The Act contains several non-obvious legal mechanics, timing traps and administrative dependencies that counsel, compliance officers and decision-makers should note. These “gotchas” arise from the Act’s design to import Commonwealth law into State operation while preserving some State discretion.
Automatic adoption vs Governor exclusion window for Commonwealth modifications (s 6): When the Commonwealth modifies the Competition Code text, the modification will apply as a law of South Australia from the later of the Commonwealth commencement date and two months after the modification (s 6(1)). The Governor, however, has a two-month window to exclude the modification by proclamation (s 6(3)). Failure to act within that window results in automatic application. Conversely, the Governor can also fix an earlier commencement date by proclamation, but not earlier than publication or the Commonwealth commencement date (s 6(2)). The practical consequence is a timing risk for regulated parties: Commonwealth amendments may become State law automatically unless the Governor excludes them promptly, and affected actors must monitor both Commonwealth amendment dates and State proclamations.
Fees and penalties flow to the Commonwealth (s 37): Many financial obligations under the application law are payable to the Commonwealth rather than to South Australia (s 37(1)). Payments recovered for loss or damage under s 82 or 87 of the Code and other amounts prescribed by regulation are exceptions (s 37(2)). Organisations and lawyers must ensure that payment directions and settlement arrangements account for this fiscal routing, which may differ from prior State enforcement regimes.
Crown immunity complexities (ss 13-16): The Crown is bound by the application law when it carries on a business, but the Crown is not made liable to pecuniary penalties or to be prosecuted by the application law (s 16(1)-(2)). Authorities, however, are not protected by that immunity (s 16(3)). Distinguishing between the Crown, a Crown authority, and whether an activity amounts to “carrying on a business” (and whether an authority is “non-commercial” under s 15(4)) is therefore critical. Contracts or interactions with government entities can expose private parties to enforcement or may leave them without a remedy against the Crown because of Crown immunity.
Extrajurisdictional conduct gatekeeper (s 8(3)-(5)): Reliance in State proceedings on conduct outside Australia requires the Commonwealth Minister’s written consent; the Minister must give consent unless the foreign law required or authorised the conduct and consent would not be in the national interest (s 8(5)). Parties intending to rely on such extraterritorial conduct must secure Ministerial consent ahead of hearings, which can delay litigation and complicate evidentiary strategies.
Conferral of Commonwealth powers precluding State exercise (s 27-28, s 32-33): Where functions and powers are conferred on Commonwealth officers or authorities, State officers and authorities may not perform those functions (s 28, s 33). This exclusivity affects who will lead investigations and who will make enforcement decisions. Practitioners should not assume State agencies will intervene in Code matters that the Act confers on Commonwealth officers.
No double punishment but potential for duplication in processes (s 34): Although s 34 prevents double punishment after final punishment under the Trade Practices Act or another participating jurisdiction’s application law, investigations, parallel inquiries and civil claims may still proceed in different forums. Parties should be mindful that procedural matters may still be duplicated even when final liabilities are barred from duplication.
Regulatory exceptions and the scope for carved-out rules (s 25(3), s 26(3), s 30(3), s 31(3), s 38): The Act repeatedly allows regulations to prescribe exceptions to the general rule that offences or matters are to be treated as Commonwealth matters. This provision creates uncertainty that depends on the content of any regulations made under the Act. Users should check the current regulations to see whether particular exceptions exist.
Transitional timing traps (ss 41-44): Existing contracts made before the cut-off date are largely to be disregarded for liability under Part IV after the operative date (s 41(1)(a)), but contract variations and contracts made on or after the cut-off date are treated differently (s 41(1)(b)-(c)). There is also a temporary exemption from pecuniary penalties for two years after the Commonwealth Act’s Royal Assent, subject to extension if the commencement of these provisions is postponed (s 43). Parties must map their contracts against the cut-off and operative dates to determine exposure.
Interpretive alignment with Commonwealth Acts Interpretation Act (s 7): The Acts Interpretation Act 1901 applies to the Competition Code as if it were Commonwealth legislation (s 7(1)-(2)). This can lead to differences in statutory construction compared with ordinary State legislative interpretation practice, so legal arguments should reflect Commonwealth interpretive principles.
Advance authorisations and notifications , sequencing ambiguities (s 44): Section 44 allows authorisations and notices under the Code as if the whole Act had commenced at the time s 44 commenced. Parties should verify the effective dates for particular authorisations, because the Act’s transitional sequencing may affect whether an authorisation is available or whether conduct can rely on a notice.
Administrative law definition update risk (s 29 and legislative history): The list of Commonwealth administrative laws is specified at s 29, but the legislative history shows that s 29 has been amended and updated over time. Practitioners should confirm the current statutory text for the exact list of administrative statutes that apply as Commonwealth administrative laws in South Australia, since later amendments (for example those recorded in 2000 and 2025) alter that list.
Taken together, these points show that careful calendar and procedural management, scrutiny of Governor proclamations and regulations, and precise characterisation of parties and activities are required to navigate the Act’s operation.