Competition Policy Reform (Queensland) Act 1996

The Competition Code of Queensland applies to and in relation to four classes of person or entity (s 8(1)):

• persons carrying on business within Queensland;
• bodies corporate incorporated or registered under Queensland law;
• persons ordinarily resident in Queensland; and
• persons otherwise connected with Queensland.

The Code extends to conduct occurring outside Queensland (including outside Australia) subject to the requirement that, for private claims under Code s 82 or applications for orders under Code s 87(1) or (1A), written consent of the Commonwealth Minister (defined in s 8(6) as the Minister administering Part IV of the Competition and Consumer Act) must first be obtained (s 8(3)–(4)). The Minister must grant consent unless the overseas conduct was required or authorised by foreign law and it is not in the national interest to consent (s 8(5)).

Crown entities are affected in two distinct ways. The application law binds the State of Queensland and other States “so far as the relevant State carries on a business” (s 13, as substituted in 1999). However, a detailed list of governmental activities is deemed not to constitute carrying on a business (s 15(1)). These include tax and levy collection, the grant or revocation of licences, intra-governmental transactions, and the acquisition of primary products by a government body under legislation unless the body has a real choice (s 15(1)(d)). An authority of a State is “non-commercial” (and therefore wholly outside the business concept) if it is constituted by only one person and is neither a trading nor a financial corporation (s 15(4)).

Commonwealth bodies are directly affected in their administrative capacity. The Commission, Tribunal and Council are clothed with all functions and powers conferred by the Queensland Code and may do all things necessary or convenient to exercise them (s 19). Commonwealth officers and authorities also receive corresponding functions in relation to offences and administrative review (ss 27 and 32). Conversely, Queensland officers and authorities are prohibited from performing any function or power that has been conferred on a Commonwealth counterpart (ss 28 and 33).

Participants in pre-1994 contracts receive special transitional protection (Part 7). Contracts made before the cut-off date of 19 August 1994, and conduct giving effect to them, are disregarded when assessing Part IV contraventions after the operative date, subject to limited carve-outs for post-cut-off variations (s 41(1)). Advance authorisations and notifications under Code ss 88 and 93 may be sought and granted immediately upon commencement of the relevant provisions (s 44).

Finally, any person who has already been punished under the Competition and Consumer Act or another jurisdiction’s application law for the same act or omission is immune from further punishment or pecuniary penalty under the Queensland Code (s 34(1)–(2)).

The Act itself creates few standalone duties; its primary function is to apply the Competition Code. Nevertheless, several procedural and substantive rights and duties flow directly from its provisions.

Rights include the ability of any person connected with Queensland to seek authorisation or notification under the Code as if the entire Act had commenced (s 44). Claimants have a right to apply to the Court for relief under Code s 87(1) or (1A) provided they first obtain the Commonwealth Minister’s written consent where the conduct occurred outside Australia (s 8(4)). Defendants in proceedings based on overseas conduct may rely on that conduct only with the same ministerial consent (s 8(3)).

Duties are largely procedural. Where a regulation postpones commencement, the postponement must be effected before the provisions have in fact commenced (s 2(3)). Regulations that accelerate the application of a Commonwealth modification cannot set a date earlier than notification or the modification’s effective date (s 6(2)). A regulation excluding a modification must be notified within two months of the Commonwealth change (s 6(3)). The Commonwealth Minister must give or refuse consent for extraterritorial reliance within the statutory criteria in s 8(5).

Public authorities have a duty to observe the boundary between commercial and non-commercial activities set out in s 15. An authority that crosses into “business” becomes subject to the Code in the same way as a private entity. Conversely, the State itself enjoys an absolute immunity from pecuniary penalties and prosecution (s 16(1)–(2)), although this does not extend to its authorities (s 16(3)).

All fees, taxes, penalties (including Code s 76 pecuniary penalties), fines and other money payable under the application law must be paid to the Commonwealth (s 37(1)). This constitutes an imposition of taxation to the extent that the Code regulations prescribe fees that are taxes (s 37(3)).

