Annotated competition and consumer legislation [2017 edition.] 9780409346190, 0409346195

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LEXISNEXIS ANNOTATED ACTS

ANNOTATED COMPETITION AND CONSUMER LEGISLATION

Current as at 1 January 2017 unless otherwise specified

LEXISNEXIS ANNOTATED ACTS

ANNOTATED COMPETITION AND CONSUMER LEGISLATION

RAY STEINWALL B Ec, LLB (Macq), LLM (Syd) Solicitor of the High Court of Australia and the Supreme Court of New South Wales General Counsel, Novartis Group (Australia and New Zealand) Member, Australian Competition Tribunal Adjunct Associate Professor, Faculty of Law, University of New South Wales

LexisNexis Butterworths Australia 2017

AUSTRALIA

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ISBN: 9780001173811 EISBN: 9780409346190 © 2017 Reed International Books Australia Pty Limited trading as LexisNexis This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Publisher’s Note Legislation The publisher, authors, contributors and endorsers of this publication each excludes liability for loss suffered by any person resulting in any way from the use of, or reliance on, this publication. © LexisNexis. The legislation reproduced in this work does not purport to be an official or authorised version.

Features of this Publication Introduction This volume of LexisNexis Annotated Acts provides practitioners and students with a guide to trade practices legislation. Reproduced are the Competition and Consumer Act 2010, annotated and explained in a comprehensive and detailed commentary; the Competition and Consumer Regulations 2010, its Schedules and forms, as well as relevant inter-governmental agreements and case management practice notes. In addition, this book contains the Australian Competition and Consumer Commission’s (ACCC) Merger Guidelines and Merger Review Process Guidelines. The Memorandum of Understanding between the Commonwealth Director of Public Prosecutions and the ACCC regarding Serious Cartel Conduct is also reproduced, along with the ACCC Immunity and Cooperation Policy for Cartel Conduct. The related legislation section includes the Competition and Consumer (Industry Codes — Food and Grocery) Regulations 2015; the Competition and Consumer (Industry Codes — Franchising) Regulations 2014; the Trade Practices (Industry Codes — Unit Pricing) Regulations 2009; Competition and Consumer (Industry Codes — Oilcode) Regulations 2006, and the Trade Practices (Horticulture Code of Conduct) Regulations 2006.

Legislation This edition has the legislation shaded in grey boxes and includes grey shaded tabs on the side of the legislation. This has been added to facilitate quick and easy access to information. The legislation reflects the law as amended to 1 January 2017.

Paragraph numbers This book may contain cross-references to other areas of the looseleaf service which have not been extracted. When this occurs, reference should be made to Competition and Consumer Act Annotated.

Index The index locates references to given topics in all the legislation published.

Running heads Running heads at the top of each page indicate the section and paragraph number of the legislation as set out on each page as follows: Left page: s 45E ANNOTATED COMPETITION AND CONSUMER [10,745] LEGISLATION Right page: [10,745] CCA — PT IV — RESTRICTIVE TRADE PRACTICES s 45E

Commentary The Act has been annotated by Ray Steinwall, with contributions from Lucienne Layton (Pts I, IV and VII−XII) in earlier editions, to provide an overview of the legislation and a clear analysis of the Act’s more complex provisions and important case law. Where relevant, reference is also made to equivalent state legislation.

General commentary on a section of the Act General commentary on a given section of the Act is located at the end of the section. This provides an overview of the section and links the topic under discussion to related areas. It also describes the background and purpose of the legislation, outlining the structure and general operation of the section.

Detailed commentary on a subsection of the Act Where relevant, detailed commentary on a subsection follows the general commentary.

How to find commentary on a particular topic Information within the commentary can be researched according to the topic, case law or provision of the legislation by using the:

Table of Contents

This table appears at page v.

Table of Cases This table appears at page xxi.

Index The index appears at page 2381.

Tables of Provisions Located before the Acts and Regulations, the tables show the division of the legislation into parts, divisions and subdivisions, and include the title of every section or regulation. This is a convenient starting point if you need an overview of the structure of the legislation to find commentary on a particular topic.

Legislative histories To find out the full name and date of assent and commencement of an amending Act, or the number and date of gazettal and commencement of an amending Regulation, turn to the relevant Table of Amendments in front of the Act or Regulations. The Table of Amendments gives a list of amendments to the legislation.

Historical notes Where a section or subsection, regulation or schedule has been amended, an historical note compiled by the editor has been inserted in square brackets, in small typeface, immediately beneath the provision. This note details the history of the provision as amended and the commencement date of the particular statute. The notes may also be read with the legislative histories of the Acts (see below). Examples [Div 3 insrt Act 55 of 2001 s 3 and Sch 2 item 13, opn 15 July 2001]

Division 3 was inserted into the principal Act by Schedule 2 item 13 of Act 55 of 2001, the insertion taking effect on 15 July 2001. [def subst Act 55 of 2001 s 3 and Sch 2 item 12, opn 15 July 2001]

The definition was completely replaced by the new definition inserted by

Schedule 2 item 12 of Act 55 of 2001, the substitution taking effect on 15 July 2001.

Butterworths Case Numbers and Media Neutral Citations Citations in the style BC200002707 are Butterworths Case Numbers. These numbers are unique to each case and are used for identification and cross-referencing purposes within LexisNexis products and publications. Citations in the form [2008] FCA 1765 are Media Neutral Citations. These citations comprise the year of the decision, the court which handed down the decision, and the case number. A bracketed number which follows a Media Neutral Citation (for example, “at [14]”) is a reference to a specific paragraph in the judgment.

Overview — Developments in Competition and Consumer Law in 2016/2017 There is rarely a quiet year for the Competition and Consumer law – 2016 was no exception and 2017 is likely to be just as active. In September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the 2015 Harper Committee recommendations. A hotly contested issue is the proposal to expand s 46 of the Bill to include an ‘effects test’. That decision followed extensive consultation, which did not yield a consensus. Perhaps not wishing to distract attention from the other Harper reforms, the s 46 proposals were carved out. On 1 December 2016, the Government introduced the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016, dealing exclusively with the proposed amendments to s 46 and consequential amendments to Part XIB. The competition reforms, including to s 46, will undoubtedly be debated at some stage during the 2017 Parliamentary year. Significant competition cases were also delivered in 2016, including the High Court’s decision in Australian Competition and Consumer Commission v Flight Centre Travel Group Limited [2016] HCA 49, which found that an agent can be in competition with its principal. The Australian Competition Tribunal’s decision in Application by Glencore Coal Pty Ltd [2016] ACompT 6 explored the meaning of ‘access’ and ‘increased access’ in Part IIIA. The appeal in that decision is likely to be delivered in 2017 as most likely will the appeal in the Pfizer intellectual property market abuse case. The consumer law area has been equally active. The first review of the Australian Consumer Law (ACL) since its commencement in 2011 is well advanced. Consumer Affairs Australia and New Zealand released an Interim report of its review in October 2016. A final report is expected in March

2017. The unfair contracts provisions was extended to business contracts in November 2016. It will be interesting to watch how those provisions are applied in 2017. Having been a member of the Expert Panel review of the unconscionable conduct provisions in 2010, it is satisfying to finally see a number of very important cases come before the courts. A positive sign is that the courts are slowly starting to recognize that the interpretative principles in s 21 of the ACL are intended to encourage a departure from the common law. The decision in Coles and Woolworths are important precedents. At its December 2016 meeting, the Council of Australian Governments signed the Intergovernmental Agreement on Competition and Productivity — Enhancing Reforms. The Agreement commits Australian governments to review regulations that restrict competition, competitive neutrality principles and infrastructure reforms. This will be an important area to watch during 2017 as it has features similar to those of the significant National Competition Policy Reforms of the mid-1990s. There are considerable reform proposals impacting the Australian Energy Market that will be released in 2017 including the Limited Merits Review and Energy Security. Although beyond the scope of this work, I have continued to include cases decided under the National Electricity Law and National Gas Law. In response to reader feedback, I have also continued to provide extensive history and background to the development of each Part of the Act. However, in this 2017 edition I have taken the opportunity to streamline some of that content, removing older historical material. 2017 will certainly be one of the busiest in the history of the Competition and Consumer law and one to watch with interest. I extend my thanks to the editorial team at LexisNexis for the preparation of this and related works in various formats. The law is current to 1 January 2017. Ray Steinwall January 2017

Postscript Parliament passed the Competition and Consumer Amendment (Country of Origin) Bill 2017, just as this work was going to print. Broadly, the Bill amends s 255 (and other provisions) of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act) to clarify the tests applied to justify a “Made in” country of origin claim by amending the meaning of “substantial transformation” and removing the “50 per cent production cost” test.

Table of Cases References are to paragraph numbers. .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521; 61 IPR 81 …. [14,590.80], [14,590.85], [14,700.15] ‘Q’ Promotions Pty Ltd v Queensland Bloodstock Breeders & Sales Pty Ltd BC9304929 …. [14,590.100], [14,590.120] 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299; 10 IPR 289; (1988) ASC 55-632; (1988) ATPR 40-833 …. [14,590.305], [14,645.100] 21st Century Promotions Australia Pty Ltd v Telstra Corp [2001] SASC 299; BC200105157 …. [10,760.65] 260 Oxford Street Pty Ltd v Premetis [2006] NSWCA 96; BC200603503 …. [14,590.140], [14,590.320] 3AW Southern Cross Radio Pty Ltd v Inner North East Community Radio Inc (1994) ATPR 41-313 …. [11,625.45] 3Meg.Com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASCA 128; BC201204643 …. [14,590.115], [14,590.320] 7-Eleven Stores Pty Ltd, Re (1994) ATPR 41-357 …. [11,855.20A], [11,855.21], [11,855.22] — (1998) ATPR 41-666 …. [12,130.25] A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd (2006) 14 ANZ Ins Cas 61-709 …. [14,590.30] A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047; BC200705434 …. [10,740.65], [10,740DC.5] A.B Pty Ltd v Australian Crime Commission [2009] FCA 119; BC200900744 …. [14,180.20] AA Shi Pty Ltd v Avbar Pty Ltd (No 5) [2010] FCA 971; BC201006494 …. [10,905.30] AAP Telecommunications Pty Ltd v Telstra Corp Ltd BC9703120 …. [11,625.40] AAPT Limited, Application by [2009] ACompT 5; BC200908313 ….

[14,177AT.10] Abigroup v Peninsula (2001) ATPR (Digest) 46-213 …. [11,720.7C], [14,590.160], [14,600.35] Abigroup Contractors Pty Ltd v Sydney Catchment Authority (2004) 208 ALR 630 …. [11,655.20] — v Sydney Catchment Authority (No 3) [2006] NSWCA 282; BC200608430 …. [11,655.20], [11,655.25] Aboody v Ryan (2012) 17 BPR 32,359 …. [14,605.20] Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) (2008) 252 ALR 136; (2008) 178 IR 168 …. [10,025.100] Abrahams v Biggs [2011] FCA 1475; BC201109853 …. [10,160.18], [11,720.23] Abram v Bank of New Zealand (1996) ATPR 41-470 …. [11,655.20] Abundant Earth Pty Ltd v R & C Products Pty Ltd (1985) 7 FCR 233; 59 ALR 211; 4 IPR 387; (1985) ATPR 40-532 …. [14,590.225] Acardi v Colonial Mutual Life Assurance Society Ltd (1984) ATPR 40-473 …. [11,655.70] Accor Australia & New Zealand Hospitality Pty Limited v Liv Pty Limited (2015) 112 IPR 494 …. [14,590.20] Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470; 114 ALR 355; (1993) ATPR 41-269 …. [11,655.25], [11,720.6], [14,590.10], [14,590.110], [14,590.190], [14,590.60] Accredited Aged Care Facilities Pty Ltd v Banyan Tree (Aust) Pty Ltd [2002] VSC 261; BC200203896 …. [11,585.70] Ackers v Austcorp International Ltd [2009] FCA 432; BC200903668 …. [11,675.20], [14,590.310] ACN 055 378 240 Pty Ltd (formerly Marine & Civil Construction Co Pty Ltd) v SGS Australia Pty Ltd [2013] FCAFC 46; BC201302477 …. [14,590.90] Acohs Pty Ltd v R Bashford Consulting Pty Ltd (1997) ATPR (Digest) 46176 …. [11,655.35] Actew AGL Distribution, Re Application by [2010] ACompT 4; BC201007103 …. [10,605.15] ActewAGL Distribution v The Australian Energy Regulator [2011] FCA 639; BC201103903 …. [10,605.10]

ActewAGL Distribution, Application by [2014] ACompT 2 …. [10,605.10] ActewAGL Distribution, Re [2015] ACompT 3 …. [10,605.10] ActewAGL Distribution, Re Application by [2016] ACompT 4 …. [10,605.10] Adams v Classic Autocraft (Aust) Pty Ltd (1985) ATPR 40-612 …. [14,590.165] — v ETA Foods Ltd (1987) 19 FCR 93; 78 ALR 611; (1987) ATPR 40-831 …. [11,680.15], [11,680.5] Adamson v New South Wales Rugby League Ltd (1991) 27 FCR 53; 100 ALR 479; (1991) ATPR 41-084 …. [10,025.85] — v West Australian National Football League (1978) ATPR 40-078 …. [10,025.85] — v West Perth Football Club (1979) 27 ALR 475; 39 FLR 199 …. [10,700.95] ADC Centres Pty Ltd v Kilstream Pty Ltd (1979) 25 ALR 549; (1979) ATPR 40-119 …. [10,720.45], [14,590.315] Addenbrooke Pty Ltd v Duncan (No 6) (2015) 107 ACSR 600 …. [14,590.30] Adelaide Brighton Cement Ltd v Wong [2008] FCA 496; BC200802594 …. [10,830.5B] Adelaide Brighton Ltd Pursuant to Section 101(1B) of the Trade Practices Act 1974, Re Application by (1999) ATPR 41-690 …. [12,130.23] Adelaide Petroleum NL v Poseidon Ltd (1988) ATPR 40-901 …. [14,520.50] Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1995) AIPC 91-129; (1995) ATPR (Digest) 46-144 …. [11,655.25], [14,590.160] Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1; 77 ALR 615; 10 IPR 97; (1987) ATPR 40-816 …. [14,595.10], [14,595.15], [14,595.35] Aghajanian v Stanley Thompson Valuers Pty Ltd [1999] NSWSC 1154; BC9909073 …. [14,590.165] AGL Cooper Basin Natural Gas Supply Arrangements, Re (1997) ATPR 41593 …. [10,070.10], [10,070.40], [11,855.21], [12,130.25] Agro Holdings Ltd v Flexi-Coil (Aust) Pty Ltd [1999] FCA 1658; BC9909055 …. [11,625.35], [11,625.45]

Ah Toy Pty Ltd v Theiss Toyota Pty Ltd (1980) 30 ALR 271 …. [10,700.95] Airberg Pty Ltd v Cut Price Deli Pty Ltd BC9803548 …. [14,590.320] Aircraft Systems International v Airservices Australia (1997) ATPR (Digest) 46-178 …. [14,590.160] AJ Thompson Pty Ltd v KLK Manufacturing Pty Ltd (1986) ASC 55-505; (1986) ATPR 40-718 …. [14,590.320] Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353; 143 ALR 457; (1997) ATPR 41-560 …. [11,720.27], [11,720.32], [11,720.6], [11,720.7C] Al Hayat Publishing Co Ltd v Sokarno (1996) 34 IPR 214 …. [11,625.35], [11,625.45] ALDI Stores (A Limited Partnership) v EFTPOS Payments Australia Ltd [2011] FCA 1114; BC201107539 …. [14,590.85] Alinta Asset Management Pty Ltd v Essential Services Commission [2008] VSCA 273; BC200811361 …. [10,605.15], [10,650.5] — v Essential Services Commission (No 2) [2007] VSC 210; BC200706769 …. [10,605.15] Alinta Sales Pty Ltd, Re Application by (No 2) [2012] ACompT 13; BC201204199 …. [10,605.15] All Fasteners (WA) v Caple [2007] FCA 12521252; BC200706926 …. [11,655.50] Alliance Agreement, Re; Application by PK Wakeman (1999) ATPR 41-675 …. [12,130.20], [12,130.25], [12,175.5] Allied Mills Industries Pty Ltd v Trade Practices Commission (No 1) (1981) 34 ALR 105; 55 FLR 125 …. [11,625.45], [14,180.15] Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; (1983) 44 ALR 607 …. [11,585.16] Allied Westralian Finance v Westpac Pty Ltd (1992) ATPR (Digest) 46-082 …. [11,720.7D] Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd (2009) 178 FCR 57 …. [10,905.10], [14,605.20] Allstate Life Insurance Co v ANZ Banking Group Ltd (1994 unreported) …. [11,655.73] — v — (1995 unreported) …. [11,720.20] — v ANZ Banking Group Ltd (No 1) (1996) 64 FCR 1; 142 ALR 412 …. [11,695.10]

Ally v Sonar Pty Ltd [2008] FMCA 682; BC200804606 …. [14,655.15] Alpine Beef Pty Ltd v Trycill Pty Ltd [2010] FCA 136; BC201001117 …. [14,520.15], [14,520.35] Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd [2001] FCA 1876; BC200108272 …. [14,520.15], [14,590.155], [14,590.160] Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85; BC200711991 …. [14,590.315] — v Warwick Entertainment Centre Pty Ltd (2003) 11 Tas R 242; (2003) Aust Contract R 90-174 …. [14,590.225] Altendorf Australia Pty Ltd v Parkanson Pty Ltd BC9507527 …. [14,590.160] Altram Pty Ltd v BP Australia Ltd BC9405661 …. [14,590.320] Ambergate Ltd v CMA Corp Ltd (Admin Apptd) [2016] FCA 94; BC201600725 …. [14,590.30] American Cyanamid v Ethicon Ltd [1975] AC 392 …. [11,625.35] AMI Australia Holdings Pty Ltd v Bade Medical Institute (Aust) Pty Ltd (No 2) (2009) 262 ALR 458; 84 IPR 19 …. [11,585.20], [14,590.145], [14,590.225], [14,590.260], [14,590.265], [14,645.125] AMP Financial Planning Pty Ltd v CGU Insurance Ltd (2004) 139 FCR 223; 13 ANZ Ins Cas 61-624 …. [14,600.35] Anakin Pty Ltd v Chatswood BBQ King Pty Ltd (2008) 250 ALR 620; 79 IPR 44 …. [14,590.250] Anavam Pty Ltd v Century Yuasa Batteries Pty Ltd (1991) ATPR 41-083 …. [11,710.5] Anbu v Vulcanite Pty Ltd [2015] FCA 283; BC201502114 …. [14,180.77] Andrews v Bell Sports Australia Pty Ltd [2006] QDC 249 …. [10,155.8] Anema E Core Pty Ltd v Aromas Pty Ltd [1999] FCA 30; BC9905746 …. [11,720.6], [11,720.7C], [14,590.315] Angas Securities Ltd v Valcorp Australia Pty Ltd (2011) 277 ALR 538 …. [11,655.25] Anheuser-Busch Inc v Budejovicky Budvar Narodni Podnik (2002) 56 IPR 182; (2002) AIPC 91-789 …. [14,590.85] ANL Container Line Pty Ltd v Maritime Union of Australia (2000) ATPR 41-769 …. [10,740.65] Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 25 ALR

91; 40 FLR 165; 5 TPC 111; (1979) ATPR 40-116 …. [14,590.85], [14,645.75] Antoniou v Karedis Enterprises Pty Ltd (1995) ATPR 41-400 …. [11,655.22], [11,655.70] Anya Holdings Pty Ltd v Idohage Pty Ltd (2007) ATPR 42-147 …. [11,655.20], [14,590.320] ANZ Banking Group Ltd v Tiricovski [2012] NSWSC 1304; BC201208312 …. [14,600.35] — v Turnbull & Partners Ltd (1991) 106 ALR 115 …. [11,720.20] APA GasNet Australia (Operations) Pty Ltd, Re Application by [2013] ACompT 4 …. [10,605.15] APA GasNet Australia (Operations) Pty Ltd, Re Application by (No 2) [2013] ACompT 8 …. [10,605.15] Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474; 30 IPR 337; (1994) ATPR 41-353 …. [14,590.250], [14,590.270] Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452; (2005) ATPR 42-078 …. [10,690ZZRD.50], [10,690ZZRD.55], [10,690ZZRD.65], [10,700.30] APF Properties Pty Ltd v Kestrel Holdings Pty Ltd (No 2) [2007] FCA 1561; BC200711523 …. [11,720.20], [14,090B.5] APIR Systems Ltd v Donald Financial Enterprises Pty Ltd [2009] FCAFC 45; BC200902548 …. [11,655.25] Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2008) 77 IPR 1; (2008) ATPR 42-235 …. [14,590.120], [14,590.330], [14,590.80] Apple Computer Inc v Computer Edge Pty Ltd (1983) 50 ALR 581; (1983) 1 IPR 353; (1983) AIPC 90-121; (1984) ASC 55-289; (1983) ATPR 40-421 …. [14,590.145], [14,755.10] Application for Authorisation of Acquisition of Macquarie Generation by AGL Energy Ltd [2014] ACompT 1 …. [11,730.17], [11,913AT.5], [11,913AZ.5], [11,913AZI.5], [11,913AZH.5] Application of Campbell, Re; Gebo Investments (Labuan) Ltd v Signatory Investments Pty Ltd (2005) 190 FLR 209; 54 ACSR 111 …. [10,155.8] Applications by Public Interest Advocacy Centre Ltd and Endeavour Energy [2016] ACompT 2 …. [10,605.10] Applications by Public Interest Advocacy Service Ltd and Ausgrid

Distribution [2016] ACompT 1 …. [10,605.10] Applied Business Technology Pty Ltd v Grandmaster Computers Pty Ltd (1999) 161 ALR 31; 44 IPR 131 …. [14,590.250] APT Allgas Energy Pty Ltd, Application by [2012] ACompT 5; BC201200044 …. [10,605.15] Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 5) [2012] FCA 908; BC201206581 …. [14,645.70] Aravco Ltd v Qantas Airways Ltd (1995) 132 ALR 419; (1995) ATPR 41437 …. [14,820.15] Aravco: Qantas Airways Ltd v Aravco Ltd (1996) 185 CLR 43; 136 ALR 510; (1996) ATPR 41-486 …. [14,820.15] Arbest Pty Ltd v State Bank of New South Wales Ltd (1996) ATPR 41-481 …. [11,655.25], [14,590.160], [14,590.175] Archer Capital 4A Ltd as Trustee for Archer Capital Trust 4A v Sage Group PLC (2015) 108 ACSR 218 …. [14,590.30] Arcric Investments Pty Ltd v Ductline Pty Ltd (1992) ATPR 41-180 …. [14,590.100], [14,590.120], [14,590.250] Argy v Blunts (1990) 26 FCR 112; 94 ALR 719; (1990) ATPR 41-015 …. [10,025.95], [11,655.20], [11,655.22], [11,675.25] Aristotite v Gladstone Park Shopping Centre Pty Ltd (1983) 71 FLR 276; (1983) ATPR 40-370 …. [11,655.25] — v — (1984) 6 FCR 496; 55 ALR 387; (1984) ATPR 40-458 …. [14,590.315] Arktos Pty Ltd v Idyllic Nominees Pty Ltd [2003] FCA 329; BC200301683 …. [14,590.320] — v — [2004] FCAFC 119; BC200402620 …. [11,675.23] Armacel Pty Ltd v Smurfit Stone Container Corp [2008] FCA 592; BC200803465 …. [10,155.9] Arms v Houghton [2006] FCAFC 46; BC200601647 …. [11,675.23] — v WSA Online Ltd [2003] FCA 835; BC200304372 …. [11,585.60] Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; 97 ALR 555; (1990) ATPR 41-061 …. [10,070.10], [10,760.50], [14,590.220] — v Trade Practices Commission (No 1) (1989) 21 FCR 297; 87 ALR 73 …. [14,200.20] Arturi v Zupps Motors Pty Ltd (1980) 33 ALR 243; 49 FLR 283; (1980) ATPR 40-189 …. [11,655.10], [11,695.20], [14,770.25]

Ascot Four Pty Ltd v Australian Competition and Consumer Commission (2009) 176 FCR 106; 255 ALR 441 …. [15,265.15] Asea Brown Boveri Pty Ltd v Burns Philp Trustee Company Ltd BC9002518 …. [14,590.160] Ashmere Cove Pty Ltd v Beekink [2009] FCA 564; BC200904879 …. [14,590.30] Asia Pacific Transports Pty Ltd, Re (2003) ATPR 41-920 …. [10,650K.10] Assafiri v Shell Co of Australia Ltd [2010] NSWSC 1058; BC201007043 …. [14,590.310] Astram Financial Services Pty Ltd v Bank of Queensland Ltd [2010] FCA 1010; BC201006750 …. [10,905.10], [14,520.35], [14,590.30], [14,605.20] Astrazeneca Ltd v Commerce Commission [2009] NZSC 92; [2010] 1 NZLR 297 …. [14,180.10] AstraZeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd (2006) ASAL 55155; (2006) ATPR 42-106 …. [14,590.73], [14,590.100], [14,590.120], [14,590.285] — v — [2005] FCA 1645; BC200509738 …. [14,590.85] ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460; 97 ALR 513; 19 IPR 323; (1991) ATPR 41-069 …. [10,025.60], [10,065.20], [10,065.30], [10,065.45], [10,095.10], [10,700.35], [10,700.40], [10,760.65], [10,760.76], [11,720.7D], [15,200.35] Atco Gas Australia Pty Ltd, Re [2015] ACompT 7 …. [10,605.15] ATCO Gas Australia Pty Ltd, Re Application by [2016] ACompT 10; BC201605951 …. [10,605.15] Atkinson v Hastings Deering (Qld) Pty Ltd (1985) 8 FCR 481; 71 ALR 93; (1985) ASC 55-439; (1985) ATPR 40-625 …. [10,055.40], [14,590.290] Aughton v Wilkie [2010] NSWSC 1462; BC201010037 …. [14,590.310] Aura Enterprises Pty Ltd v Frontline Retail Pty Ltd (2006) 202 FLR 435; (2007) ATPR 42-130 …. [10,905.10], [10,905.7] Ausdoc Office Pty Ltd v Complete Office Supplies Pty Ltd (1996) 136 ALR 659; 34 IPR 151 …. [11,625.35] Ausfield Pty Ltd v Leyland Motor Corp Australia Ltd (1977) 14 ALR 457; 30 FLR 477; (1977) ATPR 40-025 …. [10.830.5A] Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd

(2008) 251 ALR 166 …. [10,070.30], [10,070.50], [10,690ZZRD.65] — v — [2010] FCA 521; BC201003537 …. [11,740.5] Aussie Airlines Pty Ltd v Australian Airlines Ltd (No 2) (1996) 67 FCR 451; (1996) ATPR 41-512 …. [14,590.120] Aussie Home Security Pty Ltd v Sales Systems Australia Pty Ltd [1999] FCA 1458; BC9906915 …. [14,520.55] Austereo Ltd v Trade Practices Commission (1993) 115 ALR 14 …. [10,820.80] Austotel Management Pty Ltd v Jamieson (1996) ATPR 41-454 …. [11,720.20] Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669; BC200805237 …. [10,025.20], [10,025.95] Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318; 104 ALR 199 …. [10,740.30], [10,740.40], [10,740.65] Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; 66 ALR 577; (1986) ATPR 40-715 …. [11,605.24], [11,625.85] Australasian Performing Right Association Ltd v Ceridale Pty Ltd (1990) 97 ALR 497; 19 IPR 1; (1991) ATPR 41-074 …. [10,760.55], [10,760.76] Australasian Performing Rights Assn, Re Applications by (1999) ATPR 41701 …. [11,855.18], [11,855.21], [12,130.25] Australia and New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149; (2006) ATPR 42-089 …. [14,600.35] Australia Meat Holdings Pty Ltd v Trade Practices Commission (1989) ATPR 40-932 …. [10,820.20], [11,650.10], [11,650.5] Australian Agricultural Co Ltd v AMP Life Ltd [2003] FCA 1038; BC200305672 …. [11,625.35], [11,625.45] Australian and New Zealand Banking Group Ltd v Aldrick Family Co Pty Ltd [2010] NSWSC 1000; BC201006696 …. [14,605.55] Australian Association of Pathology Practices Inc, Re [2004] ACompT 4 …. [10,785.65], [11,855.20], [11,855.21], [11,855.22], [11,855.23] Australian Automotive Repairers’ Association (Political Action Committee) v Insurance Australia Ltd Inc (in liq) (2006) ATPR 42-111 …. [10,785.65] Australian Automotive Repairers’ Association (Political Action Committee)

Inc v Insurance Australia Ltd (No 6) [2004] FCA 700; BC200403169 …. [10,785.65] Australian Beauty Trade Suppliers Ltd v Conference & Exhibition Organisers Pty Ltd (1991) 29 FCR 68; 99 ALR 474; (1991) ATPR 41107 …. [10,025.100] Australian Builders Labourers Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 42 FCR 452; 114 ALR 551; (1993) ATPR 41-245 …. [10,740.30], [10,740.40], [10,740.65] Australian Capital Territory v Munday (2000) 99 FCR 72; 173 ALR 1; (2000) ATPR 41-771 …. [10,150.5] Australian Cargo Terminal Operations Pty Ltd, Re (1997) ATPR (NCC) 70000 …. [10,650G.10] Australian Coarse Grain Pool v Barley Marketing Board of Queensland (No 1) (1982) 46 ALR 398; 57 ALJR 425 …. [11,625.35], [11,625.40] Australian Communications and Media Authority v Mobilegate Limited a Company Incorporated in Hong Kong (No 9) [2010] FCA 1383; BC201009337 …. [11,590.20] — v Mobilegate Ltd (2009) 256 ALR 85 …. [11,625.63] — v WE.NET.AU Pty Ltd [2008] FCA 1530; BC200808981 …. [11,590.27] Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission (2005) 146 FCR 413; (2005) ASAL 55-148 …. [14,725.20], [14,725.25], [14,725.30] Australian Competition & Consumer Commission v 1Cellnet LLC [2004] FCA 1210; BC200406042 …. [14,725.15] — v Bio Enviro Plan Pty Ltd [2003] FCA 232; BC200301116 …. [11,585.15], [14,645.170], [14,685.30], [14,725.15], [14,745.30] — v Cardcall Pty Ltd [2009] FCA 583; BC200904786 …. [14,645.70], [14,645.110], [14,645.135], [14,670.15] — v Commercial and General Publications Pty Ltd (2002) ASAL (Digest) 55-083; (2002) ATPR (Digest) 46-222 …. [14,680.15], [14,680.20], [14,700.15], [14,700.20], [14,700.25], [14,700.30] — v Davis [2003] FCA 1227; BC200306607 …. [11,585.80], [14,605.20], [14,750.15], [14,750.40] — v Ewing [2004] FCA 5; BC200400073 …. [10,905.10] — v Gary Peer & Assocs Pty Ltd (2005) 142 FCR 506; 65 IPR 1 …. [14,590.140], [14,645.135], [14,650.25]

— v Giraffe World Australia Pty Ltd (1999) 95 FCR 302; (1999) ATPR 41718 …. [11,585.20], [11,585.60], [14,745.25] — v Glendale Chemical Products Pty Ltd (1998) 40 IPR 619; (1998) ATPR 41-632 …. [14,535.15], [14,545.10], [14,545.30], [14,590.275], [15,255.10] — v Grant [2000] FCA 1564; BC200006828 …. [11,585.20], [11,585.60], [14,685.10] — v IT & T AG [2004] FCA 959; BC200404511 …. [14,715.5] — v Ozdirect Online Brands Pty Ltd [2009] FCA 1604; BC200912153 …. [14,645.175], [14,680.20], [14,820.5] — v Refund Home Loans Pty Ltd (No 2) [2010] FCA 237; BC201001380 …. [11,717.15], [14,645.105], [14,645.125] — v Top Snack Foods Pty Ltd (1999) ATPR 41-708 …. [11,655.25], [14,590.320] — v Woolworths Ltd (2002) ASAL 55-085; (2002) ATPR 41-889 …. [14,590.140], [14,590.85] — v Worldplay Services Pty Ltd (2004) 210 ALR 562; (2004) A; TPR 42020 …. [14,725.20], [14,725.25], [14,725.30], [14,725.35], [14,725.5] Australian Competition & Consumer Commission (ACCC) v Admiral Mechanical Services Pty Ltd [2010] FCA 348; BC201002123 …. [11,590.20], [11,590.25] — v Dateline Imports Pty Ltd [2015] FCAFC 114; BC201508279 …. [14,520.35], [14,645.120], [14,645.25], [14,645.60] — v Powerballwin.com.au Pty Ltd [2010] FCA 378; BC201002458 …. [11,670.5], [11,720.23], [14,645.120] — v StoresOnline International Inc (No 2) [2010] FCA 418; BC201004266 …. [11,720.23], [14,645.135] — v Universal Sports Challenge Ltd [2002] FCA 1276; BC200206452 …. [14,520.35] — v Yellow Page Marketing [2010] FCA 1218; BC201008405 …. [10,155.8] Australian Competition and Consumer Commision v TPG Internet Pty Ltd [2010] FCA 1478; BC201010043 …. [11,625.35] Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856; BC200504316 …. [11,717.10] — v 4WD Systems Pty Ltd (2003) 200 ALR 491; 59 IPR 435 ….

[10,905.10], [10,905.5], [10,905.7], [11,625.7], [11,720.26], [14,605.20], [14,645.145] — v ABB Power Transmission Pty Ltd (2004) ATPR 42-011 …. [11,590.20], [11,590.27] — v — [2003] FCA 626; BC200303170 …. [14,180.77] — v ABB Transmission and Distribution Ltd (2001) ATPR 41-815 …. [11,590.27] — v — (2001) ATPR 41-839 …. [11,590.27] — v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; (2002) ATPR 41-872 …. [11,590.20], [11,590.25] — v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR 41-873 …. [11,670.5] — v ACN 135 183 372 [2012] FCA 586; BC201203897 …. [14,645.120] — v ACN 135 183 372 (in liq) [2012] FCA 749; BC201205140 …. [11,590.20], [11,590.25] — v Adepto Publications Pty Ltd [2013] FCA 247; BC201301415 …. [11,590.20], [11,590.25], [11,590.27], [11,590.5], [11,720.23] — v Admiral Mechanical Services Pty Ltd [2007] FCA 1085; BC200705831 …. [11,590.20], [11,590.25] — v Advanced Medical Institute Pty Ltd (No 3) (2006) 69 IPR 462; (2007) ATPR (Digest) 46-269 …. [14,590.270] — v AGL Sales Pty Ltd [2013] FCA 1030; BC201313641 …. [11,590.20], [11,590.25], [11,590.27], [14,880.10], [14,880.15], [14,880.20], [14,880.5] — v AGL South Australia Pty Ltd [2014] FCA 1369; BC201411342 …. [14,590.140], [14,645.120], [14,645.135] — v Air New Zealand Ltd [2014] FCA 1157; BC201411318 …. [10.830.5A], [10,005.20], [10,070.10], [10,070.20], [10,070.50], [10,155.5], [10,700.25], [10,700.30] — v AirAsia Berhad Co [2012] FCA 1413; BC201209905 …. [11,590.25], [11,717.20], [14,740.20] — v Albert (2005) 223 ALR 467; (2005) ATPR 42-085 …. [11,625.93], [11,720.23] — v Alice Car & Truck Rentals Pty Ltd (1997) ATPR 41-582 …. [11,590.25], [11,590.27] — v Allans Music Group Ltd [2002] FCA 1552; BC200208179 ….

[11,605.14] — v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74; BC201100491 …. [11,720.23], [11,605.24] — v Allphones Retail Pty Ltd [2011] FCA 538; BC201103377 …. [11,720.26] — v Amcor Printing Papers Group Ltd (1999) 163 ALR 465; (1999) ATPR 41-692 …. [11,590.28], [14,180.75] — v — (2000) 169 ALR 344; (2000) ATPR 41-749 …. [10,700.30] — v Ampol Petroleum (Vic) Pty Ltd (1996) ATPR 41-469 …. [11,590.25], [11,590.27] — v — (1996) ATPR 41-500 …. [11,590.25] — v Anglo Estates Pty Ltd (2005) ATPR 42-044 …. [11,590.25], [11,625.60], [11,680.20], [11,717.15] — v Apollo Optical (Aust) Pty Ltd [2001] FCA 1456; BC200106300 …. [11,670.5], [11,730.10], [15,035.15] — v Apple Pty Ltd [2012] FCA 646; BC201204443 …. [11,590.20], [14,665.20] — v April International Marketing Services Australia Pty Ltd [2007] FCA 2024; BC200711522 …. [10,160.13] — v April International Marketing Services Australia Pty Ltd ((No 4) [2010] FCA 16; BC201000212 …. [11,720.23] — v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 …. [11,590.20], [11,590.25], [11,590.27], [11,720.23] — v April International Marketing Services Australia Pty Ltd (No 6) (2010) 270 ALR 504 …. [10,155.5], [10,155.8] — v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153; BC201100688 …. [11,590.20], [11,590.25], [11,590.27] — v Arnott’s Biscuits Ltd [2008] FCA 590; BC200803042 …. [14,590.275] — v Artorios Ink Co Pty Ltd (No 2) [2013] FCA 1292; BC201315319 …. [11,590.27], [11,719E.5], [14,645.125], [14,645.80], [14,700.15] — v Ascot Four Pty Ltd (2008) 250 ALR 467 …. [15,265.15] — v Audi Australia Pty Ltd (2008) ASAL 55-183; (2007) ATPR 42-211 …. [11,720.23] — v Auspine Ltd [2006] FCA 1215; BC200607117 …. [11,625.60],

[11,625.98], [11,717.18] — v Australia and New Zealand Banking Group Ltd [2013] FCA 1206; BC201314733 …. [10,025.25], [10,070.10], [10,070.20], [10,070.45], [10,690ZZRD.65] — v Australian Abalone Pty Ltd [2007] FCA 1834; BC200710229 …. [11,590.20], [11,590.25], [11,590.27] — v Australian Communications Network Pty Ltd (2005) 143 FCR 23; (2005) ATPR 42-067 …. [11,605.24], [14,725.20], [14,725.25], [14,725.30], [14,730.15] — v Australian Competition Tribunal [2006] FCAFC 127; BC200606380 …. [10,605.15] — v — [2006] FCAFC 83; BC200604913 …. [10,605.15] — v Australian Dreamtime Creations Pty Ltd (2009) 263 ALR 487; 84 IPR 326 …. [14,590.140], [15,785.15] — v Australian Karting Association (NSW) Inc [2009] FCA 1255; BC200910103 …. [11,590.20], [11,590.25], [11,717.15] — v Australian Medical Assn Western Australia Branch Inc (2001) ATPR 41-844 …. [11,625.60] — v Australian Medical Association Western Australia Branch Inc (2003) 199 ALR 423; (2003) ATPR 41-945 …. [10,015.35], [10,025.20], [10,070.10], [10,070.20], [10,690ZZRD.65], [10,700.30], [10,700.40], [10,700.55], [10,700.95] — v Australian Purchasing & Tender Service Pty Ltd (1999) ATPR 41-684 …. [11,585.65], [14,590.270], [14,645.100], [14,645.125], [14,645.155], [14,645.70], [14,670.15] — v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; 145 ALR 36; (1997) ATPR 41-562 …. [11,590.20], [11,590.25], [11,590.50] — v — (2003) 198 ALR 657 …. [10,700.95], [10,760.45], [10,760.50], [10,760.55], [10,760.65], [10,760.65A], [10,760.66], [10,760.76], [10,785.40], [10,785.45], [10,785.53], [10,785.75], [10,800.45] — v Australian Safeway Stores Pty Ltd (No 2) (2001) 119 FCR 1; (2002) ATPR (Digest) 46-215 …. [10,700.13], [10,700.25], [10,760.35], [10,760.45], [10,760.50], [10,760.55], [10,760.65A], [10,785.40], [10,785.45], [10,785.75], [10,800.45], [11,590.45], [11,675.15], [11,675.20], [12,010.15] — v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21;

BC200600152 …. [11,590.20] — v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2004] FCA 517; BC200402192 …. [11,720.23] — v Avitalb Pty Ltd [2014] FCA 222; BC201401607 …. [11,590.25], [11,590.27], [14,645.170] — v BAJV Pty Ltd [2013] FCA 666; BC201310774 …. [14,645.135], [14,645.170] — v Barton Mines Corporation [2006] FCA 1264; BC200608378 …. [10,065.45], [11,720.23] — v Baxter Healthcare Pty Ltd (2005) ATPR 42-066 …. [10,015.35], [10,690.5], [10,700.45], [10,760.35], [10,760.45], [10,760.50], [10,760.65B], [10,785.60] — v — (2006) 153 FCR 574; 232 ALR 627 …. [10,015.35] — v — (2007) 237 ALR 512; (2007) ATPR 42-172 …. [10,015.10], [10,015.35], [10,017.15], [10,145.5] — v — (2008) 170 FCR 16; 249 ALR 674 …. [10,070.10], [10,760.35], [10,760.45], [10,760.50], [10,760.65], [10,760.76], [10,785.60], [10,785.75] — v Bill Express Ltd (2009) 180 FCR 105; 259 ALR 483 …. [10,785.50], [10,785.65], [14,645.175] — v Bio Enviro Plan Pty Ltd [2003] FCA 1219; BC200306386 …. [11,625.95] — v Black & White Cabs Pty Ltd [2010] FCA 1399; BC201009585 …. [10,785.65], [11,590.20], [11,590.27] — v Black on White Pty Ltd (2001) 110 FCR 1; (2001) ATPR 41-820 …. [11,585.70], [11,720.26A], [14,605.20] — v — [2002] FCA 739; BC200203115 …. [11,655.20] — v — [2004] FCA 363; BC200401576 …. [11,655.58] — v BMW Australia Ltd (2003) ATPR 91-944 …. [15,030.5], [15,035.15] — v Boral Ltd (1999) ATPR 41-715 …. [10,760.45], [10,760.50], [10,760.55], [10,760.66], [10,760.71] — v — (2001) 106 FCR 328; (2001) ATPR 41-803 …. [10,070.10], [10,070.15], [10,070.20], [10,760.35], [10,760.45], [10,760.50], [10,760.65], [10,760.70] — v Boyle [2015] FCA 1039; BC201509383 …. [14,180.30]

— v Breast Check Pty Ltd [2014] FCA 190; BC201401310 …. [14,645.120] — v Bridgestone Corp (2010) 186 FCR 214 …. [11,590.27] — v British Airways plc [2008] FCA 1977; BC200811643 …. [11,590.20], [11,590.25] — v Bruhn [2012] FCA 959; BC201206669 …. [11,717.15], [11,717.20], [14,665.20] — v Bytecard Pty Ltd [2013] FCA VIDD301 …. [14,625.10] — v Cabcharge Australia Ltd [2010] FCA 1261; BC201008676 …. [10,760.76], [11,590.20], [11,590.25] — v Cadbury Schweppes Pty Ltd (2004) 61 IPR 270; (2004) ATPR 42-001 …. [14,645.60], [14,665.20] — v — (2009) 254 ALR 198 …. [14,180.77] — v Cambur Industries Pty Ltd [2006] FCA 1027; BC200606158 …. [11,590.20], [11,590.25], [11,625.22], [11,625.45], [11,625.98] — v Capalaba Pty Ltd [2003] FCA 1226; BC200306608 …. [11,625.60] — v Carrerabenz Diamond Industries Pty Ltd [2008] FCA 1103; BC200806882 …. [15,265.15] — v Cathay Pacific Airways Ltd (No 3) [2012] FCA 1392; BC201209542 …. [11,590.20], [11,590.27] — v CC (NSW) Pty Ltd (No 8) (1999) 165 ALR 468; (1999) ATPR 41-732 …. [10,690ZZRD.50], [10,700.25], [10,700.30], [14,590.160] — v CC (NSW) Pty Ltd (No 9) (2000) ATPR 41-756 …. [11,590.20] — v Cement Australia Pty Ltd (2013) 210 ALR 165 …. [10,065.45], [10,700.40], [10,700.45], [10,700.95], [10,760.55], [10,760.76] — v — [2014] FCA 148; BC201400910 …. [11,720.23] — v — [2016] FCA 453; BC201604416 …. [11,590.20], [11,590.25] — v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292; 167 ALR 303 …. [14,600.10], [14,600.15], [14,600.25], [14,600.35], [14,605.20] — v — (2000) ATPR 41-778 …. [14,600.10], [14,600.25], [14,600.35] — v — (2001) ATPR 41-802 …. [11,625.60], [11,625.95], [11,625.98] — v — (2003) 214 CLR 51; 197 ALR 153 …. [14,600.25], [14,600.35], [14,605.20] — v Chaste Corp Pty Ltd [2004] FCA 398; BC200401656 …. [11,590.27] — v Chaste Corp Pty Ltd (in liq) [2005] FCA 1212; BC200506448 …. [10,905.10], [11,590.25]

— v Chats House Investments Pty Ltd (1996) 71 FCR 250; 142 ALR 177 …. [11,720.26] — v Chen (2003) 201 ALR 40 …. [10,160.13], [10,160.15], [11,625.45], [11,625.69] — v Chrisco Hampers Australia Limited (No 3) [2016] FCA 206 …. [11,720.23] — v Chrisco Hampers Australia Ltd [2015] FCA 1204; BC201511025 …. [14,620.10], [14,625.10], [14,625.5], [14,645.170], [14,985.10], [14,990.10] — v Chubb Security Australia Pty Ltd (2004) ATPR 42-041 …. [11,605.12], [15,300.15] — v Clarion Marketing Pty Ltd [2009] FCA 1441; BC200911007 …. [11,717.20], [14,590.90], [14,645.135] — v — [2009] FCA 1558; BC200911910 …. [11,717.20] — v Coles Supermarkets Pty Ltd [2014] FCA 1405; BC201411366 …. [11,590.20], [11,590.25], [11,590.27], [14,605.20] — v Colgate-Palmolive Pty Ltd (2002) ATPR 41-880 …. [11,590.25], [11,590.27] — v Commonwealth Bank of Australia (2003) 133 FCR 149 …. [11,717.15], [14,645.120], [14,645.135], [14,645.175] — v — (2004) ASAL 55-117; (2004) ATPR 41-975 …. [11,625.13], [14,590.30], [11,625.45], [14,645.45] — v Construction, Forestry, Mining and Energy Union (2007) ATPR 42-140 …. [11,625.60], [11,717.15], [11,717.20] — v — [2007] FCA 1546; BC200708569 …. [11,590.27] — v — [2008] FCA 678; BC200803497 …. [10,745.43], [10,745.45] — v Contact Plus Group Pty Ltd (in liq) (No 2) (2006) ATPR 42-116 …. [11,605.24] — v Cosic Holdings Pty Ltd [2009] FCA 1579; BC200911577 …. [11,717.20], [11,720.23], [14,725.15], [14,725.30] — v Cotton On Kids Pty Ltd [2012] FCA 1428; BC201209956 …. [11,590.25], [11,717.15], [11,720.23], [14,645.110], [14,645.55] — v Cromford Pty Ltd (1998) ATPR 41-618 …. [11,590.20], [11,590.50] — v Dally M Publishing and Research Pty Ltd (2007) ATPR 42-176 …. [14,146.5]

— v Danoz Direct Pty Ltd (2003) 60 IPR 296; (2003) ATPR (Digest) 46-241 …. [11,625.73], [14,520.20], [14,520.35], [14,645.110], [14,645.135] — v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665; (2007) ATPR 42-138 …. [11,590.25], [11,625.98], [11,670.5], [14,605.20] — v — [2007] FCAFC 146; BC200707710 …. [11,590.20], [11,590.25], [11,625.65] — v Dateline Imports Pty Ltd (No 2) [2014] FCA 1222 …. [11,590.20], [11,590.25] — v Dell Computers Pty Ltd (2002) 126 FCR 170; (2003) ATPR 41-910 …. [14,645.135], [14,740.5] — v — (2002) ASAL 55-082; (2002) ATPR 41-878 …. [14,590.80], [14,590.145] — v Dermalogica Pty Ltd (2005) 215 ALR 482 …. [10,800.45], [11,590.20], [11,590.50], [12,010.10], [12,010.35] — v Destiny Telecom International Inc (1997) ATPR 41-588 …. [14,725.15] — v Digital Products Group Pty Ltd [2006] FCA 1732; BC200611111 …. [11,717.15], [11,720.23] — v Dimmeys Stores Pty Ltd (1999) ATPR 41-716 …. [11,590.25], [11,605.14], [11,605.23], [11,625.45], [15,035.15] — v — (2001) ATPR 41-811 …. [11,590.25], [11,605.14], [11,625.45], [15,035.15] — v — [2011] FCA 372; BC201102057 …. [11,720.23], [15,035.15] — v DM Faulkner Pty Ltd [2004] FCA 1666; BC200406522 …. [11,590.20], [11,590.25], [11,590.27] — v DuluxGroup (Australia) Pty Ltd [2014] FCA 1158 …. [14,590.140] — v Dynacast (Int) Pty Ltd [2007] FCA 429; BC200701934 …. [11,605.24] — v Econvite Pty Ltd (2003) ATPR 41-959 …. [11,625.60], [11,625.98], [11,717.10], [11,717.15] — v EDirect Pty Ltd (2008) ATPR 42-216 …. [11,625.45], [11,717.15], [11,720.23], [14,680.20] — v — [2012] FCA 1045; BC201208139 …. [11,720.23], [14,590.140], [14,605.20] — v EDirect Pty Ltd (in liq) [2012] FCA 976; BC201206672 …. [11,590.20], [11,590.5], [11,720.23], [14,680.20] — v Emerald Ocean Distributors Pty Ltd (2006) ASAL 55-153; (2006)

ATPR 42-096 …. [11,585.20], [11,720.20], [14,520.35], [14,590.140] — v — (2006) ATPR 42-108 …. [11,625.95], [11,670.5] — v — [2001] FCA 595; BC200102542 …. [11,720.20] — v Emirates [2012] FCA 1108; BC201207958 …. [11,590.20], [11,590.25], [11,590.27] — v Energy Australia Pty Ltd [2015] FCA 274; BC201501979 …. [11,590.20], [11,590.25], [11,590.27], [11,720.23], [14,645.80], [14,645.180] — v Esanda Finance Corp Ltd [2003] FCA 1225; BC200306609 …. [11,625.60] — v Eternal Beauty Products Pty Ltd [2012] FCA 1124; BC201207941 …. [10,800.45], [11,590.20] — v Eurong Beach Resort Ltd (2006) ATPR 42-098 …. [11,590.25] — v — [2005] FCA 1134; BC200506003 …. [11,720.23] — v Excite Mobile Pty Ltd [2013] FCA 350; BC201301814 …. [14,605.20], [14,645.110], [14,645.180], [14,750.25], [14,750.30] — v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267; BC201315388 …. [11,590.20], [11,590.25], [11,719E.5], [11,720.23] — v FChem (Aust) Ltd [2008] FCA 344; BC200801851 …. [11,590.20], [11,590.25], [11,590.27] — v Ferndale Recyclers Pty Ltd [2004] FCA 1597; BC200408513 …. [11,590.20], [11,590.25] — v FFE Building Services Ltd (2003) ATPR 41-926 …. [11,625.30], [11,625.45] — v — (2003) ATPR 41-938 …. [11,590.28] — v — (2004) Aust Contract R 90-179 …. [11,590.20], [11,590.27] — v Fila Sport Oceania Pty Ltd [2004] FCA 376; BC200401573 …. [11,590.25] — v — [2006] FCA 1652; BC200610023 …. [11,590.27] — v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393; BC201410907 …. [11,590.20], [11,590.27A], [11,625.30], [11,717.15], [11,720.23] — v Flight Centre Ltd (No 2) (2013) 307 ALR 209 …. [10,025.25], [10,025.90], [10,070.10], [10,070.20], [10,690ZZRD.50], [10,690ZZRD.65], [10,785.54], [11,590.30]

— v Flight Centre Ltd (No 3) [2014] FCA 292; BC201402113 …. [11,590.25], [11,590.25A] — v Foamlite (Aust) Pty Ltd (1998) ATPR 41-615 …. [11,590.27] — v Francis (2004) 142 FCR 1; (2004) ATPR (Digest) 46-250 …. [10,160.15], [11,585.15], [11,585.20], [11,625.22], [11,625.23], [11,625.60], [11,720.23], [14,645.110], [14,645.120], [14,665.20] — v Geoff Clegg Enterprises Pty Ltd (2000) ATPR 41-773 …. [11,590.25] — v George Weston Foods Ltd (2000) ATPR 41-763 …. [11,590.20], [11,590.25], [11,590.30] — v — (2003) 198 ALR 592 …. [14,180.77] — v — (2004) 210 ALR 486 …. [11,590.25] — v GIA Pty Ltd (2002) ATPR 41-902 …. [11,620.10], [14,180.30] — v Giraffe World Australia Pty Ltd (1998) 156 ALR 273; (1998) ATPR 41-648 …. [11,625.90], [11,720.26] — v — (1999) ATPR 41-669 …. [11,625.90], [11,720.26] — v — [1999] FCA 937; BC9903760 …. [11,605.24] — v Global Green Plan Ltd [2010] FCA 1057; BC201007228 …. [11,720.23] — v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 …. [11,590.20], [11,590.25], [11,590.5], [11,625.45], [11,717.15], [11,720.23], [14,590.140], [14,590.145], [14,590.285], [14,645.135] — v Global One Mobile Entertainment Ltd (No 2) [2011] FCA 670; BC201104194 …. [11,625.98], [11,720.23], [14,645.135] — v Global Prepaid Communications Pty Ltd (in liq) (2006) ATPR 42-103 …. [10,160.15], [10,905.7], [14,520.30] — v Global Prepaid Communications Pty Ltd (in liq) (No 2) (2006) ATPR 42-104 …. [11,720.5], [11,720.7C] — v Globex Systems Pty Ltd (2005) ATPR 42-069 …. [11,605.24] — v GM Holden Ltd [2008] FCA 1428; BC200808135 …. [11,625.60], [11,720.23] — v GO Drew Pty Ltd [2007] FCA 1246; BC200706928 …. [11,720.23] — v Golden Sphere International Inc (1998) 83 FCR 424; (1998) ASAL 55009; (1998) ATPR 41-638 …. [11,720.26], [14,725.15] — v Goldstar Corp Pty Ltd BC9806061 …. [11,605.24] — v — [1999] FCA 585; BC9902357 …. [11,605.24]

— v Goldy Motors Pty Ltd (2001) ASAL 55-053; (2001) ATPR 41-801 …. [11,720.23], [14,645.135], [14,645.175] — v Google Inc (2012) 201 FCR 503 …. [14,590.105] — v Gourmet Goody’s Family Restaurant Pty Ltd [2010] FCA 1216; BC201008344 …. [14,740.20] — v Gullyside Pty Ltd [2005] FCA 1727; BC200510280 …. [10,700.35], [11,590.20], [11,590.25] — v Halkalia Pty Ltd (No 2) [2012] FCA 535; BC201203612 …. [11,590.5], [11,719E.5], [11,720.23], [14,685.10] — v Harbin Pty Ltd [2008] FCA 1792; BC200810538 …. [11,717.20] — v Harris Scarfe Australia Pty Ltd [2009] FCA 54; BC200900296 …. [14,590.285], [14,645.135] — v Hartwich Pty Ltd [2002] FCA 273; BC200201044 …. [11,605.12], [11,620.5], [14,685.10] — v Harvey Fresh (1994) Ltd (2009) 82 IPR 6 …. [14,645.145] — v Health Partners Inc (1998) ATPR 41-604 …. [10,785.65], [10,785.75], [11,590.10] — v Hercules Iron Pty Ltd [2008] FCA 1182; BC200807121 …. [11,605.24] — v Hewlett Packard Australia Pty Ltd [2013] FCA 653; BC201310706 …. [11,590.27], [14,645.170], [14,645.190] — v High Adventure Pty Ltd (2006) ATPR 42-091 …. [10,800.5] — v — [2005] FCA 762; BC200503921 …. [11,590.25], [12,010.15] — v Hobie Cat Australasia Pty Ltd (2008) ATPR 42-225 …. [10,800.45], [11,590.25], [11,590.27], [11,717.15] — v HP Superstore Pty Ltd [2013] FCA 1317; BC201316405 …. [11,590.20], [11,590.25], [11,717.15], [14,645.170] — v Hughes (2001) ATPR 41-807 …. [11,605.24] — v — (2002) ASAL (Digest) 55-078; (2002) ATPR 41-863 …. [14,645.110], [14,645.120] — v — [2004] FCA 319; BC200402226 …. [11,605.24] — v Hugo Boss Australia Pty Ltd (1996) ATPR 41-536 …. [11,590.25], [11,590.27] — v Humax Pty Ltd [2005] FCA 706; BC200503936 …. [11,590.20] — v Hungry Jacks Pty Ltd (1996) ATPR 41-538 …. [11,625.95], [15,035.15]

— v Hymix Industries Pty Ltd (1996) ATPR 41-465 …. [11,590.27], [11,625.98] — v IGC Dorel Pty Ltd [2010] FCA 1303; BC201008953 …. [10,800.45], [11,590.27] — v Imagine Essential Services Ltd (No 2) [2008] FCA 446; BC200802378 …. [11,720.23], [14,645.105], [14,685.35] — v IMB Group Pty Ltd (1999) ATPR 41-704 …. [14,520.35], [14,520.55] — v — [2003] FCAFC 17; BC200300358 …. [10,785.65], [10,785.75] — v IMB Group Pty Ltd (in liq) (1999) ATPR 41-688 …. [11,625.60] — v — (2002) ATPR (Digest) 46-221 …. [10,785.65], [10,785.75] — v Info4PC Pty Ltd [2006] FCA 1534; BC200609291 …. [11,625.60] — v INFO4PC.com Pty Ltd (2002) 121 FCR 24 …. [11,605.24] — v International Technology Holdings Pty Ltd (1997) ATPR 41-559 …. [11,720.23] — v Internic Technology Pty Ltd (1998) 42 IPR 225; (1998) ATPR 41-646 …. [14,590.125] — v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688 …. [10,065.30], [10,700.25], [10,700.30], [10,700.35], [10,740.40], [10,745.30], [10,745.40], [10,745.43], [10,745.45], [10,745EA.5], [10,745EA.10], [11,625.8] — v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11; BC200700068 …. [11,590.20], [11,590.25] — v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144; BC200701349 …. [11,590.25], [11,590.27] — v Ithaca Ice Works Pty Ltd (2000) ATPR 41-777 …. [11,590.20], [11,590.25] — v — (2002) ATPR 41-851 …. [11,590.20], [11,590.25], [11,590.29] — v J McPhee & Son (Aust) Pty Ltd (No 2) (1997) 148 ALR 601; (1997) ATPR 41-592 …. [11,590.28] — v J McPhee & Son (Aust) Pty Ltd (No 3) (1998) ATPR (Digest) 46-183 …. [11,590.30], [11,590.45] — v J McPhee & Son (Aust) Pty Ltd (No 5) (1998) ATPR 41-628 …. [11,590.20], [11,590.25] — v Japan Airlines International Co Ltd [2011] FCA 365; BC201102040 …. [11,590.27]

— v Jaycee Rectification and Building Services Pty Ltd (1996) ATPR 41539 …. [11,590.27] — v Jetplace Pty Ltd [2010] FCA 759; BC201005035 …. [11,720.23] — v Jetstar Airways Pty Ltd [2015] FCA 1263; BC201511287 …. [14,590.140], [14,645.155] — v Jewellery Group Pty Ltd [2012] FCA 848; BC201205984 …. [14,645.135], [15,265.15] — v Jewellery Group Pty Ltd (No 2) [2013] FCA 14; BC201300073 …. [11,590.20], [11,590.25], [14,645.135] — v Joyce Corp Ltd (1999) ATPR 41-671 …. [11,590.27] — v Jurlique International Pty Ltd [2007] FCA 79; BC200700396 …. [10,800.5], [11,590.25] — v Jutsen (No 3) (2011) 285 ALR 110 …. [14,725.20], [14,725.30] — v Jutsen (No 4) [2012] FCA 503; BC201203214 …. [11,720.23] — v Jutsen (No 6) [2012] FCA 809; BC201205636 …. [11,605.24] — v Kaye [2004] FCA 1363; BC200407004 …. [10,160.18], [10,160.19], [11,585.70], [11,625.95], [14,520.35], [14,590.115] — v Keshow (2005) ASAL 55-142; (2005) ATPR (Digest) 46-265 …. [11,717.15], [14,605.20] — v Keshow (No 2) [2005] FCA 989; BC200505290 …. [11,720.26] — v Kingisland Meatworks & Cellars Pty Ltd [2012] FCA 859; BC201206055 …. [14,645.145] — v — [2013] FCA 48; BC201300341 …. [11,590.20], [11,590.25] — v Knight (2007) ATPR 42-165 …. [11,590.20], [11,717.15], [11,720.23] — v Kokos International Pty Ltd (No 2) (2008) ATPR 42-212 …. [11,590.25], [11,720.23], [14,146.5] — v Kokos International Pty Ltd (No 4) [2008] FCA 549; BC200804160 …. [11,625.60] — v Koyo Australia Pty Ltd [2013] FCA 1051; BC201313793 …. [10,690ZZRD.65] — v Kritharas (2000) 105 FCR 444; 178 ALR 363 …. [11,655.58], [11,720.26A] — v Kyloe Pty Ltd (2007) ATPR 42-194 …. [10,905.8], [10,905.10] — v Launceston Superstore Pty Ltd [2013] FCA 1315; BC201315502 …. [11,590.20], [11,590.25], [11,717.15], [14,645.170]

— v Le Sands Restaurant and Le Sands Café Pty Ltd [2011] FCA 105; BC201100468 …. [14,075E.5], [14,740.20] — v Leahy Petroleum Pty Ltd (2004) ATPR (Digest) 46-260 …. [10,690ZZRD.50], [10,700.30], [10,700.40], [10,700.95], [11,675.20], [14,180.85] — v — (2007) 160 FCR 321; (2007) ATPR 42-162 …. [10,690ZZRD.55], [10,690ZZRD.65], [10,700.13], [10,700.20], [10,700.25], [10,700.30] — v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; BC200501242 …. [11,590.20], [11,590.25], [11,625.22] — v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; (2005) ATPR 42-052 …. [11,590.20], [11,590.25], [11,670.5] — v Leelee Pty Ltd (2000) ATPR 41-742 …. [14,605.11], [14,605.13] — v LG Electronics Australia Pty Ltd [2006] FCA 1118; BC200606499 …. [11,625.60], [11,717.15], [11,720.23], [14,645.170] — v Link Solutions Pty Ltd (No 2) [2010] FCA 919; BC201006148 …. [10,785.65] — v Link Solutions Pty Ltd (No 3) [2012] FCA 348; BC201202003 …. [11,720.23] — v Liquorland (Aust) Pty Ltd (2006) ATPR 42-123 …. [10,065.15], [10,065.20], [10,065.45], [10,070.10], [10,070.15], [10,070.20], [10,700.50] — v — (2007) ATPR 42-186 …. [11,625.30] — v — [2005] FCA 683; BC200503547 …. [11,590.27] — v — [2006] FCA 1034; BC200606233 …. [10,065.45] — v — [2006] FCA 1799; BC200610872 …. [11,590.20] — v Lovelock Luke Pty Ltd (1997) 79 FCR 63; 39 IPR 439; (1997) ATPR 41-594 …. [14,645.145] — v Luv-a-Duck Pty Ltd [2013] FCA 1136; BC201314592 …. [11,717.15], [11,719.7], [11,720.23], [14,645.55], [14,665.20] — v Lux Distributors Pty Ltd [2013] FCA 47; BC201300406 …. [14,605.20] — v Lux Pty Ltd [2004] FCA 926; BC200404429 …. [14,605.20], [14,750.30] — v McCaskey (2000) 104 FCR 8; 183 ALR 159 …. [11,625.60], [11,625.98], [14,645.165], [14,750.20], [14,750.30], [14,750.35] — v McMahon Services Pty Ltd (2004) ATPR 42-022 …. [10,690.5],

[11,590.20], [11,590.25] — v — (2004) ATPR 42-031 …. [11,590.20], [11,590.25] — v — [2004] FCA 353; BC200401409 …. [14,200.5] — v McMahon Services Pty Ltd (No 2) [2004] FCA 1172; BC200406683 …. [10,690.5], [11,590.25] — v Malaysia Airline System Berhad (No 2) [2012] FCA 767; BC201205306 …. [11,590.27] — v Maritime Union of Australia (2001) 114 FCR 472; 187 ALR 487 …. [11,675.10], [11,675.15], [14,750.25], [14,750.30], [14,750.35] — v Marksun Australia Pty Ltd [2011] FCA 695; BC201104538 …. [11,590.20], [11,590.25], [11,717.10] — v Mayo International Pty Ltd (No 1) (1998) ATPR 41-653 …. [12,010.35], [12,010.40] — v Mayo International Pty Ltd (No 2) (1998) ATPR 41-654 …. [11,585.20], [11,585.60] — v Mayo International Pty Ltd (No 3) (1998) ATPR 41-655 …. [11,590.25] — v Metricon Homes Qld Pty Ltd [2012] FCA 797; BC201205545 …. [11,590.20], [14,645.135], [14,645.170], [14,645.175], [14,645.50] — v MHG Plastic Industries Pty Ltd (1999) ATPR 41-712 …. [15,035.15] — v Michigan Group Pty Ltd [2002] FCA 1439; BC200207111 …. [11,585.70], [11,720.23], [11,720.26] — v Midland Brick Co Pty Ltd (2004) 207 ALR 329 …. [11,590.25], [11,717.18] — v Mitsubishi Electric Australia Pty Ltd [2013] FCA 1413; BC201315974 …. [11,590.20], [11,590.25] — v MNB Variety Imports Pty Ltd (1998) ATPR 41-617 …. [15,035.15] — v Monza Imports Pty Ltd (2001) ATPR 41-843 …. [11,670.5], [11,730.10], [15,035.15] — v Moonah Superstore Pty Ltd [2013] FCA 1314; BC201315506 …. [11,590.20], [11,590.25], [11,717.15], [14,645.170] — v Murray (2002) 121 FCR 428; (2002) ATPR 41-899 …. [11,680.5], [14,685.25] — v Narnia Investments Pty Ltd [2009] FCA 395; BC200903008 …. [14,180.30]

— v Nationwide News Pty Ltd (1996) ATPR 41-519 …. [11,605.14], [11,605.5], [14,645.135], [14,645.175], [14,660.5] — v — (1997) ATPR 41-543 …. [14,645.175] — v Neighbourhood Energy Pty Ltd [2012] FCA 1357; BC201209826 …. [11,590.20], [11,590.25], [14,875.5], [14,880.20] — v Netti Atom Pty Ltd [2007] FCA 1945; BC200710709 …. [11,590.20], [11,590.25], [11,590.27] — v Neville [2007] FCA 1583; BC200708766 …. [14,180.93] — v Nissan Motor Co (Aust) Pty Ltd (1999) ASAL 55-015; (1998) ATPR 41-660 …. [11,605.12], [11,605.14], [11,605.23], [14,645.35] — v Nonchalant Pty Ltd (in liq) [2013] FCA 605; BC201310332 …. [11,590.20], [11,590.25] — v Nordic Lust Pty Ltd (1996) ATPR 41-504 …. [15,035.15] — v Nudie Foods Australia Pty Ltd [2008] FCA 943; BC200804742 …. [11,625.60], [14,645.60], [14,665.20] — v Nuera Health Pty Ltd (in liq) (2007) ASAL 55-172; (2007) ATPR (Digest) 46-273 …. [14,605.20], [14,645.155], [14,645.50], [14,645.70], [14,645.110], [14,670.15] — v NW Frozen Foods Pty Ltd (1996) ATPR 41-515 …. [11,590.25], [11,590.27], [11,625.98] — v Oceana Commercial Pty Ltd (2004) 139 FCR 316; (2004) ATPR (Digest) 46-255 …. [10,263.5], [14,280.8], [14,600.35] — v — [2004] ANZ ConvR 67; (2004) ATPR (Digest) 46-244; (2004) Aust Contract R 90-193 …. [14,590.140], [14,590.160], [14,600.35], [14,605.20] — v Office Link (Aust) Pty Ltd (1997) ATPR 41-598 …. [11,625.60], [11,625.98] — v On Clinic Australia Pty Ltd (1996) ATPR 41-517 …. [11,625.95] — v Oobi Baby Pty Ltd [2008] FCA 1488; BC200808748 …. [11,590.27] — v Optell Pty Ltd (1998) 41 IPR 49; (1998) ATPR 41-640 …. [10,160.15], [11,625.95], [14,520.35], [14,590.85], [14,645.155], [14,645.50], [14,645.55], [14,670.15], [14,680.20], [14,700.15] — v Original Mama’s Pizza and Ribs Pty Ltd [2008] FCA 370; BC200802340 …. [11,585.20], [11,670.5] — v P&N Pty Ltd [2014] FCA 6; BC201400060 …. [11,590.27], [11,717.20], [11,720.23], [14,645.145]

— v Pacific Dunlop Ltd (2001) ASAL (Digest) 55-064; (2001) ATPR 41823 …. [11,625.67], [11,720.23], [14,645.175] — v Pennisi (2007) ATPR 42-209 …. [15,265.15] — v Pepe’s Ducks Ltd [2013] FCA 570; BC201310097 …. [11,590.20], [11,590.25], [11,590.27] — v Pest Free Australia Pty Ltd [2004] FCA 527; BC200402266 …. [14,645.110], [14,645.120] — v Pioneer Concrete (Qld) Pty Ltd (1996) ATPR 41-457 …. [11,590.25], [11,590.27], [11,625.98] — v Pratt [2008] FCA 1373; BC200807895 …. [14,180.30] — v Pratt (No 2) [2008] FCA 1833; BC200810726 …. [14,180.30] — v Pratt (No 3) (2009) 175 FCR 558 …. [14,180.30] — v PRK Corp Pty Ltd [2009] FCA 715; BC200905860 …. [11,590.27] — v Prouds Jewellers Pty Ltd (2008) 75 IPR 306; (2008) ATPR 42-217 …. [14,590.85], [14,645.135] — v Prouds Jewellers Pty Ltd (No 2) (2008) ATPR 42-230 …. [11,625.93], [11,717.20], [11,720.23] — v Purple Harmony Plates Pty Ltd [2001] FCA 1062; BC200104454 …. [11,625.95] — v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576; (2002) ATPR 41-913 …. [11,605.24] — v Qantas Airways Ltd (2008) 253 ALR 89 …. [10,070.50], [11,590.20], [11,590.25], [11,590.27] — v Radio Rentals Ltd (2005) 146 FCR 292; (2005) ATPR 42-077 …. [14,600.35], [14,605.20] — v Rana (2008) ATPR 42-223 …. [14,180.93] — v Ranu Pty Ltd [2007] FCA 1777; BC200710651 …. [11,590.25], [14,146.5] — v Real Estate Institute of Western Australia Inc (1999) ATPR 41-673 …. [11,590.27], [11,625.60], [11,625.98] — v — (1999) ATPR 41-719 …. [10,065.45], [10,700.95], [11,625.95], [11,625.98] — v Reckitt Benckiser (Australia) Pty Ltd (No 4) [2015] FCA 1408; BC201500800 …. [14,665.20] — v Reebok Australia Pty Ltd [2015] FCA 83; BC201500687 ….

[11,590.20], [11,590.25], [11,590.27A], [14,645.110], [14,665.20] — v Renegade Gas Pty Ltd [2014] FCA 1135 …. [11,590.25], [11,719E.5], [11,720.23] — v Roberson [2008] FCA 1735; BC200810167 …. [11,730.12] — v Robinson [2011] FCA 17; BC201100065 …. [11,590.20], [15,035.15] — v Roche Vitamins Australia Pty Ltd (2001) ATPR 41-809 …. [11,590.20], [11,590.25], [11,590.27] — v Rural Press Ltd (1999) 169 ALR 201; (2000) ATPR 41-739 …. [14,200.15], [14,200.3], [14,200.5] — v — (2000) 169 ALR 573; (2000) ATPR 41-753 …. [14,180.100] — v — (2000) 96 FCR 389; 169 ALR 573 …. [14,180.40] — v — (2001) ATPR 41-833 …. [11,590.20], [11,590.25], [11,590.50], [11,625.98] — v — (2001) ATPR 41-804 …. [10,065.30], [10,070.30], [10,700.30], [10,700.50], [10,760.45], [10,760.53], [11,585.65] — v Safe Breast Imaging Pty Ltd [2014] FCA 238; BC201401593 …. [14,590.85], [14,645.120], [14,670.15] — v Salecomp Pty Ltd [2013] FCA 1316; BC201315503 …. [11,590.20], [11,590.25], [11,717.15], [14,645.170] — v Samton Holdings Pty Ltd (2000) ATPR 41-791 …. [14,600.15], [14,600.35], [14,605.20] — v — (2002) 117 FCR 301; 189 ALR 76 …. [14,600.10], [14,600.25], [14,600.35], [14,605.20], [14,605.3] — v SensaSlim Australia Pty Ltd (in liq) (No 5) [2014] FCA 340 …. [11,585.60], [14,685.15], [14,685.25] — v Seven Network Ltd (2007) 244 ALR 343; (2007) ATPR 42-191 …. [14,590.230], [14,595.10], [14,595.25] — v Shell Co of Australia Ltd (1997) 72 FCR 386; 142 ALR 569; (1997) ATPR 41-552 …. [11,720.26], [11,720.27] — v Signature Security Group Pty Ltd (2003) 52 ATR 1; (2003) ATPR 41908 …. [11,730.12], [14,590.145], [14,645.125], [14,645.135], [14,740.5] — v — (2003) ATPR 41-942 …. [11,730.10], [11,730.12] — v Simply No-Knead (Franchising) Pty Ltd (2000) 104 FCR 253; 178 ALR 304 …. [10,905.10], [14,605.13], [14,605.20]

— v Simsmetal Ltd (2000) ATPR 41-764 …. [11,590.20], [11,590.25] — v Singapore Airlines Cargo Pty Ltd [2012] FCA 1395; BC201209570 …. [11,590.20] — v Singtel Optus Pty Ltd [2010] FCA 1177; BC201008108 …. [14,590.285], [14,590.80], [14,670.15] — v — [2010] FCA 1272; BC201008692 …. [11,717.20] — v — [2011] FCA 87; BC201100429 …. [14,590.225], [14,590.285] — v Singtel Optus Pty Ltd (No 4) [2011] FCA 761; BC201104899 …. [11,590.25] — v SIP Australia Pty Ltd (1999) ATPR 41-702 …. [11,590.25], [11,625.60] — v — (2000) ATPR 41-761 …. [10,700.68], [10,700.95], [11,595.10] — v — (2002) ATPR 41-877 …. [10,065.15], [10,700.68], [10,700.70], [11,590.45] — v — (2003) ATPR 41-937 …. [11,590.20], [11,590.25] — v Skippy Australia Pty Ltd (2006) ASAL 55-161 …. [11,590.20], [15,035.15], [15,265.15], [15,480.15] — v Smash Enterprises Pty Ltd [2011] FCA 375; BC201102076 …. [11,590.25], [11,590.5], [11,720.23], [15,035.15] — v Smash Enterprises Pty Ltd (No 2) [2011] FCA 376; BC201104888 …. [11,720.23] — v Sontax Australia (1988) Pty Ltd [2011] FCA 1202; BC201108299 …. [11,590.25], [11,717.15], [11,717.20], [15,035.15] — v Star Promotions Club Pty Ltd [2010] FCA 139; BC201001050 …. [11,717.20], [11,720.23], [14,645.135], [14,645.175], [14,645.180] — v Startel Communication Co Pty Ltd [2014] FCA 352; BC201402397 …. [11,717.10], [14,645.180], [14,885.10], [14,895.10], [14,900.10], [14,935.10], [14,950.10] — v StoresOnline International Inc [2007] FCA 1597; BC200708943 …. [11,720.5], [11,730.12] — v Stott [2013] FCA 88; BC201316265 …. [11,590.27], [11,719E.5], [14,725.15] — v Sundaze Australia Pty Ltd (2000) ATPR 41-736 …. [11,590.20], [11,590.25] — v Target Australia Pty Ltd (2002) ASAL(Digest) 55-072; (2001) ATPR 41-840 …. [14,590.285], [14,645.130]

— v Tasmanian Salmonid Growers Assn Ltd (2003) ATPR 41-954 …. [11,590.27] — v TEAC Australia Pty Ltd [2007] FCA 1859; BC200710470 …. [11,590.20], [11,717.15], [11,719.7] — v Tel-Pacific Ltd [2009] FCA 279; BC200901996 …. [11,717.20], [14,645.110], [14,645.120], [14,645.70], [14,670.15] — v Telstra Corp Ltd (1997) ATPR 41-450 …. [11,590.20] — v — (2004) 208 ALR 459; (2004) ATPR 42-017 …. [14,590.73], [14,645.135] — v — [2004] FCA 1132; BC200405647 …. [11,625.45] — v — (2007) 244 ALR 470; (2008) ASAL 55-180; (2007) ATPR 42-203 …. [11,675.15], [11,675.20], [14,590.73], [14,590.80], [14,590.140], [14,590.225] — v — (2008) ASAL 55-182; (2007) ATPR 42-207 …. [11,590.20], [11,590.25], [11,590.27], [11,717.15], [11,717.20] — v — (2010) 188 FCR 238 …. [11,590.20], [11,590.25] — v Telwater Pty Ltd [2009] FCA 263; BC200901829 …. [11,590.25], [11,717.15], [12,010.35], [12,010.60] — v Teracomm Ltd [2009] FCA 903; BC200907523 …. [11,720.23], [14,645.135], [14,645.175], [14,645.70] — v Terania Pty Ltd [2008] FCA 732; BC200803830 …. [14,590.85], [11,625.60], [14,645.135] — v Thai Airways International Public Co Ltd [2012] FCA 1434; BC201210485 …. [11,590.20], [11,590.25] — v Thorn Australia Pty Ltd (2004) ASAL 55-123; (2004) ATPR 41-984 …. [11,625.60], [14,590.285], [14,740.5] — v Ticketek Pty Ltd [2011] FCA 1489; BC201109859 …. [10,760.76], [11,590.20], [11,590.25] — v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432; BC200701951 …. [11,590.25], [11,720.23], [12,010.40] — v TPG Internet Pty Ltd [2011] FCA 1254; BC201108516 …. [14,590.145], [14,590.285], [14,590.85], [14,645.135], [14,645.175], [14,740.20] — v — (2013) 304 ALR 186; 88 ALJR 176 …. [11,590.20], [14,590.140], [14,590.145], [14,590.285], [14,590.80], [14,590.85], [14,645.135], [14,645.175], [14,740.20]

— v TPG Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 …. [11,590.20], [11,590.25], [11,625.45], [11,717.10], [11,717.15], [14,645.135], [14,645.175], [14,740.20] — v Trading Post Australia Pty Ltd (2003) ATPR 41-967 …. [14,200.20] — v — [2008] FCA 1298; BC200807502 …. [14,200.20], [14,200.5] — v Trevor Davis Investments Pty Ltd (2001) ATPR 41-828 …. [11,590.25] — v Tubemakers of Australia Ltd (2000) ATPR 41-745 …. [11,590.25], [11,590.27] — v Turi Foods Pty Ltd (No 2) [2012] FCA 19; BC201200119 …. [11,720.23], [14,645.50], [14,665.20] — v Turi Foods Pty Ltd (No 4) [2013] FCA 665; BC201310773 …. [14,595.10], [14,595.25], [14,645.65], [14,665.20] — v Turi Foods Pty Ltd (No 5) [2013] FCA 1109; BC201314189 …. [11,590.20], [11,590.25] — v Tyco Australia Pty Ltd (2000) ATPR 41-740 …. [11,590.25], [11,590.27] — v — (2000) ATPR 41-760 …. [10,700.95] — v — (2000) ATPR 41-772 …. [11,590.25] — v — (2001) ATPR 41-796 …. [11,590.25] — v — (2001) ATPR 41-798 …. [11,590.25] — v Unilever Australia Ltd (1988) ATPR 41-607 …. [14,645.145] — v Universal Music Australia Pty Ltd (2001) 115 FCR 442; 201 ALR 502 …. [10,070.45], [10,700.25], [10,700.35], [10,700.40], [10,760.35], [10,760.45], [10,760.50], [10,760.55], [10,760.65], [10,785.60], [10,785.65], [10,785.75], [11,585.20] — v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002) ATPR 41-862 …. [11,590.20], [11,590.25], [11,625.30] — v UNJ Millenium Pty Ltd [2012] FCA 1123; BC201207940 …. [11,720.23] — v Vales Wine Co Pty Ltd (1996) ATPR 41-528 …. [11,590.25] — v Vanderfield Pty Ld [2009] FCA 1535; BC200911936 …. [11,625.22] — v Virgin Mobile Australia Pty Ltd (No 2) (2003) Aust Contract R 90-164 …. [11,625.60], [11,625.70], [11,625.95], [11,625.98], [14,645.175], [11,717.10], [11,717.15], [11,717.20], [14,645.135], [14,740.5] — v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444;

BC200702081 …. [14,180.77] — v Visy Industries Holdings Pty Ltd (No 3) (2007) ATPR 42-185 …. [10,690ZZRA.5], [11,590.20], [11,590.27], [11,595A.5], [11,595B.5] — v Visy Paper Pty Ltd (2000) 186 ALR 731; (2001) ATPR 41-799 …. [10,065.15], [10,065.45], [10,700.15], [10,700.70], [10,700.95], [11,590.30], [11,590.45] — v — (2001) 112 FCR 37; (2001) ATPR 41-835 …. [10,700.70] — v Visy Paper Pty Ltd (No 2) [2004] FCA 1471; BC200407679 …. [11,590.20], [11,590.25], [11,717.18] — v Westminster Retail Pty Ltd [2005] FCA 1299; BC200506929 …. [11,590.25] — v White Top Taxis Ltd (2009) 253 ALR 449 …. [10,065.20], [10,065.30], [11,590.20], [11,590.25] — v Will Writers Guild Pty Ltd [2003] FCA 1231; BC200306448 …. [11,720.7B] — v Willesee Healthcare Pty Ltd [2011] FCA 301; BC201102045 …. [11,720.23] — v Willesee Healthcare Pty Ltd (No 2) [2011] FCA 752; BC201108136 …. [11,590.20], [11,590.25], [11,590.27], [11,720.23], [14,645.55], [14,645.110], [14,665.20], [14,670.15] — v Wilson Parking 1992 Pty Ltd [2009] FCA 1580; BC200911576 …. [11,625.7], [11,717.15], [11,717.20], [11,720.23], [14,645.70] — v Wizard Mortgage Corp Ltd (2002) ATPR 41-903 …. [14,645.110], [14,645.120], [14,645.135], [14,645.70] — v Woolworths (1996 unreported) …. [11,625.98] — v Woolworths (SA) Pty Ltd (2003) 198 ALR 417; (2003) ATPR 41-941 …. [11,720.23], [11,730.11] — v Woolworths Ltd [2014] FCA 364; BC201402565 …. [11,730.12], [11,730.8] — v Woolworths Ltd (No 2) (2002) ATPR 41-890 …. [11,625.95] — v World Netsafe Pty Ltd (1999) ASAL 55-036 …. [11,625.90] — v — (2003) 127 FCR 542; (2003) ATPR 41-919 …. [11,605.24] — v Yellow Page Marketing BV (No 2) [2011] FCA 352; BC201102241 …. [11,590.20], [11,590.5], [11,625.45], [11,720.23], [14,645.125] — v Z-Tek Computer Pty Ltd (1997) 78 FCR 197; 148 ALR 339; (1997)

ATPR 41-580 …. [11,625.30], [11,625.60], [11,625.8], [11,625.98] — v Zanok Technologies Pty Ltd [2009] FCA 1124; BC200909106 …. [11,720.23], [14,600.10], [14,600.25], [14,600.35] — v Zen Telecom Pty Ltd [2014] FCA 1049; BC201408101 …. [11,590.25], [11,590.27A], [11,720.23], [14,645.105], [14,645.125], [14,895.10], [14,900.10], [14,935.10] Australian Competition and Consumer Commission (ACCC) v A Whistle & Co (1979) Pty Ltd [2015] FCA 1447; BC201512633 …. [11,590.25], [11,717.20] — v ACN 099 814 749 Pty Ltd [2016] FCA 403; BC201603217 …. [14,486.5], [14,847.0], [14,850.10], [14,850.15], [14,850.5], [14,860.5] — v ACN 117 372 915 Pty Ltd (in Liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 368; BC201502903 …. [14,605.20], [14,625.10] — v ACN 117 372 915 Pty Ltd (in Liq) (Formerly Advanced Medical Institute Pty Ltd) [2015] FCA 1087; BC201509793 …. [11,717.18] — v AGL South Australia Pty Ltd [2015] FCA 399; BC201503290 …. [11,590.20], [11,590.25] — v AMV Holding Ltd [2009] FCA 605; BC200904933 …. [11,720.23] — v ATS All Trades and Services Pty Ltd [2009] FCA 647; BC200905264 …. [14,520.15] — v Australia and New Zealand Banking Group Ltd [2015] FCAFC 103; BC201507180 …. [10,025.25], [10,070.10], [10,070.20], [10,690ZZRD.65] — v Australian Egg Corp Ltd [2016] FCA 69; BC201600514 …. [10,015.10], [10,025.10], [10,025.20], [10,690ZZRD.70], [10,700.30], [11,590.30] — v BAJV Pty Ltd [2014] FCAFC 52; BC201403136 …. [10,025.95], [11,590.20], [11,590.25], [14,645.135], [14,645.170] — v Bunavit Pty Ltd [2016] FCA 6; BC201600059 …. [14,645.170] — v Cargolux Airlines International SA [2009] FCA 342; BC200902688 …. [11,590.25] — v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305; 255 ALR 1; 80 IPR 497; 83 ALJR 691 …. [10,700.30], [14,595.10], [14,595.25] — v Chaste Corp Pty Ltd (No 7) [2015] FCA 1103; BC201510079 …. [11,605.24]

— v Chopra [2015] FCA 539; BC201504567 …. [11,590.20], [11,590.27A], [11,720.23], [14,645.170], [14,680.38] — v Chrisco Hampers Australia Ltd (No 2) [2016] FCA 144; BC201601335 …. [11,720.23], [14,645.170] — v CLA Trading Pty Ltd [2016] FCA 377; BC201602725 …. [14,613.3], [14,620.10], [14,625.10], [14,645.180], [14,645.55], [14,645.70] — v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62; BC201600510 …. [11,590.20], [11,623.5], [11,623.7], [11,720.23], [14,645.105], [14,655.15], [15,705.5] — v Coles Group Ltd [2014] FCA 363; BC201402570 …. [11,730.8], [11,730.12] — v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; BC201404735 …. [14,590.100], [14,590.140], [14,645.65], [14,665.20] — v — [2015] FCA 330; BC201502437 …. [11,590.25] — v Coles Supermarkets Australia Pty Ltd (No 2) [2014] FCA 1022; BC201408004 …. [14,590.100], [14,645.65], [14,665.20] — v Colgate-Palmolive Pty Ltd (No 2) [2016] FCA 528; BC201603631 …. [11,717.15], [11,719E.5] — v Dateline Imports Pty Ltd [2014] FCA 791; BC201406061 …. [14,645.120], [14,645.25], [14,645.60] — v Davies [2015] FCA 1017; BC201508940 …. [14,180.93] — v Derodi Pty Ltd [2016] FCA 365; BC201603643 …. [11,590.25], [11,590.27], [11,717.15], [11,717.20], [14,645.50], [14,665.20] — v Dukemaster Pty Ltd [2009] FCA 682; BC200905498 …. [14,590.315], [14,605.20], [14,645.13], [14,645.135] — v Energy Australia Pty Ltd [2014] FCA 336; BC201402530 …. [11,590.27A], [14,645.125], [14,645.135], [14,875.5], [14,880.20] — v European City Guide SL [2011] FCA 804; BC201105454 …. [14,590.85], [14,645.105] — v Gordon Superstore Pty Ltd [2014] FCA 452; BC201403444 …. [11,590.20], [11,717.15] — v Grove and Edgar Pty Ltd [2008] FCA 1956; BC200811599 …. [11,720.23] — v Hillside (Australia New Media) Pty Ltd [2015] FCA 1007 …. [14,590.140], [14,590.145], [14,645.135], [14,645.175], [14,645.70] — v Hillside (Australia New Media) Pty Ltd (t/as Bet365) (No 2) [2016]

FCA 698; BC201604562 …. [11,590.20], [11,590.25] — v Homeopathy Plus! Australia Pty Ltd (No 2) [2015] FCA 1090; BC201510011 …. [11,590.20], [11,590.25] — v Jones (No 5) [2011] FCA 49; BC201100263 …. [11,717.20], [14,645.120] — v Little Company of Mary Health Care Ltd [2015] FCA 1144; BC201510396 …. [10,785.75] — v Lux Distributors Pty Ltd [2013] FCAFC 90; BC201311903 …. [14,605.20], [14,847.0], [14,850.10] — v Lux Distributors Pty Ltd (No 2) [2015] FCA 903; BC201507959 …. [11,590.20] — v Lyoness Australia Pty Ltd [2015] FCA 1129; BC201510733 …. [14,725.20], [14,725.25], [14,725.30], [14,745.23], [14,745.25] — v Mailpost Australia Ltd [2010] FCA 369; BC201002292 …. [10,905.10], [11,625.45], [14,645.180], [14,685.35] — v Mandurvit Pty Ltd [2014] FCA 464; BC201403371 …. [11,590.20], [11,590.25], [11,590.27A], [14,645.170] — v Martinair Holland NV [2009] FCA 340; BC200902686 …. [11,590.25] — v Metcash Trading Ltd (2011) 282 ALR 464 …. [10,025.25], [10,070.15], [10,070.20], [10,070.30], [10,070.35], [10,070.45], [10,820.25], [10,820.29], [10,820.80] — v Multimedia International Services Pty Ltd [2016] FCA 439; BC201603124 …. [11,590.25], [14,605.20], [14,645.120], [14,680.20] — v NSK Australia Pty Ltd [2014] FCA 453; BC201403443 …. [10,690ZZRD.65], [11,590.20] — v Omniblend Australia Pty Ltd [2015] FCA 871; BC201507809 …. [11,590.20], [11,590.25], [11,590.27A] — v Online Dealz Pty Ltd [2016] FCA 732; BC201604998 …. [15,035.15] — v Origin Energy Ltd [2015] FCA 55; BC201500418 …. [11,590.27A], [11,590.5], [14,645.120], [14,645.135] — v Ozsale Pty Ltd [2016] FCA 1049; BC201607381 …. [15,035.15] — v Pfizer Australia Pty Ltd (2015) 110 IPR 324 …. [10,070.10], [10,070.20], [10,760.35], [10,760.45], [10,760.55], [10,760.65], [10,760.76], [10,785.50], [10,785.56], [10,785.60], [10,785.75], [10,830.5H], [11,590.27] — v Pirovic Enterprises Pty Ltd (No 2) [2014] FCA 1028; BC201407839 ….

[11,720.23], [14,645.65], [14,665.20] — v Prouds Jewellers Pty Ltd [2008] FCAFC 199; BC200811421 …. [14,590.85] — v Prysmian Cavi E Sistemi SRL (fka Prysmian Cavi E Sistemi Energia SRL) [2016] FCA 822; BC201605911 …. [10,065.20], [10,065.30], [10,065.45], [10,690ZZRD.50], [10,700.25], [10,700.30], [10,700.40], [11,675.15], [11,675.20] — v PT Garuda Indonesia Ltd [2016] FCAFC 42; BC201601861 …. [10,070.10], [10,070.30], [10,070.50], [10,690ZZRD.50], [10,830.8], [11,595.10] — v Reckitt Benckiser (Australia) Pty Ltd (No 7) [2016] FCA 424; BC201603031 …. [11,590.20], [11,590.25] — v RL Adams Pty Ltd [2015] FCA 1016; BC201508908 …. [11,590.20], [11,590.25], [11,590.27A], [14,590.140], [14,590.145] — v Safety Compliance Pty Ltd (in Liq) [2015] FCA 211; BC201501548 …. [14,645.125], [14,645.155], [14,645.50], [14,645.80], [14,750.25] — v Safety Compliance Pty Ltd (in Liq) (No 2) [2015] FCA 1469; BC201512872 …. [11,590.20], [11,590.25], [11,719E.5] — v Sampson [2011] FCA 1165; BC201108047 …. [11,717.20] — v Scoopon Pty Ltd [2014] FCA 820; BC201406258 …. [11,590.20], [14,645.120], [14,645.130], [14,645.170] — v Seal-A-Fridge Pty Ltd (2010) 268 ALR 321 …. [10,905.10], [14,605.20] — v SensaSlim Australia Pty Ltd [2014] FCA 1035 …. [14,685.10] — v SensaSlim Australia Pty Ltd (in Liq) (No 7) [2016] FCA 484; BC201603506 …. [11,590.20], [11,590.25], [11,719E.5] — v Singapore Airlines Cargo Pte Ltd (2009) 256 ALR 458 …. [10,070.50] — v Skins Compression Garments Pty Ltd [2009] FCA 710; BC200905786 …. [10,800.45] — v SMS Global Pty Ltd [2011] FCA 855; BC201105805 …. [11,590.20], [11,590.25], [11,590.5], [14,645.125], [14,645.13] — v Snowdale Holdings Pty Ltd [2016] FCA 541; BC201603705 …. [14,645.55], [14,665.20] — v Societe Air France [2009] FCA 341; BC200902687 …. [11,590.25] — v South East Melbourne Cleaning Pty Ltd (in liq) (formerly Known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) [2015] FCA

25; BC201500239 …. [10,905.10], [11,590.20], [11,590.27], [11,719E.5], [11,720.23], [14,605.20], [14,610.20], [14,685.10] — v South East Melbourne Cleaning Pty Ltd (in liq) (Formerly Known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) (No 2) [2015] FCA 257; BC201501832 …. [11,590.20] — v Spreets Pty Ltd [2015] FCA 382; BC201504430 …. [11,590.25], [14,645.130], [14,645.170] — v Taxsmart Group Pty Ltd [2014] FCA 487; BC201403564 …. [11,720.23] — v Telstra Corp Ltd (2009) 176 FCR 203; 256 ALR 615 …. [14,177AB.5], [14,177AQB.10] — v TF Woollam & Son Pty Ltd [2011] FCA 973; BC201106386 …. [10,065.15], [10,690ZZRD.50], [10,690ZZRD.65], [10,700.25], [10,700.30], [10,700.40] — v Titan Marketing Pty Ltd [2014] FCA 913; BC201406907 …. [11,590.27A], [14,605.20], [14,645.125], [14,740.20], [14,875.5], [14,885.10], [14,900.10] — v Trading Post Australia Pty Ltd [2011] FCA 1086; BC201107288 …. [14,595.10], [15,560.10] — v Visa Inc [2015] FCA 1020 …. [10,785.75], [11,590.20] — v Visy Industries Holdings Pty Ltd (2006) ATPR 42-102 …. [10,690ZZRD.50], [14,200.3] — v Woolworths Ltd [2016] FCA 44; BC201600666 …. [11,590.25], [11,717.10], [14,645.110], [14,645.50], [14,665.20], [15,160.5] — v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 …. [10,025.20], [10,065.20], [10,065.23], [10,065.36], [10,065.45], [10,155.5], [10,690ZZRD.50], [10,690ZZRD.55], [10,690ZZRD.65], [10,690ZZRD.70], [10,700.14], [10,700.25], [10,700.30], [10,700.35], [10,700.45], [10,700.63], [11,675.20] Australian Competition and Consumer Commission (ASIC) v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324 …. [11,625.35], [14,605.20] Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382; BC201102108 …. [11,590.5], [11,590.20], [11,590.25], [11,720.23] Australian Consumer and Competition Commission v Camavit Pty Ltd [2013] FCA 1397; BC201315969 …. [14,645.170]

Australian Consumer and Competition Commission (ACCC) v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998; BC201407650 …. [11,590.20], [11,717.20], [11,719E.5] Australian Energy Regulator v Snowy Hydro Ltd [2014] FCA 1013; BC201407772 …. [10,605.10] — v Snowy Hydro Ltd (No 2) [2015] FCA 58; BC201500478 …. [10,605.10] — v Stanwell Corporation Ltd [2011] FCA 991 …. [10,605.10] Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1988) 81 ALR 701; (1988) ATPR 40-874 …. [11,625.25] — v — (1991) 27 FCR 149; 98 ALR 670; (1991) ATPR 41-079 …. [14,590.330] Australian Gas Light Co v Australian Competition and Consumer Commission (No 2) (2003) ATPR 41-962 …. [10,820.74], [14,285.10] — v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317; (2003) ATPR 41-966 …. [10,820.5], [10,820.20], [10,820.25], [10,820.27], [10,820.29], [10,820.40], [10,820.74], [10,820.80], [11,855.19] Australian Home Loans Ltd t/as Aussie Home Loans v Phillips & Technocrat Computing Pty Ltd (1998) 40 IPR 392; (1998) ASAL 55011; (1998) ATPR 41-626 …. [14,645.100], [14,645.125] Australian Industrial Court, Re; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235; 13 ALR 273; 51 ALJR 362; (1977) ATPR 40-017 …. [10,025.10], [11,605.5] Australian Maintenance and Cleaning Pty Ltd v AMA Commercial Cleaning (NSW) Pty Ltd [2011] NSWCA 103; BC201103226 …. [10,905.10] Australian Mutual Providence Society v Specialist Funding Consultants Pty Ltd (1991) ATPR 41-137 …. [11,655.70] Australian Naturalcare Products Pty Ltd v McGrath (2006) 237 ALR 389 …. [11,655.20], [14,590.195] Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 47 ALR 497; 1 IPR 119; (1983) ASC 55-246; (1983) ATPR 40-349; 66 FLR 453 …. [14,590.330], [14,595.10] — v — (1984) 58 ALR 549 …. [14,590.155] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; BC200800758 …. [11,590.20]

Australian Petroleum Pty Ltd v Australian Competition and Consumer Commission (1997) 73 FCR 75; 143 ALR 381 …. [11,730.15] Australian Postal Corp v Digital Post Australia Pty Ltd (No 2) (2012) 96 IPR 532 …. [14,590.85] Australian Prime Realty Pty Ltd v Galbid Pty Ltd (1994) ATPR 41-366 …. [14,590.255] Australian Protective Electronics Pty Ltd v Pabflow Pty Ltd (1996) 35 IPR 327; (1996) ATPR 41-524 …. [11,655.20], [14,590.70], [14,590.160], [14,590.175] Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; BC200510133 …. [10,650.5] Australian Rugby Union Ltd v Hospitality Group Pty Ltd (2000) 173 ALR 702; (2000) ATPR 41-768 …. [10,070.10], [10,070.20], [10,150.5], [11,655.45] — v — [1999] FCA 1136; BC9905017 …. [11,625.35], [11,625.70] Australian Securities & Investments Commission v Cash King Pty Ltd [2005] FCA 1429; BC200507700 …. [14,590.30] — v National Exchange Pty Ltd (2005) 148 FCR 132; 56 ACSR 131 …. [14,605.5], [14,605.20], [14,605.55] Australian Securities and Investments Commission v Accounts Control Management Services Pty Ltd [2012] FCA 1164; BC201208184 …. [14,590.30] — v Adler (2002) 42 ACSR 80; 20 ACLC 1146 …. [11,719E.5] — v Channic Pty Ltd (No 4) [2016] FCA 1174; BC201608412 …. [14,605.55] — v Forge [2002] NSWSC 760; BC200204989 …. [11,590.27] — v GE Capital Finance Australia, in the matter of GE Capital Finance Australia [2014] FCA 701 …. [14,590.30] — v Ingleby (2013) 275 FLR 171; (2013) 93 ACSR 274 …. [11,590.27] — v Matthews (1999) 32 ACSR 404 …. [11,605.24] — v National Exchange Pty Ltd (2003) 202 ALR 24; 47 ACSR 128 …. [14,590.80] — v Tower Australia Ltd [2003] FCA 660; BC200302555 …. [14,590.30] Australian Securities and Investments Commission (ASIC) v Cash Store Pty Ltd (in liq) [2014] FCA 926 …. [14,605.20]

— v Cash Store Pty Ltd (in liq) (No 2) [2015] FCA 93; BC201500806 …. [11,590.20] — v Cycclone Magnetic Engines Inc (2009) 224 FLR 50; 71 ACSR 1 …. [14,590.30], [14,645.45] — v Preston [2005] FCA 1805; BC200510771 …. [14,590.30] — v Superannuation Warehouse Australia Pty Ltd [2015] FCA 1167; BC201510541 …. [11,590.20], [14,590.30] Australian Securities Commission v Nomura International Plc (1998) 89 FCR 301; 160 ALR 246; 29 ACSR 473 …. [14,590.30], [14,590.70], [14,590.120] Australian Super Developments Pty Ltd v Marriner [2014] VSC 464; BC201408485 …. [14,600.35] Australian Surf Life Saver Pty LtdvS&I Publishing Pty Ltd (1998) 43 IPR 595; (1998) ATPR 41-661 …. [14,590.270] Australian Wool Growers Assn Ltd, Re (2000) ATPR 41-774 …. [12,130.25] Australian Wool Growers Assn Ltd, Re Application by [1999] ACompT 4 …. [11,855.21] Australian Wool Innovation Ltd v Newkirk (2005) ATPR 42-053 …. [10,740.30], [10,740.40], [10,740DB.5] Auswest Timbers Pty Ltd v Secretary to Dept of Sustainability and Environment (2010) 241 FLR 360 …. [10,017.15], [10,025.100], [10,025.95], [14,520.15], [14,590.140] Aut 6 Pty Ltd v Wellington Place Pty Ltd (1993) ATPR 41-202 …. [10,070.25], [10,760.76] Auyeung v Chan [1999] NSWCA 417; BC9907745 …. [11,655.50], [14,590.315] AV Jennings Ltd v First Provincial Building Society Ltd (1996) ATPR 41494 …. [11,625.70] Avis v Mark Bain Constructions Pty Ltd (2011) 82 ACSR 655 …. [11,655.50], [14,590.310], [14,650.35] Avoca Consultants Pty Ltd v Millennium3 Financial Services Pty Ltd (2009) 179 FCR 46; 73 ACSR 307 …. [14,590.30] B & W Cabs Ltd v Brisbane Cabs Pty Ltd (1991) 30 FCR 177; 21 IPR 563; (1991) ATPR 41-126 …. [14,590.130] Bailey v Veda Advantage Information Services and Solutions Ltd (No 2) [2008] FCA 730; BC200803755 …. [14,595.15], [14,595.25]

Baillieu Frank (Gold Coast) Pty Ltd v Susan Pender Jewellery Pty Ltd (1997) ATPR 41-542 …. [11,655.20] Bakarich v Commonwealth Bank of Australia (2007) Aust Contract R 90264 …. [14,600.35] Baker v Bolton (1808) 1 Camp 493; 170 ER 1033 …. [10,115.5] Ballard v Sperry Rand Australia Ltd (1975) 6 ALR 696; (1975) ATPR 40006 …. [14,645.20] Bank of New South Wales v Commonwealth (1948) 76 CLR 1 …. [14,590.55] Banksia Mortgages Ltd v Croker [2010] NSWSC 1447; BC201009750 …. [14,600.35] Barbaro v R; Zirilli v R (2014) 305 ALR 323; 88 ALJR 372 …. [11,590.27A] Barcar Pty Ltd v Carpatsea Pty Ltd [2008] NSWSC 344; BC200802604 …. [11,655.20], [11,655.50], [14,590.320] Barker v Commonwealth Bank of Australia [2012] FCA 942; BC201206576 …. [10,025.95], [14,590.55] Barnard v Australian Soccer Federation (1988) ATPR 40-862 …. [10,025.85] Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389; 105 ALR 339; (1991) ATPR 41-162 …. [10,025.95], [14,590.300] Barton v Croner Trading Pty Ltd (1984) 3 FCR 95; 54 ALR 541; (1984) ATPR 40-470 …. [14,645.30] — v Westpac Banking Corp (1983) 50 ALR 397; 76 FLR 101; (1983) ASC 55-276; (1983) ATPR 40-388 …. [14,680.10], [14,680.15], [14,680.20] Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399 …. [10,017.15], [10,160.20], [11,585.18], [14,285.13] Bate v International Computers (Aust) Pty Ltd (1984) 2 FCR 526; (1984) ATPR 40-475 …. [11,720.27] Bateman v Slatyer (1987) 71 ALR 553; 8 IPR 33; (1987) ASC 55-559; (1987) ATPR 40-762 …. [14,590.225] Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200; BC201208415 …. [10,160.18], [14,590.165], [14,590.30], [14,590.330] Batten v CTMS Ltd [1999] FCA 1576; BC9907364 …. [10,015.15], [11,585.60]

Bauer v Power Pacific International Media Pty Ltd (2007) ASAL 55-166 …. [11,590.25], [11,590.27], [11,605.24], [14,700.15], [14,715.5] Bavarian Hospitality Group Pty Ltd v SakeSake Izakaya Pty Ltd [2010] FCA 1102; BC201007462 …. [11,625.45] BBB Constructions Pty Limited v Aldi Foods Pty Limited [2010] NSWSC 1352; BC201009075 …. [14,590.160] Beach Petroleum NL v Johnson (1993) 43 FCR 1; 115 ALR 411; (1993) ATPR (Digest) 46-108 …. [14,590.160] Beagle Management Ltd v Targridge Ltd (1997) ATPR (Digest) 46-166 …. [10,025.95], [11,655.35], [11,720.23] Bedford Industries Rehabilitation Assn Inc v Pinefair Pty Ltd (1996) ATPR 41-448 …. [11,625.35] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 168 CLR 618; [1968] ALR 469 …. [11,625.35], [11,625.45] Begbie v State Bank of New South Wales Ltd (1993) ASC 56-254; (1994) ATPR 41-288; (1994) Aust Contract R 90-038 …. [14,600.35] Bell v Australasian Recyclers (WA) Pty Ltd (1983) 50 ALR 242; 78 FLR 171; (1983) 1 IPR 496; (1983) ATPR 40-408 …. [14,590.155] — v — (1986) ATPR 40-644 …. [11,585.65], [14,520.50] Bell Group Ltd v Westpac Banking Corp (2000) 173 ALR 427 …. [11,710.10] Benchmark Certification Pty Ltd v Standards Australia International Ltd [2004] FCA 1489; BC200407826 …. [10,070.25] Benlist Pty Ltd v Olivetti Australia Pty Ltd (1990) ATPR 41-043 …. [11,720.6] Bennett v Elysium Noosa Pty Ltd (in liq) (2012) 202 FCR 72 …. [14,520.35], [14,590.130], [14,590.310], [14,650.40] Bentley Fragrances Pty Ltd v GDR Consultants Pty Ltd (1985) 11 FCR 29; 5 IPR 183; (1985) ASC 55-418; (1985) ATPR 40-589 …. [14,590.330] Berlaz Pty Ltd v Fine Leather Care Products Ltd (1991) ATPR 41-118 …. [10,095.13], [10,700.95], [10,760.76], [10,765.5] Berryman v Hames Sharley (WA) Pty Ltd [2008] WASC 59; BC200802786 …. [11,655.20], [11,655.25] Berwick Ltd v Gray (1976) 133 CLR 603; 8 ALR 580 …. [10,017.20] Betta Foods Australia Pty Ltd v Betta Fruit Bars Pty Ltd (1998) 41 IPR 347; (1998) ATPR 41-624 …. [14,590.250]

Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325; 59 ALR 334; (1985) ASC 55-401; (1985) ATPR 40-565 …. [10,025.95], [14,590.80] BHG Nominees Pty Ltd v Ellis Young Investments Pty Ltd (in liq) [2000] FCA 419; BC200001549 …. [14,590.85] BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 247 ALR 104 …. [10,650.10], [10,650.5], [10,650B.7], [10,650B.10], [10,650G.5A] — v — (2008) 236 CLR 145; 249 ALR 418 …. [10,650B.5], [10,650B.7], [10,650G.5A], [10,650W.20] — v — [2006] FCA 1764; BC200610497 …. [10,650.5], [10,650B.5], [10,650B.7], [10,650G.5A] BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 3) [2009] FCA 1087; BC200908889 …. [14,645.80] Bialkower v Acohs Pty Ltd (1998) 83 FCR 1; 154 ALR 534; (1999) ATPR 41-685 …. [11,585.20], [11,655.35], [11,720.20] Biddulph v De Vries (1998) 43 IPR 144 …. [11,625.40] Bing Software Pty Ltd v Bing Technologies Pty Ltd (2009) 180 FCR 191 …. [14,590.260] Bisling Holdings Pty Ltd v Alfred Chater Pty Ltd (1995) ATPR 41-397 …. [11,720.7C] Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; BC200606641 …. [11,695.5], [11,720.27] Blacker v National Australia Bank Ltd (2001) ASAL 55-059 …. [11,655.70] — v — [2000] FCA 681; BC200002725 …. [11,720.27], [14,520.35], [14,600.15] Blackmagic Design Pty Ltd v Overliese [2010] FCA 13; BC201000102 …. [10,025.95] Blacktown City Council v Anavak Pty Ltd (1992) ATPR 41-191 …. [14,590.160] Blomley v Ryan (1956) 99 CLR 362 …. [14,600.35] Bluehive Pty Ltd v Dukemaster Pty Ltd [2000] FCA 1307; BC200005483 …. [11,655.25], [14,590.315] — v Dukemaster Pty Ltd (No 2) [2001] FCA 1621; BC200107074 …. [14,590.295] BMD Major Projects Pty Ltd v Victorian Urban Development Authority

[2007] VSC 409; BC200708887 …. [14,590.225] — v — [2009] VSCA 221; BC200909366 …. [14,590.140] BMI Ltd v Federated Clerks Union of Australia (1983) 76 FLR 141 …. [11,720.23] BMW Australia Finance Ltd v Miller & Associates Insurance Broking Pty Ltd [2009] VSCA 117; BC200904871 …. [11,655.22], [14,090B.5], [14,590.240] BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452 …. [11,717.18] Bob Jane Corp Pty Ltd v ACN 149 801 141 Pty Ltd [2015] FCA 743; BC201506786 …. [11,605.24] Body Bronze International Pty Ltd v Fehcorp Pty Ltd [2011] VSCA 196 …. [14,605.20] — v Soleil Tanning Oxford Pty Ltd [2007] FCA 371; BC200701626 …. [14,600.35] Bonan v Hadgkiss (2006) 92 ALD 116; 157 IR 278 …. [14,180.95] Bond v Barry (2007) 73 IPR 490; (2007) ATPR 42-187 …. [14,595.20], [14,595.35] — v — (2008) 173 FCR 106; 249 ALR 110 …. [14,595.15], [14,595.20], [14,595.35] Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215; 71 ALR 615 …. [10,025.95] Boots Co (Aust) Pty Ltd v Smithkline Beecham Healthcare Pty Ltd (1995) 33 IPR 266; (1996) ATPR 41-459 …. [11,625.95] Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374; 195 ALR 609; 77 ALJR 623 …. [10,070.10], [10,070.20], [10,070.45], [10,070.45], [10,650G.15], [10,760.10], [10,760.45], [10,760.50], [10,760.55], [10,760.65], [10,760.71] Boral Formwork & Scaffolding Pty Ltd v Action Makers Ltd (2003) ATPR 41-953 …. [14,600.35], [14,605.7], [14,605.20] Borch v Answer Products Inc [2000] QSC 379; BC200006441 …. [15,200.15] Borzi Smythe Pty Ltd v Campbell Holdings (NSW) Pty Ltd [2008] NSWCA 233; BC200808490 …. [14,590.230] Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty

Ltd (2006) 70 IPR 146 …. [11,655.73] Bourke v State Bank of New South Wales (1990) 170 CLR 276; 93 ALR 460; 64 ALJR 406; (1990) ATPR 41-033 …. [10,025.45] Bovino Pty Ltd v Casey Group Holdings Pty Ltd [2010] VSC 391; BC201006634 …. [14,590.310] Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (No 2) [2009] FCA 650; BC200905309 …. [11,605.24] Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (2007) ANZ ConvR 297 …. [11,655.70], [14,605.20] Bowin Designs Pty Ltd v Australian Consumers Association BC9605993 …. [14,595.15] Bowler v Hilda Pty Ltd (1998) 80 FCR 191; 153 ALR 95; (1998) ATPR 41625 …. [14,520.50], [14,520.55], [14,590.225], [14,590.310], [14,650.10], [14,650.40] — v — [2000] FCA 899; BC200003837 …. [11,585.20] BP Australia Ltd v Trade Practices Commission (1986) 12 FCR 118; 66 ALR 148 …. [10,800.45] BR Gamer (Investments) Pty Ltd v GA Gamer (1993) ATPR 41-200 …. [14,590.175], [14,590.120], [14,590.250] Brabazon v Western Mail Ltd (1985) 58 ALR 712; (1985) ATPR 40-549 …. [10,115.5], [11,655.35] Bradken Consolidated Ltd v Broken Hill Pty Co Ltd (1979) 145 CLR 107; 24 ALR 9 …. [10,015.35], [10,017.15], [10,017.20], [10,160.20], [11,585.18] Bradmill Industries Ltd v B & S Products Pty Ltd (1980) 53 FLR 385; (1980) ATPR 40-191 …. [14,590.255] Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 32 ALR 328; 44 FLR 182; (1980) ATPR 40-179 …. [14,180.40] Braverus Maritime Inc v Port Kembla Coal Terminal Ltd (2005) 148 FCR 68; (2006) ATPR (Digest) 46-267 …. [10,025.95], [14,590.55] Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1; 190 ALR 1 …. [10,155.5], [10,155.7], [10,155.8], [10,155.9], [11,585.15] — v — (2003) 130 FCR 317; 200 ALR 607 …. [10,155.9], [14,285.10] — v — (2003) ATPR 41-906 …. [11,625.20] Bridge Stockbrokers Ltd v Bridges Stockbrokers Ltd (1984) 4 FCR 460; 57 ALR 401; (1985) ATPR 40-502 …. [14,590.90], [14,590.100],

[14,590.105] Bridges v Bridge Stockbrokers Ltd (1984) 4 FCR 21; (1984) ASC 55-339; (1984) ATPR 40-477 …. [14,590.255] Bright v Femcare Ltd (1999) 166 ALR 743; (1999) ATPR 41-720 …. [11,695.10] — v — (2000) 175 ALR 50 …. [15,200.40] Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334 …. [10,760.65] Brisbane Broncos Leagues Club v Alleasing Finance Australia Pty Ltd [2011] FCA 106; BC201100501 …. [10,785.50] Brisbane Gas Co Ltd v Hartogen Energy Ltd (1982) 42 ALR 685; 60 FLR 343; (1982) ATPR 40-304 …. [11,625.65] Bristol-Myers Squibb Australia Pty Ltd v Astra Pharmaceuticals Pty Ltd (1999) 45 IPR 144 …. [11,625.35], [14,590.280] British Basic Slag Ltd Agreements, Re [1963] 2 All ER 807; [1963] 1 WLR 727 …. [10,700.25], [10,700.95] Brock v Terrace Times Pty Ltd (1982) 40 ALR 97; 56 FLR 464; (1982) ATPR 40-267; (1982) 1 TPR 24 …. [14,590.250], [14,590.270] Broken Hill Proprietary Co Ltd v Trade Practices Tribunal (1980) 31 ALR 401; 47 FLR 384; (1980) ATPR 40-173 …. [12,130.20] Brookfield & Septic Products Australia Pty Ltd (in liq) v Davey Products Pty Ltd, ITT Flygt Ltd & White International Pty Ltd (1996) 14 ACLC 303 …. [11,655.73], [14,770.25] Brooks v R & C Products Pty Ltd (1996) ATPR 41-537 …. [15,200.5] Brookteck Pty Ltd v Lumocol Australia Pty Ltd BC9605072 …. [14,590.320] Bropho v Western Australia (1990) 171 CLR 1; 93 ALR 207 …. [10,017.15], [10,160.20], [11,585.18] Brophy v NIAA Corp Ltd (in liq) (1995) ATPR 41-399 …. [14,590.90] Brother Industries Ltd v Dynamic Supplies Pty Ltd (2007) 163 FCR 530; 73 IPR 507 …. [14,645.105], [14,645.180], [14,645.50] — v — [2007] FCA 1694; BC200709645 …. [11,625.65] Brown v Australian Harvestore Products Pty Ltd (1989) ATPR (Digest) 46051 …. [14,590.165] — v Jam Factory Pty Ltd (1981) 35 ALR 79; 53 FLR 340; (1981) ATPR 40-

213; [1981] ANZ ConvR 156 …. [11,655.25], [14,590.10], [14,590.20], [14,590.60], [14,590.315], [14,650.35] — v Riverstone Meat Co Pty Ltd (1985) 60 ALR 595; (1985) ATPR 40-576 …. [11,680.15] Brown Shoe v United States (1962) 370 US 294 …. [10,070.20], [10,070.25] Browne v Dunn (1893) 6 R 67 …. [11,585.16] Brueckner v Carroll (1995) ATPR 41-379 …. [14,590.85], [14,590.90], [14,590.120] — v The Satellite Group (Ultimo) Pty Ltd [2002] NSWSC 378 …. [14,600.35] BT Australia Pty Ltd v NSW & Telstra Corp Ltd (1999) ATPR (Digest) 46187 …. [10,760.68] Builders Warehouse Group Ltd v Multinail Australia Pty Ltd BC9801060 …. [14,590.125] Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; 99 ALR 735; (1991) ATPR 41-092 …. [10,095.13], [10,700.95], [10,740.20], [10,740.65], [10,745.45] Bullabidgee Pty Ltd v McClear [2011] NSWCA 259; BC201106778 …. [11,655.20], [14,590.225] — v McCleary [2010] NSWSC 145; BC201001031 …. [14,590.310] Bullock v Federated Furnishings Trade Society of Australasia (1985) ATPR 40-505 …. [10,065.30], [10,065.45] Bunnings Group Ltd v Laminex Group Ltd (2006) 153 FCR 479; 230 ALR 269 …. [10,055.40] Burg Design Pty Ltd v Wolki (1999) 162 ALR 639; (1999) ATPR 41-689 …. [14,590.225], [14,590.320] Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 18 FCR 212; 76 ALR 173; (1988) ATPR 40-835 …. [10,017.20], [11,695.10] Burica Pty Ltd v Tops To Bottoms (Aust) Pty Ltd (1997) 39 IPR 447; (1998) ATPR 41-621 …. [14,590.250] Burke v LFOT Pty Ltd (2000) ATPR 41-781; [2001] ANZ ConvR 41 …. [11,720.20], [14,590.240] — v — (2002) 187 ALR 612; 76 ALJR 749 …. [11,720.20] Burt v Australia and New Zealand Banking Group Ltd (1994) ATPR (Digest) 46-123 …. [14,605.20]

Business & Professional Leasing Pty Ltd [2008] NSWSC 902; BC200807868 …. [10,055.25], [15,915.10] Butcher v Lachlan Elder Realty Pty Ltd (2002) 55 NSWLR 558 …. [14,590.90] — v — (2004) 212 ALR 357; 79 ALJR 308 …. [14,590.225], [14,590.230], [14,590.310], [14,590.60], [14,590.70], [14,590.80], [14,590.90], [14,595.10] Byers v Dorotea Pty Ltd (1986) 69 ALR 715; (1987) ASC 55-534; (1987) ATPR 40-760; [1987] ANZ ConvR 121; (1987) V ConvR 54-208 …. [14,590.225], [14,590.310] C-Shirt Pty Ltd v Barnett Marketing and Management Pty Ltd (1996) 37 IPR 315; (1997) ATPR (Digest) 46-168 …. [14,590.270] CA Henschke & Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63; (2000) ATPR (Digest) 46-199 …. [14,590.90], [14,590.95], [14,590.110] — v — (2000) 52 IPR 42; (2001) ATPR 41-793 …. [14,590.250] Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224; 117 ALR 253 …. [11,695.10], [11,695.15] Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88; BC200800675 …. [14,180.77] — v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397; 239 ALR 662 …. [14,590.220], [14,590.270] — v Darrell Lea Chocolate Shops Pty Ltd (No 2) (2006) ATPR 42-113 …. [14,590.220] — v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136; 69 IPR 23 …. [14,590.100], [14,590.20], [14,590.270] — v Darrell Lea Chocolate Shops Pty Ltd (No 8) (2008) 75 IPR 557; (2008) ATPR 42-229 …. [14,590.120] CAJ Investments Pty Ltd v Lourandos (1996) 83 FCR 189 …. [11,655.25], [11,655.70] Callander v Ladang Jalong (Aust) Pty Ltd [2005] WASC 159; BC200505099 …. [11,655.25] Callinan v Gilro-ERG Pty Ltd BC9605444 …. [14,590.300], [14,655.15] Calmao Pty Ltd v Stradbroke Waters Co-owners Co-op Society Ltd (1989) 21 FCR 28; 89 ALR 507; (1989) ATPR 40-984 …. [11,720.27] Caltex Australia Petroleum Pty Ltd v Charben Haulage Pty Ltd [2005] FCAFC 271; BC200511078 …. [14,590.20]

Caltex Petroleum Pty Ltd v Australian Competition and Consumer Commission (2001) ATPR 41-847 …. [11,625.85] Camell Laird & Co Ltd v Manganese Bronze & Brass Co Ltd [1934] AC 402; [1934] All ER Rep 1; (1934) 50 TLR 350; 151 LT 442 …. [14,770.10] Cameron v Goldtek Australia Pty Ltd (1996) ATPR 41-513 …. [11,655.25] — v Qantas Airways Ltd (1995) 55 FCR 147; (1995) ATPR 41-417 …. [11,625.45], [11,655.21], [11,720.23], [14,520.15], [14,605.20] Campaign Master (UK) Ltd v Forty Two International Pty Ltd [2008] FCA 979; BC200804998 …. [11,625.35] Campbell v BackOffice Investments Pty Ltd (2008) 66 ACSR 359 …. [11,655.20], [11,655.25], [11,655.50], [11,720.7C] — v Backoffice Investments Pty Ltd (2009) 238 CLR 304; 257 ALR 610 …. [14,590.100], [14,590.140], [14,590.195], [14,590.85] — v Metway Leasing Ltd (1998) ASAL 55-001; (1998) ATPR 41-630 …. [14,750.20] Campomar Sociedad Ltd v Nike International Ltd (2000) 169 ALR 677; 46 IPR 481; (2000) ATPR (Digest) 46-201 …. [10,830.5H], [14,590.120], [14,590.80], [14,590.85] Campomar Sociedad, Limitada v — (1998) 85 FCR 331; 156 ALR 316; (1998) ATPR (Digest) 46-185 …. [11,625.65], [14,590.120] — v — (2000) 202 CLR 45 …. [14,590.73] Canon Australia Pty Ltd v Patton (2007) 244 ALR 759; (2007) ATPR 42183 …. [14,605.20] Cantarella Bros Pty Ltd v Valcorp Fine Foods Pty Ltd (2002) ASAL 55-073; (2002) ATPR 41-856 …. [14,590.85] Capital Networks Pty Ltd v.au Domain Administration Ltd (2004) ATPR (Digest) 46-254; (2004) Aust Contract R 90-203 …. [10,905.6], [10,905.7], [10,905.8] Caple v All Fasteners (WA) (a firm) [2005] FCA 1558; BC200509360 …. [11,585.15], [11,585.16], [11,585.20] Carazi Pty Ltd v Blow Dry Franchising Pty Ltd [2015] NSWSC 28; BC201501069 …. [11,655.58] Cardile v LED Builders Pty Ltd (1999) 98 CLR 380; 162 ALR 294; 73 ALJR 657 …. [11,625.90] Carey v Freehills [2013] FCA 954; BC201313222 …. [14,590.165]

Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd (2001) 112 FCR 336 …. [11,655.70], [15,875.5] — v — (2004) ASAL 55-130; (2004) ATPR 42-014 …. [14,545.10], [14,545.30], [15,195.0], [15,200.40], [15,220.10] Cargill Inc v Monfont of Colorado Inc (1986) 479 US 104 …. [10,760.70] Carlton v Pix Print Pty Ltd [2000] FCA 337; BC200001504 …. [11,655.50], [14,590.320] Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing (NSW) Ltd (1987) 16 FCR 351; (1987) ATPR 40-820 …. [10,065.20], [10,065.45] — v Bond Brewing NSW Ltd (1987) 76 ALR 633 …. [11,625.45] Carnegie Corporation Ltd v Pursuit Dynamics plc [2007] FCA 1010; BC200705189 …. [11,695.10], [11,695.15] Carpentaria Transport Pty Ltd (1997) ATPR (NCC) 70-003 …. [10,650G.10] Carpet Call Pty Ltd v Chan (1987) ASC 55-553; (1987) ATPR (Digest) 46025 …. [10,055.40] Caruth v Roche Products Pty Ltd (1992 unreported) …. [11,695.10] Cash Converters Pty Ltd v Tallut Pty Ltd (2005) ATPR 42-074 …. [11,625.35], [14,590.80] Cassidy v Medical Benefits Fund of Australia Ltd (No 2) (2003) 12 ANZ Ins Cas 61-549; (2002) ATPR 41-892 …. [11,625.95], [14,590.140], [14,590.30], [14,590.80], [14,645.120], [14,645.180], [14,645.45], [14,670.10] — v NRMA Health Pty Ltd (2002) ATPR 41-891 …. [11,585.15], [11,585.73], [11,625.13], [14,590.295], [14,590.30] — v Saatchi & Saatchi Australia Pty Ltd (2004) 134 FCR 585; (2004) ATPR 41-980 …. [11,585.73], [11,625.13], [14,590.30], [14,590.105], [14,595.10], [14,645.45] Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; 67 ALR 553 …. [11,625.35], [11,625.40] — v Williams & Hodgson Transport Pty Ltd (1985) 7 FCR 509; 64 ALR 536; (1986) ATPR 40-653 …. [10,785.65], [10,785.75] — v — (1986) 162 CLR 395 …. [10,785.65] Cat Media Pty Ltd v Opti-Healthcare Pty Ltd (2003) ASAL 55-103; (2003) ATPR 41-933 …. [14,590.270] Cathay Pacific Airways Ltd v Assistant Treasurer and Minister for

Competition Policy and Consumer Affairs (2010) 186 FCR 168; 269 ALR 434 …. [10,155.10] Cauvin v Philip Morris Ltd [2006] NSWSC 185; BC200602018 …. [11,655.20] CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd (2005) ASAL 55-139; (2005) ATPR 42-042; [2004] VSCA 232 …. [14,590.160] Cedric Constructions Pty Ltd v Elders Finance & Investment Co Ltd (1988) ATPR 40-879 …. [14,520.15], [14,590.95], [14,590.325] Cehave NV v Bremer Handelsgesellschaft mbH [1976] QB 44; [1975] 3 All ER 739; [1975] 2 Lloyd’s Rep 445 …. [14,770.10] Central Equity Ltd v Central Corp Pty Ltd (1995) 32 IPR 481; (1995) ATPR 41-443 …. [14,590.100], [14,590.70], [14,650.15], [14,650.30] Centurion Roller Shutters Pty Ltd v Automatic Technology (Australia) Pty Ltd (1999) 47 IPR 126; (1999) ATPR 41-731 …. [14,590.220] Ceravolo v Peter Economou Real Estate Pty Ltd (1985) ASC 55-448; (1985) ATPR 40-635 …. [14,590.310] CG Berbatis Holdings Pty Ltd v Australian Competition and Consumer Commission (2001) 185 ALR 555; (2001) ATPR 41-826 …. [14,600.35], [14,605.20] CH Real Estate Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37; BC201001890 …. [14,590.310] Champion Truck Bodies Pty Ltd v Capital Finance Australia Ltd [2010] FCA 332; BC201001982 …. [15,905.5] Chan Cuong Su v Direct Flights International Pty Ltd (1998) ATPR 41-662 …. [10,760.53], [10,760.68] Change Group International PLC, The v City Exchange Mart Pty Ltd [2013] FCA 1048; BC201313789 …. [14,590.250] Channel Seven Brisbane Pty Ltd v Australian Competition & Consumer Commission (2008) 249 ALR 97; 77 IPR 150 …. [14,595.10], [14,595.25] Chapman v Luminis Pty Ltd (No 4) (2001) 123 FCR 62; (2002) ATPR (Digest) 46-214 …. [10,025.95], [10,160.13], [11,655.70], [11,655.73], [14,590.10], [14,590.165], [14,590.55] Charben Haulage Pty Ltd v Environmental & Earth Sciences Pty Ltd (2004) ATPR (Digest) 46-252 …. [14,590.230]

Charles Lloyd Property Group Pty Ltd v Buchanan [2013] VSC 148; BC201301601 …. [14,590.160] Charlick Trading Pty Ltd v Australian National Railways Commission [1999] FCA 452; BC9901713 …. [10,095.10], [10,760.65], [10,760.71] Charter Pacific Corp Ltd v Belrida Enterprises Pty Ltd [2002] QSC 254; BC200205011 …. [11,655.25], [14,590.125] Chase Manhattan Overseas Corp v Chase Corp Ltd (1985) 9 FCR 129; 63 ALR 345; 6 IPR 59; (1986) ATPR 40-661 …. [14,590.90], [14,590.120], [14,590.130], [14,590.250] Cheers v Entercorp Finance Pty Ltd (1999) 33 ACSR 97 …. [11,695.10] Cheong v Wong (2001) 34 MVR 359 …. [15,220.10] Chiarabaglio v Westpac Banking Corp (1989) ASC 55-932; (1989) ATPR 40-971 …. [14,590.325] Chief Commissioner of State Revenue v Pacific National (ACT) Ltd (2007) 70 NSWLR 544 …. [10,650N.10] Chime Communications Pty Ltd, Application by (2008) 222 FLR 323; [2008] ACompT 4 …. [10,650.5], [14,177.5], [14,177AT.10] Chime Communications Pty Ltd, Application by (No 2) (2009) 257 ALR 765 …. [10,025.25], [10,070.20], [14,177AB.35], [10,760.50], [14,177AB.10], [14,177AB.15], [14,177AB.25], [14,177AB.35], [14,177AT.10], [14,177AW.10] Chime Communications Pty Ltd, Application by (No 3) [2009] ACompT 4; BC200907929 …. [14,177AT.10] Chippendale Printing Co Pty Ltd v Spunaline Pty Ltd (1985) ASC 55-446; (1985) ATPR 40-631 …. [14,590.165] Christopher Hill Ltd v Ashington Piggeries Ltd [1972] AC 441; [1971] 1 All ER 847; [1971] 2 WLR 1051; [1971] 1 Lloyd’s Rep 245 …. [14,780.15] CI JI Family Pty Ltd v National Australian Nappies (NAN) Pty Ltd [2014] FCA 79; BC201400523 …. [14,590.250], [14,590.265] CIT Credit Pty Ltd v Keable (2006) Aust Contract R 90-243 …. [14,605.11], [14,613.5] Citibank Ltd v Liu (2004) ASAL 55-111; (2003) ATPR (Digest) 46-236 …. [11,675.23], [14,590.230] Citigroup Pty Ltd v CrediProtect Pty Ltd [2010] NSWSC 1054; BC201006771 …. [14,600.35] Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA

1364; BC200807885 …. [11,655.20], [14,520.15], [14,520.35], [14,590.160], [14,590.310], [14,590.60] City of Botany Bay Council v Jazabas Pty Ltd [2002] ANZ ConvR 300; (2001) ATPR (Digest) 46-210 …. [14,520.35], [14,590.165] Civic Video Pty Ltd v Yogies Pty Ltd [2011] NSWSC 1107; BC201107725 …. [10,905.10], [10,905.9], [14,605.20] CKI Utilities Development Pty Ltd v Australian Energy Regulator [2016] FCA 17; BC201600325 …. [10,605.10] Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 7) [2009] WASC 390; BC200911250 …. [11,720.27] Clarke v New Concept Import Services Pty Ltd (1982) 2 TPR 183 …. [10,055.35] — v Pacific Dunlop Ltd (1989) ASC 55-942; (1989) ATPR 40-983 …. [15,035.15] Clarke Equipment Australia Ltd v Covcat Pty Ltd (1987) 71 ALR 367; (1987) ASC 55-562; (1987) ATPR 40-768 …. [14,590.225] Cleary v Australian Co-operative Foods Ltd (No 2) (1999) 32 ACSR 701 …. [11,675.23], [14,590.30] Clifford v Vegas Enterprises Pty Ltd [2011] FCAFC 135; BC201108379 …. [14,590.30], [14,590.160] Cloud Top Pty Ltd v Toma Services Pty Ltd [2008] NSWSC 568; BC200804579 …. [11,655.20] Clough Engineering Ltd v Oil & Natural Gas Corp Ltd (2007) ATPR 42-166 …. [14,600.35] — v — (2008) 249 ALR 458 …. [14,600.35] Co-operative Bulk Handling Ltd v Waterside Workers Federation of Australia (1983) 51 ALR 79; (1983) ATPR 40-412 …. [11,625.35] Coca Cola Company v PepsiCo Inc (No 2) [2014] FCA 1287 …. [14,590.120], [14,590.20], [14,590.80] Coca-Cola Co v All-Fect Distributors Ltd (1998) 43 IPR 47; (1998) ASAL 55-022; (1999) ATPR 46-190 …. [14,590.270] — v — (1999) 96 FCR 107; (2000) ATPR 41-735 …. [14,590.270] Coco v Westpac Banking Corp [2012] NSWSC 565; BC201203605 …. [14,590.30] Coggin v Telstar Finance Co (Q) Pty Ltd (2006) ASAL 55-156; (2006) ATPR 42-107 …. [14,605.20]

Cohen v Centrepoint Freeholds Pty Ltd (1982) 66 FLR 57; (1982) ATPR 40289 …. [14,590.315] Coles Supermarkets Australia Pty Ltd v FKP Ltd [2008] FCA 1915; BC200811389 …. [14,520.45], [14,590.195] Colgate-Palmolive Pty Ltd v Rexona Pty Ltd (1981) 37 ALR 391; 58 FLR 391; (1981) ATPR 40-242 …. [11,625.35], [14,590.170] — v Smithkline Beecham Holdings (Aust) Pty Ltd (1997) 39 IPR 147; (1997) ATPR 41-579 …. [14,590.280] Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2016] FCA 764; BC201605340 …. [14,605.20] College Co Pty Ltd (in liq) v Walsh [1999] FCA 94; BC9900289 …. [14,590.160] Collier Constructions Pty Ltd v Foskett Pty Ltd (1990) 97 ALR 460; 19 IPR 44; (1990) ATPR (Digest) 46-063 …. [14,590.115], [14,590.280] Colliers Jardine (NSW) Pty Ltd v Balog Investments Pty Ltd [1996] ANZ ConvR 527; (1995) ATPR (Digest) 46-140; (1995) NSW ConvR 55-734 …. [11,655.15], [11,655.25], [14,590.160] Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 …. [14,285.10] Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd (No 2) [2005] FCA 1398; BC200507464 …. [14,590.270] Collins House Pty Ltd v Golden Age Sunrise Development Pty Ltd (2015) 114 IPR 1 …. [11,625.35] Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601; [1987] ANZ ConvR 357; (1987) ASC 55-576; (1987) ATPR 40-782 …. [11,625.7], [14,590.320] Colly Cotton Marketing Pty Ltd v Simmons [2006] NSWCA 134; BC200604063 …. [11,655.20] Colorado Group Ltd v Strandbags Group Pty Ltd (2006) 67 IPR 628; (2006) AIPC 92-182 …. [14,590.20] — v — (2007) 164 FCR 506; 243 ALR 127 …. [14,590.20] Combulk Pty Ltd v TNT Management Pty Ltd (1993) 41 FCR 59; 113 ALR 214; (1993) ATPR (Digest) 46-101 …. [11,675.20] Comcare v Gritsch [2010] FCA 1220; BC201008442 …. [11,590.27] — v Post Logistics Australasia Pty Ltd (2008) 178 IR 200 …. [11,590.27] Commandate Marine Corporation v Pan Australia Shipping Pty Ltd [2006]

FCAFC 192; BC200610833 …. [10,005.15] Commerce Commission v Air New Zealand Ltd (2011) 9 NZBLC 103 …. [10,070.30] — v — (2011 unreported) …. [10,070.10], [10,070.20], [10,070.50], [10,765.5] Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; 46 ALR 402; 57 ALJR 358 …. [14,600.35], [14,600.40], [14,605.20] — v Insurance Brokers Assn of Australia (1977) 16 ALR 161; 2 TPC 354; (1977) ATPR 40-053 …. [11,625.15], [11,625.30], [14,590.330] Commercial Dynamics Pty Ltd v M Hawke Nominees Pty Ltd (1996) ATPR 41-503 …. [14,590.85] Commissioner for Consumer Affairs v Spadtan Pty Ltd (1995) ATPR 41-416 …. [14,645.170] Commissioner for Fair Trading, Department of Commerce v Hunter [2008] NSWSC 277; BC200802120 …. [11,625.22], [11,625.45], [14,590.85] Commissioner for Fair Trading, Dept of Commerce v Perrett [2007] NSWSC 1130; BC200708733 …. [14,520.35] Commissioner of Fair Trading v Kent Publishing Pty Ltd [2007] NSWSC 590; BC200704403 …. [11,625.30] Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266; 60 ATR 466 …. [14,180.77] Commissioner of Trade Practices v Caltex Oil (Australia) Pty Limited (1974) 4 ALR 133; 23 FLR 457; (1974) ATPR 40-000 …. [12,010.15], [12,010.60] — v Dalgety Australia Ltd (1973) 22 FLR 62 …. [12,010.40], [12,020.40] Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563; (1990) ATPR 41-019 …. [11,625.65] Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; 104 ALR 1 …. [11,655.25] — v Evans Deakin Industries Ltd (1986) 161 CLR 254; 66 ALR 412 …. [10,017.15] Commonwealth Bank of Australia v Serobian [2009] NSWSC 302; BC200903087 …. [14,613.5] — v Thompson [2013] NSWSC 149; BC201301059 …. [14,605.20] Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; BC201512076 …. [11,590.27A],

[11,719E.5] Communication Credit Union Ltd v National Westminster Finance Australia Ltd (1983) 51 ALR 375; 1 IPR 507; (1983) ASC 55-275; (1983) ATPR 40-410 …. [11,625.35], [14,590.250] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) ATPR 42-177 …. [10,745.25], [10,745.30], [10,745.40], [10,745.43] Como Investments Pty Ltd (in liq) v Yenald Nominees Pty Ltd [1997] ANZ ConvR 466; (1997) ATPR 41-550 …. [11,655.50], [14,590.125], [14,590.320] Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 …. [10,025.135], [11,585.15], [11,585.20], [14,590.175], [14,590.180] Computer Accounting & Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133; BC200805377 …. [14,590.310] Conagra Inc v McCain Foods (Aust) Pty Ltd (1991) 101 ALR 461; 22 IPR 175; (1991) ATPR 41-121 …. [14,590.65], [14,590.80], [14,590.250] — v — (1992) 33 FCR 302; 23 IPR 193; 106 ALR 465 …. [14,590.65], [14,590.80], [14,590.250] Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; 92 ALR 193; 64 ALJR 293; (1990) ATPR 41-022 …. [10,025.95], [14,590.15], [14,590.300], [14,590.55] Concrete Constructions Group v Litevale Pty Ltd (2002) 170 FLR 290; (2002) ATPR (Digest) 46-224 …. [14,520.35], [14,520.45] Consolidated Bearing Co (SA) Pty Ltd v Molnar Engineering Pty Ltd (1994) ATPR (Digest) 46-122 …. [11,655.20], [11,655.22], [14,590.175], [14,590.185] Consolo Ltd v Bennett [2012] FCAFC 120; BC201206471 …. [11,675.20], [14,520.15] Constantine v Trade Practices Commission (1994) 48 FCR 141; 120 ALR 341; (1994) ATPR 41-291 …. [14,180.5], [14,180.90], [14,180.95] Construction Industry Long Service Leave Board v Odco Pty Ltd (1988) 81 ALR 590; (1988) ATPR 40-886 …. [11,625.55] Contact Minerals Pty Ltd v Mineral Providers Australia Pty Ltd [2001] FCA 1042; BC200104447 …. [11,585.20] Contractor Services Pty Ltd v Esanda Finance Corp Ltd (1990) ATPR 41-

020 …. [11,720.15] Cook v Pasminco Ltd (2000) 99 FCR 548; (2000) ATPR 41-167 …. [10,025.5], [10,025.90], [10,025.95], [11,695.10], [14,590.55], [15,200.30] — v Pasminco Ltd (No 2) (2000) 107 FCR 44; 111 LGERA 406; 179 ALR 462; (2001) ATPR 41-800 …. [11,695.10] Cooke v Gill (1873) LR 8 CP 107 …. [11,655.70] Cool and Sons Pty Ltd v O’Brien Glass Industries Ltd (1981) 35 ALR 445; (1981) ATPR 40-220 …. [10,785.60], [10,800.45], [12,020.40] Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297; 35 ALR 151 …. [10,017.20] Corbidge v Bakery Fun Factory Fun Shop Pty Ltd (1984) ASC 55-369; (1984) ATPR 40-493 …. [11,655.50], [14,590.320] Corporation of the City of Adelaide v Adelaide City Fines Pty Ltd (2009) 253 ALR 417 …. [14,590.330], [14,590.70], [14,590.80] Corrections Corporation of Australia Pty Ltd v Commonwealth (2000) 104 FCR 448; (2000) ATPR 41-787 …. [10,025.20] Corrimal Holdings Pty Ltd v Lissadel Holdings Pty Ltd (2003) ATPR 41928 …. [11,710.10] Cortis Exhaust Systems Pty Ltd v Kitten Software Pty Ltd (2001) ATPR 41837; (2001) ASAL 55-069 …. [14,600.35] Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714; (1999) ATPR 41-694 …. [10,025.135], [14,590.160], [14,590.175] Council of the City of Sydney v Goldspar Pty Ltd (2004) ATPR (Digest) 46253 …. [11,585.65] Council of the Shire of Noosa v JE Farr Pty Ltd [2001] QSC 060; BC200100843 …. [11,655.20] Country Properties Pty Ltd v ANZ Banking Group Ltd (1990) ASC 56-021; (1991) ATPR 41-070 …. [14,590.325] Country Road Clothing Pty Ltd v Najee Nominees Pty Ltd (1991) 20 IPR 419; (1991) ASC 56-050; (1991) ATPR 41-106 …. [14,590.280] Courtney v Medtel Pty Ltd (2003) 126 FCR 219; (2003) Aust Contract R 90170 …. [15,877.0] Cousins v SJS Imports (2005) ATPR 42-043 …. [11,717.15], [15,035.15] CPA Australia Ltd v Dunn (2007) 74 IPR 495; (2007) ATPR 42-205 ….

[14,590.100], [14,590.250], [14,590.85] — v Storai [2015] VSC 442; BC201508066 …. [10,025.85], [10,025.95] CPI Group Ltd v Stora Enso Australia Pty Ltd [2007] FCAFC 160; (2007) ATPR 42-193 …. [14,590.160] Crago v Multiquip Pty Ltd (1998) ATPR 41-620 …. [10,055.40] Crandell v Servier Laboratories (Aust) Pty Ltd [1999] FCA 1461; BC9906912 …. [11,710.9] Crawford v Mayne Nickless Ltd (t/as MSS Alarm Service) (1992) 59 SASR 490 …. [14,800.10] Cream v Bushcolt Pty Ltd (2004) ATPR 42-004; (2004) Aust Contract R 90199 …. [14,520.15] Creative Landscape Design Centre Pty Ltd v Platz (1989) ATPR 40-980 …. [11,720.6], [11,720.7C] Crescent Capital Partners Management Pty Ltd v Crescent Funds Management (Aust) Ltd [2016] FCA 229; BC201601421 …. [14,645.45] Crisp v ANZ Banking Group (1994) ATPR 41-294 …. [14,590.160] Crocodile Marketing Ltd v Griffith Vintners Pty Ltd (1989) 91 ALR 273; (1990) ATPR 41-000 …. [11,585.20], [11,585.60], [11,585.65] Crossman v Taylor (No 3) [2011] FCA 734; BC201104604 …. [10,025.95], [11,655.20], [11,655.21], [14,520.15] Crump v Equine Nutrition Systems Pty Ltd (t/as Horsepower) [2006] NSWSC 512; BC200605475 …. [14,590.160] Crystal Auburn Pty Ltd v IL Wollerman Pty Ltd [2000] FCA 913; BC200003717 …. [14,590.320] — v — [2001] FCA 735; BC200103119 …. [11,720.6] — v IL Wollermann Pty Ltd [2004] FCA 821; BC200403846 …. [11,655.50], [14,590.320] CSR Ltd v Resource Capital Australia Pty Ltd (2003) 128 FCR 408; (2003) ATPR 41-929 …. [14,590.265] Culley & Russell Pty Ltd v Goyder (2001) 158 FLR 466; (2001) ASAL 55061 …. [14,590.115] Culligan v Aco Pty Ltd [2009] NSWCA 290; BC200908574 …. [14,590.100], [14,590.140], [14,590.320] Cummings v Rundle (1993) 41 FCR 559; 113 ALR 285; (1993) ATPR (Digest) 46-103 …. [14,520.55]

Cunningham v National Australia Bank (1987) 15 FCR 495 …. [11,720.15] — v Westpac Banking Corporation Ltd [2012] FCA 1088; BC201207631 …. [14,590.140] Cut Price Deli Pty Ltd v Jacques (1994) 49 FCR 397; 126 ALR 413; (1994) ATPR (Digest) 46-128 …. [11,655.25], [11,655.50], [14,590.320] Dairy Industry Marketing Authority v Southern Farmers Co-op Ltd (1982) 39 ALR 613; 61 FLR 174; (1982) ATPR 40-274 …. [14,590.330] Dairy Vale Metro Co-op Ltd v Brownes Dairy Ltd (1981) 35 ALR 494 …. [11,625.45] Dalrymple Holdings Pty Ltd v Gohl (1993) ANZ Conv R 508 …. [11,655.45], [11,655.50], [14,590.310] Dalton v Lawson Hill Estate Pty Ltd (2005) 66 IPR 525; (2005) ATPR 42079 …. [14,590.230] Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173; 64 FLR 238; (1982) ATPR 40-315 …. [10,025.25], [10,700.55], [10,820.29] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; BC200206568 …. [14,180.75], [14,180.77] Danley Construction Products Pty Ltd v Max Frank Pty Ltd [2009] FCA 282; BC200902036 …. [11,625.35] Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216; BC200706483 …. [11,655.22] Darwalla Mining Co Pty Ltd v F Hoffman-La Roche (No 2) (2006) 236 ALR 322; (2007) ATPR 42-134 …. [11,590.27] Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169; (1999) ATPR 41-730 …. [10,025.95], [10,160.18], [14,590.55] Davenport v Trade Practices Commission (1983) 47 ALR 505; 70 FLR 123 …. [14,180.10], [14,180.5] David Golf & Engineering Pty Ltd v Austgolf Corp Pty Ltd (1992) ATPR 41-207 …. [11,625.95] Davids Holdings Pty Ltd v A-G (Cth) (1994) 49 FCR 211; 121 ALR 241; (1994) ATPR 41-304 …. [10,070.35], [10,820.80] — v Coles Myer Ltd (1993) ATPR 41-214 …. [11,625.35] — v — (1993) ATPR 41-227 …. [10,760.55] Dawson v Australian Consolidated Reserves Pty Ltd (1983) ASC 55-262;

(1983) ATPR 40-374 …. [14,655.15] — v LNG Holdings Pty Ltd [2008] NSWSC 137; BC200801067 …. [14,590.160], [14,590.320] — v Motor Tyre Service Pty Ltd (1981) ATPR 40-223 …. [14,645.155] — v World Travel Headquarters Pty Ltd (1980) ATPR 40-187 …. [14,680.30], [14,680.35] De Bortoli Wines Pty Ltd v HIH Insurance Ltd [2011] FCA 645; BC201104314 …. [11,655.20] De Mestre v AD Hunter Pty Ltd (1952) 77 WN (NSW) 143 …. [11,625.80] Deane v Brian Hickey Invention Research Pty Ltd (1988) 11 IPR 651; (1988) ASC 55-676; (1988) ATPR 40-889 …. [14,590.320] Deckers Outdoor Corp Pty Ltd v Farley (No 6) [2010] FCA 391; BC201002460 …. [11,605.24] Decor Corporation Pty Ltd v Bo-Water Scott Ltd (1985) 8 FCR 432; (1985) ATPR 40-587 …. [11,625.35] DEI Queensland Pipeline Pty Ltd v Australian Competition and Consumer Commission (2002) ATPR 41-876 …. [10,650.5] Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608; (1993) ATPR 41-203 …. [11,720.27], [11,720.32], [11,720.7C], [14,590.160] Department of Fair Trading v Monaghan (2003) ATPR 41-912 …. [11,625.65] Deutz Australia Pty Ltd v Skilled Engineering Ltd (2001) 162 FLR 173 …. [14,815.10] Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32; (1991) ATPR 41-098 …. [10,065.15], [10,740.40], [10,740.65] DF Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597; 100 ALR 468; (1991) ATPR 41-102 …. [14,590.325] Dibble v Aidan Nominees Pty Ltd [1986] ANZ ConvR 745; (1986) ASC 55492; (1986) ATPR 40-693 …. [14,590.225] Digi-Tech (Aust) Ltd v Brand (2004) 62 IPR 184; (2004) ATPR 46-248 …. [11,655.20], [14,520.5], [14,520.15] Dillon v Baltic Shipping Co (Mikhail Lermontov) (1989) 21 NSWLR 614; 92 ALR 331; (1990) ATPR 40-992 …. [14,800.10] — v Chin (1988) 84 ALR 457; (1988) ATPR 40-899 …. [14,645.95] Dimension Data Australia Pty Ltd v Kepper [2000] FCA 218; BC200001147

…. [11,585.15] Dinyarra Kay Investments Pty Ltd v Amoco Australia Ltd (1982) 45 ALR 214; (1982) ATPR 40-324 …. [14,590.315] Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1438; BC200507880 …. [10,700.66], [10,700.67], [10,700.95] Direct Share Purchasing Corp Pty Ltd v LM Investment Management Ltd (2011) 82 ACSR 249 …. [14,605.20] Director General of Fair Trading v First National Bank plc [2002] 1 AC 481; [2002] 1 All ER 97; [2001] 3 WLR 1297 …. [14,620.10] Director General, Department of Services, Technology and Administration v Veall (No 2) [2011] NSWSC 358; BC201104014 …. [14,605.20] — v Veall (No 4) [2011] NSWSC 904; BC201106179 …. [14,600.35] Director General, Dept of Services, Technology and Administration v Veall (No 6) [2012] NSWSC 1118; BC201208635 …. [11,655.58] Director of Consumer Affairs v Nightingale Electrics Pty Ltd [2016] FCA 279; BC201601844 …. [11,590.25], [11,720.23], [15,035.15], [15,095.10], [15,670.20] Director of Consumer Affairs (Victoria) v Hocking Stuart (Richmond) Pty Ltd [2016] FCA 1184; BC201608604 …. [11,590.25] Director of Consumer Affairs Victoria v AAPT Ltd [2006] VCAT 1493 …. [14,620.10] — v Alpha Flight Services Pty Ltd [2014] FCA 1434; BC201411359 …. [11,590.20], [11,590.5], [11,720.23], [15,095.10] — v — [2015] FCAFC 118; BC201508119 …. [11,590.20] — v Craig Langley Pty Ltd [2008] VCAT 1332 …. [10,055.40] — v — [2008] VCAT 482 …. [14,625.10] — v Dimmeys Stores Pty Ltd [2013] FCA 618; BC201310315 …. [15,670.19] — v — [2013] FCA 1371; BC201315882 …. [11,590.20], [11,719E.5], [15,035.15] — v DW International Trading Pty Ltd [2010] VSC 515; BC201008498 …. [11,720.23], [15,035.15] — v Good Guys Discount Warehouses (Australia) Pty Ltd [2016] FCA 22; BC201600316 …. [14,645.170], [14,645.175]

— v Midas Trading (Australia) Pty Ltd [2009] VSC 141; BC200902415 …. [15,035.15] — v Parking Patrols Vic Pty Ltd [2012] VSC 137; BC201202227 …. [11,719.7] — v Scully (2013) 303 ALR 168 …. [14,600.35] Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 320 ALR 631; 105 ACSR 403 …. [11,590.20], [11,590.27A] Diversified Mineral Resources v CRA Exploration Pty Ltd (1995) ATPR 41381 …. [14,590.160] Do Carmo v Ford Excavations Pty Ltd (1984) 52 ALR 231 …. [11,655.70] Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 …. [14,590.250] Domain Names Australia Pty Ltd v.au Domain Administration Ltd (2004) 139 FCR 215; 63 IPR 1 …. [14,590.85], [14,590.100] Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471; 110 ALR 535; (1992) ATPR 41-198 …. [14,590.125] Doney v Palmview Sawmill Pty Ltd (2005) ATPR 42-064 …. [11,585.20] Donne Place Pty Ltd v Conan Pty Ltd [2005] QCA 481; BC200511343 …. [14,590.160] Doolan v Waltons Ltd (1981) 39 ALR 408; (1981) ATPR 40-527 …. [11,680.5], [14,645.55] Dorfler v ANZ Banking Group Ltd (1991) 103 ALR 699 …. [11,655.70], [11,720.25], [11,720.27], [14,590.325] Dorrough v Bank of Melbourne Ltd (1995) ANZ Ins Cas 61-290; (1995) ATPR (Digest) 46-152 …. [11,720.20] Dowdell v Knispel Fruit Juices Pty Ltd [2003] FCA 851; BC200304504 …. [11,695.10] Dowling v Dalgety Australia Ltd (1992) 34 FCR 109; 106 ALR 75; (1992) ATPR 41-165 …. [10,070.45], [10,700.35], [10,700.40], [10,700.45], [10,760.35], [10,760.53], [10,760.55], [10,760.65], [10,760.76] Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; 218 FLR 268 …. [10,025.95], [14,590.300], [14,600.35] Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199; BC200503983 …. [14,590.225], [14,590.30] Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (1999) 44 IPR 281;

(1999) ATPR (Digest) 46-192 …. [14,590.270], [14,590.95] — v Rivers (Aust) Pty Ltd (1999) 95 FCR 136; 47 IPR 499; (2000) ATPR 41-734 …. [14,590.95], [14,590.270] Dresna Pty Ltd v Misu Nominees Pty Ltd (2004) ATPR 42-013 …. [11,730.12] Drew v Makita (Aust) Pty Ltd [2008] QDC 223 …. [14,545.10] — v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 …. [14,545.10] Driver Recruitment Pty Ltd v Wedeco AVP Pty Ltd [2008] NSWCA 290; BC200809876 …. [11,655.22], [14,590.300] Ducret v Chaudhary’s Oriental Carpet Palace Pty Ltd (1987) 16 FCR 562; 76 ALR 183; 30 A Crim R 42; (1987) ATPR 40-804 …. [14,645.50], [14,645.55] — v Colourshot Pty Ltd (1981) 35 ALR 503; (1981) ATPR 40-196 …. [11,605.20] — v Nissan Motor Co (Aust) Pty Ltd (1979) 38 FLR 126; (1979) ATPR 40111 …. [14,645.115] Ductile Pty Ltd v Arcric Investments Pty Ltd (1995) 32 IPR 419 …. [11,655.25] Duke Eastern Gas Pipeline Pty Ltd, Re (2001) 162 FLR 1; (2001) ATPR 41821; [2001] ACompT 2 …. [10,650.5], [10,605.15], [10,650G.10], [10,650G.15], [10,650G.35], [10,650N.10] — (2001) ATPR 41-827 …. [10,605.15] Dukemaster Pty Ltd v Bluehive Pty Ltd [2002] FCAFC 377; BC200207083 …. [14,520.15] Dunlop Olympic Ltd v Trade Practices Commission (1982) 40 ALR 367; 62 FLR 145 …. [14,180.25], [14,180.5] Dunworth v Mirvac Qld Pty Ltd [2010] QSC 472; BC201009697 …. [14,590.310] Duxbury v Pierce [2009] FCA 367; BC200902983 …. [14,590.320] — v — [2010] FCA 203; BC201001244 …. [11,740CC.25], [11,740CD.25] Dynamic Hearing Pty Ltd v Polaris Communications Pty Ltd [2010] FCAFC 135; BC201008709 …. [14,590.80], [14,645.50] Dynamic Supplies Pty Ltd v Tonnex International Pty Ltd [2011] FCA 362; BC201102048 …. [14,645.110], [14,645.145] E v Australian Red Cross Society (1991) 27 FCR 310; 99 ALR 601; (1991)

ATPR 41-085 …. [10,025.95], [11,655.10], [14,590.330], [14,590.55], [14,770.15], [14,770.25] — v — (1991) 31 FCR 299; 105 ALR 53; (1992) ATPR 41-156 …. [14,770.15] East Australian Pipeline Ltd, Re Application by (2004) ATPR 42-006; [2004] ACompT 8 …. [10,605.15] East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229; 239 ALR 50 …. [10,605.15] Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 385; 103 ALR 41; (1991) ATPR 41-128 …. [10,095.13], [10,700.50], [10,700.95], [10,760.55], [10,760.70] — v — (1992) 35 FCR 43; 106 ALR 297; (1992) ATPR 41-167 …. [10,070.30], [10,760.35], [10,760.45], [10,760.50], [10,760.53], [10,760.65], [10,760.71] Easts Van Villages Pty Ltd v Minister Administering the National Parks and Wildlife Act (2001) ATPR (Digest) 41-211 …. [10,025.20] Easyway Australia Pty Ltd v Infinite Plus Pty Ltd [2011] FCA 351; BC201102046 …. [11,625.95] Eatten’s Pty Ltd v JLW (NSW) Pty Ltd (1998) ATPR 41-619 …. [11,655.20] eBay International AG v Creative Festival Entertainment Pty Ltd (2006) 170 FCR 450; (2006) Aust Contract R 90-248 …. [14,590.330] ECH Incorporated v Halliday [2011] FCAFC 51; (2011) 192 FCR 281 …. [10,690ZZRD.90] Eden Construction Pty Ltd v New South Wales (No 2) [2007] FCA 689; BC200703398 …. [10,017.15], [10,017.20], [10,018.1], [10,025.20], [10,760.76] Edensor Nominees Pty Ltd v Australian Securities and Investments Commission (2002) 120 FCR 78; 190 ALR 516 …. [14,590.30] Edgar v Farrow Mortgage Services Pty Ltd (1992) ASC 56-186; (1992) ATPR (Digest) 46-096 …. [14,590.160] Effem Foods Ltd v Nicholls (2005) ASAL 55-137; (2004) ATPR 42-034 …. [15,220.10] EFPTOS Interchange Fees Agreement, Re [2004] ACompT 7 …. [11,855.22] Eighty-Second Vocation Pty Ltd v Parere Investments Pty Ltd [2005] FCA

844; BC200504315 …. [11,655.70] EK Nominees Pty Ltd v Woolworths Ltd [2006] NSWSC 1172; BC200609401 …. [14,590.160] Elders Trustee & Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193; (1987) ATPR (Digest) 46-030 …. [11,655.20], [14,590.310], [14,590.140] Elders Trustee and Executor Co Ltd v — (1988) 20 FCR 164; 84 ALR 734 …. [11,655.20] ElectraNet Pty Ltd, Application by (No 3) [2008] ACompT 3 …. [10,490.1], [10,605.10], [10,605.15] Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) ATPR 41-838 …. [10,420.10] Electricity Trust of South Australia v Krone (Aust) Technique Pty Ltd (1994) 51 FCR 540; 123 ALR 202; (1994) ATPR 41-337 …. [14,535.15] Electrolux Home Products Pty Ltd v Delap Impex KFT (2015) 110 IPR 164 …. [14,590.20], [15,015.5], [15,035.15] Elitegold Pty Ltd v Australia Fair Shopping Centres Pty Ltd BC9400043 …. [14,590.315] Elna Australia Pty Ltd v AF Harding & Co Pty Ltd (1978) ATPR 40-096; (1978) 4 TPC 308 …. [11,625.35] — v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410; 75 ALR 271; (1987) ATPR 40-795 …. [11,655.15], [11,655.20] Emanuele v Chamber of Commerce & Industry SA Incorporated [1994] ANZ ConvR 417; (1994) ATPR (Digest) 46-121 …. [11,655.70], [14,590.190] Emap Elan Ltd v Pacific Publications Pty Ltd (1997) 37 IPR 1; (1997) AIPC 91-305; (1997) ATPR 41-551 …. [11,625.35], [11,625.40], [14,590.250] Embo Holdings Pty Ltd v Camm (1999) ASAL 55-016; (1998) ATPR (Digest) 46-184 …. [11,585.60], [11,655.25], [11,655.65], [14,590.175], [14,590.240] EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 276 ALR 35 …. [14,590.330] Emirates v Australian Competition and Consumer Commission (ACCC) (2009) 255 ALR 35 …. [10,070.50], [14,180.20], [14,180.15] Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143; BC200510259 …. [10,025.95]

Energex Ltd v Alstom Australia Ltd (2004) ATPR (Digest) 46-251 …. [11,655.25], [11,655.70], [14,605.20] — v — [2005] FCAFC 215; BC200507028 …. [11,655.54] Energex Ltd, Re [2010] ACompT 3; BC201006843 …. [10,605.10] Energex Ltd, Re Application by (No 2) [2010] ACompT 7; BC201007568 …. [10,605.10] Energex Ltd, Re Application by (No 4) (2011) 247 FLR 318 …. [10,605.10] Energex Ltd, Re Application by (No 5) [2011] ACompT 9; BC201102987 …. [10,605.10] Energizer Australia Pty Ltd v Gillette Australia Pty Ltd (2001) 189 ALR 480; 54 IPR 465 …. [14,590.280] — v — (2005) ATPR 42-050 …. [11,625.40] — v Procter & Gamble Australia Pty Ltd [2016] FCA 347; BC201602455 …. [11,605.24] — v Remington Products Australia Pty Ltd (2008) 76 IPR 63; (2008) ATPR 42-219 …. [14,590.80], [14,590.85] — v Remington Products Australia Pty Ltd (No 2) (2008) ATPR 42-221 …. [11,605.24], [14,590.85] — v Remington Products Australia Pty Ltd (No 3) (2008) ATPR 42-222 …. [14,590.85] Energy Australia, Application by [2009] ACompT 8 …. [10,605.10] — [2009] ACompT 7; BC200909734 …. [10,605.10] Enterprise Finance Solutions Pty Ltd v Austec Pty Ltd [2013] FCA 491; BC201302833 …. [14,590.30] Entirity Business Services Pty Ltd v Garsoft Pty Ltd [2011] FCA 76; BC201100385 …. [14,520.15] Envestra Ltd, Re Application by (No 2) [2012] ACompT 3; BC201200045 …. [10,605.15] — [2012] ACompT 4; BC201200043 …. [10,605.15] Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 82 LGERA 51; 118 ALR 392 …. [14,180.75] Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26; BC200800882 …. [11,655.70] Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 4 FCR 450; 57 ALR 167; 3 IPR 619; (1985) ATPR 40-507 …. [11,655.25], [14,590.100]

Epic Energy South Australia Pty Ltd, Re (2003) ATPR 41-932 …. [10,605.15] Epic Energy South Australia Pty Ltd, Re Application by (2004) ATPR 41977 …. [10,605.15], [10,650G.10] Equity Access Pty Ltd v Westpac Banking Corp (1989) 16 IPR 431; (1990) ATPR 40-994 …. [14,590.105], [14,590.120], [14,590.80], [14,590.90] Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2006] QCA 194; BC200604049 …. [14,520.55] — v Jeffree (2001) ATPR 41-825 …. [15,905.10], [15,905.15] — v Kamisha Corp Ltd (1999) ATPR 41-697 …. [14,590.125], [14,590.205] ER Squibb & Sons Pty Ltd v Tully Corp Pty Ltd (1986) 6 IPR 489; (1986) ASC 55-472; (1986) ATPR 40-691 …. [14,590.15] Ergon Energy Corp Ltd v Australian Energy Regulator [2012] FCA 393; BC201202243 …. [10,605.10] Ergon Energy Corp Ltd (Labour Cost Escalators), Re Application by (No 9) [2011] ACompT 3; BC201100742 …. [10,605.10] Ergon Energy Corp Ltd (Non-System Property Capex), Re Application by (No 8) [2011] ACompT 2; BC201100741 …. [10,605.10] Ergon Energy Corp Ltd (Other Costs), Re Application by (No 7) [2011] ACompT 1; BC201100743 …. [10,605.10] Ergon Energy Corp Ltd, Re Application by [2010] ACompT 6; BC201007567 …. [10,605.10] Esanda Finance Corp Ltd v Spence Financial Group Pty Ltd [2006] WASC 177; BC200606626 …. [14,605.55] Esso Petroleum Co Ltd v Mardon [1976] QB 801; [1976] 2 All ER 5 …. [11,655.25] ETSA Utilities, Re Application by [2010] ACompT 5 …. [10,605.10] Eurogold Ltd v Oxus Holdings (Malta) Ltd [2007] FCA 811; BC200703999 …. [10,160.15] Eva v Southern Motors Box Hill Pty Ltd (1977) 15 ALR 428; 30 FLR 213 …. [11,680.5] Evans v Graham (2009) 84 IPR 127 …. [14,590.85] Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171; BC200300826 …. [14,520.50] Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (1999) 47 IPR 327;

(1999) ATPR 41-729 …. [14,590.220] — v Gillette Australia Pty Ltd (No 4) (2000) ASAL 55-042; (2000) ATPR 41-751 …. [14,590.280] Ewins v Buderim Imports Pty Ltd (1987) 76 ALR 157; (1987) ATPR 40-825 …. [11,695.5], [11,710.10], [11,720.3] Fadu Pty Ltd v ACN 008 112 196 Pty Ltd (2007) ATPR 42-206 …. [10,145.5], [10,830.5F], [11,720.7D] FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479; 7 ANZ Ins Cas 61-118; (1992) ATPR 41-176 …. [11,655.25], [11,655.35], [14,590.85], [14,590.100] Fairbairn v NCC Fashions Wholesale Pty Ltd [2005] FCA 1874; BC200511070 …. [12,010.15] Faithorn v Territory of Papua (1938) 60 CLR 772 …. [10,017.20] Famel Pty Ltd v Burswood Management Ltd (1989) 15 ACLR 572; (1989) ATPR 40-962 …. [14,590.330] Farah (Aust) Pty Ltd v National Union of Workers (NSW Branch) (No 1) (1997) ATPR 41-583 …. [10,740.40] Fasold v Roberts (1997) 70 FCR 489; 145 ALR 548; (1997) ATPR 41-561 …. [10,025.20], [10,025.95], [14,590.55] Federal Cmr of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355; 39 ALR 521 …. [10,025.20] Felton v Mulligan (1971) 124 CLR 367; [1972] ALR 33 …. [14,285.10] Fencott v Muller (1983) 152 CLR 570; 46 ALR 41; (1983) ATPR 40-350 …. [10,025.100], [11,585.5], [11,655.6], [11,655.10], [11,675.35], [11,695.10], [14,770.25] Fenech v Sterling (1983) 51 ALR 205; (1983) ATPR 40-413 …. [11,655.70] — v — (1984) 4 FCR 372; 57 ALR 98; (1984) ATPR 40-496 …. [11,720.25], [11,720.27] Fernwood Fitness Centre Pty Ltd v Today’s Woman Health and Fitness Pty Ltd (1998) 41 IPR 78; (1998) ATPR 41-637 …. [11,625.40], [14,590.250], [14,590.270] Ferro Corporation (Aust) Pty Ltd v International Pools (Aust) Pty Ltd (1994) ATPR (Digest) 46-136 …. [14,590.225], [14,590.240], [14,645.110], [14,645.55] Fibreglass Pool Works (Manufacturing) Pty Ltd v ICI Australia Pty Ltd [1998] 1 Qd R 149; (1997) 146 ALR 120; (1997) ATPR 41-565 ….

[15,875.5], [15,880.5], [15,880.15] Fico v O’Leary (2004) ATPR (Digest) 46-259 …. [11,655.20], [11,655.21], [11,655.22], [11,720.20], [14,590.10], [14,590.315], [14,590.320] Fielding v Vagrand Pty Ltd (1992) 39 FCR 251; 111 ALR 368 …. [11,720.27] Figgins Holdings Pty Ltd v Commonwealth Bank of Australia (1995) ATPR 41-382 …. [11,655.15], [14,590.160] Film Financial Consultants Ltd v Becker Group Ltd [2006] NSWSC 319; BC200602580 …. [14,600.25], [14,600.35] Film Investment Corp of New Zealand Ltd v Golden Editions Pty Ltd (1994) 28 IPR 1; (1994) AIPC 91-052 …. [14,590.250] Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2006] FCAFC 177; BC200610144 …. [11,655.20], [11,655.22] Finucane v New South Wales Egg Corp (1988) 80 ALR 486; (1988) ATPR 40-863 …. [10,025.95], [11,655.25], [11,655.65], [11,720.7], [14,590.85] Fire Nymph Products Ltd v Jalco Products (WA) Pty Ltd (1983) 47 ALR 355; 1 IPR 79; 74 FLR 102; (1983) ATPR 40-353 …. [14,590.120] Firewatch Australia Pty Ltd v Country Fire Authority (1999) 93 FCR 520; (1999) ATPR (Digest) 46-198 …. [14,590.300], [14,590.55] Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445; 68 IR 120 …. [11,695.10] Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) (2001) 188 ALR 566 …. [14,590.175] Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500; (1986) ATPR 40-675 …. [11,655.35] Flemington Properties Pty Ltd v Raine & Horne Commercial Pty Ltd (1997) 148 ALR 271; (1999) ATPR 41-670; (1999) V ConvR 54-596 …. [14,590.160], [11,655.50], [11,655.53] Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52; BC201504528 …. [14,590.55] Flight Centre Ltd v Australian Competition and Consumer Commission (ACCC) [2015] FCAFC 104; BC201507168 …. [10,070.10], [10,070.15], [10,070.20], [10,690ZZRD.50], [10,690ZZRD.65] For the Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 807; BC200705772 …. [11,720.7], [14,590.160] Forbes v Selleys Pty Ltd [2002] NSWSC 547; BC200203689 …. [14,545.30]

Ford Motor Co of Australia Ltd v Jefferson Ford Pty Ltd (2007) ASAL 55171; (2007) ATPR 42-167 …. [14,605.9] Forrest v Australian Securities and Investments Commission (2012) 291 ALR 399 …. [14,590.30] Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 …. [11,720.23] — v Outred & Co [1982] 2 All ER 753; [1982] 1 WLR 86 …. [11,655.70] Fortescue Metals Group Ltd, Application by [2006] ACompT 6 …. [10,650K.5], [10,650K.15] Fortescue Metals Group Ltd, Re (2010) 271 ALR 256 …. [10,025.25], [10,070.20], [10,070.25], [10,070.30], [10,650.5], [10,650AA.5], [10,650G.6], [10,650G.8], [10,650G.10], [10,650G.15], [10,650G.35], [10,650G.40], [10,650V.10], [10,650W.10], [10,650W.15], [10,650W.20] Forty Two International Pty Ltd v Barnes (2014) 97 ACSR 450 …. [14,590.140] Forwood Products Pty Ltd v Gibbett (2002) ATPR 41-870 …. [14,590.175] Foss v Harbottle (1843) 2 Hare 461; (1843) 67 ER 189 …. [11,625.75] Foster v ACCC [2014] FCA 240; BC201401608 …. [11,605.24] — v Australian Competition and Consumer Commission (2006) 149 FCR 135; 226 ALR 27 …. [11,625.30] Four Squares Stores (Qld) Ltd v ABE Copiers Pty Ltd (1981) ATPR 40-232 …. [10,055.40] Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 …. [14,177.5], [14,177AL.10] — v Australian Video Retailers Assn Ltd (2004) 214 ALR 554 …. [14,590.100], [14,590.120], [14,590.280] — v Seven Cable Television Pty Ltd (2000) 175 ALR 433; (2000) ATPR 41784 …. [14,177AR.5] — v The Mod Shop Pty Ltd (2007) 165 FCR 149; 72 IPR 1 …. [14,590.330] Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; 131 FLR 422; (1996) ATPR 41-489 …. [14,590.215] Franich v Swannell (1993) 10 WAR 459; [1994] ANZ ConvR 152; (1994) ATPR (Digest) 46-115 …. [14,590.160] Franks v Grantwell Pty Ltd [1994] ANZ ConvR 392 …. [14,590.165], [14,590.175]

Fraser v NRMA Holdings Ltd (1994) 52 FCR 1; 124 ALR 548; (1994) ATPR 41-346 …. [14,590.160], [14,590.330] — v — (1995) 55 FCR 452; 124 ALR 543; (1995) 15 ACSR 590; (1995) ATPR 41-374 …. [14,590.30], [14,590.160], [14,590.175], [14,590.330] Freeman v Abel Lemon & Co Pty Ltd (1983) ATPR 40-427 …. [14,590.250] Freeman Cosmetic Corporation v Jenola Trial Pty Ltd (t/as South Pacific Cosmetics) (1993) ATPR 41-270 …. [14,590.270] Freight Victoria Ltd, Re (2002) ATPR 41-884 …. [12,145.7] Fried v Dixie Holdings Pty Ltd [2000] FCA 1048; BC200004338 …. [11,585.20], [11,655.20], [14,590.115] Frith v Gold Coast Mineral Springs Pty Ltd (1983) 47 ALR 547; 65 FLR 213; (1983) ASC 55-242; (1983) ATPR 40-339 …. [11,655.25], [11,655.50], [11,720.7], [14,590.320] FTC v Whole Foods 548 F3d 1028 (2008) …. [10,070.20] Fubilan Catering Services Ltd v Compass Group (Aust) Pty Ltd [2007] FCA 1205; BC200706381 …. [14,520.15], [14,520.35], [14,605.20], [14,600.35] — v Compass Groups (Aust) Pty Ltd [2008] FCAFC 53; BC200802248 …. [14,520.15], [14,520.35], [14,600.35], [14,605.20] Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102; BC201102281 …. [14,805.10] Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217; (1990) ATPR 41-049; [1991] ANZ ConvR 75; (1990) V ConvR 54-378 …. [14,520.45] Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd [2004] FCA 1181; BC200406685 …. [11,625.40] Gaffikin Marine Pty Ltd v Princes Street Marina Pty Ltd (1995) 17 ACSR 495; 122 FLR 294; 13 ACLR 991; (1995) ATPR (Digest) 46-149 …. [11,655.20], [11,720.7C], [14,590.150] Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159; (1993) ATPR 41-216 …. [10,065.45], [10,065.5], [10,700.95] Gardam v Splendid Enterprises Pty Ltd (1987) 33 A Crim R 123; (1987) ASC 55-570; (1987) ATPR 40-779 …. [14,645.50], [15,035.15] Gardiner v Suttons Motors (Homebush) Pty Ltd (1983) 48 ALR 142; 71 FLR 294; (1983) ASC 55-259; (1983) ATPR 40-372 …. [14,590.330] Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] FCA

903; (1999) ATPR 41-703 …. [14,600.35], [14,610.20] Garvey v Vamamu Pty Ltd (1988) ATPR 41-656 …. [11,655.22] Gas Corporation v Phasetwo Nominees Pty Ltd (1998) ATPR 41-644 …. [14,590.270] GasNet Australia (Operations) Pty Ltd, Re Application by (2004) ATPR 41978; [2003] ACompT 6 …. [10,605.15] Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding AG [2004] NSWSC 149; BC200401598 …. [11,655.20], [14,520.15] Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; 63 ALR 600; (1986) ATPR 40-666 …. [14,590.20], [11,655.25], [11,720.27] Gatsios Holdings Pty Ltd v Nick Kritharas Holdings Pty Ltd (in liq) (2002) ATPR 41-864 …. [14,520.20] Gavioli Luigi and Figli SNC v GJ Coles & Co Pty Ltd (1983) 74 FLR 250; (1984) ASC 55-299; (1983) ATPR 40-428 …. [14,590.250] Gemcove Asset Pty Ltd v Sirote Pty Ltd (2000) 172 ALR 599 …. [11,710.10] General Accident Fire & Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax (NSW) [1982] 2 NSWLR 52 …. [10,690ZZRD.90] General Newspapers Pty Ltd v Telstra Corp (1993) 45 FCR 164; 117 ALR 629; (1993) ATPR 41-274 …. [10,760.65], [14,590.150] General Workcover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502 …. [14,180.77] Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd [2006] FCA 1268; BC200607560 …. [11,585.15], [11,675.23], [14,590.320] GenRx Pty Ltd v Les Laboratories Servier (2007) 71 IPR 606; (2007) ATPR 42-155 …. [14,665.20] Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405; (1992) 10 ACLC 1394; (1992) ATPR 41-184 …. [10,025.95], [11,655.20], [11,655.22], [11,720.7D], [14,590.55] Gentry Brothers Pty Ltd v — (1995) ATPR 41-460; (1996) Q ConvR 54-471 …. [14,590.310] George Laurens (WA) Pty Ltd v Laurens & Co Australia Pty Ltd (1994) ATPR 41-329 …. [14,590.250] George McGregor Auto Service Pty Ltd v Caltex Oil (Aust) Pty Ltd (1980) 35 ALR 72; (1981) ATPR 40-214 …. [14,590.315] George T Collings (Aust) Pty Ltd v HF Stevenson (Aust) Pty Ltd [1992]

ANZ ConvR 195; (1991) ASC 56-051; (1991) ATPR 41-104 …. [14,605.20] George Weston Foods Ltd v Goodman Fielder Ltd (2000) 49 IPR 553 …. [14,590.280], [14,590.80] Gharibian v Propix Pty Ltd (t/as Jamberoo Recreational Park) (2007) ASAL 55-170; (2007) ATPR 42-171 …. [14,815.10] Gianni Versace SpA v Monte (2002) 119 FCR 349; (2002) ATPR (Digest) 46-218 …. [14,590.295], [14,590.55], [14,595.10], [14,595.15], [14,595.20] Gibbins v Australasian Meat Industry Employees’ Union (1986) 12 FCR 450 …. [10,740.20] Gibson Motor Sport Merchandise Pty Ltd v Forbes [2005] FCA 749; BC200503992 …. [10,110.5] Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 56 IPR 1; (2002) ATPR 41-887 …. [14,590.160], [14,590.280] — v — [2005] FCA 1647; BC200509804 …. [14,590.280] Gilltrap v Autopromos Pty Ltd (1995) ATPR 41-395 …. [14,590.250] Gilmore v Poole-Blunden (1999) 74 SASR 1; 151 FLR 166 …. [11,680.5] Gilmour v Midways Springwood Pty Ltd (1980) 33 ALR 605; 3 A Crim R 196; 49 FLR 36; (1981) ATPR 40-201 …. [14,645.10] GIO Australia Holdings Ltd v Marks (1996) 70 FCR 559; (1997) ATPR 41544 …. [11,655.25], [11,720.27], [14,590.125] Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR 439; 29 FLR 212; (1977) ATPR 40-029 …. [11,675.10], [14,645.15], [14,645.25], [14,645.55] — v Pryor (1979) 24 ALR 442; 39 FLR 437; (1979) ATPR 40-109 …. [14,650.20], [14,650.40] Gladio Pty Ltd v Buckworth [2015] NSWSC 922; BC201506358 …. [14,600.35] Glandore Pty Ltd v Elders Finance and Investment Co Ltd (1984) 4 FCR 130; 57 ALR 186 …. [11,720.15] Glass & Co Pty Ltd v Soonhock (1996) ATPR 41-453 …. [14,590.320] Glaxosmithkline Australia Pty Ltd v Pharmacor Pty Ltd [2014] FCA 1202; BC201409500 …. [14,590.85] Glencore Coal Pty Ltd, Re Application by [2016] ACompT 6 …. [10,650G.8], [10,650G.10], [10,650G.35], [10,650K.5]

Glendale Chemical Products Pty Ltd v Australian Competition and Consumer Commission (1998) 90 FCR 40; (1998) ASAL 55-021; (1999) ATPR 41-672 …. [14,535.15], [14,545.10], [14,545.30], [14,590.275], [15,195.0] Glev Pty Ltd and Glev Franchises Pty Ltd v Kentucky Fried Chicken (1994) ATPR 41-299 …. [11,625.35], [11,625.40], [11,625.45] Gliderol International Pty Ltd v Skerbic (2009) 170 ACTR 1 …. [14,545.10] Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134; BC201207034 …. [11,590.5], [14,590.85] Global Orthopaedic Technology Pty Ltd v Orthotech Pty Ltd (2006) 70 IPR 94 …. [14,590.250] Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82; 55 ALR 25; (1984) ATPR 40-463; (1984) ASC 55-334 …. [11,625.45], [14,520.15], [14,520.5], [14,590.100], [14,590.105], [14,590.155], [14,590.165], [14,590.175], [14,595.10], [14,590.295], [14,590.70] Glorie v WA Chip & Pulp Co Pty Ltd (1981) 39 ALR 67; 55 FLR 310; 1 TPR 84 …. [10,025.95], [14,590.100], [14,590.55] Gm Holden Ltd v Paine [2011] FCA 569; BC201103823 …. [11,655.45] GMA Garnet Pty Ltd v Barton International Inc [2009] FCA 439; BC200903493 …. [14,590.100] Gokora Pty Ltd v Montgomery Jordan & Stevenson Pty Ltd (1986) 4 ANZ Ins Cas 60-727; (1986) ASC 55-508; (1986) ATPR 40-722 …. [14,590.330] Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1997) ATPR 41585 …. [11,655.70] Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd (2005) 225 ALR 57; 67 IPR 497 …. [14,590.20] Golden West Refining Corporation Ltd v Daly Laboratories Pty Ltd (1995) ATPR 41-378 …. [14,590.175] Gollel Holdings Pty Ltd v Kenneth Maurer Funerals Pty Ltd (1987) ATPR 40-790 …. [11,625.30] Good v Kennan (1990) ASC 55-985; (1990) ATPR 41-039 …. [14,715.5] Goodall v Nationwide News Pty Ltd (No 2) (2007) AIPC 92-249 …. [14,595.15] Goodridge v Macquarie Bank Ltd (2010) 265 ALR 170 …. [14,600.45]

Google Inc v Australian Competition and Consumer Commission (2013) 294 ALR 404; 99 IPR 197 …. [14,590.230], [14,590.70], [15,560.10] Gough and Gilmour Holdings Pty Ltd (No 2) v Peter Campbell Earthmoving Pty Ltd (2007) ATPR 42-153 …. [11,655.25] Gould v Vaggelas (1985) 157 CLR 215; 62 ALR 527 …. [11,655.50] GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Ltd (2001) 117 FCR 23; 191 ALR 342 …. [14,600.35], [14,600.45], [14,605.20] Graham v Commonwealth Bank of Australia (1988) ATPR 40-908 …. [11,720.15] — v Sloan (1943) NZLR 292 …. [10,025.90] Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307; 109 LGERA 1; 177 ALR 18; (2000) ATPR (Digest) 46-207 …. [14,535.20], [14,545.10], [15,220.20] Graham Evans Pty Ltd v Stencraft Pty Ltd [1999] FCA 290; BC9901221 …. [14,600.35] Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2011] FCAFC 81; BC201104602 …. [14,590.230] — v Termicide Pest Control Pty Ltd (No 5) [2010] FCA 313; BC201001977 …. [14,520.35] Grant v Australian Knitting Mills Ltd [1936] AC 85; (1935) 54 CLR 49; [1935] All ER Rep 209; (1935) 9 ALJR 351 …. [14,770.10] Great Australian Bite Pty Ltd v Menmel Pty Ltd (1996) ATPR 41-506 …. [14,590.320] Greco v Bendigo Machinery Pty Ltd (1984) ASC 55-382; (1985) ATPR 40521 …. [14,590.180] Green v AMP Financial Planning Pty Ltd [2008] NSWSC 1164; BC200810781 …. [14,590.160], [14,590.30] Green Team (WA) Pty Ltd v Brulee Pty Ltd [1996] ANZ ConvR 93; (1995) ATPR 41-435; (1995) Aust Torts Reports 81-362 …. [14,590.310] Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91; 143 ALR 328; (1997) ATPR 41-567 …. [10,720.25], [11,625.45], [11,625.67], [11,675.15], [11,675.20], [11,720.25], [11,720.27], [11,720.7A], [11,720.7D], [14,590.175], [14,600.35], [14,600.40] Gregg Cotton Motors Pty Ltd v Neil & Ross Neilson Pty Ltd (1984) 2 IPR 214; (1984) ASC 55-304; (1984) ATPR 40-443 …. [14,590.255] Griffin Projects Pty Ltd v Pivot Ltd [2000] FCA 1433; BC200006209 ….

[11,710.10], [11,710.9] Griffiths v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387 …. [11,740W.5], [11,740X.5] Groeneveld Australia Pty Limited v Nolten [2010] VSC 533; BC201008742 …. [14,590.160] Grubic v Commonwealth Bank of Australia (1993) ATPR (Digest) 46-111; (1993) Aust Contract R 90-033 …. [14,590.160] Gughlielman v Trescowthick (2004) ATPR 41-995 …. [14,645.45] Guide Dog Owners & Friends Association Inc v Guide Dog Assn of New South Wales (1998) 42 IPR 481; (1998) ATPR 41-645 …. [14,590.20], [14,590.80], [14,590.250] Gull Petroleum (WA) Pty Ltd v Povey Corp (1988) ATPR 40-842 …. [11,625.45] Gurr v Forbes (1996) ATPR 41-491 …. [11,655.50], [14,590.320] Hadgelias Holdings Pty Ltd and Waight v Seirlis [2015] 1 Qd R 337 …. [11,740CB.28], [11,740CB.29], [11,740CB.30] Hai Quan Global Smash Repairs Pty Ltd v Leadabow Pty Ltd (2004) ATPR 42-025 …. [14,590.160] Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203; (1999) ATPR 41-705 …. [10,650B.5], [10,650B.6], [10,650B.7], [14,285.13] — v — (2008) 247 ALR 385 …. [10,650G.5A] Hamilton v Whitehead (1988) 166 CLR 121; 82 ALR 626 …. [11,585.70] Hamlyn v Brandon (1984) ASC 55-329; (1984) ATPR 40-461 …. [14,645.50] — v John Sands Ltd (1985) ASC 55-393; (1985) ATPR 40-554 …. [15,035.15] — v Moppet Grange Pty Ltd (1984) ASC 55-308; (1984) ATPR 40-439 …. [14,645.50], [15,035.15] Hampic Pty Ltd v Adams (1999) ASAL 55-035; (2000) ATPR 41-737 …. [11,655.20], [14,590.275] Hanave Pty Ltd v LFOT Pty Ltd (1998) ATPR 41-658 …. [14,590.160], [14,590.320] — v — (1999) 168 ALR 318; (1999) ATPR 41-725 …. [11,585.20], [11,720.20]

— v — (1999) 43 IPR 545; (1999) ATPR 41-687 …. [11,655.20], [14,590.160], [14,590.125], [14,590.240], [14,590.320] Handley v Snoid (1981) ATPR 40-219 …. [14,590.15], [14,590.250] Hanlon v Brookes (1996) ATPR 41-523 …. [14,590.160] Hannaford v Australian Farmlink Pty Ltd [2008] FCA 1591; BC200809414 …. [14,590.160] Hansen Beverage Co v Bickfords (Aust) Pty Ltd (2008) 75 IPR 505; (2008) AIPC 92-292 …. [14,590.20], [14,590.250] Hansen Beverage Company v Bickfords (Australia) Pty Ltd (2008) 171 FCR 579; 251 ALR 1 …. [14,590.100] Harbour Agency Pty Ltd v Agency for the Performing Arts Pty Ltd (1989) ATPR 40-969 …. [11,625.45], [14,590.165] Hardwick Game Farm v Suffolk Agricultural Poultry Producers Assn [1969] 2 AC 31; [1968] 2 All ER 444; [1968] 3 WLR 110; [1968] 1 Lloyd’s Rep 547 …. [14,770.10] Haros v Linfox [2011] FCA 699; BC201104399 …. [14,520.15] Harris v Cigna Insurance Australia Ltd (1995) ATPR 41-445 …. [11,655.70] — v Western Australian Exim Corp (1995) ATPR 41-412 …. [11,655.70] Harvey v McWatters (1948) 48 SR (NSW) 173 …. [11,720.15] Hatt v Magro (2007) 34 WAR 256; (2007) ATPR 42-169 …. [11,585.20], [14,520.30], [14,520.35], [14,520.5] Havyn Pty Ltd v Webster (2005) 12 BPR 22,837; (2005) ASAL 55-143 …. [11,655.20], [11,655.22], [11,655.25], [14,590.310], [14,590.225] Hawkins v Price [2004] WASCA 95; BC200402726 …. [14,725.5] Hawthorn Pty Ltd v State Bank of South Australia (1993) 40 FCR 137; 112 ALR 691; (1993) ATPR 41-219 …. [10,017.15] Hay v Victorian Securities Corp (2010) 241 FLR 335 …. [11,655.20] Haydon v Jackson (1988) ATPR 40-845 …. [11,720.7D] Hayle Holdings Pty Ltd v Australian Technology Group Ltd [2000] FCA 1242; BC200005227 …. [11,655.25] Haynes v Top Slice Deli Pty Ltd (1995) ATPR (Digest) 46-147 …. [11,655.20], [11,655.22], [11,655.65], [14,590.320] Health Insurance Commission v Hospitals Contribution Fund of Australia (1981) 36 ALR 204; (1981) ATPR 40-227 …. [11,625.70] Hearn v O’Rourke (2002) 193 ALR 264; (2002) ATPR 41-893 ….

[14,590.55] — v — (2003) 129 FCR 64; (2003) ATPR 41-931 …. [14,590.55] Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153; 65 ALR 429; (1986) ATPR 40-674 …. [10,800.45], [11,590.10], [11,590.8] Hebbard v Bell Potter Securities Ltd (2005) 216 ALR 779; (2005) ATPR 42063 …. [14,590.300] Heidelberg Graphics Equipment Ltd v Andrew Knox & Associates Pty Ltd (1994) ATPR 41-326 …. [11,655.25], [14,590.220] Hellyer Drilling Co v MacDonald Hamilton & Co Pty Ltd (1983) 51 ALR 177; (1983) ATPR 40-414 …. [11,655.20] Henderson v Bowden Ford Pty Ltd (1979) ATPR 40-129 …. [14,645.75] — v McSharer [2015] FCA 396; BC201503156 …. [14,520.15], [14,600.35], [14,605.20] — v Pioneer Homes Pty Ltd (1979) 25 ALR 179 …. [14,280.15] — v — (1980) ATPR 40-168 …. [11,605.14] — v Pioneer Homes Pty Ltd (No 2) (1980) 29 ALR 597; 43 FLR 276; (1980) ASC 55-070; (1980) ATPR 40-159 …. [14,590.310] Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546; (1988) 79 ALR 83; (1988) ASC 55-648; (1988) ATPR 40-850 …. [11,625.7], [11,655.20], [11,720.7C], [14,590.90], [14,590.160], [14,590.225], [14,590.320] — v Collins Marrickville Pty Ltd (No 2) (1989) 89 ALR 539; (1989) ATPR 40-968 …. [11,655.50] Henville v Walker (2001) 182 ALR 37; (2001) ATPR 41-841 …. [11,655.20], [11,655.21], [11,655.22], [11,655.25] Herald & Weekly Times Ltd (on their behalf and on behalf of Members of the constituent and affiliated associations of the Media Council of Australia) (1978) ATPR 40-058 …. [18,472] Heritage Clothing Pty Ltd v Mens Suit Warehouse Direct Pty Ltd [2008] FCA 1775; BC200810535 …. [11,655.20] Hermitage Motel Pty Ltd v PE Kafka Pty Ltd [2008] FCA 442; BC200802287 …. [11,655.50], [14,590.320] Heydon v NRMA Ltd (2000) 51 NSWLR 1; 36 ACSR 462 …. [14,590.165] Hiero Pty Ltd v Somers (1983) 47 ALR 605; (1983) ATPR 40-380 …. [11,625.90]

HIH Insurance Ltd (in liq) v Adler [2007] NSWSC 633; BC200704793 …. [11,655.20] Hill v Tooth & Co Ltd (1998) ATPR 41-649 …. [11,655.22], [11,655.50], [14,590.240] Hoad v Nationwide News Pty Ltd (1997) 37 IPR 407; (1997) ATPR (Digest) 46-169 …. [14,590.85] Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158; BC200601999 …. [11,655.20], [11,655.45], [11,655.48] Hockey v WIN Corp Pty Ltd [2013] FCA 772; BC201311662 …. [14,590.195] Hoffmann-La Roche & Co AG v European Communities Commission [1979] 1 ECR 461; [1979] 3 CMLR 211 …. [10,070.10], [10,760.50] Hogan v Pacific Dunlop Ltd (1988) 83 ALR 403; 12 IPR 225; (1988) AIPC 90-530; (1988) ATPR 40-914 …. [14,590.250] Hollis v ABE Copiers Pty Ltd (1979) 41 FLR 141; 5 TPC 632; (1979) ATPR 40-115 …. [14,645.75] — v Clark (1981) 40 ALR 129; (1981) ATPR 40-245 …. [11,605.20], [14,665.20] — v PH & D Stephens Investments Pty Ltd (1985) 8 FCR 576; (1985) ASC 55-432; (1985) ATPR 40-600 …. [14,645.65] Holloway v Gilport Pty Ltd (1995) 79 A Crim R 76; (1995) ATPR 41-408 …. [14,655.10], [14,655.15] Honest Remark Pty Ltd v Allstate Explorations NL (2006) 58 ACSR 234 …. [11,625.8] Honey v Australian Airlines Ltd (1989) 14 IPR 264; (1989) ATPR 40-961 …. [14,590.80] Hooper v Hooper (1955) 91 CLR 529 …. [14,285.10] Hoover (Aust) Pty Ltd v Email Ltd (1991) 104 ALR 369; (1991) ATPR 41149 …. [14,590.280] Hope v Bathurst City Council (1980) 144 CLR 1; 29 ALR 577 …. [10,025.20] Hore v Albury Radio Taxis Co-op Society Ltd [2002] NSWSC 1130; BC200207407 …. [11,695.5] Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; 18 ALR 639; (1978) ATPR 40-067 …. [14,590.15], [14,590.130], [14,590.155], [14,590.175],

[14,590.250], [14,590.65] Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd (1987) 8 IPR 25; (1987) ASC 55-560; (1987) ATPR 40-764 …. [14,595.25] Hosmer Holdings Pty Ltd v CAJ Investments Pty Ltd (1995) 57 FCR 45; (1995) ATPR 41-407 …. [10,025.95], [11,655.20], [11,655.25], [14,590.55] — v — (1995 unreported) …. [11,655.25] Hospital Benefit Fund of Western Australia Inc v Australian Competition and Consumer Commission (1997) ATPR 41-569 …. [11,895.10], [11,900.5] Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) ATPR 41831 …. [10,070.10] Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483; (1988) ASC 55-644; (1988) ATPR 40846 …. [14,590.120] — v — (1987) ATPR 40-830 …. [14,590.280] — v — (1988) ATPR 40-834 …. [11,625.95], [14,590.280] Houghton v Arms (2006) 225 CLR 553; 231 ALR 534 …. [10,025.95], [10,160.13], [11,585.60], [11,675.23], [11,695.10], [14,590.55] Housing Loans Insurance Corporation v Central Mortgage Registry of Australia Pty Ltd (1984) ATPR 40-476 …. [14,590.330] Howard v National Bank of New Zealand Ltd (2002) 194 ALR 688; (2002) ATPR 41-900 …. [10,155.9] Howard Smith Industries Pty Ltd and Adelaide Steamship Industries Pty Ltd, Re (1977) 28 FLR 385; (1977) ATPR 40-023 …. [10,070.30], [11,855.20] Howell v Bostaran Pty Ltd (1994) ATPR (Digest) 46-125 …. [14,590.320] Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810; BC200804028 …. [10,905.10], [14,605.20] HP Mercantile Pty Ltd v Dierickx [2012] NSWSC 1005; BC201206878 …. [11,720.27] HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 211 ALR 79; 79 ALJR 190 …. [11,655.50], [14,520.45], [14,590.195], [14,590.310] Hubbards Pty Ltd v Simpson Ltd (1982) 41 ALR 509; 60 FLR 430; (1982) ATPR 40-295 …. [10,800.45], [11,655.20], [11,655.25], [11,655.65],

[11,670.10] Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 …. [10,005.5] Hudson v Australian Competition and Consumer Commission [1999] FCA 891; BC9903704 …. [11,605.24] Hughes v — [2004] FCAFC 319; BC200408132 …. [11,605.24] — v Western Australian Cricket Assn Inc (1986) 19 FCR 10; 69 ALR 660; (1986) ATPR 40-736 …. [10,065.15], [10,095.10], [10,700.30], [10,700.35], [11,695.10] — v — (1986) ATPR 40-676 …. [10,065.45] — v — (1986) ATPR 40-748 …. [10,700.40], [11,625.30] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 296 ALR 3; 247 CLR 613 …. [11,740CB.5] Hunt Contracting Co Pty Ltd v Roebuck Resources NL (1992) 110 ALR 183; (1992) ATPR 41-193 …. [14,520.55], [14,590.90] Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242; 125 FLR 151; (1995) ATPR 41-403 …. [14,590.125] Hurley v McDonald’s Australia Ltd (2000) ASAL 55-041; (2000) ATPR 41741 …. [14,600.35], [14,605.20] Hutchence v South Sea Bubble Co Pty Ltd (1986) 64 ALR 330; 6 IPR 473; (1986) AIPC 90-285; (1986) ATPR 40-667 …. [14,590.225] HW Thompson Building Pty Ltd v Allen Property Services Pty Ltd (1983) 48 ALR 667; 77 FLR 254; (1983) ASC 55-260; (1983) ATPR 40-371 …. [14,590.310] I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2000) 179 ALR 89; (2000) ATPR 41-779 …. [11,720.6] — v — (2002) 192 ALR 1 …. [11,655.20], [11,655.22], [11,655.65], [11,720.33] I-Achieve Technology Ltd v Sojo (NSW) Pty Ltd [2001] NSWSC 16; BC200100075 …. [11,655.20] ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; 110 ALR 47; (1992) ATPR 41-185 …. [11,625.30], [11,625.65], [11,625.7] Idoshore Pty Ltd v IPN Medical Centres (NSW) Pty Ltd [2007] FCA 1175; BC200706383 …. [14,590.320] Idylic Solutions Pty Ltd, In the Matter of; Australian Securities and

Investments Commission (ASIC) v Hobbs (2013) 93 ACSR 421 …. [11,719E.5] Inca Office Supplies Pty Ltd v Nashua Australia Pty Ltd (1978) ATPR 40095 …. [14,590.330] Independent Contractors Australia, Application by [2015] ACompT 1 …. [12,130.20], [12,175.5] Inderby Pty Ltd v Quinert (1995) ATPR (Digest) 46-141 …. [14,590.160] Industrial Enterprises Ltd v Federated Storemen & Packers Union of Australia (1979) ATPR 40-100 …. [10,740.25], [10,740.65] Industrial Equity Ltd v North Broken Hill Holdings Ltd (1986) 9 FCR 385; 64 ALR 292; 6 IPR 317; (1986) ASC 55-476 …. [14,590.165] Informax International Pty Ltd v Clarius Group Ltd [2011] FCA 183; BC201100860 …. [14,590.165] Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 …. [11,720.15] Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206; BC200810804 …. [11,655.20] Ink Group Pty Ltd v Hong Kong Bank of Australia Ltd (1995) ATPR (Digest) 46-138 …. [11,720.15] Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 1) (1991) 28 FCR 151; 100 ALR 447; (1991) ATPR 41-091 …. [14,590.110], [14,590.165] Insight Vacations Pty Ltd v Young (2011) 276 ALR 497; 85 ALJR 629 …. [14,820.5] Instyle Contract Textiles Pty Ltd v Good Environment Choice Services Pty Ltd (No 2) [2010] FCA 38; BC201000503 …. [11,625.7] Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 45 ALR 391; 65 FLR 172; (1982) ATPR 40-299 …. [11,625.30] Insurance News Pty Ltd v JEM Nominees Pty Ltd (2008) 80 IPR 239 …. [14,590.250], [14,590.265] Intellectual Property Pty Ltd v Mygroups Pty Ltd [2006] FCA 15; BC200600094 …. [11,625.35] Interlego AG v Croner Trading Pty Ltd (1991) 102 ALR 379; 21 IPR 373; (1991) ATPR 41-124 …. [14,590.220] — v — (1992) 39 FCR 348; 111 ALR 577; (1993) ATPR (Digest) 46-098 …. [14,590.220] Intrac (Sales) Pty Ltd v Riverside Plumbing & Gas Fitting Pty Ltd (1997)

ATPR 41-572 …. [14,590.90] Investments Realty Pty Ltd v Capital Finance Australia Ltd [2010] NSWSC 993; BC201006603 …. [11,675.15] IOOF Australia Trustees (NSW) Ltd v Tantipech (1998) 156 ALR 470; (1998) ATPR 41-652 …. [14,590.225] IPN Medical Centres (NSW) Pty Ltd v Idoshore Pty Ltd [2008] FCAFC 163; BC200807946 …. [14,590.320] Ironbridge Capital Pty Ltd v Australian Competition and Consumer Commission [2005] FCA 1315; BC200506943 …. [11,625.28], [11,730.16] Irwell Pty Ltd v Demand Sales Pty Ltd (1983) ASC 55-234; (1982) ATPR 40-332 …. [14,590.330] IWPE Nominees Pty Ltd v Salera [2008] VSC 188; BC200804043 …. [14,590.320] J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (1992) 111 ALR 502; (1993) ATPR (Digest) 46-099 …. [10,740.30], [10,740.40], [10,740.65] — v — (1992) 44 IR 264 …. [10,740.30] Jabuna Pty Ltd v Hartley (1994 unreported) …. [11,625.35], [11,625.40], [11,625.45] Jackson v Sterling Industries Ltd (1986) ATPR 40-735 …. [11,625.65] — v — (1987) 162 CLR 612; 71 ALR 457; (1987) ATPR 40-792 …. [11,625.90] Jacques v Cut Price Deli Pty Ltd (1993) ASC 56-221; (1993) ATPR (Digest) 46-102 …. [11,655.25], [11,655.50], [14,590.320] JAD International Pty Ltd v International Trucks Australia Ltd (1994) 50 FCR 378 …. [11,720.6] Jainran Pty Ltd v Boyana Pty Ltd [2008] NSWSC 468; BC200803479 …. [14,090B.5], [14,590.310] Jaldiver Pty Ltd v Nelumbo Pty Ltd (1993) ATPR 46-097 …. [14,590.10] — v — [1993] ANZ ConvR 270; (1993) ATPR (Digest) 46-097 …. [14,590.225], [14,590.315] James v ANZ Banking Group Ltd (1986) 64 ALR 347; (1986) 6 IPR 540; (1986) ASC 55-477; (1986) ATPR (Digest) 46-005 …. [11,655.70], [14,520.15], [14,520.50], [14,590.155] Janssen Cilag Pty Ltd v Pfizer Pty Ltd (1991 unreported) …. [11,625.95]

Janssen Pharmaceutical Pty Ltd v — (1985) 6 IPR 227; (1986) ATPR 40-654 …. [11,625.95], [14,590.170] Janssen-Cilag Pty Ltd v — (1992) 37 FCR 526; 109 ALR 635; (1992) ATPR 41-186 …. [11,655.20], [11,655.21] Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2008] FCA 391; BC200802186 …. [14,183AAA.5] Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; BC201107097 …. [15,200.5] Jebeli v Modir [2005] NSWCA 184; BC200503894 …. [10,025.95] Jefferson Ford Pty Ltd v Ford Motor Co of Aust Ltd (2008) 167 FCR 372; 246 ALR 465 …. [14,605.13] Jelin Pty Ltd v Murdoch Pty Ltd [1985] ANZ ConvR 195; (1985) ASC 55399; (1985) ATPR 40-562 …. [14,590.315] Jellyn Pty Ltd v Horwath & Horwath (Qld) Pty Ltd (1993) ATPR 41-284 …. [10,017.15] — v State Bank of South Australia (1995) ATPR 41-404 …. [10,017.15] Jemena Gas Networks (NSW) Ltd, Re Application by [2010] ACompT 8 …. [10,605.15] — [2016] ACompT 5 …. [10,605.15] Jemena Gas Networks (NSW) Ltd, Re Application by (No 2) [2011 ACompT 5; BC201100797 …. [10,605.10], [10,605.15] Jemena Gas Networks (NSW) Ltd, Re Application by (No 3) [2011] ACompT 6; BC201101498 …. [10,605.10], [10,605.15] Jemena Gas Networks (NSW) Ltd, Re Application by (No 4) [2011] ACompT 8; BC201102950 …. [10,605.15] Jemena Gas Networks (NSW) Ltd, Re Application by (No 5) [2011] ACompT 10; BC201104039 …. [10,605.15] Jenkins v NZI Securities Australia Ltd (1994) 52 FCR 572; 124 ALR 605; (1994) ATPR 41-349 …. [11,720.23], [14,590.10] Jetstar Airways Pty Ltd v Free [2008] VSC 539; BC200810737 …. [14,620.10] Jewel Food Stores Pty Ltd v Amalgamated Milk Vendors Assn Inc (1990) ATPR 40-997 …. [10,740.20], [10,740.65] — v Hall (1989) 85 ALR 375; (1989) ATPR 40-931 …. [10,740.65] Jewellery Group Pty Limited v Australian Competition and Consumer

Commission [2013] FCAFC 144; BC201315188 …. [14,645.135] Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489; BC200702336 …. [11,720.23] Jillawarra Grazing Co v John Shearer Ltd (1984) ASC 55-307; (1984) ATPR 40-441 …. [10,055.40] JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237; (1993) ATPR 41-257 …. [11,655.15], [11,655.25] Jobbins v Capel Court Corp Ltd (1989) 91 ALR 314; (1989) ATPR 41-005 …. [11,655.70] Jobern Pty Ltd v BreakFree Resorts (Victoria) Pty Ltd (2008) Aust Contract R 90-269 …. [14,590.60], [14,590.195] John Dee (Export) Pty Ltd, Re (1989) 87 ALR 321; (1989) ATPR 40-938 …. [11,855.10], [18,478] John Engelander & Co Pty Ltd v Ideal Toy Corp (1981) 54 FLR 227; (1981) ATPR 40-218 …. [14,590.330] John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd [1994] ANZ ConvR 294; (1993) ASC 56-228; (1993) ATPR 41-249 …. [14,590.230] John S Hayes & Associates Pty Ltd v Kimberley-Clark Australia Pty Ltd (1994) ATPR 41-318 …. [10,760.76], [10,785.75] Johnson v Johnson (2000) 201 CLR 488; 174 ALR 655 …. [10,560.10] — v Smith [2010] NSWCA 306; BC201008607 …. [14,605.20] Johnson & Johnson Pacific Pty Ltd v Unilever Australia Ltd (2006) 69 IPR 232 …. [14,590.280], [14,590.85] — v Unilever Australia Ltd (No 2) (2006) 70 IPR 574; (2007) ATPR 42-136 …. [14,590.85], [14,590.230], [14,590.280] Johnson Tiles Pty Ltd v Esso Australia Ltd (1999) ATPR 41-696 …. [10,025.135] — v — (2000) 104 FCR 564; (2001) ATPR 41-794 …. [11,695.10], [14,590.120], [14,590.65], [14,590.90], [14,590.175] — v — (2000) ATPR 41-743 …. [11,695.10], [14,590.160] Johnston v Delata Pty Ltd (1993 unreported) …. [11,720.6], [11,720.7C] — v — BC9304650 …. [14,590.315] Jones v Acfold Investments Pty Ltd (1984) 52 ALR 365; (1983) 8 ACLR 488; (1984) ASC 55-291; (1983) ATPR 40-420 …. [14,590.310]

— v — (1985) 6 FCR 512; 59 ALR 613; (1985) ASC 55-398; (1985) ATPR 40-561 …. [11,655.20], [14,590.125] — v Australian Competition and Consumer Commission (2003) 200 ALR 234 …. [11,825.7] — v — [2002] FCA 1054; BC200204870 …. [11,825.7] — v — [2010] FCAFC 136; BC201008694 …. [11,605.24] Jools, President of NSW Taxi Drivers Assn, Re Application by (2005) 219 ALR 328 …. [12,130.20] Joseph v La Trobe University [2004] FCA 746; BC200403531 …. [14,750.35] Joshua Brook Pty Ltd v Outdoor Centre Holdings Pty Ltd (No 3) [2012] FMCA 910; BC201208153 …. [14,590.320] JS McMillan Pty Ltd v Commonwealth (1997) 77 FCR 337; 147 ALR 419; (1997) ATPR (Digest) 46-175 …. [10,015.20], [10,025.20] Judiciary and Navigation Acts, Re (1921) 29 CLR 257 …. [14,285.10] KA & C Smith Pty Ltd v Ward (1999) ATPR 41-717 …. [11,720.27] Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950 …. [11,655.20] Kadkhudayan v WD & HO Wills (Aust) Ltd (2001) ATPR 41-822 …. [10,760.45], [10,800.45], [12,010.40] — v — (2002) ATPR 41-874 …. [12,010.40] Kailash Center for Personal Development Inc v Yoga Magik Pty Ltd [2003] FCA 536; BC200302768 …. [14,590.270] Kakavas v Crown Melbourne Ltd (2013) 298 ALR 35 …. [14,600.35] — v — [2009] VSC 559; BC200911002 …. [14,600.35] KAM Nominees Pty Ltd v Australian Guarantee Corp Ltd (1994) 123 ALR 711; (1994) ATPR 41-325 …. [10,785.50], [10,785.65], [10,785.75] Kannegieter v Hair Testing Laboratory Pty Ltd (2004) 63 IPR 232; (2004) ATPR 42-003 …. [14,645.105], [14,645.125] Karawi Constructions Pty Ltd v Bonefind Pty Ltd [1994] ANZ ConvR 290; (1993) ATPR 41-265 …. [14,590.225], [14,590.230] Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35; (1995) ATPR 41427 …. [11,655.70] Karmot Auto Spares Pty Ltd v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560; (1992) ATPR 41-175 …. [14,590.160], [14,590.225]

Katherine Pty Ltd v CCD Group Pty Ltd [2008] NSWSC 131; BC200800837 …. [14,600.35] Kay v Murray Irrigation Ltd [2009] NSWSC 1411; BC200911482 …. [14,545.10], [15,200.55] Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) ATPR 41-017; 10 BCL 63 …. [11,655.20], [14,590.160] Keays v JP Morgan Administrative Services Australia Ltd [2011] FCA 358; BC201102049 …. [14,655.15] Kedem v Johnson Legal Practice Pty Ltd [2013] FCA 432; BC201302358 …. [11,655.70] Keehn v Medical Benefits Fund of Australia Ltd (1977) 14 ALR 77; (1977) ATPR 40-047 …. [14,645.155] Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1985) 61 ALR 504; (1985) ATPR 40-583 …. [11,720.27], [14,590.315] Keen Mar Corporation Pty Ltd v — (1988) ATPR 40-853 …. [11,655.70] — v — [1990] ANZ ConvR 38; (1989) ATPR (Digest) 46-048; (1989) 9 BCL 252; 67 LGRA 238 …. [14,590.225] Keith Russell Simplicity Funerals Pty Ltd v Cremation Society of Australia (ACT) Ltd (1982) 57 FLR 472; 40 ALR 125 …. [10,740.20], [10,745.45] Keller v LED Technologies Pty Ltd (2010) 268 ALR 613; 87 IPR 1; [2010] FCAFC 55 …. [15,035.15] — v LED Technologies Pty Ltd (No 2) [2010] FCAFC 160; BC201010050 …. [15,035.15] Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307; 147 ALR 568; (1998) ANZ Conv R 294 …. [11,655.25] — v — (1999) ATPR 41-711 …. [11,655.15], [11,655.21], [11,655.70] Kentcliffe Pty Ltd v Supa-Mesh Sales & Services Pty Ltd (1993) ATPR 41248 …. [14,590.250] Kerol Pty Ltd v Eldic [2002] SASC 181; BC200203585 …. [14,590.160] Ketchell v Master of Education Services Pty Ltd (2007) 226 FLR 169; (2008) Aust Contract R 90-268 …. [10,145.5], [10,905.10] Kettle Chip Co Pty Ltd v Apand Pty Ltd (1993) 46 FCR 152; 119 ALR 156; (1994) ATPR 41-287 …. [14,590.270] Kewside Pty Ltd v Warman International Ltd (1990) ASC 55-964; (1990) ATPR (Digest) 46-059 …. [14,590.225]

KGL Health Pty Ltd v Mechtler [2007] FCA 1411; BC200707893 …. [11,720.7C] Khalaf Agabay v Darlington Commodities Ltd (1985) ASC 55-387; (1985) ATPR 40-535 …. [14,590.95], [14,590.330] Kimberly Clark Australia Pty Ltd v Carter Holt Harvey Tissue Australia Ltd (1997) 37 IPR 293; (1997) ATPR (Digest) 46-171 …. [14,590.80] King v GIO Australia Holdings Ltd [2001] FCA 308; BC200101358 …. [11,585.20] — v Yurisich [2005] FCA 1277; BC200506823 …. [10,025.95] Kingswell v R (1985) 159 CLR 264; 62 ALR 161; 60 ALJR 17 …. [11,590.25A] Kinlace Pty Ltd v Mortgage Finance Australia Ltd (in liq) [1995] ANZ Conv R 21 …. [11,585.20] Kinross v GIO Australia Holdings Ltd (1994) 55 FCR 210; 129 ALR 283; (1995) ATPR 41-402 …. [10,017.15] Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281; 131 ALR 363; (1995) ATPR 41-439 …. [11,655.25], [11,655.50], [14,590.320] — v — (1992 unreported) …. [11,655.50] — v — BC9203844 …. [14,590.320] Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586; 74 IPR 232 …. [14,590.120] Knott Investments Pty Ltd v Winnebago Industries Inc [2013] FCAFC 59; BC201302948 …. [14,590.225], [14,590.250], [14,645.100], [14,645.120], [14,645.125] — v Winnebago Industries Inc (No 2) [2013] FCAFC 117; BC201313761 …. [14,590.225], [14,590.250], [14,645.100], [14,645.120], [14,645.125] Kocsardi v Elegant Tiles Pty Ltd BC9605643 …. [14,590.160], [14,645.170] Korczynski v Wes Lofts (Aust) Pty Ltd (1985) 10 FCR 348; 62 ALR 225; (1986) ATPR 40-643 …. [14,645.65] Korean Air Lines v ACCC (No 3) [2008] FCA 701; BC200803463 …. [14,180.40] Korean Air Lines Co Ltd v ACCC (No 2) [2008] FCA 449; BC200802256 …. [14,180.77] — v Australian Competition and Consumer Commission [2008] FCA 265; BC200801368 …. [14,180.10], [14,180.40], [14,180.77]

Kosciuszko Thredbo Pty Ltd v ThredboNet Marketing Pty Ltd (2014) 311 ALR 656; 106 IPR 434 …. [14,590.250] — v — [2013] FCA 563 …. [14,590.250] Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511; 102 ALR 51; (1991) ATPR 41-134 …. [14,180.40] — v — (1991) ATPR 41-122 …. [14,180.40] Kowalczuk v Accom Finance Pty Ltd (2008) 252 ALR 55; 229 FLR 4 …. [10,025.95], [14,605.5], [14,605.20], [14,605.55], [14,613.5] Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2007] FCA 1069; BC200705700 …. [10,025.95] Krahe v Freeman (1988) ASC 55-666; (1988) ATPR 40-871 …. [14,595.10] Krakowski v Eurolynx Properties Ltd (1992) ASC 56-158; (1992) ATPR 41168; (1992) V ConvR 54-436 …. [14,590.160], [14,590.175] — v — (1995) ATPR 41-419 …. [11,720.5], [11,720.6], [11,720.7E] Ku-ring-gai Co-op Building Society, Re (No 12) Ltd (1978) 22 ALR 621; 36 FLR 134; (1978) ATPR 40-094 …. [10,025.45], [10,025.95], [10,785.50], [14,590.55], [10.830.5A] Kullack v ANZ Banking Group Ltd (1988) ATPR 40-861 …. [14,590.325] La Trobe Capital & Mortgage Corp Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; 273 ALR 774 …. [11,655.25] Lactos Fresh Pty Ltd v Finishing Services Pty Ltd [2006] FCA 219; BC200601214 …. [11,655.20] Laing v Carroll (2005) 146 FCR 511 …. [14,180.40] Lakes R Us Pty Ltd, Re [2006] ACompT 3; BC200603856 …. [12,145.20] Lama v Ausintel Investments Pty Ltd (1989) 97 FLR 458; (1990) ATPR 40990 …. [14,590.330] Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188 …. [11,655.45], [11,655.48] Landy DFK Finance Pty Ltd v Rasaratnam (2000) ATPR 41-782 …. [15,905.5], [15,915.30] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96; 71 ALJR 818 …. [14,590.34] Lanza v Codemo [2001] NSWSC 845; BC200108023 …. [15,240.5] Larmer v Power Machinery Pty Ltd (1977) ATPR 40-021 …. [10,025.95] Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd (2010)

263 ALR 155; 83 IPR 582 …. [14,590.330] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; 93 ALR 435 …. [10,560.10] — v GWS Machinery Pty Ltd (2007) 209 FLR 53 …. [10,055.40], [10,055.42], [14,820.5], [15,240.5] — v — [2007] NSWSC 1249; BC200709423 …. [15,880.5] Lawson v Ampol Ltd (1993) ATPR 41-204 …. [14,590.160] Lawson Hill Estate Pty Ltd v Tovegold Pty Ltd (2004) 214 ALR 478; (2005) ASAL 55-134 …. [11,585.20], [11,655.20], [11,720.20], [14,590.225], [14,590.240] LED Technologies Pty Ltd v Elecspecs Pty Ltd (2008) 80 IPR 85 …. [14,645.105], [14,645.50] Leda Holdings Ltd v Oraka Pty Ltd [1998] ANZ ConvR 582; (1998) ATPR 41-601 …. [11,655.20], [14,590.160], [14,590.225] Lee v Cafred Pty Ltd (1992) ATPR 41-170 …. [11,655.40] — v Westpac Banking Corp [2012] NSWSC 899; BC201206333 …. [11,655.20], [14,590.30] Leeks v FXC Corporation (2002) 189 ALR 288; (2002) ATPR 41-859 …. [14,535.15], [14,535.25], [15,877.0] Lego Australia Pty Ltd v Paul’s (Merchants) Pty Ltd (1982) 42 ALR 344; 60 FLR 465; (1982) ATPR 40-308 …. [14,590.100], [14,590.90] Leitch v Natwest Australia Bank Ltd (1995) ATPR (Digest) 46-153 …. [11,655.15], [11,720.27], [14,600.30] Leo v Brambles Holdings Ltd (1982) 45 ALR 441; (1982) ATPR 40-310 …. [11,655.20] Leonie’s Travel Pty Ltd v International Air Transport Association (2009) 255 ALR 89 …. [14,590.80] Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136; BC200706369 …. [14,520.35] — v — [2007] FCA 1530; BC200708566 …. [11,720.7] Lewis v Orchid Avenue Pty Ltd [2014] FCA 739; BC201405935 …. [14,590.310] Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535; 107 ALR 291; (1992) ATPR 41-171 …. [14,590.225], [14,590.230] Lin v Rail Corporation New South Wales [2011] FCA 261; BC201101454

…. [11,655.70] Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2005) 55 ACSR 583 …. [14,590.160] Lisciandro v Official Trustee in Bankruptcy (1995) ATPR 41-436 …. [11,675.15], [11,675.20] — v — (1996) 69 FCR 180; 139 ALR 689 …. [11,675.20] Livesey v New South Wales Bar Assn (1983) 151 CLR 288; 47 ALR 45 …. [10,560.10] Lobendhan v West Perth Investments Pty Ltd [1998] FCA 1257; BC9805184 …. [14,590.320] Lockyer Investment Co Pty Ltd v Smallacombe (1994) ATPR 41-328 …. [11,655.60] Lord Buddha Pty Ltd v Harpur [2011] VSC 366; BC201105885 …. [14,590.310] Lord Buddha Pty Ltd (in liq) v — [2013] VSCA 101; BC201302258 …. [14,590.315] Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494; 225 ALR 541 …. [11,605.24] Louth v Diprose (1992) 175 CLR 621; 110 ALR 1; 67 ALJR 95 …. [14,600.35] Lovatt v Consolidated Magazines Pty Ltd (1988) 12 IPR 261; (1988) ATPR 40-903 …. [14,595.10], [14,595.25] Lowe v Indoor Cricket Federation of New South Wales Inc (1994) ATPR 41-358 …. [10,025.95] — v Mack Trucks Australia Pty Ltd [2008] FCA 439; BC200802285 …. [14,520.15], [14,590.115], [14,770.10], [14,770.25] LSK Microwave Advance Technology Pty Ltd v Rylead Pty Ltd (1989) 16 IPR 107; (1989) ATPR 40-958 …. [14,590.250] LT King Pty Ltd v Besser (2002) 172 FLR 140 …. [14,590.55] Lubidineuse v Bevanere Pty Ltd (1984) 3 FCR 1; 55 ALR 273; (1984) ASC 55-352; (1984) ATPR 40-487 …. [14,590.15], [14,590.320] — v — (1985) ATPR 40-597 …. [11,655.50] Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (2010) 267 ALR 721; 86 IPR 247 …. [14,590.285], [14,590.85] Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 47 ALR 114; 70

FLR 135; (1983) ATPR 40-343 …. [14,590.315] Lyritzis v Westpac Banking Corp (1994) ATPR 41-360 …. [14,590.160] McAllister v Richmond Brewing Co (NSW) Pty Ltd (1942) 42 SR (NSW) 187 …. [11,655.50] McBride v Christie’s Australia Pty Ltd [2014] NSWSC 1729; BC201411269 …. [14,590.330] McCarthy v Australian Rough Riders Assn Inc (1988) ATPR 40-836 …. [10,065.45], [10,700.95] — v McIntyre [1999] FCA 784; BC9903163 …. [11,655.20] MacCormick v Nowland [1988] ANZ ConvR 316; (1988) ASC 55-653; (1988) ATPR 40-852 …. [14,590.310] McCormick v Riverwood International (Aust) Pty Ltd (1999) 167 ALR 689 …. [10,025.95], [14,590.300] McDonald v Commonwealth Bank of Australia (1993 unreported) …. [11,720.7A] — v — BC9305043 …. [14,590.315], [14,590.320] — v Esanda Finance Corp Ltd (1993 unreported) …. [11,720.7A] — v — BC9304820 …. [14,590.315], [14,590.320] McDonalds System of Australia Pty Ltd v McWilliams Wines Pty Ltd (No 2) (1979) 28 ALR 236; 41 FLR 436; (1979) ATPR 40-140 …. [14,645.100], [14,645.105], [14,590.120], [14,645.125] McFarlane v Heritage Corp (Aust) Pty Ltd [2003] QSC 350; BC200306099 …. [11,720.7C], [11,720.7F] McGrath, Re; Pan Pharmaceuticals Ltd (in liq) v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230; 246 ALR 514 …. [14,520.5], [14,520.35] McHugh v Australian Jockey Club (No 13) [2012] FCA 1441; BC201209964 …. [10,700.25] McIlhenny Co v Blue Yonder Holdings Pty Ltd (1997) 149 ALR 496; 39 IPR 187; (1997) ATPR 41-587 …. [14,590.100], [14,590.120] McMahon v Pomeray Pty Ltd (1991) ASC 56-086; (1991) ATPR 41-125 …. [11,655.25], [14,590.160], [14,590.225], [14,590.320] McMullin v ICI Australia Operations Pty Ltd (1997) 72 FCR 1; 93 A Crim R 1; (1997) ATPR (Digest) 46-174 …. [10,025.20] McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 221

ALR 285 …. [10,015.10], [10,017.15] MacPhee v Peters Foods Australia Pty Ltd (in liq) (2004) 60 IPR 51 …. [14,590.100] McPhee (J) & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 …. [11,590.20], [11,590.25], [11,590.29], [11,590.50] McPhillips v Ampol Petroleum (Vic) Pty Ltd (1990) ATPR 41-814 …. [11,720.7A] Macquarie Bank Ltd v Meinhardt (NSW) Pty Ltd [2010] NSWSC 1320; BC201008611 …. [11,740CB.30] — v Seagle (2008) 79 IPR 72 …. [14,590.265] Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (2010) 15 BPR 28,563 …. [14,605.20] McWilliams Wines Pty Ltd v LS Booth Wine Transport Pty Ltd (1992) 25 NSWLR 723; (1992) ASC 56-136; (1992) ATPR (Digest) 46-089 …. [14,590.160] — v McDonalds System of Australia Pty Ltd (1980) 33 ALR 394; 49 FLR 455; (1980) ATPR 40-188 …. [14,590.70], [14,590.100], [14,590.250] Madden v Seafolly Pty Ltd [2014] FCAFC 30; BC201402065 …. [14,590.165], [14,590.85], [14,645.35] Magenta Nominees Pty Ltd v Richard Ellis (WA) Pty Ltd BC9405977 …. [14,590.160] Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 185 ALR 152; (2002) ATPR 41-854 …. [10,150.5] Magman International Pty Ltd v Westpac Banking Corp (1991) 32 FCR 1; 104 ALR 575; (1992) ATPR 41-161 …. [11,655.70], [11,720.27], [14,590.325] Mainbanner Pty Ltd v Dadincroft Pty Ltd (1988) ATPR 40-896 …. [11,720.15] Maisey v Mudgeeraba Village Pty Ltd (1985) ASC 55-402; (1985) ATPR 40-569 …. [14,590.310] Maitland Holdings Pty Ltd v NTZ Pty Ltd [2004] FCA 710; BC200403227 …. [10,700.55] Major Mining Ltd v State Bank of New South Wales BC9502816 …. [11,655.20] Makita (Aust) Pty Ltd v Black & Decker (A’asia) Pty Ltd (1990) 18 IPR

270; (1990) ASC 55-982; (1990) ATPR 41-030 …. [11,625.95], [14,590.280] Malam v Graysonline, Rumbles Removals and Storage (General) [2012] NSWCTTT 197 …. [14,775.5], [14,770.10] MAM Mortgages Ltd (in liq) v Cameron Bros (a firm) [2002] QCA 330; BC200205060 …. [11,655.20] Manhattan (Asia) Ltd v Dymocks Franchise Systems (China) Ltd [2014] FCA 1143; BC201408930 …. [10,905.7] Mansard Developments Pty Ltd v Sackville (1981) ATPR 40-255 …. [14,650.40] Manwelland Pty Ltd v Dames & Moore Pty Ltd (2001) ATPR 41-845 …. [11,655.20], [11,655.25], [11,655.50] March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; 99 ALR 423; 12 MVR 353 …. [11,655.20] Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep 509 …. [11,625.90] Marine & Civil Construction Co Pty Ltd v SGS Australia Pty Ltd [2012] FCA 907; BC201206265 …. [11,740CB.30], [14,590.90] Maritime Workers of Australia Credit Union Ltd v MSB Credit Union Ltd (2005) ATPR 42-080 …. [11,625.35], [14,590.30] Mark Foys Pty Ltd v TVSN (Pacific) Ltd (2000) 49 IPR 303; (2001) ATPR 41-795 …. [14,590.120], [14,590.80] Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) 75 ALR 581; (1987) ATPR 40-809 …. [10,070.25], [10,760.35], [10,760.76], [10,785.60], [10,800.45] Markou v Hugo Investments Pty Ltd (1985) ASC 55-431; (1985) ATPR 40602 …. [14,590.320] Marks v GIO Australia Holdings Ltd (1996) 63 FCR 304; (1996) ASC (Digest) 56-343; (1996) ATPR 41-471 …. [11,655.25], [14,590.125] — v — (1998) 196 CLR 494; 158 ALR 333; 73 ALJR 12; (1998) ATPR 41665 …. [10,010.5], [11,655.20], [11,655.21], [11,655.25], [11,720.6], [11,720.7B], [14,590.125] Marlbro Shelving Systems Pty Ltd v ARC Engineering Pty Ltd (1983) 72 FLR 418; (1983) ASC 55-249; (1983) ATPR 40-355 …. [14,590.100], [14,590.90] Marleef Pty Ltd v Metcash Trading Ltd [2001] FCA 1316; BC200105506

…. [14,590.175], [14,590.90] Marley New Zealand Ltd v Icon Plastics Pty Ltd [2007] FCA 851; BC200704270 …. [11,625.35] Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd [2015] FCAFC 127; BC201508805 …. [14,600.35] Mars Australia Pty Ltd v Sweet Rewards Pty Ltd (2009) 84 IPR 12 …. [14,590.270] Martin v Tasmania Development and Resources (1999) 163 ALR 79; (1999) ATPR (Digest) 46-193 …. [11,695.10], [14,590.300], [14,590.55] Mason v MWREDC Ltd (2011) 199 FCR 151 …. [10,017.15], [11,695.10] Master Abrasives Corporation v Williams (1984) 469 NE 2d 1196 …. [10,905.8] Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; 249 ALR 44 …. [10,145.5], [10,905.10], [10,915.5] Masters Dairy Ltd v Nagy (1998) 156 ALR 262; (1998) ATPR 41-651 …. [11,655.20], [11,655.25], [14,590.160] Mathers v Commonwealth (2004) 134 FCR 135; 22 ACLC 624 …. [10,760.78], [10,785.66] Matheson Engineers Pty Ltd v El Raghy (1992) 37 FCR 6; (1992) ATPR 41192 …. [11,655.74], [14,590.15] Mayes v Australia Cedar Pty Ltd (2006) ASAL 55-159; (2006) ATPR 42119 …. [14,545.10] Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd (2001) 114 FCR 108; (2002) ATPR 41-850 …. [11,720.1A], [11,720.7], [11,720.20], [11,720.26], [11,720.27] Meadow Gem Pty Ltd v ANZ Executors & Trustee Co Ltd (1994) ATPR (Digest) 46-130 …. [14,590.55] Mechanical Engineering Corporation Pty Ltd v Scholtes [2007] FCA 520; BC200702611 …. [10,740.20] Media Council of Australia, Re (1996) ATPR 41-497 …. [11,855.21], [12,130.25] Media Council of Australia, Re (No 2) (1987) 88 FLR 1; (1987) ATPR 40774 …. [11,855.10], [11,855.22], [12,130.25] Medibank Private Ltd v Cassidy (2002) ATPR 41-895 …. [11,625.13], [11,625.70], [11,625.73] Medical Benefits Fund of Australia Ltd v — (2003) 135 FCR 1; 205 ALR

402 …. [11,585.78], [11,585.15], [11,625.95], [14,590.30], [14,590.80], [14,590.140], [14,590.285], [14,645.45], [14,670.10] Medicines Australia Inc, Re Application by [2007] ACompT 4 …. [11,825.6], [11,855.19], [11,855.20], [11,855.20A], [11,855.21], [11,855.22], [11,865.15], [12,130.25] Mehta v Commonwealth Bank of Australia (1990) ATPR 41-026; (1990) Aust Torts Reports 81-046 …. [14,590.325] Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 1) (1979) 36 FLR 450 …. [14,180.5] — v Trade Practices Commission (No 3) (1980) 31 ALR 519; 47 FLR 163 …. [14,180.15], [14,180.20] Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (1999) 90 FCR 128; 169 ALR 554; (1999) ATPR 41-693 …. [10,070.10], [10,760.35], [10,760.45], [10,760.65], [10,760.65A], [10,760.66], [10,760.76] — v — (2001) 205 CLR 1; 178 ALR 253; (2001) 178 ALR 253; 50 IPR 257 …. [10,760.10], [10,760.35], [10,760.45], [10,760.50], [10,760.55], [10,760.65] Menhaden Pty Ltd v Citibank NA (1984) 1 FCR 542; 55 ALR 709; (1984) ASC 55-341; (1984) ATPR 40-471 …. [14,590.60] Menmel Pty Ltd v Great Australian Bite Ltd (1997) 131 ALR 36; (1997) ATPR 41-553 …. [14,590.320] Merck Sharpe & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; BC201107861 …. [14,545.10], [14,545.30], [14,590.170], [14,770.10], [15,220.20] Mercland Investment Group Pty Ltd v Duncalm Pty Ltd [2012] FCA 183; BC201200981 …. [14,590.160] Metalcorp Recyclers Pty Ltd v Metal Manufactures Ltd (2004) ATPR (Digest) 46-243; (2004) Aust Contract R 90-186 …. [14,590.160] Metcalfe v NZI Securities Australia Ltd (1995) ATPR 41-418 …. [11,655.20], [14,590.105] — v — (1995 unreported) …. [11,720.23] — v — (1996 unreported) …. [11,720.23] Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16; BC200900094 …. [11,605.24] Metroplaza Pty Ltd v Girvan (NSW) Pty Ltd (1992) 37 FCR 91; (1992) ATPR 41-157 …. [11,695.5]

Metz Holdings Pty Ltd v Simmac Pty Ltd (No 2) [2011] FCA 981; BC201106412 …. [14,590.320], [14,605.20] MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 140 ALR 313; [1997] ANZ ConvR 198 …. [14,590.165] MGM Bailey Enterprises Pty Ltd v Austin Australia Pty Ltd (2002) 20 ACLC 765; (2002) ATPR 41-875 …. [14,590.165], [14,590.240] MHG Plastic Industries Pty Ltd v Australian Competition and Consumer Commission (2000) ATPR (Digest) 46-206 …. [15,035.15] Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525; (1996) ATPR 41-534 …. [11,675.23], [14,520.35], [14,520.50] Michael Jools, Re Application by [2006] ACompT 5 …. [10,785.65], [11,855.20], [11,855.23] Michael, Re; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511; (2002) ATPR 41-886 …. [10,070.10], [10,605.15], [10,650.5], [10,650DA.5], [10,650ZZA.15], [10,650ZZA.20], [10,650ZZA.25] Michalopoulos v Perpetual Trustees Victoria Ltd [2010] NSWSC 1450; BC201009718 …. [14,600.35], [14,600.45], [14,605.20], [14,605.55] Microsoft Corp v PC Club Australia Pty Ltd (2005) 148 FCR 310; 67 IPR 262 …. [14,590.20] Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; (2004) AIPC 92-028 …. [14,645.105], [14,645.125], [14,645.50] — v TYN Electronics Pty Ltd (in liq) (2004) 63 IPR 137; (2005) AIPC 92056 …. [14,645.105], [14,645.125], [14,645.50] Middleton v Erwin (2009) 52 MVR 218 …. [14,545.10], [15,240.5] Midland Milk Pty Ltd v Victorian Dairy Industry Authority (1988) ATPR 40-857 …. [10,760.76] Midwestern Machinery Co v Northwest Airlines, Inc [2004] USCA8 661; 392 F3d 265 …. [10,025.25] Mikaelian v Commonwealth Scientific & Industrial Research Organisation (1999) 163 ALR 172; [2001] ANZ ConvR 139 …. [11,720.23], [14,590.160] Milchas Investments Pty Ltd v Larkin (1989) ATPR 40-956 …. [11,720.7A] Mildura Fruit Juices Pty Ltd v Bannerman (1983) 1 IPR 56; 67 FLR 1; (1983) ATPR 40-365 …. [14,180.45], [14,665.10] Miles v Shell Co of Australia (1998) 156 ALR 133 …. [14,600.40] Miletich v Murchie [2012] FCA 1013; BC201207083 …. [11, 740CI],

[11,740CB.5], [14,590.315] Miller v Britt Allcroft (Thomas) LLC (2000) 52 IPR 419; (2000) ATPR 41792 …. [14,590.250] — v Cunninghams Warehouse Sales Pty Ltd (1994) ASC 56-271; (1994) ATPR 41-321 …. [11,605.14], [15,035.15] — v Fiona’s Clothes Horse of Centrepoint Pty Ltd (1989) ASC 55-924; (1989) ATPR 40-963 …. [14,645.170] Miller & Associates Insurance Broking Pty Limited v BMW Australia Finance Limited (2010) 270 ALR 204; (2010) 84 ALJR 644 …. [14,590.160] Milner v Delita Pty Ltd (1985) 9 FCR 299; 61 ALR 557; (1986) ATPR (Digest) 46-003 …. [11,655.20], [11,655.40] Minchillo v Ford Motor Co of Australia (1984) ATPR (Digest) 46-119 …. [10,055.40] Mindshare Communications Ltd v Eckett [2010] NSWSC 1511; BC201010018 …. [11,605.24] Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24 …. [10,650G.35] Minister for Health & Aged Care v Harrington Associates Ltd (2000) 107 FCR 212 …. [14,520.35], [14,590.115], [14,590.145] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 …. [14,177AB.10] Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 …. [14,177AB.10] Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2003) ATPR 41-961 …. [11,590.27] — v — [2004] FCAFC 72; BC200401455 …. [11,590.27], [11,590.27A] Minister for the Environment, Heritage and the Arts v PGP Developments Pty Ltd (2010) 183 FCR 10 …. [11,720.23] Mirvac (Docklands) Pty Ltd v La Rocca [2006] VSC 48; BC200600645 …. [14,600.35] Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23; (1981) ATPR 40-226 …. [11,655.20], [11,720.5], [14,590.200], [14,590.315] Mobileworld Communications Pty Ltd v Q & Q Global Enterprise (2003) 61 IPR 98; (2004) AIPC 91-955 …. [14,590.145], [14,590.80]

Mobileworld Operating Pty Ltd v Telstra Corp Ltd [2005] FCA 1365; BC200507112 …. [11,625.35] — v — [2006] FCA 743; BC200604378 …. [11,655.25], [11,655.70], [12,145.20] Moloney v ANZ Life Assurance Co Ltd (1997) ATPR 41-599 …. [14,590.165] — v Bells Securities Pty Ltd [2005] QSC 013; BC200500185 …. [11,655.50] Monaco Willows Pty Ltd v Greenbax Pty Ltd (1996) 36 IPR 387; (1996) ATPR 41-527 …. [14,590.120] Monarch Investments Pty Ltd v Yeramba Estates Pty Ltd (1997) 37 IPR 363; (1997) ATPR (Digest) 46-170 …. [14,590.80] Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2001) ATPR (Digest) 46-212 …. [10,025.95], [10,070.10], [10,760.45], [10,760.65], [10,785.75], [14,590.55], [14,605.7] — v — (2002) 122 FCR 110; (2002) ATPR 41-879 …. [10,025.95], [10,070.10], [10,700.45], [10,760.45], [10,760.55], [10,760.65], [10,785.75], [14,590.55], [14,605.7] Montana Tyres Rims & Tubes Pty Ltd v Transport Tyre Sales Pty Ltd (1998) 155 ALR 489; (1998) AIPC 91-427 …. [11,655.20] Moorna Constructions (NSW) Pty Ltd v Denmatu Pty Ltd (1998) ATPR 41616; (1998) V ConvR 54-584 …. [14,590.320] Morellini v Adams [2011] WASCA 84; BC201101816 …. [11,655.50] Morgan Corporate Ltd v GWG Leviny Pty Ltd (1995) ATPR 41-414 …. [11,655.25] Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) 30 ALR 88; (1980) ATPR 40-157 …. [10,700.30], [10,700.95] Morris v Alcon Laboratories (Aust) Pty Ltd (2003) ASAL 55-104; (2003) ATPR 41-923 …. [14,545.10] Mortgage House of Australia Pty Ltd v Mortgage House International Pty Ltd (2004) 63 IPR 600 …. [14,590.255] Morwood v Chemdata Pty Ltd (1998) ATPR 41-629 …. [10,760.76] Moss v Insurance Australia Ltd [2004] FCA 1636; BC200408576 …. [14,600.35] — v Lowe Hunt & Partners Pty Ltd [2010] FCA 1181; BC201008136 …. [11,655.20], [14,590.160]

Motor Accidents Authority of New South Wales v North Cronulla Investments Pty Ltd [1999] FCA 972; BC9903976 …. [14,590.270] Motor Trade Finances Prestige Leasing Pty Ltd v Elderslie Finance Group Corp Ltd [2006] NSWSC 1348; BC200610351 …. [11,585.15], [11,675.23], [14,590.30] Motorcharge Pty Ltd v Motorcard Pty Ltd (1982) 42 ALR 136; 64 FLR 153; (1982) ATPR 40-302 …. [14,590.213], [14,590.250], [14,590.255] Mudginberri Station Pty Ltd v Australian Meat Industry Employees Union (1985) 11 FCR 145; 61 ALR 291; 13 IR 275; (1985) ATPR 40-598 …. [10,740.65] Muffingrove Pty Ltd v Melridge Mining and Exploration Pty Ltd (1991 unreported) …. [11,625.45], [11,720.15] Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170; (1998) ATPR (Digest) 46-186 …. [11,655.70], [14,590.55], [14,590.300], [14,600.35] Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (2001) 109 FCR 528; 191 ALR 402 …. [11,625.67], [11,720.27], [11,720.7] Multinet Gas (DB No 1) Pty Ltd, Re Application by [2013] ACompT 5; BC201310767 …. [10,605.15] Multinet Gas (DB No 1) Pty Ltd, Re Application by (No 2) [2013] ACompT 6; BC201311474 …. [10,605.15] Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274; 84 ALR 700; (1989) ATPR 40-926 …. [11,655.15], [11,655.20], [11,655.21], [11,655.50], [11,720.6], [11,720.7C] Munday v Australian Capital Territory (1999) ATPR 41-680 …. [10,070.10], [10,150.5], [10,785.75] Municipal Council of Shanghai v McMurray [1900] AC 206 …. [10,650V.10] Murphy v Overton Investments Pty Ltd (2001) 112 FCR 182; 182 ALR 138 …. [11,655.25], [11,655.65] — v — (2004) 204 ALR 26 …. [11,655.25], [11,655.50], [11,655.65], [11,655.70] — v — [2002] FCAFC 129; BC200202487 …. [11,655.25] — v Victoria (2014) 313 ALR 546; 289 FLR 337 …. [10,025.20], [10,025.95] — v Victoria (No 2) (2014) 289 FLR 245 …. [10,025.20] — v Westpac Banking Corp [2014] FCA 1104; BC201408815 ….

[10,025.95], [14,590.55] Murray Publishers Pty Ltd v Mount Blue Cow Skibowl Pty Ltd (1992) ATPR 41-182 …. [14,590.280] Musca v Astle Corp Pty Ltd (1988) 80 ALR 251; (1988) ATPR 40-855 …. [11,655.45] MWH Australia Pty Ltd v Wynton Stone Australia Pty Ltd (In Liq) [2010] VSCA 245; BC201006926 …. [11,655.20] Myers v Trans Pacific Pastoral Co Pty Ltd (1986) ATPR 40-673 …. [14,590.310] Nagy v Masters Dairy Ltd (1996) 150 ALR 273; (1997) ATPR (Digest) 46164 …. [11,655.20], [11,655.25], [14,590.160] — v — (1997) 150 ALR 301; (1998) ATPR 41-603 …. [11,655.25], [14,590.160] Narellan Pools Pty Ltd v Huntsman Chemical Co Australia Pty Ltd [2010] FCA 267; BC201001610 …. [14,520.35] Nathan v Capital Finance Australia Ltd [2008] FCA 459; BC200802421 …. [14,590.85], [14,750.40] National Australia Bank Ltd v Garcia (1996) 39 NSWLR 577; 21 ACSR 309; [1997] ANZ ConvR 34 …. [14,600.40] — v Hann Nominees Pty Ltd (2000) ANZ Conv R 160 …. [11,655.70] — v Meeke [2007] WASC 11; BC200700151 …. [14,605.20] — v Nobile (1988) 100 ALR 227; (1988) ASC 55-657; (1988) ATPR 40-856 …. [14,600.35] — v Satchithanantham [2009] NSWSC 21; BC200900377 …. [14,600.35] — v Smith [2014] NSWSC 1605; BC201411291 …. [14,600.35] National Bank Australia Ltd v Sahin [2011] VSC 505; BC201107734 …. [11,655.45] National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 49 ACSR 369; 61 IPR 420 …. [14,590.30], [14,590.130] — v — [2004] ATPR 42-000 …. [14,590.73] National Foods Ltd, Re Application by (2002) ATPR 41-885 …. [12,130.22] National Foods Milk Ltd v McMahon Milk Pty Ltd [2008] VSC 208; BC200804545 …. [14,605.20] National Justice Compania Naviera SA v Prudential Assurance Co Ltd

[1993] 2 Lloyd’s Rep 68 …. [12,145.15] National Mutual Property Services (Aust) Pty Ltd v Citibank Savings Ltd (No 1) (1995) 132 ALR 514 …. [11,655.73] Nationwide News Pty Ltd v Australian Competition & Consumer Commission (1996) 71 FCR 215; 142 ALR 212; 37 IPR 391 …. [11,605.5], [14,645.135] Natural Waters of Viti Ltd v Dayals (Fiji) Artesian Waters Ltd (2007) 71 IPR 571; (2007) ATPR 42-148 …. [14,590.100], [14,590.175], [14,590.270], [14,590.85] Natureland Parks Pty Ltd v My Life Corp Pty Ltd (1996) 138 ALR 47; (1996) ATPR 41-493 …. [10,155.10] Natwest Australia Bank Ltd v Boral Gerrard Strapping Systems Pty Ltd (1992) ATPR 41-196 …. [10,760.55], [10,760.68], [10,760.76] — v Tricontinental Corp Ltd (1993) ATPR (Digest) 46-109 …. [14,590.225] Nea Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106; BC200503806 …. [10,055.25], [11,585.60], [14,590.225] Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 …. [10,830.5G], [11,625.95] Neilsen v Hempston Holdings Pty Ltd (1986) ATPR 40-686 …. [11,655.22] Nella v Kingia Pty Ltd (1986) 11 FCR 281; 61 ALR 603; (1986) ATPR 40723 …. [11,585.10], [11,655.60] Nescor Industries Group Pty Ltd v Miba Pty Ltd (1997) 150 ALR 633; (1998) ATPR 41-609 …. [14,590.315] Netaf Pty Ltd v Bikane Pty Ltd (1990) 92 ALR 490; (1990) ATPR 41-011 …. [11,655.50] Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101; 11 IPR 375; (1988) ASC 55-670; (1988) ATPR 40-883 …. [14,645.65], [14,645.145] New South Wales v Commonwealth (2006) 231 ALR 1 …. [10,025.30] — v RT & YE Falls Investments Pty Ltd (2003) 57 NSWLR 1 …. [10,025.20], [10,025.95] New South Wales Bar Association v Forbes Macfie Hansen Pty Ltd (1988) ATPR 40-875 …. [10,017.15] New South Wales Dairy Corporation v Murray Goulburn Co-operative Co Ltd (1988) 12 IPR 587; (1988) ATPR 40-904 …. [11,625.35] New South Wales Government, Re (1997) ATPR (NCC) 70-002 ….

