Competition Policy Reform Act 1996

The central concept is the Competition Code, which is defined in the dictionary as either the Competition Code text or that text applying as a law of a participating jurisdiction, with or without modifications. The Competition Code text (s 4) is built by taking the “schedule version of part 4” - which is the text in the schedule to the CCA - and then adding in the remaining CCA provisions (excluding sections 2A, 5, 6 and 172) as they relate to that schedule version. This incorporation method means the ACT’s Code is a stand-alone statutory text that mirrors the Commonwealth’s Part IV prohibitions but extends to all persons (not just constitutional corporations) because s 4(2)(b) modifies references to corporations to include non-corporate persons. The term participating jurisdiction (dictionary) means a State or Territory that is a party to the Conduct Code Agreement and applies the Competition Code as a law of its jurisdiction, with or without modifications. The Conduct Code Agreement (defined in the dictionary) is the intergovernmental agreement made on 11 April 1995 between the Commonwealth, all States, the ACT and the Northern Territory. An application law is defined (dictionary) as either a law of a participating jurisdiction that applies the Competition Code (with or without modifications) or the Competition Code itself as applying as a law of that jurisdiction. The Act also introduces the concept of this jurisdiction (the ACT) and State (which includes a Territory under the dictionary definition). Part 3 (s 10-12) provides for citation and cross-referencing of Competition Codes across jurisdictions, with s 11 stating that a reference in an instrument to “the Competition Code” is a reference to the Codes of any or all participating jurisdictions, unless a contrary intention appears. The schedule version of part 4 (dictionary) means the text set out in the schedule to the CCA, which is the form of Part IV that the States and Territories adopt. The Act also distinguishes between the Crown (which is bound when carrying on a business but immune from criminal liability and pecuniary penalties under s 16) and authorities of a jurisdiction (which are not shielded by that immunity - s 16(3)). The commission, tribunal, and council (dictionary) are respectively the ACCC, the Australian Competition Tribunal, and the National Competition Council. Finally, the Act defines instrument very broadly to include Acts, statutory instruments, awards, agreements, licences, pleadings, and any other document, which matters for the interpretation of references to the Competition Code in those instruments (s 12).

The Act directly affects any person carrying on business within the ACT, any body corporate incorporated or registered under ACT law, any person ordinarily resident in the ACT, and any person otherwise connected with the ACT (s 8(1)). Because the Competition Code extends to conduct occurring or existing outside the ACT (including outside Australia) (s 8(2)), the Act potentially catches extraterritorial conduct by entities with a sufficient connection to the Territory. However, a plaintiff relying on conduct occurring outside Australia under a claim for damages under s 82 of the Code requires the written consent of the Commonwealth Minister (s 8(3)), and a person other than the Commonwealth Minister or the ACCC must also obtain that consent before applying for an injunction or other order under s 87(1) or (1A) of the Code in respect of offshore conduct (s 8(4)). The Commonwealth Minister must give consent unless the foreign law required or specifically authorised the conduct and it is not in the national interest to consent (s 8(5)). This extraterritorial reach particularly affects multinational corporations with operations, subsidiaries, or assets in the ACT, as well as foreign businesses that supply goods or services into the ACT market. The Act also binds the Crown in right of the ACT and of other jurisdictions when the Crown carries on a business, either directly or through an authority (ss 13, 14). This means that government business enterprises - such as those providing utilities, transport, or other commercial services - are subject to the competition prohibitions of the Code. Certain activities are expressly excluded from amounting to “carrying on a business”: imposing or collecting taxes, levies, or licence fees; granting, refusing, revoking, suspending, or varying licences; transactions involving only persons acting for the Crown in the same right (or only for the same State authority or only non-commercial authorities of a State); and the acquisition of primary products by a government body under legislation unless the acquisition is voluntary or the body had a discretion not to acquire (s 15). An authority of a State is “non-commercial” if it is constituted by only one person and is neither a trading corporation nor a financial corporation (s 15(4)). Private sector businesses and their officers, directors, and employees are the primary targets of the substantive prohibitions. The Act also affects legal practitioners and litigants because jurisdiction for all civil and criminal matters under the Competition Code is conferred exclusively on the Federal Court of Australia (s 21); the courts of the ACT do not have jurisdiction over those matters (s 22), subject to any cross-vesting law (s 23). This means that competition litigation originating in the ACT must be brought in the Federal Court, not in the ACT Supreme Court or Magistrates Court. Legal professionals advising on competition law in the ACT must be familiar with both the CCA and the ACT Competition Code, and must understand which procedural and administrative regimes apply.

