Competition Policy Reform (South Australia) Act 1996

The statute turns a Commonwealth statute and its Schedule version into South Australia’s Competition Code, and then layers governance and administration across federal and state institutions. Key legal constructs and their statutory anchors in the Act are as follows.

Competition Code text and Competition Code: The Competition Code text is defined as the Schedule version of Part IV of the Trade Practices Act, together with the remaining provisions of the Trade Practices Act (except ss 2A, 5, 6 and 172) so far as they would relate to the Schedule version, and the relevant Commonwealth regulations (s 4(1)). The Competition Code, when applied in South Australia, is the Competition Code text operating as a State law (s 5(1), s 10).

Application law and participating jurisdiction: The Act defines “application law” as a law of a participating jurisdiction that applies the Competition Code, together with regulations or instruments made under it, or the Code applying as a law of a participating jurisdiction (s 3(1)). “Participating jurisdiction” is any jurisdiction that is a party to the Conduct Code Agreement and applies the Competition Code as a law of that jurisdiction (s 3(1)).

Adoption and modification mechanics: When the Commonwealth modifies the Competition Code text, the modification applies as a law of South Australia as from the later of the Commonwealth commencement date and two months after the modification (s 6(1)), unless the Governor excludes the modification by proclamation within two months (s 6(3)). The Governor may also backdate an earlier commencement for a modification, subject to minimum timing rules (s 6(2)-(4)).

Scope and extraterritoriality: The Code applies to persons carrying on business in South Australia, State-incorporated or registered corporations, residents of the State, and persons otherwise connected to the State (s 8(1)). The Code may extend to conduct occurring outside South Australia; however, reliance in court on conduct outside Australia requires the Commonwealth Minister’s written consent (s 8(2)-(5)).

Crown and non-business activities: The application law binds the Crown to the extent permitted by legislative power where the Crown carries on a business (s 13-14). A non-exhaustive list of activities that do not amount to carrying on a business for these purposes appears in s 15, and the Crown is protected from pecuniary penalties or prosecution under the application law (s 16), though the protection does not extend to authorities (s 16(3)).

National enforcement and administrative overlay: The Act enables Commonwealth authorities and officers named in the Code to exercise the functions and powers conferred on them under the Code in relation to South Australia (s 19-20). Divisions 4 and 5 of Part 5 provide that offences under the State’s Code are to be treated as offences against Commonwealth law for investigative and prosecutorial purposes (s 24-27), and that specified Commonwealth administrative laws apply to matters arising under the State’s Code (s 29-33). The Act designates certain Commonwealth administrative statutes as “Commonwealth administrative laws” for these purposes, including the Administrative Review Tribunal Act 2024 (excluding Part 7), the Freedom of Information Act 1982, the Ombudsman Act 1976, and the Privacy Act 1988, together with their regulations (s 29).

Fees, penalties and money: All fees, taxes, penalties and other money payable under the application law are to be paid to the Commonwealth, with some exceptions, and regulations in the Competition Code of this jurisdiction may prescribe fees (s 37).

Transitional rules: Part 7 contains transitional provisions that deal with already-existing contracts and exceptions, an initial temporary exemption from pecuniary penalties for two years after the Commonwealth Act’s Royal Assent (s 43), and the ability to seek authorisations in advance (s 41-44).

Procedural and interpretive points: The Acts Interpretation Act 1901 applies to the Competition Code and instruments under it, as if they were Commonwealth provisions (s 7). References within South Australian instruments to “the Competition Code” are to be read as references to the Competition Codes of any or all participating jurisdictions, unless the instrument requires otherwise (s 11).

Those concepts together convert a Commonwealth competition framework into an instrument applied within South Australia, while aligning enforcement, administrative review and procedural machinery with Commonwealth laws and institutions.

The Act affects several distinct groups, each bearing different obligations, exposures and decision-making loci set out in the text.

Businesses and private parties: Persons carrying on business in South Australia, bodies corporate incorporated or registered under South Australian law, persons ordinarily resident in South Australia, and persons otherwise connected with South Australia are within the Code’s application (s 8(1)). For these actors, the Act means that Part IV-style prohibitions and remedies arising from the Competition Code text will apply as South Australian law; where those provisions create offences, they are to be treated for enforcement purposes as if they were Commonwealth offences (s 25(1)). Businesses must therefore assess their conduct against the Competition Code text as applied in South Australia (s 4-5, s 8).