[10,650G.10], [10,650N.10] New South Wales Lotteries Corporation Pty Ltd v Kuzmanovski [2011] FCAFC 106; BC201106379 …. [14,590.85] New South Wales Minerals Council Ltd, Re (1997) ATPR (NCC) 70-005 …. [10,650G.10] New South Wales Mutual Real Estate Fund Ltd v Brookhouse (1979) 38 FLR 257; (1979) ATPR 40-104 …. [11,675.20] New Zealand Magic Millions Ltd v Wrightson Bloodstock Ltd [1990] 1 NZLR 731 …. [10,760.50] News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; 139 ALR 193; (1996) ATPR 41-521 …. [10,065.15], [10,065.30], [10,065.45], [10,145.5], [10,700.15], [10,700.25], [10,700.35], [10,700.40], [10,700.45], [10,700.95] — v — (1996) ATPR 41-466 …. [10,065.45] — v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563; 200 ALR 157 …. [10,065.20], [10,065.30], [10,065.45], [10,065.8], [10,095.14], [10,700.40] Nexans SA RCS Paris 393 525 852 v Australian Competition and Consumer Commission [2013] FCA 192; BC201300996 …. [10,155.8] Nextra Australia Pty Ltd v Fletcher [2014] FCA 399 …. [14,590.55] Nick Scali Ltd v Super A-Mart Pty Ltd [2011] FCA 751; BC201104866 …. [14,590.85], [14,645.55] Nickhun Pty Ltd v Grifkam Pty Ltd (2005) ATPR 42-049 …. [14,590.250] Nike International Ltd v Campomar Sociedad Ltd (1996) 35 IPR 385; (1996) AIPC 91-271; (1996) ATPR 41-518 …. [14,590.120] Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784; BC200604574 …. [11,655.25] Nixon v Philip Morris (Aust) Ltd (1999) ATPR 41-707 …. [11,655.45], [11,655.48], [11,655.70] — v Slater & Gordon (2000) 175 ALR 15; (2000) ATPR 41-765 …. [10,025.95], [14,590.55], [14,590.140] NMFM Property Pty Ltd v Citibank Limited (2000) 107 FCR 270; 186 ALR 442 …. [11,675.15], [11,675.20] Nobile v National Australia Bank Ltd (1987) ASC 55-580; (1987) ATPR 40787 …. [14,590.125] Nolan v Westpac Banking Corp (1989) 51 SASR 496; 98 FLR 226; (1989)

ASC 55-930; (1989) ATPR 40-982 …. [14,600.35] Nominet UK v Diverse Internet Pty Ltd (2004) 63 IPR 543 …. [14,700.15] Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc (No 2) [2011] VSC 153; BC201102208 …. [10,025.95], [14,590.140], [14,590.33] Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Ltd (2005) 215 ALR 625; 189 FLR 14 …. [14,590.160] Norcast S AR L v Bradken Ltd (No 2) (2013) 219 FCR 14; 302 ALR 486 …. [10,025.85], [10,155.10], [10,155.8], [10,690ZZRD.90], [10,690ZZRQ.5], [10,700.25], [10,700.30], [11,585.65], [14,590.160], [14,590.55] Norgard v Rodpat Nominees Pty Ltd (1991) ATPR 41-139 …. [11,720.20] North East Equity Pty Ltd v Proud Nominees Pty Ltd [2007] FCA 1587; BC200708769 …. [14,520.35] North East EquityPty Ltd v — (2012) 285 ALR 217 …. [14,520.35] Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia Ltd (2015) 111 IPR 1 …. [14,590.100], [14,590.140], [14,590.85] NRMA Ltd v Yates (2000) 18 ACLC 45; (1999) ATPR 41-721 …. [10,025.95], [14,590.55] NRMA Ltd, Re (2000) 34 ACSR 261; 18 ACLC 533 …. [14,590.160], [14,590.30] NSI Dental Pty Ltd v University of Melbourne (2006) 69 IPR 542 …. [14,590.170] NT Power Generation Pty Ltd v Power and Water Authority (2001) 184 ALR 481; (2001) ATPR 41-814 …. [10,015.20], [10,017.20], [10,017.40], [10,025.20], [10,070.10], [10,070.40], [10,760.55] — v — (2002) 122 FCR 399; (2003) ATPR 41-909 …. [10,015.10], [10,015.20], [10,017.20], [10,017.25], [10,017.40], [10,025.20], [10,070.10], [10,070.40], [10,760.10], [10,760.45], [10,760.55] — v — (2004) 219 CLR 90; 210 ALR 312 …. [10,015.10], [10,015.35], [10,015.5], [10,017.5], [10,017.20], [10,017.25], [10,018.10], [10,018.5], [10,025.27], [10,025.28], [10,070.10], [10,650.10], [10,650.5], [10,650N.10], [10,760.10], [10,760.45], [10,760.55], [10,760.65], [10,760.76] Nursing Agencies Assn of Australia, Re [2003] ACompT 2 …. [12,130.35] Nutrientwater Pty Ltd v Baco Pty Ltd (2010) 265 ALR 140; 84 IPR 452 ….

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Philip Morris (Aust) Pty Ltd v Nixon (2000) 170 ALR 487; (2000) ATPR 41-759 …. [11,655.45], [11,655.48], [11,655.70] Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; 33 ALR 465; (1981) ATPR 40-197 …. [11,695.10], [11,695.15] Philips Electronics NV v Remington Products Australia Pty Ltd (1997) 39 IPR 283; (1997) AIPC 91-378; (1997) ATPR 41-595 …. [14,590.120], [14,590.270] Phillips Contracting Pty Ltd v Yensong [2008] NSWSC 769; BC200806875 …. [14,590.320] Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 …. [14,520.15], [14,520.50], [14,520.55] Photo-Continental Pty Ltd v Sony (Aust) Pty Ltd (1995) ATPR 41-372 …. [10,760.45] PIHA Pty Ltd v Vinidex Tubemakers Pty Ltd (1999) ATPR (Digest) 46-194 …. [11,710.10] Pihiga Pty Ltd v Roche [2011] FCA 240; BC201101349 …. [14,590.135] Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2011) 193 FCR 57; 277 ALR 282 …. [10,650AA.5], [10,650G.10], [10,650G.15], [10,650G.35] — v — (2012) 290 ALR 750 …. [10,650.5], [10,650G.7], [10,650G.10], [10,650G.15], [10,650G.35], [10,650H.10], [10,650K.5], [12,130.25] Pileggi v Australian Sports Drug Agency [2004] FCA 955; (2004) 138 FCR 107 …. [10,690ZZRD.90] Pinetrees Lodge Pty Ltd v Atlas International Travel Pty Ltd (1981) 38 ALR 187; 59 FLR 244 …. [14,590.80] — v — (1981) ATPR 40-248 …. [14,590.210] Pinky’s Pizza Ribs on the Run Pty Ltd v Pinky’s Seymour Pizza and Pasta Pty Ltd (1997) ATPR 41-600 …. [14,590.250], [14,590.255] Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460; 43 ALR 449; (1982) ATPR 40-320 …. [14,180.40], [14,180.5], [14,180.80] Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78; BC201604491 …. [11,675.20] Pipe Networks Pty Ltd v Commonwealth Superannuation Corp [2013] FCA 444; BC201302481 …. [14,177.5] Pivot Transport Pty Ltd v Bulkhaul Ltd (1993) ATPR 41-223 …. [14,590.75]

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PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (ACCC) (2012) 290 ALR 681; 86 ALJR 1071 …. [10,005.20] PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446; BC201316274 …. [14,605.20] Public Interest Advocacy Centre Ltd and Essential Energy, Re Applications by [2016] ACompT 3 …. [10,605.10] Public Interest Advocacy Centre Ltd, Re [2015] ACompT 2 …. [10,605.10] Pugh v Clark Rubber Ltd (1993) ASC 56-232; (1993) ATPR 41-258 …. [15,035.15] Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1979) 27 ALR 387; (1979) ATPR 40-135 …. [14,590.20], [14,590.65], [14,590.90] — v — (1980) 31 ALR 73; (1980) ATPR 40-171 …. [11,625.45] Pye Industries Sales Pty Ltd v Trade Practices Commission (1979) ATPR 40-124 …. [10,800.45], [11,590.29] Pyneboard Pty Ltd v — (1982) 39 ALR 565; 57 FLR 363 …. [14,180.20], [14,180.25], [14,180.5] — v — (1983) 152 CLR 328; 45 ALR 509; (1983) ATPR 40-341 …. [11,590.28], [14,180.75] Qantas Airways Ltd (2004) ATPR 42-027; [2004] ACompT 9 …. [10,070.20], [10,070.40], [10,690.5], [11,855.19], [11,855.19A], [11,855.20], [11,855.21], [11,855.22], [12,130.25], [12,145.15] — v Cameron (No 3) (1996) 68 FCR 387; 148 ALR 378; (1996) ATPR 41530 …. [11,625.45], [11,655.21], [11,720.23], [14,520.15], [14,605.20] — v Transport Workers Union of Australia [2011] FCA 470; BC201102981 …. [10,740.20], [10,740.30], [10,740.65] Qantas Airways Ltd, Re (2003) ATPR 41-972; [2003] ACompT 4 …. [12,130.20], [12,175.5] Qantas Airways Ltd, Re (No 2) [2006] ACompT 1 …. [11,865.6] QDSV Holdings Pty Ltd (t/as Bush Friends Australia) v Trade Practices Commission (1995) 59 FCR 301; 131 ALR 493; (1995) ATPR 41-432 …. [14,645.145] QIW Retailers Ltd v Davids Holdings Pty Ltd (No 1) (1992) 8 ACSR 245; (1992) ATPR 41-178 …. [11,625.28] — v Davids Holdings Pty Ltd (No 3) (1993) 42 FCR 255; 114 ALR 579; (1993) ATPR 41-226 …. [10,070.10], [10,820.80]

Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86; 98 ALR 659; (1991) ATPR 41-065 …. [14,590.135] — v — BC9203213 …. [14,590.110] Quade v Commonwealth Bank of Australia (1991) 27 FCR 569; 99 ALR 567; (1991) ATPR 41-093 …. [14,590.325] Quadrascan Graphics Pty Ltd v Crosfield Electronics ANZ Pty Ltd (1995 unreported) …. [14,520.15], [14,520.50] — v — BC9507757 …. [14,590.80] Quanstruct Pty Ltd v Bongiorno Ltd (1993) 113 ALR 667; (1993) ATPR 41235 …. [11,655.70] Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 …. [11,655.50] Queensland Co-op Milling Association Ltd, Re (1976) 8 ALR 481; 25 FLR 169; (1976) ATPR 40-012 …. [10,025.25], [10,070.10], [10,070.20], [10,700.95], [10,760.45], [10,760.50], [10,820.55], [11,855.18], [11,855.20], [12,140.10], [18,472] Queensland Independent Wholesalers Ltd, Re (1995) 132 ALR 225; (1995) ATPR 41-438 …. [10,070.35], [10,820.80], [11,855.21] Queensland Timber Board, Re (1975) 5 ALR 501; (1975) ATPR 40-005 …. [11,855.10], [12,130.25] Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (Star Picket Fence Post case) (1989) 167 CLR 177; 83 ALR 577; 63 ALJR 181; (1989) ATPR 40-925 …. [10,025.25], [10,070.10], [10,070.15], [10,070.20], [10,690.5], [10,760.10], [10,760.45], [10,760.50], [10,760.55], [10,760.65], [10,760.66], [10,760.76], [18,009] Quiet Achiever Investments Pty Ltd v MDM Properties Pty Ltd [2006] VSC 365; BC200608019 …. [14,590.140], [14,590.230], [14,590.310] Quigley v Legal Practitioners Complaints Committee [2003] WASCA 228; BC200305680 …. [10,560.10] Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd [2014] FCAFC 70; BC201404623 …. [14,590.30], [15,905.5] — v Point to Point Cutting Services Pty Ltd [2013] VSC 501; BC201313065 …. [15,905.8] — v Prosperity Group International Pty Ltd (in liq) (2013) 295 ALR 472; 92 ACSR 343 …. [15,905.5], [15,905.8] Quinlivan v Australian Competition and Consumer Commission (2004) 160

FCR 1; (2004) ATPR 42-010 …. [14,520.15], [14,520.30] — v Australian Securities and Investments Commission (ASIC) (2010) 81 ACSR 522 …. [11,719E.5] R v Associated Northern Collieries (1912) 14 CLR 387 …. [10,740.30] — v Bright [1916] 2 KB 441; (1916) 12 Cr App Rep 69 …. [11,590.25A] — v Campbell (2008) 73 NSWLR 272 …. [10,690ZZRD.90] — v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 …. [14,285.10] — v Hughes (2000) 202 CLR 535; 171 ALR 155; 34 ACSR 92 …. [10,650ZZM.5], [14,155.5] — v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 …. [14,177AH.15] — v Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113; 23 ALR 69 …. [11,625.15] — v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190; 23 ALR 439 …. [10,025.100] — v Meaton (1986) 160 CLR 359; 65 ALR 65; 60 ALJR 417 …. [11,590.25A] — v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 …. [14,177AH.15] — v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439 …. [10,017.20] — v Trade Practices Tribunal and Cmr of Trade Practices; Ex parte St George County Council (1974) 2 ALR 371 …. [10,025.100] — v Trade Practices Tribunal; Ex parte Tooheys Ltd (1977) 16 ALR 609; 31 FLR 1 …. [12,160.5] R & C Products Ltd v Abundant Earth Pty Ltd (1984) 3 FCR 40; 55 ALR 38; (1984) ASC 55-364; (1984) ATPR 40-488 …. [14,590.100] R & C Products Pty Ltd v S C Johnson & Son Pty Ltd (1994) ATPR 41-364 …. [14,590.80] — v SC Johnson & Sons Pty Ltd (1993) 42 FCR 188; 113 ALR 487; (1993) ATPR 41-234 …. [14,590.120], [14,590.270] — v Sterling Winthrop Ltd (1993) 27 IPR 223; (1993) ATPR 41-253 …. [14,590.250]

Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Queensland (1995) 58 FCR 119; (1995) ATPR 41-426 …. [11,625.35] Radferry Pty Ltd v Starborne Holdings Pty Ltd (1999) ATPR (Digest) 46189 …. [11,655.25] Radic v Henley Properties (NSW) Pty Ltd [2000] FCA 1416; BC200006042 …. [11,710.10] Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557; 62 FLR 437; (1982) ATPR 40-318 …. [10,690.5], [10,690ZZRD.50], [10,690ZZRD.65], [10,700.45], [10,700.50], [10,700.95], [10,760.35] Rafferty v Madgwicks (2012) 287 ALR 437 …. [10,905.10], [10,905.7], [10,905.8], [14,590.320] Rahme v Commonwealth Bank of Australia (1991) ASC 56-057; (1991) ATPR 41-089 …. [14,590.325] RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164; 112 ALR 511; (1993) ATPR 41-225 …. [11,720.23], [14,590.165], [14,590.20] Rail Access Corporation v New South Wales Minerals Council Ltd (1998) 87 FCR 517; 158 ALR 323; (1998) ATPR 41-663 …. [10,650B.5], [10,650B.8], [10,650B.15] Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee) [2016] FCA 430; BC201602951 …. [14,590.300] Rana v Libraries Board of SA [2008] FMCA 911; BC200805485 …. [10,025.95] — v University of South Australia [2007] FCA 816; BC200704152 …. [14,590.85] — v — [2007] FCAFC 188; BC200710545 …. [14,590.85] Ransley v Medical Benefits Fund of Australia Ltd (1980) ATPR 40-160 …. [14,645.40] Ransom v Higgs [1974] 1 WLR 1594 …. [10,025.95] Rawcliffe v Custom Credit Corp (1994) ATPR 41-292 …. [11,720.15] Razdan v Westpac Banking Corporation [2014] NSWCA 126; BC201402678 …. [14,590.240] REA Group Ltd v Real Estate 1 Ltd [2013] FCA 559; BC201302952 …. [14,590.120], [14,590.250], [14,590.85] Read v Brown (1888) 22 QBD 128 …. [11,655.70] Reading Entertainment Australia Pty Ltd v Birch Carroll & Coyle Ltd (2002)

ATPR 41-853 …. [10,760.65] Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd (No 2) [2008] FCA 1480; BC200808721 …. [11,585.20], [11,655.20], [14,520.35], [14,590.70] Real Estate Institute of Australia Ltd, Re (2000) ATPR 41-775 …. [12,130.25] Really Useful Group Ltd v Gordon & Gotch Ltd (1994) 29 IPR 19; (1994) ATPR 41-336 …. [14,590.120], [14,590.250] Reardon v Nolan (1983) 51 ALR 715; (1983) ATPR 40-405 …. [11,605.20] Recall Information Management Pty Ltd v National Union of Workers [2013] FCA 161; BC201300800 …. [10,740.65], [10,740DD.5] Reckitt Benckiser (Aust) Pty Ltd v SC Johnson & Son Pty Ltd (2004) ASAL 55-132; (2004) ATPR 42-026 …. [14,590.280] Reckitt Benckiser (Australia) Pty Ltd v Procter & Gamble Australia Pty Ltd [2015] FCA 753; BC201506890 …. [14,590.280] Red Bull Australia Pty Ltd v Sydneywide Distributors Pty Ltd (2001) 53 IPR 481 …. [14,590.270] Refrigerated Express Lines (A’asia) Pty Ltd v Australian Meat and Livestock Corp (1979) 42 FLR 204; (1979) ATPR 40-137 …. [11,590.28] — v Australian Meat and Livestock Corp (No 2) (1980) 29 ALR 333; 44 FLR 455; (1980) ATPR 40-156 …. [10,690.5] Regents Pty Ltd v Subaru (Aust) Pty Ltd (1996) ATPR 41-463 …. [10,760.76], [11,625.35] — v — (1998) 84 FCR 218; 42 IPR 421; (1998) ATPR 41-647 …. [10,070.10], [10,070.25], [10,760.35], [10,760.45], [10,760.65], [10,760.66], [10,760.76] Reiffel v ACN 075 839 226 Ltd (2003) 45 ACSR 67; 21 ACLC 469 …. [11,655.20] Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187; BC200801327 …. [11,740CF.5] Reinsurance Australia Corporation Ltd v HIH Casualty and General Insurance Ltd (in liq) [2003] FCA 56; BC200300159 …. [10,155.9] Review of Freight Handling Services at Sydney International Airport, Re (2000) ATPR 41-754; [2000] ACompT 1 …. [10,650.5], [10,650B.5], [10,650B.10], [10,650G.7], [10,650G.10], [10,650G.15], [10,650G.25], [10,650G.30], [10,650G.35], [10,650H.10], [14,177AB.15]

RGC Sands Ltd v Wimmera Industrial Minerals Pty Ltd (1999) 161 ALR 93; 47 IPR 115 …. [11,695.10] Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477; (1986) 68 ALR 77; (1986) ASC 55-501; (1986) ATPR (Digest) 46-010 …. [10,025.135], [14,590.160] Ricegrowers Co-op Mills Ltd v Bannerman (1981) 35 ALR 553; 53 FLR 408 …. [14,180.45] Ricegrowers Ltd v Real Foods Pty Ltd (2008) 77 IPR 32 …. [14,590.85], [14,590.250], [14,590.270] Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; 209 ALR 271 …. [11,719E.5] Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681; (1994) ATPR (Digest) 46-133 …. [11,585.15], [11,585.20] Ricochet Pty Ltd v Equity Trustees Executor and Agency Co Ltd (1993) 41 FCR 229; 113 ALR 30; (1993) ATPR 41-236 …. [11,655.20], [14,590.315] Ridgway v Consolidated Energy Corp Pty Ltd (1986) 7 IPR 452; (1987) ATPR 40-754 …. [14,590.330] Rieson v SST Consulting Services Pty Ltd (2005) ATPR 42-045 …. [10,785.65] Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561; 31 FLR 129; (1977) ATPR 40-036 …. [14,180.10], [14,645.15] Rinbridge Marketing Pty Ltd v Walsh [2000] FCA 1738; BC200007846 …. [11,585.60] Rio Tinto Ltd v Australian Competition Tribunal [2008] FCAFC 6; BC200800597 …. [10,650G.6] Ritchie v Woollett BC9604492 …. [14,520.35], [14,590.320] Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608; BC200207934 …. [10,070.50] Rizzo v Fitzgerald (1988) 19 FCR 175; 83 ALR 169; (1988) ASC 55-677; (1988) ATPR 40-890 …. [14,700.15], [14,700.20] Robbins v Sons of Gwalia Ltd [2009] FCA 96; BC200900619 …. [11,710.10] Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd, Re Applications by [2013] ACompT 2; BC201300428 …. [10,650G.10], [10,650G.15],

[10,650G.35], [10,650K.10] Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1999) ATPR 41-668 …. [10,760.35], [10,760.45], [10,760.65], [10,760.65A] Roberts v Hong Kong Bank of Australia Ltd (1993) 35 AILR 213 …. [14,590.95] — v Murlar Pty Ltd (1986) 68 ALR 62; 16 IR 199; (1986) ATPR 40-729 …. [10,745.45] Robertson v Knott Investments Pty Ltd (No 3) [2010] FCA 1074; BC201007322 …. [14,655.15] Robertson Street Properties Pty Ltd v RPM Promotions Pty Ltd [2005] QSC 095; BC200502655 …. [14,590.160], [14,590.225] Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449; (1999) ATPR 41-710 …. [10,025.95], [14,590.55] Rochfort v Trade Practices Commission (1982) 153 CLR 134; 43 ALR 659 …. [14,180.25] Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39; BC200801968 …. [11,655.15] Rodrigues v ABE Copiers Pty Ltd (1983) ASC 55-264; (1983) ATPR 40-379 …. [14,645.75] Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708; BC200610301 …. [14,600.35], [14,750.25], [14,750.30], [14,750.35] — v — [2006] FCA 434; BC200602418 …. [11,695.10] Rolls Royce Motors Ltd v DIA (Engineering) Pty Ltd (1981) 50 FLR 340; (1981) ATPR 40-209 …. [14,590.330] Ron Hodgson (Holdings) Ltd v Westco Motors (Distributors) Pty Ltd (1980) 29 ALR 307; (1980) ATPR 40-143 …. [10,800.45] Roots v Trussmaster Pty Ltd [2003] QSC 348; BC200306087 …. [14,545.10] Rose v Sakkara Properties Pty Ltd [2009] FCA 304; BC200903071 …. [14,600.35] Rosebanner Pty Ltd v Energy Australia (2009) 223 FLR 460 …. [10,025.95], [14,520.35], [14,590.135] Roses Only & Lush Pty Ltd v Mark Lyons Pty Ltd (1999) 47 IPR 593; (1999) ATPR 41-706 …. [11,625.35], [11,625.40], [14,590.250], [14,590.270], [14,590.80]

Roumanus v Orchard Holdings (NSW) Pty Ltd [2012] FCA 775; BC201205287 …. [14,590.30] Rousselis v Aizeema (Aust) Pty Ltd (1994) ATPR (Digest) 46-116 …. [14,520.50] RP Data Ltd v Queensland (2007) ATPR 42-197 …. [10,017.25], [10,025.20], [10,070.10], [10,760.45], [10,760.76] RPR Maintenance Pty Ltd v Marmax Investments Pty Ltd [2014] FCA 409 …. [14,600.35] Ruaro v Ferrari [2007] FCA 2022; BC200711602 …. [10,025.85], [14,805.10], [14,820.5] — v Holcomm Marine Pty Ltd [2008] FCAFC 174; BC200809667 …. [10,025.85], [14,805.10], [14,820.5] Rumcoast Holdings Pty Ltd v Prospero Publishing Pty Ltd (1999) 152 FLR 240; 48 IPR 75; (1999) ATPR 41-724 …. [14,590.100], [14,590.250] Rural Export & Trading (WA) Pty Ltd v Hahnheuser (2008) 169 FCR 583 …. [10,740.20], [10,740DD.10] — v — [2007] FCA 1535; BC200708456 …. [10,740DB.5], [10,740DB.10], [10,740DB.15], [10,740DD.20] — v — [2009] FCA 678; BC200905445 …. [11,655.20] Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236; 193 ALR 399 …. [10,065.30], [10,070.30], [10,700.50], [10,760.45], [10,760.55], [10,760.65], [11,585.65] — v — (2003) 203 ALR 217; 78 ALJR 274 …. [10,065.30], [10,065.45], [10,700.30], [10,700.50], [10,700.95], [10,760.55], [10,760.65], [10,760.76], [10,820.27], [11,585.20], [11,585.60], [11,720.23], [17,974] — v — (2003) 216 CLR 53 …. [10,785.65] Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 …. [11,720.23] Ryan v Great Lakes Council (1999) 102 LGERA 123; (1999) ATPR 46-191 …. [14,535.20], [14,545.10], [15,220.20] — v Wikramanayake [2013] NSWSC 1150; BC201312225 …. [14,590.160] S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354; 168 ALR 396; (1999) ATPR 41-667 …. [14,590.100], [14,590.120], [14,590.175], [14,590.250], [14,590.270], [14,590.70] S & U Constructions Pty Ltd v Westworld Property Holdings Pty Ltd (1988) ASC 55-655; (1988) ATPR 40-854 …. [14,590.310]

SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357; 89 ALR 105 …. [14,180.20] Sabre Corp Pty Ltd v Laboratories Pharm-A-Care Pty Ltd (1995) 31 IPR 445; (1995) ATPR 41-396 …. [11,625.35], [11,625.45], [14,590.70], [14,590.85], [14,590.115], [14,590.120], [14,590.165], [14,590.175] Saint-Gobain Abrasives Pty Ltd v McPherson [2009] NSWCA 214; BC200906525 …. [14,545.10], [14,545.40] Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525; (1988) ASC 55-671; (1988) ATPR 40-882 …. [14,590.230] Saitta Pty Ltd v Commonwealth [2001] FCA 817; BC200103470 …. [11,695.10] — v — [2001] VSC 170; BC200102852 …. [10,025.20] Salfinger v Niugini Mining (Aust) Pty Ltd (No 3) [2007] FCA 1532; BC200708553 …. [11,655.73] Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd (1998) ATPR 41-641 …. [11,585.15], [11,585.60], [12,010.15] Samsung Electronics Australia Pty Ltd v LG Electronics Australia Pty Ltd [2011] FCA 664; BC201104102 …. [14,590.225], [14,590.85] — v — [2015] FCA 227; BC201501730 …. [14,590.140], [14,590.220], [14,645.50] Sanders v Glev Franchises Pty Ltd [2002] FCA 1332; BC200206415 …. [14,520.35] Sanguine Technology Pty Ltd v Abacus Calculators (WA) Pty Ltd [2010] FCA 279; BC201001613 …. [14,590.315] Sanofi-Aventis Australia Pty Ltd v Apoitex Pty Ltd (No 3) (2011) 281 ALR 705; 92 IPR 320 …. [14,590.90], [14,590.330] Sanrod Pty Ltd v Dainford Ltd (1984) 54 ALR 179; (1984) ASC 55-335; (1984) ATPR 40-464 …. [11,655.40], [14,590.310] Satna Holdings Pty Ltd v Jokade Pty Ltd (1985) ATPR 40-529 …. [14,590.320] SC Johnson & Son Pty Ltd v Reckitt Benckiser (Aust) Pty Ltd [2012] FCA 1266; BC201208775 …. [14,590.80] — v Reckitt Benckiser (Aust) Pty Ltd (No 2) [2012] FCA 1362; BC201209536 …. [11,720.23] Schneider Electric (Aust) Pty Ltd v Australian Competition and Consumer Commission (2003) 127 FCR 170; 196 ALR 611 …. [11,590.20],

[11,590.25] Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 5) [2010] FCA 1105; BC201007484 …. [11,625.60] Scotch Whisky Association v De Witt (2007) 74 IPR 382; (2008) AIPC 92264 …. [14,590.120] Scott v Windsor Holdings Pty Ltd (1986) ASC 55-529; (1986) ATPR 40-737 …. [14,590.320] Sea Swift Pty Ltd, Application by (No 2) [2015] ACompT 6; BC201510224 …. [11,913AZA.5] Sea Swift Pty Ltd, Re Application by [2015] ACompT 5 …. [12,175.5] — [2016] ACompT 9 …. [11,855.20], [11,855.20A], [11,855.21], [11,913AZH.5] Seabridge Australia Pty Ltd v JLW (NSW) Pty Ltd (1991) 29 FCR 415; [1991] ANZ ConvR 533; (1991) ASC 56-064; (1991) ATPR 41-112 …. [14,590.150] Seafolly Pty Ltd v Madden (2012) 98 IPR 389 …. [10,160.18], [14,590.165], [14,645.35] — v Madden (No 4) [2014] FCA 980; BC201407551 …. [11,655.35] Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120 …. [10,740.30] Secretary, Department of Health and Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545; BC200809192 …. [11,590.20], [11,590.27] Security and Equity Trading (Aust) Pty Ltd v Umtali Holdings Pty Ltd (1995) ATPR 41-373 …. [11,720.7C] Sedgwick Ltd v Bain Clarkson Ltd (t/as Bain Hogg Ltd) (1994) 56 FCR 578; 129 ALR 493; (1995) ATPR 41-411 …. [11,720.18], [11,720.32] Seekers Nominees Pty Ltd v Target Australia Pty Ltd (1995) 32 IPR 372 …. [11,625.35], [11,625.45], [14,590.250], [14,590.255] Seeley International Pty Ltd v Newtronics Pty Ltd [2001] FCA 1862; BC200108270 …. [10,055.13], [10,055.43], [11,655.20], [14,800.10] Selig v Wealthsure Pty Ltd (2015) 320 ALR 47; 105 ACSR 552 …. [11,740CB.5], [11,740CB.28], [11,740CD.25] Sellars v Adelaide Petroleum NL (1994) 120 ALR 16; (1994) ATPR 41-301 …. [11,655.15], [11,655.20], [11,655.25] Semrani v Manoun [2001] NSWCA 337; BC200105980 …. [11,655.20], [14,590.160]

Sent v Jet Corp of Australia Pty Ltd (1986) 160 CLR 540; 66 ALR 73 …. [11,720.27] Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84; 117 ALR 393; (1993) ATPR 41-266 …. [14,590.140], [14,590.80] Services Sydney Pty Ltd, Application by (2005) 227 ALR 140; (2006) ATPR 42-099; [2005] ACompT 7 …. [10,070.10], [10,070.25], [10,650.5], [10,650B.5], [10,650G.5A], [10,650G.6], [10,650G.7], [10,650G.8], [10,650G.10], [10,650G.15], [10,650G.20], [10,650G.35], [10,650H.10], [10,650N.10] — (2005) ATPR 42-061; [2005] ACompT 2 …. [10,650K.15], [12,175.5] Seven Cable Television Pty Ltd v Telstra Corp Ltd (2000) 171 ALR 89 …. [14,177AR.5] Seven Network Limited, Re (No 4) (2004) 187 FLR 373; (2005) ATPR 42056 …. [14,177AB.10], [14,177AB.35] Seven Network Ltd v ACCC [2008] FCA 411; BC200802250 …. [14,177CBA.10] — v Australian Competition and Consumer Commission (2004) ATPR 42007 …. [14,180.10], [14,180.15], [14,180.20], [14,595.25] — v — (2004) 140 FCR 170; 212 ALR 31 …. [14,180.10], [14,180.15], [14,180.17], [14,180.20], [14,180.5], [14,595.25] — v — (2007) 164 FCR 127; 245 ALR 68 …. [14,177CBA.10], [14,177CBD.5], [14,177AR.5] — v News Ltd (2007) ATPR (Digest) 42-274 …. [10,065.30], [10,065.45], [10,070.10], [10,070.20], [10,070.40], [10,145.5], [10,160.13], [10,700.30], [10,700.40], [10,700.45], [10,700.50], [10,700.55], [10,760.55], [10,760.66], [10,760.76], [11,655.20], [11,720.7B], [14,177.5], [14,520.15] — v — (2009) 262 ALR 160 …. [10,025.25], [10,070.10], [10,070.20], [10,095.10], [10,095.14], [10,095.5], [10,700.40], [10,745.30], [10,760.50], [10,760.76] Seven Network Ltd, Re (No 1) [2004] ACompT 5 …. [10,560.10], [10,560.5], [10,585.5] Seven Network Ltd, Re (No 2) [2004] ACompT 6 …. [10,560.10] Seven Network Ltd, Re (No 4) [2004] ACompT 11 …. [14,177AB.10], [14,177AH.15]

Shahid v Australasian College of Dermatologists (2007) 72 IPR 555 …. [10,025.100], [10,025.95], [14,590.10], [14,590.55], [14,590.80], [14,645.175], [14,645.70] — v — (2008) 168 FCR 46; 248 ALR 267 …. [10,025.95], [14,590.330], [14,590.55], [14,645.175], [14,645.70] Shannahan v Trade Practices Commission (1991) 28 FCR 239; (1991) ATPR 41-115 …. [14,180.40] Sharkey (F) and Co Pty Ltd v Fisher (1980) 50 FLR 130 …. [10,017.15] Sharp v Ramage (1995) ATPR 41-398 …. [11,655.25], [11,720.7C] Shell Co of Australia, Re (1975) ATPR 35-220 …. [11,855.18] Shepherd v Noyes Brothers Pty Ltd (1985) ATPR 40-588 …. [11,655.15], [11,655.20] Shomali v Ecolour Pty Ltd [2013] FCA 899; BC201313642 …. [14,590.320] Shop Distributive and Allied Employee’s Association v Karellas Investments Pty Ltd (No 2) (2007) 166 IR 51 …. [11,720.32] Shoshana v 10th Cantanae Pty Ltd (1987) 18 FCR 285; 79 ALR 279; 11 IPR 249; (1988) ATPR 40-851 …. [14,590.305] Shrimp v Landmark Operations Ltd [2007] FCA 1468; BC200708057 …. [11,740CB.5], [11,740CB.30] Siddons Pty Ltd v Sanley Works Pty Ltd (1990) 18 IPR 630; (1990) ASC 55992; (1990) ATPR 41-044 …. [14,645.65] Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd (2005) ANZ ConvR 108 …. [10,025.95] Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 …. [11,625.45] Silkzoom Pty v Property Shop Port Douglas Pty Limited [2010] QSC 343; BC201006670 …. [14,590.160] Silver Fox Co Pty Ltd v Lenard’s Pty Ltd (2004) ATPR 42-024 …. [14,520.15], [14,605.20] Silvestro v SR Factors Pty Ltd [2010] NSWCA 74; BC201002368 …. [14,600.35] Simplot Australia Pty Ltd v PSL Industries [2001] VSC 419; BC200107200 …. [11,655.70] Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244 …. [14,180.10], [14,180.17], [14,180.20]

— v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158; 104 ALR 633; (1992) ATPR 41-159 …. [10,070.10], [10,070.45], [10,760.76] Singh v Singh [2004] NSWSC 850; BC200406090 …. [14,590.30] Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 …. [11,590.20], [11,590.25] — v Telstra Corp Ltd [2004] FCA 859; BC200404165 …. [14,590.285] — v Vodafone Pty Ltd [2010] FCA 1448; BC201009867 …. [11,625.45] Sirway Asia Pacific Pty Ltd v Commonwealth (2002) ATPR (Digest) 46-226 …. [10,015.20], [10,025.20], [10,025.95] Sita (Qld) Pty Ltd v Queensland (1999) 164 ALR 18 …. [10,760.45], [10,760.53] Skerbic v McCormack [2007] ACTSC 93; BC200710117 …. [14,545.10], [14,545.30] Skiwing Pty Ltd v Trust Company of Australia [2006] NSWCA 276; BC200608070 …. [11,695.35] — v Trust Company of Australia Ltd [2011] FCA 438; BC201102813 …. [14,520.15], [14,590.315] Sky Channel Marketing Pty Ltd v Hall (2006) ATPR 42-088 …. [11,695.10] Skymaker Holdings Pty Ltd v Jadjet Pty Ltd [2006] FCA 13; BC200600073 …. [11,625.70] Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97; 114 ALR 568 …. [11,655.60] Smith v R (2007) 63 ACSR 445 …. [14,180.75] — v State Bank of New South Wales Ltd (2001) 188 ALR 729; (2001) ATPR 41-829 …. [11,655.20], [14,590.240] Smolonogov v O’Brien (1982) 44 ALR 347; 67 FLR 311; (1982) ATPR 40312; [1982] ANZ ConvR 612 …. [14,650.40] Snoid v Handley (1981) 38 ALR 383; 54 FLR 202; (1981) ATPR 40-247 …. [14,590.213] Socasen Pty Ltd v Caltex Australia Petroleum Pty Ltd (2007) ATPR 42-170 …. [11,625.30] Solitare Pty Ltd v Quikfund (Australia) Pty Ltd [2010] FCA 1384; BC201009465 …. [11,695.10] Sony Music Australia Ltd v Jackson (1993) ATPR 41-279 …. [11,625.35] South African Territories Ltd v Wallington [1898] AC 309 …. [11,720.18]

South Australian Brewing Co Pty Ltd v Carlton & United Breweries Ltd (2001) 185 ALR 719; 53 IPR 90 …. [14,590.80] South Sydney District Rugby League Football Club Ltd v News Ltd (1999) 169 ALR 120; (1999) ATPR 41-728 …. [10,065.30], [10,700.45], [10,700.70], [10,700.73], [11,625.40], [11,625.45] — v — (2000) 177 ALR 611 …. [10,065.30] — v — (2001) 111 FCR 456; 181 ALR 188; (2001) ATPR 41-824 …. [10,065.20], [10,065.23], [10,065.30], [10,065.35], [10,065.5], [10,065.8], [10,095.15], [11,625.30] Spanline Weatherstrong Building Systems Pty Ltd v Tabellz Pty Ltd [2013] FCA 1019 …. [14,590.120], [14,590.270] SPAR Licensing Pty Ltd v MIS Qld Pty Ltd [2014] FCAFC 50; BC201403084 …. [10,905.10] — v MIS QLD Pty Ltd (No 2) [2012] FCA 1116; BC201207987 …. [10,070.10], [10,700.45], [10,905.10], [11,655.20] Specialized Container Transport, Re (1997) ATPR (NCC) 70-004 …. [10,650G.10] Specialized Container Transport Applications for Declaration of Services Provided by Westrail (1998) ATPR (NCC) 70-006 …. [10,650G.10] Specsavers Pty Ltd v Coastal Contacts (Aus) Pty Ltd [2012] FCA 102; BC201200546 …. [11,625.35] — v Luxottica Retail Australia Pty Ltd [2013] FCA 648; BC201310671 …. [14,590.115], [14,590.280] — v Optical Superstore Pty Ltd (2010) 276 ALR 569 …. [14,590.85], [14,645.135] — v Optical Superstore Pty Ltd (No 2) [2010] FCA 566; BC201003718 …. [14,590.280], [14,590.80], [14,590.85] Spedley Securities Ltd (in liq) v Bank of New Zealand (1991) ASC 56-112; (1991) ATPR 41-143 …. [11,655.70], [14,590.160], [14,590.225] SPI Electricity Pty Ltd v Australian Energy Regulator [2014] FCA 1012; BC201407741 …. [10,605.10] SPI Electricity Pty Ltd, Appeal by [2013] ACompT 7 …. [10,605.10] SPI Electricity Pty Ltd, Application by [2013] ACompT 1 …. [10,605.10] Spittles v Michael’s Appliance Services Pty Ltd (2008) 71 NSWLR 115; (2008) ASAL 55-187 …. [15,200.30] Sporte Leisure Pty Ltd v Paul’s International Pty Ltd (No 3) [2010] FCA

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Sterling v Trade Practices Commission (1981) ATPR 40-212 …. [11,625.10] Sterling Industries Ltd v NIM Services Pty Ltd (1986) 12 FCR 164; 66 ALR 657; (1986) ATPR 40-688 …. [14,590.320] Sterling Winthrop Pty Ltd v Boots Co (Aust) Pty Ltd (1995) 32 IPR 361; (1995) ATPR 41-433 …. [14,590.170], [14,590.280] — v — (1996) ATPR 41-452 …. [11,625.40] — v R & C Products Pty Ltd (1994) ATPR 41-308 …. [14,590.250] Stern v National Australia Bank [1999] FCA 1421; BC9907269 …. [10,155.10] Stewart v White [2011] QCA 291; BC201108118 …. [14,520.30] Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR 41-752 …. [10,700.50], [10,700.55], [10,700.65], [10,700.95], [10,760.45], [10,785.75] — v — (2000) ATPR 41-783 …. [10,700.50], [10,700.55], [10,700.65], [10,700.95], [10,760.45], [10,785.75] Stoelwinder v Southern Health Care Network (2000) 177 ALR 501; 97 IR 76 …. [10,025.95], [14,590.300] Stokely-Van Camp Inc v New Generation Beverages Pty Ltd (1998) ATPR 41-657 …. [10,700.40], [10,700.45] Stones Corner Motors Pty Ltd v Mayfairs Wholesale Pty Ltd [2010] FCA 1465; BC201009954 …. [10,905.10] Stora Enso Australia Pty Ltd v CPI Group Ltd [2006] FCA 1685; BC2006101638 …. [14,590.160] Street v Luna Park Sydney Pty Ltd (2009) 223 FLR 245 …. [10,025.95] — v — [2006] NSWSC 230; BC200602058 …. [11,625.95] Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468; [1972] ALR 3 …. [10,005.5] Strike v Dive Queensland Inc (1998) ATPR 41-605 …. [11,710.10] Stryke Corp Pty Ltd v Miskovic [2007] NSWCA 72; BC200702368 …. [14,655.15], [14,655.20] Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 37 ALR 161; 53 FLR 307; (1981) ATPR 40-244 …. [14,590.145], [14,590.280], [14,590.330] STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240; BC201008447 …. [11,585.20], [14,590.80]

Su v Direct Flights International Pty Ltd (2000) ATPR 41-750 …. [10,760.65A] Suatu Holdings Pty Ltd v Australian Postal Commission (1989) 86 ALR 532 …. [10,025.20] Sullivan v Gordon (1999) 47 NSWLR 319; 30 MVR 29 …. [11,740X.5] — v Macquarie Pathology Services Pty Ltd (1995) ATPR (Digest) 46-143 …. [11,655.20], [11,655.22] Sun Earth Homes Pty Ltd v Australian Broadcasting Corp (1993) 45 FCR 265; (1993) ATPR (Digest) 46-112 …. [14,595.15], [14,595.25] Sundararajah v Teachers Federation Health Ltd (2011) 283 ALR 720 …. [14,605.20] Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2012] VSC 239; BC201203953 …. [10,160.18], [11,655.20] Supetina Pty Ltd v Lombok Pty Ltd (1986) 11 FCR 563; [1987] ANZ ConvR 149; (1986) ASC 55-503; (1986) ATPR 40-716 …. [14,590.310] Susan Pendler Jewellery Pty Ltd v Mirage (Operations) Pty Ltd (1996 unreported) …. [11,655.20] Sutton v AJ Thompson Pty Ltd (in liq) (1987) 73 ALR 233; (1987) ASC 55583; (1987) ATPR 40-789 …. [11,655.22], [14,590.125], [14,590.240] SWB Family Credit Union v Parramatta Tourist Services Pty Ltd (1980) 32 ALR 365; 48 FLR 445; (1980) ATPR 40-180 …. [10,785.50], [10,785.65], [10,785.75] Sweetman v Bradfield Management Services Pty Ltd (1994) ATPR 41-290 …. [14,590.160], [14,590.165] SWF Hoists and Industrial Equipment Pty Ltd v State Government Insurance Commission (1990) 6 ANZ Ins Cas 61-002; (1990) ASC 55-996; (1990) ATPR 41-045 …. [14,645.185] Swift v Westpac Banking Corp (1995) ATPR 41-401 …. [11,720.15] Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 149 ALR 134; (1996) ATPR 41-525 …. [11,675.5] Sydney Airport Corp Ltd v Australian Competition Tribunal (2006) 155 FCR 124; 232 ALR 454 …. [10,650.5], [10,650G.10], [10,650H.10] Sydney Airports Corporation Ltd, Re (2000) 156 FLR 10 …. [14,177AT.10] Sydney Harbour Casino Properties Pty Ltd v Coluzzi [2002] ANZ ConvR 253 …. [14,590.310] Sydney Markets Ltd v Sydney Flower Market Pty Ltd (2002) ATPR (Digest)

46-216 …. [14,590.250] Sydney Medical Service Co-operative Ltd v Lakemba Medical Services Pty Ltd [2016] FCA 763 …. [14,645.125], [14,645.25] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 …. [14,590.270] Sykes v Reserve Bank of Australia (1997) 151 ALR 579; (1998) ATPR 41608 …. [10,025.95], [14,520.15], [14,590.55], [14,595.25] — v — (1998) 88 FCR 511; 158 ALR 710; (1999) ATPR 41-699 …. [10,025.95], [11,655.20], [11,655.22], [11,655.25], [14,520.15], [14,520.50], [14,520.55], [14,590.165], [14,590.240], [14,590.55], [14,595.25] Synavant Australia Pty Ltd v Harris [2001] FCA 1517; BC200106949 …. [14,590.175] Taco Bell Pty Ltd v Taco Co of Australia Inc (1981) 40 ALR 153; 60 FLR 60; (1982) ATPR 40-277 …. [14,590.20], [14,590.250] Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; (1982) ASC 55-207; (1982) ATPR 40-303; (1982) 2 TPR 48 …. [14,590.20], [14,590.75], [14,590.80], [14,590.100], [14,590.120], [14,590.140], [14,590.85], [14,590.90] Tadros v J & R Investment Services Pty Ltd [2007] FCA 1041; BC200705916 …. [11,625.90] Takemoto v Moody’s Investors Service Pty Ltd [2010] FCA 407; BC201002604 …. [14,520.35] Talmax Pty Ltd v Telstra Corp Ltd (1996) 36 IPR 46; (1996) ATPR 41-535 …. [11,655.25] — v — (1996) ATPR 41-484 …. [14,590.305] Tambree v Travel Compensation Fund (2004) Aust Contract R 90-195 …. [14,590.230] Tantipech & P O & Sons Pty Ltd v IOOF Australia Trustees (NSW) Ltd [1998] ANZ ConvR 554; (1998) ATPR 41-614; (1998) NSW Conv R 55840 …. [14,590.225] Targetts Pty Ltd v Target Australia Pty Ltd (1993) 26 IPR 51; (1993) ASC 56-220; (1993) ATPR 41-231 …. [14,590.80], [14,590.85], [14,590.250] Taylor v Crossman (No 2) (2012) 199 FCR 363 …. [10,025.95], [11,655.20], [11,655.21] TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323; (2008)

Aust Torts Reports 81-931 …. [10,025.95], [14,595.15] TEC & Tomas (Aust) Pty Ltd v Matsumiya Computer Co Pty Ltd (1984) 1 FCR 28; 53 ALR 167; 2 IPR 81; (1984) ATPR 40-438 …. [14,590.130], [14,590.145], [14,590.255] Technology Leasing Ltd v Bergia 2 Pty Ltd [2011] FCA 284; BC201101702 …. [11,740.5] — v Lennmar Pty Ltd [2012] FCA 709; BC201204911 …. [10,785.65], [14,590.30], [14,590.85], [14,600.45] Tefbao Pty Ltd v Stannic Securities Pty Ltd (1993) 118 ALR 565; (1994) ATPR (Digest) 46-114 …. [11,655.20], [11,655.21] — v — (1995) ATPR 41-391 …. [11,655.25] Telecom Corp of New Zealand Ltd v Clear Communications Ltd (1995) 32 IPR 573; [1995] 1 NZLR 385 …. [10,760.55] — v Commerce Commission (1991) 3 NZBLC 99-239 …. [10,070.40] Telmak Teleproducts (Aust) Pty Ltd v Coles Myer Ltd (1989) 89 ALR 48; 15 IPR 362; (1989) ATPR 40-966 …. [14,590.250] Telstra Corp Ltd v AAPT Ltd (1999) ATPR 41-723 …. [10,760.55], [10,760.68] — v Optus Communications Pty Ltd (1996) 36 IPR 515; (1997) ATPR 41541 …. [11,625.35], [14,590.280] — v Phone Directories Co Pty Ltd [2014] FCA 568 …. [14,590.85], [14,590.120] — v Seven Cable Television Pty Ltd (2000) ATPR 41-785 …. [10,650B.5], [14,177AL.5], [14,177AO.5] — v Singtel Optus Pty Ltd [2014] VSC 35; BC201400576 …. [14,590.85] Telstra Corp Ltd, Re (2001) 160 FLR 120; (2001) ATPR 41-812 …. [12,130.20], [12,175.5] Telstra Corpo Ltd v Royal & Sun Alliance Insurance Australia Ltd (2003) 57 IPR 453; (2003) ATPR 41-951 …. [14,590.80], [14,645.125] Telstra Corporation Limited v Australian Competition and Consumer Commission (2009) 110 ALD 64 …. [14,177AQA.5] Telstra Corporation Ltd v ACCC [2008] FCA 1436; BC200808259 …. [14,177AB.12], [14,177AL.15], [14,177ALA.5] — v — [2008] FCA 1758; BC200810333 …. [14,177AB.5], [14,177AB.12], [14,177AQB.5]

— v Australian Competition and Consumer Commission [2006] FCA 737; BC200604238 …. [14,175AKA.5] — v Australian Competition and Consumer Commission (No 2) [2007] FCA 493; BC200702362 …. [14,175AKA.5], [14,175AKA.10], [14,175AKA.15], [14,175AKA.20], [14,175AKA.25], [14,175AP.5] — v Australian Competition and Consumer Commission (No 3) [2007] FCA 1905; BC200711521 …. [14,175AKA.13], [14,175AKA.30] — v Australian Competition Tribunal [2009] FCAFC 23; BC200901501 …. [14,177.5], [14,177AB.10], [14,177AT.10], [14,177ATA.5] — v Cable & Wireless Optus Ltd [2001] FCA 1478; BC200106444 …. [11,625.35], [11,625.45] — v Commonwealth [2008] HCA 7; BC200801217 …. [14,177.10], [14,177AL.1], [14,177AR.1] — v Optus Networks Pty Ltd [2002] FCAFC 296; BC200205570 …. [14,177AR.10] — v SingTel Optus Pty Ltd (2007) ASAL 55-173; (2007) ATPR 42-159 …. [14,590.280] Telstra Corporation Ltd (No 1) [2006] ACompT 7 …. [14,177CF.5] Telstra Corporation Ltd (No 2) [2006] ACompT 10 …. [14,177CF.5] Telstra Corporation Ltd, Application by [2009] ACompT 1 …. [10,025.25], [14,177AB.10], [14,177AB.12], [14,177AB.15], [14,177AT.5], [14,177AT.10] — [2010] ACompT 1 …. [14,177AB.12], [14,177AH.10], [14,177AH.15], [14,177CE.5], [14,177CF.5] Telstra Corporation Ltd, Re (2006) ATPR 42-121; [2006] ACompT 4 …. [14,177AB.5], [14,177AB.12], [14,177AH.10], [14,177AH.15], [14,177AH.25], [14,177AH.35], [14,177AH.45], [14,177CE.5], [14,177CF.5] Telstra Corporation Ltd, Re (No 3) [2007] ACompT 3 …. [10,025.25], [14,177AB.12], [14,177AB.15], [14,177AH.15], [14,177AH.35], [14,177AH.45] Tenants (Lancashire) Ltd v CS Wilson & Co Ltd [1917] AC 495 …. [10,740.40] Tenji v Henneberry & Associates Pty Ltd (2000) 98 FCR 324; 172 ALR 679; (2000) ATPR (Digest) 46-204 …. [11,720.6], [11,720.25], [11,720.27], [14,590.310]

— v Henneberry & Assocs Pty Ltd (No 2) [2000] FCA 1271; BC200005700 …. [11,720.25], [11,720.6] Tesco Supermarkets Ltd v Nattrass [1972] AC 153 …. [11,675.15], [11,675.20], [11,675.5] Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2001] FCA 1269; BC200105345 …. [14,665.15] Textile Clothing and Footwear Union of Australia v Morrison Country Clothing Australia Pty Ltd (No 2) [2008] FCA 1965; BC200811410 …. [11,605.24] Texxcon Pty Ltd v Austexx Corp Pty Ltd (No 2) [2013] VSC 343; BC201310644 …. [11,740CB.40] TGI Friday’s Australia Pty Ltd v TGI Friday’s Inc (1999) ATPR 41-683 …. [11,625.65], [14,590.270] TGI Friday’s Inc v TGI Friday’s Australia Pty Ltd (1998 unreported) …. [11,625.65] Thai Silk Co Ltd v Aser Nominees Pty Ltd (1991) ASC 56-114; (1991) ATPR 41-146 …. [14,590.120], [14,590.175] Theo Holdings Pty Ltd v Hockey (2000) 99 FCR 232; 175 ALR 89; (2000) ATPR 41-766 …. [10,055.40], [15,115.10] Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; 34 ALD 1; 124 ALR 1 …. [14,590.34] Thomas v Southcorp Australia Pty Ltd [2004] VSC 34; BC200400317 …. [14,545.10] — v Star Maid International Pty Ltd [1999] FCA 911; BC9903738 …. [14,655.15] Thomas Britt Allcroft LLC v Miller (t/as The Thomas Shop) (2000) 49 IPR 7; (2000) ATPR 41-776 …. [14,590.305] Thompson v Ice Creameries of Australia Pty Ltd (1998) ATPR 41-611 …. [14,590.165], [14,590.320] — v JT Fossey Pty Ltd (No 2) (1978) 20 ALR 503; (1978) ATPR 40-080 …. [11,605.12], [11,605.14] — v Mastertouch TV Service Pty Ltd (No 1) (1977) 29 FLR 270; (1977) ATPR 40-027 …. [14,520.5], [14,685.15], [14,685.20] — v Mastertouch TV Services Pty Ltd (1977) 15 ALR 487 …. [14,590.155] — v Riley McKay Pty Ltd (No 2) (1980) 29 ALR 267; 42 FLR 279; (1980) ATPR 40-152 …. [10,025.80], [11,605.12], [14,645.30], [14,650.15],

[14,650.20] Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15; BC201200782 …. [14,590.80] Thomson Publications (Aust) Pty Ltd v Trade Practices Commission (1979) 27 ALR 551; 40 FLR 257; (1979) ATPR 40-133 …. [10,025.20], [11,625.65] Thomson Australia Holdings Pty Ltd v — (1981) 148 CLR 150; 37 ALR 66; (1981) ATPR 40-234 …. [11,625.45] Thoroughvision Pty Ltd v Sky Channel Pty Ltd [2005] FCA 1527; BC200508978 …. [11,625.40] Thorp v CA Imports Pty Ltd (1989) 16 IPR 511; (1990) ASC 55-955; (1990) ATPR 40-996 …. [14,645.145] Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367; 42 FLR 331 …. [10,095.15], [10,700.45], [10,700.50], [10,700.95], [10,740.20], [10,740.30], [10,740.65] Ting v Blanche (1993) 118 ALR 543; (1993) ATPR 41-282 …. [14,520.15], [14,520.50] Titan Support Systems Inc v Nguyen [2014] FCA 884; BC201406685 …. [10,160.18] TN Lucas Pty Ltd v Centrepoint Freeholds Pty Ltd (1984) 1 FCR 110; 52 ALR 467; (1984) ATPR 40-440 …. [14,590.315] Tobacco Control Coalition Inc v Philip Morris (Aust) Ltd (2000) ATPR (Digest) 46-205 …. [11,625.15] Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1988) 84 ALR 337; (1988) ATPR 40-916 …. [11,625.20] — v — (1992) 38 FCR 1; 111 ALR 61; (1993) ATPR 41-199 …. [14,590.120], [14,590.55], [14,590.80], [14,590.85] — v — (1993) 41 FCR 89; 113 ALR 257; (1993) ATPR 41-222 …. [11,720.23] Toby Constructions Products Pty Ltd v Computer Bar Sales Pty Ltd [1983] 2 NSWLR 48; (1983) 50 ALR 684; 77 FLR 377; (1983) ATPR 40-377 …. [10,025.60], [15,200.35] Toddler Kindy Gymbaroo Pty Ltd v Gymboree Pty Ltd (2000) 51 IPR 1; (2000) ATPR (Digest) 46-203 …. [14,590.250] Toll Holdings Ltd v Australian Competition and Consumer Commission

(ACCC) (2009) 256 ALR 631 …. [11,730.12] Tomasetti v Brailey [2013] NSWSC 1282; BC201312734 …. [11,655.20], [11,720.5] Tomlinex Pty Ltd v Candoura Pty Ltd (1994) ATPR 41-302 …. [14,590.70] Tomlinson v Cut Price Deli Pty Ltd (1995) ATPR (Digest) 46-151 …. [11,655.71] Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29,699 …. [14,605.20] Tooheys Pty Ltd v Coopers Brewery Ltd [2003] FCA 148; BC200300750 …. [11,625.35] Tooth & Co Ltd and Tooheys Ltd, Re (1979) 39 FLR 1; (1979) ATPR 40113; (1979) 4 TPR 1 …. [10,070.15], [10,070.20], [10,070.40], [10,070.45] Tooth & Co Ltd, Re (1978) 19 ALR 191; 31 FLR 314 …. [14,285.10] — (1978) ATPR 40-065 …. Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465; 24 FLR 286; (1975) ATPR 40-004 …. [10,700.25], [10,700.30], [10,700.95], [10,760.55] Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 97 ALR 315; (1988) ATPR 40-911 …. [11,625.30], [11,625.7] Townsend v Roussety & Co (WA) Pty Ltd (2007) 33 WAR 321 …. [14,590.160] TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190 …. [11,590.20], [11,590.25] — v Australian Competition and Consumer Commission (No 2) [2013] FCAFC 37; BC201301550 …. [11,590.20], [11,590.25] Trade Practices Commission v 1Calderton Corp Pty Ltd (1994) ATPR 41306 …. [11,605.12] — v Abbco Iceworks Pty Ltd (1994) 52 FCR 96; 123 ALR 503; (1994) ATPR 41-342 …. [11,590.28], [14,180.75] — v Advance Bank Australia Ltd (1993) ATPR 41-229 …. [11,605.14] — v Allied Mills Industries Pty Ltd (1981) 37 ALR 256; 60 FLR 38; (1981) ATPR 40-241 …. [10,700.95], [11,590.27] — v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 225; (1981) ATPR 40-237 …. [10,700.35] — v Amatek (1994 unreported) …. [11,625.98]

— v Ampol Petroleum (Vic) Pty Ltd (1994) 126 ALR 111; (1994) ATPR 41344 …. [14,180.95] — v — (1994) 54 FCR 316; 127 ALR 533; (1995) ATPR 41-384 …. [14,180.75] — v — (1994) ATPR 41-305 …. [14,180.40] — v Annand & Thompson Pty Ltd (1978) 19 ALR 730 …. [10,800.45] — v — (1987) ATPR 40-772 …. [11,605.12] — v Ansett Transport Industries (Operations) Pty Ltd (1978) 20 ALR 31; (1978) ATPR 40-071 …. [10,070.20], [10,820.80] — v Arnotts Biscuits Ltd (1989) ATPR 40-979 …. [10,820.80] — v Arnotts Ltd (1990) 93 ALR 657; (1990) ATPR 41-002; (1990) ATPR 41-062 …. [10,025.185], [10,820.20], [10,820.80] — v Australia Meat Holdings Pty Ltd (1988) 83 ALR 299; (1988) ATPR 40876 …. [10,070.10], [10,070.30], [10,820.80], [11,650.5] — v Australian Auto Glass Pty Ltd (1988) ATPR 40-881 …. [11,605.14] — v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305; 92 ALR 395; (1990) ATPR 41-001 …. [10,155.5], [10,820.20], [10,820.75], [10,820.80] — v Autoways Pty Ltd (1990) ASC 56-010; (1990) ATPR 41-051 …. [14,740.5] — v Axive Pty Ltd (1994) ATPR 41-368 …. [11,590.20], [11,590.25], [11,590.27] — v Bamix Australia Pty Ltd (1985) ATPR 40-534 …. [10,800.45] — v Bata Shoe Co of Australia Pty Ltd (1980) 44 FLR 145; (1980) ATPR 40-161 …. [10,800.45], [12,010.15], [12,010.40], [12,010.45] — v BP Australia Ltd (1985) 7 FCR 499; 62 ALR 151; (1985) ATPR 40-638 …. [10,800.45], [12,010.40] — v Bryant Pty Ltd (1978) ATPR 40-075 …. [10,025.70], [10,065.45] — v BTR Nylex Ltd (1991) ATPR 41-075 …. [10,820.80] — v Caravella (1994) ATPR 41-293 …. [11,590.25] — v CC (NSW) Pty Ltd (No 2) (1995) ATPR 41-406 …. [11,590.20], [11,590.27] — v CC (NSW) Pty Ltd (No 6) (1995) ATPR 41-431 …. [11,590.27] — v Clarke Eaton & Co Pty Ltd (1993) ATPR 41-233 …. [11,605.14] — v Collings Construction Co Pty Ltd (1997) ATPR (Digest) 46-167 ….

[11,720.26] — v Commodore Business Machines Pty Ltd (1989) ATPR 40-976 …. [11,605.14] — v Concrete Constructions (NSW) Pty Ltd (1994) ATPR 41-363 …. [11,590.27], [11,590.25] — v Cook-On Gas Products Pty Ltd (1985) ATPR 40-500 …. [11,605.14] — v — (1985) ATPR 40-560 …. [10,690ZZRD.65] — v CSBP and Farmers Ltd (1980) 53 FLR 135; (1980) ATPR 40-151 …. [10,700.95], [10,760.71] — v CSR Ltd (1991) ATPR 41-076 …. [10,690.5], [10,785.75], [11,590.20], [11,590.25], [11,680.5] — v Cue Design Pty Ltd & Cue & Co Pty Ltd (1996) 85 A Crim R 500; (1996) ATPR 41-475 …. [11,605.14], [11,730.10], [14,645.130] — v Culley (1983) ATPR 40-399 …. [11,605.14] — v David Jones (Aust) Pty Ltd (1986) 13 FCR 446; 64 ALR 67; (1986) ATPR 40-671 …. [10,690ZZRD.65], [10,700.30], [10,700.35], [10,700.68], [10,700.95] — v Dunlop Australia Ltd (1980) 43 FLR 434; 30 ALR 469; (1980) ATPR 40-167 …. [10,800.45] — v Email Ltd (1980) 31 ALR 53; 43 FLR 383; (1980) ATPR 40-172 …. [10,690ZZRD.65], [10,700.25], [10,700.35], [10,700.95] — v Farrow (1990) 95 ALR 53; (1990) ASC 55-972; (1990) ATPR 41-018 …. [11,620.5], [14,685.10] — v Friendship Aloe Vera Pty Ltd (1988) ATPR 40-892 …. [11,720.26] — v Garden City Cabs Co-op Ltd (1995) ATPR 41-410 …. [10,025.85] — v General Corp Japan (Aust) Pty Ltd (1989) ATPR 40-992 …. [11,605.12] — v Gillette Co (No 1) (1993) 45 FCR 366; 118 ALR 280; (1993) ATPR 41267 …. [10,820.20] — v GLO Juice Co Pty Ltd (1987) 73 ALR 407; (1987) 9 IPR 63 …. [14,590.330] — v Gold Coast Property Sales Pty Ltd (1994) ATPR 41-311 …. [11,625.45] — v Golden Australia Paper Manufacturers Pty Ltd (1995) ATPR 41-370 …. [14,645.55], [14,665.20]

— v Golden Fleece Petroleum Pty Ltd (1985) ATPR 40-528 …. [10,800.45] — v Guests’ Garage Pty Ltd (1976) 26 FLR 433; (1976) ATPR 40-016 …. [10,700.73] — v Heating Centre Pty Ltd (1985) 4 FCR 197; (1985) ATPR 40-516 …. [10,800.45] — v Hymix Industries Pty Ltd (1995) ATPR 41-369 …. [11,590.25], [11,590.27] — v ICI Australia Petrochemicals (1983) ATPR 40-364 …. [10,800.45] — v IMB Group Pty Ltd (1994) ATPR 41-348 …. [14,180.75] — v JJ & YK Russell Pty Ltd (1991) ATPR 41-090 …. [10,690ZZRD.65], [10,700.95] — v — (1991) ATPR 41-132 …. [10,690ZZRD.65], [10,700.35], [10,700.95] — v Kensington Hire Co Pty Ltd (1981) ATPR 40-256 …. [10,800.45] — v Kranz & Elken Pines Pty Ltd (1993) ATPR 41-281 …. [14,645.105] — v Legion Cabs (Trading) Co-op Society Ltd (1978) 35 FLR 372; 4 TPC 276; (1978) ATPR 40-092 …. [10,785.65], [10,785.75], [10.830.5A] — v Lois (Aust) Pty Ltd (1986) ATPR 40-645 …. [10,800.45] — v Madad Pty Ltd (1979) 40 FLR 453; (1979) ATPR 40-105 …. [10,800.45], [11,590.15] — v Malleys Ltd (1979) 25 ALR 250; (1979) ATPR 40-118 …. [10,800.45], [11,590.25] — v Manfal Pty Ltd (No 3) (in liq) (1991) 33 FCR 382; 105 ALR 520; (1992) ATPR 41-160 …. [11,585.10], [11,720.20] — v Massey Ferguson (Aust) Ltd (1983) 67 FLR 364; (1983) ATPR 40-369 …. [10,785.75] — v Milreis Pty Ltd (1978) 32 FLR 234; (1978) ATPR 40-073 …. [11,625.60] — v Mobil Oil Australia Ltd (1984) 3 FCR 168; 55 ALR 527; (1984) ATPR 40-482 …. [10,800.45], [12,010.15], [12,010.40] — v — (1985) 4 FCR 296; (1985) ATPR 40-503 …. [10,800.45] — v Monier Roofing Ltd (1996) ATPR 41-464 …. [11,590.27], [11,625.98] — v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609; 40 FLR 83; (1978) ATPR 40-126 …. [10,070.10], [10,690ZZRD.40], [10,690ZZRD.55], [10,700.30], [10,700.95], [11,590.10], [14,180.85]

— v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; 42 FLR 213; (1979) ATPR 40-141 …. [10,700.25], [10,700.35] — v Olympic Productions & Publications Pty Ltd (1986) 8 FCR 467; (1986) ATPR 40-670 …. [11,625.60] — v Optus Communications Pty Ltd (1996) 64 FCR 326; 34 IPR 176; (1996) ATPR 41-478 …. [11,625.95], [14,590.140], [14,590.160], [14,590.240], [14,590.280] — v Orlane Australia Pty Ltd (1983) 48 ALR 169 …. [11,590.10] — v — (1984) 1 FCR 157; 51 ALR 767; (1984) ATPR 40-437 …. [10,800.25], [10,800.45], [12,020.30], [12,020.35], [12,020.40] — v Pacific Dunlop Ltd (1994) ATPR 41-307 …. [11,605.14] — v Parker (1990) 97 ALR 403; (1990) ASC 56-011; (1990) ATPR 41-055 …. [14,725.15] — v Parkfield Operations Pty Ltd (1985) 5 FCR 140; 59 ALR 589; (1985) ATPR 40-526 …. [10,690ZZRD.50], [11,590.30], [11,590.45] — v — (1985) ATPR 40-639 …. [11,590.30] — v Penfolds Wines Pty Ltd (1991) 104 ALR 601; (1992) ATPR 41-163 …. [12,010.15] — v Pioneer Concrete (Qld) Pty Ltd (1994) 50 FCR 160; (1994) ATPR 41317 …. [10,760.45] — v — (1994) 52 FCR 164; 124 ALR 685; (1994) ATPR 41-345 …. [10,760.45] — v Pioneer Concrete (Vic) Pty Ltd (1981) 36 ALR 151; 55 FLR 77; (1981) ATPR 40-229 …. [14,180.40] — v — (1985) ATPR 40-590 …. [10,690ZZRD.65] — v Port Adelaide Wool Co Pty Ltd (1995) 60 FCR 366; 132 ALR 645; (1995) ATPR 41-441 …. [11,710.10] — v Prestige Motors Pty Ltd (1994) ATPR 41-359 …. [10,700.95], [10,800.45], [11,590.25] — v Pye Industries Pty Ltd (1978) ATPR 40-088 …. [10,800.45], [12,010.15], [12,010.40] — v QDSV Holdings Pty Ltd t/as Bush Friends Australia (1995) 128 ALR 551; (1995) ATPR 41-371 …. [14,645.145] — v Queensland Aggregates Pty Ltd (1981) 36 ALR 236 …. [10,785.75] — v — (1982) 44 ALR 391; (1982) ATPR 40-297 …. [11,675.15]

— v Radio World Pty Ltd (1989) 16 IPR 407; (1989) ASC 55-929; (1989) ATPR 40-973 …. [14,590.290], [14,645.170], [14,820.20] — v Rank Commercial Ltd (1994) 123 ALR 551; (1994) ATPR 41-331 …. [11,625.35], [11,625.40], [11,625.45] — v Santos Ltd (1992) 38 FCR 382; 110 ALR 517; (1992) ATPR 41-195 …. [10,820.65], [11,625.35], [11,625.40], [11,625.63], [11,650.5] — v Service Station Assn Ltd (1992) 109 ALR 465; (1992) ATPR 41-179 …. [10,690ZZRD.65], [11,585.15], [11,585.20], [11,585.50], [11,585.60], [11,585.65], [11,585.75], [11,590.45], [12,010.15] — v — (1993) 44 FCR 206; 116 ALR 643; (1993) ATPR 41-260 …. [10,690.5], [10,700.30], [10,700.95] — v Sharp Corp Australia Ltd (1975) 8 ALR 255; (1975) ATPR 40-010 …. [10,800.45], [12,010.40] — v Simpson Pope Ltd (1980) 30 ALR 544; 47 FLR 334; (1980) ATPR 40169 …. [10,800.25], [10,800.45], [11,590.50], [12,010.40] — v Simsmetal Ltd (1996) ATPR 41-449 …. [11,590.20], [11,590.27] — v Sony (Aust) Pty Ltd (1990) ATPR 41-031 …. [12,010.15] — v Sterling (1980) 28 ALR 497; (1980) ATPR 40-145 …. [11,605.5] — v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 …. [10,800.45], [10,800.5], [11,590.20] — v Sun Alliance Australia Ltd (1994) ATPR 41-286 …. [11,605.23], [11,675.15], [11,680.5], [11,680.15] — v Telstra Corp Ltd (1993) ATPR 41-256 …. [14,590.120], [14,590.80], [14,590.90], [11,625.95] — v Tepeda Pty Ltd (1994) ATPR 41-319 …. [10,785.50], [10,785.65], [10,785.75] — v TNT Australia Pty Ltd (1995) ATPR 41-375 …. [11,590.20], [11,590.25], [11,590.27] — v TNT Management Pty Ltd (1985) 6 FCR 1; 58 ALR 423; (1985) ATPR 40-512 …. [10,065.30], [10,065.45], [10,095.10], [11,675.30], [11,675.35] — v — [1981] ACLD 831 …. [14,200.10], [14,200.5] — v TNT Management Pty Ltd (No 3) (1981) 39 ALR 665; 55 FLR 219 …. [14,200.3] — v Tooth & Co Ltd (1979) 142 CLR 397; 26 ALR 185 …. [10,785.75]

— v Tubemakers of Australia Ltd (1983) 47 ALR 719; (1983) ATPR 40-358 …. [10,700.95], [11,590.30], [11,675.15], [11,675.20], [11,675.5] — v Vales Wine Co Pty Ltd (1996) 66 FCR 336; 145 ALR 241; (1996) ATPR 41-480 …. [14,645.55] Traderight (NSW) Pty Ltd v Bank Of Queensland Ltd [2014] NSWSC 55; BC201400484 …. [14,520.35], [14,590.225], [14,600.35], [14,605.20] — v Bank of Queensland Ltd [2015] NSWCA 94; BC201502639 …. [14,520.15] Traderight Pty Ltd v Bank of Queensland (2010) 266 ALR 503; 238 FLR 358 …. [14,520.35] Tradestock v TNT (Management) Pty Ltd (No 2) (1978) 32 FLR 420 …. [10,025.55] Trans-It Freighters Pty Ltd v Billy Baxters (Franchising) Pty Ltd [2012] VSCA 71; BC201202287 …. [14,590.320] Transerve Pte Ltd v Blue Ridge WA Pty Ltd [2015] FCA 953; BC201508305 …. [14,600.35] Transfield Pty Ltd v Arlo International Ltd (1980) 144 CLR 83; 30 ALR 201; (1980) ATPR 40-166 …. [10,830.5H] Transport Tyre Sales Pty Ltd v Montana Tyres Rims & Tubes Pty Ltd (1999) 162 ALR 175 …. [11,655.20] Travel Compensation Fund v Tambree (t/as R Tambree & Associates) (2005) 222 ALR 263; (2006) ATPR 42-094 …. [11,655.20], [14,590.230] Travel Land Pty Ltd v Doherty (1982) 41 ALR 563; 63 FLR 41; 6 A Crim R 181; (1982) ATPR 40-293 …. [14,280.10], [14,645.95] Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 108 ALR 335 …. [11,655.72] Treloar v Ivory (1991) 4 WAR 318; (1991) ATPR 41-123 …. [11,720.7C], [14,590.140], [14,590.90] Tri-Global (Aust) Pty Ltd v Colonial Mutual Life Assurance Society Ltd (1992) ATPR 41-174 …. [10,760.76] Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168; BC200506537 …. [15,200.5] Tritech Technology Pty Ltd v Gordon (2000) ATPR (Digest) 46-200 …. [10,155.10] Trotman Australia Pty Ltd v Hobsons Press (Aust) Pty Ltd (1991) 22 IPR 397 …. [11,625.95], [14,590.130]

Trumpet Software Pty Ltd v OzEmail Pty Ltd (1996) 34 IPR 481; (1996) AIPC 91-261; (1996) ATPR 41-511 …. [10,025.85] Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) ATPR 42-126 …. [11,695.35] Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) 42 IPR 1; (1998) ATPR 41-633 …. [14,520.35], [14,520.55] — v — (2000) 169 ALR 616; (2000) ATPR 41-757 …. [11,625.10], [11,625.15], [14,590.330] — v Macquarie Infrastructure Investment Management Pty Ltd (2000) 34 ACSR 673 …. [11,625.95] Tubby Trout Pty Ltd v Sailbay Pty Ltd (1994) ATPR (Digest) 46-120 …. [11,655.20], [11,655.25], [11,655.50], [11,720.7C][14,590.10] Turelin Nominees Pty Ltd v Dainford Ltd (1983) 47 ALR 326; 67 FLR 440; 1 IPR 69; (1983) ATPR 40-351 …. [14,590.310] — v — (1984) ASC 55-306; (1984) ATPR 40-444; (1984) V ConvR 54-153 …. [14,590.310] Turner v Jenolan Investments Pty Ltd (1985) ASC 55-404; (1985) ATPR 40571 …. [14,590.165] — v Kinian Pty Ltd BC9203688 …. [14,520.55] Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd (1996) 66 FCR 451; 34 IPR 225; (1996) ATPR 41-483 …. [14,590.120], [14,590.250] Tycoon Holdings Pty Ltd v Trencor Jetco Inc (1995) ATPR 41-413 …. [10,155.10] Typing Centre of New South Wales Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627; (1989) ASC 55-709; (1989) ATPR 40-943 …. [11,655.35], [14,590.85] Tytel Pty Ltd v Telecom (1986) 67 ALR 433 …. [10,025.10], [10,025.20] Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272; 107 ALR 709; (1992) ASC (Digest) 56-167; (1992) ATPR 41-169 …. [10,025.95], [14,590.55], [14,590.330] — v — (1993) 44 FCR 481 …. [11,695.10] Unilever Australia Ltd v Goodman Fielder Consumer Foods Pty Ltd [2009] FCA 1305; BC200910300 …. [14,590.70], [14,590.80], [14,590.85], [14,645.50]

— v Revlon Australia Pty Ltd [2014] FCA 573; BC201404243 …. [11,625.35] — v Revlon Australia Pty Ltd (No 2) [2014] FCA 875; BC201406575 …. [14,590.80] Unit 11 Pty Ltd v Sharpe Partners Pty Ltd [2006] FCAFC 43; BC200601664 …. [11,655.20] United Brands Co v EC Commission [1978] 1 ECR 207; [1978] 1 CMLR 429 …. [10,070.10], [10,760.45] United Energy Distribution Pty Ltd v Australian Energy Regulator [2012] FCA 405; BC201202368 …. [10,605.10] United Energy Distribution Pty Ltd, Application by [2009] ACompT 10; BC200912036 …. [10,605.10] United Energy Distribution Pty Ltd, Re Application by [2012] ACompT 1; BC201200083 …. [10,605.10] United Pacific Industries Pty Ltd v Madison Sports Pty Ltd (1998) 41 IPR 546; (1998) AIPC 91-419; (1998) ATPR 41-643 …. [11,625.35], [14,590.270] United Permanent Building Society Ltd, Re (1976) 26 FLR 68 …. [12,130.35] United Petroleum Pty Ltd v Pentaco Oil (Aust) Pty Ltd [2016] FCA 118; BC201600884 …. [14,590.160] United States v Aluminium Co of America (1945) 148 F 2d 416 …. [10,760.50] — v EI du Pont de Nemours & Co 351 US 377 (1956) …. [10,070.20] United States Tobacco Co v Minister for Consumer Affairs (1988) 79 ALR 430; 15 ALD 104; (1988) ATPR 40-870 …. [15,050.20], [15,075.10] Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636 …. [10,700.25], [10,700.35], [10,700.40], [10,760.35], [10,760.45], [10,760.76], [10,785.50], [10,785.56], [10,785.57], [10,785.60], [10,785.75], [10,820.27], [11,590.25] — v Sharman License Holdings Ltd (2005) 220 ALR 1; 65 IPR 289 …. [14,605.7] Universal Telecasters Qld Ltd v Guthrie (1978) 18 ALR 531; 32 FLR 360; (1978) ATPR 40-062 …. [11,680.5], [14,645.130] Upton v TVW Enterprises Ltd (1985) ATPR 40-611 …. [14,590.315]

Uranium Antitrust Litigation, Re [1980] USCA7 143; 617 F 2d 1248 …. [10,155.5] V-am (T) plc v Amalgamated Television Services Pty Ltd (1988) 12 IPR 85; (1988) ATPR 40-891 …. [14,590.80] Vagrand Pty Ltd (in liq) v Fielding (1993) 113 ALR 128 …. [11,625.35] Valcorp Australia Pty Ltd v Angas Securities Ltd [2012] FCAFC 22; BC201201088 …. [14,090B.5], [14,590.310] Vale v Skygarden Pty Ltd BC9304828 …. [14,590.315] Valentine Films Pty Ltd v Trimex Pty Ltd BC9600599 …. [14,520.15] Varndell Pty Ltd v Patney Pty Ltd [2000] WASC 238; BC200005777 …. [14,590.320] Vendor Advocacy Australia Pty Ltd v Seitanidis (2013) 103 IPR 1 …. [14,590.250], [14,590.265] Venning v Suburban Taxi Service Pty Ltd (1994 unreported) …. [11,720.7] — v — (1996) ATPR 41-468 …. [10,760.76] Ventouris Enterprises Pty Limited v Dib Group Limited [2010] NSWSC 963; BC201006707 …. [14,520.15] Veranda Café Northbridge Pty Ltd v Morgan [2008] NSWSC 1032; BC200808592 …. [14,590.320] Verrocchi v Direct Chemist Outlet Pty Ltd [2016] FCAFC 104; BC201606851 …. [14,590.250] VFF Chicken Meat Growers’ Boycott Authorisation, Re [2006] ACompT 2 …. [11,855.20], [11,855.21], [11,855.22], [11,855.23] Victoria v Australian Building Construction Employees and Builders’ Labourers’ Federation (1982) 152 CLR 25; 41 ALR 71; 56 ALJR 506 …. [14,180.40] Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 20 ALR 129; 33 FLR 294; 4 TPC 124; (1978) ATPR 40-081 …. [10,760.70], [10,760.71], [11,625.35], [11,625.80] Victorian Government, Re (1997) ATPR (NCC) 70-001 …. [10,650G.10], [10,650N.10] Video Ezy International Pty Ltd v Sedema Pty Ltd [2014] NSWSC 143; BC201401040 …. [14,605.20] Videon v Beneficial Finance Corp (1981) ATPR 40-246 …. [14,650.15], [14,650.30], [14,650.45]

Viewsail Pty Ltd v Javel Holdings Pty Ltd (1994 unreported) …. [11,625.40], [11,625.45] — v — BC9600620 …. [14,590.160], [14,590.320] Village Building Co Ltd v Canberra International Airport Pty Ltd (2004) 139 FCR 330; 210 ALR 114 …. [10,025.95], [14,590.55] — v Canberra International Airport Pty Ltd (No 2) (2004) 208 ALR 98; (2004) ATPR 41-979 …. [10,025.20] Virgin Blue Airlines Pty Ltd v Australian Competition and Consumer Commission [2001] FCA 1271; BC200105348 …. [11,730.15] Virgin Blue Airlines Pty Ltd, Re (2005) 195 FLR 242; (2006) ATPR 42-092; [2005] ACompT 5 …. [10,650G.8], [10,650G.10], [10,650G.30], [10,650G.35], [10,650H.10] Virgin Enterprises Ltd v Virgin Star Pty Ltd [2005] FCA 1846; BC200511085 …. [11,625.35], [11,625.40] Visa International Service Association v Beiser Corp Pty Ltd (1983) 1 IPR 471; 77 FLR 234; (1983) ASC 55-258; (1983) ATPR 40-373 …. [11,625.45], [14,590.250] Visy Industries Holdings Pty Ltd v ACCC (2007) 161 FCR 122; (2007) ATPR 42-184 …. [14,180.77] Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 201 ALR 414 …. [10,700.70] — v — [2005] FCAFC 236; BC200509856 …. [11,590.25], [11,590.29] Vitek v Estate Homes Pty Ltd [2010] NSWSC 237; BC201001788 …. [14,590.160], [14,590.310] Vodafone Australia Ltd v Australian Competition and Consumer Commission [2005] FCA 1294; BC200506940 …. [14,177AQA.5], [14,177AQA.10] Vodafone Network Pty Ltd, Re Application by (2007) ATPR 42-150; [2007] ACompT 1 …. [14,177AB.12], [14,177AH.15] Volunteer Eco Students Abroad Pty Ltd v Reach Out Volunteers Pty Ltd [2013] FCA 731; BC201311325 …. [14,590.115] Von Berg v Trade Practices Commission (1997) ATPR 41-545 …. [14,645.25] Voss Real Estate v Schreiner (1998) ATPR 41-627 …. [11,655.15], [11,655.50] Vrancic v Elton Clothes Pty Ltd (1983) ASC 55-255; (1983) ATPR 40-368

…. [14,590.310] W & K Holdings (NSW) Pty Ltd v Mayo [2013] NSWSC 1063; BC201311742 …. [14,600.35], [14,605.20] WA Gas Networks Pty Ltd, Re Application by (No 3) [2012] ACompT 12; BC201204405 …. [10,605.15] WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559; 41 FLR 175 …. [14,180.15], [14,180.25] Wainohu v New South Wales (2011) 278 ALR 1; 85 ALJR 746 …. [10,490.1], [10,530.10] Wakim, Re; Ex Parte McNally (1999) 198 CLR 511; 163 ALR 270; 24 Fam LR 669 …. [11,695.5], [11,695.10], [14,285.3] Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678; BC200509986 …. [11,585.16], [11,655.25], [11,655.55] — v Masillamani [2007] VSC 172; BC200704007 …. [10,025.95] — v Salomon Smith Barney Securities Pty Ltd (2003) ATPR (Digest) 46240; (2003) 140 IR 433; (2004) Aust Contract R 90-183 …. [14,590.300], [14,655.15] Walker as Commissioner for Fair Trading v Rugs a Million Pty Ltd [2006] WASC 127; BC200604988 …. [11,625.45], [14,590.85] Walker Corporation Ltd v Australia NID Pty Ltd (1995) 59 FCR 327; (1995) ATPR 41-430; (1995) NSW ConvR 55-757 …. [14,590.160], [14,590.310] — v Australian NID Pty Ltd (1995) ATPR 41-377 …. [14,590.310] Wall v SBA Foods Pty Ltd [1999] FCA 1831; BC9908548 …. [11,710.9] Wallace v Brodribb (1985) 58 ALR 737; (1985) ASC 55-391; (1974) ATPR 40-541 …. [14,675.10], [14,675.15], [14,675.20] — v Walplane Pty Ltd (1985) 8 FCR 14; 59 ALR 771; (1985) ASC 55-403; (1985) ATPR 40-570 …. [14,675.20] Wallersteiner v Moir [1974] 1 WLR 991 …. [11,720.23] Wallis v Downard-Pickford (North Queensland) Pty Ltd (1992) ATPR 41173 …. [14,820.30] — v Downard-Pickford (Nth Qld) Pty Ltd (1994) 179 CLR 388; 120 ALR 440; (1994) ATPR 41-300 …. [14,800.40], [14,815.10], [14,820.15] Walplan Pty Ltd v Wallace (1985) 63 ALR 453; (1986) ATPR 40-650 …. [11,675.15], [11,675.5]

Walter Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1990] ANZ ConvR 181; (1989) ATPR 40-975; (1989) Q ConvR 54-333 …. [14,590.225] Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1102; BC200505922 …. [10,005.15] Wan v McDonald (1992) 105 ALR 473; (1992) ATPR 46-088 …. [11,655.40], [11,655.6], [11,720.7C] Wang v Anying Group Pty Ltd [2011] FCA 1196; BC201110706 …. [14,590.255], [14,605.20] — v Anying Group Pty Ltd (No 3) [2012] FCA 1380; BC201209671 …. [14,645.105] Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247; (1992) ATPR 41-189 …. [11,655.20], [11,655.25], [11,655.70] Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478; 67 ALR 253; (1986) ATPR 40-714 …. [10,760.55], [10,760.76], [14,175AA.0] Warner v Elders Rural Finance Ltd (1993) 41 FCR 399; 113 ALR 517; (1993) ATPR 41-238 …. [14,590.160] WD & HO Wills (Aust) Pty Ltd v Philip Morris Ltd (1997) 39 IPR 356; (1997) ATPR 41-590 …. [14,590.270] Webb Distributors (Aust) Pty Ltd v Victoria (1993) 117 ALR 321; (1993) ATPR (Digest) 46-113 …. [14,590.20] Webster v Havyn Pty Ltd (2004) 12 BPR 22,119; (2004) ATPR (Digest) 46249 …. [14,590.140] Weitmann v Katies Ltd (1977) 29 FLR 336; 2 TPC 329; (1977) ATPR 40041 …. [14,590.65], [14,590.80], [14,645.100] Wellington International Airport Ltd v Commerce Commission [2013] NZHC 3289 …. [10,025.25], [10,650.5] Wells v John R Lewis (International) Pty Ltd (1975) 25 FLR 194; (1975) ATPR 40-007 …. [10,155.5], [14,700.10] Wesoky v Village Cinemas International Pty Ltd [2001] FCA 32; BC200100100 …. [14,590.160] Western Australia v Bond Corp Holdings (1992 unreported) …. [11,585.70] — v Bond Corp Holdings Ltd (1990) 99 ALR 125; (1991) ASC 56-031; (1991) ATPR 41-081 …. [14,520.55], [14,590.330] — v — (1991) ASC 56-060; (1991) ATPR 41-095 …. [11,655.20]

— v Wardley Australia Ltd (1991) ATPR 41-131 …. [11,655.70], [11,720.27] Western Wagon and Property Co v West [1982] 1 Ch 271 …. [11,720.18] Westham Dredging Co Pty Ltd v Woodside Petroleum Development Pty Ltd (1983) 46 ALR 287; 66 FLR 14; (1983) ASC 55-241; (1983) ATPR 40338 …. [14,590.180] Westpac Banking Corporation v Eltran Pty Ltd (1987) 14 FCR 541; 74 ALR 45; (1987) ATPR 40-802 …. [11,625.35], [14,590.325] — v Northern Metals Pty Ltd (1989) 14 IPR 499; (1989) ATPR 40-953 …. [14,665.15] Westralian Farmers Co-op Ltd, Re (1979) 37 FLR 244 …. [11,855.20] WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd (1999) 48 IPR 111 …. [11,695.10] Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189; (1989) ATPR 40-940 …. [11,585.60], [11,585.65], [11,675.15], [14,520.15], [14,520.25], [14,520.35], [14,520.50], [14,590.90] White v Eurocycle Pty Ltd (1994) ATPR 41-330 …. [10,155.5], [14,535.15], [14,535.25], [14,770.25] — v — (1995) 64 SASR 461 …. [15,875.5] Whitemark Pty Ltd v Cann Australia Pty Ltd BC9304710 …. [14,520.55] Wickham v Associated Pool Builders Pty Ltd (1986) ATPR 40-741 …. [11,625.40] — v Canberra District Rugby League Football Club Ltd (1998) ATPR 41664 …. [10,700.35], [10,700.95] Wilcox, Re; Ex parte Venture Industries Pty Ltd (1996) 137 ALR 47; (1996) ATPR 41-496 …. [11,695.5] Wilde v Menville Pty Ltd (1981) 50 FLR 380; (1981) ATPR 40-195 …. [11,605.14], [11,605.20] Wildsmith v Dainford Ltd (1983) 51 ALR 24; 72 FLR 235; (1984) ASC 55290; (1983) ATPR 40-419 …. [14,590.310] Wilkins v Dovuro Pty Ltd (1999) 169 ALR 276 …. [14,590.160] William Inglis & Sons Baking Co v ITT Continental Baking Co Inc (1981) 668 F 2d 1014 …. [10,760.71] Williams v Commonwealth [1999] NSWCA 345; BC9906402 …. [11,655.70]

— v Commonwealth Bank of Australia BC9502747 …. [14,590.160] — v Papersave Pty Ltd (1987) ATPR 40-818 …. [10,760.55] — v Pisano [2015] NSWCA 177; BC201505727 …. [11,740CI], [11,655.25], [11,740CB.5], [11,740CB.28], [11,740CB.29], [11,740CD.25], [14,590.310], [14,590.55] Willoughby v Clayton Utz [2003] FCA 120; BC200300531 …. [11,695.10] Wingate Marketing Pty Ltd v Levi Strauss & Co (1994) 121 ALR 191; 28 IPR 193; (1994) ATPR 41-303 …. [14,590.250] Wingecarribee Shire Council v Lehman Brothers Australia Ltd [2012] FCA 1028; BC201207287 …. [11,655.25], [11,740CD.25], [14,590.140], [14,590.30], [14,590.330] Winnebago Industries, Inc v Knott Investments Pty Ltd (No 2) [2012] FCA 785; BC201205404 …. [14,590.250], [14,645.100], [14,645.120], [14,645.125] Winning Appliances Pty Ltd v Dean Appliances Pty Ltd (1995) 32 IPR 43; (1995) ATPR 41-423 …. [11,655.25], [14,590.255] Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 111 ALR 649; (1993) ATPR 41-205 …. [14,590.160] Wise v MRG Automotive Services Pty Ltd (1981) ATPR 40-239 …. [14,645.135] WMC Ltd v Westgold Resources NL (1997) 39 IPR 319 …. [14,590.250], [14,590.255] Wolfe v Permanent Custodians Ltd [2012] VSC 275; BC201207771 …. [14,590.160], [14,600.35], [14,600.45], [14,605.20] Wong v Citibank Ltd (2005) ASAL 55-136; (2004) ATPR 42-037 …. [14,590.230] Wood v Dancertext Pty Ltd [2007] FMCA 1410; BC200706963 …. [14,605.20] — v Wood (1997) ATPR 41-581 …. [11,655.70] Woodham v Lander [2004] ACTSC 34; BC200403100 …. [14,285.3] Woodlands v Permanent Trustee Co (1996) ATPR 41-509 …. [10,017.15] Woodtree Pty Ltd v Zheng (2007) 164 FCR 369; 74 IPR 484 …. [14,590.20], [14,590.210] — v — (2007) 211 FLR 18 …. [14,590.120] Woolworths Ltd v Fels [2002] HCA 50; BC200206566 …. [14,180.77]

— v Olson (2004) 184 FLR 121; 63 IPR 258 …. [10,150.5] Workwear Industries Pty Ltd v Pacific Brands Workwear Group Pty Ltd [2013] FCA 1042; BC201313714 …. [14,590.250] World Brands Management Pty Ltd v Brazin Ltd [2005] FCA 1673; BC200510022 …. [11,710.10] World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181; 2 TPC 303; (1977) ATPR 40-040 …. [11,625.35], [11,625.40], [11,625.45], [11,625.50], [11,625.65], [14,590.130] Worldplay Services Pty Ltd v Australian Competition & Consumer Commission (2005) 143 FCR 345; 219 ALR 363 …. [10,155.5], [14,725.35] Worsley Timber 2000 Pty Ltd (in liq) v Cmr of State Revenue 2007 ATC 4841 …. [10,095.10], [10,065.20] WP Kidd Pty Ltd v Panwell Pty Ltd [2007] QSC 373; BC200711094 …. [11,655.22], [11,655.50], [14,590.320] Wribass Pty Ltd v Swallow (1979) 38 FLR 92; (1979) ATPR 40-101 …. [10,740.65] Wright v TNT (Aust) Management Services Pty Ltd (1989) 15 NSWLR 679; 85 ALR 442; 94 FLR 399; (1989) ATPR 40-929 …. [10,025.95], [14,590.300], [14,655.15] — v Wheeler Grace & Pierucci Pty Ltd (1988) ATPR 40-865 …. [11,585.70] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 9) [2010] WASC 44; BC201001103 …. [11,655.20] WSGAL Pty Ltd v Trade Practices Commission (1994) 122 ALR 673; (1994) ATPR 41-314 …. [11,650.1] WTH Pty Ltd (t/as Avis Australia) v Budget Rent-a-Car System Pty Ltd (1984) ATPR 40-479 …. [11,625.45] Wylie Steel Pty Ltd, Application by (1980) ATPR 40-170 …. [12,130.20] XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448; 57 ALR 639 …. [11,655.45] XYZ v The Commonwealth of Australia [2006] HCA 25; (2006) 227 CLR 532 …. [10,690ZZRD.90] Yamaji v Westpac Banking Corp (No 2) (1993) 42 FCR 436; 115 ALR 240; (1993) ATPR 41-244 …. [10,155.10] Yanmar Diesel Engine Co Ltd v Kama Diesel Australia Pty Ltd [2002] FCA

1330; BC200206398 …. [14,590.270] Yardley of London (Aust) Pty Ltd v Chapman (1989) 17 IPR 345; (1990) ATPR 40-989 …. [14,590.330] Yates v Whitlam (1999) 32 ACSR 595; (1999) ATPR 41-722 …. [10,025.95], [14,590.55] Yenald Nominees Pty Ltd v Como Investments Pty Ltd (in liq) (1996) ATPR 41-508 …. [11,655.50], [14,590.320] Yerkey v Jones (1939) 63 CLR 649; [1939] ALR 62; (1939) 13 ALJR 84 …. [14,600.40] Yorke v Lucas (1983) 49 ALR 672; 80 FLR 143; (1983) ATPR 40-401 …. [11,585.15], [11,585.20], [11,585.50], [11,585.60], [11,585.65], [11,585.75] — v — (1985) 158 CLR 661; 61 ALR 307; 59 ALJR 776; (1985) ATPR 40622 …. [11,585.50], [14,590.230], [15,560.10] — v Ross Lucas Pty Ltd (1982) 45 ALR 299 …. [11,655.25] — v Treasureway Stores Pty Ltd (1982) ATPR 40-313 …. [14,590.320] — v — (1983) 46 ALR 319; (1983) ATPR 40-336 …. [11,585.75] Zaknic Pty Ltd v Svelte Corp Pty Ltd (1996) ATPR (Digest) 46-159 …. [14,590.160] Zalai v Col Crawford (Retail) Pty Ltd [1980] 2 NSWLR 438; (1980) 32 ALR 187; 47 FLR 337; (1980) ATPR 40-177 …. [11,655.10], [11,695.20], [14,770.25] Zaravinos v Dairy Farmers Co-operative Ltd & Pure-Pak Australia (1985) 7 FCR 195; 59 ALR 603; (1985) ATPR 40-559 …. [15,877.0] Zhang v VP302 SPV Pty Ltd (2009) 223 FLR 213 …. [11,655.22] Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445; (1990) ASC 55-965; (1990) ATPR 41-009 …. [11,655.55], [14,605.20], [14,605.25], [14,815.15] Zuvela v Geiger [2007] WASCA 138; BC200705602 …. [14,590.160] Zwanenberg Australia Pty Ltd v Moira Macs Poultry and Fine Foods Pty Ltd [2014] FCA 1072 …. [14,520.45] — v Moira Mac’s Poultry and Fine Foods Pty Ltd (No 2) [2014] FCA 1401; BC201410883 …. [11,720.23] ZX Group Pty Ltd v LPD Corp Pty Ltd [2013] VSC 542; BC201313766 …. [14,590.310]

Annotated Competition and Consumer Legislation Contents Publisher’s Note Features of this Publication Overview — Developments in Competition and Consumer Law in 2016/2017 Table of Cases Competition and Consumer Act 2010 Comparative Tables Commonwealth and state comparative provisions Table of Remedies Maximum civil pecuniary penalties under the ACL Consumer rights concerning guarantees for the supply of goods Consumer rights concerning guarantees for services Action for damages against manufacturers of goods Australian Competition and Consumer Act 2010 — Penalties and Remedies Overview Table of Provisions Table of Amendments Pt I — Preliminary Pt II — The Australian Competition and Consumer Commission Pt IIA — The National Competition Council Pt III — The Australian Competition Tribunal Pt IIIAA — The Australian Energy Regulator (AER) Pt IIIAB — Application of the Finance Law

Pt IIIA — Access to Services Pt IV — Restrictive Trade Practices Pt IVA — Unconscionable Conduct [Repealed] Pt IVB — Industry Codes Pt IVC — Payment Surcharges Pt V — Carbon Tax Price Reduction Obligation Pt VA — Liability of Manufacturers and Importers for Defective Goods [Repealed] Pt VB — Price Exploitation in Relation to a New Tax System [Repealed] Pt VC — Offences [Repealed] Pt VI — Enforcement and Remedies Pt VIA — Proportionate Liability for Misleading and Deceptive Conduct Pt VIB — Claims for Damages or Compensation for Death or Personal Injury Pt VIC — Infringement Notices [Repealed] Pt VID — Substantiation Notices [Repealed] Pt VII — Authorisations, Notifications and Clearances in Respect of Restrictive Trade Practices Pt VIIA — Prices Surveillance Pt VIII — Resale Price Maintenance Pt IX — Review by Tribunal of Determinations of Commission Pt X — International Liner Cargo Shipping Pt XI — Application of the Australian Consumer Law as a Law of the Commonwealth Pt XIAA — Application of the Australian Consumer Law as a Law of a State or Territory Pt XIA — The Competition Code Pt XIB — The Telecommunications Industry: Anti-Competitive Conduct and Record-Keeping Rules Pt XIC — Telecommunications Access Regime Pt XID — Search and Seizure Pt XII — Miscellaneous Pt XIII — Application and Transitional Provisions Relating to the

Competition Provisions Schedule 1 — The Schedule Version of Part IV Schedule 2 — The Australian Consumer Law REGULATIONS Competition and Consumer Regulations 2010 Table of Provisions Table of Amendments Pt 1 — Preliminary Pt 2 — General Pt 2A — Review by Tribunal of Access Determinations Pt 2B — Telecommunications Access Regime Pt 3 — International Liner Cargo Shipping Pt 4 — Anti-competitive Disclosure of Pricing and Other Information Pt 5 — Authorisations, Notifications and Clearances in Respect of Restrictive Trade Practices — Prescribed Matters Pt 6 — Australian Consumer Law Pt 7 — Transitional Matters — Australian Consumer Law Competition and Consumer Forms Table of Schedule 1 Forms Sch 1 — Forms — General Table of Schedule 3 Forms Sch 3 — Forms — Registration of Conference Agreements Fees: Competition and Consumer Regulations 2010 (extracts) Table of Provisions Table of Amendments Regulation 28 Regulation 31 Sch 1A — Matters for which No Fee is Payable Sch 1B — Fees Payable to Commission or Tribunal for Applications and Notices Sch 2 — Fees — Registration of Conference Agreements Competition Policy Reform Act 1995 — Inter-Governmental

Agreements Competition Principles Agreement Conduct Code Agreement Agreement to Implement the National Competition Policy and Related Reforms Competition and Infrastructure Reform Agreement Australian Energy Market Agreement as amended in 2013 Related Legislation Trade Practices (Industry Codes — Unit Pricing) Regulations 2009 Table of Provisions Table of Amendments Regulations Schedule 1 — Retail Grocery Industry (Unit Pricing) Code of Conduct Competition and Consumer (Industry Codes — Franchising) Regulation 2014 Table of Provisions Table of Amendments Regulations Schedule 1 — Franchising Code of Conduct Annexure 1 — Disclosure Document for Franchisee or Prospective Franchisee Annexure 2 Information Statement for Prospective Franchisee Competition and Consumer (Industry Codes — Oilcode) Regulation 2006 Table of Provisions Table of Amendments Regulations Schedule 1 — Oilcode Annexure 1 — Disclosure Document for Retailer or Prospective Retailer Long Form Annexure 2 — Disclosure Document for Retailer or Prospective Retailer Short Form Annexure 3 — Disclosure Document for Proposed Transferee Trade Practices (Horticulture Code of Conduct) Regulations 2006

Table of Provisions Table of Amendments Regulations Schedule — Horticulture Code of Conduct Competition and Consumer (Industry Codes Food and Grocery) Regulation 2015 Table of Provisions Table of Amendments Regulations Schedule 1 — Food And Grocery Code of Conduct ANCILLARY MATERIALS Merger Guidelines Contents 1 — Introduction 2 — Notification threshold 3 — The competition test 4 — Market definition 5 — Unilateral effects 6 — Coordinated effects 7 — Merger factors Appendix 1 — Relevant provisions of the Act Appendix 2 — Acquisitions subject to the Act Appendix 3 — Undertakings Glossary and shortened forms Informal Merger Review Process Guidelines Contents Glossary 1 — Introduction 2 — Informal merger review processes 3 — Section 87B undertakings Appendix A — Information requirements for ACCC’s review Formal Merger Review Process Guidelines Contents Glossary

1 — Mergers, acquisitions and the Competition and Consumer Act 2 — ACCC consideration of proposed mergers 3 — Formal merger clearance 4 — Varying, revoking and substituting clearances 5 — Reviewing ACCC clearance determinations 6 — Merger authorisation applications to the Tribunal ACCC Immunity and Cooperation Policy for Cartel Conduct Preface A — Introduction B — Scope of the policy C — Civil immunity D — Criminal immunity E — The immunity process F — Revocation of immunity G — Closing an investigation/withdrawal of an immunity application H — Cooperation policy I — Amnesty plus Memorandum of Understanding between the Commonwealth DPP and the ACCC regarding Serious Cartel Conduct 1 — Introduction 2 — Responsibilities 3 — Decision to investigate 4 — ACCC referral to the CDPP 5 — CDPP decision to prosecute 6 — Related criminal and civil proceedings 7 — Immunity from proceedings for a party who meets the criteria for conditional immunity under the ACCC’s Immunity and Cooperation Policy 8 — Immunity from prosecution for a party who does not meet the criteria for conditional immunity under the ACCC’s Immunity and Cooperation Policy 9 — Liaison New National Practice Notes GPN-EXPT — Expert Evidence Practice Notes

GPN-SURV — Survey Evidence Practice Note Intergovernmental Agreement for the Australian Consumer Law Preliminaries Recitals Definitions and Interpretation Operation of the agreement Implementation Alteration of the Australian Consumer Law Administration and Enforcement Product Safety Research and Advocacy Relations with New Zealand Withdrawal and Cessation Review Intergovernmental Agreement on Competition and Productivityenhancing Reforms Preliminaries PART 1 — FORMALITIES PART 2 — OBJECTIVES PART 3 — COMPETITION PRINCIPLES PART 4 — AREAS FOR REFORM PART 5 — FINANCIAL ARRANGEMENTS PART 6 — INSTITUTIONAL ARRANGEMENTS PART 7 — IMPLEMENTATION APPENDIX A — Regulatory reforms APPENDIX B — Human services reforms APPENDIX C — Infrastructure reforms APPENDIX D — Additional productivity reforms APPENDIX C.1 — Access to Services Provided by Means of Significannt Infrastucture Facilities APPENDIX A — Regulatory reforms Index

[page 1]

Comparative Table [10,001]

Commonwealth and state comparative provisions

The table following lists provisions of the Competition and Consumer Act 2010 (Cth) and identifies the most closely corresponding provisions of the State and Territory Acts. The column headings represent: — ACL: the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 of the Commonwealth, and as applied by States and Territories); — TPA: the former Trade Practices Act 1974 (Cth); — ASIC Act: the Australian Securities and Investments Commission Act 2001 (Cth); — NSW: the Fair Trading Act 1987 (NSW); — QLD: the Fair Trading Act 1989 (Qld); — VIC: the Fair Trading Act 1999 (Vic); — SA: the Fair Trading Act 1987 (SA); — WA: the Fair Trading Act 1987 (WA); — Tas: the Fair Trading Act 1990 (Tas); — ACT: the Fair Trading Act 1992 (ACT); and — NT: the Consumer Affairs and Fair Trading Act 1990 (NT).

[page 2] Table A1: Comparative table of provisions

[page 3]

[page 4]

[page 5]

[page 6]

[page 7]

[page 8]

[page 9]

[page 10]

[page 11]

[page 12]

[page 13]

[page 14]

Tables of Remedies [10,002] Table 5.3: Maximum civil pecuniary penalties under the ACL Maximum civil pecuniary penalty for bodies corporate

Maximum civil pecuniary penalty for other persons

Part 2-2 Unconscionable conduct

$1.1 million

$220,000

Part 3-1, Divisions 1 and 2 Unfair practices

$1.1 million

$220,000

Part 3-1, Division 3 Pyramid schemes

$1.1 million

$220,000

Part 3-1, Division 4 Pricing

$5,000 for section 47(1) (multiple pricing) $1.1 million for section 48 (component pricing)

$1,000 for section 47(1) (multiple pricing) $220,000 for section 48 (component pricing)

Part 3-1, Division 5 Other unfair practices

$1.1 million

$220,000

Part 3-2, Division 1 Consumer guarantees

$50,000 for section 66(2) (display notices)

$10,000 for section 66(2) (display notices)

Part 3-2, Division 2 Unsolicited consumer agreements (except section 85)

$50,000

$10,000

Part 3-2, Division 3 Lay-by agreements (except subsection 96(2))

$30,000

$6,000

Part 3-2, Division 4 Miscellaneous

$15,000 for sections 100(1), 100(3), 101(3) or 101(4) $50,000 for sections 102(2) or 103(2)

$3,000 for sections 100(1), 100(3), 101(3) or 101(4) $10,000 for sections 102(2) or 103(2)

Part 3-3, Division 1 Safety standards (subsections 106(1), (2), (3) or (5) or 107(1) or (2))

$1.1 million

$220,000

Provisions

Part 3-3, Division 2 $1.1 million Bans on consumer goods and product related services (subsections 118(1), (2), (3) or (5) or 199(1) or (2))

$220,000

Part 3-3, Division 3 Recall of consumer goods

$3,300 for sections 125(4), 128(2) or 128(6) $220,000 for sections 127(1) or (2)

$16,500 for sections 125(4), 128(2) or 128(6) $1.1 million for sections 127(1) or (2)

[page 16] Provisions

Maximum civil pecuniary penalty for bodies corporate

Maximum civil pecuniary penalty for other persons

Part 3-3, Division 5 $16,500 for sections 131(1) Consumer goods or or 132(1) productrelated services associated with death, serious injury or illness

$3,300 for sections 131(1) or 132(1)

Part 3-4 Information standards

$1.1 million for sections 136(1), (2) or (3) or 137(1) or (2)

$220,000 for sections 136(1), (2) or (3) or 137(1) or (2)

Part 5-1, Division 2 Substantiation notices

$16,500 for section 221(1) $27,500 for section 222(1)

$3,300 for section 221(1) $5,500 for section 222(1)

© Commonwealth of Australia reproduced by permission

[10,003] Table 5.4: Consumer rights concerning guarantees for the supply of goods Right of action Section 259(1)

A consumer has a right to take action if a supplier of goods fails to comply with a guarantee that applies under Chapter 3, Part 3-2, Division 1, Subdivision A of the ACL.

Right to require that a failure to honour a guarantee be remedied Section 259(2)

If a failure to comply with a guarantee is not a major failure and is capable of being remedied by the supplier, the consumer may require the supplier to remedy the failure within a reasonable time. What is a ‘reasonable time’ will vary depending on the nature of the goods and the nature of the failure.

Consequences for a supplier of failing to remedy a failure to honour a guarantee Section 259(2)

If a supplier fails to remedy a failure within a reasonable time a consumer may have the failure remedied elsewhere and recover all reasonable costs incurred from the supplier, or reject the goods. The costs that will be recoverable under the section if goods are remedied elsewhere would likely include any amount paid to the alternative repairer, and any costs of transporting the goods to and from that repairer, such as postage and

handling costs. Rights of a consumer if a failure to comply with a guarantee is major or is not capable of remedy Section 259(3)

If a failure to comply with a guarantee is major or the failure is not capable of being remedied, the consumer may reject the goods or seek compensation from the supplier for the reduction in the value of the goods below the price paid or payable for the goods.

Consumer’s right to recover damages Section 259(4–6)

The consumer may also recover damages for any loss incurred that was reasonably foreseeable as a result of the failure. This will include the costs of inspection and transportation in respect of seeking to have the failure remedied. The consumer does not have a right to claim damages if the failure occurred because of a cause independent of human control that occurred after the goods left the control of the supplier.

Original packaging Section 259(7)

The right of consumers to seek remedies from suppliers is not affected by whether or not the goods are in their original packaging.

[page 17] When is a failure to honour a guarantee a ‘major failure’? Section 260

A failure to honour a guarantee is a ‘major failure’ if the goods would not have been acquired by a reasonable consumer fully acquainted with the extent of the failure, or the goods depart, in a significant respect, from their description, or from a sample or demonstration model. A failure to honour a guarantee is also a major failure if the goods are substantially unfit for the purpose that goods of the same kind are commonly supplied for and they cannot be remedied within a reasonable time, or they are unfit for a disclosed purpose and cannot be remedied within a reasonable time. A major failure also occurs if goods are unsafe.

Ways in which a supplier may remedy a failure Section 261

A supplier may remedy a failure to comply with a guarantee, by: • if a failure relates to title, curing the defect in the title. • if a failure does not relate to title, repair the goods, replace the goods or provide the consumer with a refund. Whilst there is no restriction placed on a consumer requesting a particular remedy, the method of remedying a failure will be at the option of the supplier.

When consumers are not entitled to reject goods Section 262

A consumer may reject goods in certain circumstances. That right may be lost in certain circumstances. These include: • if the rejection period for the goods has ended — the rejection period is defined as a reasonable period given the type of goods, the use to which the consumer is likely to put them, the length of time it is reasonable for them to be used and the amount of use to which it is reasonable for them to be put before the failure becomes apparent. What is reasonable will vary on a case-by-case basis. • If the goods have been lost, destroyed or disposed of by the consumer — in these circumstances it is impossible for the consumer to reject the

•

•

goods and return them to the supplier. the goods were damaged after being supplied to the consumer — suppliers cannot be required to accept goods that have been damaged by consumers; accordingly, the right to reject goods is lost if damage occurs after they are supplied. the goods have been attached to other property and they cannot be detached without damaging them — in these circumstances a consumer will not be able to reject the goods, but will need to seek another remedy, such as a repair.

Consequences of rejecting goods Section 263(1)

If a consumer rejects goods the consumer must return the goods to the supplier. Exceptions to this rule apply if the goods have already been returned to, or retrieved by, the supplier. Any goods returned become the property of the supplier when the consumer tells the supplier of their intention to reject the goods.

Supplier to pay for costs of returning goods in certain circumstances Section 263(3)

If the goods cannot be returned without significant cost to the consumer, because of the nature of the failure or due to their size or height, or because the goods are attached to other property (such as land or a building), then the supplier must collect the goods at their own expense.

[page 18] Refund or replacement goods Section 263(4)

If goods are rejected the consumer will have the right to choose between a refund or replacement and the supplier will have an obligation to comply with the consumer’s request.

Replaced goods Section 264

If goods are replaced, the replacement goods are subject to the guarantees set out in Chapter 3, Part 3-2, Division 1 of the ACL.

Termination of contracts for the supply of services that are connected with rejected goods Section 265

Certain goods are often supplied in conjunction with associated services. A common example is mobile telephones and associated network services. When goods are supplied to a consumer under a contract and that contract also provides for services to be provided to the consumer, the consumer will often have no use for the associated services if the goods are rejected and returned to the supplier. If a consumer rejects the goods and the supplier is required to provide a refund in respect of a supply of goods, then the consumer may also choose to terminate the contract for the supply of any services that are connected with the rejected goods. A consumer will not be required to make any further payments to the supplier of the services after the time that the contract is taken to have been terminated.

Rights of gift recipients Section 266

A person who is provided with goods as a gift from a consumer has the same rights and remedies as would be available to the consumer under Chapter 5, Part 5-4, Division 1, Subdivision A of the ACL.

© Commonwealth of Australia reproduced by permission

[10,004] Table 5.5: Consumer rights concerning guarantees for services Right of action Section 267(1)

A consumer has a right to take action if a supplier of services fails to comply with a guarantee that applies under Chapter 3, Part 3-2, Division 1, Subdivision B of the ACL.

Right to require that a failure to honour a guarantee be remedied Section 267(2)

If a failure to comply with a remedy is not a major failure and is capable of being remedied by the supplier, the consumer may require the supplier to remedy the failure within a reasonable time. What is a ‘reasonable time’ will vary depending on the nature of the services and the nature of the failure.

Consequences for a supplier of failing to remedy a failure to honour a guarantee Section 267(3)

If a supplier fails to remedy a failure within a reasonable time, a consumer will be able to have the failure remedied elsewhere and recover all reasonable costs incurred from the supplier, or terminate the contract for the supply of the services.

Rights of a consumer if a failure to comply with a guarantee is major or is not capable of remedy Section 267(3)

If a failure to comply with a guarantee is major or the failure is not capable of being remedied, the consumer may terminate the contract for the supply of the services or seek compensation from the supplier for the reduction in the value of the services below the price paid or payable for the services.

Consumer’s right to recover damages Section 267(4)

The consumer may also recover damages for any loss or damage incurred that was reasonably foreseeable as a result of the failure. The consumer does not have a right to claim damages from the supplier of services if a failure occurs because of an act, default or omission, or a representation made by a person other than the supplier, or an agent or employee of the supplier. A supplier is also not liable for a failure if it is caused by something that is independent of human control.

[page 19] Termination of contracts for the supply of services Section 269

A termination of a contract for the supply of services takes effect from the time when a consumer tells a supplier that they are terminating the contract. When a consumer terminates a contract for the supply of services the supplier must refund any money paid for the services.

Termination of contracts for the supply of goods that are connected with terminated services Section 270

If a consumer terminates a contract for the supply of services and goods are inextricably linked to the services, the consumer may also choose to reject the goods at the same time as terminating the contract for the services. The consumer must return the goods to the supplier and the supplier must provide the consumer with a refund.

© Commonwealth of Australia reproduced by permission

[10,005] Table 5.6: Action for damages against manufacturers of goods Respective positions of suppliers and manufacturers Section 274

Consumers purchase goods directly from suppliers and have only indirect dealings with manufacturers. Accordingly, the primary source of remedies under the statutory consumer guarantees would be suppliers. Consumers will be able to seek repairs, refunds or replacement goods from suppliers. Suppliers will be able to recoup any costs of providing those remedies from the manufacturers of goods. In certain circumstances, consumers will not be able to obtain a remedy from the supplier of goods. Examples of such circumstances include those whereby a supplier has become insolvent, is no longer in business or refuses to provide a remedy.

Rights of action against manufacturers Section 271(1)

To allow for circumstances whereby consumers need to seek a remedy directly from a manufacturer, a consumer may recover damages from a manufacturer if goods are not of acceptable quality.

Consumer’s right to claim damages Sections 271(2), (3) and (5)

A person may also recover damages from a manufacturer if goods do not match a description that is applied by, or on behalf of, the manufacturer. The right to recover damages is subject to exceptions if the cause of the failure to comply with a guarantee is independent of the supplier (that is, it is caused by someone else or by causes independent of human control). If a consumer requires a manufacturer to repair or replace goods under an express warranty, they cannot seek damages from the manufacturer in respect of a failure to honour a guarantee.

Damages that may be recovered by action against a manufacturer of goods Section 272(1)

A consumer may recover the price paid for the goods and any loss that is reasonably foreseeable as a result of the failure. This will include any costs incurred by the consumer to transport the goods back to the manufacturer and any costs of inspecting the goods to ascertain whether they are faulty.

Manufacturer’s requirement to make spare parts and repairs reasonably available Section 271

One remedy that is available only from a manufacturer relates to the guarantee to make spare parts and repairs reasonably available. A consumer may seek damages from a manufacturer in respect of a failure by a manufacturer to make spare parts and repairs reasonably available.

Original packaging Section 271(7)

A consumer may commence an action against a manufacturer for damages irrespective of whether the goods are in their original packaging.

[page 20] Time limit for actions against manufacturers

A consumer may commence an action against a manufacturer for a period of three years after they became aware that a guarantee has not been

Section 273

complied with.

© Commonwealth of Australia reproduced by permission

[10,006] Australian Competition and Consumer Act 2010 — Penalties and Remedies Overview Chapter 2: General Protections Provision

Remedies/Redress

Penalties

Misleading or Deceptive Conduct

Remedies under Pt 5-2 ACL:

None

Part 2-1 ACL

Include: • Injunctions (Div 2) • Damages (Div 3) • Compensatory orders (Div 4) • Non-punitive orders (Div 5)

Unconscionable Conduct

Remedies under Pt 5-2 ACL:

Civil Pecuniary Penalties1

Part 2-2 ACL

Include: • Injunctions (Div 2) • Damages (Div 3) • Compensatory orders (Div 4) • Non-punitive orders (Div 5)

May also apply: • Maximum penalty of up to $1.1m (for a body corporate) or $220,000 (for any other person) • Disqualification orders • Remedies and/or redress for nonparties • Public warning notices

Infringement Notices May apply: • For a listed corporation: 600 penalty units (currently $66,000) • For other bodies corporate: 60 penalty units (currently $6,600) • For any other person: 12 penalty units (currently $1,320)

[page 21] Unfair contract terms Part 2-3 ACL

A term in a contract found unfair by a No penalties apply at the time a term is court will be void. Remedies under the declared unfair common law will apply. Also, remedies under the ACL include:

• • •

Injunctions (Pt 5-2, Div 2) Compensatory orders (Pt 5-2, Div 4) Remedies and/or redress for nonparties

Chapter 3: Specific Protections Provision

Remedies/Redress

Penalties

Unfair Practices

Remedies under Pt 5-2 ACL:

Civil Pecuniary Penalties2

Part 3-1 ACL

Include: May also apply: • Injunctions (Div 2) • Maximum penalty of up to $1.1m • Damages (Div 3) (for a body corporate) or $220,000 • Compensatory orders (Div 4) (for any other person) • Non-punitive orders (Div 5) except for multiple pricing where • Adverse Publicity orders under the maximum is $5,000 (for a (Div 5) body corporate) or $1,000(for any other person) • Disqualification orders • Remedies and/or redress for nonparties • Public warning notices Infringement Notices

Criminal Sanctions

May apply (except for s 32(1), s 35(1), For the offence provisions, see Pt 4-1 s 36(1), (2), (3), s 40, s 43, s 47(1)): ACL. • For a listed corporation: 600 penalty units (currently $66,000) • For other bodies corporate: 60 penalty units (currently $6,600) • For any other person: 12 penalty units (currently $1,320) For s 47(1) (multiple pricing): • For a listed corporation: 10 penalty units (currently $1,100)

[page 22] • • Consumer Guarantees Part 3-2, Division 1 ACL

For other bodies corporate: 10 penalty units (currently $1,100) For any other person: 2 penalty units (currently $220) This section sets out consumer guarantees, and do not attract penalties

For consumer rights regarding Pt 3-2, Criminal Sanctions Div 1, Subdiv A, refer to Table 5.4 at For the offence provisions, see Pt 4-2, [10,003] For consumer rights regarding Div 1 ACL Pt 3-2, Div 1, Subdiv B, refer to Table 5.5 at [10,004] Unsolicited Consumer Agreements

Remedies under Pt 5-2 ACL

Civil Pecuniary Penalties3

Part 3-2, Division 2 ACL

Include: • Injunctions (Div 2) • Damages (Div 3) • Compensatory orders (Div 4) • Non-punitive orders (Div 5) • Adverse publicity orders (Div 5)

May also apply: • Maximum penalty of up to $50,000 (for a body corporate) or $10,000 (for any other person) • Disqualification orders • Remedies and/or redress for nonparties • Public warning notices

Infringement Notices Criminal Sanctions Will apply: For the offence provisions, see Pt 4-2, • For a listed corporation: 600 Division 2 ACL penalty units (currently $66,000) • For other bodies corporate: 60 penalty units (currently $6,600) • For any other person: 12 penalty units (currently $1,320) Lay-By Agreements Part 3-2, Division 3 ACL

Remedies under Pt 5-2 ACL

Civil Pecuniary Penalties4

Include:

May apply (except for s 96(2)):

[page 23] • • • • •

Injunctions (Div 2) Damages (Div 3) Compensatory orders (Div 4) Non-punitive orders (Div 5) Adverse publicity orders (Div 5)

•

•

Civil Pecuniary Penalties: maximum penalty up to $30,000 (for a body corporate) or $6,000 (for any other person) Public warning notices

Infringement Notices Criminal Sanctions Will apply (except for s 96(2): For the offence provisions, see Pt 4-2, • For a listed corporation: 600 Division 2 ACL penalty units (currently $66,000) • For other bodies corporate: 60 penalty units (currently $6,600) • For any other person: 12 penalty units (currently $1,320)

Safety of Infringement Notices Consumer Goods and Products

Civil Pecuniary Penalties5

Part 3-2, Division 4

For a breach of s 100(1), 100(3), 101(3) or 101(4), the maximum penalty is $15,000 (for a body corporate) or $3,000 (for any other person)

May apply for s 100(1), 100(3), 101(3) or 101(4): • For a listed corporation: 20 penalty units (currently $2,200) • For other bodies corporate: 20 penalty units (currently $2,200) • For any other person: 4 penalty units (currently $440)

For a breach of s 102(2) or 103(2), the maximum penalty is $50,000 (for a body corporate) or $10,000 (for any other person)

May apply for s 102(2) or 103(2): • For a listed corporation: 60 penalty units (currently $6,600) • For other bodies corporate: 60 penalty units (currently $6,600)

[page 24] •

For any other person: 12 penalty units (currently $1,320)

Safety of Remedies under Pt 5-2 ACL: Consumer Goods and Products

Civil Pecuniary Penalties6

Part 3-3 ACL

Include: • Injunctions (Div 2) • Damages (Div 3) • Compensatory orders (Div 4) • Non-punitive orders (Div 5)

May also apply: • Maximum penalty of up to $1.1m (for a body corporate) or $220,000 (for any other person) • Disqualification orders • Remedies and/or redress for nonparties • Public warning notices

Infringement Notices

Except: • ss 125(4), 128(2) or s 128(6) (recall of consumer), where the maximum penalty is $16,500 (for a body corporate) or $3,300 (for any other person);

For Pt 3-3, Div 1 (Safety Standards) and Pt 3-3, Div 2 (Bans on consumer goods and product related services).

May apply: • • For a listed corporation: 600 penalty units (currently $66,000)

ss 131(1) or 132(1) (consumer goods or product-related services associated with death, serious injury or illness), where the maximum penalty is $16,500 (for

a body corporate) or $3,300 (for any other person) •

For other bodies corporate: 60 penalty units (currently $6,600)

•

For any other person: 12 penalty The ACCC have been given stronger units ($1,320) powers (based on existing State and Territory powers) to undertake market surveillance and enforcement of the new national product safety law

For Pt 3-3, Div 3 (Recall of consumer goods) and Pt 3-3, Div 5 (Consumer goods or productrelated services associated with death, serious injury or illness). May apply:

Criminal Sanctions

[page 25] •

For a listed corporation: 30 For the offence provisions relating to penalty units (currently $3,300) safety standards, see Pt 4-3, Div 1 ACL for s 125(4), 128(2), 128(6), s 131(1) or 132(1) and 600 penalty units (currently $66,000) for s 127(1) or (2)

•

For other bodies corporate: 30 For the offence provisions relating to penalty units (currently $3,300) bans, see Pt 4-3, Div 2 ACL for s 125(4), 128(2), 128(6), s 131(1) or 132(1) and 60 penalty units (currently $6,600) for s 127(1) or (2).

•

For any other person: 6 penalty For the offence provisions relating to units (currently $660) for s 125(4), recall of consumer goods, see Pt 4-3, 128(2), 128(6), s 131(1) or 132(1) Div 3 ACL and 12 penalty units (currently $1,320) for s 127(1) or (2) For the offence provisions relating to death or serious injury and illness, see Pt 4-3, Div 4 ACL

Bans • Interim bans set out by Ch 3, Pt 33, Div 2, Subdiv A • Permanent bans set out by Ch 3, Pt 3-3, Div 2, Subdiv A

Product Recalls • Mandatory recalls under Ch 3, Pt 3-3, Div 3, Subdiv A • Also provides for voluntary recalls under Ch 3, Pt 3-3, Div 3, Subdiv B Safety Warning Notices • Publication of safety warning notices under Ch 3, Pt 3-3, Div 4 Information Standards Part 3-4 ACL

Remedies under Pt 5-2 ACL:

Civil Pecuniary Penalties7

Include: • Injunctions (Div 2) • Damages (Div 3) • Compensatory orders (Div 4)

May also apply: • Maximum penalty of up to $1.1m (for a body corporate) or $220,000 (for any other person) • Disqualification orders • Infringement notices

[page 26] •

Non-punitive orders (Div 5)

• •

Remedies and/or redress for nonparties Public warning notices

Infringement Notices Criminal Sanctions May apply: For the offence provisions, see Pt 4-4 • For a listed corporation: 600 ACL penalty units (currently $66,000) for s 136(1), (2), (3), s 137(1) or (2) • For other bodies corporate: 60 penalty units (currently $6,600) for s 136(1), (2), (3), s 137(1) or (2) • For any other person: 12 penalty units (currently $1,320) s 136(1), (2), (3), s 137(1) or (2) Liability of Manufacturers for Goods with Safety Defects Part 3-5 ACL

These provisions provide for a statutory regime for liability actions against manufacturers for compensation purposes There are no penalties for breaching a provision of Pt 3-5 ACL. These are to be used a guide for the courts

Chapter 4: Offences Provision

Remedies/Redress

Penalties

Unfair Practices Part 4-1

Maximum penalty of $1.1 million (for a body corporate) and $220,000 (for any other person) Except: s 165 (multiple pricing), where the maximum penalty is $5,000 (for a body corporate) and $1,000 (for any other person)

Consumer Guarantees Part 4-2, Div 1

Maximum penalty for s 169 (display notices) of $50,000 (for a body corporate) and $10,000 (for any other person)

Unsolicited Consumer Agreements Part 4-2, Div 2

Maximum penalty of $50,000 (for a body corporate) and $10,000 (for any other person)

Lay-by Agreements Part 4-2, Div 3

Maximum penalty of $30,000 (for a body corporate) and $6,000 (for any other person)

[page 27] Miscellaneous Part 4-2, Div 4

Maximum penalty of $50,000 (for a body corporate) and $10,000 (for any other person)

Safety Standards Part 4-3, Div 1

Maximum penalty of $1.1 million (for a body corporate) and $220,000 (for any other person). Except: s 196 (requirement to nominate a safety standard), where the maximum penalty is $220,000 (for a body corporate) and $4,400 (for any other person)

Bans on consumer goods and product related services Part 4-3, Div 2

Maximum penalty of $1.1 million (for a body corporate) and $220,000 (for any other person)

Recall of consumer goods Part 4-3, Div 3

For compliance with recall orders, the maximum penalty of $1.1 million (for a body corporate) and $220,000 (for any other person)

For s 200 (Notification of persons who supply consumer goods outside Australia if there is no compulsory recall) and s 201 (Notification requirements for a voluntary recall of consumer goods), the maximum penalty is $16,650 (for a body corporate) and $3,330 (for any other person) Consumer goods, or product related services associated with death or serious injury or illness Part 4-3, Div 4

Maximum penalty of $16,650 (for a body corporate) and $3,330 (for any other person)

Offences relating to information standards Part 4-4

Maximum penalty of $1.1 million (for a body corporate) and $220,000 (for any other person)

[page 28] For s 205 (compliance with substantiation notices), the maximum penalty is $16,500 (for a body corporate) and $3,330 (for any other person) For s 206 (false or misleading information in response to a substantiation notice), the maximum penalty is $27,500 (for a body corporate) and $5,500 (for any other person)

Offences relating to substantiation notices Part 4-5

Chapter 5: Remedies Provision

Remedies/Redress

Penalties

Liability of Manufacturers for Goods with Safety Defects

Infringement Notices

Civil Pecuniary Penalties8

Part 3-5 ACL

May apply: • For a

listed

corporation:

May apply: 30 • For s 221(1),

the maximum

•

•

penalty units (currently $3,300) for s 221(1) or 50 penalty units (currently $5,500) for s 222(1) For other bodies corporate: 30 penalty units (currently $3,300) for s 221(1) or 50 penalty units (currently $5,500) for s 222(1) For any other person: 6 penalty units (currently $660) for s 221(1) or 10 penalty units (currently $1,100) for s 222(1)

penalty is $16,500 (for a body corporate) or $3,300 (for any other person) • For s 222(1), the maximum penalty is $27,500 (for a body corporate) or $5,500 (for any other person) Criminal Sanctions For the offence provisions, see Pt 4-5 ACL

[page 29]

Competition and Consumer Act 2010 TABLE OF PROVISIONS Section

Title

Paragraph

PART I — PRELIMINARY 1 2 2A 2B 2BA 2C 2D

3 4 4A 4B 4C 4D

Short title …. Object of this Act …. Application of Act to Commonwealth and Commonwealth authorities …. Application of Act to States and Territories …. Application of Part IV to local government bodies …. Activities that are not business …. Exemption of certain activities of local government bodies from Part IV [Repealed] …. Repeal …. Interpretation …. Subsidiary, holding and related bodies corporate …. Consumers …. Acquisition, supply and re-supply …. Exclusionary provisions ….

[10,007] [10,010] [10,015] [10,017] [10,017BA] [10,018]

[10,019] [10,020] [10,025] [10,050] [10,055] [10,060] [10,065]

4E 4F 4G 4H 4J 4K 4KA 4KB 4KC 4L 4M 4N

Market …. References to purpose or reason …. Lessening of competition to include preventing or hindering competition …. Application of Act in relation to leases and licences of land and buildings …. Joint ventures …. Loss or damage to include injury …. Definitions etc that do not apply in Part XI or Schedule 2 …. References to the Australian Consumer Law etc [Repealed] …. Contraventions of the Australian Consumer Law [Repealed] …. Severability …. Saving of law relating to restraint of trade and breaches of confidence …. Extended application of Part IIIA ….

[10,070] [10,095] [10,100] [10,105] [10,110] [10,115] [10,120] [10,125] [10,130] [10,145] [10,150] [10,151] [page 30]

Section

5 6 6AA

Title

Extended application of this Act to conduct outside Australia Extended application of this Act to persons who are not corporations …. Application of the Criminal Code ….

Paragraph

[10,155] [10,160] [10,165]

PART II — THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION 6A 7

Establishment of Commission …. Constitution of Commission …. ….

[10,263] [10,265]

8 8A 8AB 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 27A 28

Terms and conditions of appointment …. Associate members …. State/Territory AER members taken to be associate members …. Remuneration …. Deputy Chairpersons …. Acting Chairperson …. Leave of absence …. Termination of appointment of members of the Commission …. Termination of appointment of associate members of the Commission …. Resignation …. Arrangement of business …. Disclosure of interests by members …. Meetings of Commission …. Chairperson may direct Commission to sit in Divisions …. Part XI of the Audit Act not to apply to Commission [Repealed] …. Procedure at public hearings by Commission [Repealed] …. Hearing in private in certain circumstances [Repealed] …. Evidence in form of written statement [Repealed] …. Representation at public hearings by Commission [Repealed] …. Delegation by Commission …. Delegation by Commission of certain functions and powers …. Staff of Commission …. Consultants …. Functions of Commission in relation to dissemination of information, law reform and

[10,270] [10,275] [10,277] [10,280] [10,285] [10,290] [10,295] [10,300] [10,305] [10,310] [10,315] [10,320] [10,370] [10,375] [10,380] [10,385] [10,390] [10,395] [10,400] [10,405] [10,410] [10,415] [10,417]

research …. 29

[10,420]

Commission to comply with directions of Minister and requirements of the Parliament ….

[10,425] [page 31]

Section

Title

Paragraph

PART IIA — THE NATIONAL COMPETITION COUNCIL 29AA 29A 29B 29BA 29BB 29BC 29C 29D 29E 29F 29G 29H 29I 29J 29K 29L 29LA 29M 29N 29O

Definitions [Repealed] …. Establishment of Council …. Functions and powers of Council …. Commonwealth consent to conferral of functions etc on Council …. How duty is imposed …. When a State/Territory energy law imposes a duty …. Membership of Council …. Terms and conditions of office …. Acting Council President …. Remuneration of Councillors …. Leave of absence …. Termination of appointment of Councillors …. Resignation of Councillors …. Arrangement of Council business …. Disclosure of interests by Councillors …. Council meetings …. Resolutions without meetings …. Staff to help Council …. Consultants …. Annual report ….

[10,460AA] [10,460A] [10,462] [10,463] [10,463BB] [10,463BC] [10,464] [10,466] [10,468] [10,470] [10,472] [10,474] [10,476] [10,478] [10,480] [10,482] [10,482A] [10,484] [10,486] [10,488]

PART III — THE AUSTRALIAN COMPETITION TRIBUNAL 29P 30 31 31A 32 33 34 35 36 37 38 39 40 41 42 43 43A 43B

Definition …. Constitution of Tribunal …. Qualifications of members of Tribunal …. Appointment of Judge as presidential member of Tribunal not to affect tenure etc …. Terms and conditions of appointment …. Remuneration and allowances of members of Tribunal …. Acting appointments …. Suspension and removal of members of Tribunal …. Resignation …. Constitution of Tribunal for particular matters …. Validity of determinations …. President may give directions …. Disclosure of interests by members of Tribunal …. Presidential member to preside …. Decision of questions …. Member of Tribunal ceasing to be available …. Counsel assisting Tribunal …. Consultants ….

[10,490] [10,527] [10,530] [10,533] [10,535] [10,540] [10,545] [10,550] [10,555] [10,560] [10,565] [10,570] [10,575] [10,580] [10,585] [10,590] [10,592] [10,593] [page 32]

Section

44 44A

Title

Staff of Tribunal …. Acting appointments ….

Paragraph

[10,595] [10,600]

PART IIIAA — THE AUSTRALIAN ENERGY REGULATOR (AER) DIVISION 1 — PRELIMINARY

44AB 44AC 44AD

Definitions …. This Part binds the Crown …. Extra-territorial operation ….

[10,610AB] [10,610AC] [10,610AD]

DIVISION 2 — ESTABLISHMENT OF THE AER 44AE 44AF 44AG

Establishment of the AER …. AER to hold money and property on behalf of the Commonwealth …. Constitution of the AER ….

[10,610AE] [10,610AF] [10,610AG]

DIVISION 3 — FUNCTIONS AND POWERS OF THE AER 44AH 44AI 44AJ 44AK 44AL

Commonwealth functions …. Commonwealth consent to conferral of functions etc on AER …. How duty is imposed …. When a State/Territory energy law etc imposes a duty …. Powers of the AER ….

[10,610AH] [10,610AI] [10,610AJ] [10,610AK] [10,610AL]

DIVISION 4 — ADMINISTRATIVE PROVISIONS RELATING TO THE AER Subdivision A — Appointment etc of members 44AM 44AN 44AO 44AP 44AQ 44AR 44AS

Appointment of Commonwealth AER member …. Membership of AER and Commission …. Acting appointment of Commonwealth AER member …. Appointment of State/Territory AER members …. Acting appointment of State/Territory AER member …. AER Chair …. Acting AER Chair ….

[10,610AM] [10,610AN] [10,610AO] [10,610AP] [10,610AQ] [10,610AR] [10,610AS]

44AT 44AU 44AV 44AW 44AX 44AY 44AZ 44AAB

Remuneration of AER members …. Additional remuneration of AER Chair …. Leave of absence …. Other terms and conditions …. Outside employment …. Disclosure of interests …. Resignation …. Termination of appointment ….

[10,610AT] [10,610AU] [10,610AV] [10,610AW] [10,610AX] [10,610AY] [10,610AZ] [10,610AAB] [page 33]

Section

Title

Paragraph

Subdivision B — Staff etc to assist the AER 44AAC

Staff etc to assist the AER ….

[10,610AAC]

Subdivision C — Meetings of the AER etc 44AAD Meetings …. 44AAE Resolutions without meetings …. 44AAEA Arbitration ….

[10,610AAD] [10,610AAE] [10,610AAEA]

Subdivision D — Miscellaneous 44AAF Confidentiality …. 44AAG Federal Court may make certain orders …. 44AAGA Federal Court may order disconnection if an event specified in the National Electricity Rules occurs …. 44AAH Delegation by the AER …. 44AAI Fees …. 44AAJ Annual report …. 44AAK Regulations may deal with transitional matters

[10,610AAF] [10,610AAG]

[10,610AAGA] [10,610AAH] [10,610AAI] [10,610AAJ]

….

[10,610AAK]

PART IIIAB — APPLICATION OF THE FINANCE LAW 44AAL

Application of the finance law ….

[10,615]

PART IIIA — ACCESS TO SERVICES DIVISION 1 — PRELIMINARY 44AA 44B 44C 44D 44DA 44E

Objects of Part …. Definitions …. How this Part applies to partnerships and joint ventures …. Meaning of designated Minister …. The principles in the Competition Principles Agreement have status as guidelines …. This Part binds the Crown ….

[10,650AA] [10,650B] [10,650C] [10,650D] [10,650DA] [10,650E]

DIVISION 2 — DECLARED SERVICES Subdivision A — Recommendation by the Council 44F 44FA 44G 44GA 44GB 44GC

Person may request recommendation …. Council may request information …. Limits on the Council recommending declaration of a service …. Time limit for Council recommendations …. Council may invite public submissions on the application …. Council must publish its recommendation ….

[10,650F] [10,650FA] [10,650G] [10,650GA] [10,650GB] [10,650GC]

Subdivision B — Declaration by the designated Minister 44H 44HA

Designated Minister may declare a service …. Designated Minister must publish his or her decision ….

[10,650H] [10,650HA]

[page 34]

Section

44I 44J 44JA 44K 44KA 44KB 44L

Title

Duration and effect of declaration …. Revocation of declaration …. Target time limits on designated Minister’s revocation decision [Repealed] …. Review of declaration …. Tribunal may stay operation of declaration …. Tribunal may order costs be awarded …. Review of decision not to revoke a declaration ….

Paragraph

[10,650I] [10,650J] [10,650JA] [10,650K] [10,650KA] [10,650KB] [10,650L]

Subdivision C — Miscellaneous [Repealed] DIVISION 2AA — SERVICES THAT ARE INELIGIBLE TO BE DECLARED Subdivision A — Scope of Division 44LA

Constitutional limits on operation of this Division ….

[10,650LA]

Subdivision B — Ineligibility recommendation by Council 44LB 44LC 44LD 44LE 44LF

Ineligibility recommendation …. Council may request information …. Time limit for Council recommendations …. Council may invite public submissions on the application …. Council must publish its recommendation ….

[10,650LB] [10,650LC] [10,650LD] [10,650LE] [10,650LF]

Subdivision C — Designated Minister’s decision on ineligibility 44LG

Designated Minister’s decision on ineligibility ….

[10,650LG]

44LH

Designated Minister must publish his or her decision ….

[10,650LH]

Subdivision D — Revocation of ineligibility decision 44LI

Revocation of ineligibility decision ….

[10,650LI]

Subdivision E — Review of decisions 44LJ 44LK

Review of ineligibility decisions …. Review of decision to revoke or not revoke an ineligibility decision ….

[10,650LJ] [10,650LK]

Subdivision F — Other matters 44LL

Ineligibility decisions subject to alteration, cancellation etc

[10,650LA]

DIVISION 2A — EFFECTIVE ACCESS REGIMES Subdivision A — Recommendation by Council 44M 44MA

Recommendation for a Ministerial decision on effectiveness of access regime …. Council may request information ….

[10,650M] [10,650MA] [page 35]

Section

Title

Paragraph

Subdivision B — Decision by Commonwealth Minister 44N

Ministerial decision on effectiveness of access regime ….

[10,650N]

Subdivision C — Extensions of Commonwealth Minister’s decision

44NA 44NAA 44NB

Recommendation by Council …. Council may request information …. Decision by the Commonwealth Minister ….

[10,650NA] [10,650NAA] [10,650NB]

Subdivision D — Procedural provisions 44NC 44ND

Time limit for Council recommendations …. Target time limits — Commonwealth Minister [Repealed] …. Council may invite public submissions …. Publication — Council …. Publication — Commonwealth Minister ….

44NE 44NF 44NG

[10,650NC] [10,650ND] [10,650NE] [10,650NF] [10,650NG]

Subdivision E — Review ofdecisions 44O

Review of Ministerial decision on effectiveness of access regime ….

[10,650O]

Subdivision F — State or Territory ceasing to be a party to Competition Principles Agreement 44P

State or Territory ceasing to be a party to Competition Principles Agreement ….

[10,650P]

DIVISION 2B — COMPETITIVE TENDER PROCESSES FOR GOVERNMENT OWNED FACILITIES 44PA 44PAA 44PB 44PC 44PD 44PE 44PF 44PG 44PH

Approval of competitive tender process …. Commission may request information …. Report on conduct of tender process …. Revocation of approval decision …. Time limit for Commission decisions …. Commission may invite public submissions …. Commission must publish its decisions …. Review of Commission’s initial decision …. Review of decision to revoke an approval ….

[10,650PA] [10,650PAA] [10,650PB] [10,650PC] [10,650PD] [10,650PE] [10,650PF] [10,650PG] [10,650PH]

DIVISION 2C — REGISTER OF DECISIONS AND DECLARATIONS 44Q

Register of decisions, declarations and ineligibility decisions ….

[10,650Q]

DIVISION 3 — ACCESS TO DECLARED SERVICES Subdivision A — Scope of Division 44R

Constitutional limits on operation of this Division ….

[10,650R] [page 36]

Section

Title

Paragraph

Subdivision B — Notification of access disputes 44S 44T

Notification of access disputes …. Withdrawal of notifications ….

[10,650S] [10,650T]

Subdivision C — Arbitration of access disputes 44U 44V 44W 44X 44XA 44Y 44YA

Parties to the arbitration …. Determination by Commission …. Restrictions on access determinations …. Matters that the Commission must take into account …. Time limit for Commission’s final determination …. Commission may terminate arbitration in certain cases …. Commission must terminate arbitration if declaration varied or set aside by Tribunal ….

[10,650U] [10,650V] [10,650W] [10,650X] [10,650XA] [10,650Y] [10,650YA]

Subdivision D — Procedure in arbitrations 44Z 44ZA 44ZB 44ZC 44ZD 44ZE 44ZF 44ZG 44ZH 44ZI 44ZJ 44ZK 44ZL 44ZM 44ZN 44ZNA

Constitution of Commission for conduct of arbitration …. [10,650Z] Member of the Commission presiding at an arbitration …. [10,650ZA] Reconstitution of Commission …. [10,650ZB] Determination of questions …. [10,650ZC] Hearing to be in private …. [10,650ZD] Right to representation …. [10,650ZE] Procedure of Commission …. [10,650ZF] Particular powers of Commission …. [10,650ZG] Power to take evidence on oath or affirmation …. [10,650ZH] Failing to attend as a witness …. [10,650ZI] Failing to answer questions etc …. [10,650ZJ] Intimidation etc …. [10,650ZK] Party may request Commission to treat material as confidential …. [10,650ZL] Sections 18 and 19 do not apply to the Commission in an arbitration …. [10,650ZM] Parties to pay costs of an arbitration …. [10,650ZN] Joint arbitration hearings …. [10,650ZNA] Subdivision DA — Arbitration reports

44ZNB

Arbitration reports ….

[10,650ZNB]

Subdivision E — Effect of determinations 44ZO 44ZOA

Operation of final determinations …. Effect and duration of interim determinations ….

[10,650ZO] [10,650ZOA]

Subdivision F — Review of final determinations 44ZP 44ZQ

Review by Tribunal …. Provisions that do not apply in relation to a

[10,650ZP]

Tribunal review ….

[10,650ZQ] [page 37]

Section

44ZR 44ZS 44ZT

Title

Appeals to Federal Court from determinations of the Tribunal …. Operation and implementation of a determination that is subject to appeal …. Transmission of documents ….

Paragraph

[10,650ZR] [10,650ZS] [10,650ZT]

Subdivision G — Variation and revocation of determinations 44ZU 44ZUA

Variation of final determinations …. Variation and revocation of interim determinations ….

[10,650ZU] [10,650ZUA]

DIVISION 4 — REGISTERED CONTRACTS FOR ACCESS TO DECLARED SERVICES 44ZV 44ZW 44ZX 44ZY

Constitutional limits on operation of this Division …. Registration of contract …. Review of decision not to register contract …. Effect of registration of contract ….

[10,650ZV] [10,650ZW] [10,650ZX] [10,650ZY]

DIVISION 5 — HINDERING ACCESS TO DECLARED SERVICES 44ZZ

Prohibition on hindering access to declared services ….

[10,650ZZ]

DIVISION 6 — ACCESS UNDERTAKINGS AND ACCESS CODES FOR SERVICES

Subdivision A — Giving of access undertakings and access codes 44ZZA Access undertakings by providers …. [10,650ZZA] 44ZZAAA Proposed amendments to access undertakings …. [10,650ZZAAA] 44ZZAAB Access undertakings containing fixed principles …. [10,650ZZAAB] 44ZZAA Access codes prepared by industry bodies …. [10,650ZZAA] 44ZZAB Commission may rely on industry body consultations …. [10,650ZZAB] 44ZZB Undertakings cannot be accepted in certain cases [Repealed] …. [10,650ZZB] Subdivision B — Effect of access undertakings and access codes 44ZZBA

When access undertakings and access codes come into operation …. [10,650ZZBA]

Subdivision C — Extensions of access undertakings and access codes 44ZZBB

Extensions of access undertakings and access codes ….

[10,650ZZBB]

Subdivision D — Procedural provisions 44ZZBC 44ZZBCA 44ZZBD 44ZZBE

Time limit for Commission decisions …. [10,650ZZBC] Commission may request information …. [10,650ZZBCA] Commission may invite public submissions …. [10,650ZZBD] Commission must publish its decisions …. [10,650ZZBE] Subdivision E — Review of decisions

44ZZBF

Review of decisions ….

[10,650ZZBF]

Subdivision F — Register of access undertakings and access codes 44ZZC

Register of access undertakings and access codes

….

[10,650ZZC] [page 38]

Section

Title

Paragraph

DIVISION 6A — PRICING PRINCIPLES FOR ACCESS DISPUTES AND ACCESS UNDERTAKINGS OR CODES 44ZZCA

Pricing principles for access disputes and access undertakings or codes ….

[10,650ZZCA]

DIVISION 6B — OVERLAP AMONG DETERMINATIONS, REGISTERED CONTRACTS, ACCESS UNDERTAKINGS AND TRIBUNAL REVIEW 44ZZCB

Deferring access disputes or access undertakings …. [10,650ZZCB] 44ZZCBA Deferral of arbitration if review is underway …. [10,650ZZCBA] 44ZZCC Overlap between determinations and access undertakings …. [10,650ZZCC] 44ZZCD Overlap between registered contracts and access undertakings …. [10,650ZZCD] DIVISION 7 — ENFORCEMENT AND REMEDIES 44ZZD 44ZZE 44ZZF 44ZZG 44ZZH 44ZZI

Enforcement of determinations …. Enforcement of prohibition on hindering access …. Consent injunctions …. Interim injunctions …. Factors relevant to granting a restraining injunction …. Factors relevant to granting a mandatory injunction ….

[10,650ZZD] [10,650ZZE] [10,650ZZF] [10,650ZZG] [10,650ZZH] [10,650ZZI]

44ZZJ 44ZZK

Enforcement of access undertakings …. [10,650ZZJ] Discharge or variation of injunction or other order …. [10,650ZZK] DIVISION 8 — MISCELLANEOUS

44ZZL 44ZZM

Register of determinations …. [10,650ZZL] Commonwealth consent to conferral of functions etc on the Commission or Tribunal by State or Territory laws …. [10,650ZZM] 44ZZMA How duty is imposed …. [10,650ZZMA] 44ZZMB When a law of a State or Territory imposes a duty …. [10,650ZZMB] 44ZZN Compensation for acquisition of property …. [10,650ZZN] 44ZZNA Operation of Parts IV and VII not affected by this Part …. [10,650ZZNA] 44ZZO Conduct by directors, servants or agents …. [10,650ZZO] 44ZZOAA Anformation to be given to Tribunal …. [10,650ZZOAAA] 44ZZOAA Tribunal only to consider particular material …. [10,650ZZOAA] 44ZZOA Time limit for Tribunal decisions …. [10,650ZZOA] 44ZZP Regulations about review by the Tribunal …. [10,650ZZP] 44ZZQ Regulations about fees for inspection etc of registers …. [10,650ZZQ] 44ZZR Procedure of the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law …. [10,650ZZR] [page 39]

Section

Title

PART IV — RESTRICTIVE TRADE PRACTICES

Paragraph

DIVISION 1 — CARTEL CONDUCT Subdivision A — Introduction 44ZZRA 44ZZRB 44ZZRC 44ZZRD 44ZZRE

Simplified outline …. Definitions …. Extended meaning of party …. Cartel provisions …. Meaning of expressions in other provisions of this Act ….

[10,690ZZRA] [10,690ZZRB] [10,690ZZRC] [10,690ZZRD] [10,690ZZRE]

Subdivision B — Offences etc 44ZZRF 44ZZRG 44ZZRH 44ZZRI

Making a contract etc containing a cartel provision …. Giving effect to a cartel provision …. Determining guilt …. Court may make related civil orders ….

[10,690ZZRF] [10,690ZZRG] [10,690ZZRH] [10,690ZZRI]

Subdivision C — Civil penalty provisions 44ZZRJ 44ZZRK

Making a contract etc containing a cartel provision …. Giving effect to a cartel provision ….

[10,690ZZRJ] [10,690ZZRK]

Subdivision D — Exceptions 44ZZRL Conduct notified …. 44ZZRM Cartel provision subject to grant of authorisation …. 44ZZRN Contracts, arrangements or understandings between related bodies corporate …. 44ZZRO Joint ventures — prosecution …. 44ZZRP Joint ventures — civil penalty proceedings …. 44ZZRQ Covenants affecting competition …. 44ZZRR Resale price maintenance …. 44ZZRS Exclusive dealing ….

[10,690ZZRL] [10,690ZZRM] [10,690ZZRN] [10,690ZZRO] [10,690ZZRP] [10,690ZZRQ] [10,690ZZRR] [10,690ZZRS]

44ZZRT 44ZZRU 44ZZRV

Dual listed company arrangement …. [10,690ZZRT] Acquisition of shares or assets …. [10,690ZZRU] Collective acquisition of goods or services by the parties to a contract, arrangement or understanding …. [10,690ZZRV]

DIVISION 1A — ANTI-COMPETITIVE DISCLOSURE OF PRICING AND OTHER INFORMATION 44ZZS 44ZZT 44ZZU 44ZZV 44ZZW

Definitions …. [10,690ZZS] Goods and services to which this Division applies …. [10,690ZZT] Provisions affecting whether a corporation has disclosed information to a person …. [10,690ZZU] Meaning of private disclosure to competitors …. [10,690ZZV] Corporation must not make private disclosure of pricing information etc to competitors …. [10,690ZZW] [page 40]

Section

44ZZX

44ZZY 44ZZZ 44ZZZA 44ZZZB

Title

Paragraph

Corporation must not make disclosure of pricing information etc for purpose of substantially lessening competition …. [10,690ZZX] Exceptions that apply to sections 44ZZW and 44ZZX …. [10,690ZZY] Additional exceptions that only apply to section 44ZZW …. [10,690ZZZ] Burden of proof …. [10,690ZZZA] Mere receipt of information does not constitute being knowingly involved in contravention …. [10,690ZZZB] DIVISION 2 — OTHER PROVISIONS

45 45A 45B 45C 45D 45DA 45DB 45DC 45DD 45E

45EA 45EB 46 46A

46B 47 48 49 50 50A 51

Contracts, arrangements or understandings that restrict dealings or affect competition …. Contracts, arrangements or understandings in relation to prices [Repealed] …. Covenants affecting competition …. Covenants in relation to prices …. Secondary boycotts for the purpose of causing substantial loss or damage …. Secondary boycotts for the purpose of causing substantial lessening of competition …. Boycotts affecting trade or commerce …. Involvement and liability of employee organisations …. Situations in which boycotts permitted …. Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services …. Provisions contravening section 45E not to be given effect …. Sections 45D to 45EA do not affect operation of other provisions of Part …. Misuse of market power …. Misuse of market power — corporation with substantial degree of power in trans-Tasman market …. No immunity from jurisdiction in relation to certain New Zealand laws …. Exclusive dealing …. Resale price maintenance …. Dual listed company arrangements that affect competition …. Prohibition of acquisitions that would result in a substantial lessening of competition …. Acquisitions that occur outside Australia …. Exceptions ….

[10,700] [10,705] [10,720] [10,725] [10,740] [10,740DA] [10,740DB] [10,740DC] [10,740DD]

[10,745] [10,745EA] [10,745EB] [10,760]

[10,765] [10,770] [10,785] [10,800] [10,805] [10,820] [10,825] [10,830]

51AAA

Concurrent operation of State and Territory laws ….

[10,835]

[page 41]

Section

Title

Paragraph

PART IVA — UNCONSCIONABLE CONDUCT [Repealed] PART IVB — INDUSTRY CODES DIVISION 1 — PRELIMINARY 51ACA

Definitions ….

[10,900]

DIVISION 2 — CONTRAVENTION OF INDUSTRY CODES 51ACB

Contravention of industry codes ….

[10,905]

DIVISION 2A — INFRINGEMENT NOTICES 51ACC 51ACD 51ACE 51ACF 51ACG 51ACH 51ACI 51ACJ

Purpose and effect of this Division …. Issuing an infringement notice …. Matters to be included in an infringement notice …. Amount of penalty …. Effect of compliance with an infringement notice …. Effect of failure to comply with an infringement notice …. Infringement notice compliance period for infringement notice …. Withdrawal of an infringement notice ….

[10,905AA] [10,905AB] [10,905AC] [10,905AD] [10,905AE] [10,905AF] [10,905AG] [10,905AH]

DIVISION 3 — PUBLIC WARNING NOTICES 51ADA

Commission may issue a public warning notice ….

[10,905A]

DIVISION 4 — ORDERS TO REDRESS LOSS OR DAMAGE SUFFERED BY NON-PARTIES ETC 51ADB 51ADC

Orders to redress loss or damage suffered by nonparties etc …. Kinds of orders that may be made to redress loss or damage suffered by non-parties etc ….

[10,905B] [10,905C]

DIVISION 5 — INVESTIGATION POWER 51ADD 51ADE 51ADF 51ADG

Commission may require corporation to provide information …. Extending periods for complying with notices …. Compliance with notices …. False or misleading information etc ….

[10,905D] [10,905E] [10,905F] [10,905G]

DIVISION 6 — MISCELLANEOUS 51AE 51AEA

Regulations relating to industry codes …. Concurrent operation of State and Territory laws ….

[10,910] [10,915] [page 42]

Section

Title

Paragraph

PART V — CARBON TAX PRICE REDUCTION OBLIGATION DIVISION 1 — PRELIMINARY

60 60AA 60A 60B

Simplified outline of this Part …. Objects etc …. Definitions …. Regulated goods ….

[11,005] [11,007] [11,009] [11,012]

DIVISION 2 — CARBON TAX PRICE REDUCTION OBLIGATION 60C 60CA 60D

60E

60F

Price exploitation in relation to the carbon tax repeal …. Failure to pass on cost savings — 250% penalty …. Notice to entity that is considered to have engaged in price exploitation in relation to the carbon tax repeal …. Commission may issue notice to aid prevention of price exploitation in relation to the carbon tax repeal …. Acquisition of property ….

[11,015] [11,017]

[11,020]

[11,022] [11,025]

DIVISION 2A — CARBON TAX REMOVAL SUBSTANTIATION NOTICES 60FA 60FB 60FC

Carbon tax removal substantiation notices …. Extending periods for complying with carbon tax removal substantiation notices …. Compliance with carbon tax removal substantiation notices ….

[11,027] [11,030] [11,032]

DIVISION 2B — CARBON TAX REMOVAL SUBSTANTIATION STATEMENTS 60FD

Carbon tax removal substantiation statements ….

[11,035]

DIVISION 2C — STATEMENTS FOR CUSTOMERS 60FE

Statements for customers ….

[11,037]

DIVISION 3 — PRICE MONITORING IN RELATION TO THE CARBON TAX REPEAL ETC 60G 60H 60J

Commission may monitor prices in relation to the carbon tax repeal etc …. Information-gathering powers …. Reporting ….

[11,040] [11,042] [11,045]

DIVISION 4 — FALSE OR MISLEADING REPRESENTATIONS ABOUT THE EFFECT OF THE CARBON TAX REPEAL ETC ON PRICES 60K

False or misleading representations about the effect of the carbon tax repeal etc on prices ….

[11,047]

DIVISION 5 — INFRINGEMENT NOTICES 60L 60M 60N

Issuing an infringement notice …. Effect of compliance with an infringement notice …. Effect of failure to comply with an infringement notice ….

[11,050] [11,052] [11,055] [page 43]

Section

60P 60Q 60R

Title

Infringement notice compliance period for infringement notice …. Withdrawal of an infringement notice …. Effect of this Division ….

Paragraph

[11,057] [11,060] [11,062]

PART VA — LIABILITY OF MANUFACTURERS AND IMPORTERS FOR DEFECTIVE GOODS [Repealed]

PART VB — PRICE EXPLOITATION IN RELATION TO A NEW TAX SYSTEM [Repealed] PART VC — OFFENCES [Repealed] PART VI — ENFORCEMENT AND REMEDIES 75B 76 76A 76B

76C 76D 76E 76F 77 77A 77B 77C 78 79 79A 79B

Interpretation …. Pecuniary penalties …. Defence to proceedings under section 76 relating to a contravention of section 95AZN …. What happens if substantially the same conduct is a contravention of Part IV or section 95AZN and an offence? …. Defence to proceedings relating to exclusionary provisions …. Defence to proceedings relating to price fixing provisions [Repealed] …. Pecuniary penalties — consumer protection etc [Repealed] …. Pecuniary penalties under section 76E and offences [Repealed] …. Civil action for recovery of pecuniary penalties …. Indemnification of officers …. Certain indemnities not authorised and certain documents void …. Application of section 77A to a person other than a body corporate …. Criminal proceedings not to be brought for contraventions of Part IV …. Offences against section 44ZZRF or 44ZZRG …. Enforcement and recovery of certain fines …. Preference must be given to compensation for

[11,585] [11,590] [11,592]

[11,594] [11,594C] [11,594D] [11,594E] [11,594F] [11,595] [11,595A] [11,595B] [11,595C] [11,600] [11,605] [11,620]

80

victims …. Injunctions ….

[11,623] [11,625] [page 44]

Section

80A

80AA

80AB 80AC

80A 80B

81 81A

82 83 84 85 86 86AA 86A

Title

Price exploitation in relation to the carbon tax repeal — orders limiting prices or requiring refunds of money …. Division 7 of Part VI of the Workplace Relations Act does not prevent granting of injunction [Repealed] …. Stay of injunctions …. Injunctions to prevent mergers if clearance or authorisation granted on the basis of false or misleading information …. Order to disclose information or publish advertisement [Repealed] …. Section 75AU contraventions — orders limiting prices or requiring refunds of money [Repealed] …. Divestiture where merger contravenes section 50 or 50A …. Divestiture where merger done under clearance or authorisation granted on false etc information …. Actions for damages …. Finding in proceedings to be evidence …. Conduct by directors, employees or agents …. Defences …. Jurisdiction of courts …. Limit on jurisdiction of Federal Circuit Court …. Transfer of matters ….

Paragraph

[11,630]

[11,640] [11,640AB]

[11,640AC] [11,645]

[11,647] [11,650]

[11,650A] [11,655] [11,670] [11,675] [11,680] [11,695] [11,698] [11,710]

86B 86C 86D 86DA 86E 86F

87 87AAA 87AAB

87A 87AA

87AB 87AC

Transfer of certain proceedings to Family Court [Repealed] …. [11,715] Non-punitive orders …. [11,717] Punitive orders — adverse publicity …. [11,719] Commission may issue a public warning notice [Repealed] …. [11,719A] Order disqualifying a person from managing corporations …. [11,719E] Privilege against exposure to penalty — disqualification from managing corporations …. [11,719F] Other orders …. [11,720] Orders to redress loss or damage suffered by nonparty consumers etc [Repealed] …. [11,720AAA] Kinds of orders that may be made to redress loss or damage suffered by non-party consumers etc [Repealed] …. [11,720AAB] Power of Court to prohibit payment or transfer of moneys or other property [Repealed] …. [11,725] Special provision relating to Court’s exercise of powers under this Part in relation to boycott conduct …. [11,725AA] Limit on liability for misleading or deceptive conduct [Repealed] …. [11,725AB] Declarations [Repealed] …. [11,725AC] [page 45]

Section

87B 87C 87CA 87CAA

Title

Paragraph

Enforcement of undertakings …. [11,730] Enforcement of undertakings — Secretary of the Department …. [11,735] Intervention by Commission …. [11,740] The effect of Part VIB on this Part [Repealed] …. [11,740CAA]

PART VIA — PROPORTIONATE LIABILITY FOR MISLEADING AND DECEPTIVE CONDUCT 87CB 87CC 87CD 87CE 87CF 87CG 87CH 87CI

Application of Part …. Certain concurrent wrongdoers not to have benefit of apportionment …. Proportionate liability for apportionable claims …. Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware …. Contribution not recoverable from defendant …. Subsequent actions …. Joining non-party concurrent wrongdoer in the action …. Application of Part ….

[11,740CB] [11,740CC] [11,740CD] [11,740CE] [11,740CF] [11,740CG] [11,740CH] [11,740CI]

PART VIB — CLAIMS FOR DAMAGES OR COMPENSATION FOR DEATH OR PERSONAL INJURY DIVISION 1 — INTRODUCTION 87D 87E

Definitions …. Proceedings to which this Part applies ….

[11,740D] [11,740E]

DIVISION 2 — LIMITATION PERIODS 87F 87G 87H 87J 87K

Basic rule …. Date of discoverability …. Long-stop period …. The effect of minority or incapacity …. The effect of close relationships ….

[11,740F] [11,740G] [11,740H] [11,740J] [11,740K]

DIVISION 3 — LIMITS ON PERSONAL INJURY DAMAGES FOR NONECONOMIC LOSS 87L

Limits on damages for non-economic loss ….

[11,740L]

87M 87N 87P 87Q 87R 87S 87T

Maximum amount of damages for non-economic loss …. Index numbers …. Most extreme cases …. Cases of 33% or more (but not 100%) of a most extreme case …. Cases of 15% or more (but less than 33%) of a most extreme case …. Cases of less than 15% of a most extreme case …. Referring to earlier decisions on non-economic loss ….

[11,740M] [11,740N] [11,740P] [11,740Q] [11,740R] [11,740S] [11,740T] [page 46]

Section

Title

Paragraph

DIVISION 4 — LIMITS ON PERSONAL INJURY DAMAGES FOR LOSS OF EARNING CAPACITY 87U 87V

Personal injury damages for loss of earning capacity …. Average weekly earnings ….

[11,740U] [11,740V]

DIVISION 5 — LIMITS ON PERSONAL INJURY DAMAGES FOR GRATUITOUS ATTENDANT CARE SERVICES 87W 87X

Personal injury damages for gratuitous attendant care services for plaintiff …. Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant care services ….

[11,740W]

[11,740X]

DIVISION 6 — OTHER LIMITS ON PERSONAL INJURY DAMAGES 87Y

Damages for future economic loss — discount

87Z 87ZA 87ZB

rate …. Damages for loss of superannuation entitlements …. Interest on damages …. Exemplary and aggravated damages ….

[11,740Y] [11,740Z] [11,740ZA] [11,740ZB]

DIVISION 7 — STRUCTURED SETTLEMENTS 87ZC

Court may make orders under section 87 for structured settlements ….

[11,740ZC]

PART VIC — INFRINGEMENT NOTICES [Repealed] PART VID — SUBSTANTIATION NOTICES [Repealed] PART VII — AUTHORISATIONS, NOTIFICATIONS AND CLEARANCES IN RESPECT OF RESTRICTIVE TRADE PRACTICES DIVISION 1 — AUTHORISATIONS (OTHER THAN SECTION 50 MERGER AUTHORISATIONS) 87ZP 88 89 90 90A

90B 91 91A 91B

Definitions …. Power of Commission to grant authorisations …. Procedure for applications and the keeping of a register …. Determination of applications for authorisations …. Commission to afford opportunity for conference before determining application for authorisation …. Commission may rely on consultations undertaken by the AEMC …. Grant and variation of authorisations …. Minor variations of authorizations …. Revocation of an authorization ….

[11,820] [11,825] [11,850] [11,855]

[11,860] [11,863] [11,865] [11,870] [11,875]

[page 47]

Section

91C

Title

Revocation of an authorization and substitution of a replacement ….

Paragraph

[11,880]

DIVISION 2 — NOTIFICATIONS Subdivision A — Exclusive dealing and private disclosure of pricing information 92

93

Clearance of contracts, arrangements or understandings in restraint of trade [Repealed] …. Notification of exclusive dealing or private disclosure of pricing information ….

[11,890] [11,895]

Subdivision B — Collective Bargaining 93AA 93AB 93AC 93AD 93AE 93AEA 93AF

Definitions …. Notification of collective bargaining …. Commission’s objection notice …. When collective bargaining notice comes into force and ceases to be in force …. Withdrawal of collective bargaining notice …. Only 1 collective bargaining notice under subsection 93AB(1A) may be given …. Only 1 collective bargaining notice under subsection 93AB(1) may be given ….

[11,895AA] [11,895AB] [11,895AC] [11,895AD] [11,895AE] [11,895AEA] [11,895AF]

Subdivision C — Conferences 93A 94

Commission to afford opportunity for conference before giving notice …. Clearance of mergers [Repealed] ….

[11,900] [11,905]

Subdivision D — Register of notifications 95

Register of notifications ….

[11,910]

DIVISION 3 — MERGER CLEARANCES AND AUTHORISATIONS Subdivision A — Preliminary 95AA 95AB

Simplified outline of this Division …. Definitions ….

[11,913AA] [11,913AB]

Subdivision B — Merger Clearances 95AC 95AD 95AE 95AF 95AG 95AH 95AI 95AJ

Commission may grant clearance for a merger …. Application for clearance …. Requirements for valid clearance application …. Commission to notify if clearance application is invalid …. Application to be published on the internet …. Merger clearance register …. Confidentiality claims etc …. Commission may seek additional information from applicant ….

[11,913AC] [11,913AD] [11,913AE] [11,913AF] [11,913AG] [11,913AH] [11,913AI] [11,913AJ] [page 48]

Section

95AK 95AL 95AM 95AN 95AO

Title

Commission may seek further information and consult others …. Applicant may withdraw application …. Commission to make determination on application …. When clearance must not be granted …. Time limits for determining application ….

Paragraph

[11,913AK] [11,913AL] [11,913AM] [11,913AN] [11,913AO]

95AP 95AQ 95AR 95AS

Clearance subject to conditions …. When clearance is in force …. Minor variations of clearances …. Revocation of clearance or revocation of clearance and substitution of a new clearance ….

[11,913AP] [11,913AQ] [11,913AR]

[11,913AS]

Subdivision C — Merger authorisations 95AT 95AU 95AV 95AW 95AX 95AY 95AZ 95AZA 95AZC 95AZD 95AZE 95AZEA 95AZF 95AZFA 95AZG 95AZH 95AZI 95AZJ 95AZK

Tribunal may grant authorisation for a merger …. [11,913AT] Application for authorisation …. [11,913AU] Requirements for valid authorisation application …. [11,913AV] Tribunal to notify if authorisation application is invalid …. [11,913AW] Tribunal to notify Commission of authorisation application …. [11,913AX] Application to be published on the internet …. [11,913AY] Merger authorisation register …. [11,913AZ] Confidentiality claims etc …. [11,913AZA] Tribunal may seek additional information from applicant …. [11,913AZC] Tribunal may seek further information and consult others etc …. [11,913AZD] Applicant may withdraw application …. [11,913AZE] Tribunal must require Commission to give report …. [11,913AZEA] Commission to assist Tribunal …. [11,913AZF] Commission may make enquiries …. [11,913AZFA] Tribunal to make determination on application …. [11,913AZG] When authorisation must not be granted …. [11,913AZH] Time limits for determining application …. [11,913AZI] Authorisation subject to conditions …. [11,913AZJ] When authorisation is in force …. [11,913AZK]

95AZL 95AZM

Minor variations of authorisations …. Revocation of authorisation or revocation of authorisation and substitution of a new authorisation ….

[11,913AZL]

[11,913AZM]

Subdivision D — Miscellaneous 95AZN

Providing false or misleading information ….

[11,913AZN]

PART VIIA — PRICES SURVEILLANCE DIVISION 1 — PRELIMINARY 95A

Interpretation ….

[11,915A] [page 49]

Section

95B 95C 95D 95E 95F

Title

Exempt supplies …. Application of Part …. Crown to be bound …. Object of this Part …. Simplified overview of this Part ….

Paragraph

[11,915B] [11,915C] [11,915D] [11,915E] [11,915F]

DIVISION 2 — COMMISSION’S FUNCTIONS UNDER THIS PART 95G

Commission’s functions under this Part ….

[11,915G]

DIVISION 3 — PRICE INQUIRIES Subdivision A — Holding of inquiries 95H 95J

Price inquiries …. Content of inquiry notices ….

[11,915H] [11,915J]

95K 95L 95M 95N

Period for completing inquiry …. Notice of holding of inquiry …. Notice of extension of period for completing inquiry …. Price restrictions ….

[11,915K] [11,915L] [11,915M] [11,915N]

Subdivision B — Reports on inquiries 95P 95Q

Copies of report to be made available …. Notification of proposed prices after receipt of report ….

[11,915P] [11,915Q]

Subdivision C — Procedure at inquiries 95R 95S 95T 95U 95V 95W

Public inquiries etc …. Taking of evidence on oath or affirmation …. Failure of witness to attend …. Refusal to be sworn or to answer question …. Protection of witnesses …. Allowances to witnesses ….

[11,915R] [11,915S] [11,915T] [11,915U] [11,915V] [11,915W]

DIVISION 4 — PRICE NOTIFICATIONS 95X 95Y 95Z 95ZA 95ZB 95ZC 95ZD

Declarations by Minister or Commission …. Declarations in relation to State or Territory authorities …. Price restrictions …. Later notices modifying a locality notice …. Applicable period in relation to a locality notice …. Register of price notifications …. Delegation by Commission …. DIVISION 5 — PRICE MONITORING

95ZE

Directions to monitor prices, costs and profits of

[11,915X] [11,915Y] [11,915Z] [11,915ZA] [11,915ZB] [11,915ZC] [11,915ZD]

95ZF 95ZG

an industry …. Directions to monitor prices, costs and profits of a business …. Exceptions to price monitoring ….

[11,915ZE] [11,915ZF] [11,915ZG] [page 50]

Section

Title

Paragraph

DIVISION 6 — OTHER PROVISIONS 95ZH 95ZI 95ZJ 95ZK 95ZL 95ZM 95ZN 95ZO 95ZP 95ZQ

Ministerial directions …. Inquiries by an unincorporated body or a group of 2 or more individuals …. Withdrawal of notices …. Power to obtain information or documents …. Inspection of documents etc …. Retention of documents …. Confidential information …. Immunity …. Secrecy: members or staff members of the Commission etc …. Secrecy: persons involved in inquiries by bodies other than the Commission ….

[11,915ZH] [11,915ZI] [11,915ZJ] [11,915ZK] [11,915ZL] [11,915ZM] [11,915ZN] [11,915ZO] [11,915ZP] [11,915ZQ]

PART VIII — RESALE PRICE MAINTENANCE 96 96A 97 98 99

Acts constituting engaging in resale price maintenance …. Resale price maintenance in relation to services …. Recommended prices …. Withholding the supply of goods …. Statements as to the minimum price of goods ….

[12,010] [12,013] [12,015] [12,020] [12,025]

100

Evidentiary provisions ….

[12,030]

PART IX — REVIEW BY TRIBUNAL OF DETERMINATIONS OF COMMISSION DIVISION 1 — APPLICATIONS FOR REVIEW (OTHER THAN FOR MERGER CLEARANCES) 101 101A 102

Applications for review …. Applications for review of notice under subsection 93(3) or (3A) or 93AC(1) or (2) …. Functions and powers of Tribunal ….

[12,130] [12,135] [12,140]

DIVISION 2 — PROCEDURE AND EVIDENCE 102A 103 104 105 106 107 108 109 110

Definition …. Procedure generally …. Regulations as to certain matters …. Power to take evidence on oath …. Hearings to be in public except in special circumstances …. Evidence in form of written statement …. Taking of evidence by single member …. Participants in proceedings before Tribunal …. Representation ….

[12,142] [12,145] [12,150] [12,155] [12,160] [12,165] [12,170] [12,175] [12,180] [page 51]

Section

Title

Paragraph

DIVISION 3 — REVIEW OF COMMISSION’S DETERMINATIONS ON MERGER CLEARANCES 111 112

Applications for review …. Tribunal to notify Commission ….

[12,185] [12,190]

113 114

Commission to give material to Tribunal …. Tribunal may consult etc to clarify information …. Commission to assist Tribunal …. Tribunal only to consider material before the Commission …. Tribunal to make decision on review …. Time limits for making review decision …. Tribunal’s decision taken to be Commission’s ….

115 116 117 118 119

[12,195] [12,200] [12,205] [12,210] [12,215] [12,220] [12,225]

PART X — INTERNATIONAL LINER CARGO SHIPPING DIVISION 1 — PRELIMINARY 10.01 10.01A 10.02 10.02A 10.03

Objects of Part …. Simplified outline …. Interpretation …. Inland terminals …. Designated shipper bodies ….

[12,285] [12,287] [12,290] [12,292] [12,295]

DIVISION 2 — ADDITIONAL RESTRICTIVE TRADE PRACTICE PROVISIONS APPLYING TO OCEAN CARRIERS 10.04 10.05

Application of section 46 in relation to conference agreements …. Discrimination between shippers prohibited [Repealed] ….

[12,345] [12,350]

DIVISION 3 — MINIMUM STANDARDS FOR CONFERENCE AGREEMENTS 10.06

10.07 10.08

Application of Australian law to outwards conference agreements and withdrawal from agreements …. Minimum levels of shipping services to be specified in conference agreements …. Conference agreements may include only certain

[12,400] [12,405]

restrictive trade practice provisions …. Where may consequences of conference agreements not complying with minimum standards be found? ….

10.09

[12,410]

[12,415]

DIVISION 4 — REGISTERS AND FILES AND PUBLIC INSPECTION OF THEM 10.10

Registers and conference agreement files open to public inspection …. What registers are to be kept by the Registrar? …. What conference agreement files are to be kept by the Registrar? …. What register is to be kept by the Commission? ….

10.11 10.12 10.13

[12,465] [12,470] [12,475] [12,480] [page 52]

Section

Title

Paragraph

DIVISION 5 — EXEMPTIONS FROM CERTAIN RESTRICTIVE TRADE PRACTICE PROHIBITIONS Subdivision A — Exemptions relating to conference agreements 10.14 10.15

10.15A 10.16

10.17

Exemptions apply only to certain activities …. When do exemptions commence to apply in relation to registered conference agreements? …. Application of exemptions to inwards liner cargo shipping services [Repealed] …. Exemptions do not apply to variations of conference agreement unless varying agreement registered …. Exemptions from sections 44ZZRF, 44ZZRG,

[12,530]

[12,535] [12,537]

[12,540]

10.17A

10.18 10.18A

44ZZRJ, 44ZZRK and 45 …. Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements …. Exemption from section 47 …. Exemptions from section 47 for freight rate agreements ….

[12,545]

[12,547] [12,550] [12,552]

Subdivision B — Exemptions relating to loyalty agreements 10.19 10.20 10.21 10.21A

Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 …. Exemption from section 47 …. Exemptions cease to apply in relation to a shipper at the shipper’s option …. Application of exemptions to inwards liner cargo shipping services [Repealed] ….

[12,600] [12,605] [12,610] [12,615]

Subdivision C — Exemption relating to inwards liner cargo shipping services [Repealed] Subdivision D — Other exemptions 10.24

10.24A

Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations …. Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to stevedoring contracts ….

[12,645]

[12,650]

DIVISION 6 — REGISTRATION OF CONFERENCE AGREEMENTS Subdivision A — Provisional registration 10.25 10.26

Application for provisional registration of conference agreement …. How application is to be made and verified ….

[12,665] [12,670]

10.27 10.27A 10.28

Copy of agreement to be filed with application etc …. Copy of conference agreement to be given to designated peak shipper body …. Decision on application for provisional registration ….

[12,675] [12,677] [12,680] [page 53]

Section

10.29

Title

Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement ….

Paragraph

[12,685]

Subdivision B — Final registration 10.30 10.31 10.32 10.33

Application for final registration of conference agreement …. How application is to be made and verified …. Copy of agreement to be filed with application etc …. Decision on application for final registration ….

[12,735] [12,740] [12,745] [12,750]

Subdivision C — Confidentiality requests 10.34 10.35 10.36 10.37 10.38

Request for confidentiality …. Abstract to accompany request for confidentiality …. Examination of abstract …. Decision on request for confidentiality …. Application for registration to be returned where request for confidentiality refused etc …. Subdivision D — Miscellaneous

[12,800] [12,805] [12,810] [12,815] [12,820]

10.39 10.40

Application also to be made for registration of varying conference agreements …. Notification of happening of affecting events prior to final registration etc ….

[12,870] [12,875]

DIVISION 7 — OBLIGATIONS OF OCEAN CARRIERS IN RELATION TO REGISTERED CONFERENCE AGREEMENTS 10.41

10.42 10.43

Parties to registered conference agreement to negotiate with certain designated shipper bodies etc …. Application to be made for registration of varying conference agreements …. Parties to registered conference agreement to notify happening of affecting events etc ….

[12,925] [12,930] [12,935]

DIVISION 8 — POWERS OF MINISTER IN RELATION TO REGISTERED CONFERENCE AGREEMENTS 10.44 10.45

10.46

10.47 10.48

Powers exercisable by Minister in relation to registered conference agreements etc …. Circumstances in which Minister may exercise powers in relation to registered conference agreements …. Action to be taken where powers exercised by Minister without first obtaining Commission report …. Investigation and report by Commission on reference by Minister …. Investigation and report by Commission on own initiative or on application by affected person ….

[12,985]

[12,990]

[12,995] [13,000]

[13,005] [page 54]

Section

10.49 10.49A

Title

Undertakings by parties to registered conference agreement …. Enforcement of undertakings ….

Paragraph

[13,010] [13,015]

DIVISION 9 — OBLIGATIONS OF NON-CONFERENCE OCEAN CARRIERS WITH SUBSTANTIAL MARKET POWER 10.50 10.51 10.52

10.53

Investigations by Commission into market power of ocean carriers …. Determination by Minister of market power of ocean carriers …. Non-conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc …. Non-conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc ….

[13,060] [13,065]

[13,070]

[13,075]

DIVISION 10 — POWERS OF MINISTER IN RELATION TO NONCONFERENCE OCEAN CARRIERS WITH SUBSTANTIAL MARKET POWER 10.54

10.55 10.56

10.57 10.58 10.59 10.60

Powers exercisable by Minister in relation to obligations of non-conference ocean carriers with substantial market power …. Circumstances in which Minister may exercise powers …. Action to be taken where powers exercised by Minister without first obtaining Commission report …. Investigation and report by Commission on reference by Minister …. Investigation and report by Commission on application by affected person …. Undertakings by ocean carrier …. Enforcement of orders and undertakings ….

[13,125] [13,130]

[13,135] [13,140] [13,145] [13,150] [13,155]

DIVISION 11 — UNFAIR PRICING PRACTICES 10.61 10.62 10.63 10.64 10.65 10.66 10.67

Powers exercisable by Minister in relation to pricing practices etc …. Circumstances in which Minister may exercise powers …. Investigation and report by Commission …. Undertakings not to engage in pricing practices …. Enforcement of orders and undertakings …. Determination of normal freight rates for shipping services …. Determination of whether practice contrary to national interest ….

[13,205] [13,210] [13,215] [13,220] [13,225] [13,230] [13,235] [page 55]

Section

Title

Paragraph

DIVISION 12 — REGISTRATION OF OCEAN CARRIER AGENTS 10.68

10.69 10.70 10.71 10.72

Ocean carrier who provides international liner cargo shipping services to have registered agent …. Representation of ocean carrier by registered agent …. Application by ocean carrier for registration of agent …. Registration of agent …. Change of agent etc ….

[13,785] [13,790] [13,795] [13,800] [13,805]

DIVISION 12A — EXEMPTION ORDERS FOR INWARDS CONFERENCE AGREEMENTS ETC 10.72A

Exemption orders for inwards conference

10.72B 10.72C 10.72D

agreements etc …. Criteria for making exemption order …. Duration of exemption order may be limited …. Conditions of exemption order ….

[13,820A] [13,820B] [13,820C] [13,820D]

DIVISION 13 — GENERAL PROVISIONS RELATING TO REGISTERS AND CONFERENCE AGREEMENT FILES 10.73

Form of registers and conference agreement files …. Deletion of entries wrongly existing in certain registers …. Deletion of obsolete entries in certain registers …. Correction of clerical errors and other mistakes in certain registers etc ….

10.74 10.75 10.76

[13,855] [13,860] [13,865] [13,870]

DIVISION 14 — ADMINISTRATION 10.77 10.78 10.79 10.80 10.81 10.82

Registrar of Liner Shipping …. Appointment of Registrar etc …. Acting Registrar …. Registrar and staff to be public servants …. Delegation by Minister …. Delegation by Registrar ….

[13,920] [13,925] [13,930] [13,935] [13,940] [13,945]

DIVISION 14A — REVIEW OF DECISIONS OF COMMISSION 10.82A 10.82B 10.82C

Review by Tribunal …. Functions and powers of Tribunal …. Provisions that do not apply in relation to a Tribunal review ….

[13,960A] [13,960B] [13,960C]

DIVISION 14B — REVIEW OF DECISIONS OF MINISTER 10.82D 10.82E

Review by Tribunal …. Functions and powers of Tribunal ….

[13,980D] [13,980E]

10.82F 10.82G

Modifying register after Tribunal review …. Provisions that do not apply in relation to a Tribunal review ….

[13,980F] [13,980G] [page 56]

Section

Title

Paragraph

DIVISION 15 — MISCELLANEOUS 10.83 10.84 10.85 10.86 10.87 10.88 10.89 10.90 10.91 10.92 10.93

Act not to affect rights under Freedom of Information Act …. Review of decisions of Registrar …. Statement to accompany notices of Registrar …. Evidence …. Notification by Commission of references etc …. Exclusion of documents etc from register of Commission investigations …. Disclosure of confidential information …. Fees …. Application of Part XID and section 155 to investigations under Part …. Constitution of Tribunal for inquiries under Part etc [Repealed] …. Participation in inquiries by Tribunal under Part etc [Repealed] ….

[13,995] [14,000] [14,005] [14,010] [14,015] [14,020] [14,025] [14,030] [14,035] [14,040] [14,045]

PART XI — APPLICATION OF THE AUSTRALIAN CONSUMER LAW AS A LAW OF THE COMMONWEALTH DIVISION 1 — PRELIMINARY 130 130A

Definitions …. Expressions defined in Schedule 2 ….

[14,055] [14,055A]

DIVISION 2 — APPLICATION OF THE AUSTRALIAN CONSUMER LAW AS A LAW OF THE COMMONWEALTH Subdivision A — Application of the Australian Consumer Law 131 131A 131B 131C

Application of the Australian Consumer Law in relation to corporations etc …. Division does not apply to financial services …. Division does not apply to interim bans imposed by State or Territory Ministers …. Saving of other laws and remedies ….

[14,060] [14,060A] [14,060B] [14,060C]

Subdivision B — Effect of other Commonwealth laws on the Australian Consumer Law 131D 131E 131F 131G

Effect of Part VIB on Chapter 5 of the Australian Consumer Law …. Application of the Legislative Instruments Act 2003 …. Section 4AB of the Crimes Act does not apply …. Application of the Criminal Code ….

[14,060D] [14,060E] [14,060F] [14,060G] [page 57]

Section

Title

Paragraph

DIVISION 3 — CONFERENCES FOR PROPOSED BANS AND RECALL NOTICES Subdivision A — Conference requirements before a ban or compulsory recall 132 132A

Commonwealth Minister must issue a proposed ban notice …. Commonwealth Minister must issue a proposed recall notice ….

[14,065] [14,065A]

132B 132C 132D

Commonwealth Minister to be notified if no person wishes a conference to be held …. Notification of conference …. Recommendation after conclusion of conference ….

[14,065B] [14,065C] [14,065D]

Subdivision B — Conference requirements after an interim ban is imposed 132E

132F 132G

Opportunity for a conference after an interim ban has been imposed by the Commonwealth Minister …. Notification of conference …. Recommendation after conclusion of conference ….

[14,065E] [14,065F] [14,065G]

Subdivision C — Conduct of conferences 132H

Conduct of conferences ….

[14,065H]

Subdivision D — Miscellaneous 132J 132K

Interim ban and recall notice without delay in case of danger to the public …. Copy of notices under this Division to be given to suppliers ….

[14,065J] [14,065K]

DIVISION 4 — ENFORCEMENT Subdivision A — Inspectors 133 133A

Appointment of inspectors …. Identity cards ….

[14,070] [14,070A]

Subdivision B — Premises to which the public is given access 133B

Power to enter premises to which the public has access — consumer goods ….

[14,070B]

133C

Power to enter premises to which the public has access — product related services ….

[14,070C]

Subdivision C — Disclosure notices relating to the safety of goods or services 133D 133E 133F 133G

Power to obtain information etc …. Self-incrimination …. Compliance with disclosure notices …. False or misleading information etc ….

[14,070D] [14,070E] [14,070F] [14,070G]

Subdivision D — Court orders relating to the destruction etc of goods 133H

Court orders relating to consumer goods that do not comply with a safety standard etc ….

[14,070H] [page 58]

Section

133J

Title

Recovery of reasonable costs of seizing, and destroying or disposing of, consumer goods ….

Paragraph

[14,070J]

DIVISION 5 — INFRINGEMENT NOTICES 134 134A 134B 134C 134D 134E 134F 134G

Purpose and effect of this Division …. Issuing an infringement notice …. Matters to be included in an infringement notice …. Amount of penalty …. Effect of compliance with an infringement notice …. Effect of failure to comply with an infringement notice …. Infringement notice compliance period for infringement notice …. Withdrawal of an infringement notice ….

[14,075] [14,075A] [14,075B] [14,075C] [14,075D] [14,075E] [14,075F] [14,075G]

DIVISION 6 — SEARCH, SEIZURE AND ENTRY Subdivision A — Powers of inspectors 135 135A 135B 135C 135D 135E 135F 135G

Inspector may enter premises …. Search-related powers of inspectors …. Inspector may ask questions and seek production of documents …. Failure to answer questions or produce documents …. Persons assisting inspectors …. Use of force in executing a search warrant …. Announcement before entry under warrant …. Inspector must be in possession of search warrant ….

[14,080] [14,080A] [14,080B] [14,080C] [14,080D] [14,080E] [14,080F] [14,080G]

Subdivision B — Obligations of inspectors 135H 135J

Consent …. Details of search warrant etc must be given to the occupier of the premises ….

[14,080H] [14,080J]

Subdivision C — Occupier’s etc rights and responsibilities 135K 135L 135M 135N 135P

Occupier etc entitled to observe execution of search warrant …. Occupier etc to provide inspector etc with facilities and assistance …. Receipts for seized consumer goods and equipment …. Return of seized consumer goods and equipment …. Judge may permit consumer goods or equipment to be retained …. Subdivision D — Provisions relating to seizure

[14,080K] [14,080L] [14,080M] [14,080N] [14,080P]

135Q

Recovery of reasonable costs of seizing consumer goods or equipment ….

[14,080Q] [page 59]

Section

135R

Title

Destruction or disposal of seized consumer goods or equipment ….

Paragraph

[14,080R]

Subdivision E — Embargo notices 135S 135T 135U 135V 135W 135X 135Y

Embargo notices …. Embargo period for embargo notices …. Multiple embargo notices for the same consumer goods or product related services …. Power of inspectors to secure consumer goods …. Power of inspectors to secure equipment used to supply product related services …. Consent to supply etc embargoed consumer goods etc …. Compliance with embargo notices ….

[14,080S] [14,080T] [14,080U] [14,080V] [14,080W] [14,080X] [14,080Y]

Subdivision F — Issue of search warrants 135Z 136 136A

Issue of search warrants …. Search warrants by telephone, fax etc …. Offence relating to warrants by telephone, fax etc ….

[14,080Z] [14,085] [14,085A]

Subdivision G — Miscellaneous 136B

Powers of judges …. DIVISION 7 — REMEDIES

[14,085B]

137 137A 137B 137C 137D 137E 137F

137G 137H

Limit on occupational liability …. Contributory acts or omissions to reduce compensation in defective goods actions …. Reduction of the amount of loss or damage if the claimant fails to take reasonable care …. Limits on recovery of amounts for death or personal injury …. Compensation orders etc arising out of unfair contract terms …. Limits on compensation orders etc for death or personal injury …. Court may make orders for the purpose of preserving money or other property held by a person …. Compliance with orders made under section 137F …. Finding in proceedings to be evidence ….

[14,090] [14,090A] [14,090B] [14,090C] [14,090D] [14,090E]

[14,090F] [14,090G] [14,090H]

DIVISION 8 — JURISDICTIONAL MATTERS 138 138A 138B 138C 138D 138E

Conferring jurisdiction on the Federal Court …. Conferring jurisdiction on the Federal Circuit Court …. Conferring jurisdiction on State and Territory Courts …. Transfer of matters by the Federal Court …. Transfer of matters by a State or Territory court …. Transfer of proceedings to Family Court ….

[14,095] [14,095A] [14,095B] [14,095C] [14,095D] [14,095E] [page 60]

Section

Title

Paragraph

DIVISION 9 — MISCELLANEOUS 139 139A 139B 139C 139D 139DA

139E 139F 139G

Intervention by the Commission …. Terms excluding consumer guarantees from supplies of recreational services …. Conduct of directors, employees or agents of bodies corporate …. Conduct of employees or agents of persons other than bodies corporate …. Enforcement and recovery of certain fines …. Application of section 229 of the Australian Consumer Law to a person other than a body corporate …. Cessation of enforcement orders etc …. Compensation for acquisition of property …. Regulations ….

[14,100] [14,100A] [14,100B] [14,100C] [14,100D]

[14,100DA] [14,100E] [14,100F] [14,100G]

PART XIAA — APPLICATION OF THE AUSTRALIAN CONSUMER LAW AS A LAW OF A STATE OR TERRITORY 140 140A 140B 140C 140D 140E 140F 140G 140H 140J 140K

Definitions …. Object of this Part …. The applied Australian Consumer Law …. Federal Court may exercise jurisdiction under application laws of Territories …. Exercise of jurisdiction under cross-vesting provisions …. Commonwealth consent to conferral of functions etc on Commonwealth entities …. How duty is imposed …. When an application law imposes a duty …. Application laws may operate concurrently with this Act …. No doubling-up of liabilities …. References in instruments to the Australian Consumer Law ….

[14,120] [14,120A] [14,120B] [14,120C] [14,120D] [14,120E] [14,120F] [14,120G] [14,120H] [14,120J] [14,120K]

PART XIA — THE COMPETITION CODE 150A 150B 150C 150D 150E 150F 150FA 150FB 150G

Definitions …. Objects of this Part …. The Competition Code …. Federal Court may exercise jurisdiction under application laws of Territories …. Exercise of jurisdiction under cross-vesting provisions …. Commonwealth consent to conferral of functions etc on Commonwealth entities …. How duty is imposed …. When an application law imposes a duty …. Application laws may operate concurrently with this Act ….

[14,140] [14,143] [14,146] [14,149] [14,152] [14,155] [14,155FA] [14,155FB] [14,158] [page 61]

Section

150H 150I 150J 150K

Title

No doubling-up of liabilities …. References in instruments to the Competition Code …. Authorisations etc under this Act may relate also to Competition Code …. Gazettal of jurisdictions that excessively modify the Code ….

Paragraph

[14,161] [14,164] [14,167] [14,170]

PART XIB — THE TELECOMMUNICATIONS INDUSTRY: ANTICOMPETITIVE CONDUCT AND RECORD-KEEPING RULES DIVISION 1 — INTRODUCTION 151AA

Simplified outline ….

[14,175AA]

151AB 151AC 151AD 151AE 151AF 151AG 151AH 151AI

Definitions …. Extension to external Territories …. Continuity of partnerships …. Additional operation of Part …. Telecommunications market …. When a body corporate is related to a partnership …. Degree of power in a telecommunications market …. Interpretation of Part IV or VII not affected by this Part ….

[14,175AB] [14,175AC] [14,175AD] [14,175AE] [14,175AF] [14,175AG] [14,175AH] [14,175AI]

DIVISION 2 — ANTI-COMPETITIVE CONDUCT 151AJ 151AK

Anti-competitive conduct …. The competition rule ….

[14,175AJ] [14,175AK]

DIVISION 3 — COMPETITION NOTICES AND EXEMPTION ORDERS Subdivision A — Competition notices 151AKA 151AL 151AM 151AN 151AO 151AOA 151AOB 151AP 151AQ 151AQA 151AQB 151AR

Part A competition notices …. Part B competition notices …. Competition notice to be given to carrier or carriage service provider …. Evidentiary effect of competition notice …. Duration of Part A competition notice …. Variation of competition notice …. Revocation of competition notice …. Guidelines …. Commission to act expeditiously …. Stay of proceedings relating to competition notices …. Advisory notices …. Register of competition notices ….

[14,175AKA] [14,175AL] [14,175AM] [14,175AN] [14,175AO] [14,175AOA] [14,175AOB] [14,175AP] [14,175AQ] [14,175AQA] [14,175AQB] [14,175AR]

Subdivision B — Exemption orders 151AS 151AT

Exemption orders …. Form of application ….

[14,175AS] [14,175AT] [page 62]

Section

151AU 151AV 151AW 151AX

151AY

151AZ 151BA 151BB 151BC 151BD 151BE 151BF 151BG 151BH 151BI

Title

Further information …. Withdrawal of application …. Commission must publicise receipt of applications …. Commission may refuse to consider application if it relates to the same conduct as an authorisation application …. Commission may refuse to consider application if it relates to the same conduct as a Part VII notification …. Commission may convene conference to discuss application …. Commission must grant or reject application …. Commission to give opportunity for submissions …. Criteria for making exemption order …. Notification of decision …. Duration of exemption order may be limited …. Conditions of exemption order …. Revocation of exemption order …. Register of exemption orders …. False or misleading information supplied in connection with application for an exemption order ….

Paragraph

[14,175AU] [14,175AV] [14,175AW]

[14,175AX]

[14,175AY] [14,175AZ] [14,175BA] [14,175BB] [14,175BC] [14,175BD] [14,175BE] [14,175BF] [14,175BG] [14,175BH]

[14,175BI]

Subdivision C — Miscellaneous 151BJ

Conduct includes proposed conduct ….

[14,175BJ]

DIVISION 4 — TARIFF FILING 151BK 151BL 151BM 151BN 151BO 151BP 151BQ 151BR 151BS 151BT

Tariff filing directions …. Specification of goods and services …. Notification of reasons …. Duration of direction may be limited …. Revocation of direction …. Variation of direction …. Public access to tariff information …. Register of tariff filing directions …. False or misleading tariff information …. Meaning of terms and conditions ….

[14,175BK] [14,175BL] [14,175BM] [14,175BN] [14,175BO] [14,175BP] [14,175BQ] [14,175BR] [14,175BS] [14,175BT]

DIVISION 5 — TARIFF FILING BY TELSTRA 151BTA

Tariff filing by Telstra ….

[14,175BTA]

DIVISION 6 — RECORD-KEEPING RULES AND DISCLOSURE DIRECTIONS 151BU Commission may make record-keeping rules …. [14,175BU] 151BUAA Minister may give directions to Commission …. [14,175BUAA] [page 63]

Section

Title

151BUAAA Minister to give direction to Commission about Telstra’s wholesale operations and retail operations [Repealed] …. 151BUAB Request for disclosure ….

Paragraph

[14,175BUAAA] [14,175BUAB]

151BUA 151BUB

Commission gives access to reports …. Carrier or carriage service provider gives access to reports …. 151BUC Carrier or carriage service provider gives access to periodic reports …. 151BUD Exemption of reports from access requirements …. 151BUDA Commission gives access to Ministeriallydirected reports …. 151BUDB Carrier or carriage service provider gives access to Ministerially-directed reports …. 151BUDC Carrier or carriage service provider gives access to Ministerially-directed periodic reports …. 151BUE Access via the internet …. 151BUF Self-incrimination …. 151BV Incorrect records ….

[14,175BUA] [14,175BUB] [14,175BUC] [14,175BUD] [14,175BUDA] [14,175BUDB]

[14,175BUDC] [14,175BUE] [14,175BUF] [14,175BV]

DIVISION 7 — ENFORCEMENT OF THE COMPETITION RULE, TARIFF FILING DIRECTIONS, RECORD-KEEPING RULES AND DISCLOSURE DIRECTIONS 151BW

151BX

151BY 151BZ

151CA

Person involved in a contravention of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction …. Pecuniary penalties for breach of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction …. Civil action for recovery of pecuniary penalties …. Criminal proceedings not to be brought for contraventions of the competition rule, tariff filing directions, record-keeping rules or disclosure directions …. Injunctions ….

[14,175BW]

[14,175BX] [14,175BY]

[14,175BZ] [14,175CA]

151CB

151CC 151CD 151CE 151CF

Orders to disclose information or publish an advertisement — breach of the competition rule …. Actions for damages — breach of the competition rule …. Finding of fact in proceedings to be evidence …. Other orders — compensation for breach of the competition rule …. Conduct by directors, employees or agents ….

[14,175CB] [14,175CC] [14,175CD] [14,175CE] [14,175CF]

DIVISION 8 — DISCLOSURE OF DOCUMENTS BY COMMISSION 151CG

Disclosure of documents by Commission ….

[14,175CG]

DIVISION 9 — TREATMENT OF PARTNERSHIPS 151CH

Treatment of partnerships ….

[14,175CH] [page 64]

Section

Title

Paragraph

DIVISION 10 — REVIEW OF DECISIONS 151CI 151CJ 151CK

Review by Tribunal …. Functions and powers of Tribunal …. Provisions that do not apply in relation to a Tribunal review ….

[14,175CI] [14,175CJ] [14,175CK]

DIVISION 11 — REVIEWS OF COMPETITIVE SAFEGUARDS WITHIN THE TELECOMMUNICATIONS INDUSTRY 151CL

Reviews of competitive safeguards within the telecommunications industry ….

[14,175CL]

DIVISION 12 — MONITORING OF TELECOMMUNICATIONS CHARGES PAID BY CONSUMERS 151CM

Monitoring of telecommunications charges paid by consumers ….

[14,175CM]

DIVISION 12A — REPORTS ABOUT COMPETITION IN THE TELECOMMUNICATIONS INDUSTRY 151CMA Public reports about competition in the telecommunications industry …. 151CMB Confidential reports about competition in the telecommunications industry …. 151CMC Examples of matters that may be specified in a determination under section 151CMA or 151CMB ….

[14,175CMA] [14,175CMB]

[14,175CMC]

DIVISION 13 — REVIEW OF OPERATION OF THIS PART [Repealed] DIVISION 14 — OPERATIONAL SEPARATION FOR TELSTRA [Repealed] DIVISION 15 — VOLUNTARY UNDERTAKINGS GIVEN BY TELSTRA 151CQ

Voluntary undertakings given by Telstra ….

[14,175CQ]

DIVISION 16 — NBN CORPORATIONS 151DA 151DB 151DC

151DD

Authorised conduct — subsection 51(1) …. Listed points of interconnection …. Review of policies and procedures relating to the identification of listed points of interconnection [Repealed] …. Review of operation of this Division [Repealed] ….

[14,175DA] [14,175DB]

[14,175DC] [14,175DD]

PART XIC — TELECOMMUNICATIONS ACCESS REGIME

DIVISION 1 — INTRODUCTION 152AA 152AB

Simplified outline …. Object of this Part ….

[14,177AA] [14,177AB] [page 65]

Section

152AC 152AD 152AE 152AF 152AG 152AGA 152AH 152AI 152AJ 152AK

Title

Paragraph

Definitions …. [14,177AC] This Part binds the Crown …. [14,177AD] Extension to external Territories …. [14,177AE] Access …. [14,177AF] Access seeker …. [14,177AG] Designated superfast telecommunications network …. [14,177AGA] Reasonableness — terms and conditions …. [14,177AH] When public inquiry commences …. [14,177AI] Interpretation of Part IIIA not affected by this Part …. [14,177AJ] Operation of Parts IV and VII not affected by this Part …. [14,177AK] DIVISION 2 — DECLARED SERVICES

152AL 152ALA 152AM 152AN 152AO 152AP 152AQ 152AQA

Declared services …. [14,177AL] Duration of declaration …. [14,177ALA] Inquiries about proposals to declare services …. [14,177AM] Combined inquiries about proposals to declare services …. [14,177AN] Variation or revocation of declaration …. [14,177AO] Inquiries about revocation of declared services …. [14,177AP] Register of declared services …. [14,177AQ] Pricing principle [Repealed] …. [14,177AQA]

152AQB 152AQC

Model terms and conditions relating to access to core services [Repealed] …. Compensation for acquisition of property ….

[14,177AQB] [14,177AQC]

DIVISION 3 — STANDARD ACCESS OBLIGATIONS Subdivision A — Category A standard access obligations 152AR 152ARA 152ARB

152AS 152ASA 152AT 152ATA 152AU 152AV

Category A standard access obligations …. Layer 2 bitstream services to be supplied on a non-discriminatory basis …. Layer 2 bitstream services — carriers and carriage service providers to carry on related activities on a non-discriminatory basis …. Ordinary class exemptions from standard access obligations [Repealed] …. Anticipatory class exemptions from category A standard access obligations …. Ordinary individual exemptions from standard access obligations [Repealed] …. Anticipatory individual exemptions from category A standard access obligations …. Individual exemptions — request for further information …. Review by Tribunal of exemption order decision [Repealed] ….

[14,177AR] [14,177ARA]

[14,177ARB] [14,177AS] [14,177ASA] [14,177AT] [14,177ATA] [14,177AU] [14,177AV] [page 66]

Section

152AW 152AX 152AXA

Title

Functions and powers of Tribunal [Repealed] …. Provisions that do not apply in relation to a Tribunal review [Repealed] …. Statement of reasons for decision — specification

Paragraph

[14,177AW] [14,177AX]

of documents ….

[14,177AXA]

Subdivision B — Category B standard access obligations 152AXB 152AXC 152AXD

Category B standard access obligations …. [14,177AXB] NBN corporation to supply declared services on a non-discriminatory basis …. [14,177AXC] NBN corporation to carry on related activities on a non-discriminatory basis …. [14,177AXD]

Subdivision C — Compliance with standard access obligations 152AY Compliance with standard access obligations …. [14,177AY] 152AYA Ancillary obligations — confidential information …. [14,177AYA] 152AZ Carrier licence condition …. [14,177AZ] 152BA Service provider rule …. [14,177BA] 152BB Judicial enforcement of standard access obligations …. [14,177BB] 152BBAA Judicial enforcement of conditions and limitations of exemption determinations and orders …. [14,177BBAA] 152BBA Commission may give directions in relation to negotiations …. [14,177BBA] 152BBB Enforcement of directions …. [14,177BBB] 152BBC Commission’s role in negotiations …. [14,177BBC] 152BBD Reaching agreement on terms and conditions of access …. [14,177BBD] DIVISION 4 — ACCESS DETERMINATIONS Subdivision A — Commission may make access determinations 152BC 152BCA 152BCB 152BCC

Access determinations …. Matters that the Commission must take into account …. Restrictions on access determinations …. Access agreements prevail over inconsistent

[14,177BC] [14,177BCA] [14,177BCB]

access determinations …. [14,177BCC] 152BCCA Final migration plan prevails over inconsistent access determinations …. [14,177BCCA] 152BCD Fixed principles provisions …. [14,177BCD] 152BCE Access determinations may be set out in the same document …. [14,177BCE] 152BCF Duration of access determination …. [14,177BCF] 152BCG Interim access determinations …. [14,177BCG] 152BCGA Stay of access determinations …. [14,177BCGA] [page 67]

Section

Title

Paragraph

Subdivision B — Public inquiries about proposals to make access determinations 152BCH 152BCI 152BCJ 152BCK

Access determination to be made after public inquiry …. When public inquiry must be held …. Combined inquiries about proposals to make access determinations …. Time limit for making an access determination ….

[14,177BCH] [14,177BCI] [14,177BCJ] [14,177BCK]

Subdivision C — Variation or revocation of access determinations 152BCN

Variation or revocation of access determinations ….

[14,177BCN]

Subdivision D — Compliance with access determinations 152BCO 152BCP

Carrier licence condition …. Service provider rule ….

[14,177BCO] [14,177BCP]

Subdivision E — Private enforcement of access determinations 152BCQ 152BCR 152BCS 152BCT 152BCU 152BCV

Private enforcement of access determinations …. Consent injunctions …. Interim injunctions …. Factors relevant to granting a restraining injunction …. Factors relevant to granting a mandatory injunction …. Discharge or variation of injunction or other order ….

[14,177BCQ] [14,177BCR] [14,177BCS] [14,177BCT] [14,177BCU] [14,177BCV]

Subdivision F — Register of Access Determinations 152BCW Register of Access Determinations ….

[14,177BCW]

DIVISION 4A — BINDING RULES OF CONDUCT Subdivision A — Commission may make binding rules of conduct 152BD Binding rules of conduct …. [14,177BD] 152BDAA Matters that the Commission must take into account …. [14,177BDAA] 152BDA Restrictions on binding rules of conduct …. [14,177BDA] 152BDB Access agreements prevail over inconsistent binding rules of conduct …. [14,177BDB] 152BDC Duration of binding rules of conduct …. [14,177BDC] 152BDCA Final migration plan prevails over inconsistent binding rules of conduct …. [14,177BDCA] 152BDD Commission must give copy of binding rules of conduct to carrier etc …. [14,177BDD] 152BDE Access determinations that are inconsistent with binding rules of conduct …. [14,177BDE] 152BDEA Stay of binding rules of conduct …. [14,177BDEA] Subdivision B — Compliance with binding rules of conduct

152BDF 152BDG

Carrier licence condition …. Service provider rule ….

[14,177BDF] [14,177BDG] [page 68]

Section

Title

Paragraph

Subdivision C — Private enforcement of binding rules of conduct 152BDH

Private enforcement of binding rules of conduct …. 152BDI Consent injunctions …. 152BDJ Interim injunctions …. 152BDK Factors relevant to granting a restraining injunction …. 152BDL Factors relevant to granting a mandatory injunction …. 152BDM Discharge or variation of injunction or other order ….

[14,177BDH] [14,177BDI] [14,177BDJ] [14,177BDK] [14,177BDL] [14,177BDM]

Subdivision D — Register of Binding Rules of Conduct 152BDN

Register of Binding Rules of Conduct ….

[14,177BDN]

DIVISION 4B — ACCESS AGREEMENTS 152BE 152BEA 152BEB

Access agreements …. [14,177BE] Quarterly reports about access agreements …. [14,177BEA] Commission may request copy of access agreement or variation agreement …. [14,177BEB] 152BEBA NBN corporation to give the Commission a statement about the differences between an access agreement and a standard form of access agreement …. [14,177BEBA] 152BEBB NBN corporation to give the Commission a

152BEBC

152BEBD 152BEBE

152BEBF

152BEBG 152BEC 152BED

statement about the differences between an access agreement and a special access undertaking …. NBN corporation to give the Commission a statement about the differences between an access agreement and an access determination …. Register of NBN Access Agreement Statements …. Layer 2 bitstream services — carrier or carriage service provider to give the Commission a statement about the differences between an access agreement and a special access undertaking …. Layer 2 bitstream services — carrier or carriage service provider to give the Commission a statement about the differences between an access agreement and an access determination …. Register of Layer 2 Bitstream Access Agreement Statements …. Carrier licence condition …. Service provider rule ….

[14,177BEBB]

[14,177BEBC] [14,177BEBD]

[14,177BEBE]

[14,177BEBF] [14,177BEBG] [14,177BEC] [14,177BED]

DIVISION 5 — ACCESS UNDERTAKINGS Subdivision A — Ordinary access undertakings [Repealed] Subdivision B — Special access undertakings 152CBA

What is a special access undertaking? ….

[14,177CBA] [page 69]

Section

Title

Paragraph

152CBAA Fixed principles terms and conditions …. 152CBB Further information about undertaking …. 152CBC Commission to accept or reject access undertaking …. 152CBCA Serial undertakings …. 152CBD Criteria for accepting access undertaking …. 152CBDA Variation of special access undertaking …. 152CBE Extension of access undertaking …. 152CBF Duration of access undertaking …. 152CBG Variation of access undertakings …. 152CBH Further information about variation of access undertaking …. 152CBI Voluntary withdrawal of undertaking …. 152CBIA Special access undertakings prevail over inconsistent access determinations …. 152CBIB Special access undertakings prevail over inconsistent binding rules of conduct …. 152CBIC Access agreements prevail over special access undertakings …. 152CBJ Proposed service ….

[14,177CBAA] [14,177CBB] [14,177CBC] [14,177CBCA] [14,177CBD] [14,177CBDA] [14,177CBE] [14,177CBF] [14,177CBG] [14,177CBH] [14,177CBI] [14,177CBIA] [14,177CBIB] [14,177CBIC] [14,177CBJ]

Subdivision C — General provisions 152CC 152CD 152CDA 152CE 152CF 152CG 152CGA 152CGB

Register of access undertakings …. [14,177CC] Enforcement of access undertakings …. [14,177CD] Deferral of consideration of an access undertaking etc …. [14,177CDA] Review by Tribunal [Repealed] …. [14,177CE] Functions and powers of Tribunal [Repealed] …. [14,177CF] Provisions that do not apply in relation to a Tribunal review [Repealed] …. [14,177CG] Statement of reasons for reviewable decision — specification of documents [Repealed] …. [14,177CGA] Access undertakings prevail over inconsistent arbitral determinations [Repealed] …. [14,177CGB]

DIVISION 6 — MINISTERIAL PRICING DETERMINATIONS 152CH 152CI

152CJ

Ministerial pricing determinations …. Undertakings, access determinations and binding rules of conduct that are inconsistent with Ministerial pricing determinations …. Register of Ministerial pricing determinations ….

[14,177CH]

[14,177CI] [14,177CJ]

DIVISION 6A — SUPPLY OF SERVICES BY NBN CORPORATIONS 152CJA 152CJB 152CJC 152CJD

Supply of services by NBN corporations …. Mandatory NBN services …. Carrier licence condition …. Service provider rule ….

[14,177CJA] [14,177CJB] [14,177CJC] [14,177CJD] [page 70]

Section

152CJE 152CJF 152CJG

Title

Judicial enforcement of obligations …. Standard form of access agreement …. When NBN corporation is not capable of supplying a carriage service ….

Paragraph

[14,177CJE] [14,177CJF] [14,177CJG]

DIVISION 6B — EXPLANATORY MATERIAL RELATING TO ANTIDISCRIMINATION PROVISIONS 152CJH

Explanatory material relating to antidiscrimination provisions ….

[14,177CJH]

DIVISION 7 — RELATIONSHIP BETWEEN THIS PART AND PART IIIA 152CK

Relationship between this Part and Part IIIA ….

[14,177CK]

DIVISION 8 — RESOLUTION OF DISPUTES ABOUT ACCESS [Repealed] DIVISION 9 — REGISTERED AGREEMENTS FOR ACCESS TO DECLARED SERVICES [Repealed] DIVISION 10 — HINDERING THE FULFILMENT OF A STANDARD ACCESS OBLIGATION ETC 152EF 152EG

152EH 152EI 152EJ 152EK 152EL

Prohibition on hindering the fulfilment of a standard access obligation etc …. Enforcement of prohibition on hindering the fulfilment of a standard access obligation etc …. Consent injunctions …. Interim injunctions …. Factors relevant to granting a restraining injunction …. Factors relevant to granting a mandatory injunction …. Discharge or variation of injunction or other order ….

[14,177EF]

[14,177EG] [14,177EH] [14,177EI] [14,177EJ] [14,177EK] [14,177EL]

DIVISION 10A — PROCEDURAL RULES 152ELA 152ELB 152ELC

Procedural Rules …. Public consultation …. Plan for the development of Procedural Rules ….

[14,177ELA] [14,177ELB] [14,177ELC]

DIVISION 11 — MISCELLANEOUS 152ELD 152EM 152EN 152EO 152EOA 152EP

Compensation for acquisition of property …. Continuity of partnerships …. Treatment of partnerships …. Conduct by directors, servants or agents …. Review of operation of this Part etc …. Regulations about fees for inspection etc of

[14,177ELD] [14,177EM] [14,177EN] [14,177EO] [14,177EOA]

152EQ 152ER

registers …. Assistance to independent telecommunications adjudicator …. Voluntary undertakings given by Telstra ….

[14,177EP] [14,177EQ] [14,177ER] [page 71]

Section

Title

Paragraph

PART XID — SEARCH AND SEIZURE DIVISION 1 — PRELIMINARY 154 154A

Simplified outline …. Definitions ….

[14,178] [14,178A]

DIVISION 2 — APPOINTMENT OF INSPECTORS AND IDENTITY CARDS 154B 154C

Appointment of inspectors …. Identity cards ….

[14,178B] [14,178C]

DIVISION 3 — ENTRY TO PREMISES WITH CONSENT 154D 154E 154F

Entry with consent …. Powers in relation to premises …. Operation of electronic equipment at premises ….

[14,178D] [14,178E] [14,178F]

DIVISION 4 — ENTRY TO PREMISES UNDER A SEARCH WARRANT Subdivision A — Powers available under a search warrant 154G 154GA

The things that are authorised by a search warrant …. Removing things for examination or processing

[14,178G]

154H 154J

…. Operation of electronic equipment at premises …. Securing electronic equipment for use by experts ….

[14,178GA] [14,178H] [14,178J]

Subdivision B — Availability of assistance and use of force in executing a search warrant 154K 154L

Authorisation of officers assisting …. Availability of assistance and use of force in executing a search warrant ….

[14,178K] [14,178L]

Subdivision C — Obligations of executing officer and officers assisting 154M 154N

Announcement before entry …. Details of warrant to be given to occupier ….

[14,178M] [14,178N]

Subdivision D — Occupier’s rights and responsibilities 154P 154Q 154R 154RA

Occupier entitled to observe search being conducted …. Occupier to provide reasonable facilities and assistance …. Answering of questions or producing evidential material …. Person with computer knowledge to assist access etc ….

[14,178P] [14,178Q] [14,178R] [14,178RA]

Subdivision E — General provisions relating to seizure 154S 154T 154U 154V 154W

Copies of seized things to be provided …. Receipts for things seized or moved under warrant …. Return of seized things …. Magistrate may permit a thing to be retained …. Disposal of things if there is no owner or owner cannot be located ….

[14,178S] [14,178T] [14,178U] [14,178V] [14,178W]

[page 72]

Section

Title

Paragraph

Subdivision F — Search warrants 154X 154Y 154Z

Issue of search warrants Search warrants by telephone, fax etc …. Offences relating to warrants ….

[14,178Y] [14,178Z]

Subdivision G — Powers of magistrates 154ZA

Powers conferred on magistrates ….

[14,178ZA]

DIVISION 5 — GENERAL PROVISIONS RELATING TO ELECTRONIC EQUIPMENT 154ZB 154ZC

Operation of electronic equipment at premises …. Compensation for damage to electronic equipment ….

[14,178ZB] [14,178ZC]

PART XII — MISCELLANEOUS 155 155AAA 155AA 155AB 155A

155B

Power to obtain information, documents and evidence …. Protection of certain information …. Protection of Part VB information …. Protection of Part XIB or XIC information [Repealed] …. Power to obtain information and documents in New Zealand relating to trans-Tasman markets …. Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission ….

[14,180] [14,183AAA] [14,183AA] [14,183AB]

[14,185]

[14,190]

156 157 157AA 157A 157B 157C 157D 158 159 160 161 162 162A 163 163A 164 165

Inspection of documents by Commission …. Disclosure of documents by Commission …. Disclosure of documents by Tribunal in relation to merger authorisations …. Disclosure of information by Commission …. Disclosure of protected cartel information to a court or tribunal …. Disclosure of protected cartel information to a party to court proceedings etc …. General powers of a court …. Protection of members of Tribunal, counsel and witnesses …. Incriminating answers …. Failure of witness to attend …. Refusal to be sworn or to answer questions …. Contempt …. Intimidation etc …. Prosecutions …. Declarations and orders …. Proceedings by Commission to be in its official name [Repealed] …. Inspection of, furnishing of copies of, and evidence of, documents ….

[14,195] [14,200] [14,200AA] [14,203] [14,208] [14,213] [14,218] [14,220] [14,255] [14,260] [14,265] [14,270] [14,275] [14,280] [14,285] [14,290] [14,295] [page 73]

Section

166 167 168

Title

Certificates as to furnishing of particulars to Commission …. Judicial notice …. Presumption that bodies corporate not related [Repealed] ….

Paragraph

[14,300] [14,305] [14,310]

169 170 171 171A 171B 172 173

Single judge may exercise jurisdiction of court [Repealed] …. Legal and financial assistance …. Annual report by Commission …. Charges by the Commission …. Division 3 of Part IIIA does not confer judicial power on the Commission …. Regulations …. Authorisation for the purposes of subsection 51(1) ….

[14,315] [14,320] [14,325] [14,327] [14,328B] [14,330] [14,335]

PART XIII — APPLICATION AND TRANSITIONAL PROVISIONS RELATING TO THE COMPETITION PROVISIONS DIVISION 1 — CARTEL CONDUCT 174 175

176

177 178

Definitions …. Giving effect after the commencement time to a cartel provision in existence before that time …. Proceedings relating to price-fixing contraventions taking place before the commencement time …. Authorisations in force before the commencement time …. Notifications in force before the commencement time ….

[14,340]

[14,345]

[14,350] [14,355] [14,360]

DIVISION 2 — APPLICATION OF AMENDMENTS MADE BY THE COMPETITION AND CONSUMER LEGISLATION AMENDMENT ACT 2011 179

Amendments of section 50 …. SCHEDULE 1 — THE SCHEDULE VERSION OF PART IV …. SCHEDULE 2 — THE AUSTRALIAN CONSUMER LAW ….

[14,380] [14,400] [14,500]

SCHEDULE 2 — THE AUSTRALIAN CONSUMER LAW CHAPTER 1 — INTRODUCTION 1 2 3 4 5 6 7 8 9

Application of this Schedule …. Definitions …. Meaning of consumer …. Misleading representations with respect to future matters …. When donations are treated as supplies or acquisitions …. Related bodies corporate …. Meaning of manufacturer …. Goods affixed to land or premises …. Meaning of safety defect in relation to goods ….

[14,505] [14,510] [14,515] [14,520] [14,525] [14,530] [14,535] [14,540] [14,545] [page 74]

10 11 12 13 14 15 16 17

Asserting a right to payment …. References to acquisition, supply and re-supply …. Application of Schedule in relation to leases and licences of land and buildings …. Loss or damage to include injury …. Meaning of continuing credit contract …. Contraventions of this Schedule …. Severability …. References to provisions in this Schedule ….

[14,550] [14,555] [14,560] [14,565] [14,570] [14,575] [14,580] [14,585]

CHAPTER 2 — GENERAL PROTECTIONS

PART 2-1 — MISLEADING OR DECEPTIVE CONDUCT 18 19

Misleading or deceptive conduct …. Application of this Part to information providers ….

[14,590] [14,595]

PART 2-2 UNCONSCIONABLE CONDUCT 20 21 22 22A

Unconscionable conduct within the meaning of the unwritten law …. Unconscionable conduct in connection with goods or services …. Matters the court may have regard to for the purposes of section 21 …. Presumptions relating to whether representations are misleading ….

[14,600] [14,605] [14,610] [14,612]

PART 2-3 — UNFAIR CONTRACT TERMS 23 24 25 26 27 28

Unfair terms of consumer contracts …. Meaning of unfair …. Examples of unfair terms …. Terms that define main subject matter of consumer contracts etc are unaffected …. Standard form contracts …. Contracts to which this Part does not apply ….

[14,615] [14,620] [14,625] [14,630] [14,635] [14,640]

CHAPTER 3 — SPECIFIC PROTECTIONS PART 3-1 — UNFAIR PRACTICES

DIVISION 1 — FALSE OR MISLEADING REPRESENTATIONS ETC 29 30 31 32

False or misleading representations about goods or services …. False or misleading representations about sale etc of land …. Misleading conduct relating to employment …. Offering rebates, gifts, prizes etc ….

[14,645] [14,650] [14,655] [14,660] [page 75]

33 34 35 36 37 38

Misleading conduct as to the nature etc of goods …. Misleading conduct as to the nature etc of services …. Bait advertising …. Wrongly accepting payment …. Misleading representations about certain business activities …. Application of provisions of this Division to information providers ….

[14,665] [14,670] [14,675] [14,680] [14,685] [14,690]

DIVISION 2 — UNSOLICITED SUPPLIES 39 40 41 42 43

Unsolicited cards etc …. Assertion of right to payment for unsolicited goods or services …. Liability etc of recipient for unsolicited goods …. Liability of recipient for unsolicited services …. Assertion of right to payment for unauthorised entries or advertisements ….

DIVISION 3 — PYRAMID SCHEMES

[14,695] [14,700] [14,705] [14,710] [14,715]

44 45 46

Participation in pyramid schemes …. Meaning of pyramid scheme …. Marketing schemes as pyramid schemes ….

[14,720] [14,725] [14,730]

DIVISION 4 — PRICING 47 48

Multiple pricing …. Single price to be specified in certain circumstances ….

[14,735] [14,740]

DIVISION 5 — OTHER UNFAIR PRACTICES 49 50

Referral selling …. Harassment and coercion ….

[14,745] [14,750]

PART 3-2 — CONSUMER TRANSACTIONS DIVISION 1 — CONSUMER GUARANTEES SUBDIVISION A — Guarantees relating to the supply of goods 51 52 53 54 55 56 57

Guarantee as to title …. Guarantee as to undisturbed possession …. Guarantee as to undisclosed securities etc …. Guarantee as to acceptable quality …. Guarantee as to fitness for any disclosed purpose etc …. Guarantee relating to the supply of goods by description …. Guarantees relating to the supply of goods by sample

[14,755] [14,760] [14,765] [14,770] [14,775] [14,780]

or demonstration model …. Guarantee as to repairs and spare parts …. Guarantee as to express warranties ….

58 59

[14,785] [14,790] [14,795] [page 76]

SUBDIVISION B — Guarantees relating to the supply of services 60 61 62 63

Guarantee as to due care and skill …. Guarantees as to fitness for a particular purpose etc …. Guarantee as to reasonable time for supply …. Services to which this Subdivision does not apply ….

[14,800] [14,805] [14,810] [14,815]

SUBDIVISION C — Guarantees not to be excluded etc by contract 64 64A

Guarantees not to be excluded etc by contract …. Limitation of liability for failures to comply with guarantees ….

[14,820] [14,825]

SUBDIVISION D — Miscellaneous 65 66 67 68

Application of this Division to supplies of gas, electricity and telecommunications …. Display notice …. Conflict of laws …. Convention on Contracts for the International Sale of Goods ….

[14,830] [14,835] [14,840] [14,845]

DIVISION 2 — UNSOLICITED CONSUMER AGREEMENTS SUBDIVISION A — Introduction 69 70 71 72

Meaning of unsolicited consumer agreement …. Presumption that agreements are unsolicited consumer agreements …. Meaning of dealer …. Meaning of negotiation ….

[14,850] [14,855] [14,860] [14,865]

SUBDIVISION B — Negotiating unsolicited consumer agreements 73 74 75 76 77

Permitted hours for negotiating an unsolicited consumer agreement …. Disclosing purpose and identity …. Ceasing to negotiate on request …. Informing person of termination period etc …. Liability of suppliers for contraventions by dealers ….

[14,870] [14,875] [14,880] [14,885] [14,890]

SUBDIVISION C — Requirements for unsolicited consumer agreements etc 78 79 80 81

Requirement to give document to the consumer …. Requirements for all unsolicited consumer agreements etc …. Additional requirements for unsolicited consumer agreements not negotiated by telephone …. Requirements for amendments of unsolicited consumer agreements ….

[14,895] [14,900] [14,905] [14,910]

SUBDIVISION D — Terminating unsolicited consumer agreements 82

Terminating an unsolicited consumer agreement during the termination period ….

[14,915] [page 77]

83 84 85 86 87 88

Effect of termination …. Obligations of suppliers on termination …. Obligations and rights of consumers on termination …. Prohibition on supplies etc for 10 business days …. Repayment of payments received after termination …. Prohibition on recovering amounts after termination ….

[14,920] [14,925] [14,930] [14,935] [14,940] [14,945]

SUBDIVISION E — Miscellaneous 89 90 91

92 93 94 95

Certain provisions of unsolicited consumer agreements void …. Waiver of rights …. Application of this Division to persons to whom rights of consumers and suppliers are assigned etc …. Application of this Division to supplies to third parties …. Effect of contravening this Division …. Regulations may limit the application of this Division …. Application of this Division to certain conduct

[14,950] [14,955]

[14,960] [14,965] [14,970] [14,975]

covered by the Corporations Act ….

[14,980]

DIVISION 3 — LAY-BY AGREEMENTS 96 97 98 99

Lay-by agreements must be in writing etc …. Termination of lay-by agreements by consumers …. Termination of lay-by agreements by suppliers …. Effect of termination ….

[14,985] [14,990] [14,995] [15,000]

DIVISION 4 — MISCELLANEOUS 100 101 102 103

Supplier must provide proof of transaction etc …. Consumer may request an itemised bill …. Prescribed requirements for warranties against defects …. Repairers must comply with prescribed requirements ….

[15,005] [15,010] [15,015] [15,020]

PART 3-3 — SAFETY OF CONSUMER GOODS AND PRODUCT RELATED SERVICES DIVISION 1 — SAFETY STANDARDS 104 105 106 107 108

Making safety standards for consumer goods and product related services …. Declaring safety standards for consumer goods and product related services …. Supplying etc consumer goods that do not comply with safety standards …. Supplying etc product related services that do not comply with safety standards …. Requirement to nominate a safety standard ….

[15,025] [15,030] [15,035] [15,040] [15,045]

[page 78]

DIVISION 2 — BANS ON CONSUMER GOODS AND PRODUCT RELATED SERVICES SUBDIVISION A — Interim bans 109

110 111 112 113

Interim bans on consumer goods or product related services that will or may cause injury to any person etc …. Places in which interim bans apply …. Ban period for interim bans …. Interaction of multiple interim bans …. Revocation of interim bans ….

[15,050] [15,055] [15,060] [15,065] [15,070]

SUBDIVISION B — Permanent bans 114 115 116 117

Permanent bans on consumer goods or product related services …. Places in which permanent bans apply …. When permanent bans come into force …. Revocation of permanent bans ….

[15,075] [15,080] [15,085] [15,090]

SUBDIVISION C — Compliance with interim bans and permanent bans 118 119

Supplying etc consumer goods covered by a ban …. Supplying etc product related services covered by a ban ….

[15,095] [15,100]

SUBDIVISION D — Temporary exemption from

mutual recognition principles 120 121

Temporary exemption under the Trans-Tasman Mutual Recognition Act 1997 …. Temporary exemption under the Mutual Recognition Act 1992 ….

[15,105] [15,110]

DIVISION 3 — RECALL OF CONSUMER GOODS SUBDIVISION A — Compulsory recall of consumer goods 122 123 124 125 126 127

Compulsory recall of consumer goods …. Contents of a recall notice …. Obligations of a supplier in relation to a recall notice …. Notification by persons who supply consumer goods outside Australia if there is compulsory recall …. Interaction of multiple recall notices …. Compliance with recall notices ….

[15,115] [15,120] [15,125] [15,130] [15,135] [15,140]

SUBDIVISION B — Voluntary recall of consumer goods 128

Notification requirements for a voluntary recall of consumer goods ….

[15,145] [page 79]

DIVISION 4 — SAFETY WARNING NOTICES 129 130

Safety warning notices about consumer goods and product related services …. Announcement of the results of an investigation etc ….

[15,150] [15,155]

DIVISION 5 — CONSUMER GOODS, OR PRODUCT RELATED SERVICES, ASSOCIATED WITH DEATH OR SERIOUS INJURY OR ILLNESS 131

Suppliers to report consumer goods associated with the death or serious injury or illness of any person …. 132 Suppliers to report product related services associated with the death or serious injury or illness of any person …. 132A Confidentiality of notices given under this Division ….

[15,160]

[15,165] [15,170]

DIVISION 6 — MISCELLANEOUS 133

Liability under a contract of insurance ….

[15,175]

PART 3-4 — INFORMATION STANDARDS 134 135 136

Making information standards for goods and services …. Declaring information standards for goods and services …. Supplying etc goods that do not comply with

[15,180] [15,185]

137

information standards …. Supplying etc services that do not comply with information standards ….

[15,190] [15,195]

PART 3-5 — LIABILITY OF MANUFACTURERS FOR GOODS WITH SAFETY DEFECTS DIVISION 1 — ACTIONS AGAINST MANUFACTURERS FOR GOODS WITH SAFETY DEFECTS 138 139 140 141

142

Liability for loss or damage suffered by an injured individual …. Liability for loss or damage suffered by a person other than an injured individual …. Liability for loss or damage suffered by a person if other goods are destroyed or damaged …. Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged …. Defences to defective goods actions ….

[15,200] [15,205] [15,210]

[15,215] [15,220]

DIVISION 2 — DEFECTIVE GOODS ACTIONS 143

Time for commencing defective goods actions ….

[15,225] [page 80]

144 145

Liability joint and several …. Survival of actions ….

[15,230] [15,235]

146 147 148

149

No defective goods action where workers’ compensation law etc applies …. Unidentified manufacturer …. Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard …. Representative actions by the regulator ….

[15,240] [15,245]

[15,250] [15,255]

DIVISION 3 — MISCELLANEOUS 150

Application of all or any provisions of this Part etc not to be excluded or modified ….

[15,260]

CHAPTER 4 — OFFENCES PART 4-1 — OFFENCES RELATING TO UNFAIR PRACTICES DIVISION 1 — FALSE OR MISLEADING REPRESENTATIONS ETC 151 152 153 154 155 156 157 158 159

False or misleading representations about goods or services …. False or misleading representations about sale etc of land …. Misleading conduct relating to employment …. Offering rebates, gifts, prizes etc …. Misleading conduct as to the nature etc of goods …. Misleading conduct as to the nature etc of services …. Bait advertising …. Wrongly accepting payment …. Misleading representations about certain business

[15,265] [15,270] [15,275] [15,280] [15,285] [15,290] [15,295] [15,300]

160

activities …. Application of provisions of this Division to information providers ….

[15,305] [15,310]

DIVISION 2 — UNSOLICITED SUPPLIES 161 162 163

Unsolicited cards etc …. Assertion of right to payment for unsolicited goods or services …. Assertion of right to payment for unauthorised entries or advertisements ….

[15,315] [15,320] [15,325]

DIVISION 3 — PYRAMID SCHEMES 164

Participation in pyramid schemes ….

[15,330]

DIVISION 4 — PRICING 165 166

Multiple pricing …. Single price to be specified in certain circumstances ….

[15,335] [15,340] [page 81]

DIVISION 5 — OTHER UNFAIR PRACTICES 167 168

Referral selling …. Harassment and coercion ….

[15,345] [15,350]

PART 4-2 — OFFENCES RELATING TO

CONSUMER TRANSACTIONS DIVISION 1 — CONSUMER GUARANTEES 169

Display notices ….

[15,355]

DIVISION 2 — UNSOLICITED CONSUMER AGREEMENTS SUBDIVISION A — Negotiating unsolicited consumer agreements 170 171 172 173

Permitted hours for negotiating an unsolicited consumer agreement …. Disclosing purpose and identity …. Ceasing to negotiate on request …. Informing person of termination period etc ….

[15,360] [15,365] [15,370] [15,375]

SUBDIVISION B — Requirements for unsolicited consumer agreements etc 174 175 176 177

Requirement to give document to the consumer …. Requirements for all unsolicited consumer agreements etc …. Additional requirements for unsolicited consumer agreements not negotiated by telephone …. Requirements for amendments of unsolicited consumer agreements ….

[15,380] [15,385] [15,390] [15,395]

SUBDIVISION C — Terminating unsolicited

consumer agreements 178 179 180 181

Obligations of suppliers on termination …. Prohibition on supplies for 10 business days …. Repayment of payments received after termination …. Prohibition on recovering amounts after termination ….

[15,400] [15,405] [15,410] [15,415]

SUBDIVISION D — Miscellaneous 182 183 184

185 186 187

Certain provisions of unsolicited consumer agreements void …. Waiver of rights …. Application of this Division to persons to whom rights of consumers and suppliers are assigned etc …. Application of this Division to supplies to third parties …. Regulations may limit the application of this Division …. Application of this Division to certain conduct covered by the Corporations Act ….

[15,420] [15,425]

[15,430] [15,435] [15,440] [15,445] [page 82]

DIVISION 3 — LAY-BY AGREEMENTS 188 189 190 191

Lay-by agreements must be in writing etc …. Termination charges …. Termination of lay-by agreements by suppliers …. Refund of amounts ….

[15,450] [15,455] [15,460] [15,465]

DIVISION 4 — MISCELLANEOUS 192 193

Prescribed requirements for warranties against defects …. Repairers must comply with prescribed requirements ….

[15,470] [15,475]

PART 4-3 — OFFENCES RELATING TO SAFETY OF CONSUMER GOODS AND PRODUCT RELATED SERVICES DIVISION 1 — SAFETY STANDARDS 194 195 196

Supplying etc consumer goods that do not comply with safety standards …. Supplying etc product related services that do not comply with safety standards …. Requirement to nominate a safety standard ….

[15,480] [15,485] [15,490]

DIVISION 2 — BANS ON CONSUMER GOODS AND PRODUCT RELATED SERVICES 197 198

Supplying etc consumer goods covered by a ban …. Supplying etc product related services covered by a ban ….

[15,500] [15,505]

DIVISION 3 — RECALL OF CONSUMER GOODS 199 200

Compliance with recall orders …. Notification by persons who supply consumer goods

[15,510]

201

outside Australia if there is compulsory recall …. Notification requirements for a voluntary recall of consumer goods ….

[15,515] [15,520]

DIVISION 4 — CONSUMER GOODS, OR PRODUCT RELATED SERVICES, ASSOCIATED WITH DEATH OR SERIOUS INJURY OR ILLNESS 202

Suppliers to report consumer goods etc associated with the death or serious injury or illness of any person ….

[15,525]

PART 4-4 — OFFENCES RELATING TO INFORMATION STANDARDS 203

Supplying etc goods that do not comply with information standards ….

[15,530] [page 83]

204

Supplying etc services that do not comply with information standards ….

[15,535]

PART 4-5 — OFFENCES RELATING TO SUBSTANTIATION NOTICES 205 206

Compliance with substantiation notices …. False or misleading information etc ….

[15,540] [15,545]

PART 4-6 — DEFENCES 207 208 209 210 211

Reasonable mistake of fact …. Act or default of another person etc …. Publication of advertisements in the ordinary course of business …. Supplying goods acquired for the purpose of resupply …. Supplying services acquired for the purpose of resupply ….

[15,550] [15,555] [15,560] [15,565] [15,570]

PART 4-7 — MISCELLANEOUS 212 213 214 215 216 217

Prosecutions to be commenced within 3 years …. Preference must be given to compensation for victims …. Penalties for contraventions of the same nature etc …. Penalties for previous contraventions of the same nature etc …. Granting of injunctions etc …. Criminal proceedings not to be brought for contraventions of Chapter 2 or 3 ….

[15,575] [15,580] [15,585] [15,590] [15,595] [15,600]

CHAPTER 5 — ENFORCEMENT AND REMEDIES PART 5-1 — ENFORCEMENT DIVISION 1 — UNDERTAKINGS 218

Regulator may accept undertakings ….

[15,605]

DIVISION 2 — SUBSTANTIATION NOTICES 219 220 221 222

Regulator may require claims to be substantiated etc …. Extending periods for complying with substantiation notices …. Compliance with substantiation notices …. False or misleading information etc ….

[15,610] [15,615] [15,620] [15,625]

DIVISION 3 — PUBLIC WARNING NOTICES 223

Regulator may issue a public warning notice ….

[15,630] [page 84]

PART 5-2 — REMEDIES DIVISION 1 — PECUNIARY PENALTIES 224 225 226 227 228 229 230

Pecuniary penalties …. Pecuniary penalties and offences …. Defence …. Preference must be given to compensation for victims …. Civil action for recovery of pecuniary penalties …. Indemnification of officers …. Certain indemnities not authorised and certain documents void ….

DIVISION 2 — INJUNCTIONS

[15,635] [15,640] [15,645] [15,650] [15,655] [15,660] [15,665]

232 233 234 235

Injunctions …. Consent injunctions …. Interim injunctions …. Variation and discharge of injunctions ….

[15,670] [15,675] [15,680] [15,685]

DIVISION 3 — DAMAGES 236

Actions for damages ….

[15,690]

DIVISION 4 — COMPENSATION ORDERS ETC FOR INJURED PERSONS AND ORDERS FOR NON-PARTY CONSUMERS SUBDIVISION A — Compensation orders etc for injured persons 237 238

Compensation orders etc on application by an injured person or the regulator …. Compensation orders etc arising out of other proceedings ….

[15,695] [15,700]

SUBDIVISION B — Orders for non-party consumers 239 240 241

Orders to redress etc loss or damage suffered by nonparty consumers …. Determining whether to make a redress order etc for non-party consumers …. When a non-party consumer is bound by a redress order etc ….

[15,705] [15,710] [15,715]

SUBDIVISION C — Miscellaneous 242 243 244 245

Applications for orders …. Kinds of orders that may be made …. Power of a court to make orders …. Interaction with other provisions ….

[15,720] [15,725] [15,730] [15,735]

DIVISION 5 — OTHER REMEDIES 246

Non-punitive orders ….

[15,740] [page 85]

247 248 249 250

Adverse publicity orders …. Order disqualifying a person from managing corporations …. Privilege against exposure to penalty or forfeiture — disqualification from managing corporations …. Declarations relating to consumer contracts ….

[15,745] [15,750] [15,755] [15,760]

DIVISION 6 — DEFENCES 251 252 253

Publication of advertisement in the ordinary course of business …. Supplying consumer goods for the purpose of resupply …. Supplying product related services for the purpose of re-supply ….

PART 5-3 — COUNTRY OF ORIGIN REPRESENTATIONS

[15,765] [15,770] [15,775]

254 255 256 257

258

Overview …. Country of origin representations do not contravene certain provisions …. Cost of producing or manufacturing goods …. Rules for determining the percentage of costs of production or manufacture attributable to a country …. Proceedings relating to false, misleading or deceptive conduct or representations ….

[15,780] [15,785] [15,790]

[15,795] [15,800]

PART 5-4 — REMEDIES RELATING TO GUARANTEES DIVISION 1 — ACTION AGAINST SUPPLIERS SUBDIVISION A — Action against suppliers of goods 259 260 261 262 263 264 265 266

Action against suppliers of goods …. When a failure to comply with a guarantee is a major failure …. How suppliers may remedy a failure to comply with a guarantee …. When consumers are not entitled to reject goods …. Consequences of rejecting goods …. Replaced goods …. Termination of contracts for the supply of services that are connected with rejected goods …. Rights of gift recipients ….

[15,805] [15,810] [15,815] [15,820] [15,825] [15,830] [15,835] [15,840]

SUBDIVISION B — Action against suppliers of services

267 268

Action against suppliers of services …. When a failure to comply with a guarantee is a major failure …. Termination of contracts for the supply of services …. Termination of contracts for the supply of goods that are connected with terminated services ….

269 270

[15,845] [15,850] [15,855] [15,860] [page 86]

DIVISION 2 — ACTION FOR DAMAGES AGAINST MANUFACTURERS OF GOODS 271 272 273

Action for damages against manufacturers of goods …. Damages that may be recovered by action against manufacturers of goods …. Time limit for actions against manufacturers of goods ….

[15,865] [15,870] [15,875]

DIVISION 3 — MISCELLANEOUS 274 275 276 276A 277

Indemnification of suppliers by manufacturers …. Limitation of liability etc …. This Part not to be excluded etc by contract …. Limitation in certain circumstances of liability of manufacturer to seller …. Representative actions by the regulator ….

[15,880] [15,885] [15,890] [15,895] [15,900]

PART 5-5 — LIABILITY OF SUPPLIERS AND CREDIT PROVIDERS

DIVISION 1 — LINKED CREDIT CONTRACTS 278 279 280 281 282 283 284 285 286

Liability of suppliers and linked credit providers relating to linked credit contracts …. Action by consumer to recover amount of loss or damage …. Cases where a linked credit provider is not liable …. Amount of liability of linked credit providers …. Counter-claims and offsets …. Enforcement of judgments etc …. Award of interest to consumers …. Liability of suppliers to linked credit providers, and of linked credit providers to suppliers …. Joint liability proceedings and recovery under section 135 of the National Credit Code ….

[15,905] [15,910] [15,915] [15,920] [15,925] [15,930] [15,935] [15,940] [15,945]

DIVISION 2 — NON-LINKED CREDIT CONTRACTS 287

Liability of suppliers and credit providers relating to non-linked credit contracts ….

[15,950]

CHAPTER 6 — APPLICATION AND TRANSITIONAL PROVISIONS PART 1 — APPLICATION AND TRANSITIONAL PROVISIONS RELATING TO THE CONSUMER CREDIT LEGISLATION AMENDMENT (ENHANCEMENTS) ACT 2012 288

Application of amendments relating to lay-by

289 290

agreements …. Application of amendment relating to repairs …. Saving of regulations relating to repairs ….

