Competition and Consumer (Price Inquiry—Child Care) Direction 2022

The instrument uses a compact set of legal concepts, many of which are imported from other Acts. Understanding its architecture requires attention to those imports and to the specific matters the Commission must consider.

Key defined terms are imported rather than restated. The term approved child care service is given the meaning in section 194G of the A New Tax System (Family Assistance) (Administration) Act 1999; child care subsidy has the meaning in section 3 of the A New Tax System (Family Assistance) Act 1999; and not-for-profit adopts the Charities Act 2013 meaning (s 4). The Act-specific concepts goods, services, price, supply, inquiry and State or Territory authority are those defined in subsection 95A(1) of the Competition and Consumer Act 2010 (s 4). The Direction therefore sits within a network of statutory definitions that determine what falls inside the inquiry’s subject matter.

The directional duties in section 6 convert policy themes into discrete inquiry tasks. The Commission must take into account providers’ cost items (labour, land and related costs, finance and administration, regulatory compliance, consumables) (s 6(a)(i)-(v)). It must also analyse historical price behaviour since 1 January 2018, with particular attention to price changes after the commencement of the Family Assistance Legislation Amendment (Cheaper Child Care) Act 2022 and other Commonwealth policies aiming to lower child care costs to consumers (s 6(b)(i)-(ii)). The Direction requires differentiation of costs and prices by provider type and size, service type, child characteristics, geography, competition level, and the National Quality Standard rating as at 1 February 2018 (s 6(c)(i)-(vii)). The Commission must consider demand, supply and competition drivers, including supplier reactions to government funding and regulatory settings, and the impacts of COVID‑19 including temporary measures in the Child Care Subsidy Minister’s Rules 2017 (s 6(d)(i)-(ii)). Finally, the Direction calls for assessment of impacts on provider viability, quality and profits, and the effectiveness and impediments of existing price regulation mechanisms (s 6(e)-(f)).

Procedural timing concepts are explicit. The Commission must provide two interim reports to the Treasurer by 30 June 2023 and 30 September 2023 respectively (s 7(a)-(b)). The final report is due, and the inquiry completed, by 31 December 2023 (s 8).

Scope-limiting concepts are also important. The inquiry is limited to approved child care services (s 5(2)); it must not extend to supply by a State or Territory authority (s 5(1)(a)); and it must not be an inquiry into supply by a particular person or persons (s 5(3)). The Direction also circumscribes the Commission’s engagement with other laws and Commonwealth programs, only permitting review where necessary to consider the s 6 matters or where policies relate to competition and consumer protection (s 5(1)(b)-(c)).

Taken together, the main concepts shape a market-wide diagnostic exercise focused on cost drivers, price movements over a five-year window and policy impacts, with specified temporal deliverables and deliberate exclusions.

The instrument’s subject is the market for supplies of approved child care services; its effects differ by legal status, provider type, and institutional role.

Primarily affected in scope are providers of approved child care services as defined under the Family Assistance administrative Act (s 5(2); s 4). The Direction requires the Commission to examine costs and prices for those providers, and to differentiate results by provider type, including commercial and not-for-profit providers (s 6(c)(i)). Providers of various sizes are explicitly contemplated, for example single-centre operators and multi-centre chains (s 6(c)(ii)). Providers offering different service modes are singled out for separate consideration, including centre-based day care, outside school hours care, family day care and in-home care (s 6(c)(iii)). The Direction also requires attention to child-level factors such as the age and characteristics of the child in care (s 6(c)(iv)). Geographical distinctions are mandated: urban, regional and remote differences must be considered (s 6(c)(v)). Market structure measures are also in scope; the Commission must consider the level of competition in the market for child care services (s 6(c)(vi)). Quality, measured by the National Quality Standard overall rating as at 1 February 2018, is required as a differentiator (s 6(c)(vii)).

Not all participants in child care markets are within scope. Supplies by a State or Territory authority are expressly excluded from the inquiry (s 5(1)(a)). The Direction also prevents the inquiry from being held in relation to supply by a particular person or persons, so no named provider, operator or firm may be the specific subject of the inquiry (s 5(3)). Those exclusions mean that state-run providers and any attempt to target a single commercial operator fall outside the inquiry’s remit.

The Commonwealth and its programs are affected only indirectly. The Direction precludes reviewing Commonwealth-funded programs or policies generally, except where those policies relate to competition and consumer protection or are necessary for the s 6 analysis (s 5(1)(c)). The Treasurer is the recipient of the interim and final reports (s 7; s 8), so Commonwealth executive decision-makers are the primary immediate audience for the Commission’s findings.