Commonwealth enforcement bodies and officers: The Act explicitly confers the functions and powers expressed in the Competition Code of this jurisdiction on Commonwealth authorities and officers named in the Code, including the Australian Competition and Consumer Commission (the Commission), the Australian Competition Tribunal (the Tribunal) and the National Competition Council (the Council) (s 19-20). Those Commonwealth bodies may exercise the same functions and powers in South Australia as they would in relation to Commonwealth law; conversely, where such functions are conferred on Commonwealth officers, State officers are precluded from performing them (s 27-28, s 32-33).

State government and Crown entities: The State Crown is bound by the application law when it carries on a business, either directly or by an authority (s 13). The Crown, however, is not made liable to pecuniary penalties or prosecution by the application law (s 16(1)-(2)), though the protection does not extend to authorities of any jurisdiction (s 16(3)). Several routine public-sector activities are specified as not amounting to carrying on a business for these purposes, including taxation, licensing, government-to-government transactions, and the acquisition of primary products under legislation (s 15). State departments and authorities that supply goods or services under licences or that perform commercial functions must therefore determine whether they are “carrying on a business” and so within the Code.

Regulators and administrative review bodies: Matters arising under the State’s Competition Code are treated as matters arising under Commonwealth law for the purposes of designated Commonwealth administrative statutes, including review and freedom-of-information frameworks (s 29-31). This shifts the administrative review locus for affected parties onto Commonwealth administrative processes. Practically, affected parties will interact with Commonwealth administrative mechanisms as if the State Code were a Commonwealth law (s 30(1)-(2)).

Courts and prosecutors: For offences under the State’s Competition Code, Commonwealth laws apply as laws of South Australia to enable investigation, arrest, bail, trial, sentencing, fines and related processes, treating such offences as Commonwealth offences (s 24-26). This means prosecutorial and court processes in respect of Code offences are intended to be handled under the Commonwealth procedural umbrella rather than exclusively under State criminal law, subject to regulations (s 25(3)).

Persons with extraterritorial exposure: The Code may extend to conduct outside South Australia, and even partly outside Australia. However, a party seeking to rely in a proceeding on conduct occurring outside Australia must obtain the Commonwealth Minister’s written consent; the Minister must give consent unless the Minister forms the opinion the conduct was lawful under the foreign law and it is not in the national interest to give consent (s 8(2)-(5)). This creates an administrative gate for extraterritorial reliance in State litigations.

Entities seeking authorisations or notifications: The Act permits authorisations and certain notifications to be sought under the Code (s 44), and recognises that authorisations or notifications done for multiple jurisdictions remain valid (s 35). Businesses considering conduct that might otherwise contravene Part IV-style prohibitions must therefore consider authorisation and notification options under the Code.

Overall, the Act shifts decision-making about enforcement, review and many procedural issues from State frameworks to Commonwealth bodies for the class of persons and conduct within its scope. That shift alters who decides (Commonwealth bodies in many respects), who pays certain monies (the Commonwealth receives fees and penalties under s 37), and what framework governs administrative review and criminal process (Commonwealth administrative laws and criminal procedures, per Parts 5 Divisions 4 and 5).

The Act does not itself create the Part IV substantive prohibitions; rather it imports them via the Competition Code text. Nevertheless, it creates or clarifies a series of duties and rights that regulate behaviour, enforcement competence, and procedural entitlements within South Australia.

Duty to comply with the Competition Code text as State law: The Competition Code text applies as a law of South Australia (s 5(1)), and the Code applies to persons carrying on business within South Australia and related categories (s 8(1)). Affected persons therefore must ensure conduct complies with the relevant provisions of the Competition Code as incorporated into South Australian law (s 4-5, s 8).

Duty to pay fees, penalties and other money to the Commonwealth: All fees, taxes, penalties (including pecuniary penalties under s 76 of the Competition Code), fines and other money authorised under the application law are payable to the Commonwealth (s 37(1)). The Act therefore places a fiscal duty on persons subject to those obligations to pay amounts to the Commonwealth, rather than to South Australia, except for amounts recovered for loss or damage under s 82 or 87 of the Code and other amounts prescribed by regulation (s 37(2)).

