Competition and Consumer Act 2010

Part I—Preliminary

1 Short title

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

2 Object of this Act

The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.

2A Application of Act to Commonwealth and Commonwealth authorities

(1) Subject to this section and sections 44AC, 44E and 95D, this Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth.

(2) Subject to the succeeding provisions of this section, this Act applies as if:

(a) the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and

(b) each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Commonwealth) in so far as it carries on a business;

were a corporation.

(3) Nothing in this Act makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence.

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

(4) Part IV does not apply in relation to the business carried on by the Commonwealth in developing, and disposing of interests in, land in the Australian Capital Territory.

2B Application of Act to States and Territories

(1) The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory:

(a) Part IV;

(aaa) Part IVBA;

(aa) Part V;

(b) Part XIB;

(ba) Part XICA;

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

(d) the acquisitions provisions.

(2) Nothing in this Act renders the Crown in right of a State or Territory liable to a pecuniary penalty or to be prosecuted for an offence.

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

2BA Application of Parts IV and IVA to local government bodies

(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.

(2) In this section:

local government body means a body established by or under a law of a State or Territory for the purposes of local government, other than a body established solely or primarily for the purposes of providing a particular service, such as the supply of electricity or water.

2C Activities that are not business

(1) For the purposes of sections 2A, 2B and 2BA, the following do not amount to carrying on a business:

(a) imposing or collecting:

(i) taxes; or

(ii) levies; or

(iii) fees for licences;

(b) granting, refusing to grant, revoking, suspending or varying licences (whether or not they are subject to conditions);

(c) a transaction involving:

(i) only persons who are all acting for the Crown in the same right (and none of whom is an authority of the Commonwealth or an authority of a State or Territory); or

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

(iii) only persons who are all acting for the same authority of a State or Territory; or

(iv) only the Crown in right of the Commonwealth and one or more non‑commercial authorities of the Commonwealth; or

(v) only the Crown in right of a State or Territory and one or more non‑commercial authorities of that State or Territory; or

(vi) only non‑commercial authorities of the Commonwealth; or

(vii) only non‑commercial authorities of the same State or Territory; or

(viii) only persons who are all acting for the same local government body (within the meaning of section 2BA) or for the same incorporated company in which such a body has a controlling interest;

(d) the acquisition of primary products by a government body under legislation, unless the acquisition occurs because:

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

(ii) the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products.

(2) Subsection (1) does not limit the things that do not amount to carrying on a business for the purposes of sections 2A, 2B and 2BA.

(3) In this section:

acquisition of primary products by a government body under legislation includes vesting of ownership of primary products in a government body by legislation.

government body means the Commonwealth, a State, a Territory, an authority of the Commonwealth or an authority of a State or Territory.

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

primary products means:

(a) agricultural or horticultural produce; or

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

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

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

(4) For the purposes of this section, an authority of the Commonwealth or an authority of a State or Territory is non‑commercial if:

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

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

3 Repeal

The Restrictive Trade Practices Act 1971 and the Restrictive Trade Practices Act 1972 are repealed.

4 Interpretation

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

accountable authority has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

Accreditation Registrar means:

(a) if a person holds an appointment under subsection 56CK(1)—that person; or

(b) otherwise—the Commission.

accredited action initiator has the meaning given by section 56AMC.

accredited data recipient has the meaning given by section 56AK.

accredited person means a person who holds an accreditation under subsection 56CA(1).

ACMA means the Australian Communications and Media Authority.

acquire includes:

(a) in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hire‑purchase; and

(b) in relation to services—accept.

acquisition determination, in respect of a notification of an acquisition, means:

(a) a determination made under subsection 51ABZE(1) in respect of the notification; or

(b) a determination made under subsection 51ABZW(1) in respect of a public benefit application relating to the notification.

acquisitions provision means any of the following provisions:

(a) a provision of Division 1A of Part IV;

(b) a provision of Part IVA;

(c) a provision of Division 1B of Part IX;

(d) another provision of this Act, to the extent that it relates to a provision covered by paragraph (a), (b) or (c);

(e) section 50AA of the Corporations Act 2001, as that section applies for the purposes of section 51ABSA of this Act;

(f) section 50AA of the Corporations Act 2001, as that section applies for the purposes of section 51ABSB of this Act.

Note: For paragraphs (e) and (f), section 50AA of that Act:

(a) applies with modifications for section 51ABSA; and

(b) applies without modifications for section 51ABSB.

acquisitions register means the register kept by the Commission under subsection 51ABZZH(1).

actionable scam intelligence has the meaning given by section 58AI.

action service provider has the meaning given by subsection 56AMB(1).

adjusted 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:

(a) supplies made from any of those bodies corporate to any other of those bodies corporate; or

(b) supplies that are input taxed; or

(c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999); or

(d) supplies that are not made in connection with an enterprise that the body corporate carries on; or

(e) supplies that are not connected with the indirect tax zone.

Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

AEMC or Australian Energy Market Commission means the body established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia.

AER or Australian Energy Regulator means the body established by section 44AE.

AER Chair means the Chair of the AER.

AER member means a member of the AER.

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

ASIC means the Australian Securities and Investments Commission.

associate, 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:

(a) a natural person who is in Australia or is ordinarily resident in Australia; or

(b) a person who carries on a business having a principal place of business in Australia;

Australian Consumer Law means Schedule 2 as applied under Subdivision A of Division 2 of Part XI.

Australian law has the same meaning as in the Privacy Act 1988.

Australian repairer: see section 57BB.

authorisation 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.

authority, in relation to a State or Territory, and each external Territory, means:

(a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or

(b) an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.

Note: See also the definitions of Commonwealth authority and State or Territory authority in subsection 95A(1) (which apply in relation to Part VIIA).

authority of the Commonwealth means:

(a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or

(b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.

Note: See also the definitions of Commonwealth authority and State or Territory authority in subsection 95A(1) (which apply in relation to Part VIIA).

banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

binding data standard has the meaning given by subsection 56FA(3).

breach turnover period, of a body corporate, for an offence, a contravention, or an act or omission, means the longer of the following periods:

(a) the period of 12 months ending at the end of the month in which:

(i) for an offence—the body corporate ceased committing the offence, or was charged with the offence (whichever is earlier); or

(ii) for a contravention—the contravention ceased, or proceedings in relation to the contravention were instituted (whichever is earlier); or

(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);

(b) the period ending at the same time as the period determined under paragraph (a) and starting:

(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

(ii) for a contravention—at the beginning of the month in which the contravention occurred or began occurring (as the case requires); or

(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).

business includes a business not carried on for profit.

business day: in Part IVA, business day has the meaning given by section 51ABK.

cartel provision has the meaning given by section 45AD.

cash distribution framework means:

(a) the Cash Distribution Framework Act 2026; or

(b) record‑keeping rules within the meaning of that Act; or

(c) rules or any other instrument made under that Act; or

(d) the Regulatory Powers Act to the extent that it applies in relation to a provision of that Act.

CDR Accreditor means:

(a) if a person holds an appointment under subsection 56CG(1)—that person; or

(b) otherwise—the Commission.

CDR action has the meaning given by subsection 56AMA(1).

CDR action participant has the meaning given by section 56AMD.

CDR consumer has the meaning given by subsection 56AI(3) or (3A).

CDR data has the meaning given by subsection 56AI(1).

CDR declaration has the meaning given by subsection 56AMA(2).

CDR participant has the meaning given by subsection 56AL(1).

CDR provisions has the meaning given by section 56AN.

Chairperson means the Chairperson of the Commission.

Chapter 6 entity has the meaning given by subsection 51ABJ(1).

chargeable CDR data has the meaning given by subsection 56AM(1).

chargeable circumstances:

(a) in relation to the disclosure of chargeable CDR data—has the meaning given by subsection 56AM(2); or

(b) in relation to the use of chargeable CDR data—has the meaning given by subsection 56AM(3).

civil 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).

civil penalty provision of an SPF code means:

(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

(b) subsection 58FZM(3) in relation to compliance with a direction given under subsection 58FZM(2).

civil penalty provision of an SPF principle means:

(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

(b) subsection 58FZM(3) in relation to compliance with a direction given under subsection 58FZM(1).

civil 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).

collective boycott conduct means conduct that has a purpose referred to in subsection 45AD(3) in relation to a contract, arrangement or understanding.

collects: a person collects information only if the person collects the information for inclusion in:

(a) a record (within the meaning of the Privacy Act 1988); or

(b) a generally available publication (within the meaning of that Act).

Commission means the Australian Competition and Consumer Commission established by section 6A, and includes a member of the Commission or a Division of the Commission performing functions of the Commission.

Commonwealth AER member means an AER member referred to in section 44AM.

competition includes:

(a) competition from goods that are, or are capable of being, imported into Australia; and

(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.

consumer data rules means rules in force under section 56BA.

contract includes a covenant.

corporation means a body corporate that:

(a) is a foreign corporation;

(b) is a trading corporation formed within the limits of Australia or is a financial corporation so formed;

(c) is incorporated in a Territory; or

(d) is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c).

Council means the National Competition Council established by section 29A.

Councillor means a member of the Council, including the Council President.

Council President means the Council President referred to in subsection 29C(1).

court/tribunal order has the same meaning as in the Privacy Act 1988.

covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land), and proposed covenant has a corresponding meaning.

data holder has the meaning given by subsection 56AJ(1).

data provider: see section 57BE.

data standard means a data standard made under section 56FA.

Data Standards Body means the body holding an appointment under subsection 56FJ(1).

Data Standards Chair means:

(a) if a person holds an appointment under section 56FG—that person; or

(b) otherwise—the Minister.

debenture includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a body corporate, whether constituting a charge on property of the body corporate or not.

de‑identified: information is de‑identified if the information is no longer about an identifiable individual or an individual who is reasonably identifiable.

Deputy Chairperson means a Deputy Chairperson of the Commission.

Deputy President means a Deputy President of the Tribunal, and includes a person appointed to act as a Deputy President of the Tribunal.