[15,955] [15,960] [15,965]

[page 87]

Competition and Consumer Act 2010 TABLE OF AMENDMENTS The Trade Practices Act 1974 No 51 received assent on 24 August 1974 and commenced on 1 October 1974. The Act as reproduced is based on the official reprint of 1 July 2012. The Act was renamed as the Competition and Consumer Act 2010, effective 1 January 2011. Since 29 February 1988, the Act has been amended by: Amending Legislation Statute Law (Miscellaneous Provisions) Act 1987 No 141 Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 No 8 Trade Practices Amendment Act 1988 No 20 Industrial Relations (Consequential Provisions) Act 1988 No 87 Circuit Layouts Act 1989 No 28 Trade Practices (International Liner Cargo Shipping)

Date of Assent 18 December 1987

Date of Commencement s 3 and Sch: 1 April 1989

5 April 1988

5 April 1988

11 May 1988

11 May 1988

8 November 1988

8 November 1988

22 May 1989

1 October 1990

30 May 1989

1 August 1989

Amendment Act 1989 No 34 Law and Justice Legislation Amendment Act 1989 No 11 Trade Practices (Misuse of Trans-Tasman Market Power) Act 1990 No 70 Trade Practices Amendment Act 1991 No 49 Industrial Relations Legislation Amendment Act 1991 No 122 Law and Justice Legislation Amendment Act 1991 No 136 Transport and Communications Legislation Amendment Act 1991 No 173 Special Broadcasting Service Act 1991 No 180 Law and Justice Legislation Amendment Act 1992 No 22

17 January 1990

14 February 1990

16 June 1990

1 July 1990

24 April 1991

21 December 1990

27 June 1991

10 December 1991

12 September 1991

10 October 1991

25 November 1991

25 November 1991

25 November 1991

23 December 1991

13 April 1992

13 April 1992

[page 88]

Amending Legislation

Date of Assent

Territories Law Reform Act 1992 No 104

30 June 1992

Trade Practice Amendment 9 July 1992 Act 1992 No 106 Broadcasting Services (Transitional Provisions and 9 July 1992

Date of Commencement ss 1, 2: 30 June 1992; s 24 and Sch: 1 July 1992 9 July 1992 s 30 and Sch 2: 5

Consequential Amendments) Act 1992 No 105 Trade Practices Legislation Amendment Act 1992 No 24 December 1992 222 Industrial Relations Reform Act 1993 No 98

22 December 1993

Insurance Laws Amendment 7 April 1994 Act (No 2) 1994 No 49 Law and Justice Legislation Amendment Act (No 2) 1994 28 November 1994 No 141 Competition Policy Reform Act 1995 No 88 Statute Law Revision Act 1996 No 43 Workplace Relations and Other Legislation Amendment Act 1996 No 60 Trade Practices Amendment (Industry Access Codes) Act 1997 No 28 Trade Practices Amendment (Telecommunications) Act 1997 No 58 Audit (Transitional and Miscellaneous) Amendment Act 1997 No 152 Telecommunications Legislation Amendment Act 1997 No 200 Trade Practices Amendment

20 July 1995

October 1992

21 January 1993 Pt 1: 22 December 1993; Pt 6 and Sch 3: 30 March 1994 ss 1, 2, 3 and Sch: 7 April 1994 ss 1, 2, 3 and Sch 1 items 21–26: 28 November 1994 Pts 1, 2, 7, Pt 5 Div 2: 17 August 1995; Pt 3: 6 November 1995; Pt 5 Div 1, Pt 6: 21 July 1996

25 October 1996

25 October 1996

25 November 1996

Sch 17: 17 January 1997

10 April 1997

10 April 1997

30 April 1997

30 April 1997

24 October 1997

1 January 1998

16 December 1997

Sch 2 items 30–34: 30 April 1997

(Fair Trading) Act 1998 No 22 April 1998 36 Financial Sector Reform (Consequential 29 June 1998 Amendments) Act 1998 No 48 Gas Pipelines Access (Commonwealth) Act 1998 30 July 1998 No 101 Trade Practices Amendment (Country of Origin 30 July 1998 Representations) Act 1998 No 106 Telecommunications Legislation Amendment Act 5 July 1999 1999 No 52

Sch 1: 22 April 1998; Sch 2: 1 July 1998

1 July 1998

30 July 1998

30 July 1998; Sch 1: 13 August 1998 ss 1, 2, 3 and Sch 1: 5 July 1999; Schs 2, 3: 2 August 1999; Sch 4: 1 July 1999 [page 99]

Amending Legislation

Date of Assent

A New Tax System (Trade Practices Amendment) Act 8 July 1999 1999 No 61 Public Employment (Consequential and 11 November 1999 Transitional) Amendment Act 1999 No 146 A New Tax System (Indirect Tax and Consequential 22 December 1999 Amendments) Act 1999 No 176 Federal Magistrates

Date of Commencement 9 July 1999

5 December 1999

22 December 1999

(Consequential 23 December 1999 Amendments) Act 1999 No 194 Jurisdiction of Courts Legislation Amendment Act 30 May 2000 2000 No 57 A New Tax System (Trade Practices Amendment) Act 2000 No 69 Trade Practices Amendment (International Liner Cargo Shipping) Act 2000 No 123 Jurisdiction of Courts (Miscellaneous Amendments) Act 2000 No 161 Treasury Legislation Amendment (Application of Criminal Code) Act (No 1) 2001 No 31 Communications and the Arts Legislation Amendment Act 2001 No 46

22 June 2000

5 October 2000

ss 1–3, Schs 1 (items 77–90), 2, 5: 30 May 2000 Sch 2 item 1: 6 November 1995; Sch 2 item 2: 10 April 1997; remainder: 22 June 2000 ss 1–3, Sch 1 Pt 1: 2 November 2000; Sch 1 Pt 2: 2 March 2001

21 December 2000

21 December 2000

28 April 2001

15 December 2001

5 June 2001

5 June 2001

Corporations (Repeals, Consequentials and Transitionals) Act 2001 No 55

28 June 2001

Trade Practices Amendment Act (No 1) 2001 No 63

28 June 2001

Treasury Legislation Amendment (Application of

23 December 1999

18 September 2001

s 3 and Sch 3 (excluding items 65, 67, 146, 191, 296– 302, 438, 495 and 574–5): 15 July 2001 Sch 1 items 1–3, 6–8: 15 December 2001; remainder: 26 July 2001 15 December 2001

Criminal Code) Act (No 3) 2001 No 117 Financial Services Reform (Consequential Provisions) Act 2001 No 123

27 September 2001

Trade Practices Amendment (Telecommunications) Act 27 September 2001 2001 No 124 Treasury Legislation Amendment (Application of 1 October 2001 Criminal Code) Act (No 2) 2001 No 146

Sch 3 items 364, 364A–364D, 365, 365A, 365B: 11 March 2002 27 September 2001

15 December 2001

[page 100]

Amending Legislation

Date of Assent

Statute Law Revision Act 2002 No 63

3 July 2002

Trade Practices Amendment Act (No 1) 2002 No 128 Telecommunications Competition Act 2002 No 140 Trade Practices Amendment (Liability for Recreational Services) Act 2002 No 146 Maritime Legislation Amendment Act 2003 No 7 Industry, Tourism and

Date of Commencement Sch 1 items 33–35, 38: 1 July 1999 (retrospective commencement); Sch 1 items 36, 37: 3 July 2002

11 December 2002

11 December 2002

19 December 2002

19 December 2002

19 December 2002

19 December 2002

19 March 2003

Sch 2: 19 March 2003

Resources Legislation 11 April 2003 Amendment Act 2003 No 21 Trade Practices Legislation Amendment Act 2003 No 17 December 2003 134 Postal Services Legislation 22 June 2004 Amendment Act 2004 No 69 Corporate Law Economic Reform Program (Audit 30 June 2004 Reform and Corporate Disclosure) Act 2004 No 103 Trade Practices Amendment (Australian Energy Market) 30 June 2004 Act 2004 No 108 Trade Practices Amendment (Personal Injuries and Death) 13 July 2004 Act (No 2) 2004 No 113 Treasury Legislation Amendment (Professional 13 July 2004 Standards) Act 2004 No 118 Australian Communications and Media Authority (Consequential and 1 April 2005 Transitional Provisions) Act 2005 No 45

Sch 1 items 15–29: 12 April 2003 1 March 2004 (Gaz GN 8 of 25 February 2004 p 439) 22 June 2004 Sch 3 items 5–6: 26 July 2004 (Gaz GN 28 of 14 July 2004 p 2157) 23 May 2005

13 July 2004

13 July 2004

Schs 1, 2: 1 July 2005

Telecommunications Legislation Amendment 23 September 2005 (Competition and Consumer Issues) Act 2005 No 119

Schs 4–6, 9, 12, Sch 7 items 1–3, 5–12, 14– 19, 21–28: 24 September 2005; Sch 11: 1 January 2006

Workplace Relations Amendment (Work Choices) (Consequential 17 March 2006 Amendments) Regulations (No 1) 2006 SLI 50 of 2006

27 March 2006

Trade Practices Amendment 23 March 2006 (Personal Injuries and Death) Act 2006 No 11

0 April 2006

[page 101]

Amending Legislation

Date of Assent

Offshore Petroleum (Repeals and Consequential 29 March 2006 Amendments) Act 2006 No 17 Jurisdiction of the Federal Magistrates Court Legislation 6 April 2006 Amendment Act 2006 No 23 Energy Legislation 22 June 2006 Amendment Act 2006 No 60 Trade Practices Amendment (National Access Regime) 18 August 2006 Act 2006 No 92 Tax Laws Amendment (Repeal of Inoperative 14 September 2006 Provisions) Act 2006 No 101 Maritime Transport and Offshore Facilities Security Amendment (Security Plans 27 September 2006 and Other Measures) Act 2006 No 109 Trade Practices Legislation Amendment Act (No 1) 2006 6 November 2006 No 131

Date of Commencement 1 July 2008

Schs 1–4: 4 May 2006 Sch 1 and Sch 2[14]: 22 June 2006; Sch 2[1], [12], [13], [15], [16]: 23 May 2005 Sch 1: 1 October 2006 Sch 5: 14 September 2006

Sch 2[33]–[103]: 27 September 2006 Sch 10: 7 November 2006; Sch 11: 6 November 2006; remainder: 1 January 2007

Australian Energy Market Amendment (Gas 10 April 2007 Legislation) Act 2007 No 45 Broadcasting Legislation Amendment (Digital Radio) 28 May 2007 Act 2007 No 68 Corporations (NZ Closer Economic Relations) and 21 June 2007 Other Legislation Amendment Act 2007 No 85 Water (Consequential Amendments) Act 2007 No 3 September 2007 138 Trade Practices Legislation Amendment Act (No 1) 2007 24 September 2007 No 159 Trade Practices Amendment (Access Declarations) Act 20 March 2008 2008 No 7 Australian Energy Market Amendment (Minor 30 June 2008 Amendments) Act 2008 No 60 Trade Practices Legislation Amendment Act 2008 No 21 November 2008 116 Offshore Petroleum Amendment (Greenhouse 21 November 2008 Gas Storage) Act 2008 No 117 Trade Practices Amendment (Clarity in Pricing) Act 2008 25 November 2008 No 126

1 July 2008 Sch 1[178]–[182]: 29 May 2007; Sch 2[3]: 19 July 2007 Sch 3: 19 July 2007

3 March 2008

25 September 2007

20 March 2008

1 July 2008

22 November 2008

22 November 2008 ss 1–3: 25 November 2008; Sch 1: 25 May 2009; Sch 2: 26 November 2008

[page 102]

Amending Legislation

Date of Assent

Water Amendment Act 2008 8 December 2008 No 139 Australian Energy Market Amendment (AEMO and 26 March 2009 Other Measures) Act 2009 No 17 Fair Work (State Referral and Consequential and Other 25 June 2009 Amendments) Act 2009 No 54 Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 No 59

26 June 2009

Statute Stocktake (Regulatory and Other Laws) Act 2009 16 November 2009 No 111 Crimes Legislation Amendment (Serious and 19 February 2010 Organised Crime) Act (No 2) 2010 No 4 Statute Law Revision Act 1 March 2010 2010 No 8 Trade Practices Amendment (Australian Consumer Law) 14 April 2010 Act (No 1) 2010 No 44 Trade Practices Amendment (Infrastructure Access) Act

13 July 2010

Date of Commencement 15 December 2008 Sch 1[12], [14]: 27 March 2009; Sch 1[13]: opn on proc

1 July 2009 Sch 1 and Sch 2[1]– [49] and [52]–[53]: 24 July 2009; Sch 2[50] and [51]: 27 June 2009 17 November 2009

20 February 2010

1 March 2010 Sch 2 (Pts 1–6); Sch 4[3]: 15 April 2010; Sch 1; Sch 2 (Pt 7); Sch 4[4], [5]: 1 July 2010 14 July 2010

2010 No 102 Trade Practices Amendment (Australian Consumer Law) 13 July 2010 Act (No 2) 2010 No 103 Telecommunications Legislation Amendment 15 December 2010 (Competition and Consumer Safeguards) Act 2010 No 140 Financial Framework Legislation Amendment Act 17 December 2010 2010 No 148 Statute Law Revision Act 22 March 2011 2011 No 5 Telecommunications Legislation Amendment (National Broadband 12 April 2011 Network Measures — Access Arrangements) Act 2011 No 23* Acts Interpretation 27 June 2011 Amendment Act 2011 No 46 Carbon Credits (Consequential Amendments) Act 2011 No 15 September 2011 102

1 January 2011 ss 1–3: on assent; Sch 1 Pt 1 Div 1, Pts 2 & 3: 1 January 2011; Sch 1, Pt 1, Div 3, items 66 and 67: 6 March 2012 ss 1–3: on assent; Sch 6: 18 December 2010 Sch 7 items 28–39: 19 April 2011 Sch 1 items 25–83: 13 April 2011; Sch 1 items 89–114: 12 April 2012 27 December 2011 ss 1–3: on assent; Sch 1: 8 December 2011

[page 103]

Amending Legislation

Date of Assent

Australian Energy Market Amendment (National

14 October 2011

Date of Commencement ss 1–3: 14 October 2011; Sch 1: 1 July 2012; Sch 2 items 1– 11 and 14–25: 1 July

Energy Retail Law) Act 2011 No 119

Clean Energy (Consequential Amendments) Act 2011 No 18 November 2011 132 Competition and Consumer Legislation Amendment Act 6 December 2011 2011 No 184 Competition and Consumer Amendment Act (No 1) 2011 6 December 2011 No 185 Telecommunications Legislation Amendment 16 April 2012 (Universal Service Reform) Act 2012 No 44 Statute Law Revision Act 22 September 2012 2012 No 136 Australian Charities and Notfor-profits Commission (Consequential and 3 December 2012 Transitional) Act 2012 No 169 Consumer Credit Legislation Amendment (Enhancements) 17 September 2012 Act 2012 No 130 Statute Law Revision Act 2013 No 103 Competition and Consumer Amendment Act 2013 No 104 Federal Circuit Court of Australia (Consequential

2012; Sch 2 items 12–13: 1 July 2012 (paragraph (a) applies) 2 April 2012; Sch 1 Pt 2 (items 258B–258D: 1 July 2012 ss 1–3: on assent; Sch 1: 6 February 2012; Sch 2: 1 January 2012 6 June 2012 1 July 2012 (Gaz GN 16 of 24 April 2012 p 963) Sch 1 items 31–36: 22 September 2012 Sch 2 items 160–168: 3 December 2012

18 September 2012

29 June 2013

Sch 1 item 32, Sch 3 items 69–74: 29 June 2013

29 June 2013

30 June 2013 Sch 1 items 87–92,

Amendments) Act 2013 No 14 March 2013 13 Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 No 62 Clean Energy Legislation (Carbon Tax Repeal) Act 2014 No 83 Competition and Consumer Amendment (Industry Code Penalties) Act 2014 No 107 Omnibus Repeal Day (Autumn 2014) Act 2014 No 109 Acts and Instruments (Framework Reform) Act 2015 No 10

Sch 2 item 1: 12 April 2013

30 June 2014

Sch 5 items 111, 112, Sch 6 item 35: 1 July 2014

17 July 2014

Sch 2: 18 July 2014

24 September 2014

1 January 2015

16 October 2014

Sch 2 items 2–4, 112, 113, 187: 17 October 2014

5 March 2015

Sch 3 items 68–75: 5 March 2016

[page 104]

Amending Legislation

Date of Assent

Telecommunications Legislation Amendment 13 April 2015 (Deregulation) Act 2015 No 38 Acts and Instruments (Framework Reform) 10 September 2015 (Consequential Provisions) Act 2015 No 126 Treasury Legislation

Date of Commencement Sch 1 items 7–10: 1 July 2015

Sch 1 items 128–148: 5 March 2016

Amendment (Small Business 12 November 2015 and Unfair Contract Terms) Act 2015 No 147 Statute Law Revision Act (No 11 February 2016 1) 2016 No 4 Competition and Consumer Amendment (Payment 25 February 2016 Surcharges) Act 2016 No 9 Courts Administration Legislation Amendment Act 18 March 2016 2016 No 24 Territories Legislation 29 March 2016 Amendment Act 2016 No 33 Statute Update Act 2016 No 61

23 September 2016

Sch 1 items 19–47: 12 November 2016 Sch 4 items 66–68; Sch 5 item 4: 10 March 2016 25 February 2016

1 July 2016 1 July 2016 Sch 1 items 152–153; Sch 3 items 13–14: 21 October 2016

* Editor’s note: Schedule 1 [104] and [106] of Act 23 of 2011 proposed amendments to ss 152BCB and 152BDA, as these proposed amendments were misdescribed they are not incorporated into the Act.

[page 95] AN ACT relating to competition, fair trading and consumer protection, and for other purposes PART I — PRELIMINARY INTRODUCTION TO PART I [10,005.5] Overview This Part contains preliminary matters (including definitions and application provisions) that are used in subsequent parts of the Act. Australia’s first trade practices law was the Australian Industries Preservation Act 1906. It was modelled almost completely on ss 1 and 2 of the Sherman Act 1890 (USA). In Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 the High Court found the Act invalid as exceeding the corporations power in the Constitution and in attempting to regulate intrastate trade reserved to the states. The Trade Practices Act 1965 was subsequently enacted and was based on the Restrictive Trade Practices Act 1956 (UK). The 1965 Act was also found invalid on constitutional grounds in Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468; [1972] ALR 3. The Restrictive Trade Practices Act 1971 operated as an interim measure pending the introduction of the Trade Practices Act 1974. With some amendments, the 1974 Act continues to this day. The Act commenced on 1 October 1974, with the exception of the provisions relating to anti-competitive contracts, arrangements and understandings (s 45), exclusive dealing (s 47) and price discrimination (s 49). These provisions commenced on 1 February 1975. The delayed commencement was to give businesses time to ensure that their activities did not contravene the Act. The name of the Act was changed from the Trade Practices Act 1974 to the Competition and Consumer Act 2010 on 1 January 2011 by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010. The Australian Consumer Law introduced a uniform national consumer law, drawing on the consumer protection provisions of the Trade Practices Act and features from State and Territory Fair Trading Acts. See Competition and Consumer Act 2010 Sch 2. [10,005.10] Review and reform of the Act The Trade Practices Review Committee (the Swanson Committee) conducted a general review of the Act in 1976. In 1979 the Trade Practices Consultative Committee (the Blunt Committee) examined the impact of the Act on small business. In 1988 the House of Representatives Standing Committee on Legal and Constitutional Affairs (the Griffiths Committee) reviewed the misuse of market power provision (s 46) and the adequacy of the merger provision (s 50). In 1991 the Senate Standing Committee on Legal and Constitutional Affairs (the Cooney Committee) released its report on mergers and monopolies. Of most significance was its recommendation for an increase in pecuniary penalties to $10 million and the replacement of the dominance test in s 50 with a substantial lessening of competition test. Both recommendations have been incorporated. In October 1992 the then Prime Minister, Paul Keating, asked a committee chaired by Professor

Frederick Hilmer to undertake a review into national competition policy. In August 1993, the committee delivered its report — Report of the Independent Committee of Inquiry: National Competition Policy. At the federal level the report recommended a number of amendments to Pt IV of the Act (the Competitive Conduct Rules); the establishment of new institutions, such as the Australian Competition Council; a new access regime to allow third party access to essential infrastructure; and the development of national markets in electricity, gas and water. [page 96] At the state level it recommended that the Act apply to all entities and that the states and territories give effect to broader reforms in the areas of legislative review, structural reform of public monopolies, competitive neutrality, prices oversight, access and the application of all of these principles to local government. Many of the Hilmer Committee’s recommendations were incorporated in the Competition Policy Reform Act 1995. The Act received the royal assent on 20 July 1995. On 11 April 1995, the Commonwealth, states and territories signed three historic agreements: the Conduct Code Agreement, the Competition Policy and Related Reforms Agreement, and the Competition Principles Agreement. Together they represent the agreement of the parties to implement many of the recommendations of the Hilmer Committee, particularly the universal application of the Act and broader structural reforms. In June 2000 the Productivity Commission was asked to inquire and report on the operation of Pts XIB and XIC. In its report Telecommunications Competition Regulation, 21 September 2001, the Productivity Commission made a number of recommendations including the retention of the anticompetitive conduct provisions of Pt XIB, amendment to the process for declaring telecommunications services and the inclusion of access pricing principles. In August 2002 the Productivity Commission released its report Review of Section 2D of the Trade Practices Act 1974: Local Government Exemptions. In its report the Productivity Commission recommended that Pt IV of the Act apply to a local government body, to the extent that it carries on a business and that s 2D be repealed. On 17 September 2002 the government released the Productivity Commission’s report, Review of the National Access Regime. The report made a number of recommendations for reform aimed, among other things, at facilitating investment in essential infrastructure. In May 2002 a committee chaired by former High Court Justice Sir Daryl Dawson was asked to review the competition provisions of the Act. In March 2003 the committee delivered its report, Review of the Competition Provisions of the Trade Practices Act. The public release of the report was delayed so that the government could release its response to the committee’s recommendations at the same time. The committee made a number of recommendations including: a voluntary formal clearance process for mergers; applications for merger authorisations to be made directly to the tribunal; a notification process for collective bargaining arrangements; the possibility of criminal sanctions for cartel behaviour; pecuniary penalties linked to the gains from a contravention of 10 per cent of turnover; and a media code of conduct for the commission. In March 2004 the Senate Economics References Committee released its report, The Effectiveness of the Trade Practices Act 1974 in Protecting Small Business. In its report the committee recommended amendments to s 46 and to the unconscionable conduct provisions. It also recommended the introduction of a collective bargaining notification scheme, powers for the Commission to address creeping acquisitions, and to issue cease-and-desist orders. On 23 April 2004 the Productivity Commission was asked to consider the impact of National Competition Policy and related reforms undertaken by Australian, state and territory governments on the Australian economy and the Australian community more broadly and to examine areas offering

opportunities for significant gains to the Australian economy from removing impediments to efficiency and enhancing competition, including through a possible further legislation review and reform programme, together with the scope and expected impact of these competition-related reforms. In its report, Review of National Competition Policy Reforms, 28 February 2005, the Productivity Commission recommended completion of outstanding National Competition Policy reforms in energy, water and transport; removal of restrictions on the number of commercial free-to-air TV stations; review of telecommunications regulation prior to the sale of Telstra; a national review into consumer protection policy; a review of Australia’s health care system; and a more targeted process of legislation review. [page 97] On 29 June 2004 the treasurer requested that the Productivity Commission undertake a study examining the potential for greater cooperation, coordination and integration of the general competition and consumer protection regimes in Australia and New Zealand. In its research report Australia New Zealand Competition & Consumer Protection Regimes in October 2004 the Productivity Commission recommended measures to enable the Australian and New Zealand regulators to gather and exchange information and to further enhance their cooperation and coordination, including operational, enforcement and research activities. On 23 June 2003 the Productivity Commission was directed to inquire and report on the appropriate arrangements for regulation of international liner cargo shipping services. In its final report, Review of Part X of the Trade Practices Act: International Liner Cargo Shipping, October 2004, the Productivity Commission recommended a number of options ranging from the repeal of Pt X (in favour of the general application of competition laws) to modifying the operation of Pt X, should it be retained. On 10 February 2006, the Council of Australian Governments (COAG) agreed to progress a new national reform agenda in the areas of competition, infrastructure regulation, energy, health services (including mental health) and education and training. In the area of competition reform, COAG recommitted to the principles in the 1995 Competition Principles Agreement and agreed to review the 1995 Conduct Code Agreement to streamline and introduce greater certainty to the processes for appointments to the commission and amendments to Pt IV of the Act. At its meeting, governments also signed the Competition and Infrastructure Reform Agreement 2006. It provides for simpler and consistent regulation of significant infrastructure (including in relation to access under Pt IIIA of the Act), a simpler and consistent national system of rail access regulation, port competition and the application of competitive neutrality principles to government business enterprises. COAG also agreed in principle to replace the National Competition Council with a new COAG Reform Council (CRC) intended to absorb the Pt IIIA access functions of the National Competition Council. See [10,460.5]. COAG reaffirmed its commitment to progress the national reform agenda at its meetings on 14 July 2006, 13 April 2007 and 26 March 2008. The CRC commenced in June 2007. In December 2007, the commission released to the minister the report of its inquiry into the price of unleaded petrol. See [11,915H.5]. At its 26 March 2008 meeting, COAG reaffirmed its commitment to the national reform agenda. COAG agreed to 27 areas of regulatory reform to be achieved in 2008, in addition to its existing competition reform agenda. COAG agreed that its working group would report by the end of 2008 on new areas of competition reform including models for the future regulation of national markets such as water trading, the energy market, consumer policy and regulation affecting workforce mobility. COAG also agreed to an expanded role for the CRC. To assist the CRC, COAG agreed to the

Productivity Commission reporting to COAG on the economic impacts and benefits of COAG’s reform agenda every 2 to 3 years. On 30 April 2008 the Productivity Commission released a report of its review of Australia’s consumer policy framework. It is the first substantive review of Australia’s consumer law since 1984. The inquiry follows the recommendations of the Australian Government Taskforce on Reducing Regulatory Burden on Business, and the Productivity Commission’s Review of National Competition Policy Reforms (No 33) of April 2005. See [10,925.5]. On 22 January 2008 the Assistant Treasurer and Minister for Competition Policy and Consumer Affairs requested the commission hold a public inquiry into the competitiveness of retail prices for standard groceries. The commission released its report in July 2008. The commission recommended that all levels of government consider ways in which zoning and planning laws and decisions in respect of individual planing applications where additional [page 98] retail space for the purpose of operating a supermarket is contemplated, should have specific regard to the likely impact of the proposal on competition between supermarkets in the area. The commission also recommended that a mandatory, nationally consistent unit pricing regime be introduced for standard grocery items for both in-store price labels and print advertising for significant supermarket stores. In August 2008 the Minister for Competition Policy and Consumer Affairs announced that the government would move on these issues as a matter of urgency. The minister also announced that the government would implement a creeping acquisitions law. On 1 September 2008 the government released an issues paper on creeping acquisitions and on 12 September 2008 it released an issues paper on unit pricing. See [10,690.5], [10,925.5]. On 2 December 2009, the Treasury released the final report of the Commonwealth Consumer Affairs Advisory Council, entitled Consumer Rights: Reforming Statutory Implied Conditions and Warranties, October 2009. It recommended the creation of statutory consumer guarantees. See [10,925.5]. On 3 March 2010, the Hon Dr Craig Emerson MP released the report of an expert panel, entitled Strengthening Statutory Unconscionable Conduct and the Franchising Code of Conduct, February 2010. The report made a number of findings in relation to both unconscionable conduct and the Franchising Code of Conduct. See [10,850.5]. In October 2013, the Productivity Commission released its Report on the National Access Regime, Report No 66. The government released its response in November 2015. See [10,690.5]. Following the September 2013 federal election, the new coalition government appointed Professor Ian Harper to undertake a review of competition policy. Professor Harper’s committee delivered its draft report in September 2014 and its final report in March 2015. The review is the most comprehensive of its kind since the Hilmer report of 1993. The government released its response in November 2015. See [10,690.5]. [10,005.15] International arbitration Rights granted under the Act are important considerations in determining whether stays should be granted under the International Arbitration Act 1974: Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1102; BC200505922 at [73] per Allsop J; Pan Australia Shipping Pty Ltd v Ship Comandate (2006) ATPR ¶42-125; [2006] FCA 881; BC200605233 at [39] per Rares J. See also Commandate Marine Corporation v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; BC200610833. See Passlow v Butmac Pty Ltd [2012] NSWSC 225; BC201201446 per Adamson J. [10,005.20] Foreign State Immunity

For a discussion of the application of the Foreign States

Immunities Act 1985 to claims under this law, see PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (ACCC) (2012) 290 ALR 681; 86 ALJR 1071; [2012] HCA 33; BC201206651 per French CJ, Gummow, Hayne, Heydon and Crennan JJ. See also Australian Competition and Consumer Commission v Air New Zealand Ltd [2014] FCA 1157; BC201411318 per Perram J.

____________________

[10,007] 1

Short title

This Act may be cited as the Competition and Consumer Act 2010.

[s 1 am Act 103 of 2010 s 3 and Sch 5[2], opn 1 Jan 2011]

[10,010]

Object of this Act

2 The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection. [s 2 insrt Act 88 of 1995 s 3]

[page 99] SECTION 2 GENERALLY [10,010.5] Overview This objects clause was inserted by the Competition Policy Reform Act 1995. It recognises the dual role of the Act to promote competition and efficiency together with consumer protection. The objects of the Act suggest that the Act should not be construed narrowly nor should the words of the Act be stretched beyond their limits: Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; 158 ALR 333; (1998) ATPR ¶41-665 at 41,414. The name of the Act was changed from the Trade Practices Act 1974 to the Competition and Consumer Act 2010 on 1 January 2011 by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010. The objects were not amended by the name change. ____________________

[10,015] Application of Act to Commonwealth and Commonwealth authorities 2A (1) Subject to this section and sections 44AC, 44E and 95D, this Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth. [subs (1) am Act 88 of 1995 s 35; Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004; Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

(2) Subject to the succeeding provisions of this section, this Act applies as if: (a) the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and (b) each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Commonwealth) in so far as it carries on a business; were a corporation. (3) Nothing in this Act makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence. [subs (3) subst Act 88 of 1995 s 80]

(3A) The protection in subsection (3) does not apply to an authority of the Commonwealth. [subs (3A) insrt Act 88 of 1995 s 80]

(4) Pt IV does not apply in relation to the business carried on by the Commonwealth in developing, and disposing of interests in, land in the Australian Capital Territory. SECTION 2A GENERALLY [10,015.5] Overview This section provides that the Act will bind the Crown in right of the Commonwealth in so far as it carries on a business. This is achieved by s 2A(2), which deems the Commonwealth and its authorities (in so far as they carry on a business) to be corporations for the purposes of the Act: s 2A(2). The purpose of s 2A is to ensure that the Commonwealth government (in its commercial activities) is subject to the same regime as corporations: See

NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [66] per McHugh ACJ, Gummow, Callinan and Heydon JJ. The Crown is not liable to a pecuniary penalty or to be prosecuted for an offence. The Crown is not bound by Pt IV of the Act to the extent that the business activities involve the development or disposal of land in the Australian Capital Territory: s 2A(4). [page 100] [10,015.10] Crown The Crown is synonymous with the executive arm of government: NT Power Generation Pty Ltd v Power and Water Authority (2002) 122 FCR 399; [2002] FCAFC 302; BC200205789 at [160] per Finkelstein J; NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [163] per McHugh ACJ, Gummow, Callinan and Heydon JJ; McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 221 ALR 285; [2005] HCA 55; BC200507284 at [22] per McHugh, Gummow and Heydon JJ; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512; (2007) ATPR ¶42-172; [2007] HCA 38; BC200707216 at [39] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. It includes government departments that discharge functions under ministerial authority. It is the degree of ministerial control of an entity which characterises it as the Crown: see P W Hogg and P J Monahan, Liability of the Crown, 3rd ed, Carswell, Canada, 2000, p 11; NT Power Generation Pty Ltd v Power and Water Authority, above, at [126] per Finkelstein J; Australian Competition and Consumer Commission (ACCC) v Australian Egg Corp Ltd [2016] FCA 69; BC201600514 per White J. The utilisation of a body corporate incorporated under a general enactment for the incorporation of companies rather than a body corporate established by statute does not of itself suggest that the body corporate is not intended to have crown immunity. However, it is harder to identify the necessary intention where a general enactment is relied on: NT Power Generation Pty Ltd v Power and Water Authority, above, at [165] per McHugh ACJ,

Gummow, Callinan and Heydon JJ. A finding that a body is representative of the Crown does not necessarily carry with it the privileges and immunities of the Crown: McNamara (McGrath) v Consumer Trader and Tenancy Tribunal, above, at [43] per McHugh, Gummow and Heydon JJ. [10,015.15] Ministerial immunity A minister is entitled to the immunity given by s 2A if the minister’s conduct is undertaken for and on behalf of the Commonwealth: Batten v CTMS Ltd [1999] FCA 1576; BC9907364. [10,015.20] “in so far as” carrying on a business The Act applies only in so far as the Commonwealth carries on a business. This suggests that the Commonwealth is bound only where the conduct complained of is engaged in, in the course of carrying on the business. Persons dealing with the Commonwealth in relation to the actual conduct of a business will have the same protection as when dealing with a private trader who is carrying on such a business but will not have protection when entering into other dealings with the Commonwealth: JS McMillan Pty Ltd v Commonwealth (1997) 77 FCR 337; 147 ALR 419; (1997) ATPR (Digest) ¶46-175; NT Power Generation Pty Ltd v Power and Water Authority (2001) 184 ALR 481; (2001) ATPR ¶41-814; [2001] FCA 334; BC200101353; (appeal) NT Power Generation Pty Ltd v Power and Water Authority (2002) 122 FCR 399; [2002] FCAFC 302; BC200205789 at [6] per Lee J; Sirway Asia Pacific Pty Ltd v Commonwealth (2002) ATPR (Digest) ¶46-226; [2002] FCA 1152; BC200205419 at [55] per Sundberg J. [10,015.25] “business”

See [10,025.20].

[10,015.30] “authority of the Commonwealth”

See [10,025.10].

[10,015.35] Derivative Crown immunity Until the High Court’s decision in Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512; (2007) ATPR ¶42-172; [2007] HCA 38; BC200707216 it had been held that the immunity that attaches to the Crown would extend to persons with whom the Crown had dealings: what might be termed “derivative immunity”: Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107; 24 ALR 9 (Bradken); Australian Competition and Consumer Commission v Australian Medical

Assn Western Australia Branch Inc (2003) 199 ALR 423; [2003] FCA 686; BC200303666 at [410] per Carr J. [page 101] The principle extended to proprietary, contractual and other legal rights and interests: NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [170] per McHugh ACJ, Gummow, Callinan and Heydon JJ; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2005) ATPR ¶42-066; [2005] FCA 581; BC200504213 at [680] per Allsop J; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2006) 153 FCR 574; 232 ALR 627; [2006] FCAFC 128; BC200606554 per Mansfield, Dowsett and Gyles JJ. However, in Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512; (2007) ATPR ¶42-172; [2007] HCA 38; BC200707216 at [68] Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said that many of the conclusions in Bradken should now be regarded as too widely expressed and no longer accurately representative of the law: [68] Underlying this argument is the idea that the Act operated so as not to enact any law that would circumscribe the freedom of the Crown in right of a state or territory to make any kind of contract it wished, and, furthermore, that the Act preserved the Crown’s freedom in that respect, by providing that corporations dealing or negotiating with the Crown should be free to propose and make any kind of contract, unfettered by any constraint under the Act. These ideas cannot be supported by reference to any established principle of statutory construction, and they are impossible to reconcile with the purpose and subject-matter of the Act. It is one thing to read the Act so as not to divest the Crown of legal rights. It is another thing altogether to read the Act as giving an executive government (as distinct from a parliament acting under s 51(1)), including all its servants and agents, a freedom not enjoyed when the government itself is carrying on business, from any impact of laws enacted for the promotion of competition and fair trading in the public interest. And it is even more unlikely that that freedom extends to all persons dealing with that executive government.

In Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512; (2007) ATPR ¶42-172; [2007] HCA 38; BC200707216 at [75] Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said that the Act had changed materially since Bradken. The fact that the Act does not bind the Crown (except where it is involved in a business), does not require as a corollary that it does not bind persons having dealings with the

Crown. These persons will therefore not have the benefit of derivative immunity. ____________________

[10,017] Application of Act to States and Territories 2B (1) The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory: (a) Part IV; (aa) Part V; (b) Part XIB; (c) the other provisions of this Act so far as they relate to the above provisions. [subs (1) subst Act 58 of 1997 s 3 and Sch 1; am Act 61 of 1999 s 3 and Sch 1; Act 111 of 2009 s 3 and Sch 1[26], opn 17 Nov 2009; Act 83 of 2014 s 3 and Sch 2 item 1, opn 18 July 2014]

(2) Nothing in this Act renders the Crown in right of a State or Territory liable to a pecuniary penalty or to be prosecuted for an offence. (3) The protection in subsection (2) does not apply to an authority of a State or Territory. [s 2B insrt Act 88 of 1995 s 81]

[page 102] SECTION 2B GENERALLY [10,017.5] Overview This provision was inserted by the Competition Policy Reform Act 1995. It commenced on 21 July 1996. The provision was introduced following the recommendation of the Hilmer Committee that the Act apply to state and territory businesses to the same extent that it applies to Commonwealth businesses: See NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [21], [66] per McHugh ACJ, Gummow,

Callinan and Heydon JJ. The Crown in right of each of the states, the Northern Territory and the Australian Capital Territory are bound by Pts IV and XIB of the Act (and the other provisions of the Act that relate to these parts) so far as the Crown carries on a business. However, the Crown in right of a state or territory will not be liable to a pecuniary penalty or to be prosecuted for an offence. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee has recommended that the competition law provisions in the Act apply to the Crown in right of the Commonwealth, States and Territories (including local government) insofar as they undertake activity in trade and commerce. See [10,690.5]. [10,017.10] Crown

See [10,015.10].

[10,017.15] Application to the states The position until 21 July 1996 was that the Crown in right of a state was not bound by Pt IV because there was no express or implied intention that it should be bound: Bradken Consolidated Ltd v Broken Hill Pty Co Ltd (1979) 145 CLR 107; 24 ALR 9; BC7900047; F Sharkey and Co Pty Ltd v Fisher (1980) 50 FLR 130; Hawthorn Pty Ltd v State Bank of South Australia (1993) 40 FCR 137; 112 ALR 691; (1993) ATPR ¶41-219; Jellyn Pty Ltd v Horwath & Horwath (Qld) Pty Ltd (1993) ATPR ¶41-284 at 41,775; Jellyn Pty Ltd v State Bank of South Australia (1995) ATPR ¶41-404; Kinross v GIO Australia Holdings Ltd (1994) 55 FCR 210; 129 ALR 283; (1995) ATPR ¶41-402; Woodlands v Permanent Trustee Co (1996) ATPR ¶41-509. The immunity extended not only to the minister and the State Crown employees, but also to commercial contractors acting on behalf of the State Crown: New South Wales Bar Association v Forbes Macfie Hansen Pty Ltd (1988) ATPR ¶40-875; Woodlands v Permanent Trustee Co, above. In Bropho v Western Australia (1990) 171 CLR 1; 93 ALR 207; BC9002906 the High Court preferred an approach to construction which determines whether there is a legislative intent that the Crown is or is not intended to be bound without the application of any rigid rules of construction of the type applied in Bradken, above; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512; (2007) ATPR ¶42-172; [2007] HCA 38; BC200707216 at [39], [41] per

Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9; BC9901019 the majority of the High Court said that the question of whether “person” in ss 6(3) and 75B(1) of the Act extends to a state is a different question to whether the Act “binds the Crown in right of a State”. They said that the answer depends on a textual consideration rather than the presumption considered in Bradken and Bropho. There were indications in the judgment that the court would be prepared to re-examine the validity of the Bradken decision. This was most apparent in the minority judgment of Kirby J in which he said (at [99]): My conclusions leave to the future the considerations of a number of important questions raised by these appeals. They included whether the holdings in Bradken and in Commonwealth v Evans Deakin Industries Ltd [(1986) 161 CLR 254; 66 ALR 412] should be re-opened; whether at this stage in the understanding of the nature of a State of the Commonwealth, as provided for in the Constitution, it is appropriate to continue to treat it as an emanation of the Crown; and whether, in the Australian Commonwealth a State enjoys (as until now has been assumed) the immunity from suit historically attributed to the Crown as the personification of the sovereign.

[page 103] In Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512; (2007) ATPR ¶42-172; [2007] HCA 38; BC200707216 at [52] Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said that a number of the conclusions in Bradken, in light of the courts decision in Bropho, should now be considered as too widely expressed. In particular the extent of derivative immunity gained by persons who have dealings with the Crown. See [10,015.11]. Section 2B was introduced on 21 July 1996. It now expressly provides that the Crown in right of each of the states is bound by the provisions of the Act listed in s 2B(1), in so far as the Crown carries on a business. On the introduction of s 2B, the conclusion reached in Bradken was reversed in so far as the Crown carries on a business, but reinforced in so far as the Crown is not carrying on a business: Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512; (2007) ATPR ¶42-172; [2007] HCA 38; BC200707216 at [43] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. See also McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 221 ALR 285; [2005] HCA 55;

BC200507284 per McHugh, Gummow and Heydon JJ; see Eden Construction Pty Ltd v New South Wales (No 2) [2007] FCA 689; BC200703398 at [446] per Graham J. See Auswest Timbers Pty Ltd v Secretary to Dept of Sustainability and Environment (2010) 241 FLR 360; [2010] VSC 389; BC201006317 per Croft J. See Mason v MWREDC Ltd (2011) 199 FCR 151; [2011] FCA 1512; BC201109869 per Greenwood J. [10,017.20] Application to the territories The position until 21 July 1996 was that the Crown in right of a territory (except the Australian Capital Territory) was not bound by Pt IV because there was no express or implied intention that it should be bound: Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 18 FCR 212; 76 ALR 173; (1988) ATPR ¶40835. The Full Federal Court said (ALR at 177): That the Crown in right of the Commonwealth is distinct from the Crown in right of a Territory of the Commonwealth was recognised by Dixon J in Faithorn v Territory of Papua (1938) 60 CLR 772 at 792; see also R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439, per Wilson J (CLR at 279; ALR at 527) and per Aickin J (CLR at 265-6; ALR at 515-16). This distinction exists at every stage of the political and economic development of the Territory (cf Berwick Ltd v Gray (1976) 133 CLR 603; 8 ALR 580 per Mason J at 607). The Crown in the right of the Northern Territory is not mentioned in s 2A of the Act: cf the references to “the Crown in right of the Northern Territory” in the Copyright Act 1968 (Cth) s 10(1) and the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3(6) and s 3B. The question then is whether, as a matter of necessary implication, the Crown in that right was intended to be bound. In our view, there is no basis for such an implication. If anything, the indications in the statute are to the contrary. The Crown in right of the Commonwealth is specifically mentioned, as is the Australian Capital Territory. As a matter of construction, the absence of any reference to the Crown in the right of the Northern Territory leads, we think, to the conclusion that it was not intended to be bound: see Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd [(1979) 145 CLR 107; 24 ALR 9] per Mason and Jacobs JJ (CLR at 136; ALR at 32). It is to be observed that by s 2A(4), it is provided that Pt IV of the Act does not apply to certain of the Commonwealth’s activities in the Australian Capital Territory. If the applicants’ argument were right, the Northern Territory would be bound by the whole of the Act including Pt IV, whereas the Crown in right of the Australian Capital Territory would not be bound by Pt IV — a curious, and surely unintended result: cf Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297; 35 ALR 151 per Mason and Wilson JJ (CLR at 320-1; ALR at 169-70). Further, there is nothing in the mischief sought to be remedied by s 2A, as explained in the second reading speech, which would indicate that the Crown in right of the Northern Territory was intended to be bound by the Act. The object of s 2A was to subject the Commonwealth to [page 104] the provisions of the Act in respect of its business activities. There is no indication that the Parliament had the business activities of the Northern Territory administration in contemplation in

introducing s 2A, especially since self-government for the Territory was then imminent.

Section 2B was introduced on 21 July 1996. It now expressly provides that the Crown in right of the Northern Territory and the Australian Capital Territory is bound by the provisions of the Act listed in s 2B(1), in so far as the Crown carries on a business. See NT Power Generation Pty Ltd v Power and Water Authority (2001) 184 ALR 481; (2001) ATPR ¶41-814; [2001] FCA 334; BC200101353; (appeal) NT Power Generation Pty Ltd v Power and Water Authority (2002) 122 FCR 399; [2002] FCAFC 302; BC200205789; NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 per McHugh ACJ, Gummow, Callinan and Heydon JJ; see Eden Construction Pty Ltd v New South Wales (No 2) [2007] FCA 689; BC200703398 at [446] per Graham J. See [10,017.15]. [10,017.25] “so far as” carrying on a business This section provides that the Act will bind the Crown in right of the states, the Northern Territory and the Australian Capital Territory in so far as it carries on a business. However, the conduct need not itself be the actual business engaged in: NT Power Generation Pty Ltd v Power and Water Authority (2002) 122 FCR 399; [2002] FCAFC 302; BC200205789 at [138] per Finkelstein J; (appeal) NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [67] per McHugh ACJ, Gummow, Callinan and Heydon JJ; RP Data Ltd v Queensland [2007] FCA 1639; BC200709278 at [52] per Collier J. The objects of the Act would be defeated if it were confined only to conduct which is itself the carrying on of business: NT Power Generation Pty Ltd v Power and Water Authority (2002), above, at [138] per Finkelstein J; (appeal) NT Power Generation Pty Ltd v Power and Water Authority (2004), above, at [71] per McHugh ACJ, Gummow, Callinan and Heydon JJ. The words “market” and “business” have distinct meanings. The question of whether an entity is carrying on a business should not be approached by reference to competition in a market: NT Power Generation Pty Ltd v Power and Water Authority (2004), above, at [70] per McHugh ACJ, Gummow, Callinan and Heydon JJ. The phrase “carries on business” should be interpreted in light of the purpose of Parliament introducing s 2B; which was to ensure that, with state and territory application legislation, the prohibitions against anti-competitive

conduct can be applied to all businesses in Australia: RP Data Ltd v Queensland, above, at [55] per Collier J. The provision is similar to s 2A and in principle there appears to be no reason why it should be construed differently: NT Power Generation Pty Ltd v Power and Water Authority, above, (2002) at [83] per Branson J. See [10,015.20]. [10,017.30] “business”

See [10,025.20].

[10,017.35] Derivative Crown immunity

See [10,015.35].

[10,017.40] Contracts made prior to 19 August 1994 Section 89 of the Competition Policy Reform Act 1995 provided for contracts made prior to 19 August 1994 to be disregarded to the same extent to which they would have been disregarded if the competition reforms of 1995 had not been introduced. However, if a contract made before 19 August 1994 is subsequently varied, then things done to give effect to the varied contract are not to be disregarded unless they would otherwise have been disregarded. The introduction of s 2B was not intended to displace this operation: NT Power Generation Pty Ltd v Power and Water Authority (2001) 184 ALR 481; (2001) ATPR ¶41-814 at 42,913–14; [2001] FCA 334; BC200101353; (appeal) NT Power Generation Pty Ltd v Power and Water Authority (2002) 122 FCR 399; [2002] FCAFC 302; BC200205789. ____________________ [page 105]

[10,017BA] Application of Part IV to local government bodies 2BA (1) Part IV applies in relation to a local government body only to the extent that it carries on a business, either directly or by an incorporated company in which it has a controlling interest. (2) In this section: local government body means a body established by or under a law of a

State or Territory for the purposes of local government, other than a body established solely or primarily for the purposes of providing a particular service, such as the supply of electricity or water. [s 2BA insrt Act 131 of 2006 s 3 and Sch 10[1], opn 7 Nov 2006]

SECTION 2BA GENERALLY [10,017BA.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendation of the Productivity Commission in its 2002 report, Review of Section 2D of the Trade Practices Act 1974: Local Government Exemptions.In its report the Productivity Commission recommended that Pt IV of the Act apply to a local government body, to the extent that it carries on a business and that s 2D be repealed. Section 2D exempted the internal transactions and licensing decisions of local government bodies from Pt IV of the Act. The Productivity Commission considered that local government bodies should be subject to Pt IV in relation to their business activities in a similar way to the states and territories, as the Hilmer Committee recommended. See [10,005.10]. The Trade Practices Amendment Act (No 1) 2006 repealed s 2D and inserted s 2BA that applies Pt IV to a local government body, to the extent that it carries on a business. Business activities are described in s 2C. ____________________

[10,018]

Activities that are not business

2C (1) For the purposes of sections 2A, 2B and 2BA, the following do not amount to carrying on a business: (a) imposing or collecting: (i) taxes; or (ii) levies; or (iii) fees for licences; (b) granting, refusing to grant, revoking, suspending or varying licences (whether or not they are subject to conditions); (c) a transaction involving: (i) only persons who are all acting for the Crown in the same

(ii) (iii) (iv) (v)

right (and none of whom is an authority of the Commonwealth or an authority of a State or Territory); or only persons who are all acting for the same authority of the Commonwealth; or only persons who are all acting for the same authority of a State or Territory; or only the Crown in right of the Commonwealth and one or more non-commercial authorities of the Commonwealth; or only the Crown in right of a State or Territory and one or more non-commercial authorities of that State or Territory; or [page 106]

(vi) only non-commercial authorities of the Commonwealth; or (vii) only non-commercial authorities of the same State or Territory; or (viii) only persons who are all acting for the same local government body (within the meaning of section 2BA) or for the same incorporated company in which such a body has a controlling interest; (d) the acquisition of primary products by a government body under legislation, unless the acquisition occurs because: (i) the body chooses to acquire the products; or (ii) the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products. [subs (1) am Act 131 of 2006 s 3 and Sch 10[2], [3], opn 7 Nov 2006]

(2) Subsection (1) does not limit the things that do not amount to carrying on a business for the purposes of sections 2A, 2B and 2BA. [subs (2) am Act 131 of 2006 s 3 and Sch 10[4], opn 7 Nov 2006]

(3) In this section: acquisition of primary products by a government body under legislation includes vesting of ownership of primary products in a government body by legislation.

government body means the Commonwealth, a State, a Territory, an authority of the Commonwealth or an authority of a State or Territory. licence means a licence that allows the licensee to supply goods or services. primary products means: (a) agricultural or horticultural produce; or (b) crops, whether on or attached to the land or not; or (c) animals (whether dead or alive); or (d) the bodily produce (including natural increase) of animals. (4) For the purposes of this section, an authority of the Commonwealth or an authority of a State or Territory is non-commercial if: (a) it is constituted by only one person; and (b) it is neither a trading corporation nor a financial corporation. [s 2C insrt Act 88 of 1995 s 81]

SECTION 2C GENERALLY [10,018.1] Overview Section 2C was amended by the Trade Practices Amendment Act (No 1) 2006, consequent on the insertion of s 2BA. The provision specifies activities that do not amount to carrying on a business. See Eden Construction Pty Ltd v New South Wales (No 2) [2007] FCA 689; BC200703398 at [446] per Graham J. [10,018.5] Non-business activities The mere doing of an act in s 2C(1) does not amount to carrying on a business if that is the only act that is relevantly undertaken. However, it does not assit if an entity undertakes a number of acts, some of which are not covered by s 2C: NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [100] per McHugh ACJ, Gummow, Callinan and Heydon JJ. The expression “business” is defined in s 4. See [10,025.20]. [10,018.10] Licences It is unlikely that the word “licence” in s 2C bears its dictionary meaning of a “formal permission or leave” or “freedom of action”. It is likely to have the narrower meaning

[page 107] of “permitted or conceded”: NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [94] per McHugh ACJ, Gummow, Callinan and Heydon JJ. The use of the words “granting” and “suspending” in s 2C(1)(b) also suggests that the language is more applicable to formal licences than informal consents: NT Power Generation Pty Ltd v Power and Water Authority, above, at [96] per McHugh ACJ, Gummow, Callinan and Heydon JJ. [10,018.15] Primary products Primary products are defined in s 2C(3) in identical terms to s 173(2) which exempts the vesting of primary products by legislation from the application of s 50 (mergers). ____________________

[10,019] Exemption of certain activities of local government bodies from Part IV 2D

[s 2D rep Act 131 of 2006 s 3 and Sch 10[5], opn 7 Nov 2006]

[10,020]

Repeal

3 The Restrictive Trade Practices Act 1971 and the Restrictive Trade Practices Act 1972 are repealed.

[10,025]

Interpretation

(1) In this Act, unless the contrary intention appears: acquire includes: (a) in relation to goods — acquire by way of purchase, exchange or taking on lease, on hire or on hire-purchase; and (b) in relation to services — accept. AEMC or Australian Energy Market Commission means the body established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia.

4

[def insrt Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

AER or Australian Energy Regulator means the body established by section 44AE. [def insrt Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

AER Chair means the Chair of the AER. [def insrt Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

AER member means a member of the AER. [def insrt Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

arrive at, in relation to an understanding, includes reach or enter into. Australian Consumer Law means Schedule 2 as applied under Subdivision A of Division 2 of Part XI. [def subst Act 103 of 2010 s 3 and Sch 4[3], opn 1 Jan 2011]

authorisation means: (a) an authorisation under Division 1 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission; or (b) an authorisation under Division 3 of Part VII granted by the Tribunal. [def insrt Act 131 of 2006 s 3 and Sch 1[1], opn 1 Jan 2007]

[page 108] authority, in relation to a State or Territory (including an external Territory), means: (a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or (b) an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest. authority of the Commonwealth means: (a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or

an incorporated company in which the Commonwealth, or a (b) body corporate referred to in paragraph (a), has a controlling interest. authorization [def rep Act 131 of 2006 s 3 and Sch 1[2], opn 1 Jan 2007]

banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959. [def insrt Act 48 of 1998 Sch 1.194]

business includes a business not carried on for profit. cartel provision has the meaning given by section 44ZZRD. [def insrt Act 59 of 2009 s 3 and Sch 1[3], opn 24 July 2009]

Chairman [def rep Act 88 of 1995 s 36]

Chairperson means the Chairperson of the Commission. [def insrt Act 88 of 1995 s 36]

clearance means a clearance under Division 3 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission. [def insrt Act 131 of 2006 s 3 and Sch 1[3], opn 1 Jan 2007]

commencing date [def rep Act 103 of 2010 s 3 and Sch 5[4], opn 1 Jan 2011]

Commission means the Australian Competition and Consumer Commission established by section 6A, and includes a member of the Commission or a Division of the Commission performing functions of the Commission. [def am Act 88 of 1995 s 36]

Companies Ordinance [def rep Act 81 of 1977 s 5]

competition includes competition from imported goods or from services rendered by persons not resident or not carrying on business in Australia. Competition Principles Agreement means the Competition Principles

Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time. [def insrt Act 88 of 1995 s 4]

[page 109] conduct [def rep Act 81 of 1977 s 5]

Conduct Code Agreement means the Conduct Code Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time. [def insrt Act 88 of 1995 s 4]

consumer contract [def rep Act 103 of 2010 s 3 and Sch 5[5], opn 1 Jan 2011]

corporation means a body corporate that: (a) is a foreign corporation; (b) is a trading corporation formed within the limits of Australia or is a financial corporation so formed; (c) is incorporated in a Territory; or (d) is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c). Council means the National Competition Council established by section 29A. [def insrt Act 88 of 1995 s 36]

Councillor means a member of the Council, including the Council President. [def insrt Act 88 of 1995 s 36]

Council President means the Council President referred to in subsection

29C(1). [def insrt Act 88 of 1995 s 36]

Court [def rep Act 8 of 1988 s 41]

covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land), and proposed covenant has a corresponding meaning. debenture includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a body corporate, whether constituting a charge on property of the body corporate or not. Deputy Chairman [def rep Act 88 of 1995 s 36]

Deputy Chairperson means a Deputy Chairperson of the Commission. [def insrt Act 88 of 1995 s 36; am Act 159 of 2007 s 3 and Sch 1[1], opn 25 Sep 2007]

Deputy President means a Deputy President of the Tribunal, and includes a person appointed to act as a Deputy President of the Tribunal. Deputy Registrar means a Deputy Registrar of the Tribunal. designated Commonwealth energy law means: (a) the National Electricity (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or (b) the National Gas (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or [page 110] (c) the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or (d) the National Energy Retail Law and Regulations (Commonwealth) (as defined by the Australian Energy Market

Act 2004). [def insrt Act 45 of 2007 s 3 and Sch 1[58], opn 1 July 2008; am Act 119 of 2011 s 3 and Sch 2 item 2, opn 1 July 2012]

document means any record of information, and includes: (a) anything on which there is writing; and (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and (d) a map, plan, drawing or photograph. [def subst Act 46 of 2011 s 3 and Sch 2[409], opn 27 Dec 2011]

dual listed company arrangement has the same meaning as in section 125-60 of the Income Tax Assessment Act 1997. [def insrt Act 131 of 2006 s 3 and Sch 6[1], opn 1 Jan 2007]

electronic communication means a communication of information by means of guided and/or unguided electromagnetic energy: (a) whether in the form of text; or (b) whether in the form of data; or (c) whether in the form of speech, music or other sounds; or (d) whether in the form of visual images (animated or otherwise); or (e) whether in any other form; or (f) whether in any combination of forms. [def insrt Act 9 of 2016 s 3 and Sch 1 item 1, opn 25 Feb 2016]

enforcement proceeding [def rep Act 103 of 2010 s 3 and Sch 5[6], opn 1 Jan 2011]

engage in conduct [def rep Act 81 of 1977 s 5]

Family Court Judge [def rep Act 103 of 2010 s 3 and Sch 5[6A], opn 1 Jan 2011]

Federal Circuit Court means the Federal Circuit Court of Australia. [def insrt Act 13 of 2013 s 3 and Sch 1 item 87, opn 12 Apr 2013]

financial corporation means a financial corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that carries on as its sole or principal business the business of banking

(other than State banking not extending beyond the limits of the State concerned) or insurance (other than State insurance not extending beyond the limits of the State concerned). financial product [def rep Act 103 of 2010 s 3 and Sch 5[7], opn 1 Jan 2011]

financial service [def rep Act 103 of 2010 s 3 and Sch 5[8], opn 1 Jan 2011]

[page 111] foreign corporation means a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that is incorporated in an external Territory. full-time member of the Commission [def rep Act 81 of 1977 s 5]

fully-participating jurisdiction means a State or Territory that: (a) is a participating jurisdiction as defined in section 150A; and (b) is not named in a notice in operation under section 150K. [def insrt Act 88 of 1995 s 82]

give effect to, in relation to a provision of a contract, arrangement or understanding, includes do an act or thing in pursuance of or in accordance with or enforce or purport to enforce. goods includes: (a) ships, aircraft and other vehicles; (b) animals, including fish; (c) minerals, trees and crops, whether on, under or attached to land or not; and (d) gas and electricity. infringement notice [def rep Act 103 of 2010 s 3 and Sch 5[9], opn 1 Jan 2011]

infringement notice compliance period [def rep Act 103 of 2010 s 3 and Sch 5[10], opn 1 Jan 2011]

infringement notice provision

[def rep Act 103 of 2010 s 3 and Sch 5[11], opn 1 Jan 2011]

local energy instrument means a regulation, rule, order, declaration or other instrument if: (a) the instrument is made or has effect under a law of a State or Territory; and (b) the law of the State or Territory applies a uniform energy law as a law of its own jurisdiction. [def insrt Act 119 of 2011 s 3 and Sch 2 item 3, opn 1 July 2012]

market [def rep Act 81 of 1977 s 5]

meeting [def rep Act 81 of 1977 s 5]

member of the Commission includes the Chairperson and a person appointed to act as a member of the Commission but does not include an associate member of the Commission. [def am Act 88 of 1995 s 36]

member of the Tribunal includes the President and a person appointed to act as a member of the Tribunal. New Zealand Commerce Commission means the Commission established by section 8 of the Commerce Act 1986 of New Zealand. New Zealand Crown corporation means a body corporate that is an instrument of the Crown in respect of the Government of New Zealand. [page 112] non-party consumer [def rep Act 103 of 2010 s 3 and Sch 5[12], opn 1 Jan 2011]

organisation of employees means an organisation that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment. [def insrt Act 60 of 1996 s 3 and Sch 17]

person [def rep Act 88 of 1976 s 3]

personal injury includes: (a) pre-natal injury; or (b) impairment of a person’s physical or mental condition; or (c) disease; but does not include an impairment of a person’s mental condition unless the impairment consists of a recognised psychiatric illness. [def subst Act 103 of 2010 s 3 and Sch 5[13], opn 1 Jan 2011]

practice of exclusive dealing means the practice of exclusive dealing referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9). practice of resale price maintenance means the practice of resale price maintenance referred to in Part VIII. President means the President of the Tribunal and includes a person appointed to act as President of the Tribunal. presidential member or presidential member of the Tribunal means the President or a Deputy President. price includes a charge of any description. provision, in relation to an understanding, means any matter forming part of the understanding. registered charity means an entity that is registered under the Australian Charities and Not-for-profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 255(5) of that Act. [def insrt Act 169 of 2012 s 3 and Sch 2 item 160, opn 3 Dec 2012]

Registrar means the Registrar of the Tribunal. rely on [def rep Act 103 of 2010 s 3 and Sch 5[15], opn 1 Jan 2011]

require, in relation to the giving of a covenant, means require or demand the giving of a covenant, whether by way of making a contract containing the covenant or otherwise, and whether or not a covenant is given in pursuance of the requirement or demand. send includes deliver, and sent and sender have corresponding

meanings. services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under: [page 113] (a) a contract for or in relation to: (i) the performance of work (including work of a professional nature), whether with or without the supply of goods; (ii) the provision of, or of the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or (iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; (b) a contract of insurance; (c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or (d) any contract for or in relation to the lending of moneys; but does not include rights or benefits being the supply of goods or the performance of work under a contract of service. share includes stock. South Australian Electricity Legislation means: (a) the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; and (b) any regulations, as in force from time to time, made under Part 4

of that Act The reference in paragraph (a) to the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law. [def insrt Act 45 of 2007 s 3 and Sch 1[59], opn 1 July 2008; am Act 60 of 2008]

South Australian Energy Retail Legislation means: (a) the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time; and (b) any regulations, as amended from time to time, made under Part 11 of the National Energy Retail Law. The reference in paragraph (a) to the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time, includes a reference to any Rules or other instruments, as amended from time to time, made or having effect under that Law. [def insrt Act 119 of 2011 s 3 and Sch 2 item 4, opn 1 July 2012]

South Australian Gas Legislation means: (a) the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time; and (b) any regulations, as in force from time to time, made under Part 3 of that Act The reference in paragraph (a) to the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law. [def insrt Act 45 of 2007 s 3 and Sch 1[60], opn 1 July 2008; am Act 60 of 2008 s 3 and Sch 4[1], opn 1 July 2008]

[page 114]

special price [def rep Act 17 of 1986 s 4]

State/Territory AER member means an AER member referred to in section 44AP. [def insrt Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

State/Territory energy law means any of the following laws: (a) a uniform energy law that applies as a law of a State or Territory; (b) a law of a State or Territory that applies a law mentioned in paragraph (a) as a law of its own jurisdiction; (c) any other provisions of a law of a State or Territory that: (i) relate to energy; and (ii) are prescribed by the regulations for the purposes of this paragraph; being those provisions as in force from time to time. [def insrt Act 45 of 2007 s 3 and Sch 1[61], opn 1 July 2008]

substantiation notice [def rep Act 103 of 2010 s 3 and Sch 5[16], opn 1 Jan 2011]

substantiation notice compliance period [def rep Act 103 of 2010 s 3 and Sch 5[17], opn 1 Jan 2011]

supply when used as a verb, includes: (a) in relation to goods — supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase; and; (b) in relation to services — provide, grant or confer; and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings. Telstra has the same meaning as in the Telstra Corporation Act 1991. [def insrt Act 140 of 2010 s 3 and Sch 1[32], opn 1 Jan 2011]

Territory means: (a) an internal Territory; or (b) the Territory of Christmas Island; or (c) the Territory of Cocos (Keeling) Islands. [def subst Act 104 of 1992 s 24 and Sch 4]

the Court or the Federal Court means the Federal Court of Australia.

the Family Court means the Family Court of Australia. this Act includes Schedule 2 to the extent that it is applied under Subdivision A of Division 2 of Part XI. [def insrt Act 103 of 2010 s 3 and Sch 5[18], opn 1 Jan 2011]

trade or commerce means trade or commerce within Australia or between Australia and places outside Australia. trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution. Tribunal means the Australian Competition Tribunal, and includes a member of that Tribunal or a Division of that Tribunal performing functions of that Tribunal. [def am Act 88 of 1995 s 36]

[page 115] unfair [def rep Act 103 of 2010 s 3 and Sch 5[19], opn 1 Jan 2011]

uniform energy law means: (a) the South Australian Electricity Legislation; or (b) the South Australian Gas Legislation; or (c) the Western Australian Gas Legislation; or (ca) the South Australian Energy Retail Legislation; or (d) provisions of a law of a State or Territory that: (i) relate to energy; and (ii) are prescribed by the regulations for the purposes of this subparagraph; being those provisions as in force from time to time. [def insrt Act 45 of 2007 s 3 and Sch 1[62], opn 1 July 2008; am Act 119 of 2011 s 3 and Sch 2 item 5, opn 1 July 2012]

unsolicited goods [def rep Act 103 of 2010 s 3 and Sch 5[20], opn 1 Jan 2011]

unsolicited services [def rep Act 103 of 2010 s 3 and Sch 5[21], opn 1 Jan 2011]

Western Australian Gas Legislation means: (a) the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time; and (b) any regulations, as in force from time to time, made under Part 3 of that Act The reference in paragraph (a) to the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law. [def insrt Act 45 of 2007 s 3 and Sch 1[63], opn 1 July 2008; am Act 60 of 2008 s 3 and Sch 4[2], opn 1 July 2008; Act 17 of 2009 s 3 and Sch 1[12], opn 27 Mar 2009] [subs (1) am Act 8 of 1988 s 41; Act 70 of 1990 s 4]

(2) In this Act: (a) a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant; (b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), shall be read as a reference to the doing of or the refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant; (c) a reference to refusing to do an act includes a reference to: (i) refraining (otherwise than inadvertently) from doing that act; or (ii) making it known that that act will not be done; and [page 116]

a reference to a person offering to do an act, or to do an act on a (d) particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be. (3) Where a provision of this Act is expressed to render a provision of a contract, or to render a covenant, unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect notwithstanding that: (a) at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or (b) the provision of the contract or the covenant will not or may not have that effect at a later time. *(4) In this Act: (a) a reference to the acquisition of shares in the capital of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such shares; and (b) a reference to the acquisition of assets of a person shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such assets but does not include a reference to an acquisition by way of charge only or an acquisition in the ordinary course of business. [subs (4) am Act 222 of 1992 s 2]

SECTION 4(1) [10,025.5] “acquire” This definition provides that both goods and services may be acquired other than by means of purchase. The definitions of “supply” and “acquire” are symmetrical. A supply of goods must occur as part of a bilateral transaction or dealing under which the other party acquires them: Cook v Pasminco Ltd (2000) 99 FCR 548; (2000)

ATPR ¶41-167; [2000] FCA 677; BC200002707. *Editor’s note: Section 21 of Act 222 of 1992 provides as follows: Application of the merger amendments 21 (1) Subject to this section, the merger amendments apply to any acquisition that happens after the commencement of this Act. (2) If at the commencement of this Act a proposed acquisition was the subject of any court proceedings under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to the following acquisitions as if the merger amendments had not been made: (a) the proposed acquisition; (b) any acquisition of the same shares or assets by a body corporate that, at the commencement of this Act, was related (within the meaning of the Principal Act) to a body corporate that was a party to the court proceedings. (3) If, on 4 November 1992, a proposed acquisition was the subject of an application for an authorisation under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to that acquisition as if the merger amendments had not been made. (4) In this section, merger amendment means the amendments made by sections 2, 3, 6, 7, 12, 14, 15 and 17 of this Act.

[page 117] It should also be read in conjunction with s 4C. However, s 4C does not affect the ordinary meaning of the word “acquire”. Its only effect is to incorporate into the connotation of that word, the additional meanings referred to: Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (2010) 184 FCR 1; 266 ALR 1; [2010] FCA 180; BC201001051 at [939] per Jessup J. [10,025.10] “authority” and “authority of the Commonwealth” The Act does not define the terms “body corporate” and “controlling interest”. In Re CLM Holdings Pty Ltd (1977) 136 CLR 235; 51 ALJR 362 the court said that the term “body corporate” includes a class of corporations which was wider than those included in the definition of “corporation” under the Act. Application Telecom Australia was found to be a Commonwealth Authority: Tytel Pty Ltd v Telecom (1986) 67 ALR 433. The Australian Egg Corporation Limited was found not to be an authority of the Commonwealth: Australian Competition and Consumer Commission

(ACCC) v Australian Egg Corp Ltd [2016] FCA 69; BC201600514 per White J. [10,025.15] “authorisation” An authorisation is a voluntary process. It is granted by the commission under Pt VII on the basis of a public benefit test. If granted, it permits conduct which would otherwise be in breach of Pt IV. Authorisation is available for all conduct under Pt IV, except misuse of market power under s 46. See ss 88-91. [10,025.17] “banker” This definition was inserted by the Financial Sector Reform (Consequential Amendments) Act 1998. It provides, among other things, for the transfer of the consumer protection functions in relation to financial services from the commission to the Australian Securities and Investments Commission. [10,025.20] “business” This definition was inserted in part to ensure that Commonwealth authorities that did not carry on profit-making activities could nevertheless be included within the scope of application of the Act: see s 2A; Corrections Corporation of Australia Pty Ltd v Commonwealth (2000) 104 FCR 448; (2000) ATPR ¶41-787; [2000] FCA 1280; BC200005478 at [5]; NT Power Generation Pty Ltd v Power and Water Authority (2002) 122 FCR 399; [2002] FCAFC 302; BC200205789 at [128] per Finkelstein J. The definition is also relevant to ss 2B and 2BA because the Crown in right of the states, the Northern Territory the Australian Capital Territory and local government bodies will be bound by provisions of the Act, in so far as they carry on a business. However, it is not to be implied that the Act intends that all non-profit activities constitute a business or that the existence or absence of a profitmaking objective is not a relevant factor in a determination as to whether there is a relevant business activity: Plimer v Roberts (1997) 80 FCR 303; 150 ALR 235; (1998) ATPR ¶41-602. In the context of the Act, “carrying on of a business” is intended to refer to activities undertaken in a commercial enterprise or as a “going concern”: Corrections Corporation of Australia Pty Ltd v Commonwealth, above, ATPR at 41,364; Saitta Pty Ltd v Commonwealth [2001] VSC 170; BC200102852 at [29] per Beach J; RP Data Ltd v Queensland [2007] FCA

1639; BC200709278 at [55] per Collier J; Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [344] per Besanko J. In Fasold v Roberts (1997) 70 FCR 489; 145 ALR 548; (1997) ATPR ¶41561, Sackville J considered the meaning of the word “business” in the context of s 42(1) of the Fair Trading Act 1987 (NSW) which provides that a person shall not in trade or commerce engage in conduct that is misleading or deceptive. The expression “trade or commerce” is defined to include any business or professional activity. Sackville J said (ALR at 587-8): [page 118] It is generally accepted that the word “business”, to use Mason J’s phrase, has a “chameleon like hue” but must take its meaning from the particular statutory context: Federal Cmr of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355 at 378-9; 39 ALR 521; State Superannuation Board (NSW) v FCT (1988) 82 ALR 63 at 72 per Sheppard J (Fed C of A); O’Brien v Smolonogov (1983) 53 ALR 107 at 113-14; (1983) ATPR ¶40-418 (Fed C of A, FC). In Hope v Bathurst City Council (1980) 144 CLR 1 at 8-9; 29 ALR 577, Mason J considered that the word “business” ordinarily denotes activities undertaken as a commercial enterprise in the nature of a going concern — ie “activities engaged in for the purpose of profit on a continuous and repetitive basis” . . . [In] general, for an undertaking to constitute a business it will have to be conducted with some degree of system and regularity . . . In my view, the less commercial the character and objectives of an organisation, the greater the degree of system and regularity required for the organisation’s activities to be characterised as a “business”.

See also (on appeal) Plimer v Roberts, above; Easts Van Villages Pty Ltd v Minister Administering the National Parks and Wildlife Act (2001) ATPR (Digest) ¶41-211; [2001] NSWSC 559; BC200103674 at [136] per Mathews AJ; Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669; BC200805237 at [74] per McCallum J. However, mere repetitiveness is not of itself sufficient to constitute carrying on a business: JS McMillan Pty Ltd v Commonwealth (1997) 77 FCR 337; 147 ALR 419; (1997) ATPR (Digest) ¶46-175; RP Data Ltd v Queensland, above, at [55] per Collier J. Business does not encompass dealings that are wholly internal. There can be no business in the absence of dealings, or the potential for dealings, with third parties. Acts which are preparatory to the setting up of a commercial

enterprise or going concern do not amount to carrying on a business: NT Power Generation Pty Ltd v Power and Water Authority, above, at [141] per Finkelstein J. To the extent that the activities of one department or agency can be described as the provision of services, such conduct would not amount to the carrying on of a business. This appears to be recognised by s 2C(1)(c)(i): Corrections Corporation of Australia Pty Ltd v Commonwealth, above, at [4]. See RP Data Ltd v Queensland, above, at [55] per Collier J. Application — carrying on a business In Tytel Pty Ltd v Telecom (1986) 67 ALR 433, the Australian Telecommunications Commission was found to be carrying on a business. In Suatu Holdings Pty Ltd v Australian Postal Commission (1989) 86 ALR 532, the Australian Postal Commission was found to be carrying on a business. In JS McMillan Pty Ltd v Commonwealth (1997) 77 FCR 337; 147 ALR 419; (1997) ATPR (Digest) ¶46-175, the Australian Government Publishing Service (within the Department of Administrative Services) was found to be carrying on a business. In RP Data Ltd v Queensland [2007] FCA 1639; BC200709278 at [56] Collier J found that the respondent was carrying on business with respect to the supply of bulk data to licensees. In Australian Competition and Consumer Commission (ACCC) v Australian Egg Corp Ltd [2016] FCA 69; BC201600514 at [174], White J found that the Australian Egg Corporation Limited carries on the business of promoting the Australian egg industry. Application — not carrying on a business In Thomson Publications (Aust) Pty Ltd v Trade Practices Commission (1979) 27 ALR 551; 40 FLR 257; (1979) ATPR ¶40-133, the Trade Practices Commission was held not to be carrying on a business. In McMullin v ICI Australia Operations Pty Ltd (1997) 72 FCR 1; 93 A Crim R 1 ; (1997) ATPR (Digest) ¶46-174, the court said that the New South Wales Department of Agriculture was not engaged in a business in distributing information leaflets for the benefit of the public.

[page 119] In Corrections Corporation of Australia Pty Ltd v Commonwealth (2000) 104 FCR 448; (2000) ATPR ¶41-787; [2000] FCA 1280; BC200005478, Finkelstein J said that the provision of or causing to be provided immigration detention and removal services, nor engaging in a tender process for such services, amounts to the carrying on of a business. In NT Power Generation Pty Ltd v Power and Water Authority (2001) 184 ALR 481; (2001) ATPR ¶41-814 at 42,911; [2001] FCA 334; BC200101353; (appeal) NT Power Generation Pty Ltd v Power and Water Authority, above, (2002) the court said that the Northern Territory Power and Water Authority (PAWA) while using generators and related infrastructure to generate and sell electricity in the Northern Territory was not in itself in the business of providing access to those assets to third parties. Rather the ownership and use of PAWA’s infrastructure by PAWA is not in respect of the carrying on of business by PAWA in the provision of access to its infrastructure, but is for the fulfillment of PAWA’s function of planning and coordinating the generation and supply of electricity in the Northern Territory. In Easts Van Villages Pty Ltd v Minister Administering the National Parks and Wildlife Act, above, at [139], Mathews AJ said that the management of a national park did not constitute the carrying on of a business. In Saitta Pty Ltd v Commonwealth, above, at [29] Beach J said that the provision by the Commonwealth of pharmaceutical, sickness and hospital benefits and medical and dental services could not be described as carrying on a business. In Sirway Asia Pacific Pty Ltd v Commonwealth (2002) ATPR (Digest) ¶46-226; [2002] FCA 1152; BC200205419 at [64] Sundberg J said that the Department of Defence was not carrying on a business in calling for tenders for crockery for use by the armed forces. In Australian Competition and Consumer Commission v Australian Medical Assn Western Australia Branch Inc (2003) 199 ALR 423; [2003] FCA 686; BC200303666 at [393] Carr J said that in operating a hospital in Western Australia the state was not carrying on a business. In New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54; BC200301232 at [135] Hodgson JA said that New South Wales Agriculture was not carrying on a business in administering cattle

compensation legislation. In Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) (2004) 208 ALR 98; (2004) ATPR ¶41-979; [2004] FCA 133; BC200400516 at [91] Finn J said that Airservices Australia was not carrying on a business in making statements regarding flight paths and noise forecasts. In Eden Construction Pty Ltd v New South Wales (No 2) [2007] FCA 689; BC200703398 at [453] Graham J said that the Department of Public Works was not carrying on a business in the way a contract for services was awarded and administered. In Murphy v Victoria (No 2) (2014) 289 FLR 245; [2014] VSC 404; BC201407491, Croft J said that a state authority responsible for a road project was not carrying on a business. See however Murphy v Victoria (2014) 313 ALR 546; 289 FLR 337; [2014] VSCA 238; BC201407999 per Nettle AP, Santamaria and Beach JJA. [10,025.21] “clearance” This definition was inserted by the Trade Practices Amendment Act (No 1) 2006 and is a reference to the process for merger clearances under Pt VII Div 3 of the Act. [10,025.22] “Commission” The Australian Competition and Consumer Commission commenced on 6 November 1995. It was formed by the merger of the Trade Practices Commission and the Prices Surveillance Authority. [10,025.25] “competition” Competition includes competition from the import trade of goods and the services rendered by non-residents. In Re Queensland Co-op Milling Association Ltd (1976) 8 ALR 481 at 515-16; 25 FLR 169 at 190; (1976) ATPR ¶40-012 the Trade Practices Tribunal said: [page 120] In our view effective competition requires both that prices should be flexible, reflecting the forces of demand and supply, and that there should be independent rivalry in all dimensions of the priceproduct-service packages offered to consumers and customers. Competition is a process rather than a situation. Nevertheless, whether firms compete is very much a matter of the structure of the market in which they operate.

The tribunal listed the following elements of market structure that should be considered in any case (ALR at 516; FLR at 190): • the number and size distribution of independent sellers, especially the degree of market concentration; • the height of barriers to entry, that is the ease with which new firms enter and secure a viable market; • the extent to which the products of the industry are characterised by extreme product differentiation and sales promotion; • the character of “vertical relationships” with customers and with suppliers and the extent of vertical integration; • the nature of any formal, stable and fundamental arrangements between firms which restrict their ability to function as independent entities. In Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173 at 191; 64 FLR 238; (1982) ATPR ¶40-315 at 43,887 Smithers J held that “competition in a market is the sum of activity engaged in by persons in promoting the sale to potential buyers of the goods with which that market is concerned”. In Outboard Marine Australia Pty Ltd v Hecar Investments (No 6) Pty Ltd (1982) 66 FCR 120 at 132; 44 ALR 667 at 677; (1982) ATPR ¶40-327, Fitzgerald J (in assessing the failure to supply a retailer with outboard motors) set out the following criteria for assessing the impact of competition: • any effect on the capacity of the dealers or products in the market to continue, or on fresh entry into the market; • any effect on capacity or willingness of dealers in the market to meet the present or future requirements of consumers in the market or to respond to variations in those requirements; • any effect upon the product range, including brands, sixes, finishes, colours, etc available in the market; • any effect on the number or identity of the retailers in the market, or the number, location or convenience and accessibility of retail outlets, or any other aspect of the efficient retail sale and distribution of outboard motors in the market. In Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177 at 191; 83 ALR 577 at 585; (1989) ATPR ¶40-925, Mason CJ and Wilson J said that competition by its very nature is deliberate and ruthless. Competitors jockey for sales, the more effective competitors

injuring the less effective by taking sales away; Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2013] FCA 1206; BC201314733 at [553] per Dowsett J; (appeal) Australian Competition and Consumer Commission (ACCC) v Australia and New Zealand Banking Group Ltd [2015] FCAFC 103; BC201507180 per Allsop CJ, Davies J and Wigney J. In Re Telstra Corporation Ltd (No 3) [2007] ACompT 3; BC200703762 at [97]–[99] Goldberg J, Mr R Davey and Professor D Round made the following comments on the process of competition: [97] . . . Under traditional economic theories of the firm, firms are normally considered to operate with the objective of maximising profits. In general, it is assumed that firms with this objective will compete to win market share from each other. In turn, competition between firms in this way is desirable from a consumer perspective because it creates incentives for firms: • to lower their prices towards their costs of production in order to attract more consumers to their business so that they can expand their market share; and [page 121] •

to seek greater productive efficiencies (now and over time) so that they may lower their costs of production. In turn this enables them profitably to lower prices for consumers in ways that will attract more consumers to their business in order to increase their share of the market.

[98] . . . The process of competition allows efficient suppliers to survive and displace less efficient suppliers in well-functioning markets. Inefficient suppliers will produce their services at higher costs than their rivals. They will be unable profitably to lower the prices they set for consumers to the same level as more efficient producers, with the consequence that they will be unable to win consumers and will therefore be forced out of the market. If, however, efficient suppliers are unable for other reasons to remain in the market, prices will not reduce to levels consistent with the costs of the efficient suppliers. [99] Accordingly, we believe it is important not to confuse the objective of promoting competition with the outcome of ensuring the greatest number of competitors. That is, the Act aims to promote competition because of the benefits that result from the process of competition, such as lower prices for consumers and the displacement of inefficient suppliers by efficient suppliers of services . . .

Competition is a process and is generally not concerned with the position or protection of individual competitors: see Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2013] FCA 1206; BC201314733 at [553] per Dowsett J; (appeal) Australian Competition and Consumer Commission (ACCC) v Australia and New Zealand Banking Group Ltd [2015] FCAFC 103; BC201507180 per Allsop CJ, Davies J and Wigney J. However, there may be circumstances in which the impact of an action or

thing on a particular competitor may have implications for the promotion of competition generally: Application by Telstra Corporation Ltd [2009] ACompT 1 at [8], per Middleton J, Mr R Davey and Professor D Round; see Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 at [581] per Dowsett and Lander JJ (Mansfield J agreeing). In Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 at [31]–[53], Finkelstein J, R Davey and Professor D Round (in examining s 152AB in Part XIC of the Act), provided the following detailed and valuable explanation of competition models: [32] Economists have developed several competition models. First, there is “perfect competition”. In a perfectly competitive market every good is priced (a price that includes a margin for profit) at the cost of producing it (this is the good’s marginal cost) and every buyer willing to pay that price can buy it. The conditions for perfect competition are: (a) the goods produced by all sellers are homogeneous; (b) all buyers and sellers have perfect information about any aspect of the market; (c) there are no barriers to entry or exit; and (d) each seller’s market share is so small in proportion to the total market that one seller’s increase in output will not affect the decisions of other sellers: see Scherer and Ross 15-18; P E Areeda, J L Solow and H Hovenkamp, Antitrust Law (3rd ed, 2007) vol IIB, 4-5; W K Viscusi, J M Vernon and J E Harrington Jr, Economics of Regulation and Antitrust (4th ed, 2005) Chp 6; W G Shepherd, The Economics of Industrial Organization (4th ed, 1997) 38. [33] A perfectly competitive market produces an equilibrium which results in the efficient use of resources in terms of both productive and allocative efficiency. Allocative efficiency is achieved because no seller will expand production if the marginal revenue or price is less than the cost of producing the good. Productive efficiency is achieved because the goods are produced at the lowest possible cost. A further benefit is dynamic efficiency because competition will force firms to seek to improve their goods or develop new goods as part of the battle. [page 122] [34] A monopolist, on the other hand, faces no rivals, and is not forced to sell at marginal cost. It can cut output and force prices above marginal cost. When it reduces output, a monopolist distorts the allocation of resources. It forces some inputs into other markets where their economic value is less. Moreover, a monopolist is under no pressure to invent new products or methods. [35] Having described the conditions for perfect competition it will be apparent that they do not exist in any market. Nonetheless, because there is a need for a benchmark to analyse market behaviour in real industries, economists have developed other models to define competition, models that Scherer and Ross say are the result of a search for “more operational norms”: Scherer and Ross 53. The first is “workable competition”, a phrase coined by J M Clark: J M Clark, ‘Toward a Concept of Workable Competition’ (1940) 30 American Econ Rev 241. Quite what workable competition should consist of has caused much controversy. At one level competition might be “workable” if there is rivalry between firms. But, how much rivalry is required is not specified. Another approach is to view competition as not “workable” if there is an absence of restraint on a

firm’s economic activities. Yet there are few markets in which a firm is entirely unrestrained. Another possibility is that there is workable competition if no firm is able to influence the market price for goods. This, however, is not significantly different from the model of perfect competition. [36] Much of the literature on workable competition was analysed by S H Sosnick in his paper ‘A Critique of Concepts of Workable Competition’ (1958) 72 Quarterly Journal of Economics 380. Sosnick suggests a large number of characteristics that will determine whether a market is workably competitive. Scherer and Ross (at 53-54) have divided them into structural, conduct and performance categories. . . [37] Perhaps the best shorthand description of workable competition is to envisage a market with a sufficient number of firms (at least four or more), where there is no significant concentration, where all firms are constrained by their rivals from exercising any market power, where pricing is flexible, where barriers to entry and expansion are low, where there is no collusion, and where profit rates reflect risk and efficiency. [38] There are some economists who speak of “effective competition”. For example, Shepherd ((1997) at 18) describes effective competition as requiring internal and external conditions. The internal conditions are: (a) a reasonable degree of parity among the competitors; and (b) a high enough number of competitors to prevent effective collusion among them to rig the market. The external condition is easy entry. Effective competition denotes the idea that firms should be subject to a reasonable degree of competitive constraint from actual and potential competitors as well as from customers. [39] The ACCC has also adopted an “effective competition” model that borrows much from the models of workable competition and effective competition just discussed. . . [40] The last model of non-perfect competition which we will discuss is that of the “contestable market”. This model was developed in the 1980s by W Baumol, J Panzar, E Bailey and R Willig. It emerged from work done in the 1970s for the American Telephone and Telegraph Company to show that AT&T, although a monopoly, possessed no monopoly power. The leading text is W J Baumol, J C Panzar and R D Willig, Contestable Markets and the Theory of Industry Structure (1982). According to Baumol, Panzar and Willig, it is not the internal structure of the market that affects competition. Rather, an incumbent firm will be forced to deliver the optimal allocation of resources provided it is possible for a competitor to enter the market without any sunk costs (ie there are no barriers to entry) and leave the market without incurring any losses (ie where “hit and run” entry and exit are possible). A perfectly contestable market is not perfectly competitive but, according to its proponents, will nonetheless produce an economically efficient outcome. [page 123] [41] Analysing the competitiveness of a market by reference to potential competition diverts attention from the state of actual competition inside a market. This has led to a substantial attack on the usefulness of the contestable market model. One US decision has gone so far as to refer to it as a now “disproved” theory: Midwestern Machinery Co v Northwest Airlines, Inc [2004] USCA8 661; 392 F3d 265, 282 (8th Cir, 2004). The critical literature is extensive and particular reference should be made to R J Gilbert, ‘The Role of Potential Competition in Industrial Organization’ (1989) 3 J Econ Persp 107; G Hurdle et al, ‘Concentration, Potential Entry, and Performance in the Airline Industry’ (1989) 38 J Indus Econ 2; S A Morrison and C Winston, ‘Empirical Implications and Tests of the Contestability Hypothesis’ (1987) 30 JL & Econ 53; J E Stiglitz, ‘Technological Change, Sunk Costs and Competition’ in 3 Brookings papers on Econ Activity (1987) 883; M Schwartz, ‘The Nature and Scope of Contestability Theory’ (1986) 38 Oxford Econ Papers 37; A M

Spence, ‘Contestable Markets and the Theory of Industry Structure: A Review Article’ (1983) 21 J Econ Lit 981; W A Brock, ‘Contestable Markets and the Theory of Industry Structure: A Review Article’ (1983) 91 J Pol Econ 1055. [42] One of the theory’s main critics is Shepherd, who has written several papers highlighting the deficiencies of the model. For example, in a seminal paper entitled ‘“Contestability” v Competition’ (1984) 74 American Econ Rev 572 Shepherd asserts that research indicates that the internal conditions of a market are the primary determinant of competition. He suggests (as do several other economists) that the market share of a firm, not barriers to entry, is the main structural determinant of profit rates. One reason he gives is that major entry is rare. Shepherd acknowledges ((1984) at 580) that entry barriers do have an effect on competition, but he says “no significant evidence exists that free entry has or will fully neutralize market dominance, much less pure monopoly”. The problem, according to Shepherd, is that barriers to entry, the non-existence of which is critical to the model, “cannot be measured reliably, and they probably never will be . . . Combining [all] the elements into a total estimate of a barriers’ height is even more difficult and unscientific”: Shepherd (1997) at 214. Presumably that is the reason barriers can (and are) only described as “high”, “medium” or “low”. This description is unlikely to be helpful in many circumstances. Shepherd suggests it will be unhelpful if the decision-maker is required to make an assessment of the state of competitiveness of a market based on contestability criteria which are largely incapable of accurate measurement and because the model ignores actual conduct in the market (and indeed in its pure form assumes away any incumbent responses to entry). [43] Areeda et al point out (at 74) that: “[T]he existence and magnitude of entry barriers is easily disputed and the evidence ambiguous”. It is also quite hypothetical to consider future entry, by unknown firms, under market conditions that differ from those of the past or present. The critics contend that even past entry may not say much about the competitiveness of a market. Shepherd, for example, says ((1997) at 209): “[E]ntry and exit among fringe firms are largely irrelevant to the position of the dominant firm. What matters is the bite which the new entrants take out of the dominant firm’s market share. Accordingly, entry is correctly defined not in terms of the entrants’ own shares, but rather in terms of the decline of the dominant firm’s share of the market”. Any other approach misses the true economic impact of entry. In addition, regard must be had to whether entry occurred when the structural characteristics of the market were different, or whether an entrant was particularly well positioned to enter the market because it had access to a scarce asset. [44] The critics of the contestable market theory do not suggest that historical entry cannot provide some guidance for the future. Past entry will be a useful guide if: (a) past entrants were successful in taking market share from the incumbent and developing a business; (b) past entry was not unique; (c) past entrants did not have to undertake substantial investment in sunk assets; (d) past entrants were able to enter quickly; (e) past entrants were able to survive; and (f) key structural characteristics of the market (such as market growth, government policy, [page 124] asset and funding availability, consumer tastes, technology, minimum efficient scale (MES) etc) have not changed to make future entry more difficult. But, say the critics, it is still necessary to be careful. [45] As regards the potential entrant, Shepherd says (in the third edition of his work) that: “Potential competition will almost always have less force than actual competition. Whenever there is more than one incumbent firm, each has to consider its competitor[s] as an immediate threat to its market share. Even if an existing rival is small, it is present. It already exerts in full the pressure a potential

entrant may have if it chooses to enter. Therefore an actual competitor is more important than a potential entrant of comparable or smaller size. A more tenable assumption is that potential competition is secondary and blends in with other marginal competitive possibilities.” One point Shepherd and his supporters miss, however, is that actual restraint imposed by an existing rival may not be superior to the threat imposed by a potential entrant if the potential entrant is bigger, better resourced, more committed and has a reputation for successful long-term entry in other markets. [46] While not subscribing to all that the critics of the “contestable market” say, in the Tribunal’s view the mere physical fact of entry and the potential for further entry in most cases is an inconclusive guide to the competitiveness of a market. A proper understanding of the effect of entry and potential entry requires a comprehensive assessment of the structural and behavioural characteristics of the market and the behaviour of firms in that market. [47] Even the proponents of the contestable market theory admit that an empirical evaluation of the market as it exists has a contribution to make which may be more useful than the theory. Baumol and Willig state: “[O]ne suspects that empirical reality embodies relationships more robust and stable than does oligopoly theory in its current tumultuous state”: W J Baumol and R D Willig, ‘Pricing issues in the deregulation of railroad rates’ in J Fisinger (ed), Economic Analysis of Regulated Markets (1983) 15. This echoes the position of Edward Mason, regarded as the ‘father’ of industrial organisation, who wrote that “[i]t would no doubt be extremely convenient if economists knew the shape of individual demand and cost curves and proceed forthwith, by comparisons of price and marginal cost, to conclusions regarding the existing degree of monopoly power. The extent to which monopoly theorists, however, refrain from an empirical application of their formulae is rather striking. The alternative, if more pedestrian, route follows the direction of ascertainable facts and makes use only of empirically applicable concepts”: E S Mason, ‘Price and production policies of large-scale enterprise’ (1939) 29(1) American Econ Rev 61, 62. [48] What, then, do we draw from the various models for studying a market to determine its competitiveness and for assessing how the market may behave in the future? In the Tribunal’s view a market is sufficiently competitive if the market experiences at least a reasonable degree of rivalry between firms each of which suffers some constraint in their use of market power from competitors (actual and potential) and from customers. The criteria for such competition are structural (a sufficient number of sellers, few inhibitions on entry and expansion), conduct-based (eg no collusion between firms, no exclusionary or predatory tactics) and performance-based (eg firms should be efficient, prices should reflect costs and be responsive to changing market forces). . . [49] In a “perfectly competitive” market a firm will not have the ability to deviate profitably from marginal cost pricing: that is, it will not be able to raise prices without a significant loss of sales. On this basis the most reliable measure of competition is to discover whether a firm charges above marginal cost for its goods or services. If there is a high mark up over marginal cost for a sustained period the market is not effectively competitive: L A Sullivan and W S Grimes, The Law of Antitrust (2000) 59; Areeda et al at 115-119. But, as these writers point out, this measure of competition (or, as some would have it, of market power), known as the Lerner Index, while being the best way in theory of measuring competitiveness, is rarely used in practice because of the difficulty of establishing the marginal cost of a good. [page 125] [50] The second, and most widely used, method of measuring competitiveness in real-world markets is to look through the proxy lens of market share and concentration. To measure market share involves identifying the firms in the market, calculating the appropriate unit of measure (for

example the dollar value of sales, number of units sold, or capacity) and then computing each firm’s share of the total. Concentration ratios are usually expressed in terms of the HHI index (after its inventors Herfindahl and Hirschman), which is measured as the sum of the squared market share of each firm. As a general proposition if one firm has more than 25 to 30 per cent of the market (some economists use a slightly higher percentage) that firm will be regarded as having significant market power and the market will probably not be competitive. However, a market in which there are four firms each with an equal share is likely to be more competitive than a market where one firm that has an 80 per cent share and the three others split the remaining 20 per cent. Thus it is necessary to consider not only the number of firms in a market but also the distribution of, or variation in, their market shares, especially in relation to the leading or dominant firm whose activities are the subject of the investigation. [51] The Tribunal acknowledges that the competitiveness of a market cannot be measured simply by the number of firms in the market, their market shares and the market concentration. That can only be the starting point of the analysis. A feature that is “equally important” (to adopt the terminology of Viscusi et al (at 164)), or simply another factor that must be brought to account, is the ease of market entry. Viscusi et al state (at 164-165) that entry conditions are important in assessing competition in a market, first because the number of firms in the market is partially determined by the cost of the entry as well as by factors such as economies of scale. Hence entry conditions play a role in determining concentration. Second, entry conditions determine the extent of potential competition. Most courts and economists accept ease of entry by potential competitors is likely to affect the competitiveness of the actual competitors. The debate among economists concerns the extent to which it has that effect. We note that this debate is not based simply on theoretical differences of opinion. P Geroski, R J Gilbert and A Jacquemin, in Barriers to Entry and Strategic Competition (1990) undertook a review of the empirical data on the effect of entry. They looked at the effect of actual entry in thirty industries in the United States. These studies indicated that entry or potential for entry had only a small effect on industry structure. In their view (at 84): “The potential impact of entry seems to be modest. Entrants usually do not take much market share from industries leaders but instead tend to take a market share from small incumbents.” They also observed that: “Post-entry survival is not easy”, as clearly incumbent firms will react strongly to new entry and attempt to repel it, unless the entry is clearly of the niche type, and unless there exist (or can easily be constructed) barriers to the expansion of the new firms. [52] Whether market entry is easy or difficult depends upon what economists refer to as barriers to entry. There is considerable controversy about the proper definition of entry barriers. Joe Bain treats as a barrier any factor, real or perceived, that as a realistic matter discourages entry: J S Bain, Barriers to New Competition (1956) 3. His main antagonist, Stigler, prefers a narrower definition. Stigler treats as a barrier only those costs that a new entrant must incur but which are not (or have not been) incurred by the incumbents. In ‘Ease of Entry: Has the Concept Been Applied Too Readily?’ (1987) 56 Antitrust LJ 43, R L Schmalensee explained the practical differences between the two approaches: Stigler’s followers tend to look at what an entrant must do to become established . . . and to find that those are more or less the same things that established firms had to do to become established firms. Looking at the two identical lists inclines one to say, “Gee, there aren’t any barriers.” The analysis of lists tends to assume away the possibility — real in some cases, I would argue — that, while the same things must be done, they are done on different terms by an entrant than by an incumbent. The entrant faces a different competitive environment when building a reputation, than an incumbent firm did. [page 126]

Bain’s followers . . . tend to find a lot of barriers in practice. Followers of Bain tend to look at established firms as they exist in place, not to focus on the process they had to go through to get there. Many of Bain’s followers, for instance, tend to consider the need to raise a lot of capital to be necessarily a barrier to entry because it is hard to raise, say, $200 million quickly — even though of course, established firms also had to raise $200 million. [53] The Tribunal would proceed on the basis that barriers to entry are both structural, based on exogenously determined market characteristics, and endogenous, being the result of the incumbent’s strategic behaviour to deter entry. Structural barriers are based on cost structures, such as economies of scale, switching costs, demand characteristics (eg preferences for differentiated products), access to information and legal restrictions (eg patents or environmental regulations). Strategic barriers include limit pricing and general entry deterrence, advertising, targeted innovation, product proliferation, expansion of capacity, predatory responses to entry and any other targeted action that would “raise a rival’s costs”. Consequential variations in both market share and market concentration over time as entry occurs must also be examined. The Tribunal is of opinion that any assessment of the effect of barriers to entry, in a forward-looking sense, must include a comprehensive assessment of the current structural and behavioural characteristics of the market and firms at issue, and of how past conduct has shaped this structural and behavioural environment.

See also Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [1049]–[1052] per Finkelstein J, Mr Grant Latta and Professor David Round; Australian Competition and Consumer Commission (ACCC) v Metcash Trading Ltd [2011] FCA 967; BC201106415 at [161]–[165] per Emmett J. See Wellington International Airport Ltd v Commerce Commission [2013] NZHC 3289; BC201366687; Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2013] FCA 1206; BC201314733 at [553] per Dowsett J; (appeal) Australian Competition and Consumer Commission (ACCC) v Australia and New Zealand Banking Group Ltd [2015] FCAFC 103; BC201507180 per Allsop CJ, Davies J and Wigney J. In Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 at [11] Finkelstein J, R Davey and Professor D Round said: The Tribunal is of opinion that it is necessary to review the relatively static and uni-directional model that guided the Tribunal in QCMA. QCMA was decided at a time when industrial organisation economists emphasised the causal flow from industry structure (eg number of sellers, concentration, entry conditions etc) via conduct (eg price and non-price behaviour) to performance (eg profits, efficiency, innovation etc). This approach has been overtaken by developments in economic theory and by empirical assessments of competition in modern markets which attest to the fact that this causal flow is by no means the dominant mechanism to explain market behaviour. Thus, the QCMA paradigm is no longer an infallible guide to assessing the behaviour of firms and markets. Sole reliance on this method has the potential to provide misleading conclusions about market behaviour.

Whether there is competition in a market involves findings of fact. In the making of those findings the views and practices of those within the industry

are instructive: Australian Competition and Consumer Commission v Flight Centre Ltd (No 2) (2013) 307 ALR 209; [2013] FCA 1313; BC201315432 at [120] per Logan J. See also [10,065.15]. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that the definition of “competition” be amended to ensure that competition in Australian markets includes competition from goods imported or capable of being imported into Australia and from services supplied or capable of being supplied by persons located outside of Australia to persons located within Australia. [page 127] On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amendments. See also [10,690.5]. [10,025.27] “Competition Principles Agreement” The agreement provides for the cooperation of jurisdictions towards a national competition policy. The agreement was signed on 11 April 1995: see [15,120] and see NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [21]–[26] per McHugh ACJ, Gummow, Callinan and Heydon JJ. [10,025.28] “Conduct Code Agreement” The Commonwealth, states and territories signed this agreement on 11 April 1995. See NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [21]–[26] per McHugh ACJ, Gummow, Callinan and Heydon JJ. Under the agreement jurisdictions agreed to apply the Competition Code to all persons within the legislative competence of each state and territory. The states and territories have passed application laws to give effect to the

Competition Code. The Competition Code is a Schedule to the Act. When modifications are proposed to Pt IV of the Act or to the Competition Code, the states and territories will make similar modifications to their legislation. The Commonwealth will consult with the states and territories prior to amending the Act. The agreement facilitates cooperation between the parties on appointments to the Australian Competition and Consumer Commission. It also provides a mechanism for the states and territories to apply for exceptions from the competition laws. [10,025.30] “corporation” The expression reflects the definition of a corporation in s 51(xx) of the Constitution. The terms “foreign corporation”, “trading corporation” and “financial corporation” are also defined in s 4(1) of the Act. See [10,025.45], [10,025.50] and [10,025.100]. A law which prescribes norms regulating the relationship between corporations and their employees (or prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations) is a law with respect to corporations: New South Wales v Commonwealth (2006) 231 ALR 1; [2006] HCA 52; BC200609129 at [198] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ (regarding the “WorkChoices” legislation). [10,025.32] “Council” The National Competition Council was established on 6 November 1995 with the passage of the Competition Policy Reform Act. Its functions are discussed at [10,460.5]. [10,025.40] “document” This definition is of particular relevance to s 155 which gives the commission power to investigate a suspected breach of the Act by requiring the production of information and documents. The definition encompasses not only the traditional methods of reproduction on paper but extends to include “documents” stored on electronic medium which are capable of being reproduced. [10,025.44] “dual listed company arrangement” This definition was inserted by the Trade Practices Amendment Act (No 1) 2006 following the recommendations of the Dawson Committee. See [10,690.5].

[10,025.45] “financial corporation” In Re Ku-ring-gai Co-op Building Society (No 12) Ltd (1978) 22 ALR 621; 36 FLR 134 at 158; (1978) ATPR ¶40-094, Deane J stated the following view on the definition of a “financial corporation”: [page 128] . . . the phrase “financial corporation” is a composite one. It does not refer to solvency. An obvious reference point is to the activity of commercial dealing in finance. Another possible reference point is the provision of management or advisory services in relation to financial matters. I used the words “dealing in finance”, for want of a better expression, to refer to transactions in which the subject of the transaction is finance (such as borrowing or lending money) as distinct from transactions (such as the purchase or sale of particular goods for a monetary consideration) in which finance, although involved in the payment of a price, cannot properly be seen as constituting the subject-matter of the transaction.

In Bourke v State Bank of New South Wales (1990) 170 CLR 276; 93 ALR 460; 64 ALJR 406; (1990) ATPR ¶41-033 the High Court of Australia found unanimously that the Act did not apply to state bank activities which did not extend beyond the limits of the state. A financial corporation includes insurance companies, co-operative terminating building societies (Re Ku-ring-gai Co-op Building Society (No 12) Ltd, above), credit unions (Parramatta Tourist Services Pty Ltd v SWB Family Credit Union Ltd (1979) 24 ALR 273) and state superannuation boards (State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282; 44 ALR 1; BC8200133). [10,025.47] “financial product” This definition was inserted by the Financial Sector Reform (Consequential Amendments) Act 1998. It provided, among other things, for the transfer of the consumer protection functions in relation to financial services from the commission to the Australian Securities and Investments Commission. This definition was repealed by the Trade Practices Amendment (Australian Consumer Law) (No 2) No 103 of 2010, effective 1 January 2011. See now ACL s 2 and Australian Securities and Investments Commission Act 2001 s 12BAA. [10,025.48] “financial service”

This definition was inserted by the

Financial Sector Reform (Consequential Amendments) Act 1998. It provided, among other things, for the transfer of the consumer protection functions in relation to financial services from the commission to the Australian Securities and Investments Commission. This definition was repealed by the Trade Practices Amendment (Australian Consumer Law) (No 2) No 103 of 2010, effective 1 January 2011. See now ACL s 2 and Australian Securities and Investments Commission Act 2001 s 12BAB. [10,025.50] “foreign corporation” A foreign corporation corporation which is incorporated in a place outside Australia.

is

a

[10,025.55] “giving effect to” This definition has a particular application to s 45 and includes doing an act “in accordance with” a contract, arrangement or understanding. In Tradestock v TNT (Management) Pty Ltd (No 2) (1978) 32 FLR 420 Smithers J said that a decision could be made “in accordance with” a contract, arrangement or understanding although it might have been made without the decision-maker having the contract, arrangement or understanding in mind. See [10,700.14]. [10,025.60] “goods” The definition includes items traditionally understood as goods. However, it does not resolve all the issues which arise in relation to developing or new technology. For example, it is not clear that software is included in the definition: Toby Constructions Products Pty Ltd v Computer Bar Sales Pty Ltd (1983) ATPR ¶40-377. Encoded electronic impulses capable of conveying information were found by the Full Federal Court not to be “electricity” as the subscribers were purchasing information not electricity: ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (1991) 27 FCR 460; 97 ALR 513; (1991) ATPR ¶41-069. A ship and a cargo of coal were each said to be “goods”: PNSL Berhad v Dalrymple Marine Services Pty Ltd (2007) 210 FLR 243; [2007] QSC 101; BC200703327 at [48] per Helman J. [page 129] The common law distinction between fixtures and movables is maintained in para (c) of this definition. Therefore goods which are permanently attached

to land lose their status as “goods” and become “fixtures”. [10,025.70] “price” This definition expands the accepted meaning of price to include any costs charged in relation to goods or services. In Trade Practices Commission v Bryant Pty Ltd (1978) ATPR ¶40-075 the court said that porterage charges, although regarded as out-of-pocket expenses to be passed on to another person, could be considered part of the “price” charged for the relevant services. [10,025.75] “require” This definition is relevant in relation to the giving of a covenant under s 45B. Merely making the demand for the giving of a covenant is sufficient, irrespective of whether or not it is actually given. [10,025.80] “send” This term is defined to include the act of delivering. In Thompson v Riley McKay Pty Ltd (No 2) (1980) 29 ALR 267; 42 FLR 279; (1980) ATPR ¶40- 152 it was held that it was not necessary for a representation to have actually been communicated to a specific person providing the representation was made. [10,025.85] “services” The expression “services” carries its ordinary meaning: Obeid v Australian Competition and Consumer Commission (ACCC) [2014] FCA 839; BC201406280 per Farrell J; (appeal) Obeid v Australian Competition and Consumer Commission [2014] FCAFC 155; BC201409802 at [53] per Allsop CJ; Mansfield J and Middleton J. The word “includes” in the definition indicates that it is not intended to be exhaustive: (appeal) Obeid v Australian Competition and Consumer Commission [2014] FCAFC 155; BC201409802 at [52] per Allsop CJ; Mansfield J and Middleton J. The words “trade and commerce” within that expression, carries the meaning it has in other parts of the Act: Obeid v Australian Competition and Consumer Commission (ACCC) [2014] FCA 839; BC201406280 at [95] per Farrell J; CPA Australia Ltd v Storai [2015] VSC 442; BC201508066 per Bell J. The phrase “provided, granted or conferred” is used in connection with “in trade or commerce” to indicate that the relationship or dealing as a whole must be of a trading or commercial nature, and not that the right, benefit, privilege or facility be a trading or commercial activity of the supplier: Obeid

v Australian Competition and Consumer Commission [2014] FCAFC 155; BC201409802 at [55] per Allsop CJ; Mansfield J and Middleton J. Services need not be rendered under a contract. The definition extends to services in relation to real and personal property and also to intellectual property. See Adamson v West Australian National Football League (1978) ATPR ¶40-078; Adamson v New South Wales Rugby League Ltd (1991) 27 FCR 53; 100 ALR 479; (1991) ATPR ¶41-084; Barnard v Australian Soccer Federation (1988) ATPR ¶40-862; Trade Practices Commission v Garden City Cabs Co-op Ltd (1995) ATPR ¶41- 410 at 40,551. The provision distinguishes between employment contracts and contracts for the performance of work. In Adamson v New South Wales Rugby League Ltd, above, the court said that the exclusion relating to employment contracts also extended to the activity of negotiating employment contracts. Application A share is a chose in action and is therefore a service: Norcast S AR L v Bradken Ltd (No 2) (2013) 219 FCR 14; 302 ALR 486; [2013] FCA 235; BC201301413 at [238] per Gordon J. The grant of a copyright licence and the benefits and privileges conveyed by the licence is a service: Trumpet Software Pty Ltd v OzEmail Pty Ltd (1996) 34 IPR 481; (1996) AIPC ¶91-261; (1996) ATPR ¶41-511. In Ruaro v Ferrari [2007] FCA 2022; BC200711602 at [48] Emmett J proceeded on the basis that rights conferred under a mooring agreement were “services” under s 4; (appeal) Ruaro v Holcomm Marine Pty Ltd [2008] FCAFC 174; BC200809667 per Jacobson, Siopis and Perram JJ. [page 130] In Obeid v Australian Competition and Consumer Commission (ACCC) [2014] FCA 839; BC201406280 Farrell J said that a contractual right to apply for an exploration permit did not fall within the meaning of “services”. The operation of a complaint and discipline system involves the provision of services: CPA Australia Ltd v Storai [2015] VSC 442; BC201508066 at [39] per Bell J. [10,025.90] “supply” The definitions of “supply” and “acquire” are symmetrical. A supply of goods must occur as part of a bilateral transaction

or dealing under which the other party acquires them: Cook v Pasminco Ltd (2000) 99 FCR 548; (2000) ATPR ¶41-167; [2000] FCA 677; BC200002707. The definition does not deal with the question of supply other than for consideration. It is therefore open to interpretation as to whether supply by way of a gift is a supply for the purposes of the Act. In Graham v Sloan (1943) NZLR 292 the New Zealand court said that a gift did not constitute a supply of goods. The expression “supply” ordinarily means “to provide” or “to furnish”. It is word of wide import: Australian Competition and Consumer Commission v Flight Centre Ltd (No 2) (2013) 307 ALR 209; [2013] FCA 1313; BC201315432 at [130] per Logan J. It is not necessary for a person to be in a contractual relationship with a consumer in order for that person to be a supplier: Australian Competition and Consumer Commission v Flight Centre Ltd (No 2) (2013) 307 ALR 209; [2013] FCA 1313; BC201315432 at [131] per Logan J. See also s 4C. [10,025.95] “trade and commerce” In Ransom v Higgs [1974] 1 WLR 1594 the court said that “trade” was sometimes used to denote any mercantile operation, but was more commonly used to denote operations of a commercial character by which the trader provided goods or services to customers for reward. In Re Ku-ring-gai Co-op Building Society (No 12) Ltd (1978) 22 ALR 621 at 648-9; 36 FLR 134; (1978) ATPR ¶40-094 Deane J said: The terms “trade” and “commerce” are not terms of art. They are expressions of fact and terms of common knowledge. While the particular instances that may fall within them will depend upon the varying phases of development of trade, commerce and commercial communication, the terms are clearly of the widest import . . . [they] are not restricted to dealings or communications which can properly be described as being at arm’s length in the sense that they are within the open markets or between strangers or have a dominant objective of profit-making.

In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; 92 ALR 193; 64 ALJR 293; (1990) ATPR ¶41-022 the court said that a reference to trade or commerce can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. There has been general support for this approach: Plimer v Roberts (1997) 80 FCR 303; 150 ALR 235; (1998) ATPR ¶41-602 at 40,521; Sykes v Reserve Bank of Australia (1998) ATPR ¶41-608; Port Kembla Coal Terminal Ltd v Braverus Maritime

Inc [2004] FCA 1211; BC200406051 at [612] per Hely J; Village Building Co Ltd v Canberra International Airport Pty Ltd (2004) 210 ALR 114; [2004] FCAFC 240; BC200405571 at [44] per French, Sackville and Conti JJ; Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd (2005) ANZ ConvR 108; [2004] VSCA 242; BC200408780 at [22] per Batt JA (Vincent and Nettle JJA agreeing); Shahid v Australasian College of Dermatologists [2007] FCA 693; BC200703509 at [50] per Nicholson J; (appeal) Shahid v Australasian College of Dermatologists [2008] FCAFC 72; BC200803280 at [139] per Jessup J (Branson and Stone JJ agreeing); Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2007] FCA 1069; BC200705700 at [51] per Finn J; TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9; BC200800732 at [43] per Spigelman CJ, Beazley and Hodgson JJA; Rana v Libraries Board of SA [2008] FMCA 911; BC200805485 at [41] per Simpson FM; Downe v Sydney West Area Health [page 131] Service (No 2) [2008] NSWSC 159; BC200805305 at [232] per Rothman J; see Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; BC200810918 per Hodgson, McColl and Campbell JJA; Street v Luna Park Sydney Pty Ltd (2009) 223 FLR 245; [2009] NSWSC 1; BC200900363 at [211] per Brereton J; Rosebanner Pty Ltd v Energy Australia (2009) 223 FLR 460; [2009] NSWSC 43; BC200900802 at [405] per Ward J; Auswest Timbers Pty Ltd v Secretary to Dept of Sustainability and Environment (2010) 241 FLR 360; [2010] VSC 389; BC201006317 per Croft J; Crossman v Taylor (No 3) [2011] FCA 734; BC201104604 per Besanko J; Taylor v Crossman (No 2) (2012) 199 FCR 363; [2012] FCAFC 11; BC201200696 per Lander, Cowdroy and Flick JJ; Barker v Commonwealth Bank of Australia [2012] FCA 942; BC201206576 per Besanko J; Murphy v Westpac Banking Corp [2014] FCA 1104; BC201408815 per Griffiths J; Murphy v Victoria (2014) 313 ALR 546; 289 FLR 337; [2014] VSCA 238; BC201407999 per Nettle AP, Santamaria and Beach JJA; CPA Australia Ltd v Storai [2015] VSC 442; BC201508066 per Bell J. In Concrete Constructions (NSW) Pty Ltd v Nelson, above, it was held that the giving of internal work instructions did not constitute conduct in trade or commerce. It is arguable that this decision can be distinguished from earlier

decisions which have held that pre-employment negotiations may be within the course of trade or commerce: Finucane v New South Wales Egg Corp (1988) 80 ALR 486; (1988) ATPR ¶40-863; Wright v TNT (Aust) Management Services Pty Ltd (1989) 85 ALR 442; 94 FLR 399; (1989) ATPR ¶40-929. However, the mere fact that a statement is made by one employee to another is not of itself decisive: McCormick v Riverwood International (Aust) Pty Ltd (1999) 167 ALR 689. In Stoelwinder v Southern Health Care Network (2000) 97 IR 76; [2000] FCA 444; BC200001645 at [6] Finkelstein J said that he would not regard negotiations for a contract of employment as an “internal” matter in the sense discussed in Concrete Constructions (NSW) Pty Ltd v Nelson, above. In his view, communications relating to the making or variation of a contract of employment are prima facie “in trade or commerce” because in most cases a contract of employment “is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character”. See Rana v Libraries Board of SA, above, at [41] per Simpson FM and [10,945.225]. It is not axiomatic that the conduct will have a trade or commercial character merely because the respondent is carrying on a business, although such a conclusion would normally follow: Sirway Asia Pacific Pty Ltd v Commonwealth (2002) ATPR (Digest) ¶46-226; [2002] FCA 1152; BC200205419 at [49] per Sundberg J. Statements made by a person not himself or herself engaged in trade or commerce may answer the statutory expression if, for example, they are designed to encourage others to invest, or to continue investments, in a particular trading entity: Fasold v Roberts (1997) 70 FCR 489 at 531; 145 ALR 548; (1997) ATPR ¶41-561; BC9702172; Houghton v Arms (2006) 225 CLR 553; 231 ALR 534; [2006] HCA 59; BC200610333 at [34] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd, above, at [48] per Spigelman CJ, Beazley and Hodgson JJA; Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669; BC200805237 at [85] per McCallum J. Application — in the course of trade or commerce Activities in the course of trade or commerce include: • the display of a brochure in the foyer of an office: Larmer v Power Machinery Pty Ltd (1977) ATPR ¶40-021;

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the provision of professional advice: Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215; 71 ALR 615; a statement made in a director’s memorandum to shareholders in relation to a proposed acquisition: Orison Pty Ltd v Strategic Minerals Corp NL (1987) 77 ALR 141; (1987) ATPR ¶40-803; a film produced as a political exercise regarding the wood chipping industry: Glorie v WA Chip and Pulp Co Pty Ltd (1981) 39 ALR 67; 55 FLR 310; [page 132]

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negotiations for an initial employment contract with a person not presently an employee and negotiations for a variation of an employment contract with a current employee are both conduct within the course of trade or commerce. It is conduct which is part of a corporation’s total trading activities: Barto v GPR Management Services Pty Ltd (1991) 105 ALR 339; (1991) ATPR ¶41-162; an employee’s entitlement to redundancy payments on the sale of a business: McCormick v Riverwood International (Aust) Pty Ltd (1999) 167 ALR 689; See Barker v Commonwealth Bank of Australia [2012] FCA 942; BC201206576 per Besanko J. See also [10,945.225]; refusal of the Indoor Cricket Federation of New South Wales to admit a team to participate in a summer netball competition: Lowe v Indoor Cricket Federation of New South Wales Inc (1994) ATPR ¶41-358; the acquisition of a property comprising six shops that were to be let and which were required as an income-producing asset that might be retained or which might be sold: Hosmer Holdings Pty Ltd v CAJ Investments Pty Ltd (1995) 57 FCR 45; (1995) ATPR ¶41-407; despatching a letter concerning interests in a pine plantation: Beagle Management Ltd v Targridge Ltd (1997) ATPR (Digest) ¶46-166; the printing of banknotes by the Reserve Bank of Australia:

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Sykes v Reserve Bank of Australia (1998) ATPR ¶41-608; (appeal) Sykes v Reserve Bank of Australia (1998) 88 FCR 511; 158 ALR 710; (1999) ATPR ¶41-699; statements made by a director as to alleged inefficient management of the company as part of his campaign for election to the board: NRMA Ltd v Yates (2000) 18 ACLC 45; (1999) ATPR ¶41-721. However, the decision has been questioned: Yates v Whitlam (1999) 32 ACSR 595 at 600-1; (1999) ATPR ¶41-722 at 43,381 per Windeyer J; educational and training functions carried out by the Institute of Chartered Accountants in Australia in connection with its chartered accountants program: Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2001) ATPR (Digest) ¶46-212; [2001] FCA 1056; BC200104487 at [153] per Lindgren J; (appeal) Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; (2002) ATPR ¶41-879; [2002] FCAFC 197; BC200203308 at [78] per Heerey J (Black CJ agreeing); offering an audit opinion: King v Yurisich [2005] FCA 1277; BC200506823 at [391] per Lander J; representation as to the “off the plan” price of a unit: Jebeli v Modir [2005] NSWCA 184; BC200503894 per Giles, Tobias and McColl JJA; piloting a ship: Braverus Maritime Inc v Port Kembla Coal Terminal Ltd (2005) 148 FCR 68; (2006) ATPR (Digest) ¶46267; [2005] FCAFC 256; BC200510599 at [142] per Tamberlin, Mansfield and Allsop JJ; online wine sales: Houghton v Arms (2006) 225 CLR 553; 231 ALR 534; [2006] HCA 59; BC200610333 at [35] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; acting as real estate agent: Walker v Masillamani [2007] VSC 172; BC200704007 at [84] per Cavanough J; statements in a training handbook: Shahid v Australasian College of Dermatologists [2008] FCAFC 72; BC200803280 per Jessup J (Branson and Stone JJ agreeing); See [2011] NSWSC 163 per Johnson J. Promotion of prescription medicines: Peterson v Merck Sharpe

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& Dohme (Aust) Pty Ltd (2010) 184 FCR 1; 266 ALR 1; [2010] FCA 180; BC201001051 at [888] per Jessup J. Representations regarding the acquisition and operation of a marina: Crossman v Taylor (No 3) [2011] FCA 734; BC201104604 per Besanko J. Representations regarding cancer treatments: Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) (No 2) [2011] VSC 153; BC201102208 per Pagone J. [page 133]

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Campaign to disparage a local pharmacist: Nyoni v Shire of Kellerberrin [2011] FCA 1299; BC201108664 per Sipos J. Promotional flyer published by franchisor: Australian Competition and Consumer Commission (ACCC) v BAJV Pty Ltd [2014] FCAFC 52; BC201403136 per Rares, Jessup and Flick JJ.

Application — not in the course of trade or commerce Activities not in the course of trade or commerce include: • the one-off sale by an owner of residential property: O’Brien v Smolonogov (1983) 53 ALR 107; (1983) ATPR ¶40-418; Argy v Blunts (1990) 26 FCR 112; 94 ALR 719; (1990) ATPR ¶41-015 (this exception does not extend to the sale of a private residence that forms part of a series of transactions involving dealings in land: Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405; (1992) ATPR ¶41-184). However, the sale of a capital asset used in a business will: Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325; 59 ALR 334; (1985) ATPR ¶40565; Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd [2005] ANZ ConvR 108; [2004] VSCA 242; BC200408780 at [22] per Batt JA (Vincent and Nettle JJA agreeing); • the provisions of a gratuitous service: E v Australian Red Cross Society (1991) 27 FCR 310; 99 ALR 601; (1991) ATPR ¶41085; • the giving of a speech at an international trade conference by a

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minister does not form part of the central conception of trade or commerce and is not made so merely because the speech concerns matters of trade or commerce: Unilan Holdings Pty Ltd v Kerin (1992) 107 ALR 709; (1992) ATPR ¶41-169; the giving of lectures and publishing articles advancing the hypothesis that a boat-shaped formation near Mount Ararat in Eastern Turkey was the remains of Noah’s Ark: Fasold v Roberts (1997) 70 FCR 489; 145 ALR 548; (1997) ATPR ¶41561; (appeal) Plimer v Roberts (1997) 80 FCR 303; 150 ALR 235; (1998) ATPR ¶41-602; statements concerning the effect of aircraft noise on residents: Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449; (1999) ATPR 41-710; [1999] FCA 1019; BC9905793; comments by a member of staff relating to a Department’s policy on bovine disease: New South Wales v RT & YE Falls Investments Pty Ltd (2003) 57 NSWLR 1; [2003] NSWCA 54; BC200301232; a report by a professor on Aboriginal cultural practices relating to the construction of a bridge to Hindmarsh Island in South Australia: Chapman v Luminis Pty Ltd (No 5) (2002) ATPR (Digest) ¶46-214; [2001] FCA 1106; BC200105040 at [178] per von Doussa J; public statements made by the applicant concerning likely noise from a subdivision of land: Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) ATPR ¶41-710; Village Building Co Ltd v Canberra International Airport Pty Ltd (2004) 210 ALR 114; [2004] FCAFC 240; BC200405571 per French, Sackville and Conti JJ; an email sent by a former employee claiming that the company was about to alter its distribution practices: Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169 at 173; (1999) ATPR ¶41-730 at 43,471; advertising booklets distributed to medical practitioners by a legal firm: Nixon v Slater & Gordon (2000) 175 ALR 15; (2000) ATPR ¶41-765; [2000] FCA 531; BC200001995; noxious omissions from a smelter: Cook v Pasminco Ltd (2000)

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99 FCR 548; (2000) ATPR ¶41-167 at 41,034; [2000] FCA 677; BC200002707; submission of payment claim to adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW); Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143; BC200510259 at [56] per Campbell J; statements in a training handbook: Shahid v Australasian College of Dermatologists [2007] FCA 693; BC200703509 per Nicholson J; [page 134]

suspension of an employee: Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159; BC200805305 per Rothman J; • the publication of statements regarding a building company: Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669; BC200805237 per McCallum J; • an employee advising an employer in relation to the development of a product: Blackmagic Design Pty Ltd v Overliese [2010] FCA 13; BC201000102 per Jessup J; • statements concerning the renewal of a forestry licence: Auswest Timbers Pty Ltd v Secretary to Dept of Sustainability and Environment (2010) 241 FLR 360; [2010] VSC 389; BC201006317 per Croft J; • a submission to a department regarding an exploration licence: Obeid v Australian Competition and Consumer Commission [2014] FCA 839; BC201406280 per Farrell J. • operation of a complaint and discipline system: CPA Australia Ltd v Storai [2015] VSC 442; BC201508066 per Bell J. The expression is also discussed in the context of s 18 of the Australian Consumer Law (in Schedule 2 of the Act), which prohibits misleading and deceptive conduct in trade or commerce. •

[10,025.100] “trading

corporation”

In

determining

whether

a

corporation is a trading corporation, the court has considered the current activities of the corporation: R v Trade Practices Tribunal and Cmr of Trade Practices; Ex parte St George County Council (1974) 2 ALR 371; R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190; 23 ALR 439 and State Superannuation Board (Vic) v Trade Practices Commission (1980) ATPR ¶40-192; Shahid v Australasian College of Dermatologists [2007] FCA 693; BC200703509 at [28] per Nicholson J; Auswest Timbers Pty Ltd v Secretary to Dept of Sustainability and Environment (2010) 241 FLR 360; [2010] VSC 389; BC201006317 per Croft J. However, where the corporation has no trading activities, the court will consider the purpose for which the corporation was formed: Fencott v Muller (1983) 152 CLR 570; 46 ALR 41; 57 ALJR 317; (1983) ATPR ¶40-350. A corporation will be a trading corporation if its trading represents a substantial aspect of its activities. Trading which is merely a peripheral aspect of those activities will not be sufficient to render it a trading corporation: R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc), above, CLR at 208; ALR at 452; Australian Beauty Trade Suppliers Ltd v Conference & Exhibition Organisers Pty Ltd (1991) 29 FCR 68; 99 ALR 474; (1991) ATPR ¶41-107; Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) (2002) ATPR (Digest) ¶46-223; [2002] FCA 860; BC200203803 at [148] per Weinberg J. See Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) (2008) 252 ALR 136; (2008) 178 IR 168; [2008] WASCA 254; BC200810885 per Steytler P, Pullin J and Le Miere J. A trading corporation may be a sporting, religious or government body: Shahid v Australasian College of Dermatologists, above, at [30] per Nicholson J. SECTION 4(2) [10,025.130] Overview The provision expands the meanings of the terms “engaging in conduct”, “conduct”, “refusing to do an act” and “offering to do an act”. [10,025.135] Refusing to do an act This includes refraining from doing an act or making it known that an act will not be done. Refraining from doing

an act will be relevant only where it was not done inadvertently. In RhonePoulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) ATPR (Digest) ¶46-010 Bowen CJ postulated that the words “refuse” and “refrain” clearly connote that the omission to do the act must be deliberate. See also Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1; Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714; (1999) ATPR ¶41-694; Johnson Tiles Pty Ltd v Esso Australia Ltd (1999) ATPR ¶41-696 at 42,888. [page 135] [10,025.140] Offering to do an act This definition takes the term “offer” outside its strict contractual meaning. It does not, however, extend this term to encompass invitations to treat although it may be supposed that this was the intention. It provides that an offer to do an act includes “a reference to the person making it known that the person will accept applications, offers or proposals for that person to do that act”. SECTION 4(3) [10,025.155] Overview Under this section, any provision of the Act which renders unenforceable a provision of a contract or covenant will apply at any time when that provision of the contract or covenant has or is likely to have the proscribed effect, irrespective of whether at some other time in the past or the future the provision did not have that effect. This provision assists in clarifying and interpreting ss 45(1) and 45B(1) which both render unenforceable certain provisions of contracts and covenants which have or are likely to have a proscribed effect. The provision overcomes any arguments that the relevant sections do not apply to the provisions of a contract or a covenant made before 1977 and which were not unenforceable on that date. It also overcomes any argument that the proscribed effect is short term and therefore the provision of the contract or covenant should remain on foot. SECTION 4(4)

[10,025.175] Overview This provision provides that an acquisition of shares or assets may be undertaken either alone or jointly and includes an acquisition of a legal and equitable interest. The Act is not concerned with acquisition of assets by way of a charge or in the ordinary course of business. The provision applies to s 50 relating to acquisition of shares or assets. [10,025.185] Options In Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657; (1990) ATPR ¶41-002; (1990) ATPR ¶41-062 it was said that the creation of an option over shares resulted in an equitable interest being held in those shares which therefore involved the acquisition of the shares under s 4(4). ____________________

[10,050] Subsidiary, holding and related bodies corporate 4A (1) For the purposes of this Act, a body corporate shall, subject to subsection (3), be deemed to be a subsidiary of another body corporate if: (a) that other body corporate: (i) controls the composition of the board of directors of the first-mentioned body corporate; (ii) is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first-mentioned body corporate; or (iii) holds more than one-half of the allotted share capital of the first-mentioned body corporate (excluding any part of that allotted share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or (b) the first-mentioned body corporate is a subsidiary of any body corporate that is that other body corporate’s subsidiary (including any body corporate that is that other body corporate’s subsidiary by another application or other applications of this paragraph).

[page 136] (2) For the purposes of subsection (1), the composition of a body corporate’s board of directors shall be deemed to be controlled by another body corporate if that other body corporate, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other body corporate shall be deemed to have power to make such an appointment if: (a) a person cannot be appointed as a director without the exercise in his or her favour by that other body corporate of such a power; or (b) a person’s appointment as a director follows necessarily from his or her being a director or other officer of that other body corporate. [subs (2) am Act 88 of 1995 s 91]

(3) In determining whether a body corporate is a subsidiary of another body corporate: (a) any shares held or power exercisable by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it; (b) subject to paragraphs (c) and (d), any shares held or power exercisable: (i) by any person as a nominee for that other body corporate (except where that other body corporate is concerned only in a fiduciary capacity); or (ii) by, or by a nominee for, a subsidiary of that other body corporate, not being a subsidiary that is concerned only in a fiduciary capacity; shall be treated as held or exercisable by that other body corporate; (c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned body corporate, or of a trust deed for securing any allotment of such debentures, shall be disregarded; and (d) any shares held or power exercisable by, or by a nominee for, that

other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other body corporate if the ordinary business of that other body corporate or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business. (4) A reference in this Act to the holding company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary. (5) Where a body corporate: (a) is the holding company of another body corporate; (b) is a subsidiary of another body corporate; or (c) is a subsidiary of the holding company of another body corporate; that first-mentioned body corporate and that other body corporate shall, for the purposes of this Act, be deemed to be related to each other. (5A) For the purposes of Parts IV, VI and VII: (a) a body corporate that is a party to a dual listed company arrangement is taken to be related to the other body corporate that is a party to the arrangement; and (b) a body corporate that is related to one of the parties to the arrangement is taken to be related to the other party to the arrangement; and [page 137] (c) a body corporate that is related to one of the parties to the arrangement is taken to be related to each body corporate that is related to the other party to the arrangement. [subs (5A) insrt Act 131 of 2006 s 3 and Sch 6[2], opn 1 Jan 2007]

(6) In proceedings under this Act, whether in the Court or before the Tribunal or the Commission, it shall be presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.

SECTION 4A GENERALLY [10,050.5] Overview This section defines the terms “subsidiary”, “holding company” and “related bodies corporate”. It was amended by the Trade Practices Amendment Act (No 1) 2006 to apply to bodies corporate that are parties to a dual listed company arrangement. [10,050.10] Subsidiary A body corporate (“A”) will be a subsidiary of another body corporate (“B”) where B controls the composition of A’s board of directors, is in a position to cast or control the casting of more than 50 per cent of the votes in a general meeting of A, holds more than 50 per cent of the allotted share capital in A (excluding share capital which carries no right to participate beyond a specified amount in the distribution of profits or capital) or where A is the subsidiary of another subsidiary of B. [10,050.15] Control of the board B is deemed to be in a position to control A’s board of directors if B has the power to appoint or remove all or a majority of the directors without the consent or concurrence of any other person. B will be deemed to have that power if a person cannot be appointed as a director of A without B’s approval or a person’s appointment as director follows necessarily from that person being a director of B. [10,050.20] Assessing relevant shareholding In determining whether A is a subsidiary of B, any shares held or powers exercisable by a nominee of B (acting in other than a fiduciary capacity), or a nominee of a subsidiary of B, shall be treated as being held or exercisable by B with the following exceptions: • shares held or power exercisable by virtue of the provisions of a debenture of A or a trust deed for securing the allotment of a debenture; • shares held or power exercisable by B, its nominee or subsidiary’s nominee, if the ordinary business of B or its subsidiary includes the lending of money and the shares are held or the power is exercisable by way of security for a transaction entered into in the normal course of business; • shares held or powers exercised by B in a fiduciary capacity.

[10,050.25] Related bodies corporate A related body corporate is one which is a holding company or a subsidiary of another body corporate or is the subsidiary of the holding company of another body corporate. The onus is on the party wishing to establish that particular corporations are related to provide evidence of this fact. For the definition of the term “related bodies corporate” see ACL s 6. [10,050.30] Dual listed companies The reference to a dual listed company in s 4A(5A) was inserted by the Trade Practices Amendment Act (No 1) 2006. Under the provision, bodies corporate that are parties to a dual listed company arrangement will be considered related bodies corporate. ____________________

[page 138]

[10,055]

Consumers

4B (1) For the purposes of this Act, unless the contrary intention appears: (a) a person shall be taken to have acquired particular goods as a consumer if, and only if: (i) the price of the goods did not exceed the prescribed amount; or (ii) where that price exceeded the prescribed amount — the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption or the goods consisted of a commercial road vehicle; and the person did not acquire the goods, or hold himself or herself out as acquiring the goods, for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land; and (b) a person shall be taken to have acquired particular services as a consumer if, and only if: (i) the price of the services did not exceed the prescribed amount; or (ii) where that price exceeded the prescribed amount — the services were of a kind ordinarily acquired for personal, domestic or household use or consumption. [subs (1) am Act 88 of 1995 s 91]

(2) For the purposes of subsection (1): (a) the prescribed amount is $40,000 or, if a greater amount is prescribed for the purposes of this paragraph, that greater amount; (b) subject to paragraph (c), the price of goods or services purchased by a person shall be taken to have been the amount paid or payable by the person for the goods or services;

where a person purchased goods or services together with other property or services, or with both other property and services, and a specified price was not allocated to the goods or services in the contract under which they were purchased, the price of the goods or services shall be taken to have been: (i) the price at which, at the time of the acquisition, the person could have purchased from the supplier the goods or services without the other property or services; (ii) if, at the time of the acquisition, the goods or services were not available for purchase from the supplier except together with the other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier without other property or services — the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or (iii) if, at the time of the acquisition, goods or services of the kind acquired were not available for purchase from any supplier except together with other property or services — the value of the goods or services at that time; (d) where a person acquired goods or services otherwise than by way of purchase, the price of the goods or services shall be taken to have been: (c)

[page 139] (i)

the price at which, at the time of the acquisition, the person could have purchased the goods or services from the supplier; (ii) if, at the time of the acquisition, the goods or services were not available for purchase from the supplier or were so available only together with other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier — the lowest

price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or (iii) if goods or services of the kind acquired were not available, at the time of the acquisition, for purchase from any supplier or were not so available except together with other property or services — the value of the goods or services at that time; and (e) without limiting by implication the meaning of the expression services in subsection 4(1), the obtaining of credit by a person in connection with the acquisition of goods or services by him or her shall be deemed to be the acquisition by him or her of a service and any amount by which the amount paid or payable by him or her for the goods or services is increased by reason of his or her so obtaining credit shall be deemed to be paid or payable by him or her for that service. [subs (2) am Act 88 of 1995 s 91]

(3) Where it is alleged in any proceeding under this Act or in any other proceeding in respect of a matter arising under this Act that a person was a consumer in relation to particular goods or services, it shall be presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services. (4) In this section, commercial road vehicle means a vehicle or trailer acquired for use principally in the transport of goods on public roads. SECTION 4B GENERALLY [10,055.05] “consumer” The term “consumer” is also defined under the ACL: ACL s 3. Note, however, that ss 4–4K do not apply to the ACL unless the contrary intention appears: CCA s 4KA. [10,055.10] Overview A person will be taken to have acquired goods or services as a consumer if: • the price of the goods or services does not exceed the prescribed amount (currently $40,000); or • where the price exceeds the prescribed amount, the goods or

services are of a kind ordinarily acquired for personal, domestic or household use or consumption, or are goods consisting of a commercial road vehicle. In each case the goods must not have been acquired for the purpose of resupply, or for using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land. [10,055.13] Acquisition of goods by a consumer In most cases it will be a natural person who acquires goods as a consumer under s 4B(1)(b). However, s 4B(1)(b) is equally capable of applying to a corporate consumer: Seeley International Pty Ltd v Newtronics Pty Ltd [2001] FCA 1862; BC200108270 at [164] per O’Loughlin J. [page 140] [10,055.15] Goods and services Section 4(2)(e) deems the provision of credit in relation to the acquisition of goods to also be the acquisition of a service. The price paid for that service is the increased price charged for the goods as a result. See s 4(1) and [10,025.60] and [10,025.85]. [10,055.20] “acquire”

See ss 4(1) and 4C and [10,025.5].

[10,055.25] “price” The price of the goods or services will be the amount paid for them by the consumer. However, if no price is specified or one price is charged for a bundle of goods or services or the goods and services are acquired other than by way of purchase then the price will be deemed to be: • the price at which those goods or service could have been purchased individually from the supplier at the time of acquisition; • if the above is not possible, the lowest price at which goods or services of the kind acquired could be purchased from other suppliers at that time; or • if both of the above are not possible, then the value of the goods or services at that time.

Nea Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106; BC200503806 at [116] per EM Heenan J. In determining “price” one looks at the contract price unless s 4B(2)(c) or (d) applies. Even then, the court must look to see the price at which the goods themselves could have been acquired from the supplier, not acquired on the open market: Business & Professional Leasing Pty Ltd [2008] NSWSC 902; BC200807868 at [149] per Young CJ. Arguably “price” does not include finance charges for leasing goods but the cost of their outright purchase: Business & Professional Leasing Pty Ltd v Dannawi [2008] NSWSC 902 at [141] per Young CJ. [10,055.35] Gifts In Clarke v New Concept Import Services Pty Ltd (1982) 2 TPR 183 the court found that a person who acquired goods as a giveaway acquired those goods as a consumer. The section does not require a payment to be made. It merely specifies that the value of the goods must be below the prescribed price. [10,055.40] Ordinarily acquired for personal, domestic or household use or consumption The word “ordinarily” means “commonly” or “regularly”, not “principally”, “exclusively” or “predominantly”: Bunnings Group Ltd v Laminex Group Ltd (2006) 153 FCR 479; 230 ALR 269; [2006] FCA 682; BC200603965 at [81] per Young J (Bunnings). It is likely that the phrase used in s 4B carries a consistent meaning wherever it is used in the Act: Theo Holdings Pty Ltd v Hockey (2000) 99 FCR 232; 175 ALR 89; [2000] FCA 665; BC200002647 at [21]; Bunnings, above, at [72] per Young J. It is preferable to approach the question (of whether goods are of a kind ordinarily acquired for personal, domestic or household use or consumption) as a single composite question. This is to be contrasted with a two-stage inquiry as to: first, the genus of goods in question; and second, whether those kinds of goods are ordinarily acquired for personal, domestic or household use or consumption: Bunnings, above, at [82] per Young J. Depending on the precise statutory question and the relevant circumstances, it will be relevant to inquire as to the essential character of the goods in question: Bunnings, above, at [83] per Young J. These words are interpreted according to their everyday meanings. Where goods or services are of the requisite kind but are put to a commercial or

business use they will still retain their original character: Carpet Call Pty Ltd v Chan (1987) ASC ¶55-553; (1987) ATPR (Digest) ¶46-025. In the absence of evidence of actual use, the nature of goods is such that they are not of a kind ordinarily acquired for personal, domestic or household use: Jillawarra Grazing Co v John Shearer Ltd (1984) ASC ¶55-307; (1984) ATPR ¶40-441; BC8400694 (an airseeder); Atkinson v Hastings Deering (Qld) Pty Ltd (1985) 8 FCR 481; (1985) ATPR ¶40-625 (a tractor); Four Squares Stores (Qld) Ltd v ABE Copiers Pty Ltd (1981) ATPR ¶40-232 (photocopier); Minchillo [page 141] v Ford Motor Co of Australia (1984) ATPR (Digest) ¶46-119 (prime mover); Crago v Multiquip Pty Ltd (1998) ATPR ¶41-620 (ostrich incubators). In the context of s 74A(2)(a) (repealed, see now ACL ss 7, 8), it is relevant to consider evidence concerning the design, marketing, pricing and potential uses of the type of goods in question: Bunnings , above, at [86] per Young J. In Laws v GWS Machinery Pty Ltd (2007) 209 FLR 53; [2007] NSWSC 316; BC200704254 at [160] Rothman J doubted whether a tractor tyre would “ordinarily” be acquired for personal, domestic or household use. In Director of Consumer Affairs Victoria v Craig Langley Pty Ltd [2008] VCAT 1332 at [23], the Victorian Civil and Administrative Tribunal, per Harbison J, found that the provision of fitness services could be categorised as services ordinarily acquired for personal use. [10,055.42] Acquisition of goods for the purpose of resupply or for using them up or transforming them in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land The “repairing or treating other goods or fixtures” in s 4B is an alternative to the purpose of “resupply”, or the purpose of “using them up”, or the “process of production or manufacture”. A person therefore remains a consumer even though the goods are required for the purpose of using them up unless the goods are used up, relevantly “in the course of repairing or treating other goods” or “in the course of the process of repairing or treating other goods”: Laws v GWS Machinery Pty Ltd (2007)

209 FLR 53; [2007] NSWSC 316; BC200704254 at [142] per Rothman J. [10,055.43] Presumption that a person is a consumer Under s 4B(3) a person will be presumed to be a consumer unless the contrary is established. The effect of this provision is to cast an evidentiary onus on the respondent to prove that the person is not a consumer: Seeley International Pty Ltd v Newtronics Pty Ltd [2001] FCA 1862; BC200108270 at [168] per O’Loughlin J. [10,055.45] Financial services Financial services are regulated by the Australian Securities and Investments Commission. The term “financial services” has the same meaning as in Australian Securities and Investments Commission Act 2001 s 12BAB: ACL s 2. ____________________

[10,060]

Acquisition, supply and re-supply

4C In this Act, unless the contrary intention appears: (a) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods; (b) a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services; (c) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both; (d) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; (e) a reference to the re-supply of goods acquired from a person includes a reference to: (i) a supply of the goods to another person in an altered form or condition; and (ii) a supply to another person of goods in which the firstmentioned goods have been incorporated;

(f)

a reference to the re-supply of services (the original services) acquired from a person (the original supplier) includes a reference to: [page 142]

(i)

a supply of the original services to another person in an altered form or condition; and (ii) a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier. [s 4C am Act 88 of 1995 s 5]

SECTION 4C GENERALLY [10,060.05] Definitions under the ACL See also ACL s 11 for an inclusive definition of the terms “acquire”, “supply” and re-supply” under the ACL. Note, however, that CCA ss 4–4K do not apply to the ACL unless the contrary intention appears: CCA s 4KA. [10,060.10] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provision in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. The term “financial services” has the same meaning as in Australian Securities and Investments Commission Act 2001 s 12BAB: ACL s 2. ____________________

[10,065]

Exclusionary provisions

4D (1) A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if: (a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made,

or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and (b) the provision has the purpose of preventing, restricting or limiting: (i) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or (ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions; by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate. (2) A person shall be deemed to be competitive with another person for the purposes of subsection (1) if, and only if, the first-mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates. [page 143] SECTION 4D GENERALLY [10,065.5] Overview Section 45(2) prohibits the making or giving effect of a contract, arrangement or understanding that contains an exclusionary provision. Section 4D defines an exclusionary provision and in this way operates in conjunction with s 45(2).

An exclusionary provision is a provision of a contract, arrangement or understanding between two or more competitors which has the purpose of preventing, restricting or limiting the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions by any or all of the parties to the contract, arrangement or understanding. An exclusionary provision is also referred to as a collective boycott: Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159 at 209; (1993) ATPR ¶41-216 at 41,005; South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456; 181 ALR 188; [2001] FCA 862; BC200103647 at [90] per Heerey J. Making or giving effect to a contract, arrangement or understanding containing an exclusionary provision is prohibited whether or not it lessens competition or has the potential to do so. As a result of the passage of the Trade Practices Amendment Act (No 1) 2006, s 45 will not apply to exclusionary provisions if a collective bargaining notice is in force under s 93AD. See [11,895.200]. It is also a defence to a contravention of s 45 if the person establishes that the provision is for the purpose of a joint venture and does not have the purpose or effect of substantially lessening competition. See [11,594C.5]. [10,065.8] Provision of a contract, arrangement or understanding Section 4D, like s 45, operates on a “provision” of a contract arrangement or understanding, and not on the entire contract, arrangement or understanding: South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456; 181 ALR 188; [2001] FCA 862; BC200103647 at [144] per Moore J, at [245] per Merkel J. The distinction is important as the overall result or effect intended by the contract may be inconsistent with the result or effect intended by a particular provision in the contract: South Sydney District Rugby League Football Club Ltd v News Ltd, above, at [245] per Merkel J. See also News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 200 ALR 157; [2003] HCA 45; BC200304465 at [144] per Kirby J. The relevant time for determining whether there is an exclusionary provision is when the contract, arrangement or understanding is made. All the requirements of s 4D must be present at this time: Spotwire Pty Ltd v Visa International Service Assn Inc (2003) ATPR ¶41-949; [2003] FCA 762;

BC200303965 at [35] per Bennett J. [10,065.10] “contract, [10,700.15]-[10,700.30].

arrangement

or

understanding”

See

[10,065.15] Competitors The contract, arrangement or understanding must be between parties “any two or more of whom are competitive with each other”: Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32; (1991) ATPR ¶41-098. Subsection (2) deems a person to be competitive with another if the first person (or a related body corporate) is or is likely to be, but for the exclusionary provision, in competition with the second person (or a related body corporate) in relation to the supply or acquisition of the goods or services to which the exclusionary provision relates. It is sufficient if only two of the parties to the contract, arrangement or understanding are in competition with each other. Also, only one party need be a body corporate for the provisions of the Act to operate, and that party need not be one of the parties which are competitive with each other. In Hughes v Western Australian Cricket Assn Inc (1986) 19 FCR 10; 69 ALR 660; (1986) ATPR ¶40-736, it was found to be sufficient for the purposes of this section to establish that the various cricket clubs were competitive with each other even though they were not competitive with the Association and were not trading corporations. [page 144] It does not matter that the two or more relevant persons are not actually competing with each other at the time of the contract, arrangement or understanding. It is enough that the person is likely to be in competition or, but for the contract, arrangement or understanding, would be likely to be in competition. The phrase “would be likely to be” conveys a lower degree of likelihood than the phrase “would be”: News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; 139 ALR 193; (1996) ATPR ¶41-521 at 42,648. See also Australian Competition and Consumer Commission v SIP Australia Pty Ltd (2002) ATPR ¶41-877; [2002] FCA 824; BC200203522 at [106] per Goldberg J; Australian Competition and Consumer Commission v

Liquorland (Aust) Pty Ltd (2006) ATPR ¶42-123; [2006] FCA 826; BC200604966 at [811] per Allsop J. See Australian Competition and Consumer Commission (ACCC) v TF Woollam & Son Pty Ltd [2011] FCA 973; BC201106386 per Logan J. It is possible for two people actually to compete in a market notwithstanding that by doing so, one of them contravenes a prior contractual restraint; the fact that the competitive conduct is or might be in breach of contract does not alter the fact of the competitive conduct: Australian Competition and Consumer Commission v Visy Paper Pty Ltd (2000) 186 ALR 731; (2001) ATPR ¶41-799 at 42,609; [2000] FCA 1640; BC200006997. See also [10,025.25]. [10,065.20] “purpose” “Purpose” does not mean motive, but what is intended to be achieved: South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456; 181 ALR 188; [2001] FCA 862; BC200103647 at [65]–[66] per Heerey J; News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 200 ALR 157; [2003] HCA 45; BC200304465 at [18] per Gleeson CJ; see Australian Competition and Consumer Commission v White Top Taxis Ltd (2009) 253 ALR 449; [2009] FCA 88; BC200900661 at [12] per Finkelstein J. The relevant purpose is the subjective purpose of the parties: ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (1991) 27 FCR 460; 97 ALR 513; (1991) ATPR ¶41-069; South Sydney District Rugby League Football Club Ltd v News Ltd, above, at [67] per Heerey J, at [144] per Moore J, at [243] per Merkel J; News Ltd v South Sydney District Rugby League Football Club Ltd, above, at [18] per Gleeson CJ, at [43] per McHugh J, at [212] per Callinan J, at [130] per Kirby J (dissenting); Australian Competition and Consumer Commission v Liquorland (Aust) Pty Ltd (2006) ATPR ¶42-123; [2006] FCA 826; BC200604966 at [61] per Allsop J; Worsley Timber 2000 Pty Ltd (in liq) v Cmr of State Revenue 2007 ATC 4841; [2007] WASC 155; BC200705833 at [273] per Simmonds J; Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [138] per Besanko J; Australian Competition and Consumer Commission (ACCC) v Prysmian Cavi E Sistemi SRL (fka Prysmian Cavi E Sistemi Energia SRL) [2016] FCA 822; BC201605911 at [176] per Besanko J.

The substantial purpose test in s 4F perhaps avoids difficulties in discerning the relevant purpose of multiple parties: News Ltd v South Sydney District Rugby League Football Club Ltd, above, at [62] per Gummow J. The proscribed purpose need not be the only purpose of the contract, arrangement or understanding providing it is a substantial purpose: see s 4F and [10,095.5]-[10,095.15]. The purpose must, however, be common to all the parties to the contract, arrangement or understanding: Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing (NSW) Ltd (1987) 16 FCR 351; (1987) ATPR ¶40-820. A possible outcome detracting from the desired or intended purpose does not alter the nature of the purpose: South Sydney District Rugby League Football Club Ltd v News Ltd, above, at [71] per Heerey J, at [246] per Merkel J. [10,065.23] “preventing, restricting or limiting” The word “restricting” may have been adopted into the Act from the Restrictive Trade Practices Act 1956 (UK): South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456; 181 ALR 188; [2001] FCA 862; BC200103647 at [175] per Moore J. The word “limiting” appears to have arisen in the 1977 amendments to the Act following the recommendations of the Swanson Committee (see [10,005.5]): South Sydney District Rugby League Football Club Ltd v News Ltd, above, at [175] per Moore J. [page 145] The “or” in the expression “preventing, restricting or limiting” is dispersive: South Sydney District Rugby League Football Club Ltd v News Ltd, above, at [174] per Moore J. The expression “preventing, restricting or limiting” qualifies the words “the supply” and “the acquisition” in s 4D(1)(b)(i) and (ii): South Sydney District Rugby League Football Club Ltd v News Ltd, above, at [181] per Moore J. However the supply (or acquisition) of services can be restricted or limited if the character of that which is supplied (or acquired) is altered though its fundamental character remains the same: South Sydney District Rugby League Football Club Ltd v News Ltd, above, at [181] per Moore J. The expression “restricting or limiting” does not render s 4D(1)(b)

applicable only to situations where there is partial supply: South Sydney District Rugby League Football Club Ltd v News Ltd, above, at [177] per Moore J. The expression “restricting or limiting” does not exclude the application of a situation where one of the parties to an agreement to fix price and restrict supply, subsequently submits a price: Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [168] per Besanko J. [10,065.25] “supply or acquisition” See ss 4(1) and 4C, and commentary at [10,025.5] and [10,025.90]. See also ACL s 11 for an inclusive definition of the terms “acquire”, “supply” and re-supply” under the ACL. Note, however, that CCA ss 4–4K do not apply to the ACL unless the contrary intention appears: CCA s 4KA. [10,065.30] “particular persons or classes of persons” Prior to the 1986 amendments to the Act, s 4D referred only to “particular persons”. It was considered that the term “particular persons” did not include “classes of persons” and that it was necessary for the persons to be either specified or ascertainable: see Bullock v Federated Furnishings Trade Society of Australasia (1985) ATPR ¶40-505; Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1; 58 ALR 423; (1985) ATPR ¶40-512; Rural Press Ltd v Australian Competition and Consumer Commission (2003) 203 ALR 217; 78 ALJR 274; [2003] HCA 75; BC200307578 at [73]–[80] per Gummow, Heydon and Hayne JJ; Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688 at [129] per Young J. The section now extends to include “particular classes of persons”. The word “particular” as an adjective qualifies “persons”: South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456; 181 ALR 188; (2001) ATPR ¶41-824; [2001] FCA 862; BC200103647 at [79] per Heerey J, at [192] per Moore J. In ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (1991) 27 FCR 460; 97 ALR 513 at 540; (1991) ATPR ¶41-069 the court was asked to consider whether the words “persons other than the licensees” had sufficient particularity to constitute a class of person under s 4D. The court in this case stated that:

. . . they are identified, in the present case, by the characteristic that they may not be supplied with the information in question unless they accept and become bound by the restraints imposed by the Dynamic Agreement. Such persons come within a particular category or description defined by a collective formula … They ordinarily would be treated as constituting a particular class, even though at any one time the identity of all the members of the class might not readily be ascertainable. What distinguishes the class and makes it particular is that its members are objects of an anticompetitive purpose …

The view expressed in ASX Operations Pty Ltd v Pont Data Australia Pty Ltd, above, was followed in South Sydney District Rugby League Football Club Ltd v News Ltd (1999) 169 ALR 120 at 133; (1999) ATPR ¶41-728 at 43,450; News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 200 ALR 157; [2003] HCA 45; BC200304465 at [77] per Gummow J (compare Callinan J at [217]); Australian Competition and Consumer Commission v Rural Press [page 146] Ltd (2001) ATPR ¶41-804; [2001] FCA 116; BC200100573 at [80] per Mansfield J; Australian Competition and Consumer Commission v White Top Taxis Ltd (2009) 253 ALR 449; [2009] FCA 88; BC200900661 at [11] per Finkelstein J. A class may be identified by inference in the sense that a class to which supply will be made is identified: Australian Competition and Consumer Commission (ACCC) v Prysmian Cavi E Sistemi SRL (fka Prysmian Cavi E Sistemi Energia SRL) [2016] FCA 822; BC201605911 at [180] per Besanko J. In Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236; 193 ALR 399; [2002] FCAFC 213; BC200203866 at [99], Whitlam, Sackville and Gyles JJ agreed with the construction of s 4D outlined by Finn J at first instance in South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000] FCA 1541; BC200006604 at [214]: For the class to have significance for s 4D purposes it must be the intended object of the discrimination envisaged by the section. If it is not so “aimed at” specifically (News Ltd v Australian Rugby Football League Ltd [(1996) 64 FCR 410 at 577; 139 ALR 193 at 349]) the members of the alleged class do not constitute a “particular class” for s 4D(1) purposes though they may otherwise be said to constitute a class because they happen to share some differentiating characteristic be this the fact of exclusion or otherwise.

However, in the High Court in News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 200 ALR 157; [2003] HCA 45; BC200304465 at [79] Gummow J said that it is preferable to speak of the purpose of the provision being “directed toward” a particular class rather than “aimed at” or “targeted”. See also Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [2899] per Sackville J. This was said to avoid the connotations of aggression or the inducement of harm, typically found in judicial discussions of boycotts. Similarly in the High Court in Rural Press Ltd v Australian Competition and Consumer Commission, above, (2003) at [12] Gleeson CJ and Callinan J said that an exclusionary provision may be directed towards particular persons or classes of persons without necessarily having a purpose of injuring or disadvantaging them. However, the purpose must be directed toward particular persons or classes of persons: at [12] per Gleeson CJ and Callinan J; at [70] per Gummow, Heydon and Hayne JJ. See also Seven Network Ltd v News Ltd, above, at [2899] per Sackville J. [10,065.35] “particular circumstances or on particular conditions” In South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456; 181 ALR 188; [2001] FCA 862; BC200103647 at [77] Heerey J said that the expression “in particular circumstances or on particular conditions” contemplates something which the contravenors actually intend will happen, for example a term that they will be supplying goods or services to a particular customer only on payment of cash on delivery or where those customers accept certain obligations. [10,065.36] Requirement for a market in Australia The provision does mention a “market”. There is no requirement to establish a market in Australia in relation to a contravention of the provision: Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [383] per Besanko J. See also [10,070.50]. [10,065.37] Collective bargaining In response to the recommendations of the Dawson Committee and the introduction of the Trade Practices Amendment Act (No 1) 2006, s 45 will not apply if a collective bargaining notice is in force under s 93AD. See [11,895.200].

[page 147] [10,065.38] Joint venture activity In response to the recommendations of the Dawson Committee, the Trade Practices Amendment Act (No 1) 2006 introduced a defence to a contravention of s 45 if the person establishes that the provision is for the purpose of a joint venture and does not have the purpose or effect of substantially lessening competition. See [11,594C.5]. A joint venture is defined in s 4J. [10,065.40] Authorisation provision: s 88.

Authorisation is available for an exclusionary

[10,065.45] Case law Relevant decisions in relation to exclusionary provisions include the following: • Trade Practices Commission v Bryant Pty Ltd (1978) ATPR ¶40075; • Application by Obadiah Pty Ltd (1980) ATPR ¶40-176; • Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1; 58 ALR 423; (1985) ATPR ¶40-512; • Bullock v Federated Furnishings Trade Society of Australasia (1985) ATPR ¶40-505; • Hughes v Western Australian Cricket Assn Inc (1986) ATPR ¶40-676; • Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing (NSW) Ltd (1987) 16 FCR 351; (1987) ATPR ¶40-820; • McCarthy v Australian Rough Riders Assn Inc (1988) ATPR ¶40-836; • ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (1991) 27 FCR 460; 97 ALR 513; (1991) ATPR ¶41-069; • Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159; (1993) ATPR ¶41-216; • News Ltd v Australian Rugby Football League Ltd (1996) ATPR ¶41-466; (appeal) News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; 139 ALR 193; (1996) ATPR ¶41-521; • Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) ATPR ¶41-719;

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Australian Competition and Consumer Commission v Visy Paper Pty Ltd (2000) 186 ALR 731; (2001) ATPR ¶41-799; [2000] FCA 1640; BC200006997; News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 200 ALR 157; [2003] HCA 45; BC200304465; Rural Press Ltd v Australian Competition and Consumer Commission (2003) 203 ALR 217; 78 ALJR 274; [2003] HCA 75; BC200307578; Australian Competition and Consumer Commission v Liquorland (Aust) Pty Ltd (2006) ATPR ¶42-123; [2006] FCA 826; BC200604966 per Allsop J; Australian Competition and Consumer Commission v Liquorland (Aust) Pty Ltd [2006] FCA 1034; BC200606233 per Allsop J; Australian Competition and Consumer Commission v Barton Mines Corporation [2006] FCA 1264; BC200608378 per Tracey J; Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 per Sackville J; Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2013) 210 ALR 165; [2013] FCA 909; BC201314709 per Greenwood J; Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 per Besanko J; Australian Competition and Consumer Commission (ACCC) v Prysmian Cavi E Sistemi SRL (fka Prysmian Cavi E Sistemi Energia SRL) [2016] FCA 822; BC201605911 at [70] per Besanko J. ____________________ [page 148]

[10,070]

Market

4E For the purposes of this Act, unless the contrary intention appears, market means a market in Australia and, when used in relation to any goods

or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the firstmentioned goods or services. [s 4E am Act 70 of 1990 s 5]

SECTION 4E GENERALLY [10,070.5] Overview Section 4E defines a “market” as a market in Australia including, when used in relation to any goods or services, a market for those goods or services which are substitutable for or otherwise competitive with each other. The provision is relevant to Pt IV which prohibits certain conduct that substantially lessens competition in a market. In economic terms, “substitutability” is determined by the cross-elasticity of demand or supply. The cross-elasticity of demand between two goods is determined by the extent to which one is a substitute for another, given a sufficient price increase. Similarly at the supply side, producers can alter their production mix in response to a price increase. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee said that the current definition of market should be retained. However it recommended that the definition of “competition” be amended to ensure that competition in Australian markets includes competition from goods imported or capable of being imported into Australia and from services supplied or capable of being supplied by persons located outside of Australia to persons located within Australia.See [10,690.5]. [10,070.10] The nature of a market In Re QCMA and Defiance Holdings (1976) 8 ALR 481; 25 FLR 169; (1976) ATPR ¶40-012 the tribunal said: We take the concept of a market to be basically a very simple idea. A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them. (If there is no close competition there is of course a monopolistic market.) Within the bounds of a market there is substitution — substitution between one product and another, and between one source of supply and another — in response to changing prices. So a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given sufficient price incentive. Let us suppose that the price of one supplier goes up. Then on the demand side buyers may switch their patronage from this firm’s products to another, or from one geographic source of supply to another. As well, on the supply side, sellers can adjust their production plans, substituting one product for another in their output mix, or substituting one geographic source of supply for another. Whether such substitution is feasible or likely depends

ultimately on customer attitudes, technology, distance, and cost and price incentives. It is the possibilities of such substitution which set the limits upon a firm’s ability to “give less and charge more”. Accordingly, in determining the outer boundaries of the market, we ask a quite simple but fundamental question: If the firm were to “give less and charge more” would there be, to put the matter colloquially, much of a reaction? And if so, from whom? In the language of economics the question is this: from which products and which activities could we expect a relatively high demand or supply response to price change, ie a relatively high cross-elasticity of demand or cross-elasticity of supply?

This approach to market definition has generally been followed: • Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609; 40 FLR 83; (1978) ATPR ¶40-126; [page 149] • •

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Trade Practices Commission v Australia Meat Holdings Pty Ltd (1988) 83 ALR 299; (1988) ATPR ¶40-876; Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177; 83 ALR 577; (1989) ATPR ¶40925; Trade Practices Commission v Arnotts Ltd (1990) 97 ALR 555; (1990) ATPR ¶41-061; Re AGL Cooper Basin Natural Gas Supply Arrangements (1997) ATPR ¶41-593; Australian Rugby Union Ltd v Hospitality Group Pty Ltd (2000) 173 ALR 702; (2000) ATPR ¶41-768; [2000] FCA 823; BC200003295; (appeal) Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) ATPR ¶41-831; [2001] FCA 1040; BC200104902 at [51] per Hill and Finkelstein JJ; Australian Competition and Consumer Commission v Boral Ltd (2001) ATPR ¶41-803; [2001] FCA 30; BC200100518; NT Power Generation Pty Ltd v Power and Water Authority (2001) 184 ALR 481; (2001) ATPR ¶41-814; [2001] FCA 334; BC200101353; (appeal) NT Power Generation Pty Ltd v Power and Water Authority (2002) 122 FCR 399; [2002] FCAFC 302; BC200205789; Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2001) ATPR (Digest) ¶46-212; [2001]

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FCA 1056; BC200104487 at [163]–[169] per Lindgren J; (appeal) Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; (2002) ATPR ¶41-879; [2002] FCAFC 197; BC200203308 at [136] per Tamberlin J (Black CJ agreeing); Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158; 104 ALR 633; (1992) ATPR ¶41-159; QIW Retailers Ltd v Davids Holdings Pty Ltd (No 3) (1993) 42 FCR 255; 114 ALR 579; (1993) ATPR ¶41-226; Regents Pty Ltd v Subaru (Aust) Pty Ltd (1998) 84 FCR 218; 42 IPR 421; (1998) ATPR ¶41-647; Munday v Australian Capital Territory (1999) ATPR ¶41-680; Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (1999) 90 FCR 128; 169 ALR 554; (1999) ATPR ¶41-693; Australian Rugby Union Ltd v Hospitality Group Pty Ltd (2000) 173 ALR 702; (2000) ATPR ¶41-768; [2000] FCA 823; BC200003295; (appeal) Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) ATPR ¶41-831; [2001] FCA 1040; BC200104902 at [51] per Hill and Finkelstein JJ; Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 195 ALR 609; [2003] HCA 5; BC200300131 at [133] per Gleeson CJ and Callinan J, at [252] per McHugh J; Australian Competition and Consumer Commission v Australian Medical Assn Western Australia Branch Inc (2003) 199 ALR 423; [2003] FCA 686; BC200303666 at [299] per Carr J; Application by Services Sydney Pty Ltd (2005) 227 ALR 140; [2005] ACompT 7 at [108] per Gyles J, Mr B Keane and Dr J Walker; Australian Competition and Consumer Commission v Liquorland (Aust) Pty Ltd (2006) ATPR ¶42-123; [2006] FCA 826; BC200604966 at [440] per Allsop J; Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [1767] per Sackville J; Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 at [613] per Dowsett and Lander JJ (Mansfield J agreeing);

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RP Data Ltd v Queensland [2007] FCA 1639; BC200709278 at [65] per Collier J; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2008) 170 FCR 16; 249 ALR 674; [2008] FCAFC 141; BC200807118 at [339] per Dowsett J; [page 150]

Commerce Commission v Air New Zealand Ltd (NZHC, Asher J, Professor M Richardson, CIV-2008-404-008352, 24 August 2011, unreported) at [117] per Asher J and Professor M Richardson; • SPAR Licensing Pty Ltd v MIS QLD Pty Ltd (No 2) [2012] FCA 1116; BC201207987 per Griffiths J; • Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2013] FCA 1206; BC201314733 at [554] per Dowsett J; (appeal) Australian Competition and Consumer Commission (ACCC) v Australia and New Zealand Banking Group Ltd [2015] FCAFC 103; BC201507180 per Allsop CJ, Davies J and Wigney J; • Australian Competition and Consumer Commission v Flight Centre Ltd (No 2) (2013) 307 ALR 209; [2013] FCA 1313; BC201315432 per Logan J; Flight Centre Ltd v Australian Competition and Consumer Commission (ACCC) [2015] FCAFC 104; BC201507168 per Allsop CJ, Davies J and Wigney J; • Australian Competition and Consumer Commission v Air New Zealand Ltd [2014] FCA 1157; BC201411318 per Perram J; • Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J; • Australian Competition and Consumer Commission (ACCC) v PT Garuda Indonesia Ltd [2016] FCAFC 42; BC201601861 at [110] per Dowsett and Edelman JJ. In Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd, above, Mason CJ and Wilson J said (CLR at 188; ALR at 582; ATPR at 50,008): •

Section 4E directs that a market is to be described to include not just the defendant’s product but also those which are “substitutable for, or otherwise competitive with”, the defendant’s product. This process of defining a market by substitution involves both including products which compete with the defendant’s and excluding those which because of differentiating characteristics do not compete. In Hoffmann-La Roche v EC Commission (Roche) [1979] 1 ECR 461; [1979] 3 CMLR 211 the Court of Justice of the European Communities said (ECR at 516; CMLR at 272): The concept of the relevant market … implies that there can be effective competition between the products which form part of it and this presupposes that there is a sufficient degree of interchangibility between all the products forming part of the same market in so far as a specific use of such products is concerned.

Conversely, in determining in United Brands Co v EC Commission (United Brands) [1978] 1 ECR 207; [1978] 1 CMLR 429 whether fruits should be excluded from the market which bananas served, the European Court said (ECR at 272; CMLR at 482-3): For the banana to be regarded as forming a market which is sufficiently differentiated from other fruit markets it must be possible for it to be singled out by such special features distinguishing it from other fruits that it is only to a limited extent interchangeable with them and is only exposed to their competition in a way that is hardly perceptible.

See Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 at [618] per Dowsett and Lander JJ (Mansfield J agreeing). In Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd, above, Deane J said (CLR at 195-6; ATPR at 50,012–13): The most that can be said is that “market” should, in the context of the Act, be understood in the sense of an area of potential close competition in particular goods and/or services and their substitutes . . . The economy is not divided into an identifiable number of discrete markets into one or other of which all trading activities can be neatly fitted … The outer limits (including geographic confines) of a particular market are likely to be blurred: their definition will commonly involve [page 151] assessment of the relative weight to be given to competing considerations in relation to questions such as the extent of product substitutability and the significance of competition between traders at different stages of distribution.

While actual competition must exist and be assessed in the context of a market, a market can exist if there be the potential for close competition even though none in fact exists. A market will continue to exist even though dealings in it be temporarily dormant or suspended: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd, above, per Deane J

(CLR at 195-6; ATPR at 50,012–13); NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [110] per McHugh ACJ, Gummow, Callinan and Heydon JJ; Application by Services Sydney Pty Ltd, above, at [111] per Gyles J, Mr B Keane and Dr J Walker, where the tribunal was satisfied that it would be uneconomic to develop another facility to provide the transportation of sewage by means of Sydney Water’s reticulation networks and the connection of new sewers to the reticulation networks. In the field of competition policy a “competitive market” is a workably competitive market: Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511; (2002) ATPR ¶41-886; [2002] WASCA 231; BC200204795 at [126] per Parker J (Malcolm CJ and Anderson J agreeing). [10,070.15] Approach to market definition The steps involved in determining a market were outlined in In re Tooth & Co Ltd (1979) 39 FLR 1; (1979) ATPR ¶40-113; 4 TPR 1 as follows: • identification of the areas of close competition relevant to the goods or services under consideration; • comprehension of the maximum range of business activities and the widest geographical area within which, given sufficient price incentive, there will be cross-elasticity of demand and supply; • consideration of the long-term substitution possibilities as opposed to the short-term possibilities; • identification of where there is such a break in substitution possibilities that firms within the defined area would collectively have substantial market power; • consideration of whether the field of substitution contains submarkets; and • consideration of the multi-dimensional nature of a market including the dimensions of product, functional level, space and time. Identifying the market and determining the market power of the corporation are the same process and it is for the sake of simplicity that that the two are separated: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (Star Picket Fence Post case) (1989) 167 CLR 177 at 187; 83 ALR 577 at 582; 63 ALJR 181; [1989] HCA 6; Australian Competition and Consumer Commission (ACCC) v Metcash Trading Ltd

(2011) 282 ALR 464; [2011] FCA 967; BC201106415 at [174] per Emmett J. In Queensland Wire (1989) ATPR ¶40-925 Mason CJ and Wilson J said: Accordingly, if the defendant is vertically integrated, the relevant market for determining degree of market power will be at the product level which is the source of that power … After identifying the appropriate product level, it is necessary to describe accurately the parameters of the market in which the defendant’s product competes: too narrow a description of the market will create the appearance of more market power than in fact exists; too broad a description will create the appearance of less market power than there is.

The borders of a market may also be determined by practical considerations, for example industry or public recognition of a market as a separate economic entity, peculiar characteristics, specialised vendors and distinct customers: Australian Competition & Consumer Commission v Boral Ltd (2001) 106 FCR 328; (2001) ATPR ¶41-803; [2001] FCA 30; BC200100518 at [304] per Finkelstein J; Flight Centre Ltd v Australian Competition and Consumer Commission (ACCC) [2015] FCAFC 104; BC201507168 at [118] per Allsop CJ, Davies J and Wigney J. [page 152] The conduct of a company (including its purpose in behaving in a particular way) may be relevant in reaching a conclusion about the market: Australian Competition and Consumer Commission (ACCC) v Liquorland (Australia) Pty Ltd (2006) ATPR ¶42-123; [2006] FCA 826; BC200604966 at [442]–[443] per Allsop J. [10,070.20] Market definition analysis In market analysis, emphasis is often placed on demand side substitution. However, the supply side is equally important: Re Queensland Co-op Milling Assn Ltd (1976) 8 ALR 481; 25 FLR 169; (1976) ATPR ¶40-012; Trade Practices Commission v Ansett Transport Industries (Operations) Pty Ltd (1978) 20 ALR 31; (1978) ATPR ¶40-071; Re Tooth & Co Ltd (1979) 39 FLR 1; (1979) ATPR ¶40-113; Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177 at 188; 83 ALR 577 at 582; (1989) ATPR ¶40-925 at 50,008; Australian Rugby Union Ltd v Hospitality Group Pty Ltd (2000) 173 ALR 702; (2000) ATPR ¶41-768; [2000] FCA 823; BC200003295; Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 195 ALR 609; [2003] HCA 5; BC200300131 at [251] per McHugh J; Qantas

Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [231] per Goldberg J, Mr G F Latta and Professor D K Round. The test involves the ascertainment of the cross-elasticities of both supply and demand. That is the extent to which the supply of or demand for a product responds to a change in the price of another product. Crosselasticities of supply of demand reveal the degree to which one product may be substituted for another as reflected in s 4E: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd, above, CLR at 199-200; ATPR at 50,014; Boral Besser Masonry Ltd v Australian Competition and Consumer Commission, above, at [250] per McHugh J; Australian Competition and Consumer Commission (ACCC) v Metcash Trading Ltd [2011] FCA 967; BC201106415 at [175] per Emmett J; Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2013] FCA 1206; BC201314733 at [553] per Dowsett J; (appeal) Australian Competition and Consumer Commission (ACCC) v Australia and New Zealand Banking Group Ltd [2015] FCAFC 103; BC201507180 per Allsop CJ, Davies J and Wigney J. Australian Competition and Consumer Commission v Flight Centre Ltd (No 2) (2013) 307 ALR 209; [2013] FCA 1313; BC201315432 per Logan J; Flight Centre Ltd v Australian Competition and Consumer Commission (ACCC) [2015] FCAFC 104; BC201507168 per Allsop CJ, Davies J and Wigney J; Australian Competition and Consumer Commission v Air New Zealand Ltd [2014] FCA 1157; BC201411318 per Perram J; Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. There must be close competition between the products or services for which there is demand and supply side substitution: Australian Competition and Consumer Commission v Boral Ltd (2001) ATPR ¶41-803; [2001] FCA 30; BC200100518 at [179], [201]; Boral Besser Masonry Ltd v Australian Competition and Consumer Commission, above, at [252] per McHugh J; Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [1775] per Sackville J; Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 at [621] per Dowsett and Lander JJ (Mansfield J agreeing). In Seven Network Ltd v News Ltd, above, at [1778]–[1779] Sackville J noted that the hypothetical monopolist test is the standard analytical tool in economics for defining markets:

[1778] … the standard analytical tool is often referred to as the “SSNIP test”. On this test … a relevant market contains the producer of the benchmark product (a specific product that is produced by a particular firm), plus the smallest number of producers of other products such that, if all these products were offered by a single firm, the single seller could impose a “small but significant nontransitory increase in price” (SSNIP) above the competitive level. To put the matter another way, two products will be in the same relevant market if all producers of one of those products, acting together, could not profitably impose a SSNIP above the competitive level without losing sales to the producers of the other product. A SSNIP is generally taken to be an increase of 5 to 10% above the competitive level. [page 153] [1779] … the relevant price in applying the SSNIP test is the competitive price. This is important because applying the test to the monopoly price results in an over-broad market definition. This mistake is known among economists as the “cellophane fallacy” because the United States Supreme Court is usually said to have made the error in the Cellophane Case (United States v EI du Pont de Nemours & Co 351 US 377 (1956)).

On appeal in Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 at [631] and [670], Dowsett and Lander JJ (Mansfield J agreeing) said: [631] In this case the SSNIP test cannot be applied quantitatively, the reason being that there is no evidence as to competitive price. The test can only be used as an aid to focussing the enquiry. To use it, we must identify the subject matter upon which to focus. Clearly, that focus must be upon evidence concerning the dimensions of the alleged market, including evidence of conduct in the market and opinions of industry participants … [670] We do not treat the SSNIP test as being irrelevant to the question of market identification. However a qualitative application of the test requires identification of its purpose. As we understand it, the test looks to the actual or likely effect of competitive conduct, or potential competitive conduct, upon price and other conditions of supply, including quality of the product. However competitive conduct may not have an immediate and obvious effect upon those matters. Particularly in a relatively new industry, competitors may be looking for longer term, rather than shorter term, advantages. The ‘richness’ of the concept of competition referred to in Re Queensland Co-operative Milling Association Ltd 25 FLR 169 means that competition may take many forms. Its effects may be immediate or delayed. The SSNIP test addresses the effects of competition, but it does not define the way in which it occurs.

In Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 at [20]–[29] Finkelstein J, R Davey and Professor D Round (in examining s 152AB in Part XIC of the Act), provided the following detailed and helpful explanation of market analysis: [20] The task of the Tribunal in making a decision that is in the long-term interests of end-users of listed services requires an analysis of the relevant market in which the applicant and those affected by the decision operate. Markets exist in two primary dimensions: product type and geographic area. To delineate the product dimension it is necessary to include all products that belong in the market and exclude all those that are outside it. For present purposes it is sufficient to say that

substitutability is the key condition for defining the product dimension of the market: close substitutes are in the market; others are not. The substitution that is regarded as relevant is in both consumption and production. The economist George Stigler expressed it this way: An industry should embrace the maximum geographical area and the maximum variety of productive activities in which there is strong long-run substitution. If buyers can shift on a large scale from product or area B to A, then the two should be combined. If producers can shift on a large scale from B to A, again they should be combined. Economists usually state this in an alternative (technical) form: “All products or enterprises with large long-run cross-elasticities of either supply or demand should be combined into a single industry.” G Stigler, ‘Introduction’ in Business Concentration and Price Policy (1955) 4. (Now it is more usual to refer to a “market” rather than an “industry”). Substitutability can be determined by a variety of constructs, including cross-price elasticity of demand and supply, the judgment of market participants, the existence of distinct sellers and buyers, and price gaps between products showing independence of price movements. [21] The geographic area of the market (ie whether it is local, regional, national or international) takes into account, principally, the area within which buyers choose to purchase their goods (ie actual buying patterns) and the areas within which sellers traditionally supply (or could easily supply in response to changed market conditions) their goods. [page 154] [22] In light of the foregoing it is the Tribunal’s view that to determine the degree of competition that exists in a market it is necessary to examine both the state of actual rivalry between firms that are in the market and the threats to incumbent firms from new suppliers. The credibility of those threats will depend upon the conditions which affect the ability of potential competitors to enter the market and become actual and effective competitors that constrain the power of the incumbent firms. [23] Once the market is established it is necessary to choose the most useful economic model to assess the many factors that will impact on competition in the market in the future … [24] One of the best known and historically most widely used models in industrial organisation analysis is the structure-conduct-performance paradigm originally developed at Harvard University many decades ago and promoted by F M Scherer: see F M Scherer, Industrial Market Structure and Economic Performance (1970), a work which is now in its third edition (published in 1990) and written with D Ross. Structure refers primarily to conditions such as firms’ market shares, concentration, technology, product differentiation, barriers to entry and buyer concentration. These structural conditions are said to determine the conduct of market participants, such as decisions on price, advertising, and research and development. Performance is typically measured in terms of consumer benefits, price, price stability, technological advancement and efficiencies. [25] The structure-conduct-performance paradigm has its critics. Modern textbooks, such as D W Carlton and J M Perloff, Modern Industrial Organization (4th ed 2004) spend little time on this model. One main criticism is that studies show little systematic correlation between concentration and profitability. It has been shown that increases in concentration in particular industries are associated with both cost reductions and increased margins. Another criticism is that the inference that higher profit margins in concentrated markets are a result of higher prices assumes that costs are constant as between markets with different concentration levels — and usually they are not. See generally S Peltzman, ‘The Gains and Losses from Industrial Concentration’ (1977) 20 Journal of Law and Economics 229. [26] In 1978 Robert Bork published his influential The Antitrust Paradox: A Policy at War With

Itself. Bork’s view is that conduct and performance determine market structure. He replaced the largely static approach of the structure-conduct-performance paradigm with a more dynamically based view that the rational conduct of a firm, whose conduct is assumed to be guided by the goal of profit maximisation, will be competitive and that markets correct their own failures. According to this view large market shares or tight market concentration are the result of superior efficiency. [27] For some time there has been debate whether the direction of causality under the old paradigm is strictly unidirectional, going from structure to conduct to performance, or whether there are also feedback effects that should be taken into account. In other words, it is argued that structure and conduct affect one another continually as firms respond to changing market forces of supply and demand. [28] More recently, a number of economists (eg Salop, Willig) have developed models of strategic behaviour by firms with market power, in which firms act in response to external conditions and also act strategically to modify market structures and their competitors’ conduct, in order to shape the competitive environment into one most favourable to their own operations. [29] The Tribunal is of opinion that, despite its critics, the structure-conduct-performance model provides a limited but nevertheless useful foundation for purposes of market analysis, provided its limitations (its static nature, its unidirectional focus, its “group” rather than individual competitor focus, and its failure to consider inter-firm rivalries and strategic behaviour (especially with respect to entry deterrence and barriers to expansion)) are kept in mind. Its main usefulness comes from its identification of the variables of interest in any examination of competition in a market.

[page 155] In Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [1010]–[1024], Finkelstein J, Mr Grant Latta and Professor David Round also provided the following useful description: [1010] We are not here concerned with the businessperson’s understanding of a market but rather with the analytical definitions developed by economists. Several classical economists have offered definitions. Cournot defined a market as: “The entire territory of which parts are so united by the relations of unrestricted commerce that prices there take the same level throughout, with ease and rapidity”: Augustin Cournot, Researches into the Mathematical Principles of the Theory of Wealth (1971), 51-52. Marshall said that: “The more nearly perfect a market is, the stronger is the tendency for the same price to be paid for the same thing at the same time in all parts of the market: but of course if the market is large, allowance must be made for the expense of delivering the goods to different purchasers”: Alfred Marshall, Principles of Economics (8th ed 1920), 325. According to Stigler: “A market for a commodity is the area within which the price tends to uniformity, allowance being made for transportation costs”: George Stigler, The Theory of Competitive Price (1942), 92. [1011] This economic (or relevant) market, then, consists of groups of buyers and groups of sellers in a geographic region who seek each other out as a source of supply of, or as customers for, products. The interaction of the buyers and sellers determines the price for the products. [1012] We have not referred to a “group” of products because implicit in the classic economists’ definition of a market is the assumption that there is only a single homogeneous product and that the firms in the market produce perfect substitutes. [1013] In the real world it is not only homogeneous products of rival sellers that affect price; price is

also affected by the products of rival sellers that are close substitutes. Hence it is necessary to expand the definition of a market to include not only identical goods but also close substitutes. [1014] The output of the process of defining the relevant market — the identification of the participating firms, a description of the products exchanged and the borders within which the exchange occurs — is critical to an assessment of the behaviour of firms in the market (ie whether or not they impose competitive constraints upon one another) and, importantly, whether or not a firm has, or a group of firms have, power to control price or reduce competition (ie to shift the price away from that which would be obtained in a competitive market, namely the marginal cost of the product). … [1017] It is often difficult, and sometimes impossible, to define with any precision the relevant dimensions (product, geographic, functional and temporal) of a market. On occasion, it can be particularly difficult to describe the relevant product market and its geographic borders. The process often involves judgments as to matters of degree that can be difficult to measure. [1018] As regards the product market, the notion of substitution refers on the demand side, to a customer’s practical ability to switch from one product to another and, on the supply side, to the capacity of a supplier to switch production from one product to another. There are various conventional approaches to determining substitutability. [1019] The first significant approach developed by the courts and leading economists in the US is the “reasonable interchangeability of use or the cross-[price] elasticity of demand between product itself and substitutes for it”: Brown Shoe Co. v United States 370 US 294 (1962) at [15]. Cross-price elasticity of demand measures the extent to which consumers will change their consumption of a product in response to a price change in another product. A high cross-price elasticity value suggests that products are good substitutes and are probably in the same product market. [page 156] [1020] Reasonable interchangeability of use is established by looking at actual and potential buyer substitution patterns. Relevant evidence will include product characteristics (including differences in grade or quality), price differences (including price trends), past buyer responses, the views of firms regarding who their competitors are, and the existence or absence of different distribution channels. [1021] On the supply side, cross-price elasticity is also relevant. Products will be in the same market if a firm can readily switch production from one product to another. What is important is the ease with which the switch can take place. It may be immaterial that consumers do not regard the products as substitutes, that a price difference exists, or that the prices are not closely correlated. [1022] The geographic market is the area of effective competition in which sellers and buyers operate. What is relevant, as a starting point, are actual sales patterns, the location of customers and the place where sales take place, and any geographical boundaries that limit trade. But it is not sufficient to measure only historical and current market behaviour. It is also necessary to consider whether customers would readily turn to more remote suppliers in response to a price increase by local suppliers or whether remote suppliers would choose to enter the local market. [1023] In the United States, geographic markets are occasionally defined based on shipment flows. Under this method, commonly termed the Elzinga-Hogarty approach after the economists who proposed it, the geographic market is defined as the smallest insular region into which few products have come from the outside and from which few shipments go outside: Kenneth G Elzinga and Thomas F Hogarty, The Problem of Geographic Market Definition in Antimerger Suits, 18 Antitrust

Bulletin 45 (1973). This is a neat approach, provided one bears in mind that it can either understate or overstate the regions that would be defined based on buyer substitution. [1024] A more recent (and increasingly popular) approach is to define a market as a group of products and a corresponding geographic area within which a hypothetical monopolist would be able to raise prices profitably. This approach dates back to the US Justice Department’s 1982 Merger Guidelines and has its roots in the work of G Werden, an economist who worked in the Antitrust Division of the US Department of Justice. The guidelines defined an antitrust market as follows (at II and IIA): “A market is a group of products and an associated geographic area … [where] a hypothetical firm that was the only present and future seller of those products could raise price profitably.”

The hypothetical monopolist test has been applied in Australia and elsewhere in determining the product and geographical dimensions of a market: Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122: Australian Competition and Consumer Commission (ACCC) v Metcash Trading Ltd [2011] FCA 967; BC201106415 at [153] per Emmett J; Commerce Commission v Air New Zealand Ltd (NZHC, Asher J, Professor M Richardson, CIV-2008-404-008352, 24 August 2011, unreported) at [142] per Asher J and Professor M Richardson; Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2013] FCA 1206; BC201314733 at [553] per Dowsett J; Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2013] FCA 1206; BC201314733 at [645] per Dowsett J; (appeal) Australian Competition and Consumer Commission (ACCC) v Australia and New Zealand Banking Group Ltd [2015] FCAFC 103; BC201507180 per Allsop CJ, Davies J and Wigney J. At [1026]–[1034], Finkelstein J, Mr Grant Latta and Professor David Round explained the hypothetical monopolist test: [1026] The hypothetical monopolist test has been adopted by the ACCC. Its 2008 Merger Guidelines state: 4.19 The HMT [hypothetical monopolist test] determines the smallest area in product and geographic space within which a hypothetical current and future profit-maximising monopolist could effectively exercise market power. In general, the exercise of market [page 157] power by the hypothetical monopolist is characterised by the imposition of a small but significant and non-transitory increase in price (SSNIP) above the price level that would prevail without the merger, assuming the terms of sale of all other products are held constant. [1027] The test works this way. One looks at the effect of a price increase on a single product. If so many buyers would shift to alternative products that the monopolist would find the price increase to

be unprofitable, the group of products is too narrow to constitute the market. The market should include all those products for which the hypothetical monopolist’s price increase would be profitable. [1028] The factors that the guidelines use to determine whether the test is satisfied are conventional. The factors include buyers’ perceptions, similarities and differences in price movements between different sets of products over a period of years, similarities or differences in product characteristics and evidence of sellers’ perceptions. [1029] The test for the existence of significant market power is phrased in terms of the magnitude of the price increase that could be imposed by the hypothetical monopolist. It is generally accepted by both US and Australian regulators that a price increase is significant in size and length if it is at least 5% (sometimes 10%) and for at least one year, but there is flexibility in both the magnitude and the time period. It should be noted that these are not tolerance levels for anti-competitive price increases; they are merely a benchmark for assessing substitution. [1030] The merger guidelines approach is a proxy for examining the cross-price elasticity of demand for the products in the relevant market. It is an approach that ignores the supply side, although supply side substitution is taken into account separately (but similarly) to identify the participants in the market. [1031] Geographic markets are defined in an analogous manner. One identifies tentatively a small geographic area such that a hypothetical firm that is the only present producer of the relevant product or service is not able to profitably impose a price increase. If the product or service could be obtained elsewhere, an attempt to raise the price could not be profitable and the tentative geographic area would be too small. The geographic area is expanded until the hypothetical monopolist’s price increase would be profitable. [1032] The hypothetical monopolist definition was designed to satisfy three objectives: (1) To connect the relevant market in antitrust case law to economic policy justifications in merger cases; (2) To arrive at a standardised definition of a market; and (3) To develop a test that fell within existing jurisprudence that relied on the product and geographic dimensions of a market. [1033] The hypothetical monopolist test has its critics. Stigler and Sherwin refer to it as “completely nonoperational”: “The Extent of the Market”, 28 Journal of Law and Economics 555, 582 (1985). Harris and Jorde say it is “simply devoid of any commercial reality”: 71 California Law Review 464 (1983), 481. The test is, in essence, a “thought experiment”. Initially it had a mixed reception in US courts. It was adopted in some cases but rejected in others. But the trend is towards acceptance of the test (a recent example is FTC v Whole Foods 548 F3d 1028 (2008) at 1038) not only in merger cases, but wherever it is necessary for competition purposes to define the boundaries of a relevant market (see eg Kentucky Speedway, LLC v National Association of Stock Car Auto Racing, Inc., 588 F3d 908 (2009)). [1034] Notwithstanding the criticisms, or in spite of it, the hypothetical monopolist test has gained currency in Australia: see eg Seven Network Ltd v News Ltd [2009] FCAFC 166; (2009) 262 ALR 160 at [353]; Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2006] FCA 826 at 204, 209; Re Qantas Airways Limited [2004] ACompT 9 at 66-67; and Australian Competition and Consumer Commission v Australian Medical Association Western Australia Branch Inc [2003] FCA 686; (2003) 199 ALR 423 at 480.

[page 158]

[10,070.25] Product dimension of the market The product dimension of the market comprises goods or services supplied by the parties together with competing goods or services which could reasonably be used by most customers as substitutes for them. It is ultimately a factual question. There are a number of factors which may provide assistance in determining the degree of substitutability between products. These were clearly stated in Brown Shoe v United States (1962) 370 US 294, a decision of the United States Supreme Court, which has been cited with approval in a number of Australian cases, as follows: • industry or public recognition of the product as a separate economic entity; • the product’s peculiar characteristics; • unique product facilities; • distinct customers; • distinct prices; • sensitivity to price changes; and • specialist vendors. The implementation of marketing techniques in relation to a product can be sufficiently distinguished such that, although it is by nature identical to other products on the market, in the mind of the consumer there are no other substitutes for that product. There may be cases where a particular service is so distinctive that no other service would be seen as a substitute. In such a case a market may be constituted by the provision of that service: Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) 75 ALR 581 at 589; (1987) ATPR ¶40-809. See also Regents Pty Ltd v Subaru (Aust) Pty Ltd (1998) 84 FCR 218; 42 IPR 421; (1998) ATPR ¶41-647; Benchmark Certification Pty Ltd v Standards Australia International Ltd [2004] FCA 1489; BC200407826 at [96] per Emmett J. In Aut 6 Pty Ltd v Wellington Place Pty Ltd (1993) ATPR ¶41-202, the court said that a degree of caution was necessary when referring to advertising and marketing techniques as an aid to market definition due to a changing emphasis on what elements of a product are important. In this case the market was found to be for luxury vehicles as opposed to Mercedes Benz alone. While product and geographic substitution will often be the focus of argument in Pt IV matters, this is less often so in Pt IIIA matters. The focus

under Pt IIIA tends not to be on the dimensions of the market, as defined by substitution, but on the existence of separate markets from the market for the service. That is, the functional levels in the supply chain: Application by Services Sydney Pty Ltd (2005) 227 ALR 140; [2005] ACompT 7 at [109] per Gyles J, Mr B Keane and Dr J Walker. In Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [1026]–[1028], Finkelstein J, Mr Grant Latta and Professor David Round said: [1026] The hypothetical monopolist test has been adopted by the ACCC. Its 2008 Merger Guidelines state: 4.19 The HMT [hypothetical monopolist test] determines the smallest area in product and geographic space within which a hypothetical current and future profit-maximising monopolist could effectively exercise market power. In general, the exercise of market power by the hypothetical monopolist is characterised by the imposition of a small but significant and nontransitory increase in price (SSNIP) above the price level that would prevail without the merger, assuming the terms of sale of all other products are held constant. [1027] The test works this way. One looks at the effect of a price increase on a single product. If so many buyers would shift to alternative products that the monopolist would find the price increase to be unprofitable, the group of products is too narrow to constitute the market. The market should include all those products for which the hypothetical monopolist’s price increase would be profitable. [page 159] [1028] The factors that the guidelines use to determine whether the test is satisfied are conventional. The factors include buyers’ perceptions, similarities and differences in price movements between different sets of products over a period of years, similarities or differences in product characteristics and evidence of sellers’ perceptions.

The hypothetical monopolist test has been applied in Australia and elsewhere in determining the product and geographical dimensions of a market: Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [1034] per Finkelstein J, Mr Grant Latta and Professor David Round. See [10,070.10]. [10,070.30] Geographic dimension of the market The geographic dimension of the market comprises the geographic area in which sellers of the particular product operate and to which purchasers can practically turn for such products.

The identification of market, including its geographical dimension is not determined by a single component such as the location of the seller or a place where substitution is given effect: Australian Competition and Consumer Commission (ACCC) v PT Garuda Indonesia Ltd [2016] FCAFC 42; BC201601861 at [136] per Dowsett and Edelman JJ; Commerce Commission v Air New Zealand Ltd (2011) 9 NZBLC 103 at 188, 189 per Asher J. The extent of the geographic market can be influenced by such factors as the size and strength of the particular sellers in the market, the availability and cost of transport, the mobility of consumers and the perishability of the products concerned: see Re Howard Smith Industries Pty Ltd and Adelaide Steamship Industries Pty Ltd (1977) 28 FLR 385; (1977) ATPR ¶40-023; Trade Practices Commission v Australia Meat Holdings Pty Ltd (1988) 83 ALR 299; (1988) ATPR ¶40-876; Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43; 106 ALR 297; (1992) ATPR ¶41167; Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-804; [2001] FCA 116; BC200100573; (appeal) Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236; 193 ALR 399; [2002] FCAFC 213; BC200203866 per Whitlam, Sackville and Gyles JJ; see Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (2008) 251 ALR 166; [2008] FCA 1458; BC200808484 per Tracey J; Australian Competition and Consumer Commission (ACCC) v Metcash Trading Ltd [2011] FCA 967; BC201106415 at [177] per Emmett J. An important consideration in determining the geographic dimension of the market is the location of customers and the place where sales take place: Australian Competition and Consumer Commission (ACCC) v PT Garuda Indonesia Ltd [2016] FCAFC 42; BC201601861 at [136] per Dowsett and Edelman JJ; Commerce Commission v Air New Zealand Ltd (2011) 9 NZBLC ¶03, 158 at 184 per Asher J. In Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [1022]–[1024], Finkelstein J, Mr Grant Latta and Professor David Round said: [1022] The geographic market is the area of effective competition in which sellers and buyers operate. What is relevant, as a starting point, are actual sales patterns, the location of customers and the place where sales take place, and any geographical boundaries that limit trade. But it is not sufficient to measure only historical and current market behaviour. It is also necessary to consider whether customers would readily turn to more remote suppliers in response to a price increase by local suppliers or whether remote suppliers would choose to enter the local market.

[1023] In the United States, geographic markets are occasionally defined based on shipment flows. Under this method, commonly termed the Elzinga-Hogarty approach after the economists who proposed it, the geographic market is defined as the smallest insular region into which few products have come from the outside and from which few shipments go outside: Kenneth G Elzinga and Thomas F Hogarty, The Problem of Geographic Market [page 160] Definition in Antimerger Suits, 18 Antitrust Bulletin 45 (1973). This is a neat approach, provided one bears in mind that it can either understate or overstate the regions that would be defined based on buyer substitution. [1024] A more recent (and increasingly popular) approach is to define a market as a group of products and a corresponding geographic area within which a hypothetical monopolist would be able to raise prices profitably. This approach dates back to the US Justice Department’s 1982 Merger Guidelines and has its roots in the work of G Werden, an economist who worked in the Antitrust Division of the US Department of Justice. The guidelines defined an antitrust market as follows (at II and IIA): “A market is a group of products and an associated geographic area … [where] a hypothetical firm that was the only present and future seller of those products could raise price profitably.”

The hypothetical monopolist test has been applied in Australia and elsewhere in determining the product and geographical dimensions of a market: Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [1034] per Finkelstein J, Mr Grant Latta and Professor David Round. See [10,070.10]. [10,070.35] Functional dimension of the market The functional dimension of the market comprises the level of the production chain on which the relevant parties operate. This may include operation as a manufacturer, a wholesaler, a retailer or others: see Davids Holdings Pty Ltd v A-G (Cth) (1994) 49 FCR 211; 121 ALR 241; (1994) ATPR ¶41-304; Re Queensland Independent Wholesalers Ltd (1995) 132 ALR 225; (1995) ATPR ¶41-438. In Australian Competition and Consumer Commission (ACCC) v Metcash Trading Ltd [2011] FCA 967; BC201106415 at [157]–[159] Emmett J said: [157] Definition in terms of function refers to the link in the chain of production for a specific product. Different functional levels, such as manufacturing, wholesaling and retailing, for a specific product, are often complements rather than substitutes. Accordingly, care must be taken to ensure that different functional levels are not combined into a single product market in cases where hypothetical monopolists at separate functional levels could each profitably impose a relevant increase in price. If they could do so, combining the functional levels into a single relevant market may violate the principle of identifying the smallest market under the hypothetical monopolist test.

[158] The identification of a relevant market by functional dimension requires consideration of the differences between horizontal economic relationships and vertical economic relationships. Horizontal economic relationships generally involve rivalry, whereas vertical economic relationships are generally co-operative. Generally, horizontal interactions are characterised by rivalry among entities selling the same or similar products to the same or similar customers. Such entities attempt to win custom from their competitors. In contrast, vertical interactions are generally characterised by co-operation among entities engaged in a supply and acquisition relationship. That is to say, such entities are engaged in different functions along a supply chain and would ordinarily work collaboratively to win sales at each level in that chain. In the Australian grocery industry, the self-supplying major supermarket chains, such as Woolworths and Coles, are often described as vertically integrated. Further, there are vertical relationships between Metcash, on the one hand, and the IGA retailers, on the other hand. [159] Because the different functional markets in any distribution chain for a given product are generally considered to be economic complements, rather than substitutes, in the supply of the product, whether goods or services, the functional market concept is quite different in nature from the product market concept and the geographic market concept.

[page 161] [10,070.40] Temporal dimension of the market The temporal dimension of the market refers to the period within which current substitution possibilities must become realities in order for them to be included in the defined market: Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [235] per Goldberg J, Mr G F Latta and Professor D K Round. This will generally be the long run rather than the short run. The long run does not refer to any particular length of calendar time but to the operational time required for organising and implementing a redeployment of existing capacity in response to profit incentives: Re AGL Cooper Basin Natural Gas Supply Arrangements (1997) ATPR ¶41-593 at 44,210 citing Telecom Corp of New Zealand Ltd v Commerce Commission (1991) 3 NZBLC ¶99-239 at 102,363; NT Power Generation Pty Ltd v Power and Water Authority (2001) 184 ALR 481; (2001) ATPR ¶41-814 at 42,921; [2001] FCA 334; BC200101353; (appeal) NT Power Generation Pty Ltd v Power and Water Authority (2002) 122 FCR 399; [2002] FCAFC 302; BC200205789. The temporal dimension of market definition was explained by the tribunal in Re Tooth & Co Ltd and Tooheys Ltd (1979) 39 FLR 1 at 38-9; (1979) ATPR ¶40-113; (1979) 4 TPR 1: It is plain that the longer the period allowed for likely customer and supplier adjustments to economic incentives, the wider the market delineated. In our judgment, given the policy objectives of the legislation, it serves no useful purpose to focus attention upon a short-run, transitory situation.

We consider we should be basically concerned with substitution possibilities in the longer run. This does not mean we seek to prophesy the shape of the future — to speculate upon how community tastes, or institutions, or technology might change. Rather, we ask of the evidence what is likely to happen to patterns of consumption and production were existing suppliers to raise price or, more generally, offer a poorer deal. For the market is the field of actual or potential rivalry between firms.

See Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [1771] per Sackville J. [10,070.45] Sub-markets The distinction between markets and submarkets is one of degree. Sub-markets are more narrowly defined, typically registering some discontinuity in substitution possibilities. The defining feature of a sub-market is the existence of still closer and more immediate substitutes: Dowling v Dalgety Australia Ltd (1992) 34 FCR 109; 106 ALR 75; (1992) ATPR ¶41-165; BC9203319; In re Tooth & Co Ltd (1979) 39 FLR 1; (1979) ATPR ¶40-113 at 18,197; 4 TPR 1; Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2013] FCA 1206; BC201314733 at [553] per Dowsett J. A sub-market is particularly useful in assessing the short-run competitive effects, but may be misleading if used to assess the long-run effects: Dowling v Dalgety Australia Ltd, above; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; 201 ALR 502; [2001] FCA 1800; BC200107852 at [350] per Hill J. In Australian Competition and Consumer Commission v Metcash Trading Ltd [2011] FCA 967; BC201106415 at [178]–[179] Emmett J said: [178] The concept of a sub-market has no explicit statutory role. It refers to an area of competition narrower than a market, and intended as a tool of analysis rather than an element of a legal standard of liability. Sub-markets may be used to examine how competition works in the broader market, by identifying its nature and intensity in various segments (see Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd [1991] FCA 621; (1991) 33 FCR 158 (Taprobane Tours) at 181). The submarket concept may be a way of overcoming confusion caused by the practice of separating markets according to functional levels that relate to categories of purchaser, such as wholesale and retail levels. Such categories may not be an appropriate basis for defining markets, but may support the identification of sub-markets (see Taprobane Tours at 181-182). [page 162] [179] The question of market power requires consideration of market power in the relevant market, not market power in some sub-market. However, the delineation of sub-markets can be useful as pointing to a particular characteristic or structural dimension of the market that throws light on how the market works, once the market has been defined. The use of sub-markets as a tool can have a propensity to confuse. … Both the supply side and the demand side are relevant to an assessment of

the market. To speak of sub-markets does not solve the problem, but merely restates it. There may be a wider, or a narrower, area of rivalry. If the narrower area itself constitutes a market, then it is power and conduct in that area that must be examined. However, that is not to say that an evaluation of power and conduct in the narrower area can be undertaken in isolation. The dynamics of rivalry in the narrower area may be influenced by what goes on in the wider area (see Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5; (2003) 215 CLR 374 (Boral Besser) at [133]).

Each of the provisions in Pt IV applies only to a “market”, not a submarket. Therefore consideration of a sub-market is not relevant to this purpose: Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd, above, at [350] per Hill J. The concept of a sub-market does not solve but merely restates the problem of market definition. If a narrower area of rivalry itself constitutes a market then it is that area that must be examined: Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374; 195 ALR 609; [2003] HCA 5; BC200300131 at [133] per Gleeson CJ and Callinan J. [10,070.50] Market in Australia Section 4E refers to a market in Australia. A global market is capable of constituting a market in Australia: Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608; BC200207934 at [21]; Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (2008) 251 ALR 166; [2008] FCA 1458; BC200808484 at [21]; Australian Competition and Consumer Commission (ACCC) v Qantas Airways Ltd (2009) 253 ALR 89; [2008] FCA 1976; BC200811642 at [35]; Emirates v Australian Competition and Consumer Commission (ACCC) (2009) 255 ALR 35; [2009] FCA 312; BC200902213 at [70]; Australian Competition and Consumer Commission (ACCC) v Singapore Airlines Cargo Pte Ltd (2009) 256 ALR 458; [2009] FCA 510; BC200904253 at [64] per Jacobson J. See Commerce Commission v Air New Zealand Ltd (NZHC, Asher J, Professor M Richardson, CIV-2008404-008352, 24 August 2011, unreported) at [95] per Asher J and Professor M Richardson; See Australian Competition and Consumer Commission v Air New Zealand Ltd [2014] FCA 1157; BC201411318 per Perram J. Although the issue of whether a market is in Australia is intimately connected with the identification of the market, it is not a single dimension of a market that must be considered but the overall dimensions of the market: Australian Competition and Consumer Commission (ACCC) v PT Garuda

Indonesia Ltd [2016] FCAFC 42; BC201601861 at [150] per Dowsett and Edelman JJ. The test for the market in Australia cannot focus exclusively upon matters such as the presence of the supplier at the origin of the service, and that among other factors, it is necessary to identify where suppliers must operate in order to satisfy the relevant demand for the product: Australian Competition and Consumer Commission (ACCC) v PT Garuda Indonesia Ltd [2016] FCAFC 42; BC201601861 at [157] per Dowsett and Edelman JJ. However, the sphere of operation of a service is not conclusive of the geographic boundaries of a market. For instance, a market is not necessarily in Australia simply because part of the suite of services (even an important part) is provided in Australia: Australian Competition and Consumer Commission (ACCC) v PT Garuda Indonesia Ltd [2016] FCAFC 42; BC201601861 at [158] per Dowsett and Edelman JJ. [page 163] However, the provision does not give Pt IV an extra-territorial operation even if the relevant market in Australia was a subset of some larger market extending beyond the geographical confines of Australia: Australian Competition and Consumer Commission (ACCC) v Air New Zealand Ltd; ACCC v PT Garuda Indonesia Ltd [2014] FCA 1157; BC201411318 at [349] per Perram J. ____________________

[10,095]

References to purpose or reason

4F (1) For the purposes of this Act: (a) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, or a covenant or a proposed covenant, shall be deemed to have had, or to have, a particular purpose if: (i) the provision was included in the contract, arrangement or understanding or is to be included in the proposed contract, arrangement or understanding, or the covenant was

required to be given or the proposed covenant is to be required to be given, as the case may be, for that purpose or for purposes that included or include that purpose; and (ii) that purpose was or is a substantial purpose; and (b) a person shall be deemed to have engaged or to engage in conduct for a particular purpose or a particular reason if: (i) the person engaged or engages in the conduct for purposes that included or include that purpose or for reasons that included or include that reason, as the case may be; and (ii) that purpose or reason was or is a substantial purpose or reason. (2) This section does not apply for the purposes of subsections 45D(1), 45DA(1), 45DB(1), 45E(2) and 45E(3). [subs (2) insrt Act 60 of 1996 s 3 and Sch 17]

SECTION 4F GENERALLY [10,095.5] Overview A contract, arrangement, understanding or covenant or the conduct of a person will be taken to have the requisite purpose under the Act if that purpose was one of the purposes of the contract, arrangement, understanding or covenant or the conduct and it was a substantial purpose. However, s 4F does not create a statutory fiction. Rather it defines the circumstances in which the provision of the contract, arrangement or understanding will have the particular purpose: Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 at [850] per Dowsett and Lander JJ (Mansfield agreeing). [10,095.10] “purpose” There is some debate as to whether the relevant purpose is the subjective purpose or the objective purpose of those engaging in the relevant act. In Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1; 58 ALR 423 at 499; (1985) ATPR ¶40-512 Franki J said: It is always difficult to decide whether the word “purpose” is used subjectively or objectively. In my opinion, in general, where one is concerned with the purpose of a provision in an arrangement or understanding, it is the objective purpose which is relevant. Where one is concerned with the purpose of a person in the doing of an act, it is usually the subjective purpose which is relevant.

However, the meaning of the word must depend on the context.

In Hughes v Western Australian Cricket Assn Inc (1986) 19 FCR 10; 69 ALR 660 at 689; (1986) ATPR ¶40-736 Toohey J commented: [page 164] I accept that the view that it is the subjective purpose of those engaging in the relevant conduct with which the court is concerned. All other considerations aside, the use in s 45(2) of “purpose” and “effect” tends to suggest that a subjective approach is intended by the former expression. The application of a subjective test does not exclude a consideration of the circumstances surrounding the understanding reached.

These comments were confirmed by the Full Federal Court in ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (1991) 27 FCR 460; 97 ALR 513; (1991) ATPR ¶41-069; Charlick Trading Pty Ltd v Australian National Railways Commission [1999] FCA 452; BC9901713; see Worsley Timber 2000 Pty Ltd v Cmr of State Revenue 2007 ATC 4841; [2007] WASC 155; BC200705833 at [273] per Simmonds J; Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 at [851] per Dowsett and Lander JJ (Mansfield agreeing). The expression is particularly relevant to Pt IV conduct and is discussed further there. [10,095.13] Consequence of an action and purpose The consequences of undertaking particular conduct do not necessarily reflect the purpose of that conduct: Berlaz Pty Ltd v Fine Leather Care Products Ltd (1991) ATPR ¶41-118. A recognition of the resultant consequences of conduct is not an admission of the purpose of that conduct: Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 385; 103 ALR 41; (1991) ATPR ¶41128. However, it is a question of fact in each case. See also Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; 99 ALR 735; (1991) ATPR ¶41-092. [10,095.14] Purpose and motive Purpose is not the same as motive. It is also not the same as knowledge. In Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 at [852], [853] Dowsett and Lander JJ (Mansfield agreeing) said: [852] … Motive will demonstrate the reason or reasons why the provision might be included but not

the purpose. The purpose will be identified by examining the end sought to be accomplished by the provision. There may be a number of such ends. This may mean that the persons who included the provision had a number of purposes. In News Ltd v South Sydney District Rugby League Football Club Ltd 215 CLR 563 Gummow J said at [62]: The operation of s 4F upon provisions stated to have a particular purpose is significant. The phrase “the provision was included in the contract … for that purpose or for purposes that included or include that purpose” suggests that s 4F requires examination of the purposes of the individuals by whom the provision was included in the contract, arrangement or understanding in question. Moreover, s 4F contemplates that a provision may be included in a contract, arrangement or understanding for a plurality of purposes and, in such circumstances, directs that the relevant purpose must be “substantial”. This is a further indication that the Act requires examination of the purposes of individuals, the inevitable multiplicity of which may be contrasted with an examination of the “objective” purpose of an impugned provision. In this way, the introduction of a “substantial purpose” test avoids difficulties in discerning the relevant purpose of multiple parties to a contract, arrangement or understanding. [853] Nor is purpose the same as knowledge. A party might know that another party is seeking to include a provision in a contract, arrangement or understanding for a particular purpose but that knowledge may not mean that that party shares the same purpose.

[10,095.15] “substantial” In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367; 42 FLR 331 Deane J said: The word “substantial” is not only susceptible to ambiguity; it is a word calculated to conceal a lack of precision. In the phrase “substantial loss or damage”, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It could also mean large, weighty or big.

[page 165] It may be that the expression “substantial” means a significant operative purpose: South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456; 181 ALR 188; [2001] FCA 862; BC200103647 at [242] per Merkel J. ____________________

[10,100] Lessening of competition to include preventing or hindering competition 4G For the purposes of this Act, references to the lessening of competition shall be read as including references to preventing or hindering competition.

[10,105] Application of Act in relation to leases and licences of land and buildings 4H In this Act: (a) a reference to a contract shall be construed as including a reference to a lease of, or a licence in respect of, land or a building or part of a building and shall be so construed notwithstanding the express references in this Act to such leases or licences; (b) a reference to making or entering into a contract, in relation to such a lease or licence, shall be read as a reference to granting or taking the lease or licence; and (c) a reference to a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence. SECTION 4H GENERALLY [10,105.5] Australian Consumer Law References in the ACL to “contracts” apply to leases and licences of land and buildings: ACL s 12. Note, however, that CCA ss 4–4K do not affect the meanings of terms under the ACL: CCA s 4KA. [10,105.10] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provision of the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. ____________________

[10,110]

Joint ventures

In this Act: (a) a reference to a joint venture is a reference to an activity in trade or commerce: (i) carried on jointly by two or more persons, whether or not in partnership; or

4J

(ii) carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate; and (b) a reference to a contract or arrangement made or understanding arrived at, or to a proposed contract or arrangement to be made or proposed understanding to be arrived at, for the purposes of a joint venture shall, in relation to a joint venture by way of an activity carried on by a body corporate as mentioned in [page 166] subparagraph (a)(ii), be read as including a reference to the memorandum and articles of association, rules or other document that constitute or constitutes, or are or is to constitute, that body corporate. SECTION 4J GENERALLY [10,110.5] Overview The term “joint venture” has no settled common law meaning in Australia. However it has commonly been used to refer to an association for the purpose of a single undertaking rather than for the continuous carrying on of business characterising a partnership: Gibson Motor Sport Merchandise Pty Ltd v Forbes [2005] FCA 749; BC200503992 at [78] per Crennan J. In Gibson Motor Sport Merchandise Pty Ltd v Forbes, above, at [80] Crennan J said that recognisable and common characteristics of joint ventures include the following: • participants hold proprietary interests in the assets of the joint undertaking, often but not necessarily as tenants in common; • participants exercise joint control of the undertaking; • participants contribute to the joint undertaking, not necessarily equally — such contributions may be disparate; • participants in the joint undertaking enjoy rights and assume

obligations, which are often several, and calculated by reference to ownership of shares and/or contributions made; • participants have a joint (or community of) interest in the performance of the undertaking’s purpose; • participants associate in the undertaking for mutual commercial gain which can be mutual profits. The definition in s 4J covers a joint undertaking whether or not in partnership: Gibson Motor Sport Merchandise Pty Ltd v Forbes, above, at [76] per Crennan J. ____________________

[10,115]

Loss or damage to include injury

4K In this Act: (a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and (b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury. SECTION 4K GENERALLY [10,115.5] Loss, damage, injury The expressions “loss or damage” are wide in their operation: Brabazon v Western Mail Ltd (1985) 58 ALR 712; (1985) ATPR ¶40-549 at 46,454; Pritchard v Racecage Pty Ltd (1997) 142 ALR 527; (1997) ATPR ¶41-554. The expression “injury” is intended to take on its ordinary meaning and not a strict legal meaning. Hence s 4K emphasises the width of the expression “loss or damage” in ss 82 and 87. These sections are not to be read down by the common law rule in Baker v Bolton (1808) 1 Camp 493; 170 ER 1033; Pritchard v Racecage Pty Ltd (1997) 142 ALR 527; (1997) ATPR ¶41-554 at 43,669. The decision in Baker’s case established that in a civil court the death of a person could not be complained of as an injury. In Pritchard v Racecage Pty Ltd, above, Branson J said that Baker s case has no application to claims brought under ss 82 and 87. [page 167]

[10,115.10] “Injury” The expression “injury” in s 4K is intended to take on its ordinary meaning and not a strict legal meaning: Pritchard v Racecage Pty Ltd (1997) 142 ALR 527; (1997) ATPR ¶41-554. [10,115.15] Australian Consumer Law See also the equivalent provision in the ACL: ACL s 13. ____________________

[10,120] Definitions etc that do not apply in Part XI or Schedule 2 4KA Despite any other provision of this Act, sections 4 to 4K do not affect the meaning of any expression used in Part XI or Schedule 2, unless a contrary intention appears. [s 4KA subst Act 103 of 2010 s 3 and Sch 5[22], opn 1 Jan 2011]

[10,125] Law etc. 4KB

References to the Australian Consumer

[s 4KB rep Act 103 of 2010 s 3 and Sch 5[23], opn 1 Jan 2011]

[10,130] Contraventions of the Australian Consumer Law 4KC

[s 4KC rep Act 103 of 2010 s 3 and Sch 5[23], opn 1 Jan 2011]

[10,145]

Severability

4L If the making of a contract after the commencement of this section contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 51ADB or 87, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision is severable. [s 4L am Act 44 of 2010 s 3 and Sch 2[15], opn 15 Apr 2010; Act 103 of 2010 s 3 and Sch 5[24], opn 1 Jan 2011]

SECTION 4L GENERALLY [10,145.5] Overview The provision was inserted by the Trade Practices Amendment Act 1977 following the recommendations of the 1976 Swanson Committee. Section 4L applies only where the making of a contract contravenes the Act: Ketchell v Master of Education Services Pty Ltd [2007] NSWCA 161; BC200705732 at [49] per Mason P (Basten and Handley JJA agreeing). In News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 582; 139 ALR 193 at 353; (1996) ATPR ¶41-521; BC9604667, the court said that the effect of s 4L is that the invalidity of a provision of a contract if severable, does not affect the validity or enforceability of the balance of the provisions. That view was rejected by the High Court in SST Consulting Services Pty Ltd v Rieson [2006] HCA 31; BC200604254 at [24] (Rieson) per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. Where s 4L is engaged, the contract in question is valid and enforceable except to the extent that the offending provision is severed: Rieson at [24] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. See Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512; (2007) ATPR ¶42-172; [2007] HCA 38; BC200707216 at [70] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Fadu Pty Ltd v ACN 008 112 196 Pty Ltd (2007) ATPR ¶42-206; [2007] FCA 1965; BC200710887 at [11] per Finn J. [page 168] The operation of s 4L is to require severance of the offending condition of the contract. Severance of the offending provision is not predicated upon the separate application of common law rules governing severance. It is, therefore, incorrect to refer to the contract being valid and enforceable except to the extent that the offending provision can be severed: Rieson at [24] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [2242] per Sackville J. In Rieson at [34]–[35] Gleeson CJ, Gummow, Hayne, Heydon and

Crennan JJ said: [34] It is important to recognise the way in which this second part of s 4L is constructed. It sets out what may be identified as its central proposition — “nothing in this Act affects the validity or enforceability of the contract”. That central proposition is qualified in two respects. First, it is “subject to any order made under section 87 or 87A”; secondly, different consequences are to follow in relation to the offending provision “in so far as that provision is severable”. But it is to be noted that, subject to those qualifications, what we have called the “central proposition” is that the contract, the making of which contravened the Act, is valid and enforceable. That central proposition is the direct opposite of the ordinary rule that a contract whose making is illegal will not be enforced … [35] The second qualification to the central proposition hinges about the words “in so far as”. The offending provision is not valid and is not enforceable “in so far as” that provision is severable. The words “in so far as” describe the extent of invalidity and unenforceability that is to follow from the contravention that engages the section. Much of the argument in this Court and in the courts below (informed as it was by what was said in News Ltd) treated the words “in so far as that provision is severable” as stating a condition for the engagement of s 4L. In particular, the assumption which lay behind the consideration, by the Full Court in the present matter, of cases concerning what were understood to be the common law rules governing the consequences of illegality was that if, according to those rules, the offending provision could not be severed, s 4L had no work to do. Thus, because the Full Court concluded that the offending provisions in this case could not be severed, it was held that the contract of guarantee was wholly unenforceable. They also said at [50]–[52]: [50] … [T]here are at least two further reasons for concluding that common law “rules” relating to severance are not engaged by the reference made in s 4L to the extent of severance of the offending provision. First, while s 4L identifies the relevant contravention of the Act as resulting from the inclusion of a particular condition in the contract whose making contravenes the Act, and singles that condition out for different legal consequences from those attaching to the contract otherwise, the cases in which the offending condition did not constitute consideration for the promise that it is sought to enforce, or was not to be understood as an important and inseparable element in the contract, would be rare indeed. There would, in that event, be very few cases in which common law “rules” about severance would permit the severance of the offending condition. Section 4L would thus have little effective work to do. The cases in which provisions of a contract, apart from the offending condition, could be enforced would be few and far between. [51] The second, and a determinative, consideration which requires the rejection of a construction of the section requiring resort to such a body of rules is that, upon analysis, it is apparent that marking out the bounds of severance by reference to some set of common law “rules” as to severance would treat severability as the condition for the operation of s 4L. It would treat severability as the condition for the operation of s 4L because, if the offending condition is not severable, the consequence is said to be that the contract as a whole is unenforceable. For the reasons given earlier, that construction of the section should be rejected. [52] What follows is that s 4L, on its proper construction, requires rather than permits the severance of offending conditions. The phrase “in so far as” marks the limit of the severance that must be undertaken. In many cases that would be achieved by a “blue pencil” approach to [page 169]

severance. But that may not always be the case. If it is not, the phrase marks the limit of invalidity and unenforceability of the offending condition. The working out of those limits in each case will depend upon the particular contractual provisions that are to be considered. In the present case, no such difficulty arises. So much of the provisions of the loan agreement as required repayment of the loan with interest are valid and enforceable. It follows that the answer which the respondents sought to make to the claim against them on the guarantee they had given was not made out.

In Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) ATPR ¶41-007 the court said that a provision of a contract could only be severed providing it did not materially change the nature of the contract. Nothing in s 4L supports the argument that the Act as a whole displaces the common law doctrine of contractual illegality: Ketchell v Master of Education Services Pty Ltd [2007] NSWCA 161; BC200705732 at [49] per Mason P (Basten and Handley JJA agreeing); (appeal) Master Education Services Pty Ltd v Ketchell [2008] HCA 38; BC200807512 per Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ. ____________________

[10,150] Saving of law relating to restraint of trade and breaches of confidence 4M This Act does not affect the operation of: (a) the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Act; or (b) the law relating to breaches of confidence; but nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Act. SECTION 4M GENERALLY [10,150.5] Overview The common law relating to restraint of trade and breaches of confidence is expressly preserved by s 4M: Munday v Australian Capital Territory (1999) ATPR ¶41-680; (appeal) Australian Capital Territory v Munday (2000) 99 FCR 72; 173 ALR 1; (2000) ATPR ¶41-771; Peters (WA) Ltd v Petersville Ltd (2001) 181 ALR 337; (2001) ATPR ¶41830; [2001] HCA 45; BC200104556 at [31] per Gleeson CJ, Gummow, Kirby and Hayne JJ; Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 185 ALR 152; (2002) ATPR ¶41-854; see Woolworths Ltd v Olson (2004) 184 FLR 121; 63 IPR 258 per Einstein J.

On appeal in Australian Capital Territory v Munday, above, the court had to determine whether the restraint of trade doctrine applied to the facts of the case before the reasonableness of the restraint could be considered. A company that successfully bid to salvage recyclable material from a tip operated by the ACT purported to exclude Munday and others. In holding that the doctrine of restraint of trade did not apply, Heerey J said that the trading society test should be adopted (ALR at 20-1; ATPR at 41,112): However, in Australia there is a substantial statutory competition law regime to be found in Parts IIIA, IV, VII, VIII, XIA, XIB and XIC of the [Trade Practices Act] … Parliament regularly amends this legislation in the light of the changing needs of business and consumers and the fundamental importance of competition for the health of the economy. The legislative scheme is enforced by a powerful statutory body, the Australian Competition and Consumer Commission. The existence of such a legislative regime must mitigate the concern that the trading society test may be ineffective to meet changing business practices, or community views of them.

[page 170] Similarly, in Australian Rugby Union Ltd v Hospitality Group Pty Ltd (2000) 173 ALR 702; (2000) ATPR ¶41-768 at 41,064; [2000] FCA 823; BC200003295 Gyles J said that the common law restraint of trade doctrine, while extended to cover non-party restraints, is not the equivalent of developed anti-trust legislation. In Peters (WA) Ltd v Petersville Ltd, above, at [32] the High Court (per Gleeson CJ, Gummow, Kirby and Hayne JJ) said that s 4M achieves a threefold result. First, developments in the common law will not affect the interpretation of the Act. Second, the common law is free to develop independently of the Act, provided always that the common law is capable of operating concurrently with the Act. Hence the common law may strike down a restraint which falls outside the operation of the Act. Third, while the common law is free to develop as s 4M permits, nevertheless in such a development the courts may have regard to the Act. In deciding what development there should be of the common law the court should have regard to what Parliament had determined to be the appropriate balance between competing claims and policies: Peters (WA) Ltd v Petersville Ltd, above, at [32]–[33] per Gleeson CJ, Gummow, Kirby and Hayne JJ. ____________________

[10,151]

Extended application of Part IIIA

4N (1) Part IIIA, and the other provisions of this Act so far as they relate to Part IIIA, extend to services provided by means of facilities that are, or will be, wholly or partly within: (a) an external Territory; or (b) the offshore area in respect of a State, of the Northern Territory, or of an external Territory, as specified in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006. [subs (1) am Act 17 of 2006 s 3 and Sch 2[113]- [114], opn 1 July 2008; Act 117 of 2008 s 3 and Sch 3[60], opn 22 Nov 2008]

(2) [Repealed] [subs (2) rep Act 17 of 2006 s 3 and Sch 2[115], opn 1 July 2008]

(3) Nothing in subsection (1) affects the operation of section 15B of the Acts Interpretation Act 1901 in respect of the application of Part IIIA, and of the other provisions of this Act so far as they relate to Part IIIA, in any part of: (a) the coastal sea of Australia; or (b) the coastal sea of an external Territory; that is on the landward side of each of the offshore areas referred to in that subsection. [subs (3) am Act 17 of 2006 s 3 and Sch 2[116], opn 1 July 2008]

(4) For the purposes of this section: service includes proposed service covered by Division 2A of Part IIIA. [subs (4) am Act 92 of 2006 s 3 and Sch 1[1], opn 1 Oct 2006] [s 4N insrt Act 101 of 1998 Sch 1]

SECTION 4N GENERALLY [10,151.5] Overview This section was inserted by the Gas Pipelines Access (Commonwealth) Act 1998. The section extends the application of Pt IIIA (and other provisions of the Act that relate to Pt IIIA) to services provided by facilities that are within an external Territory or an adjacent area under s 5A of the Petroleum (Submerged Lands) Act 1967. Part IIIA contains generic access provisions that enable third parties to access services provided by a facility.

[page 171] ____________________

[10,155] Extended application of this Act to conduct outside Australia (1) Each of the following provisions: (a) Part IV; (b) Part XI; (c) the Australian Consumer Law (other than) Part 5-3; (d) [repealed] (e) [repealed] (ea) [repealed] (f) the remaining provisions of this Act (to the extent to which they relate to any of the provisions covered by paragraph (a), (b) or (c)); extends to the engaging in conduct outside Australia by: (g) bodies corporate incorporated or carrying on business within Australia; or (h) Australian citizens; or (i) persons ordinarily resident within Australia. 5

[subs (1) subst Act 59 of 2009 s 3 and Sch 1[4], opn 24 July 2009; am Act 111 of 2009 s 3 and Sch 1[27] and [28], opn 17 Nov 2009; Act 44 of 2010 s 3 and Sch 1[6] and [7], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[25] and [26], opn 1 Jan 2011]

(1A) In addition to the extended operation that section 46A has by virtue of subsection (1), that section extends to the engaging in conduct outside Australia by: (a) New Zealand and New Zealand Crown corporations; or (b) bodies corporate carrying on business within New Zealand; or (c) persons ordinarily resident within New Zealand. [subs (1A) insrt Act 70 of 1990 s 6]

(2) In addition to the extended operation that sections 47 and 48 have by virtue of subsection (1), those sections extend to the engaging in conduct outside Australia by any persons in relation to the supply by those persons of goods or services to persons within Australia.

(3) Where a claim under section 82, or under section 236 of the Australian Consumer Law, is made in a proceeding, a person is not entitled to rely at a hearing in respect of that proceeding on conduct to which a provision of this Act extends by virtue of subsection (1) or (2) of this section except with the consent in writing of the Minister. [subs (3) am Act 103 of 2010 s 3 and Sch 5[27], opn 1 Jan 2011]

(4) A person other than the Minister, the Commission or the Director of Public Prosecutions is not entitled to make an application to the Court for an order under subsection 87(1) or (1A), or under subsection 237(1) or 238(1) of the Australian Consumer Law, in a proceeding in respect of conduct to which a provision of this Act extends by virtue of subsection (1) or (2) of this section except with the consent in writing of the Minister. [subs (4) am Act 59 of 2009 s 3 and Sch 1[5], opn 24 July 2009; Act 103 of 2010 s 3 and Sch 5[28], opn 1 Jan 2011]

(5) The Minister shall give a consent under subsection (3) or (4) in respect of a proceeding unless, in the opinion of the Minister: (a) the law of the country in which the conduct concerned was engaged in required or specifically authorised the engaging in of the conduct; and [page 172] (b) it is not in the national interest that the consent be given. [s 5 am Act 61 of 1999 s 3 and Sch 1; Act 59 of 2009 s 3 and Sch 1[4], opn 24 July 2009] [heading am Act 111 of 2009 s 3 and Sch 1[27], opn 17 Nov 2009]

SECTION 5 GENERALLY [10,155.5] Overview This provision extends the operation of the Act to conduct engaged in outside Australia by bodies corporate that are either incorporated or carrying on business within Australia or by Australian citizens or persons ordinarily resident within Australia: Wells v John R Lewis (International) Pty Ltd (1975) 25 FLR 194; (1975) ATPR ¶40-007; Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305; 92 ALR 395; (1990) ATPR ¶41-001; White v Eurocycle Pty Ltd (1994)

ATPR ¶41-330. Although in slightly different terms, the Competition Codes of the States operate in a similar way to this provision: Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [366] per Besanko J. The Competition Codes are not limited to the territorial area of the States and are intented to have an extra territorial application: see Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [370] per Besanko J. The Act applies to extra-territorial conduct only in the circumstances and subject to the conditions in s 5: Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1; 190 ALR 1; [2002] FCA 243; BC200200786 at [51] per Merkel J; Worldplay Services Pty Ltd v Australian Competition and Consumer Commission (2005) 143 FCR 345; 219 ALR 363 at [18] per Ryan and Kiefel JJ; see Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 6) [2010] FCA 704; BC201004710 at [74] per Bennett J. See Australian Competition and Consumer Commission v Air New Zealand Ltd [2014] FCA 1157; BC201411318 per Perram J. In Australian Competition and Consumer Commission v Air New Zealand Ltd [2014] FCA 1157; BC201411318 Perram J said at [384]–[386]: “So too, the very existence of the United States” “effects doctrine” in antitrust litigation and the extensive way it has been used by United States courts themselves to interfere directly in the affairs of other States (see, for example, in relation to Australia the Ranger Uranium Litigation: Re Uranium Antitrust Litigation, 480 F Supp 1138, 1149 (9th Cir, 1979) and Re Uranium Antitrust Litigation [1980] USCA7 143; 617 F 2d 1248 (7th Cir, 1980)) strongly shows that there is absent the kind of widespread acceptance of the supposed norm which would be necessary in order to identify a rule of customary international law. The decision in Hartford in a sense makes the point. In that case, the United States exercised legislative jurisdiction over the London re-insurance market (despite Scalia J’s dissent). Whatever else Hartford shows it must show that the rule of customary international law invoked by Scalia J does not exist as a matter of states practice. Others have reached the same conclusion: see Deborah Senz and Hilary Charlesworth, “Building Blocks: Australia’s response to foreign extraterritorial legislation” [2001] MelbJlIntLaw 3; (2001) 2 Melbourne Journal of International Law 69. (“Since the interest-balancing approach has been rejected by a significant proportion of US trading partners in the antitrust context, the reasonableness doctrine is unlikely to evolve into a generally accepted rule of international law” (at 83)). It follows that the domestic principle of statutory interpretation which suggests that laws should be interpreted so as to avoid putting the Commonwealth in breach of customary international law cannot have the effect that Pt IV of the TPA should not be interpreted so as to authorise unreasonable interferences with the sovereign rights of other nations where a territorial nexus is established with the Commonwealth. No such principle of customary international law exists. To the

extent that Scalia J’s dissent in Hartford suggests to the contrary it is, with great respect to that eminent jurist, plainly wrong. [page 173] To summarise: two principles of statutory interpretation are involved. The first is that legislation is not to be interpreted as having extraterritorial effect unless this is made clear. In this case, s 5(1) of the TPA makes clear that Pt IV does apply extraterritorially to Australian companies or companies conducting business in Australia. A second principle of statutory interpretation requires legislation to be read, if possible, so as not to put the Commonwealth in breach of customary international law or some treaty obligation. At the level of customary international law, Australia is fully entitled to regulate extraterritorial affairs so long as there is a proper nexus. The fact that the TPA only applies to extraterritorial conduct of corporations carrying on business or incorporated in Australia and only with respect to markets in Australia more than satisfies the territorial nexus requirements of customary international law. There is no principle of customary international law which makes unlawful the regulation of extraterritorial affairs involving persons with a proper nexus to a State just because that regulation is superimposed on another State’s domestic legislation. Insofar as treaty obligations are concerned, even assuming that the imposition of Pt IV liability on Garuda involves Australia in a breach of Art 6(2) of the Australia-Indonesia ASA (which for reasons given later it does not) there is no textual mechanism by which s 51(1) of the TPA can be read down to exclude that outcome.

Section 5(1) was amended by the passage of the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 to apply to other provision of the Act, to the extent to which they relate to paras (a)-(e). Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that the provision be amended to remove the requirement that a firm has a connection with Australia in the nature of residence, incorporation or business presence and the requirement for private parties to seek ministerial consent before relying on extra territorial conduct in private competition law actions. See [10,690.5]. [10,155.7] Persons involved in a contravention of the Act Section 5(1) does not apply to Pt VI of the Act. Therefore a person involved in a contravention of the Act by virtue of s 75B (in Pt VI) although liable under Pt VI to pay damages under s 82 or to an injunction under s 80 does not contravene the Act. As s 5(1) does not apply to Pt VI, s 75B is to be construed as being only applicable to conduct in Australia: Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1; 190 ALR 1; [2002] FCA 243; BC200200786 at [55] per Merkel J.

[10,155.8] Carrying on business within Australia The expression “carrying on business” is not defined in the Act, although s 4(1) defines “business”. See [10,025.20]. At general law, carrying on a business generally involves conducting some form of commercial enterprise, systematically and regularly with a view to profit: Re Application of Campbell; Gebo Investments (Labuan) Ltd v Signatory Investments Pty Ltd (2005) 190 FLR 209; 54 ACSR 111; [2005] NSWSC 544; BC200503884 at [38]; Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 at [255] per Gordon J. Whether a corporation is carrying on business within Australia is a question of fact: Bray v F Hoffman-La Roche Ltd, above, at [62] per Merkel J. The requirement for “carrying on business” in s 5(1) is to be assessed at the date of the alleged contravention rather than the date on which the proceeding is commenced: Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1; 190 ALR 1; [2002] FCA 243; BC200200786 at [57] per Merkel J; Nexans SA RCS Paris 393 525 852 v Australian Competition and Consumer Commission [2013] FCA 192; BC201300996 per Besanko J; Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 at [233] per Gordon J. In the context of s 5(1) there is no requirement that to carry on business in the jurisdiction, the foreign company must also have a place of business in the jurisdiction. This is especially so where the foreign company carries on business by an agent acting on its behalf. In such a case it is of no significance that the foreign company has no fixed place of business in the jurisdiction provided [page 174] the agent acting on its behalf carried on its business from some fixed place in the jurisdiction: Bray v F Hoffman-La Roche Ltd, above, at [63] per Merkel J; Australian Competition & Consumer Commission (ACCC) v Yellow Page Marketing [2010] FCA 1218; BC201008405 at [22] per Gordon J; see Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 per Gordon J. Where a business is carried on by local subsidiaries of an overseas

company, in determining whether the subsidiaries or the overseas parent companies are carrying on business in Australia the court must investigate the functions which the subsidiaries have been performing and all aspects of the relationship between it and the overseas corporation: Bray v F Hoffman-La Roche Ltd, above, at [70] per Merkel J; see Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 6) (2010) 270 ALR 504; [2010] FCA 704; BC201004710 at [77] per Bennett J. Carrying on business by a company requires more than being passively aware that the company’s product is finding its way into Australia: Andrews v Bell Sports Australia Pty Ltd [2006] QDC 249 at [22] per Dearden DCJ. [10,155.9] Jurisdiction to consider claims Although s 5(1) may be a critical element of a cause of action, s 5(1) is not a condition precedent to the court entering upon the inquiry of the matters in dispute or to the invocation of the court’s jurisdiction to proceed: Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1; 190 ALR 1; [2002] FCA 243; BC200200786 at [191] per Merkel J; Howard v National Bank of New Zealand Ltd (2002) 194 ALR 688; (2002) ATPR ¶41-900; [2002] FCA 1257; BC200206068 at [47] per Drummond J. See Reinsurance Australia Corporation Ltd v HIH Casualty and General Insurance Ltd (in liq) [2003] FCA 56; BC200300159; Armacel Pty Ltd v Smurfit Stone Container Corp [2008] FCA 592; BC200803465 per Jacobson J. There is nothing in s 5(1) that suggests the court does not have the power to conclusively determine any facts on which its jurisdiction depends: Bray v F Hoffman-La Roche Ltd, above, at [197] per Merkel J; see Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317; 200 ALR 607 at [239] per Finkelstein J. [10,155.10] Ministerial consent Section 5(3) and (4) are cast in different terms. Section 5(3) does not require that an applicant who claims damages under s 82 (but who does not seek relief under s 87) obtain the consent of the minister before the institution of proceedings: Natureland Parks Pty Ltd v My Life Corp Pty Ltd (1996) 138 ALR 47; (1996) ATPR ¶41-493. It is sufficient if Ministerial consent is obtained prior to the conclusion of the hearing: Natureland Parks Pty Ltd v My Life Corp Pty Ltd (1996) 138 ALR 47; (1996) ATPR ¶41-493; Tycoon Holdings Pty Ltd v Trencor Jetco Inc (1995) ATPR

¶41-413 at 40,581; Stern v National Australia Bank [1999] FCA 1421; BC9907269; see Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 per Gordon J. CCA s 5(4) prohibits a person from instituting proceedings for an order under CCA s 87(1) or 87(1A) or ACL ss 237(1) or 238(1) in relation to conduct engaged in outside Australia unless the requisite ministerial consent has been obtained: Yamaji v Westpac Banking Corp (No 2) (1993) 42 FCR 436; 115 ALR 240; (1993) ATPR ¶41-244 at 41,299–300. See Cathay Pacific Airways Ltd v Assistant Treasurer and Minister for Competition Policy and Consumer Affairs [2010] FCA 510; BC201003536 per Goldberg J. This is in contrast to CCA s 5(3): see Stern v National Australia Bank, above. It is likely that the hearing to which s 5(3) refers is a final rather than an interlocutory hearing because relief under s 82 can only be granted on a final hearing: see Tritech Technology Pty Ltd v Gordon (2000) ATPR (Digest) ¶46-200; [2000] FCA 75; BC200000372. An issue is whether s 5(3) denies to the claimant the opportunity to rely on conduct not in support of a claim under CCA s 82 or ACL s 236 but in support of another cause of action to which the conduct gives rise. In Tritech Technology Pty Ltd v Gordon, above, Finkelstein J said, without deciding, that on a literal reading of s 5(3) this may be the consequence; however, the result seems so inconvenient and thus contrary to the intention of Parliament that it is unlikely that a literal construction should be adopted. [page 175] For a good insight into the internal process of government for consideration of an application for ministerial consent, see: Cathay Pacific Airways Ltd v Assistant Treasurer and Minister for Competition Policy and Consumer Affairs (2010) 186 FCR 168; 269 ALR 434; [2010] FCA 510; BC201003536 per Goldberg J. Reform The Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 would have the effect of repealing s 5(3), (4) and (5) to remove the requirement for Ministerial consent for breaches of the Act that occur outside Australia.

On 25 March 2015, the Selection of Bills Committee referred the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 to the Economics Legislation Committee for inquiry and report. In its May 2015 report, the Committee recommended that the Bill be passed. ____________________

[10,160] Extended application of this Act to persons who are not corporations 6 (1) Without prejudice to its effect apart from this section, this Act also has effect as provided by this section. (1A) However, the Commission is taken, for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013): (a) to be a non-corporate Commonwealth entity, and not to be a corporate Commonwealth entity; and (b) to be a part of the Commonwealth; and (c) not to be a body corporate. [subs (1A) insrt Act 62 of 2014 s 3 and Sch 5 item 111, opn 1 July 2014]

(2) This Act, other than Parts IIIA, VIIA and X, has, by force of this subsection, the effect it would have if: (a) any references in this Act other than in section 45DB, or section 33 or 155 of the Australian Consumer Law, to trade or commerce were, by express provision, confined to trade or commerce: (i) between Australia and places outside Australia; or (ii) among the States; or (iii) within a Territory, between a State and a Territory or between two Territories; or (iv) by way of the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; and (b) the following provisions: (i) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK, Division 1A of Part IV, and sections 45, 45B, 45D to 45EB (other than section 45DB), 46 and 46A;

(ia) Part V (other than Division 5); (ii) Part VIII; (iii) sections 31 and 43, Division 3 of Part 3-1, and sections 50, 153, 163, 164 and 168, of the Australian Consumer Law; were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to: (iv) trade or commerce between Australia and places outside Australia; or [page 176] (v) trade or commerce among the States; or (vi) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or (vii) the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; and (c) any reference in Division 1 of Part 3-2 of the Australian Consumer Law to a contract for the supply of goods or services and any reference in Part 3-5 or 5-4 of the Australian Consumer Law to the supply of goods or services, were, by express provision, confined to a contract made, or the supply of goods or services, as the case may be: (i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or (ii) in the course of, or in relation to, trade or commerce among the States; or (iii) in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between two Territories; and (ca) any reference in Part 2-3 of the Australian Consumer Law to a contract were, by express provision, confined to a contract made: (i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or

(d)

(e)

(ea)

(eb) (f) (g) (h)

(ii) in the course of, or in relation to, trade or commerce among the States; or (iii) in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between two Territories; and in subsection 45(1) and subparagraph 87(3)(a)(i) the words “in so far as it confers rights or benefits or imposes duties or obligations on a corporation” were omitted; and in subsection 45B(1) and subparagraph 87(3)(a)(ii) the words “in so far as it confers rights or benefits or imposes duties or obligations on a corporation or on a person associated with a corporation” were omitted; and subsections 45D(3), 45D(4) and 45DA(3) were repealed, the words “In the circumstances specified in subsections (3) and (4)” were omitted from subsection 45D(1) and the words “In the circumstances specified in subsection (3)” were omitted from subsection 45DA(1); and the second sentence in subsection 45E(1) were omitted; and [repealed] subsection 96(2) was omitted; and subject to paragraphs (d), (e), (ea), (eb) and (g), a reference in this Act to a corporation, except a reference in section 4, 48, 49, 50, 50A, 77A, 81, 151AE or 151AJ or in section 229 of the Australian Consumer Law, included a reference to a person not being a corporation.

[subs (2) am Act 70 of 1990 s 7; Act 106 of 1992 s 5 and Sch; Act 98 of 1993 s 48 and Sch 3; Act 88 of 1995 s 37; Act 60 of 1996 s 3 and Sch 17; Act 58 of 1997 s 3 and Sch 1; Act 61 of 1999 s 3 and Sch 1; Act 69 of 2000 s 3 and Sch 1; Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004; insrt Act 131 of 2006 s 3 and Sch 6[3] and Sch 9[22], opn 1 Jan 2007; Act 126 of 2008 s 3 and Sch 2[1], opn 26 Nov 2008; Act 59 of 2009 s 3 and Sch 1[6]–[13], opn 24 July 2009; Act 111 of 2009 s 3 and Sch 1[29] and [30], opn 17 Nov 2009; Act 44 of 2010 s 3 and Sch 1[8] and [9], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[29]–[35], opn 1 Jan 2011; Act 185 of 2011 s 3 and Sch 1[1], opn 6 June 2012; Act 103 of 2013 s 3 and Sch 1 item 32, opn 29 June 2013; Act 83 of 2014 s 3 and Sch 2 item 2, opn 18 July 2014]

[page 177]

(2A) So far as subsection (2) relates to Part IV, that subsection has effect in relation to a participating Territory as if the words “within a Territory,” were omitted from subparagraphs (2)(a)(iii) and (2)(b)(iii). For this purpose, participating Territory means a Territory that is a participating Territory within the meaning of Part XIA but is not named in a notice in operation under section 150K. [subs (2A) insrt Act 88 of 1995 s 6]

(2B) [repealed] [subs (2B) rep Act 111 of 2009 s 3 and Sch 1[31], opn 17 Nov 2009]

(2C) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if: (a) the reference in paragraph 44ZZRD(2)(c) to goods or services supplied, or likely to be supplied, were, by express provision, confined to goods or services supplied, or likely to be supplied, to corporations or classes of corporations; and (b) the reference in paragraph 44ZZRD(2)(d) to goods or services acquired, or likely to be acquired, were, by express provision, confined to goods or services acquired, or likely to be acquired, from corporations or classes of corporations; and (c) the reference in paragraph 44ZZRD(2)(e) to goods or services resupplied, or likely to be re-supplied, were, by express provision, confined to goods or services re-supplied, or likely to be resupplied, to corporations or classes of corporations; and (d) the reference in paragraph 44ZZRD(2)(f) to goods or services likely to be re-supplied were, by express provision, confined to goods or services likely to be re-supplied to corporations or classes of corporations; and (e) the following paragraphs were added at the end of subsection 44ZZRD(2): “; or (g) goods or services re-supplied, or likely to be resupplied, by corporations or classes of corporations to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding;

or (h) goods or services likely to be re-supplied by corporations or classes of corporations to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding.”; and (f) the reference in subparagraph 44ZZRD(3)(a)(i) to the production, or likely production, of goods were, by express provision, confined to the production, or likely production, of goods for supply to corporations or classes of corporations; and (g) the reference in subparagraph 44ZZRD(3)(a)(ii) to the supply of services were, by express provision, confined to the supply of services to corporations or classes of corporations; and (h) each reference in subparagraphs 44ZZRD(3)(a)(iii), (b)(i) and (ii) to persons or classes of persons were, by express provision, confined to corporations or classes of corporations; and [page 178] (i)

the reference in subparagraph 44ZZRD(3)(b)(iii) to the geographical areas in which goods or services are supplied, or likely to be supplied, were, by express provision, confined to the geographical areas in which goods or services are supplied, or likely to be supplied, to corporations or classes of corporations; and (j) the reference in subparagraph 44ZZRD(3)(b)(iv) to the geographical areas in which goods or services are acquired, or likely to be acquired, were, by express provision, confined to the geographical areas in which goods or services are acquired, or likely to be acquired, from corporations or classes of corporations; and (k) the reference in paragraph 44ZZRD(3)(c) to the supply or acquisition of goods or services were, by express provision, confined to supply of goods or services to, or the acquisition of goods or services from, corporations or classes of corporations;

and (l) the reference in paragraph 44ZZRD(4)(e) to paragraph (2)(e) or (f) included a reference to paragraph (2)(g) or (h); and (m) section 44ZZRD also provided that it is immaterial whether the identities of the corporations referred to in subsection (2) or (3) of that section can be ascertained; and (n) each reference in the following provisions of this Act: (i) Division 1 of Part IV (other than section 44ZZRD); (ii) any other provision (other than section 4, 44ZZRD, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV; to a corporation included a reference to a person not being a corporation. For the purposes of this subsection, likely and production have the same meaning as in Division 1 of Part IV. [subs (2C) insrt Act 59 of 2009 s 3 and Sch 1[14], opn 24 July 2009]

(2D) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if: (a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of, or relates to, a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; and (b) each reference in the following provisions of this Act: (i) Division 1 of Part IV; (ii) any other provision (other than section 4, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV; to a corporation included a reference to a person not being a corporation. [subs (2D) insrt Act 59 of 2009 s 3 and Sch 1[14], opn 24 July 2009]

(2E) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than

Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if: [page 179] (a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in, or relates to: (i) a Territory; or (ii) a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); and (b) each reference in the following provisions of this Act: (i) Division 1 of Part IV; (ii) any other provision (other than section 4, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV; to a corporation included a reference to a person not being a corporation. [subs (2E) insrt Act 59 of 2009 s 3 and Sch 1[14], opn 24 July 2009]

(2F) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if: (a) each reference in Part IVC to a payment surcharge were a reference to a payment surcharge charged for processing a payment made by means of a postal, telegraphic, telephonic, or other like service (including electronic communication); and (b) each reference to a corporation included a reference to a person not being a corporation. [subs (2F) insrt Act 9 of 2016 s 3 and Sch 1 item 2, opn 25 Feb 2016]

(3) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by another subsection of this section, the provisions of Parts 2-1, 2-2, 3-1 (other than Division 3), 3-3, 3-4, 4-1 (other than Division

3), 4-3, 4-4 and 5-3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if: (a) those provisions (other than sections 33 and 155 of the Australian Consumer Law) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast; and (b) a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation. [subs (3) am Act 222 of 1992 s 19 and Sch 1; Act 88 of 1995 s 37; Act 106 of 1998 s 3 and Sch 1; Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004; Act 59 of 2009 s 3 and Sch 1[15], opn 24 July 2009; Act 44 of 2010 s 3 and Sch 4[3], opn 15 Apr 2010; Act 103 of 2010 s 3 and Sch 5[36]–[38], opn 1 Jan 2011]

(3A) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by subsection (2), the provisions of Part 2-3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if: (a) those provisions were, by express provision, confined in their operation to contracts for or relating to: (i) the use of postal, telegraphic or telephonic services; or (ii) radio or television broadcasts; and [page 180] (b) a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation. [subs (3A) insrt Act 44 of 2010 s 3 and Sch 1[10], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[39], opn 1 Jan 2011]

(4) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by another subsection of this section, the provisions of Parts 2-2, 3-1 (other than sections 30 and 33), Part 4-1 (other than sections 152, 155 and 164) and 5-3 of the Australian Consumer Law also have, by force of this subsection, the effect they would have if: (a) those provisions were, by express provision, confined in their operation to engaging in conduct in a Territory; and

(b) a reference in those provisions to a thing done by a corporation in trade or commerce included a reference to a thing done in the course of the promotional activities of a professional person. [subs (4) am Act 222 of 1992 s 19 and Sch 1; Act 88 of 1995 s 37; Act 106 of 1998 s 3 and Sch 1; Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004; Act 126 of 2008 s 3 and Sch 2[2], opn 26 Nov 2008; Act 59 of 2009 s 3 and Sch 1[16], opn 24 July 2009; Act 103 of 2010 s 3 and Sch 5[40], opn 1 Jan 2011]

(5) In the application of sections 279, 282 and 283 of the Australian Consumer Law in relation to a supplier who is a natural person, those sections have effect as if there were substituted for paragraphs 279(3)(a), 282(2)(a) and 283(5)(a) of the Australian Consumer Law the following paragraph: (a) the supplier has died or is an undischarged bankrupt or a person whose affairs are being dealt with under Part X of the Bankruptcy Act 1966; or. [subs (5) am Act 103 of 2010 s 3 and Sch 5[41]–[44], opn 1 Jan 2011]

(5A) Despite anything in section 44ZZRF or 44ZZRG, if a body corporate other than a corporation is convicted of an offence against that section (as that section applies because of this section), the offence is taken to be punishable on conviction as if the body corporate were a corporation. [subs (5A) insrt Act 59 of 2009 s 3 and Sch 1[17], opn 24 July 2009]

(5B) Despite anything in section 44ZZRF or 44ZZRG, if a person other than a body corporate is convicted of an offence against that section (as that section applies because of this section), the offence is taken to be punishable on conviction by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both. [subs (5B) insrt Act 59 of 2009 s 3 and Sch 1[17], opn 24 July 2009]

(6) [subs (6) rep Act 103 of 2010 s 3 and Sch 5[45], opn 1 Jan 2011] [s 6 am Act 61 of 1999 s 3 and Sch 1] [heading am Act 111 of 2009 s 3 and Sch 1[29], opn 17 Nov 2009]

SECTION 6 GENERALLY [10,160.10] Overview The Commonwealth has specified heads of legislative power in the Constitution. In enacting the Act it has relied principally on the corporations power in s 51 of the Constitution. Section 6

extends the reach of the Act in specific circumstances by relying on other heads of power in the Constitution including: • trade and commerce; • territories; [page 181] • postal, telegraphic or telephonic services. Sections 6(2C), (2D), (2E), (5A) and (5B) were inserted by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. [10,160.13] Trade and commerce Section 6(2) provides for the extended application of the Act to persons whose conduct involves trade or commerce outside Australia, among the states, within a territory, between a state and a territory, between two territories or by way of the supply of goods to the Commonwealth. Section 6(2) gives an extended application to persons not being corporations as well as to corporations engaged in interstate or overseas trade: Chapman v Luminis Pty Ltd (No 5) (2002) ATPR (Digest) ¶46-214; [2001] FCA 1106; BC200105040 at [172] per von Doussa J; Australian Competition and Consumer Commission v Chen (2003) 201 ALR 40; [2003] FCA 897; BC200304783 at [32] per Sackville J; Houghton v Arms (2006) 225 CLR 553; 231 ALR 534; [2006] HCA 59; BC200610333 at [24] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [2645] per Sackville J; see Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd [2007] FCA 2024; BC200711522 at [66] per Bennett J. However, the extended operation of s 6(2) does not remove the requirement that the prescribed conduct must be in trade or commerce: Chapman v Luminis Pty Ltd (No 5), above, at [174] per von Doussa J. [10,160.15] Post Section 6(3) provides for the extended application of the Act to persons whose conduct involves the use of the postal, telegraphic or telephonic services or takes place in a radio or television broadcast.

In Australian Competition and Consumer Commission v Optell Pty Ltd (1998) ATPR ¶41-640 the postal power was relied on to apply to the unsolicited delivery of material to business houses. In Australian Competition and Consumer Commission v Chen (2003) 201 ALR 40; [2003] FCA 897; BC200304783 per Sackville J the use of telephonic services was relied on in relation to a website. In Eurogold Ltd v Oxus Holdings (Malta) Ltd [2007] FCA 811; BC200703999 at [27] Siopis J said that the publication of a misleading statement on a website that is based in the United Kingdom and that can be downloaded in Australia, is capable of comprising conduct in Australia. In Australian Competition and Consumer Commission v Francis (2004) ATPR (Digest) ¶46-250; [2004] FCA 487; BC200402108 at [89] per Gray J, the respondent admitted using the post to make representations under ss 52 and 53(c) (see now ACL ss 18 and 29(g)). See the discussion on the application of s 6(3) in Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liq) [2006] FCA 146; BC200600710 at [51] per Gyles J. [10,160.18] Telegraphic or telephonic services Section 6(3)(a) applies to the sending of an email: Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169; (1999) ATPR ¶41-730. The internet involves the use of telephonic services: Australian Competition and Consumer Commission v Kaye [2004] FCA 1363; BC200407004 at [36] per Kenny J; Abrahams v Biggs [2011] FCA 1475; BC201109853 at [88] per Jessup J; Plastec Australia Pty Ltd v Plumbing Solutions Pty Ltd [2012] FCA 510; BC201203217 per Greenwood J; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2012] VSC 239; BC201203953 per Croft J; See Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200; BC201208415 at [2901] per Jagot J; Seafolly Pty Ltd v Madden (2012) 98 IPR 389; [2012] FCA 1346; BC201209325 per Tracey J; Titan Support Systems Inc v Nguyen [2014] FCA 884; BC201406685 per Perry J. [10,160.19] Radio In Australian Competition and Consumer Commission v Kaye [2004] FCA 1363; BC200407004 at [36] per Kenny J, s 6(3) was applied to the use of radio to advertise seminars discussing property investment strategies.