Right to administrative review under Commonwealth administrative laws: Matters arising in relation to the Competition Code of South Australia are to be treated as matters arising under Commonwealth law for the purposes of the specified Commonwealth administrative statutes (s 30(1)-(2)). Consequently, parties have the procedural rights and review routes provided by those Commonwealth statutes, subject to any regulations under the Act (s 30(3)). The Act defines “Commonwealth administrative laws” to include specified Acts and their regulations (s 29).

Rights and constraints regarding extraterritorial conduct: If a party wishes to rely, in proceedings under s 82 or in an application to the Court under s 87(1) or (1A) of the Code, on conduct that occurred outside Australia, they must obtain the Commonwealth Minister’s written consent; the Minister is required to give consent unless the conduct was lawful under the foreign law and the Minister considers it is not in the national interest to give consent (s 8(3)-(5)). This establishes a gatekeeper role for the Commonwealth Minister in relation to certain extraterritorial defences or claims.

Crown obligations and immunities: The Crown in right of South Australia is bound by the application law where the Crown carries on a business, to the extent permitted by legislative power (s 13). However, the Crown is not made liable to pecuniary penalties or to be prosecuted under the application law (s 16(1)-(2)). Authorities of jurisdictions, however, are not protected by that immunity (s 16(3)). The Act also clarifies that standard non-business activities do not amount to carrying on a business for Crown-binding purposes, offering a shield for certain public acts (s 15).

Conferral of functions on Commonwealth bodies and exclusivity: The authorities and officers of the Commonwealth referred to in the Competition Code have the functions and powers the Code expresses to confer on them (s 19(1)), and those Commonwealth functions and powers may not be performed by officers or authorities of South Australia where conferred on Commonwealth officers (s 27-28, s 32-33). This sets a duty on Commonwealth officers to exercise those functions in relation to the State’s Code, and it removes the power of State officers to substitute in those respects.

Transitional rights: Transitional rules affect the rights and duties of contract parties. Existing contracts made before the cut-off date are, for the purpose of deciding liability under Part IV after the operative date, to be disregarded; contracts made on or after that date may be affected (s 41). There is also a temporary exemption from pecuniary penalties for the initial two-year period after the Commonwealth Act’s Royal Assent (s 43). The Act therefore gives temporal rights and immunities during the transition.

Regulatory powers and discretion: The Governor may proclaim the exclusion of Commonwealth modifications or fix earlier dates for their commencement in South Australia (s 6(2)-(4)); the Governor may make regulations for savings and transitional matters and generally for carrying out the Act (s 38, s 45). Regulations may also prescribe exceptions to certain statements that an offence is to be taken as an offence against Commonwealth law (s 25(3), s 26(3), s 30(3), s 31(3)). That creates regulatory discretion and the right to operationalise exceptions.

No double punishment: If a person has been punished under the Trade Practices Act or the application law of another participating jurisdiction for the same act or omission, they are not liable to be punished again under the State Competition Code (s 34(1)-(2)). This provides a substantive protection against double liability and double pecuniary penalties.

Collectively, the Act allocates legal burdens and procedural entitlements across private parties, the Crown, Commonwealth enforcement bodies and State authorities, and it creates governance rights for the Commonwealth in the administration, enforcement and review of the State’s Competition Code.

The Act aligns enforcement mechanisms for competition offences under South Australia’s Competition Code with Commonwealth criminal and administrative frameworks. It creates legal pathways and constraints that affect investigation, prosecution, administrative decision-making and the fiscal distribution of penalties.

Treatment of offences as Commonwealth offences: The Act’s Division 4 declares that an offence against the Competition Code of the jurisdiction is to be treated as if it were an offence against a law of the Commonwealth for a wide array of purposes, explicitly including investigation, prosecution, arrest, custody, bail, trial, conviction, sentencing, fines, penalties, forfeitures, restitution, proceeds of crime and spent convictions (s 24(1)-(2)). Sections 25 and 26 implement this mechanics. Section 25 provides that Commonwealth laws apply as laws of South Australia in relation to an offence against the State’s Competition Code, and that, for purposes of a State law, such an offence is taken to be an offence against Commonwealth laws and not a State law, subject to regulations (s 25(1)-(3)). Section 26 makes equivalent provisions for offences against Competition Codes of other participating jurisdictions (s 26(1)-(4)).