The Competition Policy Reform Act does not itself create the substantive duties and rights; rather, it incorporates the CCA’s Part IV prohibitions and enforcement mechanisms as the ACT Competition Code. The key duties under the Code include prohibitions on: (1) entering into or giving effect to a contract, arrangement, or understanding that has the purpose or effect of substantially lessening competition (Code s 45); (2) making or giving effect to a provision of a contract, arrangement, or understanding that amounts to a cartel provision (e.g. price-fixing, output restriction, market allocation, bid-rigging) (Code ss 45AA-45AJ); (3) misuse of market power (Code s 46); (4) exclusive dealing (Code s 47); (5) resale price maintenance (Code s 48); and (6) anti-competitive mergers and acquisitions (Code s 50). The Code also imposes notification and authorisation regimes that allow conduct to be exempted from the prohibitions if public benefits outweigh anti-competitive detriments. The Act confers rights on persons to seek remedies for contraventions of the Code. Section 82 of the Code (as applied) gives a right to any person who suffers loss or damage by conduct contravening the Code to recover the amount of that loss or damage by action against the contravenor. Section 87 of the Code gives the court power to make a wide range of orders (including injunctions, divestiture orders, and orders for the variation or termination of contracts) on the application of the ACCC, or of any person with the consent of the ACCC in the case of certain conduct. The Act also ensures that an authorisation, notification, or other thing given or done for the Competition Code of the ACT is not invalid merely because it was also given or done for the CCA or the Code of another jurisdiction (s 35). This prevents double-jeopardy arguments and streamlines multi-jurisdictional filings. The Act provides a “no doubling-up” protection: if a person has been punished for an offence under the CCA or the application law of another participating jurisdiction, they are not liable to be punished again for the same act or omission under the ACT Code (s 34(1)); similarly, if a person has been ordered to pay a pecuniary penalty under the CCA or another jurisdiction’s application law, they are not liable to a corresponding penalty under the ACT Code for the same conduct (s 34(2)). The Crown is immune from pecuniary penalties and criminal prosecution under the application law (s 16(1)), but authorities of a jurisdiction are not protected by that immunity (s 16(3)). This means that a government-owned corporation can be fined or penalised for contravening the Code, whereas a government department acting as a business operator cannot.

The Act does not set penalty amounts itself; instead, it incorporates the penalty provisions of the CCA as part of the Competition Code. For the ACT, the value of a penalty unit for an offence against this Act is $160 for an individual and $810 for a corporation as at the republication date (see the note on the title page, referencing the Legislation Act 2001, s 133). The Code’s pecuniary penalty provisions (Code s 76) allow the court to order a person to pay a pecuniary penalty for each contravention of specified civil penalty provisions, up to a maximum that is the greater of a dollar amount (updated periodically) and, for bodies corporate, three times the value of the benefit reasonably attributable to the contravention, or if that cannot be determined, ten per cent of the body corporate’s annual turnover during the period of the contravention. Criminal cartel offences under the Code carry maximum penalties of imprisonment for individuals (up to 10 years) and fines for corporations (the greater of a specified amount, three times the benefit, or ten per cent of turnover). The enforcement structure is centralised through the national framework. Part 5 of the Act provides that for an offence against the Competition Code of the ACT, Commonwealth laws (including the Criminal Code Act 1995 (Cwlth), the Crimes Act 1914 (Cwlth), and the Proceeds of Crime Act 2002 (Cwlth)) apply as laws of the ACT as if the Code were a Commonwealth law and not a Territory law (s 25(1)). For the purposes of an ACT law, an offence against the Code is taken to be an offence against Commonwealth law and not against ACT law (s 25(2)), with exceptions as prescribed by regulation. A similar mechanism applies in relation to offences against the Competition Code of another participating jurisdiction, so that such offences are treated in the ACT as if they were Commonwealth offences (s 26). Commonwealth officers and authorities (such as the ACCC and the Commonwealth Director of Public Prosecutions) are given the same functions in relation to Code offences as they have in relation to corresponding CCA offences (s 27). Importantly, s 28 restricts the functions of ACT officers and authorities: where a function is given to a Commonwealth officer or authority under this division, that function may not be exercised by an ACT officer or authority. This means that ACT police or the ACT Director of Public Prosecutions cannot prosecute Code offences; that role is reserved for Commonwealth bodies. The same approach applies to administrative law: the Commonwealth administrative laws (Freedom of Information Act, Ombudsman Act, Privacy Act, and the Administrative Review Tribunal Act excluding Part 7 on appeals to the Federal Court) apply as ACT laws to matters arising under the Code (s 30), and ACT officers and authorities are precluded from exercising functions given to Commonwealth officers or authorities under that division (s 33). Section 37 requires that all fees, taxes, penalties (including pecuniary penalties under Code s 76), fines, and other money payable under the application law must be paid to the Commonwealth, except for amounts recovered for loss or damage under Code ss 82 or 87 and amounts prescribed by regulation (s 37(2)). This ensures that penalty revenue flows to the Commonwealth consolidated revenue, reflecting the national character of enforcement.

