 2 s 116","sectionType":"section","heading":"When permanent bans come into force","content":"116  When permanent bans come into force\n\n  A permanent ban comes into force on the day specified by the Commonwealth Minister in the instrument imposing the ban.","sortOrder":2322},{"sectionNumber":"Sch 2 s 117","sectionType":"section","heading":"Revocation of permanent bans","content":"117  Revocation of permanent bans\n\n  If the Commonwealth Minister imposes a permanent ban:\n\n (a) the Commonwealth Minister may, by written notice published on the internet, revoke the ban at any time; and\n\n (b) the ban ceases to be in force on the day specified by the Commonwealth Minister in the notice.","sortOrder":2323},{"sectionNumber":"Sch 2 s 118","sectionType":"section","heading":"Supplying etc. consumer goods covered by a ban","content":"118  Supplying etc. consumer goods covered by a ban\n\n (1) A person must not, in trade or commerce, supply consumer goods of a particular kind if:\n\n (a) an interim ban on consumer goods of that kind is in force in the place where the supply occurs; or\n\n (b) a permanent ban on consumer goods of that kind is in force.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A person must not, in trade or commerce, offer for supply (other than for export) consumer goods the supply of which is prohibited by subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) A person must not, in or for the purposes of trade or commerce, manufacture, possess or have control of consumer goods the supply of which is prohibited by subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (4) In a proceeding under Part 5‑2 in relation to a contravention of subsection (3), it is a defence if the defendant proves that the defendant’s manufacture, possession or control of the goods was not for the purpose of supplying the goods (other than for export).\n\n (5) A person must not, in trade or commerce, export consumer goods the supply of which is prohibited by subsection (1) unless:\n\n (a) the person applies, in writing, to the Commonwealth Minister for an approval to export those goods; and\n\n (b) the Commonwealth Minister gives such an approval by written notice given to the person.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (6) If the Commonwealth Minister gives an approval under subsection (5), he or she must cause a statement setting out particulars of the approval to be tabled in each House of the Parliament of the Commonwealth within 7 sitting days of that House after the approval is given.\n\n (7) If:\n\n (a) a person supplies consumer goods in contravention of subsection (1); and\n\n (b) another person suffers loss or damage:\n\n (i) because of a defect in, or a dangerous characteristic of, the goods; or\n\n (ii) because of a reasonably foreseeable use (including a misuse) of the goods;\n\nthe other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.","sortOrder":2325},{"sectionNumber":"Sch 2 s 119","sectionType":"section","heading":"Supplying etc. product related services covered by a ban","content":"119  Supplying etc. product related services covered by a ban\n\n (1) A person must not, in trade or commerce, supply product related services of a particular kind if:\n\n (a) an interim ban on services of that kind is in force in the place where the supply occurs; or\n\n (b) a permanent ban on services of that kind is in force.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) A person must not, in trade or commerce, offer for supply product related services the supply of which is prohibited by subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) If:\n\n (a) a person supplies product related services in contravention of subsection (1); and\n\n (b) another person suffers loss or damage:\n\n (i) because of a defect in, or a dangerous characteristic of, consumer goods that results from the services being supplied; or\n\n (ii) because of a reasonably foreseeable use (including a misuse) of consumer goods that results from the services being supplied;\n\nthe other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.","sortOrder":2326},{"sectionNumber":"Sch 2 s 120","sectionType":"section","heading":"Temporary exemption under the Trans-Tasman Mutual Recognition Act 1997","content":"120  Temporary exemption under the Trans‑Tasman Mutual Recognition Act 1997\n\n (1) If:\n\n (a) an interim ban on consumer goods of a particular kind is in force; or\n\n (b) a permanent ban on consumer goods of a particular kind is in force;\n\nthe goods are taken, for the purposes of section 46 of the Trans‑Tasman Mutual Recognition Act 1997, to be goods of a kind that are declared, in the manner provided by section 46(2) of that Act, to be exempt from the operation of that Act.\n\n (2) This section does not affect the application of section 46(4) of that Act in relation to such an exemption.","sortOrder":2328},{"sectionNumber":"Sch 2 s 121","sectionType":"section","heading":"Temporary exemption under the Mutual Recognition Act 1992","content":"121  Temporary exemption under the Mutual Recognition Act 1992\n\n (1) If:\n\n (a) an interim ban on consumer goods of a particular kind is in force; and\n\n (b) the interim ban was not imposed by the Commonwealth Minister;\n\nthe goods are taken, for the purposes of section 15 of the Mutual Recognition Act 1992, to be goods of a kind that are declared, in the manner provided by section 15(1) of that Act, to be goods to which that section applies.\n\n (2) This section does not affect the application of section 15(3) of that Act in relation to such an exemption.","sortOrder":2329},{"sectionNumber":"Sch 2 s 122","sectionType":"section","heading":"Compulsory recall of consumer goods","content":"122  Compulsory recall of consumer goods\n\n (1) A responsible Minister may, by written notice published on the internet, issue a recall notice for consumer goods of a particular kind if:\n\n (a) a person, in trade or commerce, supplies consumer goods of that kind; and\n\n (b) any of the following applies:\n\n (i) it appears to the responsible Minister that such goods will or may cause injury to any person;\n\n (ii) it appears to the responsible Minister that a reasonably foreseeable use (including a misuse) of such goods will or may cause injury to any person;\n\n (iii) a safety standard for such goods is in force and the goods do not comply with the standard;\n\n (iv) an interim ban, or a permanent ban, on such goods is in force; and\n\n (c) it appears to the responsible Minister that one or more suppliers of such goods have not taken satisfactory action to prevent those goods causing injury to any person.\n\n (2) It is not necessary for the purposes of subsection (1)(c) for the responsible Minister to know the identities of any of the suppliers of the consumer goods of that kind.\n\n (3) A recall notice for consumer goods may be issued under subsection (1) even if the consumer goods have become fixtures since the time they were supplied.","sortOrder":2332},{"sectionNumber":"Sch 2 s 123","sectionType":"section","heading":"Contents of a recall notice","content":"123  Contents of a recall notice\n\n (1) A recall notice for the consumer goods may require one or more suppliers of the goods, or (if no such supplier is known to the responsible Minister who issued the notice) the regulator, to take one or more of the following actions:\n\n (a) recall the goods;\n\n (b) disclose to the public, or to a class of persons specified in the notice, one or more of the following:\n\n (i) the nature of a defect in, or a dangerous characteristic of, the goods as identified in the notice;\n\n (ii) the circumstances as identified in the notice in which a reasonably foreseeable use or misuse of the goods is dangerous;\n\n (iii) procedures as specified in the notice for disposing of the goods;\n\n (c) if the identities of any of those suppliers are known to the responsible Minister—inform the public, or a class of persons specified in the notice, that the supplier undertakes to do whichever of the following the supplier thinks is appropriate:\n\n (i) unless the notice identifies a dangerous characteristic of the goods—repair the goods;\n\n (ii) replace the goods;\n\n (iii) refund to a person to whom the goods were supplied (whether by the supplier or by another person) the price of the goods.\n\n (2) The recall notice may specify:\n\n (a) the manner in which the action required to be taken by the notice must be taken; and\n\n (b) the period within which the action must be taken.\n\n (3) If the recall notice requires the regulator to take action to recall the consumer goods, the responsible Minister may specify in the notice that the regulator must retain, destroy or otherwise dispose of the goods.\n\n (4) If the recall notice requires a supplier of the consumer goods to take action of a kind referred to in subsection (1)(c), the responsible Minister may specify in the notice that, if:\n\n (a) the supplier undertakes to refund the price of the goods; and\n\n (b) a period of more than 12 months has elapsed since a person (whether or not the person to whom the refund is to be made) acquired the goods from the supplier;\n\nthe amount of a refund may be reduced by the supplier by an amount calculated in a manner specified in the notice that is attributable to the use which a person has had of the goods.","sortOrder":2333},{"sectionNumber":"Sch 2 s 124","sectionType":"section","heading":"Obligations of a supplier in relation to a recall notice","content":"124  Obligations of a supplier in relation to a recall notice\n\n (1) This section applies if a recall notice for consumer goods requires a supplier to take action of a kind referred to in section 123(1)(c).\n\n (2) If the supplier undertakes to repair the consumer goods, the supplier must cause the goods to be repaired so that:\n\n (a) any defect in the goods identified in the recall notice is remedied; and\n\n (b) if a safety standard for the goods is in force—the goods comply with that standard.\n\n (3) If the supplier undertakes to replace the consumer goods, the supplier must replace the goods with similar consumer goods which:\n\n (a) if a defect in, or a dangerous characteristic of, the goods to be replaced was identified in the recall notice—do not contain that defect or have that characteristic; and\n\n (b) if a safety standard for the goods to be replaced is in force—comply with that standard.\n\n (4) If the supplier undertakes:\n\n (a) to repair the consumer goods; or\n\n (b) to replace the consumer goods;\n\nthe cost of the repair or replacement, including any necessary transportation costs, must be paid by the supplier.","sortOrder":2334},{"sectionNumber":"Sch 2 s 125","sectionType":"section","heading":"Notification by persons who supply consumer goods outside Australia if there is compulsory recall","content":"125  Notification by persons who supply consumer goods outside Australia if there is compulsory recall\n\n (1) If consumer goods of a particular kind are recalled as required by a recall notice, a person who has supplied or supplies those consumer goods to a person outside Australia must give the person outside Australia a written notice that complies with subsection (2).\n\n (2) The notice given under subsection (1) must:\n\n (a) state that the consumer goods are subject to recall; and\n\n (b) if the consumer goods contain a defect or have a dangerous characteristic—set out the nature of that defect or characteristic; and\n\n (c) if a reasonably foreseeable use or misuse of the consumer goods is dangerous—set out the circumstances of that use or misuse; and\n\n (d) if the consumer goods do not comply with a safety standard for such goods that is in force—set out the nature of the non‑compliance; and\n\n (e) if an interim ban, or a permanent ban, on the consumer goods is in force—state that fact.\n\n (3) The notice under subsection (1) must be given as soon as practicable after the supply of the consumer goods to the person outside Australia.\n\n (4) A person who is required to give a notice under subsection (1) must, within 10 days after giving the notice, give a copy of the notice to the responsible Minister who issued the recall notice.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.","sortOrder":2335},{"sectionNumber":"Sch 2 s 126","sectionType":"section","heading":"Interaction of multiple recall notices","content":"126  Interaction of multiple recall notices\n\n  If:\n\n (a) a recall notice (the original recall notice) for consumer goods of a particular kind (the recalled goods) is issued by a responsible Minister other than the Commonwealth Minister; and\n\n (b) while the original recall notice is in force, the Commonwealth Minister issues a recall notice (the Commonwealth recall notice):\n\n (i) for the recalled goods; or\n\n (ii) for consumer goods of a kind that includes the recalled goods;\n\nthe original recall notice, to the extent that it relates to the recalled goods, ceases to be in force immediately before the Commonwealth recall notice is issued.","sortOrder":2336},{"sectionNumber":"Sch 2 s 127","sectionType":"section","heading":"Compliance with recall notices","content":"127  Compliance with recall notices\n\n (1) If:\n\n (a) a recall notice for consumer goods is in force; and\n\n (b) the notice requires a person (other than the regulator) to do one or more things;\n\nthe person must comply with the notice.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) If a recall notice for consumer goods is in force, a person must not, in trade or commerce:\n\n (a) if the notice identifies a defect in, or a dangerous characteristic of, the consumer goods—supply consumer goods of the kind to which the notice relates which contain that defect or have that characteristic; or\n\n (b) in any other case—supply consumer goods of the kind to which the notice relates.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) If:\n\n (a) a person contravenes subsection (1) or (2) in relation to consumer goods; and\n\n (b) another person suffers loss or damage:\n\n (i) because of a defect in, or a dangerous characteristic of, the goods; or\n\n (ii) because of a reasonably foreseeable use (including a misuse) of the goods; or\n\n (iii) because, contrary to the recall notice, the other person was not provided with particular information in relation to the goods;\n\nthe other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of the contravention.","sortOrder":2337},{"sectionNumber":"Sch 2 s 128","sectionType":"section","heading":"Notification requirements for a voluntary recall of consumer goods","content":"128  Notification requirements for a voluntary recall of consumer goods\n\n (1) This section applies if a person voluntarily takes action to recall consumer goods of a particular kind (including consumer goods that have become fixtures since being supplied) because:\n\n (a) the consumer goods will or may cause injury to any other person; or\n\n (b) a reasonably foreseeable use (including a misuse) of the consumer goods will or may cause injury to any other person; or\n\n (c) a safety standard for the consumer goods is in force and they do not, or it is likely that they do not, comply with the standard; or\n\n (d) an interim ban, or a permanent ban, on the consumer goods is in force.\n\n (2) The person must, within 2 days after taking the action, give the Commonwealth Minister a written notice that complies with subsection (7).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) The Commonwealth Minister may publish a copy of the notice on the internet.\n\n (4) A person who has supplied or supplies consumer goods of that kind to another person outside Australia must give the other person a written notice that complies with subsection (7).\n\n (5) The notice under subsection (4) must be given as soon as practicable after the supply of the consumer goods to the person outside Australia.\n\n (6) A person who is required to give a notice under subsection (4) must, within 10 days after giving the notice, give a copy of the notice to the Commonwealth Minister.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (7) A notice given under subsection (2) or (4) must:\n\n (a) state that the consumer goods are subject to recall; and\n\n (b) if the consumer goods contain a defect or have a dangerous characteristic—set out the nature of that defect or characteristic; and\n\n (c) if a reasonably foreseeable use or misuse of the consumer goods is dangerous—set out the circumstances of that use or misuse; and\n\n (d) if the consumer goods do not, or it is likely that they do not, comply with a safety standard for the goods that is in force—set out the nature of the non‑compliance or likely non‑compliance; and\n\n (e) if an interim ban, or a permanent ban, on the consumer goods is in force—state that fact.","sortOrder":2339},{"sectionNumber":"Sch 2 s 129","sectionType":"section","heading":"Safety warning notices about consumer goods and product related services","content":"129  Safety warning notices about consumer goods and product related services\n\n (1) A responsible Minister may publish on the internet a written notice containing one or both of the following:\n\n (a) a statement that consumer goods of a kind specified in the notice are under investigation to determine whether:\n\n (i) those goods will or may cause injury to any person; or\n\n (ii) a reasonably foreseeable use (including a misuse) of those goods will or may cause injury to any person;\n\n (b) a warning of possible risks involved in the use of consumer goods of a kind specified in the notice.\n\n (2) A responsible Minister may publish on the internet a written notice containing one or both of the following:\n\n (a) a statement that product related services of a kind specified in the notice are under investigation to determine whether:\n\n (i) consumer goods of a particular kind will or may cause injury to any person as a result of services of that kind being supplied; or\n\n (ii) a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which such services relate, will or may cause injury to any person as a result of such services being supplied;\n\n (b) a warning of possible risks involved in the supply of product related services of a kind specified in the notice.","sortOrder":2341},{"sectionNumber":"Sch 2 s 130","sectionType":"section","heading":"Announcement of the results of an investigation etc.","content":"130  Announcement of the results of an investigation etc.\n\n (1) If:\n\n (a) an investigation of consumer goods, or product related services, specified in a notice under section 129(1) or (2) has been completed; and\n\n (b) none of the following have been published or issued in relation to those goods or services:\n\n (i) a proposed ban notice under section 132 of the Competition and Consumer Act;\n\n (ii) a proposed recall notice under section 132A of that Act;\n\n (iii) a notice under section 132J(1) or (2) of that Act;\n\nthe responsible Minister who issued the notice under section 129(1) or (2) must, as soon as practicable after the completion of the investigation, announce, by written notice published on the internet, the results of the investigation.\n\n (2) The responsible Minister may announce in a notice published under subsection (1) of this section:\n\n (a) whether any action under this Part is proposed to be taken in relation to the consumer goods or product related services; and\n\n (b) if it is proposed to take any such action—what action is proposed to be taken.","sortOrder":2342},{"sectionNumber":"Sch 2 s 131","sectionType":"section","heading":"Suppliers to report consumer goods associated with the death or serious injury or illness of any person","content":"131  Suppliers to report consumer goods associated with the death or serious injury or illness of any person\n\n (1) If:\n\n (a) a person (the supplier), in trade or commerce, supplies consumer goods; and\n\n (b) the supplier becomes aware of the death or serious injury or illness of any person and:\n\n (i) considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods; or\n\n (ii) becomes aware that a person other than the supplier considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods;\n\nthe supplier must, within 2 days of becoming so aware, give the Commonwealth Minister a written notice that complies with subsection (5).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) Subsection (1) does not apply if:\n\n (a) it is clear that the death or serious injury or illness was not caused by the use or foreseeable misuse of the consumer goods; or\n\n (b) it is very unlikely that the death or serious injury or illness was caused by the use or foreseeable misuse of the consumer goods; or\n\n (c) the supplier, or another person, is required to notify the death or serious injury or illness in accordance with a law of the Commonwealth, a State or a Territory that is a law specified in the regulations; or\n\n (d) the supplier, or another person, is required to notify the death or serious injury or illness in accordance with an industry code of practice that:\n\n (i) applies to the supplier or other person; and\n\n (ii) is specified in the regulations.\n\n (3) Subsection (1) applies whether or not the consumer goods were being used before or at the time the death or serious injury or illness occurred.\n\n (4) Without limiting subsection (1), the ways in which the supplier may become aware as mentioned in subsection (1)(b) include receiving the relevant information from any of the following:\n\n (a) a consumer;\n\n (b) a person who re‑supplies the consumer goods;\n\n (c) a repairer or insurer of the goods;\n\n (d) an industry organisation or consumer organisation.\n\n (5) The notice must:\n\n (a) identify the consumer goods; and\n\n (b) include information about the following matters to the extent that it is known by the supplier at the time the notice is given:\n\n (i) when, and in what quantities, the consumer goods were manufactured in Australia, supplied in Australia, imported into Australia or exported from Australia;\n\n (ii) the circumstances in which the death or serious injury or illness occurred;\n\n (iii) the nature of any serious injury or illness suffered by any person;\n\n (iv) any action that the supplier has taken, or is intending to take, in relation to the consumer goods.\n\n (6) The giving of the notice under subsection (1) is not to be taken for any purpose to be an admission by the supplier of any liability in relation to:\n\n (a) the consumer goods; or\n\n (b) the death or serious injury or illness of any person.","sortOrder":2344},{"sectionNumber":"Sch 2 s 132","sectionType":"section","heading":"Suppliers to report product related services associated with the death or serious injury or illness of any person","content":"132  Suppliers to report product related services associated with the death or serious injury or illness of any person\n\n (1) If:\n\n (a) a person (the supplier), in trade or commerce, supplies product related services; and\n\n (b) the supplier becomes aware of the death or serious injury or illness of any person and:\n\n (i) considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods to which the services relate; or\n\n (ii) becomes aware that a person other than the supplier considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods to which the services relate;\n\nthe supplier must, within 2 days of becoming so aware, give the Commonwealth Minister a written notice that complies with subsection (5).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) Subsection (1) does not apply if:\n\n (a) it is clear that the death or serious injury or illness was not caused by the use or foreseeable misuse of the consumer goods to which the services relate; or\n\n (b) it is very unlikely that the death or serious injury or illness was caused by the use or foreseeable misuse of the consumer goods to which the services relate; or\n\n (c) the supplier, or another person, is required to notify the death or serious injury or illness in accordance with a law of the Commonwealth, a State or a Territory that is a law specified in the regulations; or\n\n (d) the supplier, or another person, has notified the death or serious injury or illness in accordance with an industry code of practice that:\n\n (i) applies to the supplier or other person; and\n\n (ii) is specified in the regulations.\n\n (3) Subsection (1) applies whether or not consumer goods to which the product related services relate were being used before or at the time the death or serious injury or illness occurred.\n\n (4) Without limiting subsection (1), the ways in which the supplier may become aware as mentioned in subsection (1)(b) include receiving the relevant information from any of the following:\n\n (a) a consumer;\n\n (b) a person who re‑supplies the product related services;\n\n (c) an insurer of the services;\n\n (d) an industry organisation or consumer organisation.\n\n (5) The notice must:\n\n (a) identify the product related services and the consumer goods to which the services relate; and\n\n (b) include information about the following matters to the extent that it is known by the supplier at the time the notice is given:\n\n (i) when the services have been supplied;\n\n (ii) the circumstances in which the death or serious injury or illness occurred;\n\n (iii) the nature of any serious injury or illness suffered by any person;\n\n (iv) any action that the supplier has taken, or is intending to take, in relation to the services.\n\n (6) The giving of the notice under subsection (1) is not to be taken for any purpose to be an admission by the supplier of any liability in relation to:\n\n (a) the product related services; or\n\n (b) the consumer goods to which the services relate; or\n\n (c) the death or serious injury or illness of any person.","sortOrder":2345},{"sectionNumber":"Sch 2 s 132A","sectionType":"section","heading":"Confidentiality of notices given under this Division","content":"132A  Confidentiality of notices given under this Division\n\n (1) A person must not disclose to any other person a notice given under this Division, or any part of or information contained in such a notice, unless the person who gave the notice has consented to the notice, or that part or information, not being treated as confidential.\n\n (2) This section does not apply if:\n\n (a) the disclosure is made by the Commonwealth Minister to:\n\n (i) another responsible Minister; or\n\n (ii) the regulator; or\n\n (iii) an associate regulator; or\n\n (b) the disclosure is made by the Commonwealth Minister and the Commonwealth Minister considers that the disclosure is in the public interest; or\n\n (c) the disclosure is made by a member of the staff of the regulator, or an associate regulator, in the performance of his or her duties as such a member of staff, and is made:\n\n (i) to another member of the staff of the regulator or associate regulator; or\n\n (ii) if the person making the disclosure is a member of the staff of the regulator—to an associate regulator; or\n\n (iii) if the person making the disclosure is a member of the staff of an associate regulator—to the regulator or another associate regulator; or\n\n (d) the disclosure is required or authorised by or under law; or\n\n (e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty.\n\n (3) This section also does not apply if the disclosure is made by a member of the staff of the regulator, or an associate regulator, in the performance of his or her duties as such a member of staff, and is made because it is reasonably necessary to protect public safety, to:\n\n (a) any other agency within the meaning of the Freedom of Information Act 1982; or\n\n (b) the Director of Public Prosecutions; or\n\n (c) a State/Territory government body (within the meaning of section 155AAA of the Competition and Consumer Act); or\n\n (d) a foreign government body (within the meaning of the Competition and Consumer Act).","sortOrder":2346},{"sectionNumber":"Sch 2 Division 6","sectionType":"subdivision","heading":"Miscellaneous","content":"Division 6—Miscellaneous","sortOrder":2347},{"sectionNumber":"Sch 2 s 133","sectionType":"section","heading":"Liability under a contract of insurance","content":"133  Liability under a contract of insurance\n\n  If:\n\n (a) a contract of insurance between an insurer and a person relates to:\n\n (i) the recall of consumer goods that are supplied by the person, or which the person proposes to supply; or\n\n (ii) the liability of the person with respect to possible defects in such consumer goods; and\n\n (b) the person gives information relating to any such consumer goods to:\n\n (i) a responsible Minister; or\n\n (ii) the regulator; or\n\n (iii) a person appointed or engaged under the Public Service Act 1999, or under a corresponding law of a State or a Territory; or\n\n (iv) an officer of an authority of the Commonwealth or of a State or Territory;\n\nthe liability of the insurer under the contract is not affected only because the person gave the information.","sortOrder":2348},{"sectionNumber":"Sch 2 Part 3-4","sectionType":"division","heading":"Information standards","content":"Part 3‑4—Information standards","sortOrder":2349},{"sectionNumber":"Sch 2 s 134","sectionType":"section","heading":"Making information standards for goods and services","content":"134  Making information standards for goods and services\n\n (1) The Commonwealth Minister may, by written notice, make an information standard in relation to the provision of information for one or both of the following:\n\n (a) goods of a particular kind;\n\n (b) services of a particular kind.\n\n (2) Without limiting subsection (1), an information standard for goods or services of a particular kind may:\n\n (a) make provision in relation to the content of information about goods or services of that kind; or\n\n (b) require the provision of specified information about goods or services of that kind; or\n\n (c) provide for the manner or form in which such information is to be provided; or\n\n (d) provide that such information is not to be provided in a specified manner or form; or\n\n (e) provide that information of a specified kind is not to be provided about goods or services of that kind; or\n\n (f) assign a meaning to specified information about goods or services;\n\n (g) require the making and keeping of records in relation to goods or services of that kind;\n\n (h) require the provision of information to any person, including the regulator, in relation to goods or services of that kind.\n\n (3) An information standard may also deal with matters incidental or related to the provision of information for goods or services of a particular kind.