Conferral of Commonwealth investigatory and prosecutorial functions: A Commonwealth law that confers functions or powers in relation to offences against the Trade Practices Act is taken to confer the same functions and powers in relation to corresponding provisions of the State’s Competition Code on Commonwealth officers or authorities, and these functions and powers are to be exercised in this State (s 27(1)-(4)). Further, where a function or power is conferred on Commonwealth officers by virtue of Division 4, State officers are precluded from performing or exercising that function or power (s 28). The Act therefore shifts investigatory and enforcement primacy to Commonwealth officers in specified respects.

Fiscal destination of penalties and fees: All fees, taxes, penalties including pecuniary penalties and fines payable under the application law of South Australia are to be paid to the Commonwealth, unless they are amounts recovered for loss or damage under s 82 or 87 of the Code or other amounts prescribed by regulation (s 37(1)-(2)). The Act specifically notes that this subsection imposes fees that the Competition Code regulations prescribe (s 37(3)). The consequence is that financial sanctions under the State’s applied Code will flow to the Commonwealth pool in most cases.

Crown immunity and enforcement scope: The Crown is not made liable to a pecuniary penalty or to be prosecuted under the application law (s 16(1)-(2)), although this protection does not extend to authorities (s 16(3)). Where the Crown is carrying on a business, however, the application law may bind the Crown (s 13-14). Practically, an authority that is a trading corporation or financial corporation could be exposed to enforcement even if the Crown itself cannot be penalised (s 15(4)).

No double punishment: Section 34 prevents double punishment , an offender punished under the Trade Practices Act or another participating jurisdiction’s application law for the same conduct is not liable to be punished again under the State’s Competition Code, and pecuniary penalties ordered under those other laws bar penalties under the State’s Code for the same conduct (s 34(1)-(2)).

Administration under Commonwealth administrative laws: The Act imports designated Commonwealth administrative laws for matters arising under the State’s Competition Code, including review, freedom of information and privacy frameworks (s 29-33). Section 30 provides that the Commonwealth administrative laws apply as laws of South Australia to matters arising in relation to the State Code, and that for State law purposes such matters are taken to be matters arising under Commonwealth law and not State law, save to the extent regulations prescribe otherwise (s 30(1)-(3)). This affects enforcement insofar as administrative decisions and processes are subject to Commonwealth review mechanisms.

Constraints on extraterritorial reliance: A procedural enforcement constraint appears at s 8(3)-(5): where reliance is sought in proceeding under s 82 or applications under s 87(1)/(1A) for conduct occurring outside Australia, written consent of the Commonwealth Minister is required to rely on that conduct. The Minister is required to give consent unless the foreign law authorised the conduct and the Minister decides that consent would not be in the national interest (s 8(5)). This constrains how defendants or claimants may deploy extraterritorial conduct in State proceedings.

Regulatory and prosecutorial discretion points: The Governor and regulations provide flexibility: the Governor may exclude Commonwealth modifications from applying in South Australia (s 6(3)) and may revoke that exclusion later (s 6(4)); and regulations may prescribe exceptions to the sections that take offences or matters to be Commonwealth offences or Commonwealth matters (s 25(3), s 26(3), s 30(3), s 31(3)). Those instruments create opportunities for tailored enforcement rules, subject to statutory limits.

Taken together, the Act centralises enforcement and procedure for Code offences under Commonwealth frameworks, routes financial penalties to the Commonwealth, and creates specific immunities and transitional relief. The legal effect is a transfer of significant enforcement competence and fiscal consequences from State frameworks to Commonwealth frameworks for conduct falling under the State’s Competition Code.

This Act is expressly constructed as a statutory grafting of Commonwealth competition law and related Commonwealth administrative processes onto South Australian law, and it contains numerous provisions dealing with inter-legislative relationships.

Incorporation of Commonwealth text and regulations: The Competition Code text is defined by reference to the Schedule version of Part IV of the Trade Practices Act, to remaining provisions of the Trade Practices Act (with specified exceptions), and to Commonwealth regulations that relate to those provisions (s 4(1)). The Act requires modification of those Commonwealth provisions as necessary to fit the Schedule version and to extend the notion of corporations to persons who are not corporations where necessary (s 4(2)). This is the prime mechanism by which Commonwealth law becomes South Australian law.

