New Tax System Price Exploitation Code (Western Australia) Act 1999

The Act builds on a small number of repeatable statutory concepts. These are: the imported Code text; regulated supplies; the New Tax System transition period; price exploitation; Commission notices and monitoring; treatment of Crown activity; conferral of Commonwealth enforcement functions; and the administrative law overlay.

New Tax System Price Exploitation Code text. Section 4 defines the Code text as the Schedule version of Part VB of the Trade Practices Act, together with related Trade Practices Act provisions, regulations and guidelines so far as they relate to that Schedule version (s 4(1)(a)-(d)). Subsection 4(2) requires modification of relevant Trade Practices Act provisions to fit the Schedule version and to broaden references to corporations to include non‑corporate persons where necessary.

Regulated supply and New Tax System transition period. The Appendix defines “regulated supply” and the “New Tax System transition period”. A regulated supply may be a supply of goods that were previously subject to sales tax (items 4 to 14 of Schedule 5 to the Sales Tax (Exemptions and Classifications) Act 1992) when supplied during the transition period before the GST implementation date, or, for supplies during the period on or after the GST implementation date, supplies by persons registered or required to be registered under the GST Act that would be taxable supplies (s 75AT: definition of “regulated supply”). The New Tax System transition period is a fixed defined period starting on the later of 1 July 1999 and the commencement of the Trade Practices amendment and ending two years after the GST implementation date (s 75AT).

Price exploitation. Section 75AU is the core substantive prohibition. It creates a contravention where a person makes a regulated supply and the price for that supply is unreasonably high having regard alone to the New Tax System changes (s 75AU(2)(b)), and is still unreasonably high after taking into account the supplier’s costs, supply and demand and any other relevant matters (s 75AU(2)(c)). The statutory test contains a two-step comparison: first "having regard alone to the New Tax System changes", and second a residual test that the price remains unreasonably high even when conventional economic factors are taken into account.

Commission notices and powers. The Commission may issue a written notice to a person it considers has contravened s 75AU (s 75AW). Such a notice must identify the person, the kind of supply and the circumstances, and state that, in the Commission’s opinion, the price was unreasonably high and not attributable to the matters in s 75AU(2)(c) (s 75AW(2)). The notice is prima facie evidence of those facts in proceedings under s 76 (relating to s 75AU) or s 80 (injunctions) (s 75AW(3)). The Commission may also issue a preventive notice specifying maximum prices for specified supplies during a specific period (s 75AX(2)(c)). The Commission has monitoring powers, including requiring information and documents and a penalty for refusal or for supplying false or misleading material (s 75AY).

Administrative and enforcement architecture. The Act places the Commission and other Commonwealth officers and authorities into the Western Australian enforcement framework by conferring on them the functions and powers expressed in the Code (s 19). The laws of the Commonwealth are applied as laws of Western Australia in relation to offences under the Code and to administrative matters arising under the Code (ss 22-23; ss 27-28). Where a Commonwealth law confers a function on a Commonwealth officer or authority for Trade Practices offences or administrative matters, it also confers the same function for the corresponding provision in the WA Code (ss 24, 29). Where a function is conferred on a Commonwealth officer or authority, a WA officer cannot exercise that function (ss 25, 30).

Crown and application law. The application law binds the Crown in right of Western Australia and other jurisdictions so far as the Crown carries on a business, subject to express non‑business activities that are excluded (ss 13-15). The Crown itself is protected from pecuniary penalties and prosecution in certain respects; the protection does not extend to authorities of any jurisdiction (s 16).

Regulation and modification controls. Commonwealth modifications to the Code text do not automatically apply in WA; they are adopted only by order of the Governor published in the Gazette under s 6. Regulation-making powers under ss 35-36 permit the Governor to make regulations to give effect to the Act and to enable state courts to exercise jurisdiction over applied provisions under conditions set out in s 36.

These main concepts create an architecture where a national Code addressing transitional tax‑related price conduct is applied within WA, administered principally by the Commonwealth competition regulator, with specified procedural, evidential and administrative consequences.

The Act applies to a broad set of persons and transactions connected with Western Australia but is focused on suppliers making regulated supplies during the New Tax System transition period. Section 8 expressly extends the New Tax System Price Exploitation Code of Western Australia to persons carrying on business in the jurisdiction, bodies corporate incorporated or registered under WA law, persons ordinarily resident in WA, and persons otherwise connected with WA. Section 9 allows the Code to extend to conduct occurring outside WA consistent with section 8, so that persons outside the State can be caught if they are connected with WA.

