Competition Policy Reform (Victoria) Act 1995

The Act casts a wide net. Section 8(1) provides that the Competition Code of Victoria applies to:

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

Subsection (2) then gives the Code extraterritorial reach to conduct occurring “outside or partly outside this jurisdiction (whether within or outside Australia)”. That reach is not unlimited. A private litigant seeking damages under Code s 82, or an order under Code s 87(1) or (1A), for overseas conduct requires the written consent of the Commonwealth Minister (s 8(3)–(4)). The Minister must grant consent unless the conduct was required or authorised by foreign law and it is not in the national interest to proceed (s 8(5)).

Because the Code text expands “corporation” to “person”, the prohibitions catch individuals, partnerships, trusts and unincorporated associations. Government departments and statutory authorities are caught when they “carry on a business” (s 13). Section 15(1) carves out taxation, licensing, intra-Crown dealings and compulsory acquisition of primary produce. Non-commercial single-person authorities are also excluded (s 15(4)).

Commonwealth agencies are direct beneficiaries of the conferral provisions. The ACCC, Tribunal and Council receive Victorian functions and powers (s 19) and may perform functions conferred by other jurisdictions’ Codes while physically present in Victoria (s 20). Conversely, Victorian officers are disabled from exercising the same functions once they have been conferred on Commonwealth officers (ss 28, 33).

Legal practitioners, compliance officers and courts are affected because the Act imports the entire CCA interpretive apparatus, including the Acts Interpretation Act 1901 (Cth) (s 7) and the Commonwealth administrative-law suite (s 30). Transitional rules in Part 7 continue to affect parties to contracts made before 19 August 1994 or in the two-year grace period after royal assent.

Finally, the Act binds the Crown in all its capacities so far as the legislative power of the Victorian Parliament permits (s 13), but overrides any prerogative right or privilege that might otherwise have protected it (s 17). Thus, a government business enterprise operating in competition with private firms is fully subject to the cartel, misuse of market power and exclusive dealing prohibitions.

The Act itself creates few standalone duties. Its key contribution is to make the substantive prohibitions in the Schedule version of Part IV enforceable in Victoria. Those prohibitions include:

• s 45 – contracts, arrangements or understandings that have the purpose, effect or likely effect of substantially lessening competition;
• s 46 – misuse of market power;
• ss 47 and 48 – exclusive dealing and resale price maintenance; and
• the cartel provisions now located in Div 1 of Part IV.

Because the Code text applies “as a law of Victoria”, Victorian courts exercise jurisdiction over these matters without the need for federal jurisdiction. Rights of private action under Code ss 82 (damages), 87 (injunctive and other relief) and 80 (injunctions) are thereby available in Victorian courts.

Public enforcement rights are conferred on the ACCC. Section 19(1) gives the Commission all powers it would possess under the CCA in relation to the Victorian Code. The same applies to the Tribunal’s review functions.

Crown immunity is a central feature. Section 16(1) provides that nothing in the application law renders the Crown in any capacity liable to a pecuniary penalty or prosecution. That immunity does not extend to authorities of the Crown (s 16(3)), which can therefore face both civil penalties and criminal cartel charges.

Section 34 prevents double punishment. If conduct is both an offence against the Victorian Code and against the CCA or another jurisdiction’s application law, punishment under one law bars punishment under the other. The same rule applies to pecuniary penalties (s 34(2)).

Authorisation and notification rights under Code ss 88 and 93 remain available. Section 44 expressly permitted applications for authorisation before the substantive provisions commenced, allowing businesses to obtain legal certainty during the transition.

Administrative rights under the Freedom of Information Act 1982 (Cth), Privacy Act 1988 (Cth) and Ombudsman Act 1976 (Cth) are applied by s 30, giving Victorian persons the same rights to access documents and review decisions as if the Code were Commonwealth law.

The Act does not set its own penalties; it imports those in the CCA. Cartel offences carry maximum terms of imprisonment of 10 years and fines of 2,200 penalty units for individuals (or higher under the CCA fine formula). Civil pecuniary penalties for corporations can reach the greater of $50 million, three times the benefit obtained, or 30 per cent of adjusted turnover (CCA s 76). Victorian courts impose these penalties as if exercising federal jurisdiction.

Enforcement is national. The ACCC investigates and prosecutes Victorian Code breaches using Commonwealth investigative powers (s 27). Because an offence against the Victorian Code is “taken to be an offence against the laws of the Commonwealth” (s 25(2)(a)), the Crimes Act 1914 (Cth), Criminal Code (Cth) and Proceeds of Crime Act 2002 (Cth) all apply. State criminal procedure is displaced except to the extent prescribed by regulation (s 25(3)).