Application of Acts Interpretation Act 1901: The Acts Interpretation Act 1901 of the Commonwealth applies to the Competition Code and instruments under it as a law of South Australia, and the Act directs that the Commonwealth Acts Interpretation Act should be applied as if the Competition Code provisions were a Commonwealth Act and the Code’s instruments were regulations under a Commonwealth Act (s 7(1)-(2)). Conversely, the South Australian Acts Interpretation Act 1915 does not apply to the Competition Code or its instruments (s 7(3)). This alignment drives interpretive consistency with Commonwealth drafting and construction approaches.

Treatment of offences and administrative matters as Commonwealth matters: The Act’s Divisions 4 and 5 of Part 5 provide that offences under the State’s Competition Code are to be treated for many purposes as offences against Commonwealth law (s 24-27), and that Commonwealth administrative laws apply to matters arising in relation to the State’s Competition Code (s 29-33). The Act defines the Commonwealth administrative laws that apply, including specified Commonwealth statutes and their regulations (s 29). Sections 30 and 31 implement the mechanics by which State Code matters are treated as Commonwealth matters for purposes of State law.

Inter-jurisdictional cross-references and single national Code effect: Section 11 seeks to ensure that references to the Competition Code in any instrument can be read as references to the Competition Codes of any or all participating jurisdictions, enabling the Codes to operate together as if constituting a single national Competition Code (s 11(1)-(3)). Section 12 clarifies the meaning of the Competition Code for other participating jurisdictions. Section 9 sets a specific construction for references in ss 45 and 45B of the Competition Code to “the commencement of this section” so as to align commencement points across jurisdictions. These provisions are designed to harmonise cross-references and to facilitate multijurisdictional operation.

Crown and State law interactions: The application law binds the Crown in right of South Australia and of each other participating jurisdiction to the extent the Crown carries on a business, either directly or via an authority (s 13-14). Section 15 lists activities that do not amount to carrying on a business, including taxation, licensing functions, certain government-only transactions and acquisition of primary products under legislation. Section 16 preserves Crown immunity from pecuniary penalties and prosecution under the application law but excludes such immunity for authorities. Section 17 makes clear that binding the Crown by reason of this Part overrides prerogative rights where applicable. These provisions calibrate the interplay between State Crown powers and the imported competition framework.

Regulatory powers and cross-references into Commonwealth law: The Act provides that, for the purposes of sections 25, 26, 30 and 31, a reference in a Commonwealth law to a provision of that or another Commonwealth law is to be taken as a reference to that provision as applying because of the relevant section (s 36). This is an enabling construction provision that supports the practical application of Commonwealth laws to State Code matters. Regulations under this Act may also implement exemptions specific to the State by expressly referring to the Trade Practices Act or the Competition Code (s 39).

No double liability and savings: Section 34 prevents double punishment where acts or omissions are punished under the Trade Practices Act or other participating jurisdiction application laws; section 35 provides that authorisations or notifications are not invalidated simply because they were given for multiple jurisdictions. Part 7 contains transitional rules governing existing contracts, exceptions under s 51 of the Code, temporary exemptions from pecuniary penalties, advance authorisations and regulatory savings and transitional matters (ss 40-45). These interact with the substantive Code to manage temporal and multijurisdictional effects.

Governor’s proclamation powers and modification timing: The Act provides that Commonwealth modifications to the Competition Code text apply automatically in South Australia after certain periods unless the Governor excludes them by proclamation within two months, or the Governor may set an earlier commencement date by proclamation (s 6(1)-(4)). That mechanism creates a timed interface between Commonwealth amendment activity and State adoption, with a window for the Governor to opt-out temporarily or accelerate adoption.

Collectively, the Act establishes a network of interactions: it imports and adapts Commonwealth substantive law and regulations; it aligns interpretive rules with Commonwealth practice; it treats enforcement and administrative processes as Commonwealth matters; and it creates mechanisms to harmonise operation across participating jurisdictions while preserving specified State Crown immunities and transitional protections.

The Act’s legislative history is set out in the Act itself and lists the principal Act and subsequent amending instruments recorded in the source. The principal Act received Royal Assent on 20 June 1996 and parts 2-6 commenced on 21 July 1996 (s 2). The schedule that follows records later amendments and the provisions they changed.