Regulated suppliers. The immediate target of the substantive prohibition in s 75AU is a person who makes a regulated supply as defined in s 75AT. That definition includes supplies during the transition period of goods that immediately before the GST Transition Act were within specified items of the sales tax schedule, and supplies by GST‑registered (or required‑to‑be‑registered) persons of taxable supplies on or after the GST implementation date. In practice, businesses that supply goods formerly sales‑taxed items, and businesses that are GST registered and make taxable supplies, will need to assess whether their prices during the transition period are regulated supplies (s 75AT).

Corporations and non‑corporate suppliers. The Code text was modified when applied to WA to broaden references to corporations to include non‑corporate persons where necessary (s 4(2)). Therefore the prohibition and the Commission’s powers can apply to individuals, partnerships and other non‑corporate entities as well as corporations.

The Crown. The application law binds the Crown in right of WA and of other jurisdictions so far as the Crown carries on a business directly or by an authority (s 13). Section 14 additionally binds the Crown in right of WA to the application laws of other participating jurisdictions where the Crown carries on a business. However, s 15 specifies activities that are not to be regarded as carrying on a business for those purposes, including the imposition or collection of taxes, certain licensing acts, and intra‑Crown transactions. Section 16 provides that the Crown in any capacity is not made liable to a pecuniary penalty or prosecution by operation of the application law, although the protection does not extend to authorities of any jurisdiction.

Consumers and purchasers. Although the Code targets suppliers, the practical effect is to protect purchasers from price exploitation during the transition period. Consumers and business purchasers who believe they were charged an unreasonably high price can fall within the Commission’s monitoring and enforcement universe, and the Commission may issue notices and seek injunctive relief (s 75AW; s 75AV(3)(b)).

Regulators and courts. The Commission is the principal decision maker on monitoring, notices and reporting (s 75AY; s 75AZ). Commonwealth criminal and administrative laws are applied to the Code so that Commonwealth officers and authorities perform investigations, prosecutions and administrative review as if the Code were Commonwealth law (ss 21-29). State courts may be given jurisdiction by regulation, and s 36 allows regulations to provide for state courts to exercise jurisdiction and for applied provisions to be modified in consequence.

Suppliers operating interstate or internationally. The Act’s extraterritorial reach (s 9) and the Code’s definition of persons connected to WA (s 8) extend the potential cohort beyond suppliers who are physically present in WA. Businesses that supply regulated goods into WA, or who are otherwise connected to WA, are captured. The Commission’s powers to treat offences as Commonwealth offences for investigation and prosecution (s 22-23), and the application of Commonwealth administrative laws (ss 27-28), mean that enforcement pathways are national even where conduct has cross‑jurisdictional elements.

Other stakeholders. The Minister responsible for Part VB of the Trade Practices Act receives the Commission’s quarterly reports on operations under ss 75AU-75AX (s 75AZ). The Governor has the power to adopt Commonwealth modifications (s 6) and to make regulations affecting applied provisions and jurisdictional arrangements (ss 35-36). Fees, penalties and other money authorised by the application law or the New Tax System Price Exploitation Code (Taxing) Act 1999 are payable to the Commonwealth (s 34).

In short, the Act affects suppliers of regulated goods during the transition period, purchasers, the Crown when carrying on business (with specified carve‑outs), and regulators and courts involved in national enforcement and administrative review processes. Businesses that supply items previously subject to sales tax or that are GST registered and supply taxable goods should be particularly alert.

This statute creates duties for suppliers, information and cooperation duties, and rights of administrative review and challenge, while allocating enforcement responsibilities. The duties and rights are located partly in the Appendix (the Code text) and partly in the main Act.

Primary duties on suppliers. The central substantive duty is not to engage in price exploitation in relation to the New Tax System changes. Section 75AU makes it a contravention for a person to make a regulated supply where the price is unreasonably high having regard alone to the New Tax System changes and remains unreasonably high even when the supplier’s costs, supply and demand and any other relevant matter are considered (s 75AU(1)-(2)). Corporations have an additional duty not to misrepresent the effect of the New Tax System changes for the purpose of price exploitation: s 75AYA prohibits misleading or deceptive representations of the effect or likely effect of New Tax System changes in trade or commerce during the transition period (s 75AYA(c)-(d)).

Information and cooperation duties. The Commission may monitor prices (s 75AY(1)) and may require by written notice that a person supply specified information in writing or produce specified documents relating to prices or the setting of prices (s 75AY(2)). A person must not refuse or fail to comply with such a notice to the extent they are capable of complying, and must not in purported compliance intentionally or recklessly provide false or misleading information or documents (s 75AY(4)). The penalty for refusal or furnishing false or misleading material under s 75AY(4) is 20 penalty units as stated in the Appendix.