Deputy Registrar means a Deputy Registrar of the Tribunal.

designated Commonwealth energy law means:

(a) the National Electricity (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or

(b) the National Gas (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or

(c) the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or

(d) the National Energy Retail Law and Regulations (Commonwealth) (as defined by the Australian Energy Market Act 2004).

designated complaint: see section 154ZF.

designated gateway has the meaning given by subsection 56AL(2).

designated sector has the meaning given by subsection 56AC(1).

designated Telstra successor company: see section 581G of the Telecommunications Act 1997.

determination period:

(a) for a notification of an acquisition—has the meaning given by subsection 51ABZI(3); and

(b) for a public benefit application—has the meaning given by subsection 51ABZZ(2).

directly or indirectly derived has the meaning given by subsection 56AI(2).

document means any record of information, and includes:

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

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

dual listed company arrangement has the same meaning as in section 125‑60 of the Income Tax Assessment Act 1997.

earliest holding day has the meaning given by paragraph 56AC(2)(c).

effective 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).

effective 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).

electronic communication means a communication of information by means of guided and/or unguided electromagnetic energy:

(a) whether in the form of text; or

(b) whether in the form of data; or

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

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

(e) whether in any other form; or

(f) whether in any combination of forms.

external Territory:

(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

(b) does not include a Territory covered by the definition of Territory in this subsection.

Note: 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.

fee‑free CDR data has the meaning given by subsection 56AM(4).

finally considered, in relation to a notification of an acquisition, has the meaning given by subsection 51ABF(1).

financial corporation means a financial corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that carries on as its sole or principal business the business of banking (other than State banking not extending beyond the limits of the State concerned) or insurance (other than State insurance not extending beyond the limits of the State concerned).

fit and proper person, in relation to accessing and using safety and security information: see section 57DB.

foreign corporation means a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that is incorporated in an external Territory.

fully‑participating jurisdiction means a State or Territory that:

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

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

gas market code means regulations made for the purposes of section 53L.

gas market emergency price order means an order in force under section 53M.

gas market instrument means:

(a) a gas market code; or

(b) a gas market emergency price order.

gas market provision means any of the following provisions:

(a) a provision of Part IVBB;

(b) a provision of the regulations made for the purposes of a provision of Part IVBB (including a gas market code);

(c) a provision of a gas market emergency price order;

(d) another provision of this Act to the extent that it relates to a provision covered by paragraph (a), (b) or (c).

give effect to, in relation to a provision of a contract, arrangement or understanding, includes do an act or thing in pursuance of or in accordance with or enforce or purport to enforce.

goods includes:

(a) ships, aircraft and other vehicles;

(b) animals, including fish;

(c) minerals, trees and crops, whether on, under or attached to land or not; and

(d) gas and electricity.

goodwill protection provision: a provision of a contract is a goodwill protection provision of the contract if:

(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

(b) the provision is solely for the protection of the purchaser in respect of the goodwill of the business.

holds: 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.

infringement notice compliance period for an SPF infringement notice: see section 58FT.

initiating party: see section 57EB.

inspector, of an SPF regulator, has the meaning given by section 58FB.

involved, in a contravention of a civil penalty provision of an SPF principle or of a civil penalty provision of an SPF code, means:

(a) aiding, abetting, counselling or procuring a contravention of the provision; or

(b) inducing, whether by threats or promises or otherwise, such a contravention; or

(c) being in any way, directly or indirectly, knowingly concerned in, or party to, such a contravention; or

(d) conspiring with others to effect such a contravention.

judicial power means the judicial power of the Commonwealth referred to in section 71 of the Constitution.

local energy instrument means a regulation, rule, order, declaration or other instrument if:

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

(b) the law of the State or Territory applies a uniform energy law as a law of its own jurisdiction.

managed investment scheme has the same meaning as in the Corporations Act 2001.

member of the Commission includes the Chairperson and a person appointed to act as a member of the Commission but does not include an associate member of the Commission.

member of the Tribunal includes the President and a person appointed to act as a member of the Tribunal.

merger authorisation means an authorisation that:

(a) is an authorisation for a person to engage in conduct to which section 50 or 50A would or might apply; but

(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.

National Competition Policy Agreement has the meaning given by section 44DAA.

New Zealand Commerce Commission means the Commission established by section 8 of the Commerce Act 1986 of New Zealand.

New Zealand Crown corporation means a body corporate that is an instrument of the Crown in respect of the Government of New Zealand.

no longer subject to review, in relation to an acquisition determination, has the meaning given by subsection 51ABF(2).

notice of competition concerns has the meaning given by subsection 51ABZK(1).

notification, of an acquisition, means a notification of the acquisition that is made to the Commission in accordance with subsection 51ABX(1).

Note: For the acquisitions to which subsection 51ABX(1) applies, see Subdivision B of Division 1 of Part IVA.

notification waiver application has the meaning given by subsection 51ABU(5).

notified acquisition has the meaning given by subsection 51ABW(2).

Note: See also subsection 51ABZD(6).

notifying party, of a notification of an acquisition, has the meaning given by subsection 51ABW(3).

organisation of employees means an organisation that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment.

overseas 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.

participant, in proceedings for review under Division 1B of Part IX, does not include the Commission.

party:

(a) to an acquisition—has the meaning given by subsections 51ABI(1) and (2); and

(b) to a contract that is a covenant—includes a person bound by, or entitled to the benefit of, the covenant.

personal information has the same meaning as in the Privacy Act 1988.

personal injury includes:

(a) pre‑natal injury; or

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

(c) disease;

but does not include an impairment of a person’s mental condition unless the impairment consists of a recognised psychiatric illness.

phase 1 determination period, for a notification of an acquisition, has the meaning given by subsection 51ABZI(4).

phase 2 determination period, for a notification of an acquisition, has the meaning given by subsection 51ABZI(5).

practice of exclusive dealing means the practice of exclusive dealing referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9).

practice of resale price maintenance means the practice of resale price maintenance referred to in Part VIII.

prescribed safety and security criteria: see section 57DB.

President means the President of the Tribunal and includes a person appointed to act as President of the Tribunal.

presidential member or presidential member of the Tribunal means President or a Deputy President.

price includes a charge of any description.

principal party, to an acquisition, has the meaning given by paragraph 51ABI(1)(a) and subsection 51ABI(2).

privacy safeguard penalty provision has the meaning given by subsection 56EU(1).

privacy safeguards means the provisions in Subdivisions B to F of Division 5 of Part IVD (about the consumer data right).

provision, in relation to an understanding, means any matter forming part of the understanding.

public benefit application has the meaning given by subsection 51ABZP(5).

public benefit assessment has the meaning given by subsection 51ABZZA(1).

purportedly puts into effect, in relation to an acquisition, has the meaning given by subsection 45AV(2).

reasonable 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.

registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act.

registered training organisation has the same meaning as in the National Vocational Education and Training Regulator Act 2011.

Registrar means the Registrar of the Tribunal.

regulated entity has the meaning given by section 58AD.

regulated sector has the meaning given by subsection 58AC(1).

regulated service has the meaning given by section 58AD.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

require, in relation to the giving of a covenant, means require or demand the giving of a covenant, whether by way of making a contract containing the covenant or otherwise, and whether or not a covenant is given in pursuance of the requirement or demand.

required to be notified, in relation to an acquisition, has the meaning given by sections 51ABO and 51ABS and subsections 51ABT(1) and 51ABV(6).

responding party: see section 57EB.

RTO course: see section 57BC.

Note: RTO is short for registered training organisation.

safety and security information: see section 57BF.

safety information: see section 57BF.

scam has the meaning given by section 58AG.

scheme adviser means the motor vehicle service and repair information scheme adviser appointed under section 57FA.

scheme information: see section 57BD.

scheme offer: see section 57CA.

scheme price, for scheme information: see section 57CA.

scheme RTO: see section 57BC.

Note: RTO is short for registered training organisation.

scheme rules means rules made by the Minister under section 57GE.

scheme vehicle: see section 57BA.

security information: see section 57BF.

send includes deliver, and sent and sender have corresponding meanings.

senior officer, of a regulated entity, means:

(a) an officer (within the meaning of the Corporations Act 2001) of the entity; or

(b) a senior manager (within the meaning of that Act) of the entity.

sensitive information has the same meaning as in the Privacy Act 1988.

services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

(a) a contract for or in relation to:

(i) the performance of work (including work of a professional nature), whether with or without the supply of goods;

(ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

(iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;

(b) a contract of insurance;

(c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or

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

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.

share includes stock.

South Australian Electricity Legislation means:

(a) the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; and

(b) any regulations, as in force from time to time, made under Part 4 of that Act.

The reference in paragraph (a) to the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

South Australian Energy Retail Legislation means:

(a) the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time; and

(b) any regulations, as amended from time to time, made under Part 11 of the National Energy Retail Law.

The reference in paragraph (a) to the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time, includes a reference to any Rules or other instruments, as amended from time to time, made or having effect under that Law.

South Australian Gas Legislation means:

(a) the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time; and

(b) any regulations, as in force from time to time, made under Part 3 of that Act.

The reference in paragraph (a) to the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

SPF 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).

SPF code has the meaning given by section 58CB.

SPF consumer has the meaning given by section 58AH.

SPF EDR scheme, for a regulated sector, means an external dispute resolution scheme authorised under subsection 58DB(1) for the sector.

SPF general regulator has the meaning given by section 58EB.

SPF governance policies, procedures, metrics and targets, for a regulated entity for a regulated sector, means the entity’s:

(a) policies and procedures required under paragraph 58BD(1)(a) for the sector; and

(b) performance metrics and targets required under paragraph 58BD(1)(c) for those policies and procedures.

SPF infringement notice means an infringement notice issued under subsection 58FO(1) or (2).

SPF personal information means:

(a) personal information; or

(b) information relating to a person that may be used (whether alone or in conjunction with other information) to access:

(i) a service or an account; or

(ii) funds, credit or other financial benefits.

SPF principles means the provisions in Subdivisions B to G of Division 2 of Part IVF (about the Scams Prevention Framework).

SPF provisions has the meaning given by section 58AJ.

