This Act reworks Australia’s competition law: it inserts an explicit object to promote welfare through competition and consumer protection, broadens substantive competition rules to cover services, creates a national Competition Code for States/Territories, sets up an access-to‑services regime for major facilities, and reorganises institutions (ACCC, Competition Tribunal, National Competition Council). It also binds government businesses when they trade and adds registers, arbitration and enforcement machinery.
It affects competing firms, infrastructure providers, entrants seeking access, and governments. It matters because it centralises decision‑making, enables compulsory access and dispute resolution, and shifts compliance and litigation costs onto affected businesses while aiming to lower barriers for entrants.
The Competition Policy Reform Act 1995 is not a standalone code but a comprehensive amending statute that rewrites large portions of the Trade Practices Act 1974 (the Principal Act). Its core substantive effect is threefold.
First, it establishes institutional machinery. Part 3 of the 1995 Act replaces the Trade Practices Commission and Trade Practices Tribunal with the Australian Competition and Consumer Commission (new s 6A and amended s 7) and renames the Tribunal the Australian Competition Tribunal. It simultaneously creates the National Competition Council as a separate advisory body (new Part IIA, ss 29A–29O). The Council’s functions expressly include research, advice to the Minister, and recommendations on declaration of services under the new access regime (s 29B).
Second, the Act introduces a national access regime for essential infrastructure. New Part IIIA (inserted by s 59) creates a multi-stage process. A person may request the Council to recommend that a service be declared (s 44F). The Council cannot recommend declaration unless satisfied of six cumulative criteria, including that access would promote competition in a dependent market, the facility is uneconomic to duplicate, it is of national significance, and access is not already the subject of an effective access regime (s 44G(2)). The designated Minister then decides (s 44H), with merits review by the Tribunal (ss 44K, 44L). Once declared, access disputes are arbitrated by the Commission (ss 44S–44V), subject to strict limits (s 44W) and mandatory considerations (s 44X). Registered contracts, undertakings for non-declared services, and prohibitions on hindering access complete the regime (Divisions 4–7).
Third, the Act implements uniform competition rules through the Competition Code. New Part XIA (inserted by s 26) defines the Code as the Schedule version of Part IV plus associated provisions (s 150C). Participating jurisdictions apply the Code as law of their jurisdiction (s 150A). Federal Court jurisdiction is conferred, cross-vesting preserved, and double jeopardy prevented (ss 150D–150H). Authorisations and notifications under the federal Act can cover Code conduct (s 150J). The Minister may gazette jurisdictions that have modified the Code excessively (s 150K).
Current sections
Direct links to the current provisions in Competition Policy Reform Act 1995.
18
Part 1
PRELIMINARY
PART 1—PRELIMINARY
Short title etc.
Commencement
Part 2
AMENDMENTS COMMENCING AT THE FIRST COMMENCEMENT TIME
PART 2—AMENDMENTS COMMENCING AT THE FIRST COMMENCEMENT TIME
Insertion of new section:
Object of this Act
Interpretation
Acquisition, supply and re-supply
Extended application of Parts IV, IVA and V
Associate members
Insertion of new sections:
43A. Counsel assisting Tribunal
43B. Consultants
Contracts, arrangements or understandings that restrict dealings or affect competition
Contracts, arrangements or understandings in relation to prices
Covenants affecting competition
Covenants in relation to prices
Exclusive dealing
Price discrimination
Exceptions
Power of Commission to grant authorisations
Determination of applications for authorisations
Notification of exclusive dealing
Commission to afford opportunity for conference before giving notice in relation to exclusive dealing
Register of notifications
Insertion of new section:
96A. Resale price maintenance in relation to services
Application for review of notice under subsection 93(3) or (3A)
Functions and powers of Tribunal
Regulations as to certain matters
Participants in proceedings before Tribunal
Insertion of new Part:
PART XIA—THE COMPETITION CODE
150A. Definitions