[page 182] [10,160.20] Application of s 6(3) to a state In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9; BC9901019, the majority of the High Court said that the question of whether “person” in s 6(3) of the Act extends to a state is a different question to whether the Act “binds the Crown in right of a State” under s 2B. They said that the answer depends on a textual consideration rather than the presumption considered in Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107; 24 ALR 9 and Bropho v Western Australia (1990) 171 CLR 1; 93 ALR 207. They concluded that as a matter of interpretation a state is not a “person” for the purpose of s 6(3). ____________________

[10,165]

Application of the Criminal Code

6AA (1) Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) Despite subsection (1), Part 2.5 of the Criminal Code does not apply to an offence against Part IIIA or XIC, Division 7 of Part XIB, or section 44ZZRF or 44ZZRG. [subs (2) am Act 59 of 2009 s 3 and Sch 1[18], opn 24 July 2009; Act 103 of 2010 s 3 and Sch 5[46], opn 1 Jan 2011] [s 6AA insrt Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

SECTION 6AA GENERALLY [10,165.5] Overview This section was inserted by the Treasury Legislation Amendment (Application of Criminal Code) Act (No 2) 2001. It is one of a series of three Treasury Amendment Acts intended to give effect to the criminal offence provisions in the Commonwealth’s Criminal Code Act 1995. ____________________

[page 183] PART II — THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION [Pt II am Act 88 of 1995 s 38] INTRODUCTION TO PART II [10,260.5] Overview This Part establishes the Australian Competition and Consumer Commission and provides for the functions and operation of the commission. The predecessor of the Australian Competition and Consumer Commission was the Trade Practices Commission which was established under the 1974 Act but reconstituted under the same name on the commencement of the Trade Practices Amendment Act (No 1) 1997 on 1 July 1997. The Australian Competition and Consumer Commission was established in 1995 with the passage of the Competition Policy Reform Act 1995 to administer the then Trade Practices Act 1974 and the then Prices Surveillance Act 1983. The commission continues to discharge its functions in relation to prices surveillance under Pt VIIA of the Competition and Consumer Act. The commission’s primary function is to ensure compliance with the fair trading, consumer protection and competition provisions of the Act. The commission is the sole national agency responsible for compliance with competition issues under Pt IV of the Act and under the Competition Codes of the states and territories. The commission compliments the role performed by state and territory consumer agencies in consumer protection matters. The commission also discharges a number of other functions including granting non-merger authorisatons, notifications and merger clearances under Pt VII of the Act, the dissemination of information relating to the Act, education and research. Commission’s international activities The commission participates in several international forums including: • International Consumer Protection and Enforcement Network (ICPEN); • International Competition Network (ICN); • The Organisation for Economic Cooperation and Development (OECD); • The United Nations Conference on Trade and Development (UNCTAD); and • The World Trade Organisation (WTO). The commission has also entered into cooperative agreements including: • United States Federal Trade Commission (2000); • New Zealand Commerce Commission (2000); • European Commission on consumer protection (2002); • Korea Fair Trade Commission (2002); • Taiwan Fair Trade Commission (2002); • Fiji Commerce commission (2002); • PNG Consumer Affairs Council (1999); and • Chinese Taipei (1996). Reform

In its final report Competition Policy Review, released in March 2015, the Harper

Committee recommended that the Commission retain its current role in relation to competition and consumer matters. [page 184] However the Committee also recommended that: • Half of the Commission’s commissioners be appointed on a part time basis. • The chair be appointed either on a full time or part time basis and the positions of deputy chair be abolished. • The current requirements for experience and knowledge of small business and consumer protection be considered by the Minister in making appointments and are sufficient to represent sectoral interests. • The Commission should report regularly to a broad based committee of the parliament such as the House of Representatives Standing Committee on Economics. • The Commission should establish, publish and report against a Code of Conduct for its dealings with the media with the aim of strengthening the perception of its impartiality in enforcing the law. • The Commission should take a more active approach in connecting small business to alternative dispute resolution schemes where it considers claims have merit but are not a priority for public enforcement. See [10,690.5].

____________________

[10,263]

Establishment of Commission

6A (1) The Australian Competition and Consumer Commission is established by this section. [subs (1) subst Act 88 of 1995 s 39]

(2) The Commission: (a) is a body corporate, with perpetual succession; (b) shall have an official seal; (c) may acquire, hold and dispose of real and personal property; and (d) may sue or be sued in its corporate name. (3) Any real or personal property held by the Commission is held for and on behalf of the Commonwealth. [subs (3) insrt Act 148 of 2010 s 3 and Sch 6, opn 18 Dec 2010]

(4) Any money received by the Commission is received for and on behalf of the Commonwealth. [subs (4) insrt Act 148 of 2010 s 3 and Sch 6, opn 18 Dec 2010]

(5) To avoid doubt, a right to sue is taken not to be personal property for

the purposes of subsection (3). [subs (5) insrt Act 148 of 2010 s 3 and Sch 6, opn 18 Dec 2010]

SECTION 6A GENERALLY [10,263.5] The commission’s power to sue The power of the commission to sue conferred by s 6A(2)(d) is to be exercised only in relation to functions conferred on the commission by the Commonwealth parliament. Those functions do not include the enforcement of state legislation: Australian Competition and Consumer Commission v Oceana Commercial Pty Ltd (2004) ATPR (Digest) ¶46-255; [2004] FCAFC 174; BC200404122 at [143], [158] per Heerey, Sundberg and Dowsett JJ. ____________________ [page 185]

[10,265]

Constitution of Commission

7 (1) The Commission shall consist of a Chairperson and such number of other members as are from time to time appointed in accordance with this Act. [subs (1) am Act 88 of 1995 s 40]

(2) The members of the Commission shall be appointed by the GovernorGeneral and shall be so appointed as full-time members. Note: A member of the Commission who is also appointed as an AER member remains a full-time member of the Commission: see section 44AN. (3) Before the Governor-General appoints a person as a member of the Commission or as Chairperson, the Minister must: (a) be satisfied that the person qualifies for the appointment because of the person’s knowledge of, or experience in, industry, commerce, economics, law, public administration or consumer protection; and (b) consider whether the person has knowledge of, or experience in, small business matters; and (c) if there is at least one fully-participating jurisdiction — be satisfied

that a majority of such jurisdictions support the appointment. [subs (3) subst Act 106 of 1998 s 3 and Sch 2]

(4) At least one of the members of the Commission must be a person who has knowledge of, or experience in, consumer protection. [subs (4) insrt Act 88 of 1995 s 40]

SECTION 7 GENERALLY [10,265.5] Overview The commission consists of a chairperson and other appointed members. The section was amended by the Competition Policy Reform Act 1995 to require that a majority of fully participating jurisdictions support the appointment. This is in compliance with the Conduct Code Agreement. See [10,025.28]. Section 7(4) was also inserted in recognition of the Act’s dual role in promoting not only competition but also consumer protection. This is now reflected in the objects clause in s 2. Section 7(3)(b) was inserted by the Trade Practices Amendment (Country of Origin Representations) Act 1998. In making an appointment to the commission the Governor-General must also consider whether the person has knowledge of or experience in small business matters. ____________________

[10,270]

Terms and conditions of appointment

8 (1) Subject to this Part, a member of the Commission holds office for such period, not exceeding 5 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor-General determines, but is eligible for re-appointment. [subs (1) am Act 88 of 1995 ss 41, 91]

(2) [subs (2) rep Act 88 of 1995 s 41]

[10,275]

Associate members

8A (1) The Minister may appoint persons to be associate members of the Commission. [page 186]

(1A) If there is at least one fully-participating jurisdiction, the Minister must not appoint a person as an associate member unless the Minister is satisfied that a majority of such jurisdictions support the appointment. [subs (1A) insrt Act 88 of 1995 s 42; subst Act 88 of 1995 s 84]

(2) An associate member of the Commission shall be appointed for such period not exceeding 5 years as is specified in the instrument of his or her appointment, but is eligible for re-appointment. [subs (2) am Act 88 of 1995 s 91]

(3) Subject to this Part, an associate member of the Commission holds office on such terms and conditions as the Minister determines. (4) The Chairperson may, by writing signed by him or her, direct that, for the purposes of the exercise of the powers of the Commission under this Act in relation to a specified matter, not being an exercise of those powers by a Division of the Commission, a specified associate member of the Commission or specified associate members of the Commission shall be deemed to be a member or members of the Commission and, in that case, unless the contrary intention appears, a reference in this Act to a member of the Commission shall, for the purposes only of the exercise of the powers of the Commission in relation to that matter, be construed as including a reference to that associate member of the Commission or each of those associate members of the Commission, as the case may be. [subs (4) am Act 88 of 1995 ss 42, 91]

(5) Associate members of the Commission shall be deemed to be members of the Commission for the purposes of section 19. (6) For the purpose of the determination by the Commission of an application for an authorization or a clearance, or the making by the Commission of any decision for the purposes of subsection 93(3) or (3A) or 93AC(1) or (2), the Chairperson shall consider: (a) whether he or she should give a direction under subsection (4) of this section; or (b) in the case of a matter in relation to which the Chairperson proposes to give a direction under subsection 19(1), whether he or she should direct that the Division concerned is to include an associate member of the Commission or associate members of the Commission.

[subs (6) am Act 88 of 1995 s 7; Act 88 of 1995 ss 42, 91; Act 131 of 2006 s 3 and Sch 1[4] and Sch 3[1], opn 1 Jan 2007]

(7) Nothing in subsection (4) or (5) deems an associate member of the Commission to be a member of the Commission for any purpose related to the preparation of a report by the Commission under section 171.

[10,277] State/Territory AER members taken to be associate members 8AB (1) A State/Territory AER member is taken to be an associate member of the Commission during the period for which he or she is an AER member. Note: A State/Territory AER member who is taken to be an associate member of the Commission can still be appointed as an associate member under section 8A. (2) However, a State/Territory AER member who is taken to be an associate member under subsection (1), is not taken to be an associate member for the purposes of sections 8A, 9, 14, 15 and 17. [page 187] (3) As an associate member, the State/Territory AER member holds office on such terms and conditions as are specified in the instrument of his or her appointment under section 44AP. [s 8AB insrt Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

[10,280]

Remuneration

9 (1) A member of the Commission shall be paid such remuneration as is determined by the Remuneration Tribunal, but, until that remuneration is so determined, he or she shall be paid such remuneration as is prescribed. [subs (1) am Act 88 of 1995 s 91]

(2) Subject to the Remuneration Tribunal Act 1973, a member of the Commission shall be paid such allowances as are prescribed.

(3) In this section, member of the Commission includes an associate member of the Commission.

[10,285]

Deputy Chairpersons

10 (1) The Governor-General may appoint a person who is, or is to be, a member of the Commission to be a Deputy Chairperson of the Commission. [subs (1) am Act 88 of 1995 s 43; Act 159 of 2007 s 3 and Sch 1[2], opn 25 Sep 2007]

(1A) If there is at least one fully-participating jurisdiction, the GovernorGeneral must not appoint a person as a Deputy Chairperson unless the Governor-General is satisfied that a majority of such jurisdictions support the appointment. [subs (1A) insrt Act 88 of 1995 s 43; subst Act 88 of 1995 s 85; am Act 159 of 2007 s 3 and Sch 1[3], opn 25 Sep 2007]

(1B) Before the Governor-General appoints a person as a Deputy Chairperson, the Minister must be satisfied that, immediately after the appointment, there will be at least one Deputy Chairperson who has knowledge of, or experience in, small business matters. [subs (1B) insrt Act 116 of 2008 s 3 and Sch 3[7], opn 22 Nov 2008]

(2) A person appointed under this section holds office as Deputy Chairperson until the expiration of his or her period of appointment as a member of the Commission or until he or she sooner ceases to be a member of the Commission. [subs (2) am Act 88 of 1995 ss 43, 91]

(3) Where a member of the Commission appointed as Deputy Chairperson is, upon ceasing to be Deputy Chairperson by virtue of the expiration of the period of his or her appointment as a member, re-appointed as a member, he or she is eligible for re-appointment as Deputy Chairperson. [subs (3) am Act 88 of 1995 ss 43, 91]

(4) A Deputy Chairperson may resign his or her office of Deputy Chairperson by writing signed by him or her and delivered to the GovernorGeneral. [subs (4) am Act 88 of 1995 ss 43, 91; Act 159 of 2007 s 3 and Sch 1[5], opn 25 Sep 2007]

(5) Not more than 2 persons may hold office as Deputy Chairperson at any one time.

[subs (5) insrt Act 159 of 2007 s 3 and Sch 1[6], opn 25 Sep 2007]

[page 188] SECTION 10 GENERALLY [10,285.5] Overview The provision permits the Governor General to appoint a Deputy Chairperson of the commission. The Trade Practices Legislation Amendment Act (No 1) 2007 amended s 10(1) to provide for more than one Deputy Chairperson. Section 10(1B) was inserted by the passage of the Trade Practices Legislation Amendment Act 2008 which commenced on 22 November 2008. It requires that at least one deputy chairperson have knowledge of, or experience in, small business matters. In its Bill form, the provision was considered by the Senate Standing Committee on Economics in its report, The Trade Practices Legislation Amendment Bill 2008 [Provisions], published in August 2008. The Senate committee considered that a commission deputy chairperson with small business experience would probably not make an enormous difference to the operations of the commission. However, it considered that it would send a useful signal to the commission, the small business sector and the general community that the parliament acknowledge the role of small business in keeping markets competitive and that trade practices legislation has an important role in preventing large businesses unfairly reducing competition in markets at their expense: see para 3.7, above. The committee recommended its inclusion: Recommendation 3. ____________________

[10,290]

Acting Chairperson

11 (1) Where there is or is expected to be, a vacancy in the office of Chairperson, the Governor-General may appoint a person to act as Chairperson until the filling of the vacancy. Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901. [subs (1) am Act 88 of 1995 s 44; Act 46 of 2011 s 3 and Sch 2[410], opn 27 Dec 2011]

(1A) [subs (1A) rep Act 46 of 2011 s 3 and Sch 2[411], opn 27 Dec 2011] (2) Where the Chairperson is absent from duty or from Australia: (a) if there are 2 Deputy Chairpersons available to act as Chairperson, the Minister may appoint 1 of them to act as Chairperson during the absence of the Chairperson; or (b) if there is only 1 Deputy Chairperson available to act as Chairperson, that Deputy Chairperson is to act as Chairperson during the absence of the Chairperson; or (c) if there are no Deputy Chairpersons or none of the Deputy Chairpersons are available to act as Chairperson, the Minister may appoint a member of the Commission to act as Chairperson during the absence of the Chairperson, but any such appointment ceases to have effect if a person is appointed as a Deputy Chairperson or a Deputy Chairperson becomes available to act as Chairperson. Note: For rules that apply to persons acting as the Chairperson, see section 33A of the Acts Interpretation Act 1901. [subs (2) am Act 88 of 1995 s 44; Act 159 of 2007 s 3 and Sch 1[7], opn 25 Sep 2007; Act 46 of 2011 s 3 and Sch 2[412], opn 27 Dec 2011]

(3) A person acting as Chairperson shall act in that capacity on such terms and conditions as the Governor-General determines and has all the powers and duties, and shall perform all the functions, conferred on the Chairperson by this Act. [subs (3) am Act 88 of 1995 s 44]

[page 189]

[10,295]

Leave of absence

12 (1) A member of the Commission has such recreation leave entitlements as are determined by the Remuneration Tribunal. [subs (1) am Act 146 of 1999 s 3 and Sch 1]

(2) The Minister may grant a member of the Commission leave of

absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines. [s 12 subst Act 122 of 1991 s 31 and Sch]

[10,300] Termination of appointment of members of the Commission 13 (1) The Governor-General may terminate the appointment of a member of the Commission for misbehaviour or physical or mental incapacity. (2) If a member of the Commission: (a) becomes a bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; (b) fails to comply with his or her obligations under section 17; (c) without the consent of the Minister engages in any paid employment outside the duties of his or her office; or (d) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; the Governor-General shall terminate the appointment of that member of the Commission. [subs (2) am Act 88 of 1995 ss 45, 91]

[10,305] Termination of appointment of associate members of the Commission 14 (1) The Minister may terminate the appointment of an associate member of the Commission for misbehaviour or physical or mental incapacity. (2) If an associate member of the Commission: (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or

(b) fails to comply with his or her obligations under section 17; the Minister shall terminate the appointment of that associate member of the Commission. [subs (2) am Act 88 of 1995 s 91]

[10,310]

Resignation

15 (1) A member of the Commission may resign his or her office by writing signed by him or her and delivered to the Governor-General. [subs (1) am Act 88 of 1995 s 91]

(2) An associate member of the Commission may resign his or her office by writing signed by him or her and delivered to the Minister. [subs (2) am Act 88 of 1995 s 91]

[page 190]

[10,315]

Arrangement of business

16 The Chairperson may give directions as to the arrangement of the business of the Commission. [s 16 am Act 88 of 1995 s 46]

[10,320]

Disclosure of interests by members

17 (1) Where a member of the Commission other than the Chairperson is taking part, or is to take part, in the determination of a matter before the Commission and the member has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the determination of the matter: (a) the member shall disclose the interest to the Chairperson; and (b) the member shall not take part, or continue to take part, in the determination of the matter if: (i) the Chairperson gives a direction under paragraph (2)(a) in relation to the matter; or (ii) all of the persons concerned in the matter do not consent to

the member taking part in the determination of the matter. [subs (1) am Act 88 of 1995 s 47]

(2) Where the Chairperson becomes aware that a member of the Commission is taking part, or is to take part, in the determination of a matter and that the member has in relation to the determination of the matter such an interest: (a) if the Chairperson considers that the member should not take part, or should not continue to take part, in the determination of the matter — the Chairperson shall give a direction to the member accordingly; or (b) in any other case — the Chairperson shall cause the interest of the member to be disclosed to the persons concerned in the matter. [subs (2) am Act 88 of 1995 s 47]

(3) The Chairperson shall give written notice to the Minister of all pecuniary interests that the Chairperson has or acquires in any business carried on in Australia or in any body corporate carrying on any such business. [subs (3) am Act 88 of 1995 s 47]

(4) In this section, member of the Commission includes an associate member of the Commission.

[10,370]

Meetings of Commission

18 (1) Subject to this section, the Chairperson shall convene such meetings of the Commission as he or she thinks necessary for the efficient performance of the functions of the Commission. [subs (1) am Act 88 of 1995 ss 48, 91]

(2) Meetings of the Commission shall be held at such places as the Chairperson determines. [subs (2) am Act 88 of 1995 s 48]

(3) The Chairperson shall preside at all meetings of the Commission at which he or she is present. [subs (3) am Act 88 of 1995 ss 48, 91]

[page 191]

(4) In the absence of the Chairperson from a meeting of the Commission: (a) if there are 2 Deputy Chairpersons available to preside at the meeting — the Chairperson may nominate 1 of them to preside at the meeting; or (b) if there is only 1 Deputy Chairperson available to preside at the meeting — that Deputy Chairperson is to preside at the meeting. [subs (4) subst Act 159 of 2007 s 3 and Sch 1[8], opn 25 Sep 2007]

(5) Subject to this Act and the regulations, the member presiding at a meeting of the Commission may give directions regarding the procedure to be followed at or in connexion with the meeting. (6) At a meeting of the Commission: (a) three members (including the Chairperson or a Deputy Chairperson) form a quorum; (b) all questions shall be decided by a majority of votes of the members present and voting; and (c) the member presiding has a deliberative vote and, in the event of an equality of votes, also has a casting vote. [subs (6) am Act 88 of 1995 s 48; Act 159 of 2007 s 3 and Sch 1[9], opn 25 Sep 2007]

(7) If the Commission so determines, a member or members may participate in, and form part of a quorum at, a meeting of the Commission or a Division of the Commission by means of any of the following methods of communication: (a) telephone; (b) closed circuit television; (c) another method of communication determined by the Commission. (8) A determination made by the Commission under subsection (7) may be made in respect of a particular meeting or meetings of the Commission or a Division of the Commission or in respect of all meetings of the Commission or a Division of the Commission.

[10,375] Chairperson may direct Commission to sit in Divisions 19 (1) The Chairperson may, by writing signed by him or her, direct that the powers of the Commission under this Act in relation to a matter shall

be exercised by a Division of the Commission constituted by the Chairperson and such other members (not being less than two in number) as are specified in the direction. [subs (1) am Act 88 of 1995 ss 49, 91]

(2) Where the Chairperson has given a direction under subsection (1), he or she may, by writing signed by him or her, at any time before the Division of the Commission specified in the direction has made a determination in relation to the matter, revoke the direction or amend the direction in relation to the membership of the Division or in any other respect, and where the membership of a Division of the Commission is changed, the Division as constituted after the change may complete the determination of the matter. [subs (2) am Act 88 of 1995 ss 49, 91]

(3) For the purposes of the determination of a matter specified in a direction given under subsection (1), the Commission shall be deemed to consist of the Division of the Commission specified in the direction. [page 192] (4) The Chairperson is not required to attend a meeting of a Division of the Commission if he or she does not think fit to do so. [subs (4) am Act 88 of 1995 ss 49, 91]

(5) At a meeting of a Division of the Commission at which neither the Chairperson nor a Deputy Chairperson is presiding, a member of the Commission nominated for the purpose by the Chairperson shall preside. [subs (5) am Act 88 of 1995 s 49; Act 159 of 2007 s 3 and Sch 1[10], opn 25 Sep 2007]

(6) Notwithstanding section 18, at a meeting of a Division of the Commission, two members form a quorum. (7) A Division of the Commission may exercise powers of the Commission under this Act notwithstanding that another Division of the Commission is exercising powers of the Commission at the same time.

[10,380] Part XI of the Audit Act not to apply to Commission

20

[s 20 rep Act 152 of 1997 Sch 2.1260]

[10,385] Procedure at public hearings by Commission 21

[s 21 rep Act 81 of 1977 s 17]

[10,390] Hearing in private in certain circumstances 22

[s 22 rep Act 81 of 1977 s 17]

[10,395] 23

Evidence in form of written statement

[s 23 rep Act 81 of 1977 s 17]

[10,400] Representation at public hearings by Commission 24

[s 24 rep Act 81 of 1977 s 17]

[10,405]

Delegation by Commission

25 (1) The Commission may, by resolution, delegate to a member of the Commission, either generally or otherwise as provided by the instrument of delegation, any of its powers under this Act (other than Part VIIA or section 152ELA), Procedural Rules under Part XIC, the Telecommunications Act 1997, the National Broadband Network Companies Act 2011, regulations under the National Broadband Network Companies Act 2011, the Telecommunications (Consumer Protection and Service Standards) Act 1999, the Water Act 2007, Rules of Conduct under Part 20 of the Telecommunications Act 1997 or the Australian Postal Corporation Act 1989, other than this power of delegation and its powers to grant, revoke or vary an authorization or a clearance. Note: Section 95ZD allows the Commission to delegate certain powers

under Part VIIA to a member of the Commission. [subs (1) am Act 58 of 1997 s 3 and Sch 1; Act 52 of 1999 s 3 and Sch 3; Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004; Act 69 of 2004 s 3 and Sch 1, opn 22 June 2004; Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005; Act 131 of 2006 s 3 and Sch 1[5], opn 1 Jan 2007; Act 138 of 2007 s 3 and Sch 1[6], opn 1 July 2008; Act 23 of 2011 s 3 and Sch 1 item 25, opn 13 Apr 2011]

[page 193] (2) A power so delegated may be exercised or performed by the delegate in accordance with the instrument of delegation. (3) A delegation under this section is revocable at will and does not prevent the exercise of a power by the Commission.

[10,410] Delegation by Commission of certain functions and powers (1) The Commission may, by resolution, delegate: (a) any of its functions and powers under or in relation to Parts VI and XI and the Australian Consumer Law; and (b) any of its powers under Part XII that relate to those Parts or the Australian Consumer Law; to a staff member of the Australian Securities and Investments Commission within the meaning of section 5 of the Australian Securities and Investments Commission Act 2001. 26

[subs (1) subst Act 103 of 2010 s 3 and Sch 5[47], opn 1 Jan 2011]

(2) The Commission must not delegate a function or power under subsection (1) unless the Chairperson of the Australian Securities and Investments Commission has agreed to the delegation in writing. [s 26 insrt Act 48 of 1998 Sch 2.25; am Act 103 of 2010 s 3 and Sch 5[47], opn 1 Jan 2011]

SECTION 26 GENERALLY [10,410.5] Overview This section was inserted by the Financial Sector Reform (Consequential Amendments) Act 1998. It provided, among other things, for the transfer of the consumer protection functions in relation to

financial services from the commission to the Australian Securities and Investments Commission. The expression “financial service” is defined in ACL s 2. See [14,510]. The power of the Australian Securities and Investments Commission in relation to consumer protection in the financial services sector is equivalent to that of the commission. The intent is to have the Australian Securities and Investments Commission as the sole regulator for financial services. ____________________

[10,415]

Staff of Commission

27 (1) The staff necessary to assist the Commission shall be persons engaged under the Public Service Act 1999. [subs (1) am Act 88 of 1995 s 51; Act 146 of 1999 s 3 and Sch 1]

(2) For the purposes of the Public Service Act 1999: (a) the Chairperson of the Commission and the APS employees assisting the Chairperson together constitute a Statutory Agency; and (b) the Chairperson is the Head of that Statutory Agency. [subs (2) subst Act 146 of 1999 s 3 and Sch 1]

(3) [subs (3) rep Act 146 of 1999 s 3 and Sch 1]

[10,417]

Consultants

27A (1) On behalf of the Commonwealth, the Commission may engage persons to give advice to, and perform services for, the Commission. [page 194] (2) The terms and conditions of engagement are as determined by the Commission. [s 27A insrt Act 88 of 1995 s 52]

[10,420]

Functions of Commission in relation to

dissemination of information, law reform and research 28 (1) In addition to any other functions conferred on the Commission, the Commission has the following functions: (a) to make available to persons engaged in trade or commerce and other interested persons general information for their guidance with respect to the carrying out of the functions, or the exercise of the powers, of the Commission under this Act; (b) to examine critically, and report to the Minister on, the laws in force in Australia relating to the protection of consumers in respect of matters referred to the Commission by the Minister, being matters with respect to which the Parliament has power to make laws; (c) to conduct research in relation to matters affecting the interests of consumers, being matters with respect to which the Parliament has power to make laws; (ca) to conduct research and undertake studies on matters that are referred to the Commission by the Council and that relate to the Commission’s other functions; (d) to make available to the public general information in relation to matters affecting the interests of consumers, being matters with respect to which the Parliament has power to make laws; (e) to make known for the guidance of consumers the rights and obligations of persons under provisions of laws in force in Australia that are designed to protect the interests of consumers. [subs (1) am Act 88 of 1995 s 53]

(2) Where a matter of a kind mentioned in paragraph (1)(b) is referred by the Minister to the Commission for examination and report: (a) the Commission shall cause to be published in the Gazette and in such newspapers and other journals as the Commission considers appropriate a notice: (i) stating that the reference has been made and specifying the matter to which the reference relates; and (ii) inviting interested persons to furnish to the Commission

their views on that matter and specifying the time and manner within which those views are to be furnished; (b) the Commission shall not furnish its report to the Minister until a reasonable opportunity has been given to interested persons to furnish to the Commission their views on the matter to which the reference relates; and (c) the Commission shall include in its report to the Minister any recommendations that it considers desirable with respect to the reform of the law relating to the matter to which the reference relates, whether those recommendations relate to the amendment of existing laws or the making of new laws. [page 195] (3) The Minister shall cause a copy of each report furnished to him or her by the Commission in relation to a matter referred to the Commission under paragraph (1)(b) to be laid before each House of Parliament as soon as practicable after the report is received by him or her. [subs (3) am Act 88 of 1995 s 91]

SECTION 28 GENERALLY [10,420.5] Overview In addition to its enforcement functions, s 28 confers on the commission broad education and research functions designed to raise consumer awareness of the Act. [10,420.10] Functions of the commission It is likely that the functions conferred by s 28 are to be characterised as duties of the commission and not merely the conferral of legal capacity to perform the functions specified: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) ATPR ¶41-838; [2001] FCA 1296; BC200105423 at [60] per Finn J. The functions conferred by s 28 are in addition to any other functions conferred on the Commission by the Act: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission, above, at

[61] per Finn J. It is a matter for the commission to determine what are proper and appropriate methods of discharging and performing its s 28(1) functions: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission, above, at [62] per Finn J. In performing its s 28(1)(e) function of “making known for the guidance of consumers the rights and obligations of persons . . .” the commission is not limited to publicising merely the actual terms of relevant legislative provisions. The function also encompasses the expression of opinions about such rights and obligations: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission, above, BC200105423 at [62], [104] per Finn J. Finn J went on to say at [62]: For reasons I will later give, I am unable to accept that the accuracy of any statement of law so made in performance of the s 28(1) function is a “jurisdictional fact” upon which the lawful performance of that function is conditioned . . . Indeed I consider that, having regard to the obvious legislative purpose informing the conferral of the s 28(1)(e) educative function on the ACCC, Parliament would not have intended that, in its performance, the ACCC was to be exposed to legal challenge on vires grounds whenever it ventured an opinion on the law that may have been incorrect . . . The apparent premise of s 28 was that the ACCC would possess, and/or equip itself with, the knowledge and expertise reasonably necessary to provide such appropriate and informed inquiry, advice or opinion as the performance of the s 28 functions envisaged.

____________________

[10,425] Commission to comply with directions of Minister and requirements of the Parliament 29 (1) The Minister may give the Commission directions connected with the performance of its functions or the exercise of its powers under this Act. [subs (1) subst Act 88 of 1995 s 54]

(1A) The Minister must not give directions under subsection (1) relating to: (a) Part IIIA, IV, VII, VIIA, X, XIB or XIC; or (b) Division 3 of Part XI in relation to individual cases. [subs (1A) insrt Act 88 of 1995 s 54; am Act 58 of 1997 s 3 and Sch 1; Act 123 of 2000 s 3 and Sch 1; Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004; Act 103 of 2010 s 3 and Sch 5[48], opn 1 Jan 2011]

[page 196] (1B) The Commission must comply with a direction. [subs (1B) insrt Act 88 of 1995 s 54]

(2) Any direction given to the Commission under subsection (1) shall be in writing and the Minister shall cause a copy of the direction to be published in the Gazette as soon as practicable after the direction is given. (3) If either House of the Parliament or a Committee of either House, or of both Houses, of the Parliament requires the Commission to furnish to that House or Committee any information concerning the performance of the functions of the Commission under this Act, the Commission shall comply with the requirement.

[page 197] PART IIA — THE NATIONAL COMPETITION COUNCIL [Pt IIA insrt Act 88 of 1995 s 55] INTRODUCTION TO PART IIA

[10,460.5]

Overview

In 1993 the Independent Committee of Inquiry into National Competition Policy (the Hilmer Committee) recommended the establishment of the National Competition Council: see [10,005.10]. Following the agreement of all Australian governments, the Council was established on 6 November 1995 with the passage of the Competition Policy Reform Act 1995. Historically the council has had a number of functions: • it assesses the progress of governments in implementing the National Competition Policy (NCP) reforms and it recommends to the Federal Treasurer whether states or territories should receive competition payments under the NCP agreements; • it provides advice to the minister on applications under the national access regime in Pt IIIA of the Act and provides advice on state and territory access regimes; • it undertakes community education, particularly in relation to NCP matters; • it undertakes reviews and other specific projects requested by Australian governments. Following the end of the National Competition Policy agenda and competition payments to the states and territories, the Council no longer discharges the first of these functions. The council may also perform functions conferred on it by a law of the Commonwealth, or of a state or territory. On 10 February 2006, the Council of Australian Governments (COAG) agreed to progress a new national reform agenda in the areas of competition, infrastructure regulation, energy, health services (including mental health) and education and training. COAG also agreed in principle to establish a COAG Reform Council (CRC) to report to COAG annually on progress in implementing the national reform agenda. It is envisaged that the CRC will replace the National Competition Council and undertake the current access functions of the National Competition Council under Pt IIIA of the Act. The CRC commenced in June 2007. COAG reaffirmed its commitment to progress the national reform agenda at its meetings on 14 July 2006, 13 April 2007 and 26 March 2008. See [10,005.10]. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee has recommended that the Council be dissolved and that the Australian Council for Competition Policy be established. See [10,460A.5].

[10,460AA] 29AA

Definitions

[s 29AA rep Act 45 of 2007 s 3 and Sch 1[64], opn 1 July 2008]

[10,460A] 29A

Establishment of Council

The National Competition Council is established by this section. SECTION 29A GENERALLY

[10,460A.5] Overview The National Competition Council was established on 6 November 1995 with the passage of the Competition Policy Reform Act 1995. [page 198] Reform In its final report, Competition Policy Review, released in March 2015, the Harper Committee recommended that the Council be dissolved and a new body — the Australian Council for Competition Policy (ACCP) — be established. The ACCP would be tasked with providing leadership and drive implementation of the evolving competition policy agenda. The ACCP would have a broad role encompassing: • Advocacy, education and promotion of collaboration in competition policy. • Independently monitoring progress in implementing agreed reforms and publically reporting on progress. • Identifying potential areas of competition reform across all levels of government. • Making recommendations to governments on specific market design issues, regulatory reforms, procurement policies and proposed privatisations. • Undertaking research into competition policy developments in Australia and overseas. • Ex-post evaluation of some merger decisions. • Undertaking competition studies of markets in Australia. See [10,690.5]. ____________________

[10,462]

Functions and powers of Council

29B (1) The Council’s functions include: (a) carrying out research into matters referred to the Council by the Minister; and (b) providing advice on matters referred to the Council by the Minister. (2) The Council may: (a) perform any function conferred on it by a law of the Commonwealth, or of a State or Territory; and (b) exercise any power: (i) conferred by that law to facilitate the performance of that function; or (ii) necessary or convenient to permit the performance of that function. [subs (2) subst Act 101 of 1998 Sch 1.12]

(2A) The Council must not, under subsection (2): (a) perform a function conferred on it by a law of a State or Territory; or (b) exercise a power that is so conferred; unless the conferral of the function or power is in accordance with the Competition Principles Agreement. [subs (2A) insrt Act 101 of 1998 Sch 1.12]

(2B) Subsection (2) does not apply to a State/Territory energy law. Note: Section 29BA provides that a State/Territory energy law may confer functions or powers, or impose duties, on the Council. [subs (2B) insrt Act 60 of 2006 s 3 and Sch 1[3], opn 22 June 2006; am Act 45 of 2007 s 3 and Sch 1[65], opn 1 July 2008]

(3) In performing its functions, the Council may co-operate with a department, body or authority of the Commonwealth, of a State or of a Territory. [subs (3) am Act 101 of 1998 Sch 1.13]

SECTION 29B GENERALLY [10,462.5] Overview

The council’s functions include recommending to

the responsible Minister the declaration of services that meet the criteria for declaration under Pt IIIA. It also discharged a number of functions relating to National Competition Policy. However as indicated, [page 199] following the end of the National Competition Policy agenda and competition payments to the States and Territories, the Council no longer discharges this function. See [10,460.5]. Section 29B extends the functions of the council to include research and advice on matters referred to the council by the Minister. Section 29B(2), (2A) and (3) were amended by the Gas Pipelines Access (Commonwealth) Act 1998. Section 29B(2) allows the council to perform a function conferred on it by a law of the Commonwealth, or of a state or territory. Prior to the amendment s 29B(2) made no reference to the Commonwealth. The council may now also exercise any power conferred on it by that law that facilitates the performance of that function or that is necessary or convenient to permit the performance of that function. Section 29B(2A) makes it clear that the council cannot perform a function or exercise a power conferred on it by a state or territory unless it is conferred under the Competition Principles Agreement. It is curious that the same obligation does not extend to the Commonwealth given that it is also a party to the Competition Principles Agreement. The amendment to s 29B(3) substitutes the word “performing” for the previous words “carrying out”. The council may cooperate with a department, body or authority of the Commonwealth, of a state or of a territory in the performance of its functions. ____________________

[10,463] Commonwealth consent to conferral of functions etc on Council 29BA (1) A State/Territory energy law may confer functions or powers, or impose duties, on the Council for the purposes of that law. Note: Section 29BC sets out when such a law imposes a duty on the

Council. [subs (1) am Act 45 of 2007 s 3 and Sch 1[66], opn 1 July 2008]

(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a State/Territory energy law to the extent to which: (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Council; or (b) the authorisation would otherwise exceed the legislative power of the Commonwealth. [subs (2) am Act 45 of 2007 s 3 and Sch 1[66], opn 1 July 2008]

(3) The Council cannot perform a duty or function, or exercise a power, under a State/Territory energy law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned. [subs (3) am Act 45 of 2007 s 3 and Sch 1[66], opn 1 July 2008] [s 29BA insrt Act 60 of 2006 s 3 and Sch 1[4], opn 22 June 2006]

[10,463BB]

How duty is imposed

29BB (1) Application This section applies if a State/Territory energy law purports to impose a duty on the Council. Note: Section 29BC sets out when such a law imposes a duty on the Council. [subs (1) am Act 45 of 2007 s 3 and Sch 1[66], opn 1 July 2008]

(2) State or Territory legislative power sufficient to support duty The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which: [page 200] (a) imposing the duty is within the legislative powers of the State or Territory concerned; and (b) imposing the duty by the law of the State or Territory is consistent

with the constitutional doctrines restricting the duties that may be imposed on the Council. Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 29BA to the imposition of the duty by that law). (3) Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity. (4) If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part. (5) The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty: (a) is within the legislative powers of the Commonwealth; and (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Council. (6) Subsections (1) to (5) do not limit section 29BA. [s 29BB insrt Act 60 of 2006 s 3 and Sch 1[4], opn 22 June 2006]

[10,463BC] When a State/Territory energy law imposes a duty 29BC For the purposes of sections 29BA and 29BB, a State/Territory energy law imposes a duty on the Council if: (a) the law confers a function or power on the Council; and (b) the circumstances in which the function or power is conferred give rise to an obligation on the Council to perform the function or to exercise the power. [s 29BC insrt Act 60 of 2006 s 3 and Sch 1[4], opn 22 June 2006; am Act 45 of 2007 s 3 and Sch 1[66], opn 1 July 2008]

[10,464]

Membership of Council

29C (1) The Council consists of the Council President and up to 4 other Councillors. (2) Each Councillor is to be appointed by the Governor-General, for a term of up to 5 years. (3) The Governor-General must not appoint a person as a Councillor or Council President unless the Governor-General is satisfied that: (a) the person qualifies for the appointment because of the person’s knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration; and (b) a majority of the States and Territories that are parties to the Competition Principles Agreement support the appointment. [page 201]

[10,466]

Terms and conditions of office

29D (1) A Councillor may be appointed to hold office on either a fulltime or a part-time basis. (2) A Councillor holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as the Governor-General determines.

[10,468]

Acting Council President

29E The Minister may appoint a Councillor to act as the Council President: (a) if there is a vacancy in the office of Council President, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the Council President is absent from duty or absent from Australia or is, for any reason, unable to perform the duties of the office. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. (2) [subs (2) rep Act 46 of 2011 s 3 and Sch 2[415], opn 27 Dec 2011]

[s 29E am Act 46 of 2011 s 3 and Sch 2[413], [414], opn 27 Dec 2011]

[10,470]

Remuneration of Councillors

29F (1) A Councillor is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of the Remuneration Tribunal is in operation, the Councillor is to be paid the remuneration that is prescribed. (2) A Councillor is to be paid such allowances as are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973.

[10,472]

Leave of absence

29G (1) A full-time Councillor has such recreation leave entitlements as are determined by the Remuneration Tribunal. [subs (1) am Act 146 of 1999 s 3 and Sch 1]

(2) The Minister may grant a full-time Councillor leave of absence, other than recreation leave, on such terms and conditions as the Minister determines. The terms and conditions may include terms and conditions relating to remuneration.

[10,474] Termination of appointment of Councillors 29H (1) The Governor-General may terminate the appointment of a Councillor for misbehaviour or for physical or mental incapacity. (2) The Governor-General must terminate the appointment of a Councillor who: (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; (b) fails to comply with his or her obligations under section 29K; (c) in the case of a full-time Councillor — engages in any paid employment outside the duties of the Councillor’s office without

the consent of the Minister; (d) in the case of a full-time Councillor — is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months. [page 202]

[10,476]

Resignation of Councillors

29I A Councillor may resign by giving the Governor-General a signed resignation notice.

[10,478]

Arrangement of Council business

29J (1) Subject to subsection (2), the Council President may give directions about the arrangement of the Council’s business. (2) The Council must not carry out any work (other than work relating to a function under Part IIIA or VIIA) except in accordance with a program agreed to by: (a) a majority of the parties to the Competition Principles Agreement; or (b) if the parties to the Agreement are evenly divided on the question of agreeing to a program — the Commonwealth. [subs (2) am Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004]

[10,480]

Disclosure of interests by Councillors

29K (1) If a Councillor (except the Council President) is taking part, or is to take part, in the Council’s consideration of a matter and the Councillor has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions relating to the matter: (a) the Councillor must disclose the interest to the Council President; and (b) the Councillor must not take part, or continue to take part, in the

consideration of the matter if: (i) all of the persons concerned in the matter do not consent to the Councillor taking part in the consideration of the matter; or (ii) the Council President gives a direction to the member under paragraph (2)(b). (2) If the Council President becomes aware that a Councillor is taking part, or is to take part, in the Council’s consideration of a matter and that the Councillor has such an interest relating to the matter: (a) the Council President must cause the Councillor’s interest to be disclosed to the persons concerned in the matter; or (b) if the Council President considers that the Councillor should not take part or continue to take part in the consideration of the matter — the Council President must direct the Councillor accordingly. (3) The Council President must give the Minister written notice of all pecuniary interests that the Council President has or acquires in any business carried on in Australia or in any body corporate carrying on such business.

[10,482]

Council meetings

29L (1) The Council President must convene the meetings that the Council President thinks are necessary to perform the Council’s functions efficiently. (2) The meetings must be held in places determined by the Council President. (3) The Council President must preside at any meeting that he or she attends. (4) If the Council President is absent from a meeting, a Councillor chosen by the Councillors at the meeting must preside. [page 203] (5) The Councillor presiding at a meeting may give directions on the procedure to be followed in relation to the meeting.

(6) The quorum for a meeting is 3 Councillors (including the Council President). (7) At a meeting, a question must be decided by a majority of votes of the Councillors present and voting. The Councillor presiding has a deliberative vote, and a casting vote if the deliberative votes are equally divided.

[10,482A]

Resolutions without meetings

29LA (1) If all Councillors (other than those that must not sign a document because of subsection (3)) sign a document containing a statement that they are in favour of a resolution in terms set out in the document, then a resolution in those terms is taken to have been passed at a duly constituted meeting of the Council held on the day the document was signed, or, if the members sign the document on different days, on the last of those days. (2) For the purposes of subsection (1), 2 or more separate documents containing statements in identical terms each of which is signed by one or more Councillors are together taken to constitute one document containing a statement in those terms signed by those Councillors on the respective days on which they signed the separate documents. (3) A Councillor must not sign a document containing a statement in favour of a resolution if the resolution concerns a matter in which the Councillor has any pecuniary interest, being an interest that could conflict with the proper performance of the Councillor’s functions in relation to any matter. [s 29LA insrt Act 102 of 2010 s 3 and Sch 5[1], opn 14 July 2010]

[10,484]

Staff to help Council

29M (1) The staff needed to help the Council are to be persons engaged under the Public Service Act 1999. [subs (1) am Act 146 of 1999 s 3 and Sch 1]

(2) For the purposes of the Public Service Act 1999: (a) the Council President and the APS employees assisting the Council President together constitute a Statutory Agency; and (b) the Council President is the Head of that Statutory Agency.

[subs (2) subst Act 146 of 1999 s 3 and Sch 1]

[10,486]

Consultants

29N (1) On behalf of the Commonwealth, the Council may engage persons to give advice to, and perform services for, the Council. (2) The terms and conditions of engagement are as determined by the Council.

[10,488]

Annual report

29O (1) Within 60 days after the end of each financial year, the Councillors must give a report on the Council’s operations during that year to the Minister for presentation to the Parliament. [page 204] (2) The report must also include details of the following: (a) the time taken by the Council to make a recommendation on any application under section 44F, 44M or 44NA (about access regime applications under Part IIIA); (b) any court or Tribunal decision interpreting: (i) paragraph (f) of the definition of service in section 44B (which is an exclusion to do with production processes); or (ii) any of the matters mentioned in subsection 44H(4) (about matters relevant to declaring services under Part IIIA); (c) any matter the Council considers has impeded the operation of Part IIIA from delivering efficient access outcomes; (d) any evidence of the benefits arising from determinations of the Commission under section 44V (about arbitration determinations under Part IIIA); (e) any evidence of the costs of, or the disincentives for, investment in the infrastructure by which declared services (within the meaning of Part IIIA) are provided;

(f)

any implications for the operation of Part IIIA in the future.

[subs (2) insrt Act 92 of 2006 s 3 and Sch 1[3], opn 1 Oct 2006]

[page 205] PART III — THE AUSTRALIAN COMPETITION TRIBUNAL [Pt III am Act 88 of 1995 s 56] INTRODUCTION TO PART III [10,490.1] Overview The predecessor of the Australian Competition Tribunal was the Trade Practices Tribunal. It was first established under the Trade Practices Act 1965 and continued under the current 1974 Act. The Australian Competition Tribunal was established in 1995 by the passage of the Competition Policy Reform Act 1995. The tribunal sits only when matters are referred to it. It comprises a sitting justice of the Federal Court (as presidential member) and a number of lay members, depending on the nature of the matters before the tribunal. The tribunal’s primary functions are: • to review decisions of the commission relating to non-merger authorisations or notifications under Pt VII of the Act; • to grant merger authorisations under Pt VII; • to review decisions of the commission and relevant ministers under the national access regime in Pt IIIA of the Act; • to discharge functions conferred on the tribunal including under the National Electricity Law and the National Gas Law. See Application by ElectraNet Pty Ltd (No 3) [2008] ACompT3 at [9]–[11] per Mansfield J, Mr Robin Davey and Dr Jill Walker. In relation to the position of Tribunal’s within the federal structure see Wainohu v New South Wales (2011) 278 ALR 1; 85 ALJR 746; [2011] HCA 24; BC201104388 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell J.

____________________

[10,490]

Definition

29P In this Part, unless the contrary intention appears: proceedings includes: (a) applications made to the Tribunal under Subdivision C of Division 3 of Part VII; and (b) applications made to the Tribunal under section 111 (about review of the Commission’s decisions on merger clearances). [s 29P insrt Act 131 of 2006 s 3 and Sch 1[6], opn 1 Jan 2007]

[10,527]

Constitution of Tribunal

30 (1) The Trade Practices Tribunal that existed immediately before this subsection commenced continues to exist as the Australian Competition Tribunal. [subs (1) subst Act 88 of 1995 s 57]

(2) The Tribunal so continued in existence shall consist of a President and such number of Deputy Presidents and other members as are appointed in accordance with this section. [subs (2) am Act 88 of 1995 s 57]

(3) A member of the Tribunal shall be appointed by the Governor-General. [page 206]

[10,530]

Qualifications of members of Tribunal

31 (1) A person shall not be appointed as a presidential member of the Tribunal unless he or she is a Judge of a Federal Court, not being the High Court or a court of an external Territory. [subs (1) am Act 88 of 1995 s 91]

(2) A person shall not be appointed as a member of the Tribunal other than a presidential member unless he or she appears to the Governor-General to be qualified for appointment by virtue of his or her knowledge of, or experience in, industry, commerce, economics, law or public administration. [subs (2) am Act 88 of 1995 s 91]

SECTION 31 GENERALLY [10,530.5] Overview The Tribunal comprises a presidential member (who must be a judge of a federal court) and other members based on their knowledge and experience. [10,530.10] Judge of a federal court The Presidential member of the Tribunal must be a judge of a federal court. In practice the presidential member has been a judge of the Federal Court of Australia. It is not uncommon for a judge to be appointed to a Tribunal: See Wainohu v New South Wales (2011) 278 ALR 1; 85 ALJR 746; [2011] HCA 24;

BC201104388 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell J. ____________________

[10,533] Appointment of Judge as presidential member of Tribunal not to affect tenure etc 31A The appointment of a Judge of a Federal Court as a presidential member of the Tribunal, or service by a Judge of a Federal Court as a presidential member of the Tribunal, whether the appointment was or is made or the service occurred or occurs before or after the commencement of this section, does not affect, and shall be deemed never to have affected, his or her tenure of office as a Judge of a Federal Court or his or her rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge of a Federal Court and, for all purposes, his or her service, whether before or after the commencement of this section, as a presidential member of the Tribunal shall be taken to have been, or to be, service as the holder of his or her office as a Judge of a Federal Court. [s 31A am Act 88 of 1995 s 91]

[10,535]

Terms and conditions of appointment

32 Subject to this Part, a member of the Tribunal holds office for such period, not exceeding 7 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor-General determines, but is eligible for re-appointment. [s 32 am Act 88 of 1995 s 91]

[10,540] Remuneration and allowances of members of Tribunal 33 (1) [subs (1) rep Act 73 of 1984 s 22] (2) [subs (2) rep Act 73 of 1984 s 22]

[page 207] (3) [subs (3) rep Act 73 of 1984 s 22] (4) A member of the Tribunal other than a presidential member shall be paid such remuneration as is determined by the Remuneration Tribunal. (5) A member of the Tribunal other than a presidential member shall be paid such allowances as are prescribed. (6) Subsections (4) and (5) have effect subject to the Remuneration Tribunal Act 1973. [subs (6) am Act 43 of 1996 s 3 and Sch 4]

[10,545]

Acting appointments

(1) Where: (a) the President is, or is expected to be, absent from duty; or (b) there is, or is expected to be, a vacancy in the office of President; the Minister may appoint a Deputy President or an acting Deputy President to act as President during the absence, or while there is a vacancy in the office of President, as the case may be. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. 34

[subs (1) am Act 106 of 1998 s 3 and Sch 2; Act 46 of 2011 s 3 and Sch 2[416], opn 27 Dec 2011]

(2) Where a presidential member (including the President) of the Tribunal is, or is expected to be, absent from duty, the Governor-General may appoint a person qualified to be appointed as a presidential member to act as a Deputy President during the absence from duty of the member. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. [subs (2) am Act 46 of 2011 s 3 and Sch 2[416], opn 27 Dec 2011]

(3) Where a member of the Tribunal other than a presidential member is, or is expected to be, absent from duty, the Governor-General may appoint a person qualified to be appointed as a member of the Tribunal other than a presidential member to act as such a member during the absence from duty of the member.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. [subs (3) am Act 46 of 2011 s 3 and Sch 2[416], opn 27 Dec 2011]

(4) Where a person has been appointed under subsection (2) or (3), the Governor-General may, by reason of pending proceedings or other special circumstances, direct, before the absent member of the Tribunal resumes duty, that the person so appointed shall continue to act under the appointment after the resumption of duty by the absent member until the Governor-General terminates the appointment, but a person shall not continue to act as a member of the Tribunal by virtue of this subsection for more than 12 months after the resumption of duty by the absent member. (5) Where a person has been appointed under this section to act as a member of the Tribunal during the absence from duty of a member of the Tribunal, and that member ceases to hold office without having resumed duty, the period of appointment of the person so appointed shall be deemed to continue until it is terminated by the Governor-General, or until the expiration of 12 months from the date on which the absent member ceases to hold office, whichever first happens. [page 208]

[10,550] Suspension and removal of members of Tribunal 35 (1) The Governor-General may suspend a member of the Tribunal from office on the ground of misbehaviour or physical or mental incapacity. (2) The Minister shall cause a statement of the ground of the suspension to be laid before each House of the Parliament within 7 sitting days of the House after the suspension. (3) Where such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member of the Tribunal should be restored to office and, if each House so passes a resolution, the Governor-General shall terminate the suspension.

(4) If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the Governor-General may remove the member of the Tribunal from office. (5) If a member of the Tribunal becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, the Governor-General shall remove him or her from office. [subs (5) am Act 88 of 1995 s 91]

(6) A member of the Tribunal shall not be removed from office except as provided by this section. (7) A presidential member of the Tribunal ceases to hold office if he or she no longer holds office as a Judge of a Federal Court, not being the High Court or a court of an external Territory. [subs (7) am Act 88 of 1995 s 91]

[10,555]

Resignation

36 A member of the Tribunal may resign his or her office by writing signed by him or her and delivered to the Governor-General. [s 36 am Act 88 of 1995 s 91]

[10,560] matters

Constitution of Tribunal for particular

37 The Tribunal shall, for the purpose of hearing and determining proceedings, be constituted by a Division of the Tribunal consisting of a presidential member of the Tribunal and two members of the Tribunal who are not presidential members. SECTION 37 GENERALLY [10,560.5] Overview Section 37 specifies the manner in which the tribunal is to be constituted for the purpose of hearing substantive applications filed in the tribunal. It does not require the three members to hear every procedural matter brought before it. For example, s 103(2) enables the

presidential member of a constituted division of the tribunal to resolve procedural issues which may arise: Re Seven Network Ltd (No 1) [2004] ACompT 5 at [9] per Goldberg J. [10,560.10] Apprehended bias Where application is made for a member of the Tribunal to be disqualified from participating in a hearing, it is for that member alone and not for the other members of the Tribunal to determine whether the member should disqualify himself or herself [page 209] from participating in the hearing: Re Seven Network Ltd (No 1) [2004] ACompT 5 at [9], [17]–[18] per Goldberg J. See Re Seven Network Ltd (No 2) [2004] ACompT 6 at [4] per Mr R F Shogren. In Re Seven Network Ltd (No 1), above, at [19] per Goldberg J said that the principles to be applied in determining whether there is a reasonable apprehension of bias were discussed by the High Court in Livesey v New South Wales Bar Assn (1983) 151 CLR 288 at 293-4; 47 ALR 45 and these were restated and applied in Johnson v Johnson (2000) 201 CLR 488; 174 ALR 655, where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ had said (CLR at 492; ALR at 658): It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgement) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

The same test was said to apply in relation to Tribunal members: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; 93 ALR 435; Quigley v Legal Practitioners Complaints Committee [2003] WASCA 228; BC200305680. ____________________

[10,565]

Validity of determinations

38 The validity of a determination of the Tribunal shall not be affected or called in question by reason of any defect or irregularity in the

constitution of the Tribunal.

[10,570]

President may give directions

39 (1) The President may give directions as to the arrangement of the business of the Tribunal and the constitution of Divisions of the Tribunal. (2) The President may give directions to the Deputy Presidents in relation to the exercise by the Deputy Presidents of powers with respect to matters of procedure in proceedings before the Tribunal. Note: Subsection 103(2) provides that any presidential member may exercise powers with respect to matters of procedure in proceedings before the Tribunal. [s 39 am Act 131 of 2006 s 3 and Sch 1[7], [8], opn 1 Jan 2007]

[10,575] Disclosure of interests by members of Tribunal 40 (1) When a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and the member has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the proceedings: (a) the member shall disclose the interest to the President; and (b) the member shall not take part, or continue to take part, in the proceedings if: (i) the President gives a direction under paragraph (2)(a) in relation to the proceedings; or (ii) all of the persons concerned in the proceedings do not consent to the member taking part in the proceedings. (2) Where the President becomes aware that a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and that the member has in relation to the proceedings such an interest: (a) if the President considers that the member should not take part, or should not continue to take part, in the proceedings — the President shall give a direction to the member accordingly; or

[page 210] (b) in any other case — the President shall cause the interest of the member to be disclosed to the persons concerned in the proceedings. (3) [subs (3) rep Act 123 of 2000 s 3 and Sch 1]

[10,580]

Presidential member to preside

41 The presidential member who is a member of a Division shall preside at proceedings of that Division.

[10,585]

Decision of questions

42 (1) A question of law arising in a matter before a Division of the Tribunal (including the question whether a particular question is one of law) shall be determined in accordance with the opinion of the presidential member presiding. (2) Subject to subsection (1), a question arising in proceedings before a Division of the Tribunal shall be determined in accordance with the opinion of a majority of the members constituting the Division. SECTION 42 GENERALLY [10,585.5] Overview The composition of the division of the Tribunal to hear and determine an application is a question of law to be decided by the presidential member: Re Seven Network Ltd (No 1) [2004] ACompT 5 at [4] per Goldberg J. [10,585.10] Apprehended bias See [10,560.10]. ____________________

[10,590] Member of Tribunal ceasing to be available

43 (1) This section applies where the hearing of any proceedings has been commenced or completed by the Tribunal but, before the matter to which the proceedings relate has been determined, one of the members constituting the Tribunal for the purposes of the proceedings has ceased to be a member of the Tribunal or has ceased to be available for the purposes of the proceedings. (2) Where the President is satisfied that this section applies in relation to proceedings, the President may direct that a specified member of the Tribunal shall take the place of the member referred to in subsection (1) for the purposes of the proceedings. (3) Where this section applies in relation to proceedings that were being dealt with before the Tribunal, the President may, instead of giving a direction under subsection (2), direct that the hearing and determination, or the determination, of the proceedings be completed by the Tribunal constituted by the members other than the member referred to in subsection (1). (4) Where the President has given a direction under subsection (3), he or she may, at any time before the determination of the proceedings, direct that a third member be added to the Tribunal as constituted in accordance with subsection (3). [subs (4) am Act 88 of 1995 s 91]

(5) The Tribunal as constituted in accordance with any of the provisions of this section for the purposes of any proceedings may have regard to any record of the proceedings before the Tribunal as previously constituted. [page 211]

[10,592]

Counsel assisting Tribunal

43A (1) The President may, on behalf of the Commonwealth, appoint a legal practitioner to assist the Tribunal as counsel, either generally or in relation to a particular matter or matters. (2) In this section: legal practitioner means a legal practitioner (however described) of the

High Court or of the Supreme Court of a State or Territory. [s 43A insrt Act 88 of 1995 s 8]

[10,593]

Consultants

43B The Registrar may, on behalf of the Commonwealth, engage persons as consultants to, or to perform services for, the Tribunal. [s 43B insrt Act 88 of 1995 s 8]

[10,595]

Staff of Tribunal

44 (1) There shall be a Registrar of the Tribunal and such Deputy Registrars of the Tribunal as are appointed in accordance with this section. (2) The Registrar and the Deputy Registrars shall be appointed by the Minister and shall have such duties and functions as are provided by this Act and the regulations and such other duties and functions as the President directs. (3) The Registrar and the Deputy Registrars, and the staff necessary to assist them, shall be persons engaged under the Public Service Act 1999. [subs (3) am Act 88 of 1995 s 58; Act 146 of 1999 s 3 and Sch 1]

[10,600]

Acting appointments

44A The Minister may appoint a person who is engaged under the Public Service Act 1999 to act as the Registrar or as a Deputy Registrar during any period, or during all periods, when: (a) the Registrar or that Deputy Registrar, as the case may be, is absent from duty or from Australia or is, for any other reason, unable to perform the duties and functions of his or her office; or (b) there is a vacancy in the office of Registrar or in that office of Deputy Registrar, as the case may be. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. (2) [subs (2) rep Act 46 of 2011 s 3 and Sch 2[419], opn 27 Dec 2011] (3) [subs (3) rep Act 46 of 2011 s 3 and Sch 2[419], opn 27 Dec 2011] (4) [subs (4) rep Act 46 of 2011 s 3 and Sch 2[419], opn 27 Dec 2011]

(5) [subs (5) rep Act 46 of 2011 s 3 and Sch 2[419], opn 27 Dec 2011] (6) [subs (6) rep Act 46 of 2011 s 3 and Sch 2[419], opn 27 Dec 2011] [s 44A am Act 88 of 1995 s 91; Act 146 of 1999 s 3 and Sch 1; Act 46 of 2011 s 3 and Sch 2[417], [418], opn 27 Dec 2011]

[page 213] PART IIIAA — THE AUSTRALIAN ENERGY REGULATOR (AER) [Pt IIIAA insrt Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005] INTRODUCTION TO PART IIIAA [10,605.5] Overview This Part was inserted by the Trade Practices Amendment (Australian Energy Market) Act 2004. The Act is part of a package of Commonwealth and state legislation to provide for the operation of the Australian energy market. In December 2002 the Council of Australian Governments released the report of a committee chaired by Warwick Parer. The report recommended the establishment of a national energy regulator and other measures designed to ensure effective regulation and competition in the national energy market. The Ministerial Council on Energy (MCE) supported these measures. To facilitate this, the Commonwealth, states and territories signed the Australian Energy Market Agreement on 30 June 2004 — subsequently amended in 2006 and again in July 2009. The July 2009 Australian Energy Market Agreement is reproduced at [17,925]. Previously the regulation of electricity and gas involved the following cooperative legislative schemes: • the National Electricity Law, Regulations and National Electricity Code under the National Electricity (South Australia) Act 1996 (SA), as amended by the National Electricity (South Australia) (New National Electricity Law) Amendment Act 2005, applied by participating states and territories; • the Gas Pipelines Access Law and the National Third Party Access Code for Natural Gas Pipeline Systems under the Gas Pipelines Access (South Australia) Act 1997 applied by the Commonwealth, participating states and territories; • state and territory legislation, regulations and rules applying to electricity and gas, generally involving licensing and retail market regulation. This cooperative scheme was administered by the commission (which has been broadly responsible for transmission facilities) and by state and territory regulators (broadly responsible for distribution and retail regulation). The regulation of electricity was also been supported by a number of other institutions including the National Electricity Code Administrator (NECA), responsible for compliance with the National Electricity Code, and the National Electricity Market Management Company (NEMMCO), responsible for management of the wholesale electricity market. This Part establishes the national energy regulator proposed by the Parer Committee, to be known as the Australian Energy Regulator (AER). The AER combines and subsumes the regulatory functions performed by the commission and NECA. It is also responsible for enforcement and economic regulation of electricity and natural gas transmission and distribution networks and retail regulation. These functions are conferred on the AER by Commonwealth, state and territory legislation. These functions were previously undertaken (in the case of electricity and gas distribution and retail regulation) by the various state and territory regulators. The commission retains its functions under other Parts of the Act. A separate body, the Australian Energy Market Commission (AEMC), was established by the Australian Energy Market Commission Establishment Act 2004 (SA). The AEMC is responsible for

rule-making and market development functions in electricity and natural gas transmission and distribution networks and retail markets. [page 214] In December 2007, agreement was reached to implement a detailed plan for the establishment of a national single energy market operator for electricity and gas to be called the Australian Energy Market Operator (AEMO). In September 2008 the Australian Energy Market Operator (Transitional) Limited (AEOMT) was formed to facilitate the establishment of the AEMO. The AEMO commenced on 1 July 2009. Merits review under the National Scheme On 7 March 2012, an Expert Panel of Professor George Yarrow (Chair), Dr John Tamblyn and the Hon Michael Egan commenced a review of the limited merits review regime under the National Electricity Laws and National Gas Laws. The Panel’s Final Report was published on 9 October 2012. Its recommendations included: • The scale of review of activity be limited by measures such as (a) recourse to materiality thresholds (so that, for example, appeals will not be allowed if the costs of review appear disproportionate to the issues raised), (b) time limits for the conduct of reviews, and (c) requirements to adopt the “record” of the primary decision maker as a starting point (so that, to the extent that reviewers collect and examine information, they do so incrementally, not on a de novo basis). • That a new, wholly administrative, review body, provisionally labelled the Australian Energy Appeals Authority (AEAA), take over all, or the great bulk of, energy sector review work currently undertaken by the ACT, and in particular that the AEAA take over review of NSP revenue/price determinations. • That the AEAA, while operating as an independent authority, be attached to an existing administrative agency, from which it can draw resources and administrative support (on a pay-for-service basis). In particular the recommendation is that the attachment be to the Australian Energy Market Commission (AEMC). • While the Panel recommends (a) that the AEAA should conduct its affairs on a fully independent basis, (b) that the membership of the AEAA should not include AEMC Commissioners, and (c) that the only shared resources should be staff and administrative support, it also recommends that AEMC Commissioners and AEAA members should be required to meet from time to time, to consider developments in the National Electricity Rules (NER) and National Gas Rules (NGR), and to consider the issues raised in recent reviews, in order to avoid conflicts between the two, complementary modes of supervision. Following the report the Standing Council on Energy and Resources (SCER) published its agreed position in its statement Limited Merits Review of Decision Making in the Electricity and Gas Regulatory Frameworks — Decision Paper in June 2013. In it, SCER indicated its desire to retain the role of the Australian Competition Tribunal as the review body and to maintain a limited merits review function. In June 2013 consultation draft legislation in the form of the Statutes Amendment (National Electricity and Gas Laws Limited Merits Review) Bill 2013 was released. The Statutes Amendment (National Electricity and Gas Laws Limited Merits Review) Act 2013 commenced on 19 December 2013. The Amendment Act amends the National Electricity Law and the National Gas Law to implement SCER’s agreed position as follows: • clearly link the intent of the original decision and review processes, to ensure a common focus on outcomes that are in the long term interests of consumers — consistent with the

•

National Electricity Objective (NEO) and the National Gas Objective (NGO) and the revenue and pricing principles; reform the manner in which the Australian Energy Regulator performs its economic regulatory functions or powers to provide greater transparency of its determination process; [page 215]

•

raise the threshold for leave to apply for review of a decision by adding a requirement for the applicant to establish a prima facie case that a materially preferable decision exists, with regard to the NEO or the NGO; • require the Australian Competition Tribunal (the Tribunal) to routinely consult relevant users and consumers and to consider interlinked matters; • clarify the matters that may be raised by parties to a review, including allowing raising of inter-linked matters to the extent they are relevant to whether a materially preferable decision exists; • remove the risk of prohibitively high costs being awarded against users and consumers in a review; • prevent costs associated with reviews being passed through into regulated revenues; and • require a review of the performance of the Tribunal under the reformed regime to commence in 2016 to assess the effectiveness of the above changes on the way limited merits reviews are performed. Amendments to support these reforms were also made to the Competition and Consumer Regulations on 12 December 2013. Reform In its final report, Competition Policy Review, released in March 2015, the Harper Committee recommended that the following regulatory functions be transferred from the Commission and the Council and be undertaken within a single national access and pricing regulator: • The powers given to the Council and the Commission under the National Access Regime in Pt IIIA; • The powers given to the Council under the National Gas Law; • The functions undertaken by the Australian Energy Regulator under the National Electricity law and the National Gas Law; • The telecommunications access and pricing functions of the Commission; • Price regulation and related advisory roles under the Water Act 2007 (Cth). See [10,690.5]. [10,605.10] Electricity regulation The initial National Electricity Rules (NER), (previously the National Electricity Code), were made by the minister under the National Electricity (South Australia) Act 1996 (SA) and commenced on 1 July 2005 — and subsequently amended. The National Electricity Law, the NER and Regulations under the National Electricity (South Australia) Act 1996 (SA) commenced on 1 January 2008. The NER applies in participating states and territories under state and territory application laws. The Australian Energy Market Act 2004 applies the NER as Commonwealth law to the adjacent areas of each state and territory. See also [10,605.5]. It is beyond the scope of this work to discuss the decisions under the NER. Readers desiring further information on the interpretation of the NER are referred to the following decisions: Application by ElectraNet Pty Ltd (No 3) [2008] ACompT 3; BC200811629 at [9]–[11] per Mansfield J, Mr Robin Davey and Dr Jill Walker; Application by Energy Australia [2009] ACompT

7; BC200909734 per Middleton J, Mr R Davey and Mr R Shogren; Application by [page 216] Energy Australia [2009] ACompT 8; BC200910159 per Middleton J, Mr R Davey and Mr R Shogren; Application by United Energy Distribution Pty Ltd [2009] ACompT 10; BC200912036 per Finkelstein J, RF Shogren and MM Starrs; Re Energex Ltd [2010] ACompT 3; BC201006843 per Middleton J, R Davey and R Shogren; Re Application by ETSA Utilities [2010] ACompT 5; BC201007566 per Middleton J, Mr R Davey and Mr R Shogren; Re Application by Ergon Energy Corp Ltd [2010] ACompT 6; BC201007567 per Middleton J, Mr R Davey and Mr R Shogren; Re Application by Energex Ltd (No 2) [2010] ACompT 7; BC201007568 per Middleton J, Mr R Davey and Mr R Shogren; Re Application by Ergon Energy Corp Ltd [2010] ACompT 6; BC201007567 per Middleton J, Mr R Davey and Mr R Shogren; Re Application by Energex Ltd (No 2) [2010] ACompT 7; BC201007568 per Middleton J, Mr R Davey and Mr R Shogren; Re Application by Energex Ltd (No 4) (2011) 247 FLR 318; [2011] ACompT 4; BC201100739 per Middleton J, Mr R Davey and Mr R Shogren; Re Application by Energex Ltd (No 5) [2011] ACompT 9; BC201102987 per Middleton J, Mr R Davey and Mr R Shogren; Re Application by Jemena Gas Networks (NSW) Ltd (No 3) [2011] ACompT 6; BC201101498 (25 February 2011); Re Application by Jemena Gas Networks (NSW) Ltd (No 2) [2011] ACompT 5; BC201100797 (11 February 2011); Re Application by Energex Ltd (No 4) (2011) 247 FLR 318; [2011] ACompT 4; BC201100739 (11 February 2011); Re Application by Ergon Energy Corp Ltd (Labour Cost Escalators) (No 9) [2011] ACompT 3; BC201100742 (10 February 2011); Re Application by Ergon Energy Corp Ltd (Non-System Property Capex) (No 8) [2011] ACompT 2; BC201100741 (10 February 2011); Re Application by Ergon Energy Corp Ltd (Other Costs) (No 7) [2011] ACompT 1; BC201100743 (10 February 2011); ActewAGL Distribution v The Australian Energy Regulator [2011] FCA 639; BC201103903 per Katzmann J; Australian Energy Regulator v Stanwell Corporation Ltd [2011] FCA 991 per Dowsett J; Re Application by United Energy Distribution Pty Ltd [2012] ACompT 1; BC201200083 per Foster J, Mr Grant Latta and Professor David Round; United Energy Distribution Pty Ltd v Australian Energy Regulator [2012] FCA 405; BC201202368 per Foster J; Ergon Energy Corp Ltd v Australian Energy Regulator [2012] FCA 393; BC201202243 per Logan J; Application by SPI Electricity Pty Ltd [2013] ACompT 1 per Foster J, Mr G Latta and Professor D Round; Appeal by SPI Electricity Pty Ltd [2013] ACompT 7 per Foster J, Mr RF Shogren and Professor KT Davis; Application by ActewAGL Distribution [2014] ACompT 2 per Mansfield J; Australian Energy Regulator v Snowy Hydro Ltd [2014] FCA 1013; BC201407772 per Beach J; SPI Electricity Pty Ltd v Australian Energy Regulator [2014] FCA 1012; BC201407741; Australian Energy Regulator v Snowy Hydro Ltd (No 2) [2015] FCA 58; BC201500478 per Beach J; Re Public Interest Advocacy Centre Ltd [2015] ACompT 2; BC201506671 per Mansfield J, Mr R Davey and Dr D Abraham; Re ActewAGL Distribution [2015] ACompT 3; BC201506787 per Mansfield J, Mr R Davey and Dr D Abraham; CKI Utilities Development Pty Ltd v Australian Energy Regulator [2016] FCA 17; BC201600325 per Mansfield J; Applications by Public Interest Advocacy Service Ltd and Ausgrid Distribution [2016] ACompT 1 per Mansfield J, Mr R Davey and Dr D Abraham; Applications by Public Interest Advocacy Centre Ltd and Endeavour Energy [2016] ACompT 2; BC201601117 per Mansfield J, Mr R Davey and Dr D Abraham; Re Applications by Public Interest Advocacy Centre Ltd and Essential Energy [2016] ACompT 3; BC201601118 per Mansfield J, Mr R Davey and Dr D Abraham; Re Application by ActewAGL Distribution [2016] ACompT 4; BC201601141 per Mansfield J, Mr R Davey and Dr D Abraham. [10,605.15] Gas regulation Previously the Gas Pipelines Access Law and the National Third Party Access Code for Natural Gas Pipeline Systems under the Gas Pipelines Access (South

Australia) Act 1997 regulated access to gas pipelines in participating states and territories. In 2006 the MCE undertook a review of gas pipelines access regulation. On 1 July 2008 the National Gas (South Australia) Act 2008 commenced. It provides for the application of the National Gas Law (and regulations under the National Gas Law) and the National Gas Rules. [page 217] They effectively replace the National Gas Pipelines Access Law and the National Third Party Access Code for Natural Gas Pipeline Systems. The National Gas (South Australia) Act 2008 repeals the Gas Pipelines Access (South Australia) Act 1997. The National Gas Rules 2008 were made on 1 July 2008 and amended in 2009. See s 44N for the certification by the National Competition Council of gas access regimes under CCA Pt IIIA. On 8 September 2008 the council received an application under s 112 of the National Gas Law (NGL) from the East Australian Pipeline Pty Ltd (EAPL) to apply light regulation to the services of the covered portion of its Moomba to Sydney Pipeline. On 19 November 2008, under NGL s 114, and in accordance with the National Gas Rules, the council made a determination in favour of the application. On 2 October 2009, the Council received an application from APT Pipelines (NSW) Pty Ltd under the National Gas Law for the light regulation of the covered Central West Pipeline, which transports gas from Marsden on the Moomba Sydney Pipeline mainline to Forbes, Parkes, Narromine and Dubbo in the central west of New South Wales. On 19 January 2010, the Council released its final determination and statement of reasons. Under NGL s 114 and in accordance with the National Gas Rules, the Council determined the services provided by the Central West Pipeline to be light regulation services. On 19 January 2010 the Council received an application under the NGL from QCLNG Pipeline Pty Ltd (a subsidiary of BG Group / QGC Ltd) for a 15 year no-coverage determination for the proposed “QCLNG Pipeline” in Queensland, running from the Surat Basin to Curtis Island. The Council recommended that the Minister grant the no-coverage determination. On 15 June 2010 the Minister for Resources and Energy, the Hon Martin Ferguson, granted a 15 year no-coverage determination for the QCLNG pipeline. On 22 April 2010 the Council received an application from Southern Cross Pipelines Australia Pty Ltd (a wholly owned subsidiary within the APA Group) under the NGL for the light regulation of the covered Kalgoorlie to Kambalda Pipeline in Western Australia. On 29 June 2010 the Council released its final determination and statement of reasons in favour of light regulation of the Kalgoorlie Kambalda Pipeline. The determination came into force 60 business days from 29 June 2010. On 2 May 2012 the Council received an application under the National Gas Law (NGL) from Australia Pacific LNG Gladstone Pipeline Pty Limited (APLNG) for a 15 year no-coverage determination for APLNG’s proposed pipeline in Queensland, running from the Surat Basin to Curtis Island. See also [10,605.5]. It is beyond the scope of this work to discuss the decisions under the NGL. Readers desiring further information on the interpretation of the NGL are referred to the following decisions: Re Duke Eastern Gas Pipeline Pty Ltd (2001) ATPR ¶41-827; [2001] ACompT 3 per Hely J, Dr M J Messenger and Ms M M Starrs; Re Duke Eastern Gas Pipeline Pty Ltd (2001) 162 FLR 1; (2001) ATPR ¶41-821; [2001] ACompT 2 per Hely J, Dr M J Messenger and Ms M M Starrs; Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511; (2002) ATPR ¶41-886; [2002]

WASCA 231; BC200204795 per Malcolm CJ, Anderson and Parker JJ; Re Epic Energy South Australia Pty Ltd (2003) ATPR ¶41-932; [2002] ACompT 4 per Cooper J, Professor D K Round and Ms M M Starrs; Re Application by Epic Energy South Australia Pty Ltd (2004) ATPR ¶41-977; [2003] ACompT 5 per Cooper J, Professor D K Round and Ms M M Starrs; Re Application by GasNet Australia (Operations) Pty Ltd (2004) ATPR ¶41-978; [2003] ACompT 6 per Cooper J, Mr R C Davey and Professor D K Round; Re Application by East Australian Pipeline Ltd (2004) ATPR ¶42006; [2004] ACompT 8 per Gyles J, Mr R C Davey and Ms M M Starrs; Re Orica IC Assets Ltd; Moomba to Sydney Gas [page 218] Pipeline System (2004) ATPR ¶41-990; [2004] ACompT 1 per Gyles J, Mr R C Davey and Ms M M Starrs; Re Orica IC Assets Ltd; Moomba to Sydney Gas Pipeline System (2004) ATPR ¶41-991; [2004] ACompT 2 per Gyles J, Mr R C Davey and Ms M M Starrs; Re Application by East Australian Pipeline Ltd (2005) ATPR ¶42-047; [2005] ACompT 1 per Gyles J, Mr R C Davey and Ms M M Starrs; Application by East Australian Pipeline Ltd [2005] ACompT 3 per Gyles J, Mr R C Davey and Ms M M Starrs; Australian Competition and Consumer Commission v Australian Competition Tribunal [2006] FCAFC 83; BC200604913 per French, Goldberg and Finkelstein JJ; Australian Competition and Consumer Commission v Australian Competition Tribunal [2006] FCAFC 127; BC200606380 per French, Goldberg and Finkelstein JJ; Alinta Asset Management Pty Ltd v Essential Services Commission (No 2) [2007] VSC 210; BC200706769 per Hollingworth J; East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229; 239 ALR 50; [2007] HCA 44; BC200708214. See Application by ElectraNet Pty Ltd (No 3), above, at [64] per Mansfield J, Mr Robin Davey and Dr Jill Walker; Alinta Asset Management Pty Ltd v Essential Services Commission [2008] VSCA 273; BC200811361 per Ashley and Dodds-Streeton JJA and Hansen AJA; Re Application by Actew AGL Distribution [2010] ACompT 4; BC201007103 per Finkelstein J, Mr R F Shogren and Dr J S Marsden; Re Application by Jemena Gas Networks (NSW) Ltd [2010] ACompT 8; BC201007991 per Finkelstein J, Prof David Round and Mr R Steinwall; Re Application by Jemena Gas Networks (NSW) Ltd (No 2) [2011] ACompT 5; BC201100797 per Finkelstein J, Prof D Round and Mr R Steinwall; Re Application by Jemena Gas Networks (NSW) Ltd (No 3) [2011] ACompT 6; BC201101498 per Finkelstein J, Prof D Round and Mr R Steinwall; Re Application by Jemena Gas Networks (NSW) Ltd (No 4) [2011] ACompT 8; BC201102950 per Finkelstein J, Prof D Round and Mr R Steinwall; Re Application by Jemena Gas Networks (NSW) Ltd (No 5) [2011] ACompT 10; BC201104039 per Finkelstein J, Prof D Round and Mr R Steinwall; Re Application by Envestra Ltd (No 2) [2012] ACompT 3; BC201200045 per Mansfield J, Mr Robin Davey and Professor David Round; Re Application by Envestra Ltd (No 2) [2012] ACompT 4; BC201200043 per Mansfield J, Mr Robin Davey and Professor David Round; Application by APT Allgas Energy Pty Ltd [2012] ACompT 5; BC201200044 per Mansfield J, Mr Robin Davey and Professor David Round; Re Application by WA Gas Networks Pty Ltd (No 3) [2012] ACompT 12; BC201204405 per Mansfield J, Mr R Davey and Professor David Round; Re Application by Alinta Sales Pty Ltd (No 2) [2012] ACompT 13; BC201204199 per Mansfield J, Mr R Davey and Professor David Round; Re Application by Multinet Gas (DB No 1) Pty Ltd [2013] ACompT 5; BC201310767 per Mansfield J, Mr GF Latta and Professor David Round; Re Application by Multinet Gas (DB No 1) Pty Ltd (No 2) [2013] ACompT 6; BC201311474 per Mansfield J, Mr GF Latta and Professor David Round; Re Application by APA GasNet Australia (Operations) Pty Ltd [2013] ACompT 4; BC201310766 per Mansfield J, Professor David Round and Mr R Steinwall; Re Application by APA GasNet Australia (Operations) Pty Ltd (No 2) [2013] ACompT 8; BC201313048 per Mansfield J, Professor David Round and Mr R Steinwall; Re Atco Gas Australia Pty Ltd [2015] ACompT 7; BC201512966 per Middleton J, Mr R Steinwall and Professor KT Davis; Re Application by Jemena

Gas Networks (NSW) Ltd [2016] ACompT 5; BC201601348 per Mansfield J, Mr R Davey and Dr D Abraham; Re Application by ATCO Gas Australia Pty Ltd [2016] ACompT 10; BC201605951 per Middleton J, Professor KT Davis and Mr R Steinwall.

____________________ DIVISION 1 — PRELIMINARY

[10,610AB]

Definitions

44AB In this Part, unless the contrary intention appears: Australian Energy Market Agreement means the agreement, as amended from time to time: [page 219] (a) that relates to energy; and (b) that is between the Commonwealth, all of the States, the Australian Capital Territory and the Northern Territory; and (c) that is first made in 2004; and (d) that agrees to the establishment of the AER and the AEMC. Commonwealth AER member means the member referred to in section 44AM. full-time AER member means an AER member appointed on a full-time basis. part-time AER member means an AER member appointed on a parttime basis. South Australian Electricity Legislation [def rep Act 45 of 2007 s 3 and Sch 1[67], opn 1 July 2008]

State/Territory energy law [def rep Act 45 of 2007 s 3 and Sch 1[68], opn 1 July 2008]

uniform energy law [def rep Act 45 of 2007 s 3 and Sch 1[69], opn 1 July 2008]

[10,610AC]

This Part binds the Crown

44AC

This Part binds the Crown in each of its capacities.

[10,610AD]

Extra-territorial operation

44AD It is the intention of the Parliament that the operation of this Part should, as far as possible, include operation in relation to the following: (a) things situated in or outside Australia; (b) acts, transactions and matters done, entered into or occurring in or outside Australia; (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of a State, a Territory or a foreign country. DIVISION 2 — ESTABLISHMENT OF THE AER

[10,610AE]

Establishment of the AER

44AE (1) The Australian Energy Regulator (the AER) is established by this section. (2) The AER: (a) is a body corporate with perpetual succession; and (b) must have a common seal; and (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued in its corporate name. (3) However, the AER is taken, for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013): (a) not to be a corporate Commonwealth entity; and (b) to be a part of the Commonwealth, and a part of the Commission; and (c) not to be a body corporate. [subs (3) insrt Act 62 of 2014 s 3 and Sch 5 item 112, opn 1 July 2014]

[page 220]

[10,610AF] AER to hold money and property on behalf of the Commonwealth 44AF The AER holds any money or property for and on behalf of the Commonwealth.

[10,610AG]

Constitution of the AER

44AG The AER consists of: (a) a Commonwealth AER member, appointed in accordance with section 44AM; and (b) 2 State/Territory AER members, appointed in accordance with section 44AP. DIVISION 3 — FUNCTIONS AND POWERS OF THE AER

[10,610AH]

Commonwealth functions

44AH The AER has any functions: (a) conferred under a law of the Commonwealth; or (b) prescribed by regulations made under this Act. Note: The AER may have functions under the Australian Energy Market Act 2004. [s 44AH am Act 45 of 2007 s 3 and Sch 1[70], opn 1 July 2008]

[10,610AI] Commonwealth consent to conferral of functions etc on AER 44AI (1) General rule A State/Territory energy law or a local energy instrument may confer functions or powers, or impose duties, on the AER for the purposes of that law or instrument. Note: Section 44AK sets out when such a law or instrument imposes a duty on the AER. [subs (1) am Act 119 of 2011 s 3 and Sch 2 items 6-8, opn 1 July 2012]

(2) Subsection (1) does not authorise the conferral of a function or power,

or the imposition of a duty, by a State/Territory energy law or local energy instrument to the extent to which: (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the AER; or (b) the authorisation would otherwise exceed the legislative power of the Commonwealth. [subs (2) am Act 119 of 2011 s 3 and Sch 2 item 9, opn 1 July 2012]

(3) The AER cannot perform a duty or function, or exercise a power, under a State/Territory energy law or local energy instrument unless the conferral of the function or power, or the imposition of the duty, is in accordance with the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory concerned. [subs (3) am Act 119 of 2011 s 3 and Sch 2 item 10, opn 1 July 2012]

(4) A local energy instrument may confer functions or powers, or impose duties, on the AER only if the instrument is designated for the purposes of this subsection under [page 221] the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory that made the instrument. [subs (4) subst Act 119 of 2011 s 3 and Sch 2 item 12, opn 1 July 2012]

(5) To avoid doubt, if a State/Territory energy law is also a local energy instrument, subsection (4) applies to the law. [subs (5) insrt Act 119 of 2011 s 3 and Sch 2 item 11, opn 1 July 2012]

[10,610AJ]

How duty is imposed

44AJ (1) Application This section applies if a State/Territory energy law or local energy instrument purports to impose a duty on the AER. Note 1: Section 44AK sets out when such a law or instrument imposes a

duty on the AER. Note 2: Section 320 of the South Australian Energy Retail Legislation, as it applies as a law of a State or Territory, deals with the case where a duty purportedly imposed on a Commonwealth body under that applied law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties. [subs (1) am Act 119 of 2011 s 3 and Sch 2 items 14-17, opn 1 July 2012]

(2) State or Territory legislative power sufficient to support duty The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which: (a) imposing the duty is within the legislative powers of the State or Territory concerned; and (b) imposing the duty by the law or instrument of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER. Note: If this subsection applies, the duty will be taken to be imposed by force of the law or instrument of the State or Territory (the Commonwealth having consented under section 44AI to the imposition of the duty by that law or instrument). [subs (2) am Act 119 of 2011 s 3 and Sch 2 items 18-19, opn 1 July 2012]

(3) Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law or instrument of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity. [subs (3) am Act 119 of 2011 s 3 and Sch 2 item 20, opn 1 July 2012]

(4) If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part. (5) The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty: (a) is within the legislative powers of the Commonwealth; and (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.

(6) Subsections (1) to (5) do not limit section 44AI.

[10,610AK] When a State/Territory energy law etc imposes a duty 44AK For the purposes of section 44AI and 44AJ, a State/Territory energy law or local energy instrument imposes a duty on the AER if: [page 222] (a) the law or instrument confers a function or power on the AER; and (b) the circumstances in which the function or power is conferred give rise to an obligation on the AER to perform the function or to exercise the power. [s 44AK am Act 119 of 2011 s 3 and Sch 2 items 21-22, opn 1 July 2012]

[10,610AL]

Powers of the AER

44AL The AER has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. Note: State and Territory laws or instruments may also confer powers on the AER in respect of its functions under those laws or instruments: see section 44AI. [s 44AL am Act 119 of 2011 s 3 and Sch 2 item 23, opn 1 July 2012]

DIVISION 4 — ADMINISTRATIVE PROVISIONS RELATING TO THE AER Subdivision A — Appointment etc of members

[10,610AM] Appointment of Commonwealth AER member 44AM

(1) A Commonwealth AER member is to be appointed by the

Governor-General by written instrument. (2) The Commonwealth AER member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. (3) A person is not eligible for appointment as the Commonwealth AER member unless the person is a member of the Commission. If the person ceases to be a member of the Commission, then the person also ceases to be an AER member. (4) A person is not eligible for appointment as the Commonwealth AER member unless the person has been chosen for appointment in accordance with the Australian Energy Market Agreement.

[10,610AN] Membership of AER and Commission 44AN (1) Member taken to be full-time member of both AER and Commission For the purposes of this Part, the Commonwealth AER member is taken to be a full-time member of the AER. (2) However, the Commonwealth AER member remains a full-time member of the Commission. (3) Paid employment Paragraph 13(2)(c) does not apply to a member of the Commission in respect of any paid employment of that member as an AER member. (4) Sections 44AX and 44AAB do not apply to an AER member in respect of the paid employment of that member as a member of the Commission.

[10,610AO] Acting appointment of Commonwealth AER member 44AO (1) The Chairperson may appoint a member of the Commission to act as the Commonwealth AER member: (a) during a vacancy in the office of Commonwealth AER member, whether or not an appointment has previously been made to the office; or

[page 223] (b) during any period, or during all periods, when the Commonwealth AER member is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. [subs (1) am Act 46 of 2011 s 3 and Sch 2[420], opn 27 Dec 2011]

(2) If a person acting as the Commonwealth AER member ceases to be a member of the Commission, then the appointment to act as the Commonwealth AER member also ceases. (3) [subs (3) rep Act 46 of 2011 s 3 and Sch 2[421], opn 27 Dec 2011]

[10,610AP] members

Appointment of State/Territory AER

44AP (1) A State/Territory AER member is to be appointed by the Governor-General by written instrument, on either a full-time or part-time basis. Note: A State/Territory AER member is also taken to be an associate member of the Commission: see section 8AB. (2) A State/Territory AER member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. (3) A person is not eligible for appointment as a State/Territory AER member unless the person, being a person who has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration, has been nominated for appointment in accordance with the Australian Energy Market Agreement.

[10,610AQ] Acting appointment of State/Territory AER member 44AQ (1) The Minister may appoint a person to act as a State/Territory AER member:

(a) during a vacancy in the office of State/Territory AER member, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the State/Territory AER member is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. [subs (1) am Act 46 of 2011 s 3 and Sch 2[422], opn 27 Dec 2011]

(2) A person is not eligible for appointment to act as a State/Territory AER member unless the person, being a person who has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration, has been nominated for appointment in accordance with the Australian Energy Market Agreement.

[10,610AR]

AER Chair

44AR (1) One of the AER members is to be appointed by the GovernorGeneral as the AER Chair, by written instrument. The appointment as AER Chair may be made at the same time as the appointment as AER member, or at a later time. [page 224] (2) A member is not eligible for appointment as AER Chair unless the person has been nominated for appointment as the Chair in accordance with the Australian Energy Market Agreement. (3) The AER Chair holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. (4) If the AER Chair ceases to be an AER member, then he or she also ceases to be the AER Chair. Note: A person may cease to be the AER Chair without ceasing to be an AER member.

[10,610AS]

Acting AER Chair

44AS (1) The Minister may appoint an AER member to act as the AER Chair: (a) during a vacancy in the office of the AER Chair, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the AER Chair is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. [subs (1) am Act 46 of 2011 s 3 and Sch 2[423], opn 27 Dec 2011]

(2) If a person acting as the AER Chair ceases to be an AER member, then the appointment to act as the AER Chair also ceases. (3) [subs (3) rep Act 46 of 2011 s 3 and Sch 2[424], opn 27 Dec 2011]

[10,610AT]

Remuneration of AER members

44AT (1) An AER member (other than the Commonwealth AER member) is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed. (2) An AER member (other than the Commonwealth AER member) is to be paid the allowances that are prescribed. (3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973. (4) The Commonwealth AER member is not entitled to be paid remuneration or allowances. Note: The Commonwealth AER member is paid as a member of the Commission.

[10,610AU] Chair

Additional remuneration of AER

44AU (1) The AER Chair (whether or not the Commonwealth AER member) is to be paid additional remuneration (if any) determined by the Remuneration Tribunal. (2) The AER Chair (whether or not the Commonwealth AER member) is to be paid additional allowances (if any) that are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973 other than subsection 7(11) of that Act. [page 225]

[10,610AV]

Leave of absence

44AV (1) A full-time AER member has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Minister may grant a full-time AER member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines. (3) The AER Chair may grant leave of absence to any part-time AER member on the terms and conditions that the AER Chair determines.

[10,610AW]

Other terms and conditions

44AW An AER member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor-General.

[10,610AX]

Outside employment

44AX (1) A full-time AER member must not engage in paid employment outside the duties of the member’s office without the Minister’s consent. (2) A part-time AER member must not engage in any paid employment that conflicts or could conflict with the proper performance of the member’s duties.

[10,610AY]

Disclosure of interests

44AY (1) If an AER member has any direct or indirect interest in a matter being considered, or about to be considered, by the AER, being an interest that could conflict with the proper performance of the member’s functions in relation to a matter arising at a meeting of the AER, then the member must as soon as practicable disclose that interest at a meeting of the AER. (2) The disclosure, and any decision made by the AER in relation to the disclosure, must be recorded in the minutes of the meeting.

[10,610AZ]

Resignation

44AZ (1) An AER member may resign his or her appointment by giving the Governor-General a written resignation. (2) The AER Chair may resign his or her appointment as AER Chair by giving the Governor-General a written resignation. The resignation does not affect the person’s appointment as an AER member.

[10,610AAB]

Termination of appointment

44AAB (1) All AER members The Governor-General may terminate the appointment of an AER member: (a) for misbehaviour or physical or mental incapacity; or (b) if the member: (i) becomes bankrupt; or (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or [page 226] (iii) compounds with his or her creditors; or (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or

if the member fails, without reasonable excuse, to comply with (c) section 44AY. (2) Additional grounds: full-time AER members The Governor-General may terminate the appointment of a full-time AER member if: (a) the member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or (b) the member engages, except with the Minister’s consent, in paid employment outside the duties of his or her office. (3) Additional grounds: part-time AER members The GovernorGeneral may terminate the appointment of a part-time AER member if: (a) the member is absent, except on leave of absence, from 3 consecutive meetings of the AER; or (b) the member engages in paid employment that conflicts or could conflict with the proper performance of the duties of his or her office. Subdivision B — Staff etc to assist the AER

[10,610AAC]

Staff etc to assist the AER

44AAC The Chairperson must make available: (a) persons engaged under section 27; and (b) consultants engaged under section 27A; to assist the AER to perform its functions. Subdivision C — Meetings of the AER etc

[10,610AAD]

Meetings

44AAD (1) The AER Chair must convene such meetings of the AER as he or she thinks necessary for the efficient performance of the functions of the AER. Note: See also section 33B of the Acts Interpretation Act 1901, which contains extra rules about meetings by telephone etc. (2) Meetings of the AER must be held at such places as the AER Chair

determines. (3) At a meeting of the AER, 2 members constitute a quorum. The quorum must include the AER Chair and must also include the Commonwealth AER member (if the Commonwealth AER member is not also the AER Chair). (4) Questions arising at a meeting must be determined by unanimous vote of the members present and voting. (5) The AER Chair must preside at all meetings of the AER. (6) The AER Chair may give directions regarding the procedure to be followed at or in connection with a meeting.

[10,610AAE]

Resolutions without meetings

44AAE (1) If all 3 AER members sign a document containing a statement that they are in favour of a resolution in terms set out in the document, then a resolution in those [page 227] terms is taken to have been passed at a duly constituted meeting of the AER held on the day the document was signed, or, if the members sign the document on different days, on the last of those days. (2) For the purposes of subsection (1), 2 or more separate documents containing statements in identical terms each of which is signed by one or more members are together taken to constitute one document containing a statement in those terms signed by those members on the respective days on which they signed the separate documents. (3) A member must not sign a document containing a statement in favour of a resolution if the resolution concerns a matter in which the member has any direct or indirect interest, being an interest that could conflict with the proper performance of the member’s functions in relation to any matter.

[10,610AAEA] 44AAEA

Arbitration

(1) Sections 44AD and 44AAE do not apply to the AER as

constituted for an arbitration under: (a) the National Electricity (Commonwealth) Law (as defined by the Australian Energy Market Act 2004); or (b) the National Gas (Commonwealth) Law (as defined by the Australian Energy Market Act 2004); or (c) a provision of a State/Territory energy law. (2) The reference in subsection (1) to an arbitration includes a reference to each of the following: (a) the making, variation or revocation of an access determination (within the meaning of the law concerned); (b) the performance of a function, or the exercise of a power, in connection with the making, variation or revocation of an access determination (within the meaning of the law concerned). [s 44AAEA insrt Act 45 of 2007 s 3 and Sch 1[71], opn 1 July 2008]

Subdivision D — Miscellaneous

[10,610AAF]

Confidentiality

44AAF (1) The AER must take all reasonable measures to protect from unauthorised use or disclosure information: (a) given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers; or (b) that is obtained by compulsion in the exercise of its powers. Note: The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information. (2) For the purposes of subsection (1), the disclosure of information as required or permitted by a law of the Commonwealth, a State or Territory, is taken to be authorised use and disclosure of the information. (3) Authorised use Disclosing information to one of the following is authorised use and disclosure of the information: (a) the Commission; (b) the AEMC; [page 228]

(c) Australian Energy Market Operator Company Limited (ACN 072 010 327); (ca) the Clean Energy Regulator; (cb) the Climate Change Authority; (d) any staff or consultant assisting a body mentioned in paragraph (a), (b), (c), (ca) or (cb) in performing its functions or exercising its powers; (e) any other person or body prescribed by the regulations for the purpose of this paragraph. [subs (3) am Act 17 of 2009 s 3 and Sch 1[13], opn 27 Mar 2009; Act 132 of 2011 s 3 and Sch 1[100] and [101], opn 2 Apr 2012; s 3 and Sch 1[258B] and [258C], opn 1 July 2012]

(4) A person or body to whom information is disclosed under subsection (3) may use the information for any purpose connected with the performance of the functions, or the exercise of the powers, of the person or body. (5) The AER may impose conditions to be complied with in relation to information disclosed under subsection (3). (6) For the purposes of subsection (1), the use or disclosure of information by a person for the purposes of: (a) performing the person’s functions, or exercising the person’s powers, as: (i) an AER member, a person referred to in section 44AAC or a delegate of the AER; or (ii) a person who is authorised to perform or exercise a function or power of, or on behalf of, the AER; or (b) the performance of functions, or the exercise of powers, by the person by way of assisting a delegate of the AER; is taken to be authorised use and disclosure of the information. (7) Regulations made for the purposes of this section may specify uses of information and disclosures of information that are authorised uses and authorised disclosures for the purposes of this section. (8) Nothing in any of the above subsections limits: (a) anything else in any of those subsections; or (b) what may otherwise constitute, for the purposes of subsection (1), authorised use or disclosure of information.

[10,610AAG] orders

Federal Court may make certain

44AAG (1) The Federal Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person is in breach of: (a) a uniform energy law that is applied as a law of the Commonwealth; or (b) a State/Territory energy law. (2) If the order declares the person to be in breach of such a law, the order may include one or more of the following: (a) an order that the person pay a civil penalty determined in accordance with the law; (b) an order that the person cease, within a specified period, the act, activity or practice constituting the breach; (c) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach; [page 229] (d) an order that the person implement a specified program for compliance with the law; (e) an order of a kind prescribed by regulations made under this Act. (3) If a person has engaged, is engaging or is proposing to engage in any conduct in breach of: (a) a uniform energy law that is applied as a law of the Commonwealth; or (b) a State/Territory energy law; the Federal Court may, on application by the AER on behalf of the Commonwealth, grant an injunction: (c) restraining the person from engaging in the conduct; and (d) if, in the court’s opinion, it is desirable to do so — requiring the

person to do something. (4) The power of the Federal Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised: (a) if the court is satisfied that the person has engaged in conduct of that kind — whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or (b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind — whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

[10,610AAGA] Federal Court may order disconnection if an event specified in the National Electricity Rules occurs 44AAGA (1) If a relevant disconnection event occurs, the Federal Court may make an order, on application by the AER on behalf of the Commonwealth, directing that a Registered participant’s loads be disconnected. (2) In this section: National Electricity Law means: (a) the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; or (b) that Law as it applies as a law of another State; or (c) that Law as it applies as a law of a Territory; or (d) that Law as it applies as a law of the Commonwealth. National Electricity Rules means: (a) the National Electricity Rules, as in force from time to time, made under the National Electricity Law set out in the Schedule to the

National Electricity (South Australia) Act 1996 of South Australia; or (b) those Rules as they apply as a law of another State; or (c) those Rules as they apply as a law of a Territory; or (d) those Rules as they apply as a law of the Commonwealth. Registered participant has the same meaning as in the National Electricity Law. [page 230] relevant disconnection event means an event specified in the National Electricity Rules as being an event for which a Registered participant’s loads may be disconnected, where the event does not constitute a breach of the National Electricity Rules. [s 44AAGA insrt Act 60 of 2006 s 3 and Sch 2[14], opn 22 June 2006]

[10,610AAH]

Delegation by the AER

44AAH The AER may, by resolution, delegate: (a) all or any of the AER’s functions and powers under this Part or under regulations made under this Act, or under another law of the Commonwealth; or (b) all or any of the AER’s functions and powers under a State/Territory energy law; to an AER member or to an SES employee, or acting SES employee, assisting the AER as mentioned in section 44AAC. Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee. Note 2: See also sections 34AA to 34A of the Acts Interpretation Act 1901, which contain extra rules about delegations. [s 44AAH am Act 46 of 2011 s 3 and Sch 2[425], opn 27 Dec 2011]

[10,610AAI]

Fees

44AAI (1) The AER may charge a fee specified in the regulations for services provided by it in performing any of its functions, or exercising any of its powers, under this Part or under regulations made under this Act, or under another law of the Commonwealth or a State/Territory energy law. (2) The fee must not be such as to amount to taxation.

[10,610AAJ]

Annual report

44AAJ (1) The AER must, within 60 days after the end of each year ending on 30 June, give the Minister a report on its operations during that year, for presentation to the Parliament. Note See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports. (2) The Minister must give a copy of the report to the relevant Minister of each of the States, the Australian Capital Territory and the Northern Territory.

[10,610AAK] Regulations may deal with transitional matters 44AAK (1) The Governor-General may make regulations dealing with matters of a transitional nature relating to the transfer of functions and powers from a body to the AER. (2) Without limiting subsection (1), the regulations may deal with: (a) the transfer of any relevant investigations being conducted by the body at the time of the transfer of functions and powers to the AER; or [page 231] (b) the transfer of any decisions or determinations being made by the body at the time of the transfer of functions and powers to the AER; or (c) the substitution of the AER as a party to any relevant proceedings

that are pending in any court or tribunal at the time of the transfer of functions and powers to the AER; or (d) the transfer of any relevant information from the body to the AER. (3) In this section: matters of a transitional nature also includes matters of an application or saving nature.

[page 233] PART IIIAB — APPLICATION OF THE FINANCE LAW [Pt IIIAB insrt Act 62 of 2014 s 3 and Sch 6 item 35, opn 1 July 2014]

[10,615]

Application of the finance law

44AAL For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013): (a) the following combination of bodies is a listed entity: (i) the Commission; (ii) the AER; and (b) the listed entity is to be known as the Australian Competition and Consumer Commission; and (c) the Chairperson is the accountable authority of the listed entity; and (d) the following persons are officials of the listed entity: (i) the Chairperson; (ii) the other members of the Commission; (iii) the associate members of the Commission; (iv) the AER members; (v) persons engaged under section 27; and (e) the purposes of the listed entity include: (i) the functions conferred on the Commission by this Act; and (ii) the functions of the AER under Division 3 of Part IIIAA.

[page 235] PART IIIA — ACCESS TO SERVICES [Pt IIIA insrt Act 88 of 1995 s 59] INTRODUCTION TO PART IIIA [10,650.5] Overview This Part was inserted by the Competition Policy Reform Act 1995 and commenced on 6 November 1995. It is commonly referred to as the National Access Regime. The Regime enables third parties to obtain access to services provided by means of a facility, whether in the public or private ownership, provided that certain criteria are met. Access may be obtained in broadly three ways: • Access declaration: The Council may recommend to a minister that a service be declared if it is satisfied of the matters in s 44G. The declaration or non-declaration of a service by a minister is subject to review by the tribunal. Where there is a dispute about the terms and conditions of access, this will be arbitrated by the commission. • Effective access regime: Access may be sought under an effective access regime. An effective access regime is a regime that complies with cl 6 of the Competition Principles Agreement. These are often regimes implemented by state and territory governments. • Access undertakings: A person who expects to be the provider of a service may give a written undertaking to the commission under Div 6. The commission may accept the undertaking having regard to a number of matters including the legitimate interests of the provider and the public interest. The development and design of the National Access Regime In 1993 the Independent Committee of Inquiry into National Competition Policy (chaired by Professor Frederick Hilmer) recommended that access to essential facilities be dealt with under a national competition policy by a new legal regime that creates a right of access in prescribed circumstances and that the regime be general rather than industry-specific: see NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [20]– [21] per McHugh ACJ, Gummow, Callinan and Heydon JJ; Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; BC200510133 per Weinberg J; Sydney Airport Corporation Ltd v Australian Competition Tribunal [2006] FCAFC 146; BC200608356 at [3]–[8] per French, Finn and Allsop JJ; BHP Billiton Iron Ore Pty Ltd v National Competition Council [2006] FCA 1764; BC200610497 at [40] per Middleton J; (appeal) BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 247 ALR 104; [2007] FCAFC 157; BC200708515 at [155] per Greenwood J (Sundberg J agreeing). The recommendation was based on the proposition that effective competition requires competitors to have access to facilities which exhibit natural monopoly characteristics and hence cannot be duplicated economically: see Re Duke Eastern Gas Pipeline Pty Ltd (2001) 162 FLR 1; (2001) ATPR ¶41-821; [2001] ACompT 2 at [48]–[51] per Hely J, Dr M J Messenger and Ms M M Starrs. See also DEI Queensland Pipeline Pty Ltd v Australian Competition and Consumer Commission (2002) ATPR ¶41-876; [2002] ACompT 2; BC200202227; Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511; (2002) ATPR ¶41-886; [2002] WASCA 231; BC200204795 at [88]–[97] per Parker J (Malcolm CJ and Anderson J agreeing); Sydney Airport Corporation Ltd v Australian

Competition Tribunal [2006] FCAFC 146; BC200608356 at [36] per French, Finn and [page 236] Allsop JJ; BHP Billiton Iron Ore Pty Ltd v National Competition Council, above, at [139] per Greenwood J (Sundberg J agreeing). See The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 at [74], [98]–[102] per French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ. Part IIIA represents a generic access regime intended to give effect to the Hilmer Committee recommendation. The purpose of Pt IIIA is to open up “bottlenecks” to competition and thereby unlock the potential benefits which competition may bring in dependent markets including, in particular, the benefits associated with economic efficiency: Application by Services Sydney Pty Ltd (2005) 227 ALR 140; [2005] ACompT 7 at [115] per Gyles J, Mr B Keane and Dr J Walker; BHP Billiton Iron Ore Pty Ltd v National Competition Council [2006] FCA 1764; BC200610497 at [43] per Middleton J; See Alinta Asset Management Pty Ltd v Essential Services Commission [2008] VSCA 273; BC200811361 at [91]–[95] per Ashley and Dodds-Streeton JJA and Hansen AJA; Application by Chime Communications Pty Ltd (2008) 222 FLR 323; [2008] ACompT 4 at [2]; BC200811630 per Finkelstein J, R Davey and Professor D Round. See The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 at [74], [98]–[102] per French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ. See Wellington International Airport Ltd v Commerce Commission [2013] NZHC 3289; BC201366687. Natural monoplies and the essential facilities problem In Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 Finkelstein J, Mr Grant Latta and Professor David Round at [508]–[523] provided an extensive discussion of natural monopolies and the essential facilities problem: [508] The traditional formulation of a natural monopoly, best expressed by the late Alfred Kahn, is that a monopoly is “natural” when there “is an inherent tendency to decreasing unit costs [ie average cost] over the entire range of the market. This is only so when the economies achievable by a larger output are internal to the individual firm — if, that is to say, it is only if more output is concentrated in a single supplier that unit costs will decline.” (Alfred E Kahn, The Economics of Regulation (1988) 119). This is the definition of a natural monopoly resulting from economies of scale. [509] Put simply, on this view a natural monopoly exists when production technology involves relatively high fixed costs, which are usually sunk (ie irretrievable), and there are relatively low operating costs, as a result of which long-run average total cost (found by dividing total cost by total output) and marginal cost (found by taking the derivative of total cost at a specific level of output) decline as output expands. The reason why long-run average total cost declines is because the firm can spread its fixed costs across an ever-larger number of units as production increases. Hence the monopoly is “natural”. Higher costs will result if more than one producer supplies the market, as each producer will have to spread its fixed costs over smaller output volumes. Moreover, competition will be wasteful if duplicative facilities are constructed and the lowest possible average cost cannot be achieved. In other words, it is most efficient for one firm to supply all of the market’s demand. [510] The existence of a natural monopoly resulting from economies of scale depends upon a precise definition of the market, a proper identification of the nature of demand in that market, and an underlying assumption that the firm can continually expand its capacity to meet that

demand at a lower average cost than a new firm entering the market. As Posner put it, natural monopoly “does not refer to the actual number of sellers in a market, but to the relationship between demand and the technology of supply”: Richard Posner, “Natural Monopoly and its Regulation” 21(3) Stanford Law Review 548 (1969). [511] The definition of a natural monopoly resulting from economies of scale is applicable to firms that supply a single product. Where multi-product firms are involved, economies of scale are not a sufficient condition for the existence of a natural monopoly. Further, the existence of economies of scale is a sufficient, but not necessary, condition for a natural monopoly. A different test should be applied in the multi-product firm scenario or when a single-product firm does not exhibit economies of scale. That test involves a “technical condition” which requires that the entire output of the market can be supplied by a single firm at a lower total cost than by any [page 237] combination of two or more firms. This condition is expressed mathematically as “subadditivity of costs”. It stems from the work of Baumol, Panzar and Willig, who were especially critical of the application of the traditional formulation to situations of multiple output production. … [515] The focus of a natural monopoly is on the efficiency of a single firm supplying the market’s total demand. However, the efficiency of the firm is, as Posner notes, a function of production technology. In this sense, it is possible to think of certain technology or facilities as having natural monopoly characteristics. Strictly speaking, a facility cannot be a natural monopoly. The term describes an optimal industry structure. Nonetheless, it is not uncommon to see references to certain technology or facilities as having natural monopoly characteristics; the reference is to the facility that can most efficiently supply total market demand. [516] A firm operating as a natural monopoly is, in one sense, efficient. By definition, it is able to supply market demand at a lower cost than two or more firms could. But when there is no competition, there can, and usually will, be market failure. [517] Firms with natural monopoly characteristics often exhibit poor economic performance: ie there can be market failure. We accept that in some markets a firm with natural monopoly characteristics will not have much market power. Another supplier may emerge and, at least for a time, trade profitably. At the other end of the scale, a firm with natural monopoly characteristics can, and often does, set prices above marginal cost. [518] Another instance of market failure in the case of industries characterised by a natural monopoly is the likelihood of strategic behaviour by the monopolist to deter entry and to protect its monopoly position. This may entail building excess capacity and other spending of resources in socially wasteful ways. [519] Although, by definition, a natural monopoly involves a production condition that it is less costly to produce output via a single firm, a monopolist may not have the incentive to keep production costs down: ie it may not produce efficiently. There is also the possibility that a monopolist firm will not, as would occur in a competitive market, adopt innovations in production and product. That is, a monopolist is not so much concerned with quality, the adoption of innovations, and investment in research and development as would be a firm facing rivalry from other firms.

[520] This brings us to the “essential facility” problem. The problem arises when a firm is vertically integrated: ie where the firm occupies successive levels in the supply chain that leads from raw materials to the final consumer. Indeed, within boundaries which are constantly shifting due to technological change, many firms produce for their own account goods and services that could be acquired from other firms. The negotiating and administering of contracts by which a firm can acquire inputs involves costs. It may be more efficient (ie less costly) for a firm to produce some or all of its inputs. [521] Sometimes technological interdependence implies that vertical integration is more efficient than if two different firms were involved in the production of the relevant product. But it need not be interdependence that results in efficiency; it can arise simply from the limitations on, and the costs of, dealing with a second firm. [522] Although vertical integration brings about efficiencies, it has great potential for adverse effects on competition and therefore on the allocation of resources. There is no doubt that vertical integration can create or raise barriers to entry. Either forward or backward (downstream or upstream) integration by all incumbent firms will require potential competitors to enter two stages of the supply chain simultaneously if the incumbents will not supply new entrants with product at one stage of the process. This increases the capital necessary for entry and the managerial skills required to operate efficiently. The capital input is particularly significant if it would be sunk (irretrievable) if entry fails. Forward (downstream) integration can facilitate the raising of price above marginal cost. Of course, this would not happen if the downstream industry were competitive. [523] An extreme case of market dominance exists where the vertically integrated firm is a network industry or a natural monopoly (eg controls a facility which has natural monopoly characteristics). Assume that access to the facility is necessary to compete in a dependent (upstream or downstream) market. It is these facilities which are referred to as essential facilities. Where a vertically integrated monopolist controls the essential facility, vertical integration will not be social welfare enhancing. This is because the rational profitmaximising firm will take full advantage of all output-restricting and profit-enhancing opportunities inforward or backward markets. At the extreme, management may withhold supply of the good or service produced by the essential facility. [page 238] It is the prevention of a vertically integrated organisation using its control over access to an essential facility to limit effective competition in dependent markets that is a key activity the access regime seeks to deal with. It was envisaged by the Hilmer Report that the access regime would be applied to require vertically integrated organisations to provide access to services provided over some of their infrastructure: BHP Billiton Iron Ore Pty Ltd v National Competition Council [2006] FCA 1764; BC200610497 at [45] per Middleton J. Although the Hilmer Report had in mind that major utility industries (such as gas, electricity, rail, telecommunications, airports) would be subject to the regimes, Pt IIIA clearly covers privately-owned infrastructure: BHP Billiton Iron Ore Pty Ltd v National Competition Council [2006] FCA 1764; BC200610497 at [49] per Middleton J. However, not all of the features of the Hilmer Committee report are implemented by Pt IIIA. The Hilmer Committee not only recommended access to a facility, but also other matters such as pricing principles (now included under s 44ZZCA following the passage of the Trade Practices Amendment Act (No 1) 2006) and other terms and conditions to protect the legitimate interests of the owner of the

facility: Re Review of Freight Handling Services at Sydney International Airport (2000) ATPR ¶41754 at 40,755–6; [2000] ACompT 1; Re Duke Eastern Gas Pipeline Pty Ltd (2001) 162 FLR 1; (2001) ATPR ¶41-821; [2001] ACompT 2 at [48] per Hely J, Dr M J Messenger and Ms M M Starrs. See also Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd, above, at [88]–[97] per Parker J (Malcolm CJ and Anderson J agreeing). Reform Productivity Commission Review 2013 On 25 October 2012, the then Assistant Treasurer, Hon David Bradbury MP, instructed the Productivity Commission to undertake a review of Part IIIA. The Productivity Commission was required to: • examine the rationale, role and objectives of the Regime, and Australia’s overall framework of access regulation; • assess the performance of the Regime in meeting its rationale and objectives; • report on whether the implementation of the Regime adequately ensures its economic efficiency; • provide advice on ways to improve processes and decisions for facilitating third party access to essential infrastructure; • review the effectiveness of the reforms outlined in the CIRA, and the actions and reforms undertaken by governments in giving effect to the CIRA; and • comment on other relevant policy measures, including any non-legislative approaches, which would help ensure effective and responsive delivery of infrastructure services over both the short and long term. The Productivity Commission released its draft report in May 2013 and its final report in October 2013. In its final report, the Productivity Commission made several recommendations for amendment of the Part. The Government responded to the report in November 2015 (See below). Harper Committee Review 2015 Following the September 2013 federal election, the new coalition government appointed Professor Ian Harper to undertake a review of competition policy. Its terms of reference also required the review to inquire whether the national access regime (taking into consideration the Productivity Commission report) is adequate. [page 239] Professor Harper’s committee delivered its final report in March 2015. The final report makes several recommendations for amendment of the Part. The Government responded to the report in November 2015 (See below). Government’s response to the Productivity Commission report and Harper Review report The Government responded to the Harper Report in November 2015 and to the Productivity Commission report in November 2015. The table reproduced at [10,001] consolidates the recommendations of the Productivity Commission, the Harper Commitee and the Government’s response to each. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee and the Productivity Commission (in relation to Part IIIA). The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-

policy-division/ed_competition_law_amendments. See also [10,690.5]. [10,650.10] Relationship to s 46 (misuse of market power) Part IIIA is to be used in circumstances where access is sought by a third party. However, provided its elements can be established, s 46 may also be used to create access regimes: NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [85] per McHugh ACJ, Gummow, Callinan and Heydon JJ. However, satisfying the requirements of s 46 will be difficult: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 247 ALR 104; [2007] FCAFC 157; BC200708515 at [153] per Greenwood J (Sundberg J agreeing). There is no contradiction in legislation which contains Pt IIIA and also contains s 2B and 46. In NT Power Generation Pty Ltd v Power and Water Authority, above, at [86] McHugh ACJ, Gummow, Callinan and Heydon JJ said that it would be possible to imagine circumstances where a entity would eventually have to provide access either under an effective access regime or under a regime developed under Pt IIIA. Also in cases where there is a contravention of s 46, it is possible that curial relief, sought speedily, might be obtained before completion of the elaborate arbitral, review and appellate procedures provided by Pt IIIA.

____________________ DIVISION 1 — PRELIMINARY

[10,650AA]

Objects of Part

44AA The objects of this Part are to: (a) promote the economically efficient operation of, use of and investment in the infrastructure by which services are provided, thereby promoting effective competition in upstream and downstream markets; and (b) provide a framework and guiding principles to encourage a consistent approach to access regulation in each industry. [s 44AA insrt Act 92 of 2006 s 3 and Sch 1[4], opn 1 Oct 2006]

SECTION 44AA GENERALLY [10,650AA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. See Pilbara Infrastructure Pty Ltd v Australian Competition [page 240]

Tribunal (2011) 193 FCR 57; 277 ALR 282; [2011] FCAFC 58; BC201102737 per Keane CJ, Mansfield and Middleton JJ. The decision-makers under Pt IIIA are required to have regard to these objects in making their decisions. Paragraph (a) refers to the importance of promoting efficient investment in new infrastructure. As Pt IIIA is capable of applying to services in any industry, paragraph (b) recognises the importance of a consistent approach to access regulation in each industry. This includes consistency in relation to access to services established under industry specific regimes; for example, national electricity and national gas as well as state and territory specific regimes. In Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [797]–[803] Finkelstein J, Mr Grant Latta and Professor David Round explained these objects as follows: [797] If there is efficient investment in infrastructure and competition in dependent markets, welfare is maximised. At a simple level, both efficient use of infrastructure and competition maximise welfare because they result in lower prices, better products and greater choice. More technically, competition in particular ensures efficient market outcomes. When competition is not inhibited by exclusionary practices or anti-competitive agreements, firms’ rivalry for customers by offering lower prices, superior quality or new functions requires them to adopt more efficient means of doing business. There are different types of efficiencies, some more important than others. [798] A market achieves allocative efficiency when resources are allocated, through price, to their highest-value use among all competing uses. Then price will not rise far above the marginal cost of production. Monopoly, on the other hand, cannot achieve allocative efficiency as the monopolist’s price will exceed marginal cost. [799] Productive efficiency results when all goods are produced at the minimum possible cost under existing technology. This means that as little of society’s wealth as is necessary is expended in production. It also means that the producer is unable to sell above marginal cost because consumers will move to another producer. Monopolists, on the other hand, who are free from the constraints of competition, may be higher cost producers. [800] Dynamic efficiency arises because rivalry between firms encourages innovation to develop new and improved products. Schumpeter, with whom the dynamic efficiency principle is most closely associated, acknowledged the advantage of large firms to finance substantial research and development, but held that new firms would also be a constant source of supply of new ideas and innovations. Some economists contend that innovative efficiency provides the greatest enhancement of social wealth, suggesting it is the single most important factor in the growth of real output in industrial countries. [801] It should not be assumed that efficient markets, which produce an increase in aggregate social wealth, always produce benefits for consumers if those benefits are measured by price and quality. For example, competition laws may eliminate discriminatory pricing. But discriminatory pricing may lead to increased output, thereby increasing allocative efficiency, though such pricing may reduce consumer benefits by transferring wealth from the consumer to the producer. Competition laws also seek to eliminate most forms of collaboration between competitors. Collaboration will,

however, lower production costs and achieve production efficiencies but will also enable those firms to raise prices and to take wealth from consumers. [802] Another category of efficiency is what might usefully be called transactional efficiency. Reference has already been made to the efficiencies of vertical integration. More broadly, economists such as Williamson have explained that firms design their business practices, contracts and organisational forms to minimise transaction costs (including information costs) [page 241] and reduce their exposure to opportunistic behaviour or “hold ups”. Firms will design contracts, create joint ventures, vertically integrate their operations, or propose mergers to minimise transaction costs. Allowing these efficiencies enhances allocative, productive and dynamic efficiencies. [803] The objectives identified in s 44AA contemplate the traditional categories of economic efficiencies, ie efficiencies in production, allocation of resources and innovation. The result to be achieved is the enhancement of aggregate local wealth.

____________________

[10,650B]

Definitions

44B In this Part, unless the contrary intention appears: access code means a code referred to in section 44ZZAA. [def insrt Act 28 of 1997 s 3 and Sch 1]

access code application means: (a) an access code given to the Commission; or (b) a request made to the Commission for the withdrawal or variation of an access code; or (c) an application under subsection 44ZZBB(4) for an extension of the period for which an access code is in operation. [def insrt Act 92 of 2006 s 3 and Sch 1[5], opn 1 Oct 2006]

access code decision means: (a) a decision under section 44ZZAA to accept or reject an access code; or (b) a decision under section 44ZZAA to consent or refuse to consent to the withdrawal or variation of an access code; or (c) a decision under section 44ZZBB to extend or refuse to extend the period for which an access code is in operation. [def insrt Act 92 of 2006 s 3 and Sch 1[6], opn 1 Oct 2006]

access undertaking means an undertaking under section 44ZZA. access undertaking application means: (a) an access undertaking given to the Commission; or (b) a request made to the Commission for the withdrawal or variation of an access undertaking; or (ba) a request made to the Commission under subsection 44ZZAAB(7) to consent to the revocation or variation of a fixed principle included as a term of an access undertaking; or (c) an application under subsection 44ZZBB(1) for an extension of the period for which an access undertaking is in operation. [def insrt Act 92 of 2006 s 3 and Sch 1[7], opn 1 Oct 2006; am Act 102 of 2010 s 3 and Sch 3[1], opn 14 July 2010]

access undertaking decision means: (a) a decision under section 44ZZA to accept or reject an access undertaking; or (b) a decision under section 44ZZA to consent or refuse to consent to the withdrawal or variation of an access undertaking; or (ba) a decision under subsection 44ZZAAB(7) to consent or refuse to consent to the revocation or variation of a fixed principle included as a term of an access undertaking; or [page 242] (c) a decision under section 44ZZBB to extend or refuse to extend the period for which an access undertaking is in operation. [def insrt Act 92 of 2006 s 3 and Sch 1[8], opn 1 Oct 2006; am Act 102 of 2010 s 3 and Sch 3[2], opn 14 July 2010]

Commonwealth Minister means the Minister. constitutional trade or commerce means any of the following: (a) trade or commerce among the States; (b) trade or commerce between Australia and places outside Australia; (c) trade or commerce between a State and a Territory, or between 2 Territories.

declaration means a declaration made by the designated Minister under Division 2. declaration recommendation means a recommendation made by the Council under section 44F. declared service means a service for which a declaration is in operation. designated Minister has the meaning given by section 44D. determination means a determination made by the Commission under Division 3. director has the same meaning as in the Corporations Act 2001. [def am Act 55 of 2001 s 3 and Sch 3, opn 15 July 2001]

entity means a person, partnership or joint venture. final determination means a determination other than an interim determination. [def insrt Act 92 of 2006 s 3 and Sch 1[9], opn 1 Oct 2006]

fixed principle has the meaning given by section 44ZZAAB. [def insrt Act 102 of 2010 s 3 and Sch 3[3], opn 14 July 2010]

ineligibility recommendation means a recommendation made by the Council under section 44LB. [def insrt Act 102 of 2010 s 3 and Sch 2[1], opn 14 July 2010]

interim determination means a determination that is expressed to be an interim determination. [def insrt Act 92 of 2006 s 3 and Sch 1[10], opn 1 Oct 2006]

modifications includes additions, omissions and substitutions. National Gas Law means: (a) the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time, as that Law applies as a law of South Australia; or (b) if an Act of another State or of the Australian Capital Territory or the Northern Territory applies the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia, as in force from time to time, as a law of that other State or of that Territory — the National Gas Law as so

applied; or (c) the Western Australian Gas Legislation; or (d) the National Gas (Commonwealth) Law (within the meaning of the Australian Energy Market Act 2004); or [page 243] (e) the Offshore Western Australian Pipelines (Commonwealth) Law (within the meaning of the Australian Energy Market Act 2004). [def insrt Act 45 of 2007 s 3 and Sch 1[72], opn 1 July 2008; am Act 60 of 2008 s 3 and Sch 4[3]–[4], opn 1 July 2008; Act 17 of 2009 s 3 and Sch 1[14], opn 27 Mar 2009]

officer has the same meaning as in the Corporations Act 2001. [def am Act 55 of 2001 s 3 and Sch 3, opn 15 July 2001]

party means: (a) in relation to an arbitration of an access dispute — a party to the arbitration, as mentioned in section 44U; (b) in relation to a determination — a party to the arbitration in which the Commission made the determination. proposed facility means a facility that is proposed to be constructed (but the construction of which has not started) that will be: (a) structurally separate from any existing facility; or (b) a major extension of an existing facility. [def insrt Act 102 of 2010 s 3 and Sch 2[2], opn 14 July 2010]

provider, in relation to a service, means the entity that is the owner or operator of the facility that is used (or is to be used) to provide the service. responsible Minister means: (a) the Premier, in the case of a State; (b) the Chief Minister, in the case of a Territory. revocation recommendation means a recommendation made by the Council under section 44J. service means a service provided by means of a facility and includes:

the use of an infrastructure facility such as a road or railway line; (b) handling or transporting things such as goods or people; (c) a communications service or similar service; but does not include: (d) the supply of goods; or (e) the use of intellectual property; or (f) the use of a production process; except to the extent that it is an integral but subsidiary part of the service. State or Territory access regime law means: (a) a law of a State or Territory that establishes or regulates an access regime; or (b) a law of a State or Territory that regulates an industry that is subject to an access regime; or (c) a State/Territory energy law. (a)

[def insrt Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004; am Act 45 of 2007 s 3 and Sch 1[73], opn 1 July 2008]

State or Territory body means: (a) a State or Territory; (b) an authority of a State or Territory. third party, in relation to a service, means a person who wants access to the service or wants a change to some aspect of the person’s existing access to the service. [page 244] SECTION 44B GENERALLY [10,650B.5] Service Access may only be sought to a service that is provided by means of a facility. The definition of “service” adopts a “means and includes” structure. As a general proposition that structure indicates an exhaustive explanation of the content of the term which is the subject of the definition and conveys the idea

both of enlargement and exclusion. In doing so the definition also may make it plain that otherwise doubtful cases do fall within its scope: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145; 249 ALR 418; [2008] HCA 45; BC200808315 at [32] per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. The definition of “service” in s 44B means that it is something separate and distinct from a facility, though it may consist of the mere use of a facility: Rail Access Corporation v New South Wales Minerals Council Ltd (1998) 87 FCR 517; 158 ALR 323 at 330; (1998) ATPR ¶41-663; Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203; (1999) ATPR ¶41705; Re Review of Freight Handling Services at Sydney International Airport (2000) ATPR ¶41-754 at 40,756; [2000] ACompT 1; Application by Services Sydney Pty Ltd (2005) 227 ALR 140; [2005] ACompT 7 at [2] per Gyles J, Mr B Keane and Dr J Walker. Conceivably the one facility may provide a number of different kinds of service, as well as a number of different instances or occasions of the same kind of service within the definition in s 44B: Rail Access Corporation v New South Wales Minerals Council Ltd, above; Hamersley Iron Pty Ltd v National Competition Council, above; Re Review of Freight Handling Services at Sydney International Airport, above; Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) ATPR ¶41-785 at 41,348; [2000] FCA 1160; BC200004794. The definition excludes the mere supply of goods, the use of intellectual property or the use of a production process, except to the extent that it is an integral but subsidiary part of the service. The exclusions are intended to ensure that the access regime is not too broad in its application: BHP Billiton Iron Ore Pty Ltd v National Competition Council [2006] FCA 1764; BC200610497 at [50] per Middleton J. Application of criterion For the application of the criterion see [10,650G.10]. [10,650B.6] Non-integral or subsidiary part of the service The definition of “service” in s 44B excludes the supply of goods, the use of intellectual property or the use of a production process, except to the extent that it is an integral but subsidiary part of the service. In determining whether an exclusion is applicable, one needs to have

regard to the actual operation of the activities in question, considered as a whole — the characterisation is one of fact and degree: Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203; (1999) ATPR ¶41705. [10,650B.7] Use of a production process The definition of “service” in s 44B does not include the use of a production process, except to the extent that it is an integral but subsidiary part of the service. It has been suggested that the purpose of the exclusion was to permit appropriate utilisation of certain infrastructure by third parties while at the same time protecting the viability of investments made by investors: Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203; (1999) ATPR ¶41-705; BHP Billiton Iron Ore Pty Ltd v National Competition Council [2006] FCA 1764; BC200610497 at [51] per Middleton J. It is unlikely that the expression “production process” has a technical or specialised meaning in economics: see BHP Billiton Iron Ore Pty Ltd v National Competition Council, (2006) above, at [169] per Middleton J; (appeal) BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 247 ALR 104; [2007] FCAFC 157; BC200708515 at [161] per Greenwood J (Sundberg J agreeing). [page 245] The exception from this exclusion is directed to the “integral but subsidiary” nature of the process to the service, not to the integral but subsidiary nature of an operation to the process: Hamersley Iron Pty Ltd v National Competition Council, above. In considering the word “use” of a production process in Hamersley Iron Pty Ltd v National Competition Council, above, at [51] Kenny J stated: [51] To use a production process, then, is, in some way to employ, apply or exploit a process directed to production. Most commonly, a user makes use of a production process to create the product or products which the process of production is designed to create. That is not, however, the only sense in which a user can be said to engage in “the use of a production process”. Someone may use a production process by incorporating it into another process or operation. To use a production process may not only involve incorporating it into a larger operation; it is also possible to “use a production process” by using (employing, applying, exploiting) part of that process. That is, the use of a production process extends, in my view, not merely to the use of the whole process but also to the use of any operation (or step or procedure) that is integral (and perhaps essential or non-

subsidiary) to that process as a whole.

The expression “production process” in the definition of “service” means a series of operations by which a marketable commodity is created or manufactured: Hamersley Iron Pty Ltd v National Competition Council, above; BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145; 249 ALR 418; [2008] HCA 45; BC200808315 at [37] per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. In Hamersley Iron Pty Ltd v National Competition Council, above, Kenny J said that the use of the railway owned by Hamersley to transport iron ore in the Pilbara region of Western Australia is integral and essential to the integrated series of operations that constitute its production process. In BHP Billiton Iron Ore Pty Ltd v National Competition Council, (2006) above, Middleton J considered the decision in Hamersley Iron Pty Ltd v National Competition Council, above, and made the following observations (at [118]–[124]): [118] I do not disagree with her Honour’s use of the definitions of “production” and “process” as a starting point to the sympathetic understanding of the operation of the relevant provisions. However, as a composite phrase, in my view the emphasis is on a process of production, being a production process which in itself makes or creates one thing into another, not being so much a series of operations covering relevantly in Hamersley, mine to port operations. If one focuses, as her Honour does, on the “series of operations” concept, then one readily moves to the conclusion in Hamersley that the “production process” includes the entire operation from mine to port. [119] I do not think this is warranted as a matter of the most ordinary and natural meaning of the term, particularly when dealing with the composite term “production process”. By looking at the overall series of operations one diverts attention away from the very thing to which access is sought in the Access Application (the railway line and associated infrastructure), and the function it has to perform. The railway line in itself is not designed to make or create anything. Further, with or without the “batch system”, iron ore could be carried over the rail line, and whether or not the “batch system” was employed does not affect the character of the railway line itself. The “batch system” was merely a management tool in the efficient carriage of iron ore over the railway line, albeit from Hamersley’s point of view, an important one. [120] Thirdly, the concept of marketable commodity (of which I will discuss later) is not found in the dictionary references made in Hamersley. This concept arises out of the tax cases her Honour refers to such as Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1981) 12 ATR 429 at 440 per Lush J (with whom Kaye J agreed); at 444 per Brooking J. [121] In my view, I see no warrant to introduce such a concept into the definition of “service” or the phrase “use of production process” in the context of Pt IIIA. Whilst the learned trial [page 246] Judge in Hamersley was acutely aware of the limited assistance to be afforded by those cases she relied upon, in my view the purposes of the statutory regimes are so dissimilar that there is no

warrant to introduce the concept of “marketable commodity” into the meaning to be given to a “production process”. In addition, by introducing the concept of “marketable commodity”, as these proceedings attest, introduces an even greater uncertainty into the operation of Pt IIIA. It also detracts, in my view, from the main enquiry, which is to define what is a production process. In looking at the most natural and ordinary meaning of the words found in the exclusion in para (f), one is not directed to an enquiry as to what is a “marketable commodity”, which has taken prominence in these proceedings. [122] Fourthly, her Honour recognised that the concept of “use of” a production process most commonly imparts the notion of a user making use of a production process to create the product or products which the process of production is designed to create. In my view, this is the very concept that ought be incorporated into the phrase “use of a production process”. It fits well within the most natural and ordinary meaning to be given to the term “a production process”, and by employing that concept one does not necessarily exclude the whole rail line from the possibility of consideration for declaration under Pt IIIA. In view of the specific inclusion of a railway line as a service, the interpretation of “use of a product in process” given in Hamersley is not appropriate. It has the potential to exclude infrastructure that would normally be expected to be considered under Pt IIIA for access, and does not assist in promoting the purposes of Pt IIIA. [123] Fifthly, in my view the learned trial Judge focused not upon the phrase “use of a production process” but the concept of “involving the use of a production process”. The critical question was whether the “service” in respect of which Robe sought access was or constituted the use of a production process. The exclusion does not extend to something which merely “involves” the use of a production process. The learned trial Judge’s approach in any given circumstance may not lead to any different conclusion, but when considering the “highly integrated operation” from mine to port as in Hamersley, approaching the matter as “involving” the use of a production process, did lead, in my view to an erroneous conclusion. It diverted attention away from the service the subject of the Access Application and from a proper characterisation of the railway line itself. [124] Finally, I agree with the principle in the Hamersley decision that in determining whether the “production process” exclusion is applicable, the court must consider “the actual operation of the activities in question, considered as a whole. The question of characterisation is, in this sense, one of fact and degree” (at 213, [48]). As I have indicated, however, the use of the railway line as part of its operations, even if essential to Hamersley’s operations, does not mean that the railway line has the character of being “a production process”. The use of the railway line itself was to convey iron ore by rail from mine to port by whatever management tool was appropriate to employ, and did not of itself constitute the use of a production process.

In light of the above Middleton J concluded that the decision in Hamersley Iron Pty Ltd v National Competition Council is clearly wrong and he declined to follow it: BHP Billiton Iron Ore Pty Ltd v National Competition Council, (2006) above, at [125] per Middleton J. The issue of whether the infrastructure facility sought to be accessed is the use of a production process can be answered by reference to whether the process is actually creating or making a product or transforming one thing into another: BHP Billiton Iron Ore Pty Ltd v National Competition Council, (2006) above, at [153] per Middleton J. At [153] Middleton J said that the infrastructure facility (the railway line and associated infrastructure) does not transform that product into something different and is not a production

process. On appeal, in BHP Billiton Iron Ore Pty Ltd v National Competition Council, (2007) above, at [163] Greenwood J (with Sundberg J agreeing) said that the end point of the process of [page 247] production or transformation might result in a marketable commodity that requires analysis in any given case. They said, at [165], that the use of a production process requires an analysis of the sequence of operations integrated or otherwise to determine the content of the production process in a particular case. However the “use of a production process” does not include a step in a production process: BHP Billiton Iron Ore Pty Ltd v National Competition Council, (2007) above, at [172] per Greenwood J (Sundberg J agreeing). Their Honours said at [178]: [178] However, the reason that result might follow is not because of a general rule of construction of para (f) that use of a part is use of the whole but rather that use of a step forming part of a highly integrated and interdependent set of steps in a particular production process may, upon proper analysis of the facts, only be consistent with the use of a production process predominantly because use of that step is likely to be so invasive and disruptive to the operator’s use of the integrated production process (or other parts of the production process) that the third party in substance and effect is, through that use, engaged in the use of the production process. To extrapolate from that class of case to a general proposition that use of a production process involves the use of any part (even an essential part) inverts the question asked by para (f). That question is whether use of the service is the use of a production process. Not every use of a part will satisfy the statutory test of whether the third party use is use of a production process. The question always is, on a proper forensic analysis of the very particular facts of contended use by the third party, does that use constitute in substance and effect the use of the production process? The question will always be determined on a careful analysis of the facts of each particular case and hypothetical analogues of the case in question will never reveal the answer to the question posed in the actual controversy. Selecting hypothetical analogues in an attempt to try and find a ubiquitous answer for all cases is dangerous and confusing. The point of principle is that the question asked by para (f) is always the same question and is to be answered on the facts of each case rather than by reference to a general rule of construction that use of a production process necessarily includes use of a part of a production process. The starting point required by the language of para (f) is that use of a production process is the use of the sequence of operations comprising the production process as found.

On appeal the High Court accepted that the expression “a production process” has the ordinary meaning given to it in Hammersley Iron of “the creation or manufacture by a series of operations of some marketable

commodity”: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145; 249 ALR 418; [2008] HCA 45; BC200808315 at [37] per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. The fact that the access seeker seeks to use the facility that the access provider also uses for the purposes its production process does not deny the operation of s 44B: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145; 249 ALR 418; [2008] HCA 45; BC200808315 at [41] per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. As their Honours said at [42]: [42] Only this construction of para (f) is consistent with a reading of the definition of “service” in s 44B of the TPA in a way that would advance the attainment of the large national and economic objectives of Pt IIIA, as revealed in the legislative text enacted by the Parliament, the report that preceded its enactment, and the Minister’s second reading speech. Whilst it cannot be said that the appellants’ construction is one that is untenable, the construction which is preferred by the respondents and which has been accepted is more appropriate to advancing the overall objectives of Pt IIIA than that urged for the appellants. It also is more consistent with the approach to construction of such legislation adopted by this Court many times over the past ten years.

[page 248] [10,650B.8] Government coal carrying service Section 78 of the Competition Policy Reform Act 1995 provides that a government coal carrying service is not a “service” for the purpose of Pt IIIA for the period of 5 years from the commencement of Pt IIIA on 6 November 1995. A “government coal carrying service” means a service of carrying coal by rail, where the provider of the service is a state or a territory or an authority of a state or a territory. The policy rationale is to protect government coalcarrying services from competition for a 5-year transition period. The provision was considered in Rail Access Corp v New South Wales Minerals Council Ltd (1998) 87 FCR 517; 158 ALR 323; (1998) ATPR ¶41663. The Rail Access Corporation was established by the restructuring arrangements in New South Wales and has vested in it railway lines and associated infrastructure. Freight rail arrangements in the state are handled by the newly created Freight Rail Corporation. Rail access in New South Wales is regulated, among other things, by the New South Wales Rail Access Regime gazetted by the minister. The New South Wales Minerals Council applied to the tribunal under s 44K(2) for a review of a decision of the New

South Wales Premier under s 44H(9) not to declare a railway service under Pt IIIA contrary to the recommendation of the Council. Rail Access Corporation argued that it was a government coal-carrying service and therefore the Tribunal had no jurisdiction to hear the matter. The Full Court of the Federal Court said that the word “service” is to be understood in light of the definition in s 44B. Therefore the provider of the rail network (Rail Access Corporation) who does not also provide the means of carrying or transporting the coal does not provide the service of carrying coal by rail. It is the Freight Rail Corporation that is protected by s 78. The court also said that the fact that the restructuring was effected by the Competition Principles Agreement did not entitle them to reject this interpretation of s 78. [10,650B.10] Facility This expression is not defined. However, examples of facilities are indirectly provided within the definition of “service”: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 247 ALR 104; [2007] FCAFC 157; BC200708515 at [139] per Greenwood J (Sundberg J agreeing). These examples suggest that they are intended to apply to significant infrastructure facilities. It has been said that a facility is a physical asset (or set of assets) essential for service provision and which also exhibits the features of a natural monopoly: Re Review of Freight Handling Services at Sydney International Airport (2000) ATPR ¶41-754 at 40,771; [2000] ACompT 1. A key issue is the minimum bundle of assets required to provide the relevant services subject to declaration: Re Review of Freight Handling Services at Sydney International Airport, above, ATPR at 40,791. Application of criterion For the application of the criterion see [10,650G.10]. [10,650B.15] Provider The definition of “service” contemplates that a service may be provided by means other than the mere use of a facility. However the definition of “provider” means the entity that is the owner or operator of the facility that is used to provide the service. The owner or operator may not necessarily be the person who in fact provides the relevant service: Rail Access Corp v New South Wales Minerals Council Ltd (1998) 87 FCR 517; 158 ALR 323; (1998) ATPR ¶41-663.

____________________

[10,650C] How this Part applies to partnerships and joint ventures 44C (1) This section applies if the provider of a service is a partnership or joint venture that consists of 2 or more corporations. Those corporations are referred to in this section as the participants. [page 249] (2) If this Part requires or permits something to be done by the provider, the thing may be done by one or more of the participants on behalf of the provider. (3) If a provision of this Part refers to the provider bearing any costs, the provision applies as if the provision referred to any of the participants bearing any costs. (4) If a provision of this Part refers to the provider doing something, the provision applies as if the provision referred to one or more of the participants doing that thing on behalf of the provider. (5) If: (a) a provision of this Part requires the provider to do something, or prohibits the provider from doing something; and (b) a contravention of the provision is an offence; the provision applies as if a reference to the provider were a reference to any person responsible for the day-to-day management and control of the provider. (6) If: (a) a provision of this Part requires a provider to do something, or prohibits a provider doing something; and (b) a contravention of the provision is not an offence; the provision applies as if the reference to provider were a reference to each participant and to any other person responsible for the day-to-day management and control of the provider.

[10,650D]

Meaning of designated Minister

44D (1) The Commonwealth Minister is the designated Minister unless subsection (2), (3), (4) or (5) applies. [subs (1) am Act 102 of 2010 s 3 and Sch 2[3], opn 14 July 2010]

(2) In relation to declaring a service in a case where: (a) the provider is a State or Territory body; and (b) the State or Territory concerned is a party to the Competition Principles Agreement; the responsible Minister of the State or Territory is the designated Minister. (3) In relation to revoking a declaration that was made by the responsible Minister of a State or Territory, the responsible Minister of that State or Territory is the designated Minister. (4) In relation to deciding whether a service is ineligible to be a declared service in a case where: (a) a person who is, or expects to be, the provider of the service is a State or Territory body; and (b) the State or Territory concerned is a party to the Competition Principles Agreement; the responsible Minister of the State or Territory is the designated Minister. [subs (4) insrt Act 102 of 2010 s 3 and Sch 2[4], opn 14 July 2010]

(5) In relation to revoking a decision: (a) that a service is ineligible to be a declared service; and [page 250] (b) that was made by the responsible Minister of a State or Territory; the responsible Minister of that State or Territory is the designated Minister. [subs (5) insrt Act 102 of 2010 s 3 and Sch 2[4], opn 14 July 2010]

[10,650DA] The principles in the Competition Principles Agreement have status as guidelines

44DA (1) For the avoidance of doubt: (a) [Repealed] (b) [Repealed] (c) the requirement, under subsection 44M(4), that the Council apply the relevant principles set out in the Competition Principles Agreement in deciding whether to recommend to the Commonwealth Minister that he or she should decide that an access regime is, or is not, an effective access regime; and (d) the requirement, under subsection 44N(2), that the Commonwealth Minister, in making a decision on a recommendation received from the Council, apply the relevant principles set out in the Agreement; are obligations that the Council and the relevant Ministers must treat each individual relevant principle as having the status of a guideline rather than a binding rule. [subs (1) am Act 102 of 2010 s 3 and Sch 5[2], [3], opn 14 July 2010]

(2) An effective access regime may contain additional matters that are not inconsistent with Competition Principles Agreement principles. [s 44DA insrt Act 101 of 1998 Sch 1]

SECTION 44DA GENERALLY [10,650DA.5] Access principles as guidelines Section 44DA(1) was inserted by the Gas Pipelines Access (Commonwealth) Act 1998. It provides that in determining whether an access regime is an “effective access regime” (one that complies with the principles in the new cl 6, Competition Principles Agreement) each principle is to be treated as having the status of a guideline rather than a binding rule. This is to overcome the wording of ss 44G(3), 44H(5), 44M(4) and 44N(2) which would seem to suggest that matters in cl 6 are in the nature of binding principles which do not permit the exercise of any discretion. The intent of s 44DA(1) is to provide some flexibility in determining whether an access regime is an effective access regime. This is particularly relevant to the Council, which was constrained by the binding nature of the principles in the Competition Principles Agreement. This may well have prevented the Council from accommodating state and territory access regimes which merely fell short of complete compliance with the principles but which

were in other respects acceptable. The access principles in cl 6 of the Corporate Principles Agreement are embodied in other access regimes including the National Third Party Access Code for Natural Gas Pipeline Systems: see Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511; (2002) ATPR ¶41-886; [2002] WASCA 231; BC200204795 at [98] per Parker J (Malcolm CJ and Anderson J agreeing). [10,650DA.10] Additional access principles Section 44DA(2) was inserted by the Gas Pipelines Access (Commonwealth) Act 1998. Section 44DA(2) overcomes the wording of ss 44G(3), 44H(5), 44M(4) and 44N(2) which provide that in determining whether an access regime is an “effective access regime” (one that complies with the principles in the Competition Principles Agreement, specifically cl 6) no other matters may be considered. [page 251] Section 44DA(2) permits an access regime to contain additional matters as long as they are not inconsistent with the Competition Principles Agreement. For instance, an access regime may contain provisions relating to structural reform or safety without their inclusion necessarily being fatal to the regime being considered an effective access regime. ____________________

[10,650E]

This Part binds the Crown

44E (1) This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. (2) Nothing in this Part makes the Crown liable to be prosecuted for an offence. (3) The protection in subsection (2) does not apply to an authority of the Commonwealth or an authority of a State or Territory. DIVISION 2 — DECLARED SERVICES

Subdivision A — Recommendation by the Council

[10,650F]

Person may request recommendation

44F (1) The designated Minister, or any other person, may make a written application to the Council asking the Council to recommend that a particular service be declared. [subs (1) am Act 92 of 2006 s 3 and Sch 1[11], opn 1 Oct 2006]

(2) After receiving the application, the Council: (a) must tell the provider of the service that the Council has received the application, unless the provider is the applicant; and (b) must, after having regard to the objects of this Part, recommend to the designated Minister: (i) that the service be declared, with the expiry date specified in the recommendation; or (ii) that the service not be declared. Note 1: There are time limits that apply to the Council’s recommendation: see section 44GA. Note 2: The Council may request information and invite public submissions on the application: see sections 44FA and 44GB. Note 3: The Council must publish its recommendation: see section 44GC. [subs (2) am Act 92 of 2006 s 3 and Sch 1[12], [13], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 1[1]–[3], opn 14 July 2010]

(3) If the applicant is a person other than the designated Minister, the Council may recommend that the service not be declared if the Council thinks that the application was not made in good faith. This subsection does not limit the grounds on which the Council may decide to recommend that the service not be declared. (4) In deciding what recommendation to make, the Council must consider whether it would be economical for anyone to develop another facility that could provide part of the service. This subsection does not limit the grounds on which the Council may decide to recommend that the service be declared or not be declared. (5) The applicant may withdraw the application at any time before the Council makes a recommendation relating to it.

[page 252] (6) The applicant may request, in writing, the Council to vary the application at any time before the Council makes a recommendation relating to it. [subs (6) insrt Act 102 of 2010 s 3 and Sch 5[4], opn 14 July 2010]

(7) If a request is made under subsection (6), the Council must decide to: (a) make the variation; or (b) reject the variation. [subs (7) insrt Act 102 of 2010 s 3 and Sch 5[4], opn 14 July 2010]

(8) An instrument making a decision under subsection (7) is not a legislative instrument. [subs (8) insrt Act 102 of 2010 s 3 and Sch 5[4], opn 14 July 2010]

(9) The Council may reject the variation if it is satisfied that the requested variation is of a kind, or the request for the variation is made at a time or in a manner, that: (a) would unduly prejudice the provider (if the provider is not the applicant) or anyone else the Council considers has a material interest in the application; or (b) would unduly delay the process for considering the application. [subs (9) insrt Act 102 of 2010 s 3 and Sch 5[4], opn 14 July 2010]

SECTION 44F GENERALLY [10,650F.5] Overview The Minister or another person may approach the council for an access declaration under s 44G. It would seem that the council is precluded from making a declaration of its own motion. ____________________

[10,650FA]

Council may request information

44FA (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44F.

(2) The Council must: (a) give a copy of the notice to: (i) if the person is not the applicant — the applicant; and (ii) if the person is not the provider of the service — the provider; and (b) publish, by electronic or other means, the notice. (3) In deciding what recommendation to make on the application, the Council: (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended. [s 44FA insrt Act 102 of 2010 s 3 and Sch 1[4], opn 14 July 2010]

[10,650G] Limits on the Council recommending declaration of a service 44G (1) The Council cannot recommend declaration of a service that is the subject of an access undertaking in operation under Division 6. [subs (1) am Act 92 of 2006 s 3 and Sch 1[14], opn 1 Oct 2006]

[page 253] (1A) While a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of a facility, as a competitive tender process, the Council cannot recommend declaration of any service provided by means of the facility that was specified under paragraph 44PA(2)(a). [subs (1A) insrt Act 92 of 2006 s 3 and Sch 1[15], opn 1 Oct 2006]

(2) The Council cannot recommend that a service be declared unless it is satisfied of all of the following matters: (a) that access (or increased access) to the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service;

(b) that it would be uneconomical for anyone to develop another facility to provide the service; (c) that the facility is of national significance, having regard to: (i) the size of the facility; or (ii) the importance of the facility to constitutional trade or commerce; or (iii) the importance of the facility to the national economy; (d) [Repealed] (e) that access to the service: (i) is not already the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB); or (ii) is the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB), but the Council believes that, since the Commonwealth Minister’s decision was published, there have been substantial modifications of the access regime or of the relevant principles set out in the Competition Principles Agreement; (f) that access (or increased access) to the service would not be contrary to the public interest. [subs (2) am Act 92 of 2006 s 3 and Sch 1[16], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 5[5], [6], opn 14 July 2010]

(3) [subs (3) rep Act 102 of 2010 s 3 and Sch 5[7], opn 14 July 2010] (4) [subs (4) rep Act 102 of 2010 s 3 and Sch 5[7], opn 14 July 2010] (5) [subs (5) rep Act 102 of 2010 s 3 and Sch 5[7], opn 14 July 2010] (6) The Council cannot recommend declaration of a service provided by means of a pipeline (within the meaning of a National Gas Law) if: (a) a 15-year no-coverage determination is in force under the National Gas Law in respect of the pipeline; or (b) a price regulation exemption is in force under the National Gas Law in respect of the pipeline. [subs (6) subst Act 45 of 2007 s 3 and Sch 1[74], opn 1 July 2008]

(7) The Council cannot recommend that a service be declared if there is in force a decision of the designated Minister under section 44LG that the service is ineligible to be a declared service. [subs (7) insrt Act 102 of 2010 s 3 and Sch 2[5], opn 14 July 2010]

[page 254] SECTION 44G GENERALLY [10,650G.5] Overview This section lists the matters that the council must take into account in recommending declaration and the circumstances under which the council may not make a recommendation. This provision was amended by the Trade Practices Amendment (National Access Regime) Act 2006 in response to the recommendations of the Productivity Commission. See [10,650.5]. [10,650G.5A] The declaration process Access through declaration is a two-stage process. The first stage is the process of declaration by the minister (following the recommendation of the council), or the tribunal on review, which provides a right to negotiate terms and conditions of access, or to have them arbitrated by the commission. The second stage is the determination of the actual terms and conditions of access, either by negotiation or through arbitration by the commission: Application by Services Sydney Pty Ltd (2005) 227 ALR 140; (2006) ATPR ¶42-099; [2005] ACompT 7 at [99] per Gyles J, Mr B Keane and Dr J Walker. Once a service is declared the applicant and any other potential entrant will have the right to negotiate access and seek to have the commission arbitrate the terms and conditions of access if required: Application by Services Sydney Pty Ltd, above, at [136]; BHP Billiton Iron Ore Pty Ltd v National Competition Council [2006] FCA 1764; BC200610497 at [53] per Middleton J; (appeal) BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 247 ALR 104; [2007] FCAFC 157; BC200708515 at [128] per Greenwood J (Sundberg J agreeing). See Hamersley Iron Pty Ltd v National Competition Council (2008) 247 ALR 385; [2008] FCA 598; BC200803074 per Weinberg J; BHP Billiton Iron Ore Pty Ltd v National Competition

Council (2008) 236 CLR 145; 249 ALR 418; [2008] HCA 45; BC200808315 at [17] per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. [10,650G.5B] Limits on council recommending declaration The council cannot recommend declaration of a service: • Unless it is satisfied of all the matters in s 44G(2), including that the service is not covered by an effective access regime under s 44N: s 44G(2)(e), s 44G(4). • If the service is subject of an access undertaking under Div 6: s 44G(1). • While a decision is in force under s 44PA(3) approving a tender process for the construction of a facility: s 44G(1A). • Provided by means of a gas pipeline under the National Gas Law, if a binding non-coverage determination or a price regulation exemption is in force: s 44G(6)-(7). [10,650G.6] Services identified in the application for declaration A recommendation to declare must be limited to the particular service identified in the application. However, that does not require a literal or pedantic adherence to the nature of the application or to the particular description of the service when deciding whether the same application and the same service is being dealt with: Application by Services Sydney Pty Ltd (2005) 227 ALR 140; (2006) ATPR ¶42-099; [2005] ACompT 7 at [21] per Gyles J, Mr B Keane and Dr J Walker; Rio Tinto Ltd v Australian Competition Tribunal [2008] FCAFC 6; BC200800597 at [59] per French, Lindgren and Jacobson JJ; Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [1343] per Finkelstein J, Mr Grant Latta and Professor David Round. Application of criterion In Application by Services Sydney Pty Ltd, above, at [23] the tribunal said that splitting the facility into three separate facilities did not affect the substance of the service to be declared in any material respect. In Rio Tinto Ltd v Australian Competition Tribunal, above, the Full Court said that the council’s consideration for declaration of a railway line was broadly consistent with the all points service in the application for declaration.

[page 255] [10,650G.7] Application to vertically integrated monopolists An access declaration is particularly appropriate where a facility by means of which a service is provided is controlled by a vertically integrated monopolist. Where the owner of a facility is not competing in upstream or downstream markets, the owner usually has little incentive to deny access because maximising competition in vertically related markets maximises its own profits. Where the owner of a facility is not vertically integrated, the principal competition concern is not access to the facility but rather the price charged for access: Re Review of Freight Handling Services at Sydney International Airport (2000) ATPR ¶41-754 at 40,756; [2000] ACompT 1. However, Pt IIIA is not limited to vertically integrated monopolists and there is nothing in the Hilmer Committee Report to suggest that it was intended to be so limited: Re Review of Freight Handling Services at Sydney International Airport, above, ATPR at 40,756; Application by Services Sydney Pty Ltd (2005) 227 ALR 140; (2006) ATPR ¶42-099; [2005] ACompT 7 at [116]–[120] per Gyles J, Mr B Keane and Dr J Walker. See The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 at [74], [98]–[102] per French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ. [10,650G.8] Access or increased access The Act does not define “access” or “increased access”. The ordinary meaning of “access” is a right, ability or opportunity to make use of the service. “Increased access” is an enhanced right, ability or opportunity to make use of the service: Re Virgin Blue Airlines Pty Ltd [2005] ACompT 5 at [137] per Goldberg J, Mr G F Latta and Dr J S Marsden; Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [1059] per Finkelstein J, Mr Grant Latta and Professor David Round. Access and increased access include the terms and conditions upon which such access or increased access is made available at the facility: Re Virgin Blue Airlines Pty Ltd, above, at [139]. This interpretation is supported by Div 3 of Pt IIIA which explicitly recognises that access disputes in that division cover aspects of access to declared services. Also, s 44V(2)(c) allows the commission in a determination of an access dispute to specify the terms and

conditions of a third party’s access to a service. The interpretation also gives a meaning to criterion (a) that reflects its origin in cl 6(1)(b) of the Competition Principles Agreement: Re Virgin Blue Airlines Pty Ltd, above, at [140]–[142]. All that can be assumed at the time of considering declaration is that the parties and the regulator will act reasonably and that there will be access accordingly on appropriate terms: Application by Services Sydney Pty Ltd (2005) 227 ALR 140; (2006) ATPR ¶42-099; [2005] ACompT 7 at [15] per Gyles J, Mr B Keane and Dr J Walker. See Re Application by Glencore Coal Pty Ltd [2016] ACompT 6; BC201604469 per Mansfield J, Mr RF Shogren and Mr R Steinwall. [10,650G.10] Promoting competition An access declaration cannot be made unless access to the service will promote competition in another market. What is contemplated is that access will enable the third party to provide competition in an upstream or downstream market. In Re Review of Freight Handling Services at Sydney International Airport (2000) ATPR ¶41-754 at 40,755; [2000] ACompT 1 the tribunal said that the notion of “promoting” competition does not require it to be satisfied that there would be an advance in competition in the sense that competition would be increased. Rather, it considered that the notion of “promoting” competition involves the idea of creating the conditions or environment for improving competition from what it would be otherwise. That is, that the opportunities and environment for competition given declaration will be better than they would be without declaration. It reached this conclusion on the basis that: The purpose of an access declaration is to unlock a bottleneck so that competition can be promoted in a market other than the market for the service. The emphasis is on “access”, which leads us to the view that [the provision] is concerned with the fostering of competition, that is [page 256] to say it is concerned with the removal of barriers to entry which inhibit the opportunity for competition in the relevant downstream market. It is in this sense that the Tribunal considers that the promotion of competition involves a consideration that if the conditions or environment for improving competition are enhanced, then there is a likelihood of increased competition that is not trivial. The Tribunal is concerned with furthering competition in a forward looking way, not furthering a particular type or number of competitors.

These comments were indorsed in Re Duke Eastern Gas Pipeline Pty Ltd (2001) 162 FLR 1; (2001) ATPR ¶41-821; [2001] ACompT 2 at [75] per Hely J, Dr M J Messenger and Ms M M Starrs; Application by Services Sydney Pty Ltd (2005) 227 ALR 140; (2006) ATPR ¶42-099; [2005] ACompT 7 at [134], [145] per Gyles J, Mr B Keane and Dr J Walker; Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [1060] per Finkelstein J, Mr Grant Latta and Professor David Round. In order to determine whether access or increased access would promote competition in a dependent market, it is necessary to undertake an analysis of the future with declaration (the “factual”) as against the future without declaration (the “counterfactual”): Application by Services Sydney Pty Ltd, above, at [96]; Sydney Airport Corporation Ltd v Australian Competition Tribunal [2006] FCAFC 146; BC200608356 at [83] per French, Finn and Allsop JJ; Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [1048] per Finkelstein J, Mr Grant Latta and Professor David Round. This requires a forward-looking analysis which involves a comparison of the competitive conditions and environment likely to arise in the future with and without declaration: Re Virgin Blue Airlines Pty Ltd [2005] ACompT 5 at [148] per Goldberg J, Mr G F Latta and Dr J S Marsden. However in Sydney Airport Corp Ltd v Australian Competition Tribunal (2006) 155 FCR 124; 232 ALR 454; [2006] FCAFC 146; BC200608356 French, Finn and Allsop JJ said at [81] that the relevant inquiry is between access and no access and limited access and increased access. It is not necessary to examine whether declaration of the service would promote competition. It is also not necessary to identify and determine the existence and extent of a denial or restriction of access: Sydney Airport Corporation Ltd v Australian Competition Tribunal [2006] FCAFC 146; BC200608356 at [76] per French, Finn and Allsop JJ. In Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 Finkelstein J, Mr Grant Latta and Professor David Round questioned the correctness of this approach. The Tribunal said at [1061]– [1071]: [1061] A particular act will have the tendency to promote a material increase in competition in a socially useful way if sellers are given greater freedom to engage in rivalrous behaviour, or if the act will cause an increase in the number of rivals coupled with a move to more independent behaviour.

Often the inquiry will come down to this: Will the act (eg an alteration to an aspect of market structure or a change in a firm’s conduct) increase the constraints on the market power of sellers or, more directly, will it increase their rivalry in a way that will produce greater efficiency? If the answer is in the affirmative, the act will promote an increase in competition. [1062] What are the practical indicia that would lead to the conclusion that an increase in competition will be promoted? They would include a likely increase in the number of sellers (although that may not necessarily be a sufficient condition), a restraint on anti-competitive conduct such as price fixing or predatory pricing or the creation of incentives for innovation. That is, one is looking for a change that will force sellers to outsell, or attempt to outsell, their rivals in the relevant market, on pain of losing market share if they do not change their competitive strategy. One might also look for a stream of rivalrous initiatives that compel responses. [page 257] [1063] The ability to examine these indicia has been reduced by the Full Court decision. On one view (which is of the NCC’s view), the decision means that satisfaction of criterion (a) is to be determined without regard to factors such as whether access will be taken up; the terms and conditions that might be imposed on the grant of access; and the number of firms that will take up access and the extent to which they will utilise access. [1064] We do not believe that the Full Court intended to ignore any consideration of whether access would be taken up. While the Full Court made clear that the approach to criterion (a) is not to infuse “an overly elaborate body of considerations into that criterion”, it could not have intended for the approach to be entirely theoretical. The Full Court itself considered factual considerations such as the substitutability of other specific airports, as well as SACL’s right of first refusal to build and operate a second major airport for the purpose of determining whether access would promote an increase in competition. They considered these facts to be essential to their inquiry. Whether or not access will be taken up is also, we think, an essential consideration. [1065] It is possible that the Full Court did not consider that issue because the access seeker had already taken up access. It is also possible the Full Court proceeded on the basis that the mere possibility of access would be sufficient to promote competition. That approach is not dissimilar to what is known as the “contestable market theory”. This theory holds that in certain circumstances, the mere threat of entry will constrain even a monopolist from exercising its market power to the detriment of consumers. The necessary condition for a contestable market is that entry is free and exit is costless (ie no sunk costs). It goes without saying, but say it we must, that the markets with which Pt IIIA is concerned are as far removed from being “contestable” as may be. By way of example, Professor Willig, one of the authors of the contestable market theory has, in a co-authored paper, said that “the railroad industry is one in which contestability analysis cannot conceivably apply”: Ioannis Kessides and Robert Willig, Restructuring Regulation of the Rail Industry for the Public Interest, Policy Research Working Paper 1506, The World Bank (1995). We would add that neither could a related or derivative theory. [1066] Putting that theory to one side, the Tribunal does not adhere to the view that mere access of itself will promote a material increase in competition. What matters is the likelihood of access, the sufficiency of access and the likely timing of access. For the Full Court to hold that it is impermissible to consider whether, when and to what extent, access will be taken up could easily lead to the result that criterion (a) is not satisfied although a close examination of the facts may show otherwise. This result could hardly have been intended. If it was, it is necessary for Parliament to intervene. That said, we accept that in assessing the extent to which access would be taken up, the

Tribunal should assume that access is on reasonable terms and conditions, without speculating about any particular terms that might be imposed by arbitration under Pt IIIA. [1067] A second issue that arises from the Full Court’s decision is whether access must be “essential” or “necessary” to permit effective competition in a related market for criterion (a) to be satisfied. There are passages in the joint judgment which suggest that this is the approach. For example, the Full Court noted (at [86]) that “the essential precondition discussed [in the enacting history] was that access .........was necessary to permit effective competition in a downstream or upstream market.” Earlier (at [37]), the Full Court had said that the “essential notion” to be derived from the Hilmer Report, the outline of legislation issued by COAG, the Explanatory Memorandum and the Competition Principles Agreement is that “it is necessary for the fact of access (in its ordinary meaning) to be relevant to effective competition in another market”. [1068] It is worthwhile pausing at this point to discuss yet another aspect of the Full Court’s decision. It is apparent from the passages just cited that the Full Court considers that criterion (a) is concerned with effective competition. To reach this view, the Full Court relied on the [page 258] legislative background. If anything, the view has been strengthened with the subsequent introduction of s 44AA, which now expressly provides that an object of Pt IIIA is to promote “effective competition”. The position we take is that if a dependent market is already effectively competitive, intervention is not called for. That is, we read criterion (a) as having no application to a market which is effectively competitive. In any event, even if we are wrong in this approach that the dependent market is already effectively competitive, it would be an important consideration under criterion (f) and the discretion. [1069] Coming back to the “essentiality” requirement, this does no more than reflect the comparative nature of the “with or without” test. If the state of competition with access is the same as the state of competition without access, access is not essential for promoting competition. In most cases there can be no quarrel with this approach. There will, however, be some situations where the result may be unsatisfactory. [1070] Assume that a facility is a natural monopoly but not a bottleneck. Assume also that the facility could profitably be duplicated, although that would be highly inefficient. Assume finally that either access to the natural monopoly facility or the construction of a substitute facility would equally promote an increase in competition. We accept that this assumption would not hold in all cases, ie where in one future, competition would be promoted to a greater extent in one scenario than the other. In the assumed case, criterion (a) would not be satisfied. [1071] We have some reservations about this outcome. It has the arguably perverse result that a declaration must be refused because a highly inefficient duplication of an existing facility would have the same competitive effect as sharing the facility. It is doubtful whether this is what the legislature intended. But we accept that this result cannot be avoided as criterion (a) is presently worded. Still, we think that this is an issue that warrants parliament’s close attention.

In Re Application by Glencore Coal Pty Ltd [2016] ACompT 6; BC201604469 at [102] Mansfield J, Mr RF Shogren and Mr R Steinwall considered themselves bound by the approach of the Full Federal Federal Court in Sydney Airport Corporation (above). The approach in Sydney Airport Corporation was said not to be undermined by the amendments made

by the Trade Practices Amendment (National Access Regime) Act 2005 or by the High Court’s view in Pilbara on the absence of a residual discretion: Re Application by Glencore Coal Pty Ltd [2016] ACompT 6; BC201604469 at [86], [92] per Mansfield J, Mr RF Shogren and Mr R Steinwall. Application of criterion In Re Australian Cargo Terminal Operations Pty Ltd (1997) ATPR (NCC) ¶70-000 the council said that access to the services provided by the Federal Airports Corporation would result in improved competition in at least the markets for ramp services and cargo terminal operations. In Re Victorian Government (1997) ATPR (NCC) ¶70-001 the council was satisfied that freedom to negotiate lower charges for access to the shipping channels at the ports of Melbourne, Geelong, Portland and Hastings would promote competition. In Re New South Wales Government (1997) ATPR (NCC) ¶70-002 the council observed that while there was the potential for competition from other fuels, competition in some contestable gas markets requires access to the natural monopoly elements of the gas chain. The NSW access regime for natural gas distribution would therefore promote competition. In Carpentaria Transport Pty Ltd (1997) ATPR (NCC) ¶70-003, the council concluded that access to the services provided by Queensland Rail’s facilities would promote competition within the market for freight forwarding. This would be reflected in increased volumes, increased efficiencies and lower costs in freight forwarding. [page 259] In Re Specialized Container Transport (1997) ATPR (NCC) ¶70-004 the council concluded that access to the service allowing SCT to run rail freight trains between Sydney and Perth on the NSW railway network would promote competition in the markets for interstate and intrastate transport of non-bulk goods by rail. In Re New South Wales Minerals Council Ltd (1997) ATPR (NCC) ¶70005 the council considered that rail services are a significant component of the costs of coal haulage and that rail services would promote competition in

the Hunter region coal rail haulage market. In Specialized Container Transport Applications for Declaration of Services Provided by Westrail (1998) ATPR (NCC) ¶70-006 the council said that access to the freight and rail service comprising the use of the Westrail railway network and associated infrastructure would promote competition in the freight forwarding market. However, the council concluded that the same could not be said for freight support services. In Re Review of Freight Handling Services at Sydney International Airport, above, the tribunal was satisfied that competition would be promoted in another market, namely the market for ramp handling services at Sydney International Airport. In Re Duke Eastern Gas Pipeline Pty Ltd, above, at [134] Hely J, Dr M J Messenger and Ms M M Starrs were not satisfied that coverage of the eastern gas pipeline under the equivalent criterion in the National Third Party Access Code for Natural Gas Pipeline Systems would promote competition in either the upstream or downstream gas markets. See also Re Application by Epic Energy South Australia Pty Ltd (2004) ATPR ¶41-977; [2003] ACompT 5 at [104]–[105] per Cooper J, Professor D K Round and Ms M M Starrs. In Re Virgin Blue Airlines Pty Ltd [2005] ACompT 5 at [585] per Goldberg J, Mr G F Latta and Dr J S Marsden, the Tribunal was satisfied that increased access to airside services (which included the use of runways, taxiways, parking aprons and associated facilities to allow aircraft carrying domestic passengers to take off and land using the runways at Sydney Airport) would promote competition in at least one market, other than the market for the service. In Application by Services Sydney Pty Ltd (2005) 227 ALR 140; [2005] ACompT 7 at [170], [174], [179] per Gyles J, Mr B Keane and Dr J Walker, the tribunal was satisfied that access would promote competition in the sewage collection market, the sewage treatment market and the recycled water markets. The council was satisfied that access to the Tasmanian Rail Network would promote a material increase in competition in another market, namely, rail line haulage services. See National Competition Council 2007, Final Recommendation: Application for declaration of a service provided by the Tasmanian Railway Network, Melbourne, at [5.45]. On 15 June 2004, the council received an application from Fortescue

Metals Group Ltd for declaration of a service provided through the use of part of the Mount Newman railway line and part of the Goldsworthy railway line in the Pilbara, Western Australia. The council’s final recommendation was provided to the minister on 24 March 2006. The minister (the Treasurer) was deemed to have made a decision not to declare the service. The council considered that access to the Mount Newman service will promote competition in the market for rail haulage services in the Pilbara and the market for iron ore tenements in the Pilbara. On 16 November 2007 the council received an application from The Pilbara Infrastructure Pty Ltd (TPI) for declaration of a service provided through use of the facility comprising principally the Goldsworthy Railway and the Hamersley railway in the Pilbara region of Western Australia. On 18 January 2008 TPI also applied to the council for declaration of the Robe railway. The council provided its final recommendation on these three applications to the designated minister (the treasurer) on 29 August 2008. On 27 October 2008, the treasurer accepted the council’s recommendation and declared the three services for 20 years. The minister was satisfied that declaration would promote competition in the market for iron ore tenements in the Pilbara. [page 260] The matter was considered by the Tribunal in Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 per Finkelstein J, Mr Grant Latta and Professor David Round. The Tribunal affirmed the Treasurer’s deemed decision not to declare the Mt Newman service. The Tribunal affirmed the Treasurer’s decision to declare the Goldsworthy railway service for a period of 20 years. The Tribunal varied the Treasurer’s decision to declare the Robe railway service for a period of 20 years, so that it be declared for a period of 10 years commencing on 19 November 2008 and expiring on 19 November 2018. The Tribunal set aside the Treasurer’s decision to declare the Hamersley service. On 13 August 2010 applications for judicial review of the Tribunal’s decisions regarding the Hamersley and Robe services were lodged with the Federal Court of Australia by Fortescue, and an application for judicial

review of the Tribunal’s decision regarding the Robe Service was also lodged by Rio Tinto and associates: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2011) 193 FCR 57; 277 ALR 282; [2011] FCAFC 58; BC201102737 per Keane CJ, Mansfield and Middleton JJ. On 4 May 2011 the Full Federal Court delivered its reasons upon appeals by Rio Tinto and others (Rio) and Fortescue Metals Group and others (FMG) from decisions by the Australian Competition Tribunal relating to two of the four applications for access to Pilbara iron ore railways. Rio appealed from the Tribunal’s decision to declare the Robe Railway Service, and FMG appealed from the Tribunal’s decisions (a) not to declare the Hamersley Railway Service, and (b) to reduce the declaration period of the Robe Railway Service from 20 to 10 years. The Court upheld Rio’s appeal and dismissed FMG’s appeals. As a result of the decision, the 10 year declaration of Rio’s Robe River railway service was set aside. The status of the four Pilbara iron ore railways following the full Federal Court decision was: • The Mt Newman Railway Service, owned and operated by BHP Billiton and related parties (BHP), is not declared. • The Goldsworthy Railway Service, owned and operated by BHP, is declared for a 20 year period expiring on 19 November 2028. • The Hamersley Railway Service, owned and operated by Rio Tinto Ltd and associated parties (Rio), is not declared. • The Robe Railway Service, owned and operated by Rio, is not declared. Leave to appeal to the High Court was granted in October 2011. The High Court delivered its reasons on 14 September 2012: The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 per French CJ, Gummow, Hayne, Crennan, Kiefel, Bell, Heydon JJ. As a result of the High Court’s decision, the status of the four Pilbara iron ore railways subject to declaration applications was as follows: • The Mt Newman Railway Service, owned and operated by BHP Billiton and related parties (BHP), is not declared. • The Goldsworthy Railway Service, owned and operated by BHP, is declared for a 20 year period expiring on 19 November 2028. • The Hamersley Railway Service, owned and operated by Rio Tinto Ltd and associated parties is to be re-determined by the

Tribunal. • The Robe Railway Service, owned and operated by Rio Tinto is to be re-determined by the Competition Tribunal. Following the High Court’s decision the matter was again considered by the Tribunal in Re Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2; BC201300428 per Mansfield J, Mr R Shogren and Mr R Steinwall. The Tribunal considered it did not have sufficient material to satisfy it that it would be uneconomical for anyone to develop an alternative facility to provide the service. The Tribunal set aside the declarations of the Minister made on 27 October 2008: Re Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2; BC201300428 at [124] per Mansfield J, Mr R Shogren and Mr R Steinwall. [page 261] On 22 March 2010 the Council received an application from North Queensland Bio-Energy Corp Ltd for the declaration of the service provided by the narrow gauge cane tram network owned by Sucrogen (Herbert) Pty Ltd (formerly CSR (Herbert) Pty Ltd) in the Herbert River district, North Queensland, which is approximately 550km in length. The service the applicant sought to have declared was the use of the facility comprising the tram network to enable it to operate its own trains and rolling stock to provide the service of transporting sugarcane and other feedstock harvested within the Herbert River district to the applicant’s proposed new factory near Ingham. The Council was satisfied that access to the service would promote a material increase in competition in the market for the acquisition of sugarcane in the Herbert River district. On 16 July 2010, the Council recommended to the designated Minister that the service provided by the Herbert River cane railway not be declared. The Minister had 60 days from receipt of the Council’s recommendation to publish his decision whether or not to declare the service. That 60 day period expired on 20 September 2010. As no decision was published within the 60 day period, the designated Minister is deemed by CCA s 44H(9) to have

decided not to declare the service. On 4 June 2013, the Economic Regulation Authority of Western Australia received a notification from The Pilbara Infrastructure Pty Ltd that it was of the view that an access proposal dated 15 May 2013 received from Brockman Iron Pty Ltd would involve the provision of access to its railway. On 14 August 2013, the Authority published its decision under s 10(1) of the Railways (Access) Code 2000 (WA), approving the commencement of negotiations with respect to the access proposal. On 27 September 2011 the Board of Airline Representatives of Australia Inc (BARA) made two applications for the declaration of services provided by jet fuel supply infrastructure at Sydney airport. Specifically, the applications are for declaration of: (a) Caltex pipeline — the service provided by the Caltex pipeline facility, which transports jet fuel from interconnection points with off-site jet fuel storage facilities at Port Botany to the Sydney airport Joint User Hydrant Facility (JUHI); and (b) Jet fuel storage and pipeline network / JUHI facility — the services provided by the jet fuel storage facility (includ-ing facilities for refuelling trucks) and jet fuel hydrant pipeline network facility provided by the JUHI at Sydney airport. On 15 March 2012 the Council provided its final recommendations to the designated Minister, the Hon David Bradbury MP. On 10 May 2012, the Hon David Bradbury MP, published his decisions. The Minister decided that the service provided by the Caltex Pipeline and the service provided by the Sydney JUHI are not declared. In reaching these decisions the Minister determined that ss 44H(4)(a) and 44H(4)(f) were not satisfied by either application. The Council received an application from Glencore Coal Pty Ltd seeking declaration provision of the right to access and use the shipping channels provided by the Port of Newcastle. On 8 January 2016 the Minister made a decision not to declare the service. On 29 January Glencore applied to the Tribunal for a review of the Minister’s decision. On 31 May 2016 the Tribunal decided the service should be declared and on 16 June 2016 made orders giving effect to that decision. On 14 July 2016, Port of Newcastle Operations Pty Ltd applied for judicial review of the Tribunal’s decision. [10,650G.15] Uneconomical for anyone to develop another facility

Part IIIA will only apply to those facilities that cannot be economically duplicated by the third party. The expression is, however, not defined. Uneconomical An assessment of criterion (b) requires a focus on the duplication of the facility or facilities used to provide the services which are the subject of the application for declaration, rather than on the wider question of the duplication of facilities to service the market, which would [page 262] include consideration of substitutes: Application by Services Sydney Pty Ltd (2005) 227 ALR 140; [2005] ACompT 7 at [102] per Gyles J, Mr B Keane and Dr J Walker. The expression “uneconomical” may be construed in terms of the associated costs and benefits of development for society as a whole. The language of the provision does not suggest that the intention is only to consider a narrow accounting view of “uneconomic” or simply issues of profitability: Re Review of Freight Handling Services at Sydney International Airport (2000) ATPR ¶41-754 at 40,793; [2000] ACompT 1; Re Duke Eastern Gas Pipeline Pty Ltd (2001) 162 FLR 1; (2001) ATPR ¶41-821; [2001] ACompT 2 at [59] per Hely J, Dr M J Messenger and Ms M M Starrs. The tribunal in Sydney International Airport said (ATPR at 40,793): If “uneconomical” is interpreted in a private sense then the practical effect would often be to frustrate the underlying intent of the Act. This is because economies of scope may allow an incumbent, seeking to deny access to a potential entrant, to develop another facility while raising an insuperable barrier to entry to new players (a defining feature of a bottleneck). The use of the calculus of social cost benefit, however, ameliorates this problem by ensuring the total costs and benefits of developing another facility are brought to account.

The report of the Hilmer Committee suggests that the criterion is intended to describe a natural monopoly. A single facility could be said to exhibit natural monopoly characteristics if it can meet market demand at less cost than two or more facilities. Natural monopolies often require considerable upfront investments, however their operating costs are relatively small and vary little as more of the infrastructure’s capacity is brought on line: Re Duke Eastern Gas Pipeline Pty Ltd, above, at [60]–[62] per Hely J, Dr M J Messenger and Ms M M Starrs. In the context of the gas pipelines under consideration in Duke, above, the tribunal said that if a single pipeline can

meet market demand at less cost (after taking into account productive, allocative and dynamic effects) than two or more pipelines, it would be uneconomic in terms of this criterion to develop another pipeline to provide the same services: Duke, above, at [64]. However in Application by Services Sydney Pty Ltd, above, at [102] the tribunal said that it may be misleading to use the expression “natural monopoly” in relation to criterion (b) since the term “monopoly” is generally used in relation to a market. In many cases, because of the nature of the infrastructure assets which attract applications for declaration, the service will constitute the extent of the market, but this will not always be the case: Application by Services Sydney Pty Ltd, above, at [102]. In Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [815], Finkelstein J, Mr Grant Latta and Prof David Round identified the competing views of the meaning of “uneconomical”: (1) it would not be profitable for anyone to develop the facility (the “privately profitable” test); (2) the total net costs (including social costs) exceed the total net benefits (including social benefits) of developing another facility (the “net social benefit” test); or (3) a single facility can meet market demand at less total cost than two or more facilities (a “natural monopoly test”). In Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 Finkelstein J, Mr Grant Latta and Prof David Round, at [835], did not support the private profitable test. They said (at [816]–[835]): [816] To understand the debate, it is necessary to appreciate the different results that might be reached depending on whether or not a privately profitable test is adopted. It was accepted by all the economic experts that the existence of a natural monopoly does not necessarily preclude the profitable development of a second facility. For example, suppose that an incumbent and potential access seeker occupy infra-marginal positions in a related market; ie, their marginal cost is below the prevailing market price. In that circumstance, it may be profitable for a second facility to be built, notwithstanding that it would be more efficient to share an existing facility. [page 263] [817] The question is whether Pt IIIA is intended to apply in circumstances where it is profitable — albeit less profitable, and potentially less efficient from society’s perspective — for a second line to be built. The incumbents say Pt IIIA is not intended to apply in those circumstances, because it is concerned with removing “bottlenecks” and criterion (b) should be seen as a bottleneck test. In contrast, FMG and the NCC argue that while bottleneck considerations may be relevant to criterion

(a), criterion (b) is concerned with efficiency. [818] In resolving this debate, the place to begin is with the objects of Pt IIIA. There are a number of features of the objects clause which should be noted. First, it refers to “effective competition” rather than competition per se. This is to be contrasted with s 2 of the Trade Practices Act, which relevantly provides that the object of the Act generally is to enhance the welfare of Australians through the promotion of competition. A very useful shorthand description of effective competition is proffered by Professor Hausman. He said: “By “effectively competitive” economists mean that no individual firm (or group of firms) is exercising significant market power nor is the price above the competitive price.” A privately profitable test does not sit easily with the object of achieving effective competition. If viewed as a “bottleneck” test, as the incumbents would have it, then it simply tests whether a person could compete in a related market without access. It does not ask whether that person could compete effectively. It is not hard to conceive of circumstances in which a market is less than effectively competitive because third parties, relying on marginally profitable alternative facilities, cannot truly compete with an incumbent using (a much more profitable) facility with natural monopoly characteristics. [819] Another feature of s 44AA is that it is concerned with two distinct but related concepts — efficiency and effective competition. The references to efficiencies in “operating”, “using” and “investment” in infrastructure connote concepts of productive, allocative and dynamic efficiencies. On any view, the scope of criterion (b) must take into account both effective competition and the efficiencies contemplated by s 44AA(1). [820] One issue raised by the privately profitable test is whether it ignores efficiency considerations, in particular, the allocative efficiency associated with the use of a natural monopoly facility. The proponents of the privately profitable test contend that if it is privately profitable to develop an alternative facility, there is a strong incentive for the access seeker and facility owner to voluntarily implement a socially efficient sharing arrangement. Professor Willig, for example, explains why it is that the credible threat of a new facility will result in “strong individual incentives” for the incumbent facility owner to enter into an efficient facility-sharing agreement. In substance, his approach suggests that once an incumbent realises that refusing to share a facility will not prevent an access seeker from competing in a related market, the incumbent would rationally share the facility if it is efficient to do so. If the incumbent cannot prevent a competitor entering a related market, the incumbent may as well profit from that entry, if possible. Indeed, Professor Willig argues, if the incumbent still refuses to share the facility in the face of a credible threat, then this strongly suggests that there must be inefficiencies and costs associated with sharing that outweigh any efficiencies. His point is that where it is privately profitable, an entrant will come into the market because it will be competitive (ie there is no market failure) and there is no need for regulation. If an alternative facility is not privately profitable, then regulation might be warranted. [821] A variation of this argument is that even if the market does not always achieve an efficient outcome when there is a credible threat of a new facility, it still gets it right most of the time and does a better job than regulation. For example, Professor Ordover draws a distinction between a technical natural monopoly test and evidence of market behaviour indicating an “independent [ie third party] commitment to enter/construct/duplicate” the facility. If there is such a commitment, Professor Ordover argues that the technical assessment whether it is or is not economic (or “uneconomical”) to build another facility is “trumped” by the revealed behaviour of market participants. [page 264]

[822] Similarly, Professor Kalt, who deals with the US essential facilities doctrine, notes that under the second criterion expounded in the MCI case (the “impractical to duplicate” criterion), a wouldbe entrant could not succeed if it were privately profitable to duplicate the facility. In other words, says Professor Kalt, criterion 2 of MCI uses the market to perform the social cost test on the efficiency of new facilities. Professor Kalt acknowledges that market forces do not always produce satisfactory outcomes. But he says that “it is a false standard to place such market forces up against some vision of a court/regulatory process that is costless and without error of its own”. He points out that the operative assumption of the US approach is that firms are rational profit-making concerns and this underlies the stringent US policy toward mandating access. His view is that, from a policy perspective, the US approach has the distinct advantage of using competing parties’ respective selfinterests to compel them to assess accurately the costs and benefits of their alternatives and for each to act on those alternatives in accord with their own individual self-interest. [823] In essence, the economists supporting the privately profitable test assert that where an alternative facility can credibly be built, private negotiations will necessarily result in efficient outcomes or, at least, will achieve efficient outcomes more readily than regulation. There are several problems with this assertion. First, it assumes that firms always, or usually, behave in an economically rational manner but from empirical observation we know they do not — especially when it comes to dealing with potential competitors. Second, there are often reasons for an incumbent owner who is behaving rationally to deny access to a potential competitor even when sharing would be socially optimal. Forcing the competitor to use a less profitable alternative facility may harm that competitor. The incumbent may seek to exploit the fact that it will take some time to build the alternative facility. It may be that it is only profitable to build an alternative facility with limited capacity (which is lower than the spare capacity on the existing facility which would otherwise be available). The incumbent may be mindful of not giving a fledgling competitor a “legup” to facilitate its growth into a larger player. Third, given the potential for market failure, it is far from clear that market forces achieve a better result than regulation as a general rule. In any event, it is doubtful that the Tribunal is entitled to assume that the decision-makers regulating Pt IIIA will make errors. [824] There is another reason why a privately profitable test may not lead to the efficient use and operation of a facility. Suppose that an existing facility is a natural monopoly, ie it can satisfy society’s total demand at a lower cost than two or more facilities. Suppose also that it is privately profitable to build an alternative facility which can only satisfy some, but not all, potential demand. On a privately profitable test, a declaration could not be made, even though many potential users would not be able to use the second facility, but could use (and use more efficiently) the incumbent’s facility. It is difficult to see how such an outcome is consistent with the efficient use and operation of infrastructure — and for that matter, the achievement of effective competition — contemplated by s 44AA. [825] Another factor which tells against a privately profitable test is the emphasis on natural monopolies in the background materials to Pt IIIA: see Ch 9, where this material is discussed in detail. For present purposes, it is sufficient to note that the two consistent themes which emerge from this material are that: (1) facilities requiring access exhibit natural monopoly characteristics; and (2) the notion of being “uneconomical” has been linked to the definition of natural monopoly. In Ch 11 of the Hilmer Report, which concerns access to “essential facilities”, there is repeated reference to a facility being uneconomical to duplicate because it exhibits natural monopoly characteristics. Indeed, the Hilmer Committee’s concern was with what it described as the “essential facilities problem”. They defined an essential facility as one which satisfied two key conditions. First, the facility must exhibit natural monopoly characteristics and “hence cannot be duplicated economically”. Second, access to the facility

[page 265] is required if a business is to be able to compete effectively in a related market. That said, the final recommendations of the Report did not refer to natural monopolies, instead recommending that a necessary condition for access was that access be essential to permit effective competition in a related market. This reproduced only the second element of the Committee’s “essential facility” definition. [826] For reasons which are unclear, but probably relate to drafting style, the legislation and Competition Principles Agreement that followed the Hilmer Report adopted a more elaborate series of criteria for declaring access than those which were originally recommended. Criterion (a) seems to correspond, albeit couched in different terms, to the “second limb” of the essential facilities definition adopted in the Hilmer Report. Criterion (b) seems to correspond to the “first limb” of that definition. It is significant that in “reintroducing” this first limb, COAG has continued to associate the first limb with natural monopolies. In September 1994, a draft legislative package was released by COAG for public comment. One of the documents in the package was the explanatory memorandum that described an essential facility as one which “exhibits a high degree of natural monopoly characteristics; ie, a competitor could not duplicate it economically”. In the second reading speeches for the Competition Policy Reform Bill in the House of Representatives (Commonwealth, Debates, House of Representatives (1995) Vol HR202, p 2799) and in the Senate (Commonwealth, Debates, Senate (1995) Vol S170, p 2438), it was said that the notion underlying the proposed Pt IIIA regime is that access to certain facilities with natural monopoly characteristics is needed to encourage competition in related markets. [827] While the background material makes repeated reference to infrastructure that displays natural monopoly characteristics, there is no reference to a privately profitable test in terms or in similar language. Nonetheless, the incumbents argue that the Hilmer Committee was principally concerned with bottlenecks, rather than natural monopolies. In this regard, they place particular emphasis on the passage from the Hilmer Report which recommended that a necessary condition for a declaration be that access is essential to permit effective competition in a related market. The Report then observed (at p 251): “Clearly, access to the facility should be essential, rather than merely convenient.” [828] What must be borne in mind is that this comment was made in the context of access being essential for effective competition. It was not about whether access is essential to be able to compete per se. A “bottleneck” approach, as advocated by the incumbents, only tests the latter. [829] Another point against the privately profitable test is that it would lead to a significant degree of overlap between criterion (a) and criterion (b). All parties accept that whether or not it is privately profitable to build an alternative facility would be a relevant consideration for criterion (a). This is not to suggest that there is complete overlap between criterion (a) and a privately profitable test under criterion (b). There may be circumstances where, for example, it is not privately profitable to build an alternative facility but, for separate reasons (eg the existence of an alternative facility which provides part of the service), criterion (a) is not satisfied. Conversely, one can conceive of circumstances in which it would be privately profitable to build an alternative facility but criterion (a) would nonetheless be satisfied, such as when the use of a less profitable alternative facility would not allow for effective competition. The point is that the existence of a bottleneck (or whether it is privately profitable to build an alternative facility) is not in itself determinative of whether access would promote effective competition and, for that matter, whether access is socially efficient. It is, therefore, unclear why criterion (b) should separately test for a bottleneck on a stand-alone basis. An alternative approach is that criterion (b) is concerned with efficiency (ie the efficient use of existing infrastructure) and criterion (a) considers effective competition. This approach has the

merit of avoiding overlap between criteria (a) and (b) and, more importantly, directly addresses the objects in s 44AA(1). [page 266] [830] Were the interpretation of criterion (b) governed solely by the forgoing considerations, the Tribunal would have no doubt in concluding that the privately profitable test should be rejected. There are, however, other considerations which muddy the waters. The first is criterion (e), which is whether access to the service is already the subject of an “effective access regime”. When considering this criterion, s 44H(5) provides that the minister must have regard to the Competition Principles Agreement. Clause 6(1)(a) of that agreement refers to whether it is “economically feasible to duplicate the facility.” Putting these points together, the incumbents argue that the reference to “economically feasible” indicates a privately profitable test. They then argue that criterion (b) must be interpreted consistently with cl 6(1)(a), or otherwise different results may emerge, depending on whether one is assessing an application under a State access regime or under Pt IIIA. [831] The Tribunal acknowledges that this argument has force. Perhaps the most natural meaning of the phrase “economically feasible” connotes private profitability. However, it is not too strained to read “economically feasible” as economically efficient, in the sense that something that is inefficient may be economically unfeasible when looked at from society’s perspective. [832] Another feature supporting the privately profitable test is the reference in criterion (b) to it being uneconomical “for anyone” to develop another facility. The incumbents argue that this reference does not sit well with a natural monopoly or net benefit test. Both of those tests, it was said, ask what is best for society, rendering the reference to “for anyone” otiose. [833] There is also force in this argument. But, equally, the application of the phrase to the privately profitable test creates difficulties. It was suggested by the incumbents that “anyone” means “any particular individual who can be identified”, including, for example, mining companies whose iron ore is sufficiently valuable to subsidise the cost of building the alternative rail facility. An alternative view is that “anyone” means anyone at all, asking whether any hypothetical person could build a rail line and make a profit from providing below rail services. [834] We think that under either view, practical problems arise. On the incumbent’s view, how is one to identify the relevant individual who might profitably build the line? For example, in this case, is one required to consider whether a Chinese steel mill might fund a line in order to facilitate obtaining long-term supply contracts? If the alternative view is adopted, how is one to assess the potential demand for the services and the price for below rail services that “anyone” would be willing to pay? [835] In the end, the Tribunal does not consider that criterion (b) should be interpreted as a privately profitable test. That test is inconsistent with the enacting history and does not adequately meet the objectives of Pt IIIA.

In Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [838], Finkelstein J, Mr Grant Latta and Prof David Round preferred a natural monopoly test. They said (at [838]–[839]): [838] With respect, we consider that a natural monopoly approach is preferable to a net social benefit approach adopted in previous Tribunal decisions for several reasons. First, the background material to criterion (b) consistently links the term “uneconomic” to the notion of a facility

exhibiting natural monopoly characteristics. Natural monopoly rests upon a production cost function which does not take into account social benefits or net social benefits. Second, natural monopoly characteristics are concerned with the costs of production based on the available technology. Third, a net social benefit test gives criterion (b) a role which overlaps substantially, and perhaps usurps, the role of criterion (f). Both would involve a weighing up of many of the same social costs and social benefits. Importantly, in weighing up those costs and benefits, the criteria might arrive at different results. It must be borne in mind that many [page 267] social costs and benefits are necessarily difficult, and sometimes impossible, to quantify. Accordingly, it may be difficult to conclude, at least in quantifiable terms, that there is or is not a “net social benefit”. A requirement to be positively satisfied of such a matter — which would be a requirement if criterion (b) were a net social benefit test — would create a threshold which may, in practical terms alone, be difficult to satisfy. This is to be contrasted with criterion (f), which is framed in the negative. [839] Moreover, criterion (f) looks at the issue in a different setting. For criterion (f) to be satisfied (although it is expressed as a negative), it is not sufficient for the net costs of access to exceed net benefits, ie even if that is the result of the inquiry, the making of a declaration may yet not be contrary to the public interest. Other factors might carry the day. We will explain why this is so when dealing with that criterion. There is, however, no such latitude given to the regulator were all social costs and benefits to be brought into account in criterion (b).

In Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [843], Finkelstein J, Mr Grant Latta and Prof David Round said that a natural monopoly test should not take into account all social costs. They reasoned at [843]–[846]: [843] The Tribunal has given careful consideration to the views of the experts but is of the firm view that a natural monopoly test under criterion (b) should not take into account all social costs, for three reasons. First, almost all of the extensive literature on natural monopolies and the extensive works that consider whether particular railways exhibit the characteristics of a natural monopoly suggest that social costs should not be taken into account. The literature shows that economists have tested for natural monopoly by only taking into account costs of production: see by way of example only David Evans and James Heckman, “A Test for Subadditivity of the Cost Function with an Application to the Bell System” (2006) 74(4) The American Economic Review 615, 622; Paul Joskow, “Regulation of Natural Monopolies”, in A Mitchell Polinsky & Steven Shavell (eds), Handbook of Law and Economics (2007), 11; John Bitzan, Railroad Cost Conditions — Implications for Policy (10 May 2000), prepared for the Federal Railroad Administration, US Department of Transport, 41-46; Marc Ivaldi and Gerard McCullough, “Subadditivity Tests for Network Separation with an Application to US Railroads” (2008) 7(1) Review of Network Economics 159, 165. [844] The second reason why a natural monopoly test should not take into account all social costs is that, by the nature of the inquiry, many of those costs would not be taken into account even if known. A natural monopoly test is a static test. It assesses the state of an industry at a given point in time by taking a set level of demand and technology. Indeed, a common criticism of the natural monopoly approach is that it fails to take into account dynamic issues such as, for example, the social benefits of facilities-based competition, where competition is enhanced by each firm having

its own facility, encouraging it to innovate (and hopefully to lower its costs) to capture market share. Many of the social costs which the incumbents say will be caused by access are dynamic in nature — for example, delays to expansions or the retardation of technological development. It may be possible to annualise some of these costs, but leaving aside the difficulty involved, there remain many dynamic costs which are incapable of being quantified. [845] The third reason is that, in this case, the social costs which the incumbents urge should be taken into account are, speaking rather loosely, the cost of the diseconomies and the inefficiencies that are said would result from access, those costs being largely in the form of lost production associated with activities in a downstream market. In the Tribunal’s view, this confuses the cost of production of the service with the cost of providing access. The diseconomy and inefficiency costs, if they are incurred, are only incurred because of the incumbent’s participation in a downstream market. But that is just an historical accident. In [page 268] other cases, the incumbent owner may have no involvement in a dependent market. It could hardly be supposed that whether or not a facility displays natural monopoly characteristics depends upon whether or not the owner is engaged in a particular trade. [846] It should be stressed that just because a natural monopoly test does not take into account social costs does not mean that those costs are irrelevant. The costs are clearly relevant to criterion (f) and, perhaps, as discretionary factors. It is just that they are not relevant to criterion (b).

To determine whether a facility is a natural monopoly, it is necessary, first, to determine the reasonably foreseeable potential demand for the facility (strictly the service provided by the facility), and then compare the capital and operating costs of a shared facility to the sum of the capital and operating costs of an existing facility (or an expanded existing facility) and a new facility: Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [855] per Finkelstein J, Mr Grant Latta and Prof David Round. In Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2011) 193 FCR 57; 277 ALR 282; [2011] FCAFC 58; BC201102737 at [75]–[88] and [99]–[100]; Keane CJ, Mansfield and Middleton JJ said: [75] It is the legislation which was actually passed which strikes the authoritative balance between the competing views championed by the economists of different schools. Too much should not be made of references in the extraneous materials referred to above about the phrase “essential facilities”, or in the economic literature, to “bottlenecks”. In Boral Besser Masonry Ltd (now Boral Masonry Ltd) v ACCC (2003) 215 CLR 374; [2003] HCA 5 at [123], [126], [167]–[184], and [268]– [282], the High Court warned against allowing vivid phraseology derived from the jurisprudence of other countries with different statutory regimes to “take on a life of its own, independent of the statute, and distract attention from the language of the Act itself.” That having been said, the extraneous materials to which we have referred do shed some light on the thinking which informs the legislation; but it is the text of s 44H(4)(b) which is decisive. The crucial phrase in s 44H(4)(b) is “not economical for anyone to develop another facility”.

[76] The Parliament chose to frame criterion (b), so that it directed attention, not to whether the NCC or the Minister or the Tribunal judged that it would be “economically efficient” from the perspective of society as a whole for another facility to be developed to provide the service, but whether “it would be uneconomical for anyone” to do so. The perspective of this phrase is that of a participant in the market place who might be expected to choose to develop another facility in that person’s own economic interests. It is at this point that we are constrained by the statutory text to part company with the Tribunal. [77] In Sydney Airport (No 2) at [36] the Full Court of this Court warned against unduly complicating the con-ceptual framework of Pt IIIA. The provisions of s 44H(4) takes, as it finds it, the market place and asks whether there is anyone who might economically develop another facility to provide the service. It is tolerably clear that the phrase “uneconomical for anyone” is a criterion based on the facts of the market place as to what is economically feasible for a participant in the market place to achieve, rather than a criterion based on evaluation by a regulator of what is economically efficient from the perspective of the community as a whole. [78] In this case the Tribunal, in the course of its consideration of Rio Tinto’s argument based on the combination of s 44H(4) and cl 6(1)(a) of the Competition Principles Agreement, acknowledged at [831] that “perhaps the most natural reading of the phrase “economically feasible” connotes private profitability”. The Tribunal went on to say, however, that “. . . it is not too strained to read “economically feasible” as economically efficient, in the sense that something that is inefficient may be economically unfeasible when looked at from society’s perspective”. [page 269] [79] In our respectful opinion, it is indeed to strain too far to treat “economically feasible” as “economically efficient”. The “perspective” of s 44H(4)(b) is not that of “society as a whole”; it is that of participants in the market place. “Economic efficiency” may involve an evaluation of efficiency “from society’s perspective”; but it is quite inconsistent with the text of Pt IIIA to lower the bar to access erected by criterion (b) to regard it as dependent on a regulator’s evaluation of efficiency from the perspective of society as a whole rather than the fact of economic feasibility on the part of a participant in the market place. [80] As we have noted, the adoption by the Tribunal of the natural monopoly test in relation to criterion (b) was something of a departure from the test adopted by the Tribunal in previous cases in which a “net social benefit” test was applied. Thus, in Re Duke Eastern Gas Pipeline Pty Ltd [2001] ACompT 2 (Re Duke Eastern), the Tribunal in that case said at [64]: [I]f a single [facility] can meet market demand at less cost (after taking into account productive allocative and dynamic effects) than two or more [facilities], it would be “uneconomic”, in terms of criterion (b), to develop another [facility] to provide the same services. [81] In Re Duke Eastern, the Tribunal further concluded, agreeing with the submissions of the NCC, (at [137]) that: [The] test is whether for a likely range of reasonably foreseeable demand for the services provided by means of the [facility], it would be more efficient, in terms of costs and benefits to the community as a whole, for one [facility] to provide those services rather than more than one. [82] In Re Sydney International Airport [2000] ACompT 1 (Sydney Airports (No 1)), the Tribunal also applied a “net social benefit test” in its consideration of criterion (b) although, in that case, it was not necessary for the Tribunal to choose between that test and the private profitability test.

There the Tribunal construed criterion (b) in a broader social cost-benefit sense, in which the total costs and benefits of constructing another facility were taken into account. In Sydney Airports (No 1), the Tribunal said at [204]–[206]: In the circumstances of this mater, our conclusion that it would be uneconomical for anyone to develop another facility remains true whether “uneconomical” is construed in a private or social cost benefit sense, a matter of contention between the expert witnesses. As with the definition of “anyone”, declaration does not turn on this issue. The Tribunal considers, however, that the uneconomical to develop test should be construed in terms of the associated costs and benefits of development for society as a whole. Such an interpretation is consistent with the underlying intent of the legislation, as expressed in the second reading speech of the Competition Policy Reform Bill 1995, which is directed to securing access to “certain essential facilities of national significance”. This language and these concepts are repeated in the statue. This language does not suggest that the intention is only to consider a narrow accounting view of “uneconomic” or simply issues of profitability. The issue whether uneconomical is to be construed in a private or social cost benefit sense is closely connected to the question of whether “anyone” should include the owner of the facility providing the service to which access is sought. If “uneconomical” is interpreted in a private sense then the practical effect would often be to frustrate the underlying intent of the Act. This is because economies of scope may allow an incumbent, seeking to deny access to a potential entrant, to develop another facility while raising an insuperable barrier to entry to new players (a defining feature of a bottleneck). The use of the calculus of social cost benefit, however, ameliorates this problem by ensuring the total costs and benefits of [page 270] developing another facility are brought to account. This view is given added weight by Professor Williams’s [sic] evidence of the perverse impact, in terms of efficient resource allocation, of adopting the narrow view. The Tribunal is affirmatively satisfied for the purposes of s 44H(4)(b) that it would be uneconomical for anyone to develop another facility to provide the services declared by the Minister. [83] There are a number of points to be made in relation to this passage from Sydney Airports (No 1). First, as to whether “anyone” in s 44H(4)(b) should include the incumbent owner of the facility to which access is sought, we prefer the view reached by the Tribunal itself in Sydney Airports (No 1) at [201] that “anyone” does not include the incumbent owner, that being “more consistent with the underlying policy of Pt IIIA and economic and commercial commonsense” [emphasis added]. On this view the problem identified by the Tribunal in Sydney Airports (No 1) at [205] with the private profitability test does not arise. Secondly, that the “narrow view” will not apply to resource allocation in every imaginable case does not mean that the “narrow view” is so unreasonable that it cannot be attributed to the legislature. Reference to the contextual documents to which we have referred above shows that at least some of those responsible for propounding Pt IIIA were indeed concerned with facilities which “a competitor could not duplicate economically”. Thirdly, the circumstance that the Tribunal in this case was disposed to depart from the full-blown “social benefits” test serves to dispel any inclination which this Court might otherwise have had, by reason of the importance of “consistency” referred to in s 44AA(b), to adhere to an interpretation of s 44H(4)(b) settled by the course of decisions in the Tribunal. [84] The Tribunal was influenced by the consideration reflected in the evidence of some economists

that to give the phrase “uneconomical for anyone” its natural meaning of “any individual who can be identified” would be to countenance the possibility that an individual might be willing to subsidise the cost of developing another facility by subsidising the cost of that development from the profits of the sales of iron ore rather than sole reliance on the profits of providing the service (Reasons [833]). That argument may commend itself to some (though not all) economists; but nothing in the language of s 44H(4) or the extraneous materials to which we have referred suggests that the legislature regarded that possibility as one which was not to be countenanced. [85] In so far as the natural monopoly test applied by the Tribunal, or the net social benefits test applied by the Tribunal in earlier cases, depends on the making of an evaluative judgment about efficiency in terms of costs and benefits, that approach is inconsistent with the intention evident from the text and context of Pt IIIA that access should not be available merely because it would be convenient to some parties, or indeed to society, according to the evaluation of a regulator. [86] The narrow test propounded by Rio Tinto has the attraction of being easier to apply than the alternative. The difficulties in identifying an individual who might profitably build the line are of a different order of concern from the evaluation of relative productive efficiency. Whether “anyone” can be identified for whom the development of an alternative facility is economically feasible is a matter of looking at the facts of the market place. If an examination of the facts shows that there is such a person, whoever that might be, and whatever that person’s circumstances, then regulatory interference in the interplay of market forces is not warranted, even if the regulator might make an evaluation that access would be a convenient course by which to achieve effective competition in another market. [87] It may be objected that this is to insist upon the dictates of an economic rationalism which allow too little scope for officials charged with the protection of the public interest to make judgments in that regard. In our respectful opinion, that objection fails to recognise the philosophy which informs the enactment of Pt IIIA, and the philosophy reflected in the [page 271] provisions of s 44H, which makes the granting of access to override the otherwise legitimate interests of incumbent owners a distinctly exceptional occurrence which is simply not justified by an evaluation by a regulator that economic efficiency from the point of view of society as a whole would be served by a declaration of access. If the intention of the legislature had been to establish such a regime, it could have been expected to express its intentions in very different terms. [88] The Tribunal at [835] rejected the test proposed by Rio Tinto on the basis that test “is inconsistent with the enacting history and does not adequately meet the objectives of Part IIIA”. In our respectful opinion, the “enacting history” supports the adoption of the test proposed by Rio Tinto. And to the “objectives of the Act”, it was not suggested that the introduction of s 44AA altered the meaning of s 44H(4)(b). [99] In summary on this point, we are unable to discern in Pt IIIA of the Act an intention that a person who is, as the Tribunal found here, able economically to develop its own facility to provide the service should be able to cross the criterion (b) threshold to access to a competitor’s facility merely by showing that it would accord with a regulator’s evaluation of productive efficiency. It may be accepted that one of the objects of Pt IIIA is the promotion of productive efficiency, but Pt IIIA strikes the authoritative balance between the promotion of competition and economic efficiency and the “legitimate interests” of incumbent owners of facilities. [100] In our opinion, the intention of the legislature was that, if it is economically feasible for someone in the market place to develop an alternative to the facility in dispute, then criterion (b)

will not be satisfied. In such a case, there is no problem in the market place that participants in the market place cannot be expected to solve. This might occasion some wastage of society’s resources in some cases, but to say that, is to say no more than that the intention of the Parliament to promote economic efficiency did not trump the competing considerations at play in the compromise embodied in s 44H(4)(b) of the Act.

On appeal, the High Court said that the better view of criterion (b) is that it uses the word “uneconomical” to mean “unprofitable”. It does not use that word in some specialist sense that would be used by an economist: The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 at [77] per French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ; Heydon J dissenting on this point at [160]. Further the majority said that, criterion (b) is to be read as requiring the decision maker to be satisfied that there is not anyone for whom it would be profitable to develop another facility. It is not to be read as requiring the testing of an abstract hypothesis: if someone, anyone, were to develop another facility. When used in criterion (b) “anyone” should be read as a wholly general reference that requires the decision maker to be satisfied that there is no one, whether in the market or able to enter the market for supplying the relevant service, who would find it economical (in the sense of profitable) to develop another facility to provide that service: The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 at [77] per French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ. A consequence of this view is that there may be cases where there would be a duplication of a natural monopoly. As the majority said at [102]–[103]: But duplication would occur only if it were profitable for another to develop an alternative facility to provide the service (despite the fact that total market output could be supplied at lowest cost by one facility). It would be profitable for another to develop an alternative facility if the new facility is more efficient than the existing facility, for example, because of some form of cost or technological advantage. And if the new facility is not more efficient than the existing [page 272] facility, it is to be doubted that development of the new facility in competition with a natural monopoly would be profitable. Especially would that be so where, as here, the capital costs of establishing the new facility would necessarily be very large. . . . By contrast, if criterion (b) is read as a natural monopoly test, a facility that is not a natural monopoly cannot be declared even if there is no (profit) incentive to duplicate it. In that case, the sole supplier would be left in control of the field with the attendant risks of abuse of market power and, no less importantly, with no incentive to price and produce efficiently. An outcome of that kind

does not sit easily with the requirement that criterion (b) be understood in a way that will “promote the economically efficient operation of, use of and investment in the infrastructure by which services are provided, thereby promoting effective competition in upstream and downstream markets” The Tribunal was wrong to conclude, as it did, that adoption of a privately profitable test of the kind being considered by the Tribunal would not adequately meet those objectives. A privately profitable test serves those objectives better than a natural monopoly test.

Following the High Court’s decision the matter was again considered by the Tribunal in Re Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2; BC201300428 per Mansfield J, Mr R Shogren and Mr R Steinwall. The Tribunal considered it did not have sufficient material before it to satisfy it that it would be uneconomical for anyone to develop an alternative facility to provide the service. The Tribunal set aside the declarations of the Minister made on 27 October 2008: Re Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2; BC201300428 at [124] per Mansfield J, Mr R Shogren and Mr R Steinwall. Another facility In Re Duke Eastern Gas Pipeline Pty Ltd (2001) 162 FLR 1; (2001) ATPR ¶41-821; [2001] ACompT 2 the tribunal (Hely J, Dr M J Messenger and Ms M M Starrs) considered an equivalent criterion under s 1.19(b) National Third Party Access Code for Natural Gas Pipeline Systems. Section 1.19(b) provided that “it would be uneconomic for anyone to develop another Pipeline to provide the Services provided by means of the Pipeline.” The tribunal said that there is no logic in excluding existing pipelines from consideration in determining whether this criterion is satisfied: at [57]. Application of criterion For the application of the criterion see [10,650G.10]. [10,650G.20] National significance Before making a declaration the council must be satisfied that the facility is of national significance. This criterion would therefore exclude a number of smaller facilities within a state which might otherwise satisfy the remaining criteria for an access declaration. The use of the word “or” in para (c) means that the criterion will be met as long as the facilities are regarded as being of national significance against any one of the measures — its size, importance to trade and commerce or importance to the national economy: Application by Services Sydney Pty Ltd (2005) 227 ALR 140; [2005] ACompT 7 at [180] per Gyles J, Mr B Keane

and Dr J Walker. Application of criterion For the application of the criterion see [10,650G.10]. [10,650G.25] Health and safety The granting of access may raise technical and safety issues which need to be considered by the council. These considerations may arise for example in the areas of electricity. Paragraph (d) does not refer to “increased access”. However it does not follow that simply because access to the service is being provided that it must follow that it is being provided without undue risk to human health or safety. This requirement must still be established: Re Review of Freight Handling Services at Sydney International Airport (2000) ATPR ¶41-754 at 40,794; [2000] ACompT 1. [page 273] The criterion was repealed on the passage of the Trade Practices Amendment (Infrastructure Access) Act 2010. Application of criterion For the application of the criterion see [10,650G.10]. [10,650G.30] Effective access regime Under the Competition Principles Agreement a state or territory may establish its own access regime or regimes to deal with access to facilities within its boundaries. If these regimes are “effective access regimes” they will apply to the facility. To be an effective access regime it must comply with the relevant principles in cl 6 of the Competition Principles Agreement: see Re Review of Freight Handling Services at Sydney International Airport (2000) ATPR ¶41-754; [2000] ACompT 1 at [217]; Re Virgin Blue Airlines Pty Ltd [2005] ACompT 5 at [82] per Goldberg J, Mr G F Latta and Dr J S Marsden. State or territory regimes need not be established by legislation and may, for example, be established by administrative protocols. See [10,650M]. Application of criterion For the application of the criterion see

[10,650G.10]. [10,650G.35] Public interest There is no guidance in the Act on the application of this criterion. In The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 at [42] per French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ said: It is well established that, when used in a statute, the expression “public interest” imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is “neither arbitrary nor completely unlimited” but is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”. It follows that the range of matters to which the NCC and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office.

In Re Duke Eastern Gas Pipeline Pty Ltd (2001) 162 FLR 1; (2001) ATPR ¶41-821; [2001] ACompT 2 at [145] the tribunal comprising of Hely J, Dr M J Messenger and Ms M M Starrs (considering the equivalent criterion under the National Third Party Access Code for Natural Gas Pipeline Systems) said that this is not an additional positive requirement which can be used to call into question the result obtained from the application of the other criteria. Rather, this criterion accepts the results derived from the application of the other criteria but inquires whether there are any other matters that lead to the conclusion that declaration (or in this case coverage, under the National Code) would be contrary to the public interest. See Re Review of Freight Handling Services at Sydney International Airport (2000) ATPR ¶41-754; [2000] ACompT 1 at [223]; Re Virgin Blue Airlines Pty Ltd [2005] ACompT 5 at [611] per Goldberg J, Mr G F Latta and Dr J S Marsden; Application by Services Sydney Pty Ltd (2005) 227 ALR 140; [2005] ACompT 7 at [192] per Gyles J, Mr B Keane and Dr J Walker. In Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [1161]–[1174], Finkelstein J, Mr Grant Latta and Prof David Round said:

[page 274] [1161] The TPA provides no definition of the expression “public interest”. Dr Fitzgerald says that what must be considered is the welfare, particularly the economic welfare, of the Australian community as a whole. This is in line with the views of the NCC. Professor Fels put it that the Tribunal should consider whether the costs of access do not outweigh the benefits, though it must be borne in mind that, apart from the fact that the assessment may at best be robust, the object is to achieve not a state of perfection but a better outcome. We are in broad agreement with these views, but with one important qualification. On close analysis it may be that access will be manifestly unjust to a section of the community while, at the same time, benefiting the community as a whole. In that circumstance access may nevertheless be contrary to the public interest. [1162] In the past the Tribunal has emphasised that criterion (f) should not be used to call into question the results obtained by the application of the earlier criteria. Rather, criterion (f) is concerned with other considerations, not caught by earlier criteria, which bear upon the public interest: see eg Virgin Blue at [587]–[588]. While the results of earlier criteria cannot be questioned, they are not to be ignored. The satisfaction of criteria (a) and (b) indicates that benefits will occur from access. Those benefits, and other benefits not considered under earlier criteria, as well as the costs of access, must be taken into account under criterion (f). [1163] The Tribunal also has a discretion whether or not to declare a service. In the past the Tribunal has said that, in light of the detailed considerations required to be undertaken to determine whether the statutory criteria have been satisfied, the discretion is extremely limited. This is not consistent with Sydney Airport (No 2). There the Full Court observed the discretion “may be affected by a wide range of considerations of a commercial, economic or other character not squarely raised by, nor falling within, the necessary preconditions in s 44H(4)”: 155 FCR at 137. That is to say, the discretion is a very broad one. [1164] The relationship between criterion (f) and the discretion is important. Criterion (f) requires the Tribunal to consider whether “access” is contrary to the public interest. The NCC points out that if the Full Court’s decision in Sydney Airport (No 2) applies to this criterion (and it suggests that, for consistency of approach, it must apply), the only issue to be considered is the impact on public welfare of the mere fact that a third party has access to the service on reasonable terms and conditions. The NCC says (and no party disagrees) that it is necessary for there to be a more detailed inquiry to appreciate the effect on public welfare of both a declaration and access under Pt IIIA, but that inquiry is only relevant to the Tribunal’s discretion. [1165] It is, we think, impossible to disagree with the NCC. The result, however, is problematic. Mere access to the service may, in theory, have some consequences, albeit their measurement is impossible. In the real world many consequences will only arise if access is actually taken up. And the nature and extent of those consequences will depend upon the extent to which access is taken up. Moreover, whether, and the extent to which, access is taken up will be a reflection of the terms upon which access is obtained. [1166] The Sydney Airport (No 2) approach does not permit a detailed consideration of the likely terms of access that might be imposed under Pt IIIA. It does allow for the assumption that access will be on reasonable terms. So, we will apply the Sydney Airport (No 2) approach to criterion (f) by making some broad assumptions about the nature of access “on reasonable terms and conditions”. Issues of substitutability may also be taken into account. We will also take into account the effect of access being taken up: see Ch 17.4.3. Issues which arise because of the specific operation of Pt IIIA will be considered under the discretion. [1167] Our approach could have this consequence. There may be a finding that access simpliciter is

in the public interest (or, more correctly, that access is not contrary to the public [page 275] interest), but taking into account the effects of both a declaration and access under Pt IIIA, a different conclusion might be reached. The limitations of the Sydney Airport (No 2) approach highlight the importance of the discretion to withhold making a declaration if, in the Tribunal’s opinion, a declaration is not in the community’s best interests. Indeed, this is consistent with the Full Federal Court’s view about the wide scope of the discretion. [1168] The factors which the Tribunal proposes to take into account will not be confined to strict cost-benefit issues. The Tribunal will also have regard to broader issues concerning social welfare and equity, and the interests of consumers. Where possible the Tribunal will distinguish between criterion (f) issues and discretionary factors, although the distinction is not always easy to draw. [1169] While many factors for and against a declaration and access will be discussed, their impact will, in most cases, be difficult, if not impossible, to quantify. A good example is dynamic efficiency considerations which involve speculation about the future path of technology in the iron ore industry or rail industry. In part the difficulty of quantification arises because many of the alleged costs and benefits of access are esoteric or qualitative in nature. Another reason is that many of the alleged costs and benefits depend upon the occurrence of future events which are necessarily uncertain. Hence, the cost-benefit analysis that the Tribunal performs will not be purely quantitative, and will have significant qualitative aspects. [1170] In weighing up the costs and benefits, and in the exercise of its discretion, the Tribunal will keep in mind that Pt IIIA was intended by the Hilmer Committee to protect “the legitimate interests of the owner of the facility”: Hilmer Report at 252. Thus, Pt IIIA specifically protects the incumbent’s reasonably anticipated requirements for the facility (s 44W(1)(a)) and requires the ACCC during an access arbitration to take into account the legitimate business interests of the provider (s 44X(1)(a)). Clause 4(i)(ii) of the Competition Principles Agreement also requires the ACCC to take into account the costs to the owner of providing access other than costs associated with losses arising from increased competition in upstream or downstream markets. But when giving consideration to the owner’s interests, it is necessary to distinguish between its legitimate interests and other, potentially anti-competitive, interests. [1171] This brings us to a point already mentioned in these reasons, namely, what issues may properly be taken into account at the declaration stage of the two-stage process. FMG and the NCC suggest that many of the alleged costs raised by the incumbents should only be considered at stage two, the negotiation (and if necessary) arbitration of an access dispute. There are two premises underlying this suggestion. The first is that Pt IIIA makes provision for the protection of the incumbent’s legitimate business interests so it cannot be assumed that those interests will be prejudiced as a result of access. The second premise is that whether there is a factual basis for many of the incumbents’ concerns will only become apparent at stage two. This is for the reason that the impact of access on the incumbent’s operations will depend on the nature and extent of the access sought. Thus, according to the NCC, it is necessary to distinguish between those costs caused by access per se and those caused by the type of access sought at stage two. The NCC does not, however, make clear what costs, if any, are relevant to criterion (f) under this approach. [1172] We think that the approach suggested by FMG and the NCC gives too limited a role to the decision-maker at the declaration stage. It is true that, when it comes to the kind of access which might be sought in the event of a declaration, nothing is certain. But criterion (f) requires the Tribunal to consider the consequences of access (even if only in the narrow sense described in

Sydney Airport (No 2)). This necessarily involves some speculation. In any event, there will be some consequences which, while not certain, are likely to occur. It is inappropriate to [page 276] simply ignore those consequences. The better view, we think, is that the Tribunal should consider consequences that are likely to arise as a result of access, giving them a weight that pays regard to their degree of likelihood. [1173] As regards the proposition that Pt IIIA provides some protection for the legitimate interests of the incumbent, the Tribunal makes two observations. First, there may be costs which will be borne by an access seeker in order to protect the incumbent’s legitimate interests. That the incumbent does not bear those costs does not make them irrelevant to the declaration decision. We are, after all, concerned with costs from society’s perspective. The second observation is that Pt IIIA does not provide the incumbent with certainty that its legitimate business interests will be protected: see generally Ch 10. We think this is relevant both to the public interest criterion and to discretion. [1174] The final introductory comment we wish to make is that, as regards criterion (f) and the discretion, the Tribunal considers that its role at the declaration stage is to be concerned with the “big picture”. At stage two the minutiae of terms of access will be dealt with. When considering the public interest and exercising its discretion at the declaration stage, the Tribunal is, to a significant extent, concerned with broad issues of policy that are unlikely to be dealt with at stage two.

In Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2011) 193 FCR 57; 277 ALR 282; [2011] FCAFC 58; BC201102737 at [107]–[117] Keane CJ, Mansfield and Middleton JJ said: [107] Mr Beach also submitted that the Tribunal’s error in its approach to the application of criterion (f) was compounded by the Tribunal’s taking into account, for the purposes of criterion (f), costs which are inherent in the processes contemplated by Pt IIIA, such as the costs of arbitration at Stage 2 and predictions as to costs which, if they are ultimately incurred, inevitably fall to be taken into account in the processes of negotiation and arbitration by the ACCC in relation to the terms on which access should be granted, if at all, to particular third parties. [108] In our respectful opinion, Mr Beach’s arguments should be rejected. It is apparent from the Tribunal’s reasons that the costs which it took into account under criterion (f) would have been taken into account under criterion (b) if the net social benefit approach to criterion (b) had been applied by the Tribunal. Whether or not these costs fall for consideration in relation to criterion (b) or criterion (f), it cannot be right to say that these costs should be ignored altogether. To say that is to assert the irrelevance of the legitimate interests of the incumbent provider and the public interest in productive and allocative efficiency. That assertion does not conform to the legislation’s intention. [109] Mr Beach’s argument that criterion (f) is confined in its scope by the other criteria in s 44H(4) and by the provisions which govern the second stage of the Pt IIIA process, does not sit comfortably with the text of s 44H (which is unqualified by reference to the provisions relating to the second stage of the Part IIIA process) or with the observations of the Full Court of this Court in Sydney Airport (No 2) at [39]: The construction and interpretation of s 44H, and in particular s 44H(4), should not be approached on the basis that it is necessary to find a place for all possible competing arguments about the merits in any given decision about the making of a declaration within the list of

necessary preconditions of satisfaction in s 44H(4). After the considerations in s 44H(2) and (4) are dealt with, the decision to be made whether or not to declare a service may be affected by a wide range of considerations of a commercial, economic or other [page 277] character not squarely raised by, nor falling within, the necessary preconditions in s 44H(4). Of course, any such considerations must not be irrelevant in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24; [1986] HCA 40 at 39-42, in particular having regard to the purposes, text and structure of the Act. [110] Next, Fortescue argued that it was wrong of the Tribunal to speculate as to whether the ACCC might not observe the requirements of s 44X(1)(a) and (b) of the Act that it take into account “the legitimate business interests of the provider” and “the public interest” in making its determination at the second stage of the Pt IIIA process. Fortescue also argues that s 44V(3) enables the ACCC to determine the costs and inefficiencies resulting from delays flowing from access; that being so, it is unnecessary and premature for the Minister or Tribunal to concern itself about such matters at the first stage of the Pt IIIA process. [111] But to say these things is not to demonstrate that the matters addressed by the Tribunal were outside its purview under s 44H(4)(f). It cannot be the case, for example, that a declaration of access must be made by the Tribunal where only a modest improvement in competition in a minor downstream or upstream market is likely to ensue from access at great cost in the way of disruption to an incumbent’s operations in an important market simply because the ACCC can be expected to exercise its power under s 44V(3) to preclude access in order to give effect to s 44X(1)(a). To accept Fortescue’s argument would radically reduce the power and responsibility of the Minister and the Tribunal to reject applications which appear to them plainly to be contrary to the public interest. [112] It may be accepted that, in applying criterion (f), the Tribunal should proceed on the footing that “access” in criterion (f) is access on such reasonable terms and conditions as may be determined in the second stage of the Pt IIIA process. But nothing in the Tribunal’s reasons suggested that it did not proceed in this way: indeed, it expressly said that it did: [1066]. [113] It may also be accepted that the costs of negotiation of the terms of access at the second stage of the Pt IIIA process, including the costs liable to be incurred in any arbitration by the ACCC, are costs which are a necessary part of the Pt IIIA process. But to say that is not to demonstrate that the likelihood that such costs will be incurred at the second stage of the process is irrelevant to the question whether an incumbent owner should be exposed to those costs by the making of a declaration. It is difficult to see why the avoidance of the expense of what is likely to be a futility is not a good reason for exercising the discretion against making a declaration. Similarly, it is not irrelevant to the decision to open the way to the second stage of the Pt IIIA process that no sufficient case for access is shown to warrant putting an incumbent owner to the futile expense of the second stage of the process. [114] It may well be that, as Mr Beach says, the resolution of issues as to the costs and benefits of access can be more precisely informed at the second stage of the Pt IIIA process. Section 44V(3) authorises the ACCC to make a determination to refuse access where that is considered by the ACCC to be the proper course. These considerations do not, however, afford a sound basis for concluding that the terms of s 44H are not, or ought not to be, applied according to their terms but are instead to be read down in a way which is unstated in the legislation. It is also an unattractive aspect of this argument that, if accepted, it would diminish the responsibility of the Minister to make a decision as to whether access would be in the public interest in a broad national perspective.

[115] Nothing in the language of Pt IIIA of the Act is apt to convey the intention that the decision making required of the Minister and the Tribunal in stage one should be somehow constrained or limited by the consideration that if a declaration is made, it may fall to the ACCC to consider the same or similar issues in stage two. [116] The Minister and the ACCC may be obliged to consider the same evidence in relation to similar issues; but the perspective of each decision-maker will be different. Under criterion (f), the Minister may take into account the possibility that a material improvement in competition [page 278] in a dependent market does not outweigh, in terms of the public interest, the likelihood of a countervailing cost to the Australian interest of the making of a declaration in terms of, for example, the national economy, security, or the environment. [117] For these reasons, we respectfully concur with the Tribunal that the correct approach to the application of criterion (f) is that stated in para [1172] of the Tribunal’s reasons set out above. On that interpretation of s 44H(4)(f) it was open to the Tribunal to reach the conclusion that criterion (f) was not satisfied in relation to the Hamersley service and was satisfied only until 2018 in relation to the Robe service.

On appeal the High court found that Tribunal and the Full Court were wrong to proceed on the footing that there was a residual discretion to be exercised under criterion (f): The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 at [119] per French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ; Heydon J at [193]. Following the High Court’s decision the matter was again considered by the Tribunal in Re Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2; BC201300428 per Mansfield J, Mr R Shogren and Mr R Steinwall. The Tribunal considered it did not have sufficient material before it to satisfy it that it would be uneconomical for anyone to develop an alternative facility to provide the service. The Tribunal set aside the declarations of the Minister made on 27 October 2008: Re Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2; BC201300428 at [124] per Mansfield J, Mr R Shogren and Mr R Steinwall. In Re Application by Glencore Coal Pty Ltd [2016] ACompT 6; BC201604469 at [169] Mansfield J, Mr RF Shogren and Mr R Steinwall noted the comments of the High Court in Pilbara (above) that the Tribunal should not lightly depart from a ministerial conclusion about whether access or increased access would not be in the public interest.

Application of criterion For the application of the criterion see [10,650G.10]. [10,650G.40] Capacity of the facility Although this is not an express factor in s 44G in deciding whether to make a declaration, it is necessary (because of s 44W(1)(a)) to consider whether the facility has spare capacity for third party use. If there is no spare capacity for third party use, then unless the facility can be expanded, a declaration would be futile: Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [608] per Finkelstein J, Mr Grant Latta and Prof David Round. See [10,650W.15]. [10,650G.45] Guidelines The council has published a guide entitled “Declaration of Services: A guide to Declaration under Part IIIA of the Competition and Consumer Act 2010”, February 2013. ____________________

[10,650GA] Time limit for Council recommendations 44GA (1) Council to make recommendation within the consideration period The Council must make a recommendation on an application under section 44F within the consideration period. (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, unless the consideration period is extended under subsection (7). [page 279] (3) Stopping the clock In working out the expected period in relation to a recommendation on an application under section 44F, in a situation referred to in column 1 of an item of the following table, disregard any day in a period: (a) starting on the day referred to in column 2 of the item; and (b) ending on the day referred to in column 3 of the item.

(4) Despite subsection (3): (a) do not disregard any day more than once; and (b) the total period that is disregarded under that subsection must not exceed 60 days. (5) Stopping the clock by agreement The Council, the applicant and the provider of the service (if the provider is not the applicant) may agree in writing that a specified period is to be disregarded in working out the expected period. (6) The Council must publish, by electronic or other means, the agreement. (7) Council may extend time for making recommendation If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period. (8) The notice must: (a) specify when the Council must now make a recommendation on the application; and (b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period. (9) The Council must give a copy of the notice to: (a) the applicant; and (b) if the applicant is not the provider of the service — the provider. (10) Publication If the Council extends the consideration period under subsection (7), it must publish a notice in a national newspaper: (a) stating that it has done so; and (b) specifying the day by which it must now make a recommendation on the application.

(11) Failure to comply with time limit does not affect validity Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section. [s 44GA subst Act 102 of 2010 s 3 and Sch 1[5], opn 14 July 2010]

[page 280] SECTION 44GA GENERALLY [10,650GA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. The section imposes a target time limit on the council’s assessment of a declaration application. ____________________

[10,650GB] Council may invite public submissions on the application 44GB (1) Invitation The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44F if it considers that it is appropriate and practicable to do so. (2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published). (3) Consideration of submissions Subject to subsection (6), in deciding what recommendation to make on the application, the Council: (a) must have regard to any submission made on or before the day specified in the notice; and (b) may disregard any submission made after the day specified in the notice. [subs (3) subst Act 102 of 2010 s 3 and Sch 1[6], opn 14 July 2010]

(4) Council may make submissions publicly available The Council may make any written submission, or a written record (which may be a summary)

of any oral submission, publicly available. (5) Confidentiality A person may, at the time of making a submission, request that the Council: (a) not make the whole or a part of the submission available under subsection (4); and (b) not publish or make available the whole or a part of the submission under section 44GC; because of the confidential commercial information contained in the submission. (6) If the Council refuses such a request: (a) for a written submission — the Council must, if the person who made it so requires, return the whole or the part of it to the person; and (b) for an oral submission — the person who made it may inform the Council that the person withdraws the whole or the part of it; and (c) if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not: (i) make the whole or the part of the submission available under subsection (4); and (ii) publish or make available the whole or the part of the submission under section 44GC; and (iii) have regard to the whole or the part of the submission in making its recommendation on the application. [s 44GB insrt Act 92 of 2006 s 3 and Sch 1[18], opn 1 Oct 2006]

[page 281] SECTION 44GB GENERALLY [10,650GB.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. The section permits the council to seek public submissions on an

application for declaration. The council must have regard to any submissions that it receives in making its recommendation. ____________________

[10,650GC] Council must publish its recommendation 44GC (1) The Council must publish, by electronic or other means, a recommendation under section 44F and its reasons for the recommendation. (2) The Council must give a copy of the publication to: (a) the applicant under section 44F; and (b) if the applicant is not the provider of the service — the provider. (3) Timing The Council must do the things under subsections (1) and (2) on the day the designated Minister publishes his or her decision on the recommendation or as soon as practicable after that day. (4) Consultation Before publishing under subsection (1), the Council may give any one or more of the following persons: (a) the applicant under section 44F; (b) if the applicant is not the provider of the service — the provider; (c) any other person the Council considers appropriate; a notice in writing: (d) specifying what the Council is proposing to publish; and (e) inviting the person to make a written submission to the Council within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature. (5) The Council must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant. [s 44GC insrt Act 92 of 2006 s 3 and Sch 1[18], opn 1 Oct 2006]

SECTION 44GC GENERALLY [10,650GC.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5].

Prior to the amendment there was no requirement on the council to publish its decision at the time of its recommendation to the minister, or at all. Typically, its recommendation was made to the relevant minister who would determine whether to accept or reject the recommendation. Even when that decision was made (or deemed to be made by passage of time), there was no requirement to publish the council’s recommendation. This section requires the council to publish its recommendation and the reasons for its recommendation. Those reasons may assist parties decide whether there are grounds to seek a review by the tribunal or judicial review by the courts. ____________________ [page 282] Subdivision B — Declaration by the designated Minister

[10,650H] service

Designated Minister may declare a

44H (1) On receiving a declaration recommendation, the designated Minister must either declare the service or decide not to declare it. Note: The designated Minister must publish his or her decision: see section 44HA. [subs (1) am Act 92 of 2006 s 3 and Sch 1[19], opn 1 Oct 2006]

(1A) The designated Minister must have regard to the objects of this Part in making his or her decision. [subs (1A) insrt Act 92 of 2006 s 3 and Sch 1[20], opn 1 Oct 2006]

(2) In deciding whether to declare the service or not, the designated Minister must consider whether it would be economical for anyone to develop another facility that could provide part of the service. This subsection does not limit the grounds on which the designated Minister may make a decision whether to declare the service or not. (3) The designated Minister cannot declare a service that is the subject of an access undertaking in operation under Division 6.

[subs (3) am Act 92 of 2006 s 3 and Sch 1[21], opn 1 Oct 2006]

(3A) While a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of a facility, as a competitive tender process, the designated Minister cannot declare any service provided by means of the facility that was specified under paragraph 44PA(2)(a). [subs (3A) insrt Act 92 of 2006 s 3 and Sch 1[22], opn 1 Oct 2006]

(4) The designated Minister cannot declare a service unless he or she is satisfied of all of the following matters: (a) that access (or increased access) to the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service; (b) that it would be uneconomical for anyone to develop another facility to provide the service; (c) that the facility is of national significance, having regard to: (i) the size of the facility; or (ii) the importance of the facility to constitutional trade or commerce; or (iii) the importance of the facility to the national economy; (d) [Repealed] (e) that access to the service: (i) is not already the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB); or (ii) is the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB), but the designated Minister believes that, since the Commonwealth Minister’s decision was published, there have been substantial modifications of the access regime or of the relevant principles set out in the Competition Principles Agreement; [page 283]

(f)

that access (or increased access) to the service would not be contrary to the public interest.

[subs (4) am Act 92 of 2006 s 3 and Sch 1[23], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 5[8], [9], opn 14 July 2010]

(5) [subs (5) rep Act 102 of 2010 s 3 and Sch 5[10], opn 14 July 2010] (6) [subs (6) rep Act 102 of 2010 s 3 and Sch 5[10], opn 14 July 2010] (6A) [subs (6A) rep Act 102 of 2010 s 3 and Sch 5[10], opn 14 July 2010] (6B) The designated Minister cannot declare a service provided by means of a pipeline (within the meaning of a National Gas Law) if: (a) a 15-year no-coverage determination is in force under the National Gas Law in respect of the pipeline; or (b) a price regulation exemption is in force under the National Gas Law in respect of the pipeline. [subs (6B) subst Act 45 of 2007 s 3 and Sch 1[75], opn 1 July 2008]

(6C) The designated Minister cannot declare a service if there is in force a decision of the designated Minister under section 44LG that the service is ineligible to be a declared service. [subs (6C) insrt Act 102 of 2010 s 3 and Sch 2[6], opn 14 July 2010]

(7) [subs (7) rep Act 92 of 2006 s 3 and Sch 1[25], opn 1 Oct 2006] (8) If the designated Minister declares the service, the declaration must specify the expiry date of the declaration. (9) If the designated Minister does not publish under section 44HA his or her decision on the declaration recommendation within 60 days after receiving the declaration recommendation, the designated Minister is taken, at the end of that 60-day period, to have decided not to declare the service and to have published that decision not to declare the service. [subs (9) am Act 92 of 2006 s 3 and Sch 1[26], opn 1 Oct 2006]

SECTION 44H GENERALLY [10,650H.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. This section requires the minister (upon receiving an access recommendation from the council) to decide whether to declare the service.

Refer also to commentary on s 44G. [10,650H.10] Matters for the minister to consider In deciding whether to declare a service the minister must be guided by the matters in s 44H(4): the same matters that guide the council under s 44G. However, the presence of s 44H(2) suggests that the matters the minister is to consider under s 44H(4) are not intended to be an exhaustive list: Sydney Airport Corporation Ltd v Australian Competition Tribunal [2006] FCAFC 146; BC200608356 at [38] per French, Finn and Allsop JJ. After considering s 44H(4), the decision whether to declare a service may be affected by a wide range of considerations of a commercial, economic or other character, not falling squarely within s 44H(4). However, these additional factors must be relevant matters: Sydney Airport Corporation Ltd v Australian Competition Tribunal [2006] FCAFC 146; BC200608356 at [39] per French, Finn and Allsop JJ. [page 284] Even if the minister is satisfied of the matters in s 44H(4), it was said that Minister nevertheless has a residual discretion: Re Review of Freight Handling Services at Sydney International Airport (2000) ATPR ¶41-754; [2000] ACompT 1 at [223]; Re Virgin Blue Airlines Pty Ltd (2005) 195 FLR 242; (2006) ATPR ¶42-092; [2005] ACompT 5 at [611] per Goldberg J, Mr G F Latta and Dr J S Marsden; Application by Services Sydney Pty Ltd (2005) 227 ALR 140; (2006) ATPR ¶42-099; [2005] ACompT 7 at [135] per Gyles J, Mr B Keane and Dr J Walker. That view was rejected by the High Court: The provision does not confer a residual discretion: The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 at [119] per French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ. The Minister, unlike the Tribunal has no express power to request any further information, assistance or report from the Council. The statutory supposition appears to have been that the Minister could and would make a decision on the Council’s recommendation without any need for further information from the Council: The Pilbara Infrastructure Pty Ltd v

Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 at [46] per French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ. ____________________

[10,650HA] Designated Minister must publish his or her decision 44HA (1) The designated Minister must publish, by electronic or other means, his or her decision on a declaration recommendation and his or her reasons for the decision. (2) The designated Minister must give a copy of the publication to: (a) the applicant under section 44F; and (b) if the applicant is not the provider of the service — the provider. (3) Consultation Before publishing under subsection (1), the designated Minister may give any one or more of the following persons: (a) the applicant under section 44F; (b) if the applicant is not the provider of the service — the provider; (c) any other person the designated Minister considers appropriate; a notice in writing: (d) specifying what the designated Minister is proposing to publish; and (e) inviting the person to make a written submission to the designated Minister within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature. (4) The designated Minister must have regard to any submission so made in deciding what to publish. He or she may have regard to any other matter he or she considers relevant. [s 44HA insrt Act 92 of 2006 s 3 and Sch 1[27], opn 1 Oct 2006]

SECTION 44HA GENERALLY [10,650HA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the

recommendations of the Productivity Commission. See [10,650.5]. Prior to the amendment there was no requirement on the minister to consult or to publish reasons for the minister’s decision. Those reasons may assist parties decide whether there are grounds to seek a review by the tribunal or judicial review by the courts. ____________________ [page 285]

[10,650I]

Duration and effect of declaration

44I (1) Subject to this section, a declaration begins to operate at a time specified in the declaration. The time cannot be earlier than 21 days after the declaration is published. (2) If: (a) an application for review of a declaration is made within 21 days after the day the declaration is published; and (b) the Tribunal makes an order under section 44KA staying the operation of the declaration; the declaration does not begin to operate until the order is no longer of effect under subsection 44KA(6) or the Tribunal makes a decision on the review to affirm the declaration, whichever is the earlier. [subs (2) subst Act 102 of 2010 s 3 and Sch 5[11], opn 14 July 2010]

(3) A declaration continues in operation until its expiry date, unless it is earlier revoked. (4) The expiry or revocation of a declaration does not affect: (a) the arbitration of an access dispute that was notified before the expiry or revocation; or (b) the operation or enforcement of any determination made in the arbitration of an access dispute that was notified before the expiry or revocation.

[10,650J]

Revocation of declaration

44J (1) The Council may recommend to the designated Minister that a declaration be revoked. The Council must have regard to the objects of this Part in making its decision. [subs (1) am Act 92 of 2006 s 3 and Sch 1[28], opn 1 Oct 2006]

(2) The Council cannot recommend revocation of a declaration unless it is satisfied that, at the time of the recommendation, subsection 44H(4) would prevent the designated Minister from declaring the service concerned. (3) On receiving a revocation recommendation, the designated Minister must either revoke the declaration or decide not to revoke the declaration. [subs (3) am Act 92 of 2006 s 3 and Sch 1[29], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 1[8], opn 14

July 2010] (3A) The designated Minister must have regard to the objects of this Part in making his or her decision. [subs (3A) insrt Act 92 of 2006 s 3 and Sch 1[30], opn 1 Oct 2006]

(4) The designated Minister must publish the decision to revoke or not to revoke. (5) If the designated Minister decides not to revoke, the designated Minister must give reasons for the decision to the provider of the declared service when the designated Minister publishes the decision. (6) The designated Minister cannot revoke a declaration without receiving a revocation recommendation. (7) If the designated Minister does not publish under subsection (4) his or her decision on the revocation recommendation within the period starting at the start of the [page 286] day the recommendation is received and ending at the end of 60 days after that day, the designated Minister is taken, immediately after the end of that 60-day period: (a) to have made a decision that the declaration be revoked; and (b) to have published that decision in accordance with this section. [subs (7) insrt Act 102 of 2010 s 3 and Sch 1[9], opn 14 July 2010]

SECTION 44J GENERALLY [10,650J.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006 to require the council and the minister to have regard to the objects of the Part in making a recommendation or decision in relation to revocation of a declaration. See [10,650.5]. ____________________

[10,650JA] Target time limits on designated Minister’s revocation decision 44JA

[s 44JA rep Act 102 of 2010 s 3 and Sch 1[10], opn 14 July 2010] SECTION 44JA GENERALLY

[10,650JA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5] The provision imposes target time limits on the minister’s revocation decision. ____________________

[10,650K]

Review of declaration

44K (1) If the designated Minister declares a service, the provider may apply in writing to the Tribunal for review of the declaration. (2) If the designated Minister decides not to declare a service, an application in writing for review of the designated Minister’s decision may be made by the person who applied for the declaration recommendation. (3) An application for review must be made within 21 days after publication of the designated Minister’s decision. (4) The review by the Tribunal is a re-consideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the

Tribunal’s decision on the review (see section 44ZZOA). [subs (4) am Act 92 of 2006 s 3 and Sch 1[32], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 1[11], [12], opn 14 July 2010]

(5) For the purposes of the review, the Tribunal has the same powers as the designated Minister. (6) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review (including for the purposes of deciding whether to make an order under section 44KA). [subs (6) subst and am Act 102 of 2010 s 3 and Sch 1[13], Sch 5[12], opn 14 July 2010]

[page 287] (6A) Without limiting subsection (6), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review. [subs (6A) insrt Act 102 of 2010 s 3 and Sch 1[13], opn 14 July 2010]

(6B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) the provider of the service; and (iii) the person who applied for the declaration recommendation; and (iv) any other person who has been made a party to the proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice. [subs (6B) insrt Act 102 of 2010 s 3 and Sch 1[13], opn 14 July 2010]

(7) If the designated Minister declared the service, the Tribunal may affirm, vary or set aside the declaration. (8) If the designated Minister decided not to declare the service, the Tribunal may either: (a) affirm the designated Minister’s decision; or (b) set aside the designated Minister’s decision and declare the service in question.

(9) A declaration, or varied declaration, made by the Tribunal is to be taken to be a declaration by the designated Minister for all purposes of this Part (except this section). SECTION 44K GENERALLY [10,650K.5] Review by the tribunal The tribunal’s review is a reconsideration of the matter: s 44K(4). It neither permits nor requires a quasi curial trial between the access seeker and the facility provider as adversarial parties, on new and different material, to determine whether a service should be declared. That is not a “review” of the Minister’s decision which was “a reconsideration of the matter”: The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 at [48] per French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ; Heydon J at [130]; Re Application by Glencore Coal Pty Ltd [2016] ACompT 6; BC201604469 at [33] per Mansfield J, Mr RF Shogren and Mr R Steinwall. As a matter of construction, French CJ, Gummow, Hayne, Crennan, Kiefel, Bell J said at [56]: Two points of present relevance are to be made. First, there was and is no textual link between s 44K and its specification of the functions of the Tribunal on review of a declaration or decision not to make a declaration and the provisions of Div 2 of Pt IX dealing with the procedure of and evidence before the Tribunal in “proceedings” as that term is defined in s 102A. BHPB submitted that “proceedings” should be understood in s 102A as embracing any and every “formal process by which a matter is determined by the Tribunal” and as thus including reviews undertaken pursuant to s 44K. Rio Tinto and the NCC made submissions to the same general effect. Reference was made to other provisions of the Act (notably ss 37, 41 and 42(1) and (2)) which it was said contemplated the Tribunal conducting a proceeding in the general sense identified. But if “proceedings” is used in the all-embracing sense put forward by BHPB, it was unnecessary to specify two identified kinds of applications as included in the word. That construction of the Act should not be adopted. There is then no textual link between s 44K and Div 2 of Pt IX. Second, there is an evident contrast to be drawn between the provision made in Div 1 of Pt IX (by s 101(2)) — that the Tribunal’s review of decisions of the kind with which that Division deals “is a re-hearing” — and the provision made by s 44K(4) that “[t]he review by the Tribunal is a re consideration of the matter”.

