Competition Policy Reform (Northern Territory) Act 1996

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Jurisdiction

Northern Territory

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act

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What this law does, in plain English

This Act makes the Northern Territory apply the national Competition Code (the Part IV text from the Competition and Consumer Act plus connected provisions and regulations) as a Territory law (see sections 4–6 and 5). The Code text is adapted where necessary so it fits the Territory context (s 4(2)).
It hands enforcement and administration roles for that Code to Commonwealth competition bodies (for example, the Australian Competition and Consumer Commission, the National Competition Council and the Australian Competition Tribunal) and treats those bodies as having the functions and powers given under the Code (s 19–20). Commonwealth officers may exercise the powers that Commonwealth law confers in relation to offences and administrative matters under the Code in the Territory (s 27, 32).
The Federal Court is given jurisdiction over civil and criminal matters arising under the Territory’s Competition Code; the Territory’s courts generally do not hear those matters (s 21–22). The Act also provides for Commonwealth criminal and administrative laws to apply to Code matters as if the Code were Commonwealth law (s 25–26, 30–31).
The Crown is brought within the reach of the application laws when it carries on a business, but with specific carve-outs for non‑business government activities (tax collection, licensing decisions, some intra‑Crown transactions and certain primary‑product acquisitions) and with protection from pecuniary penalties or prosecution for the Crown itself (ss 13–16). Authorities of the Crown do not enjoy the Crown’s protection from penalties (s 16(3)).

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What it does

The Competition Policy Reform (Northern Territory) Act 1996 is the legislative vehicle by which the Northern Territory adopted the national competition policy framework established by the Commonwealth Competition Policy Reform Act 1995. Its core function is to apply the Competition Code text, drawn from Part IV of the Competition and Consumer Act 2010 (Cth) and related provisions, as a law of the Territory. Section 4(1) defines the Competition Code text as consisting of the Schedule version of Part IV of the Competition and Consumer Act, the remaining provisions of that Act (except sections 2A, 5, 6 and 172) so far as they would relate to the Schedule version if it were substituted for Part IV, and the regulations under that Act so far as they relate to those provisions. Under section 5(1), this Code text as in force for the time being applies as a law of the Territory, subject to section 6 which deals with future modifications. Section 6 provides that a modification made by a Commonwealth law to the Code text does not apply under section 5 until at least two months after the date of the modification, unless the Minister appoints an earlier date by notice in the Gazette, and does not apply at all if the Minister declares it excluded by notice. The Act also ensures uniform national administration: Part 5, Division 1 sets out that the object is to help ensure the Competition Codes of all participating jurisdictions are administered on a uniform basis as if they constituted a single Commonwealth law (section 18). The Act confers functions on the Australian Competition and Consumer Commission, the Australian Competition Tribunal and the National Competition Council (section 19), confers jurisdiction on the Federal Court for all civil and criminal matters arising under the Competition Code of this jurisdiction (section 21), and excludes the jurisdiction of Territory courts except as preserved by cross-vesting laws (sections 22-23). It also applies Commonwealth criminal procedure and administrative laws to Code matters (Divisions 4 and 5). Part 4 binds the Crown in right of each jurisdiction so far as it carries on a business (sections 13-14), with specific exclusions for taxing, licensing and certain intra-government transactions (section 15). The Act contains transitional rules protecting existing contracts made before 19 August 1994 (section 41), a temporary exemption from pecuniary penalties for conduct within two years of royal assent to the Commonwealth Act (section 43), and a no-doubling-up provision preventing double punishment under the Code and the Commonwealth Act or another jurisdiction’s application law (section 34).

Current sections

Direct links to the current provisions in Competition Policy Reform (Northern Territory) Act 1996.

Official source available

Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.

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Sourced from NT Legislation (legislation.nt.gov.au), CC BY 4.0.