Duties relating to notices. If the Commission issues a notice under s 75AW stating its opinion that a supplier has contravened s 75AU, the notice must identify relevant facts and state the Commission’s opinion (s 75AW(2)). The Commission may also issue preventive notices under s 75AX that specify the maximum price that may be charged for supplies of a kind specified in the notice during a specified period; recipients of such notices must comply with the specified maximum price for the duration of the notice.

Rights to variation, revocation and publication. Persons who receive a s 75AW notice may apply to the Commission to vary or revoke it; the Commission can also vary or revoke on its own initiative and must give written notice of variation or revocation (s 75AW(4)). Similarly, s 75AX(3) allows the Commission to vary or revoke preventive notices on its own initiative or on application, and to give written notice of the variation or revocation; s 75AX(4) authorises the Commission to publish notices or particulars of variations or revocations in such manner as it considers appropriate.

Evidential effects and procedural rights. A s 75AW notice is prima facie evidence in proceedings under s 76 (proceedings relating to s 75AU) or s 80 (injunctions) that the price was unreasonably high and not attributable to the matters in s 75AU(2)(c) (s 75AW(3)). That shifts an evidentiary burden in subsequent litigation or injunction applications. Procedurally, Part 5 confers Commonwealth investigative and prosecutorial powers on Commonwealth officers and authorities to operate in WA (s 19), and applies Commonwealth laws for offences and administrative matters as if the Code were Commonwealth law (ss 22-23; ss 27-28). Where those Commonwealth laws confer functions on Commonwealth officers or authorities, the same are conferred for the corresponding WA Code provisions (ss 24, 29). The applicable Commonwealth administrative laws include the Administrative Appeals Tribunal Act 1975, the Freedom of Information Act 1982, the Ombudsman Act 1976 and the Privacy Act 1988 (s 26), and those laws apply as laws of WA in relation to matters arising under the WA Code (s 27).

Crown‑related rights and limits. The application law binds the Crown in right of WA and other jurisdictions where the Crown is carrying on a business (s 13). However, section 16 provides that the Crown is not liable to pecuniary penalty or to be prosecuted for an offence by operation of the application law, although authorities are not protected. Section 15 lists activities that are not regarded as carrying on a business for these purposes (for example, imposing or collecting taxes and certain licence actions), so those activities are excluded from the application law’s reach.

Regulatory and review rights. The Commission is required to report quarterly to the relevant Minister on operations under ss 75AU-75AX and the Minister must make those reports public as soon as practicable after receipt (s 75AZ(1), (4)). Persons affected by Commission decisions have the administrative law protections that come from the application of Commonwealth administrative laws, including review by tribunals and access to FOI and Ombudsman mechanisms where applicable (s 27; s 26 lists the Commonwealth administrative laws that apply).

No double punishment and coordination. Section 31 prevents double punishment by providing that if an act is an offence under both the WA Code and the Trade Practices Act or an application law of another participating jurisdiction, and the person has been punished under the Trade Practices Act or that other law, the offender is not liable to punishment under the WA Code for the same conduct (s 31(1)). Likewise, a person ordered to pay a pecuniary penalty under the Trade Practices Act or an application law of another jurisdiction is not liable to a pecuniary penalty under the WA Code for the same conduct (s 31(2)).

Overall, the Act imposes substantive duties against charging unreasonably high prices in relation to New Tax System changes, requires cooperation with Commission monitoring, grants the Commission preventive price‑ceiling powers and provides administrative and judicial review pathways via Commonwealth administrative law and established evidentiary mechanisms.

Enforcement of the Code in Western Australia is administered principally by Commonwealth officers and authorities, notably the Australian Competition and Consumer Commission (the Commission), and proceeds under Commonwealth laws applied to WA as if the Code were Commonwealth law (Part 5: ss 19-24; ss 27-29). The Act enables investigation, prosecution and administrative review under Commonwealth regimes and confers on Commonwealth officers the same functions and powers in relation to the corresponding Code provisions (ss 22-24; s 29).

Specific enforcement powers in the Appendix. The Appendix (Schedule version of Part VB) sets out concrete enforcement tools. The Commission may:

• Issue a notice stating that, in its opinion, a person has contravened s 75AU. Such a notice must be in writing and identify the person, the kind of supply and the circumstances. The notice is prima facie evidence in proceedings under s 76 (relating to s 75AU) or s 80 (injunctions) that the price was unreasonably high and not attributable to other matters (s 75AW(1)-(3)). The evidentiary effect means the Commission’s factual assertion bears legal weight unless rebutted.

• Issue a preventive notice specifying the maximum price that may be charged for supplies of a kind and in circumstances set out in the notice during a specified period (s 75AX(1)-(3)). The Commission may publish notices or particulars of variations or revocations in such manner as it considers appropriate (s 75AX(4)). The preventive notice can directly restrict pricing behaviour for a period.