The Act is expressly designed to integrate the ACT’s competition law with the national scheme. The dictionary defines the Competition and Consumer Act as the Commonwealth Act of that name (A2010-54, amending the former Trade Practices Act 1974). The Competition Code text itself incorporates large parts of the CCA, excluding sections 2A, 5, 6, and 172, which deal respectively with application to the Crown, extraterritorial operation, and inter-jurisdictional application - these are instead provided for by the ACT’s own provisions (Part 4 of the Act for Crown application, s 8 for extraterritoriality, etc). Section 3 provides that terms defined in the CCA have the same meanings in the ACT Act, ensuring interpretative consistency. The Act also interacts with the Legislation Act 2001 (ACT). Section 7(3) provides that the Legislation Act does not apply to the Competition Code of the Territory or any instrument under that Code; instead, the Commonwealth Acts Interpretation Act 1901 applies as a law of the ACT for the purposes of interpreting the Code (s 7(1)). This is a critical interaction because it means that ACT interpretive principles (such as those in the Legislation Act) are displaced by Commonwealth rules for Code matters. The Act also saves the operation of cross-vesting laws: s 23 provides that Part 5 (which excludes ACT courts from jurisdiction) does not affect any ACT law relating to cross-vesting of jurisdiction. This means that if a cross-vesting law allows the Federal Court to remit a matter to the ACT Supreme Court, that is still possible despite s 22. The Act contains a regulation-making power (s 38) and a specific power to make regulations authorising a specified thing to be done in the ACT and referring expressly to the CCA or the Competition Code (s 39). This is the mechanism by which the ACT can grant exemptions from the Code’s prohibitions, for example under s 51 of the CCA (which permits regulations to exempt certain conduct if authorised by State or Territory legislation). The “no doubling-up” provisions in s 34 prevent double punishment or double pecuniary penalties when the same conduct contravenes both the CCA and the ACT Code (or the Code of another participating jurisdiction). The Act also provides that a reference in a Commonwealth law (applied under ss 25, 26, 30, or 31) to a provision of that or another Commonwealth law is taken to be a reference to that provision as applying because of those sections (s 36). This ensures that the applied Commonwealth provisions operate coherently. For example, a reference in the Commonwealth Criminal Code to an “offence against a law of the Commonwealth” will include an offence against the ACT Competition Code because of s 25(2)(a). Finally, the Act interacts with the Administrative Review Tribunal Act 2024 (Cwlth) by specifically excluding Part 7 (appeals on questions of law to the Federal Court) from the applied administrative laws, and by providing that references in applied provisions to that Part are references to the Part as it has effect as a Commonwealth law (s 33A). This means that merits review of Code decisions lies with the Administrative Review Tribunal (formerly the AAT), not with a separate ACT body.