Other affected parties include regulators whose instruments are invoked as matters to consider, for example agencies administering the National Quality Framework and the maker of the Child Care Subsidy Minister’s Rules 2017, because the Direction requires the Commission to examine impacts of COVID‑19 and temporary measures in those Rules (s 6(d)(ii); s 6(c)(vii)). Entities that compile or hold relevant data,employers’ payroll records, lease and land cost records, finance and administration expense records, billing systems showing price changes since 1 January 2018, and quality rating records as of 1 February 2018,will be functionally affected because the Commission’s inquiry will seek such evidence to satisfy its mandated considerations (s 6(a)-(c)).

Finally, consumers and parents are indirectly affected because the Direction requires analysis of prices and policy impacts since 2018 and the effect of Commonwealth measures aimed at lowering costs to consumers (s 6(b)(ii)). The instrument itself does not create entitlements or liabilities for consumers, but its findings may inform subsequent policy or regulatory action.

The instrument creates duties for the Commission and sets out rights of informational and definitional relevance for those within the inquiry’s scope. It does not impose new statutory duties on providers or consumers directly.

Primary duties established by the Direction are facially on the Commission. Section 5(1) requires the Commission, under subsection 95H(1) of the Act, to hold an inquiry into the market for the supply of child care services. The Commission has a duty to confine that inquiry to approved child care services (s 5(2)) and to ensure the inquiry is not held in relation to the supply of goods and services by a particular person or persons (s 5(3)). The Commission has procedural duties to deliver two interim reports to the Treasurer by specified dates (s 7(a)-(b)) and to complete the inquiry and give a final report to the Treasurer by 31 December 2023 (s 8).

Substantive duties as to the content of the inquiry are in section 6. The Commission is directed to take into consideration a catalogue of specific matters: provider cost components (labour, land, finance, administration, regulatory compliance and consumables) (s 6(a)(i)-(v)); prices charged since 1 January 2018 with attention to price changes following the Family Assistance Legislation Amendment (Cheaper Child Care) Act 2022 and other Commonwealth policies targeting lower costs to consumers (s 6(b)(i)-(ii)); heterogeneity of costs and prices across provider type, size, service type, child characteristics, geography, competition and quality rating as at 1 February 2018 (s 6(c)(i)-(vii)); demand, supply and competitive factors including supplier strategies responding to funding and regulatory settings and COVID‑19 impacts (s 6(d)(i)-(ii)); the impact of these factors on viability, quality and profits (s 6(e)); and the effectiveness and impediments of existing price regulation mechanisms (s 6(f)). These directions are framed as mandatory matters the Commission must take into account while conducting the inquiry.

Rights are implicit rather than explicitly set out in the instrument. Entities whose conduct or documents are relevant to the s 6 matters have a practical right to be considered in a market-wide inquiry, and providers may expect to be able to provide data or submissions to the Commission under the general inquiry process (the Direction itself does not prescribe evidence-gathering powers, but by law the Commission’s inquiry functions normally include consultation and data collection under the Act; however the Direction confines itself to specifying matters to consider and does not create new coercive powers) (s 5; s 6). The Direction also protects certain categories by exclusion: a State or Territory authority’s supply is not to be the subject of the inquiry (s 5(1)(a)), and the inquiry must not be directed at particular named persons (s 5(3)). Those exclusions function as rights of non-inquiry for those entities.

Procedural timing rights and duties are clear: the Treasurer is to receive the interim and final reports by fixed dates, creating an expectation that the Commission will meet those deadlines (s 7; s 8). The Direction does not itself give private parties enforcement rights against the Commission or the Commonwealth; it simply imposes a directive to the Commission with a reporting obligation to the Treasurer.

In sum, the instrument imposes duties on the Commission to perform a scoped, time-bound inquiry addressing prescribed substantive matters about costs, prices, competition and regulatory effects, while establishing limited protections for State or Territory suppliers and for targeting of particular persons.

The Direction itself does not create penalties, enforcement mechanisms or private rights of action. It is an administrative direction that instructs the Commission how to conduct an inquiry under the Competition and Consumer Act 2010 and sets reporting deadlines. The instrument does not amend civil or criminal liability for providers, nor does it create sanctioning powers beyond what the Act otherwise provides.