• Monitor prices and require information and documents by written notice to a person, including documents relating to prices or price setting (s 75AY(1)-(3)). Failure to comply with an information notice to the extent the person is capable of complying, or providing information/documents that are false or misleading in purported compliance, is an offence carrying a penalty (Appendix s 75AY(4): penalty 20 penalty units).

Treatment as Commonwealth offences and application of Commonwealth laws. Division 3 (ss 21-25) states the object of treating Code offences for specified purposes as offences under Commonwealth law (s 21). Sections 22-23 declare that Commonwealth laws apply as laws of WA in relation to offences under the WA Code and the Codes of other participating jurisdictions as if the Codes were Commonwealth laws. In consequence, Commonwealth investigative, arrest, prosecution and sentencing procedures apply in WA. Section 24 confirms that where a Commonwealth law confers functions and powers on Commonwealth officers for Trade Practices offences, those same powers apply to corresponding WA Code offences. Section 25 prevents WA officers from exercising functions or powers where they have been conferred on Commonwealth officers.

Administrative law enforcement. Division 4 (ss 26-30) applies Commonwealth administrative laws to matters arising under the WA Code, including the Administrative Appeals Tribunal Act 1975, the Freedom of Information Act 1982, the Ombudsman Act 1976 and the Privacy Act 1988 (s 26). These laws operate as laws of WA in relation to matters arising under the Code (s 27). Consequently, affected persons have rights of administrative review, FOI access and Ombudsman remedies under the Commonwealth statutes as applied.

Remedial civil relief. Although not reproduced in full in the Appendix, the Schedule version of Part VB operates in conjunction with remaining Trade Practices Act provisions (s 4(1)(b)), and the Appendix references proceedings under s 76 (relating to s 75AU) and s 80 for injunctions (s 75AV(3)). The Commission’s notices create evidentiary weight in these proceedings (s 75AW(3)), enabling civil enforcement such as injunctions and pecuniary penalty proceedings under the applied Trade Practices provisions. The Act also prevents duplication of penalties where a person has already been punished under an equivalent Commonwealth or other participating jurisdiction law (s 31).

Publication and transparency. The Commission must report quarterly to the Minister administering Part VB about operations under ss 75AU-75AX and the Minister must make those reports public as soon as practicable (s 75AZ(1), (4)). Reporting must include particulars of all s 75AX notices and their variations or revocations (s 75AZ(2)). Publication supports transparency and can influence compliance incentives.

Crown immunity. Section 16 protects the Crown from pecuniary penalty and prosecution under the application law, but expressly does not protect authorities of any jurisdiction. This means enforcement in relation to Crown entities differs from enforcement against private suppliers.

Regulatory levers via regulations. Section 36 allows regulations to adapt applied provisions so that state courts may exercise jurisdiction and to provide for certain procedural adjustments; it also ensures that applied provisions do not remove state court jurisdiction unless so provided by regulations (s 36(2)-(4)). If regulations limit the Commonwealth application in specified ways, the offences might be treated as state crimes that can be dealt with summarily if prosecutor and accused agree (s 36(3)).

In summary, enforcement is primarily through Commission notices, information powers, civil remedies and the application of Commonwealth criminal and administrative procedures in WA. The Commission’s notices carry evidentiary weight; the Commission can impose maximum prices by preventive notice; refusal or misleading response to information notices is penalised; and reporting obligations increase transparency. Crown immunity from pecuniary penalties and prosecutions limits enforcement against the Crown itself, while the Act preserves review rights under Commonwealth administrative laws.

The Act’s architecture is expressly designed to integrate the New Tax System Price Exploitation Code with Commonwealth law and with existing WA law, producing several concrete interaction points.

Integration with the Trade Practices Act and Part VB. The Act imports the Schedule version of Part VB of the Trade Practices Act as the New Tax System Price Exploitation Code text (s 4(1)(a); Appendix). It also imports the remaining provisions of the Trade Practices Act except ss 2A, 5, 6 and 172, so far as they relate to the Schedule version (s 4(1)(b)). The regulations and guidelines under the Trade Practices Act that relate to Part VB are also imported (s 4(1)(c)-(d)). The importation is subject to modification so that references to corporations include persons who are not corporations when necessary (s 4(2)). Therefore, the Code operates in WA in close conjunction with the Trade Practices Act framework.

Application laws and the concept of application law. The Act treats an “application law” as a law of a participating jurisdiction that applies the Code text (s 3 definition). The Code in WA is therefore an application law and may be treated as one of several jurisdictional Codes that can operate together; s 11 states that a reference to the New Tax System Price Exploitation Code in any instrument is a reference to the Codes of any or all participating jurisdictions, facilitating a quasi‑national operation.