Section 37(1) requires all penalties, fines and fees (other than private damages) to be paid to the Commonwealth, reinforcing the national character of the regime.

The two-year temporary exemption from pecuniary penalties that existed under s 43 has long expired, but the transitional logic remains relevant for legacy conduct. Section 41 continues to shield pre-19 August 1994 contracts from Part IV scrutiny unless varied after that date in a way that introduces new anti-competitive elements.

The Act is designed to sit atop, and interact with, a web of Commonwealth and state legislation.

At the Commonwealth level, the CCA is the primary statute. The Act deliberately imports the CCA minus four sections (CCA ss 2A, 5, 6 and 172) and then modifies the remainder. Section 3(2) provides that expressions defined in the CCA have the same meaning in the Victorian Act unless contrary intention appears. Section 3(3) ensures that references to the CCA include amendments and successor Acts.

The Acts Interpretation Act 1901 (Cth) applies to the Victorian Code in place of the Interpretation of Legislation Act 1984 (Vic) (s 7(3)). Commonwealth administrative laws listed in s 29 (now including the Administrative Review Tribunal Act 2024 (Cth) with Part 7 read as Commonwealth law under s 33A) apply to Code matters (s 30).

At state level, the Act overrides the prerogative (s 17) and displaces state officers’ powers once Commonwealth officers are seized of them (ss 28, 33). It does not, however, affect Victorian fair-trading legislation (Australian Consumer Law and Fair Trading Act 2012 (Vic)) which continues to operate in parallel for consumer-protection matters outside the competition sphere.

The Conduct Code Agreement of 11 April 1995 is given statutory recognition in the definition of “participating jurisdiction”. The Agreement underpins the entire scheme; if a jurisdiction withdraws, the uniform application mechanism in ss 11–12 would cease to operate for that jurisdiction.

Interaction with federal jurisdiction is subtle. Although the Code is Victorian law, the application of Commonwealth criminal and administrative law means that many procedural incidents are federal. Victorian courts exercise state jurisdiction when hearing Code matters, but the substantive rights and immunities are those conferred by the imported CCA provisions.

The version reproduced is No. 013 as at 22 October 2025. The most recent amendments are contained in the Statute Law Revision Act 2025 (No. 41/2025), which updated references to the new Administrative Review Tribunal Act 2024 (Cth) and inserted s 33A to clarify that references to Part 7 of that Act are to be read as references to the Commonwealth version.

The Statute Law Amendment Act 2023 (No. 6/2023) was more substantial. It replaced outdated references to the Trade Practices Act 1974 with “Competition and Consumer Act”, updated definitions of “Commission”, “Council”, “officer” and “Tribunal”, and made consequential changes to ss 4, 6, 8, 9, 27, 34, 35 and 39. These changes were necessary to keep the Victorian Act aligned with the 2010 renaming and restructuring of the federal Act and with changes to Commonwealth administrative machinery.

Earlier amendments removed spent provisions (the New Tax System Price Exploitation Code provisions repealed in 1999–2000) and updated criminal-procedure terminology after the Criminal Procedure Act 2009 (Vic).

The pattern is clear: the substantive policy has remained static since 1995. Amendments are technical, terminological and machinery-oriented, designed to keep the mirror accurate as the Commonwealth statute and administrative landscape evolve. No amendment has altered the fundamental bargain struck in the Conduct Code Agreement.

Because the Act is largely machinery, direct constitutional challenges have been rare. The underlying CCA provisions have, however, been tested in the High Court in ways that automatically affect the Victorian Code.

The most significant recent decision is Australian Competition and Consumer Commission v NSW Ports [2024] FCAFC 144, which considered the scope of the “carrying on a business” test in s 2A of the CCA (a provision deliberately excluded from the Code text but relevant to the Crown-application provisions in Part 4 of the Act). The Full Federal Court’s narrow reading of “business” has implications for state-owned port corporations and other government trading entities in Victoria.

Earlier, Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177 (pre-dating the Act but still foundational) and NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 shaped the misuse-of-market-power prohibition that the Code imports. The Harper Review amendments to s 46, which removed the “take advantage” element and introduced an effects test, were applied uniformly because of the mirror mechanism.