Notable entries in the legislative history provided in the Act are as follows.

1996: Principal Act

• Competition Policy Reform (South Australia) Act 1996, No 42, assented 20.6.1996. Parts 1 and 7 commenced on date of assent; Parts 2-6 commenced on 21.7.1996, per s 2.

1999 amendments

• Federal Courts (State Jurisdiction) Act 1999, No 48, assented 12.8.1999, commencement 19.8.1999 (Gazette 19.8.1999 p882). The table records that Part 5 Division 3 was amended by 48/1999 Sch on 19.8.1999. That division was later deleted.
• New Tax System Price Exploitation Code (South Australia) Act 1999, No 53, assented 12.8.1999, commencement 10.12.1999 (Gazette 9.12.1999 p3114). The Schedule version of Part IV was amended by Sch para (a) to that amending Act (10.12.1999), and section 6(1)-(4) was substituted by Sch para (b) to that Act (10.12.1999).

2000 amendments

• Statutes Amendment (Federal Courts,State Jurisdiction) Act 2000, No 74, assented 14.12.2000. The legislative history records multiple effects:
  • Part 5 Division 3, previously amended by the 1999 Federal Courts Act, was deleted by s 9 of the 2000 Act, effective 28.1.2001 (Gazette 25.1.2001 p301).
  • Section 29 (definition of Commonwealth administrative laws) was amended by s 10(a) of the 2000 Act, effective 28.1.2001; paragraph (a)(ii) was deleted by s 10(b) (28.1.2001).
  • Section 33A was inserted by s 11 of the 2000 Act, effective 28.1.2001.

2025 amendment

• Statutes Amendment (Administrative Review Tribunal) Act 2025, No 54, assented 20.11.2025, with Part 4 (ss 7 & 8) commencing 20.11.2025 per s 2. The legislative history records that s 29 (Commonwealth administrative laws) was amended by the 2025 Act, s 7 (20.11.2025), and that s 33A, which had been inserted by the 2000 Act, was substituted by the 2025 Act, s 8 (20.11.2025).

Provision-level amendment notes in the history table

• Schedule version of Part IV: amended by 53/1999 Sch para (a), 10.12.1999.
• Section 6(1)-(4): substituted by 53/1999 Sch para (b), 10.12.1999.
• Part 5 Division 3: amended by 48/1999 Sch (19.8.1999), deleted by 74/2000 s 9 (28.1.2001).
• Section 29: amended by 74/2000 s 10(a) (28.1.2001); paragraph (a)(ii) deleted by 74/2000 s 10(b) (28.1.2001); further amended by 54/2025 s 7 (20.11.2025).
• Section 33A: inserted by 74/2000 s 11 (28.1.2001); substituted by 54/2025 s 8 (20.11.2025).

Historical Reprints

• The Act records reprint dates: Reprint No 1 , 19.8.1999; Reprint No 2 , 10.12.1999; Reprint No 3 , 28.1.2001.

The legislative history in the Act therefore documents the principal enactment and later amendments that have changed particular provisions, especially concerning the Schedule version of Part IV, mechanisms for adopting Commonwealth modifications, the structure of Part 5, and the administrative law cross-references. The history also shows ongoing updates to the definition and scope of Commonwealth administrative laws and related construction provisions (s 29, s 33A) as recently as the 2025 amending Act recorded in the table.

Users should note the Act’s own caution in the notes that references to other legislation, instruments, titles of bodies and offices may not be automatically updated by the publication program and may therefore be obsolete; the legislative history is the internal record of amendments (Legislative history notes).

The Act itself does not record judicial decisions. The statutory text provides detailed processes that shift enforcement and review of Competition Code matters into Commonwealth frameworks, which in turn shapes the litigation pathways available to affected parties. While the Act does not list cases, it contains many provisions that will determine litigation architecture and forum choices, as follows.

Forum and procedural implications: By treating offences against the State’s Competition Code as offences against Commonwealth law for specified purposes, the Act steers investigation, prosecution and related criminal processes into the Commonwealth model (s 24-27). For civil competition claims under the Code, the Act allows cross-jurisdictional operation and treats matters arising under the State Code as matters under Commonwealth administrative laws for review and procedural purposes (s 30-31). Those provisions alter jurisdictional and procedural lines that litigators must navigate, especially in contests about whether a particular matter is to be treated as a Commonwealth matter for judicial or administrative review.

