Competition Policy Reform (Western Australia) Act 1996

The Act operates by receiving a Commonwealth textual package and then layering jurisdictional rules and administrative design around it. Core concepts to track in the source text are:

• Competition Code text and Competition Code: the Act defines “Competition Code text” narrowly to the Schedule version of Part IV of the Trade Practices Act plus the remainder of the Trade Practices Act insofar as it relates to the Schedule version, and associated Commonwealth regulations (s 4(1)). The term “Competition Code” is used to mean either the text itself or that text as applied with modifications as a law of a participating jurisdiction (s 3(1), s 4). This construct separates the source (Commonwealth text) from its application as a WA law.

• Reception with modification and delay: section 5 declares the Competition Code text applies as WA law, but section 6 imposes a temporal and gubernatorial control on future Commonwealth modifications: a minimum two‑month delay before a Commonwealth modification automatically applies in WA, and a proclamation power to exclude a modification entirely or to bring it into force earlier, subject to publication rules (s 6(1)-(4). The “date of the modification” is the later of the Commonwealth Act’s Royal Assent/ Gazette notice and this Act’s assent (s 6(5)).

• Interpretation rules: the Commonwealth Acts Interpretation Act 1901 applies to the Competition Code as if it were a Commonwealth Act (s 7(1)-(2)), while the WA Interpretation Act 1984 is expressly excluded from applying to the Code and instruments under it (s 7(3)). This sets which interpretative aids and presumptions govern construing the Code in WA.

• Extraterritorial scope and Ministerial consent: the Code applies to persons connected with WA and to conduct occurring partly or wholly outside WA (s 8(1)-(2)). However, reliance on conduct outside Australia in s 82 claims is restricted: a party other than the Commonwealth Minister cannot rely on such conduct in proceedings without written consent of the Commonwealth Minister (s 8(3)-(4)). The Commonwealth Minister must give consent unless the foreign law required or specifically authorised the conduct and it is not in the national interest to give consent (s 8(5)).

• Crown application and exclusions: the application law binds the Crown in right of WA and other jurisdictions for Crown activities that amount to carrying on a business (s 13-14). Section 15 sets specific exclusions that are not to be treated as carrying on a business for these purposes (tax collection, licensing functions, certain intra‑Crown transactions and statutory acquisition of primary products), and defines “non‑commercial” State authorities (s 15(1), (3), (4)). Section 16 protects the Crown from pecuniary penalties or prosecution (subject to limits in s 16(3) excluding authorities).

• National administration and enforcement: Part 5 aims to achieve uniform administration by treating the Codes of participating jurisdictions as if they were a single Commonwealth law (s 18). Commonwealth authorities named in the Code text have the functions and powers conferred by the Code and may exercise them in WA; analogous Commonwealth administrative laws (AAT, FOI, Ombudsman, Privacy) apply to matters arising under the Competition Code as if the Code were Commonwealth law (ss 19-20; 29-33). Division 4 treats offences under the Code as Commonwealth offences for investigation, prosecution and related processes (ss 24-28).

• No doubling up and financial flows: section 34 prevents double punishment where the same conduct has been punished under the Trade Practices Act or another application law. Section 37 directs fees, taxes, penalties and other money authorised under the application law or the Competition Policy Reform (Taxing) Act to the Commonwealth, with limited exceptions (ss 34, 37).

• State administration and delegation: Part 8 allows the Minister and a designated Commissioner to make arrangements or declare State matters for administration where appropriate (ss 46-47). When Part 5 is displaced (if WA is not a fully participating jurisdiction, not party to the Conduct Code Agreement, or when a State matter is declared), the Act provides that State authorities stand in for Commonwealth bodies and State courts and the State Administrative Tribunal exercise the relevant jurisdiction (ss 48-57). The Commissioner may delegate powers (ss 58-59) and confidentiality, good‑faith immunities and judicial notice rules for the Commissioner are provided (ss 60-62).

• Substantive prohibitions (Schedule): the Schedule version of Part IV contains the competition prohibitions and related provisions: contracts or provisions that substantially lessen competition are unenforceable (s 45); price‑related provisions are deemed to substantially lessen competition (s 45A); covenants restricting competition are unenforceable and regulated (ss 45B-45C); secondary boycott prohibitions and exemptions are set out (ss 45D, 45DA, 45DD); prohibitions on resale price maintenance and exclusive dealing are included (ss 48, 47); prohibition on acquisitions that would substantially lessen competition and its factors are listed (s 50); statutory exceptions and authorisation/notification mechanisms are provided (s 51 and references throughout the Schedule).

These concepts show the Act is a reception and administration statute: it imports a Commonwealth text as WA law, establishes which bodies administer and enforce it, defines limits and exceptions for Crown activities, prescribes procedural assimilation with Commonwealth administrative and criminal processes, and provides a state fallback for administration and adjudication where specified.