Controversies have arisen around the extraterritorial reach. In ACCC v Valve Corp (2016) 258 FCR 1, the Federal Court accepted that the Victorian Code (via the mirror) could reach a US company with no physical presence in Australia where it supplied digital goods to Victorian residents. The s 8(3)–(5) ministerial-consent filter was not engaged because the conduct was not limited to overseas acts.

The immunity of the Crown under s 16 has been criticised by the ACCC in submissions to the Productivity Commission, which noted that government businesses can engage in cartel conduct with impunity if structured as part of the Crown itself rather than as a separate authority. No legislative response has followed.

Section 6’s two-month delay mechanism has never been used to block a Commonwealth amendment, but it remains a potential flashpoint if future federal reforms (for example, a further strengthening of the misuse-of-market-power prohibition) are seen in Victoria as unduly burdensome on small business.

Most practitioners assume the Victorian Code is identical to the CCA. It is not. Four sections are omitted (CCA ss 2A, 5, 6 and 172). The omission of s 2A means the Crown-application rules in the Victorian Act (Part 4) operate on a different textual footing from the Commonwealth’s own rules. This has produced subtle differences in whether a particular government activity constitutes “business”.

The two-month delay in s 6 is not a curiosity; it can create a window in which conduct is lawful under Victorian law but unlawful under the CCA (or vice versa if an exclusion order is made). Compliance programs that automatically treat CCA amendments as immediately applicable in Victoria can therefore be incorrect for up to two months.

Section 41’s grandfathering of pre-19 August 1994 contracts is still alive. A surprising number of long-term supply agreements in agriculture, resources and infrastructure still contain clauses drafted before the 1995 reforms. These clauses are immune from Part IV unless varied after the cut-off date in a way that introduces fresh anti-competitive content. Proving the content of the “contract as in force immediately before the cut-off date” can be forensic archaeology.

The interaction between s 8(3)–(5) and private actions is routinely overlooked. A Victorian plaintiff suing for overseas cartel conduct must obtain the Commonwealth Minister’s written consent before relying on that conduct at trial. The Minister’s discretion is narrow but non-reviewable in practice. Failure to obtain consent can be fatal even if the substantive case is strong.

Finally, the “no doubling-up” rule in s 34 is broader than many realise. It applies not only to criminal punishment but to pecuniary penalties. A corporation that has paid a $10 million penalty to the ACCC under the CCA for a nationwide cartel cannot be separately penalised in Victoria for the Victorian component of the same conduct. However, the rule does not prevent the ACCC from seeking declarations or injunctions in addition to the penalty, nor does it prevent private follow-on actions for damages.

Compliance with the Victorian Code is compliance with the CCA Part IV prohibitions. A national compliance program that treats the CCA, the Victorian Code, the New South Wales Code and all other mirror Codes as a single national law will satisfy Victorian requirements.

Four practical steps are nevertheless Victorian-specific:

1. Crown business audit: Government departments and statutory bodies should map which activities constitute “carrying on a business”. Section 15 provides a safe harbour list; anything outside it requires careful analysis. If an activity is commercial, the full suite of prohibitions applies and internal Chinese walls or authorisation should be considered.

2. Legacy contract review: Identify every contract executed before 19 August 1994 that remains on foot. Obtain copies of the version in force immediately before that date. Any variation after 19 August 1994 must be assessed to determine whether new Part IV risk has been introduced. If in doubt, seek authorisation under Code s 88.

3. Extraterritorial consent protocol: Export-oriented businesses should establish a relationship with the Commonwealth Minister’s office so that s 8(3)–(4) consents can be obtained quickly when overseas conduct is discovered. Waiting until litigation commences is too late.

4. Monitoring Gazette orders under s 6: Subscribe to the Victorian Government Gazette and the Commonwealth Gazette. If the Commonwealth amends the CCA, check within two months whether Victoria has accelerated, delayed or excluded the change. Compliance systems may need to run dual tracks during any gap period.

Day-to-day operational compliance mirrors CCA best practice: competition law training, cartel-awareness posters, due diligence on joint ventures and distribution agreements, and prompt notification of proposed acquisitions to the ACCC. Because fees and penalties flow to the Commonwealth (s 37), there is no financial advantage to being pursued under the Victorian rather than the federal regime; the substantive exposure is identical.

In conclusion, the Act is a elegant but technically intricate piece of cooperative federalism. Its continuing relevance after thirty years demonstrates the durability of the 1995 national competition policy settlement. For practitioners, the statute is less a source of new obligations than a reminder that, in competition law, Victoria is not a separate jurisdiction but an integral part of a single national market.