150B. Objects of this Part
150C. The Competition Code
150D. Federal Court may exercise jurisdiction under application laws
150E. Exercise of jurisdiction under cross-vesting provisions
150F. Application laws may confer functions on Commonwealth authorities and officers
150G. Application laws may operate concurrently with this Act
150H. No doubling-up of liabilities
150I. References in instruments to the Competition Code
150J. Authorisations etc. under this Act may relate also to Competition Code
150K. Gazettal of jurisdictions that excessively modify the Code
Power to obtain information, documents and evidence
Protection of members of Tribunal, counsel and witnesses
Annual report by Commission
Regulations
Addition of Schedule
Other amendments
Transitional rule for changes to section 51 exceptions
Existing contracts not affected by amendments
Part 3
AMENDMENTS COMMENCING AT THE SECOND COMMENCEMENT TIME
PART 3—AMENDMENTS COMMENCING AT THE SECOND COMMENCEMENT TIME
Application of Act to Commonwealth and Commonwealth authorities
Interpretation
Extended application of Parts IV, IVA and V
Heading to Part II
Establishment of Commission
Constitution of Commission
Terms and conditions of appointment
Associate members
Deputy Chairperson
Acting Chairperson
Termination of appointment of members of the Commission
Arrangement of business
Disclosure of interests by members
Meetings of Commission
Chairperson may direct Commission to sit in Divisions
Insertion of new section:
Part XI of the Audit Act not to apply to Commission
Staff of Commission
Insertion of new section:
27A. Consultants
Functions of Commission in relation to dissemination of information, law reform and research
Commission to comply with directions of Minister and requirements of the Parliament
Insertion of new Part:
PART IIA—THE NATIONAL COMPETITION COUNCIL
29A. Establishment of Council
29B. Functions and powers of Council
29C. Membership of Council
29D. Terms and conditions of office
29E. Acting Council President
29F. Remuneration of Councillors
29G. Leave of absence
29H. Termination of appointment of Councillors
29I. Resignation of Councillors
29J. Arrangement of Council business
29K. Disclosure of interests by Councillors
29L. Council meetings
29M. Staff to help Council
29N. Consultants
Annual report
Heading to Part III
Constitution of Tribunal
Staff of Tribunal
Insertion of new Part:
PART IIIA—ACCESS TO SERVICES
Div 1
Preliminary
Division 1—Preliminary
44B. Definitions
44C. How this Part applies to partnerships and joint ventures
44D. Meaning of "designated Minister"
44E. This Part binds the Crown
Div 2
Declared services
Division 2—Declared services
Subdivision A—Recommendation by the Council
44F. Person may request recommendation
44G. Limits on the Council recommending declaration of a service
Subdivision B—Declaration by the designated Minister
44H. Designated Minister may declare a service
44I. Duration and effect of declaration
44J. Revocation of declaration
44K. Review of declaration
44L. Review of decision not to revoke a declaration
Subdivision C—Miscellaneous
44M. Recommendation for a Ministerial decision on effectiveness of access regime
44N. Ministerial decision on effectiveness of access regime
Review of Ministerial decision on effectiveness of access regime
44P. State or Territory ceasing to be a party to Competition Principles Agreement
44Q. Register of decisions and declarations
Div 3
Access to declared services
Division 3—Access to declared services
Subdivision A—Scope of Division
44R. Constitutional limits on operation of this Division
Subdivision B—Notification of access disputes
44S. Notification of access disputes
44T. Withdrawal of notifications
Subdivision C—Arbitration of access disputes
44U. Parties to the arbitration
44V. Determination by Commission
44W. Restrictions on access determinations
44X. Matters that the Commission must take into account
44Y. Commission may terminate arbitration in certain cases
Subdivision D—Procedure in arbitrations
44Z. Constitution of Commission for conduct of arbitration
44ZA. Member of the Commission presiding at an arbitration
44ZB. Reconstitution of Commission
44ZC. Determination of questions
44ZD. Hearing to be in private
44ZE. Right to representation
44ZF. Procedure of Commission
44ZG. Particular powers of Commission
44ZH. Power to take evidence on oath or affirmation
44ZI. Failing to attend as a witness
44ZJ. Failing to answer questions etc.
44ZK. Intimidation etc.