The Act and the adopted Competition Code affect a broad set of economic actors and a narrower set of public institutions. At the primary level, the Code applies to “persons carrying on business within this jurisdiction; bodies corporate incorporated or registered under the law of this jurisdiction; persons ordinarily resident in this jurisdiction; and persons otherwise connected with this jurisdiction” (s 8(1)). The Schedule definitions and operation make the prohibitions relevant to any person or body corporate supplying or acquiring goods or services in markets (see Schedule ss 45, 45A, 45B, 46, 47, 50). Practising lawyers and compliance professionals should treat every commercial contract, covenant, acquisition and distribution arrangement involving WA‑connected participants as potentially within the Code’s reach.

Public sector entities are also directly affected, but the Act distinguishes Crown roles. The application law binds the Crown in right of WA and other jurisdictions “so far as the Crown carries on a business” either directly or by an authority (s 13-14). However, certain governmental activities are expressly not “carrying on a business” for these purposes: imposing or collecting taxes, levies or licence fees; licensing decisions; purely intra‑Crown transactions; and statutory acquisition of primary products, except in particular circumstances (s 15(1)). An authority of a State that is “non‑commercial” (constituted by one person and not a trading or financial corporation) is likewise excluded from being treated as carrying on a business under those sections (s 15(4)). Section 16 preserves Crown immunity from pecuniary penalties and prosecution (s 16(1)-(2)), while clarifying that State and other authorities are not protected by that immunity (s 16(3)).

Commonwealth enforcement bodies and national institutions are central actors. The Act confers on the Commission, Tribunal and Council the functions and powers expressed in the Code and enables them to operate in WA (s 19). When Commonwealth functions are conferred by the Act, State officers are barred from exercising those same functions (s 27-28, 32-33). For enforcement and review purposes the Commonwealth administrative laws (AAT, FOI, Ombudsman, Privacy) apply to matters arising under the Competition Code as if the Code were Commonwealth law (s 29-33), a procedural consequence that affects both regulated parties and litigators.

State administrative actors also figure when WA chooses to operate in a State mode. The Minister and a designated Commissioner can make arrangements with the Commission and declare State matters (ss 46-47). In particular circumstances,if WA is named under s 150K of the Trade Practices Act as not fully participating, or if the State is not a party to the Conduct Code Agreement, or where a matter is declared a State matter,the statutory frame displaces Part 5 and the Commonwealth administration model, and State authorities, the State Administrative Tribunal and the Supreme Court take on the roles otherwise ascribed to Commonwealth bodies (ss 48-56). The Act provides for specific reading‑in: references to the Commission and Tribunal in the Competition Code text are to be read as references to the Commissioner and the State Administrative Tribunal, respectively (s 52).

Trade unions and employee organisations are specifically engaged by the Schedule. The Schedule contains provisions treating employee organisations as taken to act in concert with members for the purposes of secondary boycott prohibitions, and supplies procedural and liability consequences where organisations are involved (Schedule ss 45DC, 45D, 45DD). That makes workplace arrangements and collective action a discrete area of compliance exposure.

Finally, the Act affects entities that engage in mergers, acquisitions or contract provisions with anti‑competitive effect. The Schedule’s acquisition prohibition (s 50) makes a wide range of transactions subject to review and potential prohibition; the Schedule identifies factors to be taken into account when assessing substantial lessening of competition (s 50(3)), directly affecting corporate transaction planning.

In short, the Act affects: private businesses and traders with WA connections (broadly defined); corporate parties to contracts, covenants and supply arrangements; public sector authorities that carry on business activities; Commonwealth enforcement agencies operating in WA and, when designated, State administrative bodies (Commissioner and SAT); employee organisations engaged in concerted conduct; and parties to mergers and acquisitions. The Act’s definitions and the Schedule’s market‑based tests mean that even non‑corporate persons can be captured where they operate in relevant markets (s 4(2) modifies corporate references to include persons who are not corporations).

The Act imports the substantive duties and prohibitions in the Schedule version of Part IV. Parties operating in WA must observe those duties and are also afforded procedural rights by the Act’s administrative design.

Primary duties drawn from the Schedule include:

• Prohibition on contractual provisions that substantially lessen competition: A contract provision that is exclusionary or that has or is likely to have the purpose or effect of substantially lessening competition is unenforceable and parties must not make or give effect to arrangements of that kind (Schedule s 45(1)-(2)). For enforcement and contract drafting, this creates a duty to avoid contractual terms that restrict rival dealings or concessionary covenants that lower competitive rivalry.

• Price‑related restrictions: The Schedule deems a provision that fixes, controls or maintains, or provides for fixing, controlling or maintaining, prices or discounts to be regarded as having the purpose or effect of substantially lessening competition (s 45A). That makes price agreements and recommended prices subject to strict scrutiny.

• Covenants affecting competition: Covenants (including restraint covenants) that have or are likely to have the effect of substantially lessening competition are unenforceable and parties must not require or give such covenants (s 45B). The Schedule contains further detail on price covenants (s 45C). There are narrow statutory exceptions and procedural provisions for authorisations and notifications linked to the Code’s authorization machinery (see s 45(9), Schedule references to s 88 and s 93).