SPF regulator means:

(a) the SPF general regulator; or

(b) the SPF sector regulator for a regulated sector.

SPF rules means rules made under section 58GE.

SPF sector regulator has the meaning given by section 58ED.

stale, in relation to a notification of an acquisition, has the meaning given by section 51ABG.

State/Territory AER member means an AER member referred to in section 44AP.

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

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

(b) a law of a State or Territory that applies a law mentioned in paragraph (a) as a law of its own jurisdiction;

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

(i) relate to energy; and

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

being those provisions as in force from time to time.

stayed, in relation to an acquisition, has the meaning given by section 51ABE and subsections 51ABZZM(2) and (3).

subject to a condition: for when putting a notified acquisition into effect is subject to a condition, see section 51ABH.

subject to phase 2 review has the meaning given by paragraph 51ABZJ(2)(a).

supply, when used as a verb, includes:

(a) in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and

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

and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.

takeover acquisition, in relation to a takeover bid, means:

(a) an acquisition that results from the acceptance of an offer under the bid; or

(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:

(i) results from an on‑market transaction (within the meaning of that Act); and

(ii) occurs during the bid period.

takeover bid has the same meaning as in the Corporations Act 2001.

target, of an acquisition, has the meaning given by subsection 51ABI(3).

Telstra has the same meaning as in the Telstra Corporation Act 1991.

Territory means the following:

(a) the Australian Capital Territory;

(b) the Jervis Bay Territory;

(c) the Northern Territory;

(d) Norfolk Island;

(e) the Territory of Christmas Island;

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

the Court or the Federal Court means the Federal Court of Australia.

this Act includes Schedule 2 to the extent that it is applied under Subdivision A of Division 2 of Part XI.

trade or commerce means trade or commerce within Australia or between Australia and places outside Australia.

trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution.

Tribunal means the Australian Competition Tribunal, and includes a member of that Tribunal or a Division of that Tribunal performing functions of that Tribunal.

uniform energy law means:

(a) the South Australian Electricity Legislation; or

(b) the South Australian Gas Legislation; or

(c) the Western Australian Gas Legislation; or

(ca) the South Australian Energy Retail Legislation; or

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

(i) relate to energy; and

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

being those provisions as in force from time to time.

vehicle 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.

virtual 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.

voluntary action service provider has the meaning given by subsection 56AMB(2).

Western Australian Gas Legislation means:

(a) the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time; and

(b) any regulations, as in force from time to time, made under Part 3 of that Act.

The reference in paragraph (a) to the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

(2) In this Act:

(a) a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the engaging in of a concerted practice;

(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;

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

(i) refraining (otherwise than inadvertently) from doing that act; or

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

(d) a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.

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

(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

(b) the provision of the contract will not or may not have that effect at a later time.

(4) In this Act:

(a) a reference to the acquisition of shares in the capital of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such shares; and

(b) a reference to the acquisition of assets of a person shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such assets but does not include a reference to an acquisition by way of charge only or an acquisition in the ordinary course of business.

4A Subsidiary, holding and related bodies corporate

(1) For the purposes of this Act, a body corporate shall, subject to subsection (3), be deemed to be a subsidiary of another body corporate if:

(a) that other body corporate:

(i) controls the composition of the board of directors of the first‑mentioned body corporate;

(ii) is in a position to cast, or control the casting of, more than one‑half of the maximum number of votes that might be cast at a general meeting of the first‑mentioned body corporate; or

(iii) holds more than one‑half of the allotted share capital of the first‑mentioned body corporate (excluding any part of that allotted share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

(b) the first‑mentioned body corporate is a subsidiary of any body corporate that is that other body corporate’s subsidiary (including any body corporate that is that other body corporate’s subsidiary by another application or other applications of this paragraph).

(2) For the purposes of subsection (1), the composition of a body corporate’s board of directors shall be deemed to be controlled by another body corporate if that other body corporate, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other body corporate shall be deemed to have power to make such an appointment if:

(a) a person cannot be appointed as a director without the exercise in his or her favour by that other body corporate of such a power; or

(b) a person’s appointment as a director follows necessarily from his or her being a director or other officer of that other body corporate.

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

(a) any shares held or power exercisable by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it;

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

(i) by any person as a nominee for that other body corporate (except where that other body corporate is concerned only in a fiduciary capacity); or

(ii) by, or by a nominee for, a subsidiary of that other body corporate, not being a subsidiary that is concerned only in a fiduciary capacity;

shall be treated as held or exercisable by that other body corporate;

(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first‑mentioned body corporate, or of a trust deed for securing any allotment of such debentures, shall be disregarded; and

(d) any shares held or power exercisable by, or by a nominee for, that other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other body corporate if the ordinary business of that other body corporate or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business.

(4) A reference in this Act to the holding company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary.

(5) Where a body corporate:

(a) is the holding company of another body corporate;

(b) is a subsidiary of another body corporate; or

(c) is a subsidiary of the holding company of another body corporate;

that first‑mentioned body corporate and that other body corporate shall, for the purposes of this Act, be deemed to be related to each other.

(5A) For the purposes of Parts IV, VI and VII and the acquisitions provisions:

(a) a body corporate that is a party to a dual listed company arrangement is taken to be related to the other body corporate that is a party to the arrangement; and

(b) a body corporate that is related to one of the parties to the arrangement is taken to be related to the other party to the arrangement; and

(c) a body corporate that is related to one of the parties to the arrangement is taken to be related to each body corporate that is related to the other party to the arrangement.

(6) In proceedings under this Act, whether in the Court or before the Tribunal or the Commission, it shall be presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.

4B Consumers

(1) For the purposes of this Act, unless the contrary intention appears, a 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.

(2) If it is alleged in:

(a) any proceeding under this Act; or

(b) any other proceeding in respect of a matter arising under this Act;

that a person was a consumer in relation to particular goods or services, it is presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services.

4C Acquisition, supply and re‑supply

In this Act, unless the contrary intention appears:

(a) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods;

(b) a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services;

(c) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both;

(d) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both;

(e) a reference to the re‑supply of goods acquired from a person includes a reference to:

(i) a supply of the goods to another person in an altered form or condition; and

(ii) a supply to another person of goods in which the first‑mentioned goods have been incorporated;

(f) a reference to the re‑supply of services (the original services) acquired from a person (the original supplier) includes a reference to:

(i) a supply of the original services to another person in an altered form or condition; and

(ii) a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.

4E Market

For the purposes of this Act, unless the contrary intention appears, market means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first‑mentioned goods or services.

4F References to purpose or reason

(1) For the purposes of this Act:

(a) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding shall be deemed to have had, or to have, a particular purpose if:

(i) the provision was included in the contract, arrangement or understanding or is to be included in the proposed contract, arrangement or understanding for that purpose or for purposes that included or include that purpose; and

(ii) that purpose was or is a substantial purpose; and

(b) a person shall be deemed to have engaged or to engage in conduct for a particular purpose or a particular reason if:

(i) the person engaged or engages in the conduct for purposes that included or include that purpose or for reasons that included or include that reason, as the case may be; and

(ii) that purpose or reason was or is a substantial purpose or reason.

(2) This section does not apply for the purposes of subsections 45D(1), 45DA(1), 45DB(1), 45E(2) and 45E(3).

4G Lessening of competition to include preventing or hindering competition

For the purposes of this Act, references to the lessening of competition shall be read as including references to preventing or hindering competition.

4H Application of Act in relation to leases and licences of land and buildings

In this Act:

(a) a reference to a contract shall be construed as including a reference to a lease of, or a licence in respect of, land or a building or part of a building and shall be so construed notwithstanding the express references in this Act to such leases or licences;

(b) a reference to making or entering into a contract, in relation to such a lease or licence, shall be read as a reference to granting or taking the lease or licence; and

(c) a reference to a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.

4J Joint ventures

In this Act:

(a) a reference to a joint venture is a reference to an activity in trade or commerce:

(i) carried on jointly by two or more persons, whether or not in partnership; or

(ii) carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate; and

(b) a reference to a contract or arrangement made or understanding arrived at, or to a proposed contract or arrangement to be made or proposed understanding to be arrived at, for the purposes of a joint venture shall, in relation to a joint venture by way of an activity carried on by a body corporate as mentioned in subparagraph (a)(ii), be read as including a reference to the memorandum and articles of association, rules or other document that constitute or constitutes, or are or is to constitute, that body corporate.

4K Loss or damage to include injury

In this Act:

(a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and

(b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.

4KA Definitions etc. that do not apply in Part XI or Schedule 2

Despite any other provision of this Act, sections 4 to 4K do not affect the meaning of any expression used in Part XI or Schedule 2, unless a contrary intention appears.

4L Severability

If the making of a contract after the commencement of this section contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 51ADB, 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.

4M Saving of law relating to restraint of trade and breaches of confidence

(1) This Act does not affect the operation of:

(a) the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Act; or

(b) the law relating to breaches of confidence;

but nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Act.

(2) Paragraph (1)(b) does not apply for the purposes of section 57CD.

4N Extended application of Part IIIA

(1) Part IIIA, and the other provisions of this Act so far as they relate to Part IIIA, extend to services provided by means of facilities that are, or will be, wholly or partly within:

(a) an external Territory; or

(b) the offshore area, within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006, of a State, a Territory or an external Territory.

(3) Nothing in subsection (1) affects the operation of section 15B of the Acts Interpretation Act 1901 in respect of the application of Part IIIA, and of the other provisions of this Act so far as they relate to Part IIIA, in any part of:

(a) the coastal sea of Australia; or

(b) the coastal sea of an external Territory;

that is on the landward side of each of the offshore areas referred to in that subsection.

(4) For the purposes of this section:

service includes proposed service covered by Division 2A of Part IIIA.