Commonwealth criminal and administrative law overlay. Part 5 applies Commonwealth laws as laws of WA in relation to Code offences and matters arising under the Code as if the Code were a Commonwealth law (ss 22-23; ss 27-28). This imports Commonwealth criminal processes and administrative law regimes, and confers functions and powers on Commonwealth officers and authorities to exercise investigative and prosecutorial functions in WA (ss 19, 24, 29). The Commonwealth administrative laws listed in s 26 explicitly include the Administrative Appeals Tribunal Act, FOI Act, Ombudsman Act and the Privacy Act; those Acts apply to Code matters in WA under s 27.

Prevalence and non‑duplication. Section 31 prevents double punishment by ensuring that if conduct is punished under the Trade Practices Act or an application law of another participating jurisdiction, the person is not liable for punishment under the WA Code for the same conduct. This statutory rule is a coordination device to avoid cumulative penalties across jurisdictions.

Interaction with Crown law. Sections 13-16 integrate the application law with Crown law. The application law binds the Crown so far as the Crown carries on a business (s 13) but excludes specified activities from "carrying on a business" (s 15), and prevents the Crown from being made liable to pecuniary penalty or prosecution by the application law (s 16). This creates a tailored intersection between the Code and Crown functions.

Interaction with taxation and GST law. The Appendix’s definitions are explicitly tax‑centric. The terms “GST”, “GST Act” and “GST implementation date” are defined (s 75AT). The concept of “regulated supply” depends on the Sales Tax (Exemptions and Classifications) Act 1992 and the GST Act; it identifies supplies that were previously sales‑taxed or that are taxable supplies under the GST Act (s 75AT). Thus the Code’s substantive test is keyed to specific tax legislative changes and the timeline of GST implementation.

Regulation‑making and modification of applied provisions. Section 6 limits automatic adoption of Commonwealth modifications to the Code text: a Commonwealth modification does not apply in WA unless adopted by an order of the Governor published in the Gazette (s 6(1)-(3)). Section 36 allows the Governor to make regulations enabling state courts to exercise jurisdiction under applied provisions and to modify applied provisions for that purpose (s 36(2)). Regulations may therefore alter the exact contours of how Commonwealth laws apply in WA.

Interpretation Acts. Section 7 makes the Commonwealth Acts Interpretation Act 1901 apply as a law of WA for interpreting the New Tax System Price Exploitation Code of this jurisdiction and instruments under it (s 7(1)). Conversely, WA’s Interpretation Act 1984 does not apply to the Code or instruments under it (s 7(3)), which affects statutory construction and interpretation approaches.

Fees and revenue allocation. Section 34(1) directs that fees, taxes, penalties and other money authorised under the application law or the New Tax System Price Exploitation Code (Taxing) Act 1999 must be paid to the Commonwealth. This reallocates revenue consequences of enforcement and fee regimes to the Commonwealth.

Practical overlap with other State or Territory laws. Section 11 contemplates references to the Code encompassing Codes of other participating jurisdictions. Section 12 treats a Code of another participating jurisdiction as the Code text applying as a law of that jurisdiction. In effect, the Act is intended to produce a nationally uniform regime by statutory coordination with participating jurisdictions.

In short, the Act forms a hybrid instrument: it imports a Commonwealth Code and associated Commonwealth procedural and administrative laws, subjects them to WA application with defined modifications and regulatory controls, and creates mechanisms to coordinate enforcement, interpretation and revenue allocation across Commonwealth and State spheres while preserving specific Crown and jurisdictional allocations.

This compilation reproduces the New Tax System Price Exploitation Code (Western Australia) Act 1999 as amended up to the Reprint dated 20 March 2009 and records several specific amendments and commencement dates. The compilation table at the end of the Act sets out the legislative history as incorporated in the reprint.

Key dates and enactments. The Act received assent on 7 December 1999 and came into operation other than ss 1 and 2 on 17 December 1999 (Compendium table). Section 6 establishes the Governor’s order mechanism for adopting future Commonwealth modifications to the Code text; the Table of Orders under s 6 in the Appendix records the New Tax System Price Exploitation Code (Western Australia) Order 2000 published in the Gazette on 3 October 2000 and effective 3 October 2000 (see Table of Orders under s 6).

Subsequent amendments included:

• Acts Amendment (Federal Courts and Tribunals) Act 2001 (No. 32 of 2001) Pt. 8, assented 21 December 2001 and commenced the same day (compilation table entry). The Schedule notes that s 26 was amended by No. 32 of 2001 s 36, updating the definition and scope of Commonwealth administrative laws (see s 26).

• Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (No. 84 of 2004) s 80 and s 82, assented 16 December 2004, with effect from 2 May 2005. The Act records in the notes that s 3 was amended by No. 84 of 2004 s 80 (the definition amendments reflected in s 3 as reprinted).