• Secondary boycott prohibitions and permitted boycotts: Persons must not engage in conduct in concert that hinders or prevents supply or acquisition for the purpose and effect of causing substantial loss or substantially lessening competition (ss 45D, 45DA). The Schedule provides statutory exemptions where conduct’s dominant purpose is related to employment matters, environmental or consumer protection, and sets out the meaning of “industrial action” in that context (s 45DD).

• Misuse of market power: A person with a substantial degree of market power must not take advantage of that power for specified anti‑competitive purposes (eliminating or damaging competitors, preventing entry, or deterring competitive conduct) (s 46). The Court is directed to consider constraints on conduct by competitors and customers when assessing market power (s 46(3)).

• Exclusive dealing and resale price maintenance: The Schedule prohibits the practice of exclusive dealing (s 47) and resale price maintenance (s 48), subject to the substantial lessening of competition tests and specific notices and authorisations (s 47(10A), s 47(10)).

• Prohibition on acquisitions: A person must not acquire shares or assets if the acquisition would have the effect or be likely to have the effect of substantially lessening competition; the Schedule provides mandatory factors to be taken into account (s 50(1), (3)).

Statutory duties on public actors and administrative process:

• Application to Crown: The application law binds the Crown in right of WA for Crown business activities except where identified as not carrying on a business (ss 13-15). Crown immunity to pecuniary penalty and prosecution is preserved, but authorities are excluded from that protection (s 16).

• Administrative law rights: Matters arising under the Competition Code are to be treated as matters arising under Commonwealth law for application of Commonwealth administrative laws, including the Administrative Appeals Tribunal Act, Freedom of Information Act, Ombudsman Act and Privacy Act (ss 29-33). That gives regulated entities access to Commonwealth administrative review and FOI/ privacy regimes when the Code is engaged.

• Procedural rights and federalisation of offences: Division 4 treats Code offences as if they were Commonwealth offences for investigation, arrest, prosecution and related criminal processes (ss 24-26). This grants defendants (and prosecutors) the procedural apparatus that applies to Commonwealth offences; it also prescribes that where Commonwealth officers have functions or powers in relation to Trade Practices Act offences, they have the same functions in relation to the corresponding Code offences (s 27).

• Delegation and State administration: When a matter is declared a State matter or Part 5 is displaced, the Act gives State authorities the functions and powers of the Commission and Tribunal (ss 51-53) and the Commissioner power to delegate (ss 58-59). For regulated parties, this creates an alternative administrative channel where the State operates the Code.

Tactical and procedural obligations:

• Financial obligations: All fees, taxes, penalties and other money authorised under the application law or the Competition Policy Reform (Taxing) Act 1996 must be paid to the Commonwealth (s 37). Parties must therefore expect monetary flows to be directed to the Commonwealth even when the law applies as WA law.

• Confidentiality obligation for officials: A newly inserted State confidentiality offence criminalises misuse of information officially obtained in the administration of Part 8, with a specified penalty (s 60). Officials entrusted with information must observe strict limits on use and disclosure.

Rights are implicit and explicit:

• Access to authorisation and notification mechanisms: The Schedule preserves the Code’s authorisation, notification and exemption mechanisms (see cross‑references to s 88(7), s 88(8), s 93 in the Schedule). Parties may seek authorisation to engage in conduct that would otherwise contravene the prohibitions.

• Access to administrative review and Commonwealth administrative law protections: Regulated persons gain access to the AAT, FOI, Ombudsman and Privacy Act processes for matters arising under the Code (s 29-33), and criminal procedural protections as offences are treated as Commonwealth offences (s 24-27).

• No double punishment: Where conduct has already been punished under the Trade Practices Act or another application law, section 34 bars subsequent punishment under the Competition Code for the same conduct, and bars double pecuniary penalties (s 34).

Key rights and duties therefore map to the Schedule’s anti‑competitive prohibitions and to the Act’s administrative and jurisdictional choices about how enforcement and review are to occur.

The Act configures both substantive enforcement (through the Schedule) and procedural enforcement (by federating enforcement tools) and specifies which bodies will exercise powers in WA.

Treatment of offences and enforcement bodies:

• Division 4 makes explicit that the objective is to treat offences against the Competition Code of this jurisdiction (and those of other participating jurisdictions) as if they were offences against Commonwealth law in order to leverage Commonwealth investigative, prosecutorial and sentencing machinery (s 24). It lists the purposes for which the treatment applies, including investigation, arrest, trial, conviction, sentencing, fines and proceeds of crime (s 24(2)).

• Section 25 declares that Commonwealth laws apply as laws of WA in relation to an offence against the Competition Code as if the Code were a Commonwealth law (s 25(1)). For purposes of WA law, such an offence is to be treated as an offence against Commonwealth law and not as an offence against WA law (s 25(2)). The effect is procedural centralisation for criminal processes.