5 Extended application of this Act to conduct outside Australia

(1) Each of the following provisions:

(a) Part IV;

(aa) Part IVBA;

(ab) Part IVE;

(b) Part XI;

(ba) Part XICA;

(c) the Australian Consumer Law (other than Part 5‑3);

(f) the remaining provisions of this Act (to the extent to which they relate to any of the provisions covered by paragraph (a), (aa), (ab), (b), (ba) or (c));

(fa) the acquisitions provisions;

extends to the engaging in conduct outside Australia by:

(g) bodies corporate incorporated or carrying on business within Australia; or

(h) Australian citizens; or

(i) persons ordinarily resident within Australia.

(1A) In addition to the extended operation that section 46A has by virtue of subsection (1), that section extends to the engaging in conduct outside Australia by:

(a) New Zealand and New Zealand Crown corporations; or

(b) bodies corporate carrying on business within New Zealand; or

(c) persons ordinarily resident within New Zealand.

(2) In addition to the extended operation that sections 47 and 48, 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.

6 Extended application of this Act to persons who are not corporations

(1) Without prejudice to its effect apart from this section, this Act also has effect as provided by this section.

(2) This Act, other than Parts IIIA, VIIA and X, has, by force of this subsection, the effect it would have if:

(a) any references in this Act other than in section 45DB, or section 33 or 155 of the Australian Consumer Law, to trade or commerce were, by express provision, confined to trade or commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory, between a State and a Territory or between two Territories; or

(iv) by way of the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; and

(b) the following provisions:

(i) sections 45AF, 45AG, 45AJ, 45AK, 45, 45D to 45EB (other than section 45DB), 46 and 46A;

(ia) Part V (other than Division 5);

(ii) Part VIII;

(iii) sections 31 and 43, Division 3 of Part 3‑1, and sections 50, 153, 163, 164 and 168, of the Australian Consumer Law;

were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:

(iv) trade or commerce between Australia and places outside Australia; or

(v) trade or commerce among the States; or

(vi) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

(vii) the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; and

(c) any reference in Division 1 of Part 3‑2 of the Australian Consumer Law to a contract for the supply of goods or services and any reference in Part 3‑5 or 5‑4 of the Australian Consumer Law to the supply of goods or services, were, by express provision, confined to a contract made, or the supply of goods or services, as the case may be:

(i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or

(ii) in the course of, or in relation to, trade or commerce among the States; or

(iii) in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between two Territories; and

(ca) any reference in Part 2‑3 of the Australian Consumer Law to a contract were, by express provision, confined to a contract made:

(i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or

(ii) in the course of, or in relation to, trade or commerce among the States; or

(iii) in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between two Territories; and

(d) in 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

(ea) subsections 45D(3), 45D(4) and 45DA(3) were repealed, the words “In the circumstances specified in subsections (3) and (4)” were omitted from subsection 45D(1) and the words “In the circumstances specified in subsection (3)” were omitted from subsection 45DA(1); and

(eb) the second sentence in subsection 45E(1) were omitted; and

(g) subsection 96(2) were omitted; and

(h) subject to paragraphs (d), (e), (ea), (eb) and (g), a reference in this Act to a corporation, except a reference in section 4, 48, 49, 50, 50A, 77A, 81, 151AE or 151AJ, in an acquisitions provision or in section 229 of the Australian Consumer Law, included a reference to a person not being a corporation.

(2A) So far as subsection (2) relates to 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.

Cartel conduct

(2C) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:

(a) the reference in paragraph 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

(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

(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

(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

(e) the following paragraphs were added at the end of subsection 45AD(2):

“; or (g) goods or services re‑supplied, or likely to be re‑supplied, by corporations or classes of corporations to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or

(h) goods or services likely to be re‑supplied by corporations or classes of corporations to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding.”; and

(f) the reference in subparagraph 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

(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

(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

(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

(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

(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

(l) the reference in paragraph 45AD(4)(e) to paragraph (2)(e) or (f) included a reference to paragraph (2)(g) or (h); and

(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) each reference in the following provisions of this Act:

(i) Division 1 of Part IV (other than section 45AD);

(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;

to a corporation included a reference to a person not being a corporation.

For the purposes of this subsection, likely and production have the same meaning as in Division 1 of Part IV.

(2D) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:

(a) sections 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

(b) each reference in the following provisions of this Act:

(i) Division 1 of Part IV;

(ii) any other provision (other than section 4, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV;

to a corporation included a reference to a person not being a corporation.

(2E) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:

(a) sections 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:

(i) a Territory; or

(ii) a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); and

(b) each reference in the following provisions of this Act:

(i) Division 1 of Part IV;

(ii) any other provision (other than section 4, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV;

to a corporation included a reference to a person not being a corporation.

Acquisitions

(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:

(a) any references in the acquisitions provisions to an acquisition were, by express provision, confined to an acquisition put into effect:

(i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or

(ii) in the course of, or in relation to, trade or commerce among the States; or

(iii) in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between 2 Territories; and

(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.

(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.

(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:

(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

(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.

(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:

(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

(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.

Payment surcharges

(2F) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:

(a) each reference in Part IVC to a payment surcharge were a reference to a payment surcharge charged for processing a payment made by means of a postal, telegraphic, telephonic, or other like service (including electronic communication); and

(b) each reference to a corporation included a reference to a person not being a corporation.

Certain provisions of Australian Consumer Law

(3) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by another subsection of this section, the provisions of Parts 2‑1, 2‑2, 3‑1 (other than Division 3), 3‑3, 3‑4, 4‑1 (other than Division 3), 4‑3, 4‑4 and 5‑3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if:

(a) those provisions (other than sections 33 and 155 of the Australian Consumer Law) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast; and

(b) a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation.

(3A) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by subsection (2), the provisions of Part 2‑3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if:

(a) those provisions were, by express provision, confined in their operation to contracts for or relating to:

(i) the use of postal, telegraphic or telephonic services; or

(ii) radio or television broadcasts; and

(b) a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation.

(4) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by another subsection of this section, the provisions of Parts 2‑2, 3‑1 (other than sections 30 and 33), Part 4‑1 (other than sections 152, 155 and 164) and 5‑3 of the Australian Consumer Law also have, by force of this subsection, the effect they would have if:

(a) those provisions were, by express provision, confined in their operation to engaging in conduct in a Territory; and

(b) a reference in those provisions to a thing done by a corporation in trade or commerce included a reference to a thing done in the course of the promotional activities of a professional person.

(5) In the application of sections 279, 282 and 283 of the Australian Consumer Law in relation to a supplier who is a natural person, those sections have effect as if there were substituted for paragraphs 279(3)(a), 282(2)(a) and 283(5)(a) of the Australian Consumer Law the following paragraph:

“(a) the supplier has died or is an undischarged bankrupt or a person whose affairs are being dealt with under Part X of the Bankruptcy Act 1966; or”.

Offences relating to cartel conduct

(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.

(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.

6AA Application of the Criminal Code

(1) Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2) Despite subsection (1), Part 2.5 of the Criminal Code does not apply to an offence against Part IIIA or XIC, Division 7 of Part XIB, or section 45AF or 45AG.

Part II—The Australian Competition and Consumer Commission

6A Establishment of Commission

(1) The Australian Competition and Consumer Commission is established by this section.

(1AA) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

(a) the Commission is a listed entity; and

(b) the Chairperson is the accountable authority of the Commission; and

(c) the following persons are officials of the Commission:

(i) the Chairperson;

(ii) the other members of the Commission;

(iii) the associate members of the Commission;

(iv) persons engaged under section 27; and

(d) the purposes of the Commission include the functions conferred on the Commission by this Act.

(1A) However, the Commission is taken, for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

(a) to be a non‑corporate Commonwealth entity, and not to be a corporate Commonwealth entity; and

(b) to be a part of the Commonwealth; and

(c) not to be a body corporate.

(2) The Commission:

(a) is a body corporate, with perpetual succession;

(b) shall have an official seal;

(c) may acquire, hold and dispose of real and personal property; and

(d) may sue or be sued in its corporate name.

(3) Any real or personal property held by the Commission is held for and on behalf of the Commonwealth.

(4) Any money received by the Commission is received for and on behalf of the Commonwealth.

(5) To avoid doubt, a right to sue is taken not to be personal property for the purposes of subsection (3).

7 Constitution of Commission

(1) The Commission shall consist of a Chairperson and such number of other members as are from time to time appointed in accordance with this Act.

(2) The members of the Commission shall be appointed by the Governor‑General and shall be so appointed as full‑time members.

(3) Before the Governor‑General appoints a person as a member of the Commission or as Chairperson, the Minister must:

(a) be satisfied that the person qualifies for the appointment because of the person’s knowledge of, or experience in, industry, commerce, economics, law, public administration or consumer protection; and

(b) consider whether the person has knowledge of, or experience in, small business matters; and

(c) if there is at least one fully‑participating jurisdiction—be satisfied that a majority of such jurisdictions support the appointment.

(4) At least one of the members of the Commission must be a person who has knowledge of, or experience in, consumer protection.

Note: 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.

8 Terms and conditions of appointment

(1) Subject to this Part, a member of the Commission holds office for such period, not exceeding 5 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor‑General determines, but is eligible for re‑appointment.

8A Associate members

(1) The Minister may appoint persons to be associate members of the Commission.

(1A) If there is at least one fully‑participating jurisdiction, the Minister must not appoint a person as an associate member unless the Minister is satisfied that a majority of such jurisdictions support the appointment.

(2) An associate member of the Commission shall be appointed for such period not exceeding 5 years as is specified in the instrument of his or her appointment, but is eligible for re‑appointment.

(3) Subject to this Part, an associate member of the Commission holds office on such terms and conditions as the Minister determines.

(4) The Chairperson may, by writing signed by him or her, direct that, for the purposes of the exercise of the powers of the Commission under this Act, 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.

(5) Associate members of the Commission shall be deemed to be members of the Commission for the purposes of section 19.

(6) For the purpose of the determination by the Commission of an application for an 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:

(a) whether he or she should give a direction under subsection (4) of this section; or

(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.

(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.

9 Remuneration

(1) A member of the Commission shall be paid such remuneration as is determined by the Remuneration Tribunal, but, until that remuneration is so determined, he or she shall be paid such remuneration as is prescribed.

(2) Subject to the Remuneration Tribunal Act 1973, a member of the Commission shall be paid such allowances as are prescribed.