Enforcement in this context operates through compliance with the Direction by the Commission and through whatever investigative and information-gathering powers are provided by the Act for inquiries under sections 95H, 95J and 95K, as those sections are referenced in the Direction (s 5; s 8). The Direction itself references those parts of the Act to place the inquiry within the statutory inquiry regime, but it does not reproduce the Act’s statutory enforcement tools inside the Direction. The instrument does not specify mechanisms for compelling production of documents, examining witnesses, or imposing penalties for non-cooperation; such measures, if available, must be located in the Act rather than in this Direction. The Direction’s text therefore leaves open whether and how the Commission will exercise statutory powers during the inquiry; it simply dictates the scope and matters to be considered and fixes reporting timetables (s 6; s 7; s 8).

For affected parties, the practical enforcement consequence is that the Commission is obliged to produce the two interim reports and a final report to the Treasurer by the dates specified (s 7; s 8). Failure by the Commission to meet those deadlines would be a failure to comply with the Direction, but the instrument does not itself stipulate sanctions for such failure. Any remedy for non-compliance by the Commission would derive from administrative law principles and the statutory framework under the Act or other applicable legislation, not from the Direction’s text.

Because the Direction explicitly excludes inquiries into State or Territory authority supplies (s 5(1)(a)) and excludes inquiry into the operation of other Australian laws unless necessary to consider the s 6 matters (s 5(1)(b)), there is an enforcement dimension in scope control: the Commission must not exceed those limits. That constraint poses an accountability point; again, the Direction does not specify sanctions, but scope breaches could be subject to administrative review or challenge under general administrative law principles outside the Direction. The Direction does not create any penalties that apply to providers, consumers or other private parties.

The Direction deliberately sits within a network of other statutes by reference and exclusion. It imports multiple definitions from other Acts, limits its review of other laws, and requires attention to measures enacted under other legislation.

Definitions are directly cross-referenced. The meanings of approved child care service and child care subsidy are taken from the Family Assistance Acts (A New Tax System (Family Assistance) (Administration) Act 1999 and A New Tax System (Family Assistance) Act 1999 respectively) (s 4). The instrument also adopts the Charities Act 2013 definition of not-for-profit for differentiation in the inquiry (s 4). Fundamental competition law terms such as goods, services, price, supply, inquiry and State or Territory authority are those in subsection 95A(1) of the Competition and Consumer Act 2010 (s 4). The Direction is made under the Competition and Consumer Act 2010 (s 3) and expressly references the Commission’s inquiry powers under ss 95H, 95J and 95K of the Act in directing the Commission to hold and complete the inquiry (s 5; s 8).

Scope constraints affect interaction with State and Commonwealth instruments. The Direction excludes the supply of goods or services by a State or Territory authority from the inquiry (s 5(1)(a)), so Commonwealth-level inquiry work will not encompass state-run providers. The Direction also bars general review of other Australian laws relating to approved child care services unless necessary to consider the specified s 6 matters (s 5(1)(b)). Likewise, it excludes general review of Commonwealth-funded programs or policies except where those policies concern competition and consumer protection or are necessary for the s 6 analysis (s 5(1)(c)). Those exclusions limit the inquiry’s reach into potentially overlapping regulatory regimes handled by other statutes.

The Direction requires the Commission to consider effects of specific legislative and regulatory changes. It directs attention to price changes following the commencement of the Family Assistance Legislation Amendment (Cheaper Child Care) Act 2022 (s 6(b)(i)); it also requires consideration of price changes attributable to Commonwealth policies aiming to lower consumer costs (s 6(b)(ii)). The instrument further mandates evaluation of the impacts of COVID‑19, including temporary coronavirus response measures contained in the Child Care Subsidy Minister’s Rules 2017 (s 6(d)(ii)). The Direction therefore intersects with the Family Assistance legislative regime and with executive instruments made under that regime, and it compels the Commission to assess how these measures altered provider costs, prices and market behaviour.

Quality assessment is anchored to the National Quality Framework. The Direction requires differentiation by overall quality rating as assessed against the National Quality Standard as at 1 February 2018, as published by the Australian Children’s Education and Care Quality Authority (s 6(c)(vii)). The Direction’s engagement with the National Quality Framework embeds a relationship with that framework’s legal and administrative architecture.