Who pays (direct financial flows): fees, fines and pecuniary penalties authorised under the application law must be paid to the Commonwealth (s 37(1)). That shifts revenue from Territory or local collection to the Commonwealth and assigns the Commonwealth the role of receiving enforcement proceeds (s 37).
Who decides (key points of discretion): the Minister may delay or exclude future Commonwealth modifications of the Code text from operating in the Territory by Gazette notice (s 6). The Commonwealth Minister must consent before Code provisions are relied on in proceedings for conduct occurring outside Australia (s 8(3)–(5)). The Administrator may make regulations consistent with the Act (s 38). Commonwealth officers exercise investigative, prosecutorial and administrative powers in the Territory and must act as nearly as practicable as they would under Commonwealth law (s 27(4), 32(4)). These are specific delegation and discretion nodes that determine how uniformity is implemented.
Behaviour changes required of private parties: businesses and persons carrying on activities within the Territory must comply with the Competition Code as applied here (s 8(1)). That includes compliance with conduct and cartel rules derived from the national Part IV text and related administrative obligations (ss 4–5, 8). Existing contracts are preserved or treated differently depending on their date (ss 40–44), so contract management and review will be necessary for firms with older agreements (s 41).
Compliance burden and enforcement cost: moving enforcement to Commonwealth bodies and the Federal Court centralises legal and administrative processes (ss 19–22, 25–33). Firms may face national‑level investigations and litigation rather than local enforcement, with attendant costs (legal representation, coordination across States, responding to Commonwealth information requests). The Act also prevents double punishment for the same conduct (s 34), which reduces some enforcement overlap.
Effects on competition, enterprise and contract freedom: applying a uniform national Code reduces the scope for Territory‑specific competition rules, substituting national standards for local variations (ss 4–6, 11–12). That can constrain certain local regulatory choices and require businesses to meet national competition obligations. Transitional provisions preserve some pre‑existing contractual arrangements (s 41) but allow Part IV to render certain post‑cut‑off provisions unenforceable (s 41(2)–(3), s 42).
Crown conduct and competitive effects: the Crown is subject to application laws when it carries on a business (s 13–14), but many government functions are excluded from being “business” (s 15). The Crown itself cannot be prosecuted or fined under the application law (s 16(1)–(2)), although government authorities do not share that immunity (s 16(3)). That allocation changes incentives for government trading entities and can affect competition between public and private suppliers.
Trade‑offs, opportunity costs and concentrated benefits: the Act concentrates enforcement, rulemaking and fee receipts at the Commonwealth level (ss 19, 21, 25, 37). Benefits from uniformity (predictable national rules) will be concentrated for firms operating across jurisdictions; compliance costs are spread across all businesses in the Territory required to adopt the national Code. The ability of the Territory to vary the national text is limited mechanically, though the Minister can delay or exclude specific Commonwealth modifications (s 6), and the Administrator may make regulations consistent with the Act (s 38).
Implementation risk and legal complexity: the Act cross‑references the national Competition and Consumer Act, the Schedule version of Part IV, Commonwealth regulations and other participating jurisdictions’ application laws (ss 3, 4, 11–12). This multi‑instrument network means changes at Commonwealth level, and in other jurisdictions, automatically affect Territory law subject to the delay/ exclusion power (s 6). That cross‑linking increases the risk of timing mismatches, interpretive disputes and coordination challenges between Territory and Commonwealth authorities.

Main concepts

The central concept is the Competition Code, defined in section 3 as meaning, according to the context, the Competition Code text or that text applying as a law of a participating jurisdiction with or without modifications. The Competition Code text (section 4) is an amalgam of provisions drawn from the Commonwealth Competition and Consumer Act 2010: the Schedule version of Part IV (which contains the core prohibitions on anti-competitive conduct such as cartel conduct, misuse of market power, exclusive dealing and resale price maintenance), plus the other provisions of that Act (excluding sections 2A, 5, 6 and 172) so far as they relate to the Schedule version, and the regulations under that Act. These provisions are modified as necessary to fit with the Schedule version, and in particular references to corporations include references to persons who are not corporations (section 4(2)). An application law is defined broadly in section 3 to include a law of a participating jurisdiction that applies the Competition Code with or without modifications, any regulations or instruments under that law, and the Code itself applying as a law of that jurisdiction. A participating jurisdiction means a jurisdiction that is a party to the Conduct Code Agreement made on 11 April 1995 and applies the Competition Code as a law. The Conduct Code Agreement is defined by reference to that intergovernmental agreement as in force for the time being. The Act also defines key Commonwealth bodies that administer the Code: the Commission (the Australian Competition and Consumer Commission), the Tribunal (the Australian Competition Tribunal), and the Council (the National Competition Council). The concept of carrying on a business is critical for the application of the Code to the Crown. Section 15(1) provides that certain activities do not amount to carrying on a business for the purposes of Crown application: imposing or collecting taxes, levies or licence fees; granting, refusing, revoking, suspending or varying licences (subject to a definition of licence as one that allows supply of goods or services); transactions involving only persons acting for the Crown in the same right, or only authorities of the same State that are non-commercial; and acquisition of primary products by a government body under legislation unless the body chooses to acquire or fails to exercise a discretion not to. A non-commercial authority is defined in section 15(4) as one constituted by only one person and that is neither a trading corporation nor a financial corporation. The Crown in any capacity is not liable to pecuniary penalty or prosecution under the application law, but this protection does not extend to an authority of any jurisdiction (section 16). The Act contains transitional definitions: the cut-off date is 19 August 1994, and an existing contract is one made before the operative date (the commencement of Parts 2 to 6 of the Act). The Schedule version of Part IV is the text set out in Schedule 1, Part 1 of the Competition and Consumer Act. The concept of this jurisdiction means the Territory, and State includes a Territory (section 3).