Standing, extraterritoriality and Ministerial consent: The Act restricts the ability of a person, other than the Commonwealth Minister or the Commission, to make certain applications to the Court in relation to conduct outside Australia without the Commonwealth Minister’s written consent (s 8(3)-(4)). The Minister must give consent unless the foreign law authorised the conduct and the Minister considers it is not in the national interest to give consent (s 8(5)). Litigation that engages claims or defences based on extraterritorial conduct will therefore often involve a pre-conditions inquiry into Ministerial consent, potentially creating procedural dispute before courts consider substantive merits.

Administrative review pathways: The Act’s application of Commonwealth administrative laws (as defined at s 29) to matters arising under the State’s Competition Code means that reviews, merits review (where applicable), freedom-of-information requests, privacy complaints and Ombudsman inquiries will typically proceed under Commonwealth statutory processes rather than under State administrative law (s 30). Decisions about the applicability of these Commonwealth administrative laws in particular cases may be litigated or subject to administrative review, particularly where the Act permits regulations to carve out exceptions (s 30(3)).

Crown involvement and immunities: Litigation involving Crown commercial activity will need to engage the Act’s treatment of the Crown. The Crown is bound where it carries on a business (s 13), but the Crown is not liable to pecuniary penalty or to prosecution under the application law (s 16). Litigation about whether particular Crown activity does or does not amount to carrying on a business, whether an authority is an authority of a State or whether an authority is non-commercial under s 15(4), will be a live litigation axis shaped by this Act.

Double punishment and procedural bars: Section 34 prevents double punishment and double pecuniary penalties where a person has already been punished under the Trade Practices Act or another participating jurisdiction’s application law for the same conduct. This provision creates a statutory bar and will be relevant in cross-jurisdictional enforcement disputes and in proceedings that raise issues of prior liability under different jurisdictions’ regimes.

Transitional litigation issues: Part 7 creates transitional rules that will shape litigation over pre-existing arrangements and conduct. For example, existing contracts made before the cut-off date are to be disregarded for certain Part IV liability determinations (s 41(1)(a)), and the Act provides a temporary exemption from pecuniary penalties for conduct within two years after the Commonwealth Act’s Royal Assent (s 43). Disputes about the application of these transitional rules may generate litigation, particularly where conduct straddles the cut-off and operative dates. Section 45 permits regulations to have retrospective effect for savings and transitional matters subject to protections for private rights.

Taken together, the Act creates a litigation environment dominated by Commonwealth procedural and enforcement machinery, with special State-specific exceptions and transitional rules. The text itself contains no case law citations; any litigative history must be sourced from court records and decisions applying these statutory provisions.

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.

Compliance under this statute requires activity on several fronts: legal assessment of whether the Competition Code applies, monitoring of Commonwealth and State regulatory action, administrative preparedness for Commonwealth-led enforcement and review, and contractual and operational adjustments to address transitional and Crown-related rules. The following steps, grounded in the Act’s provisions, are the practical compliance checklist.

1. Determine applicability and exposure (s 8, s 13-16)

   • Map all operations, contractual relationships and trading activities to the statute’s scope: persons carrying on business within South Australia; corporations incorporated or registered under South Australian law; persons ordinarily resident in South Australia; and persons otherwise connected with South Australia (s 8(1)).
   • For interactions with government, determine whether a government actor is carrying on a business. Review s 15 for activities that do not amount to carrying on a business, and assess whether an authority qualifies as “non-commercial” under s 15(4). Where the Crown or an authority is involved in supply or acquisition, document the statutory basis for the transaction to assess whether it falls within the exclusions.

2. Read and apply the Competition Code text as part of South Australian law (s 4-5)

   • Obtain and review the Schedule version of Part IV and the related Trade Practices Act provisions and regulations as they are applied and modified by s 4(1)-(2). Treat the Competition Code as South Australian law under s 5(1) when advising or designing conduct.