Finally, the Direction tasks the Commission with assessing the impact and effectiveness of existing price regulation mechanisms and any impediments inherent in those mechanisms to effective operation (s 6(f)). That task requires the Commission to map the interaction between price regulation instruments,where they exist,and competition law, consumer protection obligations and other sector-specific regulatory settings; however, the Direction limits the legal review of other Australian laws to what is necessary to consider these matters (s 5(1)(b)). The Direction therefore establishes a focused interaction with multiple legal regimes through a combination of definitional imports, mandated subject-matter inquiry and express exclusions.

The Direction as provided contains no amendment history in its text. It is titled the Competition and Consumer (Price Inquiry,Child Care) Direction 2022 (s 1) and states it is made under the Competition and Consumer Act 2010 (s 3), but it does not include schedules, transitional provisions, repeals or a record of prior versions or amendments. There are no provisions within the instrument that indicate it is amending an earlier Direction nor that it has been amended since its making.

Because the Direction imports definitions and references from other statutes, changes to those external instruments could effectively change how the Direction operates without the Direction itself being amended. For example, approved child care service and child care subsidy are defined in Family Assistance legislation and not in the Direction (s 4). Any legislative amendment to those Acts that alters those definitions would change the scope of the Direction by operation of that external statutory change, since the Direction expressly adopts those external definitions (s 4). Similarly, the Direction relies on the definitions in subsection 95A(1) of the Competition and Consumer Act 2010 for core terms such as goods, services, price, supply, inquiry and State or Territory authority (s 4). Amendments to subsection 95A(1) of the Act would therefore affect the meaning of those terms within the Direction.

The Direction also names a specific external legislative development, the Family Assistance Legislation Amendment (Cheaper Child Care) Act 2022, and requires the Commission to analyse price changes following its commencement (s 6(b)(i)). If that external Act were to be subsequently amended or repealed, the Commission’s retrospective consideration of price changes associated with its commencement would remain a fixed historical inquiry point because the Direction specifies price changes since 1 January 2018 and particular attention to the price changes following commencement. The Direction does not, however, provide for dynamic adjustment of its timelines or considerations in response to subsequent legislative change.

In the absence of amendment records inside the instrument, any change to the Direction would require formal amendment under the Act and appropriate legislative or executive processes consistent with the statutory power used to make the Direction (s 3). The instrument itself contains no mechanism for self-amendment, sunset, or extension; it fixes reporting dates and a completion date which are temporal limits on the Commission’s task (s 7; s 8).

The Direction itself contains no litigation history. It does not record any judicial or tribunal decisions, challenges, or precedent concerning its validity, interpretation or implementation. The instrument is a short administrative direction setting the scope and timing for an inquiry and does not purport to summarise legal disputes or judicial review outcomes.

Although the Direction references statutory inquiry powers under the Competition and Consumer Act 2010 by citing subsections 95H, 95J and 95K in connection with the Commission’s tasking (s 5; s 8), it does not include any discussion or annotation of litigation concerning those provisions. The source text contains no list of cases, no mention of prior or concurrent legal proceedings, and no record of judicial consideration of the Direction itself.

Because the Direction relies on definitions and instruments from other statutes, litigation touching the interpretation of those external provisions could be relevant to the inquiry’s execution. For example, interpretations of what constitutes an approved child care service under the Family Assistance Acts, or of the definitions in subsection 95A(1) of the Competition and Consumer Act 2010, may be contested in other proceedings; the Direction does not identify any such cases. Likewise, legal disputes about the scope of the Commission’s inquiry powers under the Act are not recorded in the instrument.

The Direction’s exclusions,particularly the bar on inquiring into supplies by a State or Territory authority and the prohibition on holding the inquiry in relation to the supply by a particular person or persons (s 5(1)(a); s 5(3)),are concrete scope limitations. If there were to be litigation about compliance with those scope limits, that litigation is not reflected in the Direction’s text. The instrument itself does not create or note any right of private enforcement or challenge specific to its terms; any legal challenge to the Commission’s conduct in carrying out the Direction would proceed under general administrative or statutory review mechanisms rather than under any bespoke remedy found in the Direction.

In short, the instrument records no litigation history and contains no internal legal annotations regarding judicial response; any litigation relevant to the Direction must be sought in external records or legal databases, which are not part of the instrument’s text.

The instrument contains several specific drafting choices that create potential practical pitfalls for practitioners and stakeholders. These are not judgments about policy; they are pointers to features that materially affect scope, evidence requirements and interpretation.

