Competition Policy Reform (New South Wales) Act 1995

The legislation affects four broad classes of persons.

First, any person carrying on business in New South Wales. Section 8(1)(a) expressly provides that the Competition Code applies to persons carrying on business within the jurisdiction. Because the Code’s substantive prohibitions are no longer limited to corporations, this captures sole traders, partnerships, trusts, incorporated associations and any other entity that might previously have fallen outside Commonwealth reach.

Second, bodies corporate incorporated or registered under NSW law (s 8(1)(b)) and natural persons ordinarily resident in New South Wales (s 8(1)(c)). The extraterritorial reach in s 8(2) further extends the Code to conduct occurring wholly or partly outside New South Wales (and even outside Australia) if there is a sufficient connection with the jurisdiction.

Third, the Crown in right of New South Wales and of other participating jurisdictions when it carries on a business (ss 13–14). However, s 15 carves out taxation, licensing, intra-governmental transactions and compulsory acquisition of primary produce. Government business enterprises, state-owned corporations and authorities that trade are therefore fully subject to the cartel, misuse of market power and exclusive dealing prohibitions.

Fourth, Commonwealth officers and authorities (the ACCC, Tribunal, National Competition Council and relevant Ministers) who are given functions under the applied Code. The Act also affects State officers by prohibiting them from exercising any function that the Act has conferred on a Commonwealth officer (ss 28 and 33).

Consumers and competitors who suffer loss from contraventions gain rights to damages under the applied s 82 and other remedies under the applied s 87, but must obtain Commonwealth Ministerial consent before relying on extraterritorial conduct (s 8(3)–(6)).

The Act itself creates few standalone duties; its key contribution is to make the duties in the applied Part IV binding on all persons. Once the Code applies, the prohibitions on contracts, arrangements or understandings that have the purpose or effect of substantially lessening competition (applied s 45), cartel conduct (applied ss 45AA–45AF), misuse of market power (applied s 46), exclusive dealing (applied s 47) and resale price maintenance (applied s 48) become directly enforceable against every entity in New South Wales.

Rights created by the Act itself include:

• The right to apply for authorisation or notification under the Code on the same basis as under the TPA (s 44).
• The right of any person to whom the Code applies to have Commonwealth administrative law remedies (review, FOI, Ombudsman, privacy) available on the same terms as if the Code were Commonwealth law (ss 30–32).
• The right of the Crown to immunity from pecuniary penalties and prosecution (s 16), balanced by the exposure of Crown authorities.
• The right to rely on transitional protections for pre-19 August 1994 contracts (s 41) and the two-year pecuniary penalty amnesty that operated from Royal Assent of the Commonwealth’s 1995 Reform Act (s 43).

Conversely, the Act imposes duties on Commonwealth officers to act “as nearly as practicable” in the same manner as they would under the TPA (ss 27(4) and 32(4)), and prevents State officers from duplicating those functions (ss 28 and 33).

Because the Act applies the Competition Code as a law of New South Wales, the penalties that attach are those set out in the applied TPA provisions. Applied s 76 authorises pecuniary penalties, applied s 79 criminal offences for cartel conduct, and applied s 82 private actions for damages. The Act itself does not create new penalty provisions.

Enforcement is centralised. Section 19 confers on the ACCC, Tribunal and Council all the functions they possess under the Code. Division 4 of Part 5 applies the Judiciary Act 1903 (Cth), the Crimes Act 1914 (Cth) and other Commonwealth criminal law statutes to Code offences as if they were Commonwealth offences. This produces a single national enforcement regime: the ACCC investigates, the Commonwealth DPP prosecutes, and Commonwealth courts exercise jurisdiction.

Section 34 prevents double punishment where the same conduct has already been penalised under the TPA or the Code of another jurisdiction. Section 37 directs all penalties, fines and fees (except damages recovered under applied ss 82 or 87) to the Commonwealth.

The Act is a classic application statute and therefore interacts with the Competition and Consumer Act 2010 (Cth) (CCA) by incorporating it by reference while expanding its personal scope. The relationship is symbiotic: the Schedule version of Part IV of the old TPA is now Part IV of the CCA; the NSW Act applies that Part (as amended) as State law.

Section 7 applies the Acts Interpretation Act 1901 (Cth) to the Code and disapplies the Interpretation Act 1987 (NSW). Section 3(2) provides that expressions defined in the TPA have the same meaning in the NSW Act unless contrary intention appears. Section 3(3) ensures that references to the TPA include amendments and successor Acts.

The Act also interacts with the Conduct Code Agreement of 11 April 1995 (defined in s 3), which is the inter-governmental compact that underpins the entire scheme. Each participating jurisdiction has enacted substantially identical application legislation, producing a web of mirror laws.

With respect to the Crown, the Act carves out a specific regime (Part 4) that sits alongside the Crown Proceedings Act 1988 (NSW) and any common-law prerogatives, which are expressly overridden by s 17.

Administrative law interaction is achieved by applying the Commonwealth administrative law package (s 29) as laws of New South Wales. The 2025 amendment inserting s 33A ensures that ART Act references do not inadvertently pick up the State version of Part 7.

Finally, s 39 permits regulations to create specific exceptions that engage the “authorised by law” defence in applied s 51 of the CCA.

The statute has been amended on several occasions, but the amendments have been largely mechanical.

The Competition Policy Reform (New South Wales) Amendment Act 1995 (No 99 of 1995) made minor definitional adjustments. In 1999 and 2000, amendments (1999 No 55, 2000 No 80) repealed the now-redundant Division 3 of Part 5 (which had dealt with certain ACCC functions) and updated administrative law cross-references after the Administrative Decisions (Judicial Review) Act 1977 (Cth) was restructured.