\n\n (4) An information standard may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing (an incorporated instrument):\n\n (a) as in force or existing at a particular time; or\n\n (b) as in force or existing from time to time.\n\n (5) If:\n\n (a) an information standard makes provision in relation to a matter in accordance with subsection (4); and\n\n (b) the incorporated instrument is prepared or approved by an Australian or international standards body;\n\nthe information standard may also make provision in relation to any matter dealt with in the incorporated instrument.","sortOrder":2350},{"sectionNumber":"Sch 2 s 136","sectionType":"section","heading":"Supplying etc. goods that do not comply with information standards","content":"136  Supplying etc. goods that do not comply with information standards\n\n (1) A person must not, in trade or commerce, supply goods of a particular kind if:\n\n (a) an information standard for goods of that kind is in force; and\n\n (b) the person has not complied with that standard.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (1A) Subsection (1) does not apply if the person failed to comply only with a provision of the standard that is specified by the standard to be a provision to which section 137AA applies.\n\n (1B) A person who wishes to rely on subsection (1A) in proceedings bears an evidential burden in relation to that matter.\n\n (2) A person must not, in trade or commerce, offer for supply goods the supply of which is prohibited by subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) A person must not, in or for the purposes of trade or commerce, manufacture, possess or have control of goods the supply of which is prohibited by subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (4) In a proceeding under Part 5‑2 in relation to a contravention of subsection (3), it is a defence if the defendant proves that the defendant’s manufacture, possession or control of the goods was not for the purpose of supplying the goods.\n\n (5) Subsections (1), (2) and (3) do not apply to goods that are intended to be used outside Australia.\n\n (6) Unless the contrary is established, it is presumed, for the purposes of this section, that goods are intended to be used outside Australia if either of the following is applied to the goods:\n\n (a) a statement that the goods are for export only;\n\n (b) a statement indicating, by the use of words authorised by the regulations to be used for the purposes of this subsection, that the goods are intended to be used outside Australia.\n\n (7) Without limiting subsection (6), a statement may, for the purposes of that subsection, be applied to goods by being:\n\n (a) woven in, impressed on, worked into or annexed or affixed to the goods; or\n\n (b) applied to a covering, label, reel or thing in or with which the goods are supplied.\n\n (8) If:\n\n (a) a person (the supplier) supplies goods in contravention of subsection (1), (2) or (3); and\n\n (b) another person suffers loss or damage because, contrary to the information standard, he or she was not provided with particular information in relation to the goods; and\n\n (c) the other person would not have suffered the loss or damage if the supplier had complied with the information standard;\n\nthe other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.","sortOrder":2351},{"sectionNumber":"Sch 2 s 137","sectionType":"section","heading":"Supplying etc. services that do not comply with information standards","content":"137  Supplying etc. services that do not comply with information standards\n\n (1) A person must not, in trade or commerce, supply services of a particular kind if:\n\n (a) an information standard for services of that kind is in force; and\n\n (b) the person has not complied with that standard.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (1A) Subsection (1) does not apply if the person failed to comply only with a provision of the standard that is specified by the standard to be a provision to which section 137AA applies.\n\n (1B) A person who wishes to rely on subsection (1A) in proceedings bears an evidential burden in relation to that matter.\n\n (2) A person must not, in trade or commerce, offer for supply services the supply of which is prohibited by subsection (1).\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (3) If:\n\n (a) a person (the supplier) supplies services in contravention of subsection (1) or (2); and\n\n (b) another person suffers loss or damage because, contrary to the information standard, he or she was not provided with particular information in relation to the services; and\n\n (c) the other person would not have suffered the loss or damage if the supplier had complied with the information standard;\n\nthe other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.","sortOrder":2352},{"sectionNumber":"Sch 2 s 137AA","sectionType":"section","heading":"Other non-compliance with information standards","content":"137AA  Other non‑compliance with information standards\n\n (1) A person contravenes this section if:\n\n (a) an information standard for goods or services of a particular kind is in force; and\n\n (b) the person, in trade or commerce, has supplied, or offered for supply, goods or services of that kind; and\n\n (c) the person is subject to a requirement under a provision of the standard that is specified by the standard to be a provision to which this section applies; and\n\n (d) the person engages in conduct in relation to the supply or offer; and\n\n (e) the conduct contravenes the requirement.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) Subsection (1) does not apply to goods that are intended to be used outside Australia.\n\n (3) Subsections 136(6) and (7) apply for the purposes of this section in the same way those sections apply for the purposes of section 136.","sortOrder":2353},{"sectionNumber":"Sch 2 s 137A","sectionType":"section","heading":"Safe harbour for complying with information standards about free range eggs","content":"137A  Safe harbour for complying with information standards about free range eggs\n\n (1) Neither section 18 nor paragraph 29(1)(a) or 151(1)(a) applies to a person in relation to the labelling or displaying of eggs as free range eggs if, when doing so, the person is complying with all requirements:\n\n (a) specified in an information standard for eggs; and\n\n (b) relating to the labelling or displaying of free range eggs, including requirements about:\n\n (i) the use of the words “free range”; or\n\n (ii) representing that eggs are free range eggs.\n\n (2) If:\n\n (a) proceedings are brought against a person in respect of section 18 or paragraph 29(1)(a) or 151(1)(a); and\n\n (b) the person seeks to rely on subsection (1) of this section in the proceedings;\n\nthe person bears an evidential burden in relation to the matters set out in that subsection.\n\n (3) An egg is an egg laid by a female domestic chicken (Gallus gallus domesticus).\n\n (4) Free range egg has the meaning given by the information standard mentioned in paragraph (1)(a).","sortOrder":2354},{"sectionNumber":"Sch 2 s 137B","sectionType":"section","heading":"Requirement to give information or documents","content":"137B  Requirement to give information or documents\n\n  If:\n\n (a) an information standard for goods or services of a particular kind is in force; and\n\n (b) a person, in trade or commerce:\n\n (i) has supplied, or offered for supply, goods or services of that kind; or\n\n (ii) is supplying, or offering for supply, goods or services of that kind; or\n\n (iii) intends to supply, or offer for supply, goods or services of that kind; and\n\n (c) the regulator gives to the person a written request for information or documents to determine whether the person has complied, is complying, or will comply with the standard;\n\nthe person must, within the period specified in the request, give to the regulator the requested information or documents.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.","sortOrder":2355},{"sectionNumber":"Sch 2 Part 3-5","sectionType":"division","heading":"Liability of manufacturers for goods with safety defects","content":"Part 3‑5—Liability of manufacturers for goods with safety defects","sortOrder":2356},{"sectionNumber":"Sch 2 s 138","sectionType":"section","heading":"Liability for loss or damage suffered by an injured individual","content":"138  Liability for loss or damage suffered by an injured individual\n\n (1) A manufacturer of goods is liable to compensate an individual if:\n\n (a) the manufacturer supplies the goods in trade or commerce; and\n\n (b) the goods have a safety defect; and\n\n (c) the individual suffers injuries because of the safety defect.\n\n (2) The individual may recover, by action against the manufacturer, the amount of the loss or damage suffered by the individual.\n\n (3) If the individual dies because of the injuries, a law of a State or a Territory about liability in respect of the death of individuals applies as if:\n\n (a) the action were an action under the law of the State or Territory for damages in respect of the injuries; and\n\n (b) the safety defect were the manufacturer’s wrongful act, neglect or default.","sortOrder":2358},{"sectionNumber":"Sch 2 s 139","sectionType":"section","heading":"Liability for loss or damage suffered by a person other than an injured individual","content":"139  Liability for loss or damage suffered by a person other than an injured individual\n\n (1) A manufacturer of goods is liable to compensate a person if:\n\n (a) the manufacturer supplies the goods in trade or commerce; and\n\n (b) the goods have a safety defect; and\n\n (c) an individual (other than the person) suffers injuries because of the safety defect; and\n\n (d) the person suffers loss or damage because of:\n\n (i) the injuries; or\n\n (ii) if the individual dies because of the injuries—the individual’s death; and\n\n (e) the loss or damage does not come about because of a business or professional relationship between the person and the individual.\n\n (2) The person may recover, by action against the manufacturer, the amount of the loss or damage suffered by the person.","sortOrder":2359},{"sectionNumber":"Sch 2 s 140","sectionType":"section","heading":"Liability for loss or damage suffered by a person if other goods are destroyed or damaged","content":"140  Liability for loss or damage suffered by a person if other goods are destroyed or damaged\n\n (1) A manufacturer of goods is liable to compensate a person if:\n\n (a) the manufacturer supplies the goods in trade or commerce; and\n\n (b) the goods have a safety defect; and\n\n (c) other goods of a kind ordinarily acquired for personal, domestic or household use or consumption are destroyed or damaged because of the safety defect; and\n\n (d) the person used or consumed, or intended to use or consume, the destroyed or damaged goods for personal, domestic or household use or consumption; and\n\n (e) the person suffers loss or damage as a result of the destruction or damage.\n\n (2) The person may recover, by action against the manufacturer, the amount of the loss or damage suffered by the person.","sortOrder":2360},{"sectionNumber":"Sch 2 s 141","sectionType":"section","heading":"Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged","content":"141  Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged\n\n (1) A manufacturer of goods is liable to compensate a person if:\n\n (a) the manufacturer supplies the goods in trade or commerce; and\n\n (b) the goods have a safety defect; and\n\n (c) land, buildings or fixtures are destroyed or damaged because of the safety defect; and\n\n (d) the land, buildings or fixtures are ordinarily acquired for private use; and\n\n (e) the person used, or intended to use, the land, buildings or fixtures for private use; and\n\n (f) the person suffers loss or damage as a result of the destruction or damage.\n\n (2) The person may recover, by action against the manufacturer, the amount of the loss or damage suffered by the person.","sortOrder":2361},{"sectionNumber":"Sch 2 s 142","sectionType":"section","heading":"Defences to defective goods actions","content":"142  Defences to defective goods actions\n\n  In a defective goods action, it is a defence if it is established that:\n\n (a) the safety defect in the goods that is alleged to have caused the loss or damage did not exist:\n\n (i) in the case of electricity—at the time at which the electricity was generated, being a time before it was transmitted or distributed; or\n\n (ii) in any other case—at the time when the goods were supplied by their actual manufacturer; or\n\n (b) the goods had that safety defect only because there was compliance with a mandatory standard for them; or\n\n (c) the state of scientific or technical knowledge at the time when the goods were supplied by their manufacturer was not such as to enable that safety defect to be discovered; or\n\n (d) if the goods that had that safety defect were comprised in other goods—that safety defect is attributable only to:\n\n (i) the design of the other goods; or\n\n (ii) the markings on or accompanying the other goods; or\n\n (iii) the instructions or warnings given by the manufacturer of the other goods.","sortOrder":2362},{"sectionNumber":"Sch 2 s 143","sectionType":"section","heading":"Time for commencing defective goods actions","content":"143  Time for commencing defective goods actions\n\n (1) Subject to subsection (2), a person may commence a defective goods action at any time within 3 years after the time the person became aware, or ought reasonably to have become aware, of all of the following:\n\n (a) the alleged loss or damage;\n\n (b) the safety defect of the goods;\n\n (c) the identity of the person who manufactured the goods.\n\n (2) A defective goods action must be commenced within 10 years of the supply by the manufacturer of the goods to which the action relates.","sortOrder":2364},{"sectionNumber":"Sch 2 s 144","sectionType":"section","heading":"Liability joint and several","content":"144  Liability joint and several\n\n  If 2 or more persons are liable under Division 1 for the same loss or damage, they are jointly and severally liable.","sortOrder":2365},{"sectionNumber":"Sch 2 s 145","sectionType":"section","heading":"Survival of actions","content":"145  Survival of actions\n\n  A law of a State or a Territory about the survival of causes of action vested in persons who die applies to actions under Division 1.","sortOrder":2366},{"sectionNumber":"Sch 2 s 146","sectionType":"section","heading":"No defective goods action where workers’ compensation law etc. applies","content":"146  No defective goods action where workers’ compensation law etc. applies\n\n  Division 1 does not apply to a loss or damage in respect of which an amount has been, or could be, recovered under a law of the Commonwealth, a State or a Territory that:\n\n (a) relates to workers’ compensation; or\n\n (b) gives effect to an international agreement.","sortOrder":2367},{"sectionNumber":"Sch 2 s 147","sectionType":"section","heading":"Unidentified manufacturer","content":"147  Unidentified manufacturer\n\n (1) A person who:\n\n (a) wishes to institute a defective goods action; but\n\n (b) does not know who is the manufacturer of the goods to which the action would relate;\n\nmay, by written notice given to a supplier, or each supplier, of the goods who is known to the person, request the supplier or suppliers to give the person particulars identifying the manufacturer of the goods, or the supplier of the goods to the supplier requested.\n\n (2) If, 30 days after the person made the request or requests, the person still does not know who is the manufacturer of the goods, then each supplier:\n\n (a) to whom the request was made; and\n\n (b) who did not comply with the request;\n\nis taken, for the purposes of the defective goods liability action (but not for the purposes of section 142(c)), to be the manufacturer of the goods.","sortOrder":2368},{"sectionNumber":"Sch 2 s 148","sectionType":"section","heading":"Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard","content":"148  Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard\n\n (1) If a person (however described) against whom a defective goods action is brought raises the defence that the goods had the alleged safety defect only because there was compliance with a Commonwealth mandatory standard for the goods, the person must, as soon as practicable after raising that defence, give the Commonwealth:\n\n (a) a prescribed notice of the action and of that defence; and\n\n (b) a copy of the person’s defence in the action.\n\n (2) The giving of the notice and defence makes the Commonwealth a defendant in the action.\n\n (3) If, in the action, the court finds that the person (the plaintiff) by whom the action is brought would, but for the defence referred to in subsection (1), have succeeded against the person (other than the Commonwealth) against which the action is brought, then:\n\n (a) the Commonwealth, and not the person (other than the Commonwealth) against which the action is brought, is liable to pay the plaintiff for the amount of the loss or damage caused by the safety defect; and\n\n (b) the court is to enter judgment against the Commonwealth for that amount; and\n\n (c) the court may make such orders for costs as the court considers just.","sortOrder":2369},{"sectionNumber":"Sch 2 s 149","sectionType":"section","heading":"Representative actions by the regulator","content":"149  Representative actions by the regulator\n\n (1) The regulator may, by application, commence a defective goods action on behalf of one or more persons identified in the application who have suffered the loss or damage in relation to which the action is commenced.\n\n (2) The regulator may only make the application if it has obtained the written consent of the person, or each of the persons, on whose behalf the application is being made.","sortOrder":2370},{"sectionNumber":"Sch 2 s 150","sectionType":"section","heading":"Application of all or any provisions of this Part etc. not to be excluded or modified","content":"150  Application of all or any provisions of this Part etc. not to be excluded or modified\n\n (1) Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term) that purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying, any of the following is void:\n\n (a) the application of all or any of the provisions of this Part;\n\n (b) the exercise of a right conferred by any of those provisions;\n\n (c) any liability under any of those provisions.\n\n (2) A term of a contract is not taken to exclude, restrict or modify the application of a provision of this Part unless the term does so expressly or is inconsistent with that provision.","sortOrder":2372},{"sectionNumber":"Sch 2 Chapter 4","sectionType":"part","heading":"Offences","content":"Chapter 4—Offences","sortOrder":2373},{"sectionNumber":"Sch 2 Part 4-1","sectionType":"division","heading":"Offences relating to unfair practices","content":"Part 4‑1—Offences relating to unfair practices","sortOrder":2374},{"sectionNumber":"Sch 2 s 151","sectionType":"section","heading":"False or misleading representations about goods or services","content":"151  False or misleading representations about goods or services\n\n (1) A person commits an offence if the person, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:\n\n (a) makes a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or\n\n (b) makes a false or misleading representation that services are of a particular standard, quality, value or grade; or\n\n (c) makes a false or misleading representation that goods are new; or\n\n (d) makes a false or misleading representation that a particular person has agreed to acquire goods or services; or\n\n (e) makes a false or misleading representation that purports to be a testimonial by any person relating to goods or services; or\n\n (f) makes a false or misleading representation concerning:\n\n (i) a testimonial by any person; or\n\n (ii) a representation that purports to be such a testimonial;\n\n  relating to goods or services; or\n\n (g) makes a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or\n\n (h) makes a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or\n\n (i) makes a false or misleading representation with respect to the price of goods or services; or\n\n (j) makes a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods; or\n\n (k) makes a false or misleading representation concerning the place of origin of goods; or\n\n (l) makes a false or misleading representation concerning the need for any goods or services; or\n\n (m) makes a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3‑2); or\n\n (n) makes a false or misleading representation concerning a requirement to pay for a contractual right that:\n\n (i) is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3‑2); and\n\n (ii) a person has under a law of the Commonwealth, a State or a Territory (other than an unwritten law).\n\nNote: For rules relating to representations as to the country of origin of goods, see Part 5‑3.\n\n (2) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation of a kind referred to in subsection (1)(e) or (f), the representation is taken to be misleading unless evidence is adduced to the contrary.\n\n (3) To avoid doubt, subsection (2) does not:\n\n (a) have the effect that, merely because such evidence to the contrary is adduced, the representation is not misleading; or\n\n (b) have the effect of placing on any person an onus of proving that the representation is not misleading.\n\n (4) Subsection (1) is an offence of strict liability.\n\nPenalty\n\n (5) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (6) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2376},{"sectionNumber":"Sch 2 s 152","sectionType":"section","heading":"False or misleading representations about sale etc. of land","content":"152  False or misleading representations about sale etc. of land\n\n (1) A person commits an offence if the person, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of an interest in land or in connection with the promotion by any means of the sale or grant of an interest in land:\n\n (a) makes a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or\n\n (b) makes a false or misleading representation concerning the nature of the interest in the land; or\n\n (c) makes a false or misleading representation concerning the price payable for the land; or\n\n (d) makes a false or misleading representation concerning the location of the land; or\n\n (e) makes a false or misleading representation concerning the characteristics of the land; or\n\n (f) makes a false or misleading representation concerning the use to which the land is capable of being put or may lawfully be put; or\n\n (g) makes a false or misleading representation concerning the existence or availability of facilities associated with the land.\n\n (2) Subsection (1) is an offence of strict liability.\n\nPenalty\n\n (2A) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (2B) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.\n\nOther\n\n (3) This section does not affect the application of any other provision of this Part in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.","sortOrder":2377},{"sectionNumber":"Sch 2 s 153","sectionType":"section","heading":"Misleading conduct relating to employment","content":"153  Misleading conduct relating to employment\n\n (1) A person commits an offence if the person, in relation to employment that is to be, or may be, offered by the person or by another person, engages in conduct that is liable to mislead persons seeking the employment as to:\n\n (a) the availability, nature, terms or conditions of the employment; or\n\n (b) any other matter relating to the employment.\n\n (2) Subsection (1) is an offence of strict liability.\n\nPenalty\n\n (3) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (4) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2378},{"sectionNumber":"Sch 2 s 154","sectionType":"section","heading":"Offering rebates, gifts, prizes etc.","content":"154  Offering rebates, gifts, prizes etc.\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, offers any rebate, gift, prize or other free item; and\n\n (b) the offer is connected with:\n\n (i) the supply or possible supply of goods or services; or\n\n (ii) the promotion by any means of the supply or use of goods or services; or\n\n (iii) the sale or grant, or the possible sale or grant, of an interest in land; or\n\n (iv) the promotion by any means of the sale or grant of an interest in land; and\n\n (c) the offer is made with the intention of not providing the rebate, gift, prize or other free item, or of not providing it as offered.\n\n (2) A person commits an offence if:\n\n (a) the person, in trade or commerce, offers any rebate, gift, prize or other free item; and\n\n (b) the offer is connected with:\n\n (i) the supply or possible supply of goods or services; or\n\n (ii) the promotion by any means of the supply or use of goods or services; or\n\n (iii) the sale or grant, or the possible sale or grant, of an interest in land; or\n\n (iv) the promotion by any means of the sale or grant of an interest in land; and\n\n (c) the person fails to provide the rebate, gift, prize or other free item, in accordance with the offer, within the time specified in the offer or (if no such time is specified) within a reasonable time after making the offer.\n\n (3) Subsection (2) does not apply if:\n\n (a) the person’s failure to provide the rebate, gift, prize or other free item in accordance with the offer was due to the act or omission of another person, or to some other cause beyond the person’s control; and\n\n (b) the person took reasonable precautions and exercised due diligence to avoid the failure.\n\n (4) Subsection (2) does not apply to an offer that the person makes to another person if:\n\n (a) the person offers to the other person a different rebate, gift, prize or other free item as a replacement; and\n\n (b) the other person agrees to receive the different rebate, gift, prize or other free item.\n\n (5) Strict liability applies to subsections (1)(b) and (2)(b).\n\nPenalty\n\n (5A) An offence against subsection (1) or (2) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (5B) An offence against subsection (1) or (2) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.\n\nOther\n\n (6) This section does not affect the application of any other provision of this Part in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.","sortOrder":2379},{"sectionNumber":"Sch 2 s 155","sectionType":"section","heading":"Misleading conduct as to the nature etc. of goods","content":"155  Misleading conduct as to the nature etc. of goods\n\n (1) A person commits an offence if the person, in trade or commerce, engages in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.\n\n (2) Subsection (1) is an offence of strict liability.\n\nPenalty\n\n (3) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (4) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2380},{"sectionNumber":"Sch 2 s 156","sectionType":"section","heading":"Misleading conduct as to the nature etc. of services","content":"156  Misleading conduct as to the nature etc. of services\n\n (1) A person commits an offence if the person, in trade or commerce, engages in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services.\n\n (2) Subsection (1) is an offence of strict liability.\n\nPenalty\n\n (3) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (4) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2381},{"sectionNumber":"Sch 2 s 157","sectionType":"section","heading":"Bait advertising","content":"157  Bait advertising\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, advertises goods or services for supply at a specified price; and\n\n (b) there are reasonable grounds for believing that the person will not be able to offer for supply those goods or services at that price for a period that is, and in quantities that are, reasonable, having regard to:\n\n (i) the nature of the market in which the person carries on business; and\n\n (ii) the nature of the advertisement.\n\n (2) A person commits an offence if:\n\n (a) the person, in trade or commerce, advertises goods or services for supply at a specified price; and\n\n (b) the person fails to offer such goods or services for supply at that price for a period that is, and in quantities that are, reasonable having regard to:\n\n (i) the nature of the market in which the person carries on business; and\n\n (ii) the nature of the advertisement.\n\n (3) Subsections (1) and (2) are offences of strict liability.\n\nPenalty\n\n (3A) An offence against subsection (1) or (2) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (3B) An offence against subsection (1) or (2) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.\n\nDefence\n\n (4) In a prosecution of a person (the defendant) under subsection (2), for failing to offer goods or services to another person (the customer), it is a defence if:\n\n (a) the defendant proves that:\n\n (i) he or she offered to supply, or to procure a third person to supply, goods or services of the kind advertised to the customer within a reasonable time, in a reasonable quantity and at the advertised price; or\n\n (ii) he or she offered to supply immediately, or to procure a third person to supply within a reasonable time, equivalent goods or services to the customer in a reasonable quantity and at the price at which the first‑mentioned goods or services were advertised; and\n\n (b) in either case, if the offer was accepted by the customer, the defendant proves that he or she has so supplied, or procured a third person to supply, the goods or services.","sortOrder":2382},{"sectionNumber":"Sch 2 s 158","sectionType":"section","heading":"Wrongly accepting payment","content":"158  Wrongly accepting payment\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, accepts payment or other consideration for goods or services; and\n\n (b) at the time of the acceptance, the person intends not to supply the goods or services.\n\n (2) Strict liability applies to subsection (1)(a).\n\n (3) A person commits an offence if:\n\n (a) the person, in trade or commerce, accepts payment or other consideration for goods or services; and\n\n (b) at the time of the acceptance, the person intends to supply goods or services materially different from the goods or services in respect of which the payment or other consideration is accepted.