[page 288] The reference to a “matter” is a reference to the matter which was before the minister and in respect of which the minister had to make a decision:

Application by Fortescue Metals Group Ltd [2006] ACompT 6; BC200606994 at [13] (Fortescue) per Goldberg J. In a case where the Minister has declared a service, the “matter” is “the declaration” made by the Minister. In a case where the Minister decided not to declare a service, the matter is “the designated Minister’s decision” not to make a declaration. In both cases, the identification of the matter turns on what the Minister has done, not what the Council did when it made its declaration recommendation: The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 at [37] per French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ. There is nothing in Pt IIIA to suggest that reviews by the tribunal under s 44K should not be undertaken under the procedures in Div 2 of Pt IX of the Act. Part IIIA is silent as to the procedural and evidentiary provisions that are to apply to reviews under s 44K: Fortescue at [20] per Goldberg J. [10,650K.10] Council to provide assistance to tribunal The tribunal has a general discretion to control and regulate its proceedings under s 103(1) and it may, if it considers it appropriate, require the council to give information and provide assistance under s 44K(6): Re Asia Pacific Transports Pty Ltd (2003) ATPR ¶41-920; [2003] ACompT 1; BC200300927 at [9] per Hely J, Professor D K Round and Mr G F Latta; Re Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2; BC201300428 per Mansfield J, Mr R Shogren and Mr R Steinwall. [10,650K.15] Leave to intervene Section 109 of the Act (applying to authorisations) provides a basis for an application by a party (other than an applicant for declaration or a service provider), to intervene in or participate in a hearing under s 44K: Application by Fortescue Metals Group Ltd [2006] ACompT 6; BC200606994 at [22] (Fortescue) per Goldberg J. An alternative basis for leave to intervene is grounded in s 44H(1) and s 44K(4), (5) of the Act: Fortescue at [23] per Goldberg J. An applicant for leave to intervene or participate under s 109 or s 44K(4) and (5) must, as a minimum, be able to establish some connection with, or interest in, the subject matter of the proceeding which discloses that it is not merely an officious bystander. It is not necessary that an applicant be required to establish that its business interests or business activities or prospects may be detrimentally affected by the subject matter of the

proceedings or its outcome: Fortescue at [35], [43] per Goldberg J. See also [12,175.5]. In Application by Services Sydney Pty Ltd (2005) ATPR ¶42-061; [2005] ACompT 2, Gyles J rejected the application of the Premier of New South Wales (the designated minister under s 44H) to intervene in proceedings brought by the applicant seeking a review of the Premier’s deemed decision not to declare the services sought by the applicant. In Fortescue at [78], Goldberg J granted leave to Rio Tinto to participate in the review of the decision of the minister to not declare the Mount Newmann Rail Facility Service at Port Hedland in Western Australia. ____________________

[10,650KA] declaration

Tribunal may stay operation of

44KA (1) Subject to this section, an application for review of a declaration under subsection 44K(1) does not: (a) affect the operation of the declaration; or (b) prevent the taking of steps in reliance on the declaration. (2) On application by a person who has been made a party to the proceedings for review of a declaration, the Tribunal may: (a) make an order staying, or otherwise affecting the operation or the taking of steps in reliance on, the declaration if the Tribunal considers that: [page 289] (i)

it is desirable to make the order after taking into account the interests of any person who may be affected by the review; and (ii) the order is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review; or (b) make an order varying or revoking an order made under paragraph (a) (including an

order that has previously been varied on one or more occasions under this paragraph). (3) Subject to subsection (4), the Tribunal must not: (a) make an order under subsection (2) unless the Council has been given a reasonable opportunity to make a submission to the Tribunal in relation to the matter; or (b) make an order varying or revoking an order in force under paragraph (2)(a) (including an order that has previously been varied on one or more occasions under paragraph (2)(b)) unless: (i) the Council; and (ii) the person who requested the making of the order under paragraph (2)(a); and (iii) if the order under paragraph (2)(a) has previously been varied by an order or orders under paragraph (2)(b) — the person or persons who requested the making of the lastmentioned order or orders; have been given a reasonable opportunity to make submissions to the Tribunal in relation to the matter. (4) Subsection (3) does not prohibit the Tribunal from making an order without giving to a person referred to in that subsection a reasonable opportunity to make a submission to the Tribunal in relation to a matter if the Tribunal is satisfied that, by reason of the urgency of the case or otherwise, it is not practicable to give that person such an opportunity. (5) If an order is made under subsection (3) without giving the Council a reasonable opportunity to make a submission to the Tribunal in relation to a matter, the order does not come into operation until a notice setting out the terms of the order is given to the Council. (6) An order in force under paragraph (2)(a) (including an order that has previously been varied on one or more occasions under paragraph (2)(b)): (a) is subject to such conditions as are specified in the order; and (b) has effect until: (i) if a period for the operation of the order is specified in the order — the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the

application for review comes into operation; or (ii) if no period is so specified — the decision of the Tribunal on the application for review comes into operation. [s 44KA insrt Act 102 of 2010 s 3 and Sch 5[13], opn 14 July 2010]

[10,650KB] awarded

Tribunal may order costs be

44KB (1) If the Tribunal is satisfied that it is appropriate to do so, the Tribunal may order that a person who has been made a party to proceedings for a review of a [page 290] declaration under section 44K pay all or a specified part of the costs of another person who has been made a party to the proceedings. (2) However, the Tribunal must not make an order requiring the designated Minister to pay some or all of the costs of another party to proceedings unless the Tribunal considers that the designated Minister’s conduct in the proceedings was engaged in without due regard to: (a) the costs that would be incurred by the other party to the proceedings as a result of that conduct; or (b) the time required by the Tribunal to make a decision on the review as a result of that conduct; or (c) the time required by the other party to prepare their case for the purposes of the review as a result of that conduct; or (d) the submissions or arguments made during the proceedings to the Tribunal by the other party or parties to the proceedings or by the Council. (3) If the Tribunal makes an order under subsection (1), it may make further orders that it considers appropriate in relation to the assessment or taxation of the costs. (4) The regulations may make provision for and in relation to fees payable for the assessment or taxation of costs ordered by the Tribunal to be paid.

(5) If a party (the first party) is ordered to pay some or all of the costs of another party under subsection (1), the amount of the costs may be recovered in the Federal Court as a debt due by the first party to the other party. [s 44KB insrt Act 102 of 2010 s 3 and Sch 5[13], opn 14 July 2010]

[10,650L] Review of decision not to revoke a declaration 44L (1) If the designated Minister decides not to revoke a declaration, the provider may apply in writing to the Tribunal for review of the decision. (2) An application for review must be made within 21 days after publication of the designated Minister’s decision. (3) The review by the Tribunal is a re-consideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA). [subs (3) am Act 92 of 2006 s 3 and Sch 1[33], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 1[14], [15], opn 14 July 2010]

(4) For the purposes of the review, the Tribunal has the same powers as the designated Minister. (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review. [subs (5) subst Act 102 of 2010 s 3 and Sch 1[16], opn 14 July 2010]

(5A) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review. [subs (5A) insrt Act 102 of 2010 s 3 and Sch 1[16], opn 14 July 2010]

(5B) The Tribunal must: (a) give a copy of the notice to: [page 291]

(i) the person who applied for review; and (ii) any other person who has been made a party to the proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice. [subs (5B) insrt Act 102 of 2010 s 3 and Sch 1[16], opn 14 July 2010]

(6) The Tribunal may either: (a) affirm the designated Minister’s decision; or (b) set aside the designated Minister’s decision and revoke the declaration. Subdivision C — Miscellaneous [Repealed] [Subdiv C rep Act 92 of 2006 s 3 and Sch 1[34], opn 1 Oct 2006]

DIVISION 2AA — SERVICES THAT ARE INELIGIBLE TO BE DECLARED [Div 2AA insrt Act 102 of 2010 s 3 and Sch 2[7], opn 14 July 2010]

Subdivision A — Scope of Division

[10,650LA] Constitutional limits on operation of this Division 44LA This Division does not apply in relation to a service unless: (a) the person who is, or expects to be, the provider of the service is a corporation (or a partnership or joint venture consisting wholly of corporations); or (b) access to the service is (or would be) in the course of, or for the purposes of, constitutional trade or commerce. Subdivision B — Ineligibility recommendation by Council

[10,650LB] 44LB

Ineligibility recommendation

(1) Person may request recommendation A person with a

material interest in a particular service proposed to be provided by means of a proposed facility may make a written application to the Council asking the Council to recommend that the designated Minister decide that the service is ineligible to be a declared service. Note: The application must be made before construction of the facility commences: see the definition of proposed facility in section 44B. (2) Council must make recommendation After receiving the application, the Council must, after having regard to the objects of this Part: (a) recommend to the designated Minister: (i) that he or she decide that the service is ineligible to be a declared service; and (ii) the period for which the decision should be in force (which must be at least 20 years); or (b) recommend to the designated Minister that he or she decide that the service is not ineligible to be a declared service. Note 1: There are time limits that apply to the Council’s recommendation: see section 44LD. Note 2: The Council may request information and invite public submissions on the application: see sections 44LC and 44LE. Note 3: The Council must publish its recommendation: see section 44LF. [page 292] (3) Limits on recommendation The Council cannot recommend that the designated Minister decide that the service is ineligible to be a declared service unless it is satisfied of both of the following matters: (a) that the service will be provided by means of the proposed facility when constructed; (b) that it is not satisfied of at least one of the matters referred to in subsection 44G(2) in relation to the service to be provided by means of the proposed facility. (4) If the applicant is a person other than the designated Minister, the Council may recommend that the designated Minister decide that the service is not ineligible to be a declared service if the Council thinks that the

application was not made in good faith. This subsection does not limit the grounds on which the Council may decide to recommend that the designated Minister decide that the service is not ineligible to be a declared service. (5) Relationship between ineligibility recommendations, access undertakings and competitive tender processes The Council may recommend that the designated Minister decide that the service is ineligible to be a declared service even if the service is the subject of an access undertaking in operation under Division 6. (6) The Council may recommend that the designated Minister decide that the service is ineligible to be a declared service even if: (a) the service is proposed to be provided by means of a facility specified under paragraph 44PA(2)(a); and (b) a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of the facility, as a competitive tender process. (7) Applicant may withdraw application The applicant may withdraw the application at any time before the Council makes a recommendation relating to it.

[10,650LC]

Council may request information

44LC (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of a kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44LB. (2) The Council must: (a) give a copy of the notice to: (i) if the person is not the applicant — the applicant; and (ii) if the person is not the provider, or the person who expects to be the provider — that person; and (b) publish, by electronic or other means, the notice. (3) In deciding what recommendation to make on the application, the Council: (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and

(b) may disregard any information of the kind specified in the notice that is given after the specified period has ended. [page 293]

[10,650LD] Time limit for Council recommendations 44LD (1) Council to make recommendation within the consideration period The Council must make a recommendation on an application under section 44LB within the consideration period. (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, unless the consideration period is extended under subsection (7). (3) Stopping the clock In working out the expected period in relation to a recommendation on an application under section 44LB, in a situation referred to in column 1 of an item of the following table, disregard any day in a period: (a) starting on the day referred to in column 2 of the item; and (b) ending on the day referred to in column 3 of the item.

(4) Despite subsection (3): (a) do not disregard any day more than once; and (b) the total period that is disregarded under that subsection must not exceed 60 days. (5) Stopping the clock by agreement The Council and the applicant may agree in writing that a specified period is to be disregarded in working out the expected period.

(6) The Council must publish, by electronic or other means, the agreement. (7) Extension of time for making decision If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or it has been previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period. (8) The notice must: (a) specify when the Council must now make a recommendation on the application; and (b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period. (9) The Council must give a copy of the notice to: (a) the applicant; and (b) if the applicant is not the person who is, or expects to be, the provider — that person. (10) Publication If the Council extends the consideration period under subsection (7), it must publish a notice in a national newspaper: [page 294] (a) stating that it has done so; and (b) specifying the day by which it must now make a recommendation on the application. (11) Failure to comply with time limit does not affect validity Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section.

[10,650LE] Council may invite public submissions on the application 44LE

(1) Invitation The Council may publish, by electronic or other

means, a notice inviting public submissions on an application under section 44LB if it considers that it is appropriate and practicable to do so. (2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published). (3) Consideration of submissions Subject to subsection (6), in deciding what recommendation to make on the application, the Council: (a) must have regard to any submission made on or before the day specified in the notice; and (b) may disregard any submission made after the day specified in the notice. (4) Council may make submissions publicly available The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available. (5) Confidentiality A person may, at the time of making a submission, request that the Council: (a) not make the whole or a part of the submission available under subsection (4); and (b) not publish or make available the whole or a part of the submission under section 44LF; because of the confidential commercial information contained in the submission. (6) If the Council refuses such a request: (a) for a written submission — the Council must, if the person who made it so requires, return the whole or the part of it to the person; and (b) for an oral submission — the person who made it may inform the Council that the person withdraws the whole or the part of it; and (c) if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not: (i) make the whole or the part of the submission available under subsection (4); and (ii) publish or make available the whole or the part of the submission under section 44LF; and

(iii) have regard to the whole or the part of the submission in making its recommendation on the application. [page 295]

[10,650LF] Council must publish its recommendation 44LF (1) Council must publish its recommendation The Council must publish, by electronic or other means, a recommendation under section 44LB and its reasons for the recommendation. (2) The Council must give a copy of the publication to: (a) the person who made the application under section 44LB; and (b) if the applicant is not the person who is, or expects to be, the provider — that person. (3) Timing The Council must do the things under subsections (1) and (2) on the day the designated Minister publishes his or her decision on the recommendation or as soon as practicable after that day. (4) Consultation Before publishing under subsection (1), the Council may give any one or more of the following persons: (a) the person who made the application under section 44LB; (b) any other person the Council considers appropriate; a notice in writing: (c) specifying what the Council is proposing to publish; and (d) inviting the person to make a written submission to the Council within 14 days after the day the notice is given identifying any information the person considers should not be published because of its confidential commercial nature. (5) The Council must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant. Subdivision C — Designated Minister’s decision on ineligibility

[10,650LG] ineligibility

Designated Minister’s decision on

44LG (1) On receiving an ineligibility recommendation, the designated Minister must: (a) decide: (i) that the service is ineligible to be a declared service; and (ii) the period for which the decision is in force (which must be at least 20 years); or (b) decide that the service is not ineligible to be a declared service. Note: The designated Minister must publish his or her decision: see section 44LH. (2) The designated Minister must have regard to the objects of this Part in making his or her decision. (3) The designated Minister may decide that the service is ineligible to be a declared service even if the service is the subject of an access undertaking in operation under Division 6. (4) The designated Minister may decide that the service is ineligible to be a declared service even if: (a) the service is proposed to be provided by means of a facility specified under paragraph 44PA(2)(a); and [page 296] (b) a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of the facility, as a competitive tender process. (5) The designated Minister must not decide that the service is ineligible to be a declared service unless he or she is satisfied of both of the following matters: (a) that the service is to be provided by means of the proposed facility when constructed; (b) that he or she is not satisfied of at least one of the matters referred to in subsection 44H(4) in relation to the service to be provided by

means of the proposed facility. (6) If the designated Minister does not publish under section 44LH his or her decision on the ineligibility recommendation within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day: (a) the designated Minister is taken, immediately after the end of that 60-day period, to have made a decision under subsection (1) in accordance with the ineligibility recommendation and to have published that decision under section 44LH; and (b) if the Council recommended that the designated Minister decide that the service be ineligible to be a declared service — the period for which the decision is in force is taken to be the period recommended by the Council. (7) A decision of the designated Minister under subsection (1) is not a legislative instrument.

[10,650LH] Designated Minister must publish his or her decision 44LH (1) The designated Minister must publish, by electronic or other means, his or her decision on an ineligibility recommendation and his or her reasons for the decision. (2) The designated Minister must give a copy of the publication to the person who made the application under section 44LB. (3) Consultation Before publishing under subsection (1), the designated Minister may give any one or more of the following persons: (a) the person who made the application under section 44LB; (b) any other person the designated Minister considers appropriate; a notice in writing: (c) specifying what the designated Minister is proposing to publish; and (d) inviting the person to make a written submission to the designated Minister within 14 days after the day the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.

(4) The designated Minister must have regard to any submission so made in deciding what to publish. He or she may have regard to any other matter he or she considers relevant. Subdivision D — Revocation of ineligibility decision

[10,650LI]

Revocation of ineligibility decision

44LI (1) Council may recommend revocation if facility materially different or upon request The Council may recommend to the designated Minister that the [page 297] designated Minister revoke his or her decision (the ineligibility decision) that a service is ineligible to be a declared service. The Council must have regard to the objects of this Part in making its recommendation. (2) The Council cannot recommend that a decision be revoked unless: (a) it is satisfied that, at the time of the recommendation, the facility that is (or will be) used to provide the service concerned is so materially different from the proposed facility described in the application made under section 44LB that the Council is satisfied of all of the matters mentioned in subsection 44G(2) in relation to the service; or (b) the person who is, or expects to be, the provider of the service that is provided, or that is proposed to be provided, by means of the facility requests that it be revoked. (3) Minister must decide whether to revoke On receiving a recommendation that the designated Minister revoke the ineligibility decision, the designated Minister must either revoke the ineligibility decision or decide not to revoke the ineligibility decision. (4) The designated Minister must have regard to the objects of this Part in making his or her decision. (5) Minister must publish decision The designated Minister must

publish, by electronic or other means, the decision to revoke or not to revoke the ineligibility decision. (6) If the designated Minister decides not to revoke the ineligibility decision, the designated Minister must give reasons for the decision to the person who is, or expects to be, the provider of the service concerned when the designated Minister publishes the decision. (7) Deemed decision of Minister If the designated Minister does not publish his or her decision to revoke or not to revoke the ineligibility decision within the period starting at the start of the day the recommendation to revoke the ineligibility decision is received and ending at the end of 60 days after that day, the designated Minister is taken, immediately after the end of that 60-day period: (a) to have made a decision (the deemed decision) under subsection (3) that the ineligibility decision be revoked; and (b) to have published the deemed decision under subsection (5). (8) Limits on when a revocation can be made The designated Minister cannot revoke the ineligibility decision without receiving a recommendation from the Council that the ineligibility decision be revoked. (9) When a revocation comes into operation If the designated Minister revokes the ineligibility decision, the revocation comes into operation at: (a) if, within 21 days after the designated Minister publishes his or her decision, no person has applied to the Tribunal for review of the decision — the end of that period; or (b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision — the time of the Tribunal’s decision. (10) Decision is not a legislative instrument A decision of the designated Minister under subsection (3) is not a legislative instrument. [page 298] Subdivision E — Review of decisions

[10,650LJ]

Review of ineligibility decisions

44LJ (1) Application for review A person whose interests are affected by a decision of the designated Minister under subsection 44LG(1) may apply in writing to the Tribunal for a review of the decision. (2) An application for review must be made within 21 days after publication of the designated Minister’s decision. (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA). (4) For the purposes of the review, the Tribunal has the same powers as the designated Minister. (5) Council to provide assistance The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review. (6) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review. (7) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) the person who is, or expects to be, the provider of the service; and (iii) any other person who has been made a party to the proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice. (8) Tribunal’s decision If the designated Minister decided that a service is ineligible to be a declared service, the Tribunal may affirm, vary or set aside the decision. Note: If the Tribunal sets aside a decision of the designated Minister that a service is ineligible to be a declared service, the designated Minister’s decision is no longer in force. This means the designated Minister is no

longer prevented by subsection 44H(6C) from declaring the service. (9) If the designated Minister decided that a service is not ineligible to be a declared service, the Tribunal may either: (a) affirm the designated Minister’s decision; or (b) set aside the designated Minister’s decision and decide that the service is ineligible to be a declared service for a specified period (which must be at least 20 years). (10) Effect of Tribunal’s decision The Tribunal’s decision is taken to be a decision by the designated Minister for all purposes of this Part (except this section). [page 299]

[10,650LK] Review of decision to revoke or not revoke an ineligibility decision 44LK (1) Application for review A person whose interests are affected by a decision of the designated Minister under subsection 44LI(3) may apply in writing to the Tribunal for a review of the decision. (2) An application for review must be made within 21 days after publication of the designated Minister’s decision. (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA). (4) For the purposes of the review, the Tribunal has the same powers as the designated Minister. (5) Council to give assistance The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review. (6) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind

specified in the notice, within the period specified in the notice, for the purposes of the review. (7) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) the person who is, or expects to be, the provider of the service; and (iii) any other person who has been made a party to the proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice. (8) Tribunal’s decision If the designated Minister decided to revoke his or her decision (the ineligibility decision) that the service is ineligible to be a declared service, the Tribunal may either: (a) affirm the designated Minister’s decision; or (b) set aside the designated Minister’s decision to revoke the ineligibility decision. (9) If the designated Minister decided not to revoke his or her ineligibility decision, the Tribunal may either: (a) affirm the designated Minister’s decision; or (b) set aside the designated Minister’s decision and revoke the ineligibility decision. (10) Effect of Tribunal’s decision If the Tribunal sets aside the designated Minister’s decision to revoke his or her ineligibility decision, the ineligibility decision is taken never to have been revoked. (11) If the Tribunal sets aside the designated Minister’s decision and revokes the ineligibility decision, the Tribunal’s decision is, for the purposes of this Part other than this section, taken to be a decision by the Minister to revoke his or her decision that the service is ineligible to be a declared service. [page 300] Subdivision F — Other matters

[10,650LA] Ineligibility decisions subject to alteration, cancellation etc 44LL (1) A decision of the designated Minister under section 44LG, that a service is ineligible to be a declared service is made on the basis that: (a) the decision may be revoked under section 44LI; and (b) the decision may be cancelled, revoked, terminated or varied by or under later legislation; and (c) no compensation is payable if the decision is cancelled, revoked, terminated or varied as mentioned in any of the above paragraphs. (2) Subsection (1) does not, by implication, affect the interpretation of any other provision of this Act. DIVISION 2A — EFFECTIVE ACCESS REGIMES [Div 2A insrt Act 92 of 2006 s 3 and Sch 1[35], opn 1 Oct 2006]

Subdivision A — Recommendation by Council [Subdiv A insrt Act 92 of 2006 s 3 and Sch 1[35], opn 1 Oct 2006]

[10,650M] Recommendation for a Ministerial decision on effectiveness of access regime 44M (1) This section applies if a State or Territory that is a party to the Competition Principles Agreement has established at any time a regime for access to a service or a proposed service. [subs (1) am Act 101 of 1998 Sch 1]

(2) The responsible Minister for the State or Territory may make a written application to the Council asking the Council to recommend that the Commonwealth Minister decide that the regime for access to the service or proposed service is an effective access regime. [subs (2) am Act 101 of 1998 Sch 1]

(3) The Council must recommend to the Commonwealth Minister: (a) that he or she decide that the access regime is an effective access regime for the service, or proposed service; or (b) that he or she decide that the access regime is not an effective

access regime for the service, or proposed service. Note 1: There are time limits that apply to the Council’s recommendation: see section 44NC. Note 2: The Council may request information and invite public submissions on the application: see sections 44MA and 44NE. Note 3: The Council must publish its recommendation: see section 44NF. [subs (3) am Act 101 of 1998 Sch 1; Act 92 of 2006 s 3 and Sch 1[36], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 1[17], [18], opn 14 July 2010]

(4) In deciding what recommendation it should make, the Council: (a) must, subject to subsection (4A), assess whether the access regime is an effective access regime by applying the relevant principles set out in the Competition Principles Agreement; and [page 301] (aa) must have regard to the objects of this Part; and (b) must, subject to section 44DA, not consider any other matters. [subs (4) am Act 101 of 1998 Sch 1; Act 60 of 2006 s 3 and Sch 1[10], opn 22 June 2006; Act 92 of 2006 s 3 and Sch 1[37], opn 1 Oct 2006]

(4A) In deciding what recommendation it should make, the Council must disregard Chapter 5 of a National Gas Law. [subs (4A) subst Act 45 of 2007 s 3 and Sch 1[76], opn 1 July 2008]

(5) When the Council recommends that the Commonwealth Minister make a particular decision, the Council must also recommend the period for which the decision should be in force. SECTION 44M GENERALLY [10,650M.5] Overview A state or territory that has established its own access regime may apply to the council for its recommendation that the regime is an effective access regime. In making its recommendation the council must have regard to the Competition Principles Agreement. See also [10,650G.30]. This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006 to also require the council to have regard to the

objects of the Part in making a recommendation that an access regime is an effective access regime. See [10,650.5]. ____________________

[10,650MA]

Council may request information

44MA (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44M. (2) The Council must: (a) give a copy of the notice to: (i) if the person is not the applicant — the applicant; and (ii) if the person is not the provider of the service — the provider; and (b) publish, by electronic or other means, the notice. (3) In deciding what recommendation to make on the application, the Council: (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended. [s 44MA insrt Act 102 of 2010 s 3 and Sch 1[19], opn 14 July 2010]

Subdivision B — Decision by Commonwealth Minister [Subdiv B insrt Act 92 of 2006 s 3 and Sch 1[38], opn 1 Oct 2006]

[10,650N] Ministerial decision on effectiveness of access regime 44N (1) On receiving a recommendation under section 44M, the Commonwealth Minister must: (a) decide that the access regime is an effective access regime for the service or proposed service; or

[page 302] (b) decide that the access regime is not an effective access regime for the service or proposed service. Note: The Commonwealth Minister must publish his or her decision: see section 44NG. [subs (1) am Act 101 of 1998 Sch 1; Act 92 of 2006 s 3 and Sch 1[39], [40], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 1[20], [21], opn 14 July 2010]

(2) In making a decision, the Commonwealth Minister: (a) must, subject to subsection (2A), apply the relevant principles set out in the Competition Principles Agreement; and (aa) must have regard to the objects of this Part; and (b) must, subject to section 44DA, not consider any other matters. [subs (2) am Act 101 of 1998 Sch 1; Act 60 of 2006 s 3 and Sch 1[12], opn 22 June 2006; Act 92 of 2006 s 3 and Sch 1[41], opn 1 Oct 2006]

(2A) In making a decision, the Commonwealth Minister must disregard Chapter 5 of a National Gas Law. [subs (2A) subst Act 45 of 2007 s 3 and Sch 1[77], opn 1 July 2008]

(3) The decision must specify the period for which it is in force. Note: The period for which the decision is in force may be extended: see section 44NB. [subs (3) am Act 92 of 2006 s 3 and Sch 1[42], opn 1 Oct 2006] (4) If the Commonwealth Minister does not publish under section 44NG his or her decision on a recommendation under section 44M within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day: (a) the Commonwealth Minister is taken, immediately after the end of that 60-day period: (i) to have made a decision under subsection (1) in accordance with the recommendation made by the Council under section 44M; and (ii) to have published that decision under section 44NG; and (b) if the Council recommended that the Commonwealth Minister decide that the access regime is an effective access regime for the service, or proposed service — the decision is taken to be in force

for the period recommended by the Council under subsection 44M(5). [subs (4) insrt Act 102 of 2010 s 3 and Sch 1[22], opn 14 July 2010]

SECTION 44N GENERALLY [10,650N.5] Overview On receiving a recommendation from the council under s 44M, the Commonwealth Minister must decide whether the access regime is an effective access regime — generally referred to as “certification”. A service cannot be declared under Pt IIIA if it is already the subject of a certified access regime. This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006 to require the minister to have regard to the objects of the Part in making a decision whether a regime is an effective access regime. See [10,650.5]. [10,650N.10] Effective access regimes been considered by the council:

The following regimes have

Gas In keeping with the requirements of the National Competition Policy to promote free and fair trade in gas, on 7 November 1997, the Commonwealth, states and territories signed the Natural Gas Pipelines Access Agreement. The objective of the agreement was to establish a [page 303] uniform national framework for third party access to natural gas pipelines: see Re Duke Eastern Gas Pipeline Pty Ltd (2001) 162 FLR 1; (2001) ATPR ¶41-821; [2001] ACompT 2 at [48]–[54] per Hely J, Dr M J Messenger and Ms M M Starrs. Consistent with that agreement a number of states and territories sought certification of their access regimes. The council recommended that an interim New South Wales Access Regime for the distribution of natural gas be certified as effective: Re New South Wales Government (1997) ATPR (NCC) ¶70-002. More permanent access regimes applying to gas were subsequently submitted to the council:

NSW — certified as effective on 29 March 2001 for 15 years. Vic — certified as effective on 29 March 2001 for 15 years. WA — certified as effective on 31 May 2000 for 15 years. SA — certified as effective on 9 December 1998 for 15 years. ACT — certified as effective on 25 September 2000 for 15 years. NT — certified as effective on 4 October 2001 for 15 years. TAS — certified as effective on 17 July 2006 for 15 years. QLD — on 17 July 2006, the parliamentary secretary to the treasurer decided not to certify the Queensland gas access regime. See Pt IIIAA of the Act which provides for the operation of the Australian energy market. Electricity The Northern Territory electricity regime was certified on 21 March 2002 for 15 years. See NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 per McHugh ACJ, Gummow, Callinan and Heydon JJ relating to access under s 46 of the Act. See Pt IIIAA of the Act which provides for the operation of the Australian energy market. Ports The council recommended that the Victorian regime for commercial shipping channels be certified as effective: Re Victorian Government (1997) ATPR (NCC) ¶70-001. On 15 October 2010 the Council received an application from the Premier of South Australia, the Hon Mike Rann MP, for the certification of the South Australian Ports Access Regime established under the Maritime Services (Access) Act 2000 (SA). On 9 May 2011 the Commonwealth Minister, the Parliamentary Secretary to the Treasurer, the Hon David Bradbury MP, made his decision to certify the South Australian Ports Access Regime as an effective access regime for a period of ten years. Rail The council recommended that the New South Wales Rail Access Regime for access to rail track (and related infrastructure) in New South Wales be certified as effective: National Competition Council, November 1999. See Chief Commissioner of State Revenue v Pacific National (ACT) Ltd (2007) 70 NSWLR 544; [2007] NSWCA 325; BC200709862 per Hodgson, Ipp and Basten JJA.

The Northern Territory and South Australian access regimes for rail services from Tarcoola to Alice Springs and Darwin to Alice Springs were certified until 2030. On 12 May 2010 the Council received an application from the Premier of Western Australia, the Hon Colin Barnett MLA, for the certification of the Western Australian Rail Access Regime established under the Railways (Access) Act 1998 (WA) and the Railways (Access) Code 2000. On 11 February 2011, the Hon David Bradbury, Parliamentary Secretary to the Treasurer decided to certify the WA Rail Access Regime as an “effective access regime”. On 11 February 2011, the Council released its Final Recommendation. The Council had recommended that the WA Rail Access Regime not be certified. On 19 May 2010 the Council received applications for declaration of the services provided by the Blackwater, Goonyella, Moura and Newlands coal railway facilities in Central Queensland owned by QR Ltd. On 13 October 2010 the applicant notified the Council of the withdrawal of this application. On 17 June 2010 the Council received an application for certification of the Queensland Rail Access Regime as an effective regime. On 19 January 2011 the Commonwealth Minister made his [page 304] decision to certify the Queensland Rail Access Regime as an effective access regime for a period of ten years. The decision is consistent with the Council’s final recommendation. On 29 December 2010 the Council received an application from the Premier of South Australia, Hon Mike Rann MP, for certification of the South Australian rail access regime set out in the Railways (Operations and Access) Act 1997 (SA). On 26 July 2011 the Commonwealth Minister released his decision to certify the South Australian Rail Access Regime for 10 years, in accordance with the Council’s final recommendation. Water The Water Industry Competition Act 2006 (NSW) and the Water Industry Competition (Access to Infrastructure Services) Regulation 2007 provide an access regime for third party access to services provided by water

industry infrastructure. The Act received royal assent on 27 November 2006. On 19 December 2008, the NSW Government applied to the council to have the regime certified. On 2 April 2009, the council published a draft determination proposing that it recommend to the Minister that the regime be certified. The minister accepted the Council’s final recommendation and determined that the regime be certified as effective for a period of 10 years. As a consequence, on 8 September 2009, the Council made a recommendation to the Premier of New South Wales, the Hon Nathan Rees MP, that the declaration made by the Australian Competition Tribunal in Re Application by Services Sydney Pty Ltd (2005) 227 ALR 140; (2006) ATPR ¶42-099; [2005] ACompT 7 be revoked. The Premier, acting on the Council’s recommendation, revoked the declaration on 1 October 2009. [10,650N.15] Guidelines The Council has published a guide, “Certification of State and Territory Access Regimes: A guide to Certification under Part IIIA of the Trade Practices Act 1974 (Cth)”, available at http://www.ncc.gov.au/images/uploads/Certification_Guide.pdf. ____________________ Subdivision C — Extensions of Commonwealth Minister’s decision [Subdiv C insrt Act 92 of 2006 s 3 and Sch 1[44], opn 1 Oct 2006]

[10,650NA]

Recommendation by Council

44NA (1) This section applies if a decision of the Commonwealth Minister is in force under section 44N (including as a result of an extension under section 44NB) that a regime established by a State or Territory for access to a service is an effective access regime. (2) Application to Council The responsible Minister for the State or Territory may make a written application to the Council asking it to recommend that the Commonwealth Minister decide to extend the period for which the decision is in force. Note: The Commonwealth Minister may extend the period for which the decision is in force more than once: see section 44NB. This means there may be multiple applications under this subsection. (3) The responsible Minister for the State or Territory may specify in the

application proposed variations to the access regime. (4) Assessment by Council The Council must assess whether the access regime (including any proposed variations) is an effective access regime. It must do this in accordance with subsection 44M(4). [page 305] (5) If the Council is satisfied that it is an effective access regime, the Council must, in writing, recommend to the Commonwealth Minister that he or she extend the period for which the decision under section 44N is in force. The Council must also recommend an extension period. [subs (5) am Act 102 of 2010 s 3 and Sch 1[23], opn 14 July 2010]

(6) If the Council is satisfied that it is not an effective access regime, the Council must, in writing, recommend to the Commonwealth Minister that he or she not extend the period for which the decision under section 44N is in force. Note 1: There are time limits that apply to the Council’s recommendation: see section 44NC. Note 2: The Council may request information and invite public submissions on the application: see sections 44NAA and 44NE. Note 3: The Council must publish its recommendation: see section 44NF. [subs (6) am Act 102 of 2010 s 3 and Sch 1[24]–[26], opn 14 July 2010]

SECTION 44NA GENERALLY [10,650NA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. The section permits the minister for a state or territory to apply to the council to extend the period of certification of an effective access regime in force under s 44N. ____________________

[10,650NAA]

Council may request information

44NAA (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44NA. (2) The Council must: (a) give a copy of the notice to: (i) if the person is not the applicant — the applicant; and (ii) if the person is not the provider of the service — the provider; and (b) publish, by electronic or other means, the notice. (3) In deciding what recommendation to make on the application, the Council: (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended. [s 44NAA insrt Act 102 of 2010 s 3 and Sch 1[27], opn 14 July 2010]

[10,650NB] Minister

Decision by the Commonwealth

44NB (1) On receiving a recommendation under section 44NA, the Commonwealth Minister must assess whether the access regime (including any proposed variations) is an effective access regime. He or she must do this in accordance with subsection 44N(2). Note: The Commonwealth Minister must publish his or her decision: see section 44NG. [subs (1) am Act 102 of 2010 s 3 and Sch 1[28], [29], opn 14 July 2010]

[page 306] (2) If the Commonwealth Minister is satisfied that it is, he or she must, by notice in writing, decide to extend the period for which the decision under

section 44N is in force. The notice must specify the extension period. (3) If the Commonwealth Minister is satisfied that it is not, he or she must, by notice in writing, decide not to extend the period for which the decision under section 44N is in force. (3A) If the Commonwealth Minister does not publish under section 44NG his or her decision on a recommendation under section 44NA within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day: (a) the Commonwealth Minister is taken, immediately after the end of that 60-day period: (i) to have made a decision under this section in accordance with the recommendation made by the Council under section 44NA; and (ii) to have published that decision under section 44NG; and (b) if the Council recommended that the Commonwealth Minister extend the period for which the decision under section 44N is in force — the extension period is taken to be the extension period recommended by the Council under subsection 44NA(5). [subs (3A) insrt Act 102 of 2010 s 3 and Sch 1[30], opn 14 July 2010]

(4) Multiple extensions The Commonwealth Minister may extend the period for which a decision is in force under section 44N more than once. SECTION 44NB GENERALLY [10,650NB.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. The section enables the minister to determine (following the recommendation of the council) whether to extend the period of certification of an effective access regime under s 44N. ____________________ Subdivision D — Procedural provisions [Subdiv D insrt Act 92 of 2006 s 3 and Sch 1[44], opn 1 Oct 2006]

[10,650NC] Time limit for Council recommendations 44NC (1) Council to make recommendation within the consideration period The Council must make a recommendation on an application under section 44M or 44NA within the consideration period. (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, unless the consideration period is extended under subsection (7). (3) Stopping the clock In working out the expected period in relation to a recommendation on an application under section 44M or 44NA, in a situation referred to in column 1 of an item of the following table, disregard any day in a period: (a) starting on the day referred to in column 2 of the item; and (b) ending on the day referred to in column 3 of the item. [page 307]

(4) Despite subsection (3): (a) do not disregard any day more than once; and (b) the total period that is disregarded under that subsection must not exceed 60 days.

(5) Stopping the clock by agreement The Council, the applicant and the provider of the service (if the provider is not the applicant) may agree in writing that a specified period is to be disregarded in working out the expected period. (6) The Council must publish, by electronic or other means, the agreement. (7) Council may extend time for making recommendation If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the Commonwealth Minister, extend the consideration period by a specified period. (8) The notice must: (a) specify when the Council must now make its recommendation on the application; and (b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period. (9) The Council must give a copy of the notice to: (a) the applicant; and (b) if the applicant is not the provider of the service — the provider. (10) Publication If the Council extends the consideration period under subsection (7), it must publish a notice in a national newspaper: (a) stating that it has done so; and (b) specifying the day by which it must now make a recommendation on the application. [page 308] (11) Failure to comply with time limit does not affect validity Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section. [s 44NC subst Act 102 of 2010 s 3 and Sch 1[31], opn 14 July 2010]

SECTION 44NC GENERALLY [10,650NC.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. The section imposes target time limits on the council in making a recommendation to the minister on an effective access regime or to extend the period of an effective access regime. ____________________

[10,650ND] Minister 44ND 2010]

Target time limits — Commonwealth

[s 44ND rep Act 102 of 2010 s 3 and Sch 1[32], opn 14 July

SECTION 44ND GENERALLY [10,650ND.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. The section imposes target time limits on the minister in making a decision on an effective access regime or a decision to extend the period of an effective access regime. ____________________

[10,650NE] Council may invite public submissions 44NE Invitation (1) The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44M or 44NA if it considers that it is appropriate and practicable to do so. (2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published).

Consideration of submissions (3) Subject to subsection (6), in deciding what recommendation to make on the application, the Council: (a) must have regard to any submission made on or before the day specified in the notice; and (b) may disregard any submission made after the day specified in the notice. [subs (3) subst Act 102 of 2010 s 3 and Sch 1[33], opn 14 July 2010]

Council may make submissions publicly available (4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available. Confidentiality (5) A person may, at the time of making a submission, request that the Council: [page 309] (a) not make the whole or a part of the submission available under subsection (4); and (b) not publish or make available the whole or a part of the submission under section 44NF; because of the confidential commercial information contained in the submission. (6) If the Council refuses such a request: (a) for a written submission — the Council must, if the person who made it so requires, return the whole or the part of it to the person; and (b) for an oral submission — the person who made it may inform the Council that the person withdraws the whole or the part of it; and (c) if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not: (i) make the whole or the part of the submission available

under subsection (4); and (ii) publish or make available the whole or the part of the submission under section 44NF; and (iii) have regard to the whole or the part of the submission in making its recommendation on the application. SECTION 44NE GENERALLY [10,650NE.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650NF]

Publication — Council

44NF (1) The Council must publish, by electronic or other means, a recommendation under section 44M or 44NA and its reasons for the recommendation. (2) The Council must give a copy of the publication to: (a) the applicant under section 44M or 44NA; and (b) the provider of the service. Timing (3) The Council must do the things under subsections (1) and (2) on the day the Commonwealth Minister publishes his or her decision on the recommendation or as soon as practicable after that day. Consultation (4) Before publishing under subsection (1), the Council may give any one or more of the following persons: (a) the applicant under section 44M or 44NA; (b) the provider of the service; (c) any other person the Council considers appropriate; a notice in writing: (d) specifying what the Council is proposing to publish; and (e) inviting the person to make a written submission to the Council within 14 days after the notice is given identifying any information

the person considers should not be published because of its confidential commercial nature. [page 310] (5) The Council must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant. SECTION 44NF GENERALLY [10,650NF.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650NG] Minister

Publication — Commonwealth

44NG (1) The Commonwealth Minister must publish, by electronic or other means, his or her decision on a recommendation under section 44M or 44NA and his or her reasons for the decision. (2) The Commonwealth Minister must give a copy of the publication to: (a) the applicant under section 44M or 44NA; and (b) the provider of the service. (3) Consultation Before publishing under subsection (1), the Commonwealth Minister may give any one or more of the following persons: (a) the applicant under section 44M or 44NA; (b) the provider of the service; (c) any other person the Minister considers appropriate; a notice in writing: (d) specifying what the Minister is proposing to publish; and (e) inviting the person to make a written submission to the Minister within 14 days after the notice is given identifying any information

the person considers should not be published because of its confidential commercial nature. (4) The Commonwealth Minister must have regard to any submission so made in deciding what to publish. He or she may have regard to any other matter he or she considers relevant. SECTION 44NG GENERALLY [10,650NG.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________ Subdivision E — Review of decisions [Subdiv E insrt Act 92 of 2006 s 3 and Sch 1[45], opn 1 Oct 2006]

[10,650O] Review of Ministerial decision on effectiveness of access regime 44O (1) The responsible Minister of the State or Territory: (a) who applied for a recommendation under section 44M that the Commonwealth Minister decide that the access regime is an effective access regime; or [page 311] (b) who applied for a recommendation under section 44NA that the Commonwealth Minister decide to extend the period for which the decision under section 44N is in force; may apply to the Tribunal for review of the Commonwealth Minister’s decision. [subs (1) subst Act 92 of 2006 s 3 and Sch 1[46], opn 1 Oct 2006]

(2) An application for review must be made within 21 days after publication of the Commonwealth Minister’s decision.

(3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA). [subs (3) am Act 92 of 2006 s 3 and Sch 1[47], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 1[34], [35], opn 14 July 2010]

(4) For the purposes of the review, the Tribunal has the same powers as the Commonwealth Minister. (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review. [subs (5) subst Act 102 of 2010 s 3 and Sch 1[36], opn 14 July 2010]

(5A) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review. [subs (5A) insrt Act 102 of 2010 s 3 and Sch 1[36], opn 14 July 2010]

(5B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for the review; and (ii) any other person who has been made a party to the proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice. [subs (5B) insrt Act 102 of 2010 s 3 and Sch 1[36], opn 14 July 2010]

(6) The Tribunal may affirm, vary or reverse the Commonwealth Minister’s decision. (7) A decision made by the Tribunal is to be taken to be a decision of the Commonwealth Minister for all purposes of this Part (except this section). Subdivision F — State or Territory ceasing to be a party to Competition Principles Agreement [Subdiv F insrt Act 92 of 2006 s 3 and Sch 1[48], opn 1 Oct 2006]

[10,650P] State or Territory ceasing to be a party to Competition Principles Agreement

44P If a State or Territory that has established a regime for access to a service or proposed service ceases to be a party to the Competition Principles Agreement: (a) a decision by the Commonwealth Minister that the regime is an effective access regime ceases to be in force; and [page 312] (b) the Council, the Commonwealth Minister and the Tribunal need not take any further action relating to an application for a decision by the Commonwealth Minister that the regime is an effective access regime. [s 44P am Act 101 of 1998 Sch 1]

DIVISION 2B — COMPETITIVE TENDER PROCESSES FOR GOVERNMENT OWNED FACILITIES [Div 2B insrt Act 92 of 2006 s 3 and Sch 1[49], opn 1 Oct 2006]

[10,650PA] process

Approval of competitive tender

44PA (1) Application to Commission The Commonwealth Minister, or the responsible Minister of a State or Territory, may make a written application to the Commission asking it to approve a tender process, for the construction and operation of a facility that is to be owned by the Commonwealth, State or Territory, as a competitive tender process. (2) The application must: (a) specify the service or services proposed to be provided by means of the facility; and (b) be in accordance with the regulations. (3) Decision of Commission The Commission must, by notice in writing, approve or refuse the tender process as a competitive tender process. Note 1: While a decision is in force approving a tender process as a competitive tender process, the designated Minister cannot declare any

service provided by means of the facility that was specified under paragraph (2)(a): see subsection 44H(3A). Note 2: There are time limits that apply to the Commission’s decision: see section 44PD. Note 3: The Commission may request information and invite public submissions on the application: see sections 44PAA and 44PE. Note 4: The Commission must publish its decision: see section 44PF. [subs (3) am Act 102 of 2010 s 3 and Sch 1[37], [38], opn 14 July 2010]

(4) The Commission must not approve a tender process as a competitive tender process unless: (a) it is satisfied that reasonable terms and conditions of access to any service specified under paragraph (2)(a) will be the result of the process; and (b) it is satisfied that the tender process meets the requirements prescribed by the regulations. (4A) The Commission may approve the tender process as a competitive tender process even if the service proposed to be provided by means of the facility is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service. [subs (4A) insrt Act 102 of 2010 s 3 and Sch 2[8], opn 14 July 2010]

(5) Period for which decision in force If the Commission approves the tender process as a competitive tender process, it may specify in the notice the period for which the decision is in force. Note: Section 44PC provides for revocation of the decision. [page 313] (6) The Commission may, by writing, extend that period by a specified period. The Commission may do so more than once. (7) Legislation Act 2003 A notice under subsection (3) is not a legislative instrument. [subs (7) am Act 126 of 2015 s 3 and Sch 1 items 128, 129, opn 5 Mar 2016]

SECTION 44PA GENERALLY

[10,650PA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. The section permits the relevant minister to apply to the commission for approval of a tender process for the construction and operation of a new facility owned by the Commonwealth or by a state or territory. While a decision is in force approving a tender process as a competitive tender process, the designated minister cannot declare any service provided by means of the facility: s 44H(3A). ____________________

[10,650PAA] information

Commission may request

44PAA (1) The Commission may give a person a written notice requesting the person give to the Commission, within a specified period, information of the kind specified in the notice that the Commission considers may be relevant to deciding whether to approve or refuse to approve a tender process under section 44PA. (2) The Commission must: (a) if the person is not the applicant — give a copy of the notice to the applicant; and (b) publish, by electronic or other means, the notice. (3) In deciding whether to approve or refuse to approve the tender process, the Commission: (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended. [s 44PAA insrt Act 102 of 2010 s 3 and Sch 1[39], opn 14 July 2010]

[10,650PB]

Report on conduct of tender process

44PB (1) Report If the Commission approves a tender process as a competitive tender process, it must, after a tenderer is chosen, ask the applicant under subsection 44PA(1), by notice in writing, to give the

Commission a written report on the conduct of the tender process. (2) The report must be in accordance with the regulations. (3) Commission may ask for further information After the Commission receives the report, it may ask the applicant under subsection 44PA(1), by notice in writing, to give the Commission further information in relation to the conduct of the tender process. (4) Legislation Act 2003 A report under subsection (1) is not a legislative instrument. [subs (4) am Act 126 of 2015 s 3 and Sch 1 items 130, 131, opn 5 Mar 2016]

[page 314] SECTION 44PB GENERALLY [10,650PB.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650PC]

Revocation of approval decision

44PC (1) Discretionary revocation The Commission may, by writing, revoke a decision to approve a tender process as a competitive tender process if it is satisfied that the assessment of the tenders was not in accordance with that process. Note 1: The Commission may invite public submissions on any proposed revocation decision: see section 44PE. Note 2: The Commission must publish its decision: see section 44PF. (2) The Commission may, by writing, revoke a decision to approve a tender process as a competitive tender process if it is satisfied that the provider of a service: (a) specified under paragraph 44PA(2)(a); and (b) being provided by means of the facility concerned; is not complying with the terms and conditions of access to the service.

Note 1: The Commission may invite public submissions on any proposed revocation decision: see section 44PE. Note 2: The Commission must publish its decision: see section 44PF. (3) Before making a decision under subsection (2), the Commission must give the applicant under subsection 44PA(1), and the provider of the service, a written notice: (a) stating that the Commission is proposing to make such a decision and the reasons for it; and (b) inviting the person to make a written submission to the Commission on the proposal; and (c) stating that any submission must be made within the period of 40 business days after the notice is given. (4) The Commission must consider any written submission received within that period. (5) Mandatory revocation If: (a) the Commission approves a tender process as a competitive tender process; and (b) the Commission gives the applicant a notice under subsection 44PB(1) or (3); and (c) the applicant does not comply with the notice within the period of 40 business days beginning on the day on which the notice is given; the Commission must, by writing, revoke the approval decision at the end of that period. The Commission must give notice of the revocation to the applicant. (6) Definition In this section: business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory. [page 315] SECTION 44PC GENERALLY [10,650PC.5] Overview

This section was inserted by the Trade Practices

Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650PD]

Time limit for Commission decisions

44PD (1) Commission to make decision within 90 days The Commission must make a decision on an application under subsection 44PA(1) within the period of 90 days (the expected period) starting at the start of the day the application is received. (2) Stopping the clock In working out the expected period in relation to a decision on an application under subsection 44PA(1), in a situation referred to in column 1 of an item of the following table, disregard any day in a period: (a) starting on the day referred to in column 2 of the item; and (b) ending on the day referred to in column 3 of the item.

(3) Despite subsection (2), do not disregard any day more than once. (4) Stopping the clock by agreement The Commission and the applicant may agree in writing that a specified period is to be disregarded in working out the expected period. (5) The Commission must publish, by electronic or other means, the agreement. (6) Deemed approval as a competitive tender process If the Commission does not publish under subsection 44PF(1) its decision on the application within the expected period, it is taken, immediately after the end of the expected period, to have:

(a) approved the tender process as a competitive tender process; and (b) published the decision to approve the process and its reasons for that decision; and (c) specified that the decision is in force for a period of 20 years, starting 21 days after the start of the day the decision is taken to have been published. [s 44PD subst Act 102 of 2010 s 3 and Sch 1[40], opn 14 July 2010]

[page 316] SECTION 44PD GENERALLY [10,650PD.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650PE] Commission may invite public submissions 44PE (1) Invitation The Commission may publish, by electronic or other means, a notice inviting public submissions: (a) on an application under subsection 44PA(1); or (b) on any proposed decision under subsection 44PC(1) or (2) to revoke a decision under subsection 44PA(3) to approve a tender process as a competitive tender process; if it considers that it is appropriate and practicable to do so. (2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published). (3) Consideration of submissions Subject to subsection (6), in making its decision, the Commission: (a) must have regard to any submission made on or before the day specified in the notice; and

(b) may disregard any submission made after the day specified in the notice. [subs (3) subst Act 102 of 2010 s 3 and Sch 1[41], opn 14 July 2010]

(4) Commission may make submissions publicly available The Commission may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available. (5) Confidentiality A person may, at the time of making a submission, request that the Commission: (a) not make the whole or a part of the submission available under subsection (4); and (b) not publish or make available the whole or a part of the submission under section 44PF; because of the confidential commercial information contained in the submission. (6) If the Commission refuses such a request: (a) for a written submission — the Commission must, if the person who made it so requires, return the whole or the part of it to the person; and (b) for an oral submission — the person who made it may inform the Commission that the person withdraws the whole or the part of it; and (c) if the Commission returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Commission must not: (i) make the whole or the part of the submission available under subsection (4); and (ii) publish or make available the whole or the part of the submission under section 44PF; and (iii) have regard to the whole or the part of the submission in making its decision. [page 317] SECTION 44PE GENERALLY

[10,650PE.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650PF] decisions

Commission must publish its

44PF (1) The Commission must publish, by electronic or other means, a decision under subsection 44PA(3) or 44PC(1) or (2) and its reasons for the decision. (2) The Commission must give a copy of the publication to: (a) for any decision — the applicant under subsection 44PA(1); and (b) for a decision under subsection 44PC(2) — the provider of the service. It may also give a copy to any other person the Commission considers appropriate. (3) Consultation Before publishing under subsection (1), the Commission may give the following persons: (a) for any decision — the applicant under subsection 44PA(1) or any other person the Commission considers appropriate; (b) for a decision under subsection 44PC(2) — the provider of the service; a notice in writing: (c) specifying what the Commission is proposing to publish; and (d) inviting the person to make a written submission to the Commission within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature. (4) The Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant. SECTION 44PF GENERALLY

[10,650PF.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650PG] decision

Review of Commission’s initial

44PG (1) Application A person whose interests are affected by a decision of the Commission under subsection 44PA(3) may apply in writing to the Tribunal for review of the decision. (2) The person must apply for review within 21 days after the Commission publishes its decision. (3) Review The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA). [subs (3) am Act 102 of 2010 s 3 and Sch 1[42], [43], opn 14 July 2010]

(4) For the purposes of the review, the Tribunal has the same powers as the Commission. [page 318] (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review. [subs (5) subst Act 102 of 2010 s 3 and Sch 1[45], opn 14 July 2010]

(5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review. [subs (5A) insrt Act 102 of 2010 s 3 and Sch 1[45], opn 14 July 2010]

(5B) The Tribunal must:

(a) give a copy of the notice to: (i) the person who applied for review; and (ii) the person who made the application under subsection 44PA(1) requesting approval of a tender process as a competitive tender process; and (iii) any other person who has been made a party to the proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice. [subs (5B) insrt Act 102 of 2010 s 3 and Sch 1[45], opn 14 July 2010]

(6) Tribunal’s decision If the Commission refused to approve a tender process as a competitive tender process, the Tribunal must, by writing: (a) affirm the Commission’s decision; or (b) set aside the Commission’s decision and approve the process as a competitive tender process. (7) A decision of the Tribunal to approve a process as a competitive tender process is taken to be a decision by the Commission for all purposes of this Part (except this section). (8) If the Commission approved a tender process as a competitive tender process, the Tribunal must, by writing, affirm or set aside the Commission’s decision. Note: If the Tribunal sets aside a decision of the Commission to approve a tender process as a competitive tender process, the Commission’s decision is no longer in force. This means the designated Minister is no longer prevented by subsection 44H(3A) from declaring a service provided by means of the facility concerned. SECTION 44PG GENERALLY [10,650PG.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650PH] approval

Review of decision to revoke an

44PH (1) Application If the Commission makes a decision under subsection 44PC(1) or (2), the following persons may apply in writing to the Tribunal for review of the decision: (a) for either decision — the applicant under subsection 44PA(1) or any other person whose interests are affected by the decision; (b) for a decision under subsection 44PC(2) — the provider of the service. [page 319] (2) The person must apply for review within 21 days after the Commission publishes its decision. (3) Review The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA). [subs (3) am Act 102 of 2010 s 3 and Sch 1[46], [47], opn 14 July 2010]

(4) For the purposes of the review, the Tribunal has the same powers as the Commission. (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review. [subs (5) subst Act 102 of 2010 s 3 and Sch 1[48], opn 14 July 2010]

(5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review. [subs (5A) insrt Act 102 of 2010 s 3 and Sch 1[48], opn 14 July 2010]

(5B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) the person who made the application under subsection 44PA(1) requesting approval of a tender process as a

competitive tender process; and (iii) for a review of a decision under subsection 44PC(2) — the provider of the service; and (iv) any other person who has been made a party to the proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice. [subs (5B) insrt Act 102 of 2010 s 3 and Sch 1[48], opn 14 July 2010]

(6) Tribunal’s decision The Tribunal must, by writing, affirm or set aside the Commission’s decision. SECTION 44PH GENERALLY [10,650PH.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________ DIVISION 2C — REGISTER OF DECISIONS AND DECLARATIONS [Div 2C insrt Act 92 of 2006 s 3 and Sch 1[50], opn 1 Oct 2006]

[10,650Q] Register of decisions, declarations and ineligibility decisions 44Q

The Commission must maintain a public register that includes: [page 320]

(a) each decision of the Commonwealth Minister that a regime established by a State or Territory for access to a service is an effective access regime for the service or proposed service; and (aa) each decision of the Commonwealth Minister to extend the period for which a decision under section 44N is in force; and (b) each declaration (including a declaration that is no longer in force); and

each decision of a designated Minister under section 44LG that a (ba) service is ineligible to be a declared service; and (bb) each decision of a designated Minister under section 44LI to revoke his or her decision that a service is ineligible to be a declared service; and (c) each decision of the Commission under subsection 44PA(3) to approve a tender process as a competitive tender process; and (d) each decision of the Commission under section 44PC to revoke a decision under subsection 44PA(3). [s 44Q am Act 101 of 1998 Sch 1; Act 92 of 2006 s 3 and Sch 1[51], [52], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 2[9], opn 14 July 2010]

SECTION 44Q GENERALLY [10,650Q.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. ____________________ DIVISION 3 — ACCESS TO DECLARED SERVICES Subdivision A — Scope of Division

[10,650R] Constitutional limits on operation of this Division 44R This Division does not apply in relation to a third party’s access to a service unless: (a) the provider is a corporation (or a partnership or joint venture consisting wholly of corporations); or (b) the third party is a corporation; or (c) the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce. Subdivision B — Notification of access disputes

[10,650S]

Notification of access disputes

44S (1) If a third party is unable to agree with the provider on one or more aspects of access to a declared service, either the provider or the third party may notify the Commission in writing that an access dispute exists, but only to the extent that those aspects of access are not the subject of an access undertaking that is in operation in relation to the service. Note: An example of one of the things on which a provider and third party might disagree is whether a previous determination ought to be varied. [subs (1) am Act 92 of 2006 s 3 and Sch 1[53], opn 1 Oct 2006]

[page 321] (2) On receiving the notification, the Commission must give notice in writing of the access dispute to: (a) the provider, if the third party notified the access dispute; (b) the third party, if the provider notified the access dispute; (c) any other person whom the Commission thinks might want to become a party to the arbitration.

[10,650T]

Withdrawal of notifications

44T (1) A notification may be withdrawn as follows (and not otherwise): (a) if the provider notified the dispute: (i) the provider may withdraw the notification at any time before the Commission makes its final determination; (ii) the third party may withdraw the provider’s notification at any time after the Commission issues a draft final determination, but before it makes its final determination; (b) if the third party notified the dispute, the third party may withdraw the notification at any time before the Commission makes its determination. [subs (1) am Act 92 of 2006 s 3 and Sch 1[54], [55], [56], opn 1 Oct 2006]

(2) Despite subparagraph (1)(a)(ii), if the provider notified a dispute over variation of a final determination, the third party may not withdraw the provider’s notification. [subs (2) am Act 92 of 2006 s 3 and Sch 1[57], opn 1 Oct 2006]

(3) If the notification is withdrawn, it is taken for the purposes of this Part never to have been given. SECTION 44T GENERALLY [10,650T.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. ____________________ Subdivision C — Arbitration of access disputes

[10,650U] 44U (a) (b) (c)

Parties to the arbitration

The parties to the arbitration of an access dispute are: the provider; the third party; any other person who applies in writing to be made a party and is accepted by the Commission as having a sufficient interest.

[10,650V]

Determination by Commission

44V (1) Unless it terminates the arbitration under section 44Y, 44YA, 44ZZCB or 44ZZCBA, the Commission: (a) must make a written final determination; and (b) may make a written interim determination; [page 322] on access by the third party to the service. Note 1: There are time limits that apply to the Commission’s final

determination: see section 44XA. Note 2: The Commission may defer arbitration of the access dispute if it is also considering an access undertaking: see section 44ZZCB. [subs (1) subst Act 92 of 2006 s 3 and Sch 1[58], opn 1 Oct 2006; am Act 102 of 2010 s 3 and Sch 1[49], Sch 5[14], opn 14 July 2010]

(2) A determination may deal with any matter relating to access by the third party to the service, including matters that were not the basis for notification of the dispute. By way of example, the determination may: (a) require the provider to provide access to the service by the third party; (b) require the third party to accept, and pay for, access to the service; (c) specify the terms and conditions of the third party’s access to the service; (d) require the provider to extend the facility; (da) require the provider to permit interconnection to the facility by the third party; (e) specify the extent to which the determination overrides an earlier determination relating to access to the service by the third party. [subs (2) am Act 92 of 2006 s 3 and Sch 1[59], [60], opn 1 Oct 2006]

(3) A determination does not have to require the provider to provide access to the service by the third party. [subs (3) am Act 92 of 2006 s 3 and Sch 1[61], opn 1 Oct 2006]

(4) Before making a determination, the Commission must give a draft determination to the parties. (5) When the Commission makes a determination, it must give the parties to the arbitration its reasons for making the determination. (6) A determination is not a legislative instrument. [subs (6) insrt Act 92 of 2006 s 3 and Sch 1[62], opn 1 Oct 2006; am Act 126 of 2015 s 3 and Sch 1 item 131, opn 5 Mar 2016]

SECTION 44V GENERALLY [10,650V.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. [10,650V.10] Extension of a facility

Section 44V(2)(d) permits the

Commission to make a determination that requires the provider to extend the facility. A capacity expansion falls within the extension power: Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [730] per Finkelstein J, Mr Grant Latta and Professor David Round. In reaching this conclusion in Fortescue, the Tribunal said (at [723]–[729]): [723] Those objects (found in s 44AA) support a power to order capacity expansions. The objective of promoting the efficient investment in infrastructure must be understood in light of Pt IIIA’s concern with facilities which exhibit natural monopoly characteristics. That is, the only facilities to which the access regime may be applied are those whose output can, or when expanded will, satisfy market demand more efficiently than if provided by more than one facility. It would be odd to hold that a facility displays natural monopoly characteristics and, at the same time, deny to the ACCC the power to compel the owner to increase the facility’s capacity so that it can in fact satisfy that demand. [page 323] [724] Second, it is clear that, whatever “extension” means, it is more than merely permitting a third party to connect to the facility, as the incumbents argue. The problem with the incumbents’ argument is that there is a separate power for ordering interconnections. This suggests that extensions, which must be different in nature, could potentially be more extensive than mere interconnection. [725] Third, if extend means merely to elongate a facility, then, as a practical matter, some perverse or arbitrary results might arise. Assume there is a port where an extra berth could be built, or an airport which could handle extra traffic if a runway were extended. In those examples, it would be possible to increase the capacity of the facility through elongating the facility. On the other hand, it is not difficult to imagine other facilities where capacity could not be increased through elongation. It seems to be somewhat arbitrary for the ACCC to have a power which, when exercised, would in some cases result in capacity expansions but not in others. In any event, the distinction between an extension and an expansion in the rail context may be blurred. Strictly speaking, building a siding extending from a single track line is an extension, but will usually have the effect of expanding capacity. [726] Fourth, we accept that a power to order a capacity expansion is potentially a dramatic power. Consider a major railway expansion which could easily cost hundreds of millions of dollars or more, and take years to complete. Once a direction is given and the works are commenced many things could, and often will, go wrong. If the parties do not resolve those matters, the ACCC will be called upon to arbitrate the outstanding dispute. The existence of an expansion power would result in the ACCC effectively becoming a party to the access arrangement and having a significant project management role. Such a power would be a serious interference with a firm’s right to go about its affairs, and undertake its own style of operation, as it thinks fit. [727] The other side of the coin, however, is that (1) the power to order capacity expansions is discretionary and (2) there will be many circumstances where the exercise of the power will not have a significant adverse effect. Here we are dealing with railways, but for other facilities, capacity expansions may be more straightforward. [728] Fifth, we think that the reference in the preamble to the ACCC making orders in respect of

“any matters relating to access” indicates a legislative intention that the ACCC should have a broad, plenary power to deal with access disputes. A narrow reading of “extend” would be inconsistent with this. [729] Sixth, there is the decision of the Privy Council to which the NCC made reference, Municipal Council of Shanghai v McMurray [1900] AC 206. The case concerned a regulation which dealt with the “extension of the lines of roads”. The true construction of the word “extension” was in issue. In the course of giving the advice, Lord Hobhouse said (at 210): The word “extension” is very commonly used in connection with railways and tramways, both in legal documents and by people at large. When an extension of the Great Western Railway is spoken of no one supposed that the thing meant is merely to prolong the existing line or to increase its breadth for laying down more rails. Branches are contemplated as well as the original main line when extensions are spoken of. That is certainly a common use of language, nor can their Lordships see that in point of etymology or philology it is incorrect.

In Fortescue, the Tribunal (at [731]) rejected an argument that because the power in s 44V(2) must relate to access to the “service”, expanding capacity of the facility would be beyond power. The Tribunal said (at [732]–[733]): [732] First, s 44V(2) expressly envisages an extension of the facility. Even if the power is confined to directing an elongation, that might just as easily alter the nature of the service. [733] Second, and more fundamentally, we think that RTIO’s argument ignores what the Tribunal sees as a fundamental distinction between, on the one hand, the service which is being [page 324] provided by the facility, and, on the other hand, the facility which provides the service. It will often be the case that the physical characteristics of the facility itself may change from time to time. Given the possibility that a declaration may continue for 20 years, it is very likely that the facility will change during the life of a declaration. It does not follow that a change in the characteristics of the facility results in a change in the nature of the service. On the contrary, the service remains constant — in this case, use of the facility. If one were to accept RTIO’s argument, it would be a simple thing to undermine the regime.

____________________

[10,650W]

Restrictions on access determinations

44W (1) The Commission must not make a determination that would have any of the following effects: (a) preventing an existing user obtaining a sufficient amount of the service to be able to meet the user’s reasonably anticipated requirements, measured at the time when the dispute was notified; (b) preventing a person from obtaining, by the exercise of a pre-

notification right, a sufficient amount of the service to be able to meet the person’s actual requirements; (c) depriving any person of a protected contractual right; (d) resulting in the third party becoming the owner (or one of the owners) of any part of the facility, or of extensions of the facility, without the consent of the provider; (e) requiring the provider to bear some or all of the costs of extending the facility or maintaining extensions of the facility; (f) requiring the provider to bear some or all of the costs of interconnections to the facility or maintaining interconnections to the facility. [subs (1) am Act 92 of 2006 s 3 and Sch 1[63], opn 1 Oct 2006]

(2) Paragraphs (1)(a) and (b) do not apply in relation to the requirements and rights of the third party and the provider when the Commission is making a determination in arbitration of an access dispute relating to an earlier determination of an access dispute between the third party and the provider. (3) A determination is of no effect if it is made in contravention of subsection (1). (4) If the Commission makes a determination that has the effect of depriving a person (the second person) of a pre-notification right to require the provider to supply the service to the second person, the determination must also require the third party: (a) to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and (b) to reimburse the provider and the Commonwealth for any compensation that the provider or the Commonwealth agrees, or is required by a court order, to pay to the second party as compensation for the deprivation. Note: Without infringing paragraph (1)(b), a determination may deprive a second person of the right to be supplied with an amount of service equal to the difference between the total amount of service the person was entitled to under a pre-notification right and the amount that the person actually needs to meet his or her actual requirements.

[page 325] (4A) If an application for review of a declaration of a service has been made under subsection 44K(1), the Commission must not make a determination in relation to the service until the Tribunal has made its decision on the review. [subs (4A) insrt Act 102 of 2010 s 3 and Sch 5[15], opn 14 July 2010]

(5) In this section: existing user means a person (including the provider) who was using the service at the time when the dispute was notified. pre-notification right means a right under a contract, or under a determination, that was in force at the time when the dispute was notified. protected contractual right means a right under a contract that was in force at the beginning of 30 March 1995. SECTION 44W GENERALLY [10,650W.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. The amendment inserted para (1)(f). [10,650W.10] Capacity requirements of an existing user Section 44W(1)(a) precludes the Commission from making a decision that would prevent an existing user from obtaining a sufficient amount of capacity to meet its reasonably anticipated requirements. Although this is not an express factor in deciding whether to make a declaration, it is necessary to consider whether the facility has spare capacity for third party use. If there is no spare capacity for third party use, then unless the facility can be expanded, a declaration would be futile: Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [608] per Finkelstein J, Mr Grant Latta and Professor David Round. In Fortescue the Tribunal said at [609]–[611]: [609] Putting to one side the existence of an expansion power, what is the position if there is some capacity for third party use but not sufficient capacity to cater for all third party demand? Most infrastructure access regimes have a mechanism to allocate the capacity of the infrastructure

between users on some fair and reasonable basis. The access regime established by Pt IIIA gives priority to the reasonable requirements of the incumbent (who is not necessarily the facility owner) but makes no provision for the allocation of the remaining capacity between third parties. [610] Obviously allocating spare capacity will create significant problems, made worse because the demand from third parties is unlikely to arise at the same time. Part IIIA’s intention is to foster “regulation by negotiation” at the access stage. This intention will be undermined when, as is likely, potential access seekers do not think it worthwhile to take the time to negotiate because other access seekers have “beaten it to the chase” by obtaining earlier access. Moreover, by s 44W(1)(a) access seekers who are “existing users” of the service have priority over new access seekers. [611] Even if insufficient capacity can be overcome by a power in the ACCC to direct the facility owner to expand the facility, other problems will arise. The most obvious will be: Who pays the cost of the expansion works, a cost that could be upwards of hundreds of millions, if not billions, of dollars? This problem is particularly acute in the case of successive access seekers, some of whose requirements can be met out of existing spare capacity and others only by an expansion. Once again, Pt IIIA is silent.

[page 326] [10,650W.15] Extension of a facility Section 44W(1)(e) precludes the Commission from making a decision that would require the provider to bear some or all of the costs of extending the facility. A capacity expansion falls within the extension power: Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 at [730] per Finkelstein J, Mr Grant Latta and Professor David Round. See also [10,650V.5]. [10,650W.20] Application to earlier determinations of Commission Section 44W(2) provides that the “sufficient amount” provisions in s 44W(1) (a) and (b) do not apply to an earlier determination of an access dispute. In the matter of Re Fortescue Metals Group Ltd (2010) 271 ALR 256; [2010] ACompT 2; BC201005122 Finkelstein J, Mr Grant Latta and Professor David Round said at [603]–[605]: [603] Subsection (2) gives rise to an anomaly, similar to that discussed earlier, where an owner who has priority over a third party user at the time of an earlier determination, may lose that priority merely because of a new dispute in relation to the earlier determination. We do not think this anomaly can be avoided as the legislation is presently worded. In saying this, we appreciate that subs (2) operates so that, if an owner is deprived of its priority rights under an earlier determination, it might be entitled to compensation under subs (4). This will give the owner some comfort. But it will not be of much assistance in the case of losses suffered because the owner no longer has priority in respect of its reasonably anticipated requirements as at the time of the new dispute, requirements which may have increased significantly since the earlier dispute.

[604] Section 44W is not the only provision which is relevant to whether the owner has priority to the service. The objects clause and s 44Z(1)(a) are also relevant. One object (to which we regularly refer) is to promote the economically efficient investment in the infrastructure by which services are provided. Section 44X(1)(a) provides that in making a final determination, the ACCC must take into account the legitimate business interests of the provider and the provider’s investment in the facility. FMG suggests that while s 44X(1)(a) does not guarantee the owner protection in respect to its demand for the service, it is nonetheless an important discretionary factor. It refers in this regard to BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145 at [43]. There, the High Court states the uncontroversial proposition that in making an access determination, the ACCC must take into account the incumbent’s legitimate business interests. We do not think that this passage can be read, as FMG would have it, as implying that special, if not overwhelming, weight will be given to this factor relative to other discretionary factors. [605] Nonetheless, there are other reasons for thinking that the ACCC would not readily make a determination which did not enable the owner to meet its reasonably anticipated requirements. First, a contrary determination would drastically undermine the owner’s incentives to invest in infrastructure in the future. It is one thing to give access to a service which the owner is not using; it is another to force the owner to forgo its own usage. Second, a determination which prevents the owner from meeting its requirements could be an acquisition of property. Section 44ZN provides for the Commonwealth to pay compensation if a determination would be constitutionally invalid because it does not sufficiently compensate a person for an acquisition of property. Notably, the pricing principles in s 44ZZCA do not envisage the payment of compensation for such an acquisition. The price for access is based on efficient costs of providing access and a return on investment commensurate with the regulatory and commercial risks involved. There is, therefore, risk that s 44ZN would be triggered, a clumsy outcome at best.

____________________

[page 327]

[10,650X] Matters that the Commission must take into account 44X (1) Final determinations The Commission must take the following matters into account in making a final determination: (aa) the objects of this Part; (a) the legitimate business interests of the provider, and the provider’s investment in the facility; (b) the public interest, including the public interest in having competition in markets (whether or not in Australia); (c) the interests of all persons who have rights to use the service; (d) the direct costs of providing access to the service; (e) the value to the provider of extensions whose cost is borne by someone else; (ea) the value to the provider of interconnections to the facility whose cost is borne by someone else; (f) the operational and technical requirements necessary for the safe and reliable operation of the facility; (g) the economically efficient operation of the facility; (h) the pricing principles specified in section 44ZZCA. [subs (1) am Act 92 of 2006 s 3 and Sch 1[64]–[67], opn 1 Oct 2006]

(2) The Commission may take into account any other matters that it thinks are relevant. (3) Interim determinations The Commission may take the following matters into account in making an interim determination: (a) a matter referred to in subsection (1); (b) any other matter it considers relevant. [subs (3) insrt Act 92 of 2006 s 3 and Sch 1[68], opn 1 Oct 2006]

(4) In making an interim determination, the Commission does not have a duty to consider whether to take into account a matter referred to in subsection (1).

[subs (4) insrt Act 92 of 2006 s 3 and Sch 1[68], opn 1 Oct 2006]

SECTION 44X GENERALLY [10,650X.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. ____________________

[10,650XA] Time limit for Commission’s final determination 44XA (1) Commission to make final determination within 180 days The Commission must make a final determination within the period of 180 days (the expected period) starting at the start of the day the application is received. (2) Stopping the clock In working out the expected period in relation to a final determination, in a situation referred to in column 1 of an item of the following table, disregard any day in a period: (a) starting on the day referred to in column 2 of the item; and (b) ending on the day referred to in column 3 of the item. [page 328]

(3) Despite subsection (2), do not disregard any day more than once. (4) Stopping the clock by agreement The Commission and the parties to the access dispute may agree in writing that a specified period is to be disregarded in working out the expected period. (5) The Commission must publish, by electronic or other means, the agreement. (6) Deemed final determination If the Commission does not publish under section 44ZNB a written report about a final determination within the expected period, it is taken, immediately after the end of the expected period, to have: (a) made a final determination that does not impose any obligations on the parties or alter any obligations (if any) that exist at that time between the parties; and (b) published a written report about the final determination under section 44ZNB. [s 44XA subst Act 102 of 2010 s 3 and Sch 1[50], opn 14 July 2010]

SECTION 44XA GENERALLY [10,650XA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the

recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650Y] Commission may terminate arbitration in certain cases 44Y (1) The Commission may at any time terminate an arbitration (without making a final determination) if it thinks that: [page 329] (a) the notification of the dispute was vexatious; or (b) the subject matter of the dispute is trivial, misconceived or lacking in substance; or (c) the party who notified the dispute has not engaged in negotiations in good faith; or (d) access to the service should continue to be governed by an existing contract between the provider and the third party. [subs (1) am Act 92 of 2006 s 3 and Sch 1[70], opn 1 Oct 2006]

(2) In addition, if the dispute is about varying an existing determination, the Commission may terminate the arbitration if it thinks there is no sufficient reason why the previous determination should not continue to have effect in its present form. SECTION 44Y GENERALLY [10,650Y.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. ____________________

[10,650YA] Commission must terminate arbitration if declaration varied or set aside by Tribunal

44YA If the Commission is arbitrating a dispute in relation to a declared service and the Tribunal sets aside or varies the declaration in relation to the service under section 44K, the Commission must terminate the arbitration. [s 44YA insrt Act 102 of 2010 s 3 and Sch 5[16], opn 14 July 2010]

Subdivision D — Procedure in arbitrations

[10,650Z] Constitution of Commission for conduct of arbitration 44Z For the purposes of a particular arbitration, the Commission is to be constituted by 2 or more members of the Commission nominated in writing by the Chairperson.

[10,650ZA] Member of the Commission presiding at an arbitration 44ZA (1) Subject to subsection (2), the Chairperson is to preside at an arbitration. (2) If the Chairperson is not a member of the Commission as constituted under section 44Z in relation to a particular arbitration, the Chairperson must nominate a member of the Commission to preside at the arbitration.

[10,650ZB]

Reconstitution of Commission

44ZB (1) This section applies if a member of the Commission who is one of the members who constitute the Commission for the purposes of a particular arbitration: (a) stops being a member of the Commission; or (b) for any reason, is not available for the purpose of the arbitration. (2) The Chairperson must either: (a) direct that the Commission is to be constituted for the purposes of finishing the arbitration by the remaining member or members; or

[page 330] (b) direct that the Commission is to be constituted for that purpose by the remaining member or members together with one or more other members of the Commission. (3) If a direction under subsection (2) is given, the Commission as constituted in accordance with the direction must continue and finish the arbitration and may, for that purpose, have regard to any record of the proceedings of the arbitration made by the Commission as previously constituted.

[10,650ZC]

Determination of questions

44ZC If the Commission is constituted for an arbitration by 2 or more members of the Commission, any question before the Commission is to be decided: (a) unless paragraph (b) applies — according to the opinion of the majority of those members; or (b) if the members are evenly divided on the question — according to the opinion of the member who is presiding.

[10,650ZD]

Hearing to be in private

44ZD (1) Subject to subsection (2), an arbitration hearing for an access dispute is to be in private. (2) If the parties agree, an arbitration hearing or part of an arbitration hearing may be conducted in public. (3) The member of the Commission who is presiding at an arbitration hearing that is conducted in private may give written directions as to the persons who may be present. (4) In giving directions under subsection (3), the member presiding must have regard to the wishes of the parties and the need for commercial confidentiality.

[10,650ZE]

Right to representation

44ZE In an arbitration hearing before the Commission under this Part, a party may appear in person or be represented by someone else.

[10,650ZF]

Procedure of Commission

44ZF (1) In an arbitration hearing about an access dispute, the Commission: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act as speedily as a proper consideration of the dispute allows, having regard to the need to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute; and (c) may inform itself of any matter relevant to the dispute in any way it thinks appropriate. (2) The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an access dispute, and may require that the cases be presented within those periods. (3) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument. [page 331] (4) The Commission may determine that an arbitration hearing is to be conducted by: (a) telephone; or (b) closed circuit television; or (c) any other means of communication.

[10,650ZG]

Particular powers of Commission

44ZG (1) The Commission may do any of the following things for the purpose of arbitrating an access dispute: (a) give a direction in the course of, or for the purposes of, an arbitration hearing; (b) hear and determine the arbitration in the absence of a person who has been summoned or served with a notice to appear; (c) sit at any place; (d) adjourn to any time and place; (e) refer any matter to an expert and accept the expert’s report as evidence; (f) generally give all such directions, and do all such things, as are necessary or expedient for the speedy hearing and determination of the access dispute. (2) A person must not do any act or thing in relation to the arbitration of an access dispute that would be a contempt of court if the Commission were a court of record. Penalty: Imprisonment for 6 months. (3) Subsection (1) has effect subject to any other provision of this Part and subject to the regulations. (4) The Commission may give an oral or written order to a person not to divulge or communicate to anyone else specified information that was given to the person in the course of an arbitration unless the person has the Commission’s permission. (5) A person who contravenes an order under subsection (4) is guilty of an offence, punishable on conviction by imprisonment for a term not exceeding 6 months.

[10,650ZH] affirmation

Power to take evidence on oath or

44ZH (1) The Commission may take evidence on oath or affirmation and for that purpose a member of the Commission may administer an oath or affirmation. (2) The member of the Commission who is presiding may summon a person to appear before the Commission to give evidence and to produce

such documents (if any) as are referred to in the summons. (3) The powers in this section may be exercised only for the purposes of arbitrating an access dispute.

[10,650ZI]

Failing to attend as a witness

44ZI A person who is served, as prescribed, with a summons to appear as a witness before the Commission must not, without reasonable excuse: (a) fail to attend as required by the summons; or (b) fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by a member of the Commission. Penalty: Imprisonment for 6 months. [page 332]

[10,650ZJ]

Failing to answer questions etc

44ZJ (1) A person appearing as a witness before the Commission must not, without reasonable excuse: (a) refuse or fail to be sworn or to make an affirmation; or (b) refuse or fail to answer a question that the person is required to answer by the Commission; or (c) refuse or fail to produce a document that he or she was required to produce by a summons under this Part served on him or her as prescribed. Penalty: Imprisonment for 6 months. (2) It is a reasonable excuse for the purposes of subsection (1) for an individual to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might tend to incriminate the individual or to expose the individual to a penalty. This subsection does not limit what is a reasonable excuse for the purposes of subsection (1).

[10,650ZK]

Intimidation etc

44ZK A person must not: (a) threaten, intimidate or coerce another person; or (b) cause or procure damage, loss or disadvantage to another person; because that other person: (c) proposes to produce, or has produced, documents to the Commission; or (d) proposes to appear or has appeared as a witness before the Commission. Penalty: Imprisonment for 12 months.

[10,650ZL] Party may request Commission to treat material as confidential 44ZL (1) A party to an arbitration hearing may: (a) inform the Commission that, in the party’s opinion, a specified part of a document contains confidential commercial information; and (b) request the Commission not to give a copy of that part to another party. (2) On receiving a request, the Commission must: (a) inform the other party or parties that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and (b) ask the other party or parties whether there is any objection to the Commission complying with the request. (3) If there is an objection to the Commission complying with a request, the party objecting may inform the Commission of its objection and of the reasons for it. (4) After considering: (a) a request; and (b) any objection; and (c) any further submissions that any party has made in relation to the request; the Commission may decide not to give to the other party or parties a copy of

so much of the document as contains confidential commercial information that the Commission thinks should not be so given. [page 333]

[10,650ZM] Sections 18 and 19 do not apply to the Commission in an arbitration 44ZM Sections 18 and 19 do not apply to the Commission, as constituted for an arbitration.

[10,650ZN]

Parties to pay costs of an arbitration

44ZN The regulations may provide for the Commission to: (a) charge the parties to an arbitration for its costs in conducting the arbitration; and (b) apportion the charge between the parties.

[10,650ZNA]

Joint arbitration hearings

44ZNA (1) Joint arbitration hearing If: (a) the Commission is arbitrating 2 or more access disputes at a particular time; and (b) one or more matters are common to those disputes; the Chairperson may, by notice in writing, decide that the Commission must hold a joint arbitration hearing in respect of such of those disputes (the nominated disputes) as are specified in the notice. (2) The Chairperson may do so only if he or she considers this would be likely to result in the nominated disputes being resolved in a more efficient and timely manner. (3) Consulting the parties Before doing so, the Chairperson must give each party to the arbitration of each nominated dispute a notice in writing: (a) specifying what the Chairperson is proposing to do; and (b) inviting the party to make a written submission on the proposal to

the Chairperson within 14 days after the notice is given. (4) The Chairperson must have regard to any submission so made in deciding whether to do so. He or she may have regard to any other matter he or she considers relevant. (5) Directions to presiding member The Chairperson may, for the purposes of the conduct of the joint arbitration hearing, give written directions to the member of the Commission presiding at the hearing. (6) Constitution and procedure of Commission Sections 44Z to 44ZN apply to the joint arbitration hearing in a corresponding way to the way in which they apply to a particular arbitration. Note: For example, the Chairperson would be required to nominate in writing 1 or more members of the Commission to constitute the Commission for the purposes of the joint arbitration hearing. (7) Record of proceedings etc The Commission as constituted for the purposes of the joint arbitration hearing may have regard to any record of the proceedings of the arbitration of any nominated dispute. (8) The Commission as constituted for the purposes of the arbitration of each nominated dispute may, for the purposes of making a determination in relation to that arbitration: [page 334] (a) have regard to any record of the proceedings of the joint arbitration hearing; and (b) adopt any findings of fact made by the Commission as constituted for the purposes of the joint arbitration hearing. (9) Legislation Act 2003 The following are not legislative instruments: (a) a notice made under subsection (1); (b) a direction given under subsection (5). [subs (9) am Act 126 of 2015 s 3 and Sch 1 items 132, 133, opn 5 Mar 2016] [s 44ZNA insrt Act 92 of 2006 s 3 and Sch 1[71], opn 1 Oct 2006]

SECTION 44ZNA GENERALLY

[10,650ZNA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________ Subdivision DA — Arbitration reports [Subdiv DA insrt Act 92 of 2006 s 3 and Sch 1[72], opn 1 Oct 2006]

[10,650ZNB]

Arbitration reports

44ZNB (1) The Commission must prepare a written report about a final determination it makes. It must publish, by electronic or other means, the report. (2) The report may include the whole or a part of the determination and the reasons for the determination or the part of the determination. (3) Report must include certain matters The report must set out the following matters: (a) the principles the Commission applied in making the determination; (b) the methodologies the Commission applied in making the determination and the reasons for the choice of the asset valuation methodology; (c) how the Commission took into account the matters mentioned in subsection 44X(1) in making the determination; (d) any matter the Commission took into account under subsection 44X(2) in making the determination and the reasons for doing so; (e) any information provided by the parties to the arbitration that was relevant to those principles or methodologies; Note: Confidentiality issues are dealt with in subsections (5) to (7). (f) any implications the Commission considers the determination has for persons seeking access to the service or to similar services in the future; (g) if applicable—the reasons for the determination dealing with matters that were already agreed between the parties to the arbitration at the time the access dispute was notified; (h) if applicable — the reasons for the access dispute being the subject

of a joint arbitration hearing under section 44ZNA despite the objection of a party to the arbitration. (4) Report may include other matters The report may include any other matter that the Commission considers relevant. [page 335] (5) Confidentiality The Commission must not include in the report any information the Commission decided not to give to a party to the arbitration under section 44ZL. (6) Before publishing the report, the Commission must give each party to the arbitration a notice in writing: (a) specifying what the Commission is proposing to publish; and (b) inviting the party to make a written submission to the Commission within 14 days after the notice is given identifying any information the party considers should not be published because of its confidential commercial nature. (7) The Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant. (8) Legislation Act 2003 A report prepared under subsection (1) is not a legislative instrument. [subs (8) am Act 126 of 2015 s 3 and Sch 1 items 134, 135, opn 5 Mar 2016]

SECTION 44ZNB GENERALLY [10,650ZNB.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5] ____________________ Subdivision E — Effect of determinations

[10,650ZO]

Operation of final determinations

44ZO (1) If none of the parties to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s final determination, the determination has effect 21 days after the determination is made. [subs (1) am Act 92 of 2006 s 3 and Sch 1[73], opn 1 Oct 2006]

(2) If a party to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s final determination, the determination is of no effect until the Tribunal makes its determination on the review. [subs (2) am Act 92 of 2006 s 3 and Sch 1[74], opn 1 Oct 2006]

(3) Backdating Any or all of the provisions of a final determination may be expressed to apply from a specified day that is earlier than the day on which it takes effect under subsection (1) or (2). Example: The Commission makes a final determination on 1 August. It takes effect under subsection (1) on 22 August, but it is expressed to apply from 1 July. [subs (3) insrt Act 92 of 2006 s 3 and Sch 1[75], opn 1 Oct 2006]

(4) The specified day must not be earlier than the following day: (a) if the third party and provider commenced negotiations on access to the service after the service became a declared service — the day on which the negotiations commenced; (b) if the third party and provider commenced negotiations on access to the service before the service became a declared service — the day on which the declaration began to operate. [page 336] However, the specified day cannot be a day on which the third party did not have access to the service. [subs (4) insrt Act 92 of 2006 s 3 and Sch 1[75], opn 1 Oct 2006]

(5) Operation of interim determination If a provision of a final determination is expressed to apply from a day when an interim determination was in effect, the provision of the final determination prevails over the interim determination to the extent set out in the final determination.

[subs (5) insrt Act 92 of 2006 s 3 and Sch 1[75], opn 1 Oct 2006]

(6) Interest If: (a) a provision of a final determination is covered by subsection (3); and (b) the provision requires a party to the determination (the first party) to pay money to another party; the determination may require the first party to pay interest to the other party, at the rate specified in the determination, on the whole or a part of the money, for the whole or a part of the period: (c) beginning on the day specified under subsection (3); and (d) ending on the day on which the determination takes effect under subsection (1) or (2). [subs (6) insrt Act 92 of 2006 s 3 and Sch 1[75], opn 1 Oct 2006]

(7) Guidelines In exercising the power conferred by subsection (3) or (6), the Commission must have regard to any guidelines in force under subsection (8). It may have regard to any other matter it considers relevant. [subs (7) insrt Act 92 of 2006 s 3 and Sch 1[75], opn 1 Oct 2006]

(8) The Commission must, by legislative instrument, determine guidelines for the purposes of subsection (7). [subs (8) insrt Act 92 of 2006 s 3 and Sch 1[75], opn 1 Oct 2006]

(9) The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (8) is made within 6 months after the commencement of this subsection. [subs (9) insrt Act 92 of 2006 s 3 and Sch 1[75], opn 1 Oct 2006] [s 44ZO am Act 92 of 2006 s 3 and Sch 1[73], opn 1 Oct 2006]

SECTION 44ZO GENERALLY [10,650ZO.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. ____________________

[10,650ZOA] Effect and duration of interim determinations

44ZOA (1) An interim determination takes effect on the day specified in the determination. (2) Unless sooner revoked, an interim determination continues in effect until the earliest of the following: (a) the notification of the access dispute is withdrawn under section 44T; (b) a final determination relating to the access dispute takes effect; Note: A backdated final determination may prevail over an interim determination: see subsection 44ZO(5). [page 337] (c) an interim determination made by the Tribunal (while reviewing a final determination relating to the access dispute) takes effect. [s 44ZOA insrt Act 92 of 2006 s 3 and Sch 1[76], opn 1 Oct 2006]

SECTION 44ZOA GENERALLY [10,650ZOA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006, in response to the recommendations of the Productivity Commission. See [10,650.5] ____________________ Subdivision F — Review of final determinations [Subdiv F am Act 92 of 2006 s 3 and Sch 1[77], opn 1 Oct 2006]

[10,650ZP]

Review by Tribunal

44ZP (1) A party to a final determination may apply in writing to the Tribunal for a review of the determination. [subs (1) am Act 92 of 2006 s 3 and Sch 1[78], opn 1 Oct 2006]

(2) The application must be made within 21 days after the Commission made the final determination. [subs (2) am Act 92 of 2006 s 3 and Sch 1[79], opn 1 Oct 2006]

(3) A review by the Tribunal is a re-arbitration of the access dispute based on the information, reports and things referred to in section 44ZZOAA. Note: There are time limits that apply to the Tribunal’s decision on the review: see section 44ZZOA. [subs (3) am Act 92 of 2006 s 3 and Sch 1[80], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 1[51], [52], opn 14 July 2010]

(4) For the purposes of the review, the Tribunal has the same powers as the Commission. (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review. [subs (5) subst Act 102 of 2010 s 3 and Sch 1[54], opn 14 July 2010]

(5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review. [subs (5A) insrt Act 102 of 2010 s 3 and Sch 1[54], opn 14 July 2010]

(5B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) the other party or parties to the final determination; and (iii) any other person who has been made a party to the proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice. [subs (5B) insrt Act 102 of 2010 s 3 and Sch 1[54], opn 14 July 2010]

(6) The Tribunal may either affirm or vary the Commission’s determination. [page 338] (7) The determination, as affirmed or varied by the Tribunal, is to be taken to be a determination of the Commission for all purposes of this Part (except this section). (8) The decision of the Tribunal takes effect from when it is made.

SECTION 44ZP GENERALLY [10,650ZP.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. ____________________

[10,650ZQ] Provisions that do not apply in relation to a Tribunal review 44ZQ Sections 37, 39 to 43 (inclusive) and 103 to 110 (inclusive) do not apply in relation to a review by the Tribunal of a final determination made by the Commission. [s 44ZQ am Act 92 of 2006 s 3 and Sch 1[81], opn 1 Oct 2006]

SECTION 44ZQ GENERALLY [10,650ZQ.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. ____________________

[10,650ZR] Appeals to Federal Court from determinations of the Tribunal 44ZR (1) A party to an arbitration may appeal to the Federal Court, on a question of law, from the decision of the Tribunal under section 44ZP. (2) An appeal by a person under subsection (1) must be instituted: (a) not later than the 28th day after the day on which the decision of the Tribunal is made or within such further period as the Federal Court (whether before or after the end of that day) allows; and (b) in accordance with the Rules of Court made under the Federal Court of Australia Act 1976. (3) The Federal Court must hear and determine the appeal and may make any order that it thinks appropriate. (4) The orders that may be made by the Federal Court on appeal include (but are not limited to): (a) an order affirming or setting aside the decision of the Tribunal; and

(b) an order remitting the matter to be decided again by the Tribunal in accordance with the directions of the Federal Court.

[10,650ZS] Operation and implementation of a determination that is subject to appeal 44ZS (1) Subject to this section, the fact that an appeal is instituted in the Federal Court from a decision of the Tribunal does not affect the operation of the decision or prevent action being taken to implement the decision. [page 339] (2) If an appeal is instituted in the Federal Court from a decision of the Tribunal, the Federal Court or a judge of the Federal Court may make any orders staying or otherwise affecting the operation or implementation of the decision of the Tribunal that the Federal Court or judge thinks appropriate to secure the effectiveness of the hearing and determination of the appeal. (3) If an order is in force under subsection (2) (including an order previously varied under this subsection), the Federal Court or a judge of the Federal Court may make an order varying or revoking the first-mentioned order. (4) An order in force under subsection (2) (including an order previously varied under subsection (3)): (a) is subject to any conditions that are specified in the order; and (b) has effect until: (i) the end of any period for the operation of the order that is specified in the order; or (ii) the giving of a decision on the appeal; whichever is earlier.

[10,650ZT] 44ZT

Transmission of documents

If an appeal is instituted in the Federal Court:

(a) the Tribunal must send to the Federal Court all documents that were before the Tribunal in connection with the matter to which the appeal relates; and (b) at the conclusion of the proceedings before the Federal Court in relation to the appeal, the Federal Court must return the documents to the Tribunal. Subdivision G — Variation and revocation of determinations [Subdiv G am Act 92 of 2006 s 3 and Sch 1[82], opn 1 Oct 2006]

[10,650ZU]

Variation of final determinations

44ZU (1) The Commission may vary a final determination on the application of any party to the determination. However, it cannot vary the final determination if any other party objects. Note: If the parties cannot agree on a variation, a new access dispute can be notified under section 44S. [subs (1) am Act 92 of 2006 s 3 and Sch 1[83], [84], opn 1 Oct 2006]

(2) Sections 44W and 44X apply to a variation under this section as if: (a) an access dispute arising out of the final determination had been notified when the application was made to the Commission for the variation of the determination; and (b) the variation were the making of a final determination in the terms of the varied determination. [subs (2) am Act 92 of 2006 s 3 and Sch 1[85], [86], opn 1 Oct 2006] [s 44ZU am Act 92 of 2006 s 3 and Sch 1[83], opn 1 Oct 2006]

[page 340] SECTION 44ZU GENERALLY [10,650ZU.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. ____________________

[10,650ZUA] Variation and revocation of interim determinations 44ZUA (1) The Commission may, by writing, vary or revoke an interim determination. (2) The Commission must, by writing, revoke an interim determination if requested to do so by the parties to the determination. [s 44ZUA insrt Act 92 of 2006 s 3 and Sch 1[87], opn 1 Oct 2006]

SECTION 44ZUA GENERALLY [10,650ZUA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. ____________________ DIVISION 4 — REGISTERED CONTRACTS FOR ACCESS TO DECLARED SERVICES

[10,650ZV] Constitutional limits on operation of this Division 44ZV This Division does not apply to a contract unless: (a) the contract provides for access to a declared service; and (b) the contract was made after the service was declared; and (c) the parties to the contract are the provider of the service and a third party; and (d) at least one of the following conditions is met: (i) the provider is a corporation (or a partnership or joint venture consisting wholly of corporations); (ii) the third party is a corporation; (iii) the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.

[10,650ZW]

Registration of contract

44ZW (1) On application by all the parties to a contract, the Commission must: (a) register the contract by entering the following details on a public register: (i) the names of the parties to the contract; (ii) the service to which the contract relates; (iii) the date on which the contract was made; or (b) decide not to register the contract. (2) In deciding whether to register a contract, the Commission must take into account: (aa) the objects of this Part; and (a) the public interest, including the public interest in having competition in markets (whether or not in Australia); and [page 341] (b) the interests of all persons who have rights to use the service to which the contract relates. [subs (2) am Act 92 of 2006 s 3 and Sch 1[88], opn 1 Oct 2006]

(2A) The Commission must not register a contract if it deals with a matter or matters relating to access to the service that are dealt with in an access undertaking that is in operation. [subs (2A) insrt Act 92 of 2006 s 3 and Sch 1[89], opn 1 Oct 2006]

(3) The Commission must publish a decision not to register a contract. (4) If the Commission publishes a decision not to register a contract, it must give the parties to the contract reasons for the decision when it publishes the decision. SECTION 44ZW GENERALLY [10,650ZW.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. ____________________

[10,650ZX] contract

Review of decision not to register

44ZX (1) If the Commission decides not to register a contract, a party to the contract may apply in writing to the Tribunal for review of the decision. (2) An application for review must be made within 21 days after publication of the Commission’s decision. (3) The review by the Tribunal is a re-consideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA). [subs (3) am Act 92 of 2006 s 3 and Sch 1[90], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 1[55], [56], opn 14 July 2010]

(4) For the purposes of the review, the Tribunal has the same powers as the Commission. (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review. [subs (5) subst Act 102 of 2010 s 3 and Sch 1[57], opn 14 July 2010]

(5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review. [subs (5A) insrt Act 102 of 2010 s 3 and Sch 1[57], opn 14 July 2010]

(5B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) the other party or parties to the contract; and (iii) any other person who has been made a party to the proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice; and [subs (5B) insrt Act 102 of 2010 s 3 and Sch 1[57], opn 14 July 2010]

[page 342]

(6) The Tribunal may either: (a) affirm the Commission’s decision; or (b) register the contract.

[10,650ZY]

Effect of registration of contract

44ZY The parties to a contract that has been registered: (a) may enforce the contract under Division 7 as if the contract were a determination of the Commission under section 44V and they were parties to the determination; and (b) cannot enforce the contract by any other means. DIVISION 5 — HINDERING ACCESS TO DECLARED SERVICES

[10,650ZZ] Prohibition on hindering access to declared services 44ZZ (1) The provider or a user of a service to which a third party has access under a determination, or a body corporate related to the provider or a user of the service, must not engage in conduct for the purpose of preventing or hindering the third party’s access to the service under the determination. (2) A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or from other relevant circumstances. This subsection does not limit the manner in which the purpose of a person may be established for the purposes of subsection (1). (3) In this section, a user of a service includes a person who has a right to use the service. DIVISION 6 — ACCESS UNDERTAKINGS AND ACCESS CODES FOR SERVICES [Div 6 am Act 92 of 2006 s 3 and Sch 1[91], opn 1 Oct 2006]

Subdivision A — Giving of access undertakings and access codes [Subdiv A insrt Act 92 of 2006 s 3 and Sch 1[91], opn 1 Oct 2006]

[10,650ZZA]

Access undertakings by providers

44ZZA (1) A person who is, or expects to be, the provider of a service may give a written undertaking to the Commission in connection with the provision of access to the service. Note: The following are examples of the kinds of things that might be dealt with in the undertaking: (a) terms and conditions of access to the service; (b) procedures for determining terms and conditions of access to the service; (c) an obligation on the provider not to hinder access to the service; (d) an obligation on the provider to implement a particular business structure; (e) an obligation on the provider to provide information to the Commission or to another person; [page 343] (f)

an obligation on the provider to comply with decisions of the Commission or another person in relation to matters specified in the undertaking; (g) an obligation on the provider to seek a variation of the undertaking in specified circumstances. [subs (1) subst Act 28 of 1997 s 3 and Sch 1]

(2) The undertaking must specify the expiry date of the undertaking. (3) The Commission may accept the undertaking, if it thinks it appropriate to do so having regard to the following matters: (aa) the objects of this Part; (ab) the pricing principles specified in section 44ZZCA; (a) the legitimate business interests of the provider; (b) the public interest, including the public interest in having competition in markets (whether or not in Australia); (c) the interests of persons who might want access to the service; (d) [repealed]

whether the undertaking is in accordance with an access code that (da) applies to the service; (e) any other matters that the Commission thinks are relevant. Note 1: There are grounds on which the Commission may reject the undertaking if it contains, or should contain, fixed principles: see section 44ZZAAB. Note 2: The Commission may defer consideration of the undertaking if it is also arbitrating an access dispute: see section 44ZZCB. [subs (3) am Act 28 of 1997 s 3 and Sch 1; Act 92 of 2006 s 3 and Sch 1[92]–[94], opn 1 Oct 2006; Act 102 of 2010 s 3 and Sch 3[4], opn 14 July 2010]

(3AA) The Commission must not accept the undertaking if a decision of the Commonwealth Minister is in force under section 44N that a regime established by a State or Territory for access to the service is an effective access regime. [subs (3AA) insrt Act 92 of 2006 s 3 and Sch 1[95], opn 1 Oct 2006]

(3AB) The Commission may reject the undertaking if it incorporates one or more amendments (see subsection 44ZZAAA(5)) and the Commission is satisfied that the amendment or amendments are of a kind, are made at a time, or are made in a manner that: (a) unduly prejudices anyone the Commission considers has a material interest in the undertaking; or (b) unduly delays the process for considering the undertaking. [subs (3AB) insrt Act 102 of 2010 s 3 and Sch 4[1], opn 14 July 2010]

(3A) The Commission must not accept the undertaking unless: (a) the provider, or proposed provider, is a corporation (or a partnership or joint venture consisting wholly of corporations); or (b) the undertaking provides for access only to third parties that are corporations; or (c) the undertaking provides for access that is (or would be) in the course of, or for the purposes of, constitutional trade or commerce. [subs (3A) insrt Act 69 of 2000 s 3 and Sch 2]

(4) [subs (4) rep Act 92 of 2006 s 3 and Sch 1[96], opn 1 Oct 2006] [page 344]

(4A) [subs (4A) rep Act 92 of 2006 s 3 and Sch 1[96], opn 1 Oct 2006] (5) [subs (5) rep Act 92 of 2006 s 3 and Sch 1[97], opn 1 Oct 2006] (6) If the undertaking provides for disputes about the undertaking to be resolved by the Commission, then the Commission may resolve the disputes in accordance with the undertaking. (6A) If the undertaking provides for the Commission to perform functions or exercise powers in relation to the undertaking, the Commission may perform those functions and exercise those powers. If the Commission decides to do so, it must do so in accordance with the undertaking. [subs (6A) subst Act 69 of 2000 s 3 and Sch 2]

(6B) The Commission may accept the undertaking even if the service is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service. [subs (6B) insrt Act 102 of 2010 s 3 and Sch 2[10], opn 14 July 2010]

(7) The provider may: (a) withdraw the application given under subsection (1) at any time before the Commission makes a decision on whether to accept the application; and (b) withdraw or vary the undertaking at any time after it has been accepted by the Commission, but only with the consent of the Commission. The Commission may consent to a variation of the undertaking if it thinks it appropriate to do so having regard to the matters in subsection (3). Note 1: There are time limits that apply to a decision of the Commission under this section: see section 44ZZBC. Note 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD. Note 3: The Commission must publish its decision: see section 44ZZBE. [subs (7) am Act 102 of 2010 s 3 and Sch 1[58], [59], Sch 4[2], opn 14 July 2010] [s 44ZZA am Act 92 of 2006 s 3 and Sch 1[99], opn 1 Oct 2006]

SECTION 44ZZA GENERALLY [10,650ZZA.5]

Overview

This section was amended by the Trade

Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. [10,650ZZA.10] Guidelines The Commission has published a booklet on access undertakings entitled Access Undertakings: A Guide to Part IIIA of the Trade Practices Act, 1999. [10,650ZZA.15] Having regard to matters in s 44ZZA(3) In Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511; (2002) ATPR ¶41-886; [2002] WASCA 231; BC200204795 Parker J (Malcolm CJ and Anderson J agreeing) considered s 2.24 of the National Third Party Access Code for Natural Gas Pipeline Systems. In deciding whether to approve an access arrangement s 2.24 requires that the regulator “must take the following into account”, namely the factors in s 2.24. The court said, at [55], that “take into account” is little different from “have regard to”. The court also said, at [55], that in the context of the Code this required the regulator to take the stipulated factors into account and to give them weight as fundamental elements in assessing a proposed access arrangement. [10,650ZZA.20] Legitimate business interests Section 44ZZA(3)(a) requires the commission to have regard to the legitimate business interests of the provider. In Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511; (2002) ATPR ¶41-886; [2002] [page 345] WASCA 231; BC200204795 per Parker J (Malcolm CJ and Anderson J agreeing), the court examined an equivalent provision (s 2.24(a)) of the National Third Party Access Code for Natural Gas Pipeline Systems which requires a regulator to consider “the Service Provider’s legitimate business interests and investment in the Covered Pipeline”. The court, at [130], rejected the argument that in the context of the Code the recovery of monopoly prices or tariffs above the level of economically efficient prices should not be seen as legitimate. The court also said, at [130], that the ability of a monopolist to recover monopoly prices or monopoly rents does not make the enjoyment by a monopolist of a monopoly an illegitimate business

interest. [10,650ZZA.25] Public interest in having competition in markets The expression “public interest” is discussed at [10,650G.35]. In Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511; (2002) ATPR ¶41-886; [2002] WASCA 231; BC200204795 at [134] per Parker J (Malcolm CJ and Anderson J agreeing), the court examined an equivalent provision (s 2.24(e)) of the National Third Party Access Code for Natural Gas Pipeline Systems which requires a regulator to consider “the public interest, including the public interest in having competition in markets (whether or not in Australia)”. The court said at [134] that in the narrow sense of the public interest in having competition in markets, s 2.24(e) reflects the notion of the promotion of a competitive market. The reference to a competitive market is to a workably competitive market: at [126] per Parker J (Malcolm CJ and Anderson J agreeing). ____________________

[10,650ZZAAA] undertakings

Proposed amendments to access

44ZZAAA (1) Commission may give an amendment notice in relation to an undertaking Before deciding whether to accept an undertaking given to it under subsection 44ZZA(1) by a person who is, or expects to be, the provider of a service, the Commission may give the person an amendment notice in relation to the undertaking. (2) An amendment notice is a notice in writing that specifies: (a) the nature of the amendment or amendments (the proposed amendment or amendments) that the Commission proposes be made to the undertaking; and (b) the Commission’s reasons for the proposed amendment or amendments; and (c) the period (the response period) within which the person may respond to the notice, which must be at least 14 days after the day the notice was given to the person. (3) The Commission may publish, by electronic or other means, the amendment notice.

(4) The Commission may give more than one amendment notice in relation to an undertaking. (5) Person may give a revised undertaking in response to notice If a person receives an amendment notice, the person may, within the response period, respond to the notice by giving a revised undertaking to the Commission that incorporates one or more amendments. (6) If the revised undertaking incorporates one or more amendments that the Commission considers are not of the nature proposed in the amendment notice and do not address the reasons for the proposed amendments given in the amendment notice, the Commission must not accept the revised undertaking and must return it to the person within 21 days of receiving it. [page 346] (7) If the person gives a revised undertaking under subsection (5) and the revised undertaking is not returned to the person under subsection (6), the revised undertaking is taken, after the time it is given to the Commission, to be the undertaking given under section 44ZZA for the purposes of this Part. (8) The person is taken to have not agreed to the proposed amendment or amendments if the person does not respond within the response period. (9) Commission not required to accept revised undertaking The Commission is not required to accept the revised undertaking under section 44ZZA. (10) No duty to propose amendments In considering whether to accept an undertaking, the Commission does not have a duty to consider whether to propose one or more amendments to the undertaking. (11) Notice of proposed amendment is not a legislative instrument A notice given under subsection (1) is not a legislative instrument. [s 44ZZAAA insrt Act 102 of 2010 s 3 and Sch 4[3], opn 14 July 2010]

[10,650ZZAAB] fixed principles

Access undertakings containing

44ZZAAB (1) Access undertakings may contain fixed principles An access undertaking given to the Commission under subsection 44ZZA(1) may include one or more terms that, under the undertaking, are fixed for a specified period. (2) Each of the terms is a fixed principle and the specified period is a fixed period. Different periods may be specified for different fixed principles. (3) The fixed period must: (a) start: (i) when the access undertaking comes into operation; or (ii) at a later time ascertained in accordance with the undertaking; and (b) extend beyond the expiry date of the undertaking. (4) Consideration of fixed principles The Commission may reject the undertaking if it: (a) includes a term that is not a fixed principle and that the Commission considers should be a fixed principle; or (b) includes a fixed principle that the Commission considers should not be fixed; or (c) includes a fixed principle that the Commission considers should be fixed for a period that is different from the period specified in the undertaking. However, the Commission must not reject the undertaking solely on the basis that it is consistent with a fixed principle that is included in the undertaking in compliance with subsection (6). (5) Fixed principles must be carried over to later undertakings Subsection (6) applies if: (a) the Commission accepts an undertaking (the earlier undertaking) in connection with the provision of access to a service that includes a fixed principle; and (b) an undertaking (the later undertaking) is given to the Commission in connection with the provision of access to the service within the fixed period for the fixed principle; and

[page 347] (c) at the time the later undertaking is given: (i) the fixed principle has not been revoked under subsection (7); and (ii) the earlier undertaking has not been varied under subsection 44ZZA(7) so that the fixed principle is no longer a term of the earlier undertaking. (6) The Commission must not accept the later undertaking under section 44ZZA unless the undertaking includes a term that is the same as the fixed principle. (7) Variation or revocation of fixed principles when no undertaking is in operation If there is no access undertaking in operation in connection with the provision of access to a service, the provider may revoke or vary a fixed principle that relates to the service (including the fixed period for the principle), but only with the consent of the Commission. The Commission may consent to the revocation or variation of the fixed principle if it thinks it appropriate to do so having regard to the matters in subsection 44ZZA(3). Note: Subsection 44ZZA(7) contains provision for fixed principles to be varied or revoked in the situation where there is an access undertaking in operation. This may include a variation of the fixed period for the fixed principle. (8) Alteration of fixed principles If an undertaking that is accepted by the Commission contains one or more fixed principles, the undertaking is accepted on the basis that: (a) the principle may be varied or revoked under subsection (7) or 44ZZA(7); and (b) the principle may be cancelled, revoked, terminated or varied by or under later legislation; and (c) no compensation is payable if the principle is cancelled, revoked, terminated or varied as mentioned in any of the above paragraphs. (9) Subsection (8) does not, by implication, affect the interpretation of any other provision of this Act. [s 44ZZAAB insrt Act 102 of 2010 s 3 and Sch 3[5], opn 14 July 2010]

[10,650ZZAA] Access codes prepared by industry bodies 44ZZAA (1) An industry body may give a written code to the Commission setting out rules for access to a service. (2) The code must specify the expiry date of the code. (3) The Commission may accept the code, if it thinks it appropriate to do so having regard to the following matters: (aa) the objects of this Part; (ab) the pricing principles specified in section 44ZZCA; (a) the legitimate business interests of providers who might give undertakings in accordance with the code; (b) the public interest, including the public interest in having competition in markets (whether or not in Australia); (c) the interests of the persons who might want access to the service covered by the code; (d) [repealed] (e) any matters specified in regulations made for the purposes of this subsection; (f) any other matters that the Commission thinks are relevant. [subs (3) am Act 92 of 2006 s 3 and Sch 1[100], [101], opn 1 Oct 2006]

[page 348] (3A) The Commission must not accept the code if a decision of the Commonwealth Minister is in force under section 44N that a regime established by a State or Territory for access to the service is an effective access regime. [subs (3A) insrt Act 92 of 2006 s 3 and Sch 1[102], opn 1 Oct 2006]

(4) [subs (4) rep Act 92 of 2006 s 3 and Sch 1[103], opn 1 Oct 2006] (5) [subs (5) rep Act 92 of 2006 s 3 and Sch 1[104], opn 1 Oct 2006] (6) The industry body may: (a) withdraw the code given under subsection (1) at any time before the Commission makes a decision whether to accept the code; and

(b) withdraw or vary the code at any time after it has been accepted by the Commission, but only with the consent of the Commission. The Commission may consent to a variation of the code if it thinks it appropriate to do so having regard to the matters in subsection (3). Note: The Commission may rely on industry body consultations before giving its consent: see section 44ZZAB. [subs (6) subst Act 102 of 2010 s 3 and Sch 4[4], opn 14 July 2010]

(7) If the industry body that gave the code to the Commission has ceased to exist, a withdrawal or variation under subsection (6) may be made by a body or association prescribed by the regulations as a replacement for the original industry body. (8) In this section: code means a set of rules (which may be in general terms or detailed terms). industry body means a body or association (including a body or association established by a law of a State or Territory) prescribed by the regulations for the purposes of this section. [def am Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

Note 1: There are time limits that apply to a decision of the Commission under this section: see section 44ZZBC. Note 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD. Note 3: The Commission must publish its decision: see section 44ZZBE. [subs (8) am Act 102 of 2010 s 3 and Sch 1[60], [61], opn 14 July 2010] [s 44ZZAA insrt No 28 of 1997 s 3 and Sch 1; am Act 92 of 2006 s 3 and Sch 1[106], opn 1 Oct 2006]

SECTION 44ZZAA GENERALLY [10,650ZZAA.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. ____________________

[10,650ZZAB] Commission may rely on industry body consultations

44ZZAB (1) The Commission may accept a code if the industry body has done the following before giving the code to the Commission under subsection 44ZZAA(1): (a) published the code or a draft of the code and invited people to make submissions to the industry body on the code or draft; [page 349] (b) specified the effect of this subsection and subsection (2) when it published the code or draft; (c) considered any submissions that were received within the time limit specified by the industry body when it published the code or draft. [subs (1) am Act 102 of 2010 s 3 and Sch 5[17], opn 14 July 2010]

(2) In deciding whether to accept the code, the Commission may consider any submission referred to in paragraph (1)(c). (3) Before consenting to a variation or withdrawal of a code under subsection 44ZZAA(6), the Commission may rely on: (a) publication of the variation or notice of the withdrawal by the industry body, including specification of the effect of this subsection and subsection (4); and (b) consideration by the industry body of any submissions that were received within the time limit specified by the industry body when it published the variation or notice. (4) In deciding whether to consent to the variation or withdrawal, the Commission may consider any submission referred to in paragraph (3)(b). (5) In this section: code has the same meaning as it has in section 44ZZAA. industry body has the same meaning as it has in section 44ZZAA. [s 44ZZAB insrt Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

[10,650ZZB]

Undertakings cannot be accepted in

certain cases 44ZZB 2006]

[s 44ZZB rep Act 92 of 2006 s 3 and Sch 1[107], opn 1 Oct

Subdivision B — Effect of access undertakings and access codes [Subdiv B insrt Act 92 of 2006 s 3 and Sch 1[108], opn 1 Oct 2006]

[10,650ZZBA] When access undertakings and access codes come into operation 44ZZBA (1) Acceptance of access undertakings or access codes If the Commission accepts an access undertaking or an access code, it comes into operation at: (a) if, within 21 days after the Commission publishes its decision, no person has applied to the Tribunal for review of the decision — the end of that period; or (b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision — the time of the Tribunal’s decision. (2) If the Tribunal decides under paragraph 44ZZBF(7)(e) to accept an access undertaking or access code, it comes into operation at the time of the Tribunal’s decision. (3) An access undertaking or access code continues in operation until its expiry date, unless it is earlier withdrawn. Note: The period for which an access undertaking or access code is in operation may be extended: see section 44ZZBB. [page 350] (4) Withdrawal or variation of access undertakings or access codes If the Commission consents to the withdrawal or variation of an access undertaking or an access code, the withdrawal or variation comes into operation at:

if, within 21 days after the Commission publishes its decision, no (a) person has applied to the Tribunal for review of the decision — the end of that period; or (b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision — the time of the Tribunal’s decision. (5) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent to the withdrawal or variation of an access undertaking or access code, the withdrawal or variation comes into operation at the time of the Tribunal’s decision. (6) Revocation or variation of fixed principles in access undertakings If the Commission consents to the revocation or variation of a fixed principle that is included as a term of an access undertaking under subsection 44ZZAAB(7), the revocation or variation comes into operation at: (a) if, within 21 days after the Commission publishes its decision, no person has applied to the Tribunal for review of the decision — the end of that period; or (b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision — the time of the Tribunal’s decision. [subs (6) insrt Act 102 of 2010 s 3 and Sch 3[6], opn 14 July 2010]

(7) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent to the revocation or variation of a fixed principle that is included as term of an access undertaking, the revocation or variation comes into operation at the time of the Tribunal’s decision. [subs (7) insrt Act 102 of 2010 s 3 and Sch 3[6], opn 14 July 2010]

SECTION 44ZZBA GENERALLY [10,650ZZBA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006 in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________ Subdivision C — Extensions of access undertakings and access codes [Subdiv C insrt Act 92 of 2006 s 3 and Sch 1[108], opn 1 Oct 2006]

[10,650ZZBB] Extensions of access undertakings and access codes 44ZZBB (1) Access undertakings If an access undertaking is in operation under section 44ZZBA (including as a result of an extension under this section), the provider of the service may apply in writing to the Commission for an extension of the period for which it is in operation. Note: The Commission may extend the period for which the undertaking is in operation more than once: see subsection (8). This means there may be multiple applications under this subsection. [page 351] (2) The provider of the service must specify in the application a proposed extension period. (3) The Commission may, by notice in writing, extend the period for which the undertaking is in operation if it thinks it appropriate to do so having regard to the matters mentioned in subsection 44ZZA(3). The notice must specify the extension period. (4) Access codes If an access code is in operation under section 44ZZBA (including as a result of an extension under this section), the industry body may apply in writing to the Commission for an extension of the period for which it is in operation. Note: The Commission may extend the period for which the code is in operation more than once: see subsection (8). This means there may be multiple applications under this subsection. (5) The industry body must specify in the application a proposed extension period. (6) The Commission may, by notice in writing, extend the period for which the code is in operation if it thinks it appropriate to do so having regard to the matters mentioned in subsection 44ZZAA(3). The notice must specify the extension period. (7) If the industry body that gave the code to the Commission has ceased to exist, an application under subsection (4) may be made by a body or

association referred to in subsection 44ZZAA(7). (8) Multiple extensions The Commission may extend the period for which an access undertaking or an access code is in operation more than once. Note 1: There are time limits that apply to a decision of the Commission under this section: see section 44ZZBC. Note 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD. Note 3: The Commission must publish its decision: see section 44ZZBE. [subs (8) am Act 102 of 2010 s 3 and Sch 1[62], [63], opn 14 July 2010]

SECTION 44ZZBB GENERALLY [10,650ZZBB.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006 in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________ Subdivision D — Procedural provisions [Subdiv D insrt Act 92 of 2006 s 3 and Sch 1[108], opn 1 Oct 2006]

[10,650ZZBC] decisions

Time limit for Commission

44ZZBC (1) Commission to make decision on application within 180 days The Commission must make a decision on an access undertaking application or an access code application within the period of 180 days (the expected period) starting at the start of the day the application is received. (2) Stopping the clock In working out the expected period in relation to an access undertaking application or an access code application, in a situation referred to in [page 352]

column 1 of an item of the following table, disregard any day in a period: (a) starting on the day referred to in column 2 of the item; and (b) ending on the day referred to in column 3 of the item.

(3) Despite subsection (2), do not disregard any day more than once. (4) Stopping the clock by agreement The Commission and: (a) for an access undertaking application — the provider of the service; and (b) for an access code application — the industry body or its replacement; may agree in writing that a specified period is to be disregarded in working out the expected period. (5) The Commission must publish, by electronic or other means, the agreement. (6) Deemed final determination If the Commission does not publish under section 44ZZBE an access undertaking decision or an access code decision within the expected period, it is taken, immediately after the end of

the expected period, to have: (a) made a decision to not accept the application; and (b) published its decision under section 44ZZBE and its reasons for that decision. [s 44ZZBC subst Act 102 of 2010 s 3 and Sch 1[64], opn 14 July 2010]

[page 353] SECTION 44ZZBC GENERALLY [10,650ZZBC.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006 in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650ZZBCA] information

Commission may request

44ZZBCA (1) The Commission may give a person a written notice requesting the person give to the Commission, within a specified period, information of a kind specified in the notice that the Commission considers may be relevant to making a decision on an access undertaking application or an access code application. (2) The Commission must: (a) give a copy of the notice to: (i) in the case of an access undertaking application — the provider of the service (unless the provider is the person); and (ii) in the case of an access code application — the industry body that gave the application to the Commission (unless the body is the person); and (b) publish, by electronic or other means, the notice. (3) In making a determination, the Commission: (a) must have regard to any information given in compliance with a

notice under subsection (1) within the specified period; and (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended. [s 44ZZBCA insrt Act 102 of 2010 s 3 and Sch 1[64], opn 14 July 2010]

[10,650ZZBD] submissions

Commission may invite public

44ZZBD (1) Invitation The Commission may publish, by electronic or other means, a notice inviting public submissions on an access undertaking application or an access code application if it considers that it is appropriate and practicable to do so. (2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published). (3) Consideration of submissions Subject to subsection (6), in making its decision on the application, the Commission: (a) must have regard to any submission made on or before the day specified in the notice; and (b) may disregard any submission made after the day specified in the notice. [subs (3) subst Act 102 of 2010 s 3 and Sch 1[65], opn 14 July 2010]

(4) Commission may make submissions publicly available The Commission may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available. (5) Confidentiality A person may, at the time of making a submission, request that the Commission: (a) not make the whole or a part of the submission available under subsection (4); and [page 354] (b) not publish or make available the whole or a part of the submission

under section 44ZZBE; because of the confidential commercial information contained in the submission. (6) If the Commission refuses such a request: (a) for a written submission — the Commission must, if the person who made it so requires, return the whole or the part of it to the person; and (b) for an oral submission — the person who made it may inform the Commission that the person withdraws the whole or the part of it; and (c) if the Commission returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Commission must not: (i) make the whole or the part of the submission available under subsection (4); and (ii) publish or make available the whole or the part of the submission under section 44ZZBE; and (iii) have regard to the whole or the part of the submission in making its decision on the application. SECTION 44ZZBD GENERALLY [10,650ZZBD.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006 in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650ZZBE] decisions

Commission must publish its

44ZZBE (1) The Commission must publish, by electronic or other means, an access undertaking decision or an access code decision and its reasons for the decision. (2) The Commission must give a copy of the publication to: (a) for an access undertaking decision — the provider of the service;

or (b) for an access code decision — the industry body or its replacement. (3) Consultation Before publishing under subsection (1), the Commission may give any one or more of the following persons: (a) for an access undertaking decision — the provider of the service; (b) for an access code decision — the industry body or its replacement; (c) in any case — any other person the Commission considers appropriate; a notice in writing: (d) specifying what the Commission is proposing to publish; and (e) inviting the person to make a written submission to the Commission within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature. (4) The Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant. [page 355] SECTION 44ZZBE GENERALLY [10,650ZZBE.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006 in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________ Subdivision E — Review of decisions [Subdiv E insrt Act 92 of 2006 s 3 and Sch 1[108], opn 1 Oct 2006]

[10,650ZZBF]

Review of decisions

44ZZBF (1) Application A person whose interests are affected by an access undertaking decision or an access code decision may apply in writing to the Tribunal for review of the decision. (2) The person must apply for review within 21 days after the Commission publishes its decision. (3) Review The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA). [subs (3) am Act 102 of 2010 s 3 and Sch 1[66], [67], opn 14 July 2010]

(4) For the purposes of the review, the Tribunal has the same powers as the Commission (other than the power to propose amendments under section 44ZZAAA). [subs (4) am Act 102 of 2010 s 3 and Sch 1[68], opn 14 July 2010]

(5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review. [subs (5) subst Act 102 of 2010 s 3 and Sch 1[69], opn 14 July 2010]

(5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review. [subs (5A) insrt Act 102 of 2010 s 3 and Sch 1[69], opn 14 July 2010]

(5B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) the provider of the service; and (iii) any other person who has been made a party to the proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice. [subs (5B) insrt Act 102 of 2010 s 3 and Sch 1[69], opn 14 July 2010]

(6) Tribunal’s decision If the Commission: (a) accepted an access undertaking or access code; or (b) consented to the withdrawal or variation of an access undertaking

or access code; or [page 356] (ba) consented to the revocation or variation of a fixed principle under subsection 44ZZAAB(7); or (c) extended the period for which an access undertaking or access code is in operation; the Tribunal must, by writing, affirm or set aside the Commission’s decision. [subs (6) am Act 102 of 2010 s 3 and Sch 3[7], opn 14 July 2010]

(7) If the Commission: (a) rejected an access undertaking or access code; or (b) refused to consent to the withdrawal or variation of an access undertaking or access code; or (ba) refused to consent to the revocation or variation of a fixed principle under subsection 44ZZAAB(7); or (c) refused to extend the period for which an access undertaking or access code is in operation; the Tribunal must, by writing: (d) affirm the Commission’s decision; or (e) set aside the Commission’s decision and accept the undertaking or code, consent to the withdrawal or variation of the undertaking or code, consent to the revocation or variation of the fixed principle or extend the period for which the undertaking or code is in operation. [subs (7) am Act 102 of 2010 s 3 and Sch 3[8], [9], opn 14 July 2010]

SECTION 44ZZBF GENERALLY [10,650ZZBF.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006 in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

Subdivision F — Register of access undertakings and access codes [Subdiv F insrt Act 92 of 2006 s 3 and Sch 1[108], opn 1 Oct 2006]

[10,650ZZC] access codes

Register of access undertakings and

44ZZC (1) The Commission must maintain a public register that includes all access undertakings and access codes that have been accepted by the Commission, including those that are no longer in operation. (1A) For the purposes of subsection (1), if an access undertaking includes one or more fixed principles, the register must also include details of the fixed principles, including their fixed periods. [subs (1A) insrt Act 102 of 2010 s 3 and Sch 3[10], opn 14 July 2010]

(2) The register must include all variations of access undertakings and access codes. (3) The register must also include details of all extensions of the period for which an access undertaking or an access code is in operation. [subs (3) insrt Act 92 of 2006 s 3 and Sch 1[109], opn 1 Oct 2006] [s 44ZZC subst No 28 of 1997 s 3 and Sch 1]

[page 357] SECTION 44ZZC GENERALLY [10,650ZZC.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5]. ____________________ DIVISION 6A — PRICING PRINCIPLES FOR ACCESS DISPUTES AND ACCESS UNDERTAKINGS OR CODES [Div 6A insrt Act 92 of 2006 s 3 and Sch 1[110], opn 1 Oct 2006]

[10,650ZZCA]

Pricing principles for access

disputes and access undertakings or codes 44ZZCA The pricing principles relating to the price of access to a service are: (a) that regulated access prices should: (i) be set so as to generate expected revenue for a regulated service or services that is at least sufficient to meet the efficient costs of providing access to the regulated service or services; and (ii) include a return on investment commensurate with the regulatory and commercial risks involved; and (b) that the access price structures should: (i) allow multi-part pricing and price discrimination when it aids efficiency; and (ii) not allow a vertically integrated access provider to set terms and conditions that discriminate in favour of its downstream operations, except to the extent that the cost of providing access to other operators is higher; and (c) that access pricing regimes should provide incentives to reduce costs or otherwise improve productivity. Note: The Commission must have regard to the principles in making a final determination under Division 3 and in deciding whether or not to accept an access undertaking or access code under Division 6. SECTION 44ZZCA GENERALLY [10,650ZZCA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006 in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________ DIVISION 6B — OVERLAP AMONG DETERMINATIONS, REGISTERED CONTRACTS, ACCESS UNDERTAKINGS AND TRIBUNAL REVIEW [Div 6B insrt Act 92 of 2006 s 3 and Sch 1[110], opn 1 Oct 2006; am Act 102 of 2010 s 3 and Sch 5[18], opn 14 July 2010]

[10,650ZZCB] Deferring access disputes or access undertakings 44ZZCB (1) If, at a particular time, the Commission is: (a) arbitrating an access dispute under Division 3 relating to one or more matters of access to a declared service; and [page 358] (b) considering whether to accept an access undertaking relating to the service and to one or more of those matters; then the Commission may, by notice in writing, decide to: (c) defer arbitrating the access dispute, in whole or in part, while it considers the access undertaking; or (d) defer considering whether to accept the access undertaking, in whole or in part, while it arbitrates the access dispute. (2) Deferral of arbitration of access dispute If: (a) the Commission defers arbitrating the access dispute; and (b) the Commission then accepts the access undertaking and it comes into operation; then the Commission must terminate the arbitration when the undertaking comes into operation, but only to the extent of the matters relating to access to the service that are dealt with in the undertaking. Note: The third party’s access to the service is determined under the access undertaking to the extent of the matters it deals with. If the access dispute deals with other matters, the third party’s access to the service in relation to those other matters is determined under any determination the Commission makes. (3) Deferral of consideration of access undertaking If: (a) the Commission defers considering whether to accept the access undertaking; and (b) the Commission then makes a final determination in relation to the arbitration of the access dispute;

then the Commission must resume considering whether to accept the access undertaking. (4) Publication The Commission must publish, by electronic or other means, any decision it makes under subsection (1) and its reasons for the decision. The Commission must give a copy of the decision (including the reasons for the decision) to each party to the arbitration. (5) Guidelines In exercising the power conferred by subsection (1), the Commission must have regard to: (a) the fact that the access undertaking will, if accepted, apply generally to access seekers and a final determination relating to the access dispute will only apply to the parties to the arbitration; and (b) any guidelines in force under subsection (6). It may have regard to any other matter it considers relevant. (6) The Commission must, by legislative instrument, determine guidelines for the purposes of subsection (5). (7) The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (6) is made within 6 months after the commencement of this subsection. (8) Legislation Act 2003 A notice made under subsection (1) is not a legislative instrument. [subs (8) am Act 126 of 2015 s 3 and Sch 1 items 136, 137, opn 5 Mar 2016]

[page 359] SECTION 44ZZCB GENERALLY [10,650ZZCB.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006 in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650ZZCBA] is underway

Deferral of arbitration if review

44ZZCBA (1) Commission may defer arbitration if declaration not stayed If: (a) the Commission is arbitrating an access dispute relating to one or more matters of access to a declared service; and (b) an application for review of the declaration of the service has been made under subsection 44K(1); and (c) the Tribunal does not make an order under section 44KA staying the operation of the declaration; then the Commission may, by notice in writing to each party to the arbitration, decide to defer arbitrating the access dispute until the Tribunal has made its decision on the review if it considers it appropriate to do so. (2) Commission must defer arbitration if declaration stayed If: (a) the Commission is arbitrating an access dispute relating to one or more matters of access to a declared service; and (b) an application for review of the declaration of the service has been made under subsection 44K(1); and (c) the Tribunal makes an order under section 44KA staying the operation of the declaration; then the Commission must, by notice in writing to each party to the arbitration, defer arbitrating the access dispute until the Tribunal has made its decision on the review. (3) Resumption of arbitration if declaration affirmed If the Commission defers arbitrating the access dispute and the Tribunal affirms the declaration, the Commission must resume arbitrating the dispute. (4) Termination of arbitration if declaration varied or set aside If the Commission defers arbitrating the access dispute and the Tribunal sets aside or varies the declaration, the Commission must terminate the arbitration. (5) If: (a) an arbitration is terminated under subsection (4) or section 44YA; and (b) an access dispute is notified under section 44S in relation to access to the same declared service; and (c) the parties to the dispute are the same parties to the terminated arbitration; then the Commission may have regard to any record made in the course of

the terminated arbitration if it considers it appropriate to do so. (6) Notices are not legislative instruments A notice given under subsection (1) or (2) is not a legislative instrument. [s 44ZZCBA insrt Act 102 of 2010 s 3 and Sch 5[19], opn 14 July 2010]

[page 360]

[10,650ZZCC] Overlap between determinations and access undertakings 44ZZCC If, at a particular time: (a) a final determination is in operation in relation to a declared service; and (b) an access undertaking is in operation in relation to the service; the third party’s access to the service at that time is to be determined under the undertaking to the extent that it deals with a matter or matters relating to access to the service that are not dealt with in the determination. SECTION 44ZZCC GENERALLY [10,650ZZCC.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006 in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650ZZCD] Overlap between registered contracts and access undertakings 44ZZCD If, at a particular time: (a) a contract is registered under Division 4 in relation to a declared service; and (b) an access undertaking is in operation in relation to the service; the third party’s access to the service at that time is to be determined under the undertaking to the extent that it deals with a matter or matters relating to

access to the service that are not dealt with in the contract. SECTION 44ZZCD GENERALLY [10,650ZZCD.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006 in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________ DIVISION 7 — ENFORCEMENT AND REMEDIES

[10,650ZZD]

Enforcement of determinations

44ZZD (1) If the Federal Court is satisfied, on the application of a party to a determination, that another party to the determination has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of the determination, the Court may make all or any of the following orders: (a) an order granting an injunction on such terms as the Court thinks appropriate: (i) restraining the other party from engaging in the conduct; or (ii) if the conduct involves refusing or failing to do something — requiring the other party to do that thing; (b) an order directing the other party to compensate the applicant for loss or damage suffered as a result of the contravention; (c) any other order that the Court thinks appropriate. [page 361] (2) If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.

(3) A reference in this section to a person involved in the contravention is a reference to a person who has: (a) aided, abetted, counselled or procured the contravention; or (b) induced the contravention, whether through threats or promises or otherwise; or (c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or (d) conspired with others to effect the contravention.

[10,650ZZE] Enforcement of prohibition on hindering access 44ZZE (1) If the Federal Court is satisfied, on the application of any person, that another person (the obstructor) has engaged, is engaging, or is proposing to engage in conduct constituting a contravention of section 44ZZ, the Court may make all or any of the following orders: (a) an order granting an injunction on such terms as the Court thinks appropriate: (i) restraining the obstructor from engaging in the conduct; or (ii) if the conduct involves refusing or failing to do something — requiring the obstructor to do that thing; (b) an order directing the obstructor to compensate a person who has suffered loss or damage as a result of the contravention; (c) any other order that the Court thinks appropriate. (2) If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned. (3) The grounds on which the Court may decide not to make an order under this section include the ground that Divisions 2 and 3 provide a more appropriate way of dealing with the issue of the applicant’s access to the service concerned. (4) A reference in this section to a person involved in the contravention is a reference to a person who has:

(a) aided, abetted, counselled or procured the contravention; or (b) induced the contravention, whether through threats or promises or otherwise; or (c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or (d) conspired with others to effect the contravention.

[10,650ZZF]

Consent injunctions

44ZZF On an application for an injunction under section 44ZZD or 44ZZE, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies. [page 362]

[10,650ZZG]

Interim injunctions

44ZZG (1) The Federal Court may grant an interim injunction pending determination of an application under section 44ZZD or 44ZZE. (2) If the Commission makes an application under section 44ZZE to the Federal Court for an injunction, the Court must not require the Commission or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.

[10,650ZZH] Factors relevant to granting a restraining injunction 44ZZH The power of the Federal Court to grant an injunction under section 44ZZD or 44ZZE restraining a person from engaging in conduct may be exercised whether or not: (a) it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or (b) the person has previously engaged in conduct of that kind; or

there is an imminent danger of substantial damage to any person if (c) the first-mentioned person engages in conduct of that kind.

[10,650ZZI] Factors relevant to granting a mandatory injunction 44ZZI The power of the Federal Court to grant an injunction under section 44ZZD or 44ZZE requiring a person to do a thing may be exercised whether or not: (a) it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or (b) the person has previously refused or failed to do that thing; or (c) there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that thing.

[10,650ZZJ]

Enforcement of access undertakings

44ZZJ (1) If the Commission thinks that the provider of an access undertaking in operation under Division 6 has breached any of its terms, the Commission may apply to the Federal Court for an order under subsection (2). [subs (1) am Act 92 of 2006 s 3 and Sch 1[111], opn 1 Oct 2006]

(2) If the Federal Court is satisfied that the provider has breached a term of the undertaking, the Court may make all or any of the following orders: (a) an order directing the provider to comply with that term of the undertaking; (b) an order directing the provider to compensate any other person who has suffered loss or damage as a result of the breach; (c) any other order that the Court thinks appropriate. (3) [subs (3) rep Act 69 of 2000 s 3 and Sch 2] SECTION 44ZZJ GENERALLY [10,650ZZJ.5] Overview This section was amended by the Trade Practices Amendment (National Access Regime) Act 2006. See [10,650.5].

____________________ [page 363]

[10,650ZZK] Discharge or variation of injunction or other order 44ZZK The Federal Court may discharge or vary an injunction or order granted under this Division. DIVISION 8 — MISCELLANEOUS

[10,650ZZL]

Register of determinations

44ZZL The Commission must maintain a public register that specifies the following information for each determination: (a) the names of the parties to the determination; (b) the service to which the determination relates; (c) the date on which the determination was made.

[10,650ZZM] Commonwealth consent to conferral of functions etc on the Commission or Tribunal by State or Territory laws 44ZZM (1) A State or Territory access regime law may confer functions or powers, or impose duties, on the Commission or Tribunal. Note: Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal. (2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a law of a State or Territory to the extent to which: (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be

imposed on the Commission or Tribunal; or (b) the authorisation would otherwise exceed the legislative power of the Commonwealth. (3) The Commission or Tribunal cannot perform a duty or function, or exercise a power, under a State or Territory access regime law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned. [s 44ZZM subst Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004]

SECTION 44ZZM GENERALLY [10,650ZZM.5] Overview

Prior to 1998, the section provided:

Commission may perform functions under other access regimes 44ZZM A State or Territory law that establishes an access regime may confer functions on the Commission for the purposes of that law, in accordance with any relevant agreement between the Commonwealth and the State or Territory concerned.

This section was amended in 1998 by the Gas Pipelines Access (Commonwealth) Act 1998 and further amended by the Trade Practices Legislation Amendment Act 2003 effective 1 March 2004, reflecting its current wording. The provision was required following the decision of the High Court in R v Hughes (2000) 171 ALR 155; 34 ACSR 92; [2000] HCA 22; BC200002055. The section permits a state or territory access regime to impose a function, power or duty on the commission or the tribunal. For example, a state or territory access regime may desire to confer [page 364] on the commission the power to arbitrate a dispute between an access provider and an access seeker under the state or territory access regime. However there are two limitations on a state or territory access regime conferring a function, power or duty on the commission or tribunal. First, the conferral must not violate any constitutional doctrines applying to the conferral of duties on the commission or tribunal and must be within the

legislative power of the Commonwealth. Second, the conferral of the function, power or duty must be in accordance with any relevant agreement between the Commonwealth and state or territory concerned. This reflects the reciprocal obligations relating to the universal application of the competition law first established by the National Competition Policy in 1995. See [10,005.5]. Section 44ZZMB describes when a state or territory regime imposes a duty on the commission or tribunal. ____________________

[10,650ZZMA]

How duty is imposed

44ZZMA (1) Application This section applies if a State or Territory access regime law purports to impose a duty on the Commission or Tribunal. Note 1: Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal. Note 2: Section 320 of the South Australian Energy Retail Legislation, as it applies as a law of a State or Territory, deals with the case where a duty purportedly imposed on a Commonwealth body under that applied law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties. [subs (1) am Act 119 of 2011 s 3 and Sch 2 items 24–25, opn 1 July 2012]

(2) State or Territory legislative power sufficient to support duty The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which: (a) imposing the duty is within the legislative powers of the State or Territory concerned; and (b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal. Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 44ZZM to the imposition of the duty by that law). (3) Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not If, to ensure the validity of

the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity. (4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act. (5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty: (a) is within the legislative powers of the Commonwealth; and [page 365] (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal. (6) Subsections (1) to (5) do not limit section 44ZZM. [s 44ZZMA insrt Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004]

SECTION 44ZZMA GENERALLY [10,650ZZMA.5] Overview This section was inserted by the Trade Practices Legislation Amendment Act 2003, effective 1 March 2004. It ensures that a duty imposed by a state or territory access regime does not violate any constitutional doctrines applying to the conferral of duties on the Commission or Tribunal and is within the legislative power of the Commonwealth. ____________________

[10,650ZZMB] When a law of a State or Territory imposes a duty 44ZZMB For the purposes of sections 44ZZM and 44ZZMA, a State or Territory access regime law imposes a duty on the Commission or Tribunal if:

the law confers a function or power on the Commission or (a) Tribunal; and (b) the circumstances in which the function or power is conferred give rise to an obligation on the Commission or Tribunal to perform the function or to exercise the power. [s 44ZZMB insrt Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004]

SECTION 44ZZMB GENERALLY [10,650ZZMB.5] Overview This section was inserted by the Trade Practices Legislation Amendment Act 2003, effective 1 March 2004. It describes the circumstances in which a state or territory access regime is taken to have imposed a duty on the commission or tribunal. ____________________

[10,650ZZN] property

Compensation for acquisition of

44ZZN (1) If: (a) a determination would result in an acquisition of property; and (b) the determination would not be valid, apart from this section, because a particular person has not been sufficiently compensated; the Commonwealth must pay that person: (c) a reasonable amount of compensation agreed on between the person and the Commonwealth; or (d) failing agreement — a reasonable amount of compensation determined by a court of competent jurisdiction. (2) In assessing compensation payable in a proceeding begun under this section, the following must be taken into account if they arise out of the same event or transaction: (a) any damages or compensation recovered, or other remedy, in a proceeding begun otherwise than under this section; (b) compensation awarded under a determination. (3) In this section, acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

[page 366]

[10,650ZZNA] Operation of Parts IV and VII not affected by this Part 44ZZNA

This Part does not affect the operation of Parts IV and VII.

[s 44ZZNA insrt Act 28 of 1997 s 3 and Sch 1]

[10,650ZZO] agents

Conduct by directors, servants or

44ZZO (1) If, in a proceeding under this Part in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and (b) that the director, servant or agent had the state of mind. (2) Any conduct engaged in on behalf of a body corporate: (a) by a director, servant or agent of the body corporate within the scope of the person’s actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent; is taken for the purposes of this Part to have been engaged in also by the body corporate, unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct. (3) If, in a proceeding under this Part in respect of conduct engaged in by an individual, it is necessary to establish the state of mind of the individual, it is sufficient to show:

that the conduct was engaged in by a servant or agent of the individual within the scope of his or her actual or apparent authority; and (b) that the servant or agent had the relevant state of mind. (4) Conduct engaged in on behalf of an individual: (a) by a servant or agent of the individual within the scope of the actual or apparent authority of the servant or agent; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the individual, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent; is taken, for the purposes of this Part, to have been engaged in also by that individual, unless that individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct. (5) If: (a) an individual is convicted of an offence; and (b) the individual would not have been convicted of the offence if subsections (3) and (4) had not been enacted; the individual is not liable to be punished by imprisonment for that offence. (a)

[page 367] (6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person’s reasons for the intention, opinion, belief or purpose. (7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.

[10,650ZZOAAA]

Information to be given to

Tribunal 44ZZOAAA (1) Tribunal to notify decision maker If an application for review of a decision (however described) is made under this Part, the Tribunal must notify the decision maker of the application. (2) If the application is made under section 44K, 44L, 44LJ, 44LK or 44O, the Tribunal must also notify the Council of the application. (3) Decision maker to give material to Tribunal The decision maker must give the following information to the Tribunal within the period specified by the Tribunal: (a) if the decision is taken to have been made because of the operation of subsection 44H(9), 44J(7), 44LG(6), 44LI(7), 44N(4) or 44NB(3A) — all of the information that the Council took into account in connection with making the recommendation to which the decision under review relates; (b) if the decision is taken to have been made because of the operation of subsection 44PD(6), 44XA(6) or 44ZZBC(6) — any information or documents given to the Commission in connection with the decision to which the review relates, other than information or documents in relation to which the Commission could not have regard because of subparagraph 44PE(6)(c)(iii) or 44ZZBD(6)(c)(iii); (c) otherwise — all of the information that the decision maker took into account in connection with the making of the decision to which the review relates. (4) Tribunal may request further information The Tribunal may request such information that the Tribunal considers reasonable and appropriate for the purposes of making its decision on a review under this Part. (5) A request under subsection (4) must be made by written notice given to a person specifying the information requested and the period within which the information must be given to the Tribunal. (6) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and

if the application is made under section 44K, 44L, 44LJ, (ii) 44LK or 44O — the Council; and (iii) if the application is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF — the Commission; and (iv) any other person who has been made a party to the proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice. [page 368] (7) Without limiting the information that may be given in accordance with the notice, information may include information that could not have reasonably been made available to the decision maker at the time the decision under review was made. (8) Certain material before the Tribunal not to be disclosed The Tribunal may, on the application of a person, prohibit or restrict the disclosure of the contents of a document or other information given to the Tribunal under this section if the Tribunal is satisfied that it is desirable to do so because of the confidential nature of the document or other information, or for any other reason. (9) In this section: decision maker, in relation to an application for review under this Part, means: (a) if the application was made under section 44K, 44L, 44LJ or 44LK — the designated Minister; or (b) if the application was made under section 44O — the Commonwealth Minister; or (c) if the application was made under section 44PG, 44PH, 44ZP, 44ZX, or 44ZZBF — the Commission. [s 44ZZOAAA insrt Act 102 of 2010 s 3 and Sch 1[70], opn 14 July 2010]

[10,650ZZOAA] Tribunal only to consider particular material

44ZZOAA For the purposes of a review under this Part, the Tribunal: (a) subject to paragraph (b), must have regard to: (i) information that was given to the Tribunal under subsection 44ZZOAAA(3); and (ii) any information given to the Tribunal in accordance with a notice given under subsection 44ZZOAAA(5); and (iii) any thing done as mentioned in subsection 44K(6), 44L(5), 44LJ(5), 44LK(5), 44O(5), 44PG(5), 44PH(5), 44ZP(5), 44ZX(5) or 44ZZBF(5); and (iv) any information or report given to the Tribunal in relation to the review under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) within the specified period; and (b) may disregard: (i) any information given to the Tribunal in response to a notice given under subsection 44ZZOAAA(5) after the period specified in the notice has ended; and (ii) any information or report of the kind specified in a notice under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) that is given to the Tribunal after the specified period has ended. [s 44ZZOAA insrt Act 102 of 2010 s 3 and Sch 1[70], opn 14 July 2010]

[10,650ZZOA]

Time limit for Tribunal decisions

44ZZOA (1) The Tribunal must make a decision on a review under this Part within the consideration period. [page 369] (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application for review is received, unless the consideration period is extended under subsection (7).

(3) Stopping the clock In working out the expected period in relation to an application for review, in a situation referred to in column 1 of an item of the following table, disregard any day in a period: (a) starting on the day referred to in column 2 of the item; and (b) ending on the day referred to in column 3 of the item.

(4) Despite subsection (3), do not disregard any day more than once. (5) Stopping the clock by agreement The following may agree in writing that a specified period is to be disregarded in working out the expected period: (a) the Tribunal; (b) the person who applied for review; (c) if the application is made under section 44K, 44L, 44LJ, 44LK or 44O — the Council; (d) if the application is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF — the Commission; (e) any other person who has been made a party to the proceedings for review by the Tribunal. (6) The Tribunal must publish, by electronic or other means, the agreement.

(7) Extension of time for making decision If the Tribunal is unable to make a decision on an application for review within the consideration period (whether it is the [page 370] expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period. (8) The notice must: (a) specify when the Tribunal must now make its decision on the application for review; and (b) include a statement explaining why the Tribunal has been unable to make a decision on the review within the consideration period. (9) The Tribunal must give a copy of the notice to: (a) the person who applied for review; and (b) if the application for review is made under section 44K, 44L, 44LJ, 44LK or 44O — the Council; and (c) if the application for review is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF — the Commission; and (d) any other person who has been made a party to the proceedings for review by the Tribunal. (10) Publication If the Tribunal extends the consideration period under subsection (7), it must publish a notice in a national newspaper: (a) stating that it has done so; and (b) specifying the day by which it must now make a decision on the application for review. (11) Failure to comply with time limit does not affect validity Failure by the Tribunal to comply with a time limit set in this section does not affect the validity of a decision made by the Tribunal under this Part. [s 44ZZOA subst Act 102 of 2010 s 3 and Sch 1[71], opn 14 July 2010]

SECTION 44ZZOA GENERALLY

[10,650ZZOA.5] Overview This section was inserted by the Trade Practices Amendment (National Access Regime) Act 2006 in response to the recommendations of the Productivity Commission. See [10,650.5]. ____________________

[10,650ZZP] Tribunal

Regulations about review by the

44ZZP (1) The regulations may make provision about the following matters in relation to the functions of the Tribunal under this Part: (a) the constitution of the Tribunal; (b) the arrangement of the business of the Tribunal; (c) the disclosure of interests by members of the Tribunal; (d) determining questions before the Tribunal and questions that arise during a review; (e) procedure and evidence, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written report). [page 371] (2) Regulations made for the purposes of subsection (1) do not apply in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law. Note: See section 44ZZR. [subs (2) insrt Act 45 of 2007 s 3 and Sch 1[79], opn 1 July 2008] [s 44ZZP am Act 45 of 2007 s 3 and Sch 1[78], opn 1 July 2008]

[10,650ZZQ] Regulations about fees for inspection etc of registers 44ZZQ The regulations may make provision about the inspection of registers maintained under this Part (including provision about fees).

[10,650ZZR] Procedure of the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law 44ZZR (1) Sections 103, 105, 106, 107, 108 and 110 of this Act apply to the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law. (2) The regulations may make provision about the following matters in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law: (a) the constitution of the Tribunal; (b) the arrangement of the business of the Tribunal; (c) the disclosure of interests by members of the Tribunal; (d) determining questions before the Tribunal and questions that arise during a review; (e) procedure and evidence, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written report); (f) the fees and expenses of witnesses in proceedings before the Tribunal. (3) Subsection (1), and regulations made for the purposes of subsection (2), have no effect to the extent (if any) to which they are inconsistent with the State/Territory energy law, or the designated Commonwealth energy law, concerned. [s 44ZZR insrt Act 45 of 2007 s 3 and Sch 1[80], opn 1 July 2008]

[page 373] PART IV* — RESTRICTIVE TRADE PRACTICES INTRODUCTION TO PART IV

[10,690.5]

Overview

This Part prohibits specific anti-competitive practices. They are: • cartel conduct under Division 1 • anti-competitive disclosure of pricing and other information under Division 1A • anti-competitive arrangements, (s 45); • misuse of market power (s 46); • exclusive dealing (s 47); • resale price maintenance (s 48); • anti-competitive acquisitions of shares or assets (s 50). The prohibition on price discrimination (previously addressed by s 49) was repealed in 1995. See [10,805.5]. Part IV is directed at procuring and maintaining competition in trade or commerce: Refrigerated Express Lines (A’asia) Pty Ltd v Australian Meat and Livestock Corp (No 2) (1980) 29 ALR 333; 44 FLR 455 at 460; (1980) ATPR ¶40-156; Trade Practices Commission v CSR Ltd (1991) ATPR ¶41076 at 52,151. Protecting the competitive environment is a necessary condition for ensuring that the interests of consumers are protected: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177; 83 ALR 577; (1989) ATPR ¶40-925. *Editor’s note: Sections 33 and 34 of the Competition Policy Reform Act 1995 No 88 provide as follows: Transitional rule for changes to section 51 exceptions 33 (1) This section applies (in addition to subsection 51(1) of the Principal Act) to conduct taking place before the end of 3 years after the date on which this Act received the Royal Assent. (2) In deciding whether a person has contravened Part IV of the Principal Act, a particular thing is to be disregarded if both the following conditions are met: (a) the thing would have been disregarded if the amendments made by section 15 had not been made and (b) the thing would also have been disregarded if it had happened immediately before the commencement of this section. Existing contracts not affected by amendments 34 (1) Subsections (2) and (3) apply in deciding whether a person has contravened Part IV of the Principal Act at any time after the commencement of the amendments made by Division 1 of this Part.

(2) Existing contracts, and things done to give effect to existing contracts, are to be disregarded to the same extent that they would have been disregarded if the amendments made by Division 1 of this Part (other than section 15) had not been made. (3) If an existing contract is varied on or after the cut-off date, then things done to give effect to the varied contract are not to be disregarded under subsection (2) unless they would have been disregarded under the contract as in force immediately before the cut-off date. (4) The amendments made by Division 1 of this Part (other than section 15) do not make unenforceable a provision of an existing contract that was not unenforceable immediately before the commencement of those amendments. (5) In this section: cut-off date means 19 August 1994; existing contract means a contract that was made before the cut-off date. The Competition Policy Reform Act 1995 was assented to on 20 July 1995. Sections 15 and 33 of that Act commenced on 17 August 1995. Section 15 of the Competition Policy Reform Act substituted s 51(1) of the Trade Practices Act 1974.

[page 374] The promotion of competition provides the means to promote efficient resource allocation and maximise community welfare, rather than fulfilling any distributional objective: Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [179] per Goldberg J, Mr G F Latta and Professor D K Round. Part IV must also be interpreted having regard to the objective in s 2 of the Act to enhance the welfare of Australians through the promotion of competition and fair trading: • Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022; [2004] FCA 1171; BC200406682 at [73] per Lander J; • Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 2) [2004] FCA 1172; BC200406683 at [51] per Lander J; • Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2005) ATPR ¶42-066; [2005] FCA 581; BC200504213 at [548] per Allsop J. It is also designed to discourage and remove unfair business practices which inhibit competition: Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557; 62 FLR 437; (1982) ATPR ¶40318 at 43,917–8; Trade Practices Commission v Service Station Assn Ltd (1993) 44 FCR 206; 116 ALR 643; (1993) ATPR ¶41-260 at 41,498. Reform Competition review of the Act — The Harper Review 2015 A new Liberal National coalition government was installed following federal Parliamentary elections held on 7 September 2013. Prior to the election in March 2012 the then Shadow Minister for Small Business, Competition Policy and Consumer Affairs Minister Bruce Billson announced that the Coalition would conduct a “root and branch” review of competition law in Australia. This was also announced in the Coalition’s August 2013 Policy for Small Business. In that Policy, it said that it would initiate an arms length and independent examination of Australia’s competition framework and tools. The draft terms of reference for the review was released and distributed to the state and territories in December 2013. Professor Ian Harper was appointed as chair to undertake the review. Professor

Harper’s committee delivered its draft report in September 2014 and its final report in March 2015. The final report contains 56 recommendations for reform of Australia’s competition law and aspects of industry policy. It also includes model legislative provisions. The Government responded to the report in November 2015. The final report’s 56 recommendations and the Governments’s response is reproduced at [10,001]. In December 2015, the Government released a discussion paper ‘Options to strengthen the misuse of market power law’. The paper discusses the Harper recommendations as well as other options to strengthen s 46 of the Act. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the Harper Committee’s recommendations. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amendments. [10,690.10] Equivalent legislation in other jurisdictions competition legislation, including: • Sherman Act 1890 (United States); • Clayton Act 1914 (United States); • Robinson-Patman Act 1936 (United States); • Competition Act 1998 (United Kingdom); • Commerce Act 1986 (New Zealand); • Competition Act 1985 (Canada);

Many jurisdictions have enacted

[page 375] • Competition Act 2002 (India); • Independent Consumer and Competition Commission Act 2002 (Papua New Guinea); • Fair Trading Decree 1992 (Fiji); • Commerce Act 1998 (Fiji); • Competition Act 2004 (Singapore); • Competition Law 2004 (Vietnam); • Antimonopoly Law 2007 (China); • Competition Act 2010 (Malaysia); • Competition Commission Act 2010 (Malaysia); • Competition Ordinance 2012 (Hong Kong). There are a number of useful websites that provide information on legislation in other jurisdictions. Many of them can be accessed by links from the commission’s website at www.accc.gov.au.

____________________ DIVISION 1 — CARTEL CONDUCT [Div 1 insrt Act 59 of 2009 s 3 and Sch 1[19], opn 24 July 2009]

Subdivision A — Introduction

[10,690ZZRA] 44ZZRA • • •

Simplified outline

The following is a simplified outline of this Division:

This Division sets out parallel offences and civil penalty provisions relating to cartel conduct. A corporation must not make, or give effect to, a contract, arrangement or understanding that contains a cartel provision. A cartel provision is a provision relating to: (a) price-fixing; or (b) restricting outputs in the production and supply chain; or (c) allocating customers, suppliers or territories; or (d) bid-rigging; by parties that are, or would otherwise be, in competition with each other. SECTION 44ZZRA GENERALLY

[10,690ZZRA.5] Overview This Division was inserted by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. The Act passed the Senate (with amendments) on 16 June 2009 and received Royal Assent on 26 June 2009. The majority of the provisions commenced on 24 July 2009. Broadly, Division 1 establishes parallel criminal offences and civil liability provisions for making or giving effect to a contract, arrangement or understanding (CAU) that contains a cartel provision. It replaces s 45A. A contravention of the criminal offence provisions carries 10 years’ imprisonment. A “cartel provision” is defined in s 44ZZRD as a provision of a CAU between competitors that: • has the purpose or effect of price-fixing • has the purpose of restricting output in production or supply • has the purpose of allocating customers, suppliers or territories; or • has the purpose of bid rigging

[page 376] There are exceptions reflecting existing anti-overlap provisions in Pt IV. They extend to: • Covenants relating to land under s 45B • Exclusive dealing under s 47 • Resale price maintenance under s 48 • Dual listed company arrangements under s 49 • Acquisition of shares or assets under s 50 • Collective acquisitions. The criminal and civil liability provisions do not apply in specified circumstances. They include: • Collective bargaining arrangements • Authorisations • Contracts, arrangements or understandings between related bodies corporate • Joint ventures. Developments of the Cartels law On 2 February 2005, the then Federal Treasurer, Peter Costello, announced that the coalition government would take action to amend the Trade Practices Act to introduce criminal penalties for serious cartel conduct, consistent with similar laws in other countries: see Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) (2007) ATPR ¶42-185; [2007] FCA 1617; BC200709371 at [309] per Heerey J. The proposal lapsed when parliament was dissolved ahead of the federal election on 24 November 2007. The newly elected Labor government committed to introduce criminal penalties for cartel conduct during the 2008 parliamentary term. On 11 January 2008, the then Minister for Competition Policy, Chris Bowen, released an exposure draft of the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 for public comment. He also released a draft memorandum of understanding between the commission and the Commonwealth Director of Public Prosecutions (CDPP) — the body charged with bringing criminal prosecutions for cartel conduct. On 27 October 2008, the government released the final exposure draft of the Bill.

Following public consultation, on 3 December 2008 the government introduced the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 into Parliament (Cartels Bill). The Cartels Bill as introduced into Parliament reflected the final exposure draft. However, it differed from the first exposure draft in a number of respects: • it enabled telecommunications interception as an aid to establishing a cartel offence. • it provided for the jurisdiction of the Federal Court and the courts of the states and territories under the cartel offences. • it included exemptions from the criminal and civil offence provisions. The Bill was referred to the Senate Standing Committee on Economics for review. The Senate’s report was published in February 2009. The Senate Committee supported the government’s decision to delete the requirement of ‘dishonesty’ as the basis for defining serious cartel conduct. (para 4.7). The Committee did not support an attempt to delineate between civil and criminal cartel offences. Instead it proposed the release of detailed guidelines by the commission providing a non-exhaustive list of factors so that businesses have an understanding of the kind of behaviour that would have the potential for prosecution (para 4.9, para 4.31 Recommendation 1). The Committee had also received a number of submissions expressing concern as to whether there was adequate protection for joint ventures. The Bill was amended by the Senate to further clarify the treatment of joint ventures. It passed both houses with those amendments on 16 June 2009. Investigation of cartels The criminal cartel offences (and related offences) are listed as a “serious offence” under s 5D of the Telecommunications (Interception and Access) Act 1979. This enables the use of telecommunications interception powers to assist in the detection of cartels. The criminal cartel offences are included in the list of “serious offences” under s 338 of the Proceeds of Crime Act 2002. [page 377] Part XID of the Act includes provisions that enable the commission to

search premises and seize evidence relating to the cartel offences. Joint enforcement of cartels As the Division contains both criminal offences and civil liability provisions, enforcement is the responsibility of two separate institutions — the commission and the Commonwealth Director of Public Prosecutions (CDPP). As indicated above, a draft memorandum of understanding between the commission and the CDPP was released with the first exposure draft of the Cartels Bill. On 1 December 2008, in response to the introduction of the Cartels Bill, the commission and the CDPP released the final memorandum of understanding (MOU) between them. The MOU was signed on 14 July 2009 (see [18,370]). The MOU recognises that the enforcement of the proposed criminal offences in the Division is a shared responsibility between the two institutions. The MOU identifies: the respective roles of the two institutions; the factors to be considered in deciding when to refer matters to the CDPP and when the CDPP would ordinarily initiate a prosecution; the administration of the immunity policy for cartel conduct and ongoing liaison between the two institutions. Immunity policies relating to cartels Under cl 7.3 of the MOU between the commission and the CDPP, the commission will receive and manage requests for immunity from both civil and criminal proceedings and make recommendations to the CDPP based on the commission’s assessment as to whether the applicant for immunity meets the criteria set out in the commission’s immunity policy in relation to cartel conduct. Under cl 7.4 of the MOU the CDPP will decide whether to grant immunity from criminal proceedings under the Prosecution Policy of the Commonwealth (and the Annexure applying to prosecution in serious cartel cases). Reform In its final report, Competition Policy Review, released in March 2015, the Harper Committee recommended simplification to the regime and other amendments to the cartel conduct prohibition. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committe. The Exposure draft is available at

https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amendments. See also [10,690.5]. [10,690ZZRA.10] Immunity and Cooperation Policy for Cartel Conduct On 26 August 2005, the commission published its “Immunity Policy for Cartel Conduct”. That policy commenced on 5 September 2005 and replaced the commission’s 2003 “Leniency Policy for Cartel Conduct”. On 1 December 2008, it also released new “Immunity Policy Interpretation Guidelines”. In July 2009, the commission published — “ACCC Immunity Policy for Cartel Conduct” and “ACCC Immunity Policy Interpretation Guidelines”. The Commission commenced a review of its Immunity Policy for Cartel Conduct July 2009 in March 2013 and released a public discussion paper in September 2013. Following public consultation, on 9 April 2014, the Commission released its draft ACCC Immunity and Cooperation Policy for Cartel Conduct April 2014 and draft Frequently Asked Questions for public comment. In September 2014 the Commission published ACCC immunity and cooperation policy for cartel conduct. It replaced the 2009 ACCC Immunity Policy for Cartel Conduct and the ACCC Immunity Policy Interpretation Guidelines. The commission’s immunity and cooperation policy provides incentives for applicants to cooperate with the commission in relation to cartel behaviour to enable the commission to detect and prevent unlawful conduct. [page 378] A potential applicant for immunity may seek a “marker” for the purpose of preserving, for a limited period of time, its position as the first person to apply to the commission for immunity in relation to the cartel. The marker allows the person time to gather information necessary to demonstrate that it satisfies the conditions for immunity. While the person holds the marker, no other person involved in the same cartel conduct will be allowed to take the person’s place in the immunity queue, even someone who is able to satisfy all conditions immediately.

In order to obtain a marker, the person must provide a description of the cartel conduct in sufficient detail to allow the commission to confirm that no other person has applied for immunity or obtained a marker in respect of the cartel. If the person meets the requirements of the policy, the commission will grant the person final immunity after the resolution of any ensuing proceedings and provided there is compliance with all conditions of immunity. See [11,590.26A]. ____________________

[10,690ZZRB]

Definitions

44ZZRB In this Division: annual turnover, of a body corporate during a 12-month period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12-month period, other than: (a) supplies made from any of those bodies corporate to any other of those bodies corporate; or (b) supplies that are input taxed; or (c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999); or (d) supplies that are not made in connection with an enterprise that the body corporate carries on; or (e) supplies that are not connected with Australia. Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act. benefit includes any advantage and is not limited to property. bid includes: (a) tender; and (b) the taking, by a potential bidder or tenderer, of a preliminary step in a bidding or tendering process.

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. likely, in relation to any of the following: (a) a supply of goods or services; (b) an acquisition of goods or services; (c) the production of goods; (d) the capacity to supply services; includes a possibility that is not remote. [page 379] obtaining includes: (a) obtaining for another person; and (b) inducing a third person to do something that results in another person obtaining. party has a meaning affected by section 44ZZRC. production includes manufacture, processing, treatment, assembly, disassembly, renovation, restoration, growing, raising, mining, extraction, harvesting, fishing, capturing and gathering.

[10,690ZZRC]

Extended meaning of party

44ZZRC For the purposes of this Division, if a body corporate is a party to a contract, arrangement or understanding (otherwise than because of this section), each body corporate related to that body corporate is taken to be a party to that contract, arrangement or understanding. SECTION 44ZZRC GENERALLY [10,690ZZRC.5] Overview This provision provides an extended definition of “party” to include other related bodies corporate. ____________________

[10,690ZZRD]

Cartel provisions

44ZZRD (1) For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if: (a) either of the following conditions is satisfied in relation to the provision: (i) the purpose/effect condition set out in subsection (2); (ii) the purpose condition set out in subsection (3); and (b) the competition condition set out in subsection (4) is satisfied in relation to the provision. (2) Purpose/effect condition The purpose/effect condition is satisfied if the provision has the purpose, or has or is likely to have the effect, of directly or indirectly: (a) fixing, controlling or maintaining; or (b) providing for the fixing, controlling or maintaining of; the price for, or a discount, allowance, rebate or credit in relation to: (c) goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or (d) goods or services acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or (e) goods or services re-supplied, or likely to be re-supplied, by persons or classes of persons to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or (f) goods or services likely to be re-supplied by persons or classes of persons to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding. Note 1: The purpose/effect condition can be satisfied when a provision is considered with related provisions — see subsection (8). Note 2: Party has an extended meaning — see section 44ZZRC. [page 380]

(3) Purpose condition The purpose condition is satisfied if the provision has the purpose of directly or indirectly: (a) preventing, restricting or limiting: (i) the production, or likely production, of goods by any or all of the parties to the contract, arrangement or understanding; or (ii) the capacity, or likely capacity, of any or all of the parties to the contract, arrangement or understanding to supply services; or (iii) the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or (b) allocating between any or all of the parties to the contract, arrangement or understanding: (i) the persons or classes of persons who have acquired, or who are likely to acquire, goods or services from any or all of the parties to the contract, arrangement or understanding; or (ii) the persons or classes of persons who have supplied, or who are likely to supply, goods or services to any or all of the parties to the contract, arrangement or understanding; or (iii) the geographical areas in which goods or services are supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or (iv) the geographical areas in which goods or services are acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or (c) ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services: (i) one or more parties to the contract, arrangement or understanding bid, but one or more other parties do not; or (ii) 2 or more parties to the contract, arrangement or understanding bid, but at least 2 of them do so on the basis that one of those bids is more likely to be successful than the others; or

(iii) 2 or more parties to the contract, arrangement or understanding bid, but not all of those parties proceed with their bids until the suspension or finalisation of the request for bids process; or (iv) 2 or more parties to the contract, arrangement or understanding bid and proceed with their bids, but at least 2 of them proceed with their bids on the basis that one of those bids is more likely to be successful than the others; or (v) 2 or more parties to the contract, arrangement or understanding bid, but a material component of at least one of those bids is worked out in accordance with the contract, arrangement or understanding. Note 1: For example, subparagraph (3)(a)(iii) will not apply in relation to a roster for the supply of after-hours medical services if the roster does not prevent, restrict or limit the supply of services. Note 2: The purpose condition can be satisfied when a provision is considered with related provisions — see subsection (9). Note 3: Party has an extended meaning — see section 44ZZRC. [page 381] (4) Competition condition The competition condition is satisfied if at least 2 of the parties to the contract, arrangement or understanding: (a) are or are likely to be; or (b) but for any contract, arrangement or understanding, would be or would be likely to be; in competition with each other in relation to: (c) if paragraph (2)(c) or (3)(b) applies in relation to a supply, or likely supply, of goods or services — the supply of those goods or services; or (d) if paragraph (2)(d) or (3)(b) applies in relation to an acquisition, or likely acquisition, of goods or services — the acquisition of those goods or services; or (e) if paragraph (2)(e) or (f) applies in relation to a re-supply, or likely

re-supply, of goods or services — the supply of those goods or services to that re-supplier; or (f) if subparagraph (3)(a)(i) applies in relation to preventing, restricting or limiting the production, or likely production, of goods — the production of those goods; or (g) if subparagraph (3)(a)(ii) applies in relation to preventing, restricting or limiting the capacity, or likely capacity, to supply services — the supply of those services; or (h) if subparagraph (3)(a)(iii) applies in relation to preventing, restricting or limiting the supply, or likely supply, of goods or services — the supply of those goods or services; or (i) if paragraph (3)(c) applies in relation to a supply of goods or services — the supply of those goods or services; or (j) if paragraph (3)(c) applies in relation to an acquisition of goods or services — the acquisition of those goods or services. Note: Party has an extended meaning — see section 44ZZRC. (5) Immaterial whether identities of persons can be ascertained It is immaterial whether the identities of the persons referred to in paragraph (2) (e) or (f) or subparagraph (3)(a)(iii), (b)(i) or (ii) can be ascertained. (6) Recommending prices etc For the purposes of this Division, a provision of a contract, arrangement or understanding is not taken: (a) to have the purpose mentioned in subsection (2); or (b) to have, or be likely to have, the effect mentioned in subsection (2); by reason only that it recommends, or provides for the recommending of, a price, discount, allowance, rebate or credit. (7) Immaterial whether particular circumstances or particular conditions It is immaterial whether: (a) for the purposes of subsection (2), subparagraph (3)(a)(iii) and paragraphs (3)(b) and (c) — a supply or acquisition happens, or a likely supply or likely acquisition is to happen, in particular circumstances or on particular conditions; and (b) for the purposes of subparagraph (3)(a)(i) — the production happens, or the likely production is to happen, in particular circumstances or on particular conditions; and

[page 382] (c) for the purposes of subparagraph (3)(a)(ii) — the capacity exists, or the likely capacity is to exist, in particular circumstances or on particular conditions. (8) Considering related provisions — purpose/effect condition For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose, or to have or be likely to have the effect, mentioned in subsection (2) if the provision, when considered together with any or all of the following provisions: (a) the other provisions of the contract, arrangement or understanding; (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the firstmentioned contract, arrangement or understanding; has that purpose, or has or is likely to have that effect. (9) Considering related provisions — purpose condition For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose mentioned in a paragraph of subsection (3) if the provision, when considered together with any or all of the following provisions: (a) the other provisions of the contract, arrangement or understanding; (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the firstmentioned contract, arrangement or understanding; has that purpose. (10) Purpose/effect of a provision For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose, or not to have or to be likely to have the effect, mentioned in subsection (2) by reason only of: (a) the form of the provision; or (b) the form of the contract, arrangement or understanding; or (c) any description given to the provision, or to the contract,

arrangement or understanding, by the parties. (11) Purpose of a provision For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose mentioned in a paragraph of subsection (3) by reason only of: (a) the form of the provision; or (b) the form of the contract, arrangement or understanding; or (c) any description given to the provision, or to the contract, arrangement or understanding, by the parties. SECTION 44ZZRD GENERALLY [10,690ZZRD.5] Overview Broadly, the Division establishes criminal offences and civil liability provisions that apply to the making or giving effect to a contract, arrangement or understanding (CAU) that contains a cartel provision. This provision defines a cartel provision. A “cartel provision” is a provision of a CAU between competitors that: • has the purpose or effect of price-fixing • has the purpose of restricting output in production or supply • has the purpose of allocating customers, suppliers or territories or • has the purpose of bid rigging (also known as collusive tendering). [page 383] [10,690ZZRD.10] “Provision” of understanding See [10,700.13]. [10,690ZZRD.15] Contract

contract,

arrangement

See [10,700.20].

[10,690ZZRD.20] Arrangement [10,690ZZRD.25] Understanding [10,690ZZRD.30] Purpose

a

See [10,700.25], [10,700.35]. See [10,700.30], [10,700.35].

See [10,700.40] and s 4F.

or

[10,690ZZRD.35] Likely to have the effect

See [10,700.45].

[10,690ZZRD.40] Substance not form of provision Section 44ZZRD directs attention to the substance of a contract, arrangement or understanding rather than its form. In Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (Adelaide Beer case) (1979) 26 ALR 609; 40 FLR 83; (1978) ATPR ¶40-126 the parties had agreed to reduce the number of free bottles of beer provided to customers who purchased a dozen. The provision of free bottles of beer was referred to as the “brewer’s dozen”. Fisher J held: [It] was of the essence of the understanding that notwithstanding the alteration of the selling base, the price for the notional dozen would remain virtually unchanged. Thus it was at least indirectly a means whereby an increased price was fixed. Before me, the consequence of what was allegedly achieved by the understanding was called “the fixing of an allowance” but whether it be this, or more correctly the fixing of a price, discount or rebate is immaterial.

[10,690ZZRD.45] Persons or classes of persons

See [10,065.30].

[10,690ZZRD.50] Fixing, controlling or maintaining price These terms were considered by Lockhart J in Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557 at 567; 62 FLR 437; (1982) ATPR ¶40-318 under the previous s 45 of the Act: In my view the fixing of a price for the purposes of s 45A does not necessarily connote an element of permanency, but generally suggests the settling or determining of a price for a period of time that is not instantaneous or merely ephemeral. A person may fix a price for his goods knowing that he may wish to vary it at some future time, but generally not so soon as would to business people be regarded as merely momentary or transitory . . . In my view ‘maintain’, where used in s 45A, has a similar connotation to the verb ‘fix’ in that it involves some element of continuity, not merely being momentary or transitory. Generally, to maintain a price assumes that it has been fixed beforehand.

In Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 5 FCR 140; 59 ALR 589 at 593; (1985) ATPR ¶40-526, Fox J had the following to say in relation to the verb “fix”: Prices can be ‘fixed’ even if all that is proposed is an increase to a certain figure, without any provision as to when, or by what machinery, or what amount, a further change may take place. Assurance of permanency, or long duration, or constant relativity, is not necessary.

The primary meaning of the verb “fix” is to make fast, firm or stable: Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (ACCC) (2005) 159 FCR 452; (2005) ATPR ¶42-078; [2005] FCAFC 161; BC200505938 at [44] per Heerey, Hely and Gyles JJ. The word “control” ordinarily means to “exercise restraint or direction

over”. An arrangement or understanding has the effect of “controlling price” if it restrains the freedom that would otherwise exist as to a price to be charged: • Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8) (1999) 165 ALR 468 at 504; (1999) ATPR ¶41732 at 43,509; [1999] FCA 954; BC9904988; [page 384] Australian Competition and Consumer Commission (ACCC) v Leahy Petroleum Pty Ltd (2004) 141 FCR 183; (2004) ATPR (Digest) ¶46-260; [2004] FCA 1678; BC200408833 at [52] per Merkel J; • Australian Competition and Consumer Commission (ACCC) v TF Woollam & Son Pty Ltd [2011] FCA 973; BC201106386 at [83] per Logan J; • Australian Competition and Consumer Commission (ACCC) v PT Garuda Indonesia Ltd [2016] FCAFC 42; BC201601861 at [554] per Dowsett and Edelman JJ. It has been said that an arrangement or understanding which no one intends, and is not objectively likely to have any effect on price but which, by reason of unforeseeable supervening circumstances has had that effect, is not caught: Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8), above, ALR at 505; ATPR at 43,509. The element of control does not require some specificity as to price: • Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8), above, ALR at 506; ATPR at 43,510–11; • Australian Competition and Consumer Commission (ACCC) v Visy Industries Holdings Pty Ltd (2006) ATPR ¶42-102; [2006] FCA 136; BC200600688 at [31] per Heerey J; • See Australian Competition and Consumer Commission v Flight Centre Ltd (No 2) (2013) 307 ALR 209; [2013] FCA 1313; BC201315432 per Logan J; Flight Centre Ltd v Australian Competition and Consumer Commission (ACCC) [2015] FCAFC 104; BC201507168 per Allsop CJ, Davies J and Wigney J; •

Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 per Besanko J. • See Australian Competition and Consumer Commission (ACCC) v Prysmian Cavi E Sistemi SRL (fka Prysmian Cavi E Sistemi Energia SRL) [2016] FCA 822; BC201605911 at [189] per Besanko J. To “maintain” a price assumes that it has been fixed beforehand: Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd, above, ALR at 567; ATPR at 43,921. The contrary is however arguable: Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8), above, ALR at 498; ATPR at 43,503–4. •

[10,690ZZRD.55] Providing for the fixing, controlling or maintaining of price The expression “providing” suggests arranging for or stipulating beforehand or to make preparation for price-fixing: Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (ACCC) (2005) 159 FCR 452; (2005) ATPR ¶42-078; [2005] FCAFC 161; BC200505938 at [49] per Heerey, Hely and Gyles JJ. Examples of “providing for” price-fixing include an arrangement that prices would increase by a particular formula, or an agreement that if one competitor increases prices the others will follow: Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission, above, at [50] per Heerey, Hely and Gyles JJ. The passing of information about prices does not necessarily indicate that it was done pursuant to any arrangement or understanding: Australian Competition and Consumer Commission (ACCC) v Leahy Petroleum Pty Ltd (2004) 141 FCR 183; [2007] FCA 794; BC200704008 at [923] per Gray J. In the same judgment, at [925], Gray J said: [925] There is nothing inherently sinister about the use of the telephone to convey information. A telephone call in which one competitor informed another that the first had just increased its prices to a particular level, or had just observed the board price of another competitor, would not be an illegitimate means of conveying information about existing board prices. Of course, private communication of intended price increases, without communication of the intention to potential purchasers, lends itself readily to price-fixing. It does not constitute price-fixing, in contravention of s 45(2) of the Trade Practices Act, without more. Advance notice of the proposed implementation of a decision already made to increase prices would provide a competitor with the advantage of more time, but cannot itself be indicative of the existence of

[page 385] an arrangement or understanding containing a provision to fix prices. There are additional elements that need to be established before a finding can be made that an arrangement or understanding exists, or that effect is being given to it.

In Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (Adelaide Beer case) (1979) 26 ALR 609; 40 FLR 83; (1978) ATPR ¶40-126, the parties had agreed to reduce the number of free bottles of beer provided to customers who purchased a dozen. The provision of free bottles of beer was referred to as the “brewer’s dozen”. Fisher J held: [It] was of the essence of the understanding that notwithstanding the alteration of the selling base, the price for the notional dozen would remain virtually unchanged. Thus it was at least indirectly a means whereby an increased price was fixed. Before me, the consequence of what was allegedly achieved by the understanding was called ‘the fixing of an allowance’ but whether it be this, or more correctly the fixing of a price, discount or rebate is immaterial.

In Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [265], Besanko J found that the parties had reached an agreement on the prices to be submitted to a motor vehicle manufacturer. [10,690ZZRD.60] Competition requirement

See [10,065.15].

[10,690ZZRD.65] Case law Relevant cases in relation to price-fixing arrangements considered under the previous s 45A include: • Trade Practices Commission v Email Ltd (1980) 31 ALR 53; 43 FLR 383; (1980) ATPR ¶40-172; • Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557; 62 FLR 437; (1982) ATPR ¶40-318; • Trade Practices Commission v Cook-On Gas Products Pty Ltd (1985) ATPR ¶40-560; • Trade Practices Commission v Pioneer Concrete (Vic) Pty Ltd (1985) ATPR ¶40-590; • Trade Practices Commission v David Jones (Aust) Pty Ltd (1986) 13 FCR 446; 64 ALR 67; (1986) ATPR ¶40-671; • Trade Practices Commission v JJ & YK Russell Pty Ltd (1991) ATPR ¶41-090; • Trade Practices Commission v JJ & YK Russell Pty Ltd (1991) ATPR ¶41-132;

• •

•

•

•

•

•

•

Trade Practices Commission v Service Station Assn Ltd (1992) 109 ALR 465; (1992) ATPR ¶41-179; Australian Competition and Consumer Commission (ACCC) v Australian Medical Assn Western Australia Branch Inc (2003) 199 ALR 423; (2003) ATPR ¶41-945; [2003] FCA 686; BC200303666 per Carr J; Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (ACCC) (2005) 159 FCR 452; (2005) ATPR ¶42-078; [2005] FCAFC 161; BC200505938 per Heerey, Hely and Gyles JJ; Australian Competition and Consumer Commission (ACCC) v Leahy Petroleum Pty Ltd (2007) 160 FCR 321; (2007) ATPR ¶42-162; [2007] FCA 794; BC200704008 at [37] per Gray J. See Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (2008) 251 ALR 166; [2008] FCA 1458; BC200808484 per Tracey J; Australian Competition and Consumer Commission (ACCC) v TF Woollam & Son Pty Ltd [2011] FCA 973; BC201106386 per Logan J; Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2013] FCA 1206; BC201314733 per Dowsett J; Australian Competition and Consumer Commission v Koyo Australia Pty Ltd [2013] FCA 1051; BC201313793 per Edmonds J; Australian Competition and Consumer Commission (ACCC) v NSK Australia Pty Ltd [2014] FCA 453; BC201403443 per Edmonds J; [page 386]

•

Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2013] FCA 1206; BC201314733 per Dowsett J; (appeal) Australian Competition and Consumer Commission (ACCC) v Australia and New Zealand Banking Group Ltd [2015] FCAFC 103; BC201507180

•

•

per Allsop CJ, Davies J and Wigney J; Australian Competition and Consumer Commission v Flight Centre Ltd (No 2) (2013) 307 ALR 209; [2013] FCA 1313; BC201315432 per Logan J; Flight Centre Ltd v Australian Competition and Consumer Commission (ACCC) [2015] FCAFC 104; BC201507168 per Allsop CJ, Davies J and Wigney J; Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 per Besanko J.

[10,690ZZRD.70] Restricting output in production or supply A cartel provision includes a provision which may broadly be described as one which has the purpose of restricting output in production or supply: s 44ZZRD(3) (a). In Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [265], Besanko J found that the parties had reached an agreement on the allocation by each of them of goods to be supplied to a motor vehicle manufacturer. In Australian Competition and Consumer Commission (ACCC) v Australian Egg Corp Ltd [2016] FCA 69; BC201600514, White J rejected the applicant’s allegation that the Australian Egg Corporation Limited had reached an understanding with egg producers to limit production. [10,690ZZRD.80] Allocating customers, suppliers or territories A cartel provision includes a provision which may broadly be described as one which has the purpose of allocating customers, suppliers or territories (s 44ZZRD(3)(b)). [10,690ZZRD.90] Bid rigging A cartel provision includes a provision which may broadly be described as one which has the purpose of bid rigging or collusive tendering (s 44ZZRD(3)(c)). For the provision to be invoked there must be a request for bids. In Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 at [217]–[222] Gordon J discussed this requirement: First, Bradken submitted that for there to be a “request”, there must be some “act of asking for something to be given, or done”, or some communication asking for something to be provided. Bradken referred to the Macquarie Dictionary and cited two authorities in support of that proposition: ECH Incorporated v Halliday [2011] FCAFC 51; (2011) 192 FCR 281 at [36] and

Pileggi v Australian Sports Drug Agency [2004] FCA 955; (2004) 138 FCR 107 at [35] and [37]. Second, Bradken submitted that the expression “request for bids” in s 44ZZRD(3)(c) denotes a request directed to more than one person for them to participate in a bidding process of some kind. Bradken further submitted that the persons referred to in paragraph (3)(c)(i) to (v) are persons to whom the request may be directed, and they must be persons who are able to bid in response to that request. So, for example, Bradken submitted that as a whole, sub-s (3)(c) contemplates a competitive process, with the bids to be made, received and considered pursuant to the procedure established for that process. Bradken submitted that the concern of the cartel conduct provisions in this context was to ensure that that competitive bidding process was not manipulated by bidders or potential bidders who were within the scope of that process by means of a proscribed contract, arrangement or understanding. At a practical level, Bradken submitted that it “would be an error” for the Court to conclude that the concept of a request for bids would apply simply where there was some knowledge about a sale process. Bradken’s submissions are rejected. The first submission does not assist in the resolution of the proper construction of s 44ZZRD(3)(c). The authorities referred to by Bradken are of limited utility. In each case, the statutory language and the statutory context was different. Similarly, Bradken’s reference to dictionary definitions of the word “request” is an exercise of limited utility: cf XYZ v The Commonwealth of Australia [2006] HCA 25; (2006) 227 CLR 532 at [19]; [page 387] R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272 at [49] and General Accident Fire & Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax (NSW) [1982] 2 NSWLR 52 at 55. In the end, it is the whole phrase that is to be construed in the context of the CCA and in a manner consistent with the policy and purpose of the legislation: s 15AA of the Acts Interpretation Act 1901 (Cth) and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]. What then is the proper construction of s 44ZZRD(3)(c)? As a matter of statutory construction, there must be a “request for bids”. As Bradken submitted, the provision does not apply where there is an offer (or a “bid”) uninitiated by, or not responsive in some way to, a call for bids, as there would be no relevant “request”. But there is nothing in the language of the section that requires a request directly or individually to each of the parties to the alleged contract, arrangement or understanding. Such a construction is not supported by the statutory language. The section does not stipulate to whom any request need be made. Why? Because it refers to a singular “event of a request for bids”, not requests for bids. Further, and contrary to Bradken’s submission, that construction of the section is consistent with the purpose of the provision which is to prohibit per se bid rigging between competitors, including potential competitors. Again, there is nothing in the language of the section (or the EM) to suggest that the bid rigging prohibition is somehow restricted to only those bidders or potential bidders who were within the scope of that process . . . Putt another way, if Bradken’s construction of the section was the preferable construction, it would frustrate the statutory purpose because the prohibition would be inapplicable to arrangements involving a person who had not been individually invited or requested to bid in circumstances where that person may nevertheless have made a bid (but for the arrangement sought to be impugned). Such an arrangement would still be bid rigging and no less objectionable on competition grounds.

The provision requires the existence of a request for bids. It does not

require an individual invitation to join in any request for bids: Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 at [224] per Gordon J. The provision does not require that the request for bids be in Australia: It does not impose a territorial limitation Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 at [227] per Gordon J. The provision does not require that the supply or acquisition of goods or services be in Australia: Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 at [233] per Gordon J. The competition condition does not require that competition be in a market in Australia: Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 at [261] per Gordon J. In Obeid v Australian Competition and Consumer Commission [2014] FCAFC 155; BC201409802, Allsop CJ, Mansfield J and Middleton J said at [65]–[68]: We see nothing in the text or context of s 44ZZRD, or its purpose or object that would restrict the operation of s 44ZZRD(3)(c)(i) or (iii) to instances where the request for bids is made after the contact, arrangement or understanding is made or arrived at by the parties. The operation of s 44ZZRD(3) must be read in the context of s 44ZZRD, particularly s 44ZZRD(1). The “purpose condition” set out in s 44ZZRD(2) must be satisfied for there to be a “cartel provision” referred to in s 44ZZRD(1). If a contractual provision has the purpose of (directly or indirectly) ensuring that in the event of a request for bids in relation to the supply or acquisition of services certain things occur (such as one or more parties not bidding or proceeding with a bid) then the “purpose condition” is satisfied. [page 388] Section 44ZZRD(3) is directed to the effect of the contract, arrangement or understanding reached by the parties in relation to a bid. This will depend upon the contract, arrangement or understanding, and the nature of the bid. A bid may not necessarily be a one-off event, and may be seen as a continuing tendering process; for example, if there is an opportunity to withdraw a tender or alter its terms after the initial bid is made by a party. The phrase “ensuring that in the event of a request for bids” in s 44ZZRD(3)(c) does not need to have any temporal connotation to make grammatical sense, and there is no purpose in so restricting the phrase’s operation. There is no logical reason to differentiate between the situations where the bid is made before or after the contract, arrangement or understanding is formed.

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[10,690ZZRE] Meaning of expressions in other provisions of this Act

44ZZRE In determining the meaning of an expression used in a provision of this Act (other than this Division, subsection 6(2C), paragraph 76(1A)(aa) or subsection 93AB(1A)), this Division is to be disregarded. SECTION 44ZZRE GENERALLY [10,690ZZRE.5] Overview The provision provides that in determining the meaning of an expression used in other provisions of the Act (other than some express provisions specified), this Division is to be disregard. ____________________ Subdivision B — Offences etc

[10,690ZZRF] Making a contract etc containing a cartel provision 44ZZRF (1) Offence A corporation commits an offence if: (a) the corporation makes a contract or arrangement, or arrives at an understanding; and (b) the contract, arrangement or understanding contains a cartel provision. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) The fault element for paragraph (1)(b) is knowledge or belief. (3) Penalty An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following: (a) $10,000,000; (b) if the court can determine the total value of the benefits that: (i) have been obtained by one or more persons; and (ii) are reasonably attributable to the commission of the offence; 3 times that total value; (c) if the court cannot determine the total value of those benefits — 10% of the corporation’s annual turnover during the 12-month period ending at the end of the month in which the corporation committed, or began committing, the offence.

(4) Indictable offence An offence against subsection (1) is an indictable offence. [page 389] SECTION 44ZZRF GENERALLY [10,690ZZRF.5] Overview The provision makes it a criminal offence to make a contract or arrangement or arrive at an understanding that contains a cartel provision: s 44ZZRF(1). Under the exposure draft of the Cartels Bill, the words “with the intention of dishonestly obtaining a benefit” (as part of the requirement for establishing the criminal offence) were removed. “Dishonesty” was defined consistently with the Criminal Code Act 1995 (Cth) to mean dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people. In each cartel criminal offence, the fault element is now “knowledge or belief”: ss 44ZZRF(2), 44ZZRG(2). The offences are mirrored in the Competition Codes of each state and territory so that they extend to conduct by individuals. See [14,140.1]. For an individual, the penalty is 10 years’ imprisonment or a fine of 2,000 penalty units ($220,000). [10,690ZZRF.10] Cartel provision 44ZZRD.

A “cartel provision” is defined in s

[10,690ZZRF.15] Fault element of the offence Chapter 2 of the Criminal Code Act 1995 (Cth) sets out the general principles of criminal responsibility. The fault element of the offence is “knowledge or belief”: ss 44ZZRF(2), 44ZZRG(2). [10,690ZZRF.20] Indictable offence offence: ss 44ZZRF(4), 44ZZRG(5).

The offence is a an indictable

[10,690ZZRF.25] Fine For a corporation the maximum penalty for a breach of the provision is a fine that is the greater of: $10 million; three times

the value of the benefit from the conduct; (or where this cannot be determined), 10 per cent of the annual turnover: ss 44ZZRF(3). ____________________

[10,690ZZRG]

Giving effect to a cartel provision

44ZZRG (1) Offence A corporation commits an offence if: (a) a contract, arrangement or understanding contains a cartel provision; and (b) the corporation gives effect to the cartel provision. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) The fault element for paragraph (1)(a) is knowledge or belief. (3) Penalty An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following: (a) $10,000,000; (b) if the court can determine the total value of the benefits that: (i) have been obtained by one or more persons; and (ii) are reasonably attributable to the commission of the offence; 3 times that total value; (c) if the court cannot determine the total value of those benefits — 10% of the corporation’s annual turnover during the 12-month period ending at the end of the month in which the corporation committed, or began committing, the offence. (4) Pre-commencement contracts etc Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section. (5) Indictable offence An offence against subsection (1) is an indictable offence. [page 390] SECTION 44ZZRG GENERALLY

[10,690ZZRG.5] Overview The provision makes it a criminal offence to give effect to a contract or arrangement or arrive at an understanding that contains a cartel provision: s 44ZZRG(1). Under the exposure draft of the Cartels Bill, the words “with the intention of dishonestly obtaining a benefit” (as part of the requirement for establishing the criminal offence) were removed. “Dishonesty” was defined consistently with the Criminal Code Act 1995 (Cth) to mean dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people. In each cartel criminal offence, the fault element is now “knowledge or belief”: ss 44ZZRF(2), 44ZZRG(2). The offences are mirrored in the Competition Codes of each state and territory so that they extend to conduct by individuals. See [14,140.1]. For an individual the penalty is 10 years’ imprisonment or a fine of 2,000 penalty units ($220,000). [10,690ZZRG.8] Giving effect

See [10,700.14].

[10,690ZZRG.10] Cartel provision 44ZZRD.

A “cartel provision” is defined in s

[10,690ZZRG.15] Fault element of the offence Chapter 2 of the Criminal Code Act 1995 (Cth) sets out the general principles of criminal responsibility. The fault element of the offence is “knowledge or belief”: s 44ZZRG(2). See [10,690ZZRF.15]. [10,690ZZRG.20] Indictable offence The offence is a an indictable offence: s 44ZZRG(5). See [10,690ZZRF.20]. [10,690ZZRG.25] Fine For a corporation the maximum penalty for a breach of the provision is a fine that is the greater of: $10 million; three times the value of the benefit from the conduct; (or where this cannot be determined), 10 per cent of the annual turnover: s 44ZZRG(3). See [10,690ZZRF.25] ____________________

[10,690ZZRH]

Determining guilt

44ZZRH (1) A corporation may be found guilty of an offence against section 44ZZRF or 44ZZRG even if: (a) each other party to the contract, arrangement or understanding is a person who is not criminally responsible; or (b) subject to subsection (2), all other parties to the contract, arrangement or understanding have been acquitted of the offence. Note: Party has an extended meaning — see section 44ZZRC. (2) A corporation cannot be found guilty of an offence against section 44ZZRF or 44ZZRG if: (a) all other parties to the contract, arrangement or understanding have been acquitted of such an offence; and (b) a finding of guilt would be inconsistent with their acquittal. SECTION 44ZZRH GENERALLY [10,690ZZRH.5] Overview The provision provides that a person may be found guilty of a criminal cartel offence even if each other party to the contract, arrangement or understanding is a person who is not criminally responsible or some of the other parties have been acquitted. [10,690ZZRH.10] Party The expression ‘party’ has an extended meaning in s 44ZZRC. ____________________ [page 391]

[10,690ZZRI] orders

Court may make related civil

44ZZRI If a prosecution against a person for an offence against section 44ZZRF or 44ZZRG is being, or has been, heard by a court, the court may: (a) grant an injunction under section 80 against the person in relation to: (i) the conduct that constitutes, or is alleged to constitute, the

offence; or (ii) other conduct of that kind; or (b) make an order under section 86C, 86D, 86E or 87 in relation to the offence. SECTION 44ZZRI GENERALLY [10,690ZZRI.5] Overview This provision permits a court to grant an injunction or make other orders against a person being prosecuted for a criminal offence under either ss 44ZZRF or 44ZZRG. ____________________ Subdivision C — Civil penalty provisions

[10,690ZZRJ] Making a contract etc containing a cartel provision 44ZZRJ A corporation contravenes this section if: (a) the corporation makes a contract or arrangement, or arrives at an understanding; and (b) the contract, arrangement or understanding contains a cartel provision. Note: For enforcement, see Part VI. SECTION 44ZZRJ GENERALLY [10,690ZZRJ.5] Overview This provision makes it a civil offence to make a contract, arrangement or understanding that contains a cartel provision. The offences are mirrored in the Competition Codes of each state and territory so that they extend to conduct by individuals. See [14,140.1]. For an individual, the penalty is a fine of $500,000. This is higher than the $220,000 monetary penalty for a breach of the criminal liability provision. The Explanatory Memorandum suggests that the discrepancy recognises that the consequences of criminal conviction for an individual can be especially strong and also reflects the availability of alternative sanctions that apply to

criminal offences: (paras 2.46 and 2.47). See [10,700.20].

[10,690ZZRJ.10]

Contract

[10,690ZZRJ.15]

Arrangement

[10,690ZZRJ.20]

Understanding

[10,690ZZRJ.25] 44ZZRD.

Cartel provision

See [10,700.25]. See [10,700.30]. A “cartel provision” is defined in s

____________________ [page 392]

[10,690ZZRK]

Giving effect to a cartel provision

44ZZRK (1) A corporation contravenes this section if: (a) a contract, arrangement or understanding contains a cartel provision; and (b) the corporation gives effect to the cartel provision. Note: For enforcement, see Part VI. (2) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section. SECTION 44ZZRK GENERALLY [10,690ZZRK.5] Overview This provision makes it a civil offence to give effect to a contract, arrangement or understanding that contains a cartel provision. The offences are mirrored in the Competition Codes of each state and territory so that they extend to conduct by individuals. See [14,140.1]. For an individual, the penalty is a fine of $500,000. This is higher than the $220,000 monetary penalty for a breach of the criminal liability provision. The Explanatory Memorandum suggests that the discrepancy recognises that the consequences of criminal conviction for an individual can be especially

strong and also reflects the availability of alternative sanctions that apply to criminal offences: (paras 2.46 and 2.47). See [10,700.14].

[10,690ZZRK.8] Giving effect [10,690ZZRK.10] Contract

See [10,700.20].

[10,690ZZRK.15] Arrangement [10,690ZZRK.20] Understanding

See [10,700.25]. See [10,700.30].

[10,690ZZRK.25] Cartel provision A “cartel provision” is defined in s 44ZZRD. ____________________ Subdivision D — Exceptions

[10,690ZZRL]

Conduct notified

44ZZRL (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply to a corporation in relation to a contract, arrangement or understanding containing a cartel provision, in so far as: (a) the cartel provision: (i) has the purpose, or has or is likely to have the effect, mentioned in subsection 44ZZRD(2); or (ii) has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c); and (b) the corporation has given the Commission a collective bargaining notice under subsection 93AB(1A) setting out particulars of the contract, arrangement or understanding; and (c) the notice is in force under section 93AD. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section). (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter.

[page 393] SECTION 44ZZRL GENERALLY [10,690ZZRL.5] Overview This provision broadly provides that the criminal offence provisions and the civil liability provisions will not apply where a corporation has given a collective bargaining notice and the notice is in force: s 44ZZRL(1). Broadly, a corporation may lodge a collective bargaining notice setting out particulars of a contract that contains a provision relating to price fixing, restricting output, or allocating customers (but not bid rigging): s 93AB(1). ____________________

[10,690ZZRM] Cartel provision subject to grant of authorisation 44ZZRM (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the making of a contract that contains a cartel provision if: (a) the contract is subject to a condition that the provision will not come into force unless and until the corporation is granted an authorisation to give effect to the provision; and (b) the corporation applies for the grant of such an authorisation within 14 days after the contract is made. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section). (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 44ZZRJ bears an evidential burden in relation to that matter. SECTION 44ZZRM GENERALLY [10,690ZZRM.5] Overview This provision broadly provides that the criminal offence provisions and the civil liability provisions will not apply where an authorisation is in force. The commission may authorise a contract, arrangement or understanding that contains a cartel provision: s 88(1A).

____________________

[10,690ZZRN] Contracts, arrangements or understandings between related bodies corporate 44ZZRN (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding if the only parties to the contract, arrangement or understanding are bodies corporate that are related to each other. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section). (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter. SECTION 44ZZRN GENERALLY [10,690ZZRN.5] Overview This provision broadly provides that the criminal offence provisions and the civil liability provisions will not apply to a contract, arrangement or understanding between related bodies corporate. ____________________ [page 394]

[10,690ZZRO]

Joint ventures — prosecution

44ZZRO (1) Sections 44ZZRF and 44ZZRG do not apply in relation to a contract containing a cartel provision if: (a) the cartel provision is for the purposes of a joint venture; and (b) the joint venture is for the production and/or supply of goods or services; and (c) in a case where subparagraph 4J(a)(i) applies to the joint venture — the joint venture is carried on jointly by the parties to the contract; and

(d) in a case where subparagraph 4J(a)(ii) applies to the joint venture — the joint venture is carried on by a body corporate formed by the parties to the contract for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note 1: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code). Note 2: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (1A) Section 44ZZRF does not apply in relation to an arrangement or understanding containing a cartel provision if: (a) the arrangement or understanding is not a contract; and (b) when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding: (i) intended the arrangement or understanding to be a contract; and (ii) reasonably believed that the arrangement or understanding was a contract; and (c) the cartel provision is for the purposes of a joint venture; and (d) the joint venture is for the production and/or supply of goods or services; and (e) in a case where subparagraph 4J(a)(i) applies to the joint venture — the joint venture is carried on jointly by the parties to the arrangement or understanding; and (f) in a case where subparagraph 4J(a)(ii) applies to the joint venture — the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital;

of that body corporate. Note 1: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code). Note 2: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (1B) Section 44ZZRG does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if: (a) the arrangement or understanding is not a contract; and [page 395] (b) when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding: (i) intended the arrangement or understanding to be a contract; and (ii) reasonably believed that the arrangement or understanding was a contract; and (c) when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and (d) the cartel provision is for the purposes of a joint venture; and (e) the joint venture is for the production and/or supply of goods or services; and (f) in a case where subparagraph 4J(a)(i) applies to the joint venture — the joint venture is carried on jointly by the parties to the arrangement or understanding; and (g) in a case where subparagraph 4J(a)(ii) applies to the joint venture — the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of: (i) their joint control; or

(ii) their ownership of shares in the capital; of that body corporate. Note 1: A defendant bears an evidential burden in relation to the matter in subsection (1B) (see subsection 13.3(3) of the Criminal Code). Note 2: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (2) Notice to prosecutor A person is not entitled to rely on subsection (1), (1A) or (1B) in a trial for an offence unless, within 28 days after the day on which the person is committed for trial, the person gives the prosecutor: (a) a written notice setting out: (i) the facts on which the person proposes to rely for the purpose of discharging the evidential burden borne by the person in relation to the matter in subsection (1), (1A) or (1B), as the case may be; and (ii) the names and address of any witnesses whom the person proposes to call for the purpose of discharging the evidential burden borne by the person in relation to the matter in subsection (1), (1A) or (1B), as the case may be; and (b) certified copies of any documents which the person proposes to adduce or point to for the purpose of discharging the evidential burden borne by the person in relation to the matter in subsection (1), (1A) or (1B), as the case may be. (3) If the trial of a person for an offence is being, or is to be, held in a court, the court may, by order: (a) exempt the person from compliance with subsection (2); or (b) extend the time within which the person is required to comply with subsection (2). [page 396] (4) For the purposes of paragraph (2)(b), a certified copy of a document is

a copy of the document certified to be a true copy by: (a) a Justice of the Peace; or (b) a commissioner for taking affidavits. SECTION 44ZZRO GENERALLY [10,690ZZRO.5] Overview Section 44ZZRO(1) broadly provides that the criminal offence provisions do not apply to a contract, arrangement or understanding that contains a cartel provision that is for the purpose of a joint venture, the joint venture is for the production and/or supply of goods or services and the joint venture is carried out jointly by the parties to the contract or by means of joint ownership or control of a body corporate formed by the parties to carry out the activity of the joint venture. Sections 44ZZRO(1A) and 44ZZRO(1B) were introduced as amendments by the Senate. Broadly they provide that the criminal offence provisions do not apply in relation to an arrangement containing a cartel provision (that is not a contract), where the parties intended the arrangement to be a contract and reasonably believed it was a contract, the cartel provision is for the purpose of a joint venture and the joint venture is for the production and/or supply of goods or services, and the joint venture is carried out jointly by the parties or by means of joint ownership or control of a body corporate formed by the parties to carry out the activity of the joint venture. Textual notes provide examples of joint venture activity involving the supply of services. ____________________

[10,690ZZRP] proceedings

Joint ventures — civil penalty

44ZZRP (1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a contract containing a cartel provision if: (a) the cartel provision is for the purposes of a joint venture; and (b) the joint venture is for the production and/or supply of goods or services; and (c) in a case where subparagraph 4J(a)(i) applies to the joint venture — the joint venture is carried on jointly by the parties to the

contract; and (d) in a case where subparagraph 4J(a)(ii) applies to the joint venture — the joint venture is carried on by a body corporate formed by the parties to the contract for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (1A) Section 44ZZRJ does not apply in relation to an arrangement or understanding containing a cartel provision if: (a) the arrangement or understanding is not a contract; and (b) when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding: (i) intended the arrangement or understanding to be a contract; and (ii) reasonably believed that the arrangement or understanding was a contract; and [page 397] (c) the cartel provision is for the purposes of a joint venture; and (d) the joint venture is for the production and/or supply of goods or services; and (e) in a case where subparagraph 4J(a)(i) applies to the joint venture — the joint venture is carried on jointly by the parties to the arrangement or understanding; and (f) in a case where subparagraph 4J(a)(ii) applies to the joint venture — the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of

enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (1B) Section 44ZZRK does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if: (a) the arrangement or understanding is not a contract; and (b) when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding: (i) intended the arrangement or understanding to be a contract; and (ii) reasonably believed that the arrangement or understanding was a contract; and (c) when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and (d) the cartel provision is for the purposes of a joint venture; and (e) the joint venture is for the production and/or supply of goods or services; and (f) in a case where subparagraph 4J(a)(i) applies to the joint venture — the joint venture is carried on jointly by the parties to the arrangement or understanding; and (g) in a case where subparagraph 4J(a)(ii) applies to the joint venture — the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note: For example, if a joint venture formed for the purpose of research

and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (2) A person who wishes to rely on subsection (1), (1A) or (1B) bears an evidential burden in relation to that matter. SECTION 44ZZRP GENERALLY [10,690ZZRP.5] Overview Section 44ZZRP(1) broadly provides that the civil liability provisions do not apply to a contract, arrangement or understanding that contains a cartel [page 398] provision that is for the purpose of a joint venture, the joint venture is for the production and/or supply of goods or services and the joint venture is carried out jointly by the parties to the contract or by means of joint ownership or control of a body corporate formed by the parties to carry out the activity of the joint venture. Sections 44ZZRP(1A) and 44ZZRP(1B) were introduced as amendments by the Senate. Broadly they provide that the criminal offence provisions do not apply in relation to an arrangement containing a cartel provision (that is not a contract), where the parties intended the arrangement to be a contract and reasonably believed it was a contract, the cartel provision is for the purpose of a joint venture and the joint venture is for the production and/or supply of goods or services, and the joint venture is carried out jointly by the parties or by means of joint ownership or control of a body corporate formed by the parties to carry out the activity of the joint venture. Textual notes provide examples of joint venture activity involving the supply of services. ____________________

[10,690ZZRQ] 44ZZRQ

Covenants affecting competition

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not

apply in relation to a contract containing a cartel provision, in so far as the cartel provision constitutes a covenant to which section 45B applies or, but for subsection 45B(9), would apply. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section). (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter. SECTION 44ZZRQ GENERALLY [10,690ZZRQ.5] Overview Section 45 ensures that a contract, arrangement or understanding that attracts another provision of Pt IV is addressed by that other provision — so called “anti-overlap” provisions. These anti-overlap provisions also apply to conduct that may attract the criminal offence provisions or the civil liability provisions under this Division. This provision provides that the criminal offence provisions and the civil liability provisions do not apply to a contract, arrangement or understanding that contains a cartel provision if the cartel provision provides for the acquisition of shares of a body corporate or assets of a person; Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 at [280] per Gordon J. This “carve-out” has two limitations. First it is limited to a contract, arrangement or understanding containing a cartel provision in so far as the cartel provision provides directly or indirectly for the acquisition of shares in the capital of a company. That is, the prohibition continues to apply to the balance of the contract, arrangement or understanding containing a cartel provision except to the extent that the cartel provision provides directly or indirectly for the acquisition of shares in the capital of a company: Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 at [281] per Gordon J. Second the carve out is limited by the fact that the application of ss 44ZZRJ and 44ZZRK to the relevant contract, arrangement or understanding is preserved by the words “in so far as”. So long as the relevant contract,

arrangement or understanding can stand with the excluded provision being severed, the balance can and will contravene those prohibitions: Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 at [282] per Gordon J. In relation to a criminal offence provision, the defendant bears the evidential burden of proof under the Criminal Code of establishing that the exception in the provision applies. In relation to a civil liability provision, the person seeking to rely on the exception in the provision bears the evidential burden of proof. ____________________ [page 399]

[10,690ZZRR]

Resale price maintenance

44ZZRR (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision relates to: (a) conduct that contravenes section 48; or (b) conduct that would contravene section 48 but for the operation of subsection 88(8A); or (c) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section). (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter. SECTION 44ZZRR GENERALLY

[10,690ZZRR.5] Overview Section 45 ensures that a contract, arrangement or understanding that attracts another provision of Pt IV is addressed by that other provision — so called “anti-overlap” provisions. These anti-overlap provisions also apply to conduct that may attract the criminal offence provisions or the civil liability provisions under this Division. This provision provides that the criminal offence provisions and the civil liability provisions do not apply to a contract, arrangement or understanding that relates to conduct that contravenes the resale price maintenance provisions in s 48 (or conduct that would contravene s 48 if an authorisation were not in force under s 88(8A). In relation to a criminal offence provision, the defendant bears the evidential burden of proof under the Criminal Code of establishing that the exception in the provision applies. In relation to a civil liability provision, the person seeking to rely on the exception in the provision bears the evidential burden of proof. ____________________

[10,690ZZRS]

Exclusive dealing

44ZZRS (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as giving effect to the cartel provision would, or would but for the operation of subsection 47(10) or 88(8) or section 93, constitute a contravention of section 47. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (3) of this section). (2) Sections 44ZZRG and 44ZZRK do not apply in relation to the giving effect to a cartel provision by way of: (a) engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or 88(8) or section 93 contravene, section 47; or (b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when:

[page 400] (i)

an authorisation under subsection 88(8) is in force in relation to conduct engaged in by that person on that condition; or (ii) by reason of subsection 93(7), conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code and subsection (3) of this section). (3) A person who wishes to rely on subsection (1) or (2) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter. SECTION 44ZZRS GENERALLY [10,690ZZRS.5] Overview Section 45 ensures that a contract, arrangement or understanding that attracts another provision of Pt IV is addressed by that other provision — so called “anti-overlap” provisions. These anti-overlap provisions also apply to conduct that may attract the criminal offence provisions or the civil liability provisions under this Division. This provision provides that the criminal offence provisions and the civil liability provisions do not apply to the making of a contract, arrangement or understanding that contains a cartel provision if giving effect to the cartel provision would contravene the exclusive dealing provisions in s 47 (or would contravene s 47 if an authorisation were not in force under s 88(8)). In relation to a criminal offence provision, the defendant bears the evidential burden of proof under the Criminal Code of establishing that the exception in the provision applies. In relation to a civil liability provision, the person seeking to rely on the exception in the provision bears the evidential burden of proof.

____________________

[10,690ZZRT]

Dual listed company arrangement

44ZZRT (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as: (a) the contract, arrangement or understanding is a dual listed company arrangement; and (b) the making of the contract, arrangement or understanding would, or would apart from subsection 88(8B), contravene section 49. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (3) of this section). (2) Sections 44ZZRG and 44ZZRK do not apply in relation to the giving effect to a cartel provision, in so far as: (a) the cartel provision is a provision of a dual listed company arrangement; and (b) the giving effect to the cartel provision would, or would apart from subsection 88(8B), contravene section 49. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code and subsection (3) of this section). (3) A person who wishes to rely on subsection (1) or (2) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter. [page 401] SECTION 44ZZRT GENERALLY [10,690ZZRT.5] Overview Section 45 ensures that a contract, arrangement or understanding that attracts another provision of Pt IV is addressed by that other provision — so called “anti-overlap” provisions. These anti-overlap provisions also apply to conduct that may attract the

criminal offence provisions or the civil liability provisions under this Division. This provision provides that the criminal offence provisions and the civil liability provisions do not apply to the making of a contract, arrangement or understanding that contains a cartel provision if the contract, arrangement or understanding is a dual listed company arrangement under s 49 and the making of the contract, arrangement or understanding would contravene s 49 if an authorisation were not in force under s 88(8B). In relation to a criminal offence provision, the defendant bears the evidential burden of proof under the Criminal Code of establishing that the exception in the provision applies. In relation to a civil liability provision, the person seeking to rely on the exception in the provision bears the evidential burden of proof. ____________________

[10,690ZZRU]

Acquisition of shares or assets

44ZZRU (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision provides directly or indirectly for the acquisition of: (a) any shares in the capital of a body corporate; or (b) any assets of a person. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section). (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter. SECTION 44ZZRU GENERALLY [10,690ZZRU.5] Overview Section 45 ensures that a contract, arrangement or understanding that attracts another provision of Pt IV is addressed by that other provision — so called “anti-overlap” provisions. These anti-overlap provisions also apply to conduct that may attract the criminal offence provisions or the civil liability provisions under this

Division. This provision provides that the criminal offence provisions and the civil liability provisions do not apply to a contract, arrangement or understanding that contains a cartel provision if the cartel provision provides for the acquisition of shares of a body corporate or assets of a person. Section 50 applies to the acquisition of shares or assets. In relation to a criminal offence provision, the defendant bears the evidential burden of proof under the Criminal Code of establishing that the exception in the provision applies. In relation to a civil liability provision, the person seeking to rely on the exception in the provision bears the evidential burden of proof. ____________________

[10,690ZZRV] Collective acquisition of goods or services by the parties to a contract, arrangement or understanding 44ZZRV (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as: (a) the cartel provision has the purpose, or has or is likely to have the effect, mentioned in subsection 44ZZRD(2); and [page 402] (b) either: (i) the cartel provision relates to the price for goods or services to be collectively acquired, whether directly or indirectly, by the parties to the contract, arrangement or understanding; or (ii) the cartel provision is for the joint advertising of the price for the re-supply of goods or services so acquired. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section). (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter. SECTION 44ZZRV GENERALLY [10,690ZZRV.5] Overview Section 45 ensures that a contract, arrangement or understanding that attracts another provision of Pt IV is addressed by that other provision — so called “anti-overlap” provisions. These anti-overlap provisions also apply to conduct that may attract the criminal offence provisions or the civil liability provisions under this Division. This provision provides that the criminal offence provisions and the civil liability provisions do not apply to a contract, arrangement or understanding that contains a cartel provision if the cartel provision has the purpose or effect of fixing price under s 44ZZRD(2) and the cartel provision relates to the price of goods or services to be collectively acquired or for the joint advertising of the price for the re-supply of goods or services. In relation to a criminal offence provision, the defendant bears the evidential burden of proof under the Criminal Code of establishing that the exception in the provision applies. In relation to a civil liability provision, the person seeking to rely on the exception in the provision bears the evidential burden of proof. ____________________ DIVISION 1A — ANTI-COMPETITIVE DISCLOSURE OF PRICING AND OTHER INFORMATION [Div 1A insrt Act 185 of 2011 s 3 and Sch 1[2], opn 6 June 2012]

INTRODUCTION TO DIVISION 1A [10,690ZZS.0] Overview This Division was inserted by the Competition and Consumer Legislation Amendment (No 1) Act 2011, Sch 1 of which commenced on 6 June 2012. Broadly the Division contains two prohibitions:

•

Private disclosure of pricing information to competitors (s 44ZZW): It prohibits the disclosure to competitors (or potential competitors) of information relating to prices, discounts, rebates or credits in relation to prescribed goods or services supplied or acquired by the corporation in a market. • Disclosure of pricing and commercial dealings that lessens competition (s 44ZZX): It prohibits the disclosure of information relating to prices, discounts, rebates or credits in relation to prescribed goods or services supplied or acquired by the corporation, the capacity of the corporation to supply or acquire or any aspect of the commercial strategy of the corporation if the disclosure is for the purpose of substantially lessening competition in a market. Initially the Division will apply only to the banking sector. See [10,695ZZT.5], [10,695ZZT.10]. [page 403] Background to the passage of the Division On 22 November 2010, the Shadow Minister for Small Business, Competition Policy and Consumer Affairs, the Hon Bruce Billson MP introduced a private members Bill: the Competition and Consumer (Price Signalling) Amendment Bill 2010. Its stated intention is to give the Commission power to investigate and seek penalties for “price signalling” that produces anti-competitive effects in the Australian market, to the detriment of consumers. The Bill appears to have been in response to prohibitions in Europe against “facilitating” or “concerted” practices. These are practices that facilitate collusive behaviour between competitors, typically directed at fixing or controlling price. The explanatory memorandum accompanying the Bill said: Price signalling is a facilitating practice by which corporations inform their rivals about price actions and intentions, so as to eliminate uncertainty about the price of their goods or services, thus reducing the inherent risks of competition which would be a feature [of] a workably competitive market. Anti-competitive price signalling is engaged in with the hope, or even expectation, that competitors will reciprocate in terms of the setting of the price and price-terms and conditions for their goods or services, although it does not require any commitment from them to do so. The effect of such behaviour will often be the same as prohibited conduct but is said by the ACCC to currently not be

captured by existing prohibitions.

The concern is that the requirement for an ‘understanding’ under Pt IV (eg, in establishing cartel conduct) does not catch facilitating practices. In this respect, the Bill is a response to the broader debate on the meaning of ‘understanding’ described in para (d) above at [10,690.5]. The Bill would insert a new s 45A to make anti-competitive “price signalling” unlawful. Unlawful “price signalling” is arrangements by communication of price-related information to a competitor, for the purpose of inducing the competitor to vary its price, with the effect (or likely effect) of substantially lessening competition. The term “communication” is defined broadly, and includes broadcasts without a particular defined audience and public announcements. On 24 November 2010, the Bill was referred to the House of Representatives Standing Committee on Economics for review. While the review of this Bill was being undertaken, the government introduced its own Bill — the Competition and Consumer Amendment Bill (No 1) 2011. Government’s Bill on price signalling and information exchanges As part of the Government’s banking system reforms), the Government committed to introduce amendments to the Act to prevent banks from engaging in anticompetitive price signalling. In response to this commitment, on 12 December 2010 Commonwealth Treasury released an exposure draft of the Competition and Consumer Amendment Bill (No 1) 2011. Following responses to its exposure draft, on 24 March 2011, the Government introduced the Competition and Consumer Amendment Bill (No 1) 2011. On 12 May 2011, the Bill was referred to the House of Representatives Standing Committee on Economics for review. In June 2011 the Committee delivered its report “Advisory Report on the Competition and Consumer (Price Signalling) Amendment Bill 2010 and the Competition Amendment Bill (No 1) 2011”. The Committee recommended that the House of Representatives pass the Competition and Consumer Amendment Bill (No 1) 2011 and reject the Competition and Consumer (Price Signalling) Amendment Bill 2010 introduced by the Hon Bruce Billson MP. Following comments in the Committee’s report and public submissions,

the Government introduced further exceptions to the private disclosure of pricing information (s 44ZZW). They include: • the prohibition will apply to a private disclosure to competitors that is “not in the ordinary course of business”; [page 404] •

the provision will not apply where competitors exchange information regarding loans or credit to be supplied by them; • the private disclosure of pricing information by a credit provider to the provider of a credit service within the meaning of the National Consumer Credit Protection Act 2009; • where a loan or credit has been supplied by one or more corporations and the disclosure purpose of one or more of the relevant corporations relates to considering whether to take measures to return the borrower to solvency, or to avoid or reduce the risk of the borrower becoming insolvent. It is intended that the Division apply initially only to the banking sector in response to the review of the banking system. As part of the Government amendments, the Bill now provides for the regulations to prescribe a process before regulations are made, for the purpose of prescribing other sectors to which the Division will apply. The Competition and Consumer Legislation Amendment Act (No 1) 2011 passed both houses of Parliament on 25 November 2011. It received Royal Assent on 6 December 2011. The substantive provisions commenced on 6 June 2012. Reform In its final report, Competition Policy Review, released in March 2015, the Harper Committee recommended the repeal of the price signalling provisions. The Committee recommended that s 45 be extended to prohibit a person engaging in a concerted practice with one or more other persons that has the purpose, effect or likely effect of substantially lessening competition. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper

Committee. The Exposure draft is available https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amend ments. See also [10,690.5]. ____________________

[10,690ZZS]

at

Definitions

44ZZS In this Division: disclose has a meaning affected by section 44ZZU. Division 1A goods or services means goods or services to which this Division applies (see section 44ZZT). evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. intermediary: see subsection 44ZZU(3). private disclosure to competitors: see section 44ZZV.

[10,690ZZT] Goods and services to which this Division applies 44ZZT (1) This Division applies to goods and services of the classes (however described) that are prescribed by the regulations for the purpose of this section. (2) Without limiting subsection (1), the regulations may limit the description of a class of goods or services by reference to any matters including (for example) any one or more of the following: (a) a kind of supplier of goods or services; (b) a kind of industry or business in which goods or services are supplied; (c) the circumstances in which goods or services are supplied. [page 405]

(3) The regulations must prescribe a process to be gone through before regulations are made, for the purpose of subsection (1), prescribing a class of goods or services. Before the Governor-General makes regulations, for the purpose of subsection (1), prescribing a class of goods or services, the Minister must be satisfied that the prescribed process has been complied with. (4) Subsection (3) does not apply in relation to the first regulations made for the purpose of subsection (1). SECTION 44ZZT GENERALLY [10,695ZZT.5] Overview The Division applies only to prescribed goods and services. Initially the Division will apply only to the banking sector. The provision also provides for regulations to establish a process before goods and services are prescribed under the Division. [10,695ZZT.10] Prescribed goods and services The Division applies only to prescribed goods and services. Initially the Division will apply only to the banking sector. On 23 December 2011, the Parliamentary Secretary to the Treasurer announced the commencement of consultation on draft Competition and Consumer Amendment Regulations (2012). It resulted in the enactment of reg 48. Regulation 48 prescribes goods and services provided by Authorised Deposit-taking Institution (ADIs) consisting, to any extent, of either the taking of money on deposit or making advances of money. An institution seeking to be prudentially regulated as an (ADI) is required to be authorised under the Banking Act 1959 by the Australian Prudential Regulation Authority (APRA). To receive authorisation, the institution must be carrying on “banking business”. Section 5 of the Banking Act 1959 defines “banking business” as both taking deposits (other than as part-payment for identified goods or services) and making advances of money, as well as other financial activities prescribed by regulations under the Banking Act 1959. ADIs currently include credit unions, building societies, banks, specialist credit card institutions, providers of purchased payment facilities and

authorised non-operating holding companies. A current list of ADIs can be found at: http://www.apra.gov.au/adi/Pages/adilist.aspx. A disclosure made by an ADI related to an activity outside of banking, for example a disclosure related to the provision of travel insurance products is not intended to be captured by reg 48. The activities prescribed by the Banking Regulations 1966 to be “banking business” are not covered by reg 48. It is intended that a disclosure by an ADI in relation to activities covered in the Banking Regulations 1966 will not be covered by reg 48. [10,695ZZT.15] Procedure for prescribing goods and services The provision also provides for regulations to establish a process before goods and services are prescribed under the Division. Regulation 49 establishes that procedure. Broadly, before the Governor-General makes any regulation, the Minister must be satisfied that any consultation that is considered appropriate and that is reasonably practicable to undertake, has been undertaken. To be satisfied, the Minister may have regard to whether the consultation: • drew on the knowledge of the persons having expertise in fields relevant to the proposed regulation; • ensured that the persons likely to be affected by the proposed regulation had an opportunity to comment on its proposed content; and • if appropriate, involved an invitation of submissions to be made by a specified date, or consultation involving an invitation of participation in public hearings held concerning the proposed regulation. ____________________ [page 406]

[10,690ZZU] Provisions affecting whether a corporation has disclosed information to a person 44ZZU

(1) Disclosure to director, employee or agent etc of another

person For the purpose of this Division: (a) if a corporation makes a disclosure of information to a person in the person’s capacity as a director, employee or agent of another body corporate, the disclosure is taken to have been made by the corporation to that body corporate; and (b) if a corporation makes a disclosure of information to a person in the person’s capacity as an employee or agent of another person (not being a body corporate), the disclosure is taken to have been made by the corporation to that other person. (2) Disclosure to discloser’s own agent For the purpose of this Division, the disclosure of information by a corporation to another person is to be disregarded if: (a) the disclosure is made to the person in the person’s capacity as an agent of the corporation; and (b) subsection (3) does not apply to the disclosure. (3) Disclosure through intermediary If: (a) a corporation makes a disclosure of information to a person (the intermediary); and (b) the corporation makes the disclosure to the intermediary for the purpose of the intermediary disclosing (or arranging for the disclosure of) the information to one or more other persons; and (c) the information is so disclosed to one or more of those other persons (the recipients); then, for the purpose of this Division: (d) the disclosure of the information to the recipients is taken to have been made by the corporation; and (e) the disclosure of the information to the intermediary is to be disregarded (unless the intermediary is a competitor or potential competitor of the corporation in a market). (4) Accidental disclosure For the purpose of this Division, the disclosure of information by a corporation to a person (the recipient) is to be disregarded if the disclosure to the recipient is due to: (a) an accident; or (b) the default of a person other than the corporation; or (c) some other cause beyond the control of the corporation.

Note: This subsection does not apply to a disclosure of information covered by subsection (3). (5) Section 84 not limited This section does not limit section 84.

[10,690ZZV] competitors

Meaning of private disclosure to

44ZZV (1) Main definition A disclosure of information by a corporation is a private disclosure to competitors, in relation to a particular market, if the disclosure is to one or more competitors or potential competitors of the corporation in that market, and is not to any other person. Note: The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more competitors or potential competitors, and is not to any other person. [page 407] (2) Anti-avoidance For the purpose of determining whether a corporation has made a private disclosure to competitors in relation to a particular market, the fact that the disclosure is also made to a person who is not a competitor or potential competitor of the corporation in that market is to be disregarded if: (a) for a disclosure that is not made through an intermediary — the corporation made the disclosure to the person for the purpose of avoiding the application of section 44ZZW to the disclosure; or (b) for a disclosure that is made through an intermediary — either: (i) the corporation directed or requested the intermediary to disclose the information to the person for the purpose of avoiding the application of section 44ZZW to the disclosure; or (ii) the intermediary disclosed the information to the person for the purpose of avoiding the application of section 44ZZW to the disclosure. (3) Fact that the information is otherwise available is not relevant The question whether a disclosure of information by a corporation is a private

disclosure to competitors is not affected by the information otherwise being or becoming available to competitors or potential competitors of the corporation in the market, or to other persons.

[10,690ZZW] Corporation must not make private disclosure of pricing information etc to competitors 44ZZW A corporation must not make a disclosure of information if: (a) the information relates to a price for, or a discount, allowance, rebate or credit in relation to, Division 1A goods or services supplied or likely to be supplied, or acquired or likely to be acquired, by the corporation in a market (whether or not the information also relates to other matters); and (b) the disclosure is a private disclosure to competitors in relation to that market; and (c) the disclosure is not in the ordinary course of business. Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(6A). SECTION 44ZZW GENERALLY [10,695ZZW.5] Overview The provision prohibits the disclosure to competitors (or potential competitors) of information relating to prices, discounts, rebates or credits in relation to prescribed goods or services supplied or acquired by the corporation in a market. ____________________

[10,690ZZX] Corporation must not make disclosure of pricing information etc for purpose of substantially lessening competition 44ZZX (1) The prohibition A corporation must not make a disclosure of information if: (a) the information relates to one or more of the following (whether or

not it also relates to other matters): (i) a price for, or a discount, allowance, rebate or credit in relation to, Division 1A goods or services supplied or likely to be supplied, or acquired or likely to be acquired, by the corporation; [page 408] (ii) the capacity, or likely capacity, of the corporation to supply or acquire Division 1A goods or services; (iii) any aspect of the commercial strategy of the corporation that relates to Division 1A goods or services; and (b) the corporation makes the disclosure for the purpose of substantially lessening competition in a market. Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(6A) or notified under subsection 93(1). (2) Determining whether disclosure made for purpose of substantially lessening competition In determining, for the purpose of this section, if a corporation has made a disclosure for the purpose of substantially lessening competition in a market, the matters to which the court may have regard include (but are not limited to): (a) whether the disclosure was a private disclosure to competitors in relation to that market; and (b) the degree of specificity of the information; and (c) whether the information relates to past, current or future activities; and (d) how readily available the information is to the public; and (e) whether the disclosure is part of a pattern of similar disclosures by the corporation. (3) Without limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a corporation may be taken to have made a disclosure of information for the purpose of substantially lessening competition in a market even though, after all the evidence has been considered, the existence of that purpose is ascertainable

only by inference from the conduct of the corporation or of any other person or from other relevant circumstances. SECTION 44ZZX GENERALLY [10,695ZZX.5] Overview The provision covers the disclosure of information relating to prices, discounts, rebates or credits in relation to prescribed goods or services supplied or acquired by the corporation, the capacity of the corporation to supply or acquire or any aspect of the commercial strategy of the corporation if the disclosure is for the purpose of substantially lessening competition in a market. ____________________

[10,690ZZY] Exceptions that apply to sections 44ZZW and 44ZZX 44ZZY (1) Disclosure authorised by law: general exception for 10 years Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a corporation if: (a) the disclosure is authorised by or under a law of the Commonwealth, a State or a Territory; and (b) the disclosure occurs before the end of 10 years after the day on which the Competition and Consumer Amendment Act (No 1) 2011 receives the Royal Assent. Note: This subsection has effect in addition to: (a) subsection (6) (which covers compliance with continuous disclosure requirements of the Corporations Act 2001); and (b) subsection 51(1) (which covers things authorised by certain laws). [page 409] (2) Disclosure to related bodies corporate Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a corporation if the disclosure is to one or more bodies corporate that are related to the corporation, and is not to any other person.

Note: The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more bodies corporate that are related to the corporation, and is not to any other person. (3) Disclosure for collective bargaining Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a corporation if: (a) the corporation has given the Commission a collective bargaining notice under subsection 93AB(1A) or (1) setting out particulars of a contract or proposed contract; and (b) the notice is in force; and (c) the disclosure is to one or more of the other contracting parties, and is not to any other person; and (d) the disclosure of the information: (i) if the notice relates to a contract — is required by the contract; or (ii) if the notice relates to a proposed contract — is made in the course of negotiations for the proposed contract or, if the proposed contract is entered into, is required by the contract. Note: The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more of the other contracting parties, and is not to any other person. (4) Disclosure in course of authorised conduct Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a corporation if: (a) an authorisation under section 88 (other than subsection 88(6A)) applies to or in relation to the corporation; and (b) the authorisation is in force; and (c) the disclosure of the information is made in the course of engaging in conduct that is covered by the authorisation. Note: A disclosure that would otherwise contravene section 44ZZW or 44ZZX can also be directly authorised under subsection 88(6A). (5) Disclosure covered by notification under section 93 Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a corporation if: (a) the corporation has given the Commission a notice under subsection 93(1) describing conduct; and

(b) the disclosure is conduct described in the notice; and (c) the notice is in force under section 93. (6) Compliance with continuous disclosure requirements of the Corporations Act 2001 Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a corporation if the disclosure is made for the purpose of complying with Chapter 6CA of the Corporations Act 2001. SECTION 44ZZY GENERALLY [10,695ZZY.5] Overview The provision provides exceptions to the operation of s 44ZZW and 44ZZX. ____________________ [page 410]

[10,690ZZZ] Additional exceptions that only apply to section 44ZZW 44ZZZ (1) Disclosure of information to acquirer or supplier of goods or services Section 44ZZW does not apply to the disclosure of information by a corporation to a person (the recipient) if: (a) the information relates to goods or services supplied or likely to be supplied, by the corporation to the recipient; or (b) the information relates to goods or services acquired or likely to be acquired, by the corporation from the recipient. (2) Disclosure to unknown competitor Section 44ZZW does not apply to the disclosure of information by a corporation to a person if: (a) the person is a competitor or potential competitor of the corporation in the market referred to in that section; and (b) the corporation did not know, and could not reasonably be expected to have known, that the person was such a competitor or potential competitor. (3) Disclosure to participants in joint venture Section 44ZZW does not apply to the disclosure of information by a corporation if:

(a) either: (i) the corporation is a participant in a joint venture for the production and/or supply of goods or services; or (ii) the corporation proposes to enter into a joint venture with one or more other persons (the proposed participants); and (b) the disclosure is to one or more participants or proposed participants in the joint venture, and is not to any other person; and (c) the disclosure is made for the purposes of the joint venture or in the course of negotiations for the joint venture. Note: The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more participants in the joint venture, and is not to any other person. (3A) Disclosure relating to provision of loans etc to same person Section 44ZZW does not apply to the disclosure of information between 2 or more corporations (the relevant corporations) if: (a) the information relates to services, being loans or credit, supplied, or likely to be supplied, by one or more of the relevant corporations; and (b) 2 or more of the relevant corporations are, in relation to the same person (the borrower), doing either or both of the following: (i) providing such services to the borrower; (ii) considering whether to provide such services to the borrower; (c) the disclosure is for the purpose of, or related to, providing services, or considering whether to provide services, to the borrower as mentioned in paragraph (b). (3B) Disclosure between credit provider and provider of credit service Section 44ZZW does not apply to the disclosure of information by a corporation to another person if: [page 411] (a) either:

(i)

the corporation is a credit provider, and the other person provides a credit service, within the meaning of the National Consumer Credit Protection Act 2009; or (ii) the corporation provides a credit service, and the other person is a credit provider, within the meaning of that Act; and (b) the disclosure is made in the course of the relationship between the corporation and the other person in their capacities as credit provider and provider of a credit service. (4) Disclosure relating to acquisition of shares or assets Section 44ZZW does not apply to the disclosure of information by a corporation in so far as the information is disclosed in connection with a contract, arrangement or understanding that provides, or a proposed contract, arrangement or understanding that would provide, for the acquisition of any shares in the capital of a body corporate, or any assets of a person, by or from the corporation. Note: For the meaning of acquisition of shares, and acquisition of assets, see subsection 4(4). (5) Disclosure if borrower insolvent etc Section 44ZZW does not apply to the disclosure of information between 2 or more corporations (the relevant corporations) if: (a) at least one of the relevant corporations: (i) has provided a loan or credit to another corporation (the borrower); and (ii) has been notified of a borrower insolvency situation (see subsection (6)); and (b) the information relates to services, being loans or credit, supplied, or likely to be supplied, by one or more of the relevant corporations; and (c) the disclosure is for the purpose of one or more of the relevant corporations considering whether to take measures to return the borrower to solvency, or to avoid or reduce the risk of the borrower becoming insolvent. (6) For the purpose of subsection (5), a relevant corporation is notified of a borrower insolvency situation if:

(a) the corporation is notified that there are reasonable grounds for suspecting that one or more of the following may be or become insolvent: (i) the borrower; (ii) a person who has given a guarantee or indemnity in respect of loans or credit provided to the borrower by one or more of the relevant corporations; and (b) the notification is given by the borrower, or by a person referred to in subparagraph (a)(ii). SECTION 44ZZZ GENERALLY [10,695ZZZ.5] Overview The provision provides additional exceptions (to those in s 44ZZY) to the private disclosure of pricing information under s 44ZZW). ____________________ [page 412]

[10,690ZZZA]

Burden of proof

44ZZZA If: (a) proceedings are brought against a person in relation to section 44ZZW or 44ZZX; and (b) the person seeks to rely on subsection 44ZZU(2) or (4), or on a subsection of section 44ZZY or 44ZZZ; the person bears an evidential burden in relation to the matters set out in that subsection on which the person seeks to rely.

[10,690ZZZB] Mere receipt of information does not constitute being knowingly involved in contravention 44ZZZB

For the purpose of paragraph 76(1)(e), a person is not taken to

be directly or indirectly knowingly concerned in, or party to, a contravention of section 44ZZW or 44ZZX merely because the person is a recipient of information disclosed in contravention of that section. DIVISION 2 — OTHER PROVISIONS [heading insrt Act 59 of 2009 s 3 and Sch 1[19], opn 24 July 2009]

[10,700] Contracts, arrangements or understandings that restrict dealings or affect competition 45 (1) If a provision of a contract made before the commencement of the Trade Practices Amendment Act 1977: (a) is an exclusionary provision; or (b) has the purpose, or has or is likely to have the effect, of substantially lessening competition; that provision is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a corporation. (2) A corporation shall not: (a) make a contract or arrangement, or arrive at an understanding, if: (i) the proposed contract, arrangement or understanding contains an exclusionary provision; or (ii) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or (b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision: (i) is an exclusionary provision; or (ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition. (3) For the purposes of this section, competition, in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, means competition in any market in which a

corporation that is a party to the contract, arrangement or understanding, or would be a party to the proposed [page 413] contract, arrangement or understanding, or any body corporate related to such a corporation, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services. [subs (3) am Act 59 of 2009 s 3 and Sch 1[20], opn 24 July 2009]

(4) For the purposes of the application of this section in relation to a particular corporation, a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding shall be deemed to have or to be likely to have the effect of substantially lessening competition if that provision and any one or more of the following provisions, namely: (a) the other provisions of that contract, arrangement or understanding or proposed contract, arrangement or understanding; and (b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the corporation or a body corporate related to the corporation is or would be a party; together have or are likely to have that effect. (5) This section does not apply to or in relation to: (a) a provision of a contract where the provision constitutes a covenant to which section 45B applies or, but for subsection 45B(9), would apply; (b) a provision of a proposed contract where the provision would constitute a covenant to which section 45B would apply or, but for subsection 45B(9), would apply; or (c) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding in so far as the provision relates to: (i) conduct that contravenes section 48; or

(ii) conduct that would contravene section 48 but for the operation of subsection 88(8A); or (iii) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply. [subs (5) am Act 88 of 1995 s 9]

(6) The making of a contract, arrangement or understanding does not constitute a contravention of this section by reason that the contract, arrangement or understanding contains a provision the giving effect to which would, or would but for the operation of subsection 47(10) or 88(8) or section 93, constitute a contravention of section 47 and this section does not apply to or in relation to the giving effect to a provision of a contract, arrangement or understanding by way of: (a) engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or 88(8) or section 93 contravene, section 47; or (b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when: (i) an authorization under subsection 88(8) is in force in relation to conduct engaged in by that person on that condition; or [page 414] (ii) by reason of subsection 93(7) conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition. [subs (6) am Act 88 of 1995 s 9]

(6A) The following conduct: (a) the making of a dual listed company arrangement; (b) the giving effect to a provision of a dual listed company arrangement; does not contravene this section if the conduct would, or would apart from subsection 88(8B), contravene section 49. [subs (6A) insrt Act 131 of 2006 s 3 and Sch 6[4], opn 1 Jan 2007]

*(7) This section does not apply to or in relation to a contract, arrangement or understanding in so far as the contract, arrangement or understanding provides, or to or in relation to a proposed contract, arrangement or understanding in so far as the proposed contract, arrangement or understanding would provide, directly or indirectly for the acquisition of any shares in the capital of a body corporate or any assets of a person. [subs (7) am Act 222 of 1992 s 3]

(8) This section does not apply to or in relation to a contract, arrangement or understanding, or a proposed contract, arrangement or understanding, the only parties to which are or would be bodies corporate that are related to each other. (8A) Subsection (2) does not apply to a corporation engaging in conduct described in that subsection if: (a) the corporation has given the Commission a collective bargaining notice under subsection 93AB(1) describing the conduct; and (b) the notice is in force under section 93AD. [subs (8A) insrt Act 131 of 2006 s 3 and Sch 3[2], opn 1 Jan 2007]

*Editor’s note: Section 21 of the Trade Practices Legislation Amendment Act 1992 No 222 provides as follows: Application of the merger amendments 21 (1) Subject to this section, the merger amendments apply to any acquisition that happens after the commencement of this Act. (2) If at the commencement of this Act a proposed acquisition was the subject of any court proceedings under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to the following acquisitions as if the merger amendments had not been made: (a) the proposed acquisition; (b) any acquisition of the same shares or assets by a body corporate that, at the commencement of this Act, was related (within the meaning of the Principal Act) to a

body corporate that was a party to the court proceedings. (3) If, on 4 November 1992, a proposed acquisition was the subject of an application for an authorisation under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to that acquisition as if the merger amendments had not been made. (4) In this section, merger amendments means the amendments made by sections 2, 3, 6, 7, 12, 14, 15 and 17 of this Act.

[page 415] (9) The making by a corporation of a contract that contains a provision in relation to which subsection 88(1) applies is not a contravention of subsection (2) of this section if: (a) the contract is subject to a condition that the provision will not come into force unless and until the corporation is granted an authorization to give effect to the provision; and (b) the corporation applies for the grant of such an authorization within 14 days after the contract is made; but nothing in this subsection prevents the giving effect by a corporation to such a provision from constituting a contravention of subsection (2). SECTION 45 GENERALLY [10,700.5] Overview Section 45 prohibits certain contracts, arrangements and understandings (arrangements) which can be broadly grouped as follows: Exclusionary provisions Exclusionary provisions are also known as collective boycotts. They are defined in s 4D. These are arrangements between two or more persons who are competitive with one another where the arrangement has the purpose of restricting: • the supply of goods or services to or the acquisition of goods or services from particular persons or classes of persons; or • the supply of goods or services to or the acquisition of goods or services from particular persons or classes of persons in particular circumstances or on particular conditions.

Anti-competitive agreements Section 45 also prohibits any arrangement which has the purpose or effect of substantially lessening competition in a market. The impact on competition is assessed in any market in which the parties to the arrangement supply or acquire goods, or would do so but for the arrangement: s 45(3). In determining anti-competitive effect, s 45(4) permits aggregation of two or more provisions of an arrangement. Section 45(5), (6) and (7) deal with the interaction of s 45 with other provisions of Pt IV. Section 45 will not apply where the conduct would contravene ss 45B, 47 and 48. Nor will it apply to an arrangement for the acquisition of shares or assets of a body corporate because this is regulated by s 50. Section 45(8) provides for related bodies corporate to be exempt from s 45. Section 4A describes the circumstances when bodies corporate will be regarded as related. Section 45(9) protects a corporation where the contract will not come into effect until an authorisation is granted and the authorisation has been applied for within 14 days after the contract is made. Dual listed company arrangement Following the passage of the Trade Practices Amendment Act (No 1) 2006, s 49 prohibits a corporation from making or giving effect to a dual listed company arrangement if it has the purpose or effect of substantially lessening competition. Price-fixing Following the passage of the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009, price fixing arrangements (previously regulated by ss 45 and 45A) are now regulated by Div 1, Pt IV. See [10,690ZZRA.5]. Reform In its final report, Competition Policy Review, released in March 2015, the Harper Committee recommended the repeal of the prohibition on exclusionary provisions in s 45(2)(a)(i) and (b)(ii) and the introduction of a new prohibition on concerted practices. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. The Exposure draft is available at

[page 416] https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amendments. See also [10,690.5]. Guidelines In response to the proposal to introduce a new prohibition on concerted practices, the Commission published “Framework for concerted practices guidelines” in September 2016. The Commission will publish the guidelines (following consultation) when the Act is amended to introduce the prohibition. [10,700.10] “corporation” A corporation is defined in s 4 to include a foreign, trading or financial corporation. [10,700.13] “provision” of a contract, arrangement or understanding In considering whether there is a contravention of s 45(2)(a) or (b) it is necessary to isolate and identify a “provision” of the contract, arrangement or understanding that is said to have the purpose of substantially lessening competition: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [955] per Goldberg J. In Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794; BC200704008 at [32] Gray J said: [32] A provision must provide for something to occur, or not to occur. Further, the kind of provision contemplated by s 45(2)(a)(ii) is a provision capable of having a “purpose” or an “effect”. This element is supplied by the deeming effect of s 45A(1) if the provision has the purpose, or has or is likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, among other things, a price. By s 45A(5), the determination of whether a provision of the required kind exists is not dependent upon form, or upon express description. The requisite provision can be in the form of a recommendation, according to s 45A(6). What is important is its substance. There must therefore be sufficient substance to whatever is the result of the formation of an understanding for it to contain a provision of the required kind.

[10,700.14] Giving effect to a provision Section 4(1) defines “giving effect”, however, that is subject to a contrary intention. There is no suggestion of a contrary intention in s 45: Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [222] per Besanko J. The definition is an inclusive one. It requires the performance of an act or

thing and it would not include an omission or failure to act such as a failure to report an arrangement or understanding: Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [138] per Besanko J. A third party can give effect to a prohibited arrangement or understanding: Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [222] per Besanko J. [10,700.15] Exclusionary provision An exclusionary provision is defined in s 4D. These are arrangements between two or more persons who are competitive with one another where the arrangement has the purpose of restricting: • the supply of goods or services to or the acquisition of goods or services from particular persons or classes of persons; or • the supply of goods or services to or the acquisition of goods or services from particular persons or classes of persons in particular circumstances or on particular conditions. The restriction may be by all or some of the parties to the arrangement. These arrangements are also prohibited outright, because they have the necessary tendency to inhibit competition: News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 558; 139 ALR 193; (1996) ATPR ¶41-521 at 42,644; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (2000) 186 ALR 731; (2001) ATPR ¶41-799; [2000] FCA 1640; BC200006997. [page 417] [10,700.20] “contract” The expression is not defined in the Act. In Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794; BC200704008 at [25] Gray J said: [25] … A contract is the result of the acceptance by one party of an offer made by another, resulting in the minds of the two parties being at one as to the agreement they have made. It must be supported by good consideration, have sufficient certainty of terms that it be possible to determine what has been agreed, and be accompanied by an intention on the part of the parties that a legally binding relationship should be established by it. In ordinary circumstances, the obligations created by a contract are enforceable in a court, but their enforceability is subject to the possibility of defences arising from the nature of the contract itself, or from external circumstances. One defence

arising from the nature of the contract itself results from the illegality of its purpose. In using the word “contract” in s 45(2)(a) of the Trade Practices Act, Parliament must have intended to refer to a consensual dealing having the fundamental characteristics of a contract, but not necessarily being enforceable in a court of law, because s 45(2)(a) would itself give rise to the defence of illegality, and thereby prevent enforcement. Thus, the word “contract” for the purposes of s 45(2)(a) describes a consensual dealing with a high degree of formality.

[10,700.25] “arrangement” The expression is not defined in the Act. It was explained in Re British Basic Slag Ltd Agreements [1963] 2 All ER 807 at 819; [1963] 1 WLR 727 at 746 as follows: “Arrangement” is not a term of art … it involves a meeting of minds … “between two or more persons” and … it involves mutuality in that each party assuming he is a reasonable and conscientious man, would regard himself as being in some degree under a duty whether moral or legal to conduct himself in a particular way or not to conduct himself in a particular way as the case may be, at any rate so long as the other party or parties conducted themselves in the way contemplated by the arrangement.

This definition has been followed: • Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465; 24 FLR 286; (1975) ATPR ¶40-004; • Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; 42 FLR 213; (1979) ATPR ¶40-141; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [490] per Hill J; • (appeal) Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636; [2003] FCAFC 193; BC200304691 per Wilcox, French and Gyles JJ; • Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688 at [105] per Young J. In Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321; (2007) ATPR ¶42-162; [2007] FCA 794; BC200704008 at [26] Gray J said: [26] The word “arrangement” is less clearly understood, and more susceptible of elasticity as to its meaning. In general, it appears to connote a consensual dealing lacking some of the essential elements that would otherwise make it a contract. For instance, a dealing that would otherwise be a contract may be described as an “arrangement” if the parties to it intended not to create a legally binding relationship, but only to give expression to their intentions as to the obligations that each felt morally bound to adhere to in relation to what was to pass between them, or to be carried out by them. Of course, an arrangement might be a broader concept than this, because it is a term the

boundaries of which have not been fixed in the traditional understanding of lawyers … The ordinary understanding of what amounts to an “arrangement” makes it difficult to envisage that an arrangement could come about without [page 418] express negotiations between the parties, although there have been suggestions that an arrangement can be tacit. See Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 41 FLR 277 at 301-2 per Fisher J, with whom Brennan and Deane JJ agreed, referred to by Franki J in Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 at 24 in the context of s 45(2) of the Trade Practices Act. At the very least, there must be some express communication between the parties, although what is said may not amount to offer and acceptance for the purposes of the law of contract. The need for express communication is also suggested by the use of the verb “make” in conjunction with both “contract” and “arrangement” in s 45(2)(a) of the Trade Practices Act. It is hard to see how two parties could “make” an “arrangement” without doing so expressly, at least as to the substance of the arrangement, even if the acceptance by one party of what the other has communicated is implicit in some act, rather than expressed in words.

Therefore the elements of an arrangement are that there be: • a meeting of the minds of the parties in question by way of some type of communication (possibly expressly); • the arousal of certain expectations in the minds of the parties; and • the acceptance that each party will act in a particular way. Independently held beliefs are not sufficient to constitute a “meeting of the minds”, nor is a mere hope as to what might be done or happen. There must be a consensus and the assumption of an obligation to act in a certain way: see: • Trade Practices Commission v Email Ltd (1980) 31 ALR 53 at 56; 43 FLR 383; • Stationers Supply Pty Ltd v Victorian Authorised Newsagents Assn (1993) 44 FCR 35; (1993) ATPR ¶41-255; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [799] per Goldberg J; • See Australian Competition and Consumer Commission (ACCC) v TF Woollam & Son Pty Ltd [2011] FCA 973; BC201106386 at [50]–[52] per Logan J; • McHugh v Australian Jockey Club (No 13) [2012] FCA 1441; BC201209964 per Robertson J; • Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235;

BC201301413 per Gordon J; • Australian Competition and Consumer Commission v Air New Zealand Ltd [2014] FCA 1157; BC201411318 per Perram J; • Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 per Besanko J. • Australian Competition and Consumer Commission (ACCC) v Prysmian Cavi E Sistemi SRL (fka Prysmian Cavi E Sistemi Energia SRL) [2016] FCA 822; BC201605911 at [70] per Besanko J. However, in certain circumstances it may be possible to infer an arrangement or understanding from a series of individual agreements: • (appeal) News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; 139 ALR 193; (1996) ATPR ¶41-521; • Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8) (1999) 165 ALR 468 at 499-500; (1999) ATPR ¶41-732 at 43,505; • Spotwire Pty Ltd v Visa International Service Assn Inc (2003) ATPR ¶41-949; [2003] FCA 762; BC200303965 at [39] per Bennett J. [10,700.30] “understanding” The expression is not defined in the Act. An “understanding” describes something less than a binding contract or arrangement: • Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2004) ATPR (Digest) ¶46-260; [2004] FCA 1678; BC200408833 at [54] per Merkel J; • Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794; BC200704008 at [27] per Gray J; [page 419] •

Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [2245] per Sackville J;

Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 per Besanko J. In Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465 at 470; 24 FLR 286; (1975) ATPR ¶40-004 at 17,116 Smithers J stated: •

... an understanding must involve the meeting of two or more minds. Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act.

In Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd, above, at [28] Gray J said: [28] However broad and flexible an understanding might be, for the purposes of s 45(2)(a) of the Trade Practices Act it must be a consensual dealing between parties. Like an arrangement, it falls outside the sphere of contractual obligations of a kind normally enforceable in a court. Unlike an arrangement, it can be tacit, in the sense that it can be arrived at by each party, either by words or acts, signifying an intention to act in a particular way in relation to a matter of concern to another party. In order to be a consensual dealing, however, an understanding must involve a meeting of minds . . .