Who it affects

The Competition Code of the Territory applies to a broad range of persons and entities connected to the Northern Territory. Section 8(1) specifies that the Code applies to and in relation to four categories: (a) persons carrying on business within this jurisdiction; (b) bodies corporate taken to be registered in the Territory by virtue of section 119A of the Corporations Act 2001; (c) persons ordinarily resident in this jurisdiction; or (d) persons otherwise connected with this jurisdiction. This casts a wide net, covering not only businesses physically operating in the NT but also corporations registered there and any person with a sufficient connection. The Code extends extraterritorially: section 8(2) provides that it extends to conduct and other acts, matters and things occurring or existing outside or partly outside the Territory, whether within or outside Australia. However, for conduct occurring outside Australia, a person cannot rely on a claim under section 82 (damages) or make an application for orders under section 87(1) or (1A) without the written consent of the Commonwealth Minister, and the Minister must give consent unless the law of the foreign country required or specifically authorised the conduct and it is not in the national interest (sections 8(3)-(5)). The Crown in right of the Territory and of each other participating jurisdiction is bound by the application law so far as the Crown carries on a business, either directly or by an authority of the jurisdiction concerned (sections 13-14). This means government business enterprises and commercial activities of the Crown are subject to the Code. However, the Crown itself is not liable to pecuniary penalty or prosecution for an offence (section 16(1)-(2)); that immunity does not extend to an authority of any jurisdiction (section 16(3)). So authorities such as statutory corporations carrying on business are fully liable. Commonwealth officers and authorities (the ACCC, the Tribunal, the Council) have functions and powers under the Code (section 19), and in relation to offences, Commonwealth criminal laws apply and Commonwealth officers have the same functions and powers as they have for corresponding offences under the Competition and Consumer Act (sections 27, 25-26). Officers and authorities of the Territory are restricted from exercising those functions or powers where they are conferred on Commonwealth officers by reason of Division 4 or Division 5 (sections 28, 33). The Act also affects persons who have existing contracts: those made before the cut-off date of 19 August 1994 are protected from contravention findings and unenforceability under Part IV of the Code, unless varied after that date (section 41).

Key duties and rights

The substantive duties arise under the Competition Code text as applied by this Act. That text includes the Schedule version of Part IV of the Competition and Consumer Act, which prohibits anti-competitive conduct such as contracts, arrangements or understandings that substantially lessen competition (section 45 of the Code), cartel conduct (price fixing, bid rigging, output restrictions, market sharing), misuse of market power, exclusive dealing (subject to notification), and resale price maintenance. Persons subject to the Code must not engage in such conduct. The duties apply not only to corporations but also to individuals, because section 4(2)(b) extends references to corporations to include references to persons who are not corporations. The Act confers rights to seek remedies for contraventions. Section 82 of the Code (applied via the Code text) provides a right to recover damages for loss or injury caused by a contravention. Section 87 provides for orders (such as injunctions, compensation orders, and other remedial orders). However, the Act restricts those rights in relation to extraterritorial conduct: for conduct occurring outside Australia, a person cannot rely on a section 82 claim or make an application for orders under section 87(1) or (1A) without the written consent of the Commonwealth Minister, and the Minister must give that consent unless the foreign law required or specifically authorised the conduct and it is not in the national interest (section 8(3)-(5)). The right to seek authorisation or notification for conduct that might otherwise contravene the Code is available. Section 44 allows advance authorisations to be applied for and granted under the Code from the commencement of that section, as if the whole Act commenced at the same time. Authorisations provide immunity from legal proceedings if granted. The Act also gives rights under Commonwealth administrative laws: the Administrative Review Tribunal Act 2024 (Cth), the Administrative Decisions (Judicial Review) Act 1977 (Cth), the Freedom of Information Act 1982 (Cth), the Ombudsman Act 1976 (Cth), and the Privacy Act 1988 (Cth) apply as laws of the Territory to matters arising under the Competition Code of this jurisdiction (section 30) and of other participating jurisdictions (section 31). This means persons affected by decisions of the ACCC or the Tribunal under the Code have access to merits review, judicial review, freedom of information, ombudsman complaints, and privacy protections. The no-doubling-up provision in section 34 creates a right not to be punished twice for the same conduct: if an act or omission is an offence under the Competition Code of this jurisdiction and also under the Competition and Consumer Act or another jurisdiction’s application law, and the offender has been punished under the other law, they are not liable to be punished under this Code. Similarly, if a pecuniary penalty has been imposed under the Commonwealth Act or another jurisdiction’s law, no pecuniary penalty is payable under the NT Code in respect of the same conduct.