The Act was originally enacted as A1996-21, notified on 4 June 1996, with sections 1-3 and 40-45 commencing on that date, and the remainder commencing on 20 July 1996. Significant amendments have been made by subsequent legislation. The Legislation (Consequential Amendments) Act 2001 (A2001-44) amended section 4 (the definition of Competition Code text) and section 6 (future modifications), and substituted the definition of “application law” in the dictionary. The Jurisdiction of Courts Legislation Amendment Act 2001 (A2001-71) made extensive changes: it substituted section 1 (name of Act) and section 2 (dictionary), amended section 3 (terms defined in CCA), moved definitions from section 3 into the dictionary, inserted new section 33A dealing with the then-Administrative Appeals Tribunal Act 1975 (Cwlth), Part 7, and repealed transitional provisions (sections 40-45). This amendment also added the definition of “officer, of the Commonwealth” to the dictionary. The Legislation Amendment Act 2002 (A2002-11) amended section 7 (interpretation of Competition Code) to specify that the Commonwealth Acts Interpretation Act 1901 applies as a law of this jurisdiction to the Competition Code and any instrument under it. The Statute Law Amendment Act 2007 (A2007-3) amended the heading of section 29 (meaning of Commonwealth administrative laws), substituted the definition of “Commonwealth administrative laws” to include the Administrative Appeals Tribunal Act 1975 (Cwlth) other than Part 7, and repealed the transitional Part 7 (headed “Transitional”) including sections 40-45. The Fair Trading (Australian Consumer Law) Amendment Act 2010 (A2010-54) amended section 3, 4, 8, 27, 34, 35, and 39, and the dictionary, to update references from the Trade Practices Act 1974 (Cwlth) to the Competition and Consumer Act 2010 (Cwlth), and from the “Trade Practices Act” to “Competition and Consumer Act”. The most recent amendments are by the Statute Law Amendment Act 2025 (A2025-29), notified 6 November 2025 and effective 16 November 2025, which amended sections 6 (future modifications), 29 (Commonwealth administrative laws now include the Administrative Review Tribunal Act 2024 (Cwlth) other than Part 7), 33A (references to the Administrative Review Tribunal Act 2024), 38 (regulation-making power), and the dictionary (updating the definition of “council” and “tribunal” to reflect the new Commonwealth tribunal names). The Act has been republished five times (the current being Republication No 5). Notably, the transitional provisions (Part 7) that dealt with existing contracts, temporary exemptions from pecuniary penalties, and advance authorisations were all repealed by 2007. The Act’s amendment history shows a shift from the original Trade Practices Act framework to the contemporary CCA, and a modernisation of administrative review references from the AAT to the ART.

The source text does not provide any information about litigation history. The Act itself is a machinery statute that applies the Competition Code, so the vast majority of litigation occurs under the substantive provisions of the Code (incorporating Commonwealth Part IV) rather than under the Reform Act itself. Cases concerning the ACT Competition Code would be heard in the Federal Court of Australia by virtue of s 21 of the Act. Given that the Act provides for national uniform administration and enforcement, the volume of litigation specifically turning on the ACT application law is likely to be very low; most decisions would be under the equivalent Commonwealth provisions. The Act’s provisions on extraterritoriality (s 8) and Crown application (Part 4) may give rise to interpretive disputes, but the source provides no case names or judicial consideration.

Several provisions in the Act contain traps for the unwary. The first is the exclusive Federal Court jurisdiction under ss 21 and 22. A practitioner who files a competition claim in the ACT Supreme Court risks having the proceeding struck out for want of jurisdiction. The only saving is cross-vesting laws (s 23), but that is a narrow exception. The second trap is the deemed Commonwealth character of offences under s 25. An offence against the ACT Competition Code is taken to be an offence against Commonwealth law and not against ACT law for the purposes of ACT legislation. This means that standard ACT criminal procedure (such as bail provisions, evidence rules, and sentencing options under ACT law) may not apply; instead, the Commonwealth Crimes Act 1914 and related laws apply. An ACT prosecutor or defence lawyer who assumes ACT procedural rules govern will be caught out. The third trap is the exclusion of the Legislation Act 2001 from applying to the Competition Code (s 7(3)). The Commonwealth Acts Interpretation Act 1901 governs interpretation instead. This change affects how definitions, commencement provisions, and powers to make instruments are construed. The fourth trap is the Crown immunity limitation: while the Crown is not liable to pecuniary penalties or prosecution (s 16), authorities of a jurisdiction are not protected (s 16(3)). But what constitutes an “authority” can be ambiguous. The Act does not define “authority of a jurisdiction”, so the general law on statutory corporations and government agencies will apply. Government-owned corporations that are separate legal entities are likely not shielded, but a department or board may qualify as the Crown. The fifth trap is the two-month delay for future modifications under s 6. A modification made by a Commonwealth law does not apply under s 5 until after two months from the day of the modification, unless the ACT Minister declares an earlier day. However, the Minister can also declare that a modification is to be excluded entirely (s 6(1)(b)). This means that a Commonwealth amendment to the CCA may not automatically become part of ACT law, or may be delayed. Practitioners need to check whether the ACT Minister has made a declaration under s 6 before relying on the latest Commonwealth amendment in an ACT matter. The sixth trap is the extraterritoriality requirement for Ministerial consent. Under s 8(3) and (4), a private litigant cannot rely on conduct occurring outside Australia in a damages claim or seek an injunction in respect of such conduct without the written consent of the Commonwealth Minister. The Minister must give consent unless the conduct was required or specifically authorised by the foreign country’s law and it is not in the national interest (s 8(5)). This creates an administrative hurdle that could derail a case if not sought in time. The seventh trap is the payment of penalties to the Commonwealth (s 37). All pecuniary penalties imposed under the Code must be paid to the Commonwealth, not to the ACT. This may surprise those who assume fines go to Territory consolidated revenue. Finally, the broad definition of “instrument” in the dictionary (which includes any document whatever, such as awards, agreements, licences, and pleadings) means that a reference to “Competition Code” in any such document will, by operation of s 11, be taken to refer to the Codes of any or all participating jurisdictions unless a contrary intention appears. This could have unintended consequences: a reference in a contract to “the Competition Code” might inadvertently include the codes of all States and Territories, exposing the parties to multiple enforcement regimes.