A mere hope or expectation that a party will act in a particular way is insufficient to constitute an understanding: • Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 161; BC200505938 at [47] per Heerey, Hely and Gyles JJ; • Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688 at [105] per Young J; • Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd, above, at [37] per Gray J; • Australian Competition and Consumer Commission (ACCC) v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305; 80 IPR 497; [2009] HCA 19; BC200903238 at [48] per French CJ and Kiefel J; • See Australian Competition and Consumer Commission (ACCC) v TF Woollam & Son Pty Ltd [2011] FCA 973; BC201106386 at [50]–[52] per Logan J; • Australian Competition and Consumer Commission (ACCC) v Prysmian Cavi E Sistemi SRL (fka Prysmian Cavi E Sistemi

Energia SRL) [2016] FCA 822; BC201605911 at [70] per Besanko J. In Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) 30 ALR 88 at 91; (1980) ATPR ¶40-157 (an appeal from the decision in Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609; 40 FLR 83; (1978) ATPR ¶40-126) Bowen CJ concluded, although not as a final view: I wish to add one qualification to my general statement of agreement with [Fisher J’s] reasons and findings … Fisher J reached the conclusion that it is a necessary ingredient of such an “understanding” that there be an element of mutual commitment between two or more parties in the sense that each must have accepted an obligation qua the others. As at present advised, it seems to me that one could have an understanding between two or more persons restricted to the conduct which one of them will pursue without any element of mutual obligation, in so far as the other party or parties to the understanding are concerned.

Whether mutuality is a necessary component of an understanding is yet to be resolved. A number of decisions following the Morphett Arms case, above, have suggested that mutuality may not be essential: [page 420] • • •

•

•

•

Trade Practices Commission v David Jones (Aust) Pty Ltd (1986) 13 FCR 446; 64 ALR 67; (1986) ATPR ¶40-671; Trade Practices Commission v Service Station Assn Ltd (1993) 44 FCR 206; 116 ALR 643; (1993) ATPR ¶41-260; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344; (2000) ATPR ¶41-749; Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8) (1999) 165 ALR 468 at 499-500; (1999) ATPR ¶41-732 at 43,505; Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-804; [2001] FCA 116; BC200100573 at [75] per Mansfield J (not discussed on appeal to the High Court in Rural Press Ltd v Australian Competition and Consumer Commission (2003) 203 ALR 217; 78 ALJR 274; [2003] HCA 75; BC200307578); see Australian Competition and Consumer Commission v Leahy

Petroleum Pty Ltd (2004) ATPR (Digest) ¶46-260; [2004] FCA 1678; BC200408833 at [54] per Merkel J. • See Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688 at [110] per Young J. • See Australian Competition and Consumer Commission (ACCC) v TF Woollam & Son Pty Ltd [2011] FCA 973; BC201106386 at [55] per Logan J; • Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 per Gordon J; • Australian Competition and Consumer Commission v Air New Zealand Ltd [2014] FCA 1157; BC201411318 per Perram J. The words “arrangement” and “understanding” are arguably synonymous: Hughes v Western Australian Cricket Assn Inc (1986) 19 FCR 10; 69 ALR 660; (1986) ATPR ¶40-736 at 48,040; Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8), above, ALR at 499-500; ATPR at 43,505. The evidence required to establish an understanding is possibly less than that required to prove an arrangement. An understanding is perhaps a less formal and looser concept than an arrangement: Australian Competition and Consumer Commission v Australian Medical Assn Western Australia Branch Inc (2003) 199 ALR 423; [2003] FCA 686; BC200303666 at [186] per Carr J; Australian Competition and Consumer Commission (ACCC) v Australian Egg Corp Ltd [2016] FCA 69; BC201600514 per White J. For an excellent discussion of how to establish proof on understanding see Australian Competition and Consumer Commission v Air New Zealand Ltd [2014] FCA 1157; BC201411318 at [464]–[487] per Perram J. [10,700.35] Evidence of collusion Direct evidence will rarely be available to establish an arrangement. Circumstantial evidence of the following type may lead to the conclusion that conduct was the subject of some pre-concert consistent with an arrangement of the type prohibited by the Act: • evidence of parallel conduct by the parties; • evidence of joint action by the parties in relation to relevant matters; • evidence of collusion between the parties;

• •

evidence of similar pricing structures; evidence of an opportunity, whether social or otherwise, for the parties to reach an understanding; or • evidence of any action taken which shows that the parties, although apparently acting independently, are acting towards the same end. Although the actions of parties may seem to be individually taken, inferences as to pre-concert will be drawn if such actions show a concurrence as to time, character, direction which leads naturally to the conclusion that they are the outcome of pre-concert: • Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; 42 FLR 213; (1979) ATPR ¶40-141; • Trade Practices Commission v Email Ltd (1980) 31 ALR 53; 43 FLR 383; [page 421] Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 225; (1981) ATPR ¶40-237; • Trade Practices Commission v David Jones (Aust) Pty Ltd (1986) 13 FCR 446; 64 ALR 67; (1986) ATPR ¶40-671; • News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; 139 ALR 193; (1996) ATPR ¶41-521; • Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [50] per Besanko J. The relevant purpose for s 45 is the subjective purpose: • Hughes v Western Australian Cricket Assn Inc (1986) 19 FCR 10; 69 ALR 660; (1986) ATPR ¶40-736 at 48,044–5; • ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (1991) 27 FCR 460; 97 ALR 513; (1991) ATPR ¶41-069 at 52,060–1; • Dowling v Dalgety Australia Ltd (1992) 34 FCR 109; 106 ALR 75; (1992) ATPR ¶41-165 at 40,268; • Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; •

BC200610688 at [111] per Young J. However, purpose may be inferred from the surrounding circumstances: • Dowling v Dalgety Australia Ltd, above; • News Ltd v Australian Rugby Football League Ltd, above; • Wickham v Canberra District Rugby League Football Club Ltd (1998) ATPR ¶41-664; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [490] per Hill J; • (appeal) Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636; [2003] FCAFC 193; BC200304691 per Wilcox, French and Gyles JJ. The mere presence at a meeting may not be sufficient to establish that a person was a party to a prohibited contract, arrangement or understanding without further evidence of that party’s conduct at the meeting: Trade Practices Commission v JJ & YK Russell Pty Ltd (1991) ATPR ¶41-132. In Australian Competition and Consumer Commission v Gullyside Pty Ltd [2005] FCA 1727; BC200510280 at [10] per Kiefel J, following an informal contact the parties reached an agreement that they would communicate and agree upon the time and amount by which they would increase the price of petrol. [10,700.40] “purpose” The relevant purpose need only be a substantial purpose (s 4F). The relevant purpose for s 45 is the subjective purpose: • Hughes v Western Australian Cricket Assn Inc (1986) ATPR ¶40-748 at 48,044–5; • ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (1991) 27 FCR 460; 97 ALR 513; (1991) ATPR ¶41-069 at 52,060–1; • Dowling v Dalgety Australia Ltd (1992) 34 FCR 109; 106 ALR 75; (1992) ATPR ¶41-165 at 40,268; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [496] per Hill J; • (appeal) Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529;

•

•

201 ALR 636; [2003] FCAFC 193; BC200304691 per Wilcox, French and Gyles JJ; Australian Competition and Consumer Commission v Australian Medical Assn Western Australia Branch Inc (2003) 199 ALR 423; [2003] FCA 686; BC200303666 at [246] per Carr J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2004) ATPR (Digest) ¶46-260; [2004] FCA 1678; BC200408833 at [49] per Merkel J; [page 422]

Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [2389], [2461] per Sackville J; • Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 at [828] per Dowsett and Lander JJ (Mansfield J agreeing); • Australian Competition and Consumer Commission (ACCC) v Prysmian Cavi E Sistemi SRL (fka Prysmian Cavi E Sistemi Energia SRL) [2016] FCA 822; BC201605911 at [176] per Besanko J. An examination of the objective purpose of a provision may give undue significance to the substantive effect of the provision, as opposed to the effect that the parties sought to achieve through its inclusion: News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563; 77 ALJR 1515; [2003] HCA 45; BC200304465 at [63] per Gummow J; see Australian Competition and Consumer Commission (ACCC) v TF Woollam & Son Pty Ltd [2011] FCA 973; BC201106386 at [64] per Logan J. However, purpose may be inferred from the surrounding circumstances: Dowling v Dalgety Australia Ltd, above; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; 139 ALR 193; (1996) ATPR ¶41521. In general, the proscribed purpose must be a purpose common to both parties: Stokely-Van Camp Inc v New Generation Beverages Pty Ltd (1998) ATPR ¶41-657 at 41,298. •

The substantial purpose of each of the parties responsible for including the relevant provision must be to substantially lessen competition: Seven Network Ltd v News Ltd, above, at [2403], [2424] per Sackville J. Further, at [2431], Sackville J said that in a case where an issue arises as to whether the alleged contravenor had the purpose of substantially lessening competition, the court should deal with the issue in two stages: • First, the court must identify the object the alleged contravenor sought to achieve by including the relevant provision in the contract. As News v South Sydney explains, the purpose with which s 45(2) is concerned is the end sought to be achieved. The end sought to be achieved will not usually be framed by the alleged contravenor in terms of a particular market. More commonly, the objective will be framed more prosaically, such as deterring retailers of recordings from lawfully engaging in parallel importation of the product. • Second, the court must inquire whether the object sought to be achieved, if effectuated, was realistically capable of substantially lessening competition in any relevant market. If so, a contravention of s 45(2) may be made out. If not, no contravention can be established. However, on appeal in Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 at [897]–[900], Dowsett and Lander JJ (Mansfield agreeing) rejected the second of the requirements expressed by Sackville J. They said: [897] His Honour’s conclusion at J [2435]-[2436] depends upon his description of the second stage of the inquiry which he proposed at J [2431]. Whilst we accept that the Court must inquire as to whether a particular purpose is anti-competitive, it does not follow that the purpose must also be capable of achievement in the relevant market. The words “realistically capable of substantially lessening competition” do not appear in s 45 or s 4F. We agree that there must be a relevant market, that the relevant provision must have been included for the purpose of substantially lessening competition in that market, and that such purpose must be a substantial purpose for such inclusion. We do not agree that the Court must inquire into whether the object sought to be achieved was “realistically capable of substantially lessening competition in the relevant market” if those words mean more than that the purpose must be anti-competitive in an identified market. Such an inquiry would be, in effect, an inquiry into whether the provision had the likely effect of substantially lessening competition in that market. That approach would obviate or blur the distinction between purpose and likely effect or effect. [page 423]

[898] The purpose must be ascertained by identification of the end sought to be achieved. That end must be, for the purpose of s 45(2), a substantial lessening of competition in the relevant market. In considering purpose the Court is not concerned with how the end is to be achieved, save to the extent that it is identified in the impugnment provision, or whether it can be achieved. [899] The vice which is addressed in s 45 by proscribing purpose is that of seeking to achieve an anti-competitive end. Section 45 also proscribes provisions which achieve, or are likely to achieve, an end. By proscribing anti-competitive purposes as well as effects or likely effects, Parliament has cast its net widely so as to include provisions which simply have an anti-competitive purpose, whether or not they are achievable in the relevant market. [900] We accept that likely effect of particular conduct may be a relevant consideration in assessing the purpose which attended it. If to a person’s knowledge a particular end could not be achieved, it is difficult to see that he or she could have the purpose of doing so. That is because such knowledge could not readily co-exist with such a subjective purpose. However the fact that a particular end may be impossible of achievement for reasons unknown to the relevant person does not exclude the possibility that he or she has the purpose of achieving that end.”

In Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 at [864]–[881], Dowsett and Lander JJ (Mansfield agreeing) said: [864] Section 4F requires inquiry as to whether the provision ‘was included’ for a (substantial) purpose. The inquiry therefore is as to whether a relevant including party has caused the provision to be inserted into the contract, arrangement or understanding for an anti-competitive purpose, and whether that purpose was a substantial purpose. The fact that the non-including parties did not have that purpose does not mean that the provision was not included for the impugned purpose. The absence of a shared impugned purpose on the part of the non-including parties is irrelevant. So also the fact that other including parties caused the provision to be inserted for purposes other than the impugned purpose does not mean that the provision was not inserted for that purpose. The other including parties’ purposes, which are not anti-competitive, will be relevant, however, to determine whether the impugned purpose was a substantial purpose for the introduction of the provision. As we have already noted Gummow J said in News Ltd v South Sydney District Rugby League Football Club Ltd 215 CLR 563 at [62] ‘the introduction of a ‘substantial purpose’ test avoids difficulties in discerning the relevant purpose of multiple parties to a contract, arrangement or understanding’. [865] The object of the TPA is to promote competition. It does so by proscribing the making of a contract containing a provision which has the purpose of lessening competition. If ss 45 and 4F required that all parties to the contract who included the provision shared one substantial purpose, many contracts, arrangements or understandings which include anti-competitive provisions would fall outside the provisions of the TPA. [866] The appellants contend, we think correctly, that their construction requires parties to be vigilant in their commercial dealings, to consider, and if necessary, enquire as to, other parties’ anticompetitive purposes. [867] The respondents submit that the trial Judge’s construction would not defeat the object of the TPA because, in the absence of a shared purpose, an anti-competitive provision would be likely substantially to lessen competition and so be caught by s 45. We cannot agree with that proposition. It conflates purpose and effect. The TPA treats those matters separately. Section 45 assumes three separate inquiries: whether the provision has the purpose of substantially lessening competition; whether the provision has the effect of substantially lessening competition; and whether the provision would have the likely effect of substantially lessening

[page 424] competition. To assume that a provision included for a proscribed purpose would, necessarily, have the likely effect of substantially lessening competition is to conflate two of the three enquiries. [868] The respondents also contend that if it were not necessary that the anti-competitive purposes be shared, parties might, unknowingly, contravene the section. On his Honour’s approach that would also be the case for non-including parties. If the particular purpose is to be addressed by reference to the including party or parties’ purpose, and not otherwise, it would follow that the objectives and purposes of other non-including parties to the contract, arrangement or understanding would be irrelevant in determining whether the provision has the proscribed purpose. It is not suggested that in order to engage s 45, non-including parties must share the impugned purpose. [869] The construction which we favour means that including parties who do not have the proscribed purpose are treated in the same way as non-including parties. The protection for these parties is primarily in the requirement that the proscribed purpose must be a substantial purpose. [870] As we have noted at [462] to [464] the trial Judge identified three policy considerations which he said supported the construction which he preferred: first in the absence of any shared purpose a party to a contract may be exposed to claims for damages and other relief, and to civil penalties, irrespective of the party’s knowledge or ability to ascertain a substantial anti-competitive purpose of the other parties: J [2404]; secondly the need that would otherwise exist for a potentially complex evaluation of purposes: J [2407]–[2408]; and thirdly because s 45 is a penal provision it should be construed in such a way as to enable a business person to know with some certainty, before that person acts, whether or not the act contemplated is lawful: J [2409]–[2410]. [871] For reasons which we have already given, we do not accept that the first consideration is valid. Section 45 prohibits any party from making a contract or arrangement or arriving at an understanding containing a provision which has the purpose of substantially lessening competition. It does not discriminate in its reach between those who have sought the inclusion of the impugned provision and those who have merely acquiesced in its inclusion. It does not seek to discriminate between those who are ‘guilty’ and those who are ‘not guilty’. [872] The enquiry which is undertaken under s 45 in relation to the subjective purposes of the parties is not undertaken to determine any question of liability but to determine whether the substantial purpose for the inclusion of the provision is the impugned purpose. Once it is established that the provision has the proscribed purpose any party who makes the contract or arrangement or arrives at the understanding contravenes s 45. [873] In any given case, as we have mentioned above, a non-including party will contravene s 45 merely by entering into the contract if a provision of the contract has an impugned purpose. It is not possible to protect ‘innocent’ parties from a contravention of s 45 by requiring them to share a purpose or to have knowledge of another party’s impugned purpose. [874] As to the second consideration, we do not accept that the trial Judge’s construction would avoid the need for potentially complex evaluations of purposes. In News Ltd v South Sydney District Rugby League Football Club Ltd 215 CLR 563 Gummow J said that the TPA requires examination of the purposes of individuals and that there may be multiple purposes. The structure of the TPA requires an evaluation of those purposes in order to determine whether any purpose of the including party or parties was a substantial purpose. The construction arrived at by the trial Judge will not avoid that consequence. [875] As to business certainty, the trial Judge considered that a business person should be able to determine with some certainty whether a contract, arrangement or understanding which he or she is contemplating is lawful. We do not think that either our, or the trial Judge’s construction gives more

certainty than the other. His Honour’s approach may result in fewer [page 425] provisions being found to have a proscribed purpose because the purpose is not shared by all including parties. That outcome would substantially limit the application of the TPA, so reducing its deterrent effect. It does not follow that any business person would necessarily enjoy more certainty. Certainty could only be achieved by sure knowledge as to which other parties were including parties and as to their purposes. Even an including party who has a proscribed purpose may not be aware of the purposes of other including parties. [876] In reality, the purpose for including a provision will generally be obvious from its terms, seen in the context of the contract as a whole, the parties to it, the industrial and/or commercial context in which it is to operate and the objective circumstances surrounding such inclusion. In most cases, those factors will provide a satisfactory basis for inferring purpose. In many, perhaps most, cases, it will be difficult for a decision-maker to resist the inference that all of the parties to a contract, arrangement or understanding were aware of the purpose of a particular provision and had the purpose of producing the intended result. Any differences in attitude to such a provision are more likely to be as to motive than as to purpose. [877] We do not reject the possibility that in some cases an apparently innocuous provision may be inserted at the request of one party who intends that it operate in an anti-competitive way, and that this purpose is not shared by, or apparent to the other parties or some of them. The consequences for such innocent parties may be unfortunate, but it is difficult to identify the extent of such misfortune. Whether they would be exposed to civil penalties or damages awards will depend upon the generic provisions of the TPA concerning those matters, particularly ss 76 and 87. [878] Those provisions are designed to operate in a wide range of circumstances. It is not surprising that they may, in some cases, be potentially capable of producing unjust results. However a civil penalty is not part of the system of criminal justice. No conviction is recorded. The regulator merely seeks a penalty. The Court decides whether to impose a penalty and the amount. One would expect the regulator to exercise its discretion against seeking a pecuniary penalty order against a party who cannot be shown to have had the proscribed purpose or to have been aware that others had that purpose. One would expect the Court to be reluctant to impose substantial, or perhaps any, penalty in such a case. If these expectations are not realised, then one might expect legislative amendment. [879] The effect of s 45(1) is to render unenforceable a provision which engages s 45(2). A proscribed purpose, by itself, it not likely to cause damage. A claim for damages is more likely to be based upon effect or likely effect. Generally, it would be the implementation of a provision which would cause damage. The effect or likely effect of such implementation may well become obvious to innocent parties prior to its occurrence. They would then have an opportunity to avoid exposure to a damages claim by declining to act pursuant to the provision, relying upon s 45(1). [880] Finally, as we have previously observed, the requirement that the purpose be substantial will limit the circumstances in which s 45 will be engaged. It may be relatively rare for a substantial anticompetitive purpose to be not shared by all parties. [881] We do not consider that any of the identified policy considerations favour the shared purpose construction. We also consider that the construction which we favour has some support in the authorities. However we accept, as did the trial Judge, that the question of shared purpose in a multiparty contract has not been directly addressed.

It is not necessary to show that each of the parties contributing to the

adoption of a course shared the proscribed purpose. It is enough that the relevant decision makers shared the purpose: Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2013) 210 ALR 165; [2013] FCA 909; BC201314709 at [1011] per Greenwood J. [page 426] [10,700.45] “likely to” — use of present and future tense The expression “likely to” is “susceptible of various meanings” but arguably does not mean “a mere possibility whether real or not”: Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557; 62 FLR 437; (1982) ATPR ¶40318. In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 at 375; 42 FLR 331 at 339 Bowen CJ said: The word “likely” … may mean “probable” in the sense of “more probable than not” — “more than a fifty percent chance”. It may mean “material risk”: as seen by a reasonable man “such as might happen”. It may mean “some possibility” — more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.

Deane J said (ALR at 380; FLR at 346): The word “likely” can, in some contexts, mean “probably” in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a 50 per cent chance … It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than fifty percent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to “prone”, “with a propensity” or “liable”.

In Stokely-Van Camp Inc v New Generation Beverages Pty Ltd (1998) ATPR ¶41-657 at 41,297, Young J endorsed the views of Deane J in the Tillmanns Butcheries case, above that the word “likely” is not synonymous with “more likely than not”. Rather, it is to be determined by reference to what could be reasonably expected to be the consequence of the relevant conduct in the circumstances. In South Sydney District Rugby League Football Club Ltd v News Ltd (1999) 169 ALR 120 at 129; (1999) ATPR ¶41-728 at 43,448 Hely J, relying on News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; 139 ALR 193; (1996) ATPR ¶41-521, said that likely means a “real chance or possibility”. See also:

Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; (2002) ATPR ¶41-879; [2002] FCAFC 197; BC200203308 at [91] per Heerey J (Black CJ agreeing); • Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2005) ATPR ¶42-066; [2005] FCA 581; BC200504213 at [633] per Allsop J; • Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [2210], [2231] per Sackville J; • SPAR Licensing Pty Ltd v MIS QLD Pty Ltd (No 2) [2012] FCA 1116; BC201207987 per Griffiths J; • Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2013) 210 ALR 165; [2013] FCA 909; BC201314709 at [1015] per Greenwood J; • Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [178] per Besanko J. Section 45(2)(b)(ii) of the Act, in contrast to s 45(2)(a)(ii), uses the present tense to describe the proscribed conduct, namely, giving effect to a provision of a contract if the provision has or is likely to have the effect of substantially lessening competition. In Seven Network Ltd v News Ltd, above, at [2213] Sackville J said that this language does not imply that the prohibition applies whenever a provision to which a corporation gives effect “causes” a substantial lessening of competition in a market. Sackville J said at [2214]– [2217]: •

[2214] In my view, the use of the present tense in s 45(2)(b)(ii) of the TP Act is explained by the fact that the subparagraph applies where a corporation gives effect to a provision of an existing contract (or arrangement or understanding). In contrast to s 45(2)(a)(ii), s 45(2)(b)(ii) assumes that a contract is in force at the time the proscribed conduct (giving effect to a provision of the contract) takes place. Indeed, the paragraph expressly contemplates that the contract might even have been made before s 45(2) of the TP Act was itself enacted. [page 427] Consequently, the proscribed conduct may take place long after the contract itself was made. For example, in Dowling v Dalgety Australia Ltd (1992) 34 FCR 109, the contract (containing the rules of the Goondiwindi Livestock Auction Sales Association) was made in 1965, but the conduct complained of did not occur until 1985, two decades later.

[2215] The drafting of s 45(2)(b)(ii) proceeds on the basis that giving effect to a provision of a contract constitutes a contravention of the subparagraph in two situations (leaving aside the case where the provision has the proscribed purpose): • first, where the provision, in the light of events which have occurred at the time the proscribed conduct takes place, already has had or is having the effect of substantially lessening competition; and • secondly, when the provision, in the light of those same events, is likely in the future to have the effect of substantially lessening competition. [2216] The divergence in language between s 45(2)(a)(ii) and (b)(ii) does not indicate, in my opinion, an intention to introduce what can be described as a retrospective causation test of the kind suggested by Mr Sumption. Use of the word “has” in s 45(2)(b)(ii) acknowledges that, once a contract is in force, it may be possible to determine, by reference to a particular time, that a provision of the contract already has the effect of substantially lessening competition. (The use of the word “has” instead of “has had” reflects the fact that a provision may have a continuing effect on competition.) The expression “is likely to have” indicates an intention to prohibit a corporation from giving effect to a provision in a contract where the provision, at the time the corporation engages in the conduct, is likely to have the effect of substantially lessening competition. [2217] This construction of s 45(2)(b)(ii) of the TP Act explains the apparent shift in language within s 45(2). It is also consistent with the authorities, such as Tillmanns Butcheries v AMIEU, that interpret the references in s 45(2) to the likely effect of a provision on competition as broadening the scope of the statutory prohibitions. If Seven’s construction is correct, an applicant would generally not be concerned about the likely effect of a provision to which the respondent has given effect. It would be much more straight-forward in the typical case to attempt to demonstrate that the provision ultimately “caused” a substantial lessening of competition and that the lessening of competition was not the consequence of a supervening independent event.

[10,700.50] “substantial” The expression has been said to be “imprecise”, “susceptible to ambiguity” and “calculated to conceal a lack of precision”: • Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557; 62 FLR 437; (1982) ATPR ¶40-318 and • Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367; 42 FLR 331 (Tillmans Butcheries). • See also Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-804; [2001] FCA 116; BC200100573 at [113] per Mansfield J; • (appeal) Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236; 193 ALR 399; [2002] FCAFC 213; BC200203866 per Whitlam, Sackville and Gyles JJ. On appeal to the High Court in Rural Press Ltd v Australian Competition and Consumer Commission (2003) 203 ALR 217; 78 ALJR 274; [2003] HCA 75; BC200307578 at [41] Gummow, Heydon and Hayne JJ said that the word

“substantial” should be considered in the sense of being meaningful or relevant to the competitive process; Australian Competition and Consumer Commission v Liquorland (Aust) Pty Ltd (2006) ATPR ¶42-123; [2006] FCA 826; BC200604966 at [86], [829] per Allsop J; Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [2236] per Sackville J. [page 428] In Tillmanns Butcheries, above, the court said (ALR at 382): [The word] “substantial” … can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It could also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size.

This was confirmed by Wilcox J in Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991)30 FCR 385; 103 ALR 41; (1991) ATPR ¶41-128. It was also accepted that the assessment of substantial effects on competition involves a qualitative rather than a quantitative assessment. In Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR ¶41-752 at 40,732; [2000] FCA 38; BC200000054 French J said that the expression requires that there be a purpose, effect or likely effect on competition which is substantial in the sense of meaningful or relevant to the competitive process. French J also said that a substantial lessening of competition describes a purpose or outcome of conduct which is deserving of the intervention of the court in the protection of the competitive process according to law: Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR ¶41-783; [2000] FCA 1381; BC200005818 (appeal). [10,700.55] “lessening” The expression “lessening” is defined in relation to competition in s 4G of the Act as including a reference to preventing or hindering competition. In Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173; 64 FLR 238; (1982) ATPR ¶40-315 at 43,887, the court considered the meaning of the word “lessening”. It made the observations that, in evaluating a lessening of competition, it is necessary to: • assess the nature and extent of the relevant market; • assess the probable nature and extent of competition which

would exist in the relevant market but for the conduct in question; • assess the nature of the market operation and the nature and extent of the contemplated lessening. It is therefore necessary to ascertain whether there has been a substantial lessening of competition, it is necessary to look at the relevant market involved and consider the extent to which there would have been competition if the alleged conduct had not occurred. Then it is necessary to assess what competition is or would be left in the relevant market. In the Dandy Power Equipment case, above, the court stated (ALR at 192; ATPR at 43,888): [C]ompetition in a market is substantially lessened if the extent of competition in the market which has been lost is seen by those competent to judge to be a substantial lessening of competition. Has competitive trading in the market been substantially interfered with? It is then that the public as such will suffer.

In addition, it is the degree to which competition has been lessened which is critical, not the proportion of that lessening to the whole of the competition which exists in the total market. Thus a substantial lessening of competition in an actively competitive section of a market may constitute a substantial lessening of competition in the market as a whole. The test in the Dandy Power Equipment case (considering the future state of competition in the market with and without the impugned conduct) has been indorsed: • Outboard Marine Australia Pty Ltd v Hecar Investments (No 6) Pty Ltd (1982) 66 FCR 120; 44 ALR 667 at 669-70; (1982) ATPR ¶40-327 at 43,983; • Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR ¶41-752 at 40,731–2; [2000] FCA 38; BC200000054; • (appeal) Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR ¶41-783; [2000] FCA 1381; BC200005818; • Australian Competition and Consumer Commission v Australian Medical Assn Western Australia Branch Inc (2003) 199 ALR 423; [2003] FCA 686; BC200303666 at [327] per Carr J; • Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [2238] per Sackville J.

[page 429] The fact that an individual cannot compete on the same terms as another does not of itself substantially lessen competition in the relevant market: Maitland Holdings Pty Ltd v NTZ Pty Ltd [2004] FCA 710; BC200403227 at [166] per Kenny J. Conduct only has the effect of lessening competition if it involves a reduction in the level of competition which would otherwise have existed in the market but for the conduct in question. It is not sufficient that there might be other, less restrictive alternatives by which a commercial objective might be achieved: Australian Competition and Consumer Commission v Australian Medical Assn Western Australia Branch Inc, above, at [328] per Carr J. Any loss of competition will not necessarily equate to a substantial lessening of competition. Even if there is little or no competition in a market, any loss of competition must be evaluated by the process of comparing that loss to the level of competition which would otherwise have existed in the market but for the conduct: Australian Competition and Consumer Commission v Australian Medical Assn Western Australia Branch Inc, above, at [341] per Carr J. [10,700.60] “competition”

See [10,025.25].

[10,700.63] “market” The expression ‘market’ is defined in s 4E. There is no requirement to establish a market in Australia in relation to a contravention of the provision: Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [383] per Besanko J. See also [10,070.50]. [10,700.65] Natural monopoly and competition A natural monopoly describes a method of production in which it is cheaper for one producer to produce the total industry output than would be the case with any other means of production. In Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR ¶41-752 at 40,724; [2000] FCA 38; BC200000054 French J said that a natural monopoly is not necessarily definitive of competitive outcomes. His Honour also accepted the proposition that in a

contestable market, the presence of natural monopoly characteristics does not mean that a firm serving the market is earning monopoly rents — that is, profits earned from prices in excess of the competitive price: (appeal) Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR ¶41-783; [2000] FCA 1381; BC200005818. [10,700.66] Determination by a judicial, administrative or legislative body Section 45(2) is not intended to prohibit the making of an arrangement or understanding requiring the parties to attempt to persuade a judicial, administrative or legislative body to make a lawful determination which in turn might result in a substantial lessening of competition: Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1438; BC200507880 at [48] per Sackville J. [10,700.67] Freedom of expression Section 45(2) does not curtail the freedom of a person to express an opinion to a government agency or decision-maker: Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1438; BC200507880 at [81] per Sackville J. [10,700.68] Relationship to resale price maintenance Section 45(5)(c) provides that s 45 does not apply to a provision of a contract, arrangement or understanding in so far as the provision relates to conduct that contravenes s 48 (resale price maintenance) or would contravene s 48 but for s 88(8A). Section 45(5)(c) does not exclude from s 45 an understanding which includes a provision relating to conduct contravening s 48. It merely provides that the Act does not apply to or in relation to the provision relating to such conduct. Section 45(5)(c) does not apply to exclude the understanding from s 45 but only a particular provision of the understanding: • Trade Practices Commission v David Jones (Aust) Pty Ltd (1986) 13 FCR 446 at 473-4; 64 ALR 67; (1986) ATPR ¶40-671 at 47,417; [page 430] •

Australian Competition and Consumer Commission v SIP

•

Australia Pty Ltd (2000) ATPR ¶41-761 at 40,967; [2000] FCA 541; BC200002026; Australian Competition and Consumer Commission v SIP Australia Pty Ltd (2002) ATPR ¶41-877; [2002] FCA 824; BC200203522 at [100]–[101] per Goldberg J.

[10,700.70] Relationship to exclusive dealing Section 45(6) provides that the making of an arrangement will not contravene s 45 if the arrangement would, but for ss 47(1), 88(8) or 93 constitute a contravention of s 47 (exclusive dealing). The section is intended to prevent overlap between ss 45 and 47 and in particular to subject exclusive dealing to assessment under s 47 rather than s 45: South Sydney District Rugby League Football Club Ltd v News Ltd (1999) 169 ALR 120 at 135; (1999) ATPR ¶41-728 at 43,452; Australian Competition and Consumer Commission v SIP Australia Pty Ltd (2002) ATPR ¶41-877; [2002] FCA 824; BC200203522 at [92] per Goldberg J. Section 45(6) is to be construed by beginning with the prohibition of s 45(2) and treating s 45(6) as a qualification to that prohibition. The question is whether the criterion for engaging the qualification is met, not the extent to which the parties’ agreement can have an operation of the kind which meets that criterion: Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 201 ALR 414; [2003] HCA 59; BC200305828 at [30]. That requires an identification of whether the making of the contract, arrangement or understanding in question would contravene s 45 because it contained a provision of the specified kind. If it would contravene s 45 for either of two reasons: first, because it contained a provision of the specified kind or; second, because it contained a provision which would otherwise contravene s 45 — s 45(6) is not satisfied: Visy Paper Pty Ltd v Australian Competition and Consumer Commission, above, at [31] per Gleeson CJ, McHugh, Gummow and Hayne JJ. In Visy Paper Pty Ltd v Australian Competition and Consumer Commission, above, at [63]–[64] Kirby J said that s 45(6) is not intended to remove from the per se prohibition in s 45(2)(a)(i) exclusionary restraints which are an aspect of the horizontal relationship between competitors and which are designed to restrict supply or eliminate price competition. The making of an arrangement does not constitute a violation of s 45 by reason of a restrictive provision being characterised as an element of a vertical

exclusive dealing arrangement between the parties. However, the provision will be prohibited by s 45(2)(a)(i), regardless of the actual effect of the provision on competition in the market, if it restricts the supply of goods or services to the customers or potential customers of the parties, as such a restriction would be an aspect of the parties’ horizontal relationship as competitors and thereby restrain competition between them. The word “provision” should not be construed to mean a “clause”. It is not used in a technical sense and may in a particular case mean “clause” or in another case “term”. The question whether a contract contains a provision prohibiting a particular conduct involves looking to see whether there is any prohibition of the particular kind in the contract, whether the prohibition is to be found in a clause of the contract or in some part of a clause of the contract: Australian Competition and Consumer Commission v Visy Paper Pty Ltd (2001) 112 FCR 37; (2001) ATPR ¶41-835; [2001] FCA 1075; BC200104610 at [67] per Hill and North JJ. On appeal, the majority of the High Court said that “provision” directs attention to the context of the agreement, arrangement or understanding rather than the manner of its expression: Visy Paper Pty Ltd v Australian Competition and Consumer Commission, above, at [32] per Gleeson CJ, McHugh, Gummow and Hayne JJ. The relevant inquiry is about what may be done under the contract, arrangement or understanding, rather than how it is drafted. The inquiry focuses upon the content of the stipulations which the parties have made or agreed. The one verbal composite may contain stipulations each of which is a “provision”: Visy Paper Pty Ltd v Australian Competition and Consumer Commission, above, at [33] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Section 45(6) excludes from the operation of s 45 the making of an agreement, not where it contains a provision in particular terms, but rather where the giving effect to the provision would, but for the competition test, constitute a contravention of s 47: Australian Competition and Consumer Commission v SIP Australia Pty Ltd, above, at [95] per Goldberg J. [page 431] To “give effect to” is defined in s 4(1) to include to “do any act or thing in

pursuance of or in accordance with or enforce or purport to enforce”. In order to determine whether “giving effect to” an exclusionary provision would contravene s 47, it is necessary to take into account the terms of the contract, arrangement or understanding of which the provision forms part: Australian Competition and Consumer Commission v Visy Paper Pty Ltd (2000) 186 ALR 731; (2001) ATPR ¶41-799; [2000] FCA 1640; BC200006997 per Sackville J; (appeal) Visy Paper Pty Ltd v Australian Competition and Consumer Commission, above, at [32] per Gleeson CJ, McHugh, Gummow and Hayne JJ. [10,700.73] Relationship to the acquisition of shares Section 45(8) provides that s 45 does not apply to an arrangement in so far as it provides for the acquisition of shares in a body corporate or any assets of a person. Arguably the onus lies upon the respondents to show that the operation of s 45(6) and (7) is enlivened: Trade Practices Commission v Guests’ Garage Pty Ltd (1976) 26 FLR 433; (1976) ATPR ¶40-016; South Sydney District Rugby League Football Club Ltd v News Ltd (1999) 169 ALR 120 at 135; (1999) ATPR ¶41-728 at 43,452. [10,700.74] Relationship to a dual listed company arrangement Section 45(6A) was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. It provides that the making of a dual listed company arrangement will not contravene s 45 if the conduct would (but for an authorisation under s 88) contravene s 49. Section 49 prohibits a corporation from making or giving effect to a dual listed company arrangement if it has the purpose or effect of substantially lessening competition. [10,700.75] Collective bargaining Section 45(8A) was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. Section 45 will not apply to price-fixing or exclusionary provisions if a collective bargaining notice is in force under 93AD. See s [11,895.200]. [10,700.80] Joint venture activity In response to the recommendations of the Dawson Committee, the Trade Practices Amendment Act (No 1) 2006 introduced a defence to a contravention of s 45 if the person establishes that the provision is for the purpose of a joint venture and does not have the

purpose or effect of substantially lessening competition. See [11,594C.5]. A joint venture is defined in s 4J. [10,700.85] Authorisation 45. See s 88.

Authorisation is available for conduct under s

[10,700.95] Case law Relevant case law in relation to anti-competitive contracts, arrangements and understandings is as follows: • Re British Basic Slag Ltd Agreements [1963] 2 All ER 819; [1963] 1 WLR 727; • Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465; 24 FLR 286; (1975) ATPR ¶40-004; • Re Queensland Co-op Milling Assn Ltd (1976) 8 ALR 481; 25 FLR 169; (1976) ATPR ¶40-012; • Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367; 42 FLR 331; • Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609; 40 FLR 83; (1978) ATPR ¶40-126; • Adamson v West Perth Football Club (1979) 27 ALR 475; 39 FLR 199; • Trade Practices Commission v CSBP and Farmers Ltd (1980) 53 FLR 135; (1980) ATPR ¶40-151; • Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) 30 ALR 88; (1980) ATPR ¶40-157; [page 432] • • • • •

Ah Toy Pty Ltd v Theiss Toyota Pty Ltd (1980) 30 ALR 271; Trade Practices Commission v Email Ltd (1980) 31 ALR 53; 43 FLR 383; Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 37 ALR 256; 60 FLR 38; (1981) ATPR ¶40-241; Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557; 62 FLR 437; (1982) ATPR ¶40-318; Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719; (1983) ATPR ¶40-358;

• • • • • • • • • • • • • •

•

•

•

Trade Practices Commission v David Jones (Aust) Pty Ltd (1986) 13 FCR 446; 64 ALR 67; (1986) ATPR ¶40-671; McCarthy v Australian Rough Riders Assn Inc (1988) ATPR ¶40-836; Trade Practices Commission v JJ & YK Russell Pty Ltd (1991) ATPR ¶41-090; Trade Practices Commission v JJ & YK Russell Pty Ltd (1991) ATPR ¶41-132; Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; 99 ALR 735; (1991) ATPR ¶41-092; Berlaz Pty Ltd v Fine Leather Care Products Ltd (1991) ATPR ¶41-118; Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 385; 103 ALR 41; (1991) ATPR ¶41-128; Trade Practices Commission v Service Station Assn Ltd (1993) 44 FCR 206; 116 ALR 643; (1993) ATPR ¶41-260; Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159; (1993) ATPR ¶41-216; Trade Practices Commission v Prestige Motors Pty Ltd (1994) ATPR ¶41-359; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; 139 ALR 193; (1996) ATPR ¶41-521; Wickham v Canberra District Rugby League Football Club Ltd (1998) ATPR ¶41-664; Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) ATPR ¶41-719; Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR ¶41-752; [2000] FCA 38; BC200000054; (appeal) Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR ¶41-783; [2000] FCA 1381; BC200005818; Australian Competition and Consumer Commission v Tyco Australia Pty Ltd (2000) ATPR ¶41-760; [2000] FCA 401; BC200001505; Australian Competition and Consumer Commission v SIP Australia Pty Ltd (2000) ATPR ¶41-761; [2000] FCA 541; BC200002026; Australian Competition and Consumer Commission v Visy Paper

•

•

•

•

• •

Pty Ltd (2000) 186 ALR 731; (2001) ATPR ¶41-799; [2000] FCA 1640; BC200006997; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400; Australian Competition and Consumer Commission v Australian Medical Assn Western Australia Branch Inc (2003) 199 ALR 423; [2003] FCA 686; BC200303666 per Carr J; Rural Press Ltd v Australian Competition and Consumer Commission (2003) 203 ALR 217; 78 ALJR 274; [2003] HCA 75; BC200307578; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2004) ATPR (Digest) ¶46-260; [2004] FCA 1678; BC200408833 per Merkel J; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1438; BC200507880 per Sackville J; Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2013) 210 ALR 165; [2013] FCA 909; BC201314709 per Greenwood J. ____________________

[page 433]

[10,705] Contracts, arrangements or understandings in relation to prices 45A

[s 45A rep Act 59 of 2009 s 3 and Sch 1[21], opn 24 July 2009] SECTION 45A GENERALLY

[10,705.5] Overview This provision was repealed by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. Prior to the passage of the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009, s 45A provided that a contract, arrangement or understanding between competitors to fix or control price was deemed to substantially lessen competition under s 45. A breach attracted a pecuniary penalty under s 76. The Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 introduced criminal offences and civil offences under Div 1 of Pt IV for making or giving effect to a cartel provision. That Division now applies to price fixing. See [10,690ZZRA.5]. ____________________

[10,720]

Covenants affecting competition

45B (1) A covenant, whether the covenant was given before or after the commencement of this section, is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a corporation or on a person associated with a corporation if the covenant has, or is likely to have, the effect of substantially lessening competition in any market in which the corporation or any person associated with the corporation supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services. (2) A corporation or a person associated with a corporation shall not:

(a) require the giving of a covenant, or give a covenant, if the proposed covenant has the purpose, or would have or be likely to have the effect, of substantially lessening competition in any market in which: (i) the corporation, or any person associated with the corporation by virtue of paragraph (7)(b), supplies or acquires, is likely to supply or acquire, or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services; or (ii) any person associated with the corporation by virtue of the operation of paragraph (7)(a) supplies or acquires, is likely to supply or acquire, or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services, being a supply or acquisition in relation to which that person is, or would be, under an obligation to act in accordance with directions, instructions or wishes of the corporation; (b) threaten to engage in particular conduct if a person who, but for subsection (1), would be bound by a covenant does not comply with the terms of the covenant; or (c) engage in particular conduct by reason that a person who, but for subsection (1), would be bound by a covenant has failed to comply, or proposes or threatens to fail to comply, with the terms of the covenant. [page 434] (3) Where a person: (a) issues an invitation to another person to enter into a contract containing a covenant; (b) makes an offer to another person to enter into a contract containing a covenant; or (c) makes it known that the person will not enter into a contract of a particular kind unless the contract contains a covenant of a

particular kind or in particular terms; the first-mentioned person shall, by issuing that invitation, making that offer or making that fact known, be deemed to require the giving of the covenant. (4) For the purposes of this section, a covenant or proposed covenant shall be deemed to have, or to be likely to have, the effect of substantially lessening competition in a market if the covenant or proposed covenant, as the case may be, would have, or be likely to have, that effect when taken together with the effect or likely effect on competition in that market of any other covenant or proposed covenant to the benefit of which: (a) a corporation that, or person who, is or would be, or but for subsection (1) would be, entitled to the benefit of the firstmentioned covenant or proposed covenant; or (b) a person associated with the corporation referred to in paragraph (a) or a corporation associated with the person referred to in that paragraph; is or would be, or but for subsection (1) would be, entitled. (5) The requiring of the giving of, or the giving of, a covenant does not constitute a contravention of this section by reason that giving effect to the covenant would, or would but for the operation of subsection 88(8) or section 93, constitute a contravention of section 47 and this section does not apply to or in relation to engaging in conduct in relation to a covenant by way of: (a) conduct that contravenes, or would but for the operation of subsection 88(8) or section 93 contravene, section 47; or (b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when: (i) an authorization under subsection 88(8) is in force in relation to conduct engaged in by that person on that condition; or (ii) by reason of subsection 93(7) conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or (iii) a notice under subsection 93(1) is in force in relation to

conduct engaged in by that person on that condition. [subs (5) am Act 88 of 1995 s 11]

(6) This section does not apply to or in relation to a covenant or proposed covenant where the only persons who are or would be respectively bound by, or entitled to the benefit of, the covenant or proposed covenant are persons who are associated with each other or are bodies corporate that are related to each other. (7) For the purposes of this section, section 45C and subparagraph 87(3) (a)(ii), a person and a corporation shall be taken to be associated with each other in relation to a covenant or proposed covenant if, and only if: [page 435] (a) the person is under an obligation (otherwise than in pursuance of the covenant or proposed covenant), whether formal or informal, to act in accordance with directions, instructions or wishes of the corporation in relation to the covenant or proposed covenant; or (b) the person is a body corporate in relation to which the corporation is in the position mentioned in subparagraph 4A(1)(a)(ii). (8) The requiring by a person of the giving of, or the giving by a person of, a covenant in relation to which subsection 88(5) applies is not a contravention of subsection (2) of this section if: (a) the covenant is subject to a condition that the covenant will not come into force unless and until the person is granted an authorization to require the giving of, or to give, the covenant; and (b) the person applies for the grant of such an authorization within 14 days after the covenant is given; but nothing in this subsection affects the application of paragraph (2)(b) or (c) in relation to the covenant. (9) This section does not apply to or in relation to a covenant or proposed covenant if: (a) the sole or principal purpose for which the covenant was or is required to be given was or is to prevent the relevant land from being used otherwise than for residential purposes; or

(b) both of the following subparagraphs apply: (i) the person who required or requires the covenant to be given was or is, at that time, a registered charity; (ii) the covenant was or is required to be given for or in accordance with the purposes or objects of that registered charity; or (c) both of the following subparagraphs apply: (i) the covenant was or is required to be given in pursuance of a legally enforceable requirement made by a registered charity; (ii) that legally enforceable requirement was or is made for or in accordance with the purposes or objects of that registered charity. [subs (9) am Act 169 of 2012 s 3 and Sch 2 items 161, 162, opn 3 Dec 2012]

SECTION 45B GENERALLY [10,720.5] Overview This section reiterates the provisions of the competition test under s 45 in relation to covenants. Section 45B(1) provides that a covenant is unenforceable if it has or is likely to have the effect of substantially lessening competition in any market in which the corporation or any associated person supplies or acquires goods or services or would acquire or supply goods or services but for the covenant. Section 45B(2) prohibits a corporation or an associated person: • requiring or giving a covenant which has the purpose, effect or likely effect of substantially lessening competition in a relevant market; • threatening to engage in particular conduct if a person refuses to comply with the terms of such a covenant; or • engaging in particular conduct by reason that a person fails or refuses to comply with such a covenant. [page 436] Section 45B(3) deems that a person shall have “required” a covenant to be

given upon the issuing of an invitation or the making of an offer to enter into the covenant or making it known that a contract will not be entered into unless it includes the covenant. Section 45B(4) provides for the aggregation of all covenants which will benefit a party or associated person in determining whether there will be a substantial lessening of competition in a market. Section 45B(5) provides that covenants which would breach the exclusive dealing provisions are exempt from the application of this section. Section 45B(6) provides that the section does not apply in relation to covenants the parties to which are related to each other. Section 45B(7) defines the circumstances under which a corporation and a person will be taken to be associated with each other in relation to a covenant for the purposes of this section and ss 45C and 87(3)(a)(ii). These circumstances arise if and only if the person is under an obligation, whether formal or informal, to act in accordance with directions, instructions or wishes of the corporation or is a body corporate which is in a position to cast or control the casting of more than 50 per cent of the voting shares in the corporation. Section 45B(8) provides that the requiring of a covenant which would otherwise breach s 45B(2) will be exempt if it is subject to authorisation and an application for authorisation is lodged within 14 days of giving the covenant. Section 45B(9) exempts covenants from the application of the section if: • the sole or principal purpose for which the covenant is required is to prevent the relevant land from being used other than for residential purposes; • it was required by a religious, charitable or public benevolent institution or a trustee of such an institution; or • it is required in pursuance of a legally enforceable requirement made by a religious, charitable or public benevolent institution or a trustee of such an institution. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended the repeal of ss 45B and 45C. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper

Committee. The Exposure draft is available https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amendments. See also [10,690.5].

at

[10,720.10] “covenant” A “covenant” is defined in s 4(1) to mean a covenant annexed to or running with an estate or interest in land (whether at law or in equity) and whether or not for the benefit of other land. [10,720.15] “unenforceable” Section 4L of the Act provides that where a provision of a contract is found to be unenforceable, it shall be severed from the contract which shall otherwise remain on foot. [10,720.20] “substantial lessening of competition” [10,700.50]-[10,700.70].

See s 45 and

[10,720.25] “market” The expression “market” is defined in s 4E. In s 45B(1) and (2) the expression extends to any market in which a corporation which is requiring or giving a covenant (or a person associated with that corporation) supplies or acquires, is likely to supply or acquire or but for the covenant would supply or acquire goods or services: Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91; 143 ALR 328; (1997) ATPR ¶41-567. [10,720.30] “goods” and “services” [10,025.85].

See s 4(1), [10,025.60] and

[page 437] [10,720.35] Authorisation 45B. See s 88.

Authorisation is available for conduct under s

[10,720.45] Case law • ADC Centres Pty Ltd v Kilstream Pty Ltd (1979) 25 ALR 549; (1979) ATPR ¶40-119. ____________________

[10,725]

Covenants in relation to prices

45C (1) In the application of subsection 45B(1) in relation to a covenant that has, or is likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired by the persons who are, or but for that subsection would be, bound by or entitled to the benefit of the covenant, or by any of them, or by any persons associated with any of them, in competition with each other, that subsection has effect as if the words “if the covenant has, or is likely to have, the effect of substantially lessening competition in any market in which the corporation or any person associated with the corporation supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services” were omitted. (2) In the application of subsection 45B(2) in relation to a proposed covenant that has the purpose, or would have or be likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired by the persons who would, or would but for subsection 45B(1), be bound by or entitled to the benefit of the proposed covenant, or by any of them, or by any persons associated with any of them, in competition with each other, paragraph 45B(2)(a) has effect as if all the words after the words “require the giving of a covenant, or give a covenant” were omitted. (3) For the purposes of this Act, a covenant shall not be taken not to have, or not to be likely to have, the effect, or a proposed covenant shall not be taken not to have the purpose, or not to have, or not to be likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services by reason only of: (a) the form of the covenant or proposed covenant; or (b) any description given to the covenant by any of the persons who are, or but for subsection 45B(1) would be, bound by or entitled to the benefit of the covenant or any description given to the proposed covenant by any of the persons who would, or would but for subsection 45B(1), be bound by or entitled to the benefit of the

proposed covenant. (4) For the purposes of the preceding provisions of this section, but without limiting the generality of those provisions: (a) a covenant shall be deemed to have, or to be likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied as mentioned in subsection (1) if the covenant has, or is likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a resupply of the goods or services by persons to whom the goods or services are supplied by the [page 438] persons who are, or but for subsection 45B(1) would be, bound by or entitled to the benefit of the covenant, or by any of them, or by any persons associated with any of them; and (b) a proposed covenant shall be deemed to have the purpose, or to have, or to be likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied as mentioned in subsection (2) if the proposed covenant has the purpose, or would have or be likely to have the effect, as the case may be, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re-supply of the goods or services by persons to whom the goods or services are supplied by the persons who would, or would but for subsection 45B(1), be bound by or entitled to the benefit of the proposed covenant, or by any of them, or by any persons associated with any of them. [subs (4) am Act 88 of 1995 s 12]

(5) The reference in subsection (1) to the supply or acquisition of goods or services by persons in competition with each other includes a reference to the supply or acquisition of goods or services by persons who, but for a provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with each other in relation to the supply or acquisition of the goods or services. SECTION 45C GENERALLY [10,725.5] Overview This section reiterates the prohibition on pricefixing where the mechanism for accomplishing this purpose or effect is a covenant. Section 45C(1) and (2) prohibit covenants which have the purpose, effect or likely effect of fixing, controlling or maintaining the price of or the discount, allowance, rebate or credit in relation to the supply or acquisition of goods or services. Section 45C(3) provides that the form or description applied to a covenant will not be a determinant in deciding whether this provision is breached. Section 45C(4) extends the operation of the prohibition to covenants regarding the resupply of goods by persons to whom the goods are supplied by the persons bound or entitled to the benefit of the relevant covenant. Section 45C(5) provides that the reference in subs (1) to “persons in competition with each other” includes a reference to persons who would be in competition with each other in the supply or acquisition of goods or services but for any contract, arrangement or understanding. It is odd that this provision was not also extended to subs (2). Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended the repeal of ss 45B and 45C. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amendments. See also [10,690.5].

[10,725.10] “covenant”

The expression is defined in s 4(1).

[10,725.15] “fixing, controlling or maintaining”

See [10,070.15]. [page 439]

[10,725.20] “price, discount, allowance, rebate or credit” [10,025.70] and [10,705.20].

See s 4(1),

[10,725.25] “goods” and “services” See s 4(1), [10,025.60] and [10,025.85]. ____________________

[10,740] Secondary boycotts for the purpose of causing substantial loss or damage 45D (1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct: (a) that hinders or prevents: (i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or (ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person. Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7). Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts. (2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.

(3) Subsection (1) applies if the fourth person is a corporation. (4) Subsection (1) also applies if: (a) the third person is a corporation and the fourth person is not a corporation; and (b) the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of the third person. [s 45D subst Act 60 of 1996 s 3 and Sch 17]

SECTION 45D GENERALLY [10,740.5] Overview The section prohibits secondary boycotts. A secondary boycott occurs where there is collusion between two or more parties for the purpose of preventing third parties (targets), such as potential customers and suppliers, from dealing with or otherwise doing business with a selected person (indirect target). Very often secondary boycotts occur in the industrial relations area. In recognition of this, in 1994 a number of amendments were made to the section by the Industrial Relations Reform Act 1993. Section 45D was confined to the situation where the proscribed conduct substantially lessened competition in the relevant market. References to the effect that the proscribed conduct had on the business of the target or indirect target were deleted. As part of the 1994 amendments, the Industrial Relations Act 1988 dealt with a separate area of “boycott conduct”. A person engaged in boycott conduct if that person and a second person in concert engaged in conduct, the ultimate purpose of which was to protect or advance the interests of a person or trade union in relation to industrial matters. The current provision was inserted by the Workplace Relations and Other Legislation Amendment Act 1996. In general terms, the amendment intends to reinstate ss 45D and 45E to their pre-1994 form. [page 440] Reform In its final report, Competition Policy Review, released in March 2015, the Harper Committee recommended that ss 45D-45DE be maintained

and effectively enforced by the Commission, who should pursue these cases with increased vigour. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. It provides for increased penalties for secondary boycotts, consistent with the other competition provisions in the Act. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competitionpolicy-division/ed_competition_law_amendments. See also [10,690.5]. [10,740.20] “purpose” and “effect” Section 45D(1) requires that there be both a proscribed purpose and effect present for there to be a breach of this provision. In Jewel Food Stores Pty Ltd v Amalgamated Milk Vendors Assn Inc (1990) ATPR ¶40-997 at 50,992, the court said: Conduct falling within the opening words of s 45D will rarely be adopted out of disinterested malice. Ordinarily, the purpose of inflicting damage upon the business of a person is to cause that person to modify its behaviour in some way for the advantage of the person occasioning the damage or its members. In other words, the damage is a means to an end. Consequently, although a primary purpose of the milk vendors was to protect their own businesses, another purpose which they had was to damage or injure the appellant’s business. That was the means by which they intended to achieve their primary purpose . . . that is enough.

See also Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; 99 ALR 735; (1991) ATPR ¶41-092 at 52,470; Mechanical Engineering Corporation Pty Ltd v Scholtes [2007] FCA 520; BC200702611 at [26] per Jessup J. In Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 470; BC201102981 at [410]–[413] Moore J said: [410] The “purpose”, referred to in s 45D(1) is the operative subjective purpose of those engaging in the relevant conduct in concert by the Full Court of the Federal Court in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367; 42 FLR 331. In Tillmanns a “black ban” was placed on the slaughtering of cattle and delivery of meat to the appellant. The question whether the conduct had been engaged in for the “purpose” required by s 45D(1) was answered by reference to the real reasons for the conduct and “what was in truth the object in the minds of the relevant persons when they engaged in the conduct in concert” (at 383). The purpose of the union in Tillmanns was determined by reference to the purpose of those through whom it acted. It was held (at 384) that the black ban had been plainly imposed as a means of bringing pressure to bear on the appellant to accede to the union demands in relation to union membership of the appellant’s employees. [411] The required “purpose” was not established in Keith Russell Simplicity Funerals Pty Ltd v Cremation Society of Australia (ACT) Ltd (1982) 57 FLR 472 where there was no evidence of the

relevant subjective purpose nor that the result of the ban was that the fourth and fifth respondents refused to supply chapel facilities or cremation facilities to the applicant. They wished to continue to supply the services but it became commercially impossible because of the ban. This case was distinguished in Gibbins v Australasian Meat Industry Employees’ Union (1986) 12 FCR 450 where the union imposed a ban preventing the delivery of live meat to the employer of union members by certain carriers and obstructed access to the ships by trucks carrying live sheep. In Gibbins v Australasian Meat Industry Employees’ Union substantial evidence of the relevant “purpose” existed. [page 441] [412] Section 45DD covers situations in which boycotts will not attract ss 45D or 45DB. These include situations where the dominant purpose of the conduct relates to either remuneration, conditions of employment, working hours or working conditions of employees engaged in the conduct, or the dominant purpose relates to environmental protection or consumer protection and the conduct is not industrial action. [413] In Rural Export & Trading (WA) Pty Ltd v Hahnheuser (2008) 169 FCR 583; [2008] FCAFC 156, a case concerning whether environmental protection was the dominant purpose of the respondent’s conduct, it was noted at [42] that the respondent bore the burden of proving that he or she fell within the exemption in s 45DD. The Court noted at [34] that while s 45DD(3) should be given a wide construction and while the parliament was “conscious of ensuring that the fundamental democratic right of expression of opinions on government and political matters relating to environmental and consumer protection should not be unduly proscribed or constrained”, there were bounds. For the respondent to successfully raise this defence, there must be an objective element in the dominant purpose “substantially related” to the environment.”

[10,740.23] “likely”

See [10,700.45].

[10,740.25] “person” The Acts Interpretation Act 1901 provides that the expression “person” will include a body politic or corporate as well as an individual. This means that this section can apply to companies, individuals and unions. See also Industrial Enterprises Ltd v Federated Storemen & Packers Union of Australia (1979) ATPR ¶40-100. [10,740.30] “acting in concert” Acting in concert involves knowing conduct, the result of communications between the parties and not simply simultaneous actions occurring spontaneously: • Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 at 373; 42 FLR 331; • J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (1992) 111 ALR 502; (1993) ATPR (Digest) ¶46-099; • Australian Builders Labourers Federated Union of Workers (WA

Branch) v J-Corp Pty Ltd (1993) 42 FCR 452; 114 ALR 551; (1993) ATPR ¶41-245; • Australian Wool Innovation Ltd v Newkirk (2005) ATPR ¶42-053; [2005] FCA 290; BC200501342 at [27] per Hely J; • Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 470; BC201102981 Moore J. In Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 470; BC201102981 at [407]–[409] Moore J said: [407] The meaning of “in concert” is not defined in the Trade Practices Act. In Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120; [1978] HCA 46 at 136 Gibb J said that the words “engaging in conduct” and “conduct” have an extended meaning, “a person who refuses to do, or refrains (otherwise than inadvertently) from doing, an act engages in conduct within the section”. This meant that: the refusal of any one of the third plaintiffs, in concert with another, to man a tug or lineboat for the purpose, and with the likely effect, of causing substantial loss or damage to one of the companies would amount to a contravention of s 45D, and that in those circumstances the union would also be deemed to contravene the section unless it established that it took all reasonable steps to prevent the third plaintiffs from engaging in the conduct. [page 442] [408] The meaning of the term “in concert” was discussed by French J in J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (1992) 44 IR 264. At 273, his Honour, in considering whether authorisation by an association of unions could constitute conduct in concert with a union member of the association imposing the ban, stated: The notion of conduct “in concert” imports elements of combination, co-operation or union (see Oxford English Dictionary). While it may be readily suggestive of arrangements of a horizontal character, there is no reason dictated by policy or statutory construction that requires it to be so limited. Conduct involving direction and response may, according to the circumstances of the case, be conduct in concert on part of the person directing and the person acting upon that direction. French J referred to the findings of Gray J in Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318; [1991] FCA 524 at 329 where his Honour discussed the difficulties arising when the conduct is engaged in at separate locations and at different times which become “acute when the acts of one person are confined to advising, requesting, encouraging or inciting the other, who responds by performing the desired act”. The problem being at what point the actions of a person who has contributed to an event are to be viewed as acting “in concert”. [409] The community of purpose that the notion acting “in concert” suggests requires a “consensual element”. As Isaacs J said in R v Associated Northern Collieries (1912) 14 CLR 387; [1911] HCA 73 at 400: Community of purpose may be proved by independent facts, but it need not be. If the other defendant is shown to be committing other acts, tending to the same end, then though primarily

each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge. The mere advocacy of a strike by union officials was held not to be sufficient reason to find that the union was acting in concert with the union members who participated in the strike action: Australasian Meat Industry Employees’ Union v Meat & Allied Trades Federation of Australia.

[10,740.35] “engage in conduct” [10,025.140].

See s 4(2) and [10,025.130]-

[10,740.40] “hinders or prevents” This expression raises the issue of causation to the extent that the conduct must hinder or prevent (s 45D(1)) or have the purpose, effect or likely effect of “preventing or substantially hindering” the supply or acquisition of goods or services by the specified person. In Tenants (Lancashire) Ltd v CS Wilson & Co Ltd [1917] AC 495 at 518, the court said: “Preventing” delivery means, in my view, rendering delivery impossible and “hindering” delivery means something less than this, namely, rendering delivery more or less difficult, but not impossible.

Conduct hindering or preventing the supply of goods can be engaged in by threat, verbal intimidation and physical interference: J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (1992) 111 ALR 502; (1993) ATPR (Digest) ¶46-099; Australian Builders Labourers Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 42 FCR 452; 114 ALR 551; (1993) ATPR ¶41-245; Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688 at [127] per Young J. [page 443] The establishment and maintenance of a picket line involves an implied direction that it not be crossed and an implied threat of unspecified sanctions if it were crossed. Also Farah (Aust) Pty Ltd v National Union of Workers (NSW Branch) (No 1) (1997) ATPR ¶41-583.

In Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32; (1991) ATPR ¶41-098 at 52,564, Brennan J said: The most obvious example of conduct falling within this part of the subsection [s 45D(1)] is conduct which is calculated to deter customers of a target corporation’s business from taking steps to acquire goods or services from the target corporation, and it may be that is the true scope of the subsection. It is sufficient to hold that conduct which prevents the supply of goods by a target corporation, without more, does not amount to the hindering or preventing of acquisition of those goods from a target corporation.

Thus failure to supply goods to a corporation does not amount to the hindering or preventing of the acquisition of those goods from the customers of that corporation. See also Australasian Meat Industry Employees’ Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318; 104 ALR 199; Australian Wool Innovation Ltd v Newkirk (2005) ATPR ¶42-053; [2005] FCA 290; BC200501342 at [34] per Hely J; see Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688 at [127] per Young J. [10,740.50] “goods” and “services” [10,025.85]. [10,740.55] “corporation” [10,025.50] and [10,025.100].

See s 4(1), [10,025.60] and

See s 4(1), [10,025.30],

[10,025.45],

[10,740.65] Case law Relevant case law includes the following: • Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367; 42 FLR 331; • Wribass Pty Ltd v Swallow (1979) 38 FLR 92; (1979) ATPR ¶40101; • Industrial Enterprises Ltd v Federated Storemen & Packers Union of Australia (1979) ATPR ¶40-100; • Mudginberri Station Pty Ltd v Australian Meat Industry Employees Union (1985) 11 FCR 145; 61 ALR 291; 13 IR 275; (1985) ATPR ¶40-598; • Jewel Food Stores Pty Ltd v Hall (1989) 85 ALR 375; (1989) ATPR ¶40-931; • Jewel Food Stores Pty Ltd v Amalgamated Milk Vendors Assn Inc (1990) ATPR ¶40-997; • Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32; (1991)

•

• •

•

• • • •

ATPR ¶41-098; Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; 99 ALR 735; (1991) ATPR ¶41-092 (the Troubleshooters case); Australasian Meat Industry Employees’ Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318; 104 ALR 199; J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (1992) 111 ALR 502; (1993) ATPR (Digest) ¶46-099; Australian Builders Labourers Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 42 FCR 452; 114 ALR 551; (1993) ATPR ¶41-245; ANL Container Line Pty Ltd v Maritime Union of Australia (2000) ATPR ¶41-769; [1999] FCA 1882; BC9909068; A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047; BC200705434 per Gyles J; Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 470; BC201102981 per Moore J; Recall Information Management Pty Ltd v National Union of Workers [2013] FCA 161; BC201300800 per Barker J. ____________________ [page 444]

[10,740DA] Secondary boycotts for the purpose of causing substantial lessening of competition 45DA (1) In the circumstances specified in subsection (3), a person must not, in concert with a second person, engage in conduct: (a) that hinders or prevents: (i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or (ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the

second person); and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing a substantial lessening of competition in any market in which the fourth person supplies or acquires goods or services. Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7). Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts. (2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose. (3) Subsection (1) applies if: (a) the third person or the fourth person is a corporation, or both of them are corporations; and (b) the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of one of those persons who is a corporation. [s 45DA insrt Act 60 of 1996 s 3 and Sch 17]

[10,740DB]

Boycotts affecting trade or commerce

45DB (1) A person must not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (who is not an employer of the first person) from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia. Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7). Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts. (2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose. [s 45DB insrt Act 60 of 1996 s 3 and Sch 17]

SECTION 45DB GENERALLY [10,740DB.5] Overview Section 45DB prohibits a person acting in concert with another person from hindering a third person from engaging in trade or commerce involving the movement of goods outside Australia. Section 45DB does not apply to the production and distribution of goods within Australia: see Australian Wool Innovation Ltd v Newkirk (2005) ATPR ¶42-053; [2005] FCA 290; BC200501342 at [50] per Hely J; Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2007] FCA 1535; BC200708456 at [55] per Gray ACJ. [page 445] Section 45DB does not apply to acts anterior to the movement of goods from Australia to a place outside Australia: Rural Export & Trading (WA) Pty Ltd v Hahnheuser, above, at [56] per Gray ACJ. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that ss 45D-5DE be maintained and effectively enforced by the Commission, who should pursue these cases with increased vigour. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. It provides for increased penalties for secondary boycotts, consistent with the other competition provisions in the Act. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competitionpolicy-division/ed_competition_law_amendments. See also [10,690.5]. [10,740DB.10] Acting in concert Section 45DB requires that the person act in “concert” with a second person. The acts of the first person and second person must have “an element of contemporaneousness sometimes said to be necessary for a finding of conduct in concert”: Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2007] FCA 1535; BC200708456 at [30] per Gray ACJ. There may be cases in which different people perform different acts, all

directed towards achieving the same end, but the differences are so great as to prevent the conduct of the different persons being described accurately as conduct in “concert”: Rural Export & Trading (WA) Pty Ltd v Hahnheuser, above, at [31] per Gray ACJ. [10,740DB.15] Purpose The purpose in s 45DB(1) has the same meaning as used in the (differently enacted) s 45D(1). The purpose is the subjective purpose: Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2007] FCA 1535; BC200708456 at [33] per Gray ACJ. The subjective purpose must be held by each of the persons found to be acting in concert before s 45DB will apply: Rural Export & Trading (WA) Pty Ltd v Hahnheuser, above, at [34]. ____________________

[10,740DC] Involvement and liability of employee organisations 45DC (1) Certain organisations taken to be acting in concert If 2 or more persons (the participants), each of whom is a member or officer of the same organisation of employees, engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with another person, then, unless the organisation proves otherwise, the organisation is taken for the purposes of sections 45D, 45DA and 45DB: (a) to engage in that conduct in concert with the participants; and (b) to have engaged in that conduct for the purposes for which the participants engaged in it. (2) Consequences of organisation contravening subsection 45D(1), 45DA(1) or 45DB(1) The consequences of an organisation of employees engaging, or being taken by subsection (1) to engage, in conduct in concert with any of its members or officers in contravention of subsection 45D(1), 45DA(1) or 45DB(1) are as set out in subsections (3), (4) and (5). (3) Loss or damage taken to have been caused by organisation’s conduct Any loss or damage suffered by a person as a result of the conduct is taken, for the purposes of this Act, to have been caused by the conduct of the organisation.

[page 446] (4) Taking proceedings if organisation is a body corporate If the organisation is a body corporate, no action under section 82 to recover the amount of the loss or damage may be brought against any of the members or officers of the organisation in respect of the conduct. (5) Taking proceedings if organisation is not a body corporate If the organisation is not a body corporate: (a) a proceeding in respect of the conduct may be brought under section77, 80 or 82 against an officer of the organisation as a representative of the organisation’s members and the proceeding is taken to be a proceeding against all the persons who were members of the organisation at the time when the conduct was engaged in; and (b) subsection 76(2) does not prevent an order being made in a proceeding mentioned in paragraph (a) that was brought under section77; and (c) the maximum pecuniary penalty that may be imposed in a proceeding mentioned in paragraph (a) that was brought under section77 is the penalty applicable under section 76 in relation to a body corporate; and (d) except as provided by paragraph (a), a proceeding in respect of the conduct must not be brought under section77 or 82 against any of the members or officers of the organisation; and (e) for the purpose of enforcing any judgment or order given or made in a proceeding mentioned in paragraph (a) that was brought under section77 or 82, process may be issued and executed against the following property or interests as if the organisation were a body corporate and the absolute owner of the property or interests: (i) any property of the organisation or of any branch or part of the organisation, whether vested in trustees or however otherwise held; (ii) any property in which the organisation or any branch or part of the organisation has a beneficial interest, whether vested in trustees or however otherwise held;

(f)

(iii) any property in which any members of the organisation or of a branch or part of the organisation have a beneficial interest in their capacity as members, whether vested in trustees or however otherwise held; and if paragraph (e) applies, no process is to be issued or executed against any property of members or officers of the organisation or of a branch or part of the organisation except as provided in that paragraph.

[s 45DC insrt Act 60 of 1996 s 3 and Sch 17]

SECTION 45DC GENERALLY [10,740DC.5] Overview This provision addresses the liability of an organisation for breaches of ss 45D, 45DA and 45DB: see A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047; BC200705434 at [80]–[81] per Gyles J. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that ss 45D-45DE be maintained and effectively enforced by the Commission, who should pursue these cases with increased vigour. [page 447] On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. It provides for increased penalties for secondary boycotts, consistent with the other competition provisions in the Act. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competitionpolicy-division/ed_competition_law_amendments. See also [10,690.5]. ____________________

[10,740DD] permitted

Situations in which boycotts

45DD (1) Dominant purpose of conduct relates to employment matters — conduct by a person A person does not contravene, and is not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person. (2) Dominant purpose of conduct relates to employment matters — conduct by employee organisation and employees If: (a) an employee, or 2 or more employees who are employed by the same employer, engage in conduct in concert with another person who is, or with other persons each of whom is: (i) an organisation of employees; or (ii) an officer of an organisation of employees; and (b) the conduct is only engaged in by the persons covered by paragraph (a); and (c) the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the employee, or any of the employees, covered by paragraph (a); the persons covered by paragraph (a) do not contravene, and are not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in the conduct. (3) Dominant purpose of conduct relates to environmental protection or consumer protection A person does not contravene, and is not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in conduct if: (a) the dominant purpose for which the conduct is engaged in is substantially related to environmental protection or consumer protection; and (b) engaging in the conduct is not industrial action. Note 1: If an environmental organisation or a consumer organisation is a body corporate: (a) it is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be

covered by this exemption; and (b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption. Note 2: If an environmental organisation or a consumer organisation is not a body corporate: (a) it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) (consequently, this exemption does not cover the organisation as such); but (b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption. [page 448] (4) Meaning of industrial action — basic definition In subsection (3), industrial action means: (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where: (i) the terms and conditions of the work are prescribed, wholly or partly, by a workplace instrument or an order of an industrial body; or (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or (b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by a workplace instrument or by an order of an industrial body; or (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or (d) a failure or refusal by persons to attend for work or a failure or

refusal to perform any work at all by persons who attend for work. For this purpose, industrial body and workplace instrument have the same meanings as in the Fair Work Act 2009. [subs (4) am SLI 50 of 2006 reg 3 and Sch 15[1] and [2], opn 27 Mar 2006; Act 54 of 2009 s 3 and Sch 18[24], [25], opn 1 July 2009]

(5) Meaning of industrial action — further clarification For the purposes of subsection (3): (a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and (b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions. (6) Subsections (1), (2) and (3) do not protect people not covered by them In applying subsection 45D(1), 45DA(1) or 45DB(1) to a person who is not covered by subsection (1), (2) or (3) in respect of certain conduct, disregard the fact that other persons may be covered by one of those subsections in respect of the same conduct. (7) Defences to contravention of subsection 45DB(1) In a proceeding under this Act in relation to a contravention of subsection 45DB(1), it is a defence if the defendant proves: (a) that a notice in respect of the conduct concerned has been duly given to the Commission under subsection 93(1) and the Commission has not given a notice in respect of the conduct under subsection 93(3) or (3A); or (b) that the dominant purpose for which the defendant engaged in the conduct concerned was to preserve or further a business carried on by him or her. (8) Each person to prove defence If: (a) a person engages in conduct in concert with another person; and (b) the other person proves a matter specified in paragraph (7)(a) or (b) in respect of that conduct; [page 449]

in applying subsection 45DB(1) to the first person, ignore the fact that the other person has proved that matter. Note: Section 415 of the Fair Work Act 2009 limits the right to bring actions under this Act in respect of industrial action that is protected action for the purposes of that section. [subs (8) am Act 54 of 2009 s 3 and Sch 18[26], opn 1 July 2009] [s 45DD insrt Act 60 of 1996 s 3 and Sch 17]

SECTION 45DD GENERALLY [10,740DD.5] Overview Section 45DD provides exceptions to circumstances in which boycott conduct is prohibited under this Part. See Recall Information Management Pty Ltd v National Union of Workers [2013] FCA 161; BC201300800 per Barker J. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that ss 45D—45DE be maintained and effectively enforced by the Commission, who should pursue these cases with increased vigour. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. It provides for increased penalties for secondary boycotts, consistent with the other competition provisions in the Act. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competitionpolicy-division/ed_competition_law_amendments. See also [10,690.5]. [10,740DD.10] Environmental protection The expression “environmental protection” is not defined in the Act. In its ordinary and natural meaning the expression does not refer simply to the protection of the natural environment. It also can refer to the built environment, such as a heritage building, streetscape or, perhaps, a particular instance of town planning. Thus, the protection of some artificial aspects of the environment can be within the scope of “environmental protection” in s 45DD(3). But the “environment” referred to in the expression ordinarily will be a particular location, thing or habitat in which a particular individual instance or aggregation of flora or fauna or artifice exists. And the “protection” is to

preserve the existence and/or characteristics of that environment being that location, thing or habitat which may include, or consist only of, that individual instance or aggregation: Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2008] FCAFC 156; BC200807481 at [24] per French, Rares and Besanko JJ. In Rural Export & Trading (WA) Pty Ltd v Hahnheuser, (2008) above, the Full Court considered the actions of the respondent in placing ham in the feed lots of sheep, making them unfit for export. Their honours said at [25]–[26]: [25] In the present matter, Mr Hahnheuser did not have the dominant purpose of protection of the sheep in the environment of the paddock; he was seeking to protect them from what he asserted would be the conditions they would experience on board a ship engaged in a voyage from Australia to the Middle East. His protest was against live exports of sheep. He was not seeking the protection of any environment, particularly not that of the ship. Nor was he seeking to prevent the same sheep being slaughtered here for food, rather than in the Middle East at the end of the voyage. As he said in one of the interviews: Well certainly ultimately these sheep would have either have been slaughtered in Australia in any event if they had been purchased for the Australian market or if they do end up being exported then obviously they would be slaughtered overseas. So that is the inevitable fate of the sheep that is what they are being bred for. But we have succeeded in doing is further highlighting the appalling atrocities that occur to these animals, these sheep and cattle for live exports on a routine basis when they are exported from Australia. (sic, emphasis added) [page 450] [26] The activity Mr Hahnheuser described (which is similar to the particulars of his pleaded defence) did not relate to environmental protection. Rather, it related to the conditions to which he believed the sheep would be exposed when they left the paddock and were placed on board the vessel. When on the vessel the sheep would be in an environment from which Mr Hahnheuser and his collaborators believed the sheep needed to be protected. But it is contrary to commonsense to suggest that, simply because the sheep may at one time or other have been part of a particular environment, whether in the feed lot, on the farms or stations on which they were bred or pastured, or on board a vessel, protection of the sheep from a perceived harm in a different environment on the vessel is related to environmental protection within the meaning of s 45DD(3). To acknowledge that the sheep may be part of the environment on board the vessel does not result in the conclusion that prevention of the sheep from being placed in that environment is “environmental protection”.

[10,740DD.20] Onus of proof Only s 45DD(7) contains a specific provision about the onus of proof. Under s 45DD(7) the onus of proof is on the person seeking to rely on the exception. The legislative intention was not to cast upon a person seeking to take advantage of s 45DD(1), (2) or (3) the onus of proving the elements. Parliament intended that these three subsections should operate by way of

qualification on the elements of the relevant preceding provisions of the Act so that the person alleging contravention of any of those provisions would be required to establish that the elements referred to in any of the three subsections were not present: Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2007] FCA 1535; BC200708456 at [67] per Gray ACJ. ____________________

[10,745] Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services 45E (1) Situations to which section applies This section applies in the following situations: (a) a supply situation — in this situation, a person (the first person) has been accustomed, or is under an obligation, to supply goods or services to another person (the second person); or (b) an acquisition situation — in this situation, a person (the first person) has been accustomed, or is under an obligation, to acquire goods or services from another person (the second person). Despite paragraphs (a) and (b), this section does not apply unless the first or second person is a corporation or both of them are corporations. Note: For the meanings of accustomed to supply and accustomed to acquire, see subsections (5) and (7). (2) Prohibition in a supply situation In a supply situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of: (a) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or (b) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person,

except subject to a condition: (i) that is not a condition to which the supply of such goods or services by the first person to the second person has previously been subject because of a provision in a contract between those persons; and [page 451] (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services. (3) Prohibition in an acquisition situation In an acquisition situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of: (a) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person; or (b) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person, except subject to a condition: (i) that is not a condition to which the acquisition of such goods or services by the first person from the second person has previously been subject because of a provision in a contract between those persons; and (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services. (4) No contravention if second person gives written consent to written contract etc Subsections (2) and (3) do not apply to a contract, arrangement or understanding if it is in writing and was made or arrived at with the

written consent of the second person. (5) Meaning of accustomed to supply In this section, a reference to a person who has been accustomed to supply goods or services to a second person includes (subject to subsection (6)): (a) a regular supplier of such goods or services to the second person; or (b) the latest supplier of such goods or services to the second person; or (c) a person who, at any time during the immediately preceding 3 months, supplied such goods or services to the second person. (6) Exception to subsection (5) If: (a) goods or services have been supplied by a person to a second person under a contract between them that required the first person to supply such goods or services over a period; and (b) the period has ended; and (c) after the end of the period, the second person has been supplied with such goods or services by another person and has not also been supplied with such goods or services by the first person; then, for the purposes of the application of this section in relation to anything done after the second person has been supplied with goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to supply such goods or services to the second person. (7) Meaning of accustomed to acquire In this section, a reference to a person who has been accustomed to acquire goods or services from a second person includes (subject to subsection (8)): (a) a regular acquirer of such goods or services from the second person; or (b) a person who, when last acquiring such goods or services, acquired them from the second person; or [page 452] (c) a person who, at any time during the immediately preceding 3

months, acquired such goods or services from the second person. (8) Exception to subsection (7) If: (a) goods or services have been acquired by a person from a second person under a contract between them that required the first person to acquire such goods or services over a period; and (b) the period has ended; and (c) after the end of the period, the second person has refused to supply such goods or services to the first person; then, for the purposes of the application of this section in relation to anything done after the second person has refused to supply goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to acquire such goods or services from the second person. Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A). [s 45E insrt Act 60 of 1996 s 3 and Sch 17]

SECTION 45E GENERALLY [10,745.5] Overview The section prohibits a person who customarily supplies goods or services to a second person from giving effect to an arrangement with a union that has the purpose of preventing the supply of goods or services to the second person. The section was repealed in 1994 by the Industrial Relations Reform Act 1993 and re-made by the Workplace Relations and Other Legislation Amendment Act 1996. In general terms the amendment is intended to reinstate s 45E to its pre-1994 form. See also [10,740.5]. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that ss 45E and 45EA be amended so that they apply to awards and industrial agreements, except to the extent where they relate to the remuneration, conditions of employment, hours of work or working conditions of employees. The Committee also recommended that the Commission be given the right to intervene in proceedings before the Fair Work Commission. In its response the Governmnet noted this recommendation.

On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amendments. See also [10,690.5]. [10,745.15] “goods” and “services” [10,025.85]. [10,745.20] “supply and acquire” [10,025.90] and [10,050.5].

See s 4(1), [10,025.60] and See ss 4(1) and 4C, [10,025.5],

[10,745.25] “contract, arrangement or understanding” See s 45 and [10,700.20]-[10,700.35]. In construing s 45E, it is appropriate to have regard to similar concepts in other parts of the Act: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) ATPR ¶42-177; [2007] FCAFC 132; BC200706673 at [13], [178] per Weinberg, Bennett and Rares JJ. It is inappropriate to impose a higher standard of proving an arrangement or understanding under s 45E than the law of conspiracy requires: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission, above, at [141]. [page 453] [10,745.30] Purpose Purpose is the operative subjective purpose of each of the parties to the contract, arrangement or understanding: • Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688 at [114], [126] per Young J; • Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007)

ATPR ¶42-177; [2007] FCAFC 132; BC200706673 at [81] per Weinberg, Bennett and Rares JJ; • Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 at [851] Dowsett and Lander JJ (Mansfield agreeing). Section 45E(3) requires each party to the contract, arrangement or understanding to have had the subjective purpose which the section proscribes: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission, above, at [182]. A number of purposes may exist — it is sufficient if the purpose is a cause of the inclusion of the relevant provision: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission, above, at [192]. Section 45E(3) will apply if one of the purposes is proscribed by the provision, even if it is not dominant or substantial: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission, above, at [194]. [10,745.35] “preventing or hindering”

See s 45D.

[10,745.40] Second person Section 45E does not require the identity of the second person to be particularly or specifically identified. This view is supported by s 45E(1) which defines a second person by reference to an accustomed relationship of supply and acquisition: Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688 at [130] per Young J; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) ATPR ¶42-177; [2007] FCAFC 132; BC200706673 at [202] per Weinberg, Bennett and Rares JJ. The second person may be described by a generic or class description which could include; not just persons with whom the “first person” is accustomed to deal, but also others who are outside the definition in s 45E of a “second person”: Communications, Electrical, Electronic, Energy,

Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission, above, at [203]. The court provided the following example: [203] ... a taxi fleet operator might agree with a union that it would not allow independent contractors who were non-union members to contract to drive its taxis. That arrangement might affect a large number of non-union contractors from whom the fleet operator had been accustomed to acquire services. But the arrangement would also affect other drivers who only applied for the first time to drive taxis for the fleet operator after the arrangement was made. It would be an odd result, if s 45E(3) had no effect in those circumstances because the targets of the arrangement were a class. . . .

A “second person” will be sufficiently identified if a reasonable person in the position of the parties to the contract, arrangement or understanding, having regard to its objective aim and genesis as well as the relevant matrix of fact in which it was made or arrived at, would understand that person to be a “second person”: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission, above, at [207]. [page 454] [10,745.43] Accessorial liability Sections 45E and 45EA do not exclude accessorial liability of a union: Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688 at [210] per Young J. See Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678; BC200803497 per Finn J. However, s 76(2) excludes the liability of an individual. Therefore, an officer of a union cannot be liable under s 76(1) as an accessory to a contravention of s 45E(3) by the union or the “first person”: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) ATPR ¶42-177; [2007] FCAFC 132; BC200706673 at [185] per Weinberg, Bennett and Rares JJ. [10,745.45] Case law The relevant cases are as follows: • Keith Russell Simplicity Funerals Pty Ltd v Cremation Society of Australia (ACT) Ltd (1982) 57 FLR 472; 40 ALR 125;

• • •

•

Roberts v Murlar Pty Ltd (1986) 68 ALR 62; 16 IR 199; (1986) ATPR ¶40-729; Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; 99 ALR 735; (1991) ATPR ¶41-092; Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688; Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678; BC200803497 per Finn J. ____________________

[10,745EA] Provisions contravening section 45E not to be given effect 45EA A person must not give effect to a provision of a contract, arrangement or understanding if, because of the provision, the making of the contract or arrangement, or the arriving at the understanding, by the person: (a) contravened subsection 45E(2) or (3); or (b) would have contravened subsection 45E(2) or (3) if: (i) section 45E had been in force when the contract or arrangement was made, or the understanding was arrived at; and (ii) the words “is in writing and” and “written” were not included in subsection 45E(4). Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A). [s 45EA insrt Act 60 of 1996 s 3 and Sch 17]

SECTION 45EA GENERALLY [10,745EA.5] Overview Section 45EA prohibits a person from giving effect to a provision of a contract, arrangement or understanding if, because of the provision, the making of the contract or arrangement, or the arriving at the understanding, contravened s 45E(2) or (3). See Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty

Ltd [2006] FCA 1777; BC200610688 per Young J. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that ss 45E and 45EA be amended so that they apply to awards and industrial agreements, except to the extent where they relate to the remuneration, conditions of employment, hours of work or working conditions of employees. The Committee also recommended that the Commission be given the right to intervene in proceedings before the Fair Work Commission. [page 455] [10,745EA.10] Accessorial liability Sections 45E and 45EA do not exclude the accessorial liability of a union under s 76(1) and s 80(1): Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688 at [210], [214] per Young J. ____________________

[10,745EB] Sections 45D to 45EA do not affect operation of other provisions of Part 45EB Nothing in section 45D, 45DA, 45DB, 45DC, 45DD, 45E or 45EA affects the operation of any other provision of this Part. [s 45EB insrt Act 60 of 1996 s 3 and Sch 17]

[10,760]

Misuse of market power

46 (1) A corporation that has a substantial degree of power in a market shall not take advantage of that power in that or any other market for the purpose of: (a) eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market; (b) preventing the entry of a person into that or any other market; or

(c)

deterring or preventing a person from engaging in competitive conduct in that or any other market.

[subs (1) am Act 159 of 2007 s 3 and Sch 2[1], opn 25 Sep 2007]

(1AAA) If a corporation supplies goods or services for a sustained period at a price that is less than the relevant cost to the corporation of supplying the goods or services, the corporation may contravene subsection (1) even if the corporation cannot, and might not ever be able to, recoup losses incurred by supplying the goods or services. [subs (1AAA) insrt Act 116 of 2008 s 3 and Sch 1[1A], opn 22 Nov 2008]

(1AA) A corporation that has a substantial share of a market must not supply, or offer to supply, goods or services for a sustained period at a price that is less than the relevant cost to the corporation of supplying such goods or services, for the purpose of: (a) eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market; or (b) preventing the entry of a person into that or any other market; or (c) deterring or preventing a person from engaging in competitive conduct in that or any other market. [subs (1AA) insrt Act 159 of 2007 s 3 and Sch 2[1A], opn 25 Sep 2007]

(1AB) For the purposes of subsection (1AA), without limiting the matters to which the Court may have regard for the purpose of determining whether a corporation has a substantial share of a market, the Court may have regard to the number and size of the competitors of the corporation in the market. [subs (1AB) insrt Act 159 of 2007 s 3 and Sch 2[1A], opn 25 Sep 2007]

(1A) For the purposes of subsections (1) and (1AA): (a) the reference in paragraphs (1)(a) and (1AA)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and (b) the reference in paragraphs (1)(b) and (c) and (1AA)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons. [subs (1A) insrt Act 222 of 1992 s 4; am Act 159 of 2007 s 3 and Sch 2[1B]–[1D], opn 25 Sep 2007]

[page 456] (2) If: (a) a body corporate that is related to a corporation has, or 2 or more bodies corporate each of which is related to the one corporation together have, a substantial degree of power in a market; or (b) a corporation and a body corporate that is, or a corporation and 2 or more bodies corporate each of which is, related to that corporation, together have a substantial degree of power in a market; the corporation shall be taken for the purposes of this section to have a substantial degree of power in that market. (3) In determining for the purposes of this section the degree of power that a body corporate or bodies corporate has or have in a market, the court shall have regard to the extent to which the conduct of the body corporate or of any of those bodies corporate in that market is constrained by the conduct of: (a) competitors, or potential competitors, of the body corporate or of any of those bodies corporate in that market; or (b) persons to whom or from whom the body corporate or any of those bodies corporate supplies or acquires goods or services in that market. [subs (3) am Act 116 of 2008 s 3 and Sch 1[3], opn 22 Nov 2008]

(3A) In determining for the purposes of this section the degree of power that a body corporate or bodies corporate has or have in a market, the court may have regard to the power the body corporate or bodies corporate has or have in that market that results from: (a) any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the body corporate or bodies corporate has or have, or may have, with another party or other parties; and (b) any covenants, or proposed covenants, that the body corporate or bodies corporate is or are, or would be, bound by or entitled to the benefit of. [subs (3A) insrt Act 159 of 2007 s 3 and Sch 2[2], opn 25 Sep 2007; am Act 116 of 2008 s 3 and Sch 1[3], opn 22 Nov 2008]

(3B) Subsections (3) and (3A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this section, the degree of power that a body corporate or bodies corporate has or have in a market. [subs (3B) insrt Act 159 of 2007 s 3 and Sch 2[2], opn 25 Sep 2007]

(3C) For the purposes of this section, without limiting the matters to which the court may have regard for the purpose of determining whether a body corporate has a substantial degree of power in a market, a body corporate may have a substantial degree of power in a market even though: (a) the body corporate does not substantially control the market; or (b) the body corporate does not have absolute freedom from constraint by the conduct of: (i) competitors, or potential competitors, of the body corporate in that market; or (ii) persons to whom or from whom the body corporate supplies or acquires goods or services in that market. [subs (3C) insrt Act 159 of 2007 s 3 and Sch 2[2], opn 25 Sep 2007; am Act 116 of 2008 s 3 and Sch 1[3], opn 22 Nov 2008]

[page 457] (3D) To avoid doubt, for the purposes of this section, more than 1 corporation may have a substantial degree of power in a market. [subs (3D) insrt Act 159 of 2007 s 3 and Sch 2[2], opn 25 Sep 2007]

(4) In this section: (a) a reference to power is a reference to market power; (b) a reference to a market is a reference to a market for goods or services; and (c) a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market. (4A) Without limiting the matters to which the court may have regard for the purpose of determining whether a corporation has contravened subsection (1), the court may have regard to:

any conduct of the corporation that consisted of supplying goods or (a) services for a sustained period at a price that was less than the relevant cost to the corporation of supplying such goods or services; and (b) the reasons for that conduct. [subs (4A) insrt Act 159 of 2007 s 3 and Sch 2[3], opn 25 Sep 2007; am Act 116 of 2008 s 3 and Sch 1[4A], opn 22 Nov 2008]

(5) Without extending by implication the meaning of subsection (1), a corporation shall not be taken to contravene that subsection by reason only that it acquires plant or equipment. (6) This section does not prevent a corporation from engaging in conduct that does not constitute a contravention of any of the following sections, namely, sections 45, 45B, 47, 49 and 50, by reason that an authorization or clearance is in force or by reason of the operation of subsection 45(8A) or section 93. [subs (6) am Act 131 of 2006 s 3 and Sch 1[9], Sch 3[3] and Sch 6[5], opn 1 Jan 2007]

(6A) In determining for the purposes of this section whether, by engaging in conduct, a corporation has taken advantage of its substantial degree of power in a market, the court may have regard to any or all of the following: (a) whether the conduct was materially facilitated by the corporation’s substantial degree of power in the market; (b) whether the corporation engaged in the conduct in reliance on its substantial degree of power in the market; (c) whether it is likely that the corporation would have engaged in the conduct if it did not have a substantial degree of power in the market; (d) whether the conduct is otherwise related to the corporation’s substantial degree of power in the market. This subsection does not limit the matters to which the court may have regard. [subs (6A) insrt Act 116 of 2008 s 3 and Sch 1[5], opn 22 Nov 2008]

(7) Without in any way limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a corporation may be taken to have taken advantage of its power for a purpose referred to in subsection (1) notwithstanding that, after all the

evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the corporation or of any other person or from other relevant circumstances. [page 458] SECTION 46 GENERALLY [10,760.10] Overview Broadly the provision prohibits a corporation that has a substantial degree of power in a market from abusing its market power. The objective of s 46 is to promote competition rather than the interests of particular persons or corporations: • Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (Star Picket Fence Post case) (1989) 167 CLR 177 at 192; 83 ALR 577; 63 ALJR 181; (1989) ATPR 40-925; [1989] HCA 6; • Melway Publishing Pty Ltd v Robert Hicks Pty Ltd t/as Auto Fashions Australia (2001) 178 ALR 253; 50 IPR 257; [2001] HCA 13; BC200100872 at [17]; • NT Power Generation Pty Ltd v Power and Water Authority (2002) 122 FCR 399; (2003) ATPR 41-909; [2002] FCAFC 302; BC200205789 at [23] per Lee J; • Boral Besser Masonry Ltd (now Boral Masonry Ltd) v Australian Competition and Consumer Commission (ACCC) (2003) 195 ALR 609; 77 ALJR 623; [2003] HCA 5; BC200300131 at [122] per Gleeson CJ and Callinan J, at [160] per Gaudron, Gummow and Hayne JJ, at [260] per McHugh J. Although there are analogies between s 46 and s 2 of the Sherman Act 1890 (US), s 46 is in different terms and has different consequences. Decisions of courts of the United States therefore have limited application to s 46: see NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; 210 ALR 312; [2004] HCA 48; BC200406480 at [121] per McHugh ACJ, Gummow, Callinan and Heydon JJ. Reform

In its final report Competition Policy Review, released in March

2015, the Harper Committee recommended re-framing the prohibition in s 46 to prohibit a corporation that has a substantial degree of power in a market from engaging in conduct if the proposed conduct has the purpose, or would have or be likely to have the effect of substantially lessening competition in that or any other market. To mitigate concerns about inadvertently capturing pro-competitive conduct, the Committee recommended that the legislation direct the court, when determining whether conduct has the purpose, effect or likely effect of substantially lessening competition in a market to have regard to: • The extent to which the conduct has the purpose, effect or likely effect of increasing competition in the market, including by enhancing efficiency, innovation, product quality or price competitiveness. • The extent to which the conduct has the purpose, effect or likely effect of lessening competition in the market, including preventing, restricting or deterring the potential for competitive conduct in the market or new entry into the market. On 16 March 2016, the Government announced that it will repeal the current s 46, and adopt the changes recommended by the Harper Review in full. This will result in a new provision that prevents firms with substantial market power from engaging in conduct that has the purpose, effect or likely effect of substantially lessening competition. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amendments. See also [10,690.5]. [10,760.25] “corporation” The expression is defined in s 4 to include a foreign, trading or financial corporation. [10,760.35] “substantial” In Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) 75 ALR 581; (1987) ATPR ¶40-809, Wilcox J said that “substantial” meant real or of substance rather than trivial or minimal. This was approved in:

[page 459] Regents Pty Ltd v Subaru (Aust) Pty Ltd (1998) 84 FCR 218; 42 IPR 421; (1998) ATPR ¶41-647 at 41,175 and in • Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1999) ATPR ¶41-668; • (appeal) Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (1999) 90 FCR 128; 169 ALR 554; (1999) ATPR ¶41-693. In Dowling v Dalgety Australia Ltd (1992) 34 FCR 109; 106 ALR 75; (1992) ATPR ¶41-165 at 40,272 Lockhart J expressed a preference for “substantial” being equated with a degree of market power which is considerable or large consistent with the decision in Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557; 62 FLR 437; (1982) ATPR ¶40-318. This was followed in: • Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43; 106 ALR 297; (1992) ATPR ¶41-167; • Australian Competition and Consumer Commission v Boral Ltd (2001) ATPR ¶41-803; [2001] FCA 30; BC200100518 at [179] per Beaumont J; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [435] per Hill J; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [1028] per Goldberg J; • Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636; [2003] FCAFC 193; BC200304691 at [152] per Wilcox, French and Gyles JJ; • Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2005) ATPR ¶42-066; [2005] FCA 581; BC200504213 at [565] per Allsop J; • (appeal) Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2008] FCAFC 141; BC200807118 per Mansfield, Dowsett and Gyles JJ; • Australian Competition and Consumer Commission (ACCC) v •

Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. Section 46 does not require monopoly power to be shown: Australian Competition and Consumer Commission v Boral Ltd, above. All that is required is that the market power be at least substantial: • Australian Competition and Consumer Commission v Boral Ltd, above, at [321]; • Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1; 178 ALR 253; (2001) ATPR ¶41-805; [2001] HCA 13; BC200100872 at [43]. It is therefore possible for more than one firm in a relevant market to have a substantial degree of power: O’Keeffe Nominees Pty Ltd v BP Australia Ltd (1990) ATPR ¶41-057. [10,760.45] “power” The expression “power” in s 46 is a reference to market power: s 46(4)(a). Although s 46(4)(c) refers to power, its reference is in the context of ‘conduct’ and therefore does not assist in the construction of power in s 46(1): NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [115] per McHugh ACJ, Gummow, Callinan and Heydon JJ. In its reference to “power” s 46(4)(c) does not require that a corporation be an active supplier to have market power. It simply identifies the character or capacity in which the corporation has whatever power it has. It provides that the relevant power is supplier or acquirer power — not for example the power which a large financial institution has: NT Power Generation Pty Ltd v Power and Water Authority, above, at [115]. In Plume v Federal Airports Corp (1997) ATPR ¶41-589 at 44,131, the court therefore concluded that it is only the power that accrues to the corporation as a result of its position in the market that is relevant to s 46. The exercise of a statutory power in the public interest is not the exercise of market power, which is necessarily economic in nature. In Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR ¶41-752 at 40,734; [page 460]

[2000] FCA 38; BC200000054 French J said that the exercise by the Bunbury Port Authority of a statutory power to licence the provision of towage services in the Port of Bunbury is not an exercise of market power, but rather the discharge of a regulatory function conferred upon it by the legislature in the public interest. French J also said that the fact that the conduct of a statutory body is supported by statutory authority will not necessarily take it outside s 46. However (without exploring the limits of the exempting characteristic) in this case, the grant of a statutory licence under an express power granted by Parliament is within it: (appeal) Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR ¶41-783; [2000] FCA 1381; BC200005818 per Burchett and Hely JJ; Carr J disagreeing on this point. Section 46(3) provides that in determining the degree of market power possessed by a corporation regard should be had to the extent to which the conduct of the corporation is constrained by the activities of competitors, potential competitors, suppliers and customers. This definition reflects the decision of the European Court in: • United Brands Co v EC Commission [1978] 1 ECR 207; [1978] 1 CMLR 429; • also Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1; 178 ALR 253; [2001] HCA 13; BC200100872 at [43]; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2001) 119 FCR 1; (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [1021] per Goldberg J; • Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374; 195 ALR 609; [2003] HCA 5; BC200300131 at [121] per Gleeson CJ and Callinan J; • RP Data Ltd v Queensland (2007) ATPR ¶42-197; [2007] FCA 1639; BC200709278 at [75] per Collier J. Under s 46(3A) the court may have regard to the power the corporation has that results from: • any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the body corporate or bodies corporate has or have, or may have, with

another party or other parties; and • any covenants, or proposed covenants, that the body corporate or bodies corporate is or are, or would be, bound by or entitled to the benefit of. Under s 46(3C) a corporation may have a substantial degree of power in a market even though: • It does not substantially control the market; or • It does have absolute freedom from constraint by the conduct of competitors, or potential com-petitors, or persons to whom or from whom corporation supplies or acquires goods or services in that market. Commenting on s 46(3) it has been said that substantial market power need not be derived only from factors operating in the market: • Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 172; 124 ALR 685; (1994) ATPR ¶41345; • Sita (Qld) Pty Ltd v Queensland (1999) 164 ALR 18 at 26; [1999] FCA 793; BC9903164 at [24]; • Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-804; [2001] FCA 116; BC200100573 at [119] per Mansfield J; • (appeal) Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236; 193 ALR 399; [2002] FCAFC 213; BC200203866 per Whitlam, Sackville and Gyles JJ. Conduct of an individual market participant may assist in determining the corporation’s degree of power in the market: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636; [2003] FCAFC 193; BC200304691 at [140] per Wilcox, French and Gyles JJ. [page 461] Market power may also be construed as the ability of a corporation to behave in a manner different from the behaviour that a competitive market

would force on it. In a competitive market no one seller or group of sellers acting in concert has the power to choose its level of profits by giving less and charging more: • Re Queensland Co-op Milling Assn Ltd (1976) 8 ALR 481; 25 FLR 169; (1976) ATPR ¶40- 012; • Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43; 106 ALR 297; (1992) ATPR ¶41-167; • Regents Pty Ltd v Subaru (Aust) Pty Ltd (1998) 84 FCR 218; 42 IPR 421; (1998) ATPR ¶41- 647 at 41,175; • Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1999) ATPR ¶41-668; • (appeal) Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (1999) 90 FCR 128; 169 ALR 554; (1999) ATPR ¶41-693 at 42,860; • Australian Competition and Consumer Commission v Boral Ltd (1999) ATPR ¶41-715 at 43,231; • Kadkhudayan v WD & HO Wills (Aust) Ltd (2001) ATPR ¶41822; [2001] FCA 645; BC200102786 at [63] per Lee J; • Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2001) ATPR (Digest) ¶46-212; [2001] FCA 1056; BC200104487 at [190] per Lindgren J; • (appeal) Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; (2002) ATPR ¶41-879; [2002] FCAFC 197; BC200203308; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2), above, at [1023] per Goldberg J; • Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2005) ATPR ¶42-066; [2005] FCA 581; BC200504213 at [563] per Allsop J; • (appeal) Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2008] FCAFC 141; BC200807118 per Mansfield, Dowsett and Gyles JJ; • RP Data Ltd v Queensland, above, at [75]; • Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. Market power has also been defined as the ability of a firm to raise prices

above the supply cost without rivals taking away customers in due time. Supply cost is the minimum cost an efficient firm would incur in producing the product: • Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177; 83 ALR 577; (1989) ATPR ¶40925 at 50,008; • Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 50 FCR 160; (1994) ATPR ¶41-317; • Photo-Continental Pty Ltd v Sony (Aust) Pty Ltd (1995) ATPR ¶41-372; • Regents Pty Ltd v Subaru (Aust) Pty Ltd (1998) 84 FCR 218; 42 IPR 421; (1998) ATPR ¶41-647 at 41,175; • Australian Competition and Consumer Commission v Boral Ltd (2001) ATPR ¶41-803; [2001] FCA 30; BC200100518; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400 at [454] per Emmett J; • Pacific National (ACT) Ltd v Queensland Rail [2006] FCA 91; BC200600500 at [967] per Jacobson J; • RP Data Ltd v Queensland, above, at [75]. It is said to be implicit in these definitions that market power will only exist when there is the ability to raise prices or exclude competition for a significant period. It would not be useful to [page 462] show that a firm could only raise its price temporarily without any loss of sales: NT Power Generation Pty Ltd v Power and Water Authority (2002) 122 FCR 399; [2002] FCAFC 302; BC200205789 at [151] per Finkelstein J. Therefore to have market power implies having the ability to maintain raised prices or exclude competition for a significant period. That period is a reference to operational time, such as the time within which a potential competitor who is waiting in the wings could acquire the facilities needed to enter the market to take advantage of the possibility of making a profit: NT Power Generation Pty Ltd v Power and Water Authority, above, at [153].

In Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd, above, ATPR at 50,015 Deane J said that market power may be manifested by practices directed at excluding competition such as exclusive dealing, tying arrangements, predatory pricing or refusal to deal: • Regents Pty Ltd v Subaru (Aust) Pty Ltd, above, ATPR at 41,175; • Melway Publishing Pty Ltd v Robert Hicks Pty Ltd, above, (2001) at [67]; • Australian Competition and Consumer Commission v Boral Ltd, above; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [416] per Hill J; • Boral Besser Masonry Ltd v Australian Competition and Consumer Commission, above, at [136]; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd, above, at [460]; • Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2008] FCAFC 141; BC200807118 at [130] per Mansfield J, at [284] per Dowsett J. Market power has also been said to be the power to sell less in terms of quality or quantity at the same price or to sell products on terms and conditions which a firm without market power would not be able to enforce: Boral Besser Masonry Ltd v Australian Competition and Consumer Commission, above, at [288]. Property rights, including intellectual property rights can be a source of market power: NT Power Generation Pty Ltd v Power and Water Authority, above, at [125]. In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2), above, at [1024], Goldberg J said that there are ways in which a purchaser in a market can act unconstrained by competition other than by reference to having an effect on price and output. This might include extracting terms as to payment within a specified period or requiring suppliers to contribute to the cost of the acquirer promoting their products or requiring the supplier to do so or refrain from doing other acts; see (appeal) Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd, above, at [300] per Heerey and Sackville JJ.

However, whether a corporation has market power requires attention to the whole of the evidence relating to the market and the conduct of the participants. It is not legitimate to base a finding of substantial market power simply upon incidents of abuse of power in that market: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission, above, at [150]. [10,760.50] Indicators of market power Many factors will be relevant in determining the extent of the market power held by a corporation. These include: Barriers to entry The primary consideration in determining market power is whether there are barriers to entry into the relevant market: • Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177; 83 ALR 577; (1989) ATPR ¶40925; • Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43; 106 ALR 297; (1992) ATPR ¶41-167; • Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1; 178 ALR 253; [2001] HCA 13; BC200100872; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [1029]; [page 462] •

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(appeal) Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400 at [303] per Heerey and Sackville JJ, at [458] per Emmett J; Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 195 ALR 609; [2003] HCA 5; BC200300131 at [123] per Gleeson CJ and Callinan J; Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 at [51] per Finkelstein J, R Davey and Professor D Round.

The higher the barriers to entry, the less is the likelihood of constraint from potential entrants on the conduct of the incumbents: Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; 97 ALR 555; (1990) ATPR ¶41061 at 51,790 citing Tipping J in New Zealand Magic Millions Ltd v Wrightson Bloodstock Ltd [1990] 1 NZLR 731 at 757; Australian Competition and Consumer Commission v Boral Ltd (2001) ATPR ¶41-803; [2001] FCA 30; BC200100518; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [389] per Hill J. A barrier to entry has been variously defined by economists. A very useful review of the definitions is provided by Finkelstein J in Australian Competition and Consumer Commission v Boral Ltd, above, at [334]–[342]. Also, in Application by Chime Communications Pty Ltd (No 2), (above)at [51]–[53], Finkelstein J, R Davey and Professor D Round said: [51] The Tribunal acknowledges that the competitiveness of a market cannot be measured simply by the number of firms in the market, their market shares and the market concentration. That can only be the starting point of the analysis. A feature that is “equally important” (to adopt the terminology of Viscusi et al (at 164)), or simply another factor that must be brought to account, is the ease of market entry. Viscusi et al state (at 164-165) that entry conditions are important in assessing competition in a market, first because the number of firms in the market is partially determined by the cost of the entry as well as by factors such as economies of scale. Hence entry conditions play a role in determining concentration. Second, entry conditions determine the extent of potential competition. Most courts and economists accept ease of entry by potential competitors is likely to affect the competitiveness of the actual competitors. The debate among economists concerns the extent to which it has that effect. We note that this debate is not based simply on theoretical differences of opinion. P Geroski, R J Gilbert and A Jacquemin, in Barriers to Entry and Strategic Competition (1990) undertook a review of the empirical data on the effect of entry. They looked at the effect of actual entry in thirty industries in the United States. These studies indicated that entry or potential for entry had only a small effect on industry structure. In their view (at 84): “The potential impact of entry seems to be modest. Entrants usually do not take much market share from industries leaders but instead tend to take a market share from small incumbents.” They also observed that: “Post-entry survival is not easy”, as clearly incumbent firms will react strongly to new entry and attempt to repel it, unless the entry is clearly of the niche type, and unless there exist (or can easily be constructed) barriers to the expansion of the new firms. [52] Whether market entry is easy or difficult depends upon what economists refer to as barriers to entry. There is considerable controversy about the proper definition of entry barriers. Joe Bain treats as a barrier any factor, real or perceived, that as a realistic matter discourages entry: J S Bain, Barriers to New Competition (1956) 3. His main antagonist, Stigler, prefers a narrower definition. Stigler treats as a barrier only those costs that a new entrant must incur but which are not (or have not been) incurred by the incumbents. In ‘Ease of Entry: Has the Concept Been Applied Too Readily?’ (1987) 56 Antitrust LJ 43, R L Schmalensee explained the practical differences between the two approaches: Stigler’s followers tend to look at what an entrant must do to become established . . . and to find that those are more or less the same things that established firms had to do to become established

firms. Looking at the two identical lists inclines one to say, ‘Gee, there aren’t any barriers.’ The analysis of lists tends to assume away the possibility — real in some [page 464] cases, I would argue — that, while the same things must be done, they are done on different terms by an entrant than by an incumbent. The entrant faces a different competitive environment when building a reputation, than an incumbent firm did. Bain’s followers . . . tend to find a lot of barriers in practice. Followers of Bain tend to look at established firms as they exist in place, not to focus on the process they had to go through to get there. Many of Bain’s followers, for instance, tend to consider the need to raise a lot of capital to be necessarily a barrier to entry because it is hard to raise, say, $200 million quickly — even though of course, established firms also had to raise $200 million. [53] The Tribunal would proceed on the basis that barriers to entry are both structural, based on exogenously determined market characteristics, and endogenous, being the result of the incumbent’s strategic behaviour to deter entry. Structural barriers are based on cost structures, such as economies of scale, switching costs, demand characteristics (eg preferences for differentiated products), access to information and legal restrictions (eg patents or environmental regulations). Strategic barriers include limit pricing and general entry deterrence, advertising, targeted innovation, product proliferation, expansion of capacity, predatory responses to entry and any other targeted action that would “raise a rival’s costs”. Consequential variations in both market share and market concentration over time as entry occurs must also be examined. The Tribunal is of opinion that any assessment of the effect of barriers to entry, in a forward-looking sense, must include a comprehensive assessment of the current structural and behavioural characteristics of the market and firms at issue, and of how past conduct has shaped this structural and behavioural environment.

Barriers to entry may arise from a variety of sources including: • blocked access — the control of the supply of essential raw materials: Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; 97 ALR 555; (1990) ATPR ¶41-061 at 51,790; • capital — capital requirements for a new market entrant: Arnotts Ltd v Trade Practices Commission, above, ATPR at 51,790; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2005) ATPR ¶42-066; [2005] FCA 581; BC200504213 at [568] per Allsop J; Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 per Mansfield, Dowsett and Lander JJ. • economies of scale — the efficiency benefits from size available to the incumbent: Arnotts Ltd v Trade Practices Commission, above, ATPR at 51,790; • production differentiation — goodwill in a product could only be countered by significant promotion by a newcomer: Arnotts

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Ltd v Trade Practices Commission, above, ATPR at 51,790; legal restrictions — these may include licences, quotas, patents or regulatory approval: Arnotts Ltd v Trade Practices Commission, above, ATPR at 51,790; Melway Publishing Pty Ltd v Robert Hicks Pty Ltd, above, at [67]; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd, above, at [568]. technological factors — for example manufacturing processes: Melway Publishing Pty Ltd v Robert Hicks Pty Ltd, above, at [67]; dynamic or strategic barrier to entry — in Australian Competition and Consumer Commission v Boral Ltd, above, at [225], Merkel J identified a dynamic or strategic barrier to entry resulting from the prevailing economic circumstances in the market, including a potential entrants disincentive to enter because of the presence, advantages and pricing strategies of the incumbents. See also (appeal) Boral Besser Masonry Ltd v Australian Competition and Consumer Commission, above, at [295]. Strategic barriers to entry include matters such as economies of scale, pricing policies and expansion of plant: Boral Besser Masonry Ltd v Australian Competition and Consumer Commission, [page 465]

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above, at [312]. Competitive cost-cutting cannot be regarded as a strategic barrier to entry: Boral Besser Masonry Ltd v Australian Competition and Consumer Commission, above, at [314]. See also predatory pricing, below; predatory pricing — Australian Competition and Consumer Commission v Boral Ltd, above, at [343]; see also [10,760.70]. Pricing below cost is by its nature generally transitory and by itself cannot usually be considered a barrier to entry: Boral Besser Masonry Ltd v Australian Competition and Consumer Commission, above, at [313]; limit pricing — the charging of a price low enough to discourage

entry to a market but sufficient to provide an economic profit: see Australian Competition and Consumer Commission v Boral Ltd, above, at [343]. Power over price Market power may be characterised by the ability of a corporation to set price without losing sales to rivals: • Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177; 83 ALR 577; (1989) ATPR ¶40925 at 50,008; • Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; 97 ALR 555; (1990) ATPR ¶41-061 at 51,791; • Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43; 106 ALR 297; (1992) ATPR ¶41-167 at 40,302; • Australian Competition and Consumer Commission v Boral Ltd (1999) ATPR ¶41-715 at 43,229; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [409] per Hill J; • Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2008] FCAFC 141; BC200807118 at [112] per Mansfield J. Excess capacity The excess capacity of suppliers in the relevant market is relevant to whether a company has a substantial degree of power in a market: Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 195 ALR 609; [2003] HCA 5; BC200300131 at [61] per Gleeson CJ and Callinan J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400 at [313] per Heerey and Sackville JJ; compare Emmett J at [481]. Vertical integration In Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177; 83 ALR 577 at 584; (1989) ATPR ¶40-925 at 50,009, Mason and Wilson JJ said: Nevertheless, Fuller observes, “Vertical integration nearly always accompanies monopoly, not because it raises barriers to entry, but because it gives the monopolist greater power to extract more favourable prices from its customers.” The reason for this is that vertical integration may help a monopolist distinguish between customers whose demand is less and more elastic. Where customers

are able to trade amongst themselves, the monopolist cannot discriminate. By integrating vertically it may be possible for a monopolist to prevent this inter-trading. For example, power companies usually own distribution systems. This enables them to discriminate in pricing between residential and commercial users.

See also Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 195 ALR 609; [2003] HCA 5; BC200300131 at [137] per Gleeson CJ and Callinan J, at [365] per Kirby J. Barriers to entry are also considered by the commission in assessing mergers under s 50. See [10,820.60]. Market share Market share may be evidence of market power: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177; 83 ALR 577; (1989) ATPR ¶40-925 citing: [page 466] Hoffmann-La Roche & Co AG v European Communities Commission [1979] 1 ECR 461; [1979] 3 CMLR 211 at 275; • United States v Aluminium Co of America (1945) 148 F 2d 416 at 425; • Australian Competition and Consumer Commission v Boral Ltd (2001) ATPR ¶41-803; [2001] FCA 30; BC200100518; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [381] per Hill J; • (appeal) Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2008] FCAFC 141; BC200807118 per Mansfield, Dowsett and Gyles JJ. The lower the percentage of market share, the less likely it will be that the firm with the low percentage will have market power or at least market power to a substantial degree: Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd, above, at [412] per Hill J. However, a large market share does not necessarily mean that there is a substantial degree of market power: • Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; 97 ALR 555; (1990) ATPR ¶41-061; •

Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 195 ALR 609; [2003] HCA 5; BC200300131 at [137] per Gleeson CJ and Callinan J; • Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2005) ATPR ¶42-066; [2005] FCA 581; BC200504213 at [564] per Allsop J; (appeal) • Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2008] FCAFC 141; BC200807118 per Mansfield, Dowsett and Gyles JJ. Of particular importance is the structure of the market, including barriers to entry: Re Queensland Co-op Milling Assn Ltd (1976) 8 ALR 481; 25 FLR 169; (1976) ATPR ¶40-012; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400 at [303] per Heerey and Sackville JJ, at [456] per Emmett J. •

Predatory pricing The ability to persistently engage in predatory pricing to exclude competition is an indication of market power: Australian Competition and Consumer Commission v Boral Ltd (2001) ATPR ¶41-803; [2001] FCA 30; BC200100518 per Merkel J at [224], per Finkelstein J at [345]. See also [10,760.70]. [10,760.53] Aggregation of market power In determining whether a corporation has a substantial degree of power in a market s 46(2) provides for the aggregation of power held by the corporation and related bodies corporate. The combined market power is then treated as the power of each of the entities whose market power is aggregated under s 46(2): Sita (Qld) Pty Ltd v Queensland (1999) 164 ALR 18; [1999] FCA 793; BC9903164 at [23]; Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-804; [2001] FCA 116; BC200100573 at [122] per Mansfield J. Even where the corporations have a close relationship, aggregation under s 46(2) is not permitted where they are not related: Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43; 106 ALR 297; (1992) ATPR ¶41-167. A corporation also derives power from agreements or arrangements it has with others. These can be considered in determining whether a corporation has a substantial degree of power in a market: Dowling v Dalgety Australia

Ltd (1992) 34 FCR 109; 106 ALR 75; (1992) ATPR ¶41-165; Eastern Express Pty Ltd v General Newspapers Pty Ltd, above; Chan Cuong Su v Direct Flights International Pty Ltd (1998) ATPR ¶41-662. [10,760.55] “take advantage” Section 46(1) does not apply unless the corporation has “taken advantage” of its market power for one or more of the proscribed purposes. “Taking advantage” is, however, not a requirement of s 46(1AA). [page 467] Prior to the decision in Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177; 83 ALR 577; (1989) ATPR ¶40925 (the BHP case), it was considered that this expression referred to the misuse of market power only and did not extend to cover extraneous sources of power such as the exclusive ownership of intellectual property rights: • Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478; 67 ALR 253; (1986) ATPR ¶40-714; • Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465; 24 FLR 286; (1975) ATPR ¶40-004; • Williams v Papersave Pty Ltd (1987) ATPR ¶40-818. Some decisions after the BHP case purported to leave open the question of whether the exercise of an extraneous legal right may be said to be a taking advantage of market power: Australasian Performing Right Association Ltd v Ceridale Pty Ltd (1990) 97 ALR 497; 19 IPR 1; (1991) ATPR ¶41-074; Dowling v Dalgety Australia Ltd (1992) 34 FCR 109; 106 ALR 75; (1992) ATPR ¶41-165. However, it would seem that the BHP case supports the proposition that the exercise of a legal right does not of itself preclude the operation of s 46: • NT Power Generation Pty Ltd v Power and Water Authority (2001) 184 ALR 481; (2001) ATPR ¶41-814; [2001] FCA 334; BC200101353 at [331]; • (appeal) NT Power Generation Pty Ltd v Power and Water Authority (2002) 122 FCR 399; [2002] FCAFC 302; BC200205789 at [172] per Finkelstein J;

NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [125] per McHugh ACJ, Gummow, Callinan and Heydon JJ; • Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; (2002) ATPR ¶41-879; [2002] FCAFC 197; BC200203308 at [85] per Heerey J (Black CJ agreeing). Indeed, to suggest that there is a distinction between taking advantage of market power and taking advantage of property rights is to suggest a false dichotomy as property rights can be a source of market power: NT Power Generation Pty Ltd v Power and Water Authority, above, at [125] per McHugh ACJ, Gummow, Callinan and Heydon JJ. Prior to the BHP case it was also thought that the conduct must involve some degree of predatory or pejorative intent. These authorities have been overturned and it is clear that any power held by the corporation is relevant and that the corporation need simply “use” that power for the proscribed purposes for there to be a breach of s 46. In the BHP case, above, the High Court said (ATPR at 50,010): •

Pincus J suggested that the phrase “take advantage” requires that the defendant be doing something “reprehensible”. His Honour also used the phrases “[competition] deserving of criticism” and “predatory or unfair”, apparently as equivalents for “reprehensible”. It is unclear precisely what the phrases are supposed to mean, but they suggest some notion of hostile intent. For our part we have difficulty in seeing why an additional, unexpressed and ill-defined standard should be implanted in the section. The phrase “take advantage” in s 46(1) does not require a hostile intent inquiry — nowhere is such standard specified.

This principle has been followed in: • Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 385; 103 ALR 41; (1991) ATPR ¶41-128 at 52,894; • Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1; 178 ALR 253; (2001) ATPR ¶41-805; [2001] HCA 13; BC200100872; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [439] per Hill J; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [1030];

[page 468] NT Power Generation Pty Ltd v Power and Water Authority (2002) 122 FCR 399; [2002] FCAFC 302; BC200205789 at [110] per Branson J; • (appeal) NT Power Generation Pty Ltd v Power and Water Authority, above, per McHugh ACJ, Gummow, Callinan and Heydon JJ; • Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [2640] per Sackville J. Injury to a competitor does not of itself establish a breach of s 46 — it must be conduct that undermines competition: Eastern Express Pty Ltd v General Newspapers Pty Ltd, above, FCR at 406. In determining whether a firm has taken advantage of or used its market power, the question is whether its use is made possible only by the absence of competitive conditions — the test is to ask how the company would have behaved in a competitive market: • Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd, above, CLR at 192 per Mason CJ and Wilson J; CLR at 202 per Dawson J; • Telecom Corp of New Zealand Ltd v Clear Communications Ltd (1995) 32 IPR 573; [1995] 1 NZLR 385 at 403; • Melway Publishing Pty Ltd v Robert Hicks Pty Ltd, above; Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236; 193 ALR 399; [2002] FCAFC 213; BC200203866 at [139] per Whitlam, Sackville and Gyles JJ; • see Seven Network Ltd v News Ltd, above, at [2644] per Sackville J; Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2013) 210 ALR 165; [2013] FCA 909; BC201314709 per Greenwood J; • Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. How competitive such a market might be and the assumed structure of such a market were issues left open in Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd, above. An answer to this question involves a •

process of economic analysis which, if it can be undertaken with sufficient cogency, is consistent with s 46: Melway Publishing Pty Ltd v Robert Hicks Pty Ltd, above, at [52]. This does not imply that assumptions cannot be made. It only suggests that cogent analysis on the basis of the assumptions should be undertaken: NT Power Generation Pty Ltd v Power and Water Authority, above, at [145] per McHugh ACJ, Gummow, Callinan and Heydon JJ. Whether a corporation has a substantial degree of power in a market and whether its behaviour involves a taking advantage of that power are related but separate questions: • Melway Publishing Pty Ltd v Robert Hicks Pty Ltd, above, at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ; • Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 195 ALR 609; [2003] HCA 5; BC200300131 at [132] per Gleeson CJ and Callinan J; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400 at [298] per Heerey and Sackville JJ, at [453] per Emmett J; • Seven Network Ltd v News Ltd, above, at [2635] per Sackville J. There must be a causal connection between the conduct alleged and the market power pleaded such that it can be said that the conduct is a use of that power: see Natwest Australia Bank Ltd v Boral Gerrard Strapping Systems Pty Ltd (1992) ATPR ¶41-196 at 40,644 where the court said: It is not sufficient to show that a corporation with market power has engaged in conduct for the purpose of preventing entry of another person into the market or deterring or preventing a person engaging in competitive conduct in that or any other market. An extreme example illustrates the point. If a corporation with substantial market power were to engage an arsonist to burn down its competitor’s factory and thus deter or prevent its competitor from engaging in competitive activity, it would not thereby contravene s 46.

[page 469] This proposition was accepted in Davids Holdings Pty Ltd v Coles Myer Ltd (1993) ATPR ¶41-227. The court said that the conduct must either, by necessary implication from its very nature, or by reference to other pleaded facts and circumstances, constitute a use of that power. The causal relationship between the market power and its use must therefore be proven:

Petty v Penfolds Wines Pty Ltd (1994) ATPR ¶41-320; Plume v Federal Airports Corp (1997) ATPR ¶41-589 at 44,131; • Australian Competition and Consumer Commission v Boral Ltd (1999) ATPR ¶41-715 at 43,231; • Telstra Corp Ltd v AAPT Ltd (1999) ATPR ¶41-723 at 43,385–6; • Melway Publishing Pty Ltd v Robert Hicks Pty Ltd, above; Rural Press Ltd v Australian Competition and Consumer Commission, above, at [139] per Whitlam, Sackville and Gyles JJ; • NT Power Generation Pty Ltd v Power and Water Authority, above, (2002) at [174] per Finkelstein J; • Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2013) 210 ALR 165; [2013] FCA 909; BC201314709 at [965], [1895] per Greenwood J. However, it does not follow that because a firm in fact enjoys freedom from competitive constraint, and in fact refuses to supply a particular person that there is a relevant connection between the freedom and the refusal. Presence of competitive constraint might be compatible with a similar refusal especially if it is done to secure business advantages which would exist in a competitive environment: Melway Publishing Pty Ltd v Robert Hicks Pty Ltd, above, at [67]; see Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42274; [2007] FCA 1062; BC200705841 at [2641] per Sackville J; Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2013) 210 ALR 165; [2013] FCA 909; BC201314709 at [965], [1895] per Greenwood J. The majority of the High Court in Melway Publishing Pty Ltd v Robert Hicks Pty Ltd, above, at [68] found that the creation and maintenance of the appellants distribution system at a time when it did not have a substantial degree of market power showed that its maintenance, when it had market power, was not necessarily an exercise of that power. In answering the question whether a firm has taken advantage of market power it is necessary to look not only at what the firm did but why the firm did it. For that reason, the business rationale for the conduct is a relevant consideration: Pacific National (ACT) Ltd v Queensland Rail [2006] FCA 91; BC200600500 at [1025] per Jacobson J. In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd, above, at [330], Heerey and Sackville JJ said that Safeway’s decision to delete a plant baker’s products was directed to the •

plant baker’s conduct in supplying discounted bread to Safeway’s retail competitor. A firm without market power would not have pursued a policy of deletion because to do so would have produced harm for itself without any counterveiling benefit. In Rural Press Ltd v Australian Competition and Consumer Commission (2003) 203 ALR 217; 78 ALJR 274; [2003] HCA 75; BC200307578 at [51] Gummow, Heydon and Hayne JJ said that “take advantage” does not encompass conduct which has the purpose of protecting market power, but has no other connection with that market power. They also said at [53] that the Commission failed to show that the conduct of the applicant was “materially facilitated” by the market power. See Seven Network Ltd v News Ltd, above, at [2642] per Sackville J. In Seven Network Ltd v News Ltd, above, at [2652] Sackville J said: [2652] It seems to me to follow from the reasoning of the High Court in Rural Press v ACCC that the question is whether the alleged contravenor, on the counter-factual assumption that it lacked power in the relevant market, could have conducted itself in the same way . . . The fact that a firm, assuming it lacked market power, would not have acted in the manner it actually did (for example, because it would have lacked the motivation or because the absence of market power would have deprived its conduct of any commercial rationale) does not necessarily demonstrate that the firm’s conduct has been materially facilitated by its existing market power.

[page 470] “Take advantage” factors in s 46(6A) Section 46(6A) was introduced by the Trade Practices Legislation Amendment Act 2008. See [10,760.10]. Section 46(6A) provides that in determining for a corporation has taken advantage of its substantial degree of power in a market, the court may have regard to the following non-exhaustive factors: (a) whether the conduct was materially facilitated by the corporation’s substantial degree of power in the market; (b) whether the corporation engaged in the conduct in reliance on its substantial degree of power in the market; (c) whether it is likely that the corporation would have engaged in the conduct if it did not have a substantial degree of power in the market; (d) whether the conduct is otherwise related to the corporation’s substantial degree of power in the market.

[10,760.65] Purpose A corporation will breach s 46(1) and (1AA) only if its conduct is for one of the following three proscribed purposes: • to eliminate or substantially damage a competitor; • to prevent a person from entering a market; or • to deter or prevent a person from engaging in competitive conduct in a market. Section 46 is only concerned with the purpose of conduct and not with its effect. The purpose of a corporation may be inferred from the conduct of the corporation and from the relevant circumstances: s 46(7) and Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177; 83 ALR 577; (1989) ATPR ¶40-925 at 50,222. The relevant purpose need not be the only purpose but only a substantial purpose: s 4F. Purpose is concerned with the parties’ motivation or their intention to achieve a result: • Dowling v Dalgety Australia Ltd (1992) 34 FCR 109; 106 ALR 75; (1992) ATPR ¶41-165 at 40,269; • Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1; 178 ALR 253; (2001) ATPR ¶41-805; [2001] HCA 13; BC200100872 at [31]; • Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2001) ATPR (Digest) ¶46-212; [2001] FCA 1056; BC200104487 at [199] per Lindgren J; • (appeal) Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; (2002) ATPR ¶41-879; [2002] FCAFC 197; BC200203308 at [91] per Heerey J (Black CJ agreeing); • 21st Century Promotions Australia Pty Ltd v Telstra Corp [2001] SASC 299; BC200105157 at [71] per Doyle CJ; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [443]; • Pacific National (ACT) Ltd v Queensland Rail [2006] FCA 91; BC200600500 at [1111] per Jacobson J; • Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. Therefore, for s 46 the relevant purpose is the subjective purpose of those

involved: • • •

• •

Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd, above; ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (1991) 27 FCR 460; 97 ALR 513; (1991) ATPR ¶41-069 at 52,059; Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43; 106 ALR 297; (1992) ATPR ¶41-167 at 40,303; Dowling v Dalgety Australia Ltd, above; Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1999) ATPR ¶41-668; (appeal) Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (1999) 90 FCR 128; 169 ALR 554; (1999) ATPR ¶41-693 at 42,860–1; [page 471]

Charlick Trading Pty Ltd v Australian National Railways Commission [1999] FCA 452; BC9901713; • Australian Competition and Consumer Commission v Boral Ltd (2001) ATPR ¶41-803; [2001] FCA 30; BC200100518 at [181] per Beaumont J; • Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia, above, (2001) at [199] per Lindgren J; • (appeal) Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia, above, (2002), at [91]; • Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2008] FCAFC 141; BC200807118 at [183] per Mansfield J: • Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. Although the subjective purpose has been stressed, nevertheless after it has been ascertained what the nature of the conduct was, what the conduct was designed to achieve and what was the manner of its implementation, the ultimate test is an objective one: General Newspapers Pty Ltd v Telstra Corp •

(1993) 45 FCR 164; 117 ALR 629; (1993) ATPR ¶41-274 at 41,699. If a corporation has a legitimate purpose and a proscribed one and both are substantial purposes it will contravene s 46(1): Regents Pty Ltd v Subaru (Aust) Pty Ltd (1998) 84 FCR 218; 42 IPR 421; (1998) ATPR ¶41-647 at 41,184. An inference of proscribed purposes is to be drawn on the balance of probabilities after giving due weight to the rule in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334: Pacific National (ACT) Ltd v Queensland Rail [2006] FCA 91; BC200600500 at [1113] per Jacobson J. A corporation does not have to achieve its purpose in order to contravene s 46. It is the purpose not its fulfilment that completes the contravention of s 46: Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd, above, at [171] per Mansfield J. Section 46 does not permit the drawing of a distinction between short term anti-competitive purposes and long term pro-competitive objectives and does not permit the former to be nullified or excused by the latter: NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480 at [137] per McHugh ACJ, Gummow, Callinan and Heydon JJ. In making a finding of purpose under s 46 a court is not concerned with a search for the directing mind and will of a corporate respondent. The problem of imputing a state of mind to a corporate body is addressed by s 47(6): Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400 at [342] per Heerey and Sackville JJ. See [10,760.65A]. It is dangerous to proceed too readily from a finding of “purpose” to a conclusion that there has been a “taking advantage” of market power: • Melway Publishing Pty Ltd v Robert Hicks Pty Ltd, above, (2001) at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ; • Reading Entertainment Australia Pty Ltd v Birch Carroll & Coyle Ltd (2002) ATPR ¶41-853; [2001] FCA 1752; BC200107744 at [46] per Conti J; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd, above, BC200107852 at [440] per Hill J; • Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236; 193 ALR 399; [2002] FCAFC

213; BC200203866 at [138] per Whitlam, Sackville and Gyles JJ; • Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 195 ALR 609; [2003] HCA 5; BC200300131 at [123] per Gleeson CJ and Callinan J, at [388] per Kirby J. In Melway Publishing Pty Ltd v Robert Hicks Pty Ltd, above, (2001) at [38] the majority of the High Court said that the adoption by a manufacturer, whether with or without a substantial degree of market power, of a system of distribution involving vertical restraints does not necessarily manifest an anticompetitive purpose under s 46. [page 472] Similarly in Boral Besser Masonry Ltd v Australian Competition and Consumer Commission, above, at [123], Gleeson CJ and Callinan J said that where a firm is operating in an intensely competitive market and its pricing behaviour is explained by its response to the competitive environment, an observation that it intends to damage its competitors, and to do so to such a degree that one or more of them leaves the market, is not helpful in deciding whether the firm has and is taking advantage of its substantial market power. In Rural Press Ltd v Australian Competition and Consumer Commission (2003) 203 ALR 217; 78 ALJR 274; [2003] HCA 75; BC200307578 at [51] Gummow, Heydon and Hayne JJ said that if a firm with market power has a purpose of protecting it, and a choice of methods by which to do so, one of which involves power distinct from market power and one of which does not, choice of the method distinct from market power will prevent a contravention of s 46(1) from occurring even if choice of the other method will entail it. [10,760.65A] Purpose ascertainable from conduct: s 46(7) It will be rare that an applicant has direct evidence of the respondent’s purpose. An applicant will usually need to rely on s 46(7) which permits the existence of the relevant purpose to be ascertained by inference from the conduct of the corporation or of any other person or from other relevant circumstances: • Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway

Publishing Pty Ltd (1999) ATPR ¶41-668 at 42,522–5; • (appeal) Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (1999) 90 FCR 128; 169 ALR 554; (1999) ATPR ¶41-693; • Su v Direct Flights International Pty Ltd (2000) ATPR ¶41-750 at 40,683; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [1011] per Goldberg J; • (appeal) Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400 at [341] per Heerey and Sackville JJ. However, s 46(7) applies at trial when the evidence is known. At the pleading stage the applicant will not have the benefit of all available facts. Therefore the applicant can at best allege observable facts on the basis of which, if they were established, an inference of purpose might be made: Su v Direct Flights International Pty Ltd (2000) ATPR ¶41-750 at 40,683 per Lehane J. [10,760.65B] Deterring or preventing competitive conduct Section 46(1)(c) and (1AA)(c) prohibits a corporation that has a substantial degree of power in a market from taking advantage of that power for the purpose of deterring or preventing a person from engaging in competitive conduct in that or any other market. “Competitive conduct” should be understood in a practical business sense, consistent with the subject, scope and purpose of the legislation, including the stated objects in s 2: Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2005) ATPR ¶42-066; [2005] FCA 581; BC200504213 at [612] per Allsop J. [10,760.66] Market The general definition of market is provided in s 4E. Section 46(4)(b) also provides that a market is a market for goods or services. The expressions “goods” and “services” are defined in s 4. See [10,070]. The objective of market definition is to determine the degree of the defendant’s market power. Too narrow a description of the market will create the appearance of more market power than actually exists and too broad a description will create the appearance of less market power than actually

exists: •

•

Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177; 83 ALR 577; (1989) ATPR ¶40925 at 50,010; Australian Competition and Consumer Commission v Boral Ltd (1999) ATPR ¶41-715. [page 473]

For a useful review of the authorities, see: • Regents Pty Ltd v Subaru (Aust) Pty Ltd (1998) 84 FCR 218; 42 IPR 421; (1998) ATPR ¶41-647; • Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (1999) 90 FCR 128; 169 ALR 554; (1999) ATPR ¶41-693. Defining the market and evaluating the degree of market power are part of the same process and it is for the sake of simplicity of analysis that the two are separated: • Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd, above, CLR at 187-8 per Mason CJ and Wilson J; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400 at [280] per Heerey and Sackville JJ; • Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [2635] per Sackville J. [10,760.68] Pleading a breach of s 46 The material facts, which must be pleaded to establish a breach of s 46, are: • characterising the alleged contravener as a corporation; • identifying a market or markets for goods or services in Australia; • asserting and supporting the assertion that the corporation has a substantial degree of power in the relevant market; • asserting and supporting the assertion that the corporation has taken advantage of that power; • asserting and supporting the assertion that the corporation has

taken advantage of its power for the purpose of preventing the entry of a person into the market in which the contravener has power or into any other market, or deterring or preventing a person from engaging in competitive conduct in the market in which the contravener has power or in any other market. These principles were articulated by French J in Natwest Australia Bank Ltd v Boral Gerrard Strapping Systems Pty Ltd (1992) ATPR ¶41-196 at 40,643 and followed in BT Australia Pty Ltd v NSW & Telstra Corp Ltd (1999) ATPR (Digest) ¶46-187; Telstra Corporation Ltd v AAPT Ltd (1999) ATPR ¶41-723. As the degree of market power and the “taking advantage” of that power are discrete elements that need to be established, a pleading that combines them will be objectionable: Chan Cuong Su v Direct Flights International Pty Ltd (1998) ATPR ¶41-662 at 41,377. [10,760.70] Predatory pricing Predatory pricing is pricing by a corporation designed to eliminate a competitor or to deter a potential competitor from the market: Australian Competition & Consumer Commission v Boral Ltd (2001) 106 FCR 328; ATPR 41-803; [2001] FCA 30; BC200100518 at [266] per Finkelstein J. A feature of the conduct is that it is temporary: Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 20 ALR 129; 33 FLR 294; 4 TPC 124; (1978) ATPR 40-081 at 17,788; Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 385; 103 ALR 41; (1991) ATPR 41-128 at 52,898; BC9103281, citing Cargill Inc v Monfont of Colorado Inc (1986) 479 US 104. The general law position on predatory pricing was significantly altered by a series of legislative amendments, principally the “Birdsville Amendment” (which introduced s 46(1AA)) introduced during the passage of the Trade Practices Legislation Amendment Act (No 1) 2007 and the Trade Practices Legislation Amendment Act 2008 (which introduced s 46(1AAA) and s 46(6A)). The combined effect of these legislative reforms is that s 46 now applies to predatory pricing in two ways. [page 474]

(a) The general prohibition in s 46(1) Under s 46(1), a corporation that has a substantial degree of power in a market must not take advantage of that power in that or any other market for one of the three proscribed purposes. Under s 46(1), it is necessary to establish that the corporation has a substantial degree of power in a market and took advantage of that power. In determining whether a corporation took advantage of its market power, the court may have regard to any matter, including the matters in s 46(6A). See [10,760.55]. However, if the corporation supplies goods or services for a sustained period at a price that is less than the relevant cost to the corporation of supplying the goods or services, s 46(1AAA) provides that the corporation may contravene s 46(1) even if the corporation cannot, and might not ever be able to, recoup losses incurred by supplying the goods or services. That is, it is not necessary to establish recoupment under s 46(1). (b) The prohibition in s 46(1AA) — the Birdsville amendment Under s 46(1AA), a corporation that has a substantial share of a market must not supply, or offer to supply, goods or services for a sustained period at a price that is less than the relevant cost to the corporation of supplying such goods or services, for one of the three proscribed purposes. The expression “sustained period” is not defined. The expression is also used in s 46(4A). The expression “cost” is similarly not defined. It is unclear whether “cost” is intended to mean marginal cost, average variable cost, incremental cost or another equivalent measure typically applied as the appropriate benchmark for assessing claims of predatory pricing. See [10,760.71]. This provision differs from the general prohibition in s 46(1) in two important respects: • The provision is attracted if the corporation has a “substantial share” of the market rather than a “substantial degree of power”. The expression “substantial share” (which is undoubtedly intended to capture market share) is not defined. However, s 46(1AB) provides that the court may have regard to the number and size of the competitors of the corporation in the market. • There is no requirement that the corporation “take advantage” of its market share. It is sufficient if a corporation with a substantial share of the market takes the prohibited action to supply at a

price that is less than cost for a sustained period. Section 46(1AAA), which removes the requirement to establish recoupment, applies only to predatory pricing established under the general limb in s 46(1), but not under s 46(1AA). This apparent anomaly may be the result of the defeat in the Senate of the government’s amendments to the Birds-ville provision proposed in the Trade Practices Legislation Amendment Bill 2008. The government had intended to remove the reference in the Birdsville amendment to “substantial share of the market”, to retain the reference to the supply of goods or services at a price less than its cost to the corporation and to include a reference to the absence of the need to establish recoupment. Nevertheless, within its terms, s 46(1AA) merely refers to the supply of goods or services for a sustained period at a price that is less than the relevant cost to the corporation. “Taking advantage” (and indeed recoupment) are not express requirements of s 46(1AA). That may be the reason that the drafters considered it unnecessary for s 46(1AAA) to apply to s 46(1AA). [10,760.71] Predatory pricing — Pricing below of cost and recoupment In Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 20 ALR 129; 33 FLR 294; 4 TPC 124; (1978) ATPR 40-081 the court left open the question whether a corporation engages in predatory pricing only if the price is below some particular cost, specifically marginal cost or average variable cost. In Trade Practices Commission v CSBP and Farmers Ltd (1980) 53 FLR 135; (1980) ATPR 40-151 at 42,162, Fisher J suggested that a price reduction would be seen as predatory if it was proved that the defendant charged an unreasonably low price. See also OD Transport Pty Ltd v Western Australian Government Railways Commission (1987) ATPR 40761. [page 475] In Eastern Express Pty Ltd v General Newspapers Pty Ltd, above, ATPR at 52,898 Wilcox J at first instance said that the principles evolved in the United States provide useful guidance upon the problem of applying predatory pricing under s 46. This includes the two-stage inquiry adopted in

William Inglis & Sons Baking Co v ITT Continental Baking Co Inc (1981) 668 F 2d 1014 at 1035: If the defendant’s prices were below average total cost but above average variable cost, the plaintiff bears the burden of showing defendant’s pricing was predatory. If, however, the plaintiff proves that the defendant’s prices were below average variable cost, the plaintiff has established a prima facie case of predatory pricing and the burden shifts to the defendant to prove that the prices were justified without regard to any anticipated destructive effect they might have on competition.

However, on appeal in Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43; 106 ALR 297; (1992) ATPR 41-167 at 40,167 the Full Court said that it would be an error to translate into s 46, the United States decisions on predatory pricing at the expense of an independent examination of the Australian legislation as it applies to each case. See also Charlick Trading Pty Ltd v Australian National Railways Commission [1999] FCA 452; BC9901713. A similar view was expressed by Heerey J in Australian Competition and Consumer Commission v Boral Ltd (1999) ATPR 41-715 at 43,232. On appeal to the High Court in Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 195 ALR 609; [2003] HCA 5; BC200300131 it was said that care needs to be exercised in importing these concepts from different legislative contexts: at [124] per Gleeson CJ and Callinan J, at [278] per McHugh J. In Australian Competition and Consumer Commission v Boral Ltd, above, (1999) at 43,224, Heerey J, for the first time, accepted avoidable cost as a proxy for average variable cost.After reviewing the United States authorities, he also accepted that predatory pricing behaviour would be rational only if the predator is able to recoup its losses by charging super-competitive prices following predation (at 43,232–3). He accepted the following analysis put forward by the respondent’s counsel: If it chooses to sell below market price or at a loss, or below avoidable cost, there are two possibilities: (i) legitimate non-proscribed business purpose or (ii) anti-competitive proscribed purpose. It will be anti-competitive if the firm has engaged in the conduct so that competitors will exit the market so that in due course it will more readily enjoy the advantages of market power and recoup its losses. Such conduct is taking advantage of power because only the firm with market power can elect to price lower knowing it is a worthwhile outlay. It is worthwhile incurring those losses because the firm can recoup them later.

However, Heerey J also said that selling below avoidable cost, even for a prolonged period, can be a rational business decision. Such conduct is not of necessity consistent only with taking advantage of market power for the purpose of predatory pricing (at 43,234). On appeal, a majority of the Full Federal Court said that below-cost pricing

and recoupment are not necessary elements of unlawful predatory pricing under s 46: Australian Competition and Consumer Commission v Boral Ltd, above, (2001) per Merkel J at [197], per Finkelstein J at [262]–[263]. In particular it was said not to matter that the price charged might exceed either average total cost or average variable cost: Australian Competition and Consumer Commission v Boral Ltd, above, (2001) per Finkelstein J at [266]. However, the extent of below cost cost pricing and recoupment are relevant circumstances to be taken into account in determining whether a proscribed purpose may be inferred and can also be relevant to the question of whether there has been a taking advantage of market power: Australian Competition and Consumer Commission v Boral Ltd, above, (2001) at [198]. If a dominant firm persistently prices its goods below average total cost, predatory intent may be inferred, and the inference would be much stronger if the price was set below average variable cost; in the latter case it would be for the firm to show that there was a legitimate purpose for its conduct: Australian Competition and Consumer Commission v Boral Ltd, above, (2001), per Finkelstein J at [269]. [page 476] Boral went on appeal to the High Court in Boral Besser Masonry Ltd v Australian Competition and Consumer Commission, above. Gleeson CJ and Callinan J said that care needs to be exercised in importing the concepts of recoupment and selling below variable or avoidable cost: at [124]. Their Honours also said that there is nothing in s 46 which requires that, as a matter of law, a distinction be drawn between pricing below or above variable or avoidable costs. To observe that Boral’s prices were often lower than its variable costs is inconclusive if the prices were fixed as a result of competitive market pressure: at [128]. McHugh J said that what is required is not a bright line rule about costs but a more sophisticated analysis of the firm, its conduct, the firm’s competitors and the structure of the market, not only at the time at which the firm has engaged in conduct allegedly in breach of the Act, but also before and after that conduct: at [273]. Gleeson CJ and Callinan J said that while the possibility of recoupment is

not legally essential to a finding of pricing behaviour in contravention of s 46, it may be of factual importance: at [130]. The fact that Boral had no expectation of being in a position to charge supra-competitive prices even if its competitors left the market was material to an evaluation of its conduct: at [130]. A finding that Boral expected to be in a position to recoup its losses by charging prices above a competitive level may have assisted a conclusion that it had substantial market power: at [130]. Similarly, Gaudron, Gummow and Hayne JJ acknowledged the evidentiary value of the recoupment approach: at [191]. McHugh J also said that care must be taken in translating the United States decisions into s 46 at the expense of an independent examination of its terms: at [278]. However, the two components of “substantial degree of market power” and “taking advantage of that power” require recoupment as a necessary element. A firm does not possess “substantial market power” if it does not have the power to recoup all or a substantial part of the losses caused by price-cutting by later charging supra-competitive prices: at [278]. Nor can a firm be said to “take advantage” of that power if it has no intention of recouping its losses: at [279]. McHugh J said that treating recoupment as a fundamental element in determining a claim of predatory pricing provides a simple means of applying s 46 and enables the court to avoid getting into the messy area of cost analysis, examination of various accounting figures and competing expert evidence on what are the relevant costs: at [292]. Similarly, Kirby J said that recoupment analysis is helpful in determining whether a corporation took advantage of its power: at [409]. Among other things, recoupment analysis provides an opportunity for the court to examine the structure and dynamics of the competitive forces in a particular market over time: at [411] per Kirby J. Ultimately, Gleeson CJ and Callinan J appear to have proceeded on the basis of examining whether Boral had a substantial degree of power in a market and whether in its pricing behaviour it took advantage of that power: at [124]. Similarly, Gaudron, Gummow and Hayne JJ considered whether the three elements of s 46 were satisfied: at [168]. [10,760.73] Access to infrastructure Part IIIA is a generic regime for third party access to services provided by facilities that are of national significance. For the relationship of s 46 to Pt IIIA, see [10,650.10].

[10,760.76] Other applications Refusal to supply See Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177; 83 ALR 577; (1989) ATPR ¶40925; O’Keeffe Nominees Pty Ltd v BP Australia Ltd (1990) ATPR ¶41-057; ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (1991) 27 FCR 460; 97 ALR 513; (1991) ATPR ¶41-069; Dowling v Dalgety Australia Ltd (1992) 34 FCR 109; 106 ALR 75; (1992) ATPR ¶41-165; Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (1999) 90 FCR 128; 169 ALR 554; (1999) ATPR ¶41-693; Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636; [2003] FCAFC 193; BC200304691 per Wilcox, French and Gyles JJ; Australian Competition and [page 477] Consumer Commission (ACCC) v Cabcharge Australia Ltd [2010] FCA 1261; BC201008676 per Finkelstein J; Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489; BC201109859 per Bennett J. Refusal to acquire See Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400. Alteration to existing or future terms of supply See Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) 75 ALR 581; (1987) ATPR ¶40-809; Midland Milk Pty Ltd v Victorian Dairy Industry Authority (1988) ATPR ¶40-857; Berlaz Pty Ltd v Fine Leather Care Products Ltd (1991) ATPR ¶41118; Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158; 104 ALR 633; (1992) ATPR ¶41-159; Aut 6 Pty Ltd v Wellington Place Pty Ltd (1993) ATPR ¶41-202; John S Hayes & Associates Pty Ltd v Kimberley-Clark Australia Pty Ltd (1994) ATPR ¶41-318; Regents Pty Ltd v Subaru (Aust) Pty Ltd (1996) ATPR ¶41-463; Venning v Suburban Taxi Service Pty Ltd (1996) ATPR ¶41-468; Regents Pty Ltd v Subaru (Aust) Pty Ltd (1998) 84 FCR 218; 42 IPR 421; (1998) ATPR ¶41-647.

Exercise of contractual or other rights See Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478; 67 ALR 253; (1986) ATPR ¶40-714; Australasian Performing Right Association Ltd v Ceridale Pty Ltd (1990) 97 ALR 497; 19 IPR 1; (1991) ATPR ¶41-074; Tri-Global (Aust) Pty Ltd v Colonial Mutual Life Assurance Society Ltd (1992) ATPR ¶41-174; Morwood v Chemdata Pty Ltd (1998) ATPR ¶41-629; Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 per Sackville J; (appeal) Seven Network Ltd v News Ltd (2009) 262 ALR 160; [2009] FCAFC 166; BC200910812 per Mansfield, Dowsett and Lander JJ; Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2013) 210 ALR 165; [2013] FCA 909; BC201314709 per Greenwood J. Awarding a contract See Eden Construction Pty Ltd v New South Wales (No 2) [2007] FCA 689; BC200703398 at [462] per Graham J. Terms of a licence agreement See RP Data Ltd v Queensland [2007] FCA 1639; BC200709278 per Collier J. Enforcement of a debt See Aut 6 Pty Ltd v Wellington Place Pty Ltd (1993) ATPR ¶41-202; Australasian Performing Right Association Ltd v Ceridale Pty Ltd (1990) 97 ALR 497; 19 IPR 1; (1991) ATPR ¶41-074; Natwest Australia Bank Ltd v Boral Gerrard Strapping Systems Pty Ltd (1992) ATPR ¶41-196. Threat of retaliatory action See Rural Press Ltd v Australian Competition and Consumer Commission (2003) 203 ALR 217; 78 ALJR 274; [2003] HCA 75; BC200307578. Refusal to provide access to infrastructure facilities See NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312; [2004] HCA 48; BC200406480. Product bundling See Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2008] FCAFC 141; BC200807118 at [93] per Mansfield, Dowsett and Giles JJ. Rebate structure See Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113;

BC201500877 per Flick J. Direct selling See Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. Actions prior to expiry of a patent See Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. [page 478] [10,760.78] Offence against a law A contravention of s 46 is an offence against a law within the meaning of the Corporations Act: Mathers v Commonwealth (2004) 134 FCR 135; 22 ACLC 624; [2004] FCA 217; BC200400908 at [29] per Heerey J. [10,760.80] Authorisation conduct under s 46.

Authorisation under s 88 is not available for

[10,760.85] Guidelines On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee on s 46. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amendments. See also [10,690.5]. In response the Commission published “Framework for misuse of market power guidelines”in September 2016. The Commission will publish the guidelines (following consultation) when the Act is amended. ____________________

[10,765] Misuse of market power — corporation with substantial degree of power in trans-Tasman market

46A (1) In this section: conduct, in relation to a market, means conduct in the market either as a supplier or acquirer of goods or services in the market. impact market means a market in Australia that is not a market exclusively for services. market power, in relation to a market, means market power in the market either as a supplier or acquirer of goods or services in the market. trans-Tasman market means a market in Australia, New Zealand or Australia and New Zealand for goods or services. (2) A corporation that has a substantial degree of market power in a transTasman market must not take advantage of that power for the purpose of: (a) eliminating or substantially damaging a competitor of the corporation, or of a body corporate that is related to the corporation, in an impact market; or (b) preventing the entry of a person into an impact market; or (c) deterring or preventing a person from engaging in competitive conduct in an impact market. (2A) For the purposes of subsection (2): (a) the reference in paragraph (2)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and (b) the reference in paragraphs (2)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons. [subs (2A) insrt Act 222 of 1992 s 5]

(3) If: (a) a body corporate that is related to a corporation has, or 2 or more bodies corporate each of which is related to the one corporation together have, a substantial degree of market power in a transTasman market; or (b) a corporation and a body corporate that is, or a corporation and 2 or more bodies corporate each of which is, related to the corporation, together have a substantial degree of market power in

a trans-Tasman market; the corporation is taken, for the purposes of this section, to have a substantial degree of market power in the trans-Tasman market. [page 479] (4) In determining for the purposes of this section the degree of market power that a body corporate or bodies corporate has or have in a transTasman market, the Federal Court is to have regard to the extent to which the conduct of the body corporate or of any of those bodies corporate, in the trans-Tasman market is constrained by the conduct of: (a) competitors, or potential competitors, of the body corporate, or of any of those bodies corporate, in the trans-Tasman market; or (b) persons to whom or from whom the body corporate, or any of those bodies corporate, supplies or acquires goods or services in the trans-Tasman market. (5) Without extending by implication the meaning of subsection (2), a corporation is not taken to contravene that subsection merely because it acquires plant or equipment. (6) This section does not prevent a corporation from engaging in conduct that does not constitute a contravention of any of the following sections, namely, sections 45, 45B, 47, 49 and 50, because an authorisation or clearance is in force or because of the operation of subsection 45(8A) or section 93. [subs (6) am Act 131 of 2006 s 3 and Sch 1[9], Sch 3[4] and Sch 6[6], opn 1 Jan 2007]

(7) Without limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a corporation may be taken to have taken advantage of its market power for a purpose referred to in subsection (2) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the corporation or of any other person or from other relevant circumstances. (8) It is the intention of the Parliament that this section, and the provisions of Parts VI and XII so far as they relate to a contravention of this section,

should apply to New Zealand and New Zealand Crown corporations to the same extent, and in the same way, as they respectively apply under section 2A to the Commonwealth and authorities of the Commonwealth. (9) Subsection (8) has effect despite section 9 of the Foreign States Immunities Act 1985. [s 46A insrt Act 70 of 1990 s 8]

SECTION 46A GENERALLY [10,765.5] Overview The Trade Practices (Misuse of Trans-Tasman Market Power) Act 1990 was enacted to implement Australia’s obligations under Art 4 of the 1988 Protocol to the Australia New Zealand Closer Economic Relations Trade Agreement. This Article provides that as of 1 July 1990 anti-dumping measures would no longer be available in respect of goods produced in either country and that competition laws would be extended to apply across the Tasman. This section reenacts s 46 in relation to misuse of market power in a transTasman market. Under s 46A the respondent must be shown to have a substantial degree of power in a trans-Tasman market, which is a market in Australia, New Zealand or Australia and New Zealand for goods and services. The anti-competitive purpose under s 46A must be in relation to an impact market which is a market in Australia that is not a market exclusively for services: see Berlaz Pty Ltd v Fine Leather Care Products Ltd (1991) ATPR ¶41-118 at [2] per Pincus J. See Commerce Commission v Air New Zealand Ltd (NZHC, Asher J, Professor M Richardson, CIV-2008-404-008352, 24 August 2011, unreported) at [224] per Asher J and Professor M Richardson. Reform In its draft report, Competition Policy Review, released in September 2014, the Harper Committee has recommended the repeal of ss 46A and 46B. See [10,690.5]. ____________________

[page 480]

[10,770] No immunity from jurisdiction in relation to certain New Zealand laws 46B (1) It is hereby declared, for the avoidance of doubt, that the Commonwealth, the States, the Australian Capital Territory and the Northern Territory, and their authorities, are not immune, and may not claim immunity, from the jurisdiction of the courts of Australia and New Zealand in relation to matters arising under sections 36A, 98H and 99A of the Commerce Act 1986 of New Zealand. (2) This section applies in and outside Australia. [s 46B insrt Act 70 of 1990 s 8]

[10,785]

Exclusive dealing

47 (1) Subject to this section, a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing. (2) A corporation engages in the practice of exclusive dealing if the corporation: (a) supplies, or offers to supply, goods or services; (b) supplies, or offers to supply, goods or services at a particular price; or (c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation; on the condition that the person to whom the corporation supplies, or offers or proposes to supply, the goods or services or, if that person is a body corporate, a body corporate related to that body corporate: (d) will not, or will not except to a limited extent, acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;

(e) will not, or will not except to a limited extent, re-supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; or (f) in the case where the corporation supplies or would supply goods or services, will not re-supply the goods or services to any person, or will not, or will not except to a limited extent, re-supply the goods or services: (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (ii) in particular places or classes of places or in places other than particular places or classes of places. [subs (2) am Act 88 of 1995 s 13]

(3) A corporation also engages in the practice of exclusive dealing if the corporation refuses: (a) to supply goods or services to a person; (b) to supply goods or services to a person at a particular price; or (c) to give or allow a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services to a person; for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate: [page 481] (d) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; (e) has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; or

(f)

has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired from the corporation to any person, or has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired from the corporation: (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (ii) in particular places or classes of places or in places other than particular places or classes of places.

[subs (3) am Act 88 of 1995 s 13]

(4) A corporation also engages in the practice of exclusive dealing if the corporation: (a) acquires, or offers to acquire, goods or services; or (b) acquires, or offers to acquire, goods or services at a particular price; on the condition that the person from whom the corporation acquires or offers to acquire the goods or services or, if that person is a body corporate, a body corporate related to that body corporate will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description: (c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (d) in particular places or classes of places or in places other than particular places or classes of places. (5) A corporation also engages in the practice of exclusive dealing if the corporation refuses: (a) to acquire goods or services from a person; or (b) to acquire goods or services at a particular price from a person; for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate has supplied, or has not agreed not to supply, goods or services, or goods or services of a particular kind or description: (c) to particular persons or classes of persons or to persons other than

particular persons or classes of persons; or (d) in particular places or classes of places or in places other than particular places or classes of places. (6) A corporation also engages in the practice of exclusive dealing if the corporation: (a) supplies, or offers to supply, goods or services; (b) supplies, or offers to supply, goods or services at a particular price; or (c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation; [page 482] on the condition that the person to whom the corporation supplies or offers or proposes to supply the goods or services or, if that person is a body corporate, a body corporate related to that body corporate will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation. [subs (6) am Act 131 of 2006 s 3 and Sch 7[30], opn 1 Jan 2007]

(7) A corporation also engages in the practice of exclusive dealing if the corporation refuses: (a) to supply goods or services to a person; (b) to supply goods or services at a particular price to a person; or (c) to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a person; for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation. [subs (7) am Act 131 of 2006 s 3 and Sch 7[30], opn 1 Jan 2007]

(8) A corporation also engages in the practice of exclusive dealing if the corporation grants or renews, or makes it known that it will not exercise a

power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building on the condition that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate: (a) will not, or will not except to a limited extent: (i) acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; or (ii) re-supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; (b) will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description: (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (ii) in particular places or classes of places or in places other than particular places or classes of places; or (c) will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation. [subs (8) am Act 88 of 1995 s 13]

(9) A corporation also engages in the practice of exclusive dealing if the corporation refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building for the reason that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate: [page 483]

(a) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; (b) has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; (c) has supplied goods or services, or goods or services of a particular kind or description: (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (ii) in particular places or classes of places or in places other than particular places or classes of places; or (d) has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation. [subs (9) am Act 88 of 1995 s 13]

(10) Subsection (1) does not apply to the practice of exclusive dealing constituted by a corporation engaging in conduct of a kind referred to in subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or 9(a), (b) or (c) unless: (a) the engaging by the corporation in that conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition; or (b) the engaging by the corporation in that conduct, and the engaging by the corporation, or by a body corporate related to the corporation, in other conduct of the same or a similar kind, together have or are likely to have the effect of substantially lessening competition. (10A) Subsection (1) does not apply to a corporation engaging in conduct described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if: (a) the corporation has given the Commission a notice under subsection 93(1) describing the conduct; and (b) the notice is in force under section 93.

[subs (10A) insrt Act 88 of 1995 s 13]

(11) Subsections (8) and (9) do not apply with respect to: (a) conduct engaged in: (i) by a registered charity; and (ii) for or in accordance with the purposes or objects of that registered charity; or (b) conduct engaged in in pursuance of a legally enforceable requirement made by a registered charity, being a requirement made for or in accordance with the purposes or objects of that registered charity. [subs (11) am Act 169 of 2012 s 3 and Sch 2 item 163, opn 3 Dec 2012]

(12) Subsection (1) does not apply with respect to any conduct engaged in by a body corporate by way of restricting dealings by another body corporate if those bodies corporate are related to each other. [page 484] (13) In this section: (a) a reference to a condition shall be read as a reference to any condition, whether direct or indirect and whether having legal or equitable force or not, and includes a reference to a condition the existence or nature of which is ascertainable only by inference from the conduct of persons or from other relevant circumstances; (b) a reference to competition, in relation to conduct to which a provision of this section other than subsection (8) or (9) applies, shall be read as a reference to competition in any market in which: (i) the corporation engaging in the conduct or any body corporate related to that corporation; or (ii) any person whose business dealings are restricted, limited or otherwise circumscribed by the conduct or, if that person is a body corporate, any body corporate related to that body corporate; supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be

likely to supply or acquire, goods or services; and (c) a reference to competition, in relation to conduct to which subsection (8) or (9) applies, shall be read as a reference to competition in any market in which the corporation engaging in the conduct or any other corporation the business dealings of which are restricted, limited or otherwise circumscribed by the conduct, or any body corporate related to either of those corporations, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services. SECTION 47 GENERALLY [10,785.10] Overview Section 47 applies to vertical arrangements. That is, arrangements between corporations at different levels in the production chain, for example manufacturing, distribution or retail. The following vertical restrictions are regulated by s 47: Product restrictions • Supplying goods and services on the condition that the acquirer not acquire goods or services from a competitor of the supplier: s 47(2)(d). • Acquiring goods or services on the condition that the supplier will not supply goods or services to any person: s 47(4)(b). • Refusing to supply or refusing to acquire goods or services because the acquirer or supplier has not agreed to a product restraint: s 47(3)(d), (5)(b). • Supplying goods or services on the condition that the acquirer acquire goods or services from a third party: s 47(6). • Refusing to supply goods or services because the acquirer has refused to acquire goods or services from a third party: s 47(7). Customer restrictions • Supplying goods or services on the condition that the acquirer not resupply goods or services or will not resupply to particular persons or classes of persons: s 47(2)(e), (f)(i). • Acquiring goods or services on the condition that the supplier

will not supply goods or services to particular persons or classes of persons: s 47(4)(c). [page 485] •

Refusing to supply or refusing to acquire goods or services because the acquirer or supplier has not agreed to a customer restraint: s 47(3)(e), (f)(i), (5)(c).

Territorial restrictions • Supplying goods or services on the condition that the acquirer not resupply goods or services in particular places or classes of place: s 47(2)(f)(ii). • Acquiring goods or services on the condition that the supplier not supply goods or services in particular places or classes of place: s 47(4)(d). • Refusing to supply or refusing to acquire goods or services because the acquirer or supplier has not agreed to a territorial restraint: s 47(3)(f)(ii), (5)(d). Section 47 will also apply to the granting, renewing, terminating or refusal to grant or renew a lease or licence relating to land: s 47(8), (9). Section 47 does not apply to dealings between related bodies corporate: s 47(12). Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that s 47 apply to all forms of vertical conduct rather than specified types of vertical conduct. Additionally the provisions on third line forcing in s 47(6) and (7) should be subject to a competition test and not be per se unlawful. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amend ments. See also [10,690.5]. [10,785.15]

“corporation”

The expression is defined in s 4 to include a

foreign, trading or financial corporation. [10,785.20]

“trade or commerce”

See s 4(1) and [10,025.95].

[10,785.30] Supply and acquisition The expressions are defined in s 4. Section 4C also provides that a reference to supply or acquisition includes a reference to: • agreeing to supply or acquire goods or services • the supply or acquisition of goods or services together with other property or services or both. [10,785.31] Resupply Section 4C provides that the resupply of goods includes a reference to the supply of goods to another person in an altered form or condition or to their incorporation with other goods. The resupply of services includes the supply of the services in an altered form or to the supply of other services that could not have been supplied without the original services. [10,785.35] [10,025.85].

“goods and services”

See s 4(1), [10,025.60] and

[10,785.40] Goods of a particular kind or description An agreement not to sell goods for less than a particular price is not the imposition of a condition for the supply of goods “of a particular kind or description” under s 47(4): Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [972] per Goldberg J; (appeal) Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400. [10,785.45] Refusal to acquire goods or services Section 47(5) recognises that exclusive dealing may occur where a person refuses to acquire goods “at a particular price from a person”, though it does not provide that the proscribed reason include the reason that the body corporate has supplied goods at a particular price to a person. This supports the conclusion that s 47(5) does not apply to a situation where the refusal to acquire goods is that the supplier has supplied goods

[page 486] to another person for a particular price: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [982] per Goldberg J; (appeal) Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400 at [357] per Heerey and Sackville JJ. [10,785.50] “on the condition” Section 47(13) provides that a reference to a condition shall include: • any direct or indirect condition; • any condition whether or not it has legal or equitable force; and • any condition the existence or nature of which is ascertainable by inference only. This suggests that the expression “condition” is not to be construed in the narrow contractual sense. Also, direct evidence of the condition is not necessary and inferences can be drawn from the conduct of the parties: • Trade Practices Commission v Tepeda Pty Ltd (1994) ATPR ¶41-319 at 42,246; • see also Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636; [2003] FCAFC 193; BC200304691 at [235] per Wilcox, French and Gyles JJ. • See Australian Competition and Consumer Commission v Bill Express Ltd (2009) 259 ALR 483; [2009] FCA 1022; BC200908555 at [64]–[65] per Gordon J. • See Pampered Paws Connection Pty Ltd v Pets Paradise Franchising (Qld) Pty Ltd [2012] FCA 12 per Mansfield J; • Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. In Re Ku-ring-gai Co-op Building Society (No 12) Ltd (1978) 22 ALR 621 at 649; 36 FLR 134; (1978) ATPR ¶40-094 at 17,944 Deane J stated: The practice of exclusive dealing does not necessarily involve the imposition of any condition. It involves supply upon condition. The condition may well have been suggested by the recipient of the supply. It may have been imposed by some third party. It may arise, by implication, from all the

circumstances in which the goods or services were supplied . . . The section does not look at the origin of the condition upon which there is a supply of services. The section looks at the supply of services upon that condition.

Merely to promise a benefit if services are acquired from a third party is not conduct prohibited under this section: SWB Family Credit Union v Parramatta Tourist Services Pty Ltd (1980) 32 ALR 365; 48 FLR 445; (1980) ATPR ¶40-180. In this case Northrop J found that the condition, in order to be a breach of the exclusive dealing provisions, needed to have some element of compulsion and futurity that is “if we do this, you will (must) do that”. In Stationers Supply Pty Ltd v Victorian Authorised Newsagents Assn (1993) 44 FCR 35; (1993) ATPR ¶41-255 at 41,442 Ryan J said that there must be an element of compulsion, not necessarily one that is legally enforceable but one which goes beyond merely creating a hope or expectation in the person for whose benefit the condition has been attached. Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. In KAM Nominees Pty Ltd v Australian Guarantee Corp Ltd (1994) 123 ALR 711; (1994) ATPR ¶41-325 at 42,292 Drummond J reconciled the judgments of Smithers J and Northrop J in the SWB case, above; Pampered Paws Connection Pty Ltd v Pets Paradise Franchising (Qld) Pty Ltd [2012] FCA 12 at [227] per Mansfield J. It may be sufficient if the condition is imposed at the instigation of a third party (in the case of s 47(6)) — for example the third party from whom the forced goods must be purchased: Brisbane Broncos Leagues Club v Alleasing Finance Australia Pty Ltd [2011] FCA 106; BC201100501 at [69] per Jacobson J. [page 487] [10,785.53] supply “to a limited extent” The expression “will not or will not except to a limited extent” refers to a condition relating to the quantity of goods to be supplied. It does not refer to a circumstance where a supplier imposes a condition as to the price at which an acquirer will resell goods but imposes no limit on the quantity of goods that it is prepared to supply if that condition is accepted: Australian Competition and Consumer

Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400 at [359] per Heerey and Sackville JJ. [10,785.54] Directly or Indirectly The concept of an indirect acquisition is not limited to an acquisition only from an entity which is ina legal relationship of agency. The expression “indirectly” has the meaning it bears in ordinary speech — “coming or resulting otherwise than directly or immediately”: Australian Competition and Consumer Commission v Flight Centre Ltd (No 2) (2013) 307 ALR 209; [2013] FCA 1313; BC201315432 at [100] per Logan J. [10,785.55] “re-supply” The expression recognises that services are capable of being re-supplied either in their original form or in an altered form or condition. [10,785.56] “purpose” The actual purpose of the relevant respondent must be established: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636; [2003] FCAFC 193; BC200304691 at [255] per Wilcox, French and Gyles JJ. A finding of purpose is to be drawn from all of the circumstances on the balance of probabilities: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission, above, at [256] per Wilcox, French and Gyles JJ; see Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. [10,785.57] “likely effect” on competition The likely effect on competition is determined by assessing whether, at the date of the impugned conduct, it was likely, having regard to existing circumstances, that the conduct would effect a substantial lessening of competition in the market: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636; [2003] FCAFC 193; BC200304691 at [247] per Wilcox, French and Gyles JJ. See [10,700.45]. [10,785.60] Substantial lessening of competition Section 47(10) provides that the practices regulated by the section (with one exception) will breach the exclusive dealing prohibition only if they have the purpose or effect of substantially lessening competition in a market. The exception

relates to the practice of third line forcing under s 47(6), (7), (8)(c) and (9)(d). A lessening of competition includes preventing or hindering competition: s 4G. The word “substantial” is used in s 47 in a relative sense. It requires that the lessening be neither trivial nor minimal: • Cool and Sons Pty Ltd v O’Brien Glass Industries Ltd (1981) 35 ALR 445; (1981) ATPR ¶40-220; • Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) 75 ALR 581 at 591-2; (1987) ATPR ¶40-809; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [460] per Hill J; • (appeal) Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636; [2003] FCAFC 193; BC200304691 at [241] per Wilcox, French and Gyles JJ: • Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2008] FCAFC 141; BC200807118 at [191] per Mansfield J; • Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. [page 488] The expression “substantial” must be understood in the sense of being meaningful or relevant to the competitive process: Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2005) ATPR ¶42066; [2005] FCA 581; BC200504213 at [628] per Allsop J. Competition is a process and the effect upon competition is not to be equated with the effect upon competitors, although the latter may be relevant to the former: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission, above, at [235] per Wilcox, French and Gyles JJ. The competition contemplated by s 47(10) is competition in the relevant market considered as a whole, not competition with a particular market

participant. Whether the purpose of lessening competition with a particular market participant amounts also to the purpose of substantially lessening competition in the market must depend upon the facts of the particular case — a matter of importance being that participant’s market share: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission, above, at [265]–[266] per Wilcox, French and Gyles JJ. [10,785.61] Market Market is defined in s 4E. Section 47(13) requires that in assessing whether there has been a substantial lessening of competition consideration must be given to: • where the conduct relates to s 47(8) or (9), any market in which the corporation engaging in the conduct or any other corporation the business dealings of which are restricted, limited or otherwise circumscribed by the conduct (or a related body corporate) supplies or acquires goods or services or would but for the conduct; • in any other case, to any market in which the corporation engaging in the conduct (or a related body corporate) or any person whose business dealings are restricted, limited or otherwise circumscribed by the conduct (or a related body corporate) supplies or acquires goods or services or would but for conduct. [10,785.65] Third line forcing Third line forcing is regulated by s 47(6) and (7). Third line forcing occurs where a corporation supplies goods or services on the condition that the acquirer obtain other goods or services from another person. See: • Rieson v SST Consulting Services Pty Ltd (2005) ATPR ¶42-045; [2005] FCAFC 6; BC200500279 at [80] per Sackville J; • (appeal) SST Consulting Services Pty Ltd v Rieson (2006) 228 ALR 417; (2006) ATPR ¶42-118; [2006] HCA 31; BC200604254 per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; • Re Application by Michael Jools [2006] ACompT 5; BC200604784 at [6] per Finkelstein J, M Starrs and R Shogren; • Technology Leasing Ltd v Lennmar Pty Ltd [2012] FCA 709; BC201204911 per Cowdroy J.

Third line forcing is a per se offence and is prohibited irrespective of its impact on competition. The absence of a competition test was explained in the following way in Australian Competition and Consumer Commission v Link Solutions Pty Ltd (No 2) [2010] FCA 919; BC201006148 at [70] per Bennett J: [70] However, the fact a substantial lessening of competition test was not imported into s 47(6) does not positively support a construction of s 47(6) that includes conduct which is unlikely to affect competition at all. The fact that the competition test does not apply does not mean that the scope and effect of s 47(6) has nothing to do with competition. That subsection is part of s 47 and is in Pt IV of the Act which covers restrictive trade practices. Section 47(1) provides that subject to the section, a corporation shall not engage in exclusive dealing (emphasis added). Section 47(6) deals with an example of exclusive dealing, namely third line forcing. Third line forcing has been the subject of a per se prohibition since the enactment of s 47. The absence of a competition test may simply mean that a contravention of the section per se was considered sufficiently detrimental to competition, in most cases, such that it was felt unnecessary or inappropriate to require that it also be proved substantially to lessen [page 489] competition. As was said by Drummond J in Australian Competition and Consumer Commission v IMB Group Pty Ltd (in liq) [2002] FCA 402 at [56], the prohibition in s 47(6) can be justified if it is reserved for conduct that is so likely to damage competition that it is prohibited absolutely; it was justified on this basis by the Swanson Committee in its review of the Act in 1976. Justices Gummow, Hayne and Heydon observed in Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [82] that the practice of exclusive dealing within s 47(6) was seen by Parliament as so generally offensive to the competition goals underlying the Act that it is to be considered without application of any purpose or effect of substantially lessening competition in a market.

The Dawson Review highlighted the problems with the per se prohibition on third line forcing: potential benefits to competition, benefits for the consumer and the fact that many of the notifications to the commission are unopposed. See [10,690.5]. The government had proposed to cease the per se prohibition on third line forcing in favour of the general substantial lessening of competition test. However, lobbying by the opposition and minor parties in parliament in late 2005 prompted the government to abandon the amendment and revert to the current per se treatment of third line forcing when the Trade Practices Amendment Act (No 1) 2006 was passed. However, under the amendment Act dealings between related parties are not per se prohibited. Third line forcing is characterised by three parties (the supplier, acquirer and third party supplier) and two products/services (the original sale product

and the product supplied by the third party supplier). It is therefore essential to correctly characterise the subject matter of the supply as involving a package or as involving an arrangement between the offeror company and the offeree and a separate arrangement between the offeree and the third party: Australian Competition and Consumer Commission v IMB Group Pty Ltd (in liq) (2002) ATPR (Digest) ¶46-221; [2002] FCA 402; BC200202533 at [78] per Drummond J; Australian Competition and Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17; BC200300358 per Cooper, Kiefel and Emmett JJ. In particular, conduct will not constitute third line forcing where a single package of products or services is supplied, even though different, unrelated organisations produce the various products or services making up the package and even though there is no reason, apart from the lead supplier’s insistence on supplying only a bundled package, why the purchaser could not have made separate arrangements for acquisition of the different components of the package: • Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd (1985) 7 FCR 509; 64 ALR 536; (1986) ATPR ¶40-653. • See also Paul Dainty Corp Pty Ltd v National Tennis Centre Trust (1989) ATPR ¶40-951; • Australian Competition and Consumer Commission v IMB Group Pty Ltd (in liq), above, (2002) at [72] per Drummond J; • Australian Competition and Consumer Commission v IMB Group Pty Ltd, above, (2003), per Cooper, Kiefel and Emmett JJ; • Re Australian Association of Pathology Practices Inc [2004] ACompT 4; BC200401774 at [101] per Hely J, Mr G F Latta and Dr J E Walker; • Australian Automotive Repairers’ Association (Political Action Committee) Inc v Insurance Australia Ltd (No 6) [2004] FCA 700; BC200403169 at [102] per Lindgren J; • Technology Leasing Ltd v Lennmar Pty Ltd [2012] FCA 709; BC201204911 per Cowdroy J. There is, however, some judgement involved in characterising bundling arrangements of this kind, including whether there was some genuine commercial connection between the companies offering the bundle: see Australian Competition and Consumer Commission v Link Solutions Pty

Limited (No 2) [2010] FCA 919; BC201006148 at [90], [91] per Bennett J. However in Australian Competition and Consumer Commission v Bill Express Ltd (2009) 259 ALR 483; [2009] FCA 1022; BC200908555 at [65] Gordon J said that: [page 490] Of course, the ”condition’ need not be legally enforceable or direct (see s 47(13)(a)) and the imposition of the ”condition’ may, for example, be a conclusion the Court inferentially draws from ”the entire factual matrix’: Australian Competition & Consumer Commission v IMB Group Pty Ltd (ACN 050 411 946) (in liq) [2002] FCA 402 at [79]. It is therefore unsurprising that Courts have rejected the contention that infringement of s 47(6) of the TPA was determined by whether or not the supplier offered to enter into a single packaged contract with the purchaser or whether the arrangements involved the purchaser entering into separate contracts with the tying supplier and the tied supplier: IMB Group [2002] FCA 402 at [79], [84] and [95]; Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd [1986] HCA 72; (1986) 162 CLR 395 at 403; The Paul Dainty Corporation Pty Ltd v The National Tennis Centre Trust [1990] FCA 163; (1990) 22 FCR 495 at 515.

The sale of the original product must be conditional on the purchaser acquiring another product from another person. The person must be a specifically identified person: • SWB Family Credit Union v Parramatta Tourist Services Pty Ltd (1980) 32 ALR 365; 48 FLR 445; (1980) ATPR ¶40-180; • Trade Practices Commission v Tepeda Pty Ltd (1994) ATPR ¶41-319 per Davies J; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [459] per Hill J; • Australian Automotive Repairers’ Association (Political Action Committee) v Insurance Australia Ltd Inc (in liq) (2006) ATPR ¶42-111; [2006] FCAFC 33; BC200601490 per Emmett, Allsop and Graham JJ; • Australian Competition and Consumer Commission v Black & White Cabs Pty Ltd [2010] FCA 1399; BC201009585 per Finkelstein J. The term “another person” need not be limited to a single person and may extend to acquisition of goods or services from another person who (or which

is) part of a panel: Australian Competition and Consumer Commission v Link Solutions Pty Limited (No 2) [2010] FCA 919; BC201006148 at [80] per Bennett J. However, it does not extend to any other, unknown or unspecified, third party: Australian Competition and Consumer Commission v Link Solutions Pty Limited (No 2) [2010] FCA 919; BC201006148 at [80] per Bennett J. Although the condition need not be legally binding, it must have some elements of compulsion and futurity in the sense that “If we do this, you will (must) do that”: SWB Family Credit Union v Parramatta Tourist Services Pty Ltd, above. However, the requirement of compulsion was not accepted by Davies J in Trade Practices Commission v Tepeda Pty Ltd, above. Also: • KAM Nominees Pty Ltd v Australian Guarantee Corp Ltd (1994) 123 ALR 711; (1994) ATPR ¶41-325; • Australian Competition and Consumer Commission v Health Partners Inc (1998) ATPR ¶41-604; • Australian Competition and Consumer Commission v Link Solutions Pty Limited (No 2) [2010] FCA 919; BC201006148 at [86] per Bennett J. In Trade Practices Commission v Legion Cabs (Trading) Co-op Society Ltd (1978) 35 FLR 372 at 381; (1978) ATPR ¶40-092 Franki J said that the words “indirectly” in s 47(6) and (7) applies to an acquisition from an agent of the other supplier. In Australian Competition and Consumer Commission v IMB Group Pty Ltd (in liq), above, (2002) at [99] Drummond J did not consider that the term “indirectly” should be limited so that only acquisitions from an entity in the particular legal relationship of agent to the other supplier is covered. Drummond J said at [99] that it is clear from the definitions of “supply”, “services”, “acquire” (expanded further by s 4C) and from the terms of s 47(6)(c) and (7)(c) which extends to “giving” or “allowing” discounts, that these subsections are not confined in their operation to the provision of goods or services under legally binding contractual arrangements only. Drummond J also said at [100] that the term “indirectly” has the wide meaning it bears in ordinary speech — “coming or resulting otherwise than directly or immediately, as effects, consequences, etc”. [page 491]

Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that s 47 apply to all forms of vertical conduct rather than specified types of vertical conduct. Additionally, the provisions on third line forcing in s 47(6) and (7) should be subject to a competition test and not be per se unlawful. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amend ments. See also [10,690.5]. [10,785.66] Offence against a law A contravention of s 47 is an offence against a law within the meaning of the Corporations Act: Mathers v Commonwealth (2004) 134 FCR 135; 22 ACLC 624; [2004] FCA 217; BC200400908 at [29] per Heerey J. [10,785.67] Authorisation dealing. See s 88. [10,785.70] Notification commission: see s 93.

Authorisation is available for exclusive Exclusive dealing may be notified to the

[10,785.75] Case law Relevant case law is as follows: • Trade Practices Commission v Legion Cabs (Trading) Co-op Society Ltd (1978) 35 FLR 372; (1978) ATPR ¶40-092; • Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397; 26 ALR 185; • SWB Family Credit Union v Parramatta Tourist Services Pty Ltd (1980) 32 ALR 365; 48 FLR 445; (1980) ATPR ¶40-180; • Trade Practices Commission v Queensland Aggregates Pty Ltd (1981) 36 ALR 236; • Outboard Marine Australia Pty Ltd v Hecar Investments (No 6) Pty Ltd (1982) 66 FCR 120; 44 ALR 667; (1982) ATPR ¶40327; • Trade Practices Commission v Massey Ferguson (Aust) Ltd (1983) 67 FLR 364; (1983) ATPR ¶40-369;

• • • • • • • • •

•

•

•

Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd (1985) 7 FCR 509; 64 ALR 536; (1986) ATPR ¶40-653; Paul Dainty Corporation Pty Ltd v National Tennis Centre Trust (1989) ATPR ¶40-951; Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076; John S Hayes & Associates Pty Ltd v Kimberley-Clark Australia Pty Ltd (1994) ATPR ¶41-318; Trade Practices Commission v Tepeda Pty Ltd (1994) ATPR ¶41-319; KAM Nominees Pty Ltd v Australian Guarantee Corp Ltd (1994) 123 ALR 711; (1994) ATPR ¶41-325; Australian Competition and Consumer Commission v Health Partners Inc (1998) ATPR ¶41-604; Munday v Australian Capital Territory (1999) ATPR ¶41-680; Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR ¶41-752; [2000] FCA 38; BC200000054; (appeal) Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR ¶41-783; [2000] FCA 1381; BC200005818; Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2001) ATPR (Digest) ¶46-212; [2001] FCA 1056; BC200104487; (appeal) Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; (2002) ATPR ¶41-879; [2002] FCAFC 197; BC200203308; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852; (appeal) Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636; [2003] FCAFC 193; BC200304691 per Wilcox, French and Gyles JJ; Australian Competition and Consumer Commission v IMB Group Pty Ltd (in liq) (2002) ATPR (Digest) ¶46-221; [2002] FCA 402; BC200202533; [page 492]

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•

•

•

• •

[10,800]

Australian Competition and Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17; BC200300358 per Cooper, Kiefel and Emmett JJ; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230; (appeal) Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400 per Heerey and Sackville JJ; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2008] FCAFC 141; BC200807118 per Mansfield, Dowsett and Gyles JJ; Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J; Australian Competition and Consumer Commission (ACCC) v Visa Inc [2015] FCA 1020 per Wigney J; Australian Competition and Consumer Commission (ACCC) v Little Company of Mary Health Care Ltd [2015] FCA 1144; BC201510396 per Robertson J. ____________________

Resale price maintenance

48 A corporation or other person shall not engage in the practice of resale price maintenance. SECTION 48 GENERALLY [10,800.5] Overview The purpose of this provision is to prohibit the establishment of minimum resale prices for goods. In Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR ¶40-091 at 17,895 the court said: It is clearly the intention of the Parliament to lay down conditions for the conduct of corporate trade and commerce which will ensure that traders operate in competitive conditions and that the public has the benefits which will flow therefrom. So far as resale price maintenance is concerned the object of the Act is to create conditions in which the public will benefit from traders competing with each other in respect of prices unfettered by price restraints imposed by suppliers of goods upon

retailers.

The practices which constitute resale price maintenance are specified in s 96. See also Australian Competition and Consumer Commission v High Adventure Pty Ltd (2006) ATPR ¶42-091; [2005] FCAFC 247; BC200510345 at [7]–[8] per Heerey, Finkelstein and Allsop JJ. Section 48 only prohibits the setting of a minimum resale price. It does not prohibit the setting of a maximum resale price. Economists of the “Chicago School” suggest that resale price maintenance is not anti-competitive and should not be prohibited. See the discussion in Australian Competition and Consumer Commission v Jurlique International Pty Ltd [2007] FCA 79; BC200700396 at [60]–[74] per Spender J. However, under the Act, resale price maintenance is prohibited irrespective of its impact on competition in a market. Reform In its final report, Competition Policy Review, released in March 2015, the Harper Committee recommended that the per se prohibition for resale price maintenance be retained but that notification be available. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amend ments. See also [10,690.5]. [10,800.25] Aggregation of acts In Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR 544 at 556; 47 FLR 334; (1980) ATPR ¶40-169 at 42,337 the court said: [page 493] It is not entirely clear whether a single act which contravenes s 48, because it is conduct which falls within more than one category in s 96(3) . . . constitutes more than one contravention of s 48, but in any event I would regard such an act as being appropriately treated as a single contravention of s 48 for the purpose of fixation of a penalty.

Where there is an illegal resale price maintenance agreement, illegal conduct as a consequence of the agreement may be treated as arising from the

same course of conduct so that one pecuniary penalty for the entire dealing is sufficient: Trade Practices Commission v Orlane Australia Pty Ltd (1984) 1 FCR 157; 51 ALR 767; (1984) ATPR ¶40-437. [10,800.35] Authorisation maintenance: s 88.

Authorisation is available for resale price

[10,800.45] Application The following provides examples of the application of the resale price maintenance provision to particular industries. Distributors/retailers Cosmetics Trade Practices Commission v Orlane Australia Pty Ltd (1984) 1 FCR 157; 51 ALR 767; (1984) ATPR ¶40-437; Australian Competition and Consumer Commission v Dermalogica Pty Ltd (2005) 215 ALR 482; [2005] FCA 152; BC200500619 per Goldberg J; Australian Competition and Consumer Commission v Eternal Beauty Products Pty Ltd [2012] FCA 1124; BC201207941 per Murphy J. Heaters Trade Practices Commission v Heating Centre Pty Ltd (1985) 4 FCR 197; (1985) ATPR ¶40-516 upheld in part on appeal Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153; 65 ALR 429; (1986) ATPR ¶40-674. Household items Trade Practices Commission v Bamix Australia Pty Ltd (1985) ATPR ¶40-534; Australian Competition and Consumer Commission v IGC Dorel Pty Ltd [2010] FCA 1303; BC201008953 per Lander J. Petrol Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168; 55 ALR 527; (1984) ATPR ¶40-482 Trade Practices Commission v Mobil Oil Australia Ltd (1985) 4 FCR 296; (1985) ATPR ¶40-503; Trade Practices Commission v Golden Fleece Petroleum Pty Ltd (1985) ATPR ¶40528; Trade Practices Commission v BP Australia Ltd (1985) 7 FCR 499; 62 ALR 151; (1985) ATPR ¶40-638 upheld on appeal BP Australia Ltd v Trade Practices Commission (1986) 12 FCR 118; 66 ALR 148. Recreational watercraft Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd (2008) ATPR ¶42-225; [2008] FCA 402;

BC200802015 per Finn J. Ski equipment Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) 75 ALR 581; (1987) ATPR ¶40-809. Tyres Trade Practices Commission v Annand & Thompson Pty Ltd (1978) 19 ALR 730. Cigarettes Kadkhudayan v WD & HO Wills (Aust) Ltd (2001) ATPR ¶41822; [2001] FCA 645; BC200102786. Motor vehicle dealer Peter Williamson Pty Ltd v Capitol Motors Pty Ltd (1982) 41 ALR 613; 61 FLR 257; (1982) ATPR ¶40-291; Trade Practices Commission v Prestige Motors Pty Ltd (1994) ATPR ¶41-359. Bread Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230; (appeal) Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657; [2003] FCAFC 149; BC200303400. [page 494] Dealers Motor vehicles Ron Hodgson (Holdings) Ltd v Westco Motors (Distributors) Pty Ltd (1980) 29 ALR 307; (1980) ATPR ¶40-143; Trade Practices Commission v Kensington Hire Co Pty Ltd (1981) ATPR ¶40-256. Manufacturers Calculators Trade Practices Commission v Sharp Corp Australia Ltd (1975) 8 ALR 255; (1975) ATPR ¶40-010. Chain saws Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR ¶40-091.

Clothing Trade Practices Commission v Lois (Aust) Pty Ltd (1986) ATPR ¶40-645; Australian Competition and Consumer Commission (ACCC) v Skins Compression Garments Pty Ltd [2009] FCA 710; BC200905786 per Besanko J. Footwear Trade Practices Commission v Bata Shoe Co of Australia Pty Ltd (1980) 44 FLR 145; (1980) ATPR ¶40-161. Mattresses Trade Practices Commission v Madad Pty Ltd (1979) 40 FLR 453; (1979) ATPR ¶40-105. Sporting goods Trade Practices Commission v Dunlop Australia Ltd (1980) 43 FLR 434; 30 ALR 469; (1980) ATPR ¶40-167. Swimming pool chemicals Trade Practices Commission v ICI Australia Petrochemicals (1983) ATPR ¶40-364. Television receivers Pye Industries Sales Pty Ltd v Trade Practices Commission (1979) ATPR ¶40-124 upheld on appeal Trade Practices Commission v Pye Industries Pty Ltd (1978) ATPR ¶40-088. Whitegoods Trade Practices Commission v Malleys Ltd (1979) 25 ALR 250; (1979) ATPR ¶40-118; Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR 544; 47 FLR 334; (1980) ATPR ¶40-169; Hubbards Pty Ltd v Simpson Ltd (1982) 41 ALR 509; 60 FLR 430; (1982) ATPR ¶40-295; Parry’s Department Store (WA) Pty Ltd v Simpson Ltd (1983) 76 FLR 60; (1983) ATPR ¶40-393. Windscreens Cool and Sons Pty Ltd v O’Brien Glass Industries Ltd (1981) 35 ALR 445; (1981) ATPR ¶40-220. ____________________

[10,805] Dual listed company arrangements that affect competition (1) A corporation must not: (a) make a dual listed company arrangement if a provision of the

49

proposed arrangement has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or (b) give effect to a provision of a dual listed company arrangement if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition. Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(8B). [page 495] (2) Exception The making by a corporation of a dual listed company arrangement that contains a provision that has the purpose, or would have or be likely to have the effect, of substantially lessening competition does not contravene this section if: (a) the arrangement is subject to a condition that the provision will not come into force unless and until the corporation is granted an authorisation to give effect to the provision; and (b) the corporation applies for the grant of such an authorisation within 14 days after the arrangement is made. However, this subsection does not permit the corporation to give effect to such a provision. (3) Meaning of competition For the purposes of this section, competition, in relation to a provision of a dual listed company arrangement or of a proposed dual listed company arrangement, means competition in any market in which: (a) a corporation that is a party to the arrangement or would be a party to the proposed arrangement; or (b) any body corporate related to such a corporation; supplies or acquires, or is likely to supply or acquire, goods or services or would, apart from the provision, supply or acquire, or be likely to supply or acquire, goods or services. (4) For the purposes of the application of this section in relation to a particular corporation, a provision of a dual listed company arrangement or of a proposed dual listed company arrangement is taken to have, or to be

likely to have, the effect of substantially lessening competition if that provision and any one or more of the following provisions: (a) the other provisions of that arrangement or proposed arrangement; (b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the corporation or a body corporate related to the corporation is or would be a party; together have or are likely to have that effect. [s 49 insrt Act 131 of 2006 s 3 and Sch 6[7], opn 1 Jan 2007]

SECTION 49 GENERALLY

[10,805.5]

Overview

Price discrimination Prior to the passage of the Competition Policy Reform Act 1995, s 49(1) prohibited a corporation from discriminating between buyers of goods of like grade and quality in relation to: • the price of the goods; • any discounts, allowances, rebates or credits given or allowed in relation to the goods; • the provision of services in relation to the goods; or • the making of payments in relation to services, if the discrimination was of such magnitude, or such a recurring or systematic character, that it had or was likely to have the effect of substantially lessening competition in the market in which the goods were supplied. There were two exceptions — where the discrimination: • made only a reasonable allowance for differences in the cost of manufacture, distribution, sale or delivery resulting from the differing places to which, methods by which or quantities in which the goods were supplied; or [page 496] •

was constituted by the doing of an act in good faith to meet a price or benefit offered by a competitor.

The Competition Policy Reform Act 1995 repealed s 49 with effect from 17 August 1995. Despite its repeal, the practice of price discrimination may still be regulated by the other provisions in Pt IV. For example, charging discriminatory prices may constitute a contract or arrangement that substantially lessens competition under s 45. Extreme price discrimination may also amount to a misuse of market power under s 46. Also, discriminatory trading terms may be evidence of exclusive dealing under s 47. Following the passage of the Trade Practices Amendment Act (No 1) 2006, s 49 now houses provisions applying to dual listed companies. Dual listed companies Section 49 prohibits a corporation from making or giving effect to a dual listed company arrangement if it has the purpose or effect of substantially lessening competition. However, authorisation is available under s 88(8B). ____________________

[10,820] Prohibition of acquisitions that would result in a substantial lessening of competition *50

(1) A corporation must not directly or indirectly: (a) acquire shares in the capital of a body corporate; or (b) acquire any assets of a person; if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market. Note: The corporation will not be prevented from making the acquisition if the corporation is granted a clearance or an authorisation for the acquisition under Division 3 of Part VII: see subsections 95AC(2) and 95AT(2). [subs (1) subst Act 222 of 1992 s 6; am Act 131 of 2006 s 3 and Sch 1[10], opn 1 Jan 2007; Act 184 of 2011 s 3 and Sch 1[1], opn 6 Feb 2012]

(1AA) [subs (1AA) rep Act 222 of 1992 s 6] (1A) [subs (1A) rep Act 222 of 1992 s 6] (2) A person must not directly or indirectly: (a) acquire shares in the capital of a corporation; or

*Editor’s note: Section 21 of Act 222 of 1992 provides as follows: Application of the merger amendments 21 (1) Subject to this section, the merger amendments apply to any acquisition that happens after the commencement of this Act. (2) If at the commencement of this Act a proposed acquisition was the subject of any court proceedings under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to the following acquisitions as if the merger amendments had not been made: (a) the proposed acquisition (b) any acquisition of the same shares or assets by a body corporate that, at the commencement of this Act, was related (within the meaning of the Principal Act) to a body corporate that was a party to the court proceedings. (3) If, on November 1992, a proposed acquisition was the subject of an application for an authorisation under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to that acquisition as if the merger amendments had not been made. (4) In this section, “merger amendments” means the amendments made by section 2, 3, 6, 7, 12, 14, 15 and 17 of this Act.

[page 497] (b) acquire any assets of a corporation; if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market. Note: The person will not be prevented from making the acquisition if the person is granted a clearance or an authorisation for the acquisition under Division 3 of Part VII: see subsections 95AC(2) and 95AT(2). [subs (2) subst Act 222 of 1992 s 6; am Act 131 of 2006 s 3 and Sch 1[11], opn 1 Jan 2007; Act 184 of 2011 s 3 and Sch 1[1], opn 6 Feb 2012]

(2AA) [subs (2AA) rep Act 222 of 1992 s 6] (2A) [subs (2A) rep Act 222 of 1992 s 6] (2AB) [subs (2AB) rep Act 222 of 1992 s 6] (2B) [subs (2B) rep Act 222 of 1992 s 6] (2C) [subs (2C) rep Act 222 of 1992 s 6] (3) Without limiting the matters that may be taken into account for the purposes of subsections (1) and (2) in determining whether the acquisition would have the effect, or be likely to have the effect, of substantially

lessening competition in a market, the following matters must be taken into account: (a) the actual and potential level of import competition in the market; (b) the height of barriers to entry to the market; (c) the level of concentration in the market; (d) the degree of countervailing power in the market; (e) the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins; (f) the extent to which substitutes are available in the market or are likely to be available in the market; (g) the dynamic characteristics of the market, including growth, innovation and product differentiation; (h) the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor; (i) the nature and extent of vertical integration in the market. [subs (3) subst Act 222 of 1992 s 6]

(4) Where: (a) a person has entered into a contract to acquire shares in the capital of a body corporate or assets of a person; (b) the contract is subject to a condition that the provisions of the contract relating to the acquisition will not come into force unless and until the person has been granted a clearance or an authorization to acquire the shares or assets; and (c) the person applied for the grant of such a clearance or an authorization before the expiration of 14 days after the contract was entered into; the acquisition of the shares or assets shall not be regarded for the purposes of this Act as having taken place in pursuance of the contract before: (d) the application for the clearance or authorization is disposed of; or (e) the contract ceases to be subject to the condition; whichever first happens. [subs (4) am Act 222 of 1992 s 6; Act 131 of 2006 s 3 and Sch 1[12]–[14], opn 1 Jan 2007]

(5) For the purposes of subsection (4), an application for a clearance shall be taken to be disposed of:

[page 498] (a) in a case to which paragraph (b) of this subsection does not apply — at the expiration of 14 days after the period in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the clearance; or (b) if an application is made to the Tribunal for a review of the determination by the Commission of the application for the clearance — at the expiration of 14 days after the date of the making by the Tribunal of a determination on the review. [subs (5) am Act 131 of 2006 s 3 and Sch 1[15], [16], opn 1 Jan 2007]

(5A) For the purposes of subsection (4), an application for an authorisation is taken to be disposed of 14 days after the day the Tribunal makes a determination on the application. [subs (5A) insrt Act 131 of 2006 s 3 and Sch 1[17], opn 1 Jan 2007]

(6) In this section: market means a market for goods or services in: (a) Australia; or (b) a State; or (c) a Territory; or (d) a region of Australia. [def am Act 184 of 2011 s 3 and Sch 1[2], opn 6 Feb 2012] [subs (6) insrt Act 222 of 1992 s 6; am Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001]

SECTION 50 GENERALLY [10,820.5] Overview The provision prohibits the acquisition of shares or assets if it would have the effect, or be likely to have the effect, of substantially lessening competition in any market. The “substantial lessening of competition” test came into effect on 21 January 1993 following the recommendations of the Cooney Committee. Prior to 21 January 1993, s 50 prohibited the aquisition of shares or asssests only where the acquirer would be in a position to dominate a market for goods or services. For a discussion of the history of the provision see

Australian Gas Light Co v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317; (2003) ATPR ¶41-966; [2003] FCA 1525; BC200307919 at [320]–[336] per French J. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended a number of process improvements to s 50 including combining the formal merger clearance process and the merger authorisation process. See [10,690.5]. [10,820.15] corporation The expression is defined in s 4(1) to include a foreign, trading or financial corporation. [10,820.20] “acquire directly or indirectly” In Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305; 92 ALR 395; (1990) ATPR ¶41-001, Lockhart J said that a “direct” acquisition was an acquisition by the company itself and an indirect acquisition was an acquisition made on behalf of the company by a third party acting as an agent, trustee or nominee. In Australia Meat Holdings Pty Ltd v Trade Practices Commission (1989) ATPR ¶40-932 at 50,093 Davies J said that the words “acquire, directly or indirectly” should be read as encompassing all forms of acquisition and may encompass the situation where assets are acquired in an indirect way, as through the interposition of a wholly-owned subsidiary. In Trade Practices Commission v Gillette Co (No 1) (1993) 45 FCR 366; 118 ALR 280; (1993) ATPR ¶41-267 at 41,063, Burchett J preferred the views expressed in the Australia Meat Holdings case for otherwise the words “directly or indirectly” would have little utility. [page 499] In Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657; (1990) ATPR ¶41-002; (1990) ATPR ¶41-062 it was held that the creation of an option over shares resulted in an equitable interest in those shares and was, therefore, an acquisition for the purposes of s 50. In Australian Gas Light Co v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317; (2003) ATPR ¶41-966 at [338]

French J said that a corporation which enters into a contract to purchase the shares of a body corporate may acquire an equitable interest prior to settlement and thereby acquire the shares under s 4(4). However this will not necessarily attract the prohibition in s 50. Where a contract to purchase shares is subject to a condition precedent, no interest is conveyed until satisfaction of the condition. It conveys no direct beneficial interest in the shares. A direct beneficial interest is acquired only when the contract becomes specifically enforceable by an order to convey or transfer: Australian Gas Light Co v Australian Competition and Consumer Commission (No 3), above, at [339] per French J. [10,820.23] “effect” The section does not require the acquisition to have the purpose of substantially lessening competition in a market. It is sufficient for the purposes of the legislation that the acquisition simply have that effect or likely effect. [10,820.25] “likely to” The expression “likely” refers to a significant finite probability or “a real chance” rather than “more probable than not”: Australian Gas Light Co v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317; (2003) ATPR ¶41-966 at [343] per French J; Australian Competition and Consumer Commission (ACCC) v Metcash Trading Ltd [2011] FCA 967; BC201106415 at [135] per Emmett J. See also [10,700.45]. [10,820.27] “substantial” The word “substantial” requires that the acquisition be meaningful or relevant to the competitive process: Australian Gas Light Co v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317; (2003) ATPR ¶41-966 at [351] per French J, referring to Rural Press Ltd v Australian Competition and Consumer Commission (2003) 203 ALR 217; 78 ALJR 274; [2003] HCA 75; BC200307578. In determining whether the acquisition is likely to have the effect of substantially lessening competition, the court will give little weight to shortterm effects readily corrected by market processes: Australian Gas Light Co v Australian Competition and Consumer Commission (No 3), above, at [351] per French J, referring to Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636; [2003] FCAFC 193; BC200304691 at [242].

See also [10,700.50]. [10,820.29] “lessening” of competition and the counterfactual analysis In determining whether it could be said that there is likely to be a substantial lessening of competition in a market, it is necessary to consider the future state of the relevant market with and without the proposed acquisition. This approach is often referred to as the counterfactual analysis. A counterfactual is a scenario that will come to pass in the future without the proposed acquisition: • Australian Gas Light Co v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317; (2003) ATPR ¶41-966 at [352] per French J, referring to • Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173; 64 FLR 238 at 259; (1982) ATPR ¶40-315; • Outboard Marine Australia Pty Ltd v Hecar Investments (No 6) Pty Ltd (1982) 66 FCR 120; 44 ALR 667 at 669-70; (1982) ATPR ¶40-327; • Australian Competition and Consumer Commission (ACCC) v Metcash Trading Ltd [2011] FCA 967; BC201106415 at [130] per Emmett J. [page 500] The Commission must satisfy the court that its counterfactual is more probable than any competing hypothesis advanced to suggest that there is no real chance of competition being substantially lessened as a result of the acquisition: Australian Competition and Consumer Commission (ACCC) v Metcash Trading Ltd [2011] FCA 967; BC201106415 at [145] per Emmett J. See also [10,700.55]. [10,820.35]

Competition

See [10,025.25].

[10,820.40] “market” Prior to the commencement of the Competition and Consumer Legislation Amendment Act 2011 on 1 January 2012, s 50(6) required that the relevant market must be a substantial market for goods or services in Australia, a state or territory or a region of Australia. It does not

however exclude the operation of the definition of market in s 4E: Australian Gas Light Co v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317; (2003) ATPR ¶41-966 at [353] per French J. The definition of “market” in s 50(6) was amended by the Trade Practices Amendment Act (No 1) 2001 to include a substantial market in a region of Australia. Prior to the amendment s 50(6) applied only to a substantial market for goods and services in Australia or in a State or Territory of Australia. The amendment was recommended by the Joint Select Committee on the Retailing Sector, in its report, Fair Market or Market Failure?, August 1999 (the Baird Report). Section 50(6) was introduced to remove de minimis matters from examination under s 50. In Australian Gas Light Co v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317; (2003) ATPR ¶41966 at [353] French J said that it does not seem likely that the relativity implied by the term “substantial” in s 50(6) relates to the size of other markets in whichever of the geographical areas mentioned in the definition the market is to be found, for there is no lower bound on the size of a “region in Australia”. He said that having regard to s 4E the substantiality of the market in question, even if it be geographically limited to a state or territory or a region, is to be judged by reference to Australia as a whole. The requirement for a “substantial” market was removed by the Competition and Consumer Legislation Amendment Act 2011. [10,820.50] Vesting of primary products Section 173(1) exempts from the operation of s 50, the vesting of primary product in a person by legislation. See [14,335.5]. [10,820.55] Merger factors Section 50(3) provides a not exhaustive list of matters that must be taken into account in determining whether there has been a substantial lessening of competition in a market. The inclusion of these matters suggests that s 50(3) recognises the importance of market structure in assessing whether a merger substantially lessens competition. These features of market structure were first discussed by the tribunal in Re Queensland Co-op Milling Assn Ltd (1976) 8 ALR 481; 25 FLR 169; (1976) ATPR ¶40-012 and have been given statutory recognition in s 50(3). The commission considers these and other factors in its assessment of a

merger. See [10,820.60]. [10,820.58] Pre-merger notification There is no compulsory prenotification requirement in Australia. However, the commission encourages voluntary notification in specified circumstances. See [10,820.60]. The informal notification process operates in conjunction with a formal clearance procedure. See [10,820.63], [10,820.65]. [10,820.60] Commission’s Merger Guidelines In February 2008 the commission released its draft Merger Guidelines 2008, replacing the Merger Guidelines 1999 and Merger Guidelines 1996. Following a period of public consultation, the commission released the final version of its Merger Guidelines 2008. A number of changes were made to the draft guidelines released in [page 501] February 2008. Principal among them is the change to the notification threshold introduced to filter the merger reviews the commission conducts. Like previous guidelines, Merger Guidelines 2008 have no legal force. However, they are a very useful guide to the application of s 50 and the commission’s approach to its enforcement. Merger Guidelines 2008 reflect the commission’s experience with mergers and international best practice. It is not a new approach by the commission — the competition test in s 50 is unchanged and the analysis of the market and merger factors remains an important feature of the commission’s assessment. Merger Guidelines 2008 place greater emphasis on theories of competitive harm. It draws on the work of the International Competition Network and the European Commission, including the Guidelines on the Assessment of NonHorizontal Mergers under the Council Regulations on the Control of Concentrations between Undertakings, November 2007. Merger Guidelines 2008 discusses three types of mergers — horizontal mergers, vertical mergers and conglomerate mergers. Voluntary merger notification — notification thresholds Merger Guidelines 1999 established “safe harbour” concentration thresholds below

which the commission considered it unlikely that a merger would give rise to a substantial lessening of competition. These safe harbours were abandoned in Merger Guidelines 2008 in favour of specified notification thresholds. Merging parties are now encouraged to notify the commission where both of the following apply: • Substitutes: The products of the merger parties are either substitutes or compliments. • 20 per cent market share: The merged firm will have a postmerger market share of greater than 20 per cent in the relevant market/s. If merger parties believe their merger proposal will meet this threshold, they are encouraged to approach the commission on a confidential and informal basis as soon as there is a real likelihood that a proposed acquisition may proceed. Mergers that fall outside the notification thresholds will rarely require investigation by the commission. However, the notification threshold is indicative only. The commission may investigate a merger not notified to it even if the merger does not meet these notification thresholds. Merger factors In Merger Guidelines 2008 the commission considers the factors in s 50(3) in the following order, though this does not reflect the priority or importance of any particular factor: (a) Concentration and market shares: s 50(3)(c) Market concentration refers to the number and size of participants in the market. Market concentration can help to determine whether a merger is likely to result in unilateral or coordinated effects. The commission measures concentration with reference to market shares, concentration ratios and the Herfindahl-Hirschman Index (HHI). The commission will generally calculate market shares according to: • Sales by volume (for each competitor) in at least three recent annual periods. • Sales by value (for each competitor) in those periods. • Capacity (for each competitor) over the previous 3 years. In assessing market concentration, the commission takes into account the

pre- and post-merger shares of the merged firm and its rivals and the actual level of increase in concentration, as well as the level of symmetry between rival firms’ market shares. It uses concentration metrics such as the HHI and the x-firm concentration ratio. The absolute level of the HHI indicates the level of concentration postmerger while the change in the HHI (or “delta”) reflects the change in the concentration as a result of the merger. [page 502] Following a process of public consultation, in its final Merger Guidelines 2008, released in November 2008, the commission provided further guidance on the its use of the HHI and deltas. The commission has indicated that it will be less likely to identify horizontal competition concerns where post merger: • the HHI is less than 2000; or • the HHI is greater than 2000 with a delta less than 100. The HHI threshold is not interchangeable with, or a substitute for, the notification threshold. Mergers that meet the notification threshold should be notified to the commission regardless of the specific HHI or delta. (b) Height of barriers to entry: s 50(3)(b) The entry of new firms can impose a competitive discipline on existing firms in the market. In some markets barriers to entry prevent new firms from entering the market. A barrier to entry is any factor that prevents or hinders effective new entry and enables the exercise of increased market power post-merger. In assessing the potential for entry to act as a competitive constraint, the commission considers the costs of entry and incumbency advantages as follows: • Legal or regulatory barriers: For example, licensing conditions or intellectual property rights. • Structural or technological barriers: For example, sunk cost, economies of scale, switching costs and access to distribution channels. • Strategic barriers: For example, risk of retaliatory action, creation and maintenance of excess capacity and brand

proliferation. (c) Actual and potential import competition: s 50(3)(a) Actual or potential direct competition from imported goods or services can provide an important competitive discipline on domestic firms. Where the commission can be satisfied that import competition — or the potential for import competition — provides an effective constraint on domestic suppliers, it is unlikely that a merger would result in a substantial lessening of competition. Imports are most likely to provide an effective and direct competitive constraint in circumstances where all of the following conditions are met: • Independent imports represent at least 10 per cent of total sales in each of the previous 3 years. • There are no barriers to the quantity of independent imports rapidly increasing in the future that would prevent suppliers of the imported product from competing effectively against the merged firm post-merger. • The actual or potential imported product is a strong substitute in all respects for the relevant product of the merged firm. • The price of actual or potential landed imports, including any tariffs or other import specific taxes and charges — that is, the import parity price — is close to the domestic price of the relevant product that would prevail in the absence of the merger. • Importers are able to readily increase the supply of the product they import with small or no increase in the price paid. • The merged firm and other major domestic suppliers do not have a direct interest in, are not controlled by and do not otherwise interact with actual or potential import suppliers. (d) Availability of substitutes: s 50(3)(f) The commission’s analysis also considers the relative degree of substitution or rivalry between alternative suppliers of products in the relevant market and the merged firm. The commission considers the extent of product differentiation and assesses whether the merger parties differ from rivals in terms of: • product features and function; • customer loyalty; • production capacity; • breadth of production line and level of specialisation;

•

distribution channel coverage; [page 503]

• • •

geographic presence; cost structures; the level of vertical integration.

(e) Countervailing power: s 50(3)(d) The commission will also consider whether one or more buyers would have sufficient countervailing power to constrain any attempted increase in market power by a supplier. The size and commercial significance of customers (or buyer power) is not sufficient to constitute countervailing power. In assessing whether countervailing power is likely to prevent a substantial lessening of competition by constraining any attempt by the merged form to increase market power, the commission will consider: • Whether the threat to bypass is credible on commercial grounds. Such evidence will include the size of the buyer’s purchases and the efficient scale of production of the product. • Whether the buyer is likely to bypass the supplier. Evidence of this may include plans or other documents suggesting such a strategy is commercial. • The proportion of the downstream market able to wield a credible threat. f) Dynamic characteristics of the market: s 50(3)(g) The commission will take into account the changing nature of the market. Dynamic changes may result from a range of factors including market growth, innovation, product differentiation and technological changes. (g) Removal of a vigorous and effective competitor: s 50(3)(h) A merger that removes a vigorous and effective competitor may remove one of the most effective competitive constraints on market participants and thereby result in a substantial lessening of competition. (h) Vertical integration: s 50(3)(i) The nature and extent of vertical

relationships between firms in separate areas of activity along a vertical supply chain can affect the competitive implications of consolidation in any one of those markets. The matters the commission is likely to consider include: • Whether the transaction is likely to result in vertical integration between firms involved in different functional levels of the relevant market. • Whether the proposed transaction is likely to increase the risk of limiting the supply of inputs or access to distribution such that downstream or upstream rivals face higher costs post-acquisition or full or partial foreclosure of key inputs or distribution channels • The extent of existing vertical integration. (i) Ability to increase prices or profit margins: s 50(3)(e) A merged firm’s ability to significantly and sustainably increase prices or profits may indicate a substantial lessening of competition. To determine the extent to which merger parties may be able to increase prices or profit margins, the commission will consider: • Details of recent and current levels of pricing, including discounts and rebates. • Details of supply costs of goods or services. • A description of any competitive constraints likely to prevent the merger parties from significantly and sustainably increasing the prices paid by their customers, or lower the prices paid to their suppliers post-acquisition. • A description of the likely effect of the acquisition on the profit margins of the merger parties post-acquisition and the expected cause of any change. [10,820.63] Formal merger review (clearance) The Act does not require merging parties to notify the commission of a proposed merger. However, a process for formal merger clearance was introduced by the Trade Practices Amendment Act (No 1) 2006 following the recommendations of the Dawson Committee. See [11,913AC.5]. It operates in conjunction with the commission’s informal merger review. See [10,820.65].

[page 504] [10,820.65] Informal merger review Prior to the introduction the formal merger clearance process [11,913AC.5], merging parties typically approached the commission on an informal, confidential basis. The informal process has no statutory basis and provides no statutory immunity. Nor does informal clearance prevent proceeding by third parties. The informal merger process now operates in conjunction with the formal merger clearance process. In September 2004 the commission published the Guideline for Informal Merger Review to provide greater transparency and accountability to its informal merger review process. In December 2005 the commission issued draft Merger Review Process Guidelines for public consultation. It subsequently published its Merger Review Process Guidelines in July 2006. Following further stakeholder consultation in September 2013 the Commission released Informal Merger Review Process Guidelines 2013. The 2013 Guidelines continue to reflect the recommended practices developed by the International Competition Network (ICN), particularly as to timely, consistent and transparent assessment of mergers. The 2013 Guidelines also reflect changes in the Commission’s approach, including: • The pre-assessment process the Commission has developed for dealing quickly with the large number of non-contentious mergers notified to it. • The process by which merger parties are provided with feedback on issues and concerns raised by the market during a public merger review. • A clarified approach to releasing Public Competition Assessments, which are the published summaries of the ACCC’s reasons for its decisions in complex or contentious merger matters. An informal approach may assist the parties in determining whether authorisation should be pursued under Pt VII. However, any comfort provided to the parties will not be binding on the Commission. See Trade Practices Commission v Santos Ltd (1992) 38 FCR 382; 110 ALR 517; (1992) ATPR ¶41-195.

The Informal Merger Review Process Guidelines are reproduced at [18,342]. [10,820.72] Media mergers In March 2006 the Australian Government released a discussion paper on media reform options entitled, Meeting the Digital Challenge: Reforming Australia’s Media in the Digital Age. In July 2006 it announced a package of media reforms. Legislation was introduced in September 2006 and was considered by the Senate committee. On 18 October 2006, the Australian Parliament passed three pieces of legislation to give effect to the foreshadowed reforms: • Broadcasting Services Amendment (Media Ownership) Act 2006 • Broadcasting Legislation Amendment (Digital Television) Act 2006 • Communications Legislation Amendment (Enforcement Powers) Act 2006 The legislative package includes the following reforms: • Relaxation of the cross media ownership restrictions (applying to the ownership of newspapers, television and radio licences within a licensed area), subject to safeguards on the number of independent media groups in metropolitan markets and regional markets. • Removal of the restrictions on the foreign ownership of free to air and subscription television licences. • The incorporation of a “use it or lose it” provision in the antisiphoning law. • An extension of the powers of the Australian Communications and Media Authority. Media mergers remain subject to the general merger provision in s 50. [10,820.72A] Media merger guidelines In August 2006 the commission released Media Merger Guidelines — a guide to the industry and the public as to how cross media proposals might be assessed by the commission. The guidelines: [page 505]

• •

Examine technological advances in the media sector. Provide a framework for analysing media markets and its application to media mergers. • Outline the factors to be considered in assessing the impact on competition of media mergers. In response to changes in the industry and anticipated further media reforms, in September 2016 the Commission published a draft of its proposed new Media Merger Guidelines for public comment. [10,820.74] Declarations In Australian Gas Light Co v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317; (2003) ATPR ¶41-966 the court considered for the first time an application for declaration that a proposed acquisition would not contravene s 50. As a preliminary issue the court found that it had jurisdiction to hear and determine the application: Australian Gas Light Co v Australian Competition and Consumer Commission (No 2) (2003) ATPR ¶41-962; [2003] FCA 1229; BC200306410. The applicant for a declaration must establish on the balance of probabilities what it seeks to have declared. It will succeed if it establishes, on the balance of probability, that each of the relevant acquisitions would not be likely to have the effect of substantially lessening competition in the relevant markets: Australian Gas Light Co v Australian Competition and Consumer Commission (No 3), above, at [355] per French J. In Australian Gas Light Co v Australian Competition and Consumer Commission (No 3), above, at [601] the commission claimed that AGL was seeking illegitimate forensic and juridical advantages in a declaration. The commission argued that the juridical advantage conferred on the commission under s 81(2) was said to be removed by the procedure. It also argued that the authorisation procedure provided a more appropriate means for AGL to achieve the certainty which it sought. French J said at [608] that the availability of authorisation affords no discretionary bar to the right of a corporation to claim a declaration with respect to a proposed acquisition. French J also said at [611] that there is no illegitimate forensic or juridical advantage accruing to AGL by bringing the proceedings. The declaration was granted. [10,820.75]

Extra-territorial operation

Section 50 has an extra-

territorial operation only to the extent provided provided in s 5. Section 50 will therefore apply to conduct occurring outside Australia to the extent that the corporation which is subject to the prohibition in s 50 is either incorporated or carrying on business in Australia: Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305; 92 ALR 395; (1990) ATPR ¶41-001 at 51,034–5. [10,820.76] Merger authorisations Authorisation is available for mergers. In response to the recommendations of the Dawson Committee, the Trade Practices Amendment Act (No 1) 2006 introduced a process for merger authorisations to be considered by the tribunal rather than the commission. See [10,690.5]. [10,820.80] Case law The following cases are relevant to this section: • Trade Practices Commission v Ansett Transport Industries (Operations) Pty Ltd (1978) 20 ALR 31; (1978) ATPR ¶40-071; • Trade Practices Commission v Australia Meat Holdings Pty Ltd (1988) 83 ALR 299; (1988) ATPR ¶40-876; • Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305; 92 ALR 395; (1990) ATPR ¶41-001; • Trade Practices Commission v Arnotts Biscuits Ltd (1989) ATPR ¶40-979; • Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657; (1990) ATPR ¶41-002; (1990) ATPR ¶41-062; • Trade Practices Commission v BTR Nylex Ltd (1991) ATPR ¶41075; • QIW Retailers Ltd v Davids Holdings Pty Ltd (No 3) (1993) 42 FCR 255; 114 ALR 579; (1993) ATPR ¶41-226; [page 506] •

•

Austereo Ltd v Trade Practices Commission (1993) 115 ALR 14; (appeal) Davids Holdings Pty Ltd v A-G (Cth) (1994) 49 FCR 211; 121 ALR 241; (1994) ATPR ¶41-304; Re Queensland Independent Wholesalers Ltd (1995) 132 ALR 225; (1995) ATPR ¶41-438;

•

•

[10,825]

Australian Gas Light Co v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317; (2003) ATPR ¶41-966 per French J. Australian Competition and Consumer Commission (ACCC) v Metcash Trading Ltd [2011] FCA 967; BC201106415 per Emmett J. ____________________

Acquisitions that occur outside Australia

*50A

(1) Where a person acquires, outside Australia, otherwise than by reason of the application of paragraph (8)(b), a controlling interest (the first controlling interest) in any body corporate and, by reason, but not necessarily by reason only, of the application of paragraph (8)(b) in relation to the first controlling interest, obtains a controlling interest (the second controlling interest) in a corporation or each of 2 or more corporations, the Tribunal may, on the application of the Minister, the Commission or any other person, if the Tribunal is satisfied that: (a) the person’s obtaining the second controlling interest would have the effect, or be likely to have the effect, of substantially lessening competition in a market; and (b) the person’s obtaining the second controlling interest would not, in all the circumstances, result, or be likely to result, in such a benefit to the public that the obtaining should be disregarded for the purposes of this section; make a declaration accordingly. [subs (1) am Act 22 of 1992 s 3 and Sch; Act 222 of 1992 s 7]

(1A) Without limiting the matters that may be taken into account in determining whether the obtaining of the second controlling interest would have the effect, or be likely to have the effect, of substantially lessening competition in a market, the matters mentioned in subsection 50(3) must be taken into account for that purpose. [subs (1A) insrt Act 222 of 1992 s 7]

*Editor’s note: Section 21 of Act 222 of 1992 provides as follows:

Application of the merger amendments 21 (1) Subject to this section, the merger amendments apply to any acquisition that happens after the commencement of this Act. (2) If at the commencement of this Act a proposed acquisition was the subject of any court proceedings under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to the following acquisitions as if the merger amendments had not been made: (a) the proposed acquisition; (b) any acquisition of the same shares or assets by a body corporate that, at the commencement of this Act, was related (within the meaning of the Principal Act) to a body corporate that was a party to the court proceedings. (3) If, on 4 November 1992, a proposed acquisition was the subject of an application for an authorisation under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to that acquisition as if the merger amendments had not been made. (4) In this section, merger amendments means the amendments made by sections 2, 3, 6, 7, 12, 14, 15 and 17 of this Act.

[page 507] (1B) In determining whether the obtaining of the second controlling interest would result, or be likely to result, in such a benefit to the public that it should be disregarded for the purposes of this section: (a) the Tribunal must regard the following as benefits to the public (in addition to any other benefits to the public that may exist apart from this paragraph): (i) a significant increase in the real value of exports; (ii) a significant substitution of domestic products for imported goods; and (b) without limiting the matters that may be taken into account, the Tribunal must take into account all other relevant matters that relate to the international competitiveness of any Australian industry. [subs (1B) insrt Act 222 of 1992 s 7]

(2) Where an application under subsection (1) is made: (a) the Tribunal shall give to: (i) each corporation in relation to which the application relates; and

(ii) the Minister and the Commission; a notice in writing stating that the application has been made; and (b) the persons referred to in paragraph (a) and, if the application was made by another person, that other person are entitled to appear, or be represented, at the proceedings following the application. (3) An application under subsection (1) may be made at any time within 12 months after the date of the acquisition referred to in that subsection in relation to which the application is made. (4) The Tribunal may, on the application of the Minister, the Commission or any other person, or of its own motion, revoke a declaration made under subsection (1). (5) The Tribunal shall state in writing its reasons for making, refusing to make or revoking a declaration under subsection (1). (6) After the end of 6 months after a declaration is made under subsection (1) in relation to the obtaining of a controlling interest in a corporation or 2 or more corporations by a person or, if the person, before the end of that period of 6 months, makes an application to a presidential member for an extension of that period, after the end of such further period (not exceeding 6 months) as the presidential member allows, the corporation or each of the corporations, as the case may be, shall not, while the declaration remains in force, carry on business in the market to which the declaration relates. (7) Subsection (1) does not apply in relation to an acquisition referred to in that subsection if section 50 applies in relation to that acquisition. [subs (7) am Act 222 of 1992 s 7]

(8) For the purposes of this section: (a) a person shall be taken to hold a controlling interest in a body corporate if the body corporate is, or, if the person were a body corporate, would be, a subsidiary of the person (otherwise than by reason of the application of paragraph 4A(1)(b)); and (b) where a person holds a controlling interest (including a controlling interest held by virtue of another application or other applications of this paragraph) in a body corporate and that body corporate: [page 508]

(i)

controls the composition of the board of directors of another body corporate; (ii) is in a position to cast, or control the casting of, any votes that might be cast at a general meeting of another body corporate; or (iii) holds shares in the capital of another body corporate; the person shall be deemed (but not to the exclusion of any other person) to control the composition of that board, to be in a position to cast, or control the casting of, those votes or to hold those shares, as the case may be. (9) In this section: market means a substantial market for goods or services in Australia, in a State or in a Territory. [subs (9) insrt Act 222 of 1992 s 7]

SECTION 50A GENERALLY [10,825.5] Overview This section provides a mechanism whereby mergers which take place outside Australia and are, therefore, not subject to the prohibition in s 50, but which have an effect on competition in an Australian market, can be regulated under the Act. It was enacted to apply to the situation where there is an overseas merger of foreign bodies corporate which have subsidiaries in Australia and which would thus substantially lessen competition in an Australian market. In determining whether the acquisition will have the effect or likely effect of substantially lessening competition in a market consideration must be given to the factors outlined in s 50(3): see [10,820.55]. [10,825.10] Making of a declaration Section 50A(1) provides that, on the application of the minister, the commission or any other person, where: • a person acquires outside Australia a controlling interest in any body corporate, otherwise than by reason that the person holds a controlling interest in a body corporate which has a controlling interest in the first body corporate; and • by reason of the acquisition, the person obtains a controlling interest in another corporation (which will in practicality be an

Australian corporation); and • the result of this is that there is an effect or likely effect of a substantial lessening of competition in the market or the acquisition would not result in a benefit to the public such that it should be disregarded for the purposes of this section, then the tribunal may make a declaration to this effect. [10,825.15] Notice Section 50A(2) requires that the tribunal give notice to all relevant persons when it receives an application for such a declaration to be made. [10,825.20] Time limitation for making application Section 50A(3) requires that an application must be made within 12 months of the offending acquisition. [10,825.23] Revocation of declaration Section 50A(4) and (5) allow the tribunal to revoke a declaration providing it states its reasons for so doing in writing. [10,825.25] Effect of declaration Section 50A(6) provides that following the expiration of a 6-month period from the date of making the declaration, unless it has been revoked, the corporation which is the subject of the declaration shall not be allowed to carry on business in the market to which the declaration applies. [page 509] The initial period of 6 months may be extended upon application for extension of time being lodged within the initial period. Any extension of time will be for a period not exceeding a further 6 months. [10,825.30] Controlling interest Section 50A(8) provides that a person will be taken to have a “controlling interest” in a body corporate where: (1) the body corporate is a subsidiary of that person, or would be if the person was a body corporate and (2) the person holds a controlling interest in another body corporate

which: (a) controls the composition of the board of directors of the first body corporate; (b) is in a position to cast or control the casting of any of the votes at a general meeting of the first body corporate; or (c) holds shares in the capital of the first body corporate. [10,825.35]

[10,830]

Authorisation Authorisation is available: see s 88. ____________________

Exceptions

*51

(1) In deciding whether a person has contravened this Part, the following must be disregarded: (a) anything specified in, and specifically authorised by: (i) an Act (not including an Act relating to patents, trade marks, designs or copyrights); or (ii) regulations made under such an Act; *Editor’s note: Sections 33 and 34 of the Competition Policy Reform Act 1995 No 88 provide as follows: Transitional rule for changes to section 51 exceptions 33 (1) This section applies (in addition to subsection 51(1) of the Principal Act) to conduct taking place before the end of 3 years after the date on which this Act received the Royal Assent. (2) In deciding whether a person has contravened Part IV of the Principal Act, a particular thing is to be disregarded if both the following conditions are met: (a) the thing would have been disregarded if the amendments made by section 15 had not been made; and (b) the thing would also have been disregarded if it had happened immediately before the commencement of this section. Existing contracts not affected by amendments 34 (1) Subsections (2) and (3) apply in deciding whether a person has contravened Part IV of the Principal Act at any time after the commencement of the amendments made by Division 1 of this Part. (2) Existing contracts, and things done to give effect to existing contracts, are to be disregarded to the same extent that they would have been disregarded if the amendments made by Division 1 of this Part (other than section 15) had not been made. (3) If an existing contract is varied on or after the cut-off date, then the things done to give effect to the varied contract are not to be disregarded under subsection (2) unless they would

have been disregarded under the contract as in force immediately before the cut-off date. (4) The amendments made by Division 1 of this Part (other than section 15) do not make unenforceable a provision of an existing contract that was not unenforceable immediately before the commencement of those amendments. (5) In this section: cut-off date means 19 August 1994; existing contract means a contract that was made before the cut-off date. The Competition Policy Reform Act 1995 was assented to on 20 July 1995. Sections 15 and 33 of that Act commenced on 17 August 1995. Section 15 of the Competition Policy Reform Act substituted s 51(1) of the Trade Practices Act 1974.

[page 510] (b) anything done in a State, if the thing is specified in, and specifically authorised by: (i) an Act passed by the Parliament of that State; or (ii) regulations made under such an Act; (c) anything done in the Australian Capital Territory, if the thing is specified in, and specifically authorised by: (i) an enactment as defined in section 3 of the Australian Capital Territory (Self-Government) Act 1988; or (ii) regulations made under such an enactment; (d) anything done in the Northern Territory, if the thing is specified in, and specifically authorised by: (i) an enactment as defined in section 4 of the Northern Territory (Self-Government) Act 1978; or (ii) regulations made under such an enactment; (e) anything done in another Territory, if the thing is specified in, and specifically authorised by: (i) an Ordinance of that Territory; or (ii) regulations made under such an Ordinance. [subs (1) subst Act 88 of 1995 s 15]

(1A) Without limiting subsection (1), conduct is taken to be specified in, and authorised by, a law for the purposes of that subsection if: (a) a licence or other instrument issued or made under the law specifies one or both of the following: (i) the person authorised to engage in the conduct;

(ii) the place where the conduct is to occur; and (b) the law specifies the attributes of the conduct except those mentioned in paragraph (a). For this purpose, law means an Act, State Act, enactment or Ordinance. [subs (1A) insrt Act 88 of 1995 s 15]

(1B) Subsections (1) and (1A) apply regardless of when the Acts, State Acts, enactments, Ordinances, regulations or instruments referred to in those subsections were passed, made or issued. [subs (1B) insrt Act 88 of 1995 s 15]

(1C) The operation of subsection (1) is subject to the following limitations: (a) in order for something to be regarded as specifically authorised for the purposes of subsection (1), the authorising provision must expressly refer to this Act; (b) subparagraph (1)(a)(ii) and paragraphs (1)(b), (c), (d) and (e) do not apply in deciding whether a person has contravened section 50 or 50A; (c) regulations referred to in subparagraph (1)(a)(ii), (b)(ii), (c)(ii), (d) (ii) or (e)(ii) do not have the effect of requiring a particular thing to be disregarded if the thing happens more than 2 years after those regulations came into operation; (d) regulations referred to in subparagraph (1)(a)(ii), (b)(ii), (c)(ii), (d) (ii) or (e)(ii) do not have the effect of requiring a particular thing to be disregarded to the extent that the regulations are the same in substance as other regulations: (i) referred to in the subparagraph concerned; and (ii) that came into operation more than 2 years before the particular thing happened; [page 511] (e) paragraphs (1)(b) to (d) have no effect in relation to things authorised by a law of a State or Territory unless: (i) at the time of the alleged contravention referred to in

(f)

subsection (1) the State or Territory was a fullyparticipating jurisdiction and a party to the Competition Principles Agreement; or (ii) all of the following conditions are met: (A) the Minister published a notice in the Gazette under subsection 150K(1) in relation to the State or Territory, or the State or Territory ceased to be a party to the Competition Principles Agreement, within 12 months before the alleged contravention referred to in subsection (1); (B) the thing authorised was the making of a contract, or an action under a contract, that existed immediately before the Minister published the notice or the State or Territory ceased to be a party; (C) the law authorising the thing was in force immediately before the Minister published the notice or the State or Territory ceased to be a party; subsection (1) does not apply to things that are covered by paragraph (1)(b), (c), (d) or (e) to the extent that those things are prescribed by regulations made under this Act for the purposes of this paragraph.

[subs (1C) insrt Act 88 of 1995 s 15; am Act 88 of 1995 s 86]

(2) In determining whether a contravention of a provision of this Part other than section 45D, 45DA, 45DB, 45E, 45EA or 48 has been committed, regard shall not be had: (a) to any act done in relation to, or to the making of a contract or arrangement or the entering into of an understanding, or to any provision of a contract, arrangement or understanding, to the extent that the contract, arrangement or understanding, or the provision, relates to, the remuneration, conditions of employment, hours of work or working conditions of employees; (b) to any provision of a contract of service or of a contract for the provision of services, being a provision under which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which he or she may

engage during, or after the termination of, the contract; (c) to any provision of a contract, arrangement or understanding, being a provision obliging a person to comply with or apply standards of dimension, design, quality or performance prepared or approved by Standards Australia or by a prescribed association or body; (d) to any provision of a contract, arrangement or understanding between partners none of whom is a body corporate, being a provision in relation to the terms of the partnership or the conduct of the partnership business or in relation to competition between the partnership and a party to the contract, arrangement or understanding while he or she is, or after he or she ceases to be, a partner; (e) in the case of a contract for the sale of a business or of shares in the capital of a body corporate carrying on a business — to any provision of the contract that is solely for the protection of the purchaser in respect of the goodwill of the business; or (f) [repealed] [page 512] (g) to any provision of a contract, arrangement or understanding, being a provision that relates exclusively to the export of goods from Australia or to the supply of services outside Australia, if full and accurate particulars of the provision (not including particulars of prices for goods or services but including particulars of any method of fixing, controlling or maintaining such prices) were furnished to the Commission before the expiration of 14 days after the date on which the contract or arrangement was made or the understanding was arrived at, or before 8 September 1976, whichever was the later. [subs (2) am Act 98 of 1993 s 45; Act 88 of 1995 s 91; Act 60 of 1996 s 3 and Sch 17; Act 63 of 2002 s 3 and Sch 1, opn 1 July 1999; Act 46 of 2011 s 3 and Sch 2[426], opn 27 Dec 2011]

(2A) In determining whether a contravention of a provision of this Part other than section 48 has been committed, regard shall not be had to any acts

done, otherwise than in the course of trade or commerce, in concert by ultimate users or consumers of goods or services against the suppliers of those goods or services. (3) A contravention of a provision of this Part other than section 46, 46A or 48 shall not be taken to have been committed by reason of: (a) the imposing of, or giving effect to, a condition of: (i) a licence granted by the proprietor, licensee or owner of a patent, of a registered design, of a copyright or of EL rights within the meaning of the Circuit Layouts Act 1989, or by a person who has applied for a patent or for the registration of a design; or (ii) an assignment of a patent, of a registered design, of a copyright or of such EL rights, or of the right to apply for a patent or for the registration of a design; to the extent that the condition relates to: (iii) the invention to which the patent or application for a patent relates or articles made by the use of that invention; (iv) goods in respect of which the design is, or is proposed to be, registered and to which it is applied; (v) the work or other subject matter in which the copyright subsists; or (vi) the eligible layout in which the EL rights subsist; (b) the inclusion in a contract, arrangement or understanding authorizing the use of a certification trade mark of a provision in accordance with rules applicable under Part XI of the Trade Marks Act 1955, or the giving effect to such a provision; or (c) the inclusion in a contract, arrangement or understanding between: (i) the registered proprietor of a trade mark other than a certification trade mark; and (ii) a person registered as a registered user of that trade mark under Part IX of the Trade Marks Act 1955 or a person authorized by the contract to use the trade mark subject to his or her becoming registered as such a registered user; of a provision to the extent that it relates to the kinds, qualities or standards of goods bearing the mark that may be produced or

supplied, or the giving effect to the provision to that extent. [subs (3) am Act 28 of 1989 s 49 and Sch; Act 70 of 1990 s 9; Act 88 of 1995 s 91]

[page 513] (4) This section applies in determining whether a provision of a contract is unenforceable by reason of subsection 45(1), or whether a covenant is unenforceable by reason of subsection 45B(1), in like manner as it applies in determining whether a contravention of a provision of this Part has been committed. (5) In the application of subsection (2A) to section 46A, the reference in that subsection to trade or commerce includes trade or commerce within New Zealand. [subs (5) insrt Act 70 of 1990 s 9]

SECTION 51 GENERALLY [10,830.5] Overview This section outlines the conduct which will be exempt from the application of Pt IV of the Act. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that s 51(3) be repealed and that there be a separate review of intellectual property by the Productivity Commission. The Committee also recommended that exemption powers based on the block exemption framework in the UK and EU be introduced. See [10,690.5]. [10,830.5A] Authorisation by an Act or regulation Section 51(1) provides that regard will not be had to any act or thing which is specifically authorised or approved by any Commonwealth or state Act or territory Ordinance or associated Regulations (other than an Act relating to patents, trade marks, designs or copyright). See: • Ausfield Pty Ltd v Leyland Motor Corp Australia Ltd (1977) 14 ALR 457; 30 FLR 477; (1977) ATPR 40-025; • Trade Practices Commission v Legion Cabs (Trading) Co-op

Society Ltd (1978) 35 FLR 372; 4 TPC 276; (1978) ATPR 40092; • Re Ku-ring-gai Co-op Building Society (No 12) Ltd (1978) 22 ALR 621; 36 FLR 134; (1978) ATPR 40-094; • Paul Dainty Corp Pty Ltd v National Tennis Centre Trust (1990) 22 FCR 495; 94 ALR 225; (1990) ATPR 41-029; BC9003406. Under this provision the matter must be “specifically authorised or approved”. The specific authorisation or approval must be found in the Act or regulation mentioned in the provision and not some subordinate instrument made under the Act or regulation: Australian Competition and Consumer Commission v Air New Zealand Ltd [2014] FCA 1157; BC201411318 at [169] per Perram J. [10,830.5B] Employment Conditions Section 51(2) provides an exemption in relation to aspects of employment including remuneration and working conditions. A restriction on work under s 51A(2)(b) includes an obligation not to engage in particular types of work: Adelaide Brighton Cement Ltd v Wong [2008] FCA 496; BC200802594 at [41] per Besanko J. It also includes not engaging in competitive work: Provida Pty Ltd v Sharpe [2012] NSWSC 1041; BC201206904 per Pembroke J. [10,830.5C] Contractual restraints Section 51(2) provides an exemption in relation to a provision of a contract of service under which a person agrees to accept a restraint of trade during or after the termination of the contract. [10,830.5D] Compliance with an Australian Standard Section 51(2) provides an exemption in relation to a provision of a contract, arrangement or understanding which obliges compliance with standards prepared or approved by the Standards Association of Australia or a prescribed association or body. [page 514] [10,830.5E] Conduct of a partnership

Section 51(2) provides an

exemption in relation to a provision of a contract, arrangement or understanding between non-corporate partners relating to the terms of the partnership, the conduct of the partnership or any competition between the partners and an ex-partner. [10,830.5F] Protection of goodwill of a business Section 51(2) provides an exemption in relation a provision of a contract for the sale of a business or shares in the capital of a company carrying on a business that is solely for the protection of the purchaser with respect to the goodwill in the business; See Petersville Ltd v Peters (WA) Ltd (1999) 160 ALR 359; (1999) ATPR ¶41674; (appeal) Peters (WA) Ltd v Petersville Ltd (1999) ATPR ¶41-714); Fadu Pty Ltd v ACN 008 112 196 Pty Ltd (2007) ATPR ¶42-206; [2007] FCA 1965; BC200710887 per Finn J. [10,830.5G] Export of goods outside Australia Section 51(2) provides an exemption in relation to a provision of a contract, arrangement or understanding which relates exclusively to the export of goods or services from Australia if full and accurate particulars of the provision were furnished to the commission before the expiration of 14 days after the date of the contract, arrangement or understanding, or 8 September 1976, whichever was the later: see Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179; [2003] HCA 35; BC200303104. [10,830.5H] Intellectual property Section 51(3) provides an exemption (other than for misuse of market power and resale price maintenance) in relation to: • the imposing of or giving effect to a condition of a licence or assignment of a patent, registered design or copyright to the extent that it relates to the invention to which the patent relates or articles made by use of the patent, goods in respect of which a design is to be applied, or the work or other subject matter of the copyright; • the inclusion in a contract, arrangement or understanding authorising the use of a certification trade mark of a provision required under the Trade Marks Act 1995; or • the inclusion in a contract, arrangement or understanding between the registered proprietor of a trade mark and a registered

user of that trade mark of a provision required under the Trade Marks Act. See Transfield Pty Ltd v Arlo International Ltd (1980) 144 CLR 83; 30 ALR 201; (1980) ATPR 40-166; BC8000079; Campomar Sociedad Ltd v Nike International Ltd (2000) 169 ALR 677; 46 IPR 481; [2000] HCA 12; BC200000767; Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. [10,830.7] Vesting of primary products Section 173(1) relies on s 51(1) (a)(i) to exempt from the operation of s 50 the vesting of primary products in a person by legislation. See [14,335.5]. [10,830.8] Specific authorisation Section 51(1C)(a) provides that for something to be specifically authorised under s 51(1), the authorising provision must expressly refer to the Act. See Australian Competition and Consumer Commission (ACCC) v PT Garuda Indonesia Ltd [2016] FCAFC 42; BC201601861 at [230] per Dowsett and Edelman JJ. ____________________

[10,835] Concurrent operation of State and Territory laws 51AAA It is the Parliament’s intention that a law of a State or Territory should be able to operate concurrently with this Part unless the law is directly inconsistent with this Part. [s 51AAA insrt Act 88 of 1995 s 87]

[page 515] PART IVA — UNCONSCIONABLE CONDUCT [Repealed] [Pt IVA rep Act 103 of 2010 s 3 and Sch 5[49], opn 1 Jan 2011] INTRODUCTION TO PART IVA [10,850.5] This Part was repealed by the legislation that introduced the ACL. It has now been subsumed within the ACL. See [14,500.5] and Sch 2 to the Act. A comparative table of the old Pt IVA provisions and their ACL equivalents is located at [10,001].

[page 517] PART IVB — INDUSTRY CODES [Pt IVB insrt Act 36 of 1998 Sch 1] INTRODUCTION TO PART IVB [10,895.5] Overview This Part was inserted by the Trade Practices Amendment (Fair Trading) Act 1998. It follows the recommendations of the House of Representatives Standing Committee on Industry, Science and Technology report, Finding a Balance: Towards Fair Trading in Australia, May 1997 (the Reid Committee). The committee identified various problems encountered by business, particularly small business. This included understanding commercial documentation and receiving full information prior to entering a transaction. The committee considered that codes would provide industry groups with the opportunity to codify their practices in association with affected groups in a transparent and accountable fashion. The central provision, s 51ACB, prohibits a corporation in trade or commerce from contravening an applicable industry code. This means the prescribed provisions of a mandatory industry code relating to the industry or a voluntary code that is binding on the corporation. A breach of Pt IVB gives rise to the full range of remedies under Pt VI including injunctive relief under s 80, damages under s 82 and ancillary orders under s 87. The Competition and Consumer Amendment (Industry Code Penalties) Act commenced on 1 January 2015. It amended the Act to introduce s 51AE(2) to allow regulations to be made that prescribe a pecuniary penalty for the breach of a civil penalty provision of an industry code. It also introduced a new Div 2A in this Part to permit the Commission to issue an infringement notice, where it has reasonable grounds to believe a person has contravened a civil penalty provision of an industry code. This is an alternative to the Commission seeking a pecuniary penalty under s 76. See [10,905.3].

____________________ DIVISION 1 — PRELIMINARY [Heading am Act 103 of 2010 s 3 and Sch 4[1], opn 1 Jan 2011]

[10,900]

Definitions

51ACA (1) In this Part: applicable industry code, in relation to a corporation that is a participant in an industry, means: (a) the prescribed provisions of any mandatory industry code relating to the industry; and

the prescribed provisions of any voluntary industry code that (b) binds the corporation. consumer, in relation to an industry, means a person to whom goods or services are or may be supplied by participants in the industry. industry code means a code regulating the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry. infringement notice means an infringement notice issued under subsection 51ACD(1). [def insrt Act 107 of 2014 s 3 and Sch 1[1], opn 1 Jan 2015]

[page 518] infringement notice compliance period: see subsection 51ACI(1). [def insrt Act 107 of 2014 s 3 and Sch 1[1], opn 1 Jan 2015]

mandatory industry code means an industry code that is declared by regulations under section 51AE to be mandatory. related contravention: a person engages in conduct that constitutes a related contravention of an applicable industry code, if the person: (a) aids, abets, counsels or procures a corporation to contravene the applicable industry code; or (b) induces, whether by threats or promises or otherwise, a corporation to contravene the applicable industry code; or (c) is in any way, directly or indirectly, knowingly concerned in, or party to, a contravention by a corporation of the applicable industry code; or (d) conspires with others to effect a contravention by a corporation of the applicable industry code. [def insrt Act 103 of 2010 s 3 and Sch 4[2], opn 1 Jan 2011]

voluntary industry code means an industry code that is declared by regulations under section 51AE to be voluntary. (2) For the purposes of this Part, a voluntary industry code binds a person who has agreed, as prescribed, to be bound by the code and who has not

subsequently ceased, as prescribed, to be bound by it. (3) To avoid doubt, it is declared that: (a) franchising is an industry for the purposes of this Part; and (b) franchisors and franchisees are participants in the industry of franchising, whether or not they are also participants in another industry. SECTION 51ACA GENERALLY [10,900.5] Consumer Section 51ACA(1) defines “consumer” in relation to an industry to mean a person to whom goods or services are or may be supplied by participants in the industry. This differs from the definition of “consumer” in s 4B and ACL s 3 which applies to goods or services which do not exceed the prescribed amount or are goods or services ordinarily acquired for personal, domestic or household use or consumption. [10,900.10] Industry Section 51ACA(1) defines “industry code” to mean a code regulating the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry. The expression “industry” is not defined. However, s 51ACA(3) declares that franchising is an industry and franchisors and franchisees are participants in the industry of franchising. [10,900.15] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. ____________________ [page 519] DIVISION 2 — CONTRAVENTION OF INDUSTRY CODES [Heading am Act 103 of 2010 s 3 and Sch 4[3], opn 1 Jan 2011]

[10,905]

Contravention of industry codes

51ACB A corporation must not, in trade or commerce, contravene an applicable industry code. [s 51ACB renum Act 107 of 2014 s 3 and Sch 1[2], opn 1 Jan 2015]

SECTION 51ACB GENERALLY [10,905.3] Overview A contravention of an applicable industry code is a contravention of the Act. See [10,905.12]. The provision (previously s 51AD) was renumbered on the passage of the Competition and Consumer Amendment (Industry Code Penalties) Act 2014 on 1 January 2015. However until the passage of the Competition and Consumer Amendment (Industry Code Penalties) Act 2014 a penalty could not be imposed for a breach of an applicable industry code. The Competition and Consumer Amendment (Industry Code Penalties) Act 2014 commenced on 1 January 2015. It amended the Act to introduce s 51AE(2) to allow regulations to be made that prescribe a pecuniary penalty for the breach of a civil penalty provision of an industry code. It also introduced a new Div 2A in this Part to permit the Commission to issue an infringement notice, where it has reasonable grounds to believe a person has contravened a civil penalty provision of an industry code. This is an alternative to the Commission seeking a pecuniary penalty under s 76. The amendments introduced by the Competition and Consumer Amendment (Industry Code Penalties) Act 2014 do not themselves impose pecuniary penalties for breaches of an industry code, such as the Franchising Code. Rather, the amendments allow regulations to be made that prescribe a pecuniary penalty not exceeding 300 penalty units for the breach of a civil penalty provision of an industry code. Separately the Act allows the Commission to issue an infringement notice, in the amount of 50 penalty units if the person is a body corporate and 10 penalty units in any other case, where it has reasonable grounds to believe a person has contravened a civil penalty provision of an industry code. This proposal was announced on 2 April 2014 in The Future of Franchising, the Australian Government’s statement on the recommendations of the 2013 Review of the Franchising Code of Conduct by Mr Alan Wein. See [10,905.6].