Penalties and enforcement

Penalties for contraventions of the Competition Code of the Territory include pecuniary penalties under section 76 of the Code (the maximum penalties are set by the Code text, which mirrors the Commonwealth Act). The Crown is not liable to a pecuniary penalty or to be prosecuted for an offence under the application law (section 16(1)-(2)), but this immunity does not extend to authorities of any jurisdiction (section 16(3)). There is a temporary exemption from pecuniary penalties for conduct that happens within two years after the day on which the Competition Policy Reform Act 1995 (Cth) received the Royal Assent (section 43(1)), and this period is extended if commencement of the Act’s provisions is postponed (section 43(2)). The no-doubling-up provision in section 34 prevents a person from being punished or ordered to pay a pecuniary penalty under this Code if they have already been dealt with under the Commonwealth Act or another jurisdiction’s application law for the same conduct. Enforcement of the Code is primarily through the Federal Court, which has jurisdiction conferred under section 21 for all civil and criminal matters arising under the Competition Code of this jurisdiction. The courts of the Territory do not have jurisdiction with respect to those matters, subject to the operation of cross-vesting laws (sections 22-23). This means that all proceedings under the Code (including private damages actions and ACCC enforcement) must be brought in the Federal Court. Part 5 Division 4 provides that offences against the Competition Code of this jurisdiction are to be treated as if they were offences against a law of the Commonwealth. Section 25(1) provides that Commonwealth laws apply as laws of this jurisdiction in relation to such offences as if the Code were a Commonwealth law. Section 25(2) provides that for the purposes of a law of this jurisdiction, an offence against the Code is taken to be an offence against Commonwealth laws and not against Territory laws. This ensures that Commonwealth criminal procedure, sentencing, bail, evidence, and proceeds of crime laws apply. Section 27 confers on Commonwealth officers and authorities (such as the ACCC and the Australian Federal Police) the same functions and powers in relation to offences under the Code as they have for corresponding offences under the Competition and Consumer Act. Conversely, officers and authorities of the Territory are restricted from performing those functions or powers where they are conferred on Commonwealth officers by reason of the Division (section 28). For enforcement of civil penalties, the ACCC can seek orders in the Federal Court. Fees, taxes, penalties and fines payable under the application law are paid to the Commonwealth (section 37(1)), except amounts recovered for loss or damage under sections 82 or 87 and other amounts prescribed (section 37(2)). Section 37(3) imposes fees prescribed by the regulations in the Code.