(3) In this section, member of the Commission includes an associate member of the Commission.

10 Deputy Chairpersons

(1) The Governor‑General may appoint a person who is, or is to be, a member of the Commission to be a Deputy Chairperson of the Commission.

(1A) If there is at least one fully‑participating jurisdiction, the Governor‑General must not appoint a person as a Deputy Chairperson unless the Governor‑General is satisfied that a majority of such jurisdictions support the appointment.

(1B) Before the Governor‑General appoints a person as a Deputy Chairperson, the Minister must be satisfied that, immediately after the appointment, there will be at least one Deputy Chairperson who has knowledge of, or experience in, small business matters.

(2) A person appointed under this section holds office as Deputy Chairperson until the expiration of his or her period of appointment as a member of the Commission or until he or she sooner ceases to be a member of the Commission.

(3) Where a member of the Commission appointed as Deputy Chairperson is, upon ceasing to be Deputy Chairperson by virtue of the expiration of the period of his or her appointment as a member, re‑appointed as a member, he or she is eligible for re‑appointment as Deputy Chairperson.

(4) A Deputy Chairperson may resign his or her office of Deputy Chairperson by writing signed by him or her and delivered to the Governor‑General.

(5) Not more than 2 persons may hold office as Deputy Chairperson at any one time.

11 Acting Chairperson

(1) Where there is, or is expected to be, a vacancy in the office of Chairperson, the Governor‑General may appoint a person to act as Chairperson until the filling of the vacancy.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

(2) Where the Chairperson is absent from duty or from Australia:

(a) if there are 2 Deputy Chairpersons available to act as Chairperson, the Minister may appoint 1 of them to act as Chairperson during the absence of the Chairperson; or

(b) if there is only 1 Deputy Chairperson available to act as Chairperson, that Deputy Chairperson is to act as Chairperson during the absence of the Chairperson; or

(c) if there are no Deputy Chairpersons or none of the Deputy Chairpersons are available to act as Chairperson, the Minister may appoint a member of the Commission to act as Chairperson during the absence of the Chairperson, but any such appointment ceases to have effect if a person is appointed as a Deputy Chairperson or a Deputy Chairperson becomes available to act as Chairperson.

Note: For rules that apply to persons acting as the Chairperson, see section 33A of the Acts Interpretation Act 1901.

(3) A person acting as Chairperson shall act in that capacity on such terms and conditions as the Governor‑General determines and has all the powers and duties, and shall perform all the functions, conferred on the Chairperson by this Act.

12 Leave of absence

(1) A member of the Commission has such recreation leave entitlements as are determined by the Remuneration Tribunal.

(2) The Minister may grant a member of the Commission leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

13 Termination of appointment of members of the Commission

(1) The Governor‑General may terminate the appointment of a member of the Commission for misbehaviour or physical or mental incapacity.

(2) If a member of the Commission:

(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or

(b) fails to comply with his or her obligations under:

(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

(ii) for the Chairperson—section 17 of this Act; or

(c) without the consent of the Minister engages in any paid employment outside the duties of his or her office; or

(d) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;

the Governor‑General shall terminate the appointment of that member of the Commission.

14 Termination of appointment of associate members of the Commission

(1) The Minister may terminate the appointment of an associate member of the Commission for misbehaviour or physical or mental incapacity.

(2) If an associate member of the Commission:

(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or

(b) fails to comply with his or her obligations under section 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;

the Minister shall terminate the appointment of that associate member of the Commission.

15 Resignation

(1) A member of the Commission may resign his or her office by writing signed by him or her and delivered to the Governor‑General.

(2) An associate member of the Commission may resign his or her office by writing signed by him or her and delivered to the Minister.

16 Arrangement of business

The Chairperson may give directions as to the arrangement of the business of the Commission.

17 Disclosure of interests by Chairperson

(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.

(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).

17A Disclosure of certain interests by members of the Commission when taking part in determinations of matters

(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:

(a) a member of the Commission is taking part, or is to take part, in the determination of a matter; and

(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;

then:

(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

(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.

(2) In this section, member of the Commission includes an associate member of the Commission.

18 Meetings of Commission

(1) Subject to this section, the Chairperson shall convene such meetings of the Commission as he or she thinks necessary for the efficient performance of the functions of the Commission.

(2) Meetings of the Commission shall be held at such places as the Chairperson determines.

(3) The Chairperson shall preside at all meetings of the Commission at which he or she is present.

(4) In the absence of the Chairperson from a meeting of the Commission:

(a) if there are 2 Deputy Chairpersons available to preside at the meeting—the Chairperson may nominate 1 of them to preside at the meeting; or

(b) if there is only 1 Deputy Chairperson available to preside at the meeting—that Deputy Chairperson is to preside at the meeting.

(5) Subject to this Act and the regulations, the member presiding at a meeting of the Commission may give directions regarding the procedure to be followed at or in connexion with the meeting.

(6) At a meeting of the Commission:

(a) three members (including the Chairperson or a Deputy Chairperson) form a quorum;

(b) all questions shall be decided by a majority of votes of the members present and voting; and

(c) the member presiding has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

(7) If the Commission so determines, a member or members may participate in, and form part of a quorum at, a meeting of the Commission or a Division of the Commission by means of any of the following methods of communication:

(a) telephone;

(b) closed circuit television;

(c) another method of communication determined by the Commission.

(8) A determination made by the Commission under subsection (7) may be made in respect of a particular meeting or meetings of the Commission or a Division of the Commission or in respect of all meetings of the Commission or a Division of the Commission.

19 Chairperson may direct Commission to sit in Divisions

(1) The Chairperson may, by writing signed by him or her, direct that the powers of the Commission under this Act, 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.

(2) Without limiting subsection 33(3AB) of the Acts Interpretation Act 1901, a direction may:

(a) specify a particular matter in relation to which the Division is to exercise the powers of the Commission; or

(b) specify a class of matters in relation to which the Division is to exercise the powers of the Commission from time to time.

(2A) The Chairperson may vary or revoke a direction:

(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

(b) otherwise—at any time.

(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.

(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.

(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.

(5) At a meeting of a Division of the Commission at which neither the Chairperson nor a Deputy Chairperson is presiding, a member of the Commission nominated for the purpose by the Chairperson shall preside.

(6) Notwithstanding section 18, at a meeting of a Division of the Commission, two members form a quorum.

(7) A Division of the Commission may exercise powers of the Commission under this Act, 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.

(8) A direction given under subsection (1) is not a legislative instrument.

25 Delegation by Commission

(1) The Commission may, by resolution, delegate to a member of the Commission, either generally or otherwise as provided by the instrument of delegation, any of its powers under this Act (other than Part VIIA or section 152ELA), 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.

Note: Section 95ZD allows the Commission to delegate certain powers under Part VIIA to a member of the Commission.

(2) A power so delegated may be exercised or performed by the delegate in accordance with the instrument of delegation.

(3) A delegation under this section is revocable at will and does not prevent the exercise of a power by the Commission.

26 Delegation by Commission of certain functions and powers

Delegation to staff members of ASIC

(1) The Commission may, by resolution, delegate:

(a) any of its functions and powers under or in relation to Parts VI and XI and the Australian Consumer Law; and

(b) any of its powers under Part XII that relate to those Parts or the Australian Consumer Law;

to a staff member of ASIC.

(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.

Delegations relating to Part IVD or the consumer data rules

(3) The Commission may, by resolution and in accordance with subsection (5), delegate any of its functions and powers under:

(a) Part VI; or

(b) Division 5 of Part XI; or

(c) section 155;

to the extent that the functions or powers relate to Part IVD or the consumer data rules.

Note: Division 5 of Part XI relates to the consumer data rules in the way described in section 56BM.

(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.

(5) A delegation under subsection (3) or (4) of a function or power may be:

(a) to the Information Commissioner; or

(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;

if:

(c) the Information Commissioner agrees to the delegation in writing; and

(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:

(i) is an SES employee or acting SES employee; or

(ii) is holding or performing the duties of a sufficiently senior office or position for the function or power.

27 Staff of Commission

(1) The staff necessary to assist the Commission shall be persons engaged under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the Chairperson of the Commission and the APS employees assisting the Chairperson together constitute a Statutory Agency; and

(b) the Chairperson is the Head of that Statutory Agency.

27A Consultants

(1) On behalf of the Commonwealth, the Commission may engage persons to give advice to, and perform services for, the Commission.

(2) The terms and conditions of engagement are as determined by the Commission.

28 Functions of Commission in relation to dissemination of information, law reform and research

(1) In addition to any other functions conferred on the Commission, the Commission has the following functions:

(a) to make available to persons engaged in trade or commerce and other interested persons general information for their guidance with respect to the carrying out of the functions, or the exercise of the powers, of the Commission under this Act;

(b) to examine critically, and report to the Minister on, the laws in force in Australia relating to the protection of consumers in respect of matters referred to the Commission by the Minister, being matters with respect to which the Parliament has power to make laws;

(c) to conduct research in relation to matters affecting the interests of consumers, being matters with respect to which the Parliament has power to make laws;

(ca) to conduct research and undertake studies on matters that are referred to the Commission by the Council and that relate to the Commission’s other functions;

(d) to make available to the public general information in relation to matters affecting the interests of consumers, being matters with respect to which the Parliament has power to make laws;

(e) to make known for the guidance of consumers the rights and obligations of persons under provisions of laws in force in Australia that are designed to protect the interests of consumers.

(2) Where a matter of a kind mentioned in paragraph (1)(b) is referred by the Minister to the Commission for examination and report:

(a) the Commission shall cause to be published in the Gazette and in any other manner the Commission considers appropriate a notice:

(i) stating that the reference has been made and specifying the matter to which the reference relates; and

(ii) inviting interested persons to furnish to the Commission their views on that matter and specifying the time and manner within which those views are to be furnished;

(b) the Commission shall not furnish its report to the Minister until a reasonable opportunity has been given to interested persons to furnish to the Commission their views on the matter to which the reference relates; and

(c) the Commission shall include in its report to the Minister any recommendations that it considers desirable with respect to the reform of the law relating to the matter to which the reference relates, whether those recommendations relate to the amendment of existing laws or the making of new laws.