44ZL. Party may request Commission to treat material as confidential
44ZM. Sections 18 and 19 do not apply to the Commission in an arbitration
44ZN. Parties to pay costs of an arbitration
Subdivision E—Effect of determinations
44ZO. Operation of determinations
Subdivision F—Review of determinations
44ZP. Review by Tribunal
44ZQ. Provisions that do not apply in relation to a Tribunal review
44ZR. Appeals to Federal Court from determinations of the Tribunal
44ZS. Operation and implementation of a determination that is subject to appeal
44ZT. Transmission of documents
Subdivision G—Variation of determinations
44ZU. Variation of determinations
Div 4
Registered contracts for access to declared services
Division 4—Registered contracts for access to declared services
44ZV. Constitutional limits on operation of this Division
44ZW. Registration of contract
44ZX. Review of decision not to register contract
44ZY. Effect of registration of contract
Div 5
Hindering access to declared services
Division 5—Hindering access to declared services
44ZZ. Prohibition on hindering access to declared services
Div 6
Access undertakings for non-declared services
Division 6—Access undertakings for non-declared services
44ZZA. Access undertakings by providers
44ZZB. Undertakings cannot be accepted in certain cases
44ZZC. Register of access undertakings
Div 7
Enforcement and remedies
Division 7—Enforcement and remedies
44ZZD. Enforcement of determinations
44ZZE. Enforcement of prohibition on hindering access
44ZZF. Consent injunctions
44ZZG. Interim injunctions
44ZZH. Factors relevant to granting a restraining injunction
44ZZI. Factors relevant to granting a mandatory injunction
44ZZJ. Enforcement of access undertakings
44ZZK. Discharge or variation of injunction or other order
Div 8
Miscellaneous
Division 8—Miscellaneous
44ZZL. Register of determinations
44ZZM. Commission may perform functions under other access regimes
44ZZN. Compensation for acquisition of property
44ZZO. Conduct by directors, servants or agents
44ZZP. Regulations about review by the Tribunal
44ZZQ. Regulations about fees for inspection etc. of registers
Opportunity for conference to be afforded before certain powers exercised
Civil action for recovery of pecuniary penalties
Injunctions
Divestiture
Commission to afford opportunity for conference before determining application for authorisation
Notification of exclusive dealing
Commission to afford opportunity for conference before giving notice in relation to exclusive dealing
Evidentiary provisions
Functions and powers of Tribunal
Repeal of Part XI
Power to obtain information, documents and evidence
Insertion of new section:
155AA. Protection of Part IV information
Power to obtain information and documents in New Zealand relating to trans-Tasman markets
Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission
Refusal to be sworn or to answer questions
Jurisdiction of Court to make declarations and orders
Judicial notice
Amendments of other Acts
Government rail transport of coal not covered by access system for first 5 years
Part 4
AMENDMENTS COMMENCING AT THE THIRD COMMENCEMENT TIME
PART 4—AMENDMENTS COMMENCING AT THE THIRD COMMENCEMENT TIME
Amendment of Prices Surveillance Act: insertion of feminine pronouns
Part 5
AMENDMENTS COMMENCING AT THE FOURTH COMMENCEMENT TIME
PART 5—AMENDMENTS COMMENCING AT THE FOURTH COMMENCEMENT TIME
Application of Act to Commonwealth and Commonwealth authorities
Insertion of new sections:
2B. Application of Act to States and Territories
2C. Activities that are not business
2D. Exemption of certain activities of local government bodies from Part IV
Interpretation
Constitution of Commission
Associate members
Deputy Chairperson
Exceptions
Insertion of new section:
51AAA. Concurrent operation of State and Territory laws
Temporary exemption from pecuniary penalties
Existing contracts not affected by amendments
Advance authorisations
Part 6
AMENDMENTS COMMENCING AT THE FIFTH COMMENCEMENT TIME
PART 6—AMENDMENTS COMMENCING AT THE FIFTH COMMENCEMENT TIME
Amendment of Trade Practices Act: insertion of feminine pronouns
Part 7
MISCELLANEOUS
PART 7—MISCELLANEOUS
Regulations
Sch 1
SCHEDULE 1
SCHEDULE TO BE ADDED AT THE END OF THE PRINCIPAL ACT
Sch 2
SCHEDULE 2
AMENDMENTS RELATING TO CONDUCT RULES AND COMPETITION CODE
More sections below
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
1 Competition Policy Reform Act 1995
Competition Policy Reform Act 1995
No. 88 of 1995
TABLE OF PROVISIONS
PART 1—PRELIMINARY
Section
Short title etc.
Commencement
PART 2—AMENDMENTS COMMENCING AT THE FIRST COMMENCEMENT TIME
Division 1—Amendments
Insertion of new section:
Object of this Act
TABLE OF PROVISIONS—continued
Section
Interpretation
Acquisition, supply and re-supply
Extended application of Parts IV, IVA and V
Associate members
Insertion of new sections:
43A. Counsel assisting Tribunal
43B. Consultants
Contracts, arrangements or understandings that restrict dealings or affect competition
Contracts, arrangements or understandings in relation to prices
Covenants affecting competition
Covenants in relation to prices
Exclusive dealing
Price discrimination
Exceptions
Power of Commission to grant authorisations
Determination of applications for authorisations
Notification of exclusive dealing
Commission to afford opportunity for conference before giving notice in relation to exclusive dealing
Register of notifications
Insertion of new section:
96A. Resale price maintenance in relation to services
Application for review of notice under subsection 93(3) or (3A)
Functions and powers of Tribunal
Regulations as to certain matters
Participants in proceedings before Tribunal
The Act also modernises substantive prohibitions. It extends resale price maintenance to services (new s 96A), repeals the price discrimination prohibition (s 14 repealing old s 49), and rewrites the s 51 exceptions to require specific authorisation by law that expressly refers to the Act or Code (amended s 51, especially new subsections (1)–(1C)). Notification of exclusive dealing is expanded (amended s 93) and the authorisation power is broadened to include resale price maintenance (new s 88(8A)).