How it interacts with other laws

The Act operates as part of a national competition policy framework. It applies the Competition Code text as a Territory law, but ensures uniform administration with the Commonwealth Competition and Consumer Act and the application laws of other participating jurisdictions. Section 34 (no doubling-up of liabilities) explicitly coordinates enforcement: if an act or omission is an offence under both this Code and the Commonwealth Act or another jurisdiction’s application law, and the person has been punished under the other law, they are not liable to punishment under this Code. The same applies to pecuniary penalties. This prevents double jeopardy across the national scheme. Section 35 provides that the validity of an authorisation, notification or other thing given or done for the purposes of the Competition Code of this jurisdiction is not affected merely because it was also given or done for the purposes of the Commonwealth Act or the Code of another jurisdiction. This facilitates joint processes. For interpretation, section 7(1) provides that the Commonwealth Acts Interpretation Act 1901 applies as a law of the Territory to the Competition Code of this jurisdiction and any instrument under it, as if the Code were a Commonwealth Act and the regulations were Commonwealth regulations. The Territory’s Interpretation Act 1978 does not apply to the Competition Code or any instrument under it (section 7(3)). This ensures uniform interpretation across participating jurisdictions. When Commonwealth laws are applied to Code matters under sections 25, 26, 30 or 31, section 36 provides that a reference in that Commonwealth law to a provision of that or another Commonwealth law is taken to be a reference to that provision as applying because of the relevant section. This ensures that cross-references in Commonwealth laws work correctly when applied to Code offences or administrative matters. The Act does not affect the operation of any law of the Territory relating to cross-vesting of jurisdiction (section 23), so the cross-vesting scheme between State and Federal courts remains intact. The Act also allows regulations to be made under section 39 specifically authorising a thing to be done in the Territory and referring expressly to the Competition and Consumer Act or the Competition Code. This power is without limiting any other regulation-making power under any other Act, and provides a mechanism for creating exceptions or authorisations under section 51 of the Code. The transitional rules in Part 7 interact with the Commonwealth legislation: section 42 provides that for conduct taking place before the end of three years after royal assent to the Commonwealth Competition Policy Reform Act 1995, a particular thing is to be disregarded under the Code to the same extent it is disregarded under the Commonwealth Act because of section 33 of that Commonwealth Act. This aligns the transitional period for existing exemptions. Finally, the definition of the Competition Code text in section 4 incorporates the Schedule version of Part IV and the remaining provisions of the Competition and Consumer Act as amended from time to time, subject to the timing mechanism in section 6. This means the NT Code is always aligned with the Commonwealth Act except where the Minister excludes or delays a modification.

Amendment history

The Competition Policy Reform (Northern Territory) Act 1996 was originally enacted as Act No. 28 of 1996, assented to on 28 June 1996. Sections 1 to 3 and Part 7 (sections 40-45) commenced on that date, and the remaining provisions commenced on 21 July 1996, being the first day after the end of 12 months after the Competition Policy Reform Act 1995 (Cth) received the Royal Assent, as provided in section 2. The Act has been amended by several subsequent enactments. The Competition Policy Reform (Northern Territory) Amendment Act 1999 (Act No. 47, 1999) commenced on 10 December 1999 and amended sections 3 and 7. The Corporation Reform (Consequential Amendments NT) Act 2001 (Act No. 17, 2001) commenced on 15 July 2001 and amended section 8 to update the reference to section 119A of the Corporations Act 2001. The Consumer Affairs and Fair Trading Amendment (National Uniform Legislation) Act 2010 (Act No. 41, 2010) commenced on 1 January 2011 and made several amendments: it amended sections 3, 4, 8, 27, 34, 35, 39, and 42, updating references from the Trade Practices Act 1974 (Cth) to the Competition and Consumer Act 2010 (Cth). This was a consequential amendment following the renaming and restructure of the Commonwealth Act. The Oaths, Affidavits and Declarations (Consequential Amendments) Act 2010 (Act No. 40, 2010) commenced on 1 March 2011 and amended section 3. The Justice and Other Legislation Amendment (Australian Crime Commission) Act 2017 (Act No. 9, 2017) commenced on 31 May 2017 and amended section 21. The most recent amendment is the Statute Law Revision and Repeals Act 2026 (Act No. 3, 2026), which commenced on 10 February 2026. It amended sections 2, 7, 29, and 42. Notably, section 29 was amended to update the list of Commonwealth administrative laws: the reference to the Administrative Appeals Tribunal Act 1975 (Cth) was replaced with the Administrative Review Tribunal Act 2024 (Cth), reflecting the establishment of the new Administrative Review Tribunal. Section 42 was also amended in 2026, likely to remove or update transitional provisions that have expired. The endnotes also record that general amendments of a formal nature were made by the Interpretation Legislation Amendment Act 2018 (Act No. 22 of 2018) to sections 1 and 7. The Act has thus been updated over three decades to maintain consistency with the evolving Commonwealth competition law framework and administrative law reforms.