\n\n (4) Strict liability applies to subsection (3)(a).\n\n (5) A person commits an offence if:\n\n (a) the person, in trade or commerce, accepts payment or other consideration for goods or services; and\n\n (b) at the time of the acceptance, the person was reckless as to whether he or she would be able to supply the goods or services:\n\n (i) within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or\n\n (ii) if no period is specified at or before that time—within a reasonable time.\n\n (6) Strict liability applies to subsection (5)(a).\n\n (7) A person commits an offence if:\n\n (a) the person, in trade or commerce, accepts payment or other consideration for goods or services; and\n\n (b) the person fails to supply all the goods or services:\n\n (i) within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or\n\n (ii) if no period is specified at or before that time—within a reasonable time.\n\n (8) Subsection (7) does not apply if:\n\n (a) the person’s failure to supply all the goods or services within the period, or within a reasonable time, was due to the act or omission of another person, or to some other cause beyond the person’s control; and\n\n (b) the person took reasonable precautions and exercised due diligence to avoid the failure.\n\n (9) Subsection (7) does not apply if:\n\n (a) the person offers to supply different goods or services as a replacement to the person (the customer) to whom the original supply was to be made; and\n\n (b) the customer agrees to receive the different goods or services.\n\n (10) Subsection (7) is an offence of strict liability.\n\nPenalty\n\n (10A) An offence against subsection (1), (3), (5) or (7) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (10B) An offence against subsection (1), (3), (5) or (7) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.\n\nOther\n\n (11) Subsections (1), (3), (5) and (7) apply whether or not the payment or other consideration that the person accepted represents the whole or a part of the payment or other consideration for the supply of the goods or services.","sortOrder":2383},{"sectionNumber":"Sch 2 s 159","sectionType":"section","heading":"Misleading representations about certain business activities","content":"159  Misleading representations about certain business activities\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, makes a representation; and\n\n (b) the representation is false or misleading in a material particular; and\n\n (c) the representation concerns the profitability, risk or any other material aspect of any business activity that the person has represented as one that can be, or can be to a considerable extent, carried on at or from a person’s place of residence.\n\n (2) A person commits an offence if:\n\n (a) the person, in trade or commerce, makes a representation; and\n\n (b) the representation is false or misleading in a material particular; and\n\n (c) the representation concerns the profitability, risk or any other material aspect of any business activity:\n\n (i) that the person invites (whether by advertisement or otherwise) other persons to engage or participate in, or to offer or apply to engage or participate in; and\n\n (ii) that requires the performance of work by other persons, or the investment of money by other persons and the performance by them of work associated with the investment.\n\n (3) Subsections (1) and (2) are offences of strict liability.\n\nPenalty\n\n (4) An offence against subsection (1) or (2) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (5) An offence against subsection (1) or (2) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2384},{"sectionNumber":"Sch 2 s 160","sectionType":"section","heading":"Application of provisions of this Division to information providers","content":"160  Application of provisions of this Division to information providers\n\n (1) Sections 151, 152, 155, 156 and 159 do not apply to a publication of matter by an information provider if:\n\n (a) in any case—the information provider made the publication in the course of carrying on a business of providing information; or\n\n (b) if the information provider is the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or the holder of a licence granted under the Broadcasting Services Act 1992—the publication was by way of a radio or television broadcast by the information provider.\n\n (2) Subsection (1) does not apply to a publication of an advertisement.\n\n (3) Subsection (1) does not apply to a publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, goods or services (the publicised goods or services), if:\n\n (a) the publicised goods or services were goods or services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or\n\n (b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised goods or services; or\n\n (c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies goods or services of the same kind as the publicised goods or services.\n\n (4) Subsection (1) does not apply to a publication of matter in connection with the sale or grant, or possible sale or grant, of, or the promotion by any means of the sale or grant of, interests in land (the publicised interests in land), if:\n\n (a) the publicised interests in land were interests of a kind sold or granted by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or\n\n (b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who sells or grants interests of the same kind as the publicised interests in land; or\n\n (c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that sells or grants interests of the same kind as the publicised interests in land.","sortOrder":2385},{"sectionNumber":"Sch 2 s 161","sectionType":"section","heading":"Unsolicited cards etc.","content":"161  Unsolicited cards etc.\n\n (1) A person commits an offence if:\n\n (a) the person sends a credit card or a debit card, or an article that may be used as a credit card and a debit card, to another person; and\n\n (b) either:\n\n (i) the person had issued the card; or\n\n (ii) the card was sent on behalf of the person who had issued the card.\n\n (2) Subsection (1) does not apply if the person sends the card to the other person:\n\n (a) pursuant to a written request by the person who will be under a liability to the person who issued the card or article in respect of the use of the card or article; or\n\n (b) in renewal or replacement of, or in substitution for:\n\n (i) a card or article of the same kind previously sent to the other person pursuant to a written request by the person who was under a liability, to the person who issued the card previously so sent, in respect of the use of that card; or\n\n (ii) a card or article of the same kind previously sent to the other person and used for a purpose for which it was intended to be used.\n\n (3) A person commits an offence if the person takes any action that enables another person who has a credit card to use the card as a debit card.\n\n (4) A person commits an offence if the person takes any action that enables another person who has a debit card to use the card as a credit card.\n\n (5) Subsection (3) or (4) does not apply if the person takes the action in accordance with the other person’s written request.\n\n (6) Subsections (1), (3) and (4) are offences of strict liability.\n\nPenalty\n\n (7) An offence against subsection (1), (3) or (4) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (8) An offence against subsection (1), (3) or (4) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2387},{"sectionNumber":"Sch 2 s 162","sectionType":"section","heading":"Assertion of right to payment for unsolicited goods or services","content":"162  Assertion of right to payment for unsolicited goods or services\n\n (1) A person commits an offence if the person, in trade or commerce, asserts a right to payment from another person for unsolicited goods.\n\n (2) A person commits an offence if the person, in trade or commerce, asserts a right to payment from another person for unsolicited services.\n\n (3) A person commits an offence if the person, in trade or commerce, sends to another person an invoice or other document that:\n\n (a) states the amount of a payment, or sets out the charge, for unsolicited goods or unsolicited services; and\n\n (b) does not contain a warning statement that complies with the requirements set out in the regulations made for the purposes of section 40(3)(b).\n\n (4) Subsection (1), (2) or (3) does not apply if the person proves that he or she had reasonable cause to believe that there was a right to the payment or charge.\n\n (5) Subsections (1), (2) and (3) are offences of strict liability.\n\nPenalty\n\n (6) An offence against subsection (1), (2) or (3) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (7) An offence against subsection (1), (2) or (3) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2388},{"sectionNumber":"Sch 2 s 163","sectionType":"section","heading":"Assertion of right to payment for unauthorised entries or advertisements","content":"163  Assertion of right to payment for unauthorised entries or advertisements\n\n (1) A person commits an offence if the person asserts a right to payment from another person of a charge for placing, in a publication, an entry or advertisement relating to:\n\n (a) the other person; or\n\n (b) the other person’s profession, business, trade or occupation.\n\n (2) A person commits an offence if the person sends to another person an invoice or other document that:\n\n (a) states the amount of a payment, or sets out the charge, for placing, in a publication, an entry or advertisement relating to:\n\n (i) the other person; or\n\n (ii) the other person’s profession, business, trade or occupation; and\n\n (b) does not contain a warning statement that complies with the requirements set out in the regulations made for the purposes of section 43(2)(b).\n\n (3) Subsections (1) and (2) do not apply if the person proves that he or she knew, or had reasonable cause to believe, that the other person authorised the placing of the entry or advertisement.\n\n (4) Subsections (1) and (2) do not apply to an entry or advertisement that is placed in a publication published by a person who is:\n\n (a) the publisher of a publication that has an audited circulation of 10,000 copies or more per week, as confirmed by the most recent audit of the publication by a body specified in the regulations made for the purposes of section 43(3)(a); or\n\n (b) a body corporate related to such a publisher; or\n\n (c) the Commonwealth, a State or a Territory, or an authority of the Commonwealth, a State or a Territory; or\n\n (d) a person specified in regulations made for the purposes of section 43(3)(d).\n\n (5) Subsections (1) and (2) are offences of strict liability.\n\nPenalty\n\n (5A) An offence against subsection (1) or (2) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (5B) An offence against subsection (1) or (2) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.\n\nOther\n\n (6) A person is not taken for the purposes of this section to have authorised the placing of the entry or advertisement, unless:\n\n (a) a document authorising the placing of the entry or advertisement has been signed by the person or by another person authorised by him or her; and\n\n (b) a copy of the document has been given to the person before the right to payment of a charge for the placing of the entry or advertisement is asserted; and\n\n (c) the document specifies:\n\n (i) the name and address of the person publishing the entry or advertisement; and\n\n (ii) particulars of the entry or advertisement; and\n\n (iii) the amount of the charge for the placing of the entry or advertisement, or the basis on which the charge is, or is to be, calculated.","sortOrder":2389},{"sectionNumber":"Sch 2 s 164","sectionType":"section","heading":"Participation in pyramid schemes","content":"164  Participation in pyramid schemes\n\n (1) A person commits an offence if the person participates in a pyramid scheme.\n\n (2) A person commits an offence if the person induces another person to participate in a pyramid scheme.\n\n (3) Subsections (1) and (2) are offences of strict liability.\n\nPenalty\n\n (4) An offence against subsection (1) or (2) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (5) An offence against subsection (1) or (2) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2391},{"sectionNumber":"Sch 2 s 165","sectionType":"section","heading":"Multiple pricing","content":"165  Multiple pricing\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, supplies goods; and\n\n (b) the goods have more than one displayed price; and\n\n (c) the supply takes place for a price that is not the lower, or lowest, of the displayed prices.\n\nPenalty:\n\n (a) if the person is a body corporate—$5,000; or\n\n (b) if the person is not a body corporate—$1,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2393},{"sectionNumber":"Sch 2 s 166","sectionType":"section","heading":"Single price to be specified in certain circumstances","content":"166  Single price to be specified in certain circumstances\n\n (1) A person commits an offence if the person, in trade or commerce, in connection with:\n\n (a) the supply, or possible supply, to another person of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption; or\n\n (b) the promotion by any means of the supply to another person, or of the use by another person, of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption;\n\nmakes 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.\n\n (2) A person is not required to include, in the single price for goods, a charge that is payable in relation to sending the goods from the supplier to the other person.\n\n (3) Subsection (1) does not apply if the person also:\n\n (a) specifies, in a prominent way and as a single figure, the single price for the goods or services; and\n\n (b) if, in relation to goods:\n\n (i) the person does not include in the single price a charge that is payable in relation to sending the goods from the supplier to the other person; and\n\n (ii) the person knows, at the time of the representation, the minimum amount of a charge in relation to sending the goods from the supplier to the other person that must be paid by the other person;\n\n  specifies that minimum amount.\n\n (4) Subsection (1) does not apply if the representation is made exclusively to a body corporate.\n\n (5) For the purposes of subsection (3)(a), the person is taken not to have specified a single price for the goods or services in a prominent way unless the single price is at least as prominent as the most prominent of the parts of the consideration for the supply.\n\n (6) Subsection (5) does not apply in relation to services to be supplied under a contract if:\n\n (a) the contract provides for the supply of the services for the term of the contract; and\n\n (b) the contract provides for periodic payments for the services to be made during the term of the contract; and\n\n (c) if the contract also provides for the supply of goods—the goods are directly related to the supply of the services.\n\n (7) Subsection (1) is an offence of strict liability.\n\nPenalty\n\n (8) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (9) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2394},{"sectionNumber":"Sch 2 s 167","sectionType":"section","heading":"Referral selling","content":"167  Referral selling\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, induces a consumer to acquire goods or services by representing that the consumer will, after the contract for the acquisition of the goods or services is made, receive a rebate, commission or other benefit in return for:\n\n (i) giving the person the names of prospective customers; or\n\n (ii) otherwise assisting the person to supply goods or services to other consumers; and\n\n (b) the receipt of the rebate, commission or other benefit is contingent on an event occurring after that contract is made.\n\n (2) Subsection (1) is an offence of strict liability.\n\nPenalty\n\n (3) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (4) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2396},{"sectionNumber":"Sch 2 s 168","sectionType":"section","heading":"Harassment and coercion","content":"168  Harassment and coercion\n\n (1) A person commits an offence if:\n\n (a) the person uses physical force, or undue harassment or coercion; and\n\n (b) the physical force, or undue harassment or coercion is used in connection with:\n\n (i) the supply or possible supply of goods or services; or\n\n (ii) the payment for goods or services; or\n\n (iii) the sale or grant, or the possible sale or grant, of an interest in land; or\n\n (iv) the payment for an interest in land.\n\n (2) Subsection (1) is an offence of strict liability.\n\nPenalty\n\n (2A) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (2B) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.\n\nOther\n\n (3) Subsections (1)(b)(iii) and (iv) do not affect the application of any other provision of this Part in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.","sortOrder":2397},{"sectionNumber":"Sch 2 Part 4-2","sectionType":"division","heading":"Offences relating to consumer transactions","content":"Part 4‑2—Offences relating to consumer transactions","sortOrder":2398},{"sectionNumber":"Sch 2 s 169","sectionType":"section","heading":"Display notices","content":"169  Display notices\n\n (1) A person commits an offence if:\n\n (a) the person makes a supply to a consumer to which:\n\n (i) guarantees apply under Division 1 of Part 3‑2; and\n\n (ii) a determination under subsection 66(1) applies; and\n\n (b) a notice that meets the requirements of the determination is not, in accordance with the determination:\n\n (i) if the consumer takes delivery of the goods or services at the supplier’s premises—displayed at those premises; or\n\n (ii) otherwise—drawn to the consumer’s attention before the consumer agrees to the supply of the goods.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2400},{"sectionNumber":"Sch 2 s 170","sectionType":"section","heading":"Permitted hours for negotiating an unsolicited consumer agreement","content":"170  Permitted hours for negotiating an unsolicited consumer agreement\n\n (1) A dealer commits an offence if the dealer calls on a person for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose:\n\n (a) at any time on a Sunday or a public holiday; or\n\n (b) before 9 am on any other day; or\n\n (c) after 6 pm on any other day (or after 5 pm if the other day is a Saturday).\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) Subsection (1) does not apply if the dealer calls on, or telephones, the person in accordance with consent that:\n\n (a) was given by the person to the dealer or a person acting on the dealer’s behalf; and\n\n (b) was not given in the presence of the dealer or a person acting on the dealer’s behalf.\n\n (3) Subsection (1) is an offence of strict liability.","sortOrder":2403},{"sectionNumber":"Sch 2 s 171","sectionType":"section","heading":"Disclosing purpose and identity","content":"171  Disclosing purpose and identity\n\n (1) A dealer commits an offence if the dealer:\n\n (a) calls on a person for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose; and\n\n (b) does not as soon as practicable and in any event before starting to negotiate:\n\n (i) clearly advise the person that the dealer’s purpose is to seek the person’s agreement to a supply of the goods or services concerned; and\n\n (ii) clearly advise the person that the dealer is obliged to leave the premises immediately on request; and\n\n (iii) provide to the person such information relating to the dealer’s identity as is prescribed by the regulations made for the purposes of section 74(c).\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2404},{"sectionNumber":"Sch 2 s 172","sectionType":"section","heading":"Ceasing to negotiate on request","content":"172  Ceasing to negotiate on request\n\n (1) A dealer commits an offence if the dealer:\n\n (a) calls on a person at any premises for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose; and\n\n (b) does not leave the premises immediately on the request of:\n\n (i) the occupier of the premises, or any person acting with the actual or apparent authority of the occupier; or\n\n (ii) the person (the prospective consumer) with whom the negotiations are being conducted.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) A dealer commits an offence if:\n\n (a) the prospective consumer has made the request referred to in subsection (1)(b); and\n\n (b) the dealer contacts the prospective consumer for the purpose of negotiating an unsolicited consumer agreement (or for an incidental or related purpose) within 30 days after the prospective consumer made the request.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (3) If the dealer is not, or is not to be, the supplier of the goods or services to which the negotiations relate, subsection (2) applies to that supplier, and any person acting on behalf of the supplier, in the same way that it applies to the dealer.\n\n (4) Subsection (2) does not apply to the dealer contacting the prospective consumer if:\n\n (a) the dealer is not, or is not to be, the supplier of the goods or services to which the negotiations relate; and\n\n (b) the contact relates to a supply by another supplier.\n\n (5) Subsections (1) and (2) are offences of strict liability.","sortOrder":2405},{"sectionNumber":"Sch 2 s 173","sectionType":"section","heading":"Informing person of termination period etc.","content":"173  Informing person of termination period etc.\n\n (1) A dealer commits an offence if the dealer makes an unsolicited consumer agreement with a person, and:\n\n (a) before the agreement is made, the person is not given information as to the following:\n\n (i) the person’s right to terminate the agreement during the termination period;\n\n (ii) the way in which the person may exercise that right;\n\n (iii) such other matters as are prescribed by regulations made for the purposes of section 76(a)(iii); or\n\n (b) if the agreement is made in the presence of both the dealer and the person—the person is not given the information in writing; or\n\n (c) if the agreement is made by telephone—the person is not:\n\n (i) given the information by telephone; and\n\n (ii) subsequently given the information in writing; or\n\n (d) the form in which, and the way in which, the person is given the information does not comply with any other requirements prescribed by regulations made for the purposes of section 76(d).\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) If:\n\n (a) a dealer contravenes subsection (1) in relation to an unsolicited consumer agreement; and\n\n (b) the dealer is not, or is not to be, the supplier of the goods or services to which the agreement relates;\n\nthe supplier of the goods or services is also taken to have contravened subsection (1) in relation to the agreement.\n\n (3) Subsection (1) is an offence of strict liability.","sortOrder":2406},{"sectionNumber":"Sch 2 s 174","sectionType":"section","heading":"Requirement to give document to the consumer","content":"174  Requirement to give document to the consumer\n\n (1) The dealer who negotiated an unsolicited consumer agreement commits an offence if:\n\n (a) the agreement was not negotiated by telephone; and\n\n (b) the dealer does not give a copy of the agreement to the consumer under the agreement immediately after the consumer signs the agreement.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) The dealer who negotiated an unsolicited consumer agreement commits an offence if:\n\n (a) the agreement was negotiated by telephone; and\n\n (b) the dealer does not, within 5 business days after the agreement was made or such longer period agreed by the parties, give to the consumer under the agreement:\n\n (i) personally; or\n\n (ii) by post; or\n\n (iii) with the consumer’s consent—by electronic communication;\n\n  an agreement document evidencing the agreement.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (3) Subsections (1) and (2) are offences of strict liability.","sortOrder":2408},{"sectionNumber":"Sch 2 s 175","sectionType":"section","heading":"Requirements for all unsolicited consumer agreements etc.","content":"175  Requirements for all unsolicited consumer agreements etc.\n\n (1) The supplier under an unsolicited consumer agreement commits an offence if the agreement, or (if the agreement was negotiated by telephone) the agreement document, does not comply with the following requirements:\n\n (a) it must set out in full all the terms of the agreement, including:\n\n (i) the total consideration to be paid or provided by the consumer under the agreement or, if the total consideration is not ascertainable at the time the agreement is made, the way in which it is to be calculated; and\n\n (ii) any postal or delivery charges to be paid by the consumer;\n\n (b) its front page must include a notice that:\n\n (i) conspicuously and prominently informs the consumer of the consumer’s right to terminate the agreement; and\n\n (ii) conspicuously and prominently sets out any other information prescribed by regulations made for the purposes of section 79(b)(ii); and\n\n (iii) complies with any other requirements prescribed by regulations made for the purposes of section 79(b)(iii);\n\n (c) it must be accompanied by a notice that:\n\n (i) may be used by the consumer to terminate the agreement; and\n\n (ii) complies with any requirements prescribed by regulations made for the purposes of section 79(c)(ii);\n\n (d) it must conspicuously and prominently set out in full:\n\n (i) the supplier’s name; and\n\n (ii) if the supplier has an ABN—the supplier’s ABN; and\n\n (iii) if the supplier does not have an ABN but has an ACN—the supplier’s ACN; and\n\n (iv) the supplier’s business address (not being a post box) or, if the supplier does not have a business address, the supplier’s residential address; and\n\n (v) if the supplier has an email address—the supplier’s email address; and\n\n (vi) if the supplier has a fax number—the supplier’s fax number;\n\n (e) it must be printed clearly or typewritten (apart from any amendments to the printed or typewritten form, which may be handwritten);\n\n (f) it must be transparent.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2409},{"sectionNumber":"Sch 2 s 176","sectionType":"section","heading":"Additional requirements for unsolicited consumer agreements not negotiated by telephone","content":"176  Additional requirements for unsolicited consumer agreements not negotiated by telephone\n\n (1) The supplier under an unsolicited consumer agreement that was not negotiated by telephone commits an offence if the agreement does not comply with the following requirements:\n\n (a) the agreement must be signed by the consumer under the agreement;\n\n (b) if the agreement is signed by a person on the supplier’s behalf—the agreement must state that the person is acting on the supplier’s behalf, and must set out in full:\n\n (i) the person’s name; and\n\n (ii) the person’s business address (not being a post box) or, if the person does not have a business address, the person’s residential address; and\n\n (iii) if the person has an email address—the person’s email address.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) Subsection (1) is an offence of strict liability.\n\n (3) This section does not limit the operation of section 175.","sortOrder":2410},{"sectionNumber":"Sch 2 s 177","sectionType":"section","heading":"Requirements for amendments of unsolicited consumer agreements","content":"177  Requirements for amendments of unsolicited consumer agreements\n\n (1) The supplier under an unsolicited consumer agreement commits an offence if any amendments to the agreement are not signed by both parties to the agreement.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2411},{"sectionNumber":"Sch 2 s 178","sectionType":"section","heading":"Obligations of suppliers on termination","content":"178  Obligations of suppliers on termination\n\n (1) The supplier under an unsolicited consumer agreement commits an offence if:\n\n (a) the agreement is terminated in accordance with section 82; and\n\n (b) the supplier does not, immediately upon being notified of the termination, return or refund to the consumer under the agreement any consideration (or the value of any consideration) that the consumer gave under the agreement or a related contract or instrument.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2413},{"sectionNumber":"Sch 2 s 179","sectionType":"section","heading":"Prohibition on supplies etc.","content":"179  Prohibition on supplies etc.\n\n (1) The supplier under an unsolicited consumer agreement commits an offence if:\n\n (a) the supplier:\n\n (i) supplies to the consumer under the agreement the goods or services to be supplied under the agreement; or\n\n (ii) accepts any payment, or any other consideration, in connection with those goods or services; or\n\n (iii) requires any payment, or any other consideration, in connection with those goods or services; and\n\n (b) the supply, acceptance or requirement occurs during:\n\n (i) if the agreement was not negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the agreement was made; or\n\n (ii) if the agreement was negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the consumer was given the agreement document relating to the agreement.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) Strict liability applies to subsection (1)(a).","sortOrder":2414},{"sectionNumber":"Sch 2 s 180","sectionType":"section","heading":"Repayment of payments received after termination","content":"180  Repayment of payments received after termination\n\n (1) The supplier under an unsolicited consumer agreement commits an offence if:\n\n (a) the agreement is terminated in accordance with section 82; and\n\n (b) the supplier does not immediately refund to the consumer under the agreement any payment:\n\n (i) that the consumer, or a person acting on the consumer’s behalf, makes to the supplier after the termination; and\n\n (ii) that purports to be made under the agreement or a related contract or instrument.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2415},{"sectionNumber":"Sch 2 s 181","sectionType":"section","heading":"Prohibition on recovering amounts after termination","content":"181  Prohibition on recovering amounts after termination\n\n (1) A person commits an offence if:\n\n (a) an unsolicited consumer agreement is terminated in accordance with section 82; and\n\n (b) the person:\n\n (i) brings, or asserts an intention to bring, legal proceedings against the consumer; or\n\n (ii) takes, or asserts an intention to take, any other action against the consumer;\n\n  in relation to an amount alleged to be payable, under the agreement or a related contract or instrument, by the consumer under the agreement.