The interpretive overlay in s 7 applies the Acts Interpretation Act 1901 (Cth) (as modified) to the Code and excludes the Acts Interpretation Act 1954 (Qld). Any expression defined in the Competition and Consumer Act bears the same meaning in this Act unless a contrary intention appears (s 3(2)). References to Commonwealth Acts are ambulatory and include amendments and substitutes (s 3(3)).

The Act does not itself prescribe penalties; it applies those contained in the Competition Code. However, it modifies their enforcement in three important respects.

First, no State is liable to a pecuniary penalty or prosecution (s 16(1)). This protection is duplicated for Queensland in respect of any other participating jurisdiction’s application law (s 16(2)). The immunity does not extend to authorities of a State (s 16(3)).

Second, double-jeopardy protection is absolute. If conduct constitutes an offence against both the Queensland Code and either the Competition and Consumer Act or another jurisdiction’s application law, and the person has already been punished under the Commonwealth or other law, no further punishment may be imposed under the Queensland Code (s 34(1)). The same rule applies to pecuniary penalties: prior payment under the Commonwealth Act or another application law bars a further Queensland penalty for the same conduct (s 34(2)).

Third, enforcement is nationalised. Commonwealth laws relating to investigation, prosecution, arrest, bail, trial, sentencing, appeals, proceeds of crime and spent convictions apply as laws of Queensland to Code offences as if the Code were a Commonwealth law (ss 24–26). The same Commonwealth laws apply to administrative review, freedom of information, Ombudsman and privacy matters (ss 29–33). Queensland officers are barred from exercising any function conferred on a Commonwealth officer or authority (ss 28 and 33).

The Commission and Tribunal may exercise powers in Queensland in respect of another jurisdiction’s Code (s 20). Conversely, functions conferred by the Queensland Code on Commonwealth bodies may be exercised throughout Australia (s 19(2)).

Temporary exemptions from pecuniary penalties applied for conduct occurring within two years after 20 July 1995 (s 43(1)), with the period extended if commencement of the Act was postponed under s 2 (s 43(2)). Transitional disregard of pre-19 August 1994 contracts (s 41) also affects the availability of enforcement remedies.

The Act is expressly designed to sit atop, and incorporate, the Competition and Consumer Act 2010 (Cth). The Competition Code text is defined by reference to the Schedule version of Part IV and the remainder of the Commonwealth Act (s 4(1)). Amendments to the Commonwealth Act are picked up after a two-month lag or earlier by regulation (s 6). References in the Code to the Competition and Consumer Act are read as ambulatory (s 3(3)).

Commonwealth administrative laws listed in s 29 (the Administrative Review Tribunal Act 2024 (Cth) excluding Part 7, Freedom of Information Act 1982 (Cth), Ombudsman Act 1976 (Cth) and Privacy Act 1988 (Cth)) are applied as laws of Queensland to Code matters (s 30). A special construction rule in s 33A ensures that references to Part 7 of the Administrative Review Tribunal Act 2024 (Cth) are read as referring only to the Commonwealth version of that Part.

The Acts Interpretation Act 1901 (Cth) applies to the Code and instruments made under it; the Queensland equivalent is expressly excluded (s 7(3)). Offence-related Commonwealth laws are applied with the same interpretive overlay (s 25(1)).

Interaction with other Queensland legislation is minimised. The application law binds the State only so far as it carries on business (s 13). Section 17 provides that if another participating jurisdiction’s law binds Queensland, the State is subject to it despite any prerogative right or privilege. Section 36 ensures that references in Commonwealth law to its own provisions are read as including those provisions as applied by ss 25, 26, 30 or 31.

The Conduct Code Agreement of 11 April 1995 is the political foundation for the entire scheme; participating jurisdictions are defined by reference to it (s 3). The Act implements Queensland’s obligations under that Agreement without creating justiciable rights or duties beyond those contained in the Code itself.

No doubling-up of liability occurs where conduct is regulated by both the Code and the Competition and Consumer Act or another application law (s 34). Things done for multiple purposes (e.g. authorisations that satisfy both Commonwealth and State requirements) remain valid (s 35).