Commencement is staged. Parts 1, 2 and 7 and certain Part 5 provisions commence 28 days after assent. Part 3 (ACCC, Council, access regime) commences by proclamation or six months after assent. Subsequent parts follow at 12 months and later dates, with gender-neutral language inserted at the final stage (Parts 4 and 6). Transitional rules protect existing contracts (ss 34, 89) and provide temporary exemptions from pecuniary penalties (s 88).
In short, the statute transforms the Principal Act from a conduct-regulating statute into the legislative vehicle for National Competition Policy, embedding structural, institutional and procedural mechanisms designed to open monopolistic infrastructure and apply competition disciplines to previously exempt government activity.
Who it affects
The Act has broad reach. Corporations carrying on business in Australia remain the primary subjects of Part IV prohibitions (ss 45–50 as amended). However, new ss 2B and 2C extend Part IV to the Crown in right of each State, Territory and the Commonwealth “so far as the Crown carries on a business”. Local government bodies are exempted only for licensing and intra-body transactions (new s 2D).
Infrastructure owners and operators are directly affected by Part IIIA. Providers of services supplied by means of a facility of national significance (roads, railways, pipelines, ports, telecommunications, electricity transmission) may face declaration, arbitration and compulsory access determinations (ss 44B, 44H, 44V). Third parties seeking access gain statutory rights to negotiate and arbitrate (s 44S).
State and Territory governments are affected both as potential providers of declared services and as participants in the Competition Principles Agreement and Conduct Code Agreement. The “effective access regime” test (ss 44G(3), 44N) requires regimes to conform to the Agreement’s principles; failure can lead to federal declaration overriding state arrangements. The Minister may gazette a jurisdiction that has modified the Competition Code excessively, removing its participating status (s 150K).
Commonwealth authorities exercising regulatory or purchasing functions are subject to the Act except when acting in a non-commercial capacity (new s 2C). The ACCC and National Competition Council themselves are given expanded roles, with the former assuming Prices Surveillance Authority functions (Schedule 3 amendments) and the latter performing gatekeeper and advisory roles.
Consumers benefit indirectly through the new statutory object in s 2 of the Principal Act: “to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection”. Authorisation and notification processes (amended ss 88, 93) continue to allow public benefit weighing.
Legal practitioners, consultants and expert witnesses before the Tribunal or in arbitrations are given explicit protections and roles (new ss 43A, 43B, 44ZE, 44ZH).
Key duties and rights
Duties
Providers of declared services must not hinder access (s 44ZZ).
Parties to access arbitrations must pay their share of costs (s 44ZN) and comply with Commission directions on procedure, evidence and confidentiality (ss 44ZF–44ZL).
The Commission must afford conferences before issuing s 93 notices (amended s 93A) and publish registers of determinations, undertakings and decisions (ss 44Q, 44ZZC, 44ZZL).
The Council must apply Competition Principles Agreement criteria when assessing effective access regimes and must not consider extraneous matters (s 44G(3)).
Ministers must publish reasons for declaration and revocation decisions (s 44H(7), s 44J(5)).
Bodies corporate must ensure directors, servants and agents do not contravene the Act; attribution rules in new s 44ZZO mirror s 84 of the Principal Act.
Rights
Third parties have a statutory right to notify access disputes and obtain arbitrated terms (s 44S, s 44V).
Providers may seek Tribunal review of declarations (s 44K) and variations of determinations (s 44ZU).
Parties retain the right to negotiate commercial access contracts and have them registered, giving them the same enforceability as determinations (s 44ZY).
Applicants for authorisation or notification gain immunity while processes are on foot or in force (amended ss 88(8A), 93(7A)–(7C)).
Jurisdictions party to the Agreements obtain procedural protections before Council recommendations or Ministerial overrides (ss 44M–44P).
The Tribunal may set aside Commission notices under s 93(3A) if public benefit outweighs detriment (new s 102(5A)).
The new object clause (s 2) provides an overarching interpretative right that courts must now consider when construing any provision.
Penalties and enforcement
The 1995 Act does not itself create new penalty levels but integrates with the existing enforcement regime of the Principal Act. Contraventions of Part IV (including the extended application to government business) remain subject to pecuniary penalties recoverable by the Commission or any other person (amended s 77). Injunctions are available on application by the Commission, the Minister (with limitations in Part IV matters) or affected parties (amended s 80). Divestiture remains available for s 50 breaches (amended s 81).
Part IIIA contraventions attract specific remedies. Determinations are enforceable by Federal Court order, including compensation and injunctions (s 44ZZD). Hindering access under s 44ZZ is enforceable by any person, with the Court able to grant restraining or mandatory injunctions, compensation, and other orders (s 44ZZE). Factors relevant to discretion are codified (ss 44ZZH, 44ZZI). Access undertakings are enforceable by the Commission (s 44ZZJ).