• Section 27 confers on Commonwealth officers and authorities the same functions and powers in relation to Code offences as those they hold in relation to offences under the Trade Practices Act, and obliges those Commonwealth officers to act as nearly as practicable as they would in handling Trade Practices Act offences (s 27(1)-(4)). Where these functions are conferred on Commonwealth officers, State officers cannot exercise the same functions (s 28).

Court jurisdiction and remedies:

• For State administration cases (when Part 5 is displaced or State matters declared), the Act provides that proceedings for an offence against the Competition Code of Western Australia are to be dealt with by a court of summary jurisdiction (s 55(1)), while other proceedings under the Code are within the Supreme Court’s jurisdiction (s 55(2)). The Act also prescribes how references in the Code to “the Court” are to be read in the State context (s 56).

• The Schedule provides the substantive civil remedies framework (e.g. section 82 claims for damages are referenced in s 8(3) and elsewhere in the Schedule). The Act prevents double punishment if the offender has already been punished under the Trade Practices Act or another application law (s 34).

Penalties explicitly included in the State‑specific Part:

• Section 60 creates a confidentiality offence for misuse of information obtained under Part 8’s administration, with a specified monetary penalty of $20,000 for misuse outside the narrow enumerated exceptions (s 60(1)-(2)). This is an express criminal sanction within the State administration head.

• The Schedule refers to pecuniary penalties under the Competition Code (see s 76 referenced in s 37(1) ), although the Schedule included in this Act reproduces Part IV as at the stated date and particular pecuniary penalty amounts and structures are located in the Code text itself. Section 37 directs that pecuniary penalties and other specified sums payable under the application law must be paid to the Commonwealth (s 37(1)). Section 34 prevents double pecuniary penalties for the same conduct if a penalty was already imposed under another applicable law.

Administrative and regulatory enforcement mechanisms:

• The Act explicitly subjects matters arising under the Competition Code to Commonwealth administrative laws by operation of sections 29-33. This brings in the Administrative Appeals Tribunal, FOI, Ombudsman and Privacy Act frameworks for review, information access and oversight where those Commonwealth instruments apply. Those frameworks affect enforcement practice, timetables, rights to review and disclosure obligations.

• Part 5 and the conferral provisions (ss 19-20) equip the ACCC (Commission) and Tribunal with powers to investigate and make determinations in WA. Where the Commonwealth is the enforcing actor, its investigative tools, information‑gathering powers and enforcement priorities will apply, and State officers are precluded from exercising duplicated functions (s 28).

Operational implications for enforcement:

• Because offences under the Competition Code are treated as if they were Commonwealth offences for the listed purposes, prosecutions and enforcement actions will generally be pursued via Commonwealth agencies and within Commonwealth procedural frameworks (ss 24-27). This centralisation changes the locus of enforcement decisions, charging practices, discovery and disclosure expectations, and potential appeal routes for respondents.

• Where the State exercises administration under Part 8 (e.g. in relation to State matters or if Part 5 is excluded by s 48(2)(a)), State authorities and courts assume those roles (ss 51-56), but the Act preserves interoperability with Commonwealth administrative law in many respects and requires specific reading in of State authorities where the Code’s text refers to Commonwealth bodies (s 52).

In short, enforcement operates on a nationalised model unless displaced by State declarations; offences are procedurally treated as Commonwealth offences, investigative and prosecutorial authority flows to Commonwealth officers in many instances, and monetary penalties and fees are payable to the Commonwealth. The Schedule contains the substantive prohibitions and associated civil remedies; the Act provides the institutional and procedural channels for enforcement and review.

This Act is an importing statute: it brings a body of Commonwealth law into WA and establishes cross‑references, interpretative regimes and precedence rules. Key interaction points in the source text are:

Reception and modification mechanics:

• The Competition Code text is the Schedule version of Part IV of the Trade Practices Act together with the remaining provisions of the Trade Practices Act so far as they relate to the Schedule version, and related Commonwealth regulations (s 4(1)(a)-(c)). Those provisions are to be modified as necessary to fit the Schedule version and references to corporations are to include persons who are not corporations (s 4(2)). This creates an explicit textual link to the Trade Practices Act and its subordinate instruments.

• Future Commonwealth modifications interact with WA law via s 6. A Commonwealth modification does not apply in WA for at least two months after the date of the modification unless a proclamation brings it earlier; the Governor may proclaim a modification excluded from operation in WA (s 6(1)-(3)). This gives WA a temporal and executive gatekeeping role in receiving Commonwealth amendments.

Interpretation and procedural law:

• The Acts Interpretation Act 1901 (Commonwealth) applies to the Competition Code and instruments under it as if the Code were a Commonwealth Act (s 7(1)-(2)). Conversely, the WA Interpretation Act 1984 does not apply to the Competition Code or instruments under it (s 7(3)). That choice alters interpretative presumptions and how terms in the Code are construed in WA, aligning interpretive doctrine with Commonwealth practice.