Compliance with the Competition Policy Reform Act 1996 requires understanding that the Act itself is a conduit for the substantive Competition Code. An entity subject to the ACT Code must take the same steps it would take to comply with Part IV of the CCA, but with the added complexity that the Code extends to all persons (not just corporations) and can apply extraterritorially to conduct with a sufficient ACT connection. Specific compliance steps include: (1) identifying applicable prohibitions - review the full text of the Competition Code as applied in the ACT (the schedule version of Part IV plus the incorporated CCA provisions) to understand the cartel, anti-competitive agreement, misuse of market power, exclusive dealing, resale price maintenance, and merger control prohibitions. (2) Competition law compliance program - implement a robust competition law compliance program that covers all employees, agents, and contractors who make decisions about pricing, contracting, sharing information with competitors, or entering into distribution arrangements. The program should include training that distinguishes between conduct prohibited under the CCA and the ACT Code; in practice the standards are identical, but the jurisdictional sweep of the Code (covering non-corporate persons) means that partnerships, sole traders, and individuals can be liable. (3) Monitor Commonwealth amendments - because the Code text evolves with Commonwealth amendments, an entity must track changes to the CCA and check whether the ACT Minister has made a declaration under s 6 to exclude or accelerate a modification. A company that relies on the latest Commonwealth provision in an ACT proceeding may find it has not yet been adopted. (4) Extraterritorial conduct - if a business engages in conduct outside Australia that may affect competition within the ACT, it must obtain the written consent of the Commonwealth Minister before a third party can sue for damages or seek an injunction under s 82 or s 87 of the Code in respect of that conduct (s 8(3), (4)). A business itself may wish to seek an advisory opinion from the ACCC about whether conduct requires authorisation or notification. (5) Crown entities - if the entity is a government authority or a government-owned corporation, it should determine whether it qualifies as an authority of a jurisdiction (not entitled to Crown immunity under s 16) or as the Crown itself (immune from penalties but still subject to injunctions and other orders). The Act’s definition of “non-commercial authority” (s 15(4)) may provide a shield for some small statutory offices. (6) Record-keeping and reporting - maintain records of all communications with competitors, pricing decisions, and merger assessments. Since the ACCC has extensive investigative powers under the Code, and since Commonwealth administrative laws (FOI, Privacy, Ombudsman) apply as ACT laws to Code matters (s 30), entities dealing with the ACCC should be prepared for transparency and accountability requirements. (7) Legal representation - because the Federal Court has exclusive jurisdiction over Code matters (s 21), legal representatives must be familiar with Federal Court procedure and the Commonwealth criminal and administrative law framework that applies by virtue of Part 5. Engaging a lawyer who only practises in ACT courts will be insufficient. (8) Multi-jurisdictional filings - if the same conduct triggers notification or authorisation requirements under the CCA and under the ACT Code, s 35 confirms that a single filing can be given or done for both, so there is no need to duplicate applications. (9) Regulatory exemptions - check whether any regulations have been made under s 39 that authorise a specific thing to be done in the ACT, referring to the CCA or the Code. Such regulations may provide an exemption from a particular prohibition. (10) Penalty exposure - at the current republication date, a penalty unit for an offence against the Act is $160 for an individual and $810 for a corporation (Legislation Act 2001, s 133). For civil pecuniary penalties under Code s 76, the maximums are much higher (up to $10 million for corporations or three times the benefit, whichever is greater, plus ten per cent of annual turnover for repeat or serious contraventions). Ensure that compliance programs are adequately resourced to avoid these potentially crippling financial consequences.