The Statute Law (Miscellaneous Provisions) Act (No 2) 2011 inserted Schedule 1, which deems pre-21 July 1996 authorisations and notifications under the TPA to be authorisations and notifications under the Code. This was a clean-up measure to avoid the need for businesses to obtain duplicate clearances.

Most recently, the Justice Legislation Amendment Act 2025 (No 38 of 2025) updated s 29 and inserted s 33A to accommodate the new Administrative Review Tribunal Act 2024 (Cth). The changes reflect the replacement of the Administrative Appeals Tribunal with the ART and ensure that Commonwealth merits review remains available on identical terms.

These amendments have not altered the substantive policy; they keep the NSW Act synchronised with evolving Commonwealth administrative infrastructure.

Because the Act is machinery rather than substantive law, most litigation has arisen under the applied Code rather than the application statute itself. Nevertheless, several constitutional and interpretive controversies are directly traceable to its structure.

The validity of the scheme rested on the States’ ability to apply Commonwealth law as their own law. The High Court upheld analogous arrangements in R v Hughes (2000) 202 CLR 535, confirming that Commonwealth officers may validly exercise powers conferred by State law provided there is a Commonwealth head of power supporting the Commonwealth’s participation. The present Act was drafted with Hughes principles in mind.

In ACCC v Baxter Healthcare Pty Ltd [2007] FCAFC 32 the Full Federal Court considered the interaction between the Crown immunity provisions in the NSW Act (mirrored in other jurisdictions) and the applied misuse of market power prohibition. The Court held that a State-owned corporation supplying pharmaceuticals was carrying on a business and was therefore not entitled to derivative Crown immunity. That reasoning flows directly from ss 13–16 of the present Act.

Extra-territoriality has generated controversy. Section 8(3)–(6) requires Commonwealth Ministerial consent before a private litigant may rely on conduct occurring outside Australia. In practice this has proved a significant procedural hurdle; consent has been refused where the foreign conduct was lawful in the place it occurred, consistent with the test in s 8(5).

The transitional provisions in Part 7 have produced disputes about the exact cut-off date (19 August 1994) and whether variations to pre-cut-off contracts remove grandfathering. Courts have applied s 41 strictly, looking to whether the variation introduced new anti-competitive elements.

No court has yet struck down any provision of the Act, but academic commentary has questioned the complexity of having eight separate but identical Codes plus the CCA, a criticism that led to the 2009–2010 reforms that renamed the TPA the CCA and further aligned the regimes.

Most practitioners assume that once the ACCC has granted authorisation under the CCA the same conduct is automatically immune in New South Wales. That is not quite right. While Schedule 1 deems pre-1996 authorisations to carry across, post-1996 authorisations granted under the CCA are effective under the Code only because s 35 validates things done for multiple purposes. The safer course is to obtain a single authorisation that expressly refers to both the CCA and “the Competition Code of New South Wales and of each participating jurisdiction”.

Another trap is the interaction between s 15 and the definition of “business”. Government departments often believe that any activity performed under statute cannot be “business”. Section 15(1)(d) makes clear that compulsory acquisition of primary produce is excluded, but a government marketing board that chooses to acquire produce on commercial terms will be treated as carrying on business and will be fully exposed to Part IV.

The two-year pecuniary penalty amnesty in s 43 is long expired, yet many older compliance programs still cite it. More dangerously, the transitional contract protection in s 41(2) continues indefinitely for contracts made before 19 August 1994. Lawyers acting on due diligence in corporate acquisitions frequently overlook that an old joint-venture agreement containing a market-sharing clause may still be immune from the Code even though the same clause in a new contract would be illegal.

Section 8(3) and (4) are regularly forgotten. A plaintiff who pleads overseas cartel conduct without first obtaining the Commonwealth Minister’s written consent risks having that part of the claim struck out. Consent will be refused if the conduct was required or authorised by foreign law and giving consent would not be in the national interest.

Finally, the disapplication of the Interpretation Act 1987 (NSW) by s 7(3) means that NSW-specific interpretive rules (e.g. the presumption that statutes do not bind the Crown) do not apply to the Code. Everything is interpreted through the Commonwealth Acts Interpretation Act 1901.

Compliance begins with recognising that the substantive obligations are identical to those under the CCA Part IV. A single compliance program that addresses cartel conduct, misuse of market power, exclusive dealing and resale price maintenance will satisfy both regimes provided it is tailored to non-corporate entities (e.g. partnerships, government businesses).

Organisations that are neither corporations nor Commonwealth entities should nevertheless register for ACCC immunity and notification processes. Authorisations should be drafted to refer expressly to “the Competition Code of New South Wales” to engage s 35.

Government departments and authorities must undertake a “business” audit. Any activity involving the supply of goods or services for value, even if not profit-making, is likely to constitute carrying on a business unless it falls squarely within one of the s 15 carve-outs. Once an activity is classified as business, full Part IV compliance is required.

Contracts entered before 19 August 1994 should be preserved in their original form; any variation should be scrutinised to ensure it does not introduce fresh anti-competitive provisions that would lose the s 41(1)(b) protection.

In litigation or regulatory investigations, practitioners must remember that Commonwealth criminal procedure and Commonwealth administrative review apply. FOI requests relating to Code matters should be directed to the ACCC under the Freedom of Information Act 1982 (Cth) as applied by s 30.

Finally, because fees and penalties flow to the Commonwealth (s 37), any internal budgeting or cost-recovery models must treat competition law compliance costs as ultimately benefiting the federal regulator. Regular liaison with the ACCC’s State liaison team is the most practical way to stay abreast of national enforcement priorities that will automatically apply in New South Wales by virtue of this Act.