(3) The Minister shall cause a copy of each report furnished to him or her by the Commission in relation to a matter referred to the Commission under paragraph (1)(b) to be laid before each House of the Parliament as soon as practicable after the report is received by him or her.

28A Function of Commission in relation to providing resources to the AER

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.

29 Commission to comply with directions of Minister and requirements of the Parliament

(1) The Minister may give the Commission directions connected with the performance of its functions or the exercise of its powers under this Act.

(1A) The Minister must not give directions under subsection (1) relating to:

(a) Part IIIA, IV, IVA, IVBA, IVBB, IVE, VII, VIIA, X, XIB, XIC or XICA; or

(b) Division 3 of Part XI in relation to individual cases.

(1B) The Commission must comply with a direction.

(2) Any direction given to the Commission under subsection (1) shall be in writing and the Minister shall cause a copy of the direction to be published in the Gazette as soon as practicable after the direction is given.

(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.

Part IIA—The National Competition Council

29A Establishment of Council

(1) The National Competition Council is established by this section.

(2) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

(a) the Council is a listed entity; and

(b) the Council President is the accountable authority of the Council; and

(c) the following persons are officials of the Council:

(i) the Council President;

(ii) the other Councillors;

(iii) the staff referred to in subsection 29M(1);

(iv) consultants engaged under section 29N; and

(d) the purposes of the Council include the functions of the Council referred to in section 29B.

29B Functions and powers of Council

(1) The Council’s functions include:

(a) carrying out research into matters referred to the Council by the Minister; and

(b) providing advice on matters referred to the Council by the Minister.

(2) The Council may:

(a) perform any function conferred on it by a law of the Commonwealth, or of a State or Territory; and

(b) exercise any power:

(i) conferred by that law to facilitate the performance of that function; or

(ii) necessary or convenient to permit the performance of that function.

(2A) The Council must not, under subsection (2):

(a) perform a function conferred on it by a law of a State or Territory; or

(b) exercise a power that is so conferred;

unless the conferral of the function or power is in accordance with the National Competition Policy Agreement.

(2B) Subsection (2) does not apply to a State/Territory energy law.

Note: Section 29BA provides that a State/Territory energy law may confer functions or powers, or impose duties, on the Council.

(3) In performing its functions, the Council may co‑operate with a department, body or authority of the Commonwealth, of a State or of a Territory.

29BA Commonwealth consent to conferral of functions etc. on Council

(1) A State/Territory energy law may confer functions or powers, or impose duties, on the Council for the purposes of that law.

Note: Section 29BC sets out when such a law imposes a duty on the Council.

(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a State/Territory energy law to the extent to which:

(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Council; or

(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.

(3) The Council cannot perform a duty or function, or exercise a power, under a State/Territory energy law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

29BB How duty is imposed

Application

(1) This section applies if a State/Territory energy law purports to impose a duty on the Council.

Note: Section 29BC sets out when such a law imposes a duty on the Council.

State or Territory legislative power sufficient to support duty

(2) The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:

(a) imposing the duty is within the legislative powers of the State or Territory concerned; and

(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Council.

Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 29BA to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.

(4) If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.

(5) The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:

(a) is within the legislative powers of the Commonwealth; and

(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Council.

(6) Subsections (1) to (5) do not limit section 29BA.

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

For the purposes of sections 29BA and 29BB, a State/Territory energy law imposes a duty on the Council if:

(a) the law confers a function or power on the Council; and

(b) the circumstances in which the function or power is conferred give rise to an obligation on the Council to perform the function or to exercise the power.

29C Membership of Council

(1) The Council consists of the Council President and up to 4 other Councillors.

(2) Each Councillor is to be appointed by the Governor‑General, for a term of up to 5 years.

(3) The Governor‑General must not appoint a person as a Councillor or Council President unless the Governor‑General is satisfied that:

(a) the person qualifies for the appointment because of the person’s knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration; and

(b) a majority of the States and Territories that are parties to the National Competition Policy Agreement support the appointment.

29D Terms and conditions of office

(1) A Councillor may be appointed to hold office on either a full‑time or a part‑time basis.

(2) A Councillor holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as the Governor‑General determines.

29E Acting Council President

The Minister may appoint a Councillor to act as the Council President:

(a) if there is a vacancy in the office of Council President, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the Council President is absent from duty or absent from Australia or is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

29F Remuneration of Councillors

(1) A Councillor is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of the Remuneration Tribunal is in operation, the Councillor is to be paid the remuneration that is prescribed.

(2) A Councillor is to be paid such allowances as are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

29G Leave of absence

(1) A full‑time Councillor has such recreation leave entitlements as are determined by the Remuneration Tribunal.

(2) The Minister may grant a full‑time Councillor leave of absence, other than recreation leave, on such terms and conditions as the Minister determines. The terms and conditions may include terms and conditions relating to remuneration.

29H Termination of appointment of Councillors

(1) The Governor‑General may terminate the appointment of a Councillor for misbehaviour or for physical or mental incapacity.

(2) The Governor‑General must terminate the appointment of a Councillor who:

(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;

(b) fails to comply with his or her obligations under section 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;

(c) in the case of a full‑time Councillor—engages in any paid employment outside the duties of the Councillor’s office without the consent of the Minister;

(d) in the case of a full‑time Councillor—is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.

29I Resignation of Councillors

A Councillor may resign by giving the Governor‑General a signed resignation notice.

29J Arrangement of Council business

(1) Subject to subsection (2), the Council President may give directions about the arrangement of the Council’s business.

(2) The Council must not carry out any work (other than work relating to a function under Part IIIA) except in accordance with a program agreed to by:

(a) a majority of the parties to the National Competition Policy Agreement; or

(b) if the parties to the Agreement are evenly divided on the question of agreeing to a program—the Commonwealth.

29L Council meetings

(1) The Council President must convene the meetings that the Council President thinks are necessary to perform the Council’s functions efficiently.

(2) The meetings must be held in places determined by the Council President.

(3) The Council President must preside at any meeting that he or she attends.

(4) If the Council President is absent from a meeting, a Councillor chosen by the Councillors at the meeting must preside.

(5) The Councillor presiding at a meeting may give directions on the procedure to be followed in relation to the meeting.

(6) The quorum for a meeting is 3 Councillors (including the Council President).

(7) At a meeting, a question must be decided by a majority of votes of the Councillors present and voting. The Councillor presiding has a deliberative vote, and a casting vote if the deliberative votes are equally divided.

29LA Resolutions without meetings

(1) If all Councillors (other than those that must not sign a document because of subsection (3)) sign a document containing a statement that they are in favour of a resolution in terms set out in the document, then a resolution in those terms is taken to have been passed at a duly constituted meeting of the Council held on the day the document was signed, or, if the members sign the document on different days, on the last of those days.

(2) For the purposes of subsection (1), 2 or more separate documents containing statements in identical terms each of which is signed by one or more Councillors are together taken to constitute one document containing a statement in those terms signed by those Councillors on the respective days on which they signed the separate documents.

(3) A Councillor must not sign a document containing a statement in favour of a resolution if the resolution concerns a matter in which the Councillor has any pecuniary interest, being an interest that could conflict with the proper performance of the Councillor’s functions in relation to any matter.

29M Staff to help Council

(1) The staff needed to help the Council are to be persons engaged under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the Council President and the APS employees assisting the Council President together constitute a Statutory Agency; and

(b) the Council President is the Head of that Statutory Agency.

29N Consultants

(1) On behalf of the Commonwealth, the Council may engage persons to give advice to, and perform services for, the Council.

(2) The terms and conditions of engagement are as determined by the Council.

29O Annual report

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:

(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);

(b) any court or Tribunal decision interpreting:

(i) paragraph (f) of the definition of service in section 44B (which is an exclusion to do with production processes); or

(ii) section 44CA (about declaration criteria for services under Part IIIA);

(c) any matter the Council considers has impeded the operation of Part IIIA from delivering efficient access outcomes;

(d) any evidence of the benefits arising from determinations of the Commission under section 44V (about arbitration determinations under Part IIIA);

(e) any evidence of the costs of, or the disincentives for, investment in the infrastructure by which declared services (within the meaning of Part IIIA) are provided;

(f) any implications for the operation of Part IIIA in the future.

Part III—The Australian Competition Tribunal

30 Constitution of Tribunal

(1) The Trade Practices Tribunal that existed immediately before this subsection commenced continues to exist as the Australian Competition Tribunal.

(2) The Tribunal so continued in existence shall consist of a President and such number of Deputy Presidents and other members as are appointed in accordance with this section.

(3) A member of the Tribunal shall be appointed by the Governor‑General.

31 Qualifications of members of Tribunal

(1) A person shall not be appointed as a presidential member of the Tribunal unless he or she is a Judge of a Federal Court, not being the High Court or a court of an external Territory.

(2) A person shall not be appointed as a member of the Tribunal other than a presidential member unless he or she appears to the Governor‑General to be qualified for appointment by virtue of his or her knowledge of, or experience in, industry, commerce, economics, law or public administration.

31A Appointment of Judge as presidential member of Tribunal not to affect tenure etc.

The appointment of a Judge of a Federal Court as a presidential member of the Tribunal, or service by a Judge of a Federal Court as a presidential member of the Tribunal, whether the appointment was or is made or the service occurred or occurs before or after the commencement of this section, does not affect, and shall be deemed never to have affected, his or her tenure of office as a Judge of a Federal Court or his or her rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge of a Federal Court and, for all purposes, his or her service, whether before or after the commencement of this section, as a presidential member of the Tribunal shall be taken to have been, or to be, service as the holder of his or her office as a Judge of a Federal Court.

32 Terms and conditions of appointment

Subject to this Part, a member of the Tribunal holds office for such period, not exceeding 7 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor‑General determines, but is eligible for re‑appointment.

33 Remuneration and allowances of members of Tribunal

(4) A member of the Tribunal other than a presidential member shall be paid such remuneration as is determined by the Remuneration Tribunal.