Reprints and omissions. The compilation records a reprint as at 20 March 2009 that includes the amendments listed in the table. The Act also records an omission: Part 7 (s 37) was omitted under the Reprints Act 1984 s 7(4)(e) (note in Part 6). There is also a note that a provision in this Act amending the Competition Policy Reform (Western Australia) Act 1996 has been omitted under the Reprints Act 1984 s 7(4)(e) (note 2).

Insertion into the Appendix. The Appendix sets out the Schedule version of Part VB as at 20 March 2009. It notes that the Schedule version may have been further amended since the Reprint and directs readers to Part 2 of the Schedule to the Trade Practices Act and any further orders made under s 6 of this Act for the latest text. That caveat is important for practitioners because future Commonwealth amendments to Part VB will only apply in WA if adopted under s 6 by Gazette order.

New provisions added to Part VB. The Appendix records that s 75AYA was inserted into the Schedule version of Part VB by the A New Tax System (Trade Practices Amendment) Act 2000 (C’th) s 3. This demonstrates that Commonwealth amendments have been made to the core Code text and that WA adopted them where the reprint reflects the modifications.

Regulatory adoption process retained. Section 6 preserves the need for an order of the Governor to incorporate Commonwealth modifications into WA’s application of the Code text, and the Table of Orders shows that at least one such order was made in 2000. The s 6 mechanism remains a binding procedural control on adoption of future Commonwealth changes.

Practical implication for users. For up‑to‑date practice, the Act forecloses automatic application of Commonwealth modifications. Practitioners should check the Commonwealth Part 2 Schedule to the Trade Practices Act and the Gazette orders made under s 6 to determine the current operative text in WA. The Appendix warns that the Schedule version may have been further amended since the reprint and points to the authoritative Commonwealth sources.

Overall, the amendment history shows an initial Commonwealth import and subsequent fine‑tuning, with the Act preserving a controlled mechanism for future adoption of Commonwealth modifications and recording specific amendments up to 2009.

The text supplied contains no reported judicial decisions, case names or litigation materials. The Act and its Appendix do refer to court proceedings in the abstract, for example proceedings under s 76 in relation to s 75AU and proceedings under s 80 for injunctions (s 75AW(3); s 75AV(3)(b)), but the compilation does not reproduce the penalties or judicial outcomes that might appear elsewhere in the Trade Practices Act Part VB or in judicial reporting.

Because the Act imports the remaining Trade Practices Act provisions that relate to the Schedule version (s 4(1)(b)), litigation under the WA Code will in practice be processed through the Commonwealth enforcement and court frameworks applied in WA under Part 5 (ss 21-25) unless regulations make alternative arrangements under s 36. The Act also applies Commonwealth administrative laws (ss 26-30), which means administrative reviews and tribunal appeals under Commonwealth statutes (for example, Administrative Appeals Tribunal) are available in relation to many Commission decisions.

Absent any cases in the provided text, practitioners must conduct a jurisdictional case law search for reported decisions specifically invoking the New Tax System Price Exploitation Code of Western Australia or the corresponding Commonwealth Part VB provisions. Key search targets should include:

• Decisions construing s 75AU and its “unreasonably high” standard.

• Authority on the evidentiary effect and legal weight of Commission notices under s 75AW(3) in proceedings under s 76 or s 80.

• Cases discussing the Commission’s s 75AX preventive notices that specify maximum prices, including what constitutes appropriate specification and the availability of judicial review or injunctive relief against such notices.

• Rulings on the scope of s 75AY information notices, including the proper limits on the Commission’s power to require documents and the consequences of non‑compliance.

• Jurisprudence on the application of Commonwealth administrative laws to Code matters in WA (s 27) and on procedural rights in administrative review settings.

• Any cases interpreting the Crown immunity provisions in ss 13-16 as applied to state activities.

This Act does not list any litigation history in its notes or Appendix. For authoritative doctrine and reported decisions, consult national case law databases for proceedings under the Trade Practices Act Part VB, and search for cases where the WA Code was invoked or where WA regulations under s 36 conferred jurisdiction on WA courts. Practitioners should also search for any Federal Court or state court decisions relating to s 75AU, s 75AW and s 75AX in the relevant period.

This Act contains several drafting and implementation features that create legal and practical friction points for regulated parties, counsel and compliance teams. The following are concrete operational “gotchas” grounded in the statutory text.

1. Two‑stage “unreasonably high” test. Section 75AU requires that price be unreasonably high "having regard alone to the New Tax System changes" and that the price remains unreasonably high even after taking into account supplier’s costs, supply and demand, and any other relevant matter (s 75AU(2)(b)-(c)). Practically, this structure may produce uncertainty about comparators and temporal perspective. The first limb isolates the effect of New Tax System changes; the second calls for a more holistic test. Businesses may find it difficult to prove that price increases are wholly explained by legitimate factors because the statute contemplates that both tests must be considered.