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) A person commits an offence if:\n\n (a) an unsolicited consumer agreement is terminated in accordance with section 82; and\n\n (b) for the purpose of recovering an amount alleged to be payable, under the agreement or a related contract or instrument, by the consumer under the agreement, the person:\n\n (i) places the consumer’s name, or causes the consumer’s name to be placed, on a list of defaulters or debtors; or\n\n (ii) asserts an intention to place the consumer’s name, or to cause the consumer’s name to be placed, on such a list.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (3) Subsection (1) is an offence of strict liability.\n\n (4) Strict liability applies to subsection (2)(a).","sortOrder":2416},{"sectionNumber":"Sch 2 s 182","sectionType":"section","heading":"Certain provisions of unsolicited consumer agreements void","content":"182  Certain provisions of unsolicited consumer agreements void\n\n (1) The supplier under an unsolicited consumer agreement commits an offence if the agreement includes, or purports to include, a provision (however described) that is, or would be, void because of section 89(1).\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) The supplier under an unsolicited consumer agreement commits an offence if the supplier attempts to enforce or rely on a provision (however described) that is void because of section 89(1).\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (3) Subsections (1) and (2) are offences of strict liability.","sortOrder":2418},{"sectionNumber":"Sch 2 s 183","sectionType":"section","heading":"Waiver of rights","content":"183  Waiver of rights\n\n (1) The supplier under an unsolicited consumer agreement commits an offence if the supplier induces the consumer to waive any right conferred by Division 2 of Part 3‑2.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2419},{"sectionNumber":"Sch 2 s 184","sectionType":"section","heading":"Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.","content":"184  Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.\n\n (1) This Division applies in relation to a person to whom the rights of a consumer (the original consumer) under a contract for the supply of goods or services are assigned or transferred, or pass by operation of law, (whether from the original consumer or from another person) as if the person were the original consumer.\n\n (2) This Division applies in relation to a person to whom the rights of a supplier (the original supplier) under a contract for the supply of goods or services are assigned or transferred, or pass by operation of law, (whether from the original supplier or from another person) as if the person were the original supplier.","sortOrder":2420},{"sectionNumber":"Sch 2 s 185","sectionType":"section","heading":"Application of this Division to supplies to third parties","content":"185  Application of this Division to supplies to third parties\n\n  This Division applies in relation to a contract for the supply of goods or services to a consumer (the original consumer) on the order of another person as if the other person were also the consumer.","sortOrder":2421},{"sectionNumber":"Sch 2 s 186","sectionType":"section","heading":"Regulations may limit the application of this Division","content":"186  Regulations may limit the application of this Division\n\n  This Division (other than section 170) does not apply, or provisions of this Division (other than section 170) that are specified in regulations made for the purposes of section 94 do not apply, to or in relation to:\n\n (a) circumstances of a kind specified in those regulations; or\n\n (b) agreements of a kind specified in those regulations; or\n\n (c) the conduct of businesses of a kind specified in those regulations.","sortOrder":2422},{"sectionNumber":"Sch 2 s 187","sectionType":"section","heading":"Application of this Division to certain conduct covered by the Corporations Act","content":"187  Application of this Division to certain conduct covered by the Corporations Act\n\n  This Division does not apply in relation to conduct to which section 992A of the Corporations Act 2001 applies.\n\nNote: Section 992A of the Corporations Act 2001 prohibits hawking of financial products.","sortOrder":2423},{"sectionNumber":"Sch 2 s 188","sectionType":"section","heading":"Lay-by agreements must be in writing etc.","content":"188  Lay‑by agreements must be in writing etc.\n\n (1) A supplier of goods who is a party to a lay‑by agreement commits an offence if:\n\n (a) the agreement is not in writing; or\n\n (b) a copy of the agreement is not given to the consumer to whom the goods are, or are to be, supplied.\n\nPenalty:\n\n (a) if the person is a body corporate—$30,000; or\n\n (b) if the person is not a body corporate—$6,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2425},{"sectionNumber":"Sch 2 s 189","sectionType":"section","heading":"Termination charges","content":"189  Termination charges\n\n (1) A supplier of goods who is a party to a lay‑by agreement commits an offence if the agreement requires the consumer to pay a termination charge.\n\nPenalty:\n\n (a) if the person is a body corporate—$30,000; or\n\n (b) if the person is not a body corporate—$6,000.\n\n (2) Subsection (1) does not apply if the termination charge is payable only if:\n\n (a) the agreement is terminated by the consumer; and\n\n (b) the supplier has not breached the agreement.\n\n (3) A supplier of goods who is a party to a lay‑by agreement commits an offence if:\n\n (a) the agreement provides that a termination charge is payable; and\n\n (b) the amount of the charge is more than the supplier’s reasonable costs in relation to the agreement.\n\nPenalty:\n\n (a) if the person is a body corporate—$30,000; or\n\n (b) if the person is not a body corporate—$6,000.\n\n (4) Subsections (1) and (3) are offences of strict liability.","sortOrder":2426},{"sectionNumber":"Sch 2 s 190","sectionType":"section","heading":"Termination of lay-by agreements by suppliers","content":"190  Termination of lay‑by agreements by suppliers\n\n (1) A supplier of goods who is a party to a lay‑by agreement commits an offence if the supplier terminates the agreement.\n\nPenalty:\n\n (a) if the person is a body corporate—$30,000; or\n\n (b) if the person is not a body corporate—$6,000.\n\n (2) Subsection (1) does not apply if:\n\n (a) the consumer who is a party to the agreement breached a term of the agreement; or\n\n (b) the supplier is no longer engaged in trade or commerce; or\n\n (c) the goods to which the agreement relates are no longer available.\n\n (3) Subsection (1) is an offence of strict liability.","sortOrder":2427},{"sectionNumber":"Sch 2 s 191","sectionType":"section","heading":"Refund of amounts","content":"191  Refund of amounts\n\n (1) A supplier of goods who is a party to a lay‑by agreement commits an offence if:\n\n (a) the agreement is terminated by a party to the agreement; and\n\n (b) the supplier fails to refund to the consumer all the amounts paid by the consumer under the agreement (other than any termination charge that is payable under the agreement).\n\nPenalty:\n\n (a) if the person is a body corporate—$30,000; or\n\n (b) if the person is not a body corporate—$6,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2428},{"sectionNumber":"Sch 2 s 191A","sectionType":"section","heading":"Gift cards to be redeemable for at least 3 years","content":"191A  Gift cards to be redeemable for at least 3 years\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, supplies a gift card to a consumer; and\n\n (b) the day the gift card ceases to be redeemable is earlier than 3 years after the day of that supply.\n\nPenalty:\n\n (a) if the person is a body corporate—$30,000; or\n\n (b) if the person is not a body corporate—$6,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2430},{"sectionNumber":"Sch 2 s 191B","sectionType":"section","heading":"When gift card ceases to be redeemable to appear prominently on gift card","content":"191B  When gift card ceases to be redeemable to appear prominently on gift card\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, supplies a gift card to a consumer; and\n\n (b) one of the following does not appear prominently on the gift card:\n\n (i) the date the gift card ceases to be redeemable;\n\n (ii) the month and year the gift card ceases to be redeemable;\n\n (iii) the date the gift card is supplied and a statement that identifies the period during which the gift card is redeemable;\n\n (iv) the month and year the gift card is supplied and a statement that identifies the period during which the gift card is redeemable;\n\n (v) the words “no expiry date” or words to that effect.\n\nPenalty:\n\n (a) if the person is a body corporate—$30,000; or\n\n (b) if the person is not a body corporate—$6,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2431},{"sectionNumber":"Sch 2 s 191C","sectionType":"section","heading":"Terms and conditions not to allow post-supply fees","content":"191C  Terms and conditions not to allow post‑supply fees\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, supplies a gift card to a consumer; and\n\n (b) the terms or conditions (however described) of the gift card allow or require the payment of a post‑supply fee in relation to the gift card.\n\nPenalty:\n\n (a) if the person is a body corporate—$30,000; or\n\n (b) if the person is not a body corporate—$6,000.\n\n (2) An offence against subsection (1) is an offence of strict liability.","sortOrder":2432},{"sectionNumber":"Sch 2 s 191D","sectionType":"section","heading":"Post-supply fees not to be demanded or received","content":"191D  Post‑supply fees not to be demanded or received\n\n (1) A person commits an offence if the person, in trade or commerce, demands or receives payment of a post‑supply fee in relation to a gift card.\n\nPenalty:\n\n (a) if the person is a body corporate—$30,000; or\n\n (b) if the person is not a body corporate—$6,000.\n\n (2) An offence against subsection (1) is an offence of strict liability.","sortOrder":2433},{"sectionNumber":"Sch 2 s 191E","sectionType":"section","heading":"Regulations may limit the application of this Division","content":"191E  Regulations may limit the application of this Division\n\n  The regulations may provide that some or all of the provisions of this Division do not apply to or in relation to:\n\n (a) gift cards of a kind prescribed by the regulations; or\n\n (b) persons of a kind prescribed by the regulations; or\n\n (c) gift cards supplied in circumstances prescribed by the regulations.","sortOrder":2434},{"sectionNumber":"Sch 2 s 192","sectionType":"section","heading":"Prescribed requirements for warranties against defects","content":"192  Prescribed requirements for warranties against defects\n\n (1) A person commits an offence if the person, in connection with the supply, in trade or commerce, of goods or services to a consumer:\n\n (a) gives to the consumer a document that evidences a warranty against defects and that does not comply with the requirements prescribed for the purposes of section 102(1); or\n\n (b) represents directly to the consumer that the goods or services are goods or services to which such a warranty against defects relates.\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2436},{"sectionNumber":"Sch 2 s 193","sectionType":"section","heading":"Repairers must comply with prescribed requirements","content":"193  Repairers must comply with prescribed requirements\n\n (1) A person commits an offence if:\n\n (a) the person accepts from another person goods that the other person acquired as a consumer; and\n\n (b) the goods are accepted for the purpose of repairing them; and\n\n (c) the person does not give to the other person a notice that complies with the requirements prescribed for the purposes of section 103(1).\n\nPenalty:\n\n (a) if the person is a body corporate—$50,000; or\n\n (b) if the person is not a body corporate—$10,000.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2437},{"sectionNumber":"Sch 2 Part 4-3","sectionType":"division","heading":"Offences relating to safety of consumer goods and product related services","content":"Part 4‑3—Offences relating to safety of consumer goods and product related services","sortOrder":2438},{"sectionNumber":"Sch 2 s 194","sectionType":"section","heading":"Supplying etc. consumer goods that do not comply with safety standards","content":"194  Supplying etc. consumer goods that do not comply with safety standards\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, supplies consumer goods of a particular kind; and\n\n (b) a safety standard for consumer goods of that kind is in force; and\n\n (c) those goods do not comply with the standard.\n\n (2) A person commits an offence if:\n\n (a) the person, in trade or commerce, offers for supply (other than for export) consumer goods of a particular kind; and\n\n (b) a safety standard for consumer goods of that kind is in force; and\n\n (c) those goods do not comply with the standard.\n\n (3) A person commits an offence if:\n\n (a) the person, in or for the purposes of trade or commerce, manufactures, possesses or has control of consumer goods of a particular kind; and\n\n (b) a safety standard for consumer goods of that kind is in force; and\n\n (c) those goods do not comply with the standard.\n\n (4) Subsection (3) does not apply if the person does not manufacture, possess or control the goods for the purpose of supplying the goods (other than for export).\n\n (5) A person commits an offence if:\n\n (a) the person, in trade or commerce, exports consumer goods of a particular kind; and\n\n (b) a safety standard for consumer goods of that kind is in force; and\n\n (c) those goods do not comply with the standard.\n\n (6) Subsection (5) does not apply if the Commonwealth Minister has, by written notice given to the person, approved the export of the goods under section 106(5).\n\n (7) Subsections (1), (2), (3) and (5) are offences of strict liability.\n\nPenalty\n\n (8) An offence against subsection (1), (2), (3) or (5) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (9) An offence against subsection (1), (2), (3) or (5) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2440},{"sectionNumber":"Sch 2 s 195","sectionType":"section","heading":"Supplying etc. product related services that do not comply with safety standards","content":"195  Supplying etc. product related services that do not comply with safety standards\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, supplies product related services of a particular kind; and\n\n (b) a safety standard for services of that kind is in force; and\n\n (c) those services do not comply with the standard.\n\n (2) A person commits an offence if:\n\n (a) the person, in trade or commerce, offers for supply product related services of a particular kind; and\n\n (b) a safety standard for services of that kind is in force; and\n\n (c) those services do not comply with the standard.\n\n (3) Subsections (1) and (2) are offences of strict liability.\n\nPenalty\n\n (4) An offence against subsection (1) or (2) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (5) An offence against subsection (1) or (2) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2441},{"sectionNumber":"Sch 2 s 196","sectionType":"section","heading":"Requirement to nominate a safety standard","content":"196  Requirement to nominate a safety standard\n\n (1) A person commits an offence if the person refuses or fails to comply with a request given to the person under subsection 108(2).\n\nPenalty:\n\n (a) if the person is a body corporate—$22,000; or\n\n (b) if the person is not a body corporate—$4,400.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2442},{"sectionNumber":"Sch 2 s 197","sectionType":"section","heading":"Supplying etc. consumer goods covered by a ban","content":"197  Supplying etc. consumer goods covered by a ban\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, supplies consumer goods of a particular kind; and\n\n (b) either:\n\n (i) an interim ban on goods of that kind is in force in the place where the supply occurs; or\n\n (ii) a permanent ban on goods of that kind is in force.\n\n (2) A person commits an offence if:\n\n (a) the person, in trade or commerce, offers for supply (other than for export) consumer goods of a particular kind; and\n\n (b) the supply would be prohibited by subsection (1).\n\n (3) A person commits an offence if:\n\n (a) the person, in or for the purposes of trade or commerce, manufactures, possesses or has control of consumer goods of a particular kind; and\n\n (b) supply of the goods would be prohibited by subsection (1).\n\n (4) Subsection (3) does not apply if the person does not manufacture, possess or control the goods for the purpose of supplying the goods (other than for export).\n\n (5) A person commits an offence if:\n\n (a) the person exports consumer goods of a particular kind; and\n\n (b) supply of the goods would be prohibited by subsection (1).\n\n (6) Subsection (5) does not apply if the Commonwealth Minister has, by written notice given to the person, approved the export of the goods under section 118(5).\n\n (7) Subsections (1), (2), (3) and (5) are offences of strict liability.\n\nPenalty\n\n (8) An offence against subsection (1), (2), (3) or (5) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (9) An offence against subsection (1), (2), (3) or (5) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2444},{"sectionNumber":"Sch 2 s 198","sectionType":"section","heading":"Supplying etc. product related services covered by a ban","content":"198  Supplying etc. product related services covered by a ban\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, supplies product related services of a particular kind; and\n\n (b) either:\n\n (i) an interim ban on services of that kind is in force in the place where the supply occurs; or\n\n (ii) a permanent ban on services of that kind is in force.\n\n (2) A person commits an offence if:\n\n (a) the person, in trade or commerce, offers for supply product related services of a particular kind; and\n\n (b) the supply would be prohibited by subsection (1).\n\n (3) Subsections (1) and (2) are offences of strict liability.\n\nPenalty\n\n (4) An offence against subsection (1) or (2) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (5) An offence against subsection (1) or (2) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2445},{"sectionNumber":"Sch 2 s 199","sectionType":"section","heading":"Compliance with recall orders","content":"199  Compliance with recall orders\n\n (1) A person commits an offence if:\n\n (a) a recall notice for consumer goods is in force; and\n\n (b) the notice requires the person (other than the regulator) to do one or more things; and\n\n (c) the person refuses or fails to comply with the notice.\n\n (2) A person commits an offence if:\n\n (a) a recall notice for consumer goods is in force; and\n\n (b) the person, in trade or commerce:\n\n (i) if the notice identifies a defect in, or a dangerous characteristic of, the consumer goods—supplies consumer goods of the kind to which the notice relates which contain that defect or have that characteristic; or\n\n (ii) in any other case—supplies consumer goods of the kind to which the notice relates.\n\n (3) Subsections (1) and (2) are offences of strict liability.\n\nPenalty\n\n (4) An offence against subsection (1) or (2) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (5) An offence against subsection (1) or (2) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2447},{"sectionNumber":"Sch 2 s 200","sectionType":"section","heading":"Notification by persons who supply consumer goods outside Australia if there is compulsory recall","content":"200  Notification by persons who supply consumer goods outside Australia if there is compulsory recall\n\n (1) A person commits an offence if:\n\n (a) the person is required by section 125(4) to give a copy of a notice to a responsible Minister; and\n\n (b) the person refuses or fails to give the copy as required by that section.\n\nPenalty:\n\n (a) if the person is a body corporate—$16,650; or\n\n (b) if the person is not a body corporate—$3,330.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2448},{"sectionNumber":"Sch 2 s 201","sectionType":"section","heading":"Notification requirements for a voluntary recall of consumer goods","content":"201  Notification requirements for a voluntary recall of consumer goods\n\n (1) A person commits an offence if:\n\n (a) the person is required by section 128(2) to give a notice to the Commonwealth Minister; and\n\n (b) the person refuses or fails to give the notice as required by that section.\n\nPenalty:\n\n (a) if the person is a body corporate—$16,650; or\n\n (b) if the person is not a body corporate—$3,330.\n\n (2) A person commits an offence if:\n\n (a) the person is required by section 128(6) to give a copy of a notice to the Commonwealth Minister; and\n\n (b) the person refuses or fails to give the copy as required by that section.\n\nPenalty:\n\n (a) if the person is a body corporate—$16,650; or\n\n (b) if the person is not a body corporate—$3,330.\n\n (3) Subsections (1) and (2) are offences of strict liability.","sortOrder":2449},{"sectionNumber":"Sch 2 s 202","sectionType":"section","heading":"Suppliers to report consumer goods etc. associated with the death or serious injury or illness of any person","content":"202  Suppliers to report consumer goods etc. associated with the death or serious injury or illness of any person\n\n (1) A person commits an offence if:\n\n (a) the person is required by section 131 or 132 to give a notice to the Commonwealth Minister; and\n\n (b) the person refuses or fails to give the notice as required by that section.\n\nPenalty:\n\n (a) if the person is a body corporate—$16,650; or\n\n (b) if the person is not a body corporate—$3,330.\n\n (2) Subsection (1) is an offence of strict liability.","sortOrder":2451},{"sectionNumber":"Sch 2 Part 4-4","sectionType":"division","heading":"Offences relating to information standards","content":"Part 4‑4—Offences relating to information standards","sortOrder":2452},{"sectionNumber":"Sch 2 s 203","sectionType":"section","heading":"Supplying etc. goods that do not comply with information standards","content":"203  Supplying etc. goods that do not comply with information standards\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, supplies goods of a particular kind; and\n\n (b) an information standard for goods of that kind is in force; and\n\n (c) the person has not complied with the standard in relation to the goods.\n\n (2) A person commits an offence if:\n\n (a) the person, in trade or commerce, offers for supply goods of a particular kind; and\n\n (b) an information standard for goods of that kind is in force; and\n\n (c) the person has not complied with the standard in relation to the goods.\n\n (3) A person commits an offence if:\n\n (a) the person, in or for the purposes of trade or commerce, manufactures, possesses or has control of goods of a particular kind; and\n\n (b) an information standard for goods of that kind is in force; and\n\n (c) the person has not complied with the standard in relation to the goods.\n\n (4) Subsection (3) does not apply if the person does not manufacture, possess or control the goods for the purpose of supplying the goods.\n\n (5) Subsection (1), (2) or (3) does not apply to goods that are intended to be used outside Australia.\n\n (6) Unless the contrary is established, it is presumed, for the purposes of this section, that goods are intended to be used outside Australia if either of the following is applied to the goods:\n\n (a) a statement that the goods are for export only;\n\n (b) a statement indicating, by the use of words authorised by regulations made for the purposes of section 136(6)(b) to be used for the purposes of section 136(6), that the goods are intended to be used outside Australia.\n\n (7) Without limiting subsection (6), a statement may, for the purposes of that subsection, be applied to goods by being:\n\n (a) woven in, impressed on, worked into or annexed or affixed to the goods; or\n\n (b) applied to a covering, label, reel or thing in or with which the goods are supplied.\n\n (8) Subsections (1), (2) and (3) are offences of strict liability.\n\nPenalty\n\n (9) An offence against subsection (1), (2) or (3) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (10) An offence against subsection (1), (2) or (3) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2453},{"sectionNumber":"Sch 2 s 204","sectionType":"section","heading":"Supplying etc. services that do not comply with information standards","content":"204  Supplying etc. services that do not comply with information standards\n\n (1) A person commits an offence if:\n\n (a) the person, in trade or commerce, supplies services of a particular kind; and\n\n (b) an information standard for services of that kind is in force; and\n\n (c) the person has not complied with the standard in relation to the services.\n\n (2) A person commits an offence if:\n\n (a) the person, in trade or commerce, offers for supply services of a particular kind; and\n\n (b) an information standard for services of that kind is in force; and\n\n (c) the person has not complied with the standard in relation to the services.\n\n (3) Subsections (1) and (2) are offences of strict liability.\n\nPenalty\n\n (4) An offence against subsection (1) or (2) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.\n\n (5) An offence against subsection (1) or (2) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.","sortOrder":2454},{"sectionNumber":"Sch 2 Part 4-5","sectionType":"division","heading":"Offences relating to substantiation notices","content":"Part 4‑5—Offences relating to substantiation notices","sortOrder":2455},{"sectionNumber":"Sch 2 s 205","sectionType":"section","heading":"Compliance with substantiation notices","content":"205  Compliance with substantiation notices\n\n (1) A person commits an offence if the person:\n\n (a) is given a substantiation notice; and\n\n (b) refuses or fails to comply with it within the substantiation notice compliance period for the notice.\n\nPenalty:\n\n (a) if the person is a body corporate—$16,500; or\n\n (b) if the person is not a body corporate—$3,300.\n\n (2) Subsection (1) does not apply if:\n\n (a) the person is an individual; and\n\n (b) the person refuses or fails to give particular information or produce a particular document in compliance with a substantiation notice; and\n\n (c) the information, or production of the document, might tend to incriminate the individual or to expose the individual to a penalty.\n\n (3) Subsection (1) is an offence of strict liability.","sortOrder":2456},{"sectionNumber":"Sch 2 s 206","sectionType":"section","heading":"False or misleading information etc.","content":"206  False or misleading information etc.\n\n (1) A person commits an offence if the person, in compliance or purported compliance with a substantiation notice given by the regulator:\n\n (a) gives to the regulator false or misleading information; or\n\n (b) produces to the regulator documents that contain false or misleading information.\n\nPenalty:\n\n (a) if the person is a body corporate—$27,500; or\n\n (b) if the person is not a body corporate—$5,500.\n\n (2) This section does not apply to:\n\n (a) information that the person could not have known was false or misleading; or\n\n (b) the production to the regulator of a document containing false or misleading information if the document is accompanied by a statement of the person that the information is false or misleading.\n\n (3) Subsection (1) is an offence of strict liability.","sortOrder":2457},{"sectionNumber":"Sch 2 Part 4-6","sectionType":"division","heading":"Defences","content":"Part 4‑6—Defences","sortOrder":2458},{"sectionNumber":"Sch 2 s 207","sectionType":"section","heading":"Reasonable mistake of fact","content":"207  Reasonable mistake of fact\n\n (1) In a prosecution for a contravention of a provision of this Chapter, it is a defence if the defendant proves that the contravention was caused by a reasonable mistake of fact, including a mistake of fact caused by reasonable reliance on information supplied by another person.\n\n (2) However, subsection (1) does not apply in relation to information relied upon by the defendant that was supplied to the defendant by another person who was, at the time when the contravention occurred:\n\n (a) an employee or agent of the defendant; or\n\n (b) if the defendant is a body corporate—a director, employee or agent of the defendant.\n\n (3) If a defence provided by subsection (1) involves an allegation that a contravention was due to reliance on information supplied by another person, the defendant is not entitled to rely on that defence unless:\n\n (a) the court gives leave; or\n\n (b) the defendant has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person who instituted the proceeding a written notice giving such information as the defendant then had that would identify or assist in identifying the other person.","sortOrder":2459},{"sectionNumber":"Sch 2 s 208","sectionType":"section","heading":"Act or default of another person etc.","content":"208  Act or default of another person etc.\n\n (1) In a prosecution for a contravention of a provision of this Chapter, it is a defence if the defendant proves that:\n\n (a) the contravention was due to the act or default of another person, to an accident or to some other cause beyond the defendant’s control; and\n\n (b) the defendant took reasonable precautions and exercised due diligence to avoid the contravention.\n\n (2) However, subsection (1) does not apply in relation to the act or default of another person who was, at the time when the contravention occurred:\n\n (a) an employee or agent of the defendant; or\n\n (b) if the defendant is a body corporate—a director, employee or agent of the defendant.