1. Scope is defined by cross-reference not by restatement. The Direction limits the inquiry to approved child care services but does not define that term itself; it imports the definition from section 194G of the A New Tax System (Family Assistance) (Administration) Act 1999 (s 5(2); s 4). Parties may assume the inquiry covers all forms of child care commonly thought of as child care; whether a particular service falls within the Direction depends on the technical statutory definition in the Family Assistance legislation. That importation of an external definition is a precision point counsel and compliance officers must not overlook.

2. Temporal benchmarks are fixed and specific. The Commission must consider prices charged since 1 January 2018 (s 6(b)). Quality differentiation must use the overall National Quality Standard rating as at 1 February 2018 (s 6(c)(vii)). Those benchmark dates are precise; data requests or submissions keyed to other dates will not directly address what the Direction mandates. Practitioners should note that the inquiry’s historical window therefore spans a pre- and post-policy environment, including the Family Assistance Legislation Amendment (Cheaper Child Care) Act 2022 (s 6(b)(i)) and COVID‑19 impacts (s 6(d)(ii)).

3. Exclusions constrain review of laws and programs. The Direction expressly disallows the Commission from reviewing the operation of other Australian laws relating to approved child care services except as necessary to consider the s 6 matters (s 5(1)(b)); likewise, Commonwealth-funded programs and policies are excluded except where they relate to competition and consumer protection or are necessary for the s 6 analysis (s 5(1)(c)). This means attempts to use the inquiry as a vehicle for broad legal reform analysis or for scrutinising Commonwealth program administration beyond competition or consumer protection may be out of scope.

4. State or Territory supply is carved out. Supplies by a State or Territory authority are not to be included (s 5(1)(a)). Providers operated by state agencies, or services otherwise classified as State/Territory authority supplies under subsection 95A(1) of the Act, will fall outside the inquiry. In multi-provider markets, this carve-out can complicate comparisons that mix public and private suppliers; where a provider straddles corporate and public law structures, careful legal classification is required.

5. No targeting of particular persons. The Direction forbids holding the inquiry in relation to supply by a particular person or persons (s 5(3)). That prevents the Commission from naming and targeting individual providers. Interested parties cannot force the inquiry to focus on a single operator but can provide evidence relevant to market-wide analysis.

6. The Direction demands granular heterogeneity analysis. The Commission must examine cost and price variation by provider type, size, service type, child age/characteristics, geography, competition level and an historical quality rating (s 6(c)). That multi-dimensional requirement implies data requests will need to be segmented and comparable across categories. Providers who cannot disaggregate historical data to these categories may find their submissions less informative to the Commission’s mandated tasks.

7. Regulatory compliance costs are a required topic. The Direction explicitly lists regulatory compliance costs as a cost category the Commission must take into account (s 6(a)(iv)). Providers should not assume the inquiry will focus only on headline price movements; the Commission is required to examine the structure and quantum of compliance-related costs.

8. The Direction links to external policy measures by name. The instrument requires analysis of price changes following the commencement of the Family Assistance Legislation Amendment (Cheaper Child Care) Act 2022 (s 6(b)(i)), and of temporary COVID‑19 response measures contained in the Child Care Subsidy Minister’s Rules 2017 (s 6(d)(ii)). Parties that wish to show causation between policy change and prices should be prepared to produce time-stamped pricing and operational data covering the relevant dates.

9. No explicit evidence-gathering powers in the Direction. The Direction does not state how the Commission will obtain the necessary data or whether statutory information-gathering powers under the Act will be used. That uncertainty can create friction in practice, as providers are left to determine how and when to supply data absent an express summons provision within the Direction.

10. Reporting deadlines are short and fixed. The Commission must deliver two interim reports by 30 June 2023 and 30 September 2023, and a final report by 31 December 2023 (s 7; s 8). Those fixed dates imply tight timelines for data collection and response. Providers and stakeholders should expect compressed consultation windows and prepare to respond promptly to information requests.

These are concrete drafting features and operational constraints embedded in the instrument. Each of these points alters how a practitioner should prepare for engagement with the inquiry and how providers should assemble evidence.

The Direction imposes no direct statutory compliance duties on providers; it requires the Commission to conduct an inquiry and to take specified matters into account (s 5; s 6). Nevertheless, providers, industry groups, state agencies and other stakeholders who intend to engage with the inquiry should prepare along the following practical lines, all grounded in the Direction’s requirements.

1. Confirm statutory status. Determine whether your service is an approved child care service under section 194G of the A New Tax System (Family Assistance) (Administration) Act 1999, because the inquiry is limited to such services (s 5(2); s 4). If you operate mixed services, identify which offerings meet the statutory threshold.