The text records several amendments that reflect the evolution of the national scheme.

The most significant nomenclature shift occurred in 2010 (2010 No. 54 s 67 sch). Every reference to the Trade Practices Act 1974 was replaced by reference to the Competition and Consumer Act 2010 (Cth). Definitions of “Commission”, “Council”, “officer”, “Schedule version of Part IV” and “Tribunal” were updated accordingly. The definition of “Trade Practices Act” was omitted. These changes were necessary to maintain alignment after the Commonwealth re-named and re-structured its statute.

In 1999 two substantive amendments were made. Sections 13, 14, 16 and 17 were substituted or amended (1999 No. 72 s 37 sch) to clarify the extent to which the application law binds the Crown. The new wording limited the binding effect to circumstances where the State “carries on a business, either directly or by an authority of that State”. Section 15’s list of non-business activities was inserted at the same time to protect core governmental functions.

Jurisdictional provisions were removed in 1999 and 2001. Sections 21, 22 and 23 (which had conferred jurisdiction on the Federal Court, Queensland courts and cross-vesting arrangements) were omitted (1999 No. 34 s 17; 2001 No. 27 s 9). This reflected the policy that all Code litigation should proceed in the Federal Court under Commonwealth procedural law.

Administrative review updates continued into the 21st century. The definition of “Commonwealth administrative laws” in s 29 was amended in 2001 (2001 No. 27 s 10) and again in 2024 (2024 No. 47 s 78 sch 2) to substitute the Administrative Review Tribunal Act 2024 (Cth) for its predecessor. Section 33A was inserted in 2001 and amended in 2024 to ensure that references to the excluded Part 7 of the Tribunal Act are read as referring only to the Commonwealth version.

These changes were driven by the need to keep the Queensland application legislation mechanically aligned with Commonwealth reforms, to preserve governmental immunities after the Hilmer Report implementation, and to respond to evolving federal administrative law architecture. The core policy of a single national competition law administered by federal bodies has remained unchanged.

The source text does not record specific court challenges. However, several provisions are clearly drafted in response to anticipated constitutional or jurisdictional difficulties.

The extraterritorial reach in s 8(2) is expressly conditioned on ministerial consent for private actions (s 8(3)–(4)). The criteria in s 8(5) (foreign law authorisation plus national interest) mirror the language used in Commonwealth legislation and reflect the need to avoid conflict with foreign sovereignty. The requirement that consent be in writing and given (or refused) on statutory grounds reduces the risk of judicial review for improper purpose.

The Crown-binding provisions (ss 13–17) were substantially rewritten in 1999. The earlier text had been open to argument that it purported to bind the Crown beyond legislative power. The substituted sections limit binding effect to circumstances where the State “carries on a business” and expressly override prerogative rights (s 17). Section 15’s exhaustive list of non-business activities was inserted to foreclose litigation over the scope of “business”.

The application of Commonwealth administrative laws (ss 29–33) and the construction rule in s 33A address potential difficulties arising from the different statutory interpretation regimes. By applying the Acts Interpretation Act 1901 (Cth) and excluding the Queensland Act (s 7), the legislation seeks to prevent divergent interpretations that could undermine national uniformity.

Transitional provisions (Part 7) were controversial at the time of introduction because they created differential treatment based on contract date. The cut-off date of 19 August 1994 (the date of the inter-governmental agreement) and the two-year penalty amnesty (s 43) were pragmatic responses to concerns that immediate application of the new rules would upset settled commercial arrangements and expose parties to unforeseen liability.

No provision in the Act has been struck down. The repeated amendment notes indicate that Parliament has preferred legislative fine-tuning over litigation.

Most practitioners assume the Code applies identically to the Competition and Consumer Act. In fact s 4(2) requires modifications “as necessary to fit in with the Schedule version of Part IV”, and in particular converts all references to corporations into references to persons. This expands the reach of the prohibitions to natural persons and unincorporated entities in a way that does not occur under the standalone Commonwealth Act.