2. Evidentiary shift via Commission notices. A s 75AW notice is “prima facie evidence” in proceedings under s 76 or s 80 that the price was unreasonably high and not attributable to other matters (s 75AW(3)). That statutory evidentiary effect reduces the initial evidential burden the Commission must overcome at trial and shifts the burden to the recipient to rebut the notice. Practitioners should note the procedural consequences and the need to prepare prompt rebuttal materials.

3. Commission’s power to set price ceilings. Under s 75AX the Commission can issue preventive notices specifying maximum prices for certain supplies and circumstances (s 75AX(2)(c)). A preventive notice, if validly issued, legally limits pricing for the specified period. Businesses may be surprised by a retrospective or broad notice, and the notice mechanism creates operational risk for multi‑product sellers unless they have robust record‑keeping and rapid compliance mechanisms.

4. Monitoring and document production with penalty. The Commission’s monitoring notice power enables it to require written information signed by the person or by a competent officer for a corporation, and to require production of documents (s 75AY(2)). Non‑compliance or providing false or misleading information carries the penalty of 20 penalty units (s 75AY(4)). This is a specific, enforceable burden; companies must have document production and legal privilege strategies ready.

5. Extraterritorial exposure. Section 9 permits the Code to extend to conduct occurring outside WA, subject to s 8. Suppliers outside WA who make supplies into, or otherwise are connected with, WA can be subject to the Code. Businesses operating nationally or internationally must assess their WA‑connected activities.

6. Crown carve‑outs and authorities. The Crown in right of WA is not liable to pecuniary penalty or prosecution under the application law (s 16). However, Crown authorities are not protected (s 16(3)), and s 13 binds the Crown in right of the jurisdiction when it carries on a business. Entities contracting with government or competing with government business should map whether a counterparty is an immune Crown body or an unprotected Crown authority.

7. Non‑automatic adoption of Commonwealth amendments. Commonwealth modifications to the Code do not apply in WA unless adopted by Governor’s order and published in the Gazette (s 6(1)). Practically, that means the WA Code may lag Commonwealth changes unless orders are made; practitioners must verify which version applies in WA by checking Gazette orders and the Commonwealth Schedule.

8. Revenue and fee allocation to the Commonwealth. Section 34 directs that fees, taxes, penalties and other money authorised under the application law or the New Tax System Price Exploitation Code (Taxing) Act 1999 be paid to the Commonwealth (s 34(1)). A local business facing an administrative penalty under the WA Code will have to pay amounts to the Commonwealth rather than the State.

9. Complexity of multiple jurisdictions. Section 11 contemplates that references to the Code may mean the Codes of any or all participating jurisdictions. Where multiple jurisdictions participate, coordination rules such as s 31 (no double punishment) help, but parallel investigations by other jurisdictions or the Commonwealth may complicate defence strategies and require coordination.

10. Administrative law overlay and forum‑shopping risks. The Act applies Commonwealth administrative laws (s 27), so affected persons may have access to Commonwealth tribunal review and Ombudsman remedies. However, s 36 permits regulations to allow state courts to exercise jurisdiction in specific circumstances, which may change forum availability. Parties should map likely forums and review rights early.

11. Penalty quantum not fully reproduced. The Appendix sets out a specific penalty for non‑compliance with information notices (20 penalty units under s 75AY(4)), but many penalty and enforcement details originate in the Trade Practices Act provisions that are imported under s 4(1)(b) but not fully reproduced in the Act text provided. Practitioners must consult the corresponding Trade Practices Act provisions and any adopted modifications to determine the full penalty regime.

12. Prima facie notices and reputational risk. The Commission can publish or publicise s 75AX notices and s 75AW notices or their particulars (s 75AX(4); s 75AW(4) requires notice of variation or revocation). Publication can generate reputational and market effects even before litigation is resolved.

Each of these features creates concrete compliance, evidentiary and operational risks. Parties should adopt record‑keeping, pre‑emptive pricing justification, immediate response processes to Commission notices, and legal review of any Gazette orders to determine the current operative Code text in WA.

Compliance requires a combination of legal review, pricing governance, record‑keeping, and administrative responsiveness. Below are concrete steps and compliance controls tied to the statutory obligations.

1. Identify whether supplies are “regulated supplies”. Review your product catalogue against the definition in s 75AT. Determine whether goods sold during the New Tax System transition period are goods of a kind that were specified in items 4 to 14 of Schedule 5 to the Sales Tax (Exemptions and Classifications) Act 1992, or whether you are a person registered or required to be registered under the GST Act making taxable supplies on or after the GST implementation date. If supplies are regulated supplies, regulatory constraints in the Code apply.