• Commonwealth administrative laws,Administrative Appeals Tribunal Act, Freedom of Information Act, Ombudsman Act, Privacy Act and their regulations,are applied to matters arising in relation to the Competition Code as if the Code were Commonwealth law (s 29-33). As a result, procedural and remedial interactions with administrative law (review, FOI, Ombudsman oversight, privacy obligations) are governed by Commonwealth instruments rather than WA administrative law.

Criminal and enforcement law interactions:

• Division 4 treats offences against the Competition Code as if they were offences against Commonwealth law for the purposes of investigation, prosecution, arrest, bail, trial, conviction, sentencing and related matters (ss 24-26). Where Commonwealth laws confer functions or powers in relation to Trade Practices Act offences, the same are conferred for corresponding Code offences (s 27). Where these functions are conferred on Commonwealth officers, State officers cannot perform them (s 28). This places Code offence prosecutions within Commonwealth criminal procedural frameworks.

State law and Crown interactions:

• The application law binds the Crown in right of WA and other jurisdictions when the Crown carries on a business (s 13-14). But s 15 lists activities that do not amount to “carrying on a business” for this purpose (tax collection, licensing, certain intra‑Crown transactions, statutory acquisitions of primary products), which preserves the operation of certain State regulatory and revenue functions outside the Code. Section 16 shields the Crown from pecuniary penalties and prosecution but leaves authorities exposed.

• Section 36 explains that a reference in Commonwealth law to a provision of another Commonwealth law is to be regarded as a reference to that provision as applying because of sections 25, 26, 30 or 31, thereby aligning cross‑references in Commonwealth legislation to the Code as received in WA.

Regulatory delegations and exceptions:

• The Governor may make regulations necessary to give effect to the Act (s 38); regulations may also specifically authorise specified things to be done in WA with express reference to the Trade Practices Act or the Competition Code (s 39). Section 51 in the Schedule contains a detailed list of exceptions and directions on what must be disregarded when determining contraventions, including acts authorised by State law where those laws expressly refer to the Competition Code (Schedule s 51(1), (1C)).

Transitional overlap:

• Part 7 contains savings and transitional rules, including treatment of existing contracts made before the cut‑off date (19 August 1994) and temporary immunity from pecuniary penalties for conduct taking place within two years after 20 July 1995 (ss 40-44). These transitional rules interact with prior State and Commonwealth conduct and affect whether earlier acts amount to contraventions.

State system interactions:

• If WA is not a fully participating jurisdiction or not a party to the Conduct Code Agreement, or where a matter is declared a State matter, the Act disapplies Part 5’s Commonwealth administration mechanisms and substitutes State arrangements. In those situations the references in the Code to Commonwealth bodies are to be read as references to State bodies (ss 48-53). Section 57 confirms that the Division does not affect cross‑vesting provisions, preserving other interjurisdictional judicial arrangements.

Financial flows and taxation:

• Section 37 directs that fees, taxes, penalties and other money authorised under the application law or the Competition Policy Reform (Taxing) Act are payable to the Commonwealth, which affects State revenue interactions and where funds from enforcement flow.

In sum, the Act creates a hybrid legal architecture: substantive competition law comes from the Commonwealth text; interpretation and administrative processes are aligned primarily to Commonwealth procedural laws; enforcement is commonly executed by Commonwealth agencies in WA; but the State retains the ability to assume administration in defined circumstances, and specific State activities remain outside the Code’s reach. Those choices create points of interaction and potential friction between State and Commonwealth systems, and specify how statutory cross‑references should be read.

The source contains a compilation table and notes showing the Act’s amendment chronology. The Act commenced on 21 July 1996 (s 2), with assent on 31 October 1996 recorded in the compilation table. The key amendment entries and inserted provisions recorded in the source are:

• No. 51 of 1999: Section 3 was amended by No. 51 of 1999 s 37 (as noted in s 3 amendment footnote). The New Tax System Price Exploitation Code (WA) Act 1999 s 37 is listed in the compilation table (51 of 1999) with commencement on 17 December 1999, and appears in the compilation table as a consequential amendment entry.

• Federal Courts (State Jurisdiction) Act 1999 (No. 32 of 1999) appears in the compilation table; however, a note states that s 18 of that Act, which would have amended this Act, did not come into operation and was repealed by the Acts Amendment (Federal Courts and Tribunals) Act 2001 s 16.

• Acts Amendment (Federal Courts and Tribunals) Act 2001 (No. 32 of 2001) is recorded as commencing 21 December 2001 and is included in the reprint history.

• Statutes (Repeals and Minor Amendments) Act 2003 (No. 74 of 2003) amended the Act (s 38 of that amending Act), with commencement 15 December 2003; the compilation table notes some deletions pursuant to that Act (for example s 21, 22, 23 were deleted by subsequent enactments noted elsewhere).

• Courts Legislation Amendment and Repeal Act 2004 (No. 59 of 2004) amended the Act; s 55 was amended (see note “Section 55 amended: No. 59 of 2004 s. 141.”) with commencement 1 May 2005.

• State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (No. 55 of 2004) amended the Act; s 52 was amended by No. 55 of 2004 s 136.

• Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (No. 84 of 2004) amended s 3 (note indicating s. 3 amended by No. 84 of 2004 s. 80).

• Reprints: The Act notes a reprint as at 6 July 2001 and Reprint 2 as at 2 December 2005, incorporating listed amendments to those dates.

• Machinery of Government (Miscellaneous Amendments) Act 2006 (No. 28 of 2006) inserted Part 8 provisions, including the Commissioner provisions (ss 58-62). The compilation table records commencement 1 July 2006 for that amending Act and notes insertion of Division 23 transitional provisions concerning Commissioners. The source explicitly indicates that ss 58-62 were inserted by No. 28 of 2006 s 69.

Specific textual amendments and deletions noted in the source include:

• Deletion of Division 3 sections (s 21, 23 and s 22) by No. 32 of 2001 and No. 32 of 1999 (note in Part 5).
• The insertion of the Commissioner regime and related protections and confidentiality obligations in 2006 (ss 58-62), as recorded in the notes to Part 8.
• Amendments to cross‑references and reading‑in provisions to accommodate the State Administrative Tribunal and other procedural changes (e.g. s 52 and s 56 amendments in 2004).

The compilation table attached to the source is explicit in listing the amending instruments, assent dates and commencement particulars for each amendatory Act included up to the Reprint 2 date of 2 December 2005, plus the 2006 Machinery of Government amendments. The source also includes notes about provisions that did not come into operation and were repealed or that were later amended by other Acts, for example the note that the Federal Courts (State Jurisdiction) Act 1999 s 18 did not commence and was repealed.

For application and compliance work, the important amendment markers in the source are the 2004-2006 suite of amendments that changed court and tribunal mappings and introduced the Commissioner role (ss 52, 55-56, 58-62), and the 1999 taxation and federal courts adjustments. The Act’s Schedule version also contains references to provisions (for example authorisation provisions) whose operative content can evolve under Commonwealth amendment, and s 6 creates a mechanism for deciding whether and when those Commonwealth changes apply in WA.

The text provided contains no judicial decisions, case names, or litigation summaries. The Act itself does, however, create multiple avenues that are litigation‑relevant and that will determine how disputes are litigated:

• Forum allocation and judicial notice: The Act specifies that, where Commonwealth administration applies, offences under the Competition Code are to be treated as if they were Commonwealth offences for purposes including trial and conviction (s 24-26). For State matters, the Act allocates summary jurisdiction for offences and Supreme Court jurisdiction for other proceedings (s 55), and requires courts to take judicial notice of the Commissioner’s official signature and office (s 62). These provisions structure how and where litigation can be brought.

• Administrative review routes: The Act applies Commonwealth administrative laws to matters arising under the Competition Code as if the Code were Commonwealth law (s 29-33). That creates administrative paths for review (AAT), FOI complaints, Ombudsman investigations and privacy complaints. The availability of these processes affects litigation strategies and the exhaustion of administrative remedies.

• Double‑punishment and pecuniary penalties: Section 34 prevents double punishment where conduct has been punished under the Trade Practices Act or another application law. This statutory protection will be relevant in arguments about remediability and jurisdiction in cases involving multiple jurisdictions or overlapping enforcement actions.

• Ministerial consent for extraterritorial reliance: Sections 8(3)-(5) constrain the evidence that a private litigant may adduce regarding conduct occurring outside Australia by requiring Commonwealth Minister consent for reliance on such conduct in s 82 claims and applications for orders under s 87 in respect of such conduct. This administrative gatekeeper can be a litigation hurdle for cross‑border claims and may lead to interlocutory disputes about admissibility or standing.

• State vs Commonwealth enforcement: The Act’s conferral of functions on Commonwealth officers (s 19, s 27) and restriction of State officers where those Commonwealth functions are conferred (s 28, s 33) mean that prosecutorial or enforcement discretion may rest with Commonwealth rather than State authorities. Litigation arising from enforcement actions will therefore typically implicate Commonwealth agencies and procedures when Part 5 applies.

Because the source text contains no case law, readers must consult published decisions elsewhere to see how courts have interpreted the Competition Code as applied in WA, how ministerial consent has been exercised in practice, and how courts have treated the transplanted Schedule provisions. The Act’s procedural and jurisdictional mapping (ss 24-33; 48-56) is directly relevant to litigation strategy but needs to be read alongside appellate and trial decisions for an actual litigation history.

The source contains multiple provisions that can produce practical pitfalls for practitioners and clients. The following are concrete traps and operational surprises grounded in the source text:

• Automatic reception subject to time lag and proclamation power (s 6): Commonwealth amendments to the Competition Code do not automatically apply in WA until at least two months after the date of the modification. The Governor may exclude a modification or accelerate its reception by proclamation (s 6(1)-(4)). Practitioners must not assume immediate reception of Commonwealth amendments; check the Gazette for any proclamation altering the timing.