Litigation history

The Act itself is an application statute and does not create stand-alone causes of action; litigation under the Competition Code of the Territory proceeds under the substantive provisions of the Code text as applied. The source does not name any specific cases litigated under the NT Code. However, the Act’s provisions on jurisdiction and enforcement have structural implications for litigation. Section 21 confers jurisdiction on the Federal Court for all civil and criminal matters arising under the Competition Code of this jurisdiction, and section 22 excludes the courts of the Territory from that jurisdiction (subject to cross-vesting). This means that any proceedings under the Code must be brought in the Federal Court, whether by the ACCC or by private litigants. The cross-vesting preservation in section 23 means that the Federal Court’s jurisdiction can be transferred to State or Territory courts under cross-vesting laws, but the default is exclusive Federal Court jurisdiction. In practice, most competition litigation under the NT Code would be heard in the Federal Court’s Northern Territory Registry or could be transferred to other registries. The Act provides for uniform administration: section 18 states that the object of Part 5 is to ensure the Codes are administered on a uniform basis as if they constituted a single Commonwealth law. This has led to courts interpreting the NT Code consistently with the Commonwealth provisions, applying a national approach. The offences provisions in Division 4 ensure that criminal proceedings follow Commonwealth criminal procedure, which has been well litigated in the context of cartel prosecutions under the Commonwealth Act. The application of Commonwealth administrative laws (Division 5) means that decisions under the Code are reviewable by the Administrative Review Tribunal and the Federal Court under the ADJR Act and the Ombudsman Act, generating a body of administrative law decisions. The no-doubling-up provision in section 34 would be invoked in litigation where a person faces proceedings under multiple laws for the same conduct, requiring the court to determine if the conduct is the same. The transitional provisions in Part 7 have been the subject of interpretation in relation to existing contracts and the cut-off date. The cut-off date of 19 August 1994 is the date of the Hilmer Report or the intergovernmental agreement; contracts made before that date are largely immune from the Code’s prohibitions unless varied. Section 41(1)(b) provides that if an existing contract made before the cut-off date is varied on or after that date, things done to give effect to the varied contract are not disregarded unless they would have been disregarded under the contract as in force immediately before the cut-off date. This has given rise to disputes about what constitutes a variation and whether pre-existing contract protections survive. Section 41(2) provides that Part IV does not make unenforceable a provision of an existing contract made before the cut-off date unless it was unenforceable immediately before the operative date, which incorporates pre-existing law. Overall, the litigation history under the NT Act tracks the broader Australian competition law jurisprudence, with the NT provisions interpreted consistently with the Commonwealth Act.

Gotchas

Practitioners should be alert to several traps arising from the Act’s structure. First, although the Competition Code of the Territory applies as a Territory law, the Act strips Territory courts of jurisdiction over Code matters (section 22). Proceedings must be brought in the Federal Court unless cross-vesting operates. This is a significant practical constraint for local litigants who might prefer the Local Court or Supreme Court. Second, the Crown in any capacity is immune from pecuniary penalties and prosecution (section 16(1)-(2)), but this immunity does not extend to an authority of any jurisdiction (section 16(3)). A government business enterprise that is an authority can be penalised, but a government department carrying on the same activity directly might not be. The distinction between Crown and authority is critical. Third, the application of the Code to extraterritorial conduct is broad (section 8(2)), but any claim for damages or orders under sections 82 or 87 in respect of conduct outside Australia requires the written consent of the Commonwealth Minister, and the Minister must consent unless foreign law required or specifically authorised the conduct and it is not in the national interest (section 8(3)-(5)). A litigant cannot simply bring a private action for overseas conduct without Ministerial approval. Fourth, future modifications to the Competition Code text by Commonwealth law do not automatically apply in the Territory for at least two months after the modification date (section 6(1)(a)), and the Minister can exclude a modification entirely (section 6(1)(b)). This means the Territory Code may be out of step with the Commonwealth Act for a period. Practitioners must check whether any modification has been excluded or delayed. Fifth, the no-doubling-up provision in section 34 only applies if the person has already been punished or ordered to pay a pecuniary penalty under the Commonwealth Act or another jurisdiction’s application law. If proceedings are brought concurrently, there is no protection; the person may face multiple proceedings until one concludes. Sixth, the transitional rules on existing contracts are complex. A contract made before 19 August 1994 is largely immune from Part IV of the Code, but if it is varied on or after that date, the protection is limited to what would have been disregarded under the contract as it stood before the cut-off date (section 41(1)(b)). Any variation, even minor, can expose the contract to scrutiny. Seventh, all fees, penalties, fines and pecuniary penalties payable under the application law must be paid to the Commonwealth, not to the Territory (section 37(1)). This means that a successful ACCC enforcement action results in money going to the Commonwealth, not the local budget. Eighth, the Commonwealth administrative laws that apply include the Administrative Review Tribunal Act 2024 (Cth), but decisions made under the Code are subject to that tribunal, not the Northern Territory Civil and Administrative Tribunal. Ninth, the Act provides that the Crown is bound by the application law of other participating jurisdictions (section 14), but only so far as the Crown carries on a business. The definition of activities that are not business (section 15) is exclusive in that it does not limit what else might be non-business, but the list is narrow. Government entities that issue licences (not for supply) or collect taxes are safe, but many commercial activities are covered. Tenth, the advance authorisation provision in section 44 allowed applications from the commencement of that section (28 June 1996) even before the substantive Code provisions commenced (21 July 1996). That timing is now historical, but the principle that authorisations can be sought before conduct commences remains important.