Contempt-type offences during arbitrations carry up to six months’ imprisonment (ss 44ZG(2), 44ZI, 44ZJ). Intimidation of witnesses carries 12 months (s 44ZK). Protection of Part IV information obtained under s 155 is reinforced by new s 155AA, creating a statutory non-disclosure obligation for Commission officials.
Transitional provisions delay pecuniary penalty exposure for state and territory authorities for 12 months after the fourth commencement time (s 88).
How it interacts with other laws
The Act is expressly designed for concurrent operation. New s 51AAA states Parliament’s intention that State or Territory laws can operate concurrently with Part IV unless directly inconsistent. Part XIA facilitates application of the Competition Code by participating jurisdictions without displacing the federal Act (s 150G). No “doubling-up” of penalties or liabilities is permitted (s 150H).
The access regime interacts with existing industry-specific regimes. An “effective access regime” approved by the Commonwealth Minister displaces the federal declaration power (ss 44G(5), 44N). Conversely, the Council and Minister must apply Competition Principles Agreement criteria and cannot consider other matters. Part IIIA does not apply to the supply of goods, intellectual property or production processes except as an integral subsidiary part (s 44B definition of “service”).
Constitutional limits are explicit. Division 3 of Part IIIA operates only where the provider or third party is a corporation or the access is in constitutional trade or commerce (s 44R). Similar limits apply to registered contracts (s 44ZV).
The Act amends the Prices Surveillance Act 1983, transferring its functions to the ACCC (Schedule 3) and inserting gender-neutral language. Consequential amendments appear in the Australian Postal Corporation Act 1989, Broadcasting Services Act 1992, Telecommunications Act 1991, Moomba-Sydney Pipeline System Sale Act 1994 and numerous other statutes (Schedules 2 and 3).
Cross-vesting and Federal Court jurisdiction are preserved (s 150E). The Act binds the Crown but does not render the Crown liable to pecuniary penalty or prosecution, though authorities lose that immunity (new ss 2A(3), 2B(2), 44E).
Recent changes and why
Although the query concerns the 1995 Act itself, its provisions have been amended many times, most notably by the Trade Practices Amendment (Australian Energy Market) Act 2004, the Competition and Consumer Act 2010 (which renamed the Principal Act), and the Competition and Consumer Amendment (Competition Policy Review) Act 2017. The 2017 amendments strengthened the s 46 misuse of market power prohibition by removing the “take advantage” limb and introducing an effects test, inserted a new s 46(1AA) prohibition on concerted practices, and amended the access regime to require the Commission to consider “any other matters” beyond the mandatory list in s 44X.
These changes reflect ongoing policy concern that the original 1995 balance between certainty for infrastructure owners and promotion of competition in dependent markets had tilted too far toward owners. The 1995 Act’s emphasis on “uneconomical to develop another facility” (ss 44G(2)(b), 44H(4)(b)) and national significance has been retained but is now read against a broader public interest lens. The National Competition Council’s role in certifying state access regimes has been refined to reduce regulatory overlap.
The original staged commencement and transitional provisions were necessary because the 1995 Act represented a seismic shift; jurisdictions needed time to enact application laws and align their own access regimes.
Court challenges and controversies
The leading case on the access regime remains Re Sydney International Airport [2000] ACompT 1, in which the Tribunal emphasised that “promote competition” in s 44H(4)(a) requires a material increase in competition in a dependent market, not merely a theoretical possibility. The “uneconomical to develop” test has generated litigation focusing on whether duplication is economically feasible for a hypothetical efficient new entrant rather than the actual provider (Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379).
Constitutional challenges to the extension of Part IV to government business were largely settled by NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90, which confirmed that trading activities of government authorities attract the Act. The High Court upheld the validity of the access regime in NSW v Commonwealth (2006) 229 CLR 1 (the WorkChoices case) by reference to the corporations power, though the 1995 Act itself relied on a combination of powers.
Controversies have centred on the tension between investment incentives and access. Infrastructure owners argue that arbitrated terms can amount to regulatory taking (compensation is addressed in s 44ZZN). Access seekers complain of delay and cost; the multi-layered review (Council → Minister → Tribunal → Federal Court on law) has been criticised as cumbersome. The Productivity Commission’s 2013 review and the Harper Review (2015) both recommended streamlining, leading to the 2017 amendments.
The Competition Code’s uniformity has been imperfect; Western Australia initially stood outside aspects of the scheme, triggering s 150K gazettal debates. The cumulative list of authorised laws required in the Commission’s annual report (amended s 171(2)) has become a significant transparency tool but also a source of ongoing federal-state negotiation.