\n\n (3) If a defence provided by subsection (1) involves an allegation that a contravention was due to the act or default of another person, the defendant is not entitled to rely on that defence unless:\n\n (a) the court gives leave; or\n\n (b) the defendant has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person who instituted the proceeding a written notice giving such information as the defendant then had that would identify or assist in identifying the other person.","sortOrder":2460},{"sectionNumber":"Sch 2 s 209","sectionType":"section","heading":"Publication of advertisements in the ordinary course of business","content":"209  Publication of advertisements in the ordinary course of business\n\n  In a prosecution for a contravention of a provision of this Chapter that was committed by publication of an advertisement, it is a defence if the defendant proves that:\n\n (a) the defendant is a person whose business it is to publish or arrange for the publication of advertisements; and\n\n (b) the defendant received the advertisement for publication in the ordinary course of business; and\n\n (c) the defendant did not know, and had no reason to suspect, that its publication would amount to a contravention of such a provision.","sortOrder":2461},{"sectionNumber":"Sch 2 s 210","sectionType":"section","heading":"Supplying goods acquired for the purpose of re-supply","content":"210  Supplying goods acquired for the purpose of re‑supply\n\n (1) In a prosecution for a contravention of a provision of this Chapter that was committed by supplying goods in contravention of section 194 or 203, it is a defence if the defendant proves that:\n\n (a) the goods were acquired by the defendant for the purpose of re‑supply; and\n\n (b) the goods were so acquired from a person who carried on in Australia a business of supplying such goods otherwise than as the agent of a person outside Australia; and\n\n (c) in the case of a contravention of section 194—the defendant:\n\n (i) did not know, and could not with reasonable diligence have ascertained, that the goods did not comply with the safety standard to which the contravention relates; or\n\n (ii) relied in good faith on a representation by the person from whom the defendant acquired the goods that there was no safety standard for such goods; and\n\n (d) in the case of a contravention of section 203—the defendant:\n\n (i) did not know, and could not with reasonable diligence have ascertained, that the defendant had not complied with the information standard to which the contravention relates; or\n\n (ii) relied in good faith on a representation by the person from whom the defendant acquired the goods that there was no information standard for such goods.\n\nNote: Section 194 is about supply of consumer goods that do not comply with safety standards, and section 203 is about supply of goods that do not comply with information standards.\n\n (2) A defendant is not entitled to rely on the defence provided by subsection (1) unless:\n\n (a) the court gives leave; or\n\n (b) the defendant has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person who instituted the proceeding a written notice identifying the person from whom the defendant acquired the goods.","sortOrder":2462},{"sectionNumber":"Sch 2 s 211","sectionType":"section","heading":"Supplying services acquired for the purpose of re-supply","content":"211  Supplying services acquired for the purpose of re‑supply\n\n (1) In a prosecution for a contravention of a provision of this Chapter that was committed by supplying services in contravention of section 195 or 204, it is a defence if the defendant proves that:\n\n (a) the services were acquired by the defendant for the purpose of re‑supply; and\n\n (b) the services were so acquired from a person who carried on in Australia a business of supplying such services otherwise than as the agent of a person outside Australia; and\n\n (c) in the case of a contravention of section 195—the defendant:\n\n (i) did not know, and could not with reasonable diligence have ascertained, that the services did not comply with the safety standard to which the contravention relates; or\n\n (ii) relied in good faith on a representation by the person from whom the defendant acquired the services that there was no safety standard for such services; and\n\n (d) in the case of a contravention of section 204—the defendant:\n\n (i) did not know, and could not with reasonable diligence have ascertained, that the defendant had not complied with the information standard to which the contravention relates; or\n\n (ii) relied in good faith on a representation by the person from whom the defendant acquired the services that there was no information standard for such services.\n\nNote: Section 195 is about supply of product related services that do not comply with safety standards, and section 204 is about supply of services that do not comply with information standards.\n\n (2) A defendant is not entitled to rely on the defence provided by subsection (1) unless:\n\n (a) the court gives leave; or\n\n (b) the defendant has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person who instituted the proceeding a written notice identifying the person from whom the defendant acquired the services.","sortOrder":2463},{"sectionNumber":"Sch 2 Part 4-7","sectionType":"division","heading":"Miscellaneous","content":"Part 4‑7—Miscellaneous","sortOrder":2464},{"sectionNumber":"Sch 2 s 212","sectionType":"section","heading":"Prosecutions to be commenced within 3 years","content":"212  Prosecutions to be commenced within 3 years\n\n  A prosecution for an offence against a provision of this Chapter may be commenced at any time within 3 years after the commission of the offence.","sortOrder":2465},{"sectionNumber":"Sch 2 s 213","sectionType":"section","heading":"Preference must be given to compensation for victims","content":"213  Preference must be given to compensation for victims\n\n  If a court considers that:\n\n (a) it is appropriate to impose a fine on a person (the defendant) under this Chapter in relation to:\n\n (i) a contravention of a provision of this Schedule; or\n\n (ii) an attempt to contravene such a provision; or\n\n (iii) aiding, abetting, counselling or procuring a person to contravene such a provision; or\n\n (iv) inducing, or attempting to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or\n\n (v) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n\n (vi) conspiring with others to contravene such a provision; and\n\n (b) it is appropriate to order the defendant to pay compensation to a person who has suffered loss or damage as result of that contravention or conduct; and\n\n (c) the defendant does not have sufficient financial resources to pay both the fine and the compensation;\n\nthe court must give preference to making an order for compensation.","sortOrder":2466},{"sectionNumber":"Sch 2 s 214","sectionType":"section","heading":"Penalties for contraventions of the same nature etc.","content":"214  Penalties for contraventions of the same nature etc.\n\n (1) If:\n\n (a) a person is convicted of 2 or more offences constituted by, or relating to, contraventions of the same provision of this Chapter; and\n\n (b) the contraventions appear to the court:\n\n (i) to have been of the same nature or a substantially similar nature; and\n\n (ii) to have occurred at or about the same time;\n\nthe court must not, in respect of the offences, impose on the person fines that, in the aggregate, exceed the maximum fine that would be applicable in respect of one offence by that person against that provision.\n\n (2) This section applies whether or not the person is also convicted of an offence or offences constituted by, or relating to, another contravention or other contraventions of that provision that were of a different nature or occurred at a different time.","sortOrder":2467},{"sectionNumber":"Sch 2 s 215","sectionType":"section","heading":"Penalties for previous contraventions of the same nature etc.","content":"215  Penalties for previous contraventions of the same nature etc.\n\n (1) If:\n\n (a) a person is convicted of an offence constituted by, or relating to, a contravention of a provision of this Chapter; and\n\n (b) a fine has, or fines have, previously been imposed on the person by the court for an offence or offences constituted by, or relating to, another contravention or other contraventions of the same provision; and\n\n (c) the contravention, or each of the contraventions, mentioned in paragraph (b) appear to the court:\n\n (i) to have been of the same nature as, or a substantially similar nature to, the contravention mentioned in paragraph (a); and\n\n (ii) to have occurred at or about the same time as the contravention mentioned in paragraph (a);\n\nthe court must not, in respect of the offence mentioned in paragraph (a), impose on the person a fine that exceeds the amount (if any) by which the maximum fine applicable in respect of that offence is greater than the amount of the fine, or the sum of the amounts of the fines, referred to in paragraph (b).\n\n (2) This section applies whether or not a fine has, or fines have, also previously been imposed on the person for an offence or offences constituted by, or relating to, a contravention or contraventions of that provision that were of a different nature or occurred at a different time.","sortOrder":2468},{"sectionNumber":"Sch 2 s 216","sectionType":"section","heading":"Granting of injunctions etc.","content":"216  Granting of injunctions etc.\n\n  In proceedings against a person for a contravention of a provision of this Chapter, the court may:\n\n (a) grant an injunction under Division 2 of Part 5‑2 against the person in relation to:\n\n (i) the conduct that constitutes, or is alleged to constitute, the contravention; or\n\n (ii) other conduct of that kind; or\n\n (b) make an order under section 246, 247 or 248 in relation to the contravention.","sortOrder":2469},{"sectionNumber":"Sch 2 s 217","sectionType":"section","heading":"Criminal proceedings not to be brought for contraventions of Chapter 2 or 3","content":"217  Criminal proceedings not to be brought for contraventions of Chapter 2 or 3\n\n  Criminal proceedings do not lie against a person only because the person:\n\n (a) has contravened a provision of Chapter 2 or 3; or\n\n (b) has attempted to contravene such a provision; or\n\n (c) has aided, abetted, counselled or procured a person to contravene such a provision; or\n\n (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or\n\n (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n\n (f) has conspired with others to contravene such a provision.","sortOrder":2470},{"sectionNumber":"Sch 2 Chapter 5","sectionType":"part","heading":"Enforcement and remedies","content":"Chapter 5—Enforcement and remedies","sortOrder":2471},{"sectionNumber":"Sch 2 Part 5-1","sectionType":"division","heading":"Enforcement","content":"Part 5‑1—Enforcement","sortOrder":2472},{"sectionNumber":"Sch 2 s 218","sectionType":"section","heading":"Regulator may accept undertakings","content":"218  Regulator may accept undertakings\n\n (1) The regulator may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the regulator has a power or function under this Schedule.\n\n (2) The person may, with the consent of the regulator, withdraw or vary the undertaking at any time.\n\n (3) If the regulator considers that the person who gave the undertaking has breached any of its terms, the regulator may apply to a court for an order under subsection (4).\n\n (4) If the court is satisfied that the person has breached a term of the undertaking, the court may make all or any of the following orders:\n\n (a) an order directing the person to comply with that term of the undertaking;\n\n (b) an order directing the person to pay to the Commonwealth, or to a State or Territory, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;\n\n (c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;\n\n (d) any other order that the court considers appropriate.","sortOrder":2474},{"sectionNumber":"Sch 2 s 219","sectionType":"section","heading":"Regulator may require claims to be substantiated etc.","content":"219  Regulator may require claims to be substantiated etc.\n\n (1) This section applies if a person has, in trade or commerce, made a claim or representation promoting, or apparently intended to promote:\n\n (a) a supply, or possible supply, of goods or services by the person or another person; or\n\n (b) a sale or grant, or possible sale or grant, of an interest in land by the person or another person; or\n\n (c) employment that is to be, or may be, offered by the person or another person.\n\n (2) The regulator may give the person who made the claim or representation a written notice that requires the person to do one or more of the following:\n\n (a) give information and/or produce documents to the regulator that could be capable of substantiating or supporting the claim or representation;\n\n (b) if the claim or representation relates to a supply, or possible supply, of goods or services by the person or another person—give information and/or produce documents to the regulator that could be capable of substantiating:\n\n (i) the quantities in which; and\n\n (ii) the period for which;\n\n  the person or other person is or will be able to make such a supply (whether or not the claim or representation relates to those quantities or that period);\n\n (c) give information and/or produce documents to the regulator that are of a kind specified in the notice;\n\nwithin 21 days after the notice is given to the person who made the claim or representation.\n\n (3) Any kind of information or documents that the regulator specifies under subsection (2)(c) must be a kind that the regulator is satisfied is relevant to:\n\n (a) substantiating or supporting the claim or representation; or\n\n (b) if the claim or representation relates to a supply, or possible supply, of goods or services by the person or another person—substantiating the quantities in which, or the period for which, the person or other person is or will be able to make such a supply.\n\n (4) The notice must:\n\n (a) name the person to whom it is given; and\n\n (b) specify the claim or representation to which it relates; and\n\n (c) explain the effect of sections 220, 221 and 222.\n\n (5) The notice may relate to more than one claim or representation that the person has made.\n\n (6) This section does not apply to a person who made the claim or representation if the person:\n\n (a) is an information provider; and\n\n (b) made the claim or representation by publishing it on behalf of another person in the course of carrying on a business of providing information; and\n\n (c) does not have a commercial relationship with the other person other than for the purpose of:\n\n (i) publishing claims or representations promoting, or apparently intended to promote, the other person’s business or other activities; or\n\n (ii) the other person supplying goods or services, or selling or granting interests in land to the person.","sortOrder":2476},{"sectionNumber":"Sch 2 s 220","sectionType":"section","heading":"Extending periods for complying with substantiation notices","content":"220  Extending periods for complying with substantiation notices\n\n (1) A person who has been given a substantiation notice may, at any time within 21 days after the notice was given to the person by the regulator, apply in writing to the regulator for an extension of the period for complying with the notice.\n\n (2) The regulator may, by written notice given to the person, extend the period within which the person must comply with the notice.","sortOrder":2477},{"sectionNumber":"Sch 2 s 221","sectionType":"section","heading":"Compliance with substantiation notices","content":"221  Compliance with substantiation notices\n\n (1) A person who is given a substantiation notice must comply with it within the substantiation notice compliance period for the notice.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) The substantiation notice compliance period for a substantiation notice is:\n\n (a) the period of 21 days specified in the notice; or\n\n (b) if the period for complying with the notice has been extended under section 220—the period as so extended;\n\nand includes (if an application has been made under section 220(1) for an extension of the period for complying with the notice) the period up until the time when the applicant is given notice of the regulator’s decision on the application.\n\n (3) Despite subsection (1), an individual may refuse or fail to give particular information or produce a particular document in compliance with a substantiation notice on the ground that the information or production of the document might tend to incriminate the individual or to expose the individual to a penalty.","sortOrder":2478},{"sectionNumber":"Sch 2 s 222","sectionType":"section","heading":"False or misleading information etc.","content":"222  False or misleading information etc.\n\n (1) A person must not, in compliance or purported compliance with a substantiation notice given by the regulator:\n\n (a) give to the regulator false or misleading information; or\n\n (b) produce to the regulator documents that contain false or misleading information.\n\nNote: A pecuniary penalty may be imposed for a contravention of this subsection.\n\n (2) This section does not apply to:\n\n (a) information that the person could not have known was false or misleading; or\n\n (b) the production to the regulator of a document containing false or misleading information if the document is accompanied by a statement of the person that the information is false or misleading.","sortOrder":2479},{"sectionNumber":"Sch 2 s 223","sectionType":"section","heading":"Regulator may issue a public warning notice","content":"223  Regulator may issue a public warning notice\n\n (1) The regulator may issue to the public a written notice containing a warning about the conduct of a person if:\n\n (a) the regulator has reasonable grounds to suspect that the conduct may constitute a contravention of a provision of Chapter 2, 3 or 4; and\n\n (b) the regulator is satisfied that one or more other persons has suffered, or is likely to suffer, detriment as a result of the conduct; and\n\n (c) the regulator is satisfied that it is in the public interest to issue the notice.\n\n (2) Without limiting subsection (1), if:\n\n (a) a person refuses to respond to a substantiation notice given by the regulator to the person, or fails to respond to the notice before the end of the substantiation notice compliance period for the notice; and\n\n (b) the regulator is satisfied that it is in the public interest to issue a notice under this subsection;\n\nthe regulator may issue to the public a written notice containing a warning that the person has refused or failed to respond to the substantiation notice within that period, and specifying the matter to which the substantiation notice related.","sortOrder":2481},{"sectionNumber":"Sch 2 Part 5-2","sectionType":"division","heading":"Remedies","content":"Part 5‑2—Remedies","sortOrder":2482},{"sectionNumber":"Sch 2 s 224","sectionType":"section","heading":"Pecuniary penalties","content":"224  Pecuniary penalties\n\n (1) If a court is satisfied that a person:\n\n (a) has contravened any of the following provisions:\n\n (i) a provision of Part 2‑2 (which is about unconscionable conduct);\n\n (iia) section 23(2A) or (2C) (which is about unfair terms in standard form consumer or small business contracts);\n\n (ii) a provision of Part 3‑1 (which is about unfair practices);\n\n (iii) section 66(2) (which is about display notices);\n\n (iv) a provision (other than section 85) of Division 2 of Part 3‑2 (which is about unsolicited consumer agreements);\n\n (v) a provision (other than section 96(2)) of Division 3 of Part 3‑2 (which is about lay‑by agreements);\n\n (va) section 99B(1), 99C, 99D(1), 99E or 99F(2) (which are about gift cards);\n\n (vi) section 100(1) or (3) or 101(3) or (4) (which are about proof of transactions and itemised bills);\n\n (vii) section 102(2) or 103(2) (which are about prescribed requirements for warranties and repairers);\n\n (viii) section 106(1), (2), (3) or (5), 107(1) or (2), 108(2) or (3), 108A, 118(1), (2), (3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6), 131(1) or 132(1) (which are about safety of consumer goods and product related services);\n\n (ix) section 136(1), (2) or (3), 137(1) or (2), 137AA or 137B (which are about information standards);\n\n (x) section 221(1) or 222(1) (which are about substantiation notices); or\n\n (b) has attempted to contravene such a provision; or\n\n (c) has aided, abetted, counselled or procured a person to contravene such a provision; or\n\n (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or\n\n (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n\n (f) has conspired with others to contravene such a provision;\n\nthe court may order the person to pay to the Commonwealth, State or Territory, as the case may be, such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the court determines to be appropriate.\n\n (2) In determining the appropriate pecuniary penalty, the court must have regard to all relevant matters including:\n\n (a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and\n\n (b) the circumstances in which the act or omission took place; and\n\n (c) whether the person has previously been found by a court in proceedings under Chapter 4 or this Part to have engaged in any similar conduct.\n\n (3) The pecuniary penalty payable under subsection (1) is not to exceed the amount worked out using the following table:\n\n\n\n- Amount of pecuniary penalty\n- Item For each act or omission to which this section applies that relates to … if the person is a body corporate—the pecuniary penalty is not to exceed … if the person is not a body corporate—the pecuniary penalty is not to exceed …\n- 1 a provision of Part 2‑2 the greater of the amounts mentioned in subsection (3A) $2,500,000\n- 2A section 23(2A) or (2C) the greater of the amounts mentioned in subsection (3A) $2,500,000\n- 2 a provision of Part 3‑1 (other than section 47(1)) the greater of the amounts mentioned in subsection (3A) $2,500,000\n- 3 section 47(1) $5,000 $1,000\n- 4 section 66(2) $50,000 $10,000\n- 5 a provision of Division 2 of Part 3‑2 (other than section 85) $50,000 $10,000\n- 6 a provision of Division 3 of Part 3‑2 (other than section 96(2)) $30,000 $6,000\n- 7 section 99B(1), 99C, 99D(1), 99E or 99F(2) $30,000 $6,000\n- 8 section 100(1) or (3) or 101(3) or (4) $15,000 $3,000\n- 9 section 102(2) or 103(2) $50,000 $10,000\n- 10 section 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5) or 119(1) or (2) the greater of the amounts mentioned in subsection (3A) $2,500,000\n- 10A section 108(2) $50,000 $10,000\n- 10B section 108(3) $250,000 $50,000\n- 10C section 108A $50,000 $10,000\n- 11 section 125(4) $16,500 $3,300\n- 12 section 127(1) or (2) the greater of the amounts mentioned in subsection (3A) $2,500,000\n- 13 section 128(2) or (6), 131(1) or 132(1) $16,500 $3,300\n- 14 section 136(1), (2) or (3) or 137(1) or (2) the greater of the amounts mentioned in subsection (3A) $2,500,000\n- 14A section 137AA or 137B $50,000 $10,000\n- 15 section 221(1) $16,500 $3,300\n- 16 section 222(1) $27,500 $5,500\n\n\n (3A) For the purposes of items 1, 2A, 2, 10, 12 and 14 of the table in subsection (3), the amounts are as follows:\n\n (a) $100,000,000;\n\n (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;\n\n (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the act or omission.\n\n (4) If conduct constitutes a contravention of 2 or more provisions referred to in subsection (1)(a):\n\n (a) a proceeding may be instituted under this Schedule against a person in relation to the contravention of any one or more of the provisions; but\n\n (b) a person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.","sortOrder":2484},{"sectionNumber":"Sch 2 s 225","sectionType":"section","heading":"Pecuniary penalties and offences","content":"225  Pecuniary penalties and offences\n\n (1) A court must not make an order under section 224 against a person in relation to either of the following matters (a consumer protection breach):\n\n (a) a contravention of a provision referred to in section 224(1)(a);\n\n (b) conduct referred to in section 224(1)(b), (c), (d), (e) or (f) that relates to a contravention of such a provision;\n\nif the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the consumer protection breach.\n\n (2) Proceedings for an order under section 224 against a person in relation to a consumer protection breach are stayed if:\n\n (a) criminal proceedings are started or have already been started against the person for an offence; and\n\n (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the consumer protection breach.\n\nThe proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.\n\n (3) Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a consumer protection breach regardless of whether an order under section 224 has been made against the person in respect of the breach.\n\n (4) Evidence of information given, or evidence of the production of documents, by an individual is not admissible in criminal proceedings against the individual if:\n\n (a) the individual previously gave the evidence or produced the documents in proceedings for an order under section 224 against the individual in relation to a consumer protection breach (whether or not the order was made); and\n\n (b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the consumer protection breach.\n\nHowever, 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.","sortOrder":2485},{"sectionNumber":"Sch 2 s 226","sectionType":"section","heading":"Defence","content":"226  Defence\n\n  If, in proceedings under section 224 against a person other than a body corporate, it appears to a court that the person has, or may have:\n\n (a) engaged in conduct in contravention of a provision referred to in subsection (1)(a) of that section; or\n\n (b) engaged in conduct referred to in subsection (1)(b), (c), (d), (e) or (f) of that section that relates to a contravention of such a provision;\n\nbut 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.","sortOrder":2486},{"sectionNumber":"Sch 2 s 227","sectionType":"section","heading":"Preference must be given to compensation for victims","content":"227  Preference must be given to compensation for victims\n\n  If a court considers that:\n\n (a) it is appropriate to order a person (the defendant) to pay a pecuniary penalty under section 224 in relation to:\n\n (i) a contravention of a provision referred to in subsection (1)(a) of that section; or\n\n (ii) conduct referred to in subsection (1)(b), (c), (d), (e) or (f) of that section that relates to a contravention such a provision; and\n\n (b) it is appropriate to order the defendant to pay compensation to a person who has suffered loss or damage as result of that contravention or conduct; and\n\n (c) the defendant does not have sufficient financial resources to pay both the pecuniary penalty and the compensation;\n\nthe court must give preference to making an order for compensation.","sortOrder":2487},{"sectionNumber":"Sch 2 s 228","sectionType":"section","heading":"Civil action for recovery of pecuniary penalties","content":"228  Civil action for recovery of pecuniary penalties\n\n (1) The regulator may institute a proceeding in a court for the recovery on behalf of the Commonwealth, a State or a Territory, as the case may be, of a pecuniary penalty referred to in section 224.\n\n (2) A proceeding under subsection (1) may be commenced at any time within 6 years after the contravention or conduct.","sortOrder":2488},{"sectionNumber":"Sch 2 s 229","sectionType":"section","heading":"Indemnification of officers","content":"229  Indemnification of officers\n\n (1) A body corporate (the first body), or a body corporate related to the first body, commits an offence if it indemnifies a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against either of the following liabilities incurred as an officer (within the meaning of the Corporations Act 2001) of the first body:\n\n (a) a liability to pay a pecuniary penalty under section 224;\n\n (b) legal costs incurred in defending or resisting proceedings in which the person is found to have such a liability.\n\nPenalty: $2,750.\n\n (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.","sortOrder":2489},{"sectionNumber":"Sch 2 s 230","sectionType":"section","heading":"Certain indemnities not authorised and certain documents void","content":"230  Certain indemnities not authorised and certain documents void\n\n (1) Section 229 does not authorise anything that would otherwise be unlawful.\n\n (2) Anything that purports to indemnify a person against a liability is void to the extent that it contravenes section 229.","sortOrder":2490},{"sectionNumber":"Sch 2 s 232","sectionType":"section","heading":"Injunctions","content":"232  Injunctions\n\n (1) A court may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:\n\n (a) a contravention of a provision of Chapter 2, 3 or 4; or\n\n (b) attempting to contravene such a provision; or\n\n (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or\n\n (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or\n\n (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n\n (f) conspiring with others to contravene such a provision.\n\n (2) The court may grant the injunction on application by the regulator or any other person.\n\n (4) The power of the court to grant an injunction under subsection (1) restraining a person from engaging in conduct may be exercised:\n\n (a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and\n\n (b) whether or not the person has previously engaged in conduct of that kind; and\n\n (c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.\n\n (5) Without limiting subsection (1), the court may grant an injunction under that subsection restraining a person from carrying on a business or supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business):\n\n (a) for a specified period; or\n\n (b) except on specified terms and conditions.\n\n (6) Without limiting subsection (1), the court may grant an injunction under that subsection requiring a person to do any of the following:\n\n (a) refund money;\n\n (b) transfer property;\n\n (c) honour a promise;\n\n (d) destroy or dispose of goods.