• Extraterritorial evidence restrictions (s 8(3)-(5)): A private party cannot rely at a hearing on conduct occurring outside Australia that falls within the Code’s extraterritorial ambit unless the Commonwealth Minister gives written consent (s 8(3)-(4)). The Minister’s consent is required for certain s 82 claims and for private s 87 applications where conduct occurred outside Australia. The Minister must give consent unless the foreign law authorised the conduct and it is not in the national interest to give consent (s 8(5)). This administrative gatekeeping can impede private enforcement of cross‑border conduct.

• Crown immunity but not for authorities (ss 13-16): The Crown in right of WA is protected from pecuniary penalties and prosecution under the application law (s 16), but the protection does not extend to authorities of any jurisdiction (s 16(3)). Parties must distinguish between Crown actions and actions by State authorities,an authority may be liable even if the Crown is not.

• Definition of activities not “carrying on a business” is narrow and partially discretionary (s 15): The list of excluded activities (tax collection, licensing, intra‑Crown transactions, statutory acquisition of primary products) is specific and includes exceptions (e.g. acquisitions of primary products that occur because the body chooses to acquire them or has not exercised a discretion) (s 15(1)(d)). Whether a public activity is a “business” for Code purposes will often be a fact‑sensitive threshold issue with significant consequences.

• Fees, penalties and other money payable to the Commonwealth (s 37): All fees, taxes, penalties (including pecuniary penalties under s 76 of the Code) that are authorized under the application law or the Competition Policy Reform (Taxing) Act 1996 are payable to the Commonwealth (s 37(1)), subject to limited exceptions (s 37(2)). This can be surprising for parties expecting State collection or distribution.

• Offences treated as Commonwealth offences (ss 24-26): For investigation and prosecution purposes, Code offences are to be treated as Commonwealth offences. This changes procedural norms, the identity of investigating authorities and the applicable administrative law regimes available to respondents.

• No double punishment (s 34) but potential for parallel investigations: While section 34 prohibits double punishment where an offender has been punished under the Trade Practices Act or another participating jurisdiction’s application law, it does not stop parallel investigations or administrative actions prior to punishment. Practitioners should expect investigation duplication risks even if double punishment is barred.

• Transitional cut‑off dates and temporary exemptions (Part 7): Existing contracts made before the cut‑off date (19 August 1994) are to be disregarded when assessing contraventions after the operative date, subject to variation rules (s 41). There was also a temporary exemption from pecuniary penalties for conduct occurring within two years after 20 July 1995 (s 43). For historic contracts, the cut‑off and operative dates matter for enforceability.

• Reading‑in of State equivalents when Part 5 is displaced (ss 48-53): If the State is not fully participating, not party to the Conduct Code Agreement, or a matter is declared a State matter, Part 5 and certain sections do not apply (ss 48-50). In those scenarios, references to Commonwealth bodies in the Competition Code are read as State authorities (s 52) and State courts have prescribed jurisdictional roles (s 55-56). Practitioners must confirm whether national or State administration is active for a given matter.

• Ministerial and executive discretion: The Minister’s consent role for extraterritorial reliance (s 8(3)-(5)) and the Minister’s power to declare State matters (s 47) are executive discretions that can materially affect litigation and enforcement routes. Parties should plan for potential administrative holdouts or jurisdictional shifts.

• Confidentiality obligations for officials (s 60): For persons administering Part 8, misuse of officially obtained information is an offence with a specified penalty ($20,000) and narrow exceptions (s 60(2)). Leakage risks and internal information flows must be managed tightly.

• Multiple cross‑references to authorisation/notification provisions outside the Schedule: The Schedule cross‑references provisions such as s 88 and s 93 (authorisation and notification provisions). Practitioners must map the Schedule to the rest of the Trade Practices Act as adapted by s 4 to find procedural routes for authorisation. The Code is received as a package; do not treat Schedule prohibitions in isolation.

Each of these “gotchas” is grounded in a specific source provision. The practical takeaway is to check the relevant sections (s 6, s 8, ss 13-16, s 37, ss 24-28, Part 7, ss 48-53, s 60) and the Schedule provisions when advising clients, because administrative gates, Crown immunity rules, temporal reception mechanics and distinctions between national and State administration can substantially change risk profiles.

Compliance under this Act requires attention to substantive contract drafting, acquisition planning, administrative engagement and institutional mapping. The steps below translate the source obligations into concrete actions tied to specific provisions.

1. Review existing and proposed contracts and covenants against the Schedule prohibitions (Schedule s 45, s 45A, s 45B, s 45C):

   • Identify any contract provisions that could be characterised as exclusionary or that have the purpose or likely effect of substantially lessening competition (Schedule s 45(1)-(2)). Where a clause arguably restricts dealing, re‑draft to remove or narrow restrictions, or document pro‑competitive justifications.
   • For price provisions, treat any clause that fixes, controls or maintains prices, discounts, rebates or credits as per se suspect (Schedule s 45A). If collective pricing or recommended pricing is contemplated, seek an express authorisation under the Code’s authorisation regime (cross‑referenced in Schedule).
   • For covenants (restraints), assess whether they fall within Schedule s 45B and consider whether the covenant meets any of the statutory exceptions in s 45B(9) or authorisation routes.