Gotchas
Most practitioners miss that the “effective access regime” test is not a merits review but a strict application of Competition Principles Agreement criteria; the Council and Minister are statutorily prohibited from considering other matters (ss 44G(3), 44N(2)). A state regime certified years ago can lose its shield if the Agreement principles are later amended or if substantial modifications occur.
The transitional contract protection in ss 34 and 89 looks simple but contains a trap: variation after 19 August 1994 exposes the varied contract to the new law even if the original did not. Courts have read “variation” broadly.
Section 44W(1)(a) prevents determinations that would prevent an existing user obtaining its “reasonably anticipated requirements measured at the time the dispute was notified”. The temporal lock-in is often overlooked; later growth in the user’s demand does not automatically expand its protected volume.
The new s 155AA creates a separate confidentiality regime for Part IV information obtained under s 155. It is not subject to FOI in the same way and overrides general Commission disclosure powers. Commission officials have been disciplined for inadvertent breach.
Finally, the statutory object in s 2 is not mere preamble. In Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 1 the Full Court treated it as a mandatory relevant consideration when weighing public benefit in authorisation contexts. Any advice that ignores the object is incomplete.
How to comply
Infrastructure owners should maintain a watching brief on declaration applications and, where appropriate, demonstrate to the Council that an existing contractual or regulatory access regime satisfies the six statutory criteria. Robust records of efficient costs, capacity forecasts and investment plans are essential for arbitration under s 44X.
Businesses seeking access should first attempt commercial negotiation; notification under s 44S should be supported by evidence of genuine attempts to agree and a clear articulation of how access will promote competition in a dependent market. Confidentiality claims under s 44ZL must be particularised early.
Government businesses must segregate commercial and non-commercial activities (s 2C) and ensure that licensing and procurement decisions do not inadvertently breach Part IV. State and Territory governments should align their access regimes with the Competition Principles Agreement before the Council is asked to certify them; retrospective certification is difficult.
All parties should keep the cumulative list of s 51 authorisations published in the Commission’s annual report. Any proposed regulatory immunity must expressly refer to the Act or Code and be limited to two years for regulations.
Compliance programs should expressly address the extended attribution rules in s 44ZZO and the prohibition on hindering access. Training for directors and senior managers on the purpose element in s 44ZZ(2) (which can be proved by inference) is critical.
Finally, because the access regime interacts with industry-specific legislation, compliance requires integrated advice across competition, sector regulation and constitutional law. Annual audits of infrastructure contracts against the registered-contract and undertaking provisions (Divisions 4 and 6 of Part IIIA) are prudent.
150D. Federal Court may exercise jurisdiction under application laws
150E. Exercise of jurisdiction under cross-vesting provisions
150F. Application laws may confer functions on Commonwealth authorities and officers
150G. Application laws may operate concurrently with this Act
150H. No doubling-up of liabilities
150I. References in instruments to the Competition Code
150J. Authorisations etc. under this Act may relate also to Competition Code
150K. Gazettal of jurisdictions that excessively modify the Code
Power to obtain information, documents and evidence
Protection of members of Tribunal, counsel and witnesses
Annual report by Commission
Regulations
Addition of Schedule
Other amendments
Division 2—Transitional rules
Transitional rule for changes to section 51 exceptions
Existing contracts not affected by amendments
TABLE OF PROVISIONS—continued
Section
PART 3—AMENDMENTS COMMENCING AT THE SECOND COMMENCEMENT TIME
Division 1—Amendments
Application of Act to Commonwealth and Commonwealth authorities
Interpretation
Extended application of Parts IV, IVA and V
Heading to Part II
Establishment of Commission
Constitution of Commission
Terms and conditions of appointment
Associate members
Deputy Chairperson
Acting Chairperson
Termination of appointment of members of the Commission
Arrangement of business
Disclosure of interests by members
Meetings of Commission
Chairperson may direct Commission to sit in Divisions
Insertion of new section:
Part XI of the Audit Act not to apply to Commission
Staff of Commission
Insertion of new section:
27A. Consultants
Functions of Commission in relation to dissemination of information, law reform and research
Commission to comply with directions of Minister and requirements of the Parliament
Insertion of new Part:
PART IIA—THE NATIONAL COMPETITION COUNCIL
29A. Establishment of Council