[10,905.5] Applicable industry codes An “applicable industry code” is defined in s 51ACA(1) to mean the prescribed provisions of a mandatory industry code relating to the industry or a voluntary code that is binding on the corporation. Compliance with the entire code is required, not merely with the “spirit” of a code: see Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491; 59 IPR 435; [2003] FCA 850; BC200304503 at [191] per Selway J. Compliance with an applicable industry code is a factor that the court may consider under ACL s 22 in determining whether conduct is unconscionable.

[10,905.6]

Franchising Code of Conduct

Overview The Franchising Code of Conduct was prescribed as a mandatory industry code by the Trade Practices (Industry Codes — Franchising) Regulations on 18 June 1998. The Code commenced on 1 July 1998 and has subsequently been amended. See “Background” below and [17,905] et seq and Capital Networks Pty Ltd v .au Domain Administration Ltd (2004) ATPR (Digest) ¶46-254; [2004] FCA 808; BC200403799 per Bennett J for discussion of the Regulations. [page 520] Background On 25 June 2008, the Parliamentary Joint Committee on Corporations and Financial Services resolved to inquire into the Franchising Code of Conduct (the Code) with a view to identifying justifiable improvements to the Code. The committee delivered its report Opportunity not opportunism: improving conduct in Australian franchising in December 2008. Consistent with its support of the majority recommendations of the Senate Standing Committee on Economics, on 5 November 2009, the Minister for Competition and Consumer Policy, Hon Craig Emerson, announced that the government would amend the Act to make it clear that protection from unconscionable conduct would apply not only to the process of making a contract, but also to the terms and conditions of the contract. The government announced penalties of $1.1 million for corporations and $220,000 for

individuals engaging in unconscionable conduct. Expert Panel Report At the same time the government announced the establishment of an expert panel to consider whether a list of examples of unconscionable conduct or a statement of principles of what constitutes unconscionable conduct should be incorporated in the Act. An Issues paper was released on 27 November 2009. The same panel was also to consider the need to introduce into the Franchising Code any further provisions to prevent specific behaviours that are inappropriate in a franchising arrangement, in particular, the following five behaviours: • Unilateral contract variation • Unforseen capital expenditure • Franchisor-initiated changes to franchise agreement when a franchisee is trying to sell the business • Attribution of legal costs • Confidentiality agreements. On 3 March 2010 the Hon Craig Emerson released the panel’s report “Strengthening statutory unconscionable conduct and the Franchising Code of Conduct” February 2010. The report made a number of findings in relation to both unconscionable conduct and the Franchising Code of Conduct. On 4 June 2010 the Minister for Small Business, the Honourable Dr Craig Emerson MP, outlined amendments to the Franchising Code of Conduct. These amendments took effect on 1 July 2010. The changes give effect to the Government’s response to the report of the Parliamentary Joint Committee on Corporations and Financial Services and the Expert Panel report released in March 2010. Wein Report 2013 On 4 January 2013 the then Minister for Small Business, Brendan O’Connor MP, announced that Mr Alan Wein had been appointed to undertake a review into the Franchising Code of Conduct. The primary purpose of the review was to verify, after a reasonable implementation period, that the amendments to the Franchising Code of Conduct made in 2008 and 2010 were working as intended. The report was released by the government on 17 May 2013. On 17 June 2013 the Australian Government released a consultation paper to seek input on options that could be implemented in response to the review report recommendations. On 24 July 2013, the Government announced its

response to the review. The Government accepted, or accepted in principle most of Mr Wein’s recommendations. There was a change in Government following the Federal Parliamentary election on 7 September 2013. Franchising Code 2014 and Industry Code Penalties Act 2014 On 2 April 2014, the Government released for public consultation an exposure draft of amendments to the Franchising Code of Conduct through the draft Competition and Consumer (Industry Codes — Franchising) Regulation 2014 and the draft Competition and Consumer Amendment Bill 2014. The new Franchising Code of Conduct commenced on 1 January 2015. [page 521] The Competition and Consumer Amendment (Industry Code Penalties) Act 2014 commenced on 1 January 2015. It amended the Act to allow regulations to prescribe a pecuniary penalty for a breach of a civil penalty provision of an industry code. It also allows the Commission to issue an infringement notice if it has reasonable grounds to believe a person has contravened a civil penalty provision of an industry code. See [10,905.3]. The new Franchising Code of Conduct and the Competition and Consumer Amendment (Industry Code Penalties) Act 2014 was announced on 2 April 2014 in The Future of Franchising, the Australian Government’s statement on the recommendations of the 2013 Review of the Franchising Code of Conduct by Mr Alan Wein. [10,905.7] Franchising Code: Meaning of franchise The word “franchise” in the Code bears its normal meaning — the right, usually exclusive, of a retailer or a distributor to sell the products of another, usually a manufacturer: • Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491; 59 IPR 435; [2003] FCA 850; BC200304503 at [193] per Selway J; • Capital Networks Pty Ltd v .au Domain Administration Ltd, above, at [111] per Bennett J; • Australian Competition and Consumer Commission v Global

Prepaid Communications Pty Ltd (in liq) [2006] FCA 146 at [54]; BC200600710 per Gyles J. • See Aura Enterprises Pty Ltd v Frontline Retail Pty Ltd (2006) 202 FLR 435; (2007) ATPR ¶42-130; [2006] NSWSC 902; BC200607006 per Brereton J. • See Manhattan (Asia) Ltd v Dymocks Franchise Systems (China) Ltd [2014] FCA 1143; BC201408930 per Farrell J. Whether or not a proposed agreement is a franchising agreement or an agreement to enter into a franchising agreement, is to be assessed at the time when the parties enter the agreement: Rafferty v Madgwicks (2012) 287 ALR 437; [2012] FCAFC 37; BC201201564 at [137] per Kenny, Stone and Logan JJ. [10,905.8] Franchising Code: Meaning of system or marketing plan The phrase a “system or marketing plan” is not defined in the Code. In ordinary English usage, the expression would signify a co-ordinated method or procedure, or scheme where by goods or services are sold: Rafferty v Madgwicks (2012) 287 ALR 437; [2012] FCAFC 37; BC201201564 at [171] per Kenny, Stone and Logan JJ. In Australian Competition and Consumer Commission v Kyloe Pty Ltd [2007] FCA 1522; BC200708849 at [40] Tracey J said: [40] The phrase a “system or marketing plan” is not defined in the Code. In seeking to give meaning to this concept Australian courts have had resort to American case law which deals with equivalent but not identical legislation. In the course of a review of American texts and decisions which she undertook in Capital Networks at [103] to [110] Bennett J identified the following factors as being “helpful indicators” of the presence of such a plan: • the provision by the franchisor of a detailed compensation and bonus structure for distributors selling its products; • a centralised bookkeeping and record keeping computer operation provided by the franchisor for distributors; • a scheme prescribed by the franchisor under which a person could become a distributor, direct distributor, district director, regional director, or zone director; • the reservation by the alleged franchisor of the right to screen and approve all promotional materials used by distributors; • a prohibition on re-packaging of products by distributors; • the provision of assistance by the alleged franchisor to its distributors in conducting “opportunity meetings”; • suggestion by the franchisor of the retail prices to be charged for products; and • a comprehensive advertising and promotional program by the alleged franchisor. [page 522]

Her Honour also had regard to some further indicators which were treated as relevant by the Court of Appeals of Indiana in Master Abrasives Corporation v Williams (1984) 469 NE 2d 1196: • the division of a state into marketing areas; • the establishment of sales quotas; • the franchisor having approval rights of any sales personnel whom the franchisee might seek to employ; • a mandatory sales training regime; • the provision of quotation sheets to the franchisee’s employees; • provision by the franchisor of prescribed invoices and other sales forms; • a requirement that franchisees elicit certain information from their customers and provide that information to the franchisor; and • a restriction on the franchisee selling any of the franchisor’s products without first consulting the franchisor. This is not intended to be an exhaustive list of relevant considerations but it does serve to focus attention on the type of matters which will inform a judgment on whether the necessary “system or marketing plan” exists in a particular case.

[10,905.9] Franchising Code: Renewal of a franchise The expression “renew” in the Code includes renewal on different terms. The Code treats renewal and the extension of the scope or term of a franchise agreement together and draws a distinction between those concepts and entry into a new franchise agreement: Civic Video Pty Ltd v Yogies Pty Ltd [2011] NSWSC 1107; BC201107725 at [48] per Ball J. On 25 June 2008, the Parliamentary Joint Committee on Corporations and Financial Services resolved to inquire into the Franchising Code of Conduct (the Code) with a view to identifying justifiable improvements to the Code. The committee delivered its report, Opportunity not opportunism: improving conduct in Australian franchising in December 2008. The Government also appointed an Expert panel to review the Code. This resulted in a number of amendments to the Code which commenced on 1 July 2010. See [10,895.5]. [10,905.10] Breach of the Franchising Code A failure to comply with the Franchising Code of Conduct is a breach of s 51ACB (formerly s 51AD prior to the commencement of the Competition and Consumer Amendment (Industry Code Penalties) Act 2014 on 1 January 2015): • Australian Competition and Consumer Commission v Simply NoKnead (Franchising) Pty Ltd (2000) 104 FCR 253; 178 ALR 304; [2000] FCA 1365; BC200005673 at [51] per Sundberg J; • Australian Competition and Consumer Commission v 4WD Systems Pty Ltd, above, at [207] per Selway J; • Australian Competition & Consumer Commission v Ewing

• •

•

•

•

•

[2004] FCA 5; BC200400073 per Stone J; O’Connor v Roadrunner Mobile Video Pty Ltd (2006) ATPR ¶42-109; [2006] FMCA 150; BC200601374 per Phipps FM; Aura Enterprises Pty Ltd v Frontline Retail Pty Ltd (2006) 202 FLR 435; (2007) ATPR ¶42-130; [2006] NSWSC 902; BC200607006 per Brereton J; Ketchell v Master of Education Services Pty Ltd (2007) 226 FLR 169; (2008) Aust Contract R ¶90-268; [2007] NSWCA 161; BC200705732 at [37] per Mason P (Basten and Handley JJA agreeing); (appeal) Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; 249 ALR 44; [2008] HCA 38; BC200807512 per Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ; Australian Competition and Consumer Commission v Kyloe Pty Ltd (2007) ATPR 42-194; [2007] FCA 1522; BC200708849 per Tracey J; Australian Competition and Consumer Commission (ACCC) v Mailpost Australia Ltd [2010] FCA 369; BC201002292 per Foster J; [page 523]

•

• • •

•

Australian Competition and Consumer Commission (ACCC) v Seal-A-Fridge Pty Ltd (2010) 268 ALR 321; [2010] FCA 525; BC201003472 at [169] per Logan J; Astram Financial Services Pty Ltd v Bank of Queensland Ltd [2010] FCA 1010; BC201006750 at [354] per Buchanan J. See Stones Corner Motors Pty Ltd v Mayfairs Wholesale Pty Ltd [2010] FCA 1465; BC201009954 per Greenwood J. See Australian Maintenance and Cleaning Pty Ltd v AMA Commercial Cleaning (NSW) Pty Ltd [2011] NSWCA 103; BC201103226 per Hodgson, Macfarlan, Young JJA. See Civic Video Pty Ltd v Yogies Pty Ltd [2011] NSWSC 1107; BC201107725 at [49] per Ball J. See Rafferty v Madgwicks (2012) 287 ALR 437; [2012] FCAFC 37; BC201201564 per Kenny, Stone and Logan JJ;

Australian Competition and Consumer Commission (ACCC) v South East Melbourne Cleaning Pty Ltd (in liq) (formerly Known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) [2015] FCA 25; BC201500239 per Murphy J. In Australian Competition and Consumer Commission v Chaste Corp Pty Ltd (in liq) [2005] FCA 1212; BC200506448 Lander J found that the second respondent was knowingly concerned in, aided and abetted, counseled or procured the contravention of cl 15 of the Franchising Code of Conduct. In Ketchell v Master of Education Services Pty Ltd (2008) Aust Contract R ¶90-268; [2007] NSWCA 161; BC200705732 at [37] Mason P (Basten and Handley JJA agreeing) said that the ordinary consequences that the common law attaches to illegality would flow from a breach of s 51ACB (formerly s 51AD prior to the commencement of the Competition and Consumer Amendment (Industry Code Penalties) Act 2014 on 1 January 2015), including from a breach of the Franchising Code of Conduct. The court also said at [32] that the Act contains no provision empowering a court to relieve against non-complinace with the Code. In Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810; BC200804028 at [108] Rares J considered the views of the court in Ketchell, above, to be wrong. At [106] Rares J said that the Code does not evince a legislative policy of striking down as void every franchise agreement entered into by a franchisor who fails to comply with any provision of the Code. Rather, the Code places an obligation on a franchisor by setting a norm of conduct with which it is to comply. The failure to comply with that norm of conduct gives the franchisee rights to rely upon that failure in order to seek the setting aside of a franchise agreement, if that relief is appropriate; (appeal) Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd (2009) 178 FCR 57; [2009] FCAFC 85; BC200906047 per Goldberg, Jacobson and Perram JJ. The High Court also rejected the views of the NSW Court of Appeal in Ketchell. The High Court said that the common law consequences of illegality do not apply to a breach of s 51ACB (formerly s 51AD prior to the commencement of the Competition and Consumer Amendment (Industry Code Penalties) Act 2014 on 1 January 2015)): Master Education Services Pty Ltd v Ketchell [2008] HCA 38; BC200807512 at [38] per Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ. Their Honours concluded at [38]–[41]: •

[38] The detailed provision by the Act for the consequences of non-compliance with an industry code, such as the Franchising Code of Conduct, does not support a conclusion that it was intended

that the harsh consequences provided by the common law were to follow upon contravention of s 51AD. The Act provides a more flexible approach. It allows a court to prevent entry into a franchise agreement, to vary the terms of an agreement entered into in breach of the Code, or to terminate such an agreement or provide compensation for loss and damage, if it is shown to have been caused by the contravention. In that regard the extended meaning which may be given to loss and damage by s 82, which is suffered by reason of entry into contractual obligations, may assume significance. [page 524] [39] The final matter which supports the non-applicability of the common law sanction for contravention of s 51AD has regard to the position of the franchisee. One of the purposes of the Code is the protection of the position of the franchisee. It is not expressed to prohibit the franchisee from entering into an agreement where a franchisor had not complied with cl 11. As Rares J pointed out in Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2), it would be an unusual result if, in that circumstance, a franchisee’s bargain was struck down in every case, regardless of the position in which it places the franchisee. It is not to be assumed in every case that a franchisee wishes to be relieved of their bargain. To render void every franchise agreement entered into where a franchisor had not complied with the Code would be to give the franchisor, the wrongdoer, an opportunity to avoid its obligations, and at the same time to place the franchisee in breach of obligations to third parties. A preferable result, and one for which the Act provides, is to permit a franchisee to seek such relief as is appropriate to the circumstances of the case. Some cases of non-compliance with cl 11 might involve substantial non-disclosure; others may only involve a failure to obtain the written statement, confirming that the franchisee has read and understood the disclosure document and the Code. This is such a case. [40] Section 51AD does not in its terms prohibit the making of a franchise agreement where a franchisor has not complied with the Code. That section and the Code are concerned with the regulation of the conduct of participants in the franchising industry; in particular the conduct of franchisors. It is not to be inferred from a purpose which promotes or prescribes better and fairer business practices that contractual relations between parties will be affected. As was pointed out in SST Consulting Services v Rieson, the Act is far from being silent upon the question of the consequences of illegality, but, rather, contains elaborate provision. That is not to say that the express provisions of the Act answer all questions that may arise, but they answer many of them, and set the context in which others are to be answered. The provision made by the Act, in Pt VI, for remedies for contraventions of Pt IVB, and the unconscionability provisions of Pt IVA, tell strongly against an intention that the common law remedy for illegality was to apply. Such a conclusion is reinforced by the disadvantage which may be caused to a franchisee, which would not be consistent with the purposes of Pt IVB and the Code. It follows that s 4L does not apply to require the severance of the respondent’s obligation under the Franchise Agreement to pay monies, as the respondent contended. [41] It is possible to agree with the views of Mason P for the Court of Appeal that the “franchisor’s breach of cl 11 [of the Code]” was not “inconsequential” and that the “disclosure requirements of [the] Code were clearly enacted for the protection of prospective licensees” without embracing his Honour’s conclusion that the remedy implicit in the circumstances was that provided by the common law. The context of the Act itself, and the range of remedies that it affords for an established breach of an industry code, produce the conclusion that the better view of the legislation is that propounded by the appellant. It is that view to which this Court should give effect.

The Act provides a more flexible approach than the common law to

breaches of the Code. It allows the court to prevent entry into a franchise agreement, to vary the terms of an agreement entered into, to terminate an agreement or to provide compensation for loss or damage: Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; 249 ALR 44; [2008] HCA 38; BC200807512 at [38] per Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ; SPAR Licensing Pty Ltd v MIS QLD Pty Ltd (No 2) [2012] FCA 1116; BC201207987 at [158] per Griffiths J; (appeal) SPAR Licensing Pty Ltd v MIS Qld Pty Ltd [2014] FCAFC 50; BC201403084 per Buchanan, Foster and Farrell JJ. The Competition and Consumer Amendment (Industry Code Penalties) Act 2014 commenced on 1 January 2015. It amended the Act to introduce s 51AE(2) to allow regulations to be made that prescribe a pecuniary penalty for the breach of a civil penalty provision of an industry code. It also introduced a new Div 2A in this Part to permit the Commission to issue an infringement notice, [page 525] where it has reasonable grounds to believe a person has contravened a civil penalty provision of an industry code. This is an alternative to the Commission seeking a pecuniary penalty under s 76. See [10,905.3]. [10,905.20] Retail Grocery Industry Unit Pricing Code : Background The commission’s grocery inquiry recommended the introduction of a mandatory unit pricing regime applying to both in-store price labels and in-print advertising for significant supermarket stores: see [10,005.10]. On 15 May 2008, Senator Fielding introduced the Unit Pricing (Easy comparison of grocery prices) Bill into the Senate as a private Bill. The Bill would insert a new Pt VB into the National Measurement Act 1960. On 17 June 2008, the Senate referred the Bill to the Standing Committee on Economics. In its report Unit Pricing (Easy comparison of grocery prices) Bill 2008, released in September 2008, the committee, although supporting the policy intent of the Bill was not convinced that it achieves the right

balance between maximising the usefulness and effectiveness of the scheme for consumers and minimising the costs of implementation to grocery retailers: para 4.2. It recommended that the Bill not be passed: (Recommendation 1). Just prior to the release of the Senate Committee’s report, in August 2008, the Minister for Competition Policy and Consumer Affairs announced that the government would move on the issue of unit pricing as a matter of urgency. On 12 September 2008, the Minister for Competition Policy and Consumer Affairs released a Unit pricing Issues Paper seeking public comments on a mechanism for introducing unit pricing. On 23 March 2009, the government released a draft Retail Grocery Industry Code the Retail Grocery Industry (Unit Pricing) Code of Conduct as a mandatory Code under Pt IVB of the Act. The Retail Grocery Industry (Unit Pricing) Code of Conduct was subsequently established as a mandatory Code by the Trade Practices (Industry Codes — Unit Pricing) Regulations 2009. It commenced on 1 July 2009. Operation Under the Code, a prescribed grocery retailer must display a unit price for all grocery items sold by the retailer for which a selling price is displayed: cl 6(1). A “prescribed grocery retailer” means: • a store based grocery retailer (a person that sells a minimum range of food based grocery items to consumers in retail premises that have more than 1000 sqm of floor space) • an online grocery retailer (a person that sells on a website a minimum range of food based grocery items to consumers) • a participating grocery retailer (a person that sells a minimum range of food based grocery items to consumers and who voluntarily displays a unit price for one or more grocery items sold). A “grocery item” is any item sold by a prescribed grocery retailer: cl 3. The prescribed grocery retailer must display the unit price for a grocery item using the most relevant unit of measurement specified, for example, grams should be used for a grocery items supplied by weight cl 8(1).

A prescribed grocery retailer is not required to display a unit price for certain grocery items: cl 7. This includes, for example, magazines, flowers, hardware items, clothing and jewellery: cl 10. [10,905.25] Food and Grocery Code Background The government (through the Commonwealth Treasury) consulted on improving commercial relationships in the food and grocery sector and on a draft Food and Grocery Code of Conduct. [page 526] In November 2013, Coles, Woolworths and the Australian Food and Grocery Council provided their jointly developed Grocery Code to the Government to apply as a voluntary industry code under the Act. The industry version was redrafted by Government in the form of the draft Competition and Consumer (Industry Codes — Food and Grocery) Regulation 2014. A public consultation paper on the draft was released in August 2014. Ultimately the Code, in the form of the Competition and Consumer (Industry Codes — Food and Grocery) Regulation 2015, was made and commenced on 3 March 2015 as a voluntary industry code. On 5 March 2015, the Senate Economics Legislation Committee resolved to undertake an inquiry into the Competition and Consumer (Industry Codes — Food and Grocery) Regulation 2015. In its report delivered in May 2015, the Committee recommended that the Regulation stand as promulgated. Operation The Food and Grocery Code applies to any retailer that agrees to be bound. The purpose of the Code is to: • help regulate standards of business conduct in the grocery supply chain; • to ensure transparency and certainty in the grocery supply chain; • to provide for fair and equitable dispute resolution; and • to support and promote good faith in commercial dealings between, retailers, wholesalers and suppliers.

[10,905.30] Oil Code The Oil Code was prescribed as a mandatory industry code by the Trade Practices (Industry Codes — Oilcode) Regulations 2006. It commenced on 1 March 2007. The Oil Code was introduced following the repeal of the Petroleum Retail Marketing Sites Act 1980 and the Petroleum Retail Marketing Franchise Act 1980. The Oil Code regulates the conduct of suppliers, distributors and retailers in the petroleum marketing industry. See AA Shi Pty Ltd v Avbar Pty Ltd (No 5) [2010] FCA 971; BC201006494 per Collier J. [10,905.40] Horticulture Code The Horticulture Code was prescribed as a mandatory industry code by the Trade Practices (Horticulture Code of Conduct) Regulations 2006. It commenced on 14 May 2007. The Horticulture Code regulates trade in horticulture produce between growers and traders. [10,905.45] Food and Grocery Code

See [10,895.5].

[10,905.50] Guidelines On 31 August 2011, the commission released its Guidelines for Developing Effective Voluntary Industry Codes of Conduct. The guidelines are intended to assist in the drafting of an industry code of conduct. It specifies criteria which the commission considers essential for effective industry codes of conduct and for obtaining the commission’s indorsement. ____________________ DIVISION 2A — INFRINGEMENT NOTICES [Div 2A insrt Act 107 of 2014 s 3 and Sch 1[3], opn 1 Jan 2015]

[10,905AA]

Purpose and effect of this Division

51ACC (1) The purpose of this Division is to provide for the issue of an infringement notice to a person for an alleged contravention of a civil penalty provision of an industry code as an alternative to proceedings for an order under section 76 for the payment of a pecuniary penalty. (2) This Division does not:

(a) require an infringement notice to be issued to a person for an alleged contravention of a civil penalty provision of an industry code; or [page 527] (b) affect the liability of a person to proceedings under section 76 in relation to an alleged contravention of a civil penalty provision of an industry code if: (i) an infringement notice is not issued to the person for the contravention; or (ii) an infringement notice issued to the person for the contravention is withdrawn under section 51ACJ; or (c) prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice. SECTION 51ACC GENERALLY [10,905AA.5] Overview The Division was inserted by the Competition and Consumer Amendment (Industry Code Penalties) Act 2014, which commenced on 1 January 2015. The Division permits the Commission to issue an infringement notice, where it has reasonable grounds to believe a person has contravened a civil penalty provision of an industry code. See [10,905.3]. ____________________

[10,905AB]

Issuing an infringement notice

51ACD (1) If the Commission has reasonable grounds to believe that a person has contravened a civil penalty provision of an industry code, the Commission may issue an infringement notice to the person. (2) The Commission must not issue more than one infringement notice to the person for the same alleged contravention of the civil penalty provision

of the industry code. (3) The infringement notice does not have any effect if the notice: (a) is issued more than 12 months after the day that the contravention of the civil penalty provision of the industry code is alleged to have occurred; or (b) relates to more than one alleged contravention of a civil penalty provision of the industry code by the person.

[10,905AC] Matters to be included in an infringement notice 51ACE (1) An infringement notice must: (a) be identified by a unique number; and (b) state the day on which it is issued; and (c) state the name and address of the person to whom it is issued; and (d) identify the Commission and state how it may be contacted; and (e) give details of the alleged contravention, including: (i) the day of the alleged contravention; and (ii) the civil penalty provision of the industry code that was allegedly contravened; and (f) state the maximum pecuniary penalty that the court could order the person to pay under section 76 for the alleged contravention; and (g) specify the penalty that is payable in relation to the alleged contravention; and (h) state that the penalty is payable within the infringement notice compliance period for the notice; and (i) state that the penalty is payable to the Commission on behalf of the Commonwealth; and [page 528] (j) explain how payment of the penalty is to be made; and (k) explain the effect of sections 51ACG, 51ACH, 51ACI and 51ACJ.

[10,905AD]

Amount of penalty

51ACF The penalty to be specified in an infringement notice that is to be issued to a person, in relation to an alleged contravention of a civil penalty provision of an industry code, must be a penalty equal to the following amount: (a) if the person is a body corporate — 50 penalty units; (b) otherwise — 10 penalty units.

[10,905AE] Effect of compliance with an infringement notice 51ACG (1) This section applies if: (a) an infringement notice for an alleged contravention of a civil penalty provision of an industry code is issued to a person; and (b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and (c) the infringement notice is not withdrawn under section 51ACJ. (2) The person is not, merely because of the payment, regarded as having contravened the civil penalty provision of the industry code. (3) No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to the alleged contravention of the civil penalty provision of the industry code.

[10,905AF] Effect of failure to comply with an infringement notice 51ACH If: (a) an infringement notice for an alleged contravention of a civil penalty provision of an industry code is issued to a person; and (b) the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and (c) the infringement notice is not withdrawn under section 51ACJ;

the person is liable to proceedings under section 76 in relation to the alleged contravention of the civil penalty provision of the industry code.

[10,905AG] Infringement notice compliance period for infringement notice 51ACI (1) Subject to this section, the infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day that the infringement notice is issued by the Commission. (2) The Commission may extend, by notice in writing, the infringement notice compliance period for the infringement notice if the Commission is satisfied that it is appropriate to do so. (3) Only one extension may be given and the extension must not be for longer than 28 days. [page 529] (4) Notice of the extension must be given to the person who was issued the infringement notice. (5) A failure to comply with subsection (4) does not affect the validity of the extension. (6) If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.

[10,905AH] notice

Withdrawal of an infringement

51ACJ (1) Representations to the Commission A person to whom an infringement notice has been issued for an alleged contravention of a civil penalty provision of an industry code may make written representations to

the Commission seeking the withdrawal of the infringement notice. (2) Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading). (3) Withdrawal by the Commission The Commission may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so. (4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal. (5) Content of withdrawal notices The withdrawal notice must state: (a) the name and address of the person; and (b) the day on which the infringement notice was issued to the person; and (c) that the infringement notice is withdrawn; and (d) that proceedings under section 76 may be started or continued against the person in relation to the alleged contravention of the civil penalty provision of the industry code. (6) Time limit for giving withdrawal notices To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice. (7) Refunds If the infringement notice is withdrawn after the person has paid the penalty specified in the infringement notice, the Commission must refund to the person an amount equal to the amount paid. [page 530] DIVISION 3 — PUBLIC WARNING NOTICES [Div 3 insrt Act 103 of 2010 s 3 and Sch 4[4], opn 1 Jan 2011]

[10,905A] Commission may issue a public warning notice 51ADA (1) Commission may issue a public warning notice The Commission may issue to the public a written notice containing a warning about the conduct of a person if: (a) the Commission has reasonable grounds to suspect that the conduct may constitute: (i) if the person is a corporation — a contravention of an applicable industry code by the corporation; or (ii) in any case — a related contravention of an applicable industry code by the person; and (b) the Commission is satisfied that one or more persons has suffered, or is likely to suffer, detriment as a result of the conduct; and (c) the Commission is satisfied that it is in the public interest to issue the notice. (2) Notice is not a legislative instrument A notice issued under subsection (1) is not a legislative instrument. DIVISION 4 — ORDERS TO REDRESS LOSS OR DAMAGE SUFFERED BY NON-PARTIES ETC [Div 4 insrt Act 103 of 2010 s 3 and Sch 4[4], opn 1 Jan 2011]

[10,905B] Orders to redress loss or damage suffered by non-parties etc 51ADB (1) Orders If: (a) a person engaged in conduct (the contravening conduct) that: (i) if the person was a corporation — constituted a contravention of an applicable industry code; or (ii) in any case — constituted a related contravention of an applicable industry code; and (b) the contravening conduct caused, or is likely to cause, a class of persons to suffer loss or damage; and (c) the class includes persons (non-parties) who are not, or have not

been, parties to a proceeding (an enforcement proceeding) instituted under Part VI in relation to the contravening conduct; any court having jurisdiction in the matter may, on the application of the Commission, make such order or orders (other than an award of damages) as the court thinks appropriate against a person referred to in subsection (2) of this section. Note: The orders that the court may make include all or any of the orders set out in section 51ADC. (2) An order under subsection (1) may be made against: (a) the person mentioned in paragraph (1)(a); or (b) a person involved in the contravening conduct. [page 531] (3) A court must not make an order under subsection (1) unless the court considers that the order will: (a) redress, in whole or in part, the loss or damage suffered by the non-parties in relation to the contravening conduct; or (b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the non-parties in relation to the contravening conduct. (4) Application for orders An application may be made under subsection (1) even if an enforcement proceeding in relation to the contravening conduct has not been instituted. (5) An application under subsection (1) may be made at any time within 6 years after the day on which the cause of action that relates to the contravening conduct accrues. (6) Determining whether to make an order In determining whether to make an order under subsection (1) against a person referred to in subsection (2), a court may have regard to the conduct of: (a) the person; and (b) the non-parties; in relation to the contravening conduct, since the contravention occurred. (7) In determining whether to make an order under subsection (1), a court

need not make a finding about either of the following matters: (a) which persons are non-parties in relation to the contravening conduct; (b) the nature of the loss or damage suffered, or likely to be suffered, by such persons. (8) When a non-party is bound by an order etc If: (a) an order is made under subsection (1) against a person; and (b) the loss or damage suffered, or likely to be suffered, by a non-party in relation to the contravening conduct to which the order relates has been redressed, prevented or reduced in accordance with the order; and (c) the non-party has accepted the redress, prevention or reduction; then: (d) the non-party is bound by the order; and (e) any other order made under subsection (1) that relates to that loss or damage has no effect in relation to the non-party; and (f) despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory, no claim, action or demand may be made or taken against the person by the non-party in relation to that loss or damage.

[10,905C] Kinds of orders that may be made to redress loss or damage suffered by non-parties etc 51ADC Without limiting subsection 51ADB(1), the orders that a court may make under that subsection against a person (the respondent) include all or any of the following: (a) an order declaring the whole or any part of a contract made between the respondent and a non-party referred to in that subsection, or a collateral arrangement relating to such a contract: (i) to be void; and [page 532]

(b)

(c) (d) (e)

(f)

(g)

(ii) if the court thinks fit — to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made); an order: (i) varying such a contract or arrangement in such manner as is specified in the order; and (ii) if the court thinks fit — declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made); an order refusing to enforce any or all of the provisions of such a contract or arrangement; an order directing the respondent to refund money or return property to a non-party referred to in that subsection; an order directing the respondent, at his or her own expense, to repair, or provide parts for, goods that have been supplied under the contract or arrangement to a non-party referred to in that subsection; an order directing the respondent, at his or her own expense, to supply specified services to a non-party referred to in that subsection; an order, in relation to an instrument creating or transferring an interest in land (within the meaning of section 53A), directing the respondent to execute an instrument that: (i) varies, or has the effect of varying, the first-mentioned instrument; or (ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first-mentioned instrument. DIVISION 5 — INVESTIGATION POWER

[Div 5 insrt Act 103 of 2010 s 3 and Sch 4[4], opn 1 Jan 2011]

[10,905D]

Commission may require corporation

to provide information 51ADD (1) This section applies if a corporation is required to keep, to generate or to publish information or a document under an applicable industry code. (2) The Commission may give the corporation a written notice that requires the corporation to give the information, or to produce the document, to the Commission within 21 days after the notice is given to the corporation. (3) The notice must: (a) name the corporation to which it is given; and (b) specify: (i) the information or document to which it relates; and (ii) the provisions of the applicable industry code which require the corporation to keep, to generate or to publish the information or document; and (c) explain the effect of sections 51ADE, 51ADF and 51ADG. (4) The notice may relate to more than one piece of information or more than one document. [page 533]

[10,905E] notices

Extending periods for complying with

51ADE (1) A corporation that has been given a notice under section 51ADD may, at any time within 21 days after the notice was given to the corporation, apply in writing to the Commission for an extension of the period for complying with the notice. (2) The Commission may, by written notice given to the corporation, extend the period within which the corporation must comply with the notice.

[10,905F] 51ADF

Compliance with notices

A corporation that is given a notice under section 51ADD must

comply with it within: (a) the period of 21 days specified in the notice; or (b) if the period for complying with the notice has been extended under section 51ADE — the period as so extended.

[10,905G]

False or misleading information etc

51ADG (1) A corporation must not, in compliance or purported compliance with a notice given under section 51ADD: (a) give to the Commission false or misleading information; or (b) produce to the Commission documents that contain false or misleading information. (2) This section does not apply to: (a) information that the corporation could not have known was false or misleading; or (b) the production to the Commission of a document containing false or misleading information if the document is accompanied by a statement of the corporation that the information is false or misleading. DIVISION 6 — MISCELLANEOUS [Heading am Act 103 of 2010 s 3 and Sch 4[4], opn 1 Jan 2011]

[10,910]

Regulations relating to industry codes

51AE (1) The regulations may: (a) prescribe an industry code, or specified provisions of an industry code, for the purposes of this Part; and (b) declare the industry code to be a mandatory industry code or a voluntary industry code; and (c) for a voluntary industry code, specify the method by which a corporation agrees to be bound by the code and the method by which it ceases to be so bound (by reference to provisions of the code or otherwise). [subs (1) am Act 107 of 2014 s 3 and Sch 1[4], opn 1 Jan 2015]

(2) If regulations prescribe an industry code, the industry code may prescribe pecuniary penalties not exceeding 300 penalty units for civil penalty provisions of the industry code. [subs (2) insrt Act 107 of 2014 s 3 and Sch 1 [5], opn 1 Jan 2015]

[page 534]

[10,915] Concurrent operation of State and Territory laws 51AEA It is the Parliament’s intention that a law of a State or Territory should be able to operate concurrently with this Part unless the law is directly inconsistent with this Part. [s 51AEA insrt Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001]

SECTION 51AEA GENERALLY [10,915.5] Overview Section 51AEA was inserted by the Trade Practices Amendment Act (No 1) 2001. Its purpose is to permit state and territory laws to operate alongside the industry code provisions in this Part. In the absence of this provision it might be assumed that this Part is intended to “cover the field” to the exclusion of state and territory laws in the area, thereby rendering those laws invalid under s 109 of the Constitution: Master Education Services Pty Ltd v Ketchell [2008] HCA 38; BC200807512 at [13] per Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ. ____________________

[page 535] PART IVC — PAYMENT SURCHARGES [Pt IVC insrt Act 9 of 2016 s 3 and Sch 1 item 3, opn 25 Feb 2016]

DIVISION 1 — PRELIMINARY

[10,920]

Object of this Part

The object of this Part is to ensure that payment surcharges: (a) are not excessive; and (b) reflect the cost of using the payment methods for which they are charged.

55

INTRODUCTION TO PART IVC [10,920.5] Overview This Part was inserted by the Competition and Consumer Amendment (Payment Surcharges) Act 2016. During the Financial System Inquiry, the community expressed concern that certain surcharges exceeded the costs to merchants of accepting credit cards. The Government agreed to take action to improve surcharging arrangements. This is part of the Government’s response. The Part bans excessive payment surcharges imposed in respect of particular payments. A payment surcharge is excessive if it exceeds the amount specified by a Reserve Bank standard or by regulation s made for this purpose. The Part also provides the Commission with additional powers to gather information and issue infringement notices in enforcing the ban on excess surcharges. Although the Act commenced on 25 February 2016, the provision had substantive effect only when the Reserve Bank standard was establised that set out the permitted surcharge for a payment method. That occured on 1 September 2016. See [10,930.15].

[10,925]

Definitions

55A In this Part: excessive, in relation to a payment surcharge, has the meaning given by subsection 55B(2). infringement notice compliance period has the meaning given by subsection 55M(1).

listed corporation has the meaning given by section 9 of the Corporations Act 2001. payment surcharge means: (a) an amount charged, in addition to the price of goods or services, for processing payment for the goods or services; or (b) an amount (however described) charged for using one payment method rather than another. Reserve Bank standard means a standard determined under section 18 of the Payment Systems (Regulation) Act 1998 after the commencement of this definition. surcharge information notice has the meaning given by subsection 55C(3). surcharge participant has the meaning given by subsection 55C(2). [page 536] DIVISION 2 — LIMIT ON PAYMENT SURCHARGES

[10,930] Payment surcharges must not be excessive 55B (1) A corporation must not, in trade or commerce, charge a payment surcharge that is excessive. (2) A payment surcharge is excessive if: (a) the surcharge is for a kind of payment covered by: (i) a Reserve Bank standard; or (ii) regulations made for the purposes of this subparagraph; and (b) the amount of the surcharge exceeds the permitted surcharge referred to in the Reserve Bank standard or the regulations. (3) Subsection (1) does not apply to a corporation who is exempted from its operation by the regulations. SECTION 55B GENERALLY

[10,930.5] Overview The provision prohibits a corporation charging a payment surcharge that is excessive. A payment surcharge is excessive if it exceeds the amount of the surcharge permitted by a Reserve Bank standard or the regulations. [10,930.10] Payment Surcharge The expression “payment surcharge” is defined in s 55A. Broadly it is an amount charged for processing goods or services or for using one payment method rather than another. [10,930.15] An amount charged for processing a payment The Explanatory Memorandum accompanying the Bill indicates that para (a) of the expression “payment surcharge” is intended to cover merchants’ processes surrounding card acceptance, including the process of incurring costs for accepting cards. For example, if a merchant charges a 2% surcharge for use of a particular payment method, and this is expressed or implied to be compensation for the cost of accepting the card, then the 2% surcharge is “for processing payment” and is a payment surcharge within para (a) of the definition. [10,930.20] An amount charged for using one payment method rather than another The Explanatory Memorandum also indicates that para (b) of the expression “payment surcharge” is intended to extend the definition to include charges that may be described in a way that implies they are unrelated to particular payment methods, but in substance are so related. For example, if charges described as “booking”, “service”, or “transaction” fees are in substance imposed as a result of the payment being made by card rather than an alternative payment method such as cash or direct debit (as would obviously be the case if they applied to card payments but not those other payment methods), they are intended to be caught by the ban. If on the other hand, additional fees are applied equally regardless of payment method used, and do not purport to be for the purpose of compensating for the cost of payment acceptance, they are not properly “payment surcharges” and are not intended to be caught. Uniform “add-on” payments such as these will remain subject to other consumer protection action to the extent that they breach misleading and deceptive conduct or other consumer protection provisions in the Australian Consumer Law. The Explanatory Memorandum also indicates that if a merchant offers two

alternative payment methods and the price of the underlying good or service using the cheapest method is $100, while the price using an alternative method is $110, then the merchant has charged a payment surcharge under subpara (b) of the definition, and the amount of the surcharge is $10. [10,930.25] Reserve Bank Standard standard” is defined in s 55A.

The expression “Reserve Bank

[page 537] Reserve Bank Standard No 3 of 2016 “Scheme Rules Relating to Merchant Pricing for Credit, Debit and Pre-aid Card Transactions” commenced on 1 September 2016. It can be accessed at: http://www.rba.gov.au/payments-and-infrastructure/review-of-cardpayments-regulation/conclusions-paper-may2016/ Broadly the Standard will limit the amount that a business can charge customers for use of payment methods such as EFTPOS (debit and prepaid), MasterCard (credit, debit and prepaid), Visa (credit, debit and prepaid) and American Express cards issued by Australian banks. Those payment types that are not covered by the ban include: BPAY, PayPal, Diners Club cards, American Express cards issued directly by American Express, cash and cheques. The RBA has indicated, as a guide, that the costs to merchants of accepting payments by debit cards is in the order of 0.5%, by credit card is 1-1.5%, and for American Express cards it is 2-3%. Some merchants’ costs might be higher than these indicative figures. For the first year, the Standard only applies to large businesses, defined as having two of the following: gross revenue of $25 million or more, gross assets worth $12.5 million or more, or with 50 or more employees. It will apply to all businesses from 1 September 2017. [10,930.30] Commission Guidelines The Commission has published online guidance for businesses and consumers. It can be accessed at: http://www.accc.gov.au/update/ban-on-excessive-payment-surcharging

____________________ DIVISION 3 — INFORMATION ABOUT PAYMENT SURCHARGES

[10,935]

Surcharge information notices

55C (1) The Commission may, by written notice given to a surcharge participant, require the participant to give to the Commission information or documents evidencing either or both of the following: (a) the amount of a payment surcharge; (b) the cost of processing a payment in relation to which a payment surcharge was paid. (2) A corporation is a surcharge participant if, in trade or commerce, the corporation: (a) charges a payment surcharge; or (b) processes a payment for which a payment surcharge is charged. (3) The notice given by the Commission to the surcharge participant is a surcharge information notice. (4) The surcharge information notice must specify: (a) the kinds of information or documents to be given to the Commission; and (b) the period for giving the information or documents.

[10,940] notices

Extending periods for complying with

55D (1) A surcharge participant that has been given a notice under section 55C may, at any time within 21 days after the notice was given to the participant, apply in writing to the Commission for an extension of the period for complying with the notice. (2) The Commission may, by written notice given to the surcharge participant, extend the period within which the participant must comply with the notice.

[page 538]

[10,945]

Participant must comply with notice

55E (1) A surcharge participant commits an offence if: (a) the surcharge participant is given a surcharge information notice; and (b) the surcharge participant fails to comply with the notice within the period for so complying. Penalty: 30 penalty units. (2) Subsection (1) is an offence of strict liability. Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents. DIVISION 4 — INFRINGEMENT NOTICES

[10,950]

Purpose and effect of this Division

55F (1) The purpose of this Division is to provide for the issue of an infringement notice to a person for an alleged contravention of section 55B as an alternative to proceedings for an order under section 76 for the payment of a pecuniary penalty. (2) This Division does not: (a) require an infringement notice to be issued to a person for an alleged contravention of section 55B; or (b) affect the liability of a person to proceedings under section 76 in relation to an alleged contravention of section 55B if: (i) an infringement notice is not issued to the person for the contravention; or (ii) an infringement notice issued to the person for the contravention is withdrawn under section 55N; or (c) prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice.

[10,955]

Issuing an infringement notice

55G (1) If the Commission has reasonable grounds to believe that a person has contravened section 55B, the Commission may issue an infringement notice to the person. (2) The Commission must not issue more than one infringement notice to the person for the same alleged contravention of section 55B. (3) The infringement notice does not have any effect if the notice: (a) is issued more than 12 months after the day that the contravention of section 55B is alleged to have occurred; or (b) relates to more than one alleged contravention of section 55B by the person.

[10,960] Matters to be included in an infringement notice 55H (a) (b) (c)

(1) An infringement notice must: be identified by a unique number; and state the day on which it is issued; and state the name and address of the person to whom it is issued; and [page 539]

(d) identify the Commission and state how it may be contacted; and (e) give details of the alleged contravention, including the day of the alleged contravention; and (f) state the maximum pecuniary penalty that the court could order the person to pay under section 76 for the alleged contravention; and (g) specify the penalty that is payable in relation to the alleged contravention; and (h) state that the penalty is payable within the infringement notice compliance period for the notice; and (i) state that the penalty is payable to the Commission on behalf of the Commonwealth; and

(j) explain how payment of the penalty is to be made; and (k) explain the effect of sections 55K, 55L, 55M and 55N.

[10,965]

Amount of penalty

55J The penalty to be specified in an infringement notice that is to be issued to a person in relation to an alleged contravention of section 55B must be: (a) if the person is a listed corporation — 600 penalty units; or (b) if the person is a body corporate other than a listed corporation — 60 penalty units; or (c) if the person is not a body corporate — 12 penalty units.

[10,970] Effect of compliance with an infringement notice 55K (1) This section applies if: (a) an infringement notice for an alleged contravention of section 55B is issued to a person; and (b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and (c) the infringement notice is not withdrawn under section 55N. (2) The person is not, merely because of the payment, regarded as having contravened section 55B. (3) No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to the alleged contravention of section 55B.

[10,975] Effect of failure to comply with an infringement notice 55L If: (a) an infringement notice for an alleged contravention of section 55B is issued to a person; and

(b) the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and (c) the infringement notice is not withdrawn under section 55N; the person is liable to proceedings under section 76 in relation to the alleged contravention of section 55B. [page 540]

[10,980] Infringement notice compliance period for infringement notice 55M (1) Subject to this section, the infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day that the infringement notice is issued by the Commission. (2) The Commission may extend, by notice in writing, the infringement notice compliance period for the infringement notice if the Commission is satisfied that it is appropriate to do so. (3) Only one extension may be given and the extension must not be for longer than 28 days. (4) Notice of the extension must be given to the person who was issued the infringement notice. (5) A failure to comply with subsection (4) does not affect the validity of the extension. (6) If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.

[10,985]

Withdrawal of an infringement notice

55N (1) Representations to the Commission A person to whom an infringement notice has been issued for an alleged contravention of section 55B may make written representations to the Commission seeking the

withdrawal of the infringement notice. (2) Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading). (3) Withdrawal by the Commission The Commission may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so. (4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal. (5) Content of withdrawal notices The withdrawal notice must state: (a) the name and address of the person; and (b) the day on which the infringement notice was issued to the person; and (c) that the infringement notice is withdrawn; and (d) that proceedings under section 76 may be started or continued against the person in relation to the alleged contravention of section 55B. (6) Time limit for giving withdrawal notices To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice. (7) Refunds If the infringement notice is withdrawn after the person has paid the penalty specified in the infringement notice, the Commission must refund to the person an amount equal to the amount paid.

[page 541] PART V — CARBON TAX PRICE REDUCTION OBLIGATION [Pt V insrt Act 83 of 2014 s 3 and Sch 2 item 3, opn 18 July 2014] INTRODUCTION TO PART V [11,000.0] This Part originally housed the consumer protection provisions in the Act. The Part was repealed by the legislation that introduced the Australian Consumer Law (ACL). The consumer protection provisions have now been subsumed within the ACL. See [14,500.5] and Sch 2 to the Act. A comparative table of the old Pt V provisions and their ACL equivalents is located at [10,001]. In 2014 this Part was utilised to house a number of provisions introduced by the Clean Energy Legislation (Carbon Tax) Repeal Act 2014. This Act and the other Carbon Tax Repeal Acts repeal the carbon tax. The carbon tax is imposed in a variety of ways: • an obligation on large emitters of greenhouse gases, natural gas suppliers and liquefied petroleum gas (LPG) and liquefied natural gas (LNG) importers, manufacturers and suppliers (liable entities) to pay a unit shortfall charge if they do not buy and surrender eligible emissions units (mostly carbon units issued by the Commonwealth) in accordance with the CE Act and the CE Charges Acts; • a reduction in the fuel tax credits paid for marine, rail and off road taxable fuel use by business (Fuel Tax Act 2006); • an increase in excise duty and excise equivalent customs duty on aviation fuel (Excise Tariff Act 1921, Customs Tariff Act 1995); and • a levy on import and manufacture of synthetic greenhouse gases and equipment (Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995, Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995, Ozone Protection and Synthetic Greenhouse Gas Management Act 1989). The Carbon Tax Repeal Bills repeal, with effect from 1 July 2014, all of the provisions in the various Acts that impose carbon tax liabilities and make consequential and transitional amendments. This Part was introduced to prevent a corporation from engaging in price exploitation in relation to the carbon tax repeal and from making false or misleading representations concerning the effect of the carbon tax repeal. The existing pecuniary penalty regime (s 76 of the Act) is modified so that it applies to contraventions of these prohibitions. Infringement notices may also be issued for contraventions of specific provisions.

____________________ DIVISION 1 — PRELIMINARY

[11,005] •

Simplified outline of this Part An entity must not engage in price exploitation in relation to the carbon tax repeal.

• •

The Commission may monitor prices in relation to the carbon tax repeal and the carbon tax scheme. An entity must not make false or misleading representations about the effect of the carbon tax repeal, or the carbon tax scheme, on the price for the supply of goods or services. [page 542]

•

•

An entity that sells electricity or natural gas, or an entity that is a bulk SGG importer and sells synthetic greenhouse gas, will be required to explain and substantiate: (a) how the carbon tax repeal has affected, or is affecting, the entity’s regulated supply input costs; and (b) how reductions in the entity’s regulated supply input costs that are directly or indirectly attributable to the carbon tax repeal are reflected in the prices charged by the entity for regulated supplies of electricity, natural gas or synthetic greenhouse gas. An entity that sells electricity or natural gas to customers, or an entity that is a bulk SGG importer and sells synthetic greenhouse gas to customers, must: (a) give a carbon tax removal substantiation statement to the Commission; and (b) include in the statement the entity’s estimate, on an average annual percentage price basis, or an average annual dollar price basis, of the entity’s cost savings that have been, are, or will be, attributable to the carbon tax repeal and that have been, are being, or will be, passed on to customers during the financial year that began on 1 July 2014; and (c) provide information with the statement that substantiates such an estimate; and (d) in a case where the entity sells electricity or natural gas to customers — communicate to customers a statement that identifies, on an average annual percentage price basis, or an average annual dollar price basis, the estimated cost savings to customers that are for the financial year that began on 1

•

July 2014. Infringement notices may be issued for certain contraventions of this Part.

[11,007]

Objects etc

60AA (1) The main objects of this Part are: (a) to deter price exploitation in relation to the carbon tax repeal at each point in the supply chain for regulated goods; and (b) to ensure that all cost savings attributable to the carbon tax repeal are passed through the supply chain for regulated goods. (2) The intention of the Parliament in enacting this Part is to ensure that all cost savings attributable to the carbon tax repeal are passed on to consumers of regulated goods through lower prices.

[11,009]

Definitions

60A In this Part: applicable compliance period, for a carbon tax removal substantiation notice, has the meaning given by subsection 60FC(2). bulk SGG importer means an entity that: (a) holds a controlled substances licence under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 that allows the entity to import synthetic greenhouse gases; and (b) supplies synthetic greenhouse gas to SGG customers. [page 543] carbon charge component of levy means so much of the amount of the levy as is calculated by multiplying the number of tonnes of carbon dioxide equivalence by a per unit charge applicable under subsection 100(1) of the Clean Energy Act 2011 for the issue of a carbon unit. carbon tax removal substantiation notice has the meaning given by

subsection 60FA(3). carbon tax removal substantiation statement has the meaning given by subsection 60FD(3). carbon tax repeal means: (a) the repeal of the following Acts by the Clean Energy Legislation (Carbon Tax Repeal) Act 2014: (i) the Clean Energy Act 2011; (ii) the Clean Energy (Charges — Customs) Act 2011; (iii) the Clean Energy (Charges — Excise) Act 2011; (iv) the Clean Energy (Unit Issue Charge — Auctions) Act 2011; (v) the Clean Energy (Unit Issue Charge — Fixed Charge) Act 2011; (vi) the Clean Energy (Unit Shortfall Charge — General) Act 2011; and (b) the amendments of the following Acts made by the Clean Energy Legislation (Carbon Tax Repeal) Act 2014: (i) the Fuel Tax Act 2006; (ii) the Fuel Tax (Consequential and Transitional Provisions) Act 2006; and (c) the amendments made by the following Acts: (i) the Customs Tariff Amendment (Carbon Tax Repeal) Act 2014; (ii) the Excise Tariff Amendment (Carbon Tax Repeal) Act 2014; (iii) the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Amendment (Carbon Tax Repeal) Act 2014; (iv) the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Amendment (Carbon Tax Repeal) Act 2014. carbon tax repeal transition period means the period: (a) beginning at the start of 1 July 2014; and (b) ending at the end of 30 June 2015. carbon tax scheme means the scheme embodied in the following:

(a) the Clean Energy Act 2011, as in force at the start of 1 January 2014; (b) the associated provisions (within the meaning of that Act as in force at that time); (c) the following provisions of the Fuel Tax Act 2006, as in force at the start of 1 January 2014: (i) Division 42A; (ii) section 43-5, so far as that section relates to a carbon reduction; (iii) section 43-8; (iv) section 43-11; (d) section 3A of the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995, as in force at the start of 1 January 2014, so far as that section relates to carbon charge component; [page 544] (e) section 4A of the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995, as in force at the start of 1 January 2014, so far as that section relates to carbon charge component; (f) section 3A of the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995, as in force at the start of 1 January 2014, so far as that section relates to carbon charge component; (g) sections 6FA, 6FB and 6FC of the Excise Tariff Act 1921, as in force at the start of 1 January 2014; (h) section 19A of the Customs Tariff Act 1995, as in force at the start of 1 January 2014. electricity customer means an entity that purchases electricity. electricity retailer means: (a) an entity who: (i) is a retailer within the meaning of the National Energy Retail Law as it applies in a State or a Territory; and (ii) sells electricity to electricity customers; or

(b) an entity who is a retailer within the meaning of the Electricity Industry Act 2000 (Vic.); or (c) an entity who is a retail entity within the meaning of the Electricity Act 1994 (Qld); or (d) an entity who: (i) holds a retail licence within the meaning of the Electricity Industry Act 2004 (WA); or (ii) holds an integrated regional licence within the meaning of the Electricity Industry Act 2004 (WA) that authorises the entity to sell electricity; or (e) an entity who is an electricity entity within the meaning of the Electricity Reform Act (NT) and whose licence under that Act authorises the entity to sell electricity; or (f) any other entity who produces electricity in Australia. engages in price exploitation in relation to the carbon tax repeal: see section 60C. entity means any of the following: (a) a corporation (as defined by section 4); (b) an individual; (c) a body corporate; (d) a corporation sole; (e) a body politic; (f) a partnership; (g) any other unincorporated association or body of entities; (h) a trust; (i) any party or entity which can or does buy or sell electricity, natural gas or synthetic greenhouse gas. infringement notice means an infringement notice issued under subsection 60L(1). infringement notice compliance period: see section 60P. [page 545]

infringement notice provision means section 60C or 60K. listed corporation has the meaning given by section 9 of the Corporations Act 2001. National Energy Retail Law means the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 (SA). natural gas has the same meaning as in the National Gas (Commonwealth) Law (as defined by the Australian Energy Market Act 2004). natural gas customer means an entity that purchases natural gas. natural gas retailer means: (a) an entity who: (i) is a retailer within the meaning of the National Energy Retail Law as it applies in a State or a Territory; and (ii) sells natural gas to natural gas customers; or (b) an entity who is a gas retailer within the meaning of the Gas Industry Act 2001 (Vic.); or (c) an entity who is a retailer within the meaning of the Gas Supply Act 2003 (Qld); or (d) an entity who holds a trading licence under the Energy Coordination Act 1994 (WA); or (e) an entity who holds a licence under the Gas Act 2000 (Tas.) to sell gas by retail. price, in relation to a supply, includes: (a) a charge of any description for the supply; and (b) any pecuniary or other benefit, whether direct or indirect, received or to be received by a person for or in connection with the supply. regulated goods: see section 60B. regulated supply means a supply that: (a) occurs during the carbon tax repeal transition period; and (b) is of regulated goods. regulated supply input costs of an entity means the entity’s input costs

in relation to the making by the entity of regulated supplies of electricity, natural gas or synthetic greenhouse gas. Royal Assent day means the day on which the Act that inserted this Part receives the Royal Assent. SGG customer means an entity that purchases synthetic greenhouse gas. SGG equipment has the same meaning as in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989. synthetic greenhouse gas has the same meaning as in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989.

[11,012]

Regulated goods

60B (1) For the purposes of this Part, regulated goods means: (a) natural gas; or (b) electricity; or [page 546] (c) synthetic greenhouse gas; or (d) SGG equipment; or (e) other goods of a kind specified in a legislative instrument under subsection (2). (2) The Minister may, by legislative instrument, specify one or more kinds of goods for the purposes of paragraph (1)(e). DIVISION 2 — CARBON TAX PRICE REDUCTION OBLIGATION

[11,015] Price exploitation in relation to the carbon tax repeal 60C (1) An entity must not engage in price exploitation in relation to the carbon tax repeal. (2) For the purposes of this Part, an entity engages in price exploitation in relation to the carbon tax repeal if, and only if:

(a) it makes a regulated supply; and (b) the price for the supply does not pass through all of the entity’s cost savings relating to the supply that are directly or indirectly attributable to the carbon tax repeal. (3) For the purposes of this Part, in determining whether the price for a supply made by an entity does not pass through all of the entity’s cost savings relating to the supply that are directly or indirectly attributable to the carbon tax repeal, have regard to the following matters: (a) the entity’s cost savings that are directly or indirectly attributable to the carbon tax repeal; (b) how the cost savings mentioned in paragraph (a) can reasonably be attributed to the different supplies that the entity makes; (c) the entity’s costs; (d) any other relevant matter that may reasonably influence the price.

[11,017] penalty

Failure to pass on cost savings — 250%

60CA (1) If: (a) either: (i) an entity contravenes subsection 60C(1) in relation to a particular supply of electricity or natural gas; or (ii) an entity that is a bulk SGG importer contravenes subsection 60C(1) in relation to a particular supply of synthetic greenhouse gas; and (b) the contravention involved a failure to pass through all of the entity’s cost savings relating to the supply that are directly or indirectly attributable to the carbon tax repeal; there is payable by the entity to the Commonwealth, and the entity shall pay to the Commonwealth, by way of penalty, an amount equal to 250% of those cost savings that were not passed through. (2) When penalty becomes due and payable An amount payable by an entity under subsection (1) is due and payable on 1 July 2015.

[page 547] (3) Late payment penalty If an amount payable by an entity under subsection (1) remains unpaid after the time when it became due for payment, there is payable by the entity to the Commonwealth, and the entity shall pay to the Commonwealth, by way of penalty, an amount calculated at the rate of 6% per annum on the amount unpaid, computed from that time. (4) Recovery of penalties An amount payable by an entity under subsection (1) or (3): (a) is a debt due to the Commonwealth; and (b) shall be recovered by the Commission, on behalf of the Commonwealth, by action in a court of competent jurisdiction, unless the cost of doing so exceeds the amount. (5) Report to Parliament Within 13 months after the Royal Assent day, the Commission must report to Parliament in respect of penalties payable by entities.

[11,020] Notice to entity that is considered to have engaged in price exploitation in relation to the carbon tax repeal 60D (1) The Commission may give an entity a written notice under this section if the Commission considers that the entity has engaged in price exploitation in relation to the carbon tax repeal. (2) The notice must: (a) be expressed to be given under this section; and (b) identify: (i) the entity that made the supply; and (ii) the kind of supply made; and (iii) the circumstances in which the supply was made; and (c) state that, in the Commission’s opinion, the price for the supply did not pass through all of the entity’s cost savings relating to the supply that were directly or indirectly attributable to the carbon tax repeal.

(3) In any proceedings: (aa) under section 60CA; or (a) under section 76 for a pecuniary penalty order relating to section 60C; or (b) under section 80 for an injunction relating to section 60C; or (c) under section 80A, 82, 86C, 86D or 87 for an order relating to section 60C; the notice is prima facie evidence that the price for the supply did not pass through all of the entity’s cost savings relating to the supply that were directly or indirectly attributable to the carbon tax repeal. (4) The Commission may vary or revoke the notice on its own initiative or on application made by the entity. The Commission must give the entity written notice of the variation or revocation. (5) A notice under this section is not a legislative instrument.

[11,022] Commission may issue notice to aid prevention of price exploitation in relation to the carbon tax repeal 60E (1) The Commission may give an entity a written notice under this section if the Commission considers that doing so will aid the prevention of the entity engaging in price exploitation in relation to the carbon tax repeal. [page 548] (2) The notice must: (a) be expressed to be given under this section; and (b) be expressed to relate to any supply that the entity makes that is: (i) of a kind specified in the notice; and (ii) made in circumstances specified in the notice; and (iii) made during the period specified in the notice (which must not be a period ending after the end of the carbon tax repeal transition period); and

specify the maximum price that, in the Commission’s opinion, may (c) be charged for a supply to which the notice is expressed to relate. (3) The Commission may, on its own initiative or on application made by the entity: (a) vary the notice to: (i) change the period specified as required by subparagraph (2) (b)(iii); or (ii) change the price specified in the notice as required by paragraph (2)(c); or (b) revoke the notice. The Commission must give the entity written notice of the variation or revocation. (4) The Commission may publish the notice, or particulars of any variation or revocation of the notice, in such manner as the Commission considers appropriate. (5) A notice under this section is not a legislative instrument.

[11,025]

Acquisition of property

60F (1) Scope This section applies to the following provisions of this Act: (a) section 60C; (b) any other provision to the extent to which it relates to section 60C. (2) Effect of provision The provision has no effect to the extent (if any) to which its operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph). DIVISION 2A — CARBON TAX REMOVAL SUBSTANTIATION NOTICES

[11,027] notices 60FA

Carbon tax removal substantiation

(1) Scope This section applies to an entity if the entity:

(a) is an electricity retailer that sells electricity to electricity customers; or (b) is a natural gas retailer that sells natural gas to natural gas customers; or (c) is a bulk SGG importer that sells synthetic greenhouse gas to SGG customers. (2) Carbon tax removal substantiation notice The Commission must, within 30 days after the Royal Assent day, by written notice given to the entity, require the entity: (a) to give to the Commission, within the period specified in the notice, a written statement that explains: (i) how the carbon tax repeal has affected, or is affecting, the entity’s regulated supply input costs; and (ii) how reductions in the entity’s regulated supply input costs that are directly or indirectly attributable to the carbon tax repeal are reflected in the prices charged by the entity for regulated supplies of electricity, natural gas or synthetic greenhouse gas; and [page 549] (b) to do either or both of the following: (i) give to the Commission, within the period and in the manner and form specified in the notice, information that substantiates the explanation set out in the statement; (ii) produce to the Commission, within the period and in the manner specified in the notice, documents that substantiate the explanation set out in the statement. (3) A notice under subsection (2) is to be known as a carbon tax removal substantiation notice. (4) A period specified in a carbon tax removal substantiation notice must be 21 days after the notice is given. (5) A carbon tax removal substantiation notice must explain the effect of: (a) section 60FB; and

(b) section 60FC; and (c) sections 137.1 and 137.2 of the Criminal Code. (6) Section does not limit section 60H This section does not limit section 60H (which is about the price-related information-gathering powers of the Commission). (7) Section does not limit section 155 This section does not limit section 155 (which is about the general information-gathering powers of the Commission).

[11,030] Extending periods for complying with carbon tax removal substantiation notices 60FB (1) An entity that has been given a carbon tax removal substantiation notice may, at any time within 14 days after the notice was given to the entity by the Commission, apply in writing to the Commission for an extension of the period for complying with the notice. (2) The Commission may, by written notice given to the entity, extend the period within which the entity must comply with the notice, so long as the extension is for a period of not more than 28 days.

[11,032] Compliance with carbon tax removal substantiation notices 60FC (1) An entity that is given a carbon tax removal substantiation notice must comply with it within the applicable compliance period for the notice. (2) The applicable compliance period for a carbon tax removal substantiation notice is: (a) the period of 21 days specified in the notice; or (b) if the period for complying with the notice has been extended under section 60FB — the period as so extended; and includes (if an application has been made under section 60FB for an extension of the period for complying with the notice) the period up until the time when the applicant is given notice of the Commission’s decision on the

application. (3) An entity commits an offence if: (a) the entity is subject to a requirement under subsection (1); and (b) the entity is capable of complying with the requirement; and [page 550] (c) the entity omits to do an act; and (d) the omission breaches the requirement. Penalty: 200 penalty units. (4) Subsection (3) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (5) If subsection (3) of this section applies to an individual (whether or not because of subsection 6(2)), subsection (3) of this section has effect, in relation to the individual, as if the reference to 200 penalty units were a reference to 40 penalty units. (6) If subsection (1) of this section applies to an individual (whether or not because of subsection 6(2)), the individual is excused from giving information or producing a document in accordance with a carbon tax removal substantiation notice on the ground that the information or the production of the document might tend to incriminate the individual or expose the individual to a penalty. DIVISION 2B — CARBON TAX REMOVAL SUBSTANTIATION STATEMENTS

[11,035] Carbon tax removal substantiation statements 60FD (1) Scope This section applies to an entity if the entity: (a) is an electricity retailer that sells electricity to electricity customers; or (b) is a natural gas retailer that sells natural gas to natural gas

customers; or (c) is a bulk SGG importer that sells synthetic greenhouse gas to SGG customers. (2) Carbon tax removal substantiation statement Within 30 days after the Royal Assent day, the entity must give to the Commission: (a) a written statement that sets out: (i) if the entity has electricity customers — the entity’s estimate, on an average annual percentage price basis, or an average annual dollar price basis, of the entity’s cost savings that have been, are, or will be, directly or indirectly attributable to the carbon tax repeal and that have been, are being, or will be, passed on to each class of electricity customers during the financial year that began on 1 July 2014; and (ii) if the entity has natural gas customers — the entity’s estimate, on an average annual percentage price basis, or an average annual dollar price basis, of the entity’s cost savings that have been, are, or will be, directly or indirectly attributable to the carbon tax repeal and that have been, are being, or will be, passed on to each class of natural gas customers during the financial year that began on 1 July 2014; and (iii) if the entity has SGG customers — the entity’s estimate, on an average annual percentage price basis, or an average annual dollar price basis, of the entity’s cost savings that have been, are, or will be, directly or indirectly attributable to the carbon tax repeal and that have been, are being, or will be, passed on to each class of SGG customers during the financial year that began on 1 July 2014; and (b) information that substantiates the estimate or estimates set out in the statement. Note: Section 137.1 of the Criminal Code creates an offence of providing false or misleading information. (3) A statement under paragraph (2)(a) is to be known as a carbon tax removal substantiation statement.

[page 551] (4) If the entity has given a carbon tax removal substantiation statement to the Commission, the entity must ensure that a copy of the statement is available on the entity’s website, in a way that is readily accessible by the public, until the end of 30 June 2015. (5) Compliance An entity commits an offence if: (a) the entity is subject to a requirement under subsection (2) or (4); and (b) the entity is capable of complying with the requirement; and (c) the entity omits to do an act; and (d) the omission breaches the requirement. Penalty: 500 penalty units. (6) Subsection (5) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (7) If subsection (5) of this section applies to an individual (whether or not because of subsection 6(2)), subsection (5) of this section has effect, in relation to the individual, as if the reference to 500 penalty units were a reference to 40 penalty units. (8) If subsection (2) of this section applies to an individual (whether or not because of subsection 6(2)), the individual is excused from giving an estimate or information under subsection (2) of this section on the ground that the estimate or information might tend to incriminate the individual or expose the individual to a penalty. (9) Section does not limit section 60H This section does not limit section 60H (which is about the price-related information-gathering powers of the Commission). (10) Section does not limit section 155 This section does not limit section 155 (which is about the general information-gathering powers of the Commission). (11) Report to Parliament Within 13 months after the Royal Assent day, the Commission must report to Parliament in respect of compliance by all entities.

DIVISION 2C — STATEMENTS FOR CUSTOMERS

[11,037]

Statements for customers

60FE (1) Scope This section applies to an entity if the entity: (a) is an electricity retailer that sells electricity to electricity customers; or (b) is a natural gas retailer that sells natural gas to natural gas customers. (2) Preparation of statement Within 30 days after the Royal Assent day, the entity must prepare a statement that: (a) if the entity has electricity customers — identifies, on an average annual percentage price basis, or an average annual dollar price basis, the estimated cost savings, to each class of electricity customers, that: (i) have been, are, or will be, directly or indirectly attributable to the carbon tax repeal; and (ii) are for the financial year that began on 1 July 2014; and (b) if the entity has natural gas customers — identifies, on an average annual percentage price basis, or an average annual dollar price basis, the estimated cost savings, to each class of natural gas customers, that: (i) have been, are, or will be, directly or indirectly attributable to the carbon tax repeal; and (ii) are for the financial year that began on 1 July 2014. [page 552] (3) Communication of contents of statement to customers During the period: (a) beginning 30 days after the Royal Assent day; and (b) ending 60 days after the Royal Assent day; the entity must ensure that the contents of the statement prepared by it under subsection (2) that relates to a class of electricity customers or natural

gas customers is communicated to each customer of that class. Note: Section 137.1 of the Criminal Code creates an offence of providing false or misleading information. (4) Compliance An entity commits an offence if: (a) the entity is subject to a requirement under subsection (2) or (3); and (b) the entity is capable of complying with the requirement; and (c) the entity omits to do an act; and (d) the omission breaches the requirement. Penalty: 400 penalty units. (5) Subsection (4) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (6) If subsection (4) of this section applies to an individual (whether or not because of subsection 6(2)), subsection (4) of this section has effect, in relation to the individual, as if the reference to 400 penalty units were a reference to 40 penalty units. (7) If subsection (2) or (3) of this section applies to an individual (whether or not because of subsection 6(2)), the individual is excused from: (a) preparing a statement under subsection (2) of this section; or (b) communicating the contents of a statement under subsection (3) of this section; on the ground that the information in the statement might tend to incriminate the individual or expose the individual to a penalty. DIVISION 3 — PRICE MONITORING IN RELATION TO THE CARBON TAX REPEAL ETC

[11,040] Commission may monitor prices in relation to the carbon tax repeal etc 60G (1) Price monitoring — carbon tax repeal transition period The Commission may monitor prices to assess the general effect of the carbon tax repeal on prices charged by entities for supplies, in the carbon tax repeal transition period, of relevant goods. Note: For relevant goods, see subsection (11).

(2) The Commission may monitor prices to assess the general effect of the carbon tax repeal on prices: (a) advertised; or (b) displayed; or (c) offered; for supplies, in the carbon tax repeal transition period, of relevant goods by entities. Note: For relevant goods, see subsection (11). (3) The Commission may monitor prices to assess the general effect of the carbon tax repeal on prices charged for supplies, in the carbon tax repeal transition period, of goods by an entity for which there is an entry in the Information Database (within the meaning of the Clean Energy Act 2011). [page 553] (4) The Commission may monitor prices to assess the general effect of the carbon tax repeal on prices: (a) advertised; or (b) displayed; or (c) offered; for supplies, in the carbon tax repeal transition period, of goods by an entity for which there is an entry in the Information Database (within the meaning of the Clean Energy Act 2011). (5) Price monitoring — price exploitation The Commission may monitor prices to assist the Commission’s consideration of whether an entity has engaged, is engaging, or may in the future engage, in price exploitation in relation to the carbon tax repeal. (6) Price monitoring — pre-repeal transition period The Commission may monitor prices to assess the general effect of the carbon tax scheme on prices charged by entities for supplies, in the pre-repeal transition period, of relevant goods. Note 1: For pre-repeal transition period, see subsection (13). Note 2: For relevant goods, see subsection (11).

(7) The Commission may monitor prices to assess the general effect of the carbon tax scheme on prices: (a) advertised; or (b) displayed; or (c) offered; for supplies, in the pre-repeal transition period, of relevant goods by entities. Note 1: For pre-repeal transition period, see subsection (13). Note 2: For relevant goods, see subsection (11). (8) The Commission may monitor prices to assess the general effect of the carbon tax scheme on prices charged for supplies, in the pre-repeal transition period, of goods by an entity for which there is an entry in the Information Database (within the meaning of the Clean Energy Act 2011). Note: For pre-repeal transition period, see subsection (13). (9) The Commission may monitor prices to assess the general effect of the carbon tax scheme on prices: (a) advertised; or (b) displayed; or (c) offered; for supplies, in the pre-repeal transition period, of goods by an entity for which there is an entry in the Information Database (within the meaning of the Clean Energy Act 2011). Note: For pre-repeal transition period, see subsection (13). (10) Relevant goods This section does not limit Part VIIA (which is about prices surveillance). (11) For the purposes of this section, the following are relevant goods: (a) regulated goods; (b) other goods of a kind specified in a legislative instrument under subsection (12). (12) The Minister may, by legislative instrument, specify one or more kinds of goods for the purposes of paragraph (11)(b). [page 554]

(13) Pre-repeal transition period For the purposes of this section, prerepeal transition period means the period: (a) beginning at the commencement of this section; and (b) ending at the end of 30 June 2014.

[11,042]

Information-gathering powers

60H (1) A member of the Commission may, by written notice given to a person, require the person: (a) to give the Commission specified information in writing signed by: (i) the person; or (ii) if the person is a body corporate — a competent officer of the body corporate; or (b) to produce to the Commission specified documents; if: (c) the information, or information contained in the documents, relates to prices or the setting of prices; and (d) the member reasonably believes that the information, or information contained in the documents, will or may be useful to the Commission in monitoring prices as mentioned in any of subsections 60G(1) to (9). Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents. (2) Information or documents that may be required under subsection (1) may relate to prices, or the setting of prices: (a) before or after the carbon tax repeal; and (b) before or after the start of the carbon tax repeal transition period; and (c) in a situation, or during a period, specified in the notice. (3) Subsection (2) does not limit subsection (1). (4) A person commits an offence if: (a) the person is subject to a requirement under subsection (1); and (b) the person is capable of complying with the requirement; and (c) the person omits to do an act; and (d) the omission breaches the requirement.

Penalty: 20 penalty units. (5) An individual is excused from giving information or producing a document in accordance with a requirement under subsection (1) on the ground that the information or the production of the document might tend to incriminate the individual or expose the individual to a penalty. (5A) Section does not limit section 60FA This section does not limit section 60FA (which is about carbon tax removal substantiation notices). (6) Section does not limit section 155 This section does not limit section 155 (which is about the general information-gathering powers of the Commission).

[11,045]

Reporting

60J (1) The Commission must, within 28 days after the end of each quarter, give the Minister a written report about the operations of the Commission under this Part during the quarter. [page 555] (2) A report under subsection (1) must include particulars of: (a) all notices given under section 60E during the quarter; and (b) all variations or revocations during the quarter of notices given under section 60E. (3) Subsection (2) does not limit subsection (1). (4) For the purposes of this section, a quarter is a period of 3 months: (a) that occurs wholly or partly during the carbon tax repeal transition period; and (b) that starts on any of the following days in a year: (i) 1 January; (ii) 1 April; (iii) 1 July; (iv) 1 October. (5) As soon as practicable after the Minister receives a report under subsection (1), the Minister must make the report public by such means as

the Minister considers appropriate. (6) If this section commences during a quarter (but not on the first day of a quarter): (a) no report is to be made at the end of the quarter; but (b) the report made at the end of the next quarter is also to include the information required by subsections (1) and (2) in relation to the previous quarter. DIVISION 4 — FALSE OR MISLEADING REPRESENTATIONS ABOUT THE EFFECT OF THE CARBON TAX REPEAL ETC ON PRICES

[11,047] False or misleading representations about the effect of the carbon tax repeal etc on prices 60K An entity must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services; or (b) the promotion by any means of the supply or use of goods or services; make a false or misleading representation, during the carbon tax repeal transition period, concerning the effect of: (c) the carbon tax repeal or a part of the carbon tax repeal; or (d) the carbon tax scheme or a part of the carbon tax scheme; on the price for the supply of the goods or services. DIVISION 5 — INFRINGEMENT NOTICES

[11,050]

Issuing an infringement notice

60L (1) Issuing an infringement notice If the Commission has reasonable grounds to believe that a person has contravened an infringement notice provision, the Commission may issue an infringement notice to the person. (2) The Commission must not issue more than one infringement notice to

the person for the same alleged contravention of the infringement notice provision. (3) The infringement notice does not have any effect if the notice: (a) is issued more than 12 months after the day on which the contravention of the infringement notice provision is alleged to have occurred; or [page 556] (b) relates to more than one alleged contravention of an infringement notice provision by the person. (4) Matters to be included in an infringement notice An infringement notice must: (a) be identified by a unique number; and (b) state the day on which it is issued; and (c) state the name and address of the person to whom it is issued; and (d) identify the Commission; and (e) state how the Commission may be contacted; and (f) give details of the alleged contravention by the person, including: (i) the date of the alleged contravention; and (ii) the particular infringement notice provision that was allegedly contravened; and (g) state the maximum pecuniary penalty that the court could order the person to pay under section 76 for the alleged contravention; and (h) specify the penalty that is payable in relation to the alleged contravention; and (i) state that the penalty is payable within the infringement notice compliance period for the notice; and (j) state that the penalty is payable to the Commission on behalf of the Commonwealth; and (k) explain how payment of the penalty is to be made; and (l) explain the effect of sections 60M, 60N, 60P and 60Q. (5) Amount of penalty The penalty to be specified in an infringement notice that is to be issued to a person in relation to an alleged contravention

of an infringement notice provision must be: (a) if the person is a listed corporation — 600 penalty units; or (b) if the person is a body corporate other than a listed corporation— 60 penalty units; or (c) if the person is not a body corporate — 12 penalty units.

[11,052] Effect of compliance with an infringement notice 60M (1) Scope This section applies if: (a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and (b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and (c) the infringement notice is not withdrawn under section 60Q. (2) Effect The person is not, merely because of the payment, regarded as: (a) having contravened the infringement notice provision; or (b) having been convicted of an offence constituted by the same conduct that constituted the alleged contravention of the infringement notice provision. (3) No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to: (a) the alleged contravention of the infringement notice provision; or (b) an offence constituted by the same conduct that constituted the alleged contravention. [page 557]

[11,055] Effect of failure to comply with an infringement notice 60N

If:

an infringement notice for an alleged contravention of an (a) infringement notice provision is issued to a person; and (b) the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and (c) the infringement notice is not withdrawn under section 60Q; the person is liable to proceedings under Part VI in relation to the alleged contravention of the infringement notice provision.

[11,057] Infringement notice compliance period for infringement notice 60P (1) The infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day on which the infringement notice is issued by the Commission. (2) Subsection (1) has effect subject to subsection (7). (3) The Commission may extend, by notice in writing, the infringement notice compliance period for the notice if the Commission is satisfied that it is appropriate to do so. (4) Only one extension may be given, and the extension must not be for longer than 28 days. (5) Notice of the extension must be given to the person who was issued the infringement notice. (6) A failure to comply with subsection (5) does not affect the validity of the extension. (7) If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.

[11,060]

Withdrawal of an infringement notice

60Q (1) Representations to the Commission A person to whom an infringement notice has been issued for an alleged contravention of an infringement notice provision may make written representations to the

Commission seeking the withdrawal of the infringement notice. (2) Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading). (3) Withdrawal by the Commission The Commission may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so. [page 558] (4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal. (5) Content of withdrawal notices The withdrawal notice must state: (a) the name and address of the person; and (b) the day on which the infringement notice was issued to the person; and (c) that the infringement notice is withdrawn; and (d) that proceedings under Part VI may be started or continued against the person in relation to: (i) the alleged contravention the infringement notice provision; or (ii) an offence constituted by the same conduct that constituted the alleged contravention. (6) Time limit for giving withdrawal notices To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice. (7) Refunds If the infringement notice is withdrawn after the person has paid the penalty specified in the infringement notice, the Commission must, on behalf of the Commonwealth, refund to the person an amount equal to the amount paid. Note: For appropriation, see section 28 of the Financial Management and

Accountability Act 1997.

[11,062]

Effect of this Division

60R This Division does not: (a) require an infringement notice to be issued to a person for an alleged contravention of an infringement notice provision; or (b) affect the liability of a person to proceedings under Part VI in relation to an alleged contravention of an infringement notice provision if: (i) an infringement notice is not issued to the person for the alleged contravention; or (ii) an infringement notice issued to a person for the alleged contravention is withdrawn under section 60Q; or (c) prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice.

[page 559] PART VA — LIABILITY OF MANUFACTURERS AND IMPORTERS FOR DEFECTIVE GOODS [Repealed] [Pt VA rep Act 103 of 2010 s 3 and Sch 5[49], opn 1 Jan 2011] INTRODUCTION TO PART VA [11,100.5] This Part was repealed by the legislation that introduced the ACL. It has now been subsumed within the ACL. See [14,500.5] and Sch 2 to the Act. A comparative table of the old Pt VA provisions and their equivalents in the ACL is located at [10,001].

[page 561] PART VB — PRICE EXPLOITATION IN RELATION TO A NEW TAX SYSTEM [Repealed] [Pt VB rep Act 111 of 2009 s 3 and Sch 1[32], opn 17 Nov 2009] INTRODUCTION TO PART VB [REPEALED] [11,200.0] Overview This Part was inserted by the A New Tax System (Trade Practices Amendment) Act 1999. It commenced on 9 July 1999 but was repealed on 17 November 2009. It was part of the Commonwealth Government’s new tax system which included the introduction of a broadbased goods and services tax (GST) to replace other indirect taxes, such as wholesale sales tax. The purpose of the Part was to ensure that the full benefit from the reduction of indirect taxes was passed on to consumers during the two-year “New Tax System transition period”. Section 75AU prohibited a corporation engaging in price exploitation during this period. The commission was entitled to issue notices under s 75AW if it considered a corporation contravened s 75AU. However, as the transition period has ended the commission no longer has this role and the part was repealed. However, quite separately to Pt VB, the incorrect representation of GST in an advertisement may attract liability under the ACL. See [14,500.5] and Sch 2 to the Act.

[page 563] PART VC — OFFENCES [Repealed] [Pt VC rep Act 103 of 2010 s 3 and Sch 5[49], opn 1 Jan 2011] INTRODUCTION TO PART VC [11,300.0] This Part was repealed by the legislation that introduced the ACL. It has now been subsumed within the ACL. See [14,500.5] and Sch 2 to the Act. A comparative table of the old Pt VC provisions and their equivalents in the ACL is located at [10,001].

[page 565] PART VI — ENFORCEMENT AND REMEDIES INTRODUCTION TO PART VI [11,585.1] Overview Part VI contains the majority of the remedies available for contraventions of Pts IV and IVB of the Act. The ACL in Sch 2 to the Act now houses the remedies available for breaches of the ACL.

[11,585]

Interpretation

75B (1) A reference in this Part to a person involved in a contravention of a provision of Part IV or IVB, or of section 55B, 60C, 60K or 95AZN, shall be read as a reference to a person who: (a) has aided, abetted, counselled or procured the contravention; (b) has induced, whether by threats or promises or otherwise, the contravention; (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention. [subs (1) am Act 222 of 1992 s 19 and Sch 1; Act 36 of 1998 Sch 1; Act 61 of 1999 s 3 and Sch 1; Act 69 of 2000 s 3 and Sch 1; Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; Act 131 of 2006 s 3 and Sch 9[1], opn 1 Jan 2007; Act 111 of 2009 s 3 and Sch 1[33], opn 17 Nov 2009; Act 103 of 2010 s 3 and Sch 5[50], opn 1 Jan 2011; Act 83 of 2014 s 3 and Sch 2 item 4, opn 18 July 2014; Act 9 of 2016 s 3 and Sch 1 item 4, opn 25 Feb 2016]

(2) In this Part, unless the contrary intention appears: (a) a reference to the Court in relation to a matter is a reference to any court having jurisdiction in the matter; (b) a reference to the Federal Court is a reference to the Federal Court of Australia; and (c) a reference to a judgment is a reference to a judgment, decree or order, whether final or interlocutory. [subs (2) insrt Act 23 of 1987 Sch] [s 75B insrt Act 81 of 1977 s 45]

SECTION 75B GENERALLY [11,585.5] Constitutional validity of s 75B Section 75B is a valid enactment of the Commonwealth Parliament. The reason for its validity was explained by a majority of the High Court in Fencott v Muller (1983) 152 CLR 570; 46 ALR 41 at 60; 57 ALJR 317; (1983) ATPR ¶40-350 at 44,216 as follows: Another way of expressing this approach is to say that where a law prescribing the way in which corporations shall conduct their trading activities is supported by the corporations power, an ancillary provision reasonably adapted to deter other persons from facilitating a contravention of the law by a corporation is supported by the same power. It is within the competence of the parliament to enact such a provision to secure compliance with a valid statutory command. A valid statutory command directed to a particular class may be strengthened by a provision imposing a liability upon other persons who are involved in the contravention by a person to whom the command is directed, provided that the ancillary provision is reasonably adapted to securing obedience to the command.

[page 566] [11,585.10] “a person involved in a contravention” The only purpose of s 75B is to define who is a person involved in a contravention. The section itself is not a source of liability. A claim which requires a party to rely on the provisions of s 75B is nevertheless a claim under s 82 and should be pleaded as if it were such a claim: Nella v Kingia Pty Ltd (1986) 11 FCR 281; 61 ALR 603; (1986) ATPR ¶40-723 at 47,920. The power to make an order against a person involved in a contravention and the liability of that person are dependent on and derived from the proof of conduct in contravention of a provision of the Act by a person to whom the Act applies: Trade Practices Commission v Manfal Pty Ltd (No 3) (in liq) (1991) 33 FCR 382; 105 ALR 520; (1992) ATPR ¶41-160 at 40,181 per Lee J. The expression “involved” in s 2(1) ACL broadly reproduces s 75B. [11,585.15] Intention Section 75B imports the requirements of the criminal law: Caple v All Fasteners (WA) (a firm) [2005] FCA 1558; BC200509360 at [19] per Nicholson J. Aiding, abetting, counselling or procuring the contravention of a provision of the Act requires an element of intention: Yorke v Lucas (1983) 49 ALR 672; 80 FLR 143; (1983) ATPR

¶40-401; Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681; (1994) ATPR (Digest) ¶46-133; Australian Competition and Consumer Commission v Bio Enviro Plan Pty Ltd [2003] FCA 232; BC200301116 at [26] per Nicholson J; Australian Competition and Consumer Commission v Francis (2004) ATPR (Digest) ¶46-250; [2004] FCA 487; BC200402108 at [84] per Gray J. Indeed, it has been suggested that the reasoning of the High Court in Yorke v Lucas, above, suggests that intent is an essential element for all of the forms of conduct referred to in s 75B: Trade Practices Commission v Service Station Assn Ltd (1992) 109 ALR 465; (1992) ATPR ¶41-179 at 40,456; Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) (1993) 44 FCR 485; 122 ALR 279; (1993) ATPR ¶41-272 at 41,672; Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd (1998) ATPR ¶41-641; Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1; Bray v F HoffmanLa Roche Ltd (2002) 118 FCR 1; 190 ALR 1; [2002] FCA 243; BC200200786 at [162] per Merkel J; Cassidy v NRMA Health Pty Ltd (2002) ATPR ¶41-891; [2002] FCA 1228; BC200205849 at [73] per Jacobson J; Motor Trade Finances Prestige Leasing Pty Ltd v Elderslie Finance Group Corporation Ltd [2006] NSWSC 1348; BC200610351 at [271] per White J. The state of mind required to establish accessorial liability under s 75B does not necessarily involve actual subjective knowledge of a contravention. That is, a person could be liable under s 75B while still acting in good faith: Dimension Data Australia Pty Ltd v Kepper [2000] FCA 218; BC200001147. There may be circumstances where knowledge may be inferred: Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd [2006] FCA 1268; BC200607560 at [278] per Lander J. Liability as an accessory (where the contravening conduct of the principal was the making of false or misleading representations) does not depend on an affirmative answer to the question of whether the alleged accessory knew the representations were false or misleading. All that is necessary is for the accessory to know of the matters that enabled the representations to be characterised in that way: Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402; [2003] FCAFC 289; BC200307781 at [15] per Moore J. However, in a situation where representations are made to the public and where they are misleading or deceptive it seems inapt to explore the question of whether the alleged accessory knew the representations were false or

misleading in some subjective sense. It is probably appropriate to consider, and only consider, the question of whether the alleged accessory knew that the conduct of the principal might lead members of the public to assume a state of affairs which was not the true state of affairs: Medical Benefits Fund of Australia Ltd v Cassidy, above, at [16] per Moore J. [11,585.16] Rule in Browne v Dunn The rule in Browne v Dunn (1893) 6 R 67 is formulated by Hunt J in Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 16; (1983) 44 ALR 607 at 623 as follows: [page 567] It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.

The rule in Browne v Dunn does not apply where the witness is on notice that the witness’s version is in contest: Caple v All Fasteners (WA) (a firm) [2005] FCA 1558; BC200509360 at [26] per Nicholson J; Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678; BC200509986 at [115] per Kenny J. This notice may come from the pleadings: Caple v All Fasteners (WA) (a firm), above, at [26] per Nicholson J. It may also come from the manner in which the case is conducted: Walker v Citigroup Global Markets Pty Ltd, above, at [115] per Kenny J. [11,585.18] Application of s 75B(1) to a state In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9; BC9901019, the majority of the High Court said that the question of whether “person” in s 75B(1) of the Act extends to a state is a different question to whether the Act “binds the Crown in right of a State” under s 2B. They said that the answer depends on a textual consideration rather than the presumption considered in Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107; 24 ALR 9 and Bropho v Western

Australia (1990) 171 CLR 1; 93 ALR 207. They concluded that as a matter of interpretation a state is not a “person” for the purpose of s 75B(1). SECTION 75B(1)(a) [11,585.20] Aiding and abetting A person cannot be convicted of aiding and abetting the commission of an offence unless he or she knew the facts which must be proved to show that an offence has been committed: Yorke v Lucas (1983) 49 ALR 672; 80 FLR 143; (1983) ATPR ¶40-401 at 44,680; Crocodile Marketing Ltd v Griffith Vintners Pty Ltd (1989) 91 ALR 273; (1990) ATPR ¶41-000; Trade Practices Commission v Service Station Assn Ltd (1992) 109 ALR 465; (1992) ATPR ¶41-179 at 40,455; Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681; (1994) ATPR (Digest) ¶46-133; Kinlace Pty Ltd v Mortgage Finance Australia Ltd (in liq) [1995] ANZ Conv R 21 at 38; Australian Competition and Consumer Commission v Mayo International Pty Ltd (No 2) (1998) ATPR ¶41-654; Bialkower v Acohs Pty Ltd (1999) ATPR ¶41-685; Hanave Pty Ltd v LFOT Pty Ltd (1999) 168 ALR 318; (1999) ATPR ¶41-725; Australian Competition and Consumer Commission v Grant [2000] FCA 1564; BC200006828; Contact Minerals Pty Ltd v Mineral Providers Australia Pty Ltd [2001] FCA 1042; BC200104447 at [50] per Tamberlin J; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442; [2001] FCA 1800; BC200107852 at [501] per Hill J; Australian Competition and Consumer Commission v Francis (2004) ATPR (Digest) ¶46-250; [2004] FCA 487; BC200402108 at [84] per Gray J; Hatt v Magro [2007] WASCA 124; BC200704368 at [40] per Steytler P, Wheeler JA (agreeing) and Pullin JA; Australian Competition and Consumer Commission v Original Mama’s Pizza and Ribs Pty Ltd [2008] FCA 370; BC200802340 at [147] per Madgwick J; Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd (No 2) [2008] FCA 1480; BC200808721 at [109] per Flick J; STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240; BC201008447 at [55] per Rares J. It is not necessary that the person does not appreciate that those essential matters amount to a contravention of the Act: Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302 at 346; (1999) ATPR ¶41-718; Australian Competition and Consumer

Commission v Grant, above; King v GIO Australia Holdings Ltd [2001] FCA 308; [page 568] BC200101358 at [16]; Rural Press Ltd v Australian Competition and Consumer Commission (2003) 203 ALR 217; 78 ALJR 274; [2003] HCA 75; BC200307578 at [48]; AMI Australia Holdings Pty Ltd v Bade Medical Institute (Aust) Pty Ltd (No 2) (2009) 262 ALR 458; 84 IPR 19; [2009] FCA 1437; BC200910991 at [93] per Flick J. It is also not necessary that there be an intention to contravene the Act, provided that there is an intention to commit or participate in the commission of the acts which in fact give rise to the contravention: Australian Competition and Consumer Commission v Grant, above. “Knowledge” means actual knowledge. A deliberate failure to gain the necessary knowledge by failing to make reasonable enquiries in circumstances where the defendant expects the existence of a fact which may be revealed upon enquiry may render a person liable as an aider and abetter: Yorke v Lucas, above: Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1; Bowler v Hilda Pty Ltd [2000] FCA 899; BC200003837; Fried v Dixie Holdings Pty Ltd [2000] FCA 1048; BC200004338. Present knowledge as distinct from past knowledge is required: Lawson Hill Estate Pty Ltd v Tovegold Pty Ltd [2004] FCA 1593; BC200408492 at [165] per Wilcox J; Doney v Palmview Sawmill Pty Ltd (2005) ATPR ¶42064; [2005] QSC 62; BC200501682 at [42] per McMurdo J; Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd [2005] FCA 1703; BC200510099 at [32] per Nicholson J; Caple v All Fasteners (WA) (a firm) [2005] FCA 1558; BC200509360 at [22] per Nicholson J. SECTION 75B(1)(b) [11,585.50] Inducing a contravention Inducing a contravention denotes some act of compulsion by force or threat of force or some act of persuasion or stimulation aimed at ensuring that an act is committed which constitutes a contravention: Yorke v Lucas (1983) 49 ALR 672; 80 FLR 143; (1983)

ATPR ¶40-401; Yorke v Ross Lucas Pty Ltd (1985) 158 CLR 661; 61 ALR 307; 59 ALJR 776; (1985) ATPR ¶40-622; Trade Practices Commission v Service Station Assn Ltd (1992) 109 ALR 465; (1992) ATPR ¶41-179 at 40,456. SECTION 75B(1)(c) [11,585.60] Knowingly concerned The phrase “knowingly concerned” in s 75B(1)(c) incorporates a mental element. It must be shown that a party to a contravention is an intentional participant in the sense that the party possesses knowledge of the essential facts constituting the contravention: Yorke v Lucas (1983) 49 ALR 672; 80 FLR 143; (1983) ATPR ¶40-401; Wheeler Grace & Pierucci Pty Ltd v Wright (1989) ATPR ¶40-940 at 50,256; Crocodile Marketing Ltd v Griffith Vintners Pty Ltd (1989) 91 ALR 273; (1990) ATPR ¶41-000; Trade Practices Commission v Service Station Assn Ltd (1992) 109 ALR 465; (1992) ATPR ¶41-179 at 40,456; Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd (1998) ATPR ¶41-641; Australian Competition and Consumer Commission v Mayo International Pty Ltd (No 2) (1998) ATPR ¶41-654; Embo Holdings Pty Ltd v Camm (1998) ATPR (Digest) ¶46-184; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302; (1999) ATPR ¶41718; Batten v CTMS Ltd [1999] FCA 1576; BC9907364; Rinbridge Marketing Pty Ltd v Walsh [2000] FCA 1738; BC200007846; Australian Competition and Consumer Commission v Grant [2000] FCA 1564; BC200006828; Arms v WSA Online Ltd [2003] FCA 835; BC200304372 at [12] per Ryan J; Houghton v Arms [2006] HCA 59; BC200610333 at [17] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Rural Press Ltd v Australian Competition and Consumer Commission (2003) 203 ALR 217; 78 ALJR 274; [2003] HCA 75; BC200307578 at [48]; Nea Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106; BC200503806 at [278] per EM Heenan J. [page 569] For a person to be directly or indirectly knowingly concerned in a contravention there must at least be some practical involvement by the person in the acts or omissions constituting the contravention: Australian

Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 5) [2014] FCA 340 at [543] per Yates J. [11,585.65] Party to the contravention The expression “party to the contravention” refers to a person who participates in or assents to the contravention in question. In order to be a party to the contravention the person must be aware of the relevant facts and the elements of the contravention: Yorke v Lucas (1983) 49 ALR 672; 80 FLR 143; (1983) ATPR ¶40-401; Wheeler Grace & Pierucci Pty Ltd v Wright (1989) ATPR ¶40-940; Bell v Australasian Recyclers (WA) Pty Ltd (1986) ATPR ¶40-644; Crocodile Marketing Ltd v Griffith Vintners Pty Ltd (1989) 91 ALR 273; (1990) ATPR ¶41-000; Trade Practices Commission v Service Station Assn Ltd (1992) 109 ALR 465; (1992) ATPR ¶41-179 at 40,456; Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-804; [2001] FCA 116; BC200100573 at [136] per Mansfield J; (appeal) Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236; 193 ALR 399; [2002] FCAFC 213; BC200203866 at [160] per Whitlam, Sackville and Gyles JJ. It is not necessary that the person appreciate that the conduct is unlawful: Council of the City of Sydney v Goldspar Pty Ltd (2004) ATPR (Digest) ¶46-253; [2004] FCA 568; BC200402445 at [155] per Gyles J; Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 at [289] per Gordon J. It is not sufficient that the person is aware of some only of the relevant facts and the elements constituting the contravention: PJ Berry Estates Pty Ltd v Mangalore Homestead Pty Ltd (1984) ATPR ¶40-489 at 45,637; Australian Competition and Consumer Commission v Australian Purchasing & Tender Service Pty Ltd (1999) ATPR ¶41-684. [11,585.70] Natural person as an accessory to a corporate principal In Wright v Wheeler Grace & Pierucci Pty Ltd (1988) ATPR ¶40-865, French J considered the question of whether a natural person can be an accessory to a corporate principal whose liability arises from the act of that natural person. French J said that where the conduct upon which liability is founded is the only relevant conduct, it would be difficult to see how he can also bear the accessorial character. French J said that as a matter of construction, the conduct contemplated by the words of s 75B(1) is conduct distinct from that which constitutes the contravention. See also Western

Australia v Bond Corp Holdings (FCA, French J, WAG 115, 116 and 118 of 1990, 6 April 1992, unreported). However, Wright v Wheeler Grace & Pierucci Pty Ltd, above, (at first instance) was decided before the High Court decision in Hamilton v Whitehead (1988) 166 CLR 121 at 127–8; 82 ALR 626. In Hamilton v Whitehead Mason CJ, Wilson and Toohey JJ found that the person acting was acting as the company not as a servant or agent of the company. It follows from the fact that one person may act in dual capacities that the same person, in his or her personal capacity, can also aid and abet what the company, speaking through his or her mouth, may have done. See also Australian Competition and Consumer Commission v Black on White Pty Ltd (2001) 110 FCR 1; (2001) ATPR ¶41-820; [2001] FCA 187; BC200100893; Accredited Aged Care Facilities Pty Ltd v Banyan Tree (Aust) Pty Ltd [2002] VSC 261; BC200203896; Australian Competition and Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439; BC200207111 at [303] per Dowsett J; Australian Competition and Consumer Commission v Kaye [2004] FCA 1363; BC200407004 at [176] per Kenny J. See also [11,675.23]. [11,585.73] Principal and accessorial liability The Act distinguishes between principal liability and accessorial liability. Under this scheme a contravention may result in remedies irrespective of the principal’s state of mind. By contrast, accessorial liability is imposed only upon those who are knowingly concerned in the contravention: Cassidy v NRMA Health Pty Ltd (2002) ATPR ¶41-891; [2002] FCA 1228; BC200205849 at [72] per Jacobson J; see Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) ATPR ¶41-980; [2004] FCAFC 34; BC200400513 per Moore and Mansfield JJ. [page 570] There is no place in the scheme of the Act to resort to the common law of defamation to treat all those who are accessories to a publication as principals: Cassidy v NRMA Health Pty Ltd, above, at [65] per Jacobson J. SECTION 75B(1)(d)

[11,585.75] Conspiring The act of conspiring with others to effect a contravention in s 75B(1)(d) involves an element of intention requiring an agreement between two or more people to effect a prescribed act: Yorke v Lucas (1983) 49 ALR 672; 80 FLR 143; (1983) ATPR ¶40-401 at 44,684; Trade Practices Commission v Service Station Assn Ltd (1992) 109 ALR 465; (1992) ATPR ¶41-179 at 40,456. Accordingly the mere fact of being concerned in, or a party to, a contravention is insufficient: Yorke v Treasureway Stores Pty Ltd (1983) 46 ALR 319; (1983) ATPR ¶40-336 at 44,052. [11,585.78] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. See also Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402; [2003] FCAFC 289; BC200307781 per Moore, Mansfield and Stone JJ. [11,585.80] Equivalent state legislation For the equivalent provisions in the relevant Acts of the states and territories see the comparative table at [10,001]. See also Australian Competition and Consumer Commission v Davis [2003] FCA 1227; BC200306607 at [25] where Lee J discusses the potential inconsistency between this provision and the equivalent provision under the Western Australian law. ____________________

[11,590]

Pecuniary penalties

(1) If the Court is satisfied that a person: (a) has contravened any of the following provisions: (i) a provision of Part IV (other than section 44ZZRF or 44ZZRG); (ia) section 55B; (ii) section 60C; (iia) section 60K; (iii) section 95AZN;

76

(iv) a civil penalty provision of an industry code; or (b) has attempted to contravene such a provision; or (c) has aided, abetted, counselled or procured a person to contravene such a provision; or (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) has conspired with others to contravene such a provision; the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether [page 571] the person has previously been found by the Court in proceedings under this Part or Part XIB to have engaged in any similar conduct. Note: Section 87AA provides that, if boycott conduct is involved in proceedings, the Court must have regard to certain matters in exercising its powers under this Part. (Boycott conduct is defined in subsection 87AA(2).) [subs (1) am Act 88 of 1976 ss 8, 18 and Sch; Act 222 of 1992 s 10; Act 60 of 1996 s 3 and Sch 17; Act 58 of 1997 s 3 and Sch 1; Act 61 of 1999 s 3 and Sch 1; Act 69 of 2000 s 3 and Sch 1; Act 131 of 2006 s 3 and Sch 9[2], [3], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[22], opn 24 July 2009; Act 111 of 2009 s 3 and Sch 1[34], opn 17 Nov 2009; Act 83 of 2014 s 3 and Sch 2 item 5, opn 18 July 2014; Act 107 of 2014 s 3 and Sch 1 item 6, opn 1 Jan 2015; Act 9 of 2016 s 3 and Sch 1 item 5, opn 25 Feb 2016]

(1A) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed: (aa) for each act or omission to which this section applies that relates to section 44ZZRJ or 44ZZRK — the greatest of the following:

(a) (b)

(ba) (c) (ca)

(d)

(i) $10,000,000; (ii) if the court can determine the total value of the benefits that have been obtained (within the meaning of Division 1 of Part IV) by one or more persons and that are reasonably attributable to the act or omission — 3 times that total value; (iii) if the Court cannot determine the total value of those benefits — 10% of the annual turnover (within the meaning of Division 1 of Part IV) of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the act or omission occurred; and for each act or omission to which this section applies that relates to section 45D, 45DB, 45E or 45EA — $750,000; and for each act or omission to which this section applies that relates to any other provision of Part IV — the greatest of the following: (i) $10,000,000; (ii) if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission — 3 times the value of that benefit; (iii) if the Court cannot determine the value of that benefit — 10% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the act or omission occurred; and for each act or omission to which this section applies that relates to section 55B, 60C or 60K — 6,471 penalty units; and for each act or omission to which this section applies that relates to section 95AZN — $33,000; and for each act or omission to which this section applies that relates to a civil penalty provision of an industry code — the amount set out in the civil penalty provision of the industry code; and for each other act or omission to which this section applies — $10,000,000.

Note:

For annual turnover, see subsection (5).

[subs (1A) subst Act 131 of 2006 s 3 and Sch 9[4], opn 1 Jan 2007; am Act 59 of 2009 s 3 and Sch 1[23], opn 24 July 2009; Act 83 of 2014 s 3 and Sch 2 item 6, opn 18 July 2014; Act 107 of 2014 s 3 and Sch 1 item 7, opn 1 Jan 2015; Act 9 of 2016 s 3 and Sch 1 item 6, opn 25 Feb 2016]

[page 572] (1B) The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed: (aa) for each act or omission to which this section applies that relates to section 55B, 60C or 60K — 1,295 penalty units; and (a) for each act or omission to which this section applies that relates to section 95AZN — $6,600; and (aaa)for each act or omission to which this section applies that relates to a civil penalty provision of an industry code — the amount set out in the civil penalty provision of the industry code; and (b) for each other act or omission to which this section applies — $500,000. [subs (1B) subst Act 131 of 2006 s 3 and Sch 9[5], opn 1 Jan 2007; Act 83 of 2014 s 3 and Sch 2 item 7, opn 18 July 2014; am Act 107 of 2014 s 3 and Sch 1 item 8, opn 1 Jan 2015; Act 9 of 2016 s 3 and Sch 1 item 7, opn 25 Feb 2016]

(2) Nothing in subsection (1) authorises the making of an order against an individual because the individual has contravened or attempted to contravene, or been involved in a contravention of, section 45D, 45DA, 45DB, 45E or 45EA. [subs (2) insrt Act 60 of 1996 s 3 and Sch 17]

(3) If conduct constitutes a contravention of two or more provisions of Part IV (other than section 44ZZRF or 44ZZRG), a proceeding may be instituted under this Act against a person in relation to the contravention of any one or more of the provisions but a person is not liable to more than one pecuniary penalty under this section in respect of the same conduct. [subs (3) insrt Act 207 of 1978 s 5; am Act 59 of 2009 s 3 and Sch 1[24], opn 24 July 2009]

(4) The single pecuniary penalty that may be imposed in accordance with subsection (3) in respect of conduct that contravenes provisions to which 2 or more of the limits in paragraphs (1A)(aa), (a) and (b) apply is an amount up

to the highest of those limits. [subs (4) insrt Act 60 of 1996 s 3 and Sch 17; am Act 131 of 2006 s 3 and Sch 9[6], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[25], opn 24 July 2009]

(5) Annual turnover For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than: (a) supplies made from any of those bodies corporate to any other of those bodies corporate; or (b) supplies that are input taxed; or (c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999); or (d) supplies that are not made in connection with an enterprise that the body corporate carries on; or (e) supplies that are not connected with Australia. [subs (5) insrt Act 131 of 2006 s 3 and Sch 9[7], opn 1 Jan 2007]

(6) Expressions used in subsection (5) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act. [subs (6) insrt Act 131 of 2006 s 3 and Sch 9[7], opn 1 Jan 2007] [heading am Act 44 of 2010 s 3 and Sch 2[1], opn 15 Apr 2010; Act 103 of 2010 s 3 and Sch 5[51], opn 1 Jan 2011]

[page 573] SECTION 76 GENERALLY [11,590.5] Overview This section was amended by the Trade Practices Amendment Act (No 1) 2006 following the recommendations of the Dawson Committee. See [10,690.5]. Prior to the amendment the pecuniary penalty for a corporation was $10 million. The amendment provides for a pecuniary penalty that is the greater of:

• • •

$10 million; three times the value of the benefit gained by the corporation; if the court cannot determine the value of the benefit, then 10% of the annual turnover of the corporation of the previous 12 months in which the act or omission occurred. Annual turnover is defined as “the sum of the values of all the supplies that the body corporate and any body corporate related to the body corporate, have made or are likely to make, during that period”. The provision was further amended by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. See [10,690ZZRA.5]. The provision provides for similar pecuniary penalties for a contravention of the civil cartel provisions under ss 44ZZRJ and 44ZZRK. A separate pecuniary penalty regime applies to the ACL. See [14,500.5] and Sch 2 to the Act (s 224). Nevertheless the principles which have been applied under s 76 are equally applicable to the ACL: • Australian Competition and Conssnumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382; BC201102108 per Perram J; • Australian Competition and Consumer Commission v Smash Enterprises Pty Ltd [2011] FCA 375; BC201102076 at [21] per Gordon J; • Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 at [110] per Bennett J; • Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; BC201102241 per Gordon J; • Australian Competition and Consumer Commission (ACCC) v SMS Global Pty Ltd [2011] FCA 855; BC201105805 at [73] per Murphy J; • Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535; BC201203612 per Tracey J: • Australian Competition and Consumer Commission v EDirect Pty Ltd (in liq) [2012] FCA 976; BC201206672 per Reeves J; • Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134;

•

• •

BC201207034 at [119] per Greenwood, Logan and Yates JJ; Australian Competition and Consumer Commission v Adepto Publications Pty Ltd [2013] FCA 247; BC201301415 per Cowdroy J; Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2014] FCA 1434; BC201411359 per Pagone J; Australian Competition and Consumer Commission (ACCC) v Origin Energy Ltd [2015] FCA 55; BC201500418 per White J.

[11,590.8] Nature of proceedings The Act characterises proceedings under s 76 as being civil in nature. This is apparent from the combination of ss 78 and 79. Section 78 provides that criminal proceedings do not lie against a person for the reason that he has, inter alia, contravened a provision of Pt IV. However, s 79 (now relevantly Pt VC) provides that it is an offence to breach a provision of Pt V other than s 52, 52A, 65Q, 65R or 65F(9): Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153; 65 ALR 429; (1986) ATPR ¶40-674 at 47,431. [page 574] Part VC and the relevant subss 79(2)–(4) and (6) were repealed by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 No 103 of 2010, opn 1 Jan 2011. Note that ACL s 217 states that criminal proceedings cannot be brought for contraventions of Chs 2 and 3. [11,590.10] Standard of proof As indicated, proceedings for the enforcement of a pecuniary penalty are not a criminal prosecution but are civil in nature. Accordingly, the civil standard of proof will apply, that is, the necessary facts must be proved on the balance of probabilities. However, the court is required to have regard to the gravity of matters alleged: • Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153; 65 ALR 429; (1986) ATPR ¶40-674 at 47,431. • See also Trade Practices Commission v Orlane Australia Pty Ltd (1983) 48 ALR 169; • Trade Practices Commission v Nicholas Enterprises Pty Ltd (No

•

2) (1979) 26 ALR 609; 40 FLR 83; (1978) ATPR ¶40-126; Australian Competition and Consumer Commission v Health Partners Inc (1998) ATPR ¶41-604. SECTION 76(1)

[11,590.15] Facts relevant to assessing penalty In Trade Practices Commission v Madad Pty Ltd (1979) 40 FLR 453; (1979) ATPR ¶40-105 at 18,056, Keely J provided the following guidance to legal practitioners in relation to facts relied on in relation to penalties: In my view the statutory direction that the court have regard to the matter specified makes it desirable that each party which wishes the court to take into account in determining a penalty any matter or fact should establish that fact by sworn evidence — unless some reason is advanced which satisfies the court that particular facts, which have been especially agreed on by the parties, should be accepted by the court . . . Accordingly, I consider it preferable that evidence of the facts which either party proposes to rely on should be placed on affidavit and filed and served upon the opposing party in sufficient time to enable it to check the accuracy of the statements in it. It may be necessary for it to seek detailed instructions as to the facts asserted in order to enable cross-examination of a deponent or for the preparation of affidavits in reply.

[11,590.20] Matters of principle relevant in assessing penalty The courts have considered the following matters of principle in setting a pecuniary penalty: Punishment proportionate to the deliberation The penalty should constitute a real punishment proportionate to the deliberation with which the defendant contravened the Act. Penalties imposed by s 76 are not criminal: • NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; 141 ALR 640; (1997) ATPR 41-546; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; 145 ALR 36; (1997) ATPR 41-562; BC9702200; • Australian Competition and Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 5) (1998) ATPR 41-628; • (appeal) J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532; [2000] FCA 365; BC200001721; • Australian Competition and Consumer Commission v CC (NSW)

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Pty Ltd (No 9) (2000) ATPR ¶41-756; [2000] FCA 23; BC200000029; Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833; [2001] FCA 1065; BC200104475 at [37] per Mansfield J; Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851; [2001] FCA 1716; BC200107639 at [49] per Wilcox, Hill and Carr JJ; [page 575]

Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; (2002) ATPR 41-872; [2002] FCA 559; BC200202127 at [17]– [18] per Finkelstein J; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002) ATPR 41-862; [2002] FCA 192; BC200200656 at [32] per Hill J. A consideration of the deliberateness of the contravention does not involve a moral issue but takes into account the calculated manner in which a course of conduct has been undertaken: J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission, above. However, it has been said that the purpose of a penalty under s 76 is not punishment: • NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission, above, ATPR at 43,581; • Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 at 40,986; [2000] FCA 690; BC200002723; • Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 42-022; [2004] FCA 1171; BC200406682 at [88] per Lander J. • See also Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; (2005) •

ATPR 42-052; [2005] FCA 265; BC200501239 at [37]–[38] per Merkel J; • Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; BC201104538 at [88] per Gilmour J. In Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2), above, Finkelstein J undertook a review of the role of penalties. He said at [16] that the object of general deterrence is to prevent harmful conduct and should be seen as a fundamental goal of sentencing. For that reason general deterrence justifies the imposition of what might otherwise be regarded as a harsh penalty (that is, a penalty that takes into account not only the offender’s conduct, but the criminal propensity of others) for the individual concerned, to bring about a greater benefit for society as a whole. In Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd (2004) ATPR ¶42-011; [2004] FCA 819; BC200404376 at [46] Emmett J said that there can be little doubt that one of the objects of s 76 is to penalise those who have engaged in a contravention. See also Australian Competition and Consumer Commission v Dermalogica Pty Ltd (2005) 215 ALR 482; [2005] FCA 152; BC200500619 at [68] per Goldberg J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21; BC200600152 at [16] per Goldberg J. Deterrence The penalty should be sufficiently high to have a deterrent quality bearing in mind that the Act operates in a commercial environment. Deterrence has two aspects — specific deterrence in respect of the actual contravener and general deterrence of others who may be disposed to engage in conduct of the same kind: • Trade Practices Commission v Axive Pty Ltd (1994) ATPR ¶41368; • Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375; • Australian Competition and Consumer Commission v Telstra Corp Ltd (1997) ATPR ¶41-450; • Trade Practices Commission v Simsmetal Ltd (1996) ATPR ¶41449;

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NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; 141 ALR 640; (1997) ATPR ¶41-546; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; 145 ALR 36; Australian Competition and Consumer Commission v Cromford Pty Ltd (1998) ATPR ¶41-618; [page 576]

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Australian Competition and Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 5) (1998) ATPR ¶41-628; (appeal) J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532; [2000] FCA 365; BC200001721; Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 9) (2000) ATPR ¶41-756; [2000] FCA 23; BC200000029; Australian Competition and Consumer Commission v Sundaze Australia Pty Ltd (2000) ATPR ¶41-736 at 40,539; Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR ¶41-763; [2000] FCA 690; BC200002723; Australian Competition and Consumer Commission v Simsmetal Ltd (2000) ATPR ¶41-764; [2000] FCA 818; BC200003308; Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2000) ATPR ¶41-777; [2000] FCA 997; BC200004161; Australian Competition and Consumer Commission v Roche Vitamins Australia Pty Ltd (2001) ATPR ¶41-809; [2001] FCA 150; BC200100527; Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-833; [2001] FCA 1065; BC200104475 at [7] per Mansfield J; Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR ¶41-851; [2001] FCA 1716;

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BC200107639 at [49] per Wilcox, Hill and Carr JJ; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002) ATPR ¶41-862; [2002] FCA 192; BC200200656 at [32] per Hill J; Australian Competition and Consumer Commission v SIP Australia Pty Ltd (2003) ATPR ¶41-937; [2003] FCA 336; BC200301754 at [22] per Goldberg J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022; [2004] FCA 1171; BC200406682 at [86] per Lander J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-031; [2004] FCA 1425; BC200407312 at [14] per Selway J; Australian Competition and Consumer Commission v DM Faulkner Pty Ltd [2004] FCA 1666; BC200406522 at [65] per Bennett J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; BC200501242 at [23] per Merkel J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; (2005) ATPR ¶42-052; [2005] FCA 265; BC200501239 at [35] per Merkel J; Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597; BC200408513 at [45] per Bennett J; Australian Competition and Consumer Commission v Dermalogica Pty Ltd (2005) 215 ALR 482; [2005] FCA 152; BC200500619 at [64] per Goldberg J; Australian Competition and Consumer Commission v Gullyside Pty Ltd [2005] FCA 1727; BC200510280 at [34] per Kiefel J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21; BC200600152 at [15] per Goldberg J; Australian Competition and Consumer Commission v Cambur Industries Pty Ltd [2006] FCA 1027; BC200606158 at [64] per Besanko J;

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Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11; BC200700068 at [13] per Young J; Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085; BC200705831 at [15] per Nicholson J; Australian Competition and Consumer Commission v Knight (2007) ATPR ¶42-165; [2007] FCA 1011; BC200705190 at [73] per Mansfield J; [page 577]

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Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; BC200707710 at [60] per Moore, Dowsett and Greenwood JJ; Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859; BC200710470 at [17] per Kenny J; Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834; BC200710229 at [116] per Weinberg J; Australian Competition and Consumer Commission v Navman Australia Pty Ltd (2008) ASAL ¶55-182; [2007] FCA 2058; BC200711308 at [113] per Gordon J; Australian Competition and Consumer Commission v FChem (Aust) Ltd [2008] FCA 344; BC200801851 at [31] per Cowdroy J; Secretary, Department of Health and Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545; BC200809192 per Flick J; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976; BC200811642 at [20] per Lindgren J; Australian Competition and Consumer Commission v White Top Taxis Ltd (2009) 253 ALR 449; [2009] FCA 88; BC200900661 at [22] per Finkelstein J; Australian Competition and Consumer Commission v Qantas

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Airways Ltd (2008) 253 ALR 89; [2008] FCA 1976; BC200811642 at [21] per Lindgren J; Australian Competition and Consumer Commission v British Airways plc [2008] FCA 1977; BC200811643 per Lindgren J; Australian Competition and Consumer Commission v Australian Karting Association (NSW) Inc [2009] FCA 1255; BC200910103 at [64] per Bennett J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [38] per Bennett J; Australian Competition and Consumer Commission v Cabcharge Australia Ltd [2010] FCA 1261; BC201008676 at [46] per Finkelstein J; Australian Competition and Consumer Commission v Robinson [2011] FCA 17; BC201100065 per Besanko J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153; BC201100688 per Bennett J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 at [112] per Bennett J; Australian Competition and Cosnnsumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382; BC201102108 per Perram J; Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; BC201104538 at [93] per Gilmour J; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; BC201102241 at [93] per Gordon J; Australian Competition and Consumer Commission (ACCC) v SMS Global Pty Ltd [2011] FCA 855; BC201105805 at [76] per Murphy J; Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489; BC201109859 per Bennett J; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 per

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Murphy J; Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20; BC201201062 per Keane CJ, Finn & Gilmour JJ; Australian Competition and Consumer Commission v Apple Pty Ltd [2012] FCA 646; BC201204443 per Bromberg J; Australian Competition and Consumer Commission v ACN 135 183 372 (in liq) [2012] FCA 749; BC201205140 per Marshall J; Australian Competition and Consumer Commission v EDirect Pty Ltd (in liq) [2012] FCA 976; BC201206672 per Reeves J; [page 578]

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Australian Competition and Consumer Commission v Metricon Homes Qld Pty Ltd [2012] FCA 797; BC201205545 per Collier J; Australian Competition and Consumer Commission v Eternal Beauty Products Pty Ltd [2012] FCA 1124; BC201207941 per Murphy J; Australian Competition and Consumer Commission v Emirates [2012] FCA 1108; BC201207958 per Katzmann J; Australian Competition and Consumer Commission v Cathay Pacific Airways Ltd (No 3) [2012] FCA 1392; BC201209542 per Katzmann J; Australian Competition and Consumer Commission v Singapore Airlines Cargo Pty Ltd [2012] FCA 1395; BC201209570 per Katznmann J; Australian Competition and Consumer Commission v Thai Airways International Public Co Ltd [2012] FCA 1434; BC201210485 per Katzmann J; Australian Competition and Consumer Commission v Jewellery Group Pty Ltd (No 2) [2013] FCA 14; BC201300073 per Lander J; Australian Competition and Consumer Commission v Kingisland Meatworks & Cellars Pty Ltd [2013] FCA 48; BC201300341 per Murphy J;

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Australian Competition and Consumer Commission v Neighbourhood Energy Pty Ltd [2012] FCA 1357; BC201209826 per Marshall J; Australian Competition and Consumer Commission v Adepto Publications Pty Ltd [2013] FCA 247; BC201301415 per Cowdroy J; Australian Competition and Consumer Commission v Pepe’s Ducks Ltd [2013] FCA 570; BC201310097 per Bromberg J; Australian Competition and Consumer Commission v Nonchalant Pty Ltd (in liq) [2013] FCA 605; BC201310332 per Gordon J; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 304 ALR 186; 88 ALJR 176; [2013] HCA 54; BC201315601 at [40] per French CJ, Crennan, Bell and Keane JJ; Australian Competition and Consumer Commission v HP Superstore Pty Ltd [2013] FCA 1317; BC201316405 Middleton J; Australian Competition and Consumer Commission v Moonah Superstore Pty Ltd [2013] FCA 1314; BC201315506 per Middleton J; Australian Competition and Consumer Commission v Salecomp Pty Ltd [2013] FCA 1316; BC201315503 per Middleton J; Australian Competition and Consumer Commission v Launceston Superstore Pty Ltd [2013] FCA 1315; BC201315502 per Middleton J; Director of Consumer Affairs Victoria v Dimmeys Stores Pty Ltd [2013] FCA 1371; BC201315882 per Marshall J; Australian Competition and Consumer Commission v Mitsubishi Electric Australia Pty Ltd [2013] FCA 1413; BC201315974 per Mansfield J; Australian Competition and Consumer Commission (ACCC) v Mandurvit Pty Ltd [2014] FCA 464; BC201403371, per McKerracher J; Australian Competition and Consumer Commission (ACCC) v BAJV Pty Ltd [2014] FCAFC 52; BC201403136 per Rares, Jessup and Flick JJ;

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Australian Consumer and Competition Commission (ACCC) v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998; BC201407650 per Barker J; Australian Competition and Consumer Commission v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393; BC201410907 per Wigney J; Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] FCA 83; BC201500687 per McKerracher J; Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2014] FCA 1434; BC201411359 per Pagone J; Australian Securities and Investments Commission (ASIC) v Cash Store Pty Ltd (in liq) (No 2) [2015] FCA 93; BC201500806 per Davies J. [page 579]

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Australian Competition and Consumer Commission (ACCC) v South East Melbourne Cleaning Pty Ltd (in liq) (formerly Known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) [2015] FCA 25; BC201500239 per Murphy J; Australian Competition and Consumer Commission (ACCC) v South East Melbourne Cleaning Pty Ltd (in liq) (Formerly Known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) (No 2) [2015] FCA 257; BC201501832 per Murphy J; Australian Competition and Consumer Commission (ACCC) v EnergyAustralia Pty Ltd [2015] FCA 274; BC201501979 per Gordon J; Australian Competition and Consumer Commission (ACCC) v Chopra [2015] FCA 539; BC201504567 per Middleton J; Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118; BC201508119 per Barker, Katzmann and Beach JJ; Australian Competition and Consumer Commission (ACCC) v Lux Distributors Pty Ltd (No 2) [2015] FCA 903; BC201507959 per Jessup J;

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Australian Competition and Consumer Commission (ACCC) v Omniblend Australia Pty Ltd [2015] FCA 871; BC201507809 per Beach J; Australian Competition and Consumer Commission (ACCC) v Visa Inc [2015] FCA 1020 per Wigney J; Australian Competition and Consumer Commission (ACCC) v Homeopathy Plus! Australia Pty Ltd (No 2) [2015] FCA 1090; BC201510011 at [25] per Perry J; Australian Securities and Investments Commission (ASIC) v Superannuation Warehouse Australia Pty Ltd [2015] FCA 1167; BC201510541 per Beach J; Australian Competition and Consumer Commission (ACCC) v Safety Compliance Pty Ltd (in Liq) (No 2) [2015] FCA 1469; BC201512872 per Farrell J. Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (No 7) [2016] FCA 424; BC201603031 per Edelman J. Australian Competition and Consumer Commission (ACCC) v SensaSlim Australia Pty Ltd (in Liq) (No 7) [2016] FCA 484; BC201603506 per Yates J.

Commercial standards in the Act The penalty should reflect the will of the parliament that the commercial standards laid down in the Act be observed but not be so high as to be oppressive. See Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR ¶40-091 at 17,896 in relation to subs (1)–(3); Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375 at 40,167. Parity principle All things being equal, persons guilty of similar contraventions should incur similar penalties: • NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; 141 ALR 640 at 295; (1997) ATPR ¶41-546 per Burchett and Kiefel JJ; • Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR ¶41-851; [2001] FCA 1716; BC200107639 at [25] per Wilcox, Hill and Carr JJ; • Australian Competition and Consumer Commission v Universal

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Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002) ATPR ¶41-862; [2002] FCA 192; BC200200656 at [34] per Hill J; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; (2002) ATPR ¶41-872; [2002] FCA 559; BC200202127 at [40] per Finkelstein J; Australian Competition and Consumer Commission v FFE Building Services Ltd (2004) Aust Contract R ¶90-179; [2003] FCA 1542; BC200307944 at [20] per Wilcox J; Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd (2004) ATPR ¶42-011; [2004] FCA 819; BC200404376 at [49] per Emmett J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022; [2004] FCA 1171; BC200406682 at [84] per Lander J; [page 580]

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Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-031; [2004] FCA 1425; BC200407312 at [33] per Selway J; Australian Competition and Consumer Commission v Gullyside Pty Ltd [2005] FCA 1727; BC200510280 at [33] per Kiefel J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21; BC200600152 at [20] per Goldberg J; Australian Competition and Consumer Commission v Cambur Industries Pty Ltd [2006] FCA 1027; BC200606158 at [66] per Besanko J; Australian Competition and Consumer Commission v Liquorland (Aust) Pty Ltd [2006] FCA 1799; BC200610872 at [11] per Allsop J; Australian Competition and Consumer Commission v Netti Atom Pty Ltd [2007] FCA 1945; BC200710709 at [12] per Finkelstein J;

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Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859; BC200710470 at [17] per Kenny J; Australian Competition and Consumer Commission v FChem (Aust) Ltd [2008] FCA 344; BC200801851 at [33] per Cowdroy J; Australian Competition and Consumer Commission v Australian Karting Association (NSW) Inc [2009] FCA 1255; BC200910103 at [64] per Bennett J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [41] per Bennett J; Australian Competition & Consumer Commission (ACCC) v Admiral Mechanical Services Pty Ltd [2010] FCA 348; BC201002123 per Gilmour J; Australian Competition and Consumer Commission v Cabcharge Australia Limited [2010] FCA 1261; BC201008676 at [54] per Finkelstein J; Australian Competition and Consumer Commission v Black & White Cabs Pty Ltd [2010] FCA 1399; BC201009585 at [11] per Finkelstein J; Australian Communications and Media Authority v Mobilegate Ltd a Company Incorporated in Hong Kong (No 9) [2010] FCA 1383 at [35]; BC201009337 per Logan J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153; BC201100688 at [38] per Bennett J; Australian Competition and Consumer Commission v Willesee Healthcare Pty Ltd (No 2) [2011] FCA 752 at [57] per DoddsStreeton J; Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; BC201104538 at [89] per Gilmour J; Australian Competition and Consumer Commission (ACCC) v SMS Global Pty Ltd [2011] FCA 855; BC201105805 at [80] per Murphy J; Australian Competition and Consumer Commission v TPG

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Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 per Murphy J; Australian Competition and Consumer Commission v Eternal Beauty Products Pty Ltd [2012] FCA 1124; BC201207941 per Murphy J; Australian Competition and Consumer Commission v Emirates [2012] FCA 1108; BC201207958 per Katzmann J; Australian Competition and Consumer Commission v Singapore Airlines Cargo Pty Ltd [2012] FCA 1395; BC201209570 per Katzmann J; Australian Competition and Consumer Commission v Thai Airways International Public Co Ltd [2012] FCA 1434; BC201210485 per Katzmann J; Australian Competition and Consumer Commission v Neighbourhood Energy Pty Ltd [2012] FCA 1357; BC201209826 per Marshall J; TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190 per Jacobson, Bennett and Gilmour JJ; TPG Internet Pty Ltd v Australian Competition and Consumer Commission (No 2) [2013] FCAFC 37; BC201301550 per Jacobson, Bennett & Gilmour JJ; [page 581]

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Australian Competition and Consumer Commission (ACCC) v NSK Australia Pty Ltd [2014] FCA 453; BC201403443 per Edmonds J; Australian Competition and Consumer Commission v Dateline Imports Pty Ltd (No 2) [2014] FCA 1222 per Rangiah J; In Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2015] FCA 274; BC201501979 per Gordon J; Australian Competition and Consumer Commission (ACCC) v AGL South Australia Pty Ltd [2015] FCA 399; BC201503290 per White J; Australian Securities and Investments Commission (ASIC) v Superannuation Warehouse Australia Pty Ltd [2015] FCA 1167;

BC201510541 per Beach J; • Australian Competition and Consumer Commission (ACCC) v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62; BC201600510 per Mortimer J. However, the parity principle does not necessarily require corporations guilty of similar contraventions of the Act to incur the same or similar penalties because it is a rarer case in which the consequences of a contravention are identical, and a variety of factors may play a part in determining the appropriate penalty: • Schneider Electric (Aust) Pty Ltd v Australian Competition and Consumer Commission (2003) 127 FCR 170; 196 ALR 611; [2003] FCAFC 2; BC200300249 at [57] per Merkel J (Sackville J agreeing); • Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; BC200501242 at [7] per Merkel J; • Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; (2005) ATPR ¶42-052; [2005] FCA 265; BC200501239 at [43] per Merkel J. • See Australian Competition and Consumer Commission (ACCC) v Hillside (Australia New Media) Pty Ltd (t/as Bet365) (No 2) [2016] FCA 698; BC201604562 at [28] per Beach J. Communal morality As proceedings for the enforcement of a pecuniary penalty are not criminal in nature, it is not necessary to measure the contravening conduct against some general communal morality in which the law is embedded for the purpose of assessing the amount of the pecuniary penalty: Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,151; Trade Practices Commission v CC (NSW) Pty Ltd (No 2) (1995) ATPR ¶41-406 at 40,498. Type of contravenor The same regime is to be applied to both corporate and individual contravenors: Australian Competition and Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 5) (1998) ATPR ¶41-628 at 40,891; (appeal) J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532; [2000] FCA 365; BC200001721.

Retribution and rehabilitation Retribution and rehabilitation have no application in competition cases: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; (2002) ATPR ¶41-872; [2002] FCA 559; BC200202127 at [17] per Finkelstein J. The totality principle The total penalty for related contraventions must not exceed what is proper for the entire contravening conduct: • Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; (2002) ATPR 41-872; [2002] FCA 559; BC200202127 at [39] per Finkelstein J; • Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd (2004) ATPR 42-011; [2004] FCA 819; BC200404376 at [49] per Emmett J; • Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) [2004] FCA 1471; BC200407679 at [32] per Sackville J; • Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597; BC200408513 at [48] per Bennett J; [page 582] •

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Australian Competition and Consumer Commission v Dermalogica Pty Ltd (2005) 215 ALR 482; [2005] FCA 152; BC200500619 at [63] per Goldberg J; Australian Competition and Consumer Commission v Humax Pty Ltd [2005] FCA 706; BC200503936 at [6] per Merkel J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21; BC200600152 at [21] per Goldberg J; Australian Competition and Consumer Commission v Skippy Australia Pty Ltd [2006] FCA 1343; BC200608295 at [24] per Tracey J; Australian Competition and Consumer Commission v IPM

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Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11; BC200700068 at [27], [41] per Young J; Australian Competition and Consumer Commission v Knight (2007) ATPR 42-165; [2007] FCA 1011; BC200705190 at [72] per Mansfield J; Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859; BC200710470 at [17] per Kenny J; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; BC200800758 at [23] per Gray J, and at [66] per Graham J; Australian Competition and Consumer Commission v FChem (Aust) Ltd [2008] FCA 344; BC200801851 at [34] per Cowdroy J; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976; BC200811642 at [19] per Lindgren J; Australian Competition and Consumer Commission v Australian Karting Association (NSW) Inc [2009] FCA 1255; BC200910103 per Bennett J; Australian Communications and Media Authority v Mobilegate Limited a Company Incorporated in Hong Kong (No 9) [2010] FCA 1383; BC201009337 at [34] per Logan J; Australian Competition and Consumer Commission v Telstra Corp Ltd (2010) 188 FCR 238; [2010] FCA 790; BC201005223 per Middleton J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153 at 78 per Bennett J; Australian Competition and Consumer Commission v Willesee Healthcare Pty Ltd (No 2) [2011] FCA 752 at [57] per DoddsStreeton J; Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; BC201104538 at [87] per Gilmour J; Australian Competition and Consumer Commission v Apple Pty Ltd [2012] FCA 646; BC201204443 per Bromberg J;

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Australian Competition and Consumer Commission v Eternal Beauty Products Pty Ltd [2012] FCA 1124; BC201207941 per Murphy J; TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190 per Jacobson, Bennett and Gilmour JJ; TPG Internet Pty Ltd v Australian Competition and Consumer Commission (No 2) [2013] FCAFC 37; BC201301550 per Jacobson, Bennett & Gilmour JJ; Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 5) [2013] FCA 1109; BC201314189 per Tracey J; Australian Competition and Consumer Commission v AGL Sales Pty Ltd [2013] FCA 1030; BC201313641 per Middleton J; Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267; BC201315388 at [97] per Mansfield J; Australian Competition and Consumer Commission (ACCC) v Gordon Superstore Pty Ltd [2014] FCA 452; BC201403444 per Edmonds J; Australian Competition and Consumer Commission (ACCC) v Mandurvit Pty Ltd [2014] FCA 464; BC201403371, per McKerracher J; Australian Consumer and Competition Commission (ACCC) v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998; BC201407650 per Barker J; [page 583]

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Australian Competition and Consumer Commission (ACCC) v Scoopon Pty Ltd [2014] FCA 820; BC201406258 per Greenwood J; Australian Competition and Consumer Commission v Coles Supermarkets Pty Ltd [2014] FCA 1405; BC201411366 per Gordon J; Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] FCA 83; BC201500687 per

McKerracher J; • See Australian Competition and Consumer Commission (ACCC) v South East Melbourne Cleaning Pty Ltd (in liq) (formerly Known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) [2015] FCA 25; BC201500239 per Murphy J; • Australian Competition and Consumer Commission (ACCC) v South East Melbourne Cleaning Pty Ltd (in liq) (Formerly Known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) (No 2) [2015] FCA 257; BC201501832 per Murphy J; • Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2015] FCA 274; BC201501979 per Gordon J; • Australian Competition and Consumer Commission (ACCC) v Chopra [2015] FCA 539; BC201504567 per Middleton J; • Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59; BC201503362 per Dowsett, Greenwood and Wigney JJ; • Australian Competition and Consumer Commission (ACCC) v RL Adams Pty Ltd [2015] FCA 1016; BC201508908 per Edelman J; • Australian Competition and Consumer Commission (ACCC) v Homeopathy Plus! Australia Pty Ltd (No 2) [2015] FCA 1090; BC201510011 per Perry J; • Australian Securities and Investments Commission (ASIC) v Superannuation Warehouse Australia Pty Ltd [2015] FCA 1167; BC201510541 per Beach J; • Australian Competition and Consumer Commission (ACCC) v Safety Compliance Pty Ltd (in Liq) (No 2) [2015] FCA 1469; BC201512872 per Farrell J. • Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (No 7) FCA 424; BC201603031 per Edelman J. The totality principle requires the court imposing the penalty, having first considered the individual offences to stand back from the penalty to decide whether the total penalty is appropriate having regard to all the circumstances: Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022; [2004] FCA 1171;

BC200406682 at [91] per Lander J. The course of conduct principle The totality principle (above) is related to the course of conduct principle. The course of conduct principle operates to ensure that the penalties to be imposed, considered as a whole, are just and appropriate: Australian Competition and Consumer Commission (ACCC) v Hillside (Australia New Media) Pty Ltd (t/as Bet365) (No 2) [2016] FCA 698; BC201604562 at [22] per Beach J; Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453; BC201604416 at [95]–[121] per Greenwood J. Owner of a corporate contravenor It is legitimate to avoid double counting where an a individual contravenor is an owner of a corporate contravenor that will be subject to a penalty: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) [2007] FCA 1617; BC200709371 at [294] per Heerey J. Optimal penalty theory Arguably, the optimal penalty theory has no application to competition cases. The theory suggests that fines should be set at a level which fully reflects the cost to society of the illegal activity, for otherwise society would bear the cost of the harm: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; (2002) ATPR ¶41-872; [2002] FCA 559; BC200202127 at [21] per Finkelstein J. [page 584] [11,590.25] Factors relevant in assessing penalty Section 76(1) provides that in determining the penalty the court can have regard to all relevant matters including the following: The nature and extent of the contravening conduct The penalty to be applied in each case is to be determined in accordance with its own circumstances: • Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at

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52,152 per French J; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002) ATPR ¶41-682; [2002] FCA 192; BC200200656 at [15] per Hill J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022; [2004] FCA 1171; BC200406682 at [96] per Lander J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 2) [2004] FCA 1172; BC200406683 at [59] per Lander J; Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597; BC200408513 at [9] per Bennett J; Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144; BC200701349 at [9] per Young J; Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834; BC200710229 at [137] per Weinberg J; Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd (2008) ATPR ¶42-225; [2008] FCA 402; BC200802015 at [30] per Finn J; Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89; [2008] FCA 1976; BC200811642 at [28] per Lindgren J; Australian Competition and Consumer Commission v British Airways plc [2008] FCA 1977; BC200811643 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Martinair Holland NV [2009] FCA 340; BC200902686 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Societe Air France [2009] FCA 341; BC200902687 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Cargolux Airlines International SA [2009] FCA 342; BC200902688 per Lindgren J. Australian Competition and Consumer Commission v April

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International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153; BC201100688 at [52] per Bennett J. Australian Competition and Consumer Commission v Willesee Healthcare Pty Ltd (No 2) [2011] FCA 752 at [58] per DoddsStreeton J. Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761; BC201104899 per Perram J; Australian Competition and Consumer Commission v Smash Enterprises Pty Ltd [2011] FCA 375; BC201102076 per Gordon J; Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; BC201104538 per Gilmour J; Australian Competition and Consumer Commission (ACCC) v SMS Global Pty Ltd [2011] FCA 855; BC201105805 at [86] per Murphy J; Australian Competition and Consumer Commission v Sontax Australia (1988) Pty Ltd [2011] FCA 1202; BC201108299 per Gordon J; Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA1489; BC201109859 per Bennett J; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 per Murphy J; Australian Competition and Consumer Commission v Kingisland Meatworks & Cellars Pty Ltd [2013] FCA 48; BC201300341 per Murphy J; Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 5) [2013] FCA 1109; BC201314189 per Tracey J; [page 585]

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Australian Competition and Consumer Commission v HP Superstore Pty Ltd [2013] FCA 1317; BC201316405 Middleton J; Australian Competition and Consumer Commission v Moonah

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Superstore Pty Ltd [2013] FCA 1314; BC201315506 per Middleton J; Australian Competition and Consumer Commission v Salecomp Pty Ltd [2013] FCA 1316; BC201315503 per Middleton J; Australian Competition and Consumer Commission v Launceston Superstore Pty Ltd [2013] FCA 1315; BC201315502 per Middleton J; Australian Competition and Consumer Commission (ACCC) v Mandurvit Pty Ltd [2014] FCA 464; BC201403371, per McKerracher J; Australian Competition and Consumer Commission v Coles Supermarkets Pty Ltd [2014] FCA 1405; BC201411366 per Gordon J; Australian Competition and Consumer Commission v Renegade Gas Pty Ltd [2014] FCA 1135 per Gordon J; Australian Competition and Consumer Commission v Dateline Imports Pty Ltd (No 2) [2014] FCA 1222 per Rangiah J; Australian Competition and Consumer Commission v Zen Telecom Pty Ltd [2014] FCA 1049; BC201408101 per Barker J; Australian Competition and Consumer Commission (ACCC) v AGL South Australia Pty Ltd [2015] FCA 399; BC201503290 per White J; Australian Competition and Consumer Commission (ACCC) v Spreets Pty Ltd [2015] FCA 382; BC201504430 per Collier J; Australian Competition and Consumer Commission (ACCC) v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; BC201502437 per Allsop CJ; Director of Consumer Affairs v Nightingale Electrics Pty Ltd [2016] FCA 279; BC201601844 per Pagone J; Australian Competition and Consumer Commission (ACCC) v Woolworths Ltd [2016] FCA 44; BC201600666 per Edelman J.

Loss or damage The amount of loss or damage caused: • Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,152 per French J; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002)

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ATPR ¶42-862; [2002] FCA 192; BC200200656 at [17] per Hill J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022; [2004] FCA 1171; BC200406682 at [98] per Lander J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 2) [2004] FCA 1172; BC200406683 at [77] per Lander J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-031; [2004] FCA 1425; BC200407312 at [16] per Selway J; Australian Competition and Consumer Commission v DM Faulkner Pty Ltd [2004] FCA 1666; BC200406522 at [78] per Bennett J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; BC200501242 at [17] per Merkel J; Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597; BC200408513 at [16] per Bennett J; Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144; BC200701349 at [9] per Young J; Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd (2008) ATPR ¶42-225; [2008] FCA 402; BC200802015 at [30] per Finn J; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976; BC200811642 at [28] per Lindgren J; Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89; [2008] FCA 1976; BC200811642 at [28] per Lindgren J; [page 586]

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Airways plc [2008] FCA 1977; BC200811643 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Martinair Holland NV [2009] FCA 340; BC200902686 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Societe Air France [2009] FCA 341; BC200902687 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Cargolux Airlines International SA [2009] FCA 342; BC200902688 per Lindgren J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [49] per Bennett J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153; BC201100688 at [55] per Bennett J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 at [135] per Bennett J; Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761; BC201104899 per Perram J; Australian Competition and Cosnnsumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382; BC201102108 per Perram J; Australian Competition and Consumer Commission (ACCC) v SMS Global Pty Ltd [2011] FCA 855; BC201105805 at [92] per Murphy J; Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489; BC201109859 per Bennett J; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 per Murphy J; Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20; BC201201062 per Keane CJ, Finn & Gilmour JJ; Australian Competition and Consumer Commission v ACN 135

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183 372 (in liq) [2012] FCA 749; BC201205140 per Marshall J; Australian Competition and Consumer Commission v Thai Airways International Public Co Ltd [2012] FCA 1434; BC201210485 per Katzmann J; TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190 per Jacobson, Bennett and Gilmour JJ; Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 5) [2013] FCA 1109; BC201314189 per Tracey J; Australian Competition and Consumer Commission v AGL Sales Pty Ltd [2013] FCA 1030; BC201313641 per Middleton J; Australian Competition and Consumer Commission v HP Superstore Pty Ltd [2013] FCA 1317; BC201316405 per Middleton J; Australian Competition and Consumer Commission v Moonah Superstore Pty Ltd [2013] FCA 1314; BC201315506 per Middleton J; Australian Competition and Consumer Commission v Salecomp Pty Ltd [2013] FCA 1316; BC201315503 per Middleton J; Australian Competition and Consumer Commission v Launceston Superstore Pty Ltd [2013] FCA 1315; BC201315502 per Middleton J; Australian Competition and Consumer Commission (ACCC) v Mandurvit Pty Ltd [2014] FCA 464; BC201403371, per McKerracher J; Australian Competition and Consumer Commission v Coles Supermarkets Pty Ltd [2014] FCA 1405; BC201411366 per Gordon J; Australian Competition and Consumer Commission v Renegade Gas Pty Ltd [2014] FCA 1135 per Gordon J; Australian Competition and Consumer Commission v Dateline Imports Pty Ltd (No 2) [2014] FCA 1222 per Rangiah J; [page 587]

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Telecom Pty Ltd [2014] FCA 1049; BC201408101 per Barker J; Australian Competition and Consumer Commission (ACCC) v AGL South Australia Pty Ltd [2015] FCA 399; BC201503290 per White J; Australian Competition and Consumer Commission (ACCC) v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; BC201502437 per Allsop CJ; Australian Competition and Consumer Commission (ACCC) v Omniblend Australia Pty Ltd [2015] FCA 871; BC201507809 per Beach J; Australian Competition and Consumer Commission (ACCC) v Derodi Pty Ltd [2016] FCA 365; BC201603643 per Edelman J. Australian Competition and Consumer Commission (ACCC) v SensaSlim Australia Pty Ltd (in Liq) (No 7) [2016] FCA 484; BC201603506 per Yates J.

Relevant circumstances The circumstances in which the conduct took place: • Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,152 per French J; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002) ATPR ¶41-862; [2002] FCA 192; BC200200656 at [18] per Hill J; • Australian Competition and Consumer Commission v DM Faulkner Pty Ltd [2004] FCA 1666; BC200406522 at [76] per Bennett J. In addition to the circumstances listed in s 76(1), in Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,152 French J identified a number of additional factors in assessing the amount of a pecuniary penalty. See also: • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2), above, at [21] per Hill J; • Australian Competition and Consumer Commission v DM Faulkner Pty Ltd, above, at [53] per Bennett J; • Australian Competition and Consumer Commission v Jurlique International Pty Ltd [2007] FCA 79; BC200700396 at [51] per

Spender J; • Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11; BC200700068 at [9] per Young J; • Australian Competition and Consumer Commission v Kokos International Pty Ltd (No 2) [2008] FCA 5; BC200800032 at [50] per French J; • Australian Competition and Consumer Commission v Navman Australia Pty Ltd (2008) ASAL ¶55-182; [2007] FCA 2058; BC200711308 at [112] per Gordon J; • Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 per Murphy J; • TPG Internet Pty Ltd v Australian Competition and Consumer Commission (No 2) [2013] FCAFC 37; BC201301550 per Jacobson, Bennett & Gilmour JJ; • Australian Competition and Consumer Commission v Kingisland Meatworks & Cellars Pty Ltd [2013] FCA 48; BC201300341 per Murphy J. These factors do not exhaust potentially relevant considerations nor do they regiment the discretionary sentencing function: Australian Competition and Consumer Commission (ACCC) v Safety Compliance Pty Ltd (in Liq) (No 2) [2015] FCA 1469; BC201512872 at [22] per Farrell J. The factors include: Size of the company The size of the company engaged in the contravention: • Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,152–4; • Trade Practices Commission v Hymix Industries Pty Ltd (1995) ATPR ¶41-369 at 40,103; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; 145 ALR 36; • Australian Competition and Consumer Commission v Mayo International Pty Ltd (No 3) (1998) ATPR ¶41-655;

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Australian Competition and Consumer Commission v Sundaze Australia Pty Ltd (2000) ATPR ¶41-736 at 40,539; Australian Competition and Consumer Commission v Geoff Clegg Enterprises Pty Ltd (2000) ATPR ¶41-773; [2000] FCA 977; BC200004030; Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR ¶41-763; [2000] FCA 690; BC200002723; Australian Competition and Consumer Commission v Tyco Australia Pty Ltd (2001) ATPR ¶41-796; [2000] FCA 1898; BC200008232; Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-833; [2001] FCA 1065; BC200104475 at [36] per Mansfield J; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002) ATPR ¶41-862; [2002] FCA 192; BC200200656 at [22] per Hill J; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; (2002) ATPR ¶41-872; [2002] FCA 559; BC200202127 at [50] per Finkelstein J; Australian Competition and Consumer Commission v ColgatePalmolive Pty Ltd (2002) ATPR ¶41-880; [2002] FCA 619; BC200202382 at [23] per Weinberg J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022; [2004] FCA 1171; BC200406682 at [114] per Lander J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 2) [2004] FCA 1172; BC200406683 at [91] per Lander J; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) [2004] FCA 1471; BC200407679 at [49] per Sackville J;

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Australian Competition and Consumer Commission v Navman Australia Pty Ltd (2008) ASAL ¶55-182; [2007] FCA 2058; BC200711308 at [115] per Gordon J; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976; BC200811642 at [28] per Lindgren J; Australian Competition and Consumer Commission v White Top Taxis Ltd (2009) 253 ALR 449; [2009] FCA 88; BC200900661 at per Finkelstein J; Australian Competition and Consumer Commission v British Airways plc [2008] FCA 1977; BC200811643 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Martinair Holland NV [2009] FCA 340; BC200902686 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Societe Air France [2009] FCA 341; BC200902687 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Cargolux Airlines International SA [2009] FCA 342; BC200902688 per Lindgren J; Australian Competition and Consumer Commission v Australian Karting Association (NSW) Inc [2009] FCA 1255; BC200910103 at [83] per Bennett J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [54] per Bennett J; Australian Competition and Consumer Commission v Cabcharge Australia Ltd [2010] FCA 1261; BC201008676 at [49] per Finkelstein J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153; BC201100688 at [60] per Bennett J. Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 per Bennett J; Australian Competition and Consumer Commission v Smash Enterprises Pty Ltd [2011] FCA 375; BC201102076 per Gordon

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J; Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; BC201104538 per Gilmour J; [page 589]

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Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489; BC201109859 per Bennett J; Australian Competition and Consumer Commission v AirAsia Berhad Co [2012] FCA 1413; BC201209905 per Tracey J; Australian Competition and Consumer Commission v Cotton On Kids Pty Ltd [2012] FCA 1428; BC201209956 per Tracey J; Australian Competition and Consumer Commission v Jewellery Group Pty Ltd (No 2) [2013] FCA 14; BC201300073 per Lander J; Australian Competition and Consumer Commission v Kingisland Meatworks & Cellars Pty Ltd [2013] FCA 48; BC201300341 per Murphy J; Australian Competition and Consumer Commission v Pepe’s Ducks Ltd [2013] FCA 570; BC201310097 per Bromberg J; Australian Competition and Consumer Commission v HP Superstore Pty Ltd [2013] FCA 1317; BC201316405 per Middleton J; Australian Competition and Consumer Commission v Moonah Superstore Pty Ltd [2013] FCA 1314; BC201315506 per Middleton J; Australian Competition and Consumer Commission v Salecomp Pty Ltd [2013] FCA 1316; BC201315503 per Middleton J; Australian Competition and Consumer Commission v Launceston Superstore Pty Ltd [2013] FCA 1315; BC201315502 per Middleton J; Australian Competition and Consumer Commission v Flight Centre Ltd (No 3) [2014] FCA 292; BC201402113 per Logan J; Australian Competition and Consumer Commission (ACCC) v BAJV Pty Ltd [2014] FCAFC 52; BC201403136 per Rares, Jessup and Flick JJ;

Australian Competition and Consumer Commission v Renegade Gas Pty Ltd [2014] FCA 1135 per Gordon J; • Australian Competition and Consumer Commission v Zen Telecom Pty Ltd [2014] FCA 1049; BC201408101 per Barker J; • Australian Competition and Consumer Commission (ACCC) v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; BC201502437 per Allsop CJ; • Australian Competition and Consumer Commission (ACCC) v Derodi Pty Ltd [2016] FCA 365; BC20160364 per Edelman J. • Australian Competition and Consumer Commission (ACCC) v Multimedia International Services Pty Ltd [2016] FCA 439; BC201603124 per Edelman J. • Australian Competition and Consumer Commission (ACCC) v Hillside (Australia New Media) Pty Ltd (t/as Bet365) (No 2) [2016] FCA 698; BC201604562 per Beach J. • Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453; BC201604416 per Greenwood J. • Director of Consumer Affairs (Victoria) v Hocking Stuart (Richmond) Pty Ltd [2016] FCA 1184; BC201608604 per Middleton J. Size may be relevant to the penalty that is necessary to deter the company from contravening the Act in the future. Size may also be relevant to general deterrence because other potential contraveners are likely to take notice of penalties imposed on companies of a similar size: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; BC200501242 at [9] per Merkel J. •

Market power The degree of power it has as evidenced by its market share and ease of entry into the market: • Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076; • Australian Competition and Consumer Commission v Tyco Australia Pty Ltd (2001) ATPR ¶41-798; [2001] FCA 23; BC200100041; • Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002) ATPR ¶41-862; [2002] FCA 192; BC200200656 at [26] per Hill

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Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; (2002) ATPR ¶41-872; [2002] FCA 559; BC200202127 at [50] per Finkelstein J; Australian Competition and Consumer Commission v ColgatePalmolive Pty Ltd (2002) ATPR ¶41-880; [2002] FCA 619; BC200202382 at [23] per Weinberg J; Australian Competition and Consumer Commission v DM Faulkner Pty Ltd [2004] FCA 1666; BC200406522 at [85] per Bennett J; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) [2004] FCA 1471; BC200407679 at [49] per Sackville J; Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597; BC200408513 at [19] per Bennett J; Australian Competition and Consumer Commission v Jurlique International Pty Ltd [2007] FCA 79; BC200700396 at [100] per Spender J; Australian Competition and Consumer Commission (ACCC) v Martinair Holland NV [2009] FCA 340; BC200902686 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Societe Air France [2009] FCA 341; BC200902687 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Cargolux Airlines International SA [2009] FCA 342; BC200902688 per Lindgren J; Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085; BC200705831 at [98] per Nicholson J; Australian Competition and Consumer Commission v Hobie Cat

Australasia Pty Ltd (2008) ATPR ¶42-225; [2008] FCA 402; BC200802015 at [30] per Finn J; • Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976; BC200811642 at [28] per Lindgren J; • Australian Competition and Consumer Commission v Australian Karting Association (NSW) Inc [2009] FCA 1255; BC200910103 at [84] per Bennett J; • Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [57] per Bennett J; • Australian Competition and Consumer Commission v Cabcharge Australia Ltd [2010] FCA 1261; BC201008676 at [50] per Finkelstein J; • Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153; BC201100688 at [63] per Bennett J. • Australian Competition and Consumer Commission v Renegade Gas Pty Ltd [2014] FCA 1135 per Gordon J. There may be few circumstances where market power will be a relevant consideration for breaches of the Australian Consumer Law provisions, though it cannot be excluded: Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761; BC201104899 at [12] per Perram J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 at [111] per Bennett J. Deliberateness of the contravention The deliberateness of the contravention and the period over which it extended: • Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; 145 ALR 36; • Australian Competition and Consumer Commission v Mayo International Pty Ltd (No 3) (1998) ATPR ¶41-655; • J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532; [2000] FCA 365;

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Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002) ATPR ¶41-862; [2002] FCA 192; BC200200656 at [27]; (appeal) Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; 201 ALR 636; [2003] FCAFC 193; BC200304691 at [308] per Wilcox, French and Gyles JJ; Australian Competition and Consumer Commission v SIP Australia Pty Ltd (2003) ATPR ¶41-937; [2003] FCA 336; BC200301754 at [21] per Goldberg J; Australian Competition and Consumer Commission v DM Faulkner Pty Ltd [2004] FCA 1666; BC200406522 at [90] per Bennett J; Australian Competition and Consumer Commission v Anglo Estates Pty Ltd (2005) ATPR ¶42-044; [2005] FCA 20; BC200500048 at [53] per French J; Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597; BC200408513 at [34] per Bennett J; Australian Competition and Consumer Commission v Gullyside Pty Ltd [2005] FCA 1727; BC200510280 at [26] per Kiefel J; Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085; BC200705831 at [100] per Nicholson J; Australian Competition and Consumer Commission v Navman Australia Pty Ltd (2008) ASAL ¶55-182; [2007] FCA 2058; BC200711308 at [114] per Gordon J; Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd (2008) ATPR ¶42-225; [2008] FCA 402; BC200802015 at [34] per Finn J; Australian Competition and Consumer Commission v Australian Karting Association (NSW) Inc [2009] FCA 1255; BC200910103

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at [85] per Bennett J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [59] per Bennett J; Australian Competition and Consumer Commission v Cabcharge Australia Ltd [2010] FCA 1261; BC201008676 at [51] per Finkelstein J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153; BC201100688 at [65] per Bennett J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 per Bennett J; Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761; BC201104899 per Perram J; Australian Competition and Consumer Commission v Smash Enterprises Pty Ltd [2011] FCA 375; BC201102076 per Gordon J; Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; BC201104538 per Gilmour J; Australian Competition and Consumer Commission (ACCC) v SMS Global Pty Ltd [2011] FCA 855; BC201105805 at [103] per Murphy J; Australian Competition and Consumer Commission v AirAsia Berhad Co [2012] FCA 1413; BC201209905 per Tracey J; Australian Competition and Consumer Commission v Cotton On Kids Pty Ltd [2012] FCA 1428; BC201209956 per Tracey J; Australian Competition and Consumer Commission v Neighbourhood Energy Pty Ltd [2012] FCA 1357; BC201209826 per Marshall J; Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 5) [2013] FCA 1109; BC201314189 per Tracey J; Australian Competition and Consumer Commission v Coles Supermarkets Pty Ltd [2014] FCA 1405; BC201411366 per Gordon J; Australian Competition and Consumer Commission v Renegade

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Gas Pty Ltd [2014] FCA 1135 per Gordon J; Australian Competition and Consumer Commission v Dateline Imports Pty Ltd (No 2) [2014] FCA 1222 per Rangiah J; [page 592]

Australian Competition and Consumer Commission v Zen Telecom Pty Ltd [2014] FCA 1049; BC201408101 per Barker J; • Australian Competition and Consumer Commission (ACCC) v Coles Supermarkets Australia Pty Ltd Limited [2015] FCA 330; BC201502437 per Allsop CJ; • Australian Competition and Consumer Commission (ACCC) v A Whistle & Co (1979) Pty Ltd [2015] FCA 1447; BC201512633 per Yates J; • Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (No 7) FCA 424; BC201603031 per Edelman J. • Australian Competition and Consumer Commission (ACCC) v Multimedia International Services Pty Ltd [2016] FCA 439; BC201603124 per Edelman J. • Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453; BC201604416 per Greenwood J. A consideration of the deliberateness of the contravention does not involve a moral issue but takes into account the calculated manner in which a course of conduct has been undertaken: (appeal) J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission, above; Australian Competition and Consumer Commission v Simsmetal Ltd (2000) ATPR ¶41764; [2000] FCA 818; BC200003308. •

Seniority of staff Whether the contravention arose out of the conduct of senior management or at a lower level: • Australian Competition and Consumer Commission v Ampol Petroleum (Vic) Pty Ltd (1996) ATPR ¶41-469 at 41,757; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; 145 ALR 36;

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Australian Competition and Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 5) (1998) ATPR ¶41-628; (appeal) J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532; [2000] FCA 365; BC200001721; Australian Competition and Consumer Commission v Geoff Clegg Enterprises Pty Ltd (2000) ATPR ¶41-773; [2000] FCA 977; BC200004030; Australian Competition and Consumer Commission v Tyco Australia Pty Ltd (2001) ATPR ¶41-798; [2001] FCA 23; BC200100041; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002) ATPR ¶41-862; [2002] FCA 192; BC200200656 at [28] per Hill J; Australian Competition and Consumer Commission v ColgatePalmolive Pty Ltd (2002) ATPR ¶41-880; [2002] FCA 619; BC200202382 at [23]; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022; [2004] FCA 1171; BC200406682 at [112] per Lander J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 2) [2004] FCA 1172; BC200406683 at [104] per Lander J; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) [2004] FCA 1471; BC200407679 at [49] per Sackville J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; BC200501242 at [25] per Merkel J; Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597; BC200408513 at [36] per Bennett J; Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432; BC200701951 at [8] per Kiefel J; Australian Competition and Consumer Commission v Admiral

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Mechanical Services Pty Ltd [2007] FCA 1085; BC200705831 at [101] per Nicholson J; Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd (2008) ATPR ¶42-225; [2008] FCA 402; BC200802015 at [34] per Finn J; [page 593]

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Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976; BC200811642 at [28] per Lindgren J. Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89; [2008] FCA 1976; BC200811642 at [28] per Lindgren J; Australian Competition and Consumer Commission v British Airways plc [2008] FCA 1977; BC200811643 per Lindgren J; Australian Competition and Consumer Commission v Australian Karting Association (NSW) Inc [2009] FCA 1255; BC200910103 at [86] per Bennett J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [62] per Bennett J. Australian Competition & Consumer Commission (ACCC) v Admiral Mechanical Services Pty Ltd [2010] FCA 348; BC201002123 per Gilmour J. Australian Competition and Consumer Commission v Cabcharge Australia Ltd [2010] FCA 1261; BC201008676 at [52] per Finkelstein J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153; BC201100688 at [67] per Bennett J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 per Bennett J; Australian Competition and Consumer Commission v Smash Enterprises Pty Ltd [2011] FCA 375; BC201102076 per Gordon

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J; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 per Murphy J; Australian Competition and Consumer Commission v Cotton On Kids Pty Ltd [2012] FCA 1428; BC201209956 per Tracey J; Australian Competition and Consumer Commission v Adepto Publications Pty Ltd [2013] FCA 247; BC201301415 per Cowdroy J; Australian Competition and Consumer Commission v Pepe’s Ducks Ltd [2013] FCA 570; BC201310097 per Bromberg J; Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 5) [2013] FCA 1109; BC201314189 per Tracey J; Australian Competition and Consumer Commission v HP Superstore Pty Ltd [2013] FCA 1317; BC201316405 per Middleton J; Australian Competition and Consumer Commission v Moonah Superstore Pty Ltd [2013] FCA 1314; BC201315506 per Middleton J; Australian Competition and Consumer Commission v Salecomp Pty Ltd [2013] FCA 1316; BC201315503 per Middleton J; Australian Competition and Consumer Commission v Launceston Superstore Pty Ltd [2013] FCA 1315; BC201315502 per Middleton J; Australian Competition and Consumer Commission v Coles Supermarkets Pty Ltd [2014] FCA 1405; BC201411366 per Gordon J; Australian Competition and Consumer Commission v Dateline Imports Pty Ltd (No 2) [2014] FCA 1222 per Rangiah J; Australian Competition and Consumer Commission v Zen Telecom Pty Ltd [2014] FCA 1049; BC201408101 per Barker J; Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (No 7) FCA 424; BC201603031 per Edelman J. Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453; BC201604416 per Greenwood J.

Whether the company has a corporate culture conducive to compliance with the Act A company’s corporate culture will usually be evidenced by educational programmes and disciplinary or other corrective measures taken in response to an acknowledged contravention. This is often reflected in a compliance programme: • Trade Practices Commission v Prestige Motors Pty Ltd (1994) ATPR ¶41-359 at 42,701; [page 594] • •

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Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; 145 ALR 36; Australian Competition and Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 5) (1998) ATPR ¶41-628; (appeal) J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532; [2000] FCA 365; BC200001721; Australian Competition and Consumer Commission v Sundaze Australia Pty Ltd (2000) ATPR ¶41-736 at 40,539; Australian Competition and Consumer Commission v Tubemakers of Australia Ltd (2000) ATPR ¶41-745; [1999] FCA 1787; BC9908327; Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR ¶41-763; [2000] FCA 690; BC200002723; Australian Competition and Consumer Commission v Simsmetal Ltd (2000) ATPR ¶41-764; [2000] FCA 818; BC200003308; Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-833; [2001] FCA 1065; BC200104475 at [22] per Mansfield J; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; (2002) ATPR ¶41-872; [2002] FCA 559; BC200202127 at [50] per Finkelstein J; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002)

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ATPR ¶41-862; [2002] FCA 192; BC200200656 at [29] per Hill J; Australian Competition and Consumer Commission v George Weston Foods Ltd (2004) 210 ALR 486; [2004] FCA 1093; BC200405415 at [23] per Gyles J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022; [2004] FCA 1171; BC200406682 at [117] per Lander J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 2) [2004] FCA 1172; BC200406683 at [118] per Lander J; Australian Competition and Consumer Commission v DM Faulkner Pty Ltd [2004] FCA 1666; BC200406522 at [91] per Bennett J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-031; [2004] FCA 1425; BC200407312 at [31] per Selway J; Australian Competition and Consumer Commission v Cambur Industries Pty Ltd [2006] FCA 1027; BC200606158 at [65] per Besanko J; Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; BC200608860 at [112] per Kiefel J; Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432; BC200701951 at [8] per Kiefel J; Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11; BC200700068 at [60] per Young J; Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085; BC200705831 at [102] per Nicholson J; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976; BC200811642 at [28] per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Martinair Holland NV [2009] FCA 340; BC200902686 per

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Lindgren J; Australian Competition and Consumer Commission (ACCC) v Societe Air France [2009] FCA 341; BC200902687 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Cargolux Airlines International SA [2009] FCA 342; BC200902688 per Lindgren J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [65] per Bennett J; [page 595]

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Australian Competition and Consumer Commission v Telstra Corp Ltd (2010) 188 FCR 238; [2010] FCA 790; BC201005223 per Middleton J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153; BC201100688 at [69] per Bennett J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 per Bennett J; Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; BC201104538 per Gilmour J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 per Bennett J. Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489; BC201109859 per Bennett J. Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 per Murphy J. Australian Competition and Consumer Commission v Adepto Publications Pty Ltd [2013] FCA 247; BC201301415 per Cowdroy J. Australian Competition and Consumer Commission v Turi Foods

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Pty Ltd (No 5) per Tracey J. Australian Competition and Consumer Commission v HP Superstore Pty Ltd [2013] FCA 1317; BC201316405 per Middleton J. Australian Competition and Consumer Commission v Moonah Superstore Pty Ltd [2013] FCA 1314; BC201315506 per Middleton J. Australian Competition and Consumer Commission v Salecomp Pty Ltd [2013] FCA 1316; BC201315503 per Middleton J. Australian Competition and Consumer Commission v Launceston Superstore Pty Ltd [2013] FCA 1315; BC201315502 per Middleton J. Australian Competition and Consumer Commission v Avitalb Pty Ltd [2014] FCA 222; BC201401607 per Griffiths J. Australian Competition and Consumer Commission v Renegade Gas Pty Ltd [2014] FCA 1135 per Gordon J. Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] FCA 83; BC201500687 per McKerracher J. Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (No 7) FCA 424; BC201603031 per Edelman J. Australian Competition and Consumer Commission (ACCC) v Multimedia International Services Pty Ltd [2016] FCA 439; BC201603124 per Edelman J. Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453; BC201604416 per Greenwood J.

Cooperation with authorities The issue is whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention: • Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,152–3; • Trade Practices Commission v Prestige Motors Pty Ltd (1994) ATPR ¶41-359 at 42,701; • Trade Practices Commission v Axive Pty Ltd (1994) ATPR ¶41-

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368 at 42,794; Trade Practices Commission v Concrete Constructions (NSW) Pty Ltd (1994) ATPR ¶41-363 at 42,723; Trade Practices Commission v Hymix Industries Pty Ltd (1995) ATPR ¶41-369 at 40,103; Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR ¶41-515; (appeal) NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; 141 ALR 640; (1997) ATPR ¶41-546; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; 145 ALR 36; [page 596]

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Australian Competition and Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 5) (1998) ATPR ¶41-628; (appeal) J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532; [2000] FCA 365; BC200001721; Australian Competition and Consumer Commission v Sundaze Australia Pty Ltd (2000) ATPR ¶41-736 at 40,539; Australian Competition and Consumer Commission v Tubemakers of Australia Ltd (2000) ATPR ¶41-745; [1999] FCA 1787; BC9908327; Australian Competition and Consumer Commission v Tyco Australia Pty Ltd (2000) ATPR ¶41-772; [2000] FCA 832; BC200003477; Australian Competition and Consumer Commission v Geoff Clegg Enterprises Pty Ltd (2000) ATPR ¶41-773; [2000] FCA 977; BC200004030; Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR ¶41-763; [2000] FCA 690; BC200002723; Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd (1999) ATPR ¶41-716; [1999] FCA 1175;

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BC9905423; Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd (2001) ATPR ¶41-811; [2001] FCA 299; BC200101193; Australian Competition and Consumer Commission v Trevor Davis Investments Pty Ltd (2001) ATPR ¶41-828; [2001] FCA 952; BC200104079; Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR ¶41-851; [2001] FCA 1716; BC200107639 at [42] per Wilcox, Hill and Carr JJ; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002) ATPR ¶41-862; [2002] FCA 192; BC200200656 at [30] per Hill J; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; (2002) ATPR ¶41-872; [2002] FCA 559; BC200202127 at [50] per Finkelstein J; Australian Competition and Consumer Commission v ColgatePalmolive Pty Ltd (2002) ATPR ¶41-880; [2002] FCA 619; BC200202382 at [23] per Weinberg J; Schneider Electric (Aust) Pty Ltd v Australian Competition and Consumer Commission (2003) 127 FCR 170; 196 ALR 611; [2003] FCAFC 2; BC200300249 at [51] per Merkel J (Sackville J agreeing); Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd (2004) 207 ALR 329; [2004] FCA 693; BC200403438 at [31] per Lee J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; (2005) ATPR ¶42-052; [2005] FCA 265; BC200501239 at [41] per Merkel J; Australian Competition and Consumer Commission v Westminster Retail Pty Ltd [2005] FCA 1299; BC200506929 at [30] per Mansfield J. Australian Competition and Consumer Commission v Eurong Beach Resort Ltd (2006) ATPR ¶42-098; [2005] FCA 1900; BC200511106 at [2] per Kiefel J;

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Australian Competition and Consumer Commission v Netti Atom Pty Ltd [2007] FCA 1945; BC200710709 at [11] per Finkelstein J; Australian Competition and Consumer Commission v Ranu Pty Ltd [2007] FCA 1777; BC200710651 at [37] per Heerey J; Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd (2008) ATPR ¶42-225; [2008] FCA 402; BC200802015 at [38] per Finn J; Australian Competition and Consumer Commission v FChem (Aust) Ltd [2008] FCA 344; BC200801851 at [36] per Cowdroy J; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976; BC200811642 at [28] per Lindgren J; [page 597]

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Australian Competition and Consumer Commission v British Airways plc [2008] FCA 1977; BC200811643 at [31] per Lindgren J. Australian Competition and Consumer Commission v White Top Taxis Ltd (2009) 253 ALR 449; [2009] FCA 88; BC200900661 at [27] per Finkelstein J; Australian Competition and Consumer Commission (ACCC) v Martinair Holland NV [2009] FCA 340; BC200902686 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Societe Air France [2009] FCA 341; BC200902687 per Lindgren J; Australian Competition and Consumer Commission (ACCC) v Cargolux Airlines International SA [2009] FCA 342; BC200902688 per Lindgren J; Australian Competition and Consumer Commission v Australian Karting Association (NSW) Inc [2009] FCA 1255; BC200910103 at [88] per Bennett J; Australian Competition and Consumer Commission v April International Marketing Services Australia

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Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [69] per Bennett J. Australian Competition & Consumer Commission (ACCC) v Admiral Mechanical Services Pty Ltd [2010] FCA 348; BC201002123 per Gilmour J. Australian Competition and Consumer Commission v Cabcharge Australia Ltd [2010] FCA 1261; BC201008676 at [53] per Finkelstein J. Australian Competition and Consumer Commission v Telstra Corp Ltd (2010) 188 FCR 238; [2010] FCA 790; BC201005223 per Middleton J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153; BC201100688 at [73] per Bennett J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 per Bennett J; Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761; BC201104899 per Perram J; Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; BC201104538 per Gilmour J. Australian Competition and Consumer Commission (ACCC) v SMS Global Pty Ltd [2011] FCA 855; BC201105805 at [106] per Murphy J. Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489; BC201109859 per Bennett J. Australian Competition and Consumer Commission v AirAsia Berhad Co [2012] FCA 1413; BC201209905 per Tracey J. Australian Competition and Consumer Commission v Cotton On Kids Pty Ltd [2012] FCA 1428; BC201209956 per Tracey J. Australian Competition and Consumer Commission v Neighbourhood Energy Pty Ltd [2012] FCA 1357; BC201209826 per Marshall J. Australian Competition and Consumer Commission v Adepto Publications Pty Ltd [2013] FCA 247; BC201301415 per Cowdroy J.

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TPG Internet Pty Ltd v Australian Competition and Consumer Commission (No 2) [2013] FCAFC 37; BC201301550 per Jacobson, Bennett & Gilmour JJ. Australian Competition and Consumer Commission v Pepe’s Ducks Ltd [2013] FCA 570; BC201310097 per Bromberg J. Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 5) [2013] FCA 1109; BC201314189 per Tracey J. Australian Competition and Consumer Commission v HP Superstore Pty Ltd [2013] FCA 1317; BC201316405 per Middleton J. Australian Competition and Consumer Commission v Moonah Superstore Pty Ltd [2013] FCA 1314; BC201315506 per Middleton J. Australian Competition and Consumer Commission v Salecomp Pty Ltd [2013] FCA 1316; BC201315503 per Middleton J. [page 598]

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Australian Competition and Consumer Commission v Launceston Superstore Pty Ltd [2013] FCA 1315; BC201315502 per Middleton J. Australian Competition and Consumer Commission v Coles Supermarkets Pty Ltd [2014] FCA 1405; BC201411366 per Gordon J. Australian Competition and Consumer Commission v Renegade Gas Pty Ltd [2014] FCA 1135 per Gordon J. Australian Competition and Consumer Commission v Zen Telecom Pty Ltd [2014] FCA 1049; BC201408101 per Barker J. Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] FCA 83; BC201500687 per McKerracher J. Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2015] FCA 274; BC201501979 per Gordon J. Australian Competition and Consumer Commission (ACCC) v AGL South Australia Pty Ltd [2015] FCA 399; BC201503290 per White J.

Australian Competition and Consumer Commission (ACCC) v RL Adams Pty Ltd [2015] FCA 1016; BC201508908 per Edelman J. • Australian Competition and Consumer Commission (ACCC) v A Whistle & Co (1979) Pty Ltd [2015] FCA 1447; BC201512633 per Yates J. A company is not to be penalised merely because it has foreshadowed that it will appeal a decision: Australian Competition and Consumer Commission v Flight Centre Ltd (No 3) [2014] FCA 292; BC201402113 at [53] per Logan J. •

Additional factors In addition to the circumstances listed in s 76(1) and the factors identified by French J in Trade Practices Commission v CSR Ltd, above, at 52,152, the courts have also considered a number of additional matters in assessing the amount of a pecuniary penalty. They are: Previous conviction The absence of any previous conviction: • Trade Practices Commission v Malleys Ltd (1979) 25 ALR 250; (1979) ATPR 40-118 at 18,293; • Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-833; [2001] FCA 1065; BC200104475 at [47] per Mansfield J; • Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022; [2004] FCA 1171; BC200406682 at [119] per Lander J; • Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 2) [2004] FCA 1172; BC200406683 at [117] per Lander J; • Australian Competition and Consumer Commission v Netti Atom Pty Ltd [2007] FCA 1945; BC200710709 at [11] per Finkelstein J; • Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834; BC200710229 at [117] per Weinberg J; • Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd (2008) ATPR ¶42-225; [2008] FCA 402; BC200802015 at [32] per Finn J;

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Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 per Murphy J; Australian Competition and Consumer Commission v Pepe’s Ducks Ltd [2013] FCA 570; BC201310097 per Bromberg J; Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267; BC201315388 at [78] per Mansfield J; Australian Competition and Consumer Commission v Dateline Imports Pty Ltd (No 2) [2014] FCA 1222 per Rangiah J; Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] FCA 83; BC201500687 per McKerracher J. Australian Competition and Consumer Commission (ACCC) v AGL South Australia Pty Ltd [2015] FCA 399; BC201503290 per White J; [page 599]

Australian Competition and Consumer Commission (ACCC) v AGL South Australia Pty Ltd [2015] FCA 399; BC201503290 per White J. It is appropriate to take into account similar conduct in the past, even if there has been no court determination to that effect: Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267; BC201315388 at [78] per Mansfield J. •

Size of the parent company The size of the parent company may be relevant where, for example, the parent bore some responsibility for the subsidiary’s conduct, or where it is relevant to the subsidiary’s capacity to meet a substantial pecuniary penalty: • Schneider Electric (Aust) Pty Ltd v Australian Competition and Consumer Commission (2003) 127 FCR 170; 196 ALR 611; [2003] FCAFC 2; BC200300249 at [49] per Merkel J (Sackville J agreeing); • see Australian Competition and Consumer Commission v

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McMahon Services Pty Ltd (2004) ATPR ¶42-031; [2004] FCA 1425; BC200407312 at [27] per Selway J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 per Bennett J; Australian Competition and Consumer Commission v Coles Supermarkets Pty Ltd [2014] FCA 1405; BC201411366 per Gordon J.

Admission A guilty plea may result in a reduced penalty because it recognises some contrition and remorse and relieves the Commission from the cost of proceedings: • Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022; [2004] FCA 1171; BC200406682 at [91] per Lander J; • Bauer v Power Pacific International Media Pty Ltd [2007] FCA 349; BC200701651 at [25] per Collier J; • Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834; BC200710229 at [117] per Weinberg J; • Australian Competition and Consumer Commission v Qantas Airways Ltd [2007] FCA 1976; BC200811642 at [65] per Lindgren J; • Australian Competition and Consumer Commission v British Airways plc [2008] FCA 1977; BC200811643 at [31] per Lindgren J. • Australian Competition and Consumer Commission (ACCC) v RL Adams Pty Ltd [2015] FCA 1016; BC201508908 per Edelman J. If the plea is entered at the first available opportunity, the discount is greater. However, some discount is given even if the plea is late: Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022, above, at [91] per Lander J. Where no admission has been made special consideration is not applied to increase the penalty. The failure to make admissions neutralises any mitigation of the penalty imposed rather than leading to an aggravation of penalty: Australian Competition and Consumer Commission v D M Faulkner

Pty Ltd [2004] FCA 1666; BC200406522 at [63] per Bennett J. Future conduct Any undertakings given not to engage in similar practices: • Australian Competition and Consumer Commission v Ampol Petroleum (Vic) Pty Ltd (1996) ATPR ¶41-500; • Australian Competition and Consumer Commission v Hugo Boss Australia Pty Ltd (1996) ATPR ¶41-536; • Australian Competition and Consumer Commission v Tyco Australia Pty Ltd (2000) ATPR ¶41-740; [1999] FCA 1799; BC9908509; • Australian Competition and Consumer Commission v Geoff Clegg Enterprises Pty Ltd (2000) ATPR ¶41-773; [2000] FCA 977; BC200004030; • Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2000) ATPR ¶41-777; [2000] FCA 997; BC200004161. [page 600] Profit from the contravening conduct The court will endeavour to determine with some precision the extent of any profit derived. However very often this will be difficult and costly. In these situations courts have been prepared to impose penalties without evidence of profits derived being led: • Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375; • Trade Practices Commission v Hymix Industries Pty Ltd (1995) ATPR ¶41-369; • Australian Competition and Consumer Commission v Pioneer Concrete (Qld) Pty Ltd (1996) ATPR ¶41-457; • Australian Competition and Consumer Commission v Tyco Australia Pty Ltd (2000) ATPR ¶41-740; [1999] FCA 1799; BC9908509; • Australian Competition and Consumer Commission v Tubemakers of Australia Ltd (2000) ATPR ¶41-745; [1999] FCA 1787; BC9908327; • Australian Competition and Consumer Commission v Roche

Vitamins Australia Pty Ltd (2001) ATPR ¶41-809; [2001] FCA 150; BC200100527; • Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-022; [2004] FCA 1171; BC200406682 at [105] per Lander J; • Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-031; [2004] FCA 1425; BC200407312 at [31] per Selway J; • Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [43] per Bennett J; • Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 7) [2016] FCA 424; BC201603031 per Edelman J. • Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453; BC201604416 per Greenwood J. However, the penalty is not simply to be fixed at a level sufficient to cost the contravenor more than the benefit to be derived from the anti-competitive conduct: Australian Competition and Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 5) (1998) ATPR ¶41-628 at 40,890; (appeal) J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532; [2000] FCA 365; BC200001721. For a discussion of the approach to assessing profits in price fixing matters see Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453; BC201604416 at [640] and following per Greenwood J. Sophistication of the respondent A relevant factor is that the respondents were not particularly sophisticated in terms of the legal environment and their obligations under the Act: Trade Practices Commission v Caravella (1994) ATPR ¶41-293 at 41,930; Australian Competition and Consumer Commission v Trevor Davis Investments Pty Ltd (2001) ATPR ¶41-828; [2001] FCA 952; BC200104079; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-031; [2004] FCA 1425; BC200407312 at [22] per Selway J. Compensating victims Undertakings to compensate the victims of the

conduct: Australian Competition and Consumer Commission v Alice Car & Truck Rentals Pty Ltd (1997) ATPR ¶41-582. Cessation of employment The person responsible for the conduct no longer employed by the company: Australian Competition and Consumer Commission v Tubemakers of Australia Ltd (2000) ATPR ¶41-745 at 40,627; [1999] FCA 1787; BC9908327; Australian Competition and Consumer Commission v George Weston Foods Ltd (2004) 210 ALR 486; [2004] FCA 1093; BC200405415 at [25] per Gyles J. Compliance program A failure to have in place a compliance program: Director of Consumer Affairs v Nightingale Electrics Pty Ltd [2016] FCA 279; BC201601844 at [25] per Pagone J. Systematic conduct Conduct that is systematic or covert: J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532; [2000] FCA 365; BC200001721. [page 601] Legal advice and risk Erroneous legal advice is not a basis for receiving a substantial discount on penalty: • Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) [2004] FCA 1471; BC200407679 at [36] per Sackville J; • Australian Competition and Consumer Commission v Westminster Retail Pty Ltd [2005] FCA 1299; BC200506929 at [43] per Mansfield J; • See, however, Australian Competition and Consumer Commission v Ranu Pty Ltd [2007] FCA 1777; BC200710651 at [37] per Heerey J; • Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834; BC200710229 at [140] per Weinberg J; • Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 per Murphy J.

Whether or not a person appreciates that there is a risk of contravening the Act is irrelevant or of minimal weight in determining the penalty: Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 236; BC200509856 at [49] per Stone and Allsop JJ. Insolvency or liquidation of a company A penalty may have the impact of putting a corporation out of business. The potential effect of such a result on innocent parties such as employees and creditors might provide grounds for a reduction in penalty: • Schneider Electric (Aust) Pty Ltd v Australian Competition and Consumer Commission (2003) 127 FCR 170; 196 ALR 611; [2003] FCAFC 2; BC200300249 at [8] per Sackville J; • Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCA 762; BC200503921 at [49] per Gray J. Where a company is likely to go into liquidation, even though the penalties may not be recovered, they will serve as a warning of the attitude of the court: • Australian Competition and Consumer Commission v Vales Wine Co Pty Ltd (1996) ATPR ¶41-528 at 42,776 per O’Loughlin J; • Australian Competition and Consumer Commission v SIP Australia Pty Ltd (2003) ATPR ¶41-937; [2003] FCA 336; BC200301754 at [59] per Goldberg J; • Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2004] FCA 376; BC200401573 at [24] per Heerey J; • Australian Competition and Consumer Commission v Chaste Corp Pty Ltd (in liq) [2005] FCA 1212; BC200506448 at [179] per Stone J; • Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; BC200608860 at [113] per Kiefel J; • Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085; BC200705831 at [16] per Nicholson J; • Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; BC200707710 at

[20] per Moore, Dowsett and Greenwood JJ; • Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834; BC200710229 at [118] per Weinberg J. • Australian Competition and Consumer Commission (ACCC) v Homeopathy Plus! Australia Pty Ltd (No 2) [2015] FCA 1090; BC201510011 at [60] per Perry J. • Australian Competition and Consumer Commission (ACCC) v SensaSlim Australia Pty Ltd (in liq) (No 7) [2016] FCA 484; BC201603506 per Yates J. There will be situations where, despite a company being in liquidation, it is appropriate to impose a penalty. For example, where a third party or related company might meet the obligation or where following liquidation, there may be adequate funds to meet the penalty: • Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd, above, at [19] per Moore, Dowsett and Greenwood JJ; • Australian Competition and Consumer Commission v ACN 135 183 372 (in liq) [2012] FCA 749; BC201205140 per Marshall J; [page 602] •

Australian Competition and Consumer Commission v Nonchalant Pty Ltd (in liq) [2013] FCA 605; BC201310332 per Gordon J.

Contravention of a per se provision of the Act Contravention of a provision of Pt IV of the Act that is established without needing to prove a substantial lessening of competition in a market — that is, contravention of a per se provision: • Australian Competition and Consumer Commission v Pioneer Concrete (Qld) Pty Ltd (1996) ATPR ¶41-457; • Australian Competition and Consumer Commission v Roche Vitamins Australia Pty Ltd (2001) ATPR ¶41-809; [2001] FCA 150; BC200100527;

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Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR ¶42-031; [2004] FCA 1425; BC200407312 per Selway J; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) [2004] FCA 1471; BC200407679 at [45] per Sackville J; Australian Competition and Consumer Commission v Chaste Corp Pty Ltd (in liq) [2005] FCA 1212; BC200506448 per Stone J. See Australian Competition and Consumer Commission v Jurlique International Pty Ltd [2007] FCA 79; BC200700396 at [75] per Spender J; Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; BC200707710 at [60] per Moore, Dowsett and Greenwood JJ; Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834; BC200710229 at [125] per Weinberg J; Australian Competition and Consumer Commission v Telwater Pty Ltd [2009] FCA 263; BC200901829 at [69] per Spender J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [39] per Bennett J; See Australian Competition and Consumer Commission v Emirates [2012] FCA 1108; BC201207958 per Katzmann J; Australian Competition and Consumer Commission v Mitsubishi Electric Australia Pty Ltd [2013] FCA 1413; BC201315974 per Mansfield J; Australian Competition and Consumer Commission v Flight Centre Ltd (No 3) [2014] FCA 292; BC201402113 per Logan J. Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453; BC201604416 per Greenwood J.

Commission’s cooperation policy in enforcement matters In Australian Competition and Consumer Commission v SIP Australia Pty Ltd (1999) ATPR ¶41-702; [1999] FCA 858; BC9903599 Goldberg J said that the court

could consider the matters in the commission’s Cooperation Policy for Enforcement Matters in deciding on the appropriate penalty. See [11,590.26]. [11,590.25A] Pleading circumstances of aggravation The effect of s 76(1A) is that if a benefit can be shown to arise from a contravention, the potential maximum penalty can be higher than the prescribed $10 million. That is, the higher maximum penalty arises if the circumstances of aggravation described in the provision are established. In Australian Competition and Consumer Commission v Flight Centre Ltd (No 3) [2014] FCA 292; BC201402113 at [41] Logan J considered that the rules of criminal practice explained in Kingswell v R (1985) 159 CLR 264; 62 ALR 161; 60 ALJR 17; BC8501077; R v Bright [1916] 2 KB 441; (1916) 12 Cr App Rep 69 and R v Meaton (1986) 160 CLR 359; 65 ALR 65; 60 ALJR 417; BC8601423 apply by analogy to pleading circumstances of aggravation under s 76(1A). The effect of that analogy is that circumstances of aggravation relied on under s 76(1A) must be expressly pleaded: Australian Competition and Consumer Commission v Flight Centre Ltd (No 3) [2014] FCA 292; BC201402113 at [41] per Logan J. [page 603] [11,590.26] ACCC Cooperation Policy for Enforcement Matters The commission has published the ACCC Cooperation Policy for Enforcement Matters, July 2002. It provides incentives for applicants to cooperate with the ACCC in relation to contraventions of the Act to enable the commission to detect and prevent unlawful conduct. The policy provides that leniency is most likely to be considered by a corporation which: • comes forward with valuable and important evidence of a contravention of which the commission is otherwise unaware or has insufficient evidence to initiate proceedings; • upon its discovery of the breach, takes prompt and effective action to terminate its part in the activity; • provides the commission with full and frank disclosure of the activity and all relevant documentary and other evidence

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available to it, and cooperates fully with the commission’s investigation and any ensuing prosecution; has not compelled or induced any other corporation to take part in the anti-competitive agreement and was not a ringleader or originator of the activity; is prepared to make restitution where appropriate; is prepared to take immediate steps to rectify the situation and ensure that it does not happen again, undertakes to do so and complies with the undertaking; and does not have a prior record of Act, or related, offences.

[11,590.26A] ACCC Immunity and Cooperation Policy for Cartel Conduct On 26 August 2005 the commission published its Immunity Policy for Cartel Conduct. That policy commenced on 5 September 2005 and replaced the commission’s 2003 Leniency Policy for Cartel Conduct. In July 2009, the commission released two documents — “ACCC Immunity Policy for Cartel Conduct” and “ACCC Immunity Policy Interpretation Guidelines”. The Commission commenced a review of its Immunity Policy for Cartel Conduct July 2009 in March 2013 and released a public discussion paper in September 2013. Following public consultation, on 9 April 2014, the Commission released its draft Immunity and Cooperation Policy for Cartel Conduct April 2014 and draft Frequently Asked Questions for public comment. The draft document simplifies the format into one policy document. The other changes include: • streamlining the process of granting civil and criminal immunity; • clarifying the criteria for assessing a party’s eligibility for immunity; • inclusion of further detail on how cooperation by second and subsequent parties to a cartel will be assessed by the Commission; and • updating the language of the policy to reflect legislative changes since the last policy was released. On 10 September 2014 the ACCC published its ACCC Immunity and Cooperation Policy for Cartel Conduct which replaces both the ACCC Immunity Policy for Cartel Conduct and the ACCC Immunity Policy Interpretation Guidelines.

See [10,690ZZRA.10]. [11,590.27] Penalty ranges and agreement on penalties to apply Parties are free to reach agreement regarding the appropriate penalty that they will put to the court. It would seem that as long as the negotiated amount is put to the court for its approval and is not outside the range within which a court would fix a penalty there is no objection to this practice. If the negotiated amount falls outside the range it would be incumbent on the court to determine the matter irrespective of the agreement reached: • Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375 at 40,165. • See also Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 37 ALR 256; 60 FLR 38; (1981) ATPR ¶40-241 at 43,182; • Trade Practices Commission v Hymix Industries Pty Ltd (1995) ATPR ¶41-369; • Trade Practices Commission v Axive Pty Ltd (1994) ATPR ¶41368; • Trade Practices Commission v CC (NSW) Pty Ltd (1994) ATPR ¶41-363; [page 604] • • • • • • •

Trade Practices Commission v CC (NSW) Pty Ltd (No 2) (1995) ATPR ¶41-406 at 40,498; Trade Practices Commission v CC (NSW) Pty Ltd (No 6) (1995) ATPR ¶41-431 at 40,841; Trade Practices Commission v Simsmetal Ltd (1996) ATPR ¶41449 at 41,512; Australian Competition and Consumer Commission v Pioneer Concrete (Qld) Pty Ltd (1996) ATPR ¶41-457; Trade Practices Commission v Monier Roofing Ltd (1996) ATPR ¶41-464; Australian Competition and Consumer Commission v Hymix Industries Pty Ltd (1996) ATPR ¶41-465; Australian Competition and Consumer Commission v Jaycee

Rectification and Building Services Pty Ltd (1996) ATPR ¶41539; • Australian Competition and Consumer Commission v Hugo Boss Australia Pty Ltd (1996) ATPR ¶41-536; • Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR ¶41-515. On appeal in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; 141 ALR 640; (1997) ATPR ¶41-546, the majority of the court (Burchett and Kiefel JJ, with Carr J substantially agreeing) said that it is ultimately the court’s responsibility to fix an appropriate penalty however it recognised that lengthy litigation could be avoided by corporations acknowledging contraventions and arriving at a negotiated solution. The court set aside the trial judge’s decision on the basis that he had erred in considering the penalties imposed by the court in Australian Competition and Consumer Commission v Ampol Petroleum (Vic) Pty Ltd (1996) ATPR ¶41-469 as the basis of his assessment: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission, above; Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144; BC200701349 at [7] per Tracey J. Following NW Frozen Foods Pty Ltd, the courts continued to support the practice of parties reaching agreement on the appropriate penalty and submitting it to the court for approval: • Australian Competition and Consumer Commission v Alice Car & Truck Rentals Pty Ltd (1997) ATPR ¶41-582; • Australian Competition and Consumer Commission v Foamlite (Aust) Pty Ltd (1998) ATPR ¶41-615; • Australian Competition and Consumer Commission v Joyce Corp Ltd (1999) ATPR ¶41-671; • Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) ATPR ¶41-673 at 42,605; • Australian Competition and Consumer Commission v Tyco Australia Pty Ltd (2000) ATPR ¶41-740; [1999] FCA 1799; BC9908509; • Australian Competition and Consumer Commission v Tubemakers of Australia Ltd (2000) ATPR ¶41-745 at 40,627;

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[1999] FCA 1787; BC9908327; Australian Competition and Consumer Commission v Roche Vitamins Australia Pty Ltd (2001) ATPR ¶41-809; [2001] FCA 150; BC200100527; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (2001) ATPR ¶41-815; [2001] FCA 383; BC200101480; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (2001) ATPR ¶41-839; [2001] FCA 1343; BC200105671 at [11] per Finkelstein J; Australian Competition and Consumer Commission v ColgatePalmolive Pty Ltd (2002) ATPR ¶41-880; [2002] FCA 619; BC200202382 at [24] per Weinberg J; Australian Competition and Consumer Commission v Tasmanian Salmonid Growers Assn Ltd (2003) ATPR ¶41-954; [2003] FCA 788; BC200304205 at [24] per Heerey J; [page 605]

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Australian Competition and Consumer Commission v FFE Building Services Ltd (2004) Aust Contract R ¶90-179; [2003] FCA 1542; BC200307944 at [27] per Wilcox J; see Darwalla Mining Co Pty Ltd v F Hoffman-La Roche (No 2) (2006) 236 ALR 322; (2007) ATPR ¶42-134; [2006] FCA 1388; BC200608652 per Jessup J; Secretary, Department of Health and Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545; BC200809192 at [36] per Flick J; see Australian Competition and Consumer Commission v PRK Corp Pty Ltd [2009] FCA 715; BC200905860 at [22] per Jacobson J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [45] per Bennett J; Australian Competition and Consumer Commission v Black & White Cabs Pty Ltd [2010] FCA 1399; BC201009585 at [8] per Finkelstein J;

Australian Competition and Consumer Commission v Bridgestone Corp (2010) 186 FCR 214; [2010] FCA 584; BC201004060 per Finkelstein J; • Australian Competition and Consumer Commission v Stott [2013] FCA 88 per Middleton J; • Australian Competition and Consumer Commission v Hewlett Packard Australia Pty Ltd [2013] FCA 653; BC201310706 Buchanan J; • Australian Competition and Consumer Commission v Artorios Ink Co Pty Ltd (No 2) [2013] FCA 1292; BC201315319 per Mortimer J. Indeed, the principle has been applied to other legislative provisions: see Australian Securities and Investments Commission v Forge [2002] NSWSC 760; BC200204989 at [155]–[158]; Comcare v Post Logistics Australasia Pty Ltd (2008) 178 IR 200; [2008] FCA 1987; BC200811604 per Flick J. In Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2003) ATPR ¶41-961; [2003] FCA 1454; BC200307604, Gyles J was asked to approve an agreed penalty following breaches of the Petroleum Retail Marketing Sites Act 1980. Gyles J said, at [13], that the reservations expressed by several judges of the court should be set at rest one way or the other. Gyles J recommended to the Acting Chief Justice under s 20(1A) of the Federal Court of Australia Act 1976 that the question regarding the agreed penalty be referred to the Full Court for its consideration. The Full Court of the Federal Court considered the question and found that there was no reason to depart from the principles stated in NW Frozen Foods Pty Ltd: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; BC200401455 at [79] per Branson, Sackville and Gyles JJ. See also Australian Competition and Consumer Commission v Chaste Corp Pty Ltd [2004] FCA 398; BC200401656 at [11] per Gyles J. The Full Court made a number of further observations on the propositions said to emerge from the NW Frozen Foods Pty Ltd case and the approach to be taken by a court in considering a proposed penalty. Ultimately, it is the responsibility of the court to determine the appropriate penalty: • Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd, above, (2004) at [51] per Branson, Sackville and Gyles JJ. • See Australian Competition and Consumer Commission v •

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Liquorland (Aust) Pty Ltd [2005] FCA 683; BC200503547 at [64] per Gyles J; Bauer v Power Pacific International Media Pty Ltd [2007] FCA 349; BC200701651 at [23] per Collier J; Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) [2007] FCA 1617; BC200709371 at [305] per Heerey J; Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] FCA 1546; BC200708569 at [6] per Gyles J; Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834; BC200710229 at [121] per Weinberg J; [page 606]

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Australian Competition and Consumer Commission v Navman Australia Pty Ltd (2008) ASAL ¶55-182; [2007] FCA 2058; BC200711308 at [126] per Gordon J; Australian Competition and Consumer Commission v FChem (Aust) Ltd [2008] FCA 344; BC200801851 at [22] per Cowdroy J; Australian Communications and Media Authority v WE.NET.AU Pty Ltd [2008] FCA 1530; BC200808981 at [7] per Collier J; Australian Competition and Consumer Commission v Oobi Baby Pty Ltd [2008] FCA 1488; BC200808748 at [9] per Finkelstein J; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976; BC200811642 at [26] per Finkelstein J; Comcare v Gritsch [2010] FCA 1220; BC201008442 at [27] per Stone J; Australian Competition and Consumer Commission v IGC Dorel Pty Ltd [2010] FCA 1303; BC201008953 per Lander J; Australian Competition and Consumer Commission v Willesee Healthcare Pty Ltd (No 2) [2011] FCA 752 at [55] per DoddsStreeton J;

Australian Competition and Consumer Commission v Japan Airlines International Co Ltd [2011] FCA 365; BC201102040 per Ryan J; • Australian Competition and Consumer Commission v Emirates [2012] FCA 1108; BC201207958 per Katzmann J; • Australian Competition and Consumer Commission v Cathay Pacific Airways Ltd (No 3) [2012] FCA 1392; BC201209542 per Katzmann J; • Australian Competition and Consumer Commission v Adepto Publications Pty Ltd [2013] FCA 247; BC201301415 per Cowdroy J; • Australian Competition and Consumer Commission v Pepe’s Ducks Ltd [2013] FCA 570; BC201310097 per Bromberg J; • Australian Competition and Consumer Commission v HewlettPackard Australia Pty Ltd [2013] FCA 653; BC201310706 per Buchanan J; • Australian Competition and Consumer Commission (ACCC) v Pfizer Australia Pty Ltd (2015) 110 IPR 324; [2015] FCA 113; BC201500877 per Flick J. There is public interest in promoting settlement of litigation, particularly where it is likely to be lengthy: • Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd (2004) ATPR ¶42-011; [2004] FCA 819; BC200404376 at [53] per Emmett J; • Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2006] FCA 1652; BC200610023 at [4] per Tracey J; • Australian Competition and Consumer Commission v Netti Atom Pty Ltd [2007] FCA 1945; BC200710709 at [8] per Finkelstein J; • Australian Competition and Consumer Commission v Australian Abalone Pty Ltd, above, at [121] per Weinberg J; • Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [45] per Bennett J; • Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153; BC201100688 at [45] per Bennett J; •

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Australian Competition and Consumer Commission v Malaysia Airline System Berhad (No 2) [2012] FCA 767; BC201205306 per Emmett J; Australian Competition and Consumer Commission v Emirates [2012] FCA 1108; BC201207958 per Katzmann J; Australian Competition and Consumer Commission v Adepto Publications Pty Ltd [2013] FCA 247; BC201301415 per Cowdroy J; Australian Competition and Consumer Commission v Coles Supermarkets Pty Ltd [2014] FCA 1405; BC201411366 per Gordon J; [page 607]

Australian Competition and Consumer Commission (ACCC) v South East Melbourne Cleaning Pty Ltd (in liq) (formerly Known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) [2015] FCA 25; BC201500239 per Murphy J; • Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2015] FCA 274; BC201501979 per Gordon J. • Australian Competition and Consumer Commission (ACCC) v Derodi Pty Ltd [2016] FCA 365; BC201603643 at [51] per Edelman J. Accordingly, when the regulator and contravenor have reached agreement, they may present to the court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd, above, (2004) at [51] per Branson, Sackville and Gyles JJ; Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd (2008) ATPR ¶42-225; [2008] FCA 402; BC200802015 at [20] per Finn J; Australian Competition and Consumer Commission v FChem (Aust) Ltd, above, at [23] per Cowdroy J The view of the regulator, as a specialist body, is a relevant but not determinative consideration on the question of penalty: Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd, •

above, at [54] per Emmett J. The views of the regulator on matters within its expertise (such as its view on the deterrent effect of a proposed penalty) will usually be given greater weight than its views on more subjective matters: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd, above, (2004) at [51] per Branson, Sackville and Gyles JJ. Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the court’s view, appropriate in the circumstances of the case. In answering that question, the court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd, above, (2004) at [51] per Branson, Sackville and Gyles JJ. In determining whether the penalty is appropriate, the court is not obliged to commence its reasoning with the proposed penalty and limit itself to considering whether the penalty is within the permissible range. It is open to a court to do so. However, it is also open to a court to first address the appropriate range of penalties independently of the parties’ proposed figure and then, having made that judgment, determine whether the prepared penalty falls within that range: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd, above, (2004) at [54] per Branson, Sackville and Gyles JJ; Australian Competition and Consumer Commission v DM Faulkner Pty Ltd [2004] FCA 1666; BC200406522 at [58] per Bennett J. In giving weight to a joint submission, the court can have regard to the savings in resources both for the commission and for the court if the proposal were to be accepted: Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd, above, at [53] per Emmett J. The regulator should always explain to the court the process of reasoning that justifies a discounted penalty: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd, above, (2004) at [56] per Branson, Sackville and Gyles JJ. The court, if it considers that the evidence or information before it is inadequate to form a view as to whether the proposed penalty is appropriate, may request the parties to provide additional evidence or information or verify the information provided. If they do not provide the information or verification requested, the court may well not be satisfied that the proposed

penalty is within the range: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd, above, (2004) at [58], [70] per Branson, Sackville and Gyles JJ. There is little advantage to the parties in a civil penalty case limiting themselves to a joint submission on a range of pecuniary penalties, as distinct from a precise figure. The former is likely to be less helpful to the court than the latter: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd, above, (2004) at [78] per Branson, Sackville and Gyles JJ. [page 608] If the absence of a contradictor inhibits the court in the performance of its duties, it may seek the assistance of an amicus curiae or of an individual or body prepared to act as an intervenor: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd, above, (2004) at [58], [72] per Branson, Sackville and Gyles JJ. If the court is disposed not to impose the penalty proposed by the parties, it may be appropriate, depending on the circumstances, for each of them to be given the opportunity to withdraw consent to the proposed orders and for the matter to proceed as a contested hearing: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd, above, (2004) at [58] per Branson, Sackville and Gyles JJ. Despite the practice of agreed penalties, there has been a number of decision in which the approach has been questioned. In Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd, above, at 42,936 Finkelstein J made a number of observations concerning this practice. First, the practice involves the resolution of a dispute without a trial which may create difficulty if the court is asked to intervene. Second, it is difficult for a court to determine whether the penalty is within the range of which the court would approve if few penalties are indeed determined by the court. It is also not a good yardstick by which to measure whether what is agreed in later cases is within the range of appropriate penalties. This is because the agreed penalty need not be the penalty that would have been imposed by the court, although the penalty was not inappropriate. Third, there is no concluded view on the object of

imposing a penalty. It is only when this is decided that there can be a degree of certainty as to penalties. In Australian Competition and Consumer Commission v ColgatePalmolive Pty Ltd, above, at [32], Weinberg J commented on the undesirable practice on the part of the commission in presenting the court with a specific figure as an agreed pecuniary penalty. Judge Weinberg said, at [34], that the danger with this approach is that the court may be seen as a “rubber stamp” in simply approving a decision. His Honour accepted, at [35] that a joint submission regarding what might be the appropriate range of pecuniary penalties to be imposed can assist in achieving a measure of certainty and consistency. Unlike the more usual practice of putting forward an “agreed penalty”, the suggestion of an appropriate range of penalties allows for the proper exercise of judicial discretion. In Australian Securities and Investments Commission v Ingleby (2013) 275 FLR 171; (2013) 93 ACSR 274; [2013] VSCA 49; BC201301217 Weinberg J repeated the concerns he expressed in Colgate-Palmolive. He said at [28]– [30]: The views expressed by the Full Federal Court in both NW Frozen Foods and Mobil Oil are entitled to be given due weight, and appropriate respect. That said, and as the High Court has made clear, this Court is not bound to follow decisions of other intermediate appellate courts which it regards as “plainly wrong”. I have previously said that I consider both NW Frozen Foods and Mobil Oil to represent bad law. I am still of that opinion. NW Frozen Foods and Mobil Oil were, in my opinion, wrongly decided because they treat the trial judge, who is to impose the pecuniary penalty, as though he or she is exercising an appellate role. Under the approach adopted in those cases, the judge is not independently arriving at the appropriate penalty, but rather asking an entirely different question — whether the agreed figure falls within the range of penalties reasonably available. That is, in substance, an appellate question, and not a first instance question. If the judge is unable to say that the agreed penalty is “wholly outside” the range, he or she is bound to impose that penalty irrespective of whether it is considered appropriate. That is, in my view, a fundamental departure from the judicial function in relation to sentencing, and one that simply ought not to be countenanced.

The decision in Ingleby was considered in Australian Competition and Consumer Commission v AGL Sales Pty Ltd [2013] FCA 1030; BC201313641 per Middleton J. Justice Middleton did not consider that there was anything in the reasoning adopted in NW Frozen Foods or Mobil Oil that [page 609]

fetters the powers of the court to determine the appropriate penalty: Australian Competition and Consumer Commission v AGL Sales Pty Ltd [2013] FCA 1030; BC201313641 at [48] per Middleton J. In Australian Competition and Consumer Commission v P&N Pty Ltd [2014] FCA 6; BC201400060 at [3] Besanko J, after having considered Ingleby, nevertheless followed the approach of the High Court in NW Frozen Foods. See also Australian Competition and Consumer Commission v Avitalb Pty Ltd [2014] FCA 222; BC201401607 at [18] per Griffiths J. See also [11,590.27A]. [11,590.27A] Making submissions in relation to penalties A court may, if appropriate, accept an agreed or other civil penalty submission: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; BC201512076 per French CJ, Kiefel, Bell, Nettle and Gordon JJ (Gageler J and Keane J agreeing). If a court is sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances, it is consistent with principle and highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; BC201512076 at [58] per French CJ, Kiefel, Bell, Nettle and Gordon JJ (Gageler J and Keane J agreeing). Until the High Court’s decision in Fair Work Building Industry Inspectorate, (above), it was thought that the decision in Barbaro v R; Zirilli v R (2014) 305 ALR 323; 88 ALJR 372; [2014] HCA 2; BC201400392 precluded that approach. In Barbaro v R; Zirilli v R (2014) 305 ALR 323; 88 ALJR 372; [2014] HCA 2; BC201400392, the High Court rejected the argument that in sentencing the prosecution is permitted or required to make submissions on the range of penalties. These submissions are merely statements of opinion which the trial judge may or may not consider: Barbaro at [42]. In Australian Competition and Consumer Commission (ACCC) v Energy Australia Pty Ltd [2014] FCA 336; BC201402530, Middleton J considered the principles in Barbaro and held that it does not overrule the decision in NW Frozen Foods that would allow submissions to be made on penalties. In Australian Competition and Consumer Commission (ACCC) v

Mandurvit Pty Ltd [2014] FCA 464; BC201403371, McKerracher J, after carefully examining the High Court’s decision, similarly applied NW Frozen Foods. Also Australian Competition and Consumer Commission (ACCC) v Titan Marketing Pty Ltd [2014] FCA 913; BC201406907 per Rangiah J; Australian Competition and Consumer Commission (ACCC) v Zen Telecom Pty Ltd [2014] FCA 1049; BC201408101 at [70] per Barker J; Australian Competition and Consumer Commission (ACCC) v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393; BC201410907 per Wigney J; Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] FCA 83; BC201500687 at [121] per McKerracher J; Australian Competition and Consumer Commission (ACCC) v Origin Energy Ltd [2015] FCA 55; BC201500418 at [31] per White J; Australian Competition and Consumer Commission (ACCC) v Omniblend Australia Pty Ltd [2015] FCA 871; BC201507809 per Beach J. The issue again arose for substantive consideration in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 320 ALR 631; 105 ACSR 403; [2015] FCAFC 59; BC201503362 per Dowsett, Greenwood and Wigney JJ (the “CFMEU decision”). The CFMEU decision considered in some depth the NW Foods, Mobil and Barbaro decisions. It concluded that consistent with Barbaro, a court is not permitted to accept submissions which identify a range of penalties, nominate specific penalties or urge the adoption of agreed penalties. In Australian Competition and Consumer Commission (ACCC) v Chopra [2015] FCA 539; BC201504567 at [52]–[54], Middleton J commented on the CFMEU decision: [page 610] [52] The legal representatives for both the regulator and the respondent have a responsibility to assist the court to avoid appealable error. This involves ensuring that a penalty is not manifestly excessive or manifestly inadequate. This can be appropriately achieved by the making of submissions based upon the applicable legal principles, any relevant previous decisions, and the evidence before the court. The opportunity to do so will often arise in the course of discussion between the Bench and the legal representatives in any particular proceeding as to the appropriateness of a particular penalty. I do not see the Full Court in CFMEU as seeking to stifle any necessary discussion in this regard between the Bench and the legal representatives of the parties before the court. The submissions of the legal representatives, as in any proceeding, should

not and would not normally involve any “opinion” of the legal representative, the regulator, or any party. [53] In the context of considering previous decisions, a debate as to the similarities and differences between such decisions and the conduct of the contravener before the court may occur. Consistency in the imposition of penalties under the ACL is obviously desirable. If sufficient detail is given to the court as to the previous decisions (see the comments in CFMEU at [253]), the legal representatives are entitled to submit, based upon the relevant aspects of the previous decisions and the circumstances of the contravener’s conduct, the range demonstrated by the relevant cases. The legal representatives should submit to the court any pecuniary penalty which would be manifestly excessive or manifestly inadequate. The process of determining the appropriate penalty by the court then takes place. The court must consider the appropriate penalty in view of all the relevant factors against the circumstances of the particular case, taking into account all the submissions put before the court. [54] The actual imposition of a penalty involves the exercise of judicial power, and as the Full Court said in CFMEU at [218] “pecuniary penalties are clearly penal in nature. They mark the community’s displeasure concerning breaches of its laws”. In any exercise of judicial power, a court must be careful in the way it undertakes its role so as not to adversely affect public perceptions of the exercise of the judicial function. However, any appropriately informed and fair minded lay observer would be well familiar with the role of a legal representative in making submissions to the court, as not being the mere mouthpiece of a client. A legal representative in all civil proceedings is there to assist the court by making submissions within the confines of his or her ethical obligations to the client and the court.

The principle applied in the CFMEU decision (above) would mean that it is also inappropriate for an applicant to nominate the amount that the applicant is prepared to pay in relation to a contravention: Australian Competition and Consumer Commission (ACCC) v RL Adams Pty Ltd [2015] FCA 1016; BC201508908 at [49] per Edelman J. The CFMEU decision went on appeal to the High Court. The High Court overturned the decision of the Full Federal Court. As indicated above, the High Court held that Barbaro does not apply to civil penalty proceedings and a court is not precluded from receiving and, if appropriate, accepting an agreed or other civil penalty submission: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; BC201512076 per French CJ, Kiefel, Bell, Nettle and Gordon JJ (Gageler J and Keane J agreeing). In reaching that conclusion, the High Court said at [57]: In contrast, in civil proceedings there is generally very considerable scope for the parties to agree on the facts and upon consequences. There is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy. Accordingly, settlements of civil proceedings are commonplace and orders by consent for the payment of damages and other relief are unremarkable. So are court-approved compromises of proceedings on behalf of infants and persons otherwise lacking capacity, court-approved custody and property settlements, court-approved compromises in group proceedings and court-approved schemes of arrangement. More generally, it is entirely

[page 611] consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate.

See also [11,590.27]. [11,590.28] Privilege against exposure to a civil penalty At common law, the privilege against exposure to a civil penalty does not extend to corporations: Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96; 123 ALR 503; (1994) ATPR ¶41-342. See also [14,180.75]. However, the privilege against exposure to a penalty and the privilege against incrimination apply to natural persons. Therefore they should not be ordered to disclose information or documents which may assist in establishing their liability. This extends to a prohibition on the filing of witness statements: Australian Competition and Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 2) (1997) 148 ALR 601; (1997) ATPR ¶41-592; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (1999) 163 ALR 465; (1999) ATPR ¶41-692; Australian Competition and Consumer Commission v FFE Building Services Ltd (2003) ATPR ¶41-938; [2003] FCAFC 132; BC200303043 per Emmett, Hely and Jacobson JJ. This stems from the proposition that a defendant in proceedings that are solely for the recovery of a pecuniary penalty should not be ordered to disclose information or documents that may assist in establishing his liability to a penalty: Refrigerated Express Lines (A’asia) Pty Ltd v Australian Meat and Livestock Corp (1979) 42 FLR 204; (1979) ATPR ¶40-137 at 18,484, relied on by Heerey J in Australian Competition and Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 2), above, and cited with approval by the High Court in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 509; (1983) ATPR ¶40-341 at 44,098; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd, above, ATPR at 42,852–3 per Sackville J. In other words, as Sackville J said in Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd, above, ATPR at 42,853–4: The privilege against self-incrimination and the privilege against exposure to a penalty are

reflections of the one fundamental principle, namely that those who allege the commission of a crime or the incurring of a penalty should prove it themselves and not be able to compel the accused or the respondent to provide proof against himself or herself: Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129; 123 ALR 503; (1994) ATPR ¶41-342 at 42,458, per Burchett J (with whom Black CJ and Davies J agreed). There is therefore no reason to think that the scope of the privilege against exposure to a penalty is any narrower than that of the privilege against self-incrimination.

[11,590.29] Appeals on the quantum of a penalty An appellate court may interfere with a penalty imposed only if it is shown that the trial judge fell into error by acting on a wrong principle, by acting on a misapprehension of the facts, by taking into account irrelevant material or by failing to take into account relevant material: J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532; [2000] FCA 365; BC200001721 at [151]; Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 236; BC200509856 at [26] per Stone and Allsop JJ. Error might also be presumed if the penalty imposed was manifestly excessive: Pye Industries Sales Pty Ltd v Trade Practices Commission (1979) ATPR ¶40-124 at 18,325–7; J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission, above; Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR ¶41-851; [2001] FCA 1716; BC200107639 at [24] per Wilcox, Hill and Carr JJ. [page 612] [11,590.30] Attempt To constitute an attempt under s 76(1)(b) the act must have progressed sufficiently. The analogy of the criminal law that the acts constituting attempt must be approximate to the commission of the crime offers some guidance: • Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 5 FCR 140; 59 ALR 589; (1985) ATPR ¶40-526 at 46,252 per Fox J; • Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR ¶41-763; [2000] FCA 690; BC200002723; • Australian Competition and Consumer Commission (ACCC) v

Australian Egg Corp Ltd [2016] FCA 69; BC201600514 per White J. However there is no reason for holding that an attempt must have reached an advanced stage before it falls within the paragraph: • Trade Practices Commission v Parkfield Operations Pty Ltd (1985) ATPR ¶40-639 at 47,190; • Australian Competition and Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 3) (1998) ATPR (Digest) ¶46-183 at 50,321. An attempt requires proof that those involved intended to bring about a particular result: • Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719; (1983) ATPR ¶40-358; • Australian Competition and Consumer Commission v Visy Paper Pty Ltd (2000) 186 ALR 731; (2001) ATPR ¶41-799 at 42,608; [2000] FCA 1640; BC200006997. • See Australian Competition and Consumer Commission v Flight Centre Ltd (No 2) (2013) 307 ALR 209; [2013] FCA 1313; BC201315432 at [154]–[155] per Logan J. • Australian Competition and Consumer Commission (ACCC) v Australian Egg Corp Ltd [2016] FCA 69; BC201600514 at [25] per White J. It is not a necessary ingredient for an attempt to show that there is an expectation that the attempt will be successful: Trade Practices Commission v Tubemakers of Australia Ltd, above. [11,590.35] “aiding and abetting”

See [11,585.20].

[11,590.40] “party to a contravention”

See [11,585.65].

[11,590.45] “induced or attempted to induce” — s 76(1)(d) In Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 5 FCR 140; 59 ALR 589; (1985) ATPR ¶40-526 at 46,252, Fox J said that inducing a person to contravene a provision envisages success. There is no attempt to induce if despite invitation or exhortation, or threats or promises there is no arrangement which is in place and can be effected or can be readily effected. What is required for an inducement is that there be an affirmative or positive

act or course of conduct directed to the person who is said to be the object of the inducement: Australian Competition and Consumer Commission v SIP Australia Pty Ltd (2002) ATPR ¶41-877; [2002] FCA 824; BC200203522 at [112] per Goldberg J. Inducement is not limited to threats or promises: Australian Competition and Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 3) (1998) ATPR (Digest) ¶46-183 at 50,322. For the purpose of s 76(1)(d) intention must be shown: • Trade Practices Commission v Service Station Assn Ltd (1992) 109 ALR 465; (1992) ATPR ¶41-179 at 40,456; • Australian Competition and Consumer Commission v Visy Paper Pty Ltd (2000) 186 ALR 731; (2001) ATPR ¶41-799 at 42,610; [2000] FCA 1640; BC200006997; • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [991] per Goldberg J. [11,590.47] Contempt

See [11,605.24].

[page 613] SECTION 76(3) [11,590.50] Multiple contraventions The words “the same conduct” in s 76(3) are more limited in scope than the words “any similar conduct” which appear in s 76(1). If there are multiple contraventions of a section which arise out of the same conduct, then the offending conduct will be treated as a single infringement of the section: Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR 544; 47 FLR 334; (1980) ATPR ¶40-169 at 42,337. In that case, Franki J said that in relation to s 48 of the Act, the conduct of the defendant in relation to a number of suppliers if taking place at different times and in relation to different customers would not be regarded as “the same conduct” within s 76(3). However, in Australian Competition and Consumer Commission v Dermalogica Pty Ltd (2005) 215 ALR 482; [2005] FCA 152; BC200500619 at [56] Goldberg J was satisfied that where conduct constitutes a contravention of s 48 by satisfying more than one paragraph of s 96(3), there has been a contravention of only one provision for the purpose of s 76(3). Where there are multiple contraventions the penalty for each contravention must not be determined as an overall penalty and then divided amongst the various components. Rather the penalty for each contravention should be imposed at a level appropriate for the contravention and then consideration should be given to whether the aggregate is appropriate for the total contravening conduct: • Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; 145 ALR 36; • Australian Competition and Consumer Commission v Cromford Pty Ltd (1998) ATPR ¶41-618 at 40,764; • J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532; [2000] FCA 365; BC200001721; • see also Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-833; [2001] FCA 1065; BC200104475 at [19] per Mansfield J.

[11,592] Defence to proceedings under section 76 relating to a contravention of section 95AZN 76A (1) In this section: contravention, in relation to a section, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section. [def insrt Act 131 of 2006 s 3 and Sch 9[8], opn 1 Jan 2007]

contravention of section 75AYA [def rep Act 131 of 2006 s 3 and Sch 9[9], opn 1 Jan 2007]

(2) In proceedings against a person (the respondent) under section 76 in relation to an alleged contravention of section 95AZN, it is a defence if the respondent establishes: (a) that the contravention in respect of which the proceedings were instituted was due to reasonable mistake; or (b) that the contravention in respect of which the proceedings were instituted was due to reasonable reliance on information supplied by another person; or (c) that: (i) the contravention in respect of which the proceedings were instituted was due to the act or default of another person, to an accident or to some other cause beyond the respondent’s control; and [page 614] (ii) the respondent took reasonable precautions and exercised due diligence to avoid the contravention. [subs (2) am Act 131 of 2006 s 3 and Sch 9[10], opn 1 Jan 2007; Act 111 of 2009 s 3 and Sch 1[35], opn 17 Nov 2009]

(3) In paragraphs (2)(b) and (c), another person does not include a person who was: (a) a servant or agent of the respondent; or (b) if the respondent is a body corporate — a director, servant or agent

of the respondent; at the time when the alleged contravention occurred. [s 76A insrt Act 69 of 2000 s 3 and Sch 1] [heading am Act 111 of 2009 s 3 and Sch 1[35], opn 17 Nov 2009]

SECTION 76A GENERALLY [11,592.5] Overview This section was amended by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. A separate provision applies to the Australian Consumer Law. See ACL s 226. _____________________

[11,594] What happens if substantially the same conduct is a contravention of Part IV or section 95AZN and an offence? 76B (1) In this section: contravention, in relation to a section or Part, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section or Part. [def insrt Act 131 of 2006 s 3 and Sch 9[11], opn 1 Jan 2007; am Act 59 of 2009 s 3 and Sch 1[26], opn 24 July 2009]

contravention of section 75AYA [def rep Act 131 of 2006 s 3 and Sch 9[12], opn 1 Jan 2007]

pecuniary penalty order means an order under section 76 for the payment of a pecuniary penalty. (2) The Court must not make a pecuniary penalty order against a person in relation to a contravention of Part IV or section 95AZN if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention. [subs (2) am Act 131 of 2006 s 3 and Sch 9[13], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[27], opn 24 July 2009; Act 111 of 2009 s 3 and Sch 1[36], opn 17 Nov 2009]

(3) Proceedings for a pecuniary penalty order against a person in relation

to a contravention of Part IV or section 95AZN are stayed if: (a) criminal proceedings are started or have already been started against the person for an offence; and (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention. The proceedings for the pecuniary penalty order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed. [subs (3) am Act 131 of 2006 s 3 and Sch 9[13], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[27], opn 24 July 2009; Act 111 of 2009 s 3 and Sch 1[36], opn 17 Nov 2009]

[page 615] (4) Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of Part IV or section 95AZN regardless of whether a pecuniary penalty order has been made against the person in respect of the contravention. [subs (4) am Act 131 of 2006 s 3 and Sch 9[13], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[27], opn 24 July 2009; Act 111 of 2009 s 3 and Sch 1[36], opn 17 Nov 2009]

(5) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if: (a) the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of Part IV or section 95AZN (whether or not the order was made); and (b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order. [subs (5) am Act 131 of 2006 s 3 and Sch 9[14], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[27], opn 24 July 2009; Act 111 of 2009 s 3 and Sch 1[36], opn 17 Nov 2009]

(6) In this section:

offence means an offence against a law of the Commonwealth, a State or a Territory. [subs (6) insrt Act 59 of 2009 s 3 and Sch 1[28], opn 24 July 2009] [s 76B insrt Act 69 of 2000 s 3 and Sch 1; am Act 59 of 2009 s 3 and Sch 1[26], opn 24 July 2009] [heading am Act 59 of 2009 s 3 and Sch 1[26], opn 24 July 2009; Act 111 of 2009 s 3 and Sch 1[36], opn 17 Nov 2009]

SECTION 76B GENERALLY [11,594.5] Overview This section was amended by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. A separate provision applies to the Australian Consumer Law. See ACL s 225. _____________________

[11,594C] Defence to proceedings relating to exclusionary provisions 76C (1) Defence In proceedings against a person in relation to a contravention of subparagraph 45(2)(a)(i) or (b)(i) in relation to an exclusionary provision, it is a defence if the person establishes that the provision: (a) is for the purposes of a joint venture; and (b) does not have the purpose, and does not have and is not likely to have the effect, of substantially lessening competition. (2) Application of subsections 45(3) and (4) Subsections 45(3) and (4) apply for the purposes of subsection (1) in the same way as they apply for the purposes of section 45. (3) Definitions In this section: contravention of subparagraph 45(2)(a)(i) or (b)(i) includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of subparagraph 45(2)(a)(i) or (b)(i). [page 616]

proceedings means proceedings instituted under: (a) this Part or section 163A; or (b) section 21 or 23 of the Federal Court of Australia Act 1976; or (c) section 39B of the Judiciary Act 1903. [s 76C insrt Act 131 of 2006 s 3 and Sch 4[1], opn 1 Jan 2007]

SECTION 76C GENERALLY [11,594C.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. Exclusionary provisions are provisions that prohibit or restrict competitive firms acquiring or supplying goods or services (s 45(2)). Exclusionary provisions are strictly prohibited. This section provides a defence if it is established that the provision is for the purposes of a joint venture and does not have the purpose, effect or likely effect of substantially lessening competition. This recognises that joint venture arrangements may be pro-competitive. A similar provision applies under the New Zealand Commerce Act. The Dawson Committee considered that the proposed amendment would give effect to the Australia-New Zealand Closer Economic Relations Trade Agreement. See also ACL s 226. _____________________

[11,594D] Defence to proceedings relating to price fixing provisions 76D

[s 76D rep Act 59 of 2009 s 3 and Sch 1[29], opn 24 July 2009]

[11,594E] Pecuniary penalties — consumer protection etc 76E

[s 76E rep Act 103 of 2010 s 3 and Sch 5[51], opn 1 Jan 2011]

[11,594F]

Pecuniary penalties under section 76E

and offences 76F

[s 76F rep Act 103 of 2010 s 3 and Sch 5[51], opn 1 Jan 2011]

[11,595] Civil action for recovery of pecuniary penalties 77 (1) The Commission may institute a proceeding in the Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 76. [subs (1) am Act 88 of 1976 s 18 and Sch; Act 88 of 1995 s 61; Act 44 of 2010 s 3 and Sch 2[2], opn 15 Apr 2010; Act 103 of 2010 s 3 and Sch 5[52], opn 1 Jan 2011]

(2) A proceeding under subsection (1) may be commenced within 6 years after the contravention. SECTION 77 GENERALLY [11,595.10] Overview The Commission may commence proceedings seeking a pecuniary penalty if those proceedings are commenced within six years of the contravention. Section 77(2) is not a condition precedent to the exercise of power but a limitation provision: Australian Competition and Consumer Commission (ACCC) v PT Garuda Indonesia Ltd [2016] FCAFC 42; BC201601861 at [522], [526] per Dowsett and Edelman JJ. A proceeding under s 77(1) refers to individual claims for individual civil penalties and not the overall originating process: Australian Competition and Consumer Commission (ACCC) v PT Garuda Indonesia Ltd [2016] FCAFC 42; BC201601861 at [524] per Dowsett and Edelman JJ. [page 617] In Australian Competition and Consumer Commission v SIP Australia Pty Ltd (2000) ATPR ¶41-761 at 40,968; [2000] FCA 541; BC200002026, Goldberg J exercised his discretion under O 13 r 2(7) of the Federal Court Rules to require the provision of particulars, even if found to be outside the

six-year limitation period in s 77(2). A separate provision applies to the Australian Consumer Law. See ACL s 228. _____________________

[11,595A]

Indemnification of officers

77A (1) A body corporate (the first body), or a body corporate related to the first body, must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer of the first body: (a) a civil liability; (b) legal costs incurred in defending or resisting proceedings in which the person is found to have such a liability. Penalty: 25 penalty units. (2) For the purposes of subsection (1), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings. (3) Definitions In this section: civil liability means a liability to pay a pecuniary penalty under section 76 for a contravention of a provision of Part IV or Part V. [def am Act 44 of 2010 s 3 and Sch 2[3], opn 15 Apr 2010; Act 103 of 2010 s 3 and Sch 5[53], opn 1 Jan 2011]

officer has the same meaning as in the Corporations Act 2001. [subs (3) am Act 83 of 2014 s 3 and Sch 2 item 8, opn 18 July 2014] [s 77A insrt Act 131 of 2006 s 3 and Sch 9[23], opn 1 Jan 2007]

SECTION 77A GENERALLY [11,595A.5] Overview This provision was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. The provision prohibits a body corporate from indemnifying a person from liability to pay a pecuniary penalty under s 76: see Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) [2007] FCA 1617; BC200709371 at [329] per Heerey J. Section 199A(2) of the Corporations Act 2001 prohibits a company or

related body corporate from indemnifying a person against a liability that is owed to someone other than the company or a related body corporate and did not arise out of conduct in good faith. That provision applies to a liability to pay a pecuniary penalty to “someone other than the company”, that is, the Commonwealth under s 76: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3), above, at [331] per Heerey J. An equivalent provision applies to the Australian Consumer Law. See ACL s 229. _____________________

[11,595B] Certain indemnities not authorised and certain documents void 77B (1) Section 77A does not authorise anything that would otherwise be unlawful. (2) Anything that purports to indemnify a person against a liability is void to the extent that it contravenes section 77A. [s 77B insrt Act 131 of 2006 s 3 and Sch 9[23], opn 1 Jan 2007]

[page 618] SECTION 77B GENERALLY [11,595B.5] Overview This provision was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. The provision renders void anything that purports to indemnify a person from liability to pay a pecuniary penalty under s 76. See Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) [2007] FCA 1617; BC200709371 at [329] per Heerey J. An equivalent provision applies to the Australian Consumer Law. See ACL s 230. _____________________

[11,595C] Application of section 77A to a person other than a body corporate 77C If, as a result of the operation of Part 2.4 of the Criminal Code, a person other than a body corporate is: (a) convicted of an offence (the relevant offence) against subsection 77A(1) of this Act; or (b) convicted of an offence (the relevant offence) against section 11.4 of the Criminal Code in relation to an offence referred to in subsection 77A(1) of this Act; the relevant offence is taken to be punishable on conviction by a fine not exceeding 5 penalty units. [s 77C insrt Act 131 of 2006 s 3 and Sch 9[23], opn 1 Jan 2007]

SECTION 77C GENERALLY [11,595C.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. An equivalent provision applies to the Australian Consumer Law. See ACL s 224. _____________________

[11,600] Criminal proceedings not to be brought for contraventions of Part IV 78 Criminal proceedings do not lie against a person by reason only that the person: (a) has contravened a provision of Part IV (other than section 44ZZRF or 44ZZRG); or (b) has attempted to contravene such a provision; (c) has aided, abetted, counselled or procured a person to contravene such a provision; (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision;

(e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) has conspired with others to contravene such a provision. [s 78 am Act 61 of 1999 s 3 and Sch 1; Act 69 of 2000 s 3 and Sch 1; Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; Act 59 of 2009 s 3 and Sch 1[30], opn 24 July 2009; Act 111 of 2009 s 3 and Sch 1[37], opn 17 Nov 2009; Act 103 of 2010 s 3 and Sch 5[54], opn 1 Jan 2011]

SECTION 78 GENERALLY [11,600.5] Overview

See also Australian Consumer Law s 217. _____________________ [page 619]

[11,605] Offences against section 44ZZRF or 44ZZRG (1) A person who: (aa) attempts to contravene; or (a) aids, abets, counsels or procures a person to contravene; or (b) induces, or attempts to induce, a person (whether by threats or promises or otherwise) to contravene; or (c) is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of; or (d) conspires with others to contravene; a cartel offence provision is taken to have contravened that provision and is punishable: (e) in a case where: (i) the provision is a cartel offence provision; and (ii) the person is not a body corporate; by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both; or (f) in any other case — accordingly. 79

[subs (1) subst Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; am Act 59 of 2009 s 3 and Sch 1[31]–

[33], opn 24 July 2009; Act 103 of 2010 s 3 and Sch 5[55], opn 1 Jan 2011]

(1AA) For the purposes of the application of subsection (1) to a case where: (a) the provision is a cartel offence provision; and (b) the person is a body corporate other than a corporation; assume that each reference in paragraph 44ZZRF(3)(c) or 44ZZRG(3)(c) to a corporation were read as a reference to a body corporate. [subs (1AA) insrt Act 59 of 2009 s 3 and Sch 1[34], opn 24 July 2009]

(1AB) Subsections 11.1(2) to (6) (inclusive) of the Criminal Code apply in relation to paragraph (1)(aa) in the same way that they apply in relation to the offence of attempt under subsection 11.1(1) of the Criminal Code. [subs (1AB) insrt Act 59 of 2009 s 3 and Sch 1[34], opn 24 July 2009]

(1A) Subsections 11.2(2) to (5) (inclusive) of the Criminal Code apply in relation to paragraph (1)(a) in the same way that they apply in relation to subsection 11.2(1) of the Criminal Code. [subs (1A) insrt Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001]

(1B) Subsections 11.5(2) to (5) (inclusive) of the Criminal Code apply in relation to paragraph (1)(d) in the same way that they apply in relation to the offence of conspiracy under subsection 11.5(1) of the Criminal Code. [subs (1B) insrt Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001]

(2) [subs (2) rep Act 103 of 2010 s 3 and Sch 5[56], opn 1 Jan 2011] (3) [subs (3) rep Act 103 of 2010 s 3 and Sch 5[56], opn 1 Jan 2011] (4) [subs (4) rep Act 103 of 2010 s 3 and Sch 5[56], opn 1 Jan 2011] (5) Subsections 11.1(1), 11.2(1), 11.2A(1), and 11.4(1) of the Criminal Code do not apply in relation to an offence against a cartel offence provision. [subs (5) subst Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; am Act 59 of 2009 s 3 and Sch 1[35], opn 24 July 2009; Act 4 of 2010 s 3 and Sch 11[23], opn 20 Feb 2010; Act 103 of 2010 s 3 and Sch 5[57], opn 1 Jan 2011]

(6) [subs (6) rep Act 103 of 2010 s 3 and Sch 5[58], opn 1 Jan 2011] [page 620] (7) In this section: cartel offence provision means section 44ZZRF or 44ZZRG.

[subs (7) insrt Act 59 of 2009 s 3 and Sch 1[36], opn 24 July 2009] [heading am Act 59 of 2009 s 3 and Sch 1[31], opn 24 July 2009; Act 103 of 2010 s 3 and Sch 5[55], opn 1 Jan 2011]

SECTION 79 GENERALLY [11,605.1] Overview Section 79 was amended by the Treasury Legislation Amendment (Application of Criminal Code) Act (No 1) 2001. It is one of a series of three treasury amendment Acts intended to give effect to the criminal offence provisions in the Commonwealth’s Criminal Code Act 1995. The provision was amended by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 to apply to accessorial liability in relation to the cartel offence provision under Div 1, Pt IV. See [10,690ZZRA.5]. The criminal offence provisions in relation to a breach of the consumer protection provisions (previously included in s 79) are now contained in Sch 2, Ch 4 of the Act (previously Pt VC of the Act), following the introduction of the Australian Consumer Law. Section 79 provides for ancillary offences in relation to criminal cartels and seeks to remove the application of the equivalent requirements of the Criminal Code, which is set out in a Schedule to the Criminal Code Act 1995 (Cth). The provision, however, mistakenly omits to remove the parallel application of the offence of conspiracy found in s 11.5 of the Criminal Code. This Part removes this overlap between the CC Act and the Criminal Code. The Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 would have the effect of correcting the defect by amending s 79(5). On 25 March 2015, the Selection of Bills Committee referred the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 to the Economics Legislation Committee for inquiry and report. In its May 2015 report, the Committee recommended that the Bill be passed. [11,605.5] Constitutional validity of s 79 Section 79 does no more than penalise those persons who according to the terms of Pt V, contravene its provisions. It is therefore supported by the same head of constitutional power which supports Pt V and is thus a valid exercise of the Commonwealth

Parliament: Re Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235; 13 ALR 273; (1977) ATPR ¶40-017 at 17,296; Trade Practices Commission v Sterling (1980) 28 ALR 497; (1980) ATPR ¶40-145 at 42,116; Australian Competition and Consumer Commission v Nationwide News Pty Ltd (1996) ATPR ¶41-519; (appeal) Nationwide News Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 215; 142 ALR 212. [11,605.7] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table [10,001]. [11,605.10] Approach to assessing penalty The imposition of penalties for federal offences is subject to s 16A of the Crimes Act 1914. Section 16A(1) provides that in determining the sentence to be passed or the order to be made, the court must impose a sentence or an order that is of a severity appropriate in all the circumstances. In imposing a penalty, in addition to other relevant matters, the court must consider the statutory factors listed in s 16A(2). This is discussed at [11,605.12]. See also [11,605.14]. [11,605.12] Statutory factors to be considered in imposing a penalty Section 16A of the Crimes Act 1914 requires the court to consider the following factors in imposing a penalty: [page 621] •

the nature and circumstances of the offence — the amount of the penalty to be imposed will depend on the precise circumstances of the offence — the amount of the penalty to be imposed will depend on the precise circumstances of each case and caution should be exercised in applying statements made in earlier judgment: Thompson v JT Fossey Pty Ltd (No 2) (1978) 20 ALR 503; (1978) ATPR ¶40-080 at 17,781; Australian Competition and Consumer Commission v Chubb Security Australia Pty Ltd

• •

• • •

• •

•

• • • •

(2004) ATPR ¶42-041; [2004] FCA 1750; BC200409159 at [70] per Bennett J; other offences (if any) that are required or permitted to be taken into account; if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character — that course of conduct; the personal circumstances of any victim of the offence; any injury, loss or damage resulting from the offence; the degree to which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence or in any other manner; if the person has pleaded guilty to the charge in respect of the offence — that fact; the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences — see Trade Practices Commission v Annand & Thompson Pty Ltd (1987) ATPR ¶40-772 at 48,394; Trade Practices Commission v General Corp Japan (Aust) Pty Ltd (1989) ATPR ¶40-992 at 49,976–8; Australian Competition and Consumer Commission v Hartwich Pty Ltd [2002] FCA 273; BC200201044 at [26] per Spender J; the deterrent effect that any sentence or order under consideration may have on the person — the fine should constitute a punishment proportionate to the deliberation of the defendant and should be sufficiently high to have a deterrent quality: Thompson v Riley McKay Pty Ltd (No 2) (1980) 29 ALR 267; 42 FLR 279; (1980) ATPR ¶40-152 at 42,420; Australian Competition and Consumer Commission v Nissan Motor Co (Aust) Pty Ltd (1998) ATPR ¶41-660; the need to ensure that the person is adequately punished for the offence; the character, antecedents, cultural background, age, means and physical or mental condition of the person; the prospect of rehabilitation of the person; the probable effect that any sentence or order under 1consideration would have on any of the person’s family or

dependants — see Trade Practices Commission v 1Calderton Corp Pty Ltd (1994) ATPR ¶41-306. [11,605.14] Other factors to be considered in imposing a penalty Prior to the application of s 16A of the Crimes Act 1914, the courts identified a number of relevant factors to be considered in assessing the penalty for contraventions of the Act. Some of these factors are expressly included in s 16A(2). Others, though not expressly listed may still be considered by the courts as s 16A(2) is not intended as an exhaustive list. These additional factors include: Limited harm to the public Where a respondent’s conduct is motivated by a desire to achieve a reasonable level of profitability without causing harm to the public, despite the fact that the conduct is in breach of the Act, the courts may take a more sympathetic view on the amount of the penalty: Trade Practices Commission v Cook-On Gas Products Pty Ltd (1985) ATPR ¶40-500 at 46.511 per Fisher J; Trade Practices Commission v Culley (1983) ATPR ¶40-399 at 44.670 per Morling J. Whether, since the occurrence, controls over employees, particularly sales personnel, have been increased or improved to prevent a repetition of the conduct See Trade Practices Commission v Pacific Dunlop Ltd (1994) ATPR ¶41-307 at 42.119; Miller v Cunninghams Warehouse Sales Pty Ltd (1994) ATPR ¶41-321; Australian Competition and Consumer Commission v Nissan Motor Co (Aust) Pty Ltd (1998) ATPR ¶41-660. [page 622] The size of the corporation’s activity in the relevant market See Australian Competition and Consumer Commission v Allans Music Group Ltd [2002] FCA 1552; BC200208179 per Tamberlin J. Any submission as to injunctions See Trade Practices Commission v Commodore Business Machines Pty Ltd (1989) ATPR ¶40-976 per Einfeld J. applying Trade Practices Commission v Australian Auto Glass Pty Ltd (1988) ATPR ¶40-881 at 49,553.

Adverse publicity Adverse publicity caused to the defendant by the commencement of a prosecution, will in most cases not be given any consideration in the assessment of the appropriate penalty unless the adverse publicity is initiated by the prosecutor: Thompson v JT Fossey Pty Ltd (No 2) (1978) 20 ALR 503; (1978) ATPR ¶40-080 at 17.781-2 per Franki J; Trade Practices Commission v Cue Design Pty Ltd (1996) 85 A Crim R 500; (1996) ATPR ¶41-475; Australian Competition and Consumer Commission v Nationwide News Pty Ltd (1996) ATPR ¶41-519 at 42-507. In the Cue Design case, above, O’Loughlin J said that the use of the word “adverse” means something more than fair reporting of the commencement of a prosecution. Whether damage was caused by the conduct to the public or to retailer See Australian Competition and Consumer Commission v Allans Music Group Ltd [2002] FCA 1552; BC200208179 per Tamberlin J. The objectives of the Act See Trade Practices Commission v Advance Bank Australia Ltd (1993) ATPR ¶41-229 at 41,165; Australian Competion and Consumer Commission v Dimmeys Stores Pty Ltd (1999) ATPR ¶41-716; [1999] FCA 1175; BC9905423; Australian Competion and Consumer Commission v Dimmeys Stores Pty Ltd (2001) ATPR ¶41-811; [2001] FCA 299; BC200101193. The extent of the dissemination of any representation See O’Neill v El Camino Autos Pty Ltd (1980) ATPR ¶40-158; Wilde v Menville Pty Ltd (1981) 50 FLR 380; (1981) ATPR ¶40-195 at 42,660. The nature of the representations when compared with the type of person at whom it is aimed Henderson v Pioneer Homes Pty Ltd (1980) ATPR ¶40-168 at 42,326. The scale of the advertising, the absence of corrective advertising and the pitching of the advertisements at the lower end of the market See Trade Practices Commission v Advance bank Australia Ltd (1993) ATPR ¶41-229. The fact that the company is in liquidation, including that it has already suffered from the type of conduct that is the subject of the proceedings

See Trade Practices Commission v Clarke Eaton & Co Pty Ltd (1993) ATPR ¶41-233 at 41,200. [11,605.20] Imprisonment Section 79 does not permit the court to order imprisonment as the primary penalty for an offence. However, imprisonment may be ordered to enforce a fine already imposed: Wilde v Menville Pty Ltd (1981) 50 FLR 380; (1981) ATPR ¶40-195; Ducret v Colourshot Pty Ltd (1981) 35 ALR 503; (1981) ATPR ¶40-196; Hollis v Clark (1981) 40 ALR 129; (1981) ATPR ¶40-245; Reardon v Nolan (1983) 51 ALR 715; (1983) ATPR ¶40-405. [11,605.23] Discharge without conviction Where there has been a contravention of a law of the Commonwealth, s 19B of the Crimes Act 1914 permits the court to discharge the offender without proceeding to a conviction, having regard to relevant matters. Section 19B is capable of applying to charges brought under the consumer protection provisions: Trade Practices Commission v Sun Alliance Australia Ltd (1994) ATPR ¶41-286 at 41.850. However, in the case of strict liability offences it would be rare for the section to be [page 623] extended to a person responsible for the preparation of a misleading advertisement where it was part of the business of that person to prepare advertisements of goods and services: Australian Competition and Consumer Commission v Nissan Motor Co (Aust) Pty Ltd (1998) ATPR ¶41-660. In Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd (1999) ATPR ¶41- 716; [1999] FCA 1175; BC9905423, a case involving the breach of a consumer product safety standard. Weinberg J refused to exercise his discretion under s 19B of the Crimes Act. [11,605.24] Contempt Sentencing for contempt is punitive and designed to protect the effective administration of justice: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107; 66 ALR 577; (1986) ATPR ¶40-175; BC8601455; Australian Competition and Consumer Commission v Globex Systems Pty Ltd (2005) ATPR ¶42-069;

[2005] FCA 550; BC200503049 at [54] per Lander J. See Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd [2007] FCA 429; BC200701934 at [87] per Finn J: Australian Competition and Consumer Commission v Hercules Iron Pty Ltd [2008] FCA 1182; BC200807121 at [3] per Gordon J. The court has a wide power to punish for contempt including fines and a sentence of imprisonment and has a wide power to suspend any sentence: Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404 at 411; Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd (2002) 121 FCR 24; [2002] FCA 949; BC200204218 at [138] per Nicholson J; Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2003) 127 FCR 542; (2003) ATPR ¶41-919; [2003] FCA 159; BC200300755 per Spender J: Australian Competition and Consumer Commission v Contact Plus Group Pty Ltd (in liq) (No 2) (2006) ATPR ¶42-116; [2006] FCA 695; BC200604046 at [55] per Young J; Bauer v Power Pacific International Media Pty Ltd [2007] FCA 349; BC20701651 at [6] per Collier J. See Energizer Australia Pty Ltd v Remington Products Australia Pty Ltd (No 2) (2008) ATPR ¶42-221; [2008] FCA 171; BC200801491 per Moore J; Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74; BC201100491 at [19] per Finkelstein J; Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809; BC201205636 per Jagot J. In Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494; 225 ALR 541; [2006] FCA 83; BC200600434 at [25] Merkel J, set out the following matters to be considered in determining the appropriate penalty: (a) the contemnor’s personal circumstances, including financial circumstances; (b) the nature and circumstances of the contempt; (c) the effect of the contempt on the administration of justice; (d) the contemnor’s culpability; (e) the need to deter the contemnor and others from repeating the contempt; (f) the absence or presence of a prior conviction for contempt. Other criminal history is irrelevant; (g) whether genuine contrition has been shown and a full and ample apology proffered.