How to comply

Compliance with the Competition Code of the Territory begins with understanding the substantive prohibitions in Part IV of the Code text as applied. Businesses and individuals subject to the Code must identify whether they are within the scope of section 8(1): carrying on business in the NT, registered under the Corporations Act, ordinarily resident, or otherwise connected. If so, they must ensure their commercial agreements, pricing conduct, market behaviour and mergers do not contravene the prohibitions on cartel conduct, misuse of market power, exclusive dealing, resale price maintenance, and other anti-competitive arrangements. Because the Code extends extraterritorially (section 8(2)), a business based elsewhere but with a connection to the NT may also be caught. If conduct occurs outside Australia, any private claim for damages or orders will require Commonwealth Ministerial consent (section 8(3)-(4)). Entities dealing with overseas transactions should factor in that consent process if they anticipate litigation. For conduct that may raise competition concerns, the Code provides for authorisation by the ACCC and notification (for exclusive dealing and resale price maintenance). Section 44 confirms that authorisation can be sought and granted under the Code. Seeking authorisation provides immunity from legal proceedings once granted. The ACCC also has powers to grant notifications for exclusive dealing and collective bargaining. The process under the Code mirrors the Commonwealth process, and applications can be made jointly for the NT and Commonwealth Acts (section 35 allows a single authorisation to serve both purposes). Because the Code is interpreted using the Commonwealth Acts Interpretation Act 1901 (section 7), practitioners should rely on Commonwealth case law and guidance. The ACCC publishes guides and determinations that apply consistently across jurisdictions. Compliance programs should be designed to address the Code’s prohibitions as they apply to individuals (not just corporations), given the extension in section 4(2)(b). For government entities, the Crown immunity from penalties (section 16) is limited: authorities of a State are not immune. A government business enterprise should treat itself as fully subject to the Code. However, the Crown itself (departments) is immune from penalties, but it is still bound by the Code’s prohibitions and can be subject to injunctions or other non-pecuniary orders. The exceptions in section 15 for non-business activities (taxing, licensing, certain intra-government transactions, compulsory acquisition of primary products) should be carefully reviewed to ensure the activity fits within the narrow definitions. If an activity does not amount to carrying on a business, the Crown is not bound by the Code in respect of that activity. For entities with existing contracts, review the date the contract was made. If before 19 August 1994 (the cut-off date), the contract is largely protected from Part IV contravention and unenforceability, unless it was varied after that date (section 41). Any variation should be analysed to see if it changes the contract in a way that would expose it to scrutiny. If the contract was made on or after the cut-off date but before the operative date (21 July 1996), it is not protected. In practice, this is now historical, but the principle of protection for pre-reform contracts is still relevant for long-term agreements. All proceedings under the Code must be in the Federal Court (section 21), so any litigation strategy must account for Federal Court jurisdiction and procedures. The Code’s penalty regime is aligned with the Commonwealth Act; compliance failures risk substantial pecuniary penalties and criminal sanctions for cartel conduct. Finally, monitor changes to the Competition Code text made by Commonwealth law. Under section 6, a modification may not apply in the NT for two months or may be excluded. The NT Government publishes notices in the Gazette. Practitioners should check whether a modification has been adopted or excluded before relying on the latest Commonwealth version.