(5) A member of the Tribunal other than a presidential member shall be paid such allowances as are prescribed.

(6) Subsections (4) and (5) have effect subject to the Remuneration Tribunal Act 1973.

34 Acting appointments

(1) Where:

(a) the President is, or is expected to be, absent from duty; or

(b) there is, or is expected to be, a vacancy in the office of President;

the Minister may appoint a Deputy President or an acting Deputy President to act as President during the absence, or while there is a vacancy in the office of President, as the case may be.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

(2) Where a presidential member (including the President) of the Tribunal is, or is expected to be, absent from duty, the Governor‑General may appoint a person qualified to be appointed as a presidential member to act as a Deputy President during the absence from duty of the member.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

(3) Where a member of the Tribunal other than a presidential member is, or is expected to be, absent from duty, the Governor‑General may appoint a person qualified to be appointed as a member of the Tribunal other than a presidential member to act as such a member during the absence from duty of the member.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

(4) Where a person has been appointed under subsection (2) or (3), the Governor‑General may, by reason of pending proceedings or other special circumstances, direct, before the absent member of the Tribunal resumes duty, that the person so appointed shall continue to act under the appointment after the resumption of duty by the absent member until the Governor‑General terminates the appointment, but a person shall not continue to act as a member of the Tribunal by virtue of this subsection for more than 12 months after the resumption of duty by the absent member.

(5) Where a person has been appointed under this section to act as a member of the Tribunal during the absence from duty of a member of the Tribunal, and that member ceases to hold office without having resumed duty, the period of appointment of the person so appointed shall be deemed to continue until it is terminated by the Governor‑General, or until the expiration of 12 months from the date on which the absent member ceases to hold office, whichever first happens.

35 Suspension and removal of members of Tribunal

(1) The Governor‑General may suspend a member of the Tribunal from office on the ground of misbehaviour or physical or mental incapacity.

(2) The Minister shall cause a statement of the ground of the suspension to be laid before each House of the Parliament within 7 sitting days of the House after the suspension.

(3) Where such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member of the Tribunal should be restored to office and, if each House so passes a resolution, the Governor‑General shall terminate the suspension.

(4) If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the Governor‑General may remove the member of the Tribunal from office.

(5) If a member of the Tribunal becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, the Governor‑General shall remove him or her from office.

(6) A member of the Tribunal shall not be removed from office except as provided by this section.

(7) A presidential member of the Tribunal ceases to hold office if he or she no longer holds office as a Judge of a Federal Court, not being the High Court or a court of an external Territory.

36 Resignation

A member of the Tribunal may resign his or her office by writing signed by him or her and delivered to the Governor‑General.

37 Constitution of Tribunal for particular matters

For the purpose of hearing and determining proceedings, the Tribunal must be constituted by a Division of the Tribunal consisting of:

(a) in any case—a presidential member of the Tribunal and 2 members of the Tribunal who are not presidential members; or

(b) if the proceedings are proceedings on a review under Division 1A of Part IX—a presidential member of the Tribunal.

38 Validity of determinations

The validity of a determination of the Tribunal shall not be affected or called in question by reason of any defect or irregularity in the constitution of the Tribunal.

39 President may give directions

(1) The President may give directions as to the arrangement of the business of the Tribunal and the constitution of Divisions of the Tribunal.

(2) The President may give directions to the Deputy Presidents in relation to the exercise by the Deputy Presidents of powers with respect to matters of procedure in proceedings before the Tribunal.

Note: Subsection 103(2) provides that any presidential member may exercise powers with respect to matters of procedure in proceedings before the Tribunal.

40 Disclosure of interests by members of Tribunal

(1) Where a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and the member has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the proceedings:

(a) the member shall disclose the interest to the President; and

(b) the member shall not take part, or continue to take part, in the proceedings if:

(i) the President gives a direction under paragraph (2)(a) in relation to the proceedings; or

(ii) all of the persons concerned in the proceedings do not consent to the member taking part in the proceedings.

(2) Where the President becomes aware that a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and that the member has in relation to the proceedings such an interest:

(a) if the President considers that the member should not take part, or should not continue to take part, in the proceedings—the President shall give a direction to the member accordingly; or

(b) in any other case—the President shall cause the interest of the member to be disclosed to the persons concerned in the proceedings.

41 Presidential member to preside

The presidential member who is a member of a Division shall preside at proceedings of that Division.

42 Decision of questions

(1) A question of law arising in a matter before a Division of the Tribunal (including the question whether a particular question is one of law) shall be determined in accordance with the opinion of the presidential member presiding.

(2) Subject to subsection (1), a question arising in proceedings before a Division of the Tribunal shall be determined in accordance with the opinion of a majority of the members constituting the Division.

43 Member of Tribunal ceasing to be available

(1) This section applies where the hearing of any proceedings has been commenced or completed by the Tribunal but, before the matter to which the proceedings relate has been determined, one of the members constituting the Tribunal for the purposes of the proceedings has ceased to be a member of the Tribunal or has ceased to be available for the purposes of the proceedings.

(2) Where the President is satisfied that this section applies in relation to proceedings, the President may direct that a specified member of the Tribunal shall take the place of the member referred to in subsection (1) for the purposes of the proceedings.

(3) Where this section applies in relation to proceedings that were being dealt with before the Tribunal, the President may, instead of giving a direction under subsection (2), direct that the hearing and determination, or the determination, of the proceedings be completed by the Tribunal constituted by the members other than the member referred to in subsection (1).

(4) Where the President has given a direction under subsection (3), he or she may, at any time before the determination of the proceedings, direct that a third member be added to the Tribunal as constituted in accordance with subsection (3).

(5) The Tribunal as constituted in accordance with any of the provisions of this section for the purposes of any proceedings may have regard to any record of the proceedings before the Tribunal as previously constituted.

43A Counsel assisting Tribunal

(1) The President may, on behalf of the Commonwealth, appoint a legal practitioner to assist the Tribunal as counsel, either generally or in relation to a particular matter or matters.

(2) In this section:

legal practitioner means a legal practitioner (however described) of the High Court or of the Supreme Court of a State or Territory.

43B Consultants

The Registrar may, on behalf of the Commonwealth, engage persons as consultants to, or to perform services for, the Tribunal.

44 Staff of Tribunal

(1) There shall be a Registrar of the Tribunal and such Deputy Registrars of the Tribunal as are appointed in accordance with this section.

(2) The Registrar and the Deputy Registrars shall be appointed by the Minister and shall have such duties and functions as are provided by this Act and the regulations and such other duties and functions as the President directs.

(3) The Registrar and the Deputy Registrars, and the staff necessary to assist them, shall be persons engaged under the Public Service Act 1999.

44A Acting appointments

The Minister may appoint a person who is engaged under the Public Service Act 1999 to act as the Registrar or as a Deputy Registrar during any period, or during all periods, when:

(a) the Registrar or that Deputy Registrar, as the case may be, is absent from duty or from Australia or is, for any other reason, unable to perform the duties and functions of his or her office; or

(b) there is a vacancy in the office of Registrar or in that office of Deputy Registrar, as the case may be.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

Part IIIAA—The Australian Energy Regulator (AER)

Division 1—Preliminary

44AB Definitions

In this Part, unless the contrary intention appears:

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

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

(b) a law of a State or Territory that applies a law mentioned in paragraph (a) as a law of its own jurisdiction;

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

(i) relate to energy; and

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

being those provisions as in force from time to time.

Australian Energy Market Agreement means the agreement, as amended from time to time:

(a) that relates to energy; and

(b) that is between the Commonwealth, all of the States, the Australian Capital Territory and the Northern Territory; and

(c) that is first made in 2004; and

(d) that agrees to the establishment of the AER and the AEMC.

full‑time AER member means an AER member appointed on a full‑time basis.

part‑time AER member means an AER member appointed on a part‑time basis.

44AC This Part binds the Crown

This Part binds the Crown in each of its capacities.

44AD Extra‑territorial operation

It is the intention of the Parliament that the operation of this Part should, as far as possible, include operation in relation to the following:

(a) things situated in or outside Australia;

(b) acts, transactions and matters done, entered into or occurring in or outside Australia;

(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of a State, a Territory or a foreign country.

Division 2—Establishment of the AER

44AE Establishment of the AER

(1) The Australian Energy Regulator (the AER) is established by this section.

(1A) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

(a) the AER is a listed entity; and

(b) the AER members are the accountable authority of the AER; and

(c) the following persons are officials of the AER:

(i) the AER members;

(ii) the staff of the AER referred to in section 44AAC;

(iii) persons assisting the AER referred to in section 44AACA;

(iv) consultants engaged under section 44AACB; and

(d) the purposes of the AER include the functions of the AER under Division 3 of this Part.

(2) The AER:

(a) is a body corporate with perpetual succession; and

(b) must have a common seal; and

(c) may acquire, hold and dispose of real and personal property; and

(d) may sue and be sued in its corporate name.

(3) However, the AER is taken, for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

(a) to be a non‑corporate Commonwealth entity, and not to be a corporate Commonwealth entity; and

(b) to be a part of the Commonwealth; and

(c) not to be a body corporate.

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

The AER holds any money or property for and on behalf of the Commonwealth.

44AG Constitution of the AER

The AER consists of:

(a) 2 Commonwealth AER members, appointed in accordance with section 44AM; and

(b) 3 State/Territory AER members, appointed in accordance with section 44AP.

Division 3—Functions and powers of the AER

44AH Commonwealth functions

(1) The AER has any functions:

(a) conferred under a law of the Commonwealth; or

(b) prescribed by regulations made under this Act.

Note: The AER may have functions under the Australian Energy Market Act 2004.

(2) Regulations made for the purposes of paragraph (1)(b) may empower the AER to make legislative instruments.

(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).

(4) Subsection (3) has effect subject to any express provision to the contrary in the regulations.

44AI Commonwealth consent to conferral of functions etc. on AER

General rule

(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.

Note: Section 44AK sets out when such a law or instrument imposes a duty on the AER.