2. Timeframe mapping. Establish the relevant transition dates. The New Tax System transition period starts on the later of 1 July 1999 and the commencement of the Trade Practices amendment and ends two years after the GST implementation date (s 75AT). Map which sales fall within that period and segregate records accordingly.

3. Pricing policy and contemporaneous justification. Because s 75AU requires that price increases not be “unreasonably high” having regard to New Tax System changes and not be unreasonably high after accounting for costs and market conditions (s 75AU(2)), suppliers should document contemporaneous pricing decisions. Maintain a written pricing rationale for each regulated supply showing:

• the baseline price prior to the tax change;

• the explicit quantification of how New Tax System changes affected costs or price structure;

• other cost drivers (input cost changes, freight, labour);

• supply and demand considerations; and

• any contractual or regulatory constraints.

This paper trail is critical to rebut a s 75AW prima facie notice.

4. Record‑keeping and audit trail. Implement an audit trail that links sales invoices, purchase receipts, cost models, margin calculations, and internal communications for the transition period. The Commission’s s 75AY(2) power permits document production requests; non‑compliance or false statements are penalised under s 75AY(4) with 20 penalty units. Preserve originals and ensure a competent officer can sign required attestations.

5. Avoid misleading representations. Corporations must not, in trade or commerce, for the purpose of price exploitation, misrepresent the effect of New Tax System changes in relation to supply or promotion (s 75AYA). Review marketing and promotional materials for any statements about GST, sales tax cessation or likely price impacts. Ensure customer communications accurately state the factual basis for any price changes and avoid implied or express false claims.

6. Responding to Commission notices. If you receive a s 75AW notice alleging contravention, the notice is prima facie evidence in later proceedings (s 75AW(3)). Take immediate steps:

• seek legal advice promptly;

• prepare documentary rebuttal to address the Commission’s stated opinion and show that prices were justified by costs or other matters under s 75AU(2)(c);

• if appropriate, apply to the Commission to vary or revoke the notice (s 75AW(4));

• preserve privilege and ensure that information provided to the Commission is accurate and signed by a competent officer, as required by s 75AY(2).

7. Monitoring preventive notices and price ceilings. Monitor Commission publications and the Gazette for any s 75AX preventive notices that specify maximum prices (s 75AX(2)(c)-(4)). If a preventive notice is issued, immediately update pricing systems to ensure compliance with the maximum price for the notice period; consider supply chain and contractual implications.

8. Information compliance process. Designate a compliance lead or legal counsel to handle s 75AY information notices. Ensure the organisation can produce required information in writing and produce documents promptly. Train senior officers on the duty to sign information and the perils of intentional or reckless misleading responses (s 75AY(4)).

9. Administrative review preparedness. If the Commission takes a determinative action, be ready to use Commonwealth administrative law remedies. Since Commonwealth administrative laws apply (s 27), identify avenues for tribunal review under the Administrative Appeals Tribunal Act and for Ombudsman or FOI complaints where relevant. Document decision‑making processes to support merits review if necessary.

10. Review of contracts and pricing clauses. Examine standard contracts, supply agreements and price adjustment clauses for exposure during the transition period. Consider whether contractual price terms might contravene a preventive notice or be challenged under s 75AU for being unreasonably high. Where possible, include objective cost‑based adjustment mechanisms and transparent notice provisions to customers.

11. External counsel and regulatory engagement. For firms with significant exposure, seek external legal advice specialising in competition, consumer law and tax transition issues. Consider engaging with the Commission proactively if price changes are planned; the Code contemplates the Commission’s role in monitoring and prevention and allows for communication, variation and revocation of notices (ss 75AW(4), 75AX(3)).

12. Check the operative Code text in WA. Because Commonwealth modifications do not apply in WA unless adopted by Governor’s order (s 6), verify which Commonwealth amendments have been adopted in WA by consulting the WA Gazette orders under s 6 and the current Part VB in the Commonwealth Schedule. The Appendix warns that the Schedule version may have been further amended since the reprint; practitioners should confirm the current operative text.

13. Map Crown interactions. If your business transacts with the Crown or Crown authorities, map whether counterparties are protected by Crown immunity (s 16) or are authorities unprotected by that immunity. That will affect enforcement risk and complaint pathways.

14. Ensure reporting and public disclosure readiness. The Commission reports quarterly to the Minister and the Minister makes those reports public (s 75AZ(1), (4)). Firms involved in Commission notices should be prepared for the public effect of reporting and consider communications strategies.

Implementing these steps will not immunise a business from enforcement but will materially reduce legal and operational risk by producing contemporaneous evidence, ensuring cooperation with Commission powers, avoiding misleading communications and preparing for legal challenge.