3. Monitor Commonwealth amendments and Governor proclamations (s 6)

   • Implement a monitoring system for Commonwealth modifications to the Competition Code text, noting Commonwealth Royal Assent and Gazette notification dates, because a modification will apply in South Australia from the later of its Commonwealth commencement date and two months after the modification (s 6(1)), unless the Governor excludes it within two months (s 6(3)). Track State proclamations to see whether modifications are excluded or brought into effect earlier (s 6(2)-(4)).

4. Prepare for Commonwealth enforcement and administrative processes (s 19-20, s 24-33)

   • Anticipate that Commonwealth bodies named in the Code, including the Commission, Tribunal and Council, will exercise powers and functions under the State’s Code in South Australia (s 19-20). Adjust compliance contact points to engage with those Commonwealth bodies.
   • Ensure legal teams understand that offences against the State’s Code may be investigated and prosecuted under Commonwealth procedural frameworks (s 24-27), and that matters arising under the State’s Code are subject to defined Commonwealth administrative statutes for purposes of review and information access (s 29-33). Prepare to use Commonwealth administrative remedies where appropriate.

5. Budget for payment of fees and penalties to the Commonwealth (s 37)

   • Where fees, taxes, penalties or fines under the application law may be payable, structure internal finance processes so payments are directed to the Commonwealth, not to South Australia (s 37(1)). Identify any exceptions (amounts recovered for loss or damage under s 82 or 87, and amounts prescribed by regulations) and implement procedures to handle those separately (s 37(2)-(3)).

6. Address extraterritorial evidence and claims (s 8(3)-(5))

   • If intending to rely on or defend on the basis of conduct occurring outside Australia in a proceeding under s 82 or an application under s 87(1)/(1A), obtain the Commonwealth Minister’s written consent in advance (s 8(3)-(4)). Prepare submissions demonstrating that the foreign law authorised the conduct and address the “national interest” criterion to increase the chance of consent (s 8(5)).

7. Review and update contracts against transitional rules (Pt 7, s 41-44)

   • For existing contracts, determine their date relative to the cut-off date (19 August 1994) and the operative date, and assess whether provisions are preserved or potentially unenforceable under Part IV of the Code (s 41(1)-(3)). Document any variations that occurred on or after the cut-off date to assess exposure.
   • Consider seeking authorisations or giving notices under the Code where appropriate, noting that s 44 allows authorisations to be applied for and granted from its commencement, and s 35 preserves the validity of authorisations and notices given for multiple jurisdictions.

8. Avoid duplicative prosecution risks and leverage s 34 protection

   • Where there has been prior punishment under the Trade Practices Act or another participating jurisdiction’s application law, document the finality of that punishment to avoid duplicate liability under the State’s Competition Code (s 34(1)-(2)).

9. Check for regulations and exemptions (s 25(3), s 30(3), s 38-39)

   • Review regulations made under the Act and the Competition Code for any prescribed exceptions or special authorisations; s 25(3) and s 30(3) allow regulations to carve out specified matters. Regulations may also authorise specified things to be done in the jurisdiction expressly referring to the Trade Practices Act or the Competition Code (s 39).

10. Engage with Commonwealth administrative channels for information and review (s 29-33)

• For matters likely to engage freedom-of-information, privacy, Ombudsman complaints or administrative review, follow Commonwealth processes under the statutes listed at s 29, and prepare internal records and FOI/privacy handling procedures consistent with Commonwealth requirements.

11. Maintain audit trails and evidence relevant to “carrying on a business” and “non-commercial authority” tests (s 13-16)

• For Crown or authority interactions, retain documentation showing the statutory basis of transactions, the commercial nature or otherwise of an activity, and any indicia that would be relevant to establishing whether a body is an authority and whether it is non-commercial (s 15(4)).

12. Keep watch on legislative updates and the Act’s amendment record (Legislative history)

• The Act’s legislative history records amendments that affect definitions and administrative law references (s 29, s 33A). Maintain a process to check the State’s legislation register and the Commonwealth Gazette for updates and amending instruments.

Compliance under this Act therefore requires legal mapping, monitoring of modification and proclamation timelines, coordination with Commonwealth enforcement and administrative processes, adjustment of payment processes, careful handling of extraterritorial evidence, and contract and governance checks in respect of Crown and authority activities. Documentation of timelines, statutory bases and decision rationales will assist in dealing with Ministerial consent processes, administrative reviews and any enforcement actions that may follow.