(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an AER State/Territory energy law or local energy instrument to the extent to which:

(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the AER; or

(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.

(3) The AER cannot perform a duty or function, or exercise a power, under 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.

(4) A local energy instrument may confer functions or powers, or impose duties, on the AER only if the instrument is designated for the purposes of this subsection under the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory that made the instrument.

(5) To avoid doubt, if an AER State/Territory energy law is also a local energy instrument, subsection (4) applies to the law.

44AIA No merits review of AER decisions

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.

44AJ How duty is imposed

Application

(1) This section applies if an AER State/Territory energy law or local energy instrument purports to impose a duty on the AER.

Note 1: Section 44AK sets out when such a law or instrument imposes a duty on the AER.

Note 2: Section 320 of the South Australian Energy Retail Legislation, as it applies as a law of a State or Territory, deals with the case where a duty purportedly imposed on a Commonwealth body under that applied law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties.

State or Territory legislative power sufficient to support duty

(2) The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:

(a) imposing the duty is within the legislative powers of the State or Territory concerned; and

(b) imposing the duty by the law or instrument of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.

Note: If this subsection applies, the duty will be taken to be imposed by force of the law or instrument of the State or Territory (the Commonwealth having consented under section 44AI to the imposition of the duty by that law or instrument).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law or instrument of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.

(4) If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.

(5) The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:

(a) is within the legislative powers of the Commonwealth; and

(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.

(6) Subsections (1) to (5) do not limit section 44AI.

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

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:

(a) the law or instrument confers a function or power on the AER; and

(b) the circumstances in which the function or power is conferred give rise to an obligation on the AER to perform the function or to exercise the power.

44AL Powers of the AER

The AER has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

Note: State and Territory laws or instruments may also confer powers on the AER in respect of its functions under those laws or instruments: see section 44AI.

Division 4—Administrative provisions relating to the AER

Subdivision A—Appointment etc. of members

44AM Appointment of Commonwealth AER members

(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.

(2) A Commonwealth AER member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

(3) A person is not eligible for appointment as a Commonwealth AER member unless the person has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration.

44AO Acting appointment of Commonwealth AER member

(1) The Minister may, by written instrument, appoint a person to act as a Commonwealth AER member:

(a) during a vacancy in the office of Commonwealth AER member, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the Commonwealth AER member:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

(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.

44AP Appointment of State/Territory AER members

(1) A State/Territory AER member is to be appointed by the Governor‑General by written instrument, on either a full‑time or part‑time basis.

(2) A State/Territory AER member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

(3) A person is not eligible for appointment as a State/Territory AER member unless the person has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration.

44AQ Acting appointment of State/Territory AER member

(1) The Minister may, by written instrument, appoint a person to act as a State/Territory AER member:

(a) during a vacancy in the office of State/Territory AER member, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the State/Territory AER member:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

(2) A person is not eligible for appointment to act as a State/Territory AER member unless the person has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration.

44AR AER Chair

(1) One of the AER members is to be appointed by the Governor‑General as the AER Chair, by written instrument. The appointment as AER Chair may be made at the same time as the appointment as AER member, or at a later time.

(2) A person is not eligible for appointment as the AER Chair unless the person is a full‑time AER member.

(3) The AER Chair holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

(4) If the AER Chair ceases to be an AER member, then he or she also ceases to be the AER Chair.

Note: A person may cease to be the AER Chair without ceasing to be an AER member.

44ARA AER Deputy Chair

(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.

(2) A person is not eligible for appointment as the AER Deputy Chair unless the person is a full‑time AER member.

(3) The AER Deputy Chair holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

(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.

Note: A person may cease to be the AER Deputy Chair without ceasing to be an AER member.

44ARB AER Deputy Chair to act as the AER Chair

The AER Deputy Chair is to act as the AER Chair:

(a) during a vacancy in the office of the AER Chair, whether or not an appointment has previously been made to the office; or

(b) during all periods when the AER Chair:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: See also subsection 33A(2) of the Acts Interpretation Act 1901.

44AS Acting AER Deputy Chair

(1) The Minister may, by written instrument, appoint an AER member to act as the AER Deputy Chair:

(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

(b) during any period, or during all periods, when the AER Deputy Chair:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

(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.

44AT Remuneration of AER members

(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.

(2) An AER member is to be paid the allowances that are prescribed.

(3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.

44AU Additional remuneration of AER Chair

(1) The AER Chair is to be paid additional remuneration (if any) determined by the Remuneration Tribunal.

(2) The AER Chair is to be paid additional allowances (if any) that are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act 1973 other than subsection 7(11) of that Act.

44AV Leave of absence

(1) A full‑time AER member has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Minister may grant a full‑time AER member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

(3) The AER Chair may grant leave of absence to any part‑time AER member on the terms and conditions that the AER Chair determines.

44AW Other terms and conditions

An AER member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.

44AX Outside employment

(1) A full‑time AER member must not engage in paid employment outside the duties of the member’s office without the Minister’s consent.

(2) A part‑time AER member must not engage in any paid employment that conflicts or could conflict with the proper performance of the member’s duties.

44AY Disclosure of interests

(1) If an AER member has any direct or indirect interest in a matter being considered, or about to be considered, by the AER, being an interest that could conflict with the proper performance of the member’s functions in relation to a matter arising at a meeting of the AER, then the member must as soon as practicable disclose that interest at a meeting of the AER.

(2) The disclosure, and any decision made by the AER in relation to the disclosure, must be recorded in the minutes of the meeting.

(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.

44AZ Resignation

(1) An AER member may resign his or her appointment by giving the Governor‑General a written resignation.

(2) The AER Chair may resign his or her appointment as AER Chair by giving the Governor‑General a written resignation. The resignation does not affect the person’s appointment as an AER member.

(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.

44AAB Termination of appointment

All AER members

(1) The Governor‑General may terminate the appointment of an AER member:

(a) for misbehaviour or physical or mental incapacity; or

(b) if the member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(c) if the member fails, without reasonable excuse, to comply with section 44AY.

Additional grounds: full‑time AER members

(2) The Governor‑General may terminate the appointment of a full‑time AER member if:

(a) the member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(b) the member engages, except with the Minister’s consent, in paid employment outside the duties of his or her office.

Additional grounds: part‑time AER members

(3) The Governor‑General may terminate the appointment of a part‑time AER member if:

(a) the member is absent, except on leave of absence, from 3 consecutive meetings of the AER; or

(b) the member engages in paid employment that conflicts or could conflict with the proper performance of the duties of his or her office.

Subdivision B—Staff of the AER etc.

44AAC Staff of the AER

(1) The staff of the AER must be persons engaged under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the AER Chair and the APS employees assisting the AER Chair together constitute a Statutory Agency; and

(b) the AER Chair is the Head of that Statutory Agency.

44AACA Persons assisting the AER

(1) The AER may be assisted by:

(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

(b) persons whose services are made available under arrangements made under subsection (2).

(2) The AER may, on behalf of the Commonwealth, make an arrangement with the appropriate authority or officer of:

(a) a State or Territory government; or

(b) a State or Territory government authority;

under 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.

(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.

(4) When performing services for the AER under this section, a person is subject to the directions of the AER.

44AACB Consultants

(1) The AER may, on behalf of the Commonwealth, engage persons to give advice to, and perform services for, the AER.

(2) The terms and conditions of engagement are as determined by the AER.

Subdivision C—Meetings of the AER etc.

44AAD Meetings

(1) The AER Chair must convene such meetings of the AER as he or she thinks necessary for the efficient performance of the functions of the AER.

Note: See also section 33B of the Acts Interpretation Act 1901, which contains extra rules about meetings by telephone etc.

(2) Meetings of the AER must be held at such places as the AER Chair determines.

(3) At a meeting of the AER, 3 AER members constitute a quorum. The quorum must include the AER Chair.

(4) Questions arising at a meeting must be determined by a majority of the votes of the members present and voting.

(4A) The AER Chair has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

(5) The AER Chair must preside at all meetings of the AER.

(6) The AER Chair may give directions regarding the procedure to be followed at or in connection with a meeting.

44AAE Resolutions without meetings

(1) If all AER members sign a document containing a statement that they are in favour of a resolution in terms set out in the document, then a resolution in those terms is taken to have been passed at a duly constituted meeting of the AER held on the day the document was signed, or, if the members sign the document on different days, on the last of those days.

(2) For the purposes of subsection (1), 2 or more separate documents containing statements in identical terms each of which is signed by one or more members are together taken to constitute one document containing a statement in those terms signed by those members on the respective days on which they signed the separate documents.

(3) A member must not sign a document containing a statement in favour of a resolution if the resolution concerns a matter in which the member has any direct or indirect interest, being an interest that could conflict with the proper performance of the member’s functions in relation to any matter.

44AAEA Arbitration

(1) Sections 44AAD and 44AAE do not apply to the AER as constituted for an arbitration under:

(a) the National Electricity (Commonwealth) Law (as defined by the Australian Energy Market Act 2004); or

(b) the National Gas (Commonwealth) Law (as defined by the Australian Energy Market Act 2004); or

(c) a provision of an AER State/Territory energy law.

(2) The reference in subsection (1) to an arbitration includes a reference to each of the following:

(a) the making, variation or revocation of an access determination (within the meaning of the law concerned);

(b) the performance of a function, or the exercise of a power, in connection with the making, variation or revocation of an access determination (within the meaning of the law concerned).

Subdivision CA—Divisions of the AER

44AAEB Divisions of the AER—functions and powers under a law of the Commonwealth

Directions

(1) The AER Chair may, by writing, direct that all or any of the AER’s functions and powers:

(a) under this Part or under regulations made under this Act; or

(b) under another law of the Commonwealth;

in 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.

(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.

(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:

(a) revoke the direction; or

(b) amend the direction in relation to the membership of the Division or in any other respect.

If the membership of a Division of the AER is changed, the Division as constituted after the change may complete the determination of the matter.

The AER is taken to consist of the Division

(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.

Meetings

(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.

(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.

(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.

(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.

Functions and powers of the AER

(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.