2. For mergers and acquisitions, undertake a competition assessment using the factors listed in Schedule s 50(3):

   • Before executing share or asset acquisitions, evaluate the actual and potential level of import competition, barriers to entry, market concentration, countervailing power, likelihood of sustainable price increases, availability of substitutes, market dynamism and the prospect of removing a vigorous competitor (s 50(3)(a)-(i)).
   • If the acquisition is subject to a condition requiring authorisation, file the authorization application within 14 days of contract entry to avoid being treated as having completed the transaction for Competition Code purposes (s 50(4)-(5)).

3. Manage workforce and collective action risks (Schedule ss 45D, 45DA, 45DC, 45DD):

   • If conduct involves concerted action with employee organisations that will hinder or prevent supply or acquisition, check whether the dominant purpose is an employment‑related matter or an exempt purpose like environmental or consumer protection (s 45DD). Where employee organisations are involved, be aware that organisations are taken to act in concert with members (s 45DC(1)).
   • If industrial action is involved, review interactions with workplace law protections and the interplay with the Competition Code, noting the limited scope of protection in s 45DD(3)-(6).

4. For public entities and authorities:

   • Determine whether the activity is “carrying on a business” for Code purposes. If the activity falls within the s 15(1) list (tax collection, licensing, intra‑Crown transactions, acquisition of primary products under legislation), document why the public activity is excluded from being a “business” or consider structural changes if the activity is intended to be commercial.
   • For State authorities, understand that the Crown’s immunity (s 16) does not extend to authorities (s 16(3)); where an authority conducts commercial activity, ensure that competition compliance controls are in place.

5. Map enforcement and jurisdiction before making enforcement decisions or initiating litigation:

   • Confirm whether the Commonwealth administration model in Part 5 applies to the matter. If Part 5 applies, anticipate engagement with the Commission (ACCC), Tribunal and Commonwealth administrative regimes (ss 19-20; 29-33). If the matter is declared a State matter or Part 5 is otherwise inapplicable, read s 52 and ss 51-56 to determine which State bodies and courts will administer the Code.
   • If extraterritorial conduct is involved, obtain Commonwealth Minister consent where intended reliance on conduct occurring outside Australia is necessary for a s 82 claim or an application under s 87 in relation to such conduct (s 8(3)-(5)).

6. Use authorisation and notification channels where appropriate:

   • The Schedule anticipates authorisation mechanisms (see Schedule references to s 88 and s 93). If conduct would otherwise contravene the prohibitions (e.g. price arrangements, covenants, certain boycotts), consider applying for authorisation or giving notices under the relevant Code provisions. Note timing rules such as the 14‑day application window in s 50(4).

7. Data and confidentiality controls for State administrators:

   • For persons administering Code matters under Part 8, apply strict confidentiality procedures. Section 60 criminalises misuse of officially obtained information, permitting disclosure only in narrow circumstances (s 60(2)(a)-(e)). Implement policies, logging, and training to prevent unauthorised recording, use or disclosure.

8. Financial compliance:

   • Ensure that any fees, penalties and taxes payable under the application law are remitted to the Commonwealth (s 37(1)). Check which amounts are excepted under s 37(2) and confirm that the State’s accounting and invoicing systems are aligned to Commonwealth payment instructions.

9. Keep track of amendment reception and proclamations:

   • Monitor Commonwealth changes to the Trade Practices Act and the Competition Code, and check WA proclamations under s 6. A Commonwealth amendment will not automatically bind WA until the two‑month window or any proclamation that applies; watch the Gazette for earlier or excluded reception.

10. Engage administrative remedies and preserve judicial review options:

• Where administrative decisions are adverse, remember that the Commonwealth administrative laws (AAT, FOI, Ombudsman, Privacy Act) apply to Code matters (s 29-33). Use those review channels where applicable before or in parallel with court proceedings, and preserve procedural arguments about whether a matter falls within Commonwealth or State administration given the potential impact on forum and remedy.

Practical checklist:

• Contract audits for exclusionary provisions and price clauses (Schedule s 45, s 45A).
• M&A competition assessments using s 50(3) factors and early authorisation where contracts impose conditions (s 50(4)).
• Employee organisation/industrial action risk assessments (Schedule ss 45D, 45DD, 45DC).
• Verify whether an activity is a Crown “business” for Code purposes (ss 13-16).
• Confirm which enforcement agency and which procedural laws apply (Part 5 vs Part 8; ss 19-20; 29-33; 48-53).
• Ensure fees and penalties will be payable to Commonwealth accounts (s 37).
• Maintain confidentiality compliance for State administrators (s 60).

By following these steps,anchored to the specific source provisions cited,practitioners and compliance officers can operationalise compliance under the Competition Policy Reform (Western Australia) Act 1996 and the Competition Code as received into WA law.