\n\n (7) The power of the court to grant an injunction under subsection (1) requiring a person to do an act or thing may be exercised:\n\n (a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and\n\n (b) whether or not the person has previously refused or failed to do that act or thing; and\n\n (c) whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing.","sortOrder":2492},{"sectionNumber":"Sch 2 s 233","sectionType":"section","heading":"Consent injunctions","content":"233  Consent injunctions\n\n  If an application is made under section 232, the court may, if it considers that it is appropriate to do so, grant an injunction under this section by consent of all the parties to the proceedings, whether or not the court is satisfied as required by section 232(1).","sortOrder":2493},{"sectionNumber":"Sch 2 s 234","sectionType":"section","heading":"Interim injunctions","content":"234  Interim injunctions\n\n (1) If an application is made under section 232, the court may, if it considers it is desirable to do so, grant an interim injunction under this subsection pending the determination of the application.\n\n (2) If a responsible Minister or the regulator made the application under section 232, the court must not require the applicant or any other person to give any undertakings as to damages as a condition of granting the interim injunction.\n\n (3) If:\n\n (a) in a case to which subsection (2) does not apply the court would, but for this subsection, require a person to give an undertaking as to damages or costs; and\n\n (b) a responsible Minister gives the undertaking;\n\nthe court must accept the undertaking by the responsible Minister and must not require a further undertaking from any other person.","sortOrder":2494},{"sectionNumber":"Sch 2 s 235","sectionType":"section","heading":"Variation and discharge of injunctions","content":"235  Variation and discharge of injunctions\n\n  A court may vary or discharge an injunction (including an interim injunction) that it has granted under this Division.","sortOrder":2495},{"sectionNumber":"Sch 2 s 236","sectionType":"section","heading":"Actions for damages","content":"236  Actions for damages\n\n (1) If:\n\n (a) a person (the claimant) suffers loss or damage because of the conduct of another person; and\n\n (b) the conduct contravened a provision of Chapter 2 or 3;\n\nthe claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.\n\n (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.","sortOrder":2497},{"sectionNumber":"Sch 2 s 237","sectionType":"section","heading":"Compensation orders etc. on application by an injured person or the regulator","content":"237  Compensation orders etc. on application by an injured person or the regulator\n\n (1) A court may:\n\n (a) on application of a person (the injured person) who has suffered, or is likely to suffer, loss or damage because another person has engaged in conduct in contravention of a provision of Chapter 2, 3 or 4; or\n\n (b) on the application of the regulator made on behalf of, and with the consent in writing of, one or more such injured persons;\n\nmake such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.\n\nNote: The orders that the court may make include all or any of the orders set out in section 243.\n\n (2) The order must be an order that the court considers will:\n\n (a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or\n\n (b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons.\n\n (3) An application under subsection (1) may be made at any time before the end of 6 years from the day on which the cause of action accrued that relates to the conduct referred to in that subsection.","sortOrder":2499},{"sectionNumber":"Sch 2 s 238","sectionType":"section","heading":"Compensation orders etc. arising out of other proceedings","content":"238  Compensation orders etc. arising out of other proceedings\n\n (1) If:\n\n  (a) a proceeding is instituted in a court under a provision of Chapter 4 or this Chapter (other than this section); and\n\n (b) the court finds that a party to the proceeding (the injured person) has suffered loss or damage, or is likely to suffer loss or damage, because another person has engaged in conduct in contravention of a provision of Chapter 2, 3 or 4;\n\nthe court may make such order or orders as it thinks appropriate against the other person, or against a person involved in that conduct.\n\nNote: The orders that the court may make include all or any of the orders set out in section 243.\n\n (2) The order must be an order that the court considers will:\n\n (a) compensate the injured person in whole or in part for the loss or damage; or\n\n (b) prevent or reduce the loss or damage.","sortOrder":2500},{"sectionNumber":"Sch 2 s 239","sectionType":"section","heading":"Orders to redress etc. loss or damage suffered by non-parties","content":"239  Orders to redress etc. loss or damage suffered by non‑parties\n\n (1) If:\n\n (a) a person:\n\n (i) engaged in conduct (the contravening conduct) in contravention of a provision of Chapter 2, Part 3‑1, Division 2, 3 or 4 of Part 3‑2 or Chapter 4; or\n\n (ii) is a party to a contract who is advantaged by a term (the declared term) of the contract in relation to which a court has made a declaration under section 250; and\n\n (b) the contravening conduct or declared term caused, or is likely to cause, a class of persons to suffer loss or damage; and\n\n (c) the class includes persons who are non‑parties in relation to the contravening conduct or declared term;\n\na court may, on the application of the regulator, make such order or orders (other than an award of damages) as the court thinks appropriate against a person referred to in subsection (2) of this section.\n\nNote: The orders that the court may make include all or any of the orders set out in section 243.\n\n (2) An order under subsection (1) may be made against:\n\n (a) if subsection (1)(a)(i) applies—the person who engaged in the contravening conduct, or a person involved in that conduct; or\n\n (b) if subsection (1)(a)(ii) applies—a party to the contract who is advantaged by the declared term.\n\n (3) The order must be an order that the court considers will:\n\n (a) redress, in whole or in part, the loss or damage suffered by the non‑parties in relation to the contravening conduct or declared term; or\n\n (b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the non‑parties in relation to the contravening conduct or declared term.\n\n (4) An application under subsection (1) may be made at any time within 6 years after the day on which:\n\n (a) if subsection (1)(a)(i) applies—the cause of action that relates to the contravening conduct accrued; or\n\n (b) if subsection (1)(a)(ii) applies—the declaration is made.","sortOrder":2501},{"sectionNumber":"Sch 2 s 240","sectionType":"section","heading":"Determining whether to make a redress order etc. for non-parties","content":"240  Determining whether to make a redress order etc. for non‑parties\n\n (1) In determining whether to make an order under section 239(1) against a person referred to in section 239(2)(a), the court may have regard to the conduct of the person, and of the non‑parties in relation to the contravening conduct, since the contravention occurred.\n\n (2) In determining whether to make an order under section 239(1) against a person referred to in section 239(2)(b), the court may have regard to the conduct of the person, and of the non‑parties in relation to the declared term, since the declaration was made.\n\n (3) In determining whether to make an order under section 239(1), the court need not make a finding about either of the following matters:\n\n (a) which persons are non‑parties in relation to the contravening conduct or declared term;\n\n (b) the nature of the loss or damage suffered, or likely to be suffered, by such persons.","sortOrder":2502},{"sectionNumber":"Sch 2 s 241","sectionType":"section","heading":"When a non-party is bound by a redress order etc.","content":"241  When a non‑party is bound by a redress order etc.\n\n (1) A non‑party is bound by an order made under section 239(1) against a person if:\n\n (a) the loss or damage suffered, or likely to be suffered, by the non‑party in relation to the contravening conduct, or the declared term, to which the order relates has been redressed, prevented or reduced in accordance with the order; and\n\n (b) the non‑party has accepted the redress, prevention or reduction.\n\n (2) Any other order made under section 239(1) that relates to that loss or damage has no effect in relation to the non‑party.\n\n (3) Despite any other provision of:\n\n (a) this Schedule; or\n\n (b) any other law of the Commonwealth, or a State or a Territory;\n\nno claim, action or demand may be made or taken against the person by the non‑party in relation to that loss or damage.","sortOrder":2503},{"sectionNumber":"Sch 2 s 243","sectionType":"section","heading":"Kinds of orders that may be made","content":"243  Kinds of orders that may be made\n\n  Without limiting section 237(1), 238(1) or 239(1), the orders that a court may make under any of those sections against a person (the respondent) include all or any of the following:\n\n (a) an order declaring the whole or any part of a contract made between the respondent and a person (the injured person) who suffered, or is likely to suffer, the loss or damage referred to in that section, or of a collateral arrangement relating to such a contract:\n\n (i) to be void; and\n\n (ii) if the court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);\n\n (b) an order:\n\n (i) varying such a contract or arrangement in such manner as is specified in the order; and\n\n (ii) if the court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);\n\n (c) an order refusing to enforce any or all of the provisions of such a contract or arrangement;\n\n (d) an order directing the respondent to refund money or return property to the injured person;\n\n (e) except if the order is to be made under section 239(1)—an order directing the respondent to pay the injured person the amount of the loss or damage;\n\n (f) an order directing the respondent, at his or her own expense, to repair, or provide parts for, goods that had been supplied by the respondent to the injured person;\n\n (g) an order directing the respondent, at his or her own expense, to supply specified services to the injured person;\n\n (h) an order, in relation to an instrument creating or transferring an interest in land, directing the respondent to execute an instrument that:\n\n (i) varies, or has the effect of varying, the first mentioned instrument; or\n\n (ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first mentioned instrument.","sortOrder":2504},{"sectionNumber":"Sch 2 s 243A","sectionType":"section","heading":"Orders made in favour of party to contract containing unfair term","content":"243A  Orders made in favour of party to contract containing unfair term\n\n (1) If a declaration has been made under section 250 in relation to a term (the declared term) of a contract, a court may:\n\n (a) on the application of a party to the contract; or\n\n (b) on the application of the regulator made on behalf of, and with the consent in writing of, one or more parties to the contract;\n\nmake against a party (the respondent) to the contract who is advantaged by the declared term such order or orders (other than an award of damages) as the court thinks appropriate:\n\n (c) to redress, in whole or in part, loss or damage that has been caused to any person by the declared term; or\n\n (d) to prevent or reduce loss or damage that is likely to be so caused.\n\n (2) Without limiting subsection (1), the orders that a court may make against the respondent include all or any of the following:\n\n (a) an order declaring the whole or any part of the contract, or of a collateral arrangement relating to the contract:\n\n (i) to be void; and\n\n (ii) if the court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);\n\n (b) an order:\n\n (i) varying the contract, or such a collateral arrangement, as specified in the order; and\n\n (ii) if the court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);\n\n (c) an order refusing to enforce any or all of the provisions of the contract, or of such a collateral arrangement.\n\n (3) An application under subsection (1) may be made at any time before the end of 6 years from the day on which the declaration under section 250 was made.","sortOrder":2505},{"sectionNumber":"Sch 2 s 243B","sectionType":"section","heading":"Orders made on application of the regulator to prevent and remedy unfair contract terms","content":"243B  Orders made on application of the regulator to prevent and remedy unfair contract terms\n\n (1) If a declaration has been made under section 250 in relation to a term (the declared term) of a contract, a court may, on the application of the regulator, make against a party (the respondent) to the contract who is advantaged by the declared term such order or orders (other than an award of damages) as the court thinks appropriate:\n\n (a) to prevent a term (a similar term) that is the same, or substantially similar, in effect to the declared term from being included in any future contract:\n\n (i) to which the respondent is a party; and\n\n (ii) that is a consumer contract or small business contract; and\n\n (iii) that is a standard form contract; or\n\n (b) to redress, in whole or in part, loss or damage that has been caused, or to prevent or reduce loss or damage that is likely to be caused, to any person by a similar term that is included in any existing contract:\n\n (i) to which the respondent is a party; and\n\n (ii) that is a consumer contract or small business contract; and\n\n (iii) that is a standard form contract;\n\nwhether or not the future or existing contract is identifiable when the court makes the order or orders.\n\n (2) Without limiting subsection (1), the orders that a court may make against the respondent include all or any of the following:\n\n (a) an injunction restraining the respondent from making any future contract that is of the kind referred to in paragraph (1)(a) and includes a similar term;\n\n (b) an injunction restraining the respondent from applying or relying on a similar term of any existing contract that is of the kind referred to in paragraph (1)(b);\n\n (c) an order declaring the whole or any part of any existing contract of the kind referred to in paragraph (1)(b), or of a collateral arrangement relating to such a contract:\n\n (i) to be void; and\n\n (ii) if the court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);\n\n (d) an order:\n\n (i) varying such an existing contract, or such a collateral arrangement, as specified in the order; and\n\n (ii) if the court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);\n\n (e) an order refusing to enforce any or all of the provisions of such an existing contract, or of such a collateral arrangement.\n\n (3) An application under subsection (1) may be made at any time before the end of 6 years from the day on which the declaration under section 250 was made.\n\n (4) An order made under this section against the respondent binds a person affected by the order, even if the person is not a party to the proceedings in which the order is made.","sortOrder":2506},{"sectionNumber":"Sch 2 s 245","sectionType":"section","heading":"Interaction with other provisions","content":"245  Interaction with other provisions\n\n (1) An application may be made under section 237(1), 239(1), 243A(1) or 243B(1) even if an enforcement proceeding in relation to the conduct or term referred to in that section has not been instituted.\n\n (2) A court may make an order under a provision of this Division whether or not the court:\n\n (a) grants an injunction under Division 2; or\n\n (b) makes an order under any other provision of this Division or under section 236, 246, 247 or 248.\n\n (3) Nothing in this Division limits the generality of Division 2.","sortOrder":2507},{"sectionNumber":"Sch 2 s 246","sectionType":"section","heading":"Non-punitive orders","content":"246  Non‑punitive orders\n\n (1) A court may, on application of the regulator, make one or more of the orders mentioned in subsection (2) in relation to a person who has engaged in conduct that:\n\n (a) contravenes a provision of Chapter 2, 3 or 4; or\n\n (b) constitutes an involvement in a contravention of such a provision.\n\n (2) The court may make the following orders in relation to the person who has engaged in the conduct:\n\n (a) an order directing the person to perform a service that is specified in the order, and that relates to the conduct, for the benefit of the community or a section of the community;\n\n (aa) an order requiring the person, at the person’s expense, to engage:\n\n (i) another person specified in the order; or\n\n (ii) another person in a class of persons specified in the order;\n\n  to perform a service that is specified in the order and that relates to the conduct, for the benefit of the community or a section of the community;\n\n (b) an order for the purpose of ensuring that the person does not engage in the conduct, similar conduct, or related conduct, during the period of the order (which must not be longer than 3 years) including:\n\n (i) an order directing the person to establish a compliance program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to such conduct; and\n\n (ii) an order directing the person to establish an education and training program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to such conduct; and\n\n (iii) an order directing the person to revise the internal operations of the person’s business which led to the person engaging in such conduct;\n\n (c) an order requiring the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to;\n\n (d) an order requiring the person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.\n\nNote: The following are examples of orders that the court may make under subsection (2)(a):\n\n(a) an order requiring a person who has made false representations to make available a training video which explains advertising obligations under this Schedule;\n\n(b) an order requiring a person who has engaged in misleading or deceptive conduct in relation to a product to carry out a community awareness program to address the needs of consumers when purchasing the product.\n\n (2A) An order under subsection (2)(aa) is not enforceable against a person mentioned in subsections (2)(aa)(i) and (ii).\n\n (3) This section does not limit a court’s powers under any other provision of this Schedule.","sortOrder":2509},{"sectionNumber":"Sch 2 s 247","sectionType":"section","heading":"Adverse publicity orders","content":"247  Adverse publicity orders\n\n (1) A court may, on application of the regulator, make an adverse publicity order in relation to a person who:\n\n (a) has contravened a provision of Part 2‑2 or 2‑3 or Chapter 3; or\n\n (b) has committed an offence against Chapter 4.\n\n (2) An adverse publicity order in relation to a person is an order that requires the person:\n\n (a) to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; and\n\n (b) to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.\n\n (3) This section does not limit a court’s powers under any other provision of this Schedule.","sortOrder":2510},{"sectionNumber":"Sch 2 s 248","sectionType":"section","heading":"Order disqualifying a person from managing corporations","content":"248  Order disqualifying a person from managing corporations\n\n (1) A court may, on application of the regulator, make an order disqualifying a person from managing corporations for a period that the court considers appropriate if:\n\n (a) the court is satisfied that the person has contravened, has attempted to contravene or has been involved in a contravention of any of the following provisions:\n\n (i) a provision of Part 2‑2 (which is about unconscionable conduct);\n\n (ia) a provision of Part 2‑3 (which is about unfair contract terms);\n\n (ii) a provision of Part 3‑1 (which is about unfair practices);\n\n (iii) a provision (other than section 85) of Division 2 of Part 3‑2 (which is about unsolicited consumer agreements);\n\n (iv) section 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6), 131(1) or 132(1) (which are about safety of consumer goods and product related services);\n\n (v) section 136(1), (2) or (3) or 137(1) or (2) (which are about information standards);\n\n (vi) a provision of Chapter 4 (which is about offences); and\n\n (b) the court is satisfied that the disqualification is justified.\n\nNote: 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.\n\n (2) In determining under subsection (1) whether the disqualification is justified, the court may have regard to:\n\n (a) the person’s conduct in relation to the management, business or property of any corporation; and\n\n (b) any other matters that the court considers appropriate.\n\n (3) If the court makes an order under subsection (1), the regulator must:\n\n (a) notify ASIC; and\n\n (b) give ASIC a copy of any such order.\n\nNote: ASIC must keep a register of persons who have been disqualified from managing corporations: see section 1274AA of the Corporations Act 2001.\n\n (4) For the purposes of this Schedule (other than this section or section 249), an order under this section is not a penalty.","sortOrder":2511},{"sectionNumber":"Sch 2 s 249","sectionType":"section","heading":"Privilege against exposure to penalty or forfeiture—disqualification from managing corporations","content":"249  Privilege against exposure to penalty or forfeiture—disqualification from managing corporations\n\n (1) In a civil or criminal proceeding under, or arising out of, this Schedule, a person is not entitled to refuse or fail to comply with a requirement:\n\n (a) to answer a question or give information; or\n\n (b) to produce a document or any other thing; or\n\n (c) to do any other act;\n\non the ground that the answer or information, production of the document or other thing, or doing that other act, as the case may be, might tend to expose the person to a penalty (including forfeiture) by way of an order under section 248.\n\n (2) Subsection (1) applies whether or not the person is a defendant in the proceeding or in any other proceeding.\n\n (3) A person is not entitled to refuse or fail to comply with a requirement under this Schedule:\n\n (a) to answer a question or give information; or\n\n (b) to produce a document or any other thing; or\n\n (c) to do any other act;\n\non the ground that the answer or information, production of the document or other thing, or doing that other act, as the case may be, might tend to expose the person to a penalty (including forfeiture) by way of an order under section 248.","sortOrder":2512},{"sectionNumber":"Sch 2 s 250","sectionType":"section","heading":"Declarations relating to consumer contracts and small business contracts","content":"250  Declarations relating to consumer contracts and small business contracts\n\n (1) The Court may declare that a term of a consumer contract is an unfair term, on application by:\n\n (a) a party to the contract; or\n\n (b) the regulator.\n\n (2) The Court may declare that a term of a small business contract is an unfair term, on application by:\n\n (a) a party to the contract, if the party was covered by paragraph 23(4)(b) at the time the contract was entered into; or\n\n (b) the regulator.\n\n (3) Subsections (1) and (2) do not apply unless the contract is a standard form contract.\n\n (4) Subsections (1) and (2) do not apply if Part 2‑3 does not apply to the contract.\n\n (5) Subsections (1) and (2) do not limit any other power of the court to make declarations.","sortOrder":2513},{"sectionNumber":"Sch 2 s 251","sectionType":"section","heading":"Publication of advertisement in the ordinary course of business","content":"251  Publication of advertisement in the ordinary course of business\n\n (1) This section applies to a proceeding under this Part in relation to a contravention of a provision of Part 2‑1 or 2‑2 or Chapter 3 if the contravention was committed by the publication of an advertisement.\n\n (2) In the proceeding, it is a defence if the defendant proves that:\n\n (a) the defendant is a person whose business it is to publish or arrange for the publication of advertisements; and\n\n (b) the defendant received the advertisement for publication in the ordinary course of business; and\n\n (c) the defendant did not know, and had no reason to suspect, that its publication would amount to a contravention of such a provision.","sortOrder":2515},{"sectionNumber":"Sch 2 s 252","sectionType":"section","heading":"Supplying consumer goods for the purpose of re-supply","content":"252  Supplying consumer goods for the purpose of re‑supply\n\n (1) This section applies to a proceeding under this Part in relation to a contravention of a provision of Part 2‑1 or 2‑2 or Chapter 3 committed by:\n\n (a) the supplying of consumer goods that did not comply with a safety standard for such goods; or\n\n (b) the supplying of consumer goods by a supplier who did not comply with an information standard for such goods.\n\n (2) In the proceeding, it is a defence if the defendant proves that:\n\n (a) the consumer goods were acquired by the defendant for the purpose of re‑supply; and\n\n (b) the consumer goods were so acquired from a person who carried on in Australia a business of supplying such goods otherwise than as the agent of a person outside Australia; and\n\n (c) either:\n\n (i) the defendant did not know, and could not with reasonable diligence have ascertained, that the consumer goods did not comply with that safety standard, or that the defendant had not complied with that information standard, as the case may be; or\n\n (ii) the defendant relied in good faith on a representation by the person from whom the defendant acquired the goods that there was no safety standard or information standard, as the case may be, for such consumer goods.\n\n (3) A defendant is not entitled to rely on the defence provided by subsection (2) unless:\n\n (a) the court gives leave; or\n\n (b) the defendant has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person who instituted the proceeding a written notice identifying the person from whom the defendant acquired the consumer goods.","sortOrder":2516},{"sectionNumber":"Sch 2 s 253","sectionType":"section","heading":"Supplying product related services for the purpose of re-supply","content":"253  Supplying product related services for the purpose of re‑supply\n\n (1) This section applies to a proceeding under this Part in relation to a contravention of a provision of Part 2‑1 or 2‑2 or Chapter 3 committed by:\n\n (a) the supplying of product related services that did not comply with a safety standard for such services; or\n\n (b) the supplying of product related services by a supplier who did not comply with an information standard for such services.\n\n (2) In the proceeding, it is a defence if the defendant proves that:\n\n (a) the product related services were acquired by the defendant for the purpose of re‑supply; and\n\n (b) the product related services were so acquired from a person who carried on in Australia a business of supplying such services otherwise than as the agent of a person outside Australia; and\n\n (c) either:\n\n (i) the defendant did not know, and could not with reasonable diligence have ascertained, that the product related services did not comply with that safety standard, or that the defendant had not complied with that information standard, as the case may be; or\n\n (ii) the defendant relied in good faith on a representation by the person from whom the defendant acquired the goods that there was no safety standard or information standard, as the case may be, for such product related services.\n\n (3) A defendant is not entitled to rely on the defence provided by subsection (2) unless:\n\n (a) the court gives leave; or\n\n (b) the defendant has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person who instituted the proceeding a written notice identifying the person from whom the defendant acquired the product related services.","sortOrder":2517},{"sectionNumber":"Sch 2 Part 5-3","sectionType":"division","heading":"Country of origin representations","content":"Part 5‑3—Country of origin representations","sortOrder":2518},{"sectionNumber":"Sch 2 s 254","sectionType":"section","heading":"Overview","content":"254  Overview\n\n  This Part provides that certain country of origin representations made about goods do not contravene:\n\n (a) section 18 (which deals with misleading or deceptive conduct); or\n\n (b) section 29(1)(a) or (k) or 151(1)(a) or (k) (which deal with false or misleading representations).","sortOrder":2519},{"sectionNumber":"Sch 2 s 255","sectionType":"section","heading":"Country of origin representations do not contravene certain provisions","content":"255  Country of origin representations do not contravene certain provisions\n\n (1) A person does not contravene section 18, 29(1)(a) or (k) or 151(1)(a) or (k) only by making a representation of a kind referred to in an item in the first column of this table, if the requirements of the corresponding item in the second column are met.\n\n\n\n- Country of origin representations\n- Item Representation Requirements to be met\n- 1 A representation that goods were grown in a particular country (a) each significant ingredient or significant component of the goods was grown in that country; and(b) all, or virtually all, processes involved in the production or manufacture of the goods happened in that country.\n- 2 A representation that goods are the produce of a particular country (a) the country was the country of origin of each significant ingredient or significant component of the goods; and(b) all, or virtually all, processes involved in the production or manufacture of the goods happened in that country.\n- 3 A representation that goods were made or manufactured in, or otherwise originate in, a particular country (a) the goods were last substantially transformed in that country; and(b) the representation is not a representation to which item 1 or 2 of this table applies.\n- 4 A representation in the form of a mark specified in an information standard relating to country of origin labelling of goods the requirements under the information standard relating to the use of that mark.\n\n\n (2) Goods were substantially transformed in a country if:\n\n (a) the goods met, in relation to that country, the requirements of item 1 or 2 in the second column of the table in subsection (1); or\n\n (b) as a result of one or more processes undertaken in that country, the goods are fundamentally different in identity, nature or essential character from all of their ingredients or components that were imported into that country; or\n\n (c) the goods underwent in that country one or more processes prescribed by the regulations.