2. Assemble price history from 1 January 2018. The Commission must consider prices charged since 1 January 2018 and price changes following the commencement of the Family Assistance Legislation Amendment (Cheaper Child Care) Act 2022 and other Commonwealth policies aimed at lowering child care costs (s 6(b)). Produce time-stamped records of fees, fee schedules, and any co-payments or additional charges for the entire period. Clearly mark the dates of any price changes and the reasons recorded in your governance or management documents.

3. Break down costs by mandated categories. The Direction requires analysis of provider costs including labour, land and related costs, finance and administration, regulatory compliance and consumables (s 6(a)(i)-(v)). Prepare audited or management-account reconciliations that attribute costs to these categories over time, and document any structural shifts (for example, wage awards, lease renewals, insurance changes).

4. Segment data by the dimensions the Direction requires. The Commission is directed to consider how costs and prices differ by provider type (e.g. commercial v not-for-profit), provider size, service type, child age and characteristics, geographic location, competition level and quality rating as at 1 February 2018 (s 6(c)(i)-(vii)). Provide disaggregated datasets that align with these categories: separate records for different centres, explicit tagging by service mode (centre-based, outside school hours, family day care, in-home care), geographic identifiers, and the National Quality Standard rating as at 1 February 2018 for each centre.

5. Document responses to government funding and regulatory settings. The Commission must consider supplier practices and strategies in response to funding arrangements and regulations (s 6(d)(i)). Keep minutes, board papers and operational plans that show how funding changes, subsidy changes or regulatory adjustments influenced decisions on pricing, staffing, opening hours, capacity management and service mix.

6. Record COVID‑19 impacts and temporary measures. The Direction specifically asks the Commission to consider COVID‑19 impacts including temporary coronavirus response measures in the Child Care Subsidy Minister’s Rules 2017 (s 6(d)(ii)). Assemble documentation showing changes in utilisation, revenue, workforce availability, costs of health-related consumables, and any temporary government payments or policy interactions during the pandemic period.

7. Compile evidence on quality and outcomes. Because the Direction requires differentiation by National Quality Standard rating as at 1 February 2018, gather accreditation records, inspection reports and any internal quality assessments that relate to that date (s 6(c)(vii)). If quality improvements or regressions occurred after that date, provide contextual evidence.

8. Prepare profit and viability evidence. The Commission is directed to consider impacts on provider viability, quality and profits (s 6(e)). Prepare historical profit-and-loss statements, balance sheets and cashflow statements, and explain one-off items, capital expenditure and extraordinary items that affect profitability. Document any measures taken to preserve viability, such as restructures, closures, or mergers.

9. Describe and analyse price regulation mechanisms. The Direction calls for assessment of the effectiveness and any impediments inherent in existing price regulation mechanisms (s 6(f)). Map any price regulation or subsidy-contingent pricing applicable to your operations, including contractual arrangements with government, capped-fee schemes, or directives linking subsidies to pricing practices. Provide evidence on how those mechanisms operate in practice.

10. Be ready for segmented queries and tight timelines. The Direction fixes interim and final reporting dates (s 7; s 8). Expect the Commission to seek submissions and data that are time-sensitive. Have governance approvals in place to allow rapid disclosure of information, and prepare non-confidential summaries if commercial confidentiality is a concern.

11. Consider engagement through industry groups. The Direction requires market-wide analysis not person-specific inquiry (s 5(3)). Industry associations, not-for-profits and peak bodies may provide context and aggregated data that benchmark individual submissions, while protecting commercially sensitive information.

12. Clarify public sector boundaries. If your service is part of a state-run entity or a cooperative arrangement with a State or Territory authority, check whether that supply is excluded as a State or Territory authority supply under subsection 95A(1) of the Act and s 5(1)(a) of the Direction. If there is a legal question about classification, document your governance and ownership structure clearly.

13. Legal and confidentiality considerations. The Direction does not itself set out coercive information-gathering powers. If the Commission seeks documentation, clarify the legal basis and any confidentiality protections. Seek advice on how to provide aggregated or redacted data that still meets the Direction’s requirement for disaggregated analysis by the categories listed in s 6(c).

In practice, compliance here means being ready to supply the types of segmented, time-series, and corroborated evidence the Direction requires the Commission to analyse. The Direction creates obligations only for the Commission; providers comply by assisting the inquiry with accurate, appropriately segmented data that aligns to the Direction’s analytical categories (s 6).