29B. Functions and powers of Council
29C. Membership of Council
29D. Terms and conditions of office
29E. Acting Council President
29F. Remuneration of Councillors
29G. Leave of absence
29H. Termination of appointment of Councillors
29I. Resignation of Councillors
29J. Arrangement of Council business
29K. Disclosure of interests by Councillors
29L. Council meetings
29M. Staff to help Council
29N. Consultants
Annual report
Heading to Part III
Constitution of Tribunal
Staff of Tribunal
Insertion of new Part:
PART IIIA—ACCESS TO SERVICES
Division 1—Preliminary
44B. Definitions
44C. How this Part applies to partnerships and joint ventures
44D. Meaning of "designated Minister"
44E. This Part binds the Crown
TABLE OF PROVISIONS—continued
Section
Division 2—Declared services
Subdivision A—Recommendation by the Council
44F. Person may request recommendation
44G. Limits on the Council recommending declaration of a service
Subdivision B—Declaration by the designated Minister
44H. Designated Minister may declare a service
44I. Duration and effect of declaration
44J. Revocation of declaration
44K. Review of declaration
44L. Review of decision not to revoke a declaration
Subdivision C—Miscellaneous
44M. Recommendation for a Ministerial decision on effectiveness of access regime
44N. Ministerial decision on effectiveness of access regime
Review of Ministerial decision on effectiveness of access regime
44P. State or Territory ceasing to be a party to Competition Principles Agreement
44Q. Register of decisions and declarations
Division 3—Access to declared services
Subdivision A—Scope of Division
44R. Constitutional limits on operation of this Division
Subdivision B—Notification of access disputes
44S. Notification of access disputes
44T. Withdrawal of notifications
Subdivision C—Arbitration of access disputes
44U. Parties to the arbitration
44V. Determination by Commission
44W. Restrictions on access determinations
44X. Matters that the Commission must take into account
44Y. Commission may terminate arbitration in certain cases
Subdivision D—Procedure in arbitrations
44Z. Constitution of Commission for conduct of arbitration
44ZA. Member of the Commission presiding at an arbitration
44ZB. Reconstitution of Commission
44ZC. Determination of questions
44ZD. Hearing to be in private
44ZE. Right to representation
44ZF. Procedure of Commission
44ZG. Particular powers of Commission
44ZH. Power to take evidence on oath or affirmation
44ZI. Failing to attend as a witness
44ZJ. Failing to answer questions etc.
44ZK. Intimidation etc.
44ZL. Party may request Commission to treat material as confidential
44ZM. Sections 18 and 19 do not apply to the Commission in an arbitration
44ZN. Parties to pay costs of an arbitration
TABLE OF PROVISIONS—continued
Section
Subdivision E—Effect of determinations
44ZO. Operation of determinations
Subdivision F—Review of determinations
44ZP. Review by Tribunal
44ZQ. Provisions that do not apply in relation to a Tribunal review
44ZR. Appeals to Federal Court from determinations of the Tribunal
44ZS. Operation and implementation of a determination that is subject to appeal
44ZT. Transmission of documents
Subdivision G—Variation of determinations
44ZU. Variation of determinations
Division 4—Registered contracts for access to declared services
44ZV. Constitutional limits on operation of this Division
44ZW. Registration of contract
44ZX. Review of decision not to register contract
44ZY. Effect of registration of contract
Division 5—Hindering access to declared services
44ZZ. Prohibition on hindering access to declared services
Division 6—Access undertakings for non-declared services
44ZZA. Access undertakings by providers
44ZZB. Undertakings cannot be accepted in certain cases
44ZZC. Register of access undertakings
Division 7—Enforcement and remedies
44ZZD. Enforcement of determinations
44ZZE. Enforcement of prohibition on hindering access
44ZZF. Consent injunctions
44ZZG. Interim injunctions
44ZZH. Factors relevant to granting a restraining injunction
44ZZI. Factors relevant to granting a mandatory injunction
44ZZJ. Enforcement of access undertakings
44ZZK. Discharge or variation of injunction or other order
Division 8—Miscellaneous
44ZZL. Register of determinations
44ZZM. Commission may perform functions under other access regimes
44ZZN. Compensation for acquisition of property
44ZZO. Conduct by directors, servants or agents
44ZZP. Regulations about review by the Tribunal
44ZZQ. Regulations about fees for inspection etc. of registers
Opportunity for conference to be afforded before certain powers exercised
Civil action for recovery of pecuniary penalties
Injunctions
Divestiture
Commission to afford opportunity for conference before determining application for authorisation
Notification of exclusive dealing
TABLE OF PROVISIONS—continued
Section
Commission to afford opportunity for conference before giving notice in relation to exclusive dealing
Evidentiary provisions
Functions and powers of Tribunal
Repeal of Part XI
Power to obtain information, documents and evidence
Insertion of new section:
155AA. Protection of Part IV information
Power to obtain information and documents in New Zealand relating to trans-Tasman markets
Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission
Refusal to be sworn or to answer questions
Jurisdiction of Court to make declarations and orders
Judicial notice
Amendments of other Acts
Division 2—Transitional rules
Government rail transport of coal not covered by access system for first 5 years
PART 4—AMENDMENTS COMMENCING AT THE THIRD COMMENCEMENT TIME
Amendment of Prices Surveillance Act: insertion of feminine pronouns
PART 5—AMENDMENTS COMMENCING AT THE FOURTH COMMENCEMENT TIME
Division 1—Amendments
Application of Act to Commonwealth and Commonwealth authorities
Insertion of new sections:
2B. Application of Act to States and Territories
2C. Activities that are not business
2D. Exemption of certain activities of local government bodies from Part IV
Interpretation
Constitution of Commission
Associate members
Deputy Chairperson
Exceptions
Insertion of new section:
51AAA. Concurrent operation of State and Territory laws
Division 2—Transitional rules
Temporary exemption from pecuniary penalties
Existing contracts not affected by amendments
Advance authorisations
PART 6—AMENDMENTS COMMENCING AT THE FIFTH COMMENCEMENT TIME
Amendment of Trade Practices Act: insertion of feminine pronouns
TABLE OF PROVISIONS—continued
Section
PART 7—MISCELLANEOUS
Regulations
SCHEDULE 1
SCHEDULE TO BE ADDED AT THE END OF THE PRINCIPAL ACT
SCHEDULE 2
AMENDMENTS RELATING TO CONDUCT RULES AND COMPETITION CODE
SCHEDULE 3
OTHER AMENDMENTS RELATING TO THE CREATION AND FUNCTIONS OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION AND TO ACCESS TO DECLARED SERVICES
Competition Policy Reform Act 1995
No. 88 of 1995
An Act to amend the Trade Practices Act 1974 and the Prices Surveillance Act 1983, and for related purposes
[Assented to 20 July 1995]
The Parliament of Australia enacts:
PART 1—PRELIMINARY
Short title etc.
1.(1) This Act may be cited as the Competition Policy Reform Act 1995.
(2) In this Act, "Principal Act" means the Trade Practices Act 19741.
Commencement
2.(1) The following provisions commence on the 28th day after the day on which this Act receives the Royal Assent:
(a) Parts 1, 2 and 7;
(b) Division 2 of Part 5.
(2) Part 3 commences on a day to be fixed by Proclamation. However, if Part 3 does not commence by Proclamation within the period of 6 months beginning on the day on which this Act receives the Royal Assent, then it commences on the first day after the end of that period.
(3) Part 4 commences immediately after Part 3 commences.
(4) Division 1 of Part 5 commences on the first day after the end of the period of 12 months after the day on which this Act receives the Royal Assent.
(5) Part 6 commences immediately after the commencement of Division 1 of Part 5.
PART 2—AMENDMENTS COMMENCING AT THE FIRST COMMENCEMENT TIME
Division 1—Amendments
Insertion of new section
3. After section 1 of the Principal Act the following section is inserted:
Object of this Act
"2. 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.".
Interpretation
4. Section 4 of the Principal Act is amended by inserting in subsection (1):
" 'Competition Principles Agreement' means the Competition Principles Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time;
'Conduct Code Agreement' means the Conduct Code Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time;".
Acquisition, supply and re-supply
5. Section 4C of the Principal Act is amended:
(a) by omitting from paragraph (d) "and";
(b) by adding at the end:
"; (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.".
Extended application of Parts IV, IVA and V
6. Section 6 of the Principal Act is amended by inserting after subsection (2):
"(2A) So far as subsection (2) relates to Part IV, that subsection has effect in relation to a participating Territory as if the words 'within a Territory, ' were omitted from subparagraphs (2)(a)(iii) and (2)(b)(iii). For this purpose, 'participating Territory' means a Territory that is a participating Territory within the meaning of Part XIA but is not named in a notice in operation under section 150K.".
Associate members
7. Section 8A of the Principal Act is amended by inserting in subsection (6) "or (3A)" after "93(3)".
Insertion of new sections
8. After section 43 of the Principal Act the following sections are inserted:
Counsel assisting Tribunal
"43A.(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.
Consultants
"43B. The Registrar may, on behalf of the Commonwealth, engage persons as consultants to, or to perform services for, the Tribunal.".
Contracts, arrangements or understandings that restrict dealings or affect competition
9. Section 45 of the Principal Act is amended:
(a) by omitting paragraph (5)(c) and substituting:
"(c) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding in so far as the provision relates to:
(i) conduct that contravenes section 48; or
(ii) conduct that would contravene section 48 but for the operation of subsection 88(8A); or
(iii) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply.";
(b) by adding at the end of paragraph (6)(b):
"; or (iii) a notice under subsection 93(1) is in force in relation to c
This is an opening excerpt, not the complete document.