The two-month lag for Commonwealth amendments (s 6(1)) creates a moving target. A modification made by a Commonwealth Act that receives Royal Assent on 1 January will not apply in Queensland until 1 March unless a regulation appoints an earlier date. Compliance programs that assume instantaneous alignment can therefore be defective for up to two months.

Section 15’s definition of non-business activities is narrower than many expect. The exemption for “acquisition of primary products by a government body under legislation” is lost if the body has any real discretion not to acquire (s 15(1)(d)). Marketing boards and statutory purchasers must therefore analyse their enabling legislation with care.

The immunity from pecuniary penalties for the State (s 16) does not protect authorities. A single-person statutory corporation that is a trading corporation will be fully exposed even if it performs public functions. The “non-commercial authority” test in s 15(4) is binary and unforgiving.

Transitional protection for pre-19 August 1994 contracts (s 41) is not absolute. If the contract is varied after that date, the variation can bring the entire arrangement within Part IV unless the conduct would have been disregarded under the pre-variation terms. Careful file notes of the exact contractual position at the cut-off date are essential.

Fees and penalties must be paid to the Commonwealth (s 37(1)). A Queensland court order directing payment to the State Treasury will be ineffective. Conversely, damages recovered under Code s 82 or 87 are excluded from the payment obligation (s 37(2)).

Finally, the definition of “instrument” in s 3 is extraordinarily broad. It includes awards, industrial agreements, indictments, affidavits and warrants. Any reference in such an instrument to “the Competition Code” is taken to mean the Codes of all participating jurisdictions unless context requires otherwise (s 11(2)–(3)). This can produce unexpected choice-of-law results in industrial or criminal proceedings.

Compliance begins with a mapping exercise. Identify every contract, arrangement or understanding to which a Queensland-connected person is party and test it against the Schedule version of Part IV as applied by s 4. Because the Code applies to natural persons, compliance programs must extend beyond corporations to partnerships, trusts and individuals.

Maintain a register of the exact text of the Competition Code text as at the date each relevant contract was formed. The two-month lag in s 6 means that the applicable version may differ from the current Commonwealth version. For contracts made before 19 August 1994, preserve evidence of the terms in force immediately before the cut-off date so that post-cut-off variations can be assessed against the protected baseline (s 41(1)(b)).

When dealing with government clients, obtain a formal opinion on whether the counterparty is “carrying on a business”. If the activity falls within any paragraph of s 15(1), the Code does not apply. For authorities, confirm whether they are constituted by a single person and are neither trading nor financial corporations (s 15(4)).

Any authorisation or notification application should be drafted to satisfy both the Queensland Code and the Competition and Consumer Act simultaneously (s 35). Because things done for multiple purposes remain valid, a single Form B or Form G lodged with the Commission will suffice.

If overseas conduct is involved, apply for the Commonwealth Minister’s written consent before commencing or defending proceedings (s 8(3)–(4)). The application should address both limbs of s 8(5): whether the foreign law required or authorised the conduct, and why the national interest favours (or does not oppose) consent.

Record-keeping must satisfy both Commonwealth administrative laws (as applied by ss 30 and 31) and any residual Queensland statutory obligations. Because Queensland officers cannot exercise functions conferred on Commonwealth officers (ss 28 and 33), requests for documents or information should be directed to the Commission rather than to state agencies.

Pecuniary penalty exposure can be managed by ensuring that any settlement or judgment under the Commonwealth Act or another jurisdiction’s application law expressly records that it disposes of liability for the same conduct under the Queensland Code (s 34). The two-year amnesty that once applied under s 43 has expired, but the principle of no double punishment remains absolute.

Finally, monitor the Queensland Government Gazette and the Federal Register of Legislation for regulations made under s 6 (modifications), s 38 (general regulations) or s 45 (transitional matters). A regulation notified before the end of the two-month period can exclude a Commonwealth amendment entirely (s 6(3)). Failure to track these instruments is the single most common source of non-compliance for sophisticated businesses operating across multiple Australian jurisdictions.