\n\n (3) Without limiting subsection (2), the regulations:\n\n (a) may prescribe (in relation to particular classes of goods or otherwise) processes or combinations of processes that, for the purposes of that subsection, do not have the result described in subsection (2)(b); and\n\n (b) may include examples (in relation to particular classes of goods or otherwise) of processes or combinations of processes that, for the purposes of that subsection, have the result described in subsection (2)(b).\n\n (5) Item 2 of the table in subsection (1) applies to a representation that goods are the produce of a particular country whether the representation uses the words “product of”, “produce of” or any other grammatical variation of the word “produce”.\n\n (7) Goods, or ingredients or components of goods, are grown in a country if they:\n\n (a) are materially increased in size or materially altered in substance in that country by natural development; or\n\n (b) germinated or otherwise arose in, or issued in, that country; or\n\n (c) are harvested, extracted or otherwise derived from an organism that has been materially increased in size, or materially altered in substance, in that country by natural development.\n\n (8) For the purposes of item 1 of the table in subsection (1) in relation to particular goods, packaging materials are not treated as ingredients or components of the goods.\n\n (9) For the purposes of item 1 of the table in subsection (1) in relation to an ingredient or component, water added to the ingredient or component is treated as having the same origin as the ingredient or component, regardless of its actual origin, if:\n\n (a) the ingredient or component has been dried or concentrated by the evaporation of water; and\n\n (b) the added water returns the water content of the ingredient or component to no more than its natural level.","sortOrder":2520},{"sectionNumber":"Sch 2 s 258","sectionType":"section","heading":"Proceedings relating to false, misleading or deceptive conduct or representations","content":"258  Proceedings relating to false, misleading or deceptive conduct or representations\n\n  If:\n\n (a) proceedings are brought against a person in respect of section 18, 29(1)(a) or (k) or 151(1)(a) or (k); and\n\n (b) the person seeks to rely on a provision of this Part, or of a regulation made for the purposes of a provision of this Part, in the proceedings;\n\nthe person bears an evidential burden in relation to the matters set out in the provision on which the person seeks to rely.","sortOrder":2521},{"sectionNumber":"Sch 2 Part 5-4","sectionType":"division","heading":"Remedies relating to guarantees","content":"Part 5‑4—Remedies relating to guarantees","sortOrder":2522},{"sectionNumber":"Sch 2 s 259","sectionType":"section","heading":"Action against suppliers of goods","content":"259  Action against suppliers of goods\n\n (1) A consumer may take action under this section if:\n\n (a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and\n\n (b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3‑2 (other than sections 58 and 59(1)) is not complied with.\n\n (2) If the failure to comply with the guarantee can be remedied and is not a major failure:\n\n (a) the consumer may require the supplier to remedy the failure within a reasonable time; or\n\n (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time—the consumer may:\n\n (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or\n\n (ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.\n\n (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:\n\n (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or\n\n (b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.\n\n (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.\n\n (5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier.\n\n (6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).\n\n (7) The consumer may take action under this section whether or not the goods are in their original packaging.","sortOrder":2525},{"sectionNumber":"Sch 2 s 260","sectionType":"section","heading":"When a failure to comply with a guarantee is a major failure","content":"260  When a failure to comply with a guarantee is a major failure\n\n (1) A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:\n\n (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or\n\n (b) the goods depart in one or more significant respects:\n\n (i) if they were supplied by description—from that description; or\n\n (ii) if they were supplied by reference to a sample or demonstration model—from that sample or demonstration model; or\n\n (c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or\n\n (d) the goods are unfit for a disclosed purpose that was made known to:\n\n (i) the supplier of the goods; or\n\n (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;\n\n  and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or\n\n (e) the goods are not of acceptable quality because they are unsafe.\n\n (2) A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is also a major failure if:\n\n (a) the failure is one of 2 or more failures to comply with a guarantee referred to in section 259(1)(b) that apply to the supply; and\n\n (b) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.\n\nNote: The multiple failures do not need to relate to the same guarantee.\n\n (3) Subsection (2) applies regardless of whether the consumer has taken action under section 259 in relation to any of the failures.","sortOrder":2526},{"sectionNumber":"Sch 2 s 261","sectionType":"section","heading":"How suppliers may remedy a failure to comply with a guarantee","content":"261  How suppliers may remedy a failure to comply with a guarantee\n\n  If, under section 259(2)(a), a consumer requires a supplier of goods to remedy a failure to comply with a guarantee referred to in section 259(1)(b), the supplier may comply with the requirement:\n\n (a) if the failure relates to title—by curing any defect in title; or\n\n (b) if the failure does not relate to title—by repairing the goods; or\n\n (c) by replacing the goods with goods of an identical type; or\n\n (d) by refunding:\n\n (i) any money paid by the consumer for the goods; and\n\n (ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods.","sortOrder":2527},{"sectionNumber":"Sch 2 s 262","sectionType":"section","heading":"When consumers are not entitled to reject goods","content":"262  When consumers are not entitled to reject goods\n\n (1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if:\n\n (a) the rejection period for the goods has ended; or\n\n (b) the goods have been lost, destroyed or disposed of by the consumer; or\n\n (c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or\n\n (d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them.\n\n (2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:\n\n (a) the type of goods; and\n\n (b) the use to which a consumer is likely to put them; and\n\n (c) the length of time for which it is reasonable for them to be used; and\n\n (d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.","sortOrder":2528},{"sectionNumber":"Sch 2 s 263","sectionType":"section","heading":"Consequences of rejecting goods","content":"263  Consequences of rejecting goods\n\n (1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods.\n\n (2) The consumer must return the goods to the supplier unless:\n\n (a) the goods have already been returned to, or retrieved by, the supplier; or\n\n (b) the goods cannot be returned, removed or transported without significant cost to the consumer because of:\n\n (i) the nature of the failure to comply with the guarantee to which the rejection relates; or\n\n (ii) the size or height, or method of attachment, of the goods.\n\n (3) If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier’s expense.\n\n (4) The supplier must, in accordance with an election made by the consumer:\n\n (a) refund:\n\n (i) any money paid by the consumer for the goods; and\n\n (ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or\n\n (b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier.\n\n (5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier.\n\n (6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.","sortOrder":2529},{"sectionNumber":"Sch 2 s 264","sectionType":"section","heading":"Replaced goods","content":"264  Replaced goods\n\n  If the goods are replaced under section 261(c) or 263(4)(b):\n\n (a) the replacement goods are taken, for the purposes of Division 1 of Part 3‑2 and this Part, to be supplied by the supplier; and\n\n (b) the provisions of Division 1 of Part 3‑2 and this Part apply in relation to the replacement goods.","sortOrder":2530},{"sectionNumber":"Sch 2 s 265","sectionType":"section","heading":"Termination of contracts for the supply of services that are connected with rejected goods","content":"265  Termination of contracts for the supply of services that are connected with rejected goods\n\n (1) If:\n\n (a) under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods; and\n\n (b) the supplier is required under section 263(4)(a) to give the consumer a refund; and\n\n (c) a person supplies, in trade or commerce, services to the consumer that are connected with the rejected goods;\n\nthe consumer may terminate the contract for the supply of the services.\n\n (2) The termination takes effect:\n\n (a) at the time the termination is made known to the supplier of the services (whether by words or by conduct indicating the consumer’s intention to terminate the contract); or\n\n (b) if it is not reasonably practicable to communicate with the supplier of the services—at the time the consumer indicates, by means which are reasonable in the circumstances, his or her intention to terminate the contract.\n\n (3) The consumer is entitled to recover, by action against the supplier of the services, a refund of:\n\n (a) any money paid by the consumer for the services; and\n\n (b) an amount that is equal to the value of any other consideration provided by the consumer for the services;\n\nto the extent that the consumer has not already consumed the services at the time the termination takes effect.","sortOrder":2531},{"sectionNumber":"Sch 2 s 266","sectionType":"section","heading":"Rights of gift recipients","content":"266  Rights of gift recipients\n\n  If a consumer acquires goods from a supplier and gives them to another person as a gift, the other person may, subject to any defence which would be available to the supplier against the consumer:\n\n (a) exercise any rights or remedies under this Subdivision which would be available to the other person if he or she had acquired the goods from the supplier; and\n\n (b) any reference in this Subdivision to a consumer includes a reference to the other person accordingly.","sortOrder":2532},{"sectionNumber":"Sch 2 s 267","sectionType":"section","heading":"Action against suppliers of services","content":"267  Action against suppliers of services\n\n (1) A consumer may take action under this section if:\n\n (a) a person (the supplier) supplies, in trade or commerce, services to the consumer; and\n\n (b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3‑2 is not complied with; and\n\n (c) unless the guarantee is the guarantee under section 60—the failure to comply with the guarantee did not occur only because of:\n\n (i) an act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier; or\n\n (ii) a cause independent of human control that occurred after the services were supplied.\n\n (2) If the failure to comply with the guarantee can be remedied and is not a major failure:\n\n (a) the consumer may require the supplier to remedy the failure within a reasonable time; or\n\n (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time—the consumer may:\n\n (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or\n\n (ii) terminate the contract for the supply of the services.\n\n (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:\n\n (a) terminate the contract for the supply of the services; or\n\n (b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services.\n\n (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.\n\n (5) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).","sortOrder":2534},{"sectionNumber":"Sch 2 s 268","sectionType":"section","heading":"When a failure to comply with a guarantee is a major failure","content":"268  When a failure to comply with a guarantee is a major failure\n\n (1) A failure to comply with a guarantee referred to in section 267(1)(b) that applies to a supply of services is a major failure if:\n\n (a) the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or\n\n (b) the services are substantially unfit for a purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or\n\n (c) both of the following apply:\n\n (i) the services, and any product resulting from the services, are unfit for a particular purpose for which the services were acquired by the consumer that was made known to the supplier of the services;\n\n (ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or\n\n (d) both of the following apply:\n\n (i) the services, and any product resulting from the services, are not of such a nature, or quality, state or condition, that they might reasonably be expected to achieve a result desired by the consumer that was made known to the supplier;\n\n (ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to achieve such a result; or\n\n (e) the supply of the services creates an unsafe situation.\n\n (2) A failure to comply with a guarantee referred to in section 267(1)(b) that applies to a supply of services is also a major failure if:\n\n (a) the failure is one of 2 or more failures to comply with a guarantee referred to in section 267(1)(b) that apply to the supply; and\n\n (b) the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.\n\nNote: The multiple failures do not need to relate to the same guarantee.\n\n (3) Subsection (2) applies regardless of whether the consumer has taken action under section 267 in relation to any of the failures.","sortOrder":2535},{"sectionNumber":"Sch 2 s 269","sectionType":"section","heading":"Termination of contracts for the supply of services","content":"269  Termination of contracts for the supply of services\n\n (1) This section applies if, under section 267, a consumer terminates a contract for the supply of services.\n\n (2) The termination takes effect:\n\n (a) at the time the termination is made known to the supplier of the services (whether by words or by conduct indicating the consumer’s intention to terminate the contract); or\n\n (b) if it is not reasonably practicable to communicate with the supplier of the services—at the time the consumer indicates, by means which are reasonable in the circumstances, his or her intention to terminate the contract.\n\n (3) The consumer is entitled to recover, by action against the supplier of the services, a refund of:\n\n (a) any money paid by the consumer for the services; and\n\n (b) an amount that is equal to the value of any other consideration provided by the consumer for the services;\n\nto the extent that the consumer has not already consumed the services at the time the termination takes effect.","sortOrder":2536},{"sectionNumber":"Sch 2 s 270","sectionType":"section","heading":"Termination of contracts for the supply of goods that are connected with terminated services","content":"270  Termination of contracts for the supply of goods that are connected with terminated services\n\n (1) If:\n\n (a) under section 267, a consumer terminates a contract for the supply of services; and\n\n (b) a person (the supplier) has supplied, in trade or commerce, goods to the consumer that are connected with the services;\n\nthen:\n\n (c) the consumer is taken to have rejected the goods at the time the termination of the contract takes effect; and\n\n (d) the consumer must return the goods to the supplier of the goods unless:\n\n (i) the goods have already been returned to, or retrieved by, the supplier; or\n\n (ii) the goods cannot be returned, removed or transported without significant cost to the consumer because of the nature of the failure to comply with the guarantee to which the rejection relates, or because of the size or height, or method of attachment, of the goods; and\n\n (e) the supplier must refund:\n\n (i) any money paid by the consumer for the goods; and\n\n (ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods.\n\n (2) If subsection (1)(d)(ii) applies, the supplier must collect the goods at the supplier’s expense.","sortOrder":2537},{"sectionNumber":"Sch 2 s 271","sectionType":"section","heading":"Action for damages against manufacturers of goods","content":"271  Action for damages against manufacturers of goods\n\n (1) If:\n\n (a) the guarantee under section 54 applies to a supply of goods to a consumer; and\n\n (b) the guarantee is not complied with;\n\nan affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.\n\n (2) Subsection (1) does not apply if the guarantee under section 54 is not complied with only because of:\n\n (a) an act, default or omission of, or any representation made by, any person other than the manufacturer or an employee or agent of the manufacturer; or\n\n (b) a cause independent of human control that occurred after the goods left the control of the manufacturer; or\n\n (c) the fact that the price charged by the supplier was higher than the manufacturer’s recommended retail price, or the average retail price, for the goods.\n\n (3) If:\n\n (a) a person supplies, in trade or commerce, goods by description to a consumer; and\n\n (b) the description was applied to the goods by or on behalf of the manufacturer of the goods, or with express or implied consent of the manufacturer; and\n\n (c) the guarantee under section 56 applies to the supply and it is not complied with;\n\nan affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.\n\n (4) Subsection (3) does not apply if the guarantee under section 56 is not complied with only because of:\n\n (a) an act, default or omission of any person other than the manufacturer or an employee or agent of the manufacturer; or\n\n (b) a cause independent of human control that occurred after the goods left the control of the manufacturer.\n\n (5) If:\n\n (a) the guarantee under section 58 or 59(1) applies to a supply of goods to a consumer; and\n\n (b) the guarantee is not complied with;\n\nan affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.\n\n (6) If an affected person in relation to goods has, in accordance with an express warranty given or made by the manufacturer of the goods, required the manufacturer to remedy a failure to comply with a guarantee referred to in subsection (1), (3) or (5):\n\n (a) by repairing the goods; or\n\n (b) by replacing the goods with goods of an identical type;\n\nthen, despite that subsection, the affected person is not entitled to commence an action under that subsection to recover damages of a kind referred to in section 272(1)(a) unless the manufacturer has refused or failed to remedy the failure, or has failed to remedy the failure within a reasonable time.\n\n (7) The affected person in relation to the goods may commence an action under this section whether or not the goods are in their original packaging.","sortOrder":2539},{"sectionNumber":"Sch 2 s 272","sectionType":"section","heading":"Damages that may be recovered by action against manufacturers of goods","content":"272  Damages that may be recovered by action against manufacturers of goods\n\n (1) In an action for damages under this Division, an affected person in relation to goods is entitled to recover damages for:\n\n (a) any reduction in the value of the goods, resulting from the failure to comply with the guarantee to which the action relates, below whichever of the following prices is lower:\n\n (i) the price paid or payable by the consumer for the goods;\n\n (ii) the average retail price of the goods at the time of supply; and\n\n (b) any loss or damage suffered by the affected person because of the failure to comply with the guarantee to which the action relates if it was reasonably foreseeable that the affected person would suffer such loss or damage as a result of such a failure.\n\n (2) Without limiting subsection (1)(b), the cost of inspecting and returning the goods to the manufacturer is taken to be a reasonably foreseeable loss suffered by the affected person as a result of the failure to comply with the guarantee.\n\n (3) Subsection (1)(b) does not apply to loss or damage suffered through a reduction in the value of the goods.","sortOrder":2540},{"sectionNumber":"Sch 2 s 273","sectionType":"section","heading":"Time limit for actions against manufacturers of goods","content":"273  Time limit for actions against manufacturers of goods\n\n  An affected person may commence an action for damages under this Division at any time within 3 years after the day on which the affected person first became aware, or ought reasonably to have become aware, that the guarantee to which the action relates has not been complied with.","sortOrder":2541},{"sectionNumber":"Sch 2 s 274","sectionType":"section","heading":"Indemnification of suppliers by manufacturers","content":"274  Indemnification of suppliers by manufacturers\n\n (1) A manufacturer of goods is liable to indemnify a person (the supplier) who supplies the goods to a consumer if:\n\n (a) the supplier is liable to pay damages under section 259(4) to the consumer for loss or damage suffered by the consumer; and\n\n (b) the manufacturer is or would be liable under section 271 to pay damages to the consumer for the same loss or damage.\n\n (2) Without limiting subsection (1), a manufacturer of goods is liable to indemnify a person (the supplier) who supplies the goods to a consumer if:\n\n (a) the supplier incurs costs because the supplier is liable under this Part for a failure to comply with a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3‑2; and\n\n (b) the failure is:\n\n (i) a failure to comply with the guarantee under section 54; or\n\n (ii) a failure to comply with the guarantee under section 55 in relation to a disclosed purpose that the consumer made known to the manufacturer either directly or through the supplier or the person referred to in section 55(2)(a)(ii); or\n\n (iii) a failure to comply with the guarantee under section 56 in relation to a description that was applied to the goods by or on behalf of the manufacturer of the goods, or with the express or implied consent of the manufacturer.\n\n (3) The supplier may, with respect to the manufacturer’s liability to indemnify the supplier, commence an action against the manufacturer in a court of competent jurisdiction for such legal or equitable relief as the supplier could have obtained if that liability had arisen under a contract of indemnity made between them.\n\n (4) The supplier may commence the action at any time within 3 years after the earliest of the following days:\n\n (a) the day, or the first day, as the case may be, on which the supplier made a payment with respect to, or otherwise discharged in whole or in part, the liability of the supplier to the consumer;\n\n (b) the day on which a proceeding was commenced by the consumer against the supplier with respect to that liability or, if more than one such proceeding was commenced, the day on which the first such proceeding was commenced.","sortOrder":2543},{"sectionNumber":"Sch 2 s 275","sectionType":"section","heading":"Limitation of liability etc.","content":"275  Limitation of liability etc.\n\n  If:\n\n (a) there is a failure to comply with a guarantee that applies to a supply of services under Subdivision B of Division 1 of Part 3‑2; and\n\n (b) the law of a State or a Territory is the proper law of the contract;\n\nthat law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services.","sortOrder":2544},{"sectionNumber":"Sch 2 s 276","sectionType":"section","heading":"This Part not to be excluded etc. by contract","content":"276  This Part not to be excluded etc. by contract\n\n (1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying:\n\n (a) the application of all or any of the provisions of this Part; or\n\n (b) the exercise of a right a conferred by such a provision; or\n\n (c) any liability of a person in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3‑2 to a supply of goods or services.\n\n (2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Part unless the term does so expressly or is inconsistent with the provision.\n\n (3) This section does not apply to a term of a contract that is a term referred to in section 276A(4).","sortOrder":2545},{"sectionNumber":"Sch 2 s 276A","sectionType":"section","heading":"Limitation in certain circumstances of liability of manufacturer to seller","content":"276A  Limitation in certain circumstances of liability of manufacturer to seller\n\n (1) Despite section 274, if goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability under that section of the manufacturer of the goods to a person (the supplier) who supplied the goods to a consumer is limited to a liability to pay to the supplier an amount equal to:\n\n (a) the cost of replacing the goods; or\n\n (b) the cost of obtaining equivalent goods; or\n\n (c) the cost of having the goods repaired;\n\nwhichever is the lowest amount.\n\n (2) Subsection (1) does not apply in relation to particular goods if the supplier establishes that it is not fair or reasonable for the liability of the manufacturer of the goods to be limited as mentioned in subsection (1).\n\n (3) In determining for the purposes of subsection (2) whether or not it is fair or reasonable for the liability of a manufacturer to a supplier in relation to goods to be limited as mentioned in subsection (1), a court is to have regard to all the circumstances of the case, and in particular to the following matters:\n\n (a) the availability of suitable alternative sources of supply of the goods;\n\n (b) the availability of equivalent goods;\n\n (c) whether the goods were manufactured, processed or adapted to the special order of the supplier.\n\n (4) This section is subject to any term of a contract between the manufacturer and the supplier imposing on the manufacturer a greater liability than the liability mentioned in subsection (1).","sortOrder":2546},{"sectionNumber":"Sch 2 s 277","sectionType":"section","heading":"Representative actions by the regulator","content":"277  Representative actions by the regulator\n\n (1) The regulator may, by application, commence an action under this Part on behalf of one or more persons identified in the application who are entitled under this Part to take the action.\n\n (2) The regulator may only make the application if it has obtained the written consent of the person, or each of the persons, on whose behalf the application is being made.","sortOrder":2547},{"sectionNumber":"Sch 2 Part 5-5","sectionType":"division","heading":"Liability of suppliers and credit providers","content":"Part 5‑5—Liability of suppliers and credit providers","sortOrder":2548},{"sectionNumber":"Sch 2 s 278","sectionType":"section","heading":"Liability of suppliers and linked credit providers relating to linked credit contracts","content":"278  Liability of suppliers and linked credit providers relating to linked credit contracts\n\n (1) If a consumer who is a party to a linked credit contract suffers loss or damage as a result of:\n\n (a) a misrepresentation relating to the credit provided under that linked credit contract, or to a supply of goods or services (a related supply) to which that contract relates; or\n\n (b) a breach of the linked credit contract, or of a contract for a related supply; or\n\n (c) the failure of consideration in relation to the linked credit contract, or to a contract for a related supply; or\n\n (d) a failure to comply with a guarantee that applies, under section 54, 55, 56, 57, 60, 61 or 62, in relation to a related supply; or\n\n (e) a breach of a warranty that is implied in the linked credit contract by section 12ED of the Australian Securities and Investments Commission Act 2001;\n\nthe linked credit provider who is a party to the contract, and the supplier of a related supply, are jointly and severally liable to the consumer for the amount of the loss or damage.\n\n (2) A linked credit contract is a contract that a consumer enters into with a linked credit provider of a person (the supplier) for the provision of credit in relation to:\n\n (a) the supply by way of sale, lease, hire or hire‑purchase of goods to the consumer by the linked credit provider where the supplier supplies the goods, or causes the goods to be supplied, to the linked credit provider; or\n\n (b) the supply by the supplier of goods or services, or goods and services, to the consumer.","sortOrder":2550},{"sectionNumber":"Sch 2 s 279","sectionType":"section","heading":"Action by consumer to recover amount of loss or damage","content":"279  Action by consumer to recover amount of loss or damage\n\n (1) If a linked credit provider, and a supplier of the goods or services, are liable under section 278 to a consumer for an amount of loss or damage, the consumer may recover the amount by action in a court of competent jurisdiction.\n\n (2) The consumer must bring the action against the linked credit provider and the supplier jointly.\n\n (3) Subsection (2) does not apply if:\n\n (a) the supplier has been dissolved or the winding up of the supplier has commenced; or\n\n (b) both of the following apply:\n\n (i) in the opinion of the court in which the action is taken, it is not reasonably likely that a judgment obtained against the supplier would be satisfied;\n\n (ii) that court has, on the application of the consumer, declared that that subsection does not apply in relation to the proceedings.","sortOrder":2551},{"sectionNumber":"Sch 2 s 280","sectionType":"section","heading":"Cases where a linked credit provider is not liable","content":"280  Cases where a linked credit provider is not liable\n\n (1) In joint liability proceedings, a linked credit provider is not liable to a consumer under section 278 if the linked credit provider establishes that:\n\n (a) the credit provided by the credit provider to the consumer was the result of an approach made to the credit provider by the consumer; and\n\n (b) the approach was not induced by the supplier of the goods or services to which the linked credit contract relates.\n\n (2) In joint liability proceedings, a linked credit provider is not liable to a consumer under section 278 if the proceedings relate to the supply by way of lease, hire or hire‑purchase of goods to the consumer by the linked credit provider, and the credit provider establishes that:\n\n (a) after due inquiry before becoming a linked credit provider of the supplier of the goods, the credit provider was satisfied that the reputation of the supplier in respect of the supplier’s financial standing and business conduct was good; and\n\n (b) after becoming a linked credit provider of the supplier, the credit provider had not had cause to suspect that:\n\n (i) the consumer might be entitled to recover an amount of loss or damage suffered as a result of a misrepresentation, breach, failure of consideration, failure to comply with a guarantee, or breach of a warranty, referred to in section 278(1); and\n\n (ii) the supplier might be unable to meet the supplier’s liabilities as and when they fall due.\n\n (3) In joint liability proceedings, a linked credit provider is not liable to a consumer under section 278 if the proceedings relate to a contract of sale in relation to which a tied loan contract applies and the linked credit provider establishes that:\n\n (a) after due inquiry before becoming a linked credit provider of the supplier of goods to which the contract relates, the credit provider was satisfied that the reputation of the supplier in respect of the supplier’s financial standing and business conduct was good; and\n\n (b) after becoming a linked credit provider of the supplier, but before the tied loan contract was entered into, the linked credit provider had not had cause to suspect that:\n\n (i) the consumer might, if the tied loan contract was entered into, be entitled to recover an amount of loss or damage suffered as a result of a misrepresentation, breach, failure of consideration, failure to comply with a guarantee, or breach of a warranty, referred to in section 278(1); and\n\n (ii) the supplier might be unable to meet the supplier’s liabilities as and when they fall due.\n\n (4) In joint liability proceedings, a linked credit provider is not liable to a consumer under section 278 if:\n\n (a) the proceedings relate to a contract of sale in relation to which a tied continuing credit contract entered into by the linked credit provider applies; and\n\n (b) the credit provider establishes the matter referred to in subsection (5), having regard to:\n\n (i) the nature and volume of business carried on by the credit provider; and\n\n (ii) such other matters as appear to be relevant in the circumstances of the case.\n\n (5) The matter for the purposes of subsection (4) is that the linked credit provider, before first becoming aware of:\n\n (a) the contract of sale referred to in paragraph (a) of that subsection; or\n\n (b) proposals for the making of such a contract;\n\nhad not had cause to suspect that a person entering into such a contract with the supplier might be entitled to claim damages against, or recover a sum of money from, the supplier for a misrepresentation, breach, failure of consideration, failure to comply with a guarantee, or a breach of a warranty, referred to in section 278(1).\n\n (6) This section has effect despite section 278(1).","sortOrder":2552},{"sectionNumber":"Sch 2 s 281","sectionType":"section","heading":"Amount of liability of linked credit providers","content":"281  Amount of liability of linked credit providers\n\n  The liability of a linked credit provider to a consumer under section 278(1) in relation to a contract referred to in section 278(1) is limited to an amount that does not exceed the sum of:\n\n (a) the amount financed under the tied loan contract, tied continuing credit contract, lease contract, contract of hire or contract of hire‑purchase; and\n\n (b) the amount of interest (if any), or damages in the nature of interest, allowed or awarded against the credit provider by the court in which the action in relation to the liability is taken; and\n\n (c) the amount of costs (if any) awarded by that court against the credit provider or supplier, or both.","sortOrder":2553},{"sectionNumber":"Sch 2 s 282","sectionType":"section","heading":"Counter-claims and offsets","content":"282  Counter‑claims and offsets\n\n (1) If proceedings in relation to a linked credit contract are brought against a consumer who is party to the contract by the linked credit provider who is a party to the contract, the consumer is not entitled to:\n\n (a) make a counter‑claim in relation to the credit provider’s liability under section 278(1); or\n\n (b) exercise a right conferred by subsection (3) of this section in relation to that liability;\n\nunless the consumer claims in the proceedings against the supplier in respect of the liability, by third‑party proceedings or otherwise.\n\n (2) Subsection (1) does not apply if:\n\n (a) the supplier has been dissolved or the winding up of the supplier has commenced; or\n\n (b) both of the following apply:\n\n (i) in the opinion of the court in which the proceedings are taken, it is not reasonably likely that a judgment obtained against the supplier would be satisfied;\n\n (ii) that court has, on the application of the consumer, declared that that subsection does not apply in relation to the proceedings.\n\n (3) In any proceedings in relation to a linked credit contract in which the linked credit provider who is a party to the contract claims damages or an amount of money from a consumer, the consumer may offset, in whole or in part, the consumer’s liability against any liability of the credit provider under section 278(1).","sortOrder":2554},{"sectionNumber":"Sch 2 s 283","sectionType":"section","heading":"Enforcement of judgments etc.","content":"283  Enforcement of judgments etc.\n\n (1) If, in joint liability proceedings, judgment is given against a supplier and a linked credit provider, the judgment must not be enforced against the credit provider unless a written demand made on the supplier for satisfaction of the judgment has remained unsatisfied for at least 30 days.\n\n (2) If the judgment can be enforced against the linked credit provider, it may only be enforced to the extent of the lesser of the following amounts:\n\n (a) the amount calculated in accordance with section 281;\n\n (b) so much of the judgment debt as has not been satisfied by the supplier.\n\n (3) If, in joint liability proceedings, a right conferred by section 282(3) is established by a consumer against a linked credit provider, the consumer must not receive the benefit of the right unless:\n\n (a) judgment has been given against the supplier and credit provider; and\n\n (b) a written demand has been made on the supplier for satisfaction of the judgment; and\n\n (c) the demand has remained unsatisfied for at least 30 days.\n\n (4) If the consumer can receive the benefit of a right conferred by section 282(3), the consumer may only receive the benefit to the extent of the lesser of the following amounts:\n\n (a) the amount calculated in accordance with section 281;\n\n (b) so much of the judgment debt as has not been satisfied by the supplier.\n\n (5) Subsections (1) and (3) do not apply if:\n\n (a) the supplier has been dissolved or the winding up of the supplier has commenced; or\n\n (b) both of the following apply:\n\n (i) in the opinion of the court in which the proceedings are taken, it is not reasonably likely that a judgment obtained against the supplier would be satisfied;\n\n (ii) that court has, on the application of the consumer, declared that those subsections do not apply in relation to the proceedings.\n\n (6) If a judgment given in joint liability proceedings is enforced against a linked credit provider of a supplier, the credit provider is subrogated to the extent of the enforced judgment to any rights that the consumer would have had but for the judgment against the supplier or any other person.","sortOrder":2555},{"sectionNumber":"Sch 2 s 284","sectionType":"section","heading":"Award of interest to consumers","content":"284  Award of interest to consumers\n\n (1) If, in joint liability proceedings, judgment is given against the following (the defendant) for an amount of loss or damage:\n\n (a) a supplier and a linked credit provider;\n\n (b) a linked credit provider;\n\nthe court must, on the application of the consumer who suffered the loss or damage, award interest to the consumer against the defendant upon the whole or a part of the amount, unless good cause is shown to the contrary.\n\n (2) The interest must be awarded from the time when the consumer became entitled to recover the amount until the date on which the judgment is given, at the greater of the following rates:\n\n (a) if the amount payable by the consumer to the linked credit provider for obtaining credit in connection with the goods or services to which the proceedings relate may be calculated at a percentage rate per annum—that rate or, if more than one such rate may be calculated, the lower or lowest of those rates;\n\n (b) 8%, or such other rate as is prescribed by the regulations.\n\n (3) In determining whether good cause is shown against the awarding of interest under subsection (1), the court must take into account any payment made into court by the supplier or the linked credit provider.\n\n (4) This section applies despite any other law.","sortOrder":2556},{"sectionNumber":"Sch 2 s 285","sectionType":"section","heading":"Liability of suppliers to linked credit providers, and of linked credit providers to suppliers","content":"285  Liability of suppliers to linked credit providers, and of linked credit providers to suppliers\n\n (1) If a linked credit provider and supplier are liable, under section 278, to a consumer who is a party to a linked credit contract:\n\n (a) if the liability relates to a supply of goods or services to which the linked credit contract relates—the supplier is liable to the credit provider for the amount of loss suffered by the credit provider, unless the supplier and credit provider otherwise agree; or\n\n (b) if the liability relates to the linked credit contract—the credit provider is liable to the supplier for the amount of loss suffered by the supplier, unless the supplier and credit provider otherwise agree.\n\n (2) The amount for which the supplier is liable under subsection (1)(a) of this section is an amount not exceeding the sum of the following amounts:\n\n (a) the maximum amount of the linked credit provider’s liability under section 281;\n\n (b) unless the court otherwise determines, the amount of costs (if any) reasonably incurred by the linked credit provider in defending the joint liability proceedings.","sortOrder":2557},{"sectionNumber":"Sch 2 s 286","sectionType":"section","heading":"Joint liability proceedings and recovery under section 135 of the National Credit Code","content":"286  Joint liability proceedings and recovery under section 135 of the National Credit Code\n\n (1) If:\n\n (a) a consumer is seeking, in joint liability proceedings, to recover an amount under section 279 in relation to a contract for the supply of goods or services; and\n\n (b) the contract has been rescinded or discharged (whether under this Schedule or any other law); and\n\n (c) as a result of the contract being rescinded or discharged, the consumer is entitled under section 135 of the National Credit Code to terminate a linked credit contract; and\n\n (d) the consumer terminates the linked credit contract under that section;\n\nthe following amounts may be recovered in the joint liability proceedings (to the extent that they have not been recovered under section 135 of the National Credit Code):\n\n (e) any amount that the consumer is entitled under section 135 of the National Credit Code to recover from the credit provider under the linked credit contract;\n\n (f) any amount that the credit provider is entitled under section 135 of the National Credit Code to recover from:\n\n (i) the consumer; or\n\n (ii) if the supplier under the contract for the supply of goods or services is a party to the joint liability proceedings—the supplier.\n\n (2) An amount that is recovered under subsection (1) ceases to be recoverable under section 135 of the National Credit Code.","sortOrder":2558},{"sectionNumber":"Sch 2 s 287","sectionType":"section","heading":"Liability of suppliers and credit providers relating to non-linked credit contracts","content":"287  Liability of suppliers and credit providers relating to non‑linked credit contracts\n\n (1) If a consumer who is a party to a non‑linked credit contract suffers loss or damage as a result of a failure to comply with a guarantee that applies, under section 54, 55, 56, 57, 60, 61 or 62, in relation to a supply to which the contract relates, the credit provider who is a party to the contract is not under any liability to the consumer for the amount of the loss or damage.\n\n (2) Subsection (1) does not prevent the consumer from recovering that amount by action against the supplier of the goods or services to which the contract relates.\n\n (3) If a consumer who is a party to a non‑linked credit contract suffers loss or damage as a result of a breach of a warranty that is implied in the contract by section 12ED of the Australian Securities and Investments Commission Act 2001, the supplier of the goods or services to which the contract relates is not under any liability to the consumer for the amount of the loss or damage.\n\n (4) Subsection (3) does not prevent the consumer from recovering that amount by action against the credit provider who is a party to the contract.\n\n (5) A non‑linked credit contract is a contract that a consumer enters into with a credit provider for the provision of credit in relation to:\n\n (a) the supply by way of sale, lease, hire or hire‑purchase of goods to the consumer where:\n\n (i) a person (the supplier) supplies the goods, or the causes the goods to be supplied, to the credit provider; and\n\n (ii) the credit provider is not a linked credit provider of the supplier; and\n\n (iii) prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made with the consumer by or on behalf of the supplier; and\n\n (iv) the credit provider did not take physical possession of the goods before they were delivered to the consumer; or\n\n (b) the supply of services to the consumer by a person in relation to whom the credit provider is not a linked credit provider.","sortOrder":2560},{"sectionNumber":"Sch 2 Chapter 6","sectionType":"part","heading":"Application and transitional provisions","content":"Chapter 6—Application and transitional provisions","sortOrder":2561},{"sectionNumber":"Sch 2 Part 1","sectionType":"division","heading":"Application and transitional provisions relating to the Consumer Credit Legislation Amendment (Enhancements) Act 2012","content":"Part 1—Application and transitional provisions relating to the Consumer Credit Legislation Amendment (Enhancements) Act 2012","sortOrder":2562},{"sectionNumber":"Sch 2 s 288","sectionType":"section","heading":"Application of amendments relating to lay-by agreements","content":"288  Application of amendments relating to lay‑by agreements\n\n  The amendments made by items 1 to 8 and 10 to 15 of Schedule 7 to the Consumer Credit Legislation Amendment (Enhancements) Act 2012 apply to lay‑by agreements entered into on or after the commencement of those items.","sortOrder":2563},{"sectionNumber":"Sch 2 s 289","sectionType":"section","heading":"Application of amendment relating to repairs","content":"289  Application of amendment relating to repairs\n\n  The amendment made by item 9 of Schedule 7 to the Consumer Credit Legislation Amendment (Enhancements) Act 2012 applies to notices to be given in relation to the repair of goods accepted on or after the commencement of that item.","sortOrder":2564},{"sectionNumber":"Sch 2 s 290","sectionType":"section","heading":"Saving of regulations relating to repairs","content":"290  Saving of regulations relating to repairs\n\n  Despite the amendment made to subsection 103(1) of Schedule 2 to the Competition and Consumer Act 2010 by item 9 of Schedule 7 to the Consumer Credit Legislation Amendment (Enhancements) Act 2012, regulations that:\n\n (a) were made for the purposes of that subsection; and\n\n (b) were in force immediately before the commencement of that item;\n\ncontinue in force (and may be dealt with) as if they were made for the purposes of that subsection as amended by that item.","sortOrder":2565},{"sectionNumber":"Sch 2 Part 1A","sectionType":"division","heading":"Application provision relating to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015","content":"Part 1A—Application provision relating to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015","sortOrder":2566},{"sectionNumber":"Sch 2 s 290A","sectionType":"section","heading":"Application","content":"290A  Application\n\n (1) The amendments made by Schedule 1 to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 apply in relation to a contract entered into on or after the commencement of that Schedule.\n\n (2) The amendments do not apply to a contract entered into before the commencement of that Schedule. However:\n\n (a) if the contract is renewed on or after that commencement—the amendments apply to the contract as renewed, on and from the day (the renewal day) on which the renewal takes effect, in relation to conduct that occurs on or after the renewal day; or\n\n (b) if a term of the contract is varied on or after that commencement and paragraph (a) has not already applied in relation to the contract—the amendments apply to the term as varied, on and from the day (the variation day) on which the variation takes effect, in relation to conduct that occurs on and after the variation day.\n\n (3) If paragraph (2)(b) of this section applies to a term of a contract, subsection 23(2) and section 27 apply to the contract.\n\n (4) Despite paragraphs (2)(a) and (b) and subsection (3) of this section, the amendments do not apply to a contract, or a term of a contract, to the extent that the operation of the amendments would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution).","sortOrder":2567},{"sectionNumber":"Sch 2 Part 2","sectionType":"division","heading":"Application and transitional provisions relating to the Competition and Consumer Amendment (Competition Policy Review) Act 2017","content":"Part 2—Application and transitional provisions relating to the Competition and Consumer Amendment (Competition Policy Review) Act 2017","sortOrder":2568},{"sectionNumber":"Sch 2 s 291","sectionType":"section","heading":"Application of amendments relating to confidentiality of notices","content":"291  Application of amendments relating to confidentiality of notices\n\n  The amendment made by Part 4 of Schedule 14 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017 applies in relation to disclosures made on or after the commencement of that Part that relate to notices given on or after the commencement of that Part.","sortOrder":2569},{"sectionNumber":"Sch 2 s 292","sectionType":"section","heading":"Application of amendments relating to prohibition on supplies","content":"292  Application of amendments relating to prohibition on supplies\n\n  The amendments made by Part 6 of Schedule 14 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017 apply in relation to unsolicited consumer agreements made on or after the commencement of that Part.","sortOrder":2570},{"sectionNumber":"Sch 2 Part 3","sectionType":"division","heading":"Application provision relating to the Treasury Laws Amendment (2018 Measures No. 3) Act 2018","content":"Part 3—Application provision relating to the Treasury Laws Amendment (2018 Measures No. 3) Act 2018","sortOrder":2571},{"sectionNumber":"Sch 2 s 295","sectionType":"section","heading":"Application of amendments","content":"295  Application of amendments\n\n  The amendments made by Schedule 1 to the Treasury Laws Amendment (2018 Measures No. 3) Act 2018 apply in relation to acts or omissions that occur on or after the commencement of that Schedule.","sortOrder":2572},{"sectionNumber":"Sch 2 Part 4","sectionType":"division","heading":"Application provisions relating to the Treasury Laws Amendment (Australian Consumer Law Review) Act 2018","content":"Part 4—Application provisions relating to the Treasury Laws Amendment (Australian Consumer Law Review) Act 2018","sortOrder":2573},{"sectionNumber":"Sch 2 s 296","sectionType":"section","heading":"Application—listed public companies","content":"296  Application—listed public companies\n\n  The amendments made by items 4 and 5 of Schedule 2 to the Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 apply in relation to acts or omissions on or after the day that Schedule commences.","sortOrder":2574},{"sectionNumber":"Sch 2 s 297","sectionType":"section","heading":"Application—unsolicited supplies","content":"297  Application—unsolicited supplies\n\n  The amendments made by Schedule 3 to the Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 apply in relation to acts or omissions on or after the day that Schedule commences.","sortOrder":2575},{"sectionNumber":"Sch 2 s 298","sectionType":"section","heading":"Application—unsolicited consumer agreements","content":"298  Application—unsolicited consumer agreements\n\n  The amendment made by Schedule 4 to the Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 applies in relation to acts or omissions that relate to agreements entered into on or after the day that Schedule commences.","sortOrder":2576},{"sectionNumber":"Sch 2 s 299","sectionType":"section","heading":"Application—single price","content":"299  Application—single price\n\n  The amendments made by Schedule 5 to the Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 apply in relation to acts or omissions on or after the day that is 12 months after the day that Schedule commences.","sortOrder":2577},{"sectionNumber":"Sch 2 s 300","sectionType":"section","heading":"Application—non-punitive orders","content":"300  Application—non‑punitive orders\n\n  The amendments made by Schedule 8 to the Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 apply in relation to orders relating to acts or omissions on or after the day that Schedule commences.","sortOrder":2578},{"sectionNumber":"Sch 2 s 301","sectionType":"section","heading":"Application—guarantees relating to the supply of services","content":"301  Application—guarantees relating to the supply of services\n\n  The amendments made by Schedule 9 to the Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 apply in relation to services supplied under a contract entered into on or after the day that Schedule commences.","sortOrder":2579},{"sectionNumber":"Sch 2 Part 5","sectionType":"division","heading":"Application and transitional provisions relating to the Treasury Laws Amendment (Gift Cards) Act 2018","content":"Part 5—Application and transitional provisions relating to the Treasury Laws Amendment (Gift Cards) Act 2018","sortOrder":2580},{"sectionNumber":"Sch 2 s 302","sectionType":"section","heading":"Application of amendments relating to gift cards","content":"302  Application of amendments relating to gift cards\n\n  The amendments made by Schedule 1 to the Treasury Laws Amendment (Gift Cards) Act 2018 apply to gift cards supplied on or after 1 November 2019.","sortOrder":2581},{"sectionNumber":"Sch 2 Part 6","sectionType":"division","heading":"Application and transitional provisions relating to the Treasury Laws Amendment (2020 Measures No. 6) Act 2020","content":"Part 6—Application and transitional provisions relating to the Treasury Laws Amendment (2020 Measures No. 6) Act 2020","sortOrder":2582},{"sectionNumber":"Sch 2 s 303","sectionType":"section","heading":"Application of amendments relating to multiple non-major consumer guarantee failures","content":"303  Application of amendments relating to multiple non‑major consumer guarantee failures\n\n (1) The amendments made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2020 Measures No. 6) Act 2020 apply in relation to goods supplied under a contract entered into on or after the day that that Part commences.\n\n (2) The amendments made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2020 Measures No. 6) Act 2020 apply in relation to services supplied under a contract entered into on or after the day that that Part commences.","sortOrder":2583},{"sectionNumber":"Sch 2 Part 7","sectionType":"division","heading":"Application provision relating to the Treasury Laws Amendment (More Competition, Better Prices) Act 2022","content":"Part 7—Application provision relating to the Treasury Laws Amendment (More Competition, Better Prices) Act 2022","sortOrder":2584},{"sectionNumber":"Sch 2 s 304","sectionType":"section","heading":"Application of amendments relating to penalties","content":"304  Application of amendments relating to penalties\n\n  The amendments made by Part 4 of Schedule 1 to the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 apply in relation to offences committed, or acts or omissions that occurred, on or after the commencement of that Schedule.","sortOrder":2585},{"sectionNumber":"Sch 2 s 305","sectionType":"section","heading":"Application of amendments relating to unfair contract terms","content":"305  Application of amendments relating to unfair contract terms\n\n (1) This section applies to the amendments of this Schedule made by Schedule 2 (the amending Schedule) to the Treasury Laws Amendment (More Competition, Better Prices) Act 2022.\n\n (2) The amendments:\n\n (a) apply in relation to a contract made at or after the commencement (the relevant commencement) of the amending Schedule; and\n\n (b) do not apply to a contract (an existing contract) made before the relevant commencement, except as provided in this section.\n\n (3) If an existing contract is renewed at or after the relevant commencement, the amendments apply to the contract as renewed, on and from the day (the renewal day) on which the renewal takes effect, in relation to conduct that occurs on or after the renewal day.\n\n (4) If an existing contract is varied at or after the relevant commencement by varying or adding a term and subsection (3) has not already applied in relation to the contract:\n\n (a) the amendments apply to the term as varied or added, and so apply:\n\n (i) on and from the day (the variation day) on which the variation of the contract takes effect; and\n\n (ii) as if the contract as varied had been made on the variation day; and\n\n (iii) in relation to conduct that occurs on and after the variation day; and\n\n (b) section 23(2A)(e) applies in relation to a person proposing the varied or added term, whether before, at or after the relevant commencement; and\n\n (c) subsection 23(2), and section 27, as in force at and after the relevant commencement, apply to the contract.\n\n (5) If a contract is made or renewed at or after the relevant commencement, section 23(2A)(e) applies in relation to a person proposing a term of the contract, whether before, at or after the relevant commencement.\n\n (6) Despite subsections (3) to (5) of this section, the amendments do not apply to a contract, or a term of a contract, to the extent that the operation of the amendments would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution).","sortOrder":2586},{"sectionNumber":"Sch 2 Part 8","sectionType":"division","heading":"Application and saving provisions relating to the Treasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Act 2024","content":"Part 8—Application and saving provisions relating to the Treasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Act 2024","sortOrder":2587},{"sectionNumber":"Sch 2 s 306","sectionType":"section","heading":"Definitions","content":"306  Definitions\n\n  In this Part:\n\namending Schedule means Schedule 2 to the Treasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Act 2024.","sortOrder":2588},{"sectionNumber":"Sch 2 s 307","sectionType":"section","heading":"Saving—safety standards declared by the Minister","content":"307  Saving—safety standards declared by the Minister\n\n  Despite the repeal of section 105 by the amending Schedule, a safety standard that:\n\n (a) was declared for the purposes of that section; and\n\n (b) was in force immediately before the commencement of Part 1 of the amending Schedule;\n\ncontinues in force (and may be dealt with) on and after the commencement of Part 1 of the amending Schedule as if it were made for the purposes of section 104, as amended by the amending Schedule.","sortOrder":2589},{"sectionNumber":"Sch 2 s 308","sectionType":"section","heading":"Application—nomination and compliance with safety standards","content":"308  Application—nomination and compliance with safety standards\n\n (1) Despite the repeal of section 108 by the amending Schedule, that section continues to apply in relation to requests given by the regulator before the commencement of Part 1 of the amending Schedule, as if that repeal had not happened.\n\n (2) Section 108, as inserted by the amending Schedule, applies in relation to safety standards made before, on or after the commencement of Part 1 of the amending Schedule.","sortOrder":2590},{"sectionNumber":"Sch 2 s 309","sectionType":"section","heading":"Application—requests for information or documents","content":"309  Application—requests for information or documents\n\n  Sections 108A and 137B, as inserted by the amending Schedule, apply in relation to safety standards and information standards made before, on or after the commencement of Part 1 of the amending Schedule.","sortOrder":2591},{"sectionNumber":"Sch 2 Part 9","sectionType":"part","heading":"Application provision relating to the Treasury Laws Amendment (Doubling Penalties for ACCC Enforcement) Act 2026","content":"Part 9—Application provision relating to the Treasury Laws Amendment (Doubling Penalties for ACCC Enforcement) Act 2026","sortOrder":2592},{"sectionNumber":"Sch 2 s 310","sectionType":"section","heading":"Application of amendments relating to penalties","content":"310  Application of amendments relating to penalties\n\n  The amendments made by item 6 of Schedule 1 to the Treasury Laws Amendment (Doubling Penalties for ACCC Enforcement) Act 2026 apply in relation to offences committed, or acts or omissions that occurred, on or after the commencement of that Schedule.","sortOrder":2593}],"analysis":null,"importantCases":[],"_links":{"self":"/api/acts/competition-and-consumer-act-2010","history":"/api/acts/competition-and-consumer-act-2010/history","analysis":"/api/acts/competition-and-consumer-act-2010/analysis","conflicts":"/api/acts/competition-and-consumer-act-2010/conflicts","importantCases":"/api/acts/competition-and-consumer-act-2010/important-cases","documents":"/api/acts/competition-and-consumer-act-2010/documents"}}