The court should rarely, if ever, make any order suspending the whole or part of a term of imprisonment for an indefinite period: Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; BC200408132 at [56] per French. Emmett And Dowsett JJ. In Australian Competition and Consumer Commission v Goldstar Corp Pty Ltd (FCA, Drummond J. QG 60/98, 6 November 1998, unreported, BC9806061), the court restrained the first respondent resulting from a breach of its undertaking to the court. It also issued a warrant for the second respondent’s committal to prison for 2 months, but that the warrant lie in the registry, conditional on the second respondent not breaching the Act for 2 years. Both the first respondent and second respondent failed to comply. The first respondent was fined $30,000 and the second respondent committed to prison for a period of 6 months: Australian Competition and Consumer Commission v Goldstar Corp Pty Ltd [1999] FCA 585; BC9902357; (appeal) Hudson v Australian Competition and Consumer Commission [1999] FCA 891; BC9903704. [page 624] See also Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1999] FCA 937; BC9903760; Australian Competition and Consumer Commission v Hughes (2001) ATPR ¶41-807; [2001] FCA 38; BC200100089 (2-week suspended sentence); Australian Competition and Consumer Commission v Hughes [2004] FCA 319; BC200402226 per Conti J (2 months’ imprisonment and 4 months’ suspended sentence); Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; BC200408132 per French, Emmett and Dowsett JJ; Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576; (2002) ATPR ¶41-913; [2002] FCA 1487; BC200207237 (1 month suspended sentence); Australian Competition and Consumer Commission v Australian Communications Network Pty Ltd (2005) 143 FCR 23; (2005) ATPR ¶42-067; [2005] FCA 276; BC200501352 per Selway J; Australian Competition and Consumer Commission v Contact Plus Group Pty Ltd (in liq) (No 2) (2006) ATPR ¶42116; [2006] FCA 695; BC200604046 per Young J (fine); Bauer v Power Pacific International Media Pty Ltd [2007] FCA 349; BC200701651 at [6]

per Collier J (6 months’ suspended sentence); Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd [2007] FCA 429; BC200701934 at [87] per Finn J (fine); Textile Clothing and Footwear Union of Australia v Morrison Country Clothing Australia Pty Ltd (No 2) [2008] FCA 1965; BC200811410 at [7] per Tracey J; Textile Clothing and Footwear Union of Australia v Morrison Country Clothing Australia Pty Ltd (No 2) [2008] FCA 1965; BC200811410 per Tracey J ($10,000 fine); Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16; BC200900094 per Finn J; Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (No 2) [2009] FCA 650; BC200905309 at [48] per Tracey J (fine); Deckers Outdoor Corp Pty Ltd v Farley (No 6) [2010] FCA 391; BC201002460 per Tracey J; Jones v Australian Competition and Consumer Commission [2010] FCAFC 136; BC201008694 per Keane CJ, Dowsett and Reeves JJ; Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74; BC201100491 per Finkelstein J (fine); see Mindshare Communications Ltd v Eckett [2010] NSWSC 1511; BC201010018 per Tamberlin J; Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809; BC201205636 per Jagot J ($10,000 fine); Foster v ACCC [2014] FCA 240; BC201401608 per Dowsett J; Bob Jane Corp Pty Ltd v ACN 149 801 141 Pty Ltd [2015] FCA 743; BC201506786 per Besanko J; Energizer Australia Pty Ltd v Procter & Gamble Australia Pty Ltd [2016] FCA 347; BC201602455 per Nicholas J ($40,000 fine). The court may order the early release of a person imprisoned for contempt: Australian Competition and Consumer Commission (ACCC) v Chaste Corp Pty Ltd (No 7) [2015] FCA 1103; BC201510079 per Logan J. In Chaste, above, Logan J undertook an extensive and very useful survey of the cases in Australia and the United Kingdom that lead to that proposition. [11,605.25] Equivalent state legislation For the equivalent provisions in the relevant Acts of the states and territories see the comparative table at [10,001]. _____________________

[11,620] fines

Enforcement and recovery of certain

79A (1) If: (a) a fine has been imposed on a person for: (i) an offence against section 44ZZRF, 44ZZRG, 154Q or 155; or (ii) an offence against section 149.1 of the Criminal Code that relates to Part XID; and (b) the person defaults in payment of the fine; a Court may: (c) exercise any power that the Court has apart from this section with respect to the enforcement and recovery of fines imposed by the Court; or [page 625] (d) make an order, on the application of the Minister or the Commission, declaring that the fine is to have effect, and may be enforced, as if it were a judgment debt under a judgment of the Court. [subs (1) subst Act 103 of 2010 s 3 and Sch 5[59], opn 1 Jan 2011]

(2) Where a person in relation to whom an order is made under subsection (1) in respect of a fine gives security for the payment of the fine, the Court shall cancel the order in respect of the fine. (3) Where the Court makes an order in relation to a person in respect of a fine, the Court may, at any time before the order is executed in respect of the fine, allow the person a specified time in which to pay the fine or allow the person to pay the fine by specified instalments, and, in that case: (a) the order shall not be executed unless the person fails to pay the fine within that time or fails to pay an instalment at or before the time when it becomes payable, as the case may be; and (b) if the person pays the fine within that time or pays all the instalments, as the case may be, the order shall be deemed to have been discharged in respect of the fine. (4) Subject to subsection (7), an order under subsection (1) in respect of a fine ceases to have effect:

(a) on payment of the fine; or (b) if the fine is not paid — on full compliance with the order. (5) The term of a sentence of imprisonment imposed by an order under a law of a State or Territory applied by section 15A of the Crimes Act 1914 (including an order described in subsection 15A(1AA) of that Act) in respect of a fine shall be calculated at the rate of one day’s imprisonment for each $25 of the amount of the fine that is from time to time unpaid. [subs (5) am Act 59 of 2009 s 3 and Sch 2[1], opn 24 July 2009]

(6) Subject to subsection (7), where a person is required to serve periods of imprisonment by virtue of an order or orders under subsection (1) in respect of 2 or more fines, those periods of imprisonment shall be served consecutively. (7) Subject to subsection (8), where: (a) a person would, but for this subsection, be required by virtue of an order or orders under subsection (1) in respect of 3 or more fines to serve periods of imprisonment in respect of those fines exceeding in the aggregate 3 years; and (b) those fines were imposed (whether or not in the same proceedings) for offences constituted by contraventions that occurred within a period of 2 years, being contraventions that appear to the Court to have been of the same nature or a substantially similar nature; the Court shall, by order, declare that the order or orders shall cease to have effect in respect of those fines after the person has served an aggregate of 3 years’ imprisonment in respect of those fines. (8) Where subsection (7) would, but for this subsection, apply to a person with respect to offences committed by the person within 2 or more overlapping periods of 2 years, the Court shall make an order under that subsection with respect to one only of those periods, being whichever period would give the person the maximum benefit from the application of that subsection. [page 626] (9) For the purposes of subsection (8), the Court may vary or revoke an

order made under subsection (7). (10) [subs (10) rep Act 59 of 2009 s 3 and Sch 2[2], opn 24 July 2009] (11) This section applies only in relation to fines imposed for offences committed after the commencement of this section. [s 79A insrt Act 17 of 1986 s 48]

SECTION 79A GENERALLY [11,620.5] Overview Section 79A contemplates that the sanction of imprisonment will be available to enforce payment only of a fine, not for the payment of other moneys which may incidentally be awarded to be paid off by the defendants, such as costs or damages or compensation awarded pursuant to s 87(1A) of the Act: Trade Practices Commission v Farrow (1990) 95 ALR 53; (1990) ATPR ¶41-018 at 51,337 per von Doussa J; Australian Competition and Consumer Commission v Hartwich Pty Ltd [2002] FCA 273; BC200201044 at [40] per Spender J. [11,620.10] Payment by instalments Section 79A(3) allows the court to make an order for payment of a fine by instalments. In Australian Competition and Consumer Commission v GIA Pty Ltd (2002) ATPR ¶41-902; [2002] FCA 1298; BC200206281 at [18], Heerey J ordered the payment of a penalty by instalments of $100 per month. [11,620.15] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. _____________________

[11,623] Preference must be given to compensation for victims 79B If the Court considers that: (a) it is appropriate to order a person (the defendant): (i) to pay a pecuniary penalty under section 76; or (ii) to impose a fine under section 44ZZRF or 44ZZRG;

in respect of a contravention, or an involvement in a contravention, of this Act; and (b) it is appropriate to order the defendant to pay compensation to a person who has suffered loss or damage in respect of the contravention or the involvement; and (c) the defendant does not have sufficient financial resources to pay both the pecuniary penalty or fine and the compensation; the Court must give preference to making an order for compensation. [s 79B insrt Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001; am Act 63 of 2001 s 3 and Sch 2, opn 15 Dec 2001; Act 59 of 2009 s 3 and Sch 1[38], opn 24 July 2009; Act 44 of 2010 s 3 and Sch 2[4], opn 15 Apr 2010; Act 103 of 2010 s 3 and Sch 5[60] and [61], opn 1 Jan 2011]

SECTION 79B GENERALLY [11,623.5] Overview The section was inserted by the Trade Practices Amendment Act (No 1) 2001 and follows the recommendations of the Australian Law Reform Commission in its report Compliance with the Trade Practices Act 1974, Report No 68, 1994. [page 627] Under s 79B if the court considers it appropriate to order the defendant to pay a pecuniary penalty and to pay compensation to a person who has suffered loss or damage, but the defendant does not have the financial resources to pay both, the court must give preference to an order for compensation. Alternatively the court may wish to consider imposing a non-punitive order under s 86C or an adverse publicity order under s 86D where the financial resources of the defendant would preclude the recovery of a fine. The provision does not prescribe the way a court should structure its orders so as to ensure preference is given to compensation orders: Australian Competition and Consumer Commission (ACCC) v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62; BC201600510 per Mortimer J. A separate provision applies to the Australian Consumer Law. See ACL s 227.

[11,623.7] Compensation An order for a refund is an order for ‘compensation’ under the provision: Australian Competition and Consumer Commission (ACCC) v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62; BC201600510 at [255] per Mortimer J. [11,623.10] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. _____________________

[11,625]

Injunctions

*80 (1) Subject to subsections (1A), (1AAA) and (1B), where, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute: (a) a contravention of any of the following provisions: (i) a provision of Part IV; (ii) a provision of Division 2 or 5 of Part IVB; (iia) section 55B; (iii) section 60C; (iv) section 60K; or (b) attempting to contravene such a provision; or (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) conspiring with others to contravene such a provision; the Court may grant an injunction in such terms as the Court determines to be appropriate. Note: Section 87AA provides that, if boycott conduct is involved in proceedings, the Court must have regard to certain matters in exercising its powers under this Part. (Boycott conduct is defined in subsection 87AA(2).)

[subs (1) subst Act 39 of 1983 s 3; am Act 17 of 1986 s 49; Act 222 of 1992 s 19 and Sch 1; Act 88 of 1995 s 62; Act 60 of 1996 s 3 and Sch 17; Act 36 of 1998 Sch 1; Act 61 of 1999 s 3 and Sch 1; Act 69 of 2000 s 3 and Sch 1; Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; Act 111 of 2009 s 3 and Sch 1[38], opn 17 Nov 2009; Act 44 of 2010 s 3 and Sch 2[41] and [42], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[62], opn 1 Jan 2011; Act 83 of 2014 s 3 and Sch 2 item 9, opn 18 July 2014; Act 9 of 2016 s 3 and Sch 1 item 8, opn 25 Feb 2016]

*Editor’s note: Section 7(3) of the Statute Law (Miscellaneous Provisions) Act 1983 No 39 provides as follows: (3) The amendments of section 80 of the Trade Practices Act 1974 made by this Act extend to proceedings pending immediately before the commencement of those amendments.

[page 628] (1AA) Where an application for an injunction under subsection (1) has been made, whether before or after the commencement of this subsection, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1). [subs (1AA) insrt Act 17 of 1986 s 49]

(1A) A person other than the Commission is not entitled to make an application under subsection (1) for an injunction by reason that a person has contravened or attempted to contravene or is proposing to contravene, or has been or is proposing to be involved in a contravention of, section 50, 60C or 60K. [subs (1A) insrt Act 81 of 1977 s 48; am Act 17 of 1986 s 49; Act 88 of 1995 s 62; Act 61 of 1999 Act 61 of 1999; Act 69 of 2000 s 3 and Sch 1; Act 111 of 2009 s 3 and Sch 1[39], opn 17 Nov 2009; Act 83 of 2014 s 3 and Sch 2 item 10, opn 18 July 2014]

(1AAA) Subject to subsection (1B), a person other than the Minister or the Commission may not apply for an injunction on the ground of: (a) a person’s actual, attempted or proposed contravention of section 50A; or (b) a person’s actual or proposed involvement in a contravention of section 50A. [subs (1AAA) insrt Act 88 of 1995 s 62]

(1B) Where the Tribunal has, on the application of a person (in this subsection referred to as the applicant) other than the Minister or the Commission, made a declaration under subsection 50A(1) in relation to the acquisition by a person of a controlling interest in a corporation, the applicant is entitled to make an application under subsection (1) for an injunction by reason that the corporation has contravened or attempted to contravene or is proposing to contravene subsection 50A(6) in relation to that declaration. [subs (1B) insrt Act 17 of 1986 s 49]

(1C) [subs (1C) rep Act 103 of 2010 s 3 and Sch 5[63], opn 1 Jan 2011] (2) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1). (3) The Court may rescind or vary an injunction granted under subsection (1) or (2). (4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised: (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; (b) whether or not the person has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind. [subs (4) subst Act 39 of 1983 s 3 and Sch 1]

(5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised: (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

[subs (5) subst Act 39 of 1983 s 3 and Sch 1]

[page 629] (6) Where the Minister or the Commission makes an application to the Court for the grant of an injunction under this section, the Court shall not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages. [subs (6) insrt Act 81 of 1977 s 48]

(6A) Subsection (6) does not apply to an application by the Minister for an injunction relating to Part IV. [subs (6A) insrt Act 88 of 1995 s 62]

(7) Where: (a) in a case to which subsection (6) does not apply the Court would, but for this subsection, require a person to give an undertaking as to damages or costs; and (b) the Minister gives the undertaking; the Court shall accept the undertaking by the Minister and shall not require a further undertaking from any other person. [subs (7) insrt Act 81 of 1977 s 48]

(8) Subsection (7) does not apply in relation to an application for an injunction relating to Part IV. [subs (8) insrt Act 88 of 1995 s 62]

(9) If the Director of Public Prosecutions makes an application to the Court for the grant of an injunction under this section in relation to: (a) a person’s contravention, or proposed contravention, of section 44ZZRF or 44ZZRG; or (b) a person’s involvement, or proposed involvement, in a contravention of section 44ZZRF or 44ZZRG; the Court must not require the Director of Public Prosecutions or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages. [subs (9) insrt Act 59 of 2009 s 3 and Sch 1[39], opn 24 July 2009]

SECTION 80 GENERALLY [11,625.5] Overview Section 80 gives the court the power to grant an injunction, among other things, where the court is satisfied that a person has engaged in or is proposing to engage in conduct that constitutes or would constitute a contravention of a relevant provision. A separate provision applies to the Australian Consumer Law. See ACL s 232. [11,625.7] Relationship to injunctive relief under common law The source of the court’s power to grant an injunction is derived directly from the provisions of s 80 rather than as part of any implied or accrued jurisdiction of the court. It is for this reason that the court’s injunctive power is not confined by principles observed in courts of equity in its traditional jurisdiction: Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 97 ALR 315; (1988) ATPR ¶40-911 at 49,787; Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) ATPR ¶40-782 at 48,536–7; (appeal) Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83; (1988) ATPR ¶40-850; Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491; 59 IPR 435; [2003] FCA 850; BC200304503 at [212] per Selway J; Australian Competition and Consumer Commission v Wilson Parking 1992 Pty Ltd [2009] FCA 1580 at [41]; BC200911576 Barker J; see Instyle Contract Textiles Pty Ltd v Good Environment Choice Services Pty Ltd (No 2) [2010] FCA 38; BC201000503 at [65] per Yates J. In ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; 110 ALR 47; (1992) ATPR ¶41-185 at 40,532 Gummow J identified some useful points of difference between the statutory right to injunction under s 80 and the traditional grant of an injunction: [page 630] • •

the parties who are entitled to seek an injunction under s 80 are broadened by the inclusion of the words “any person”; s 80 will extend not only to contraventions and attempted contraventions but also to those who have aided, abetted,

• •

•

•

counselled or procured a contravention, induced or attempted to induce a person to contravene a provision, have been in any way directly or indirectly knowingly concerned in or a party to the contravention, or have conspired with others to contravene a provision; s 80(3) will allow the court to rescind or vary both an interim and a final injunction; s 79(4) indicates that an injunction may be granted for contraventions of the consumer protection provisions in Pt V. This is a departure from the court’s traditional attitude to the use of injunctions only in the aid of the criminal law; s 80(6) and (7) represent changes to the usual practice of giving an undertaking as to damages as the price for the grant of an injunction; and s 80(4) and (5) will allow the court to grant an injunction whether it appears that the person will continue to engage in the conduct. At general law if no such apprehension was present, then this would ordinarily be a good answer to a claim for injunctive relief.

[11,625.8] Limitations on exercise of injunctive power The court’s power to grant an injunction is subject to three limitations. First, the power is confined by the scope and purpose of the Act and the section in particular. Second, there must be a sufficient connection or relationship between the contravention and the injunction granted. Third, a constitutional limitation (deriving from Ch III of the Constitution) requires that the injunction granted be related to the case or controversy the subject of the proceedings: Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197; 148 ALR 339; (1997) ATPR ¶41-580; Honest Remark Pty Ltd v Allstate Explorations NL (2006) 58 ACSR 234; [2006] NSWSC 735; BC200605562 at [83] per Brereton J; Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; BC200610688 at [226] per Young J. [11,625.10] Constitutional validity Section 80(1) is a valid exercise of the Commonwealth’s constitutional power: Sterling v Trade Practices Commission (1981) ATPR ¶40-212 at 42,918 per Franki J.

Section 80 is not invalid because it confers standing on a person who has neither a direct nor special interest in the subject matter of the proceedings: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 169 ALR 616; (2000) ATPR ¶41-757; [2000] HCA 11; BC200000766. See also [11,625.15]. [11,625.13] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the see the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001] and Cassidy v NRMA Health Pty Ltd (2002) ATPR ¶41-891; [2002] FCA 1228; BC200205849 per Jacobson J; Medibank Private Ltd v Cassidy (2002) ATPR ¶41-895; [2002] FCAFC 290; BC200205361 at [26]–[27] per Sundberg, Emmett and Conti JJ; Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) ATPR ¶41-980; [2004] FCAFC 34; BC200400513 per Moore, Mansfield and Stone JJ; Australian Competition and Consumer Commission v Commonwealth Bank of Australia (2004) ATPR ¶41-975; [2003] FCA 1397; BC200307559 per Conti J. SECTION 80(1) [11,625.15] “any other person” Section 80(1) confers on the court the power to grant an injunction on the application of, inter alia, “any other person”. The words “any other person” must be given their ordinary meaning without imposing any qualification. The expression is therefore capable of applying to any persons whether they be competitors, consumers or interested parties: Phelps v Western Mining Corp Ltd (1978) 20 ALR 183; (1978) ATPR ¶40-077; R v Judges of the [page 631] Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113; 23 ALR 69; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 169 ALR 616; (2000) ATPR ¶41-757 at 40,383; [2000] HCA 11; BC200000766 per Gaudron J; Tobacco Control Coalition Inc v Philip Morris (Aust) Ltd (2000) ATPR (Digest) 146-205; [2000] FCA 1004; BC200004174.

For example, in Phelps v Western Mining Corp Ltd, above, the applicant who expressed concern about the mining of uranium but who was not otherwise concerned in any dispute, sought injunctions against the respondent. Neither the concept of “judicial power” or the constitutional meaning of a “matter” in s 76 of the Constitution dictates that a person who institutes proceedings must have a direct or special interest in the subject matter of those proceedings: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd, above, ATPR at 40,838 per Gaudron J. It is unnecessary for there to be a “matter” that there be imposed upon the respondent any obligation or “duty” not to contravene any of those parts of the Act stipulated in ss 80 and 163A by injuring or threatening to injure the personal, economic or other individual interests or “rights” of that person who actually sues for contravention of the Act: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd, above, ATPR at 40,852 per Gummow J. Under s 80 a private person has statutory authority to bring proceedings for injunctive relief and this would appear to absolve him or her from the necessity of obtaining the consent of the Attorney-General: Commercial Bank of Australia Ltd v Insurance Brokers Assn of Australia (1977) 16 ALR 161; (1977) ATPR ¶40-053 at 17,551. [11,625.20] Number of applicants The width of the words “any other person” means that the class and number of persons who can apply to the court for an injunction are unlimited. That is, there may be a number of applicants each having standing to bring applications whether concurrently or consecutively with other applicants: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1988) 84 ALR 337; (1988) ATPR ¶40-916 at 49,848. However, in Tobacco Institute the court said that there may be cases where the stigma of abuse of process may be attached to proceedings commenced by a third party seeking injunctive relief in respect of the conduct of a respondent where the respondent and the Commission have reached some agreement on the conduct of the proceedings: ATPR at 49,848. In Bray v F Hoffman-La Roche Ltd (2003) ATPR ¶41-906; [2002] FCA 1405; BC200206800 at [44], Merkel J said that injunctive relief may be granted on behalf of members in a representative proceeding.

[11,625.22] Past and future conduct The use in s 80(1) of the disjunctive suggests it is intended that past engagement and proposing to engage in the required conduct are intended to be alternatives. This construction is confirmed by s 80(4)(a) which provides that the power of the court to grant an injunction restraining a person from engaging in conduct may be exercised whether or not the person intends to engage again, or to continue to engage, in conduct of that kind: Australian Competition and Consumer Commission v Francis (2004) ATPR (Digest) ¶46-250; [2004] FCA 487; BC200402108 at [121] per Gray J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; BC200501242 at [73] per Merkel J; Australian Competition and Consumer Commission v Cambur Industries Pty Ltd [2006] FCA 1027; BC200606158 at [99] per Besanko J; Commissioner for Fair Trading, Department of Commerce v Hunter [2008] NSWSC 277; BC200802120 at [29] per McCallum J; Australian Competition and Consumer Commission v Vanderfield Pty Ld [2009] FCA 1535; BC200911936 at [40] per Dowsett J. [11,625.23] Aiding, abetting, counselling or procuring An injunction may be granted where the court is satisfied that a person has engaged or is proposing to engage in conduct that constitutes or would constitute aiding, abetting, counselling or procuring a person to contravene a provision [page 632] referred to in s 80(1)(a), or if the person is in any way directly or indirectly knowingly concerned in or a party to the contravention. These provisions are in similar terms to s 75B. Section 75B requires knowledge of the essential matters that go to make up the contravention. See [11,585]. Therefore to impose an injunction on respondents that have aided, abetted, counselled or procured a contravention or who have been knowingly concerned in or a party to a contravention of ss 52 (now ACL s 18), 53(c) (now ACL s 29) and 55 (now ACL s 33) requires that it be established that the respondents had knowledge of the falsity of representations made by them: Australian Competition and Consumer Commission v Francis (2004) ATPR (Digest) ¶46-250; [2004] FCA 487; BC200402108 at [85] per Gray J.

[11,625.25] Cessation of prosecution It has been held that the words “any other person” give an applicant an independent right of action and it is for this reason that the right cannot be lost merely because the Trade Practices Commission agrees not to sue: Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1988) 81 ALR 701; (1988) ATPR ¶40-874 at 49,455 per Gray J. SECTION 80(1A) [11,625.28] Overview The effect of s 80(1A) is that an application for an injunction for a contravention of s 50 can only be brought by the minister or the commission. The rationale for this appears to be that parliament has accepted that to provide otherwise would allow parties to seek an injunction for purely commercial motives unrelated to the maintenance of competition: QIW Retailers Ltd v Davids Holdings Pty Ltd (No 1) (1992) 8 ACSR 245; (1992) ATPR ¶41-178 at 40,431; Ironbridge Capital Pty Ltd v Australian Competition and Consumer Commission [2005] FCA 1315; BC200506943 at [83] per Emmett J. SECTION 80(2) — INTERIM INJUNCTIONS [11,625.30] Exercise of discretion Section 80(2) confers on the court the power to grant an interim injunction where it considers it desirable to do so. The injunctive power which derives from this section of the Act is in wide terms and is not confined to principles observed in courts of equity in their traditional jurisdiction: Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 97 ALR 315; (1988) ATPR ¶40-911 at 49,787; ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; 110 ALR 47; (1992) ATPR ¶41-185 at 40,524; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; (2002) ATPR ¶41-862; [2002] FCA 192; BC200200656 at [47] per Hill J; Australian Competition and Consumer Commission v FFE Building Services Ltd (2003) ATPR ¶41-926; [2003] FCA 330; BC200301893 at [16] per Mansfield J; Commissioner of Fair Trading v Kent Publishing Pty Ltd [2007] NSWSC 590; BC200704403 at [17] per Price J; Socasen Pty Ltd v Caltex Australia Petroleum Pty Ltd (2007) ATPR ¶42-170; [2007] FCA 997; BC200705076 at [11] per Branson

J; Australian Competition and Consumer Commission v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393; BC201410907 at [57] per Wigney J. However, in Gollel Holdings Pty Ltd v Kenneth Maurer Funerals Pty Ltd (1987) ATPR ¶40-790, Einfeld J said that although in that case it was not necessary to decide expressly whether equitable principles were relevant in relation to the application of an injunction under s 80(2), he nevertheless concluded that even if those equitable principles are not directly applicable a similar question would nevertheless arise in the discretion which the court has to exercise in determining whether or not to grant an injunction sought. Although s 80 confers a broad discretion on the court, the discretion should be exercised judicially and not arbitrarily: Commercial Bank of Australia Ltd v Insurance Brokers Assn of Australia (1977) 16 ALR 161; (1977) ATPR ¶40-053 at 17,551; Australian Competition and Consumer Commission v ZTek Computer Pty Ltd (1997) 78 FCR 197; 148 ALR 339; (1997) ATPR ¶41580 at 44,033–4; South Sydney District Rugby League Football Club Ltd v News Ltd [page 633] (2001) 111 FCR 456; 181 ALR 188; [2001] FCA 862; BC200103647 at [299] per Merkel J; Foster v Australian Competition and Consumer Commission (2006) 149 FCR 135; 226 ALR 27; [2006] FCAFC 21; BC200601173 at [35] per Ryan, Finn and Allsop JJ. See Australian Competition and Consumer Commission v Liquorland (Aust) Pty Ltd (2007) ATPR ¶42-186; [2007] FCA 1339; BC200707808 at [18]–[19] per Allsop J. In Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 45 ALR 391; 65 FLR 172; (1982) ATPR ¶40-299 at 43,711, Northrop J provided the following guidance in determining whether an interlocutory injunction should be granted: In considering whether an interlocutory injunction should be granted under s 80(2) of the Act, the court should have particular regard to the protection of members of the public. At the same time, if the person bringing the proceedings is likely to suffer particular injury if the conduct complained of is continued, the court in addition should have particular regard to the injury likely to be suffered by the person bringing the proceedings.

It has also been held that although the scope of the power to grant an

injunction is expressed broadly, the court should be reluctant to grant an injunction unless it serves some purpose. It may be that in a particular case an injunction is appropriate for the benefit of the public by marking out the court’s view of the seriousness of the respondent’s conduct: Hughes v Western Australian Cricket Assn Inc (1986) ATPR ¶40-748 at 48,135. In ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; 110 ALR 47; (1992) ATPR ¶41-185 at 40,525 Lockhart J said that s 80 should not be construed so as to require, rather than permit the court to grant an injunction once the prohibitive conduct has been proven. [11,625.35] “prima facie case” or “serious question to be tried” The applicant for a grant of an interim injunction must be able to satisfy the following two matters of principle: (1) he or she must be able to satisfy the court on the basis of the material before it that it has a prima facie case or a real chance of success; and (2) if (1) is satisfied, the court must also consider the balance of convenience. See World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181; (1977) ATPR ¶40-040; Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153; 67 ALR 553 at 557; BC8601376 per Mason ACJ; Sabre Corporation Pty Ltd v Laboratories Pharm-a-Care Pty Ltd (1995) ATPR ¶41-396; Bristol-Myers Squibb Australia Pty Ltd v Astra Pharmaceuticals Pty Ltd (1999) 45 IPR 144; [1999] FCA 256; BC9901053 at [26]; Australian Rugby Union Ltd v Hospitality Group Pty Ltd [1999] FCA 1136; BC9905017 at [8]; Agro Holdings Ltd v Flexi-Coil (Aust) Pty Ltd [1999] FCA 1658; BC9909055; Telstra Corporation Ltd v Cable & Wireless Optus Ltd [2001] FCA 1478; BC200106444; Australian Agricultural Co Ltd v AMP Life Ltd [2003] FCA 1038; BC200305672 at [103] per Sackville J; Cash Converters Pty Ltd v Tallut Pty Ltd (2005) ATPR ¶42-074; [2005] FCA 939; BC200504814 at [48] per Siopis J; Maritime Workers of Australia Credit Union Ltd v MSB Credit Union Ltd (2005) ATPR ¶42-080; [2005] FCA 1211; BC200506442 at [6] per Tamberlin J; Marley New Zealand Ltd v Icon Plastics Pty Ltd [2007] FCA 851; BC200704270 at [3] per Gordon J; Campaign Master (UK) Ltd v Forty Two International Pty Ltd [2008] FCA 979; BC200804998 at [21] per Buchanan J. There has been a divergence of opinion in Australia as to the relevant test

to be applied for the purpose of (1), above. One of these approaches stems from the judgment of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 168 CLR 618; [1968] ALR 469. There the High Court held that the applicant must make out a prima facie case. To show this, the applicant must establish that if the evidence remains as it is there is a probability of gaining relief at the trial of the action. Where the evidence is in dispute, the court would consider whether the applicant had a fair chance of success: World Series Cricket Pty Ltd v Parish, above. Whether such a prima facie case has been established rests essentially upon the proper construction of the matters in dispute: Colgate-Palmolive Pty Ltd v Rexona Pty Ltd (1981) 37 ALR 391; (1981) ATPR ¶40-242 at 43,188. [page 634] The “prima facie” case approach has been adopted in a number of Australian decisions: see Elna Australia Pty Ltd v AF Harding & Co Pty Ltd (1978) ATPR ¶40-096 at 17,954; (1978) 4 TPC 308; Colgate-Palmolive Pty Ltd v Rexona Pty Ltd, above, at 43,188; World Series Cricket Pty Ltd v Parish, above; Danley Construction Products Pty Ltd v Max Frank Pty Ltd [2009] FCA 282; BC200902036 at [9] per Spender J. See Australian Competition and Consumer Commision v TPG Internet Pty Ltd [2010] FCA 1478; BC201010043 at [13] per Ryan J; See Organic Marketing Australia Pty Ltd v Woolworths Ltd [2011] FCA 279 at [17]–[19] per Katzmar J; Specsavers Pty Ltd v Coastal Contacts (Aus) Pty Ltd [2012] FCA 102; BC201200546 per Jacobson J. The second approach is reflected in the House of Lords judgment in American Cyanamid v Ethicon Ltd [1975] AC 392. There the House of Lords said that the relevant test was to consider whether there is a serious question to be tried. Under this test the applicant must show that there is a case which can be seriously argued and which has, on its face, some substance. Alternatively the applicant must show that there is a real prospect of succeeding in the claim for a permanent injunction. There is no need to establish that as a matter of probability, the applicant will succeed on a full hearing or that a prima facie case has been made out on the evidence at the interlocutory stage: Virgin Enterprises Ltd v Virgin Star Pty Ltd [2005] FCA 1846; BC200511085 at [12] per Tamberlin J; Oxygen8 Communications

Australia Pty Ltd v Telstra Corp Ltd [2009] FCA 426; BC200903466 at [21] per Flick J. In most instances, there will be little consequence in applying either test: Co-operative Bulk Handling Ltd v Waterside Workers Federation of Australia (1983) 51 ALR 79; (1983) ATPR ¶40-412; See Unilever Australia Ltd v Revlon Australia Pty Ltd [2014] FCA 573; BC201404243 per Jacobson J. However, the preference for Australian courts is the “serious question to be tried” test: Australian Coarse Grain Pool v Barley Marketing Board of Queensland (No 1) (1982) 46 ALR 398; 57 ALJR 425; BC8200143; Decor Corporation Pty Ltd v Bo-Water Scott Ltd (1985) 8 FCR 432; (1985) ATPR ¶40-587; Westpac Banking Corporation v Eltran Pty Ltd (Swiss Franc case) (1987) 14 FCR 541; 74 ALR 45; New South Wales Dairy Corporation v Murray Goulburn Co-operative Co Ltd (1988) 12 IPR 587; (1988) ATPR ¶40-904; Trade Practices Commission v Santos Ltd (1992) 38 FCR 382; 110 ALR 517; (1992) ATPR ¶41-195 at 40,628; Davids Holdings Pty Ltd v Coles Myer Ltd (1993) ATPR ¶41-214 at 40,931; Vagrand Pty Ltd (in liq) v Fielding (1993) 113 ALR 128; Q Promotions Pty Ltd v Queensland Bloodstock Breeders & Sales Pty Ltd (FCA, Drummond J, QG 109/93, 16 July 1993, unreported) at 9; Sony Music Australia Ltd v Jackson (1993) ATPR ¶41-279 at 41,745; Jabuna Pty Ltd v Hartley (FCA, Beazley J, NG 177/94, 18 April 1994, unreported) at 13; Trade Practices Commission v Rank Commercial Ltd (1994) 123 ALR 551; (1994) ATPR ¶41-331; Seekers Nominees Pty Ltd v Target Australia Pty Ltd (1995) 32 IPR 372 at 376; Ausdoc Office Pty Ltd v Complete Office Supplies Pty Ltd (1996) 136 ALR 659; 34 IPR 151; Telstra Corp Ltd v Optus Communications Pty Ltd (1997) ATPR ¶41-541; Al Hayat Publishing Co Ltd v Sokarno (1996) 34 IPR 214; Emap Elan Ltd v Pacific Publications Pty Ltd (1997) ATPR ¶41-551 at 43,625; United Pacific Industries Pty Ltd v Madison Sports Pty Ltd (1998) ATPR ¶41-643; Roses Only & Lush Pty Ltd v Mark Lyons Pty Ltd (1999) ATPR ¶41-706; Tooheys Pty Ltd v Coopers Brewery Ltd [2003] FCA 148; BC200300750 at [11] per Tamberlin J; Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324; [2009] FCA 17; BC200900118 at [14] per Foster J. The threshold for a “serious question to be tried” is not onerous: Mobileworld Operating Pty Ltd v Telstra Corp Ltd [2005] FCA 1365; BC200507112 at [21] per Weinberg J; Intellectual Property Pty Ltd v

Mygroups Pty Ltd [2006] FCA 15; BC200600094 at [14] per Goldberg J. Neither test should not involve the court in undertaking a preliminary trial of the matter which should be left to the final hearing: World Series Cricket Pty Ltd v Parish, above, per Bowen CJ; Communication Credit Union Ltd v National Westminster Finance Australia Ltd (1983) 51 ALR 375; (1983) ATPR ¶40-410 per Davies J; Glev Pty Ltd and Glev Franchises Pty Ltd v Kentucky Fried Chicken (1994) ATPR ¶41-299 at 41,981. See also Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1987) 33 FLR 294; (1987) ATPR ¶40-081 at 17,794–5. [page 635] However, assessment of the strength of the applicant’s case is necessary where the decision to grant or refuse an injunction will practically determine the issue between the parties: Q Promotions Pty Ltd v Queensland Bloodstock Breeders & Sales Pty Ltd, above; Seekers Nominees Pty Ltd v Target Australia Pty Ltd, above, at 376; Sabre Corp Pty Ltd v Laboratories Pharma-Care Pty Ltd, above; Regents Pty Ltd v Subaru (Aust) Pty Ltd (1996) ATPR ¶41-463 at 41,628; Bedford Industries Rehabilitation Assn Inc v Pinefair Pty Ltd (1996) ATPR ¶41-448 at 41,504. However the mere fact that a mandatory injunction is sought does not require as a matter of course, an examination of the strength of an applicant’s case: Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Queensland (1995) 58 FCR 119; (1995) ATPR ¶41-426 at 40,804–5. The question of whether there is a serious issue to be tried should not be considered in isolation to the balance of convenience: Collins House Pty Ltd v Golden Age Sunrise Development Pty Ltd (2015) 114 IPR 1; [2015] FCA 724; BC201506933 per Mortimer J. [11,625.40] Balance of convenience If the court has established that the applicant has made out a serious question to be tried, then it is the court’s duty to consider the balance of convenience: World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181; (1977) ATPR ¶40-040; Australian Coarse Grain Pool Pty Ltd (No 1) v Barley Marketing Board of Queensland (1982) 46 ALR 398; 57 ALJR 425; BC8200143; AAP Telecommunications Pty Ltd v Telstra

Corp Ltd (FCA, Einfield J, 449/97, 16 July 1997, unreported, BC9703120); Fernwood Fitness Centre Pty Ltd v Today’s Woman Health and Fitness Pty Ltd (1998) ATPR ¶41-637; Roses Only & Lush Pty Ltd v Mark Lyons Pty Ltd (1999) ATPR ¶41-706; Energizer Australia Pty Ltd v Gillette Australia Pty Ltd (2005) ATPR ¶42-050; [2005] FCA 148; BC200500590 per Hely J. The balance of convenience involves the court assessing what the effects the granting of an injunction will have on both parties and, in particular, whether to grant one would cause hardship to the respondent or to refuse an injunction would cause hardship to the applicant: Virgin Enterprises Ltd v Virgin Star Pty Ltd [2005] FCA 1846; BC200511085 at [14] per Tamberlin J. An important principle in this regard is to determine whether if the applicant is successful at the trial, he will be adequately compensated by damages for any loss which may result in the intervening period: Wickham v Associated Pool Builders Pty Ltd (1986) ATPR ¶40-741; Viewsail Pty Ltd v Javel Holdings Pty Ltd (FCA, Carr J, WAG 32/94, 6 May 1994, unreported) at 12; Emap Elan Ltd v Pacific Publications Pty Ltd (1997) ATPR ¶41-551 at 43,625; Biddulph v De Vries (1998) 43 IPR 144; BC9806299; Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd [2004] FCA 1181; BC200406685 at [32] per Kenny J; Thoroughvision Pty Ltd v Sky Channel Pty Ltd [2005] FCA 1527; BC200508978 at [28] per Ryan J; Oxygen8 Communications Australia Pty Ltd v Telstra Corp Ltd [2009] FCA 426; BC200903466 at [52] per Flick J; Pivotel Satellite Pty Ld v Optus Mobile Pty Ltd [2009] FCA 1601; BC200912001 per Jagot J. In Glev Pty Ltd and Glev Franchises Pty Ltd v Kentucky Fried Chicken (1994) ATPR ¶41-299 at 41,981 it was noted that trade practices proceedings involve an element of public interest and therefore the court will be slower to withhold relief than would be an equity court in a suit involving individual interests alone: Sterling Winthrop Pty Ltd v Boots Co (Aust) Pty Ltd (1996) ATPR ¶41-452 at 41,555. In Jabuna Pty Ltd v Hartley (FCA, Beazley J, NG 177/94, 18 April 1994, unreported) at 13 it was held that the more likely it is that the applicant for an injunction would be successful in its final claim, the more likely it is that the balance of convenience lies in favour of the grant of the injunction. See also Trade Practices Commission v Santos Ltd (1992) 38 FCR 382; 110 ALR 517 at 532; (1992) ATPR ¶41-195; Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 155; 67 ALR 553; Trade Practices Commission v Rank Commercial Ltd (1994) 123 ALR 551; (1994) ATPR ¶41-331; Emap

Elan Ltd v Pacific Publications Pty Ltd (1997) ATPR ¶41-551 at 43,625; South Sydney District Rugby League Football Club Ltd v News Ltd (1999) 169 ALR 120; (1999) ATPR ¶41-728. [page 636] [11,625.45] Other matters relevant to the exercise of discretion The following matters are also relevant in determining whether the court will exercise its discretion to grant an interim injunction and on the question of the balance of convenience: Delay A delay in commencing proceedings is relevant to the exercise of the court’s discretion but will not automatically preclude the granting of an injunction: World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181; (1977) ATPR ¶40-040; Viewsail Pty Ltd v Javel Holdings Pty Ltd (FCA, Carr J, WAG 32/94, 6 May 1994, unreported) at 11; Al Hayat Publishing Co Ltd v Sokarno (1996) 34 IPR 214. If the public interest is involved, relief under s 80 is less likely to be withheld on the ground of laches and acquiescence than would an equity court in proceedings only involving individual interests: World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 190, 203-204; (1977) ATPR ¶40-040; South Sydney District Rugby League Football Club Ltd v News Ltd (1999) 169 ALR 120 at 127; (1999) ATPR ¶41-728 at 43,446; Australian Agricultural Co Ltd v AMP Life Ltd [2003] FCA 1038; BC200305672 at [144] per Sackville J; Bavarian Hospitality Group Pty Ltd v SakeSake Izakaya Pty Ltd [2010] FCA 1102; BC201007462 at [29] per Jagot J. Likelihood of the conduct being repeated In Trade Practices Commission v Gold Coast Property Sales Pty Ltd (1994) ATPR ¶41-311 the court had regard to the fact that there was no reasonable risk of re-broadcasting the offending material. See also: Gull Petroleum (WA) Pty Ltd v Povey Corp (1988) ATPR ¶40-842; Australian Competition and Consumer Commission v FFE Building Services Ltd (2003) ATPR ¶41-926; [2003] FCA 330; BC200301893 at [16] per Mansfield J; Walker (as Commissioner for Fair Trading) v Rugs A Million Pty Ltd [2006] WASC 127; BC200604988 at [104] per Simmonds J; Commissioner for Fair Trading, Department of

Commerce v Hunter [2008] NSWSC 277; BC200802120 at [79] per McCallum J; Australian Competition and Consumer Commission v EDirect Pty Ltd (2008) ATPR ¶42-216; [2008] FCA 65; BC200802065 at [32] per Jacobson J; Australian Competition and Consumer Commission (ACCC) v Mailpost Australia Ltd [2010] FCA 369; BC201002292 at [28] per Foster J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 at [99] per Bennett J; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; BC201102241 per Gordon J; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 per Murphy J. Injunctions may be appropriate even if the likelihood of future contraventions is slight, if future contraventions are likely to cause significant damage to other persons: Australian Competition and Consumer Commission v Cambur Industries Pty Ltd [2006] FCA 1027; BC200606158 at [103] per Besanko J. Undertakings The nature and extent of any undertakings provided by the respondent not to engage in similar conduct may be a relevant consideration. However, the court must be satisfied that the undertakings are sufficient to protect the applicant: Harbour Agency Pty Ltd v Agency for the Performing Arts Pty Ltd (1989) ATPR ¶40-969; Singtel Optus Pty Ltd v Vodafone Pty Ltd [2010] FCA 1448; BC201009867 per Nicholas J. Period and scope of injunction The court may also consider the period over which the restraint will operate and the scope of the injunction proposed: Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing NSW Ltd (1987) 76 ALR 633; Australian Competition and Consumer Commission v Telstra Corp Ltd [2004] FCA 1132; BC200405647 per Gyles J. If there is a reasonable prospect that the status quo can be maintained and that any delay is unlikely to cause harm to any person, it is more likely that the balance of convenience favours the granting of the injunction: Trade Practices Commission v Rank Commercial Ltd (1994) 123 ALR 551; (1994) ATPR ¶41-331 at 42,499. Public right to information The court will need to balance the competing interests of the individual as compared with the public right to have access to

information: Allied Mills Industries Pty Ltd v Trade Practices Commission (No 1) (1981) 34 ALR 105; 55 FLR 125; Global Sportsman [page 637] Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; 55 ALR 25; (1984) ATPR ¶40-463; Glev Pty Ltd and Glev Franchises Pty Ltd v Kentucky Fried Chicken (1994) ATPR ¶41-299 at 41,982; Trade Practices Commission v Rank Commercial Ltd (1994) 123 ALR 551 at 565-6; (1994) ATPR ¶41-331; Seekers Nominees Pty Ltd v Target Australia Pty Ltd (1995) 32 IPR 372. Deliberate conduct Where the conduct of the respondent is deliberate or calculated, this is a relevant factor to be considered in granting an injunction: Visa International Service Association v Beiser Corp Pty Ltd (1983) 1 IPR 471; 77 FLR 234; (1983) ATPR ¶40-373. Creation of a monopoly The tendency to create a monopoly is a relevant consideration for the court in determining whether to grant injunctive relief: Dairy Vale Metro Co-op Ltd v Brownes Dairy Ltd (1981) 35 ALR 494; 3AW Southern Cross Radio Pty Ltd v Inner North East Community Radio Inc (1994) ATPR ¶41-313; Seekers Nominees Pty Ltd v Target Australia Pty Ltd (1995) 32 IPR 372. It is clear that the power to grant an injunction is not intended to confer a monopoly on a particular trader, for example in the use of a trade or business name. However, it has equally been held that the court will not refuse to grant an injunction where that is the only way to protect the applicant despite the fact that limited monopoly rights are created: Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73; (1980) ATPR ¶40-171. Cost and extent of promotion The fact that the respondent had engaged in an extensive advertising campaign: Glev Pty Ltd and Glev Franchises Pty Ltd v Kentucky Fried Chicken (1994) ATPR ¶41-299 at 41,982; Telstra Corporation Ltd v Cable & Wireless Optus Ltd [2001] FCA 1478; BC200106444 at [49] per Goldberg J. Chances of success at the final hearing The more likely it is that the

applicant for an injunction would be successful in its final claim, the more likely it is that the balance of convenience lies in favour of the grant of the injunction: Jabuna Pty Ltd v Hartley (FCA, Beazley J, NG 177/94, 18 April 1994, unreported) at 13; South Sydney District Rugby League Football Club Ltd v News Ltd (1999) 169 ALR 120; (1999) ATPR ¶41-728; Agro Holdings Ltd v Flexi-Coil (Aust) Pty Ltd [1999] FCA 1658; BC9909055. Effect on business of respondent In Jabuna Pty Ltd v Hartley (FCA, Beazley J, NG 177/94, 18 April 1994, unreported) at 21 the court considered the possibility that the granting of the injunction may force the respondent to close its business. The period over which the applicant has conducted its business is a relevant factor and where the period is long the court is more likely to grant an injunction: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 168 CLR 618; [1968] ALR 469; Visa International Service Association v Beiser Corp Pty Ltd (1983) 1 IPR 471; 77 FLR 234; (1983) ATPR ¶40-373; Sabre Corporation Pty Ltd v Laboratories Pharm-a-Care Pty Ltd (1995) ATPR ¶41-396. Impact on competition In considering whether to grant an injunction, the court may have regard to the apprehended substantial lessening of competition in a market resulting from the proposed conduct: Trade Practices Commission v Rank Commercial Ltd (1994) 123 ALR 551 at 5678; (1994) ATPR ¶41-331. Knowledge of applicant’s claim A relevant factor is whether the respondent has commenced a new trade with the knowledge that the applicant might take action: Visa International Service Association v Beiser Corp Pty Ltd (1983) 1 IPR 471; 77 FLR 234; (1983) ATPR ¶40-373; Sabre Corporation Pty Ltd v Laboratories Pharm-a-Care Pty Ltd (1995) ATPR ¶41-396. Maintaining the status quo A relevant consideration is that the respondent is the party purporting to disturb the status quo by alleging misleading and deceptive conduct: WTH Pty Ltd (t/as Avis Australia) v Budget Rent-a-Car System Pty Ltd (1984) ATPR ¶40-479; Sabre Corporation Pty Ltd v Laboratories Pharm-a-Care Pty Ltd (1995) ATPR ¶41-396.

[page 638] Risk of contempt of court An order which may have the effect of unwittingly putting a number of persons at risk of penalty for contempt of court, assuming that the precise scope of what is to be done does not appear clearly on the face of the order, is a relevant factor to be considered: Cameron v Qantas Airways Ltd (1995) ATPR ¶41-417 at 40,644; (appeal) Qantas Airways Ltd v Cameron (1996) ATPR ¶41-530. Time-barred Whether it is appropriate to grant an injunction more than two or three years after a contravention of Pt IVA or Pt V (both now contained in Sch 2 to the Act) has occurred is a matter that may go to the issue of discretion rather than jurisdiction: Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91; 143 ALR 328; (1997) ATPR ¶41-567 at 43,882. Court’s disapproval An injunction may be used to mark the court’s disapproval of the conduct. This may be combined with a monetary penalty: Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd (1999) ATPR ¶41-716; [1999] FCA 1175; BC9905423; see also Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd (2001) ATPR ¶41-811; [2001] FCA 299; BC200101193. Respondent outside of Australia The fact that the respondent is outside Australia, and for that reason any order might be difficult or impossible to enforce, may be a relevant consideration in determining whether to grant an injunction: Australian Competition and Consumer Commission v Chen (2003) 201 ALR 40; [2003] FCA 897; BC200304783 at [43] per Sackville J. Rights of third parties Hardship to a third party is a factor to be considered in the context of the balance of convenience: Muffingrove Pty Ltd v Melridge Mining and Exploration Pty Ltd (FCA, Hill J, QG 109/91, 26 September 1991, unreported) at 17; Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 332 per Meagher JA. The section is not intended to authorise injunctions which deprive innocent third parties of existing rights: Thomson Australia Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; 37 ALR 66; (1981) ATPR ¶40234; BC8100114; Australian Agricultural Co Ltd v AMP Life Ltd [2003]

FCA 1038; BC200305672 at [134] per Sackville J; Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578; BC200604301 at [43] per Brereton J. Limited number of complainants The limited number of complaints to the commission or otherwise: Australian Competition and Consumer Commission v Commonwealth Bank of Australia (2004) ATPR ¶41-975; [2003] FCA 1397; BC200307559 at [26] per Conti J. [11,625.50] No necessity to establish damage An applicant for an injunction under s 80 need not show that a proprietary interest of the applicant is affected, or that the applicant has suffered special damage or that he or she has suffered any damage at all: World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181; (1977) ATPR ¶40-040 at 17,426. [11,625.55] Defamation Section 80 is not to be limited by reason only that the conduct on which a claim for relief is based also happens to constitute the tort of defamation: Construction Industry Long Service Leave Board v Odco Pty Ltd (1988) 81 ALR 590; (1988) ATPR ¶40-886 at 42,599. [11,625.60] Consent orders and undertakings The court is, on occasion, asked by the parties to a settlement to implement terms of that settlement. The court will not usually raise unnecessary difficulties about pleadings or for example require an amendment, provided that it is satisfied that any consent orders that it makes or consent undertakings that it accepts are not inappropriate and are within its jurisdiction: Trade Practices Commission v Milreis Pty Ltd (1978) 32 FLR 234; (1978) ATPR ¶40-073 at 17,745 per Franki J; Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) ATPR ¶41-673 at 42,604; Australian Competition and Consumer Commission v SIP Australia Pty Ltd (1999) ATPR ¶41-702; [1999] FCA 858; BC9903599; Australian Competition and Consumer Commission v McCaskey (2000) [page 639] 104 FCR 8; 183 ALR 159; [2000] FCA 1037; BC200004335; Australian Competition and Consumer Commission v Australian Medical Assn Western

Australia Branch Inc (2001) ATPR ¶41-844; [2001] FCA 1471; BC200106327 at [35] per Carr J; Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) (2003) Aust Contract R ¶90-164; [2002] FCA 1548; BC200207781 at [2] per French J; Australian Competition and Consumer Commission v Econvite Pty Ltd (2003) ATPR ¶41-959; [2003] FCA 964; BC200305289 at [11] per French J; Australian Competition and Consumer Commission v Esanda Finance Corp Ltd [2003] FCA 1225; BC200306609 at [18] per Lee J; Australian Competition and Consumer Commission v Capalaba Pty Ltd [2003] FCA 1226; BC200306608 at [23] per Lee J; Australian Competition and Consumer Commission v Thorn Australia Pty Ltd [2004] FCA 157; BC200400632 at [19] per French J; Australian Competition and Consumer Commission v Francis (2004) ATPR (Digest) ¶46-250; [2004] FCA 487; BC200402108 at [74] per Gray J; Australian Competition and Consumer Commission v Anglo Estates Pty Ltd (2005) ATPR ¶42-044; [2005] FCA 20; BC200500048 at [41] per French J; Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2006] FCA 1118; BC200606499 at [4] per Siopis J; Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (2007) ATPR ¶42-140; [2006] FCA 1730; BC200610390 at [3] per Nicholson J; Australian Competition and Consumer Commission v Info4PC Pty Ltd [2006] FCA 1534; BC200609291 at [9] per Nicholson J; Australian Competition and Consumer Commission v Terania Pty Ltd [2008] FCA 732; BC200803830 at [18] per Mansfield J; Australian Competition and Consumer Commission v Kokos International Pty Ltd (No 4) [2008] FCA 549; BC200804160 at [3] per French J; Australian Competition and Consumer Commission v Nudie Foods Australia Pty Ltd [2008] FCA 943; BC200804742 at [11] per French J; Australian Competition and Consumer Commission v GM Holden Ltd [2008] FCA 1428; BC200808135 at [11] per Siopis J. In determining whether to accept undertakings the court must consider the principles which govern the grant of an injunction. That is: • the court must be justified in refusing to make the orders consented to if they do not conform with legal principle; • it is undesirable to make an order against the respondent which leaves unresolved the central issue in the case; and • the injunction should not restrain conduct which is lawful. Australian Competition and Consumer Commission v McCaskey, above, at

[30] per French J; Australian Competition and Consumer Commission v Auspine Ltd [2006] FCA 1215; BC200607117 at [28]–[30] per Besanko J. In Australian Competition and Consumer Commission v Econvite Pty Ltd, above, at [12], French J said that cases in which a court may refuse to make a proposed consent order include cases in which: • the order is one that the court does not have power to make; • the orders bear no relationship to the admitted contravention, for example, a compliance program covering Pts IV and V (both now contained in Sch 2) of the Act is generally not appropriate where the relevant contraventions related only to Pt V (now contained in Sch 2): Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 at 202; 148 ALR 339; (1997) ATPR ¶41-580 per Merkel J; Australian Competition and Consumer Commission v Office Link (Aust) Pty Ltd (1997) ATPR ¶41-598; • an injunctive order is too vague or imprecise or requires continuing supervision by the court; • a multiplicity of overlapping injunctions and/or declarations is proposed which involve unnecessary repetition and may give rise to confusion about the scope of the obligations being imposed pursuant to the orders. Where both parties have legal representation, the court can be persuaded more readily that orders sought by consent are within the jurisdiction of the court and are appropriate in the circumstances. [page 640] This may be tempered in some cases by the existence of resource imbalance between the parties: Australian Competition and Consumer Commission v Francis, above, at [76] per Gray J. In Trade Practices Commission v Olympic Productions & Publications Pty Ltd (1986) 8 FCR 467; (1986) ATPR ¶40-670, Spender J was prepared to accept undertakings in lieu of an injunction even though those undertakings were offered without any admission that either respondent had engaged in or was proposing to engage in conduct which would constitute an offence under

the Act: ATPR at 47,394. However, the giving of undertakings of itself may not prevent the court from proceeding to judgment, rather than dismissing proceedings, where there is a particular public interest at stake: Australian Competition and Consumer Commission v IMB Group Pty Ltd (in liq) (1999) ATPR ¶41-688. The making of consent orders involves a more limited judgment than that involved in the grant of injunctive relief: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2001) ATPR ¶41802; [2000] FCA 1893; BC200008185. The remedies for a breach of an undertaking are the same as those for a breach of an injunction: Australian Competition and Consumer Commission v Auspine Ltd [2006] FCA 1215; BC200607117 at [26] per Besanko J. A court may release a person from an undertaking where circumstances have changed: Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 5) [2010] FCA 1105; BC201007484 per McKerracher J. [11,625.63] Undertakings as to damages The effect of s 80(6) is that in the grant of an interim injunction, the court will proceed as if the applicant has given an undertaking as to damages but that in the formulation of its orders, the court will not actually require an undertaking to be given: Trade Practices Commission v Santos Ltd (1992) 38 FCR 382; 110 ALR 517; (1992) ATPR ¶41-195 at 40,631. See Australian Communications and Media Authority v Mobilegate Ltd (2009) 256 ALR 85; [2009] FCA 539; BC200904471 at [23] per Logan J. [11,625.65] Term of injunction Whether to grant an injunction and the terms of any injunction granted are at the discretion of the court. It has already been indicated that the principles which apply in equity to the grant of an injunction do not constrain the court in exercising the power under s 80: see [11,625.5]. Nevertheless the courts will have regard to equitable principles if only to ensure that the factors which are relevant to the exercise of their discretion are not omitted from consideration: World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 199; (1977) ATPR ¶40-040. In Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574; (1990) ATPR ¶41-019 at 51,351, the court provided the following guidance in framing the terms of an injunction:

Nevertheless such an injunction as that sought by the commission in this case would have been open to the objection that it was undesirable with the cause, in respect of the supply of Omega Computers, it did not more than reproduce, but this time with the risk of sanctions for contempt, which the Act, in terms foreboded by s 48. Any practice of awarding injunctions in such a form is to be discouraged. Such injunctions conflict with the general precept, applicable to the exercise of power under s 80 of the Act as much as to the framing of injunctions in aid of legal and equitable rights, that a final injunction should bear upon the case alleged and proved against the defendant, and should indicate that conduct which is adjoined or commanded to be performed, so that the defendant knows what is expected of him as a matter of fact. Further, where the injunction is in the form of an interlocutory order, it is undesirable to frame the injunction in such a way as to lead the issues in a case open for determination on a contempt proceeding, rather than at the final hearing.

As long as the court has jurisdiction in a matter, it may make orders in practical terms to deal with particular circumstances: Jackson v Sterling Industries Ltd (1986) ATPR ¶40-735 at 47,998. [page 641] The court therefore has power to grant an interlocutory injunction which is reasonably related to the orderly procedure of the court or the subject matter of the litigation: Brisbane Gas Co Ltd v Hartogen Energy Ltd (1982) 42 ALR 685; 60 FLR 343; (1982) ATPR ¶40-304. An injunction should be granted in clear and unambiguous terms which leaves no room for the person to whom it is directed to be in doubt as to whether their future conduct falls within the terms of the injunction: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; 110 ALR 47; (1992) ATPR ¶41-185 at 40,526; Campomar Sociedad Ltd v Nike International Ltd (1998) ATPR (Digest) ¶46-185; TGI Friday’s Inc v TGI Friday’s Australia Pty Ltd (FCA, Whitlam J, 9 September 1998, unreported); (appeal) TGI Friday’s Australia Pty Ltd v TGI Friday’s Inc (1999) ATPR ¶41-683; Department of Fair Trading v Monaghan (2003) ATPR ¶41-912; [2002] NSWSC 1021; BC200206434 at [44] per Hulme J; Brother Industries Ltd v Dynamic Supplies Pty Ltd [2007] FCA 1694; BC200709645 at [5] per Tamberlin J; see Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; BC200707710 at [110] per Moore, Dowsett and Greenwood JJ. The inference to be drawn from the provisions of s 80 is that the court’s power to grant final injunctive relief is intended to be restricted to conduct of the kind referred to in s 80(1). This conclusion however does not require the

final injunction to refer to kinds of conduct as opposed to specific types of conduct. All that is required is that the conduct fall within the types of conduct specified in s 80(1): Thomson Publications (Aust) Pty Ltd v Trade Practices Commission (1979) 27 ALR 551; 40 FLR 257; (1979) ATPR ¶40133 at 18,443. [11,625.67] Time limits There is no relevant limitation period for bringing proceedings for an injunction under s 80. This is because an application for an injunction would in the usual case be made where the contravention is either threatened or is occurring: Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (2001) 109 FCR 528; 191 ALR 402; [2001] FCA 226; BC200100800 at [30]. The fact that the Act makes specific provision for limitation periods for claims for damages and other compensation, but not for injunctions suggests that no limitation period was intended for the grant of injunctive relief: see Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91 at 132—4; 143 ALR 328; (1997) ATPR ¶41-567 at 43,881–3 per Merkel J; Australian Competition and Consumer Commission v Pacific Dunlop Ltd (2001) ATPR ¶41-823; [2001] FCA 740; BC200103146 at [43] per North J. [11,625.69] Territorial limitation on grant of injunction Section 80 does not impose an implied territorial limitation on the power of the court. It permits the court to prohibit or mandate acts outside of Australia: Australian Competition and Consumer Commission v Chen (2003) 201 ALR 40; [2003] FCA 897; BC200304783 at [41] per Sackville J. [11,625.70] Mandatory injunctions In Health Insurance Commission v Hospitals Contribution Fund of Australia (1981) 36 ALR 204; (1981) ATPR ¶40-227 at 43,074 Bowen CJ said that s 80(1) was more appropriate to the grant of a negative injunction than to the grant of a mandatory injunction. However, in Orison Pty Ltd v Strategic Minerals Corp NL (1987) 77 ALR 141; (1987) ATPR ¶40-803 at 48,736, French J said that s 80 was wide enough to encompass the grant of a mandatory injunction: AV Jennings Ltd v First Provincial Building Society Ltd (1996) ATPR ¶41-494. The 1983 amendments to s 80(1), which permits the court to grant an injunction “in such terms as the court determines to be appropriate”, empower the making of mandatory orders in addition to restraining orders:

Medibank Private Ltd v Cassidy (2002) ATPR ¶41-895; [2002] FCAFC 290; BC200205361 at [26]–[27] per Sundberg, Emmett and Conti JJ. A mandatory injunction is authorised by s 80(5): Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) (2003) Aust Contract R ¶90-164; [2002] FCA 1548; BC200207781 at [19] per French J; Skymaker Holdings Pty Ltd v Jadjet Pty Ltd [2006] FCA 13; BC200600073 per Nicholson J. [page 642] An application for an interlocutory mandatory injunction attracts the same test as other applications for interlocutory relief: Australian Rugby Union Ltd v Hospitality Group Pty Ltd [1999] FCA 1136; BC9905017 at [9]; See Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd [2013] FCA 119; BC201300759 per Collier J. [11,625.73] Compensation in favour of non-parties Section 80 does not confer on the court the power to order compensation in favour of a person who is not a party to any proceedings: Medibank Private Ltd v Cassidy (2002) ATPR ¶41-895; [2002] FCAFC 290; BC200205361 at [30], [35] per Sundberg, Emmett and Conti JJ; Australian Competition and Consumer Commission v Danoz Direct Pty Ltd (2003) ATPR (Digest) ¶46-241; [2003] FCA 881; BC200304701 at [275] per Dowsett J. [11,625.75] The rule in Foss v Harbottle The decision in Foss v Harbottle (1843) 2 Hare 461; (1843) 67 ER 189 (the “Foss v Harbottle rule”) established that subject to some exceptions, where there is a wrong done to a company, the proper person to commence proceedings to redress that wrong is the company and not a member. In Orison Pty Ltd v Strategic Minerals Corp NL (1987) 77 ALR 141; (1987) ATPR ¶40-803 at 48,735 French J said that the limitation of the Foss v Harbottle rule does not appear to apply to persons who seek injunctive relief under s 80 of the Act. [11,625.80] Review of decision to grant an injunction The rule governing an appellate court in exercising its jurisdiction with respect to an

interlocutory injunction was stated by Hardie AJ, delivering the judgment of the court in De Mestre v AD Hunter Pty Ltd (1952) 77 WN (NSW) 143 at 146: An appellant court should not, in my view, interfere with the exercise by the judge of first instance of his decretionary power unless a clear case has been made out that he has acted on some wrong principle or has made an order which works a substantial injustice to one of the parties: Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1987) 33 FLR 294; (1987) ATPR ¶40-081 at 17,794 per Brennan J.

[11,625.85] Setting aside an injunction Section 80(3) allows the court to rescind or vary an injunction granted under s 80(1) or (2). It is implicit in s 80(3) that the party subject to the injunction is entitled to apply for its rescission and that the making of an application enlivens the court’s power to rescind the injunction: Caltex Petroleum Pty Ltd v Australian Competition and Consumer Commission (2001) ATPR ¶41-847; [2001] FCA 1503; BC200106617 at [18] per Sackville J. It may be that in the usual case the application for rescission of an injunction will be made in proceedings in which the injunction was granted: Caltex Petroleum Pty Ltd v Australian Competition and Consumer Commission, above, at [18] per Sackville J. The subsection was likely introduced to cure a doubt that the power of the court to set aside an injunction was not limited to cases of fraud but would extend, inter alia, to cases where a court had been misled and the misleading fell short of fraud in the strict sense: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; 66 ALR 577; (1986) ATPR ¶40-715; BC8601455 per Gray J. [11,625.90] Mareva injunction The Mareva injunction obtained its name from the English decision in Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep 509. Initially, these orders were granted to prevent a non-resident defendant from removing assets from the territorial limits of a court’s jurisdiction so as to frustrate the effectiveness of any judgment that was obtained. Later, the power was seen as an incident of the substantive jurisdiction of the court to prevent the defendant from disposing of his or her assets to defeat any judgment obtained in an action: Jackson v Sterling Industries Ltd (1987) 162 CLR 612; 71 ALR 457; (1987) ATPR ¶40-792 at 48,643 per Deane J; Cardile v LED Builders Pty Ltd (1999) 98 CLR

[page 643] 380; 162 ALR 294; 73 ALJR 657; Australian Competition and Consumer Commission v World Netsafe Pty Ltd (1999) ASAL ¶55-036; [2000] FCA 33; BC200000051 at [6]; Tadros v J & R Investment Services Pty Ltd [2007] FCA 1041; BC200705916 at [21] per Buchanan J. The court has jurisdiction to grant an injunction restraining the respondent from removing or dissipating its assets pending the hearing of an application. The applicant must produce sufficient evidence to show that there is a real risk of the respondent removing or dissipating its assets. This may be proved, for example: • by evidence of a deliberate intention on the part of the respondent to defeat the applicant’s claim; or • by evidence that the respondent proposes to deal with its assets in such a way that it will have this effect: Hiero Pty Ltd v Somers (1983) 47 ALR 605; (1983) ATPR ¶40-380. The jurisdiction to grant a Mareva injunction is not confined to cases where a respondent is a foreigner who proposes to remove assets from the jurisdiction: Hiero Pty Ltd v Somers, above, ATPR at 44,503. More recently in Jackson v Sterling Industries Ltd, above, ATPR at 48,643 Deane J indicated the circumstances in which the court would grant a mareva injunction: As a general proposition, it should now be accepted in this country that a “Mareva injunction” can be granted . . . if the circumstances are such that there is a danger of [the defendants] absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that the plaintiff, if he gets judgment, will not be able to get it satisfied.

The court derives the power to grant the Mareva injunction either inherently as part of its substantive jurisdiction or pursuant to s 23 of the Federal Court of Australia Act: Hiero Pty Ltd v Somers, above, ATPR at 44,503; Jackson v Sterling Industries Ltd, above, ATPR at 48,644 per Deane J. A mareva injunction is not an interim injunction under s 80(6). In Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 156 ALR 273; (1998) ATPR ¶41-648 at 41,206 Lindgren J said: In my opinion the “interim injunction” referred to in subs 80(6) is the interim injunction referred to in subs 80(2). The power to grant interim injunctions in subs 80(2) is a power to do so “pending

determination of an application under subsection 80(1)” and in my view it is a power to do so in aid of, and in order to render effectual, a permanent injunction of a kind referred to in subs 80(1). A Mareva injunction, on the other hand, is directed to preventing frustration, not of a permanent injunction, but of an award of monetary relief.

See also Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) ATPR ¶41-669; [1998] FCA 1560 (notice of motion to dismiss). [11,625.93] Declarations The power to make declarations may be found in s 80 and other provisions of the Act: Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467; (2005) ATPR ¶42085; [2005] FCA 1311; BC200507021 at [28]–[30] per Jacobson J; Australian Competition and Consumer Commission v Prouds Jewellers Pty Ltd (No 2) (2008) ATPR ¶42-230; [2008] FCA 476; BC200802503 at [4] per Moore J. See [11,720.23]. [11,625.95] Corrective advertising and public announcements The court has the power derived from s 80 to make a mandatory order requiring publication of corrective advertisements or public announcements in addition to restraining the continuance of conduct engaged in by the respondent: Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd (1986) ATPR ¶40-654 at 47,295; Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1988) ATPR ¶40-834; Janssen Cilag Pty Ltd v Pfizer Pty Ltd (FCA, Lockhart J, G 340/90, 25 October 1991, unreported). Compare Boots Co (Aust) Pty Ltd v Smithkline Beecham Healthcare Pty Ltd (1995) 33 IPR 266; (1996) ATPR ¶41-459; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Pty Ltd (2000) 34 ACSR 673 at 676-7; [2000] FCA 918; [page 644] BC200003836; Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd [2001] FCA 1062; BC200104454 at [33] per Goldberg J; Osgaig Pty Ltd v Ajisen (Melbourne) Pty Ltd (2004) 213 ALR 153; 63 IPR 156; [2004] FCA 1394; BC200407145 at [129] per Weinberg J;

Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd [2006] FCA 244; BC200601378 at [20] per Nicholson J; Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230; BC200602058 at [14] per Brereton J; Easyway Australia Pty Ltd v Infinite Plus Pty Ltd [2011] FCA 351; BC201102046 per Foster J. The applicant should draft the terms of the proposed advertisement and should not leave it to the court to determine. A failure to do so carries the risk that it will be rejected on the ground of vagueness or imprecision: Trotman Australia Pty Ltd v Hobsons Press (Aust) Pty Ltd (1991) 22 IPR 397. An order for corrective advertising should only be used for the purpose of correcting a misrepresentation and not for the purpose of punishing the respondent: Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd, above; Makita (Aust) Pty Ltd v Black & Decker (A’asia) Pty Ltd (1990) ATPR ¶41-030; Australian Competition and Consumer Commission v Hungry Jacks Pty Ltd (1996) ATPR ¶41-538; Australian Competition and Consumer Commission v On Clinic Australia Pty Ltd (1996) ATPR ¶41-517; Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) ATPR ¶41-719; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Pty Ltd, above, ACSR at 677; Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd, above, at [33] per Goldberg J; Cassidy v Medical Benefits Fund of Australia Ltd (No 2) (2002) ATPR ¶41-892; [2002] FCA 1097; BC200205219 at [87] per Hill J; Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) (2003) Aust Contract R ¶90-164; [2002] FCA 1548; BC200207781 at [22] per French J; Australian Competition and Consumer Commission v Bio Enviro Plan Pty Ltd [2003] FCA 1219; BC200306386 at [19] per RD Nicholson J; Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179; [2003] HCA 35; BC200303104; Australian Competition and Consumer Commission v Kaye [2004] FCA 1363; BC200407004 at [205] per Kenny J. This principle is particularly appropriate in relation to orders made under s 86C of the Act (and its equivalent in s 12GLA of the Australian Securities and Investments Commission Act 2001) as there is specific provision for “punitive orders” under s 86D (and s 12GLB of the ASIC Act): Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402; [2003] FCAFC 289; BC200307781 at [49] per Stone J. Where the respondent can show that action has been taken promptly to

mitigate any damage, an order for corrective advertising may not be appropriate: David Golf & Engineering Pty Ltd v Austgolf Corp Pty Ltd (1992) ATPR ¶41-207 at 40,898; Trade Practices Commission v Telstra Corp Ltd (1993) ATPR ¶41-256 at 41,458; Trade Practices Commission v Optus Communications Pty Ltd (1996) 34 IPR 196; (1996) ATPR ¶41-478; Australian Competition and Consumer Commission v Optell Pty Ltd (1998) ATPR ¶41-640. Similar considerations apply where the outcome of the proceedings has been adequately reported: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2001) ATPR ¶41802 at 42,638; [2000] FCA 1893; BC200008185. An order for corrective advertising may not be appropriate where the court’s judgment has been widely disseminated so that its findings have received widespread publicity: Australian Competition and Consumer Commission v Woolworths Ltd (No 2) (2002) ATPR ¶41-890; [2002] FCA 1046; BC200204818 at [21] per Lindgren J. The court may also make punitive and non-punitive orders under ss 86C and 86D respectively. These orders may extend to requiring a person to publish an advertisement determined in accordance with the order. See also [11,717.20]. [page 645] [11,625.98] Compliance programmes The making of orders or the acceptance of undertakings to implement a trade practices compliance programme is within the power of the court under s 80: Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197; 148 ALR 339; (1997) ATPR ¶41-580 at 44,034 per Merkel J citing Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR ¶41-515; Australian Competition and Consumer Commission v Woolworths (FCA, Hill J, 3 July 1996, unreported); Trade Practices Commission v Amatek (FCA, Lockhart J, 24 November 1994, unreported); Australian Competition and Consumer Commission v Pioneer Concrete (Qld) Pty Ltd (1996) ATPR ¶41-457; Trade Practices Commission v Monier Roofing Ltd (1996) ATPR ¶41-464; Australian Competition and Consumer Commission v Hymix Industries Pty Ltd (1996) ATPR ¶41-465;

Australian Competition and Consumer Commission v McCaskey (2000) 104 FCR 8; 183 ALR 159; [2000] FCA 1037; BC200004335. However, an order requiring the implementation of a trade practices compliance programme should be one which has a sufficient connection or relationship to the conduct alleged to constitute a breach of a particular provision of the Act: Australian Competition and Consumer Commission v ZTek Computer Pty Ltd, above, at 44,034. In this case as the contravention related to ss 52 (now ACL s 18), 53(e) (now ACL s 29) and 53C (now ACL s 33) the compliance programme was to be limited to these provisions and not to the Act in general. This principle in Z-Tek has been followed: Australian Competition and Consumer Commission v Office Link (Aust) Pty Ltd (1997) ATPR ¶41-598 at 44,261–2; Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) ATPR ¶41-673 at 42,606–8; Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) ATPR ¶41-719; Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2001) ATPR ¶41-802 at 42,638; [2000] FCA 1893; BC200008185; see also Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-833; [2001] FCA 1065; BC200104475 at [27] per Mansfield J; Australian Competition and Consumer Commission v Cambur Industries Pty Ltd [2006] FCA 1027; BC200606158 at [106] per Besanko J; Australian Competition and Consumer Commission v Auspine Ltd [2006] FCA 1215; BC200607117 at [44] per Besanko J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd (No 2) [2011] FCA 670; BC201104194 per Bennett J. It is improper for the court to require the physical attendance of a person for the purpose of undertaking re-education as part of a compliance programme: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; BC200608860 at [99] per Kiefel J. Australian Standard compliance programs Standards Australia published AS 3806-1998 (now AS 3806-2006), which is an Australian standard applying to the design and implementation of compliance programmes. The Australian Standard may be applied to a trade practices compliance programme and indeed other compliance programmes. Often the commission, when requiring the implementation of a trade

practices compliance programme, has required that it comply with the Australian Standard: see Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-833; [2001] FCA 1065; BC200104475 at [31] per Mansfield J. In Australian Competition and Consumer Commission v Econvite Pty Ltd (2003) ATPR ¶41-959; [2003] FCA 964; BC200305289 at [17], French J said that while the Australian Standard may be a valuable guide to those charged with framing and implementing compliance programmes, it is aspirational and recommendatory in terms and not appropriate for adoption as part of an order of the court. However, having regard to previous orders and the agreement of the parties to implementation of a compliance programme by reference to the standard, French J was prepared to make a qualified reference to it along the lines in Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) (2003) Aust Contract R ¶90-164; [2002] FCA 1548; BC200207781: Australian Competition and Consumer Commission v Econvite Pty Ltd, above, at [17]. [page 646] The international standard, ISO 19600 Compliance management systems (ISO 19600), enhances AS 3806. [11,625.99] Compliance programme guidelines In December 2005 the commission published the first of several corporate trade practices compliance programme templates designed to facilitate compliance with the Act. In April 2006 the commission published the Small Business Guide to Trade Practices Compliance Programs. The guide is intended to promote awareness of trade practices compliance issues in the small business sector and offer guidance to small business operators. [11,625.100] Equivalent state legislation For the equivalent provisions in the relevant Acts of the states and territories see the comparative table at [10,001]. _____________________

[11,630] Price exploitation in relation to the carbon tax repeal — orders limiting prices or requiring refunds of money 80A (1) If, on the application of the Commission, the Court is satisfied that a person has engaged in conduct constituting a contravention of section 60C, the Court may make either or both of the following orders: (a) an order requiring that person, or a person involved in the contravention, not to make a regulated supply of a kind specified in the order for a price in excess of the price specified in the order while the order remains in force; (b) an order requiring that person, or a person involved in the contravention, to refund money to a person specified in the order. Note: Section 60C is about price exploitation in relation to the carbon tax repeal. (2) This section does not limit section 80. (3) In this section: price has the same meaning as in Part V. regulated supply has the same meaning as in Part V. [s 80A insrt Act 83 of 2014 s 3 and Sch 2 item 11, opn 18 July 2014]

[11,640] Division 7 of Part VI of the Workplace Relations Act does not prevent granting of injunction 80AA 2006]

[s 80AA rep SLI 50 of 2006 reg 3 and Sch 15[3], opn 27 Mar

[11,640AB]

Stay of injunctions

80AB (1) The Court may stay the operation of an injunction granted under section 80 if: (a) the injunction is in respect of conduct that constitutes or would constitute a contravention of subsection 45D(1), 45DA(1),

45DB(1), 45E(2) or 45E(3) or section 45EA or an associated contravention; and (b) there is a proceeding in respect of a dispute relating to the conduct pending before a court, tribunal or authority of a State or Territory under a prescribed provision of a law of the State or Territory; and (c) the conduct relates to the supply of goods or services to, or the acquisition of goods or services from, a person who is or becomes a party to the proceeding referred to in paragraph (b); and [page 647] (d) any of the following has applied for the stay: (i) a Minister of the Commonwealth; (ii) if subparagraph (b)(ii) applies — a Minister of the State or Territory concerned; (iii) a party to the proceeding for the injunction; and (e) the Court considers that granting the stay: (i) would be likely to facilitate the settlement of the dispute by conciliation; and (ii) would, in all the circumstances, be just. [subs (1) am SLI 50 of 2006 reg 3 and Sch 15[4], opn 27 Mar 2006]

(2) An order staying the operation of the injunction may be expressed to have effect for a specified period and may be varied or rescinded by the Court at any time. (3) If the proceeding referred to in paragraph (1)(b) is terminated because the State or Territory court, tribunal or authority has settled the dispute to which the conduct relates by conciliation, the Court must not make any order in relation to the costs of the proceedings in respect of the granting of the injunction or in relation to the costs of any proceedings for the rescission of the injunction. [subs (3) am SLI 50 of 2006 reg 3 and Sch 15[5], opn 27 Mar 2006]

(4) Nothing in this section affects other powers of the Court. (5) In this section: associated contravention means:

(a) attempting to contravene subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA; or (b) aiding, abetting, counselling or procuring a person to contravene any of those provisions; or (c) inducing, or attempting to induce, a person (whether by threats, promises or otherwise) to contravene any of those provisions; or (d) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of any of those provisions; or (e) conspiring with others to contravene any of those provisions. injunction includes an interim injunction. [s 80AB insrt Act 60 of 1996 s 3 and Sch 17]

[11,640AC] Injunctions to prevent mergers if clearance or authorisation granted on the basis of false or misleading information 80AC (1) If, on the application of the Commission, the Court is satisfied that: (a) a person is proposing to acquire shares in the capital of a body corporate or assets of a person; and (b) the person was granted, under Division 3 of Part VII (mergers), a clearance or an authorisation for the proposed acquisition on the basis of information that was false or misleading in a material particular; and (c) that information was given by the person or a body corporate that was related to the person; and (d) if that information had not been given, the clearance or authorisation would not have been granted; and (e) apart from the clearance or authorisation, the acquisition would contravene section 50 if it occurred; [page 648]

then the Court may grant an injunction in such terms as the Court determines to be appropriate. (2) However, the Court must not grant the injunction if: (a) the person was granted both a clearance and an authorisation for the acquisition under Division 3 of Part VII; and (b) the Court could not grant an injunction under this section in relation to both the clearance and the authorisation. Example: If a clearance for an acquisition was granted by the Commission on the basis of false or misleading information, and an authorisation for the acquisition was granted by the Tribunal on the basis of true information, then the Court cannot grant an injunction under this section because it would not be able to grant the injunction in relation to the authorisation. [s 80AC insrt Act 131 of 2006 s 3 and Sch 1[18], opn 1 Jan 2007]

SECTION 80AC GENERALLY [11,640AC.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. _____________________

[11,645] Order to disclose information or publish advertisement 80A

[s 80A rep Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001] SECTION 80A GENERALLY

[11,645.5] Overview The section was repealed by the Trade Practices Amendment Act (No 1) 2001. The court now has the power to make a nonpunitive order under s 86C and an adverse publicity order under s 86D. _____________________

[11,647] Section 75AU contraventions — orders limiting prices or requiring refunds of money

80B

[s 80B rep Act 111 of 2009 s 3 and Sch 1[40], opn 17 Nov 2009]

[11,650] Divestiture where merger contravenes section 50 or 50A 81 (1) The Court may, on the application of the Commission or any other person, if it finds, or has in another proceeding instituted under this Part found, that a person has contravened section 50, by order, give directions for the purpose of securing the disposal by the person of all or any of the shares or assets acquired in contravention of that section. [subs (1) am Act 88 of 1976 s 18 and Sch; Act 17 of 1986 s 51; Act 88 of 1995 s 63]

*(1A) Where: *Editor’s note: Section 21 of Act 222 of 1992 provides as follows: Application of the merger amendments 21 (1) Subject to this section, the merger amendments apply to any acquisition that happens after the commencement of this Act.

[page 649] (a) the Court finds, in a proceeding instituted under this Part, that a person (in this subsection referred to as the acquirer) has acquired shares in the capital of a body corporate or any assets of a person in contravention of section 50; (b) the Court finds, whether in that proceeding or any other proceeding instituted under this Part, that the person (in this section referred to as the vendor) from whom the acquirer acquired those shares or those assets, as the case may be, was involved in the contravention; and (c) at the time when the finding referred to in paragraph (b) is made, any of those shares or those assets, as the case may be, are vested in the acquirer or, if the acquirer is a body corporate, in any body corporate that is related to the acquirer;

the Court may, on the application of the Commission, declare that the acquisition, in so far as it relates to the shares or assets referred to in paragraph (c), is void as from the day on which it took place and, where the Court makes such a declaration: (d) the shares or the assets to which the declaration relates shall be deemed not to have been disposed of by the vendor; and (e) the vendor shall refund to the acquirer any amount paid to the vendor in respect of the acquisition of the shares or assets to which the declaration relates. [subs (1A) insrt Act 17 of 1986 s 51; am Act 222 of 1992 s 12; Act 88 of 1995 s 63]

*(1B) Where a declaration has been made under subsection 50A(1) in relation to the obtaining of a controlling interest in a corporation, or in each of 2 or more corporations, the Court may, on the application of the Minister or the Commission, if it finds, or has in a proceeding instituted under section 80 found, that that corporation, or any of those corporations, as the case may be (in this subsection referred to as the relevant corporation), has contravened subsection 50A(6), by order, for the purpose of ensuring that the obtaining of that controlling interest ceases to have the result referred to in paragraph 50A(1)(a), direct the relevant corporation to dispose of such of its assets as are specified in the order within such period as is so specified. [subs (1B) insrt Act 17 of 1986 s 51; am Act 222 of 1992 s 12]

(1C) Where an application is made to the Court for an order under subsection (1) or a declaration under subsection (1A), the Court may, instead of making an order under subsection (1) for the purpose of securing the disposal by a person of shares or assets or an order under subsection (1A) that the acquisition by a person of shares or assets is (2) If at the commencement of this Act a proposed acquisition was the subject of any court proceedings under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to the following acquisitions as if the merger amendments had not been made: (a) the proposed acquisition; (b) any acquisition of the same shares or assets by a body corporate that, at the commencement of this Act, was related (within the meaning of the Principal Act) to a body corporate that was a party to the court proceedings. (3) If, on 4 November 1992, a proposed acquisition was the subject of an application for an authorisation under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to that acquisition as if the merger

amendments had not been made. (4) In this section, merger amendments means the amendments made by sections 2, 3, 6, 7, 12, 14, 15 and 17 of this Act. * See Editor’s note to subs (1A).

[page 650] void, accept, upon such conditions (if any) as the Court thinks fit, an undertaking by the person to dispose of other shares or assets owned by the person. [subs (1C) insrt Act 17 of 1986 s 51]

(2) An application under subsection (1), (1A) or (1B) may be made at any time within 3 years after the date on which the contravention occurred. [subs (2) am Act 17 of 1986 s 51]

(3) Where an application for directions under subsection (1) or for a declaration under subsection (1A) has been made, whether before or after the commencement of this subsection, the Court may, if the Court determines it to be appropriate, give directions or make a declaration by consent of all the parties to the proceedings, whether or not the Court has made the findings referred to in subsections (1) and (1A). [subs (3) insrt Act 17 of 1986 s 51] [s 81 subst Act 81 of 1977 s 50; am Act 131 of 2006 s 3 and Sch 1[19], opn 1 Jan 2007]

SECTION 81 GENERALLY [11,650.1] Constitutional validity of s 81 Section 81(1) and (1A) are each a valid exercise of the Commonwealth’s power. These subsections do not constitute an acquisition of property contrary to s 51(xxxi) of the Constitution. Nor are the subsections invalid as conferring upon a court constituted under Ch III of the Constitution powers which are not of a judicial character: WSGAL Pty Ltd v Trade Practices Commission (1994) 122 ALR 673; (1994) ATPR ¶41-314. [11,650.5] Form of order In Trade Practices Commission v Australia Meat Holdings Pty Ltd (1988) 83 ALR 299; (1988) ATPR ¶40-876 Wilcox J

found that Australia Meat Holdings was in a position to dominate the market for cattle in northern Queensland as a result of its acquisition of Thomas Borthwick & Sons (A’asia) Ltd. Wilcox J made orders, inter alia, requiring Australia Meat Holdings Pty Ltd to find a suitable purchaser of its shares in Thomas Borthwick & Sons (A’asia) Ltd within the period of two months. In the appeal (Australia Meat Holdings Pty Ltd v Trade Practices Commission (1989) ATPR ¶40-932 at 50,094) Davies J held that, provided a matter is within the ambit of the dispute before it, the Federal Court may formulate an order in such a manner as it sees fit including the making of conditional orders of the type made by Wilcox J. An application for divestiture cannot arise until the acquisition in contravention of s 50 has taken place: Trade Practices Commission v Santos Ltd (1992) 38 FCR 382; 110 ALR 517; (1992) ATPR ¶41-195 at 40,632. [11,650.10] Section 81(1C) In Australia Meat Holdings Pty Ltd v Trade Practices Commission (1989) ATPR ¶40-932 at 50,101, Sheppard J made the following observation on the operation of s 81(1C): When one comes to s 81(1C), the draughtsman speaks of “the purpose of securing the disposal by a person of shares or assets”, and empowers the court to accept an undertaking by the person “to dispose of other shares or assets owned by the person” … it may be that if the acquisition which is proscribed is of shares, the court’s power under s 81(1C) is to accept only an undertaking involving the person giving it in an obligation to dispose of shares other than those acquired pursuant to the proscribed transaction. Likewise, if the contravention of s 50 occurs because of the acquisition of assets, s 81(1C) empowers the court only to accept an undertaking obliging the person involved in the contravention to dispose of assets not acquired as a result of the impugned transaction.

[page 651]

[11,650A] Divestiture where merger done under clearance or authorisation granted on false etc information 81A (1) Circumstances when this section applies This section applies if the Court is satisfied that: (a) a person (the acquirer) has acquired shares in the capital of a body corporate or assets of another person; and (b) before the acquisition, the acquirer was granted, under Division 3 of Part VII (mergers), a clearance or an authorisation for the acquisition on the basis of information that was false or misleading in a material particular; and (c) that information was provided by the acquirer or a body corporate that was related to the acquirer; and (d) the Court or another court has found that the acquirer or related body corporate has contravened section 95AZN or Part 7.4 of the Criminal Code by giving that information; and (e) if that information had not been given, the clearance or authorisation would not have been granted; and (f) apart from the clearance or authorisation, the acquisition would have contravened section 50; and (g) any or all of those shares or assets are vested in the acquirer, the related body corporate or any other body corporate that is related to the acquirer. (2) Divestiture by the acquirer and related bodies corporate The Court may, on the application of the Commission, by order, give directions for the purpose of securing the disposal of all or any of those shares or assets by the acquirer, the related body corporate or any other body corporate that is related to the acquirer. (3) However, the Court must not make an order under subsection (2) if:

the acquirer was granted, under Division 3 of Part VII, both a (a) clearance and an authorisation for the acquisition; and (b) the matters in subsection (1) are not satisfied in relation to both the clearance and the authorisation. Example: If a clearance for an acquisition was granted by the Commission on the basis of false or misleading information, and an authorisation for the acquisition was granted by the Tribunal on the basis of true information, then the Court cannot make an order under subsection (2) because subsection (1) would not be satisfied in relation to the authorisation. (4) Declaration that acquisition void — when vendor involved In addition to being satisfied of the matters in subsection (1), if the Court, or another court, has found that the person (the vendor) from whom the acquirer acquired the shares or assets was involved in the contravention referred to in paragraph (1)(d), then the Court may, on the application of the Commission, by order, declare that the acquisition, in so far as it relates to those shares or assets, is void as from the day on which it occurred. (5) If the Court makes an order under subsection (4), then: (a) the shares or assets to which the declaration relates are taken not to have been disposed of by the vendor; and (b) the vendor must refund to the acquirer any amount paid to the vendor for acquiring the shares or assets. (6) However, the Court must not make an order under subsection (4) if: [page 652] (a) the acquirer was granted, under Division 3 of Part VII, both a clearance and an authorisation for the acquisition; and (b) the matters in subsections (1) and (4) are not satisfied in relation to both the clearance and the authorisation. (7) Alternative to orders under subsections (2) and (4) If an application is made to the Court for an order under subsection (2) or (4) against a person, the Court may, instead of making an order of the kind mentioned in that

subsection, accept, upon such conditions (if any) as the Court thinks fit, an undertaking by the person to dispose of other shares or assets owned by the person. (8) When application for orders under this section must be made An application under subsection (2) or (4) may be made at any time within 3 years after the day on which the acquisition occurred. (9) Court may make orders even if not satisfied of all matters If an application for an order under subsection (2) or (4) is made, the Court may, if the Court determines it to be appropriate, make an order by consent of all the parties to the proceedings, whether or not the Court is satisfied of: (a) for an order under subsection (2) — the matters in subsection (1); and (b) for an order under subsection (4) — the matters in subsection (1) and (4). [s 81A insrt Act 131 of 2006 s 3 and Sch 1[19], opn 1 Jan 2007]

SECTION 81A GENERALLY [11,650A.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. _____________________

[11,655]

Actions for damages

82 (1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or IVB, or of section 55B, 60C or 60K, may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention. [subs (1) am Act 36 of 1998 s 3 and Schs 1, 2; Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001; Act 11 of 2006 s 3 and Sch 1, opn 20 Apr 2006; Act 103 of 2010 s 3 and Sch 5[64] and [65], opn 1 Jan 2011; Act 83 of 2014 s 3 and Sch 2 item 12, opn 18 July 2014; Act 9 of 2016 s 3 and Sch 1 item 9, opn 25 Feb 2016]

(1AAA) [subs (1AAA) rep Act 103 of 2010 s 3 and Sch 5[66], opn 1 Jan 2011] (1AAB) [subs (1AAB) rep Act 103 of 2010 s 3 and Sch 5[66], opn 1 Jan

2011] (1AA) [subs (1AA) rep Act 103 of 2010 s 3 and Sch 5[66], opn 1 Jan 2011] (1B) [subs (1B) rep Act 103 of 2010 s 3 and Sch 5[66], opn 1 Jan 2011] (2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued. [subs (2) am Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001; Act 103 of 2010 s 3 and Sch 5[67], opn 1 Jan 2011]

(3) [subs (3) rep Act 103 of 2010 s 3 and Sch 5[68], opn 1 Jan 2011] [s 82 subst Act 81 of 1977 s 50] SECTION 82 GENERALLY [11,655.5] Overview Prior to the commencement of the Australian Consumer Law (see [14,500.5]), s 82 applied to the recovery of damages under a number of parts of the Act, including the consumer protection provisions in Part V. [page 653] The section was amended in 2001 by the Trade Practices Amendment Act (No 1) 2001 to permit a person to recover damages resulting from a contravention of Pt IVA on unconscionable conduct, in addition to the right to seek injunctive relief under s 80 and other orders under s 87. The amendment was consistent with the recommendations of the Australian Law Reform Commission in its report Compliance with the Trade Practices Act 1974, Report No 68, 1994. The Trade Practices Amendment (Personal Injuries and Death) Act 2006 inserted provisions in ss 82 and 87 that prohibited the recovery of damages based on conduct that contravenes Pt V Div 1 (unfair practices) [now repealed: see ACL Pt 4-1] where the damages resulted from death or personal injury. This complemented the amendments made by the Trade Practices Amendment (Personal Injuries and Death) Act (No 2) 2004 which inserted the rules in Pt VIB relating to limitations on damages for personal injuries

from actions under other parts of the Act. As a result of the commencement of the Australian Consumer Law, s 82 is now limited to the recovery of loss or damage arising from a contravention of Pts IV or IVB. The person may recover damages from the primary contravenor or from any person involved in the contravention within the meaning of s 75B. An equivalent provision applies to the recovery of damages under the Australian Consumer Law. See [14,500.5] and Sch 2 to the Act (s 236). [11,655.6] Constitutional validity of s 82 Section 82(1) is a valid exercise of the corporations power in s 51(xx) of the Constitution. See Fencott v Muller (1983) 152 CLR 570; 46 ALR 41; 57 ALJR 317; (1983) ATPR ¶40-350; Wan v McDonald (1992) 105 ALR 473; (1992) ATPR ¶46088. [11,655.8] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. [11,655.10] Jurisdiction of the court Section 86 confers on the Federal Court jurisdiction in any matter arising under the Act in respect of which a civil proceeding has been instituted. In general, the Federal Court has no jurisdiction to deal with claims arising exclusively from a term implied by the Act. This is because of breach of a condition implied by the Act does not amount to a contravention of the Act and does not give rise to damages under s 82: E v Australian Red Cross Society (1991) 27 FCR 310; 99 ALR 601; (1991) ATPR ¶41-085 at 52,361. Rather the appropriate remedy is to sue for breach of the implied condition. Such an action, being contractual in nature, may be brought in a state court: Zalai v Col Crawford (Retail) Pty Ltd (1980) 32 ALR 187; (1980) ATPR ¶40-177; Arturi v Zupps Motors Pty Ltd (1980) ATPR ¶40-189. However, the Federal Court will have jurisdiction where the action based on an implied term arises out of the same matter as an action brought under some other provision of the Act: Fencott v Muller (1983) 152 CLR 570; 46 ALR 41; (1983) ATPR ¶40-350; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; 49 ALR 193; 1 IPR 193. See [11,695.10].

[11,655.13] “person” In Pritchard v Racecage Pty Ltd (1996) 64 FCR 96; 135 ALR 717; (1996) ATPR ¶41-477 O’Loughlin J said that the word “person” where used in ss 82 and 87 does not extend to or include the estate of a deceased person or the representative of that estate. [11,655.15] Loss or damage necessary Section 82 identifies the classes of applicants and respondents in the action as well as identifying loss or damage. Loss or damage is an essential ingredient of an action under s 82 as well as marking up the measure of damages of what is recoverable under that section: Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274; 84 ALR 700; (1989) ATPR ¶40-926 at 50,037; JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237; (1993) ATPR ¶41-257 at 41,468; Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410; 75 ALR 271; (1987) ATPR ¶40-795 at 48,676–7; Sellars v Adelaide Petroleum NL (1994) 120 ALR 16; (1994) ATPR ¶41-301 at 42,000; Pricom Pty Ltd v Sgarioto (1994) ATPR ¶41-365 at 42,741; Figgins Holdings Pty Ltd v Commonwealth Bank of Australia [page 654] (1995) ATPR ¶41-382; Voss Real Estate v Schreiner (1998) ATPR ¶41-627 at 40,885; Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39; BC200801968 at [99] per Campbell JA (McColl JA and Handley AJA agreeing). An applicant may only recover compensation for actual loss or damage incurred as distinct from potential or likely damage: Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2), above, ATPR at 48,676–7; Sellars v Adelaide Petroleum NL (1994) 120 ALR 16; (1994) ATPR ¶41-301 at 42,000; Colliers Jardine (NSW) Pty Ltd v Balog Investments Pty Ltd (1995) ATPR (Digest) ¶46-140; Leitch v Natwest Australia Bank Ltd (1995) ATPR (Digest) ¶46-153 at 53,189; Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) ATPR ¶41-711 per Gaudron J at 43,128. It has been suggested that the essential ingredient in the cause of action is not the non-attainment of a benefit or the non-realisation of a profit but the incurring of loss or damage: Shepherd v Noyes Brothers Pty Ltd (1985) ATPR ¶40-588 per Spender J at 46,750. However, the loss of a commercial

opportunity may be a loss which has some present value which would therefore be compensable: Sellars v Adelaide Petroleum NL (1994) 120 ALR 16; (1994) ATPR ¶41-301 at 42,004. See [11,655.25]; Voss Real Estate v Schreiner (1998) ATPR ¶41-627. [11,655.20] Causation and reliance An applicant under s 82 must show that he or she suffered loss or damage “by” the conduct of another person that constitutes a contravention of Pt IV of the Act: Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd (1988) 20 FCR 164; 84 ALR 734; Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR ¶40-950; Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526; 109 ALR 635; (1992) ATPR ¶41186 at 40,545; Hosmer Holdings Pty Ltd v CAJ Investments Pty Ltd (1995) 57 FCR 45 at 65; (1995) ATPR ¶41-407; Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [3144] per Sackville J. Causation The preposition “by” has been interpreted to mean “by reason of” or “as a result of”. This makes it clear that it is only loss or damage that is caused by the contravening conduct which can be recovered under s 82: Shepherd v Noyes Brothers Pty Ltd (1985) ATPR ¶40-588 at 46,750; Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274; 84 ALR 700; (1989) ATPR ¶40-926 at 50,037; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247; (1992) ATPR ¶41-189 at 40,571; Tefbao Pty Ltd v Stannic Securities Pty Ltd (1993) 118 ALR 565; (1994) ATPR (Digest) ¶46-114 at 53,532; Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1994) ATPR ¶41-315; Tubby Trout Pty Ltd v Sailbay Pty Ltd (1994) ATPR (Digest) ¶46-120 at 53,561; Sellars v Adelaide Petroleum NL (1994) 120 ALR 16; (1994) ATPR ¶41-301 at 42,000; Hosmer Holdings Pty Ltd v CAJ Investments Pty Ltd, above, FCR at 65; Metcalfe v NZI Securities Australia Ltd (1995) ATPR ¶41-418 at 40,696; Sullivan v Macquarie Pathology Services Pty Ltd (1995) ATPR (Digest) ¶46-143 at 53,132; Major Mining Ltd v State Bank of New South Wales (FCA, Moore J, No NG 294/93, 21 September 1995, unreported, BC9502816) at 48-9; Abram v Bank of New Zealand (1996) ATPR ¶41-470; (appeal) Abram v Bank of New Zealand (1996) ATPR ¶41-507; Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1996) ATPR ¶41-460 at 41,609; Australian Protective Electronics Pty Ltd v Pabflow Pty Ltd (1996) ATPR ¶41-524; O’Hara v Williams (1996)

ATPR (Digest) ¶46-156; Baillieu Frank (Gold Coast) Pty Ltd v Susan Pender Jewellery Pty Ltd (1997) ATPR ¶41-542; Nagy v Masters Dairy Ltd (1997) ATPR (Digest) ¶46-164; (appeal) Masters Dairy Ltd v Nagy (1998) ATPR ¶41-651; Eatten’s Pty Ltd v JLW(NSW) Pty Ltd (1998) ATPR ¶41-619; McCarthy v McIntyre [1999] FCA 784; BC9903163; Fried v Dixie Holdings Pty Ltd [2000] FCA 1048; BC200004338; Council of the Shire of Noosa v JE Farr Pty Ltd [2001] QSC 060; BC200100843; Seeley International Pty Ltd v Newtronics Pty Ltd [2001] FCA 1862; BC200108270 at [272] per O’Loughlin J; Digi-Tech (Aust) Ltd v Brand [2004] NSWCA 58; BC200401385 at [159] per Sheller, Ipp and McColl JJA; Havyn Pty Ltd v Webster (2005) ASAL ¶55-143; [2005] NSWCA 182; BC200503459 at [116] per Santow JA (Tobias JA and Brownie AJA agreeing); Berryman v Hames Sharley (WA) Pty Ltd [2008] WASC 59; BC200802786 at [573] per Hasluck J; Campbell v BackOffice Investments Pty Ltd (2008) 66 ACSR 359; [2008] NSWCA 95; BC200803587 at [37] per Gyles JA; see Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd (No 2) [2008] FCA 1480; [page 655] BC200808721 at [114] per Flick J; Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 9) [2010] WASC 44; BC201001103 at [600] per Murray J; Moss v Lowe Hunt & Partners Pty Ltd [2010] FCA 1181; BC201008136 at [87] per Katzmann J; Lee v Westpac Banking Corp [2012] NSWSC 899; BC201206333 per Harrison AsJ; Tomasetti v Brailey [2013] NSWSC 1282; BC201312734 per R A Hulme J. That is, there must be a causal connection between the conduct and the loss for which the applicant seeks to be compensated: Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; 158 ALR 333; 73 ALJR 12; (1998) ATPR ¶41-665; Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545; (1999) ATPR ¶41-687; Sykes v Reserve Bank of Australia (1998) 88 FCR 511; 158 ALR 710; (1999) ATPR ¶41-699. See also Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23; (1981) ATPR ¶40-226; Hubbards Pty Ltd v Simpson Ltd (1982) 41 ALR 509; 60 FLR 430; (1982) ATPR ¶40-295; Western Australia v Bond Corp Holdings Ltd (1991) ASC ¶56-060; (1991) ATPR ¶41-095 at 52,529; Hellyer Drilling Co v MacDonald

Hamilton & Co Pty Ltd (1983) 51 ALR 177; (1983) ATPR ¶40-414 at 44,826; I-Achieve Technology Ltd v Sojo (NSW) Pty Ltd [2001] NSWSC 16; BC200100075; Semrani v Manoun [2001] NSWCA 337; BC200105980 at [47] per Beazley JA; see Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) [2006] NSWCA 282; BC200608430 at [54] per Beazley JA (Ipp and Tobias JJA agreeing); HIH Insurance Ltd (in liq) v Adler [2007] NSWSC 633; BC200704793 at [69] per Einstein J; MWH Australia Pty Ltd v Wynton Stone Australia Pty Ltd (In Liq) [2010] VSCA 245; BC201006926 per Warren CJ, Buchanan and Nettle JJA; Bullabidgee Pty Ltd v McClear [2011] NSWCA 259; BC201106778 at [66] per Allsop J (Basten JA and Young JA agreeing): Lee v Westpac Banking Corp [2012] NSWSC 899; BC201206333 per Harrison AsJ; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2012] VSC 239; BC201203953 per Croft J. Causation is a question of fact to be determined by reference to common sense and experience, and one upon which policy considerations and value judgments necessarily enter: Havyn Pty Ltd v Webster, above, at [116] per Santow JA (Tobias JA and Brownie AJA agreeing); Crossman v Taylor (No 3) [2011] FCA 734; BC201104604 at [276] per Besanko J; De Bortoli Wines Pty Ltd v HIH Insurance Ltd [2011] FCA 645; BC201104314 per Stone J; Taylor v Crossman (No 2) (2012) 199 FCR 363; [2012] FCAFC 11; BC201200696 per Lander, Cowdroy and Flick JJ. Issues of causation involve normative considerations sometimes referred to as “values” or “policy”. However this does not invite judges to engage in value judgements at large — the relevant norms must be derived from legal principle: Travel Compensation Fund v Tambree (t/as R Tambree & Associates) (2005) 222 ALR 263; (2006) ATPR ¶42-094; [2005] HCA 69; BC200509705 at [28]–[29] (Tambree) per Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ. See Unit 11 Pty Ltd v Sharpe Partners Pty Ltd [2006] FCAFC 43; BC200601664 at [111] per Dowsett J; see Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206; BC200810804 per Giles, Hodgson and Ipp JJA. In Tambree, Gummow CJ said at [35] that the problem of causation is to be found, not in a value judgment, but in an accurate identification of the nature of the risk against which the appellant sought protection and of the loss it suffered, considered in light of the wrongful conduct engaged by the respondents. In Tambree, Kirby J at [55] agreed with Callinan J at [81] that the

approach to resolving issues of causation is as sated by Mason CJ in March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 515; 99 ALR 423 at 430; 12 MVR 353 at 359; BC9102636 (March v Stramare): Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact — to be determined by the application of the “but for” test — and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing: see, for example, Fleming, The Law of Torts, 7th ed (1987), pp 1723; Hart and Honoré, Causation in the Law, 2nd ed (1985), p 110. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments: see Fleming, p 173. However, this approach to the issue of causation (a) places rather too much weight on the ‘but for’ test to the exclusion of the ‘common sense’ approach which the common law has always favoured; and (b) implies, or [page 656] seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn (at 277): “it is all ultimately a matter of common sense” and “in truth the conception in question [ie, causation] is not susceptible of reduction to a satisfactory formula”: at 278.

In Tambree, Callinan J (referring to March v Stramare) said at [80]: With respect I agree with his Honour’s observations. It would be a delusion to think that a disputed question of causation can be resolved according to an invariable scientific formula, and without acknowledgment that common sense, that is, the sum of the tribunal’s experience as a tribunal, its constituents’ knowledge and understanding of human affairs, its knowledge of other cases and its assessment of the ways in which notional fair minded people might view the relevant events, is likely to influence the result. Of course it is possible to say, sometimes with force, that tribunals may on occasions tend to become remote from the community and its values, indeed that there is not a community value as such, but a multiplicity of community values, themselves shifting from time to time, and that one person’s common sense may sometimes be another’s nonsense. But all of that is to say no more than that perfect justice, the availability of a perfect test for liability, is beyond human reach. But tribunals of fact have to do the best they can. And that which has to be done is better done with candour, and candour demands the acknowledgment by any tribunal or any judge called upon to resolve a matter, of the use of his or her common sense in determining causation. Value judgments may sometimes be inescapably involved, but that they may, does not justify the division of the question into a “but for” test and a further inquiry whether a defendant should in law be held responsible for a plaintiff’s damage.

Multiple causes Section 82 is not restricted to loss of which the contravening conduct was the sole cause. It is sufficient to demonstrate that contravention of a relevant provision was a cause of the loss or damage: I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 192 ALR 1; [2002] HCA 41; BC200205780 at [57] per Gaudron, Gummow and Hayne JJ; at [33] per Gleeson J; Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding AG [2004] NSWSC 149; BC200401598 at [275] per Einstein J; Australian

Naturalcare Products Pty Ltd v McGrath [2006] FCA 1403; BC200608666 at [96] per Gyles J; Anya Holdings Pty Ltd v Idohage Pty Ltd [2006] FCA 1531; BC200609255 at [169] per Siopis J; Barcar Pty Ltd v Carpatsea Pty Ltd [2008] NSWSC 344; BC200802604 at [95] per Bergin J; Cloud Top Pty Ltd v Toma Services Pty Ltd [2008] NSWSC 568; BC200804579 at [100] per Einstein J; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364; BC200807885 at [570] per Collier J; Heritage Clothing Pty Ltd v Mens Suit Warehouse Direct Pty Ltd [2008] FCA 1775; BC200810535 at [64] per Heerey J; Lee v Westpac Banking Corp [2012] NSWSC 899; BC201206333 per Harrison AsJ; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2012] VSC 239; BC201203953 per Croft J; SPAR Licensing Pty Ltd v MIS QLD Pty Ltd (No 2) [2012] FCA 1116; BC201207987 per Griffiths J. It may be sufficient if the contravening conduct materially contributed to the loss or damage: Henville v Walker (2001) 182 ALR 37; (2001) ATPR ¶41-841 at 43,400; [2001] HCA 52; BC200105241; Manwelland Pty Ltd v Dames & Moore Pty Ltd (2001) ATPR ¶41-845; [2001] QCA 436; BC200106273 at [10] per McPherson J; MAM Mortgages Ltd (in liq) v Cameron Bros (a firm) [2002] QCA 330; BC200205060 at [9] per McPherson JA (Jerrard JA and White J agreeing); Reiffel v ACN 075 839 226 Ltd (2003) 45 ACSR 67; 21 ACLC 469; [2003] FCA 194; BC200300924 at [69] per Gyles J; Abigroup Contractors Pty Ltd v Sydney Catchment Authority (2004) 208 ALR 630; [2004] NSWCA 270; BC200404975 at [75] per Beazley J (Ipp and Tobias JJA agreeing); Havyn Pty Ltd v Webster, above, at [116] per Santow JA (Tobias JA and Brownie AJA agreeing); Colly Cotton Marketing Pty Ltd v Simmons [2006] NSWCA 134; BC200604063 at [160] per Giles JA (Spigelman CJ and McColl JA agreeing). [page 657] In determining the issue of causation the “but for” test is not appropriate. However the “but for” test applied in a common sense and not a pedantic way may still provide a useful approach to the issue of causation: McCarthy v McIntyre, above. Reliance The mere possibility that a misrepresentation might have induced a

course of action by the representee will never of itself attach liability under s 82 to the making of it: Ricochet Pty Ltd v Equity Trustees Executor and Agency Co Ltd (1993) 113 ALR 30; (1993) ATPR ¶41-236; Metcalfe v NZI Securities Australia Ltd (1995) ATPR ¶41-418 at 40,672; Marks v GIO Australia Holdings Ltd, above, ATPR at 41,412; Smith v State Bank of New South Wales Ltd (2001) ATPR ¶41-829; [2001] FCA 946; BC200103996 at [54] per Gray J. In Leo v Brambles Holdings Ltd (1982) 45 ALR 441; (1982) ATPR ¶40310 at 43,811 Fitzgerald J indicated that it may not be necessary for a party seeking damages under s 82 to show that the party seeking the damages relied on the conduct which constituted the contravention. In relation to contraventions of s 52 (see now ACL s 18) where the misleading conduct is constituted by misrepresentations, it has been held that acts done by the representee in reliance upon the misrepresentations amounts to a sufficient connection to satisfy the concept of causation: Sellars v Adelaide Petroleum NL (1994) 120 ALR 16; (1994) ATPR ¶41-301 at 42,000. It may be possible to establish a causal connection between the contravention and the loss of profit by the applicant without the need for showing such reliance. The question of whether the right of an applicant for damages under s 82 is confined to the case where the applicant has relied upon the conduct of the respondent which contravenes the relevant provision of the Act, was conclusively decided in Janssen-Cilag Pty Ltd v Pfizer Pty Ltd, above. In that case Lockhart J concluded that the entitlement to recover loss or damage under s 82 of the Act is not confined to persons who rely on the representations which constitute contraventions of the Act (at 40,551). In the course of that conclusion Lockhart J distinguished the decisions of Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd, above; Pappas v Soulac Pty Ltd (1983) 50 ALR 231; (1983) ATPR ¶40-411; Jones v Acfold Investments Pty Ltd (1985) ATPR ¶40-561; Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193; (1987) ATPR (Digest) ¶46-030; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83; (1988) ATPR ¶40-850. Lockhart J also considered the decision of Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) ATPR ¶41-017 and suggested that if that case supported the proposition that a sufficient nexus between the respondent’s conduct and the applicant’s damage may be found only in circumstances where the applicant relies upon the conduct, then he would

disagree with that conclusion (at 40,549); Montana Tyres Rims & Tubes Pty Ltd v Transport Tyre Sales Pty Ltd (1998) 155 ALR 489; (1998) AIPC ¶91427. In Haynes v Top Slice Deli Pty Ltd (1995) ATPR (Digest) ¶46-147 at 53,151 Einfeld J said that the conclusion in Janssen-Cilag Pty Ltd v Pfizer Pty Ltd, above, must, at least in the area of misleading advertising, be correct: see Gaffikin Marine Pty Ltd v Princes Street Marina Pty Ltd (1995) 17 ACSR 495; 13 ACLR 991; (1995) ATPR (Digest) ¶46-149 at 53,165; O’Hara v Williams (1996) ATPR (Digest) ¶46-156; Susan Pendler Jewellery Pty Ltd v Mirage (Operations) Pty Ltd (FCA, Spender J, 5 August 1996, unreported); McCarthy v McIntyre, above; Transport Tyre Sales Pty Ltd v Montana Tyres Rims & Tubes Pty Ltd (1999) 162 ALR 175; Hampic Pty Ltd v Adams (2000) ATPR ¶41-737; [1999] NSWCA 455; BC9908428; Lactos Fresh Pty Ltd v Finishing Services Pty Ltd [2006] FCA 219; BC200601214 at [164] per Weinberg J; Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2006] FCAFC 177; BC200610144 at [31] per Kiefel, Sundberg and Edmonds JJ; Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158; BC200601999 at [109] per White J. See Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2009] FCA 678; BC200905445 per Gray J. It might also be the case that reliance of a third person will be sufficient for causation in other circumstances: see Lawson Hill Estate Pty Ltd v Tovegold Pty Ltd [2004] FCA 1593; BC200408492 at [132] per Wilcox J. See Perpetual Trustee Company Ltd v Ishak [2012] NSWSC 697; BC201204803 per Brereton J. However, as Einfeld J in Haynes v Top Slice Deli Pty Ltd, [page 658] above, pointed out, the comments of Lockhart J in the Janssen-Cilag case should not be seen as an abandonment of the requisite element of directness or proximity necessary to constitute causation at law: “Justice Lockhart’s recognition that there is no absolute requirement for reliance on the part of the applicant was in no sense an abandonment of the considerations of proximity or directness that lie behind reliance and have made it a decisive factor in the majority of cases. His Honour clearly recognised that, although reliance by the applicant is not a necessary element of section 82, all

applicants retained the onus of proving the requisite element of directness or proximity necessary to constitute causation at law”: Haynes v Top Slice Deli Pty Ltd, above, at 53,152. Other operative causes may not necessarily be fatal to the applicant’s recovery, provided the conduct continued to be operative: Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410; 75 ALR 271; (1987) ATPR ¶40-795 at 48,677; Milner v Delita Pty Ltd (1985) 9 FCR 299; 61 ALR 557; (1986) ATPR (Digest) ¶46-003; Tefbao Pty Ltd v Stannic Securities Pty Ltd (1993) 118 ALR 565; (1994) ATPR (Digest) ¶46114 at 53,532; Argy v Blunts (1990) 26 FCR 112; 94 ALR 719; (1990) ATPR ¶41-015 at 51,280–2; Consolidated Bearing Co (SA) Pty Ltd v Molnar Engineering Pty Ltd (1994) ATPR (Digest) ¶46-122 at 53,592; Pricom Pty Ltd v Sgarioto (1994) ATPR ¶41-365 at 42,742; Metcalfe v NZI Securities Australia Ltd (1995) ATPR ¶41-418; Leda Holdings Ltd v Oraka Pty Ltd (1998) ATPR ¶41-601; Henville v Walker, above, at [14] per Gleeson CJ, at [109] per McHugh J, at [163] per Hayne J; Manwelland Pty Ltd v Dames & Moore Pty Ltd (2001) ATPR ¶41-845; [2001] QCA 436; BC200106273; Overlook Management BV v Foxtel Management Pty Ltd (2002) ATPR (Digest) ¶46-219; [2002] NSWSC 17; BC200200108 at [95] per Barrett J; Australian Competition and Consumer Commission v Black on White Pty Ltd [2002] FCA 739; BC200203115 at [3] per Spender J; Fico v O’Leary (2004) ATPR (Digest) ¶46-259; [2004] WASC 215; BC200406677 at [201] per EM Heenan J; De Bortoli Wines Pty Ltd v HIH Insurance Ltd [2011] FCA 645; BC201104314 per Stone J. However, where there are a number of other causes, the court will need to consider whether those other causes resulted in the loss. In Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2), above, ALR at 280-1; ATPR at 48,676–7 Gummow J explained this concept as follows: [It] may be that, whilst the facts constituting the contravention of a provision of Pt IV or V of the Trade Practices Act are, with other causes, necessary preconditions of the “loss or damage”, in the circumstances of the particular case it is those other causes which are properly to be treated as the real, essential, substantial, direct or effective cause of the loss . . . Such a case might arise for consideration where those other causes involve acts or omissions on the part of the applicant, which were in breach of a legal, equitable or other statutory duty owed by the applicant to the respondent or the third party. In such a case the court might treat those other causes as the essential or effective cause of the loss or damage and hold there was no right to damages under s 82. A question might then arise as to whether some more limited relief under some other provision of Pt VI was appropriate.

A misrepresentation is actionable regardless of whether it is the only

representation influencing the mind of the applicant. Where a number of factors induce a decision that produces a loss, the ultimate question of causation will be an issue of judgment: Ricochet Pty Ltd v Equity Trustees Executor and Agency Co Ltd (1993) 113 ALR 30; (1993) ATPR ¶41-236. See also Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2), above, FCR at 418-19; Tambree at [32] per Gleeson CJ, Gummow, Kirby, Hayne and Callinan J; Cauvin v Philip Morris Ltd [2006] NSWSC 185; BC200602018 at [20] per Bell J. See Hay v Victorian Securities Corp (2010) 241 FLR 335; [2010] VSCA 247; BC201006975 at [2] per Neave JA (Ashley JA and Hansen JA agreeing). [11,655.21] Remoteness of damage The wording of s 82 might suggest that common law concepts of remoteness may be applicable or are at least relevant: Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274; 84 ALR 700; (1989) ATPR ¶40-926 at 50,037; Tefbao Pty Ltd v Stannic Securities Pty Ltd (1993) 118 ALR 565; (1994) ATPR (Digest) ¶46-114 at 53,532; Paper [page 659] Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1994) ATPR ¶41-315; Cameron v Qantas Airways Ltd (1995) ATPR ¶41-417 at 40,640; (appeal) Qantas Airways Ltd v Cameron (1996) ATPR ¶41-530; Henville v Walker (2001) 182 ALR 37; (2001) ATPR ¶41-841; [2001] HCA 52; BC200105241 at [136] per McHugh J; Fico v O’Leary (2004) ATPR (Digest) ¶46-259; [2004] WASC 215; BC200406677 at [202] per EM Heenan J. In Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526; 109 ALR 635; (1992) ATPR ¶41-186 at 40,547 Lockhart J said that where a corporation engages in conduct which misleads consumers, the natural and direct result of which is to cause the public to buy more of that trader’s product and less of a rival trader’s product, the loss to the rival is direct and immediate; it is not remote or indirect. However as the majority of the High Court observed in Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; 158 ALR 333; 73 ALJR 12; (1998) ATPR ¶41-665 at 41,410, s 82 contains no stated limitation that some kinds of loss or damage are to be regarded as too remote to be recovered.

However, it has been said that liability under s 52 (see now ACL s 18) is limited neither by foreseeability nor remoteness: Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) ATPR ¶41-711 at 43,130; Henville v Walker, above, at [66] per Gaudron J; Crossman v Taylor (No 3) [2011] FCA 734; BC201104604 at [278] per Besanko J; Taylor v Crossman (No 2) (2012) 199 FCR 363; [2012] FCAFC 11; BC201200696 per Lander, Cowdroy and Flick JJ. [11,655.22] Contributory negligence As indicated at [11,655.5], as a result of the commencement of the Australian Consumer Law, s 82 is now limited to the recovery of loss or damage arising from a contravention of Pts IV or IVB. Prior to that s 82 also applied to damages for misleading and deceptive conduct under s 52 of the Act (now s 18 ACL). Prior to the Australian Consumer Law a number of decisions applying to the former s 52 considered whether damages should be reduced under s 82 as a result of the actions of the claimant. In Argy v Blunts (1990) 26 FCR 112; 94 ALR 719; (1990) ATPR ¶41-015 at 51,281 Hill J suggested that there may be circumstances where an applicant is so negligent in protecting his or her own interests that the element of causation between misrepresentation and damage will be severed by the intervention of the applicant’s negligence. Also Garvey v Vamamu Pty Ltd (1988) ATPR ¶41-656; Sykes v Reserve Bank of Australia (1998) 88 FCR 511; 158 ALR 710; (1999) ATPR ¶41-699; Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2006] FCAFC 177; BC200610144 at [33] per Kiefel, Sundberg and Edmonds JJ. Generally though, the causal link will not be broken because of a failure on the part of the applicant to take reasonable care: Neilsen v Hempston Holdings Pty Ltd (1986) ATPR ¶40-686; Consolidated Bearing Co (SA) Pty Ltd v Molnar Engineering Pty Ltd (1994) ATPR (Digest) ¶46-122 at 53,592; Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1996) ATPR ¶41460 at 41,611; O’Hara v Williams (1996) ATPR (Digest) ¶46-156; Hill v Tooth & Co Ltd (1998) ATPR ¶41-649. In Antoniou v Karedis Enterprises Pty Ltd (1995) ATPR ¶41-400 at 40,421 Einfeld J expressed concern that although damages under the Act are largely assimilated to damages in tort, one of the elements bearing on the assessment, namely contributory negligence is not available. This concern was voiced again by Einfeld J in Haynes v Top Slice Deli Pty Ltd (1995) ATPR (Digest) ¶46-147 at 53,153.

Even if there are cases where the claimants own negligence or unreasonable behaviour may be relevant to indicating that a misrepresentation did not in fact cause the loss, this is not to say that a foolish or naive person may not recover damages under s 82 upon being induced by a representation that no normal person would have taken seriously: Sullivan v Macquarie Pathology Services Pty Ltd (1995) ATPR (Digest) ¶46-143 at 53,132. See also Sutton v AJ Thompson Pty Ltd (in liq) (1987) 73 ALR 233; (1987) ATPR ¶40-789. In Antoniou v Karedis Enterprises Pty Ltd (1995) ATPR ¶41-400 at 40,421 Einfeld J expressed concern that although damages under the Act are largely assimilated to damages in tort, one of the elements bearing on the assessment, namely contributory negligence is not available. This concern was voiced again by Einfeld J in Haynes v Top Slice Deli Pty Ltd (1995) ATPR (Digest) ¶46-147 at 53,154 at 53,153. [page 660] However, in Henville v Walker (2001) 182 ALR 37; (2001) ATPR ¶41841; [2001] HCA 52; BC200105241 at [140] McHugh J said that there is no ground for reading into s 82 doctrines of contributory negligence. It is said to follow from Henville v Walker that there is nothing in s 82(1), in other provisions of the Act or in the policy of the Act to suggest that a claimant’s carelessness may be taken into account to reduce the amount of the loss or damage which the claimant is entitled to recover under s 82(1): I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 192 ALR 1; [2002] HCA 41; BC200205780 at [50] per Gaudron, Gummow and Hayne JJ; at [69] per McHugh J; Fico v O’Leary (2004) ATPR (Digest) ¶46-259; [2004] WASC 215; BC200406677 at [205] per EM Heenan J; Havyn Pty Ltd v Webster (2005) ASAL ¶55-143; [2005] NSWCA 182; BC200503459 at [116] per Santow JA (Tobias JA and Brownie AJA agreeing); Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216; BC200706483 at [6] per Middleton J; WP Kidd Pty Ltd v Panwell Pty Ltd [2007] QSC 373; BC200711094 at [150] per McMeekin J; see Driver Recruitment Pty Ltd v Wedeco AVP Pty Ltd [2008] NSWCA 290; BC200809876 at [63] per Giles, Hodgson and Bell JA; Zhang v VP302 SPV Pty Ltd (2009) 223 FLR 213; [2009] NSWSC 73; BC200900869 at [108] per

White J; BMW Australia Finance Ltd v Miller & Associates Insurance Broking Pty Ltd [2009] VSCA 117; BC200904871 at [137] per Robson AJA. The position was altered in 2010 with the insertion of s 82(1B) by the Corporate Law Economic Reform (Audit and Corporate Disclosure) Act 2004. Section 82(1B) permitted damages to be reduced as a result of the claimant’s own failure to act reasonably. Section 82(1B) was repealed on the commencement of the Australian Consumer Law by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 No 103. Similar, though not identical provisions to s 82(1B), were inserted in Pt XI of the Act on the commencement of the Australian Consumer Law. See s 137A and s 137B. [11,655.25] Measure of damages There are no express provisions in s 82 which provide guidance to the court in assessing the amount of any loss or damage suffered by an applicant. Neither is there any requirement that the words “loss or damage” be given anything other than their ordinary meaning or be restricted by common law conceptions as to the nature and extent of damages recoverable: Aristotite v Gladstone Park Shopping Centre Pty Ltd (1983) 71 FLR 276; (1983) ATPR ¶40-370 at 44,412; McMahon v Pomeray Pty Ltd (1991) ATPR ¶41-125 at 52,858; Energex Ltd v Alstom Australia Ltd (2004) ATPR (Digest) ¶46-251; [2004] FCA 575; BC200402479 at [172] per Weinberg J; Havyn Pty Ltd v Webster (2005) ASAL ¶55-143; [2005] NSWCA 182; BC200503459 at [116] per Santow JA (Tobias JA and Brownie AJA agreeing). The expression “loss or damage” clearly contemplates economic and financial loss and is not restricted to physical injury to a person or property: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247; (1992) ATPR ¶41-189 at 40,571. The measure of damages under s 82 approximates the damages recoverable in tort and in most cases, especially those involving misleading or deceptive conduct and the making of false statements, the measure of damages in tort is appropriate: Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; 63 ALR 600; (1986) ATPR ¶40-666 at 47,368; Morgan Corporate Ltd v GWG Leviny Pty Ltd (1995) ATPR ¶41-414; Arbest Pty Ltd v State Bank of New South Wales (1996) ATPR ¶41-481. See also Brown v Jam Factory Pty Ltd (1981) 35 ALR 79; 53 FLR 340; (1981) ATPR ¶40-213; Hubbards Pty Ltd v Simpson Ltd (1982) 41 ALR 509; 60 FLR 430; (1982) ATPR ¶40-295;

Yorke v Ross Lucas Pty Ltd (1982) 45 ALR 299; Jacques v Cut Price Deli Pty Ltd (1993) ATPR (Digest) ¶46-102; (appeal) Cut Price Deli Pty Ltd v Jacques (1994) 49 FCR 397; (1994) ATPR (Digest) ¶46-128; Pricom Pty Ltd v Sgarioto (1994) ATPR ¶41-365 at 42,741; Sharp v Ramage (1995) ATPR ¶41-398 at 40,402; Ductile Pty Ltd v Arcric Investments Pty Ltd (1995) 32 IPR 419; Embo Holdings Pty Ltd v Camm (1998) ATPR (Digest) ¶46-184; Charter Pacific Corp Ltd v Belrida Enterprises Pty Ltd [2002] QSC 254; BC200205011 at [747] per Fryberg J; Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678; BC200509986 at [109] per Kenny J; Berryman v Hames Sharley (WA) Pty Ltd [2008] WASC 59; BC200802786 at [574] per Hasluck J; Campbell v BackOffice Investments Pty Ltd (2008) 66 ACSR 359; [2008] NSWCA 95; [page 661] BC200803587 at [152] per Gyles JA; Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [2014] VSCA 338; BC201411358 per Tate, Santamaria and Kyrou JJA; Williams v Pisano [2015] NSWCA 177; BC201505727 at [101] per Bathurst CJ, McColl JA and Emmett JA. For example, in Brown v Jam Factory Pty Ltd, above, FLR at 351, Fox J provided the following discussion as to the proper approach to the assessment of damages: The correct way to approach the assessment of damages in this case, in my view, is to compare the position in which the applicants might have been expected to be if the misleading conduct had not occurred with the situation they were in as a result of acting in reliance on that conduct (see Esso Petroleum Co Ltd v Mardon [1976] QB 801; [1976] 2 All ER 5). This is the same, or analogous to, the general principle respecting the measure of damages in tort. There was not anything promissory in statements relied upon and no basis exists for adopting the measure of damages applicable in contract. As an action based on s 52 is more appropriately classified as one of tort, it is possible that the measure of damages will always, fundamentally, be based on principles affecting torts.

In Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281; 131 ALR 363; (1995) ATPR ¶41-439 at 40,972 the High Court went further and suggested that the rules for assessing damages in tort are the appropriate guide in most if not all cases. See Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307; 147 ALR 568; (1998) ANZ Conv R 294; Radferry Pty Ltd v Starborne Holdings Pty Ltd (1999) ATPR (Digest) ¶46-189; Henville v Walker (2001) 182 ALR 37; (2001) ATPR ¶41-841; [2001] HCA 52;

BC200105241 at [18] per Gleeson CJ; Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) [2006] NSWCA 282; BC200608430 at [112] per Beazley JA (Ipp and Tobias JJA agreeing); Angas Securities Ltd v Valcorp Australia Pty Ltd [2011] FCA 190; BC201100974 per Besanko J. It has also been recognised that the statutory right to damages conferred by s 82 serves a wider purpose and it is intended to have a broader ambit than a common law action. It is for this reason that although the common law rule as to the measure of damages in tort may, in most cases, provide a useful guide there is no justification for confining damages in this way: Frith v Gold Coast Mineral Springs Pty Ltd (1983) 47 ALR 547; 65 FLR 213; (1983) ATPR ¶40-339 at 44,086; Wardley Australia Ltd v Western Australia, above; Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470; 114 ALR 355; (1993) ATPR ¶41-269 at 41,647; Tubby Trout Pty Ltd v Sailbay Pty Ltd (1994) ATPR (Digest) ¶46-120 at 53,562; Tefbao Pty Ltd v Stannic Securities Pty Ltd (1995) ATPR ¶41-391 at 40,345; Opalswan Pty Ltd v Commercial and General Acceptances Pty Ltd (FCA, Nicholson J, 18 November 1996, unreported, BC9605717); Marks v GIO Australia Holdings Ltd (1996) 63 FCR 304; (1996) ATPR ¶41-471; (appeal) Marks v GIO Australia Holdings Ltd (1996) 70 FCR 559; (1997) ATPR ¶41544; (High Court) Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; 158 ALR 333; 73 ALJR 12; (1998) ATPR ¶41-665 at 41,412; Australian Competition and Consumer Commission v Top Snack Foods Pty Ltd (1999) ATPR ¶41-708; Henville v Walker, above, at [131] per McHugh J; Manwelland Pty Ltd v Dames & Moore Pty Ltd (2001) ATPR ¶41-845; [2001] QCA 436; BC200106273 at [14] per McPherson J; Murphy v Overton Investments Pty Ltd (2004) 204 ALR 26; [2004] HCA 3; BC200400148 at [44] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; Callander v Ladang Jalong (Aust) Pty Ltd [2005] WASC 159; BC200505099 at [119] per McKechnie J; Mobileworld Operating Pty Ltd v Telstra Corp Ltd [2006] FCA 743; BC200604378 at [19] per Kenny J; Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784; BC200604574 at [305] per Wilcox J; Gough and Gilmour Holdings Pty Ltd (No 2) v Peter Campbell Earthmoving Pty Ltd (2007) ATPR ¶42-153; [2007] NSWSC 172; BC200701548 at [83] per James J; APIR Systems Ltd v Donald Financial Enterprises Pty Ltd [2009] FCAFC 45; BC200902548 at [49] per Goldberg, Jacobson and Perram JJ; PE Kafka Pty Ltd v Hermitage Motel Pty Ltd [2009] FCAFC 94; BC200907288 at [21] per Ryan, Gordon and Foster

JJ; Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq) [2012] FCA 1028; BC201207287 per Rares J. [page 662] As already noted, loss or damage is the gist of an action under s 82. Therefore an applicant may only recover compensation for actual loss or damage as distinct from potential or likely damage: [11,655.15]. In contract law a breach which denies the applicant of a commercial opportunity is compensable. The damages will be ascertained based on the degree of probabilities of the applicant being successful had he been given the opportunity: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; 104 ALR 1; Sykes v Reserve Bank of Australia (1998) 88 FCR 511; 158 ALR 710; (1999) ATPR ¶41-699 at 42,909. In Sellars v Adelaide Petroleum NL (1994) 120 ALR 16; (1994) ATPR ¶41-301, the High Court considered whether a similar approach should be adopted in relation to claims under s 82. First, the court found that the requirement of “loss or damage” is satisfied if the applicant shows that the conduct caused the loss of a commercial opportunity which had some value which is not negligible (ATPR at 42,004). Second, damages for lost commercial opportunity (whether occurring as a result of a breach of contract, tort or s 52 (see now ACL s 18) is to be ascertained by reference to the prospects of success, had the opportunity been pursued. The value is to be determined based on the degree of probabilities or possibilities: Sellars v Adelaide Petroleum NL, above, ATPR at 42,004. See also Colliers Jardine (NSW) Pty Ltd v Balog Investments Pty Ltd (1995) ATPR (Digest) ¶46-140; Hosmer Holdings Pty Ltd v CAJ Investments Pty Ltd (1995) 57 FCR 45; (1995) ATPR ¶41-407; (appeal) Hosmer Holdings Pty Ltd v CAJ Investments Pty Ltd (FCA, Full Court, NG 882/93, 30 June 1995, unreported); Marks v GIO Australia Holdings Ltd, above, (1996); GIO Australia Holdings Ltd v Marks, above, (1996 — appeal); Marks v GIO Australia Holdings Ltd, above, (1998 — High Court); CAJ Investments Pty Ltd v Lourandos (1996) 83 FCR 189; Cameron v Goldtek Australia Pty Ltd (1996) ATPR ¶41-513; Nagy v Masters Dairy Ltd (1997) ATPR (Digest) ¶46-164; Nagy v Masters Dairy Ltd (1998) ATPR ¶41-603; (appeal) Masters

Dairy Ltd v Nagy (1998) ATPR ¶41-651; Talmax Pty Ltd v Telstra Corp Ltd (1996) 36 IPR 46; (1996) ATPR ¶41-535; Hayle Holdings Pty Ltd v Australian Technology Group Ltd [2000] FCA 1242; BC200005227; Bluehive Pty Ltd v Dukemaster Pty Ltd [2000] FCA 1307; BC200005483; Murphy v Overton Investments Pty Ltd (2001) 112 FCR 182; 182 ALR 138; [2001] FCA 500; BC200102066; (appeal) Murphy v Overton Investments Pty Ltd [2002] FCAFC 129; BC200202487; Berryman v Hames Sharley (WA) Pty Ltd [2008] WASC 59; BC200802786 at [530] per Hasluck J; La Trobe Capital & Mortgage Corp Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; 273 ALR 774; [2011] FCAFC 4; BC201100109 at [110] per Jacobson and Besanko JJ; see Angas Securities Ltd v Valcorp Australia Pty Ltd (2011) 277 ALR 538; [2011] FCA 190; BC201100974 per Besanko J. It is not enough for an applicant under s 82 to merely show that the respondent has engaged in wrongful conduct. The applicant must show that he has suffered actual damage. If so, the court must award the applicant more than simply nominal damages. The court is obliged to do its best to quantify the loss even if this involves some speculation: Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 4 FCR 450; 57 ALR 167; (1985) ATPR ¶40-507 at 46,062; FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479; (1992) ATPR ¶41-176 at 40,420; Heidelberg Graphics Equipment Ltd v Andrew Knox & Assocs Pty Ltd (1994) ATPR ¶41-326; Marks v GIO Australia Holdings Ltd, above, (1996); GIO Australia Holdings Ltd v Marks, above, (1996 — appeal); Marks v GIO Australia Holdings Ltd, above, (1998 — High Court); Walker v Citigroup Global Markets Pty Ltd, above, at [111] per Kenny J. Although precise evidence of loss may not always be available, the court should be reluctant to make an estimate where the applicant’s evidence fails to provide any rational foundation for a proper estimate of damages: JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237; (1993) ATPR ¶41-257 at 41,465; Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1995) ATPR (Digest) ¶46-144 at 53,138; Winning Appliances Pty Ltd v Dean Appliances Pty Ltd (1995) 32 IPR 43; (1995) ATPR ¶41-423 at 40,829; see Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [2014] VSCA 338; BC201411358 per Tate, Santamaria and Kyrou JJA. There is no express provision in s 82 which allows any discretionary element to be included in an assessment of damages: Finucane v New South Wales Egg Corp (1988) 80 ALR 486; (1988) ATPR ¶40-863 at 49,346.

[page 663] [11,655.26] Prohibition on recovery of damages for death or personal injury The Trade Practices Amendment (Personal Injuries and Death) Act 2006 inserted s 82(1AAA) and (1AAB). Section 82(1AAA) gave effect to the recommendation by prohibiting a person from bringing an action to recover damages based on a contravention of Pt V Div 1 (now Ch 3 of the ACL) where the loss or damage is, or results from, death or personal injury (except from smoking or other use of tobacco products). Section 82(1AAB) ensured that actions for death or personal injury resulting from smoking or other use of tobacco products are subject to the limitations in Pt VIB. The amendment gave effect to the recommendations of the Ipp committee in its final report, Review of the Law of Negligence, in September 2002: see [11,740D.5]. The committee’s recommendations included: Recommendation 19: the Trade Practices Act should be amended to prevent individuals bringing actions for damages for personal injury or death under Pt V Div 1.

The provisions were repealed by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 No 103, effective 1 January 2011. Liability for death or injury is now addressed as part of the ACL and relevant State and Territory Laws. See [14,500.5] and Pt XIC, Div 7. [11,655.30] Damages for passing off If the conduct of a respondent contravenes ACL s 18 and also constitutes the tort of passing off, the appropriate measure of damages is that applied under the general law of passing off. In particular, general damages for loss of business profits may be recovered. These damages may be awarded even though a claimant does not produce evidence of particular losses from particular transactions: Prince Manufacturing Inc v ABAC Corp Australia Pty Ltd (1984) 4 FCR 288; 57 ALR 159; (1984) ATPR ¶40-506. [11,655.35] Damages for loss of reputation In Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500; (1986) ATPR ¶40-675 at 47,461 Wilcox J said that damages for loss of reputation are recoverable under s 82. It was said that as in a defamation case the court can do no more than fix the sum of money which in the circumstances appears to be

proportionate to the damage which has been incurred. An assessment of damages for loss of reputation will necessarily be made with a broad brush and the higher the degree of the reputation, the more vulnerable is the respondent to a claim for damages. See also Brabazon v Western Mail Ltd (1985) 58 ALR 712; (1985) ATPR ¶40-549 at 46,454; Typing Centre of New South Wales Pty Ltd v Northern Business College Ltd (1989) ATPR ¶40-943 at 50,290; FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479; (1992) ATPR ¶41-176 at 40,420; Beagle Management Ltd v Targridge Ltd (1997) ATPR (Digest) ¶46166; Acohs Pty Ltd v R Bashford Consulting Pty Ltd (1997) ATPR (Digest) ¶46-176; (appeal) Bialkower v Acohs Pty Ltd (1999) ATPR ¶41-685; Seafolly Pty Ltd v Madden (No 4) [2014] FCA 980; BC201407551 per Tracey J. [11,655.40] Damages for the cost of borrowing money When money is paid over in consequence of misleading conduct under ACL s 18 the loss suffered by that conduct includes not only the money paid but also the cost of borrowing that money or the loss from its investment: Sanrod Pty Ltd v Dainford Ltd (1984) 54 ALR 179; (1984) ATPR ¶40-464 at 45,358; Wan v McDonald (1992) 105 ALR 473; (1992) ATPR ¶46-088; Lee v Cafred Pty Ltd (1992) ATPR ¶41-170 at 40,337. In such a case the applicant may also recover any costs incurred on terminating an early investment. However, any loss that is suffered because of a delay in the payment of money which is ultimately held to be due is not recoverable pursuant to ss 82 or 87: Milner v Delita Pty Ltd (1985) 9 FCR 299; 61 ALR 557; (1986) ATPR (Digest) ¶46003 at 53,028; see St George Bank Ltd v Indigenous Business Australia [2007] NSWSC 331; BC200709356 at [107] per Hammerschlag J. [11,655.45] Exemplary damages Exemplary damages are damages intended to punish a respondent for conduct which shows a conscious and contumelious disregard for an applicant’s rights and to deter the respondent from committing similar conduct again. [page 664] Exemplary damages are damages of a punitive rather than a compensatory nature: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155

CLR 448 at 471; 57 ALR 639 per Brennan J; Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188 at 192; Dalrymple Holdings Pty Ltd v Gohl (1993) ANZ Conv R 508; (appeal) O’Kelly Holdings Pty Ltd v Dalrymple Holdings Pty Ltd (1993) 45 FCR 145; Australian Rugby Union Ltd v Hospitality Group Pty Ltd (2000) 173 ALR 702; (2000) ATPR ¶41-768 at 41,071; [2000] FCA 823; BC200003295; Gm Holden Ltd v Paine [2011] FCA 569; BC201103823 per Gordon J; National Bank Australia Ltd v Sahin [2011] VSC 505; BC201107734 per Dixon J. As French J explained in Musca v Astle Corp Pty Ltd (1988) 80 ALR 251; (1988) ATPR ¶40-855 at 49,227, exemplary damages do not compensate for loss and are not recoverable under s 82 of the Act “for that section will allow only for the recovery of the amount of loss or damage suffered by conduct of another in contravention of the provisions of Pt IV or V of the Act. Nor does it appear that the court can award such damages under s 87 for the orders that may be made under that section are essentially compensatory in nature”. Section 22 of the Federal Court of Australia Act 1976 empowers the court to award exemplary damages where such relief would be available at common law in the disposition of a cause of action raised under the court’s accrued jurisdiction: Musca v Astle Corp Pty Ltd, above. However, s 22 does not give the court a general charter to make whatever orders it considers just independently of any legal or equitable claim the parties may succeed in establishing: Nixon v Philip Morris (Aust) Ltd (1999) ATPR ¶41-707 at 43,080; (appeal) Philip Morris (Aust) Pty Ltd v Nixon (2000) 170 ALR 487; (2000) ATPR ¶41-759; [2000] FCA 229; BC200000845. In Nixon, above (1999), Wilcox J agreed with French J in Musca that exemplary damages are not recoverable under s 82 or s 22 of the Federal Court of Australia Act 1976. In Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158; BC200601999 at [205], White J said that exemplary damages and aggravated damages are not available under s 82. [11,655.48] Aggravated damages Aggravated damages in contrast to exemplary damages are compensatory in nature and are awarded for injury to the plaintiff’s feelings caused for example by insult or humiliation: Lamb v Cotogno (1987) 164 CLR 1 at 8; 74 ALR 188. In Nixon v Philip Morris (Aust) Ltd (1999) ATPR ¶41-707 at 43,080; (appeal) Philip Morris (Aust) Pty Ltd v Nixon (2000) 170 ALR 487; (2000)

ATPR ¶41-759; [2000] FCA 229; BC200000845, Wilcox J accepted that it may be possible to recover aggravated damages as “loss or damage” under s 82 or s 87. In Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158; BC200601999 at [205], White J said that exemplary damages and aggravated damages are not available under s 82. [11,655.50] Damages recoverable for misleading statements leading to the purchase of a business There have been a number of cases where applicants have sought to recover damages on the basis of representations or inducements concerning the profitability of a business that they have acquired. In the case where a person who has been misled as to the profitability of business, seeks to keep the contract on foot, damages are to be assessed on the following basis: [The] main question to be decided is whether, had the true facts been known, the purchaser would have been content to buy at a lower price or would not have bought at all. In the first case, the only damage the purchaser will have suffered is the immediate damage of the difference between the price paid and the true value. In the second case the purchaser would also be entitled, provided damages are mitigated where possible, to any losses consequential upon the running of an unprofitable business. Loss of earning from an alternative profitable business which the purchaser can show would have been carried on if the deception had not occurred are also sufficiently direct to justify additional damages: Corbidge v Bakery Fun Factory Fun Shop Pty Ltd (1984) ATPR ¶40493 at 45,688. In Frith v Gold Coast Mineral Springs Pty Ltd (1983) 47 ALR 547; 65 FLR 213; (1983) ATPR ¶40339 Fitzgerald J, in a case involving the purchase of a business where the turnover had been misrepresented, applied the measure of damages appropriate in an action of deceit. In [page 665] such a case the amount of damages which the applicant is entitled to recover is the amount by which the price he has paid for the business exceeds the true value of the business at the time when he bought it: McAllister v Richmond Brewing Co (NSW) Pty Ltd (1942) 42 SR (NSW) 187; Lubidineuse v Bevanere Pty Ltd (1985) ATPR ¶40-597; Paper Sales (Aust) WA Pty Ltd v PSA Pty Ltd (1991) ATPR ¶41-142 at 53,055; Kizbeau Pty Ltd v WG & B Pty Ltd (FCA, Northrop J, VG 238/90, 1 December 1992, unreported); (appeal) Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281; 131 ALR 363; (1995) ATPR ¶41-439; Dalrymple Holdings Pty Ltd v Gohl (1993) ANZ Conv R 508; (appeal) O’Kelly Holdings Pty Ltd v Dalrymple Holdings Pty Ltd (1993) 45 FCR 145; Yenald Nominees Pty Ltd v Como Investments Pty Ltd (in liq) (1996) ATPR ¶41-508; (appeal) Como Investments Pty Ltd (in liq) v Yenald Nominees Pty Ltd (1997) ATPR ¶41-550; Gurr v Forbes (1996) ATPR ¶41-491; Voss Real Estate v Schreiner (1998) ATPR ¶41-627; Hill v Tooth & Co Ltd (1998) ATPR ¶41-649 at 41,219; Flemington Properties Pty Ltd v Raine & Horne Commercial Pty Ltd (1997) 148 ALR 271; (1999) ATPR ¶41-670; Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR ¶41-691; Auyeung v Chan [1999] NSWCA 417; BC9907745; Carlton v Pix Print Pty

Ltd [2000] FCA 337; BC200001504; Crystal Auburn Pty Ltd v IL Wollermann Pty Ltd [2004] FCA 821; BC200403846 at [23] per Goldberg J; All Fasteners (WA) v Caple [2007] FCA 12521252; BC200706926 at [24] per Siopis J; WP Kidd Pty Ltd v Panwell Pty Ltd [2007] QSC 373; BC200711094 at [142] per McMeekin J; Hermitage Motel Pty Ltd v PE Kafka Pty Ltd [2008] FCA 442; BC200802287 at [5] per Gyles J; Barcar Pty Ltd v Carpatsea Pty Ltd [2008] NSWSC 344; BC200802604 at [103] per Bergin J; Campbell v BackOffice Investments Pty Ltd (2008) 66 ACSR 359; [2008] NSWCA 95; BC200803587 at [150] per Gyles JA; PE Kafka Pty Ltd v Hermitage Motel Pty Ltd [2009] FCAFC 94; BC200907288 at [15] per Ryan, Gordon and Foster JJ; Morellini v Adams [2011] WASCA 84; BC201101816 per McLure, Pullin JA, Newnes JA; Avis v Mark Bain Constructions Pty Ltd (2011) 82 ACSR 655; [2011] QSC 080; BC201102026 at 169 per Atkinson J.

In Kizbeau Pty Ltd v WG & B Pty Ltd, above, (1995), the High Court highlighted the following general principles (ALR at 369-70; ATPR at 40,972–3): In an action for damages for deceit for inducing a person to enter a contract of purchase, which is an action that is closely analogous to an action for damages for breach of s 52, the courts have consistently held that the proper measure of damages is the difference between the real value of the thing acquired as at the date of acquisition and the price paid for it. Nevertheless, although the value is assessed as at the date of the acquisition, subsequent events may be looked at in so far as they illuminate the value of the thing as at that date. A distinction is drawn, however, between subsequent events that arise from the nature or use of the thing itself and subsequent events that affect the value of the thing but arise from sources supervening upon or extraneous to the fraudulent inducement. Events falling into the former category are admissible to prove the value of the thing, those falling into the latter category are inadmissible for that purpose. Thus, the takings of a business subsequent to purchase are generally admissible not only to prove that a representation concerning the takings was false but also to prove the true value of the business as at the date of purchase. Even when some difference exists between the conditions under which the business was conducted before and after purchase, evidence of subsequent takings may be admissible “subject to due allowance being made for any differences in relevant conditions”. But if it is established that the decline in takings has been caused by business ineptitude or unexpected competition, evidence of subsequent takings is not admissible to prove the value of the business as at that date, events such as ineptitude and unexpected competition being regarded as supervening events. In some cases of deceit, it may also be proper to compensate the defrauded party not only for the difference between the value of the thing acquired and the price paid for it but also for losses induced by the fraud and directly incurred in conducting the business. All of these principles are appropriate to the assessment of damages under s 82 where a breach of s 52 of the Act has induced a person to purchase a business.

[page 666] In determining the amount of those damages, the court in Netaf Pty Ltd v Bikane Pty Ltd (1990) 92 ALR 490 at 494; (1990) ATPR ¶41-011 at 51,223 sounded the following caution: We reiterate that, where a purchase has been induced by misleading conduct, it is not enough, in order to recover losses subsequent to the purchase, to prove that but for the misleading conduct or as

a partial consequence of it, the agreement to purchase would not have been made; that is so in every successful application of that kind. It is not the law that in every such case the party held to have been engaged in misleading conduct (who may have acted quite innocently) becomes the insurer of the other’s success and prima facie liable to indemnify him against the consequences of the purchase. As the trial judge said in the present case: To recover a loss sustained in the business, the applicant must show more than that it was sustained in the conduct of that business; for to show only that is to establish what is perfectly consistent with the loss having arisen from his own misguided management decisions, or even total neglect.

See also Jacques v Cut Price Deli Pty Ltd (1993) ATPR (Digest) ¶46-102; (appeal) Cut Price Deli Pty Ltd v Jacques (1994) 49 FCR 397; (1994) ATPR (Digest) ¶46-128; Tubby Trout Pty Ltd v Sailbay Pty Ltd (1994) ATPR (Digest) ¶46-120 at 53,562; Starborne Holdings Pty Ltd v Radferry Pty Ltd (1998) ATPR ¶41-634; Manwelland Pty Ltd v Dames & Moore Pty Ltd (2001) ATPR ¶41-845; [2001] QCA 436; BC200106273 at [14]–[16] per McPherson J. It is equally clear from the judgment in Frith’s case that where a person has been induced to purchase a business on the basis of false representations as to its turnover or profitability, then the applicant who establishes a cause of action under the Act is also entitled to consequential losses if they are sufficiently direct. In such an instance, the court must be satisfied that there is a sufficient cause or connection and that the chain of causation has not been broken by some conduct or event: Frith v Gold Coast Mineral Springs Pty Ltd, above, ATPR at 44,086–7. In particular, the court must be satisfied that the loss did result directly from the fraud and not from some supervening course such as the folly, error or misfortune of the purchaser and must ensure that no additional compensation is given for losses when those losses, or the probability of their occurrence has already been taken into account in determining the value of the business: Gould v Vaggelas (1985) 157 CLR 215 at 221-2; 62 ALR 527; see also Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274; 84 ALR 700; (1989) ATPR ¶40-926; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 2) (1989) 89 ALR 539; (1989) ATPR ¶40-968. However, it is incorrect to assume in every case of misrepresentation the only kind of damage which may be suffered and compensated is any difference between price and value or any consequential losses: see Murphy v Overton Investments Pty Ltd (2004) 204 ALR 26; [2004] HCA 3; BC200400148 at [31] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; HTW Valuers (Central Qld) Pty Ltd v Astonland Pty

Ltd (2004) 211 ALR 79; 79 ALJR 190; [2004] HCA 54; BC200407490 at [38] per Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ; Moloney v Bells Securities Pty Ltd [2005] QSC 013; BC200500185 at [104] per Chesterman J. Using the analogy of the distinction in the law of taxation between capital and revenue, in Murphy v Overton Investments Pty Ltd, above, at [50] Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ said: Loss or damage may be a loss of capital. But there may also be a loss on revenue account which, unless some other remedy is granted which will prevent it continuing into the future, will, or may, continue into the future. And the losses on capital account may be sustained at a time different from any loss on revenue account. The latter form of loss may, in many cases, be sustained after the loss of capital account has been suffered. In some cases the loss on capital account may overlap with a loss on revenue account. If that is so, it is necessary to mould relief in a way which will avoid double compensation.

[page 667] It would therefore be wrong to assume that where a person is induced by misleading conduct to undertake a continuing future obligation, the remedy to be awarded for a contravention of Pt V (see now ACL Pt 3-1) of the Act must be, or even ordinarily will be, a lump sum award of damages: Murphy v Overton Investments Pty Ltd, above, at [51] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ. [11,655.53] Damages recoverable for misleading statements concerning land and mortgages As stated above, the damages recoverable for misleading statements leading to the purchase of a business will usually approximate the measure of damages in an action of deceit [11,655.50]. However, as Lehane J observed in Flemington Properties Pty Ltd v Raine & Horne Commercial Pty Ltd (1997) 148 ALR 271; (1999) ATPR ¶41-670 at 42,583, none of the cases which put forward this principle dealt with the purchase of land where there is greater difficulty in establishing its real value at the date of the purchase. In addition, the rule applicable to a purchase appears not to apply to a loan or mortgage. However, Lehane J said at 42,584: A mortgage debt (the debt and security for it) is just as much an item of property as is, for example,

an interest in a publicly offered property trust. There is no obvious distinction in principle between the subscription for such a unit and the lending of money and taking of a mortgage. Additionally of course, a mortgage may be acquired otherwise than by lending and having a mortgage executed in one’s favour: a mortgage (together with a mortgage debt) may be bought. The principle referred to in the cases which I have quoted at some length clearly applies equally, as one might expect, to a subscription for a security as to the purchase of a security already issued.

[11,655.54] Damages resulting from anti-competitive conduct Where anti-competitive conduct is involved, the loss analysis may have to be undertaken in the light of the effect of such conduct upon competition in a market. The kind of analysis may involve consideration of information available to the market: Energex Ltd v Alstom Australia Ltd [2005] FCAFC 215; BC200507028 at [60] per French, Hely and Merkel JJ. Where market prices are elevated by collusive tendering or price-fixing, it may be arguable that there is not a “true market price” defining “true value” and somehow underlying the “false market price” generated by the anticompetitive conduct. It may be that the the true and lesser price of goods or services in the market and the true value of assets acquired in that market crystallises only upon discovery of the anti-competitive conduct in question: Energex Ltd v Alstom Australia Ltd, above, at [60] per French, Hely and Merkel JJ. [11,655.55] Damages for distress An applicant may recover damages for distress under s 82: Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445; (1990) ATPR ¶41-009 at 51,747; Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678; BC200509986 at [135] per Kenny J. In Zoneff v Elcom Credit Union Ltd, above, the applicant was awarded damages for distress which he suffered upon discovering that the extent of cover afforded by a policy of insurance arranged through the respondent had been misrepresented. [11,655.58] Unliquidated damages and bankruptcy A claim for damages under s 82 is a claim in the nature of unliquidated damages that arises otherwise than by reason of a contract, promise or breach of trust under s 82 of the Bankruptcy Act 1966 and is not a provable debt in bankruptcy: Australian Competition and Consumer Commission v Kritharas (2000) 105 FCR 444; 178 ALR 363; [2000] FCA 1442; BC200006211 at [24] per Katz J; Australian Competition and Consumer Commission v Black on White Pty Ltd [2004] FCA 363; BC200401576 at [30] per Spender J; Director General,

Dept of Services, Technology and Administration v Veall (No 6) [2012] NSWSC 1118; BC201208635 at [38]; Carazi Pty Ltd v Blow Dry Franchising Pty Ltd [2015] NSWSC 28; BC201501069 per White J. [page 668] [11,655.60] Interest on damages There is no provision in the Act which authorises the court to award any interest on damages recovered pursuant to s 82 of the Act. However, in 1984, s 51A was added to the Federal Court of Australia Act 1976. That section authorises the award of interest for any causes of action that arise after the commencement, namely 22 November 1984: Nella v Kingia Pty Ltd (1989) ATPR ¶40-952 at 50,403; Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97; 114 ALR 568; (appeal) Lockyer Investment Co Pty Ltd v Smallacombe (1994) ATPR ¶41-328 at 42,353. [11,655.65] Mitigation of loss There is an obligation upon an applicant under s 82 to take all reasonable steps to mitigate his or her loss consequent upon the respondent’s conduct. The applicant cannot recover damages for losses for which he or she could reasonably have avoided by taking reasonable steps to mitigate his or her loss: Finucane v New South Wales Egg Corp (1988) 80 ALR 486 at 519; (1988) ATPR ¶40-863; Haynes v Top Slice Deli Pty Ltd (1995) ATPR (Digest) ¶46-147 at 53,154; Murphy v Overton Investments Pty Ltd (2001) 112 FCR 182; 182 ALR 138; [2001] FCA 500; BC200102066 at [47]. See also Murphy v Overton Investments Pty Ltd (2004) 204 ALR 26; [2004] HCA 3; BC200400148 at [66]–[70] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ. The basis of this duty to mitigate may stem from the statutory requirement that the loss or damage recoverable under s 82 be loss or damage suffered “by conduct of another person”, rather than the applicants failure: Murphy v Overton Investments Pty Ltd, above, (2001) at [47]; Murphy v Overton Investments Pty Ltd, above, (2004) at [66]–[70] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ. Where there is an allegation that an applicant has failed to mitigate its losses, the respondent must discharge the onus of proof: Hubbards Pty Ltd v Simpson Ltd (1982) 41 ALR 509; 60 FLR 430; (1982) ATPR ¶40-295; Embo

Holdings Pty Ltd v Camm (1998) ATPR (Digest) ¶46-184. However, the primacy of the causation principle might well reduce reliance upon concepts such as mitigation: I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 192 ALR 1; [2002] HCA 41; BC200205780 at [85] per McHugh J. [11,655.70] Limitation period in s 82(2) Section 82(2) imposes a time limit within which an application must be made. Section 82(2) was amended by the Trade Practices Amendment Act (No 1) 2001 to extend the period from 3 years to 6 years. The Australian Law Reform Commission in its report Compliance with the Trade Practices Act 1974, Report No 68, 1994 had recommended instead that the court be given a discretion to extend the limitation period in a given case. The recommendation was not adopted: The Act does not provide the court a power to extend the limitation period in s 82(2): Kedem v Johnson Legal Practice Pty Ltd [2013] FCA 432; BC201302358 per Mansfield J. The limitation period in s 82(2) commences from the day on which the cause of action that relates to the conduct accrued. A cause of action means every fact which it would be necessary for the applicant to prove if traversed, in order to support his or her right to the judgment of the court: Cooke v Gill (1873) LR 8 CP 107 at 116; Read v Brown (1888) 22 QBD 128 at 131; Patterson v Richards [1963] VR 179 at 186-7; Do Carmo v Ford Excavations Pty Ltd (1984) 52 ALR 231 at 240; Acardi v Colonial Mutual Life Assurance Society Ltd (1984) ATPR ¶40-473; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247; (1992) ATPR ¶41-189 per Toohey J. In determining when a cause of action accrues, the court will have regard to the nature of the damages recoverable under s 82. More recently the courts have said that in determining when a cause of action accrues it is relevant to consider the precise interest that has been infringed. See the comments of Beaumont JinMagman International Pty Ltd v Westpac Banking Corp (1991) 32 FCR 1; 104 ALR 575; (1992) ATPR ¶41161 at 40,194; Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35; (1995) ATPR ¶41-427. [page 669]

In most cases damages are recoverable under s 82 which approximates damages recovered in tort. Here, the cause of action accrues when loss is suffered as a result of the tort: Fenech v Sterling (1983) 51 ALR 205; (1983) ATPR ¶40-413 at 44,812; James v ANZ Banking Group Ltd (1985) 64 ALR 347; (1986) ATPR (Digest) ¶46-005; Wardley Australia Ltd v Western Australia, above, ATPR at 40,571; Emanuele v Chamber of Commerce and Industry SA Inc (1994) ATPR (Digest) ¶46-121 at 53,570; Mulcahy v HydroElectric Commission (1998) ATPR (Digest) ¶46-186; see Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2007] FCA 708; BC200703772 at [89] per Tracey J; see Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26; BC200800882 at [105] per Nettle JA (Ashley and DoddsStreeton JJA agreeing). In Dorfler v ANZ Banking Group Ltd (1991) 103 ALR 699 at 705 Spender J said that a cause of action accrues under s 82 where the applicant has suffered loss or damage. However, it may be that where the conduct complained of is promissory in character, the court should not be constrained by common law actions but rather from actions based on contract: Acardi v Colonial Mutual Life Assurance Society Ltd (1984) ATPR ¶40-473 at 45,454. In Emanuele v Chamber of Commerce and Industry SA Inc, above, the court found that a cause of action accrued when an unconditional contract (ie one that was devoid of any contingency) came into existence. By contrast, causes of action in contract accrue at the time of breach since breach of contract is actionable without proof of damage: Mulcahy v Hydro-Electric Commission (1998) ATPR (Digest) ¶46-186. In a case where the applicant claims damages for misleading conduct which induces him or her to comply with obligations under a contract, and the applicant can point to a series of losses flying from the transaction, there are not as many causes of action as distinct losses. In such a case, the cause of action accrues when the applicant enters into the relevant transaction: Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR ¶40-853 at 49,195. However, if the applicant, after incurring some loss, being still deceived again acts on the basis of the misrepresentation, then this is a distinct and separate act of reliance. In respect of that second act of reliance the limitation period is not affected by the first act of reliance: Jobbins v Capel Court Corp Ltd (1989) 91 ALR 314; (1989) ATPR ¶41-005 at 51,091. In Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty

Ltd, above, at 49,195 Pincus J expressed the view that the words “date on which the cause of action accrued” in s 82(2) were intended to have a meaning akin to that worked out under other time limitation statutes. See also the comments of Hill J in Magman International Pty Ltd v Westpac Banking Corp (1991) 32 FCR 1; 104 ALR 575; (1992) ATPR ¶41-161 at 40,200. The opposite view was expressed by the Full Court in Western Australia v Wardley Australia Ltd (1991) ATPR ¶41-131 at 52,925. It is open to a respondent who alleges that the applicant’s claim is statute-barred, to make that claim as part of its defence to any proceedings that are commenced: Acardi v Colonial Mutual Life Assurance Society Ltd, above. The case of Wardley Australia Ltd v Western Australia, above, concerned an indemnity and the issue arose as to whether a cause of action accrued, inter alia, when the indemnity was executed or when it was called up. The majority of the court held that as the indemnity generated an executory and contingent liability on the part of the respondent, the respondent suffered no loss until that contingency was fulfilled and accordingly time did not begin to run until that event had occurred: ATPR at 40,575. Expressed more generally, if the applicant acquires no benefit under a document executed by him or her, for instance a guarantee, the loss or damage is suffered only when the event or contingency occurs which calls that document into question and not when the document is executed (ATPR at 40,577). See Williams v Commonwealth [1999] NSWCA 345; BC9906402; Quanstruct Pty Ltd v Bongiorno Ltd (1993) 113 ALR 667; (1993) ATPR ¶41235; Pricom Pty Ltd v Sgarioto (1994) ATPR ¶41-365 at 42,750; Antoniou v Karedis Enterprises Pty Ltd (1995) ATPR ¶41-400; Harris v Cigna Insurance Australia Ltd (1995) ATPR ¶41-445 at 41,010; CAJ Investments Pty Ltd v Lourandos (1996) 83 FCR 189 at 202; Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1997) ATPR ¶41-585; Nixon v Philip Morris (Aust) Ltd (1999) ATPR ¶41-707; (appeal) Philip Morris (Aust) Pty Ltd v Nixon (2000) 170 ALR 487; (2000) ATPR [page 670] ¶41-759; [2000] FCA 229; BC200000845; Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) ATPR ¶41-711; Blacker v National Australia Bank Ltd

(2001) ASAL ¶55-059; [2001] FCA 254; BC200100994; Chapman v Luminis Pty Ltd (No 5) (2002) ATPR (Digest) ¶46-214; [2001] FCA 1106; BC200105040 at [217] per von Doussa J; Murphy v Overton Investments Pty Ltd (2004) 204 ALR 26; [2004] HCA 3; BC200400148 at [55] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; Mobileworld Operating Pty Ltd v Telstra Corp Ltd [2006] FCA 743; BC200604378 at [19] per Kenny J; Peerless Holdings Pty Ltd v Environmental Systems Pty Ltd [2006] VSC 194; BC200603975 at [937] per Hansen J; Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd, above, at [105] per Nettle JA (Ashley and Dodds-Streeton JJA agreeing); see Lin v Rail Corporation New South Wales [2011] FCA 261; BC201101454 per Rares J. In Karedis Enterprises Pty Ltd v Antoniou, above, ATPR at 40,818, Sackville J said: The reasoning of the court does, however, support the proposition that, at least in the case where the disadvantageous character of a transaction cannot be ascertained at the outset, a loss is not sustained until the plaintiff or applicant ascertains, or has the means available to ascertain, that he or she has been prejudiced by entry into the transaction. Potential loss is not enough.

See also Blacker v National Australia Bank Ltd (2001) ASAL ¶55-059; [2001] FCA 254; BC200100994; Energex Ltd v Alstom Australia Ltd (2004) ATPR (Digest) ¶46-251; [2004] FCA 575; BC200402479 at [179] per Weinberg J; Eighty-Second Vocation Pty Ltd v Parere Investments Pty Ltd [2005] FCA 844; BC200504315 at [87] per Weinberg J. It appears that a party seeking to rely upon a limitation provision carries the evidentiary burden of establishing facts necessary to show that the limitation period has run: National Australia Bank Ltd v Hann Nominees Pty Ltd (2000) ANZ Conv R 160; [1999] FCA 1262; BC9905863. In Wood v Wood (1997) ATPR ¶41-581 the court confirmed the validity of the principle in Wardley. It also suggested that the decisions in Forster v Outred & Co [1982] 2 All ER 753; [1982] 1 WLR 86 and Jobbins v Capel Court Corp Ltd (1989) 91 ALR 314; (1989) ATPR ¶41-005 were distinguishable or no longer represented a correct statement of the law: ATPR at 44,042. By way of dicta comment, Sackville J suggested that it was arguable that the reasoning in the Wardley case should be extended to cases involving the purchase of an asset, even where there are no apparent countervailing benefits or detriments as a result of the transition. From the purchaser’s perspective, a

loss may not be ascertainable until events unfold. Therefore for the purpose of s 82, a loss is not sustained until the purchaser has ascertained it or acting reasonably should have ascertained that the asset was worth less than the price paid for it. In Energex Ltd v Alstom Australia Ltd (2004) ATPR (Digest) ¶46-251; [2004] FCA 575; BC200402479 at [196] Weinberg J said it is arguable that in cases where what is claimed is economic loss arising from the purchase of an asset, no loss is suffered until there has been an actual balanacing of benefits and burdens, leading to the conclusion that loss has been incurred. Section 82(2) is directed to the commencement of an “action”. In Australian Mutual Providence Society v Specialist Funding Consultants Pty Ltd (1991) ATPR ¶41-137 at 52,988, Rogers CJ said that the use of s 52 as a defence is not an action so that the time-bar in s 82(2) is not applicable. This view has not been followed: Spedley Securities Ltd (in liq) v Bank of New Zealand (1991) ATPR ¶41-143 at 53,066. In the Spedley case it was held that s 52 cannot be pleaded as a defence in the absence of a claim for relief under the Act. There is nothing express or implied in the Act for importing the equitable principle that time does not run against an applicant who is ignorant of the cause of action: Acardi v Colonial Mutual Life Assurance Society Ltd, above. In Magman International Pty Ltd v Westpac Banking Corp, above, ATPR at 40,204, Hill J said that in the state of the present law, there is no general rule that time will run only from the point where damage was reasonably discoverable as opposed to the time when damage was actually sustained. He also said (ATPR at 40,195) that if the court is unable to form a definite answer whether or not a claim is barred by time, it should allow the matter to proceed to trial. [page 671] If a claim under s 82 is statute-barred because the action is commenced after three years from the date on which the cause of action accrued, that amount cannot be claimed under the ancillary provisions of s 87(1A). In Western Australia v Wardley Australia Ltd, above, (1991), the court was of the view that the limitation in s 82(2) was procedural rather than

substantive. In Harris v Western Australian Exim Corp (1995) ATPR ¶41412 at 40,568, Hill J expressed the view that s 82(2) (and its equivalent in s 79(2) of the Fair Trading Act) requires that an action be commenced within three years of the cause of action accruing. Provided that in truth the action has been commenced within the limitation period, an amendment to the pleadings operates retrospectively to the date of the original pleading. Section 82(2) does not operate to extinguish the cause of action to which it applies, but merely bars the remedy: Simplot Australia Pty Ltd v PSL Industries [2001] VSC 419; BC200107200 at [34] per Ashley J. See also Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd (2001) 112 FCR 336; [2001] FCA 703; BC200103004 at [36] per French J and [11,555.5]. [11,655.71] Involved in a contravention Section 82 creates a separate statutory cause of action against each person who is involved in any of the ways mentioned in s 75B of the Act: Tomlinson v Cut Price Deli Pty Ltd (1995) ATPR (Digest) ¶46-151 at 53,180. [11,655.72] Claims by a number of applicants The conduct of one respondent may give rise to a number of claims by various applicants. Each of those applicants has a distinct cause of action so that the disposal of a claim by one applicant will not bar the pursuit of the claim by the others: Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 108 ALR 335. [11,655.73] Assignment of rights under s 82 A right to claim damages under ss 82 and 87 cannot be assigned. The reason appears to be that it is only a person who has actually suffered loss or damage that may recover: Park v Allied Mortgage Corp Ltd (1993) ATPR ¶46-105 at 53,469; Allstate Life Insurance Co v ANZ Banking Group Ltd (FCA, Beaumont J, No 814/94, 7 November 1994, unreported); National Mutual Property Services (Aust) Pty Ltd v Citibank Savings Ltd (No 1) (1995) 132 ALR 514; Brookfield v Davey Products Pty Ltd (1996) 14 ACLC 303; Chapman v Luminis Pty Ltd (No 5) (2002) ATPR (Digest) ¶46-214; [2001] FCA 1106; BC200105040 at [204] per von Doussa J; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146; [2006] FCA 1352; BC200608262 at [53] per Rares J; Salfinger v Niugini Mining (Aust) Pty Ltd (No 3) [2007] FCA 1532; BC200708553 at [110] per Heerey J.

[11,655.74] Action against the primary contravener Section 82 does not impose as a condition of accessorial liability a requirement that an action also be commenced against the primary contravener: Matheson Engineers Pty Ltd v El Raghy (1992) 37 FCR 6; (1992) ATPR ¶41-192 at 40,611. [11,655.75] Equivalent state legislation For the equivalent provisions in the relevant Acts of the states and territories see the comparative table at [10,001]. _____________________

[11,670]

Finding in proceedings to be evidence

83 In a proceeding against a person under section 82 or in an application under subsection 51ADB(1) or 87(1A) for an order against a person, a finding of any fact by a court made in proceedings under section 77, 80, 81, 86C, 86D or 86E, or for an offence against section 44ZZRF or 44ZZRG, in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of Part IV or [page 672] IVB, or of section 55B, 60C or 60K, is prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears. [s 83 subst Act 81 of 1977 s 50; am Act 222 of 1992 s 19 and Sch 1; Act 36 of 1998 Sch 1; Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001; Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; Act 59 of 2009 s 3 and Sch 1[40], Sch 2[3], opn 24 July 2009; Act 44 of 2010 s 3 and Sch 2[16], opn 15 Apr 2010; Act 103 of 2010 s 3 and Sch 5[69]–[71], opn 1 Jan 2011; Act 83 of 2014 s 3 and Sch 2 item 13, opn 18 July 2014; Act 9 of 2016 s 3 and Sch 1 item 10, opn 25 Feb 2016]

SECTION 83 GENERALLY [11,670.1] Overview The provision provides for a finding of fact made under certain proceedings under the Act to be prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.

Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that s 83 be amended so that it extends to admissions of fact made by the person against whom the proceedings are brought in addition to findings of fact made by the court. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amend ments. See also [10,690.5]. [11,670.3] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. [11,670.5] Purpose of a finding of fact Arguably the reference to a finding of fact means a finding of fact after the hearing of a matter, rather than a finding by consent of the parties: Australian Competition and Consumer Commission v Monza Imports Pty Ltd (2001) ATPR ¶41-843; [2001] FCA 1455; BC200106299 at [25] per Carr J; Australian Competition and Consumer Commission v Apollo Optical (Aust) Pty Ltd (2001) ATPR ¶41-843; [2001] FCA 1456; BC200106300 per Carr J. Similarly, formal admissions should not be regarded as findings of fact: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; (2005) ATPR ¶42-052; [2005] FCA 265; BC200501239 at [116] per Merkel J. The purpose of the provision is to save inconvenience and expense in requiring a matter to be proved more than once, but at the same time protecting the interests of a respondent by conferring on such a finding only the status of prima facie evidence in subsequent proceedings: Australian Competition and Consumer Commission v Monza Imports Pty Ltd, above, at [25] per Carr J; Australian Competition and Consumer Commission v Apollo Optical (Aust) Pty Ltd, above, at [24] per Carr J; Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd (2006) ATPR ¶42-108; [2006] FCA 244; BC200601378 per Nicholson J. Section 83 comes into operation only when a new proceeding is

commenced: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR ¶41-873; [2002] FCA 609; BC200202349 at [9] per Finkelstein J. It does not provide a present applicant (or others) with a positive present remedy: Australian Competition and Consumer Commission v Original Mama’s Pizza and Ribs Pty Ltd [2008] FCA 370; BC200802340 at [164] per Madgwick J. However, where the matter is canvassed again by the parties through fresh evidence, the usefulness of a finding of fact as prima facie evidence diminishes. Nothing in s 83 relieves the court of its obligation to make its own findings particularly where credibility is in issue and where [page 673] the witnesses are not identical to those who testified in the previous proceedings: Parry’s Department Store (WA) Pty Ltd v Simpson Ltd (1983) 76 FLR 60; (1983) ATPR ¶40-393 at 44,610. Where facts have not been the subject of critical analysis, it is inappropriate to make orders allowing for an extended use of findings of fact, particularly use of those facts as prima facie evidence in related proceedings: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3), above, at [118] per Goldberg J; Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; BC200608860 at [106] per Kiefel J. See also Australian Competition and Consumer Commission v Original Mama’s Pizza and Ribs Pty Ltd, above, at [164] per Madgwick J; Australian Competition & Consumer Commission (ACCC) v Powerballwin.com.au Pty Ltd [2010] FCA 378; BC201002458 at [55] per Tracey J. [11,670.10] Application of s 83 In Hubbards Pty Ltd v Simpson Ltd (1982) 41 ALR 509; 60 FLR 430; (1982) ATPR ¶40-295 at 43,669, Lockhart J relied on the findings of fact which were made in previous proceedings against the respondent arising out of a contravention of the resale price maintenance provisions of the Act. Those findings were treated as prima facie evidence for the purpose of the present proceedings in which the applicant sought damages under s 82.

[11,670.15] Equivalent state legislation For the equivalent provisions in the relevant Acts of the states and territories see the comparative table at [10,001]. _____________________

[11,675] agents

Conduct by directors, employees or

(1) If, in: (a) a prosecution for an offence against section 44ZZRF or 44ZZRG in respect of conduct engaged in by a body corporate; or (b) a proceeding under this Part in respect of conduct engaged in by a body corporate, being conduct in relation to which section 44ZZRJ or 44ZZRK, Division 1A of Part IV, section 46 or 46A Part IVB, section 55B or Part V applies; it is necessary to establish the state of mind of the body corporate, it is sufficient to show that: (c) a director, employee or agent of the body corporate engaged in that conduct; and (d) the director, employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and (e) the director, employee or agent had that state of mind. 84

[subs (1) subst Act 59 of 2009 s 3 and Sch 1[41], opn 24 July 2009; am Act 111 of 2009 s 3 and Sch 1[41], opn 17 Nov 2009; Act 44 of 2010 s 3 and Sch 2[46], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[72], opn 1 Jan 2011; Act 185 of 2011 s 3 and Sch 1[3], opn 6 June 2012; Act 83 of 2014 s 3 and Sch 2 item 14, opn 18 July 2014; Act 9 of 2016 s 3 and Sch 1 item 11, opn 25 Feb 2016]

(2) Any conduct engaged in on behalf of a body corporate: (a) by a director, employee or agent of the body corporate within the scope of the person’s actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent; shall be deemed, for the purposes of this Act, to have been engaged in also

by the body corporate. [subs (2) am Act 59 of 2009 s 3 and Sch 1[42], opn 24 July 2009]

[page 674] (3) If, in: (a) a prosecution for an offence against section 44ZZRF or 44ZZRG in respect of conduct engaged in by a person other than a body corporate; or (b) a proceeding under this Part in respect of conduct engaged in by a person other than a body corporate, being conduct in relation to which section 44ZZRJ or 44ZZRK, Division 1A of Part IV, Part IVB, section 55B or Part V, applies; it is necessary to establish the state of mind of the person, it is sufficient to show that: (c) an employee or agent of the person engaged in that conduct; and (d) the employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and (e) the employee or agent had that state of mind. [subs (3) subst Act 59 of 2009 s 3 and Sch 1[43], opn 24 July 2009; am Act 111 of 2009 s 3 and Sch 1[41], opn 17 Nov 2009; Act 44 of 2010 s 3 and Sch 2[46], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[72], opn 1 Jan 2011; Act 185 of 2011 s 3 and Sch 1[4], opn 6 June 2012; Act 83 of 2014 s 3 and Sch 2 item 14, opn 18 July 2014; Act 9 of 2016 s 3 and Sch 1 item 11, opn 25 Feb 2016]

(4) Conduct engaged in on behalf of a person other than a body corporate: (a) by an employee or agent of the person within the scope of the actual or apparent authority of the employee or agent; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first-mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent; shall be deemed, for the purposes of this Act, to have been engaged in also by the first-mentioned person. [subs (4) am Act 59 of 2009 s 3 and Sch 1[44]–[47], opn 24 July 2009]

(4A) If:

(a) a person other than a body corporate is convicted of an offence; and (b) subsection (3) or (4) applied in relation to the conviction on the basis that the person was the person first mentioned in that subsection; and (c) the person would not have been convicted of the offence if that subsection had not been enacted; the person is not liable to be punished by imprisonment for that offence. [subs (4A) insrt Act 59 of 2009 s 3 and Sch 1[48], opn 24 July 2009]

(5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the person’s intention, opinion, belief or purpose. (6) [subs (6) rep Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001] [s 84 subst Act 17 of 1986 s 53; am Act 59 of 2009 s 3 and Sch 1[41], opn 24 July 2009]

SECTION 84 GENERALLY [11,675.1] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. [11,675.5] Corporate intent — s 84(1) A company, like an individual may be liable in both civil and criminal proceedings. As a company is an abstract entity, the state of mind of the company must be determined by the conduct of its servants and agents. At common law the intention of a company is judged by those servants and agents who have such a degree of [page 675] responsibility for the company’s management that they can be said to be acting as the corporation or as the directing mind and will of the corporation: Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170. In many cases it will be difficult to establish that a particular individual

was the directing mind and will of the corporation. To alleviate this difficulty s 84(1) provides that where it is necessary to establish the state of mind of a body corporate it is sufficient to show that a director, servant or agent of the body corporate was engaged in the relevant conduct within the person’s actual or apparent authority. It is not necessary to show that such persons were the directing mind of the corporation: Walplan Pty Ltd v Wallace (1985) 63 ALR 453; (1986) ATPR ¶40-650 at 47,252; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 149 ALR 134; (1996) ATPR ¶41-525. However, questions of authority will still arise: Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719; (1983) ATPR ¶40-358 at 44,326. The provision was repealed and replaced by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 to apply also to a cartel offences under Div 1, Pt IV. See [10,690ZZRA.5]. [11,675.10] “employee or agent” The common law definition of servant (employee) or agent applies equally to the provisions of the Act, though it is clear that the words “employee or agent” when used in s 84 is not limited to any particular grade of servant: Given v Holland (Holdings) (1977) 15 ALR 439; 29 FLR 212 at 218; (1977) ATPR ¶40-029. However, in the context of s 84(2) the reference to “agent” is not a reference to a person who contractually has power to bind the corporation. It is a reference to a person who acts on behalf of the corporation and in so doing is clothed with actual or apparent authority: Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472; 187 ALR 487; [2001] FCA 1549; BC200106710 at [83] per Hill J. The archaic expression “servant” was replaced with the expression “employee” by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. See [10,690ZZRA.5]. [11,675.15] Deeming effect of the conduct of a director, servant or agent — s 84(2) Section 84(2) deems the conduct of a director, employee or agent acting within his or her actual or apparent authority to be conduct engaged in by the body corporate. The section therefore makes it clear that activities by such persons will attract direct liability to the company and no question of vicarious liability arises: Wheeler Grace & Pierucci Pty Ltd v Wright (1989) ATPR ¶40-940 at 50,256; Trade Practices Commission v

Tubemakers of Australia Ltd (1983) 47 ALR 719; (1983) ATPR ¶40-358 at 44,326. Section 84(2) is not expressed to take effect to the exclusion of the common law. The language of s 84(2) discloses a legislative intention to extend rather than limit the liability of corporations for the actions of others; Trade Practices Commission v Queensland Aggregates Pty Ltd (1982) 44 ALR 391; (1982) ATPR ¶40-297 at 43,698; Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91; 143 ALR 328; (1997) ATPR ¶41-567; NMFM Property Pty Ltd v Citibank Ltd [2000] FCA 1558; BC200006827; Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472; 187 ALR 487; [2001] FCA 1549; BC200106710; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [817] per Goldberg J; Australian Competition and Consumer Commission v Telstra Corp Ltd [2007] FCA 1904; BC200711520 at [130] per Gordon J; Investments Realty Pty Ltd v Capital Finance Australia Ltd [2010] NSWSC 993; BC201006603 at [31] per Harrison AsJ; Australian Competition and Consumer Commission (ACCC) v Prysmian Cavi E Sistemi SRL (fka Prysmian Cavi E Sistemi Energia SRL) [2016] FCA 822; BC201605911 at [218] per Besanko J. As the common law principles continue to apply, there are two ways in which it may be determined whether a company has contravened the provisions of the Act: Walplan Pty Ltd v Wallace (1985) 63 ALR 453; (1986) ATPR ¶40-650 at 47,252; Trade Practices Commission v Sun Alliance Australia Ltd (1994) ATPR ¶41-286 at 41,848; Lisciandro v Official Trustee in Bankruptcy (1995) ATPR ¶41-436 at 40,903. [page 676] First, the relevant acts may have been carried out by persons who are regarded as the company or the directing mind of the company, applying the principles set out in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170. There may be more than one directing mind and will of a company: See Australian Competition and Consumer Commission (ACCC) v Prysmian Cavi E Sistemi SRL (fka Prysmian Cavi E Sistemi Energia SRL) [2016] FCA 822;

BC201605911 at [224] per Besanko J. Second, it may be shown that the conduct was within the actual or apparent authority of a director, employee or agent of the company and therefore deemed to be the conduct of the company applying the provisions of s 84(2) of the Act: Wheeler Grace & Pierucci Pty Ltd v Wright, above at 50,256. In the latter case, the question of the nature and scope of the authority of the representative will arise: Trade Practices Commission v Tubemakers of Australia Ltd, above. [11,675.20] Conduct “on behalf of” a body corporate — s 84(2) Section 84(2) deems the conduct of a director, employee or agent of the body corporate acting within the scope of the person’s actual or apparent authority to be the conduct of the body corporate only where that conduct is engaged in “on behalf of” a body corporate: Lisciandro v Official Trustee in Bankruptcy (1995) ATPR ¶41-436; (appeal) Lisciandro v Official Trustee in Bankruptcy (1996) 69 FCR 180; 139 ALR 689; Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91; 143 ALR 328; (1997) ATPR ¶41-567; Australian Competition and Consumer Commission v Telstra Corp Ltd [2007] FCA 1904; BC200711520 at [131] per Gordon J; Consolo Ltd v Bennett [2012] FCAFC 120; BC201206471 at [81] per Keane CJ, McKerracher, Katzmann JJ. The expression “on behalf of” does not have a strict legal meaning and can cover a wide range of relationships: Australian Competition and Consumer Commission (ACCC) v Yazaki Corp (No 2) [2015] FCA 1304; BC201511506 at [217] per Besanko J. Whether the conduct was engaged in “on behalf of” a body corporate will depend on all the circumstances of the case. An act is done “on behalf of” a corporation if either the actor engaged in the conduct intending to do so as representative of or for the corporation, or the actor did so in the course of the corporations’s business, affairs or activities: NMFM Property Pty Ltd v Citibank Limited (2000) 107 FCR 270 at [550]; 186 ALR 442; [2000] FCA 1558; BC200006827 per Lindgren J; Ackers v Austcorp International Limited [2009] FCA 432; BC200903668 at [216] per Rares J; Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78; BC201604491 at [80] per Davies, Gleeson and Edelman JJ. However, in New South Wales Mutual Real Estate Fund Ltd v Brookhouse (1979) 38 FLR 257; (1979) ATPR ¶40-104, Franki J stated that it would be difficult for s 84(2) to apply to a wholly unauthorised statement made a

bystander with the implied consent of an employee of a corporation conducting retail stores who was employed only as a truck driver. The reference in s 84(2) to a person’s “apparent” as well as “actual” authority suggests a narrowing of any difference between the application of the common law principle, such as that found in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 and the application of s 84(2): Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [817] per Goldberg J. An agent’s authority is not determined by whether the agent was authorised to enter into a particular illegal transaction but rather whether, in general, transactions of the sort in question were within the scope of the agent’s employment: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2004) ATPR (Digest) ¶46-260; [2004] FCA 1678; BC200408833 at [100] per Merkel J; Australian Competition and Consumer Commission (ACCC) v Prysmian Cavi E Sistemi SRL (fka Prysmian Cavi E Sistemi Energia SRL) [2016] FCA 822; BC201605911 at [226] per Besanko J. Section 84(2) will not have an application where the representee must be taken to have known that the representor was really acting in his or her own interests and not that of the respondent: Combulk Pty Ltd v TNT Management Pty Ltd (1993) 41 FCR 59; 113 ALR 214; (1993) ATPR [page 677] (Digest) ¶46-101. However, the phrase does not imply that there must be some benefit to the body corporate: Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719; (1983) ATPR ¶40-358 at 44,327. In Consolo Ltd v Bennett [2012] FCAFC 120; BC201206471 at [83] Keane CJ, McKerracher, Katzmann JJ said that there is no warrant in s 84(2)(b) to disregard the fundamental principle that companies are entities with rights and liabilities separate from their shareholders and holding companies are entities separate from their subsidiaries. They said at [84]: To say this is not to say that s 84(2)(b) might not operate to sheet home liability to a holding

company; it is simply to say that the requirement of a direction by a representative with the actual or apparent authority of a holding company is not satisfied by showing no more than a general economic interest in the success of the subsidiary.

[11,675.23] Primary liability of director A director of a corporation who acts on its behalf also acts as himself or herself, and if the corporation is liable under the Act, the director also attracts primary liability: Arktos Pty Ltd v Idyllic Nominees Pty Ltd [2004] FCAFC 119; BC200402620 at [13] per Carr, Tamberlin and R D Nicholson JJ; Cleary v Australian Co-operative Foods Ltd (No 2) (1999) 32 ACSR 701; [1999] NSWSC 991; BC9906556 at [54]–[57]; Citibank Ltd v Liu (2003) ATPR (Digest) ¶46-236; [2003] NSWSC 569; BC200303768 at [53]; Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525 at 541; (1996) ATPR ¶41-534; Arms v Houghton [2006] FCAFC 46; BC200601647 at [38] per Nicholson, Mansfield and Bennett JJ; Houghton v Arms [2006] HCA 59; BC200610333 at [44] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd [2006] FCA 1268; BC200607560 at [286] per Lander J (Genocanna); Motor Trade Finances Prestige Leasing Pty Ltd v Elderslie Finance Group Corporation Ltd [2006] NSWSC 1348; BC200610351 at [259] per White J. As there is primary liability, it is not necessary to rely on accessorial liability under s 75B: Genocanna at [286] per Lander J. This is supported by the reference in s 84(2) that conduct engaged in on behalf of a body corporate by director acting within the scope of actual or apparent authority is deemed “also” to have been engaged in by the body corporate. [11,675.25] Section 84(4) In Argy v Blunts (1990) 26 FCR 112; 94 ALR 719; (1990) ATPR ¶41-015 at 51,275, Hill J said that s 84(4) only imputes the acts of the agent but does not impute the business of the agent to that of the agent’s principal. [11,675.30] “conduct engaged in” — s 84(2) The word “conduct” when used as a noun is defined in s 4(2) of the Act to include the “doing, refusing to do an act, including the making of, or giving effect to a provision of a contract or arrangement, the arriving at, or the giving effect to a provision of an understanding”. Consequently, an admission as to past events is not admissible against a corporation under s 84(2) of the Act as such an admission is not “conduct”.

A distinction should be drawn between the authority to make representations which are in the ordinary course of the servant’s employment and the authority to make admissions about past events: Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1; 58 ALR 423; (1985) ATPR ¶40-512 at 46,093. [11,675.35] Constitutional validity of s 84(2) In Fencott v Muller (1983) 152 CLR 570; 46 ALR 41; 57 ALJR 317; (1983) ATPR ¶40-350, Gibbs CJ in a minority judgment, held that s 84(2) was within the Commonwealth’s constitutional power. That view was adopted by Franki J in Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1; 58 ALR 423; (1985) ATPR ¶40-512 at 46,091. [11,675.40] Equivalent state legislation For the equivalent provisions in the relevant Acts of the states and territories see the comparative table at [10,001]. _____________________ [page 678]

[11,680]

Defences

85 If, in any proceedings under this Part against a person other than a body corporate, it appears to the Court that the person has or may have: (a) engaged in conduct in contravention of a provision of Part IV; or (aa) engaged in conduct in contravention of section 60C or 60K; or (b) engaged in conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f); but that the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused, the Court may relieve the person either wholly or partly from liability to any penalty or damages on such terms as the Court thinks fit. [s 85 subst Act 103 of 2010 s 3 and Sch 5[73], opn 1 Jan 2011; Act 83 of 2014 s 3 and Sch 2 item 15, opn 18 July 2014]

SECTION 85 GENERALLY [11,680.1] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. [11,680.3] Australian Consumer Law

See also ACL ss 207-211.

[11,680.5] Overview This provision was amended as part of the Australian Consumer Law legislation. See [14,500.5]. Prior to its amendment the provision relevantly provided: (1) Subject to subsection (2), in a prosecution for a contravention of a provision of Part VC, it is a defence if the defendant establishes: (a) that the contravention in respect of which the proceedings were instituted was caused by a reasonable mistake of fact, including a mistake of fact caused by reasonable reliance on information supplied by another person; … (c) that: (i) the contravention in respect of which the proceeding was instituted was due to the act or default of another person, to an accident or to some other cause beyond the defendant’s control; and (ii) the defendant took reasonable precautions and exercised due diligence to avoid the contravention.

Reasonable mistake Section 85(1)(a) was amended by the Trade Practices Amendment Act (No 1) 2002 No 128 so that the defence of reasonable mistake was expressly restricted to mistakes of fact, not law. The possibility that the provision might otherwise apply to a mistake of law was raised in Gilmore v Poole-Blunden (1999) 74 SASR 1; 151 FLR 166. See also Australian Competition and Consumer Commission v Murray (2002) ATPR ¶41-899; [2002] FCA 1252; BC200206019 per Heerey J. In Doolan v Waltons Ltd (1981) 39 ALR 408 at 414; (1981) ATPR ¶40527, Lockhart J applied the dictionary definition of the word “mistake” to mean a misconception of the meaning of something; hence, an error or fault in thought or actions. As the exercise of reasonable precautions and due diligence is not a specific component of the defence in s 85(1)(a), it is not necessarily fatal to a defence of reasonable mistake within the meaning of para (a) that a defendant cannot show that he or she took reasonable precautions and exercised due diligence to avoid the contravention: Adams v ETA Foods Ltd (1987) 19 FCR 93; 78 ALR 611; (1987) ATPR ¶40-831 at

48,966 per Gummow J. [page 679] Accident In Doolan v Waltons Ltd (1981) 39 ALR 408 at 414; (1981) ATPR 40-527 Lockhart J applied the dictionary definition of the word “accident” as meaning an unforeseen contingency; a disaster; a happening that is not expected, foreseen or intended; an unpleasant and unintended happening; something resulting from negligence, that results in injury, loss or damage. See also Trade Practices Commission v Sun Alliance Australia Ltd (1994) ATPR 41-286 at 41,849; BC9305175. Reasonable precautions and due diligence The taking of reasonable precautions and the exercise of due diligence is no longer a specific component in each defence provided for in s 85(1).It is now attached as an element in the defence in s 85(1)(c) but not in paras (a) and (b). Accordingly, in the case of paras (a) and (b) it is not necessary, in order to successfully plead the defence, to show that the defendant took reasonable precautions and exercised due diligence to avoid the contravention: Adams v ETA Foods Ltd (1987) 19 FCR 93; 78 ALR 611; (1987) ATPR ¶40-831 at 48,966. In Universal Telecasters Qld Ltd v Guthrie (1978) 18 ALR 531; 32 FLR 360 at 363; (1978) ATPR ¶40-062, Bowen CJ said that the “reasonable precautions” and “due diligence” defence would require the defendant to show that it had laid down a proper system to provide against contravention of the Act and that it had provided adequate supervision to ensure that the system was properly carried out. The acts of servants and agents will have no relevance to the question of whether the defendant took reasonable precautions for the purpose of s 85(1)(c). If a company has laid down a proper system to provide against contravention of the Act (that is, some corporate compliance program) that company derives two distinct benefits. First, it may be able to establish the defence in s 85(1)(c)(ii). Second, if the corporation is found guilty of a contravention, the court, in assessing the penalty, will have regard to whether the company has a corporate compliance program and whether it has a corporate culture conducive to compliance with the Act: Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,153 per French J. See also Eva v Southern Motors Box Hill Pty Ltd (1977)

15 ALR 428; 30 FLR 213. [11,680.10] Acting honestly and reasonably As a result of the Australian Consumer Law legislation, the expression “acting honestly and reasonably” was susbstituted for the expression “reasonable mistake”. [11,680.15] Onus and standard of proof The defendant carries the onus of proof: Brown v Riverstone Meat Co Pty Ltd (1985) 60 ALR 595; (1985) ATPR ¶40-576 at 46,682. The relevant standard of proof is the civil standard: Adams v ETA Foods Ltd (1987) 19 FCR 93; 78 ALR 611; (1987) ATPR ¶40831; Trade Practices Commission v Sun Alliance Australia Ltd (1994) ATPR ¶41-286 at 41,849. [11,680.20] Relief from liability The provision does not operate as a defence to an allegation of a contravention. It confers a discretionary power to dispense with or relieve a contravening party from all or part of a penalty or damages where the person acted honestly and reasonably: Australian Competition and Consumer Commission v Anglo Estates Pty Ltd (2005) ATPR ¶42-044; [2005] FCA 20; BC200500048 at [58] per French J. The provision requires that before a person is relieved in whole or part from a penalty or damages the court must be of the view that the person “ought fairly to be excused”. The use of the word “fairly” imports a notion of fairness or equity and may require regard to be had to the interests of other parties, particularly where a damages award is in issue: Australian Competition and Consumer Commission v Anglo Estates Pty Ltd, above, at [58] per French J. It may be that an occasion for an exercise of the discretion in relation to damages could arise where the injured party is somehow involved in the contravention or has contributed in some way to its own loss: Australian Competition and Consumer Commission v Anglo Estates Pty Ltd, above, at [58] per French J. [page 680] The provision does not preclude its application to a person who has, although acting in contravention of the Act, acted honestly and reasonably in

the belief that he or she was not acting in contravention of the law: Australian Competition and Consumer Commission v Anglo Estates Pty Ltd, above, at [58] per French J. [11,680.30] Equivalent state legislation For the equivalent provisions in the relevant Acts of the states and territories, see the comparative table at [10,001]. _____________________

[11,695]

Jurisdiction of courts

86 (1AA) A reference in this section to this Act, or to a Part, Division or section of this Act, is a reference to this Act, or to that Part, Division or section, as it has effect as a law of the Commonwealth. [subs (1AA) insrt Act 57 of 2000 s 3 and Sch 1; am Act 59 of 2009 s 3 and Sch 1[49], opn 24 July 2009]

(1) Jurisdiction is conferred on the Federal Court in any matter arising under this Act in respect of which a civil proceeding has, whether before or after the commencement of this section, been instituted under this Part. [subs (1) am Act 44 of 2010 s 3 and Sch 2[47], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[74], opn 1 Jan 2011]

(1A) Jurisdiction is conferred on the Federal Circuit Court in any matter arising under section 46, Part IVB or section 55B in respect of which a civil proceeding is instituted by a person other than the Minister. [subs (1A) insrt Act 194 of 1999 s 3 and Sch 25; am Act 23 of 2006 s 3 and Sch 1[1], opn 4 May 2006; Act 116 of 2008 s 3 and Sch 1[7], Sch 3[13A], opn 22 Nov 2008; Act 44 of 2010 s 3 and Sch 2[48], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[75], opn 1 Jan 2011; Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013; Act 9 of 2016 s 3 and Sch 1 item 12, opn 25 Feb 2016]

(2) The several courts of the States are invested with federal jurisdiction within the limits of their several jurisdictions, whether those limits are as to locality, subject-matter or otherwise, and, subject to the Constitution, jurisdiction is conferred on the several courts of the Territories, with respect to any matter arising under Part IVB or section 55B in respect of which a civil proceeding is instituted by a person other than the Minister or the Commission. [subs (2) am Act 222 of 1992 s 19 and Sch 1; Act 36 of 1998 Sch 1; Act 106 of 1998 s 3 and Sch 1; Act 44 of 2010 s 3 and Sch 2[49], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[76], opn 1 Jan 2011; Act 9 of 2016 3 and Sch 1 item 13, opn 25 Feb 2016]

(3) Nothing in subsection (2) shall be taken to enable an inferior court of a State or Territory to grant a remedy other than a remedy of a kind that the court is able to grant under the law of that State or Territory. (3A) The Supreme Court of a State is invested with federal jurisdiction with respect to any matter in respect of which a civil proceeding covered by section 44ZZRI is instituted in that Court. [subs (3A) insrt Act 59 of 2009 s 3 and Sch 1[50], opn 24 July 2009]

(3B) Subject to the Constitution, the Supreme Court of a Territory is conferred with jurisdiction with respect to any matter in respect of which a civil proceeding covered by section 44ZZRI is instituted in that Court. [subs (3B) insrt Act 59 of 2009 s 3 and Sch 1[50], opn 24 July 2009]

(4) The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than: (a) the jurisdiction of the Federal Circuit Court under subsection (1A); and [page 681] (b) the jurisdiction of the several courts of the States and Territories under subsection (2); and (ba) the jurisdiction of the Supreme Courts of the States under subsection (3A); and (bb) the jurisdiction of the Supreme Courts of the Territories under subsection (3B); and (c) the jurisdiction of the High Court under section 75 of the Constitution. [subs (4) am Act 194 of 1999 s 3 and Sch 25; Act 59 of 2009 s 3 and Sch 1[51], opn 24 July 2009; Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013] [s 86 subst Act 23 of 1987 Sch]

SECTION 86 GENERALLY [11,695.5] Section 86 and the cross-vesting legislation Prior to 1987, s 86 conferred on the Federal Court exclusive jurisdiction (except for the jurisdiction of the High Court under s 75 of the Constitution) to hear and determine proceedings under the Act. The purpose of investing the Federal

Court with exclusive jurisdiction may have been to achieve a consistent body of case law by that court: Metroplaza Pty Ltd v Girvan (NSW) Pty Ltd (1992) 37 FCR 91; (1992) ATPR ¶41-157 at 40,145 per Rogers CJ. Section 86 was amended in 1987 to give effect to the cross-vesting scheme which commenced on 1 July 1988. Section 86 in its present form confers jurisdiction on the Federal Court in any matter arising under the Act in respect of which a civil proceeding has been instituted. The state and territory courts are given jurisdiction in relation to matters arising under IVB or in respect of which a civil proceeding is instituted by a person other than the minister or the commission: s 86(2). See also Ewins v Buderim Imports Pty Ltd (1987) 76 ALR 157; (1987) ATPR ¶40-825; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 137 ALR 47; (1996) ATPR ¶41-496; Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; BC200606641 at [32] per Basten JA. Under the cross-vesting scheme special provisions apply to the transfer of proceedings involving a “special federal matter”. In Re Wakim; Ex parte McNally (1999) 198 CLR 511; 163 ALR 270, the High Court held invalid under the Constitution those provisions of the cross-vesting scheme that conferred state jurisdiction on federal courts. The states passed legislation to remedy the effect of the decision. For example, the NSW Parliament passed the Federal Courts (State Jurisdiction) Act 1999. It retrospectively validated decisions of the Federal Court given in the exercise of jurisdiction purporting to have been conferred on the Federal Court: see Hore v Albury Radio Taxis Co-op Society Ltd [2002] NSWSC 1130; BC200207407 per Campbell J. The Commonwealth also amended the definition of “special federal matter” to include a matter arising under Pt IV of the Act and the Competition Code in s 150A of the Act of the Northern Territory and the Australian Capital Territory only. If a special federal matter arises in proceedings in a state or territory court, the proceedings must be transferred to the Federal Court unless there are particular circumstances that make the transfer inappropriate. The effect is that the Federal Court has de facto exclusive jurisdiction in relation to Pt IV matters under the Act and the mirror provisions in the Competition Code applying only in the Northern Territory and the Australian Capital Territory: see Hore v Albury Radio Taxis Co-op Society Ltd, above, per Campbell J. [11,695.10] Federal Court’s accrued jurisdiction

Pursuant to s 77 of

the Constitution, the parliament has the power to: • define the jurisdiction of any Federal Court; • define the extent to which the jurisdiction of any Federal Court is exclusive of that which belongs to the courts of the state; and • invest any court of a state with federal jurisdiction. The combination of this section and ss 75 and 76 of the Constitution means that no jurisdiction may be conferred on any Federal Court created by the parliament except in “matters” of the kind described in ss 75 and 76. [page 682] Prior to the 1987 amendments, s 86 vested exclusive jurisdiction in the Federal Court. Although, in that form, it departed from the language used in the Constitution, namely the reference to a “matter”, it was accepted as being in conformity with s 76 of the Constitution: see Fencott v Muller (1983) 152 CLR 570; 46 ALR 41; 57 ALJR 317; (1983) ATPR ¶40-350 at 44,218. It was not uncommon for applicants who brought proceedings under the Act to not only rely on the remedies available under the Act, but also to raise common law claims, for example in passing off, negligence or breach of contract: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; 33 ALR 465; (1981) ATPR ¶40-197. Whether the ambit of the Federal Court’s jurisdiction is wide enough to include all issues pleaded by an applicant will depend upon the meaning of “any matter arising under laws made by the parliament” in s 76(ii) of the Constitution: Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 18 FCR 212; 76 ALR 173; (1988) ATPR ¶40-835. See also Allstate Life Insurance Co v ANZ Banking Group Ltd (No 1) (1996) 64 FCR 1; 142 ALR 412; Bright v Femcare Ltd (1999) 166 ALR 743; (1999) ATPR ¶41-720; Carnegie Corporation Ltd v Pursuit Dynamics plc [2007] FCA 1010; BC200705189 at [46] per French J. Where a party in a given set of circumstances claims that he or she is entitled to relief, the fact that his or her claim is based on several legal grounds does not mean that there is more than one “matter” in controversy: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd, above, CLR at 499; Caruth v Roche Products Pty Ltd (FCA, Gummow J, No 297/92, 24

March 1992, unreported). In Fencott v Muller, above, ATPR at 44,221 the majority accepted the view in the Philip Morris case that the ambit of a matter arising under a federal law may extend beyond claims which arise under that law or which are to be determined by reference to that law alone. See also Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224; 117 ALR 253; RGC Sands Ltd v Wimmera Industrial Minerals Pty Ltd (1999) 161 ALR 93; 47 IPR 115; Cheers v Entercorp Finance Pty Ltd (1999) 33 ACSR 97; W G & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd (1999) 48 IPR 111; [1999] FCA 1776; BC9908622; Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) ATPR ¶41-743; [1999] FCA 1645; BC9907695; (appeal) Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; (2001) ATPR ¶41-794 at 42,552; [2000] FCA 1572; BC200006717; see Sky Channel Marketing Pty Ltd v Hall (2006) ATPR ¶42-088; [2005] NSWSC 909; BC200507405 per Einstein J; see Houghton v Arms [2006] HCA 59; BC200610333 at [26] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Solitare Pty Ltd v Quikfund (Australia) Pty Ltd [2010] FCA 1384; BC201009465 per Nicholas J. See Mason v MWREDC Ltd (2011) 199 FCR 151; [2011] FCA 1512; BC201109869 per Greenwood J. Accrued jurisdiction can only arise where the single controversy which is the “matter” is one which is within the jurisdiction conferred upon the court. If no federal jurisdiction is properly invoked there can be no accrued jurisdicton: Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 83; BC200302106 at [18] per Black CJ and Hill J; Willoughby v Clayton Utz [2003] FCA 120; BC200300531 at [23] per Nicholson J. Whether the facts upon which a federal claim and non-federal claim can be said to constitute a single “matter” depends on whether they arise out of common transactions and facts or a common substratum of facts: Re Wakim; Ex Parte McNally (1999) 198 CLR 511; 24 Fam LR 669; [1999] HCA 27; BC9903189 at [135]–[150]: Rogers v Asset Loan Co Pty Ltd [2006] FCA 434; BC200602418 at [53] per Greenwood J. Whatever formula is applied, it must result in leaving outside the ambit of a matter a completely disparate claim constituting in substance a separate proceeding, that is, a non-federal matter which is distinct from the matter which attracted federal jurisdiction: Fencott v Muller, above. Also, the federal judicial power is attracted only to the whole of the controversy if the

federal claim is a substantial aspect: Fencott v Muller, above, ALR at 69; ATPR at 44,223 per Mason, Murphy, Brennan, Deane JJ; Saitta Pty Ltd v Commonwealth [2001] FCA 817; BC200103470 at [45] per Gray J. In Fencott v Muller, above, ALR at 69; ATPR at 44,223, the majority (Mason, Murphy, Brennan, Deane JJ) said: [page 683] A federal claim which is a trivial or insubstantial aspect of the controversy must, of course, itself be resolved in federal jurisdiction, but it would be neither appropriate nor convenient in such a case to translate to federal jurisdiction the determination of the substantial aspects of the controversy from the jurisdiction to which they are subject in order to determine the trivial or insubstantial federal aspect. Again, impression and practical judgment must determine whether it is appropriate and convenient that the whole controversy be determined by the exercise of federal judicial power.

Nor will it be sufficient if claims made under the Act have been raised purely for the purpose of fabricating jurisdiction: Burgundy Royale Investments Pty Ltd v Westpac Banking Corp, above; Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445; 68 IR 120; WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd, above; Cook v Pasminco Ltd (2000) 99 FCR 548; (2000) ATPR ¶41-167 at 41,032; [2000] FCA 677; BC200002707; Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44; 111 LGERA 406; 179 ALR 462; (2001) ATPR ¶41-800. In Martin v Tasmania Development and Resources (1999) 163 ALR 79; (1999) ATPR (Digest) ¶46-193 at 52,377, Heerey J said that there is a high standard to be achieved by a respondent who asserts that the Federal Court should deny jurisdiction over associated common law where claims under a federal statutory jurisdiction are dismissed. If, however, a bona fide federal claim is made, it will attract the Federal Court’s accrued or pendent jurisdiction provided that the jurisdictional facts have been established: Hughes v Western Australian Cricket Assn Inc (1986) 19 FCR 10; 69 ALR 660; (1986) ATPR ¶40-736. Accrued jurisdiction therefore does not depend upon an assessment being made of the strengths of the federal claim; rather the question is whether the federal claim is genuine: Johnson Tiles Pty Ltd v Esso Australia Ltd, above, (2000), ATPR at 40,618; Johnson Tiles Pty Ltd v Esso Australia Ltd, above, (2000 — appeal); WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd, above; Cook v Pasminco Ltd, above ATPR at 41,032.

Further, as the jurisdiction of the Federal Court is to determine each of the claims which together constitute a federal matter, that jurisdiction will not be lost because all or some of the claims constituting the matter, may not be successful: Burgundy Royale Investments Pty Ltd v Westpac Banking Corp, above, ATPR at 49,015; Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 at 481-2; Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd, above, ALR at 450; Johnson Tiles Pty Ltd v Esso Australia Ltd, above, (2000), ATPR at 40,619–20; Johnson Tiles Pty Ltd v Esso Australia Ltd, above, (2000 — appeal); Dowdell v Knispel Fruit Juices Pty Ltd [2003] FCA 851; BC200304504 at [15] per Selway J. Prior to 1987, when the Federal Court had exclusive jurisdiction under the Act, the accrued jurisdiction of the court was particularly significant to litigants who also wished to simultaneously raise common law claims. Although the Federal Court no longer has exclusive jurisdiction, the accrued jurisdiction is still relevant eg in relation to Pt IV matters (see s 86(2)) or because the Federal Court may not transfer proceedings to a state court pursuant to s 86A of the Act. [11,695.15] Federal Court’s associated jurisdiction The associated jurisdiction of the Federal Court arises under s 32 of the Federal Court of Australia Act 1976. That section confers jurisdiction on the Federal Court, to the extent that the Constitution permits, in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the court is invoked. As the Constitution does not confer jurisdiction on the Federal Court in respect of a matter because it is “associated” with it, s 32 of the Federal Court of Australia Act cannot confer on the Federal Court jurisdiction except in respect of matters enumerated in ss 75 and 76 of the Constitution: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 493-4; 33 ALR 465; (1981) ATPR ¶40-197. Once the jurisdiction of the Federal Court is invoked, what s 32 does is to extend that jurisdiction but only in relation to associated matters which arise under other federal laws, even though the Parliament has not (except by s 32 itself) conferred jurisdiction on the Federal Court in respect of those matters: Philip Morris, above, CLR at 494; Caboolture Park Shopping Centre

[page 684] Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224; 117 ALR 253; Ogawa v Federal Magistrate Phipps [2006] FCA 361; BC200601804 at [10] per Finkelstein J; Carnegie Corporation Ltd v Pursuit Dynamics plc [2007] FCA 1010; BC200705189 at [46] per French J. [11,695.20] Breach of implied terms The breach of a term implied by the Act does not amount to a contravention of the Act. Such a claim is contractual in nature even though imposed by a provision of the Act: Arturi v Zupps Motors Pty Ltd (1980) ATPR ¶40-189. As such the present position is, and the position prior to 1987 was, that state courts have jurisdiction to deal with these matters: Zalai v Col Crawford (Retail) Pty Ltd (1980) 32 ALR 187; (1980) ATPR ¶40-177; Arturi v Zupps Motors Pty Ltd, above; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; 49 ALR 193; 1 IPR 193; 57 ALJR 731. The issue is no longer of any practical relevance. As a result of the passage of the Australian Consumer Law, the regime of implied conditions and warranties in the Act was replaced by a regime of statutory consumer guarantees. See [14,500.5]. [11,695.30] Jurisdiction of the Federal Magistrates Court The effect of s 86A(4) is that the Federal Magistrates Court has jurisdiction only for those matters specified in s 86(1A). This is irrespective of whether the matter was commenced in the Federal Court: Ogawa v Federal Magistrate Phipps [2006] FCA 361; BC200601804 at [12] per Finkelstein J. Section 86(1A) was amended by the Trade Practices Legislation Amendment Act 2008 which commenced on 22 November 2008. See [10,005.10]. The Trade Practices Legislation Amendment Act 2008 introduced two amendments to s 86(1A). The first amendment extends the jurisdiction of the Federal Magistrates Courts to matters arising under s 46 of the Act. The second amendment allows proceedings in the Federal Magistrates Court under s 86(1A) to be commenced by persons, which now include the commission. In its Bill form, the first amendment was considered by the Senate

Standing Committee on Economics in its report, The Trade Practices Legislation Amendment Bill 2008 [Provisions], published in August 2008. The Senate committee believed that measures with the potential to reduce the cost of parties seeking justice were worth considering: para 3.16. The committee recommended the first of the amendments: Recommendation 3. The second amendment was moved by independent Senator Nick Xenophon and accepted by the government during final debates on the Bill. Part 5 of the Federal Magistrates Act 1999 permits the Federal Magistrates Court to transfer proceedings to the Federal Court. [11,695.35] Jurisdiction of state courts and tribunals Section 86(2) indicates an intention to confer jurisdiction under the Act upon every institution of each state which answers the description of a “court of a state” in s 77(iii) of the Constitution: Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) ATPR ¶42-126; [2006] NSWCA 185; BC200605484 at [15] per Spigelman CJ (Hodgson and Bryson JJA agreeing). See also Skiwing Pty Ltd v Trust Company of Australia [2006] NSWCA 276; BC200608070 per Spigelman CJ, Hodgson JA and Bryson JA. The words “court of a state” must be understood as a constitution expression: Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) ATPR ¶42-126; [2006] NSWCA 185; BC200605484 at [44] per Spigelman CJ (Hodgson and Bryson JJA agreeing). An essential feature of a court is that it be an institution composed of judges: Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) ATPR ¶42-126; [2006] NSWCA 185; BC200605484 at [59] per Spigelman CJ (Hodgson and Bryson JJA agreeing). The Administrative Decisions Tribunal (NSW) is not a court of a state under s 86(2) of the Act: Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) ATPR ¶42-126; [2006] NSWCA 185; BC200605484 at [65] per Spigelman CJ (Hodgson and Bryson JJA agreeing). Sections 86(3A) and 86(3B) were inserted by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. See [10,690ZZRA.5]. Section 86(3A) invests the Supreme Court of a State with federal jurisdiction in relation to civil orders under s 44ZZRI relating to a criminal cartel offence under Div 1, Pt IV. [page 685]

Subject to the Constitution, s 86(3A) invests the Supreme Court of a Territory with federal jurisdiction in relation to civil orders under s 44ZZRI relating to a criminal cartel offence under Div 1, Pt IV. [11,695.40] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. _____________________

[11,698] Court

Limit on jurisdiction of Federal Circuit

86AA If proceedings under section 82 are instituted in, or transferred to, the Federal Circuit Court, the Federal Circuit Court does not have jurisdiction to award an amount for loss or damage that exceeds: (a) $750,000; or (b) if another amount is specified in the regulations — that other amount. Note: For transfers from the Federal Court to the Federal Circuit Court, see section 32AB of the Federal Court of Australia Act 1976. For transfers from the Federal Circuit Court to the Federal Court, see section 39 of the Federal Circuit Court of Australia Act 1999. [s 86AA insrt Act 194 of 1999 s 3 and Sch 25; am Act 161 of 2000 s 3 and Sch 1; Act 23 of 2006 s 3 and Sch 1, opn 4 May 2006; Act 103 of 2010 s 3 and Sch 5[77], opn 1 Jan 2011; Act 13 of 2013 s 3 and Sch 1 items 88, 89, Sch 2 item 1, opn 12 Apr 2013]

[11,710]

Transfer of matters

86A (1) Where: (a) a civil proceeding instituted (whether before or after the commencement of this section) by a person other than the Minister or the Commission is pending in the Federal Court; and (b) a matter for determination in the proceeding arose under Part IVB or section 55B; the Federal Court may, subject to subsection (2), upon the application of a party or of the Federal Court’s own motion, transfer to a court of a State or

Territory the matter referred to in paragraph (b) and may also transfer to that court any other matter for determination in the proceeding. [subs (1) am Act 222 of 1992 s 19 and Sch 1; Act 36 of 1998 Sch 1; Act 106 of 1998 s 3 and Sch 1; Act 44 of 2010 s 3 and Sch 2[50], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[78], opn 1 Jan 2011; Act 9 of 2016 s 3 and Sch 1 item 14, opn 25 Feb 2016]

(2) The Federal Court shall not transfer a matter to another court under subsection (1) unless the other court has power to grant the remedies sought before the Federal Court in the matter and it appears to the Federal Court that: (a) the matter arises out of or is related to a proceeding that is pending in the other court; or (b) it is otherwise in the interests of justice that the matter be determined by the other court. (3) Where the Federal Court transfers a matter to another court under subsection (1): (a) further proceedings in the matter shall be as directed by the other court; and (b) the judgment of the other court in the matter is enforceable throughout Australia and the external Territories as if it were a judgment of the Federal Court. (4) [subs (4) rep Act 103 of 2010 s 3 and Sch 5[79], opn 1 Jan 2011] [page 686] (5) [subs (5) rep Act 103 of 2010 s 3 and Sch 5[79], opn 1 Jan 2011] (6) [subs (6) rep Act 103 of 2010 s 3 and Sch 5[79], opn 1 Jan 2011] (7) [subs (7) rep Act 103 of 2010 s 3 and Sch 5[79], opn 1 Jan 2011] [s 86A insrt Act 23 of 1987 Sch]

SECTION 86A GENERALLY [11,710.5] Overview Section 86A was inserted to give effect to the cross-vesting legislation which was enacted in 1987. This section allows the Federal Court to transfer certain matters to a court of the state or territory.

The discretion conferred under s 86A is not limited except by the scope of s 86A: Anavam Pty Ltd v Century Yuasa Batteries Pty Ltd (1991) ATPR ¶41083. In that case, at 52,299, Gummow J said that the court should resist the creation of a series of rules and subrules in relation to s 86A. [11,710.8] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. [11,710.9] Matters for determination in proceedings Section 86A(1) confers power to transfer proceedings arising under Pt IVB. In addition, s 86A(1) confers power to transfer all other matters for determination in the proceedings. The practical effect is that the proceedings as a whole may be transferred: Crandell v Servier Laboratories (Aust) Pty Ltd [1999] FCA 1461; BC9906912; Wall v SBA Foods Pty Ltd [1999] FCA 1831; BC9908548; Griffin Projects Pty Ltd v Pivot Ltd [2000] FCA 1433; BC200006209. [11,710.10] Transfer from the Federal Court to another court The reference to “another court” is intended to take into account a state Supreme Court or territory court which has had a matter transferred to it pursuant to s 86A: Ewins v Buderim Imports Pty Ltd (1987) 76 ALR 157; (1987) ATPR ¶40-825 at 48,922. In PIHA Pty Ltd v Vinidex Tubemakers Pty Ltd (1999) ATPR (Digest) ¶46194, proceedings were transferred from the Perth registry of the Federal Court to the Brisbane registry of the same court as there were a number of multi-state aspects of the case and the Perth registry was not the most appropriate. In Bell Group Ltd v Westpac Banking Corp (2000) 173 ALR 427; [2000] FCA 439; BC200001618 proceedings were transferred from the Federal Court to the Supreme Court of Western Australia because, among other things, the proceedings arose out of and were related to winding up proceedings. In Gemcove Asset Pty Ltd v Sirote Pty Ltd (2000) 172 ALR 599; [2000] FCA 619; BC200002427 proceedings in the Federal Court were transferred to the District Court of Western Australia because of the costs that would be

incurred in continuing the proceedings in the Federal Court in view of the amount of the claim. In Griffin Projects Pty Ltd v Pivot Ltd [2000] FCA 1433; BC200006209, proceedings were transferred from the Federal Court to the New South Wales Supreme Court as for the most part the claim was contractual in nature. In Radic v Henley Properties (NSW) Pty Ltd [2000] FCA 1416; BC200006042 Sackville J declined to transfer proceedings to a New South Wales court because the claim was modest and the appropriate state court would be the New South Wales Supreme Court. In Corrimal Holdings Pty Ltd v Lissadel Holdings Pty Ltd (2003) ATPR ¶41-928; [2003] FCA 213; BC200301031, Moore J transferred proceedings to the District Court as there were no novel issues of law to be determined and the matter fell within the jurisdictional limits of the District Court. [page 687] In World Brands Management Pty Ltd v Brazin Ltd [2005] FCA 1673; BC200510022, Gray J transferred proceedings to the Supreme Court of Victoria as the action was essentially contractual in nature. In Robbins v Sons of Gwalia Ltd [2009] FCA 96; BC200900619, Jacobson J transferred proceedings to the Supreme Court of Western Australia to enable them to be heard together with shareholder proceedings in that court. In Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 60 FCR 366; 132 ALR 645; (1995) ATPR ¶41-441 Branson J transferred the proceedings from the District Court of New South Wales to the Federal Court of Australia’s South Australian registry. A decisive factor was that the District Court did not have the jurisdiction to make the orders sought. In Strike v Dive Queensland Inc (1998) ATPR ¶41-605 proceedings were transferred to the District Court of Queensland because of costs of Federal Court proceedings and because the witnesses resided in Queensland. _____________________

[11,715] Transfer of certain proceedings to Family Court

86B

[s 86B rep Act 103 of 2010 s 3 and Sch 5[80], opn 1 Jan 2011] SECTION 86B GENERALLY

[11,715.5] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the “Comparative Table — Consumer Protection Provisions of the Trade Practices Act and ASIC Act” at [10,002]. _____________________

[11,717]

Non-punitive orders

86C (1) The Court may, on application by the Commission, make one or more of the orders mentioned in subsection (2) in relation to a person who has engaged in contravening conduct. (1A) The Court may, on application by the Director of Public Prosecutions, make one or more of the orders mentioned in subsection (2) in relation to a person who has engaged in contravening conduct that is: (a) a contravention of section 44ZZRF or 44ZZRG; or (b) an involvement in a contravention of section 44ZZRF or 44ZZRG. [subs (1A) insrt Act 59 of 2009 s 3 and Sch 1[52], opn 24 July 2009]

(2) The orders that the Court may make in relation to the person are: (a) except in the case of contravening conduct that relates to section 60C or 60K — a community service order; and (b) except in the case of contravening conduct that relates to section 60C or 60K — a probation order for a period of no longer than 3 years; and (c) an order requiring the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; and (d) an order requiring the person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.

[subs (2) am Act 83 of 2014 s 3 and Sch 2 items 16, 17, opn 18 July 2014]

(3) This section does not limit the Court’s powers under any other provision of this Act. [page 688] (4) In this section: community service order, in relation to a person who has engaged in contravening conduct, means an order directing the person to perform a service that: (a) is specified in the order; and (b) relates to the conduct; for the benefit of the community or a section of the community. Example: The following are examples of community service orders: (a) an order requiring a person who has made false representations to make available a training video which explains advertising obligations under this Act; and (b) an order requiring a person who has engaged in misleading or deceptive conduct in relation to a product to carry out a community awareness program to address the needs of consumers when purchasing the product. contravening conduct means conduct that: (a) contravenes Part IV or IVB or section 55B, 60C, 60K or 95AZN; or (b) constitutes an involvement in a contravention of any of those provisions. [def am Act 63 of 2001 s 3 and Sch 2, opn 26 July 2001; s 3 and Sch 2, opn 15 Dec 2001; Act 131 of 2006 s 3 and Sch 1[20], opn 1 Jan 2007; Act 111 of 2009 s 3 and Sch 1[42], opn 17 Nov 2009; Act 103 of 2010 s 3 and Sch 5[81], opn 1 Jan 2011; Act 9 of 2016 s 3 and Sch 1 item 15, opn 25 Feb 2016]

probation order, in relation to a person who has engaged in contravening conduct, means an order that is made by the Court for the purpose of ensuring that the person does not engage in the contravening conduct, similar conduct or related conduct during the

period of the order, and includes: (a) an order directing the person to establish a compliance program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and (b) an order directing the person to establish an education and training program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and (c) an order directing the person to revise the internal operations of the person’s business which lead to the person engaging in the contravening conduct. [subs (4) am Act 83 of 2014 s 3 and Sch 2 item 18, opn 18 July 2014] [s 86C insrt Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001]

SECTION 86C GENERALLY [11,717.5] Overview Section 86C was inserted by the Trade Practices Amendment Act (No 1) 2001. On the application of the commission the court may make a number of non-punitive orders in relation to a person who has engaged in contravening conduct. The orders that may be made are: • a community service order; • a probation order for a period not longer than 3 years; [page 689] •

an order requiring the person to disclose specified information that the person possesses or has access to; • an order requiring the person to publish at their expense an advertisement in a manner specified. Orders of this type were recommended by the Australian Law Reform Commission in its report Compliance with the Trade Practices Act 1974,

Report No 68, 1994. Section 86C(1A) was added by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. It permits the Director of Public Prosecutions to apply for similar orders in relation to a person involved in criminal cartel offences. See [10,690ZZRA.5]. A separate provision applies to the Australian Consumer Law. See [14,500.5] and ACL s 246. [11,717.10] Community service orders under s 86C(2)(a) In Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) (2003) Aust Contract R ¶90-164; [2002] FCA 1548; BC200207781 French J made an order by consent requiring the respondent to create an internet site explaining to consumers the obligations of advertisers under the Act. In Australian Competition and Consumer Commission v Econvite Pty Ltd (2003) ATPR ¶41-959; [2003] FCA 964; BC200305289, French J made an order by consent requiring the respondent to produce pamphlets for distribution. In Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856; BC200504316 Nicholson J ordered that the respondent publish a notice on its website and run advertisements in newspapers. Also Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 per Murphy J. In Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; BC201104538 Gilmour J approved the publication of a notice on a number of websites maintained by the respondent. In Australian Competition and Consumer Commission v Startel Communication Co Pty Ltd [2014] FCA 352; BC201402397 Collier J required the respondent to publish online educational information about a consumer’s rights in relation to unsolicited consumer agreements. In Australian Competition and Consumer Commission (ACCC) v Woolworths Ltd [2016] FCA 44; BC201600666, Edelman J made orders requiring the respondent to publish a prominent link on its website to inform customers of its obligations under the Australian Consumer Law. [11,717.15] Probation orders under s 86C(2)(b) — compliance programmes On the application of the commission, a probation order may

be made requiring a respondent to institute a trade practices compliance program: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) (2003) Aust Contract R ¶90-164; [2002] FCA 1548; BC200207781; Australian Competition and Consumer Commission v Econvite Pty Ltd (2003) ATPR ¶41-959; [2003] FCA 964; BC200305289. See Australian Competition and Consumer Commission v Commonwealth Bank of Australia [2003] FCA 1129; BC200306147 at [90] per Conti J; Osgaig Pty Ltd v Ajisen (Melbourne) Pty Ltd (2004) 213 ALR 153; 63 IPR 156; [2004] FCA 1394; BC200407145 at [128] per Weinberg J; see Cousins v SJS Imports (2005) ATPR ¶42-043; [2004] VSC 521; BC200408814 per Dodds-Streeton J; Australian Competition and Consumer Commission v Keshow [2005] FCA 558; BC200503204 at [117] per Mansfield J (order made by consent); Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2006] FCA 1118; BC200606499 at [13] per Siopis J; Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (2007) ATPR ¶42-140; [2006] FCA 1730; BC200610390 at [12] per Nicholson J; Australian Competition and Consumer Commission v Digital Products Group Pty Ltd [2006] FCA 1732; BC200611111 at [13] per Tracey J; Australian Competition and Consumer Commission v Knight (2007) ATPR ¶42-165; [2007] FCA 1011; BC200705190 at [67] per Mansfield J; Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859; BC200710470 at [14] per Kenny J; Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd (2008) ATPR ¶42-225; [2008] FCA 402; BC200802015 at [24] per Finn J; Australian Competition and [page 690] Consumer Commission v EDirect Pty Ltd (2008) ATPR ¶42-216; [2008] FCA 65; BC200802065 at [37] per Jacobson J; Australian Competition and Consumer Commission v Australian Karting Association (NSW) Inc [2009] FCA 1255; BC200910103 at [97] per Bennett J; Australian Competition and Consumer Commission v Telwater Pty Ltd [2009] FCA 263; BC200901829 at [101] per Spender J; Australian Competition and Consumer Commission v Wilson Parking 1992 Pty Ltd [2009] FCA 1580; BC200911576 at [49]

Barker J; Australian Competition & Consumer Commission (ACCC) v Refund Home Loans Pty Ltd (No 2) [2010] FCA 237; BC201001380 at [6] per Logan J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 per Bennett J; Australian Competition and Consumer Commission v Sontax Australia (1988) Pty Ltd [2011] FCA 1202; BC201108299 per Gordon J; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629; BC201204202 per Murphy J; Australian Competition and Consumer Commission v Bruhn [2012] FCA 959; BC201206669 per Lander J; Australian Competition and Consumer Commission v Cotton On Kids Pty Ltd [2012] FCA 1428; BC201209956 per Tracey J; Australian Competition and Consumer Commission v Luv-a-Duck Pty Ltd [2013] FCA 1136; BC201314592 per Davies J; Australian Competition and Consumer Commission v HP Superstore Pty Ltd [2013] FCA 1317; BC201316405 per Middleton J; Australian Competition and Consumer Commission v Moonah Superstore Pty Ltd [2013] FCA 1314; BC201315506 per Middleton J; Australian Competition and Consumer Commission v Salecomp Pty Ltd [2013] FCA 1316; BC201315503 per Middleton J; Australian Competition and Consumer Commission v Launceston Superstore Pty Ltd [2013] FCA 1315; BC201315502 per Middleton J; Australian Competition and Consumer Commission v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393; BC201410907 per Wigney J; Australian Competition and Consumer Commission (ACCC) v Derodi Pty Ltd [2016] FCA 365; BC201603643 per Edelman J; Australian Competition and Consumer Commission (ACCC) v Colgate-Palmolive Pty Ltd (No 2) [2016] FCA 528; BC201603631 per Jagot J. In Australian Competition and Consumer Commission v Anglo Estates Pty Ltd (2005) ATPR ¶42-044; [2005] FCA 20; BC200500048 at [46] French J said that probation orders requiring a compliance programme were not appropriate for a small family company where the company is essentially the alter ego of the persons who are responsible for its contravening conduct. See also Australian Competition and Consumer Commission v Telstra Corporation Ltd (2008) ASAL ¶55-182; (2007) ATPR ¶42-207; [2007] FCA 2058; BC200711308 at [5] per Gordon J; Australian Competition and Consumer Commission (ACCC) v Gordon Superstore Pty Ltd [2014] FCA 452; BC201403444 per Edmonds J.

[11,717.18] Audit of compliance programmes Section 86C does not support an order requiring that a compliance programme be subject to an external audit: BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452; [2004] FCAFC 167; BC200403906 at [42] per Gray, Goldberg and Weinberg JJ; Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd (2004) 207 ALR 329; [2004] FCA 693; BC200403438 at [50] per Lee J; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) [2004] FCA 1471; BC200407679 at [56] per Sackville J; Australian Competition and Consumer Commission v Auspine Ltd [2006] FCA 1215; BC200607117 at [35] (Auspine) per Besanko J; Australian Competition and Consumer Commission (ACCC) v ACN 117 372 915 Pty Ltd (in Liq) (Formerly Advanced Medical Institute Pty Ltd) [2015] FCA 1087; BC201509793 at [14] per North J. An external audit is one that leaves the major obligations undertaken by a respondent to a third party or makes the question of whether there has been a breach turn on the opinion of a third party: Auspine at [35] per Besanko J. Although prior to the introduction of s 86C orders had been made requiring an external audit of compliance programmes, the legislative basis of the orders does not appear to have been considered: BMW Australia Ltd v Australian Competition and Consumer Commission, above, at [43] per Gray, Goldberg and Weinberg JJ. Section 80 or s 23 of the Federal Court of Australia Act 1976 possibly provides a statutory basis for the appointment of an external auditor: BMW [page 691] Australia Ltd v Australian Competition and Consumer Commission, above, at [51] per Gray, Goldberg and Weinberg JJ; Australian Competition and Consumer Commission (ACCC) v ACN 117 372 915 Pty Ltd (in Liq) (Formerly Advanced Medical Institute Pty Ltd) [2015] FCA 1087; BC201509793 at [29]–[30] per North J. See also [11,625.60]. [11,717.20] Orders to disclose information under s 86C(2)(c) In Australian Competition and Consumer Commission v Virgin Mobile

Australia Pty Ltd (No 2) (2003) Aust Contract R ¶90-164; [2002] FCA 1548; BC200207781 French J made an order by consent requiring the respondent to despatch a notice to consumers affected by the respondent’s misleading conduct. Also Australian Competition and Consumer Commission v Prouds Jewellers Pty Ltd (No 2) (2008) ATPR ¶42-230; [2008] FCA 476; BC200802503 at [13] per Moore J. See Australian Competition and Consumer Commission v Telstra Corporation Ltd (2008) ASAL ¶55-182; (2007) ATPR ¶42-207; [2007] FCA 2058; BC200711308 per Gordon J; Australian Competition and Consumer Commission v Harbin Pty Ltd [2008] FCA 1792; BC200810538 per Finn J; Australian Competition and Consumer Commission v Tel.Pacific Ltd [2009] FCA 279; BC200901996 at [15] per Gordon J; Australian Competition and Consumer Commission v Clarion Marketing Pty Ltd [2009] FCA 1441; BC200911007 at [98] per Nicholas J; Australian Competition and Consumer Commission v Clarion Marketing Pty Ltd [2009] FCA 1558; BC200911910 at [6] per Nicholas J; Australian Competition and Consumer Commission v Wilson Parking 1992 Pty Ltd [2009] FCA 1580; BC200911576 at [49] Barker J; Australian Competition and Consumer Commission v Cosic Holdings Pty Ltd [2009] FCA 1579; BC200911577 at [61] per Barker J; Australian Competition and Consumer Commission v Star Promotions Club Pty Ltd [2010] FCA 139; BC201001050 per Rares J; Australian Competition and Consumer Commission v Singtel Optus Pty Ltd [2010] FCA 1272; BC201008692 at 3 per Perram J; Australian Competition and Consumer Commission v Sontax Australia (1988) Pty Ltd [2011] FCA 1202; BC201108299 per Gordon J; Australian Competition and Consumer Commission v Bruhn [2012] FCA 959; BC201206669 per Lander J; Australian Competition and Consumer Commission v AirAsia Berhad Co [2012] FCA 1413; BC201209905 per Tracey J; Australian Competition and Consumer Commission v P &N Pty Ltd [2014] FCA 6; BC201400060 per Besanko J; Australian Consumer and Competition Commission (ACCC) v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998; BC201407650 per Barker J; Australian Competition and Consumer Commission (ACCC) v A Whistle & Co (1979) Pty Ltd [2015] FCA 1447; BC201512633 per Yates J; Australian Competition and Consumer Commission (ACCC) v Derodi Pty Ltd [2016] FCA 365; BC201603643 per Edelman J. In Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (2007) ATPR ¶42-140; [2006] FCA 1730; BC200610390 at [8] Nicholson J made an order by consent requiring

the respondent to disclose information to officers, employees and agents. Also Australian Competition and Consumer Commission (ACCC) v Jones (No 5) [2011] FCA 49; BC201100263 per Logan J; Australian Competition and Consumer Commission (ACCC) v Sampson [2011] FCA 1165; BC201108047 per Tracey J. [11,717.25] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. _____________________

[11,719]

Punitive orders — adverse publicity

86D (1) The Court may, on application by the Commission, make an adverse publicity order in relation to a person who: (a) has been ordered to pay a pecuniary penalty under section 76; or (b) is guilty of an offence against section 44ZZRF or 44ZZRG. [subs (1) am Act 63 of 2001 s 3 and Sch 2, opn 15 Dec 2001; Act 59 of 2009 s 3 and Sch 1[53], opn 24 July 2009; Act 44 of 2010 s 3 and Sch 2[6], opn 15 Apr 2010; Act 103 of 2010 s 3 and Sch 5[82] and [83], opn 1 Jan 2011]

[page 692] (1A) The Court may, on application by the Director of Public Prosecutions, make an adverse publicity order in relation to a person who is guilty of an offence against section 44ZZRF or 44ZZRG. [subs (1A) insrt Act 59 of 2009 s 3 and Sch 1[54], opn 24 July 2009]

(2) In this section, an adverse publicity order, in relation to a person, means an order that: (a) requires the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; and (b) requires the person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified

in, or determined in accordance with, the order. (3) This section does not limit the Court’s powers under any other provision of this Act. [s 86D insrt Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001]

SECTION 86D GENERALLY [11,719.5] Overview Section 86D was inserted by the Trade Practices Amendment Act (No 1) 2001. On the application of the commission, the court may make an adverse publicity order in relation to a person who has been ordered to pay a pecuniary penalty under s 76. An adverse publicity order is one that requires a person disclose specified information that the person possesses or has access to and which requires the person to publish at their expense an advertisement in a manner specified. These orders do not limit the courts powers under other relevant sections of the Act. Orders of this type were recommended by the Australian Law Reform Commission in its report Compliance with the Trade Practices Act 1974, Report No 68, 1994. Section 86D(1A) was added by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. It permits the Director of Public Prosecutions to apply for similar orders in relation to a person guilty of a criminal cartel offence. See [10,690ZZRA.5]. A separate provision applies to the Australian Consumer Law. See [14,500.5] and ACL s 247. [11,719.7] Order to disclose information An adverse publicity order may require a person to disclose specified information. In Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859; BC200710470 at [14] Kenny J agreed to orders requiring the respondent to send a letter to customers advising that the respondent had engaged in resale price maintenance. Also Director of Consumer Affairs Victoria v Parking Patrols Vic Pty Ltd [2012] VSC 137; BC201202227 per Gardiner AsJ; Australian Competition and Consumer Commission v Luv-a-Duck Pty Ltd [2013] FCA 1136; BC201314592 per Davies J. [11,719.10] Financial services

Financial services are regulated by the

Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. _____________________

[11,719A] Commission may issue a public warning notice 86DA

[s 86DA rep Act 103 of 2010 s 3 and Sch 5[84], opn 1 Jan 2011] SECTION 86DA GENERALLY

[11,719A.5] Overview

See now ACL s 223. _____________________

[page 693]

[11,719E] Order disqualifying a person from managing corporations 86E (1) On application by the Commission, the Court may make an order disqualifying a person from managing corporations for a period that the Court considers appropriate if: (a) the Court is satisfied that the person has contravened, has attempted to contravene or has been involved in a contravention of Part IV; and (b) the Court is satisfied that the disqualification is justified. Note: Section 206EA of the Corporations Act 2001 provides that a person is disqualified from managing corporations if a court order is in force under this section. That Act contains various consequences for persons so disqualified. (1A) On application by the Director of Public Prosecutions, the Court may make an order disqualifying a person from managing corporations for a period that the Court considers appropriate if: (a) the Court is satisfied that the person has contravened or has been involved in a contravention of section 44ZZRF or 44ZZRG; and (b) the Court is satisfied that the disqualification is justified. Note: Section 206EA of the Corporations Act 2001 provides that a person is disqualified from managing corporations if a court order is in force under this section. That Act contains various consequences for persons so disqualified. [subs (1A) insrt Act 59 of 2009 s 3 and Sch 1[55], opn 24 July 2009]

(1B) [subs (1B) subst Act 103 of 2010 s 3 and Sch 5[85], opn 1 Jan 2011] (2) In determining under subsection (1) or (1A) whether the disqualification is justified, the Court may have regard to: (a) the person’s conduct in relation to the management, business or property of any corporation; and

(b) any other matters that the Court considers appropriate. [subs (2) am Act 59 of 2009 s 3 and Sch 1[56], opn 24 July 2009; Act 44 of 2010 s 3 and Sch 2[8], opn 15 Apr 2010; Act 103 of 2010 s 3 and Sch 5[86], opn 1 Jan 2011]

(3) The Commission must notify ASIC if the Court makes an order under subsection (1). The Commission must give ASIC a copy of the order. Note: ASIC must keep a register of persons who have been disqualified from managing corporations: see section 1274AA of the Corporations Act 2001. [subs (3) am Act 59 of 2009 s 3 and Sch 1[57], opn 24 July 2009; Act 44 of 2010 s 3 and Sch 2[9], opn 15 Apr 2010; Act 103 of 2010 s 3 and Sch 5[87], opn 1 Jan 2011]

(3A) The Director of Public Prosecutions must notify ASIC if the Court makes an order under subsection (1A). The Director of Public Prosecutions must give ASIC a copy of the order. Note: ASIC must keep a register of persons who have been disqualified from managing corporations — see section 1274AA of the Corporations Act 2001. [subs (3A) insrt Act 59 of 2009 s 3 and Sch 1[58], opn 24 July 2009]

(3B) For the purposes of this Act (other than this section or section 86F), an order under this section is not a penalty. [subs (3B) insrt Act 59 of 2009 s 3 and Sch 2[4], opn 24 July 2009]

(4) In this section: ASIC means the Australian Securities and Investments Commission. [s 86E insrt Act 131 of 2006 s 3 and Sch 9[20], opn 1 Jan 2007]

[page 694] SECTION 86E GENERALLY [11,719E.5] Overview This provision was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. Section 86E(1A) was added by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. It permits the Director of Public Prosecutions to apply for similar orders in relation to a person guilty of a criminal cartel offence. See [10,690ZZRA.5]. The Director of Public

Prosecutions must notify ASIC if the court makes such an order. The Director of Public Prosecutions must also provide ASIC a copy of the order. Australian Competition and Consumer Commission (ACCC) v Artorios Ink Co Pty Ltd (No 2) [2013] FCA 1292; BC201315319 per Mortimer J. A separate provision applies to the Australian Consumer Law. See [14,500.5] and ACL s 248. The court may make an order disqualifying a person from managing a corporation if the court is satisfied that the person has contravened or attempted to contrive a provision of Pt IV and the disqualification is justified. Section 206EA of the Corporations Act 2001 provides that a person is disqualified from managing corporations if a court order is in force under this section. The principles applied under the equivalent provisions of the Corporations law provide useful guidance to the consideration of this provision: See Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80; 20 ACLC 1146; [2002] NSWSC 483; BC200202796 per Santow J; Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535; BC201203612 per Tracey J; Australian Competition and Consumer Commission v Stott [2013] FCA 88; BC201316265 per Middleton J; Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267; BC201315388 per Mansfield J. Sections 206C and 206E Corporations law in relation to the banning of officers provides useful guidance. Section 206A(1) Corporations Act 2011 provides a list of activities that relate to the management of a company. In Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80; 20 ACLC 1146; [2002] NSWSC 483; BC200202796 at [56] Santow J identified 15 principles in relation to banning orders. The principles in Adler are guidelines only — each case turns on its own facts and circumstances: In the Matter of Idylic Solutions Pty Ltd; Australian Securities and Investments Commission (ASIC) v Hobbs (2013) 93 ACSR 421; [2013] NSWSC 106; BC201301523 at [55]; Australian Competition and Consumer Commission (ACCC) v Safety Compliance Pty Ltd (in Liq) (No 2) [2015] FCA 1469; BC201512872 at [38] per Farrell J. In Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267; BC201315388 Mansfield J said at [170]–[172]: Hence, relevantly for present purposes, I proceed on the basis that disqualification orders are designed to protect the public from the harmful use of the corporate structure or from use that is

contrary to proper commercial standards. A banning order is designed to protect the public by seeking to safeguard the public interest in the transparency and accountability of companies and in the suitability of directors to hold office. Protection of the public also envisages protection of individuals that deal with companies, including consumers, creditors, shareholders and investors. It is also the case that a banning order has a purpose of personal deterrence, though it is not punitive, and the objectives of general deterrence are also sought to be achieved. In assessing the fitness of an individual to manage a company, it is necessary that person has an understanding of the proper role of the company director and the duty of due diligence that is owed to the company. Longer periods of disqualification are reserved for cases where contraventions have been of a serious nature such as those involving dishonesty. In assessing the appropriate length of prohibition, consideration has been given to the degree of seriousness of the contraventions, the propensity that the person may engage in similar conduct in the future and the likely harm that may be caused to the public. It is necessary to balance the personal hardship to the person

[page 695] to be banned against the public interest and the need for protection of the public from any repeat of the conduct. A mitigating factor in considering a period of disqualification is the likelihood of the contravenor reforming.

Disqualification orders are designed to protect the public by seeking to safeguard the public interest in the transparency and accountability of companies and in the suitability of directors to hold office: Australian Competition and Consumer Commission v Renegade Gas Pty Ltd [2014] FCA 1135 per Gordon J. The power to disqualify a person from managing a corporation is not a power to be exercised purely for protective purposes but also as a punitive measure: Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; 209 ALR 271; [2004] HCA 42; BC200405817; Australian Consumer and Competition Commission (ACCC) v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998; BC201407650 at [88] per Barker J; Australian Competition and Consumer Commission v Renegade Gas Pty Ltd [2014] FCA 1135 per Gordon J. Australian Competition and Consumer Commission (ACCC) v South East Melbourne Cleaning Pty Ltd (in liq) (formerly Known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) [2015] FCA 25; BC201500239 at [149] per Murphy J. In Australian Competition and Consumer Commission (ACCC) v Safety Compliance Pty Ltd (in Liq) (No 2) [2015] FCA 1469; BC201512872 at [36], Farrell J said that some of the reasoning in Rich v Australian Securities and

Investments Commission (above) may need to reconsidered in light of statements by the High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; BC201512076. The power may also be exercised by way of deterrence: Australian Competition and Consumer Commission v Renegade Gas Pty Ltd [2014] FCA 1135 at [90] per Gordon J. An order may be made by consent: Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535; BC201203612 per Tracey J; Australian Competition and Consumer Commission v Renegade Gas Pty Ltd [2014] FCA 1135 per Gordon J. Application In Quinlivan v Australian Securities and Investments Commission (ASIC) (2010) 81 ACSR 522; [2010] FCAFC 161; BC201010049 Dowsett, Greenwood and Gilmour JJ upheld a three year period of disqualification. In Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535; BC201203612 the court disqualified a person from managing a company for 15 years. In Australian Competition and Consumer Commission v Stott [2013] FCA 88; BC201316265 Middleton J imposed a disqualification order of five years. In Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267; BC201315388 at [176] Mansfield J imposed a disqualification order of three years. In Director of Consumer Affairs Victoria v Dimmeys Stores Pty Ltd [2013] FCA 1371; BC201315882 Marshall J imposed a disqualification order for six years. In Australian Consumer and Competition Commission (ACCC) v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998; BC201407650 Barker J imposed a four-year disqualification period. In Australian Competition and Consumer Commission (ACCC) v South East Melbourne Cleaning Pty Ltd (in liq) (formerly Known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) [2015] FCA 25; BC201500239 per Murphy J, the respondent agreed to an order disqualifying him from management for a period of two years. In Australian Competition and Consumer Commission (ACCC) v Safety Compliance Pty Ltd (in Liq) (No 2) [2015] FCA 1469; BC201512872, Farrell

J imposed periods of disqualification ranging from 18 months to eight years. In Australian Competition and Consumer Commission (ACCC) v ColgatePalmolive Pty Ltd (No 2) [2016] FCA 528; BC201603631 Jagot J imposed a disqualification period of seven years. [page 696] In Australian Competition and Consumer Commission (ACCC) v SensaSlim Australia Pty Ltd (in Liq) (No 7) [2016] FCA 484; BC201603506 Yates J imposed a disqualification period of seven years. _____________________

[11,719F] Privilege against exposure to penalty — disqualification from managing corporations 86F (1) Court proceeding In a civil or criminal proceeding under, or arising out of, this Act, a person is not entitled to refuse or fail to comply with a requirement: (a) to answer a question or give information; or (b) to produce a document or any other thing; or (c) to do any other act; on the ground that the answer or information, production of the document or other thing, or doing that other act, as the case may be, might tend to expose the person to a penalty by way of an order under section 86E. (2) Subsection (1) applies whether or not the person is a defendant in the proceeding or in any other proceeding. (3) Statutory requirement A person is not entitled to refuse or fail to comply with a requirement under this Act: (a) to answer a question or give information; or (b) to produce a document or any other thing; or (c) to do any other act; on the ground that the answer or information, production of the document or other thing, or doing that other act, as the case may be, might tend to expose the person to a penalty by way of an order under section 86E.

(4) Definition In this section: penalty includes forfeiture. [s 86F insrt Act 59 of 2009 s 3 and Sch 2[5], opn 24 July 2009]

SECTION 86F GENERALLY [11,719F.5] Overview A separate provision applies to the Australian Consumer Law. See [14,500.5] and ACL s 249. _____________________

[11,720]

Other orders

87 (1) Without limiting the generality of section 80, where, in a proceeding instituted under this Part, or for an offence against section 44ZZRF or 44ZZRG, the Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in (whether before or after the commencement of this subsection) in contravention of a provision of Part IV or Division 2 of Part IVB, or of section 55B, 60C or 60K, the Court may, whether or not it grants an injunction under section 80 or makes an order under section 82, 86C, 86D or 86E, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (2) of this section) if the Court considers [page 697] that the order or orders concerned will compensate the first-mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage. [subs (1) subst Act 81 of 1977 s 52; am Act 39 of 1983 s 3 and Sch 1; Act 222 of 1992 s 19 and Sch 1; Act 36 of 1998 Sch 1; Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001; Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; Act 11 of 2006 s 3 and Sch 1, opn 20 Apr 2006; Act 59 of 2009 s 3 and Sch 1[59], s 3 and Sch 2[6], opn 24 July 2009; Act 44 of 2010 s 3 and Sch 2[56], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[88]–[90], opn 1 Jan 2011; Act 83 of 2014 s 3 and Sch 2 item 19, opn 18 July 2014; Act 9 of 2016 s 3 and Sch 1 item 16, opn 25 Feb 2016]

(1A) Without limiting the generality of sections 51ADB and 80, the Court may: (a) on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of Division 2 of Part IVB or section 60C or 60K; or (b) on the application of the Commission in accordance with subsection (1B) on behalf of one or more persons who have suffered, or who are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of Part IV (other than section 45D or 45E), Division 2 of Part IVB or section 60C or 60K; or (baa)on the application of the Commission in accordance with subsection (1BAA) on behalf of a class of persons who have suffered, or who are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of section 55B; or (ba) on the application of the Director of Public Prosecutions in accordance with subsection (1BA) on behalf of one or more persons who have suffered, or who are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of section 44ZZRF or 44ZZRG; make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (2)) if the Court considers that the order or orders concerned will: (c) compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage; or (d) prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person. [subs (1A) subst Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001; am Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; Act 11 of 2006 s 3 and Sch 1, opn 20 Apr 2006; Act 59 of 2009 s 3 and Sch 1[60]– [61], opn 24 July 2009; Act 44 of 2010 s 3 and Sch 2[17], opn 15 Apr 2010; Act 44 of 2010 s 3 and Sch 2[57], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[91]–[93], opn 1 Jan 2011; Act 83 of 2014 s 3 and Sch 2 items 20, 21, opn 18 July 2014; Act 9 of 2016 s 3 and Sch 1 item 17, opn 25 Feb 2016]

(1AA) [subs (1AA) rep Act 103 of 2010 s 3 and Sch 5[94], opn 1 Jan 2011] (1AB) [subs (1AB) rep Act 103 of 2010 s 3 and Sch 5[94], opn 1 Jan 2011] (1AC) [subs (1AC) rep Act 103 of 2010 s 3 and Sch 5[94], opn 1 Jan 2011] (1B) The Commission may make an application under paragraph (1A)(b) on behalf of one or more persons identified in the application who: (a) have suffered, or are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of Part IV (other than section 45D or 45E), Division 2 of Part IVB or section 60C or 60K; and [page 698] (b) have, before the application is made, consented in writing to the making of the application. [subs (1B) subst Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001; am Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; Act 44 of 2010 s 3 and Sch 2[57], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[95], opn 1 Jan 2011; Act 83 of 2014 s 3 and Sch 2 item 22, opn 18 July 2014]

(1BAA) The Commission may make an application under paragraph (1A) (b) on behalf of a class of persons identified in the application who have suffered, or are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of section 55B. [subs (1BAA) insrt Act 9 of 2016 s 3 and Sch 1 item 18, opn 25 Feb 2016]

(1BA) The Director of Public Prosecutions may make an application under paragraph (1A)(ba) on behalf of one or more persons identified in the application who: (a) have suffered, or are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of section 44ZZRF or 44ZZRG; and (b) have, before the application is made, consented in writing to the making of the application. [subs (1BA) insrt Act 59 of 2009 s 3 and Sch 1[62], opn 24 July 2009]

(1C) An application may be made under subsection (1A) in relation to a contravention of Part IV, Division 2 of Part IVB or section 60C or 60K even if a proceeding has not been instituted under another provision in relation to that contravention. [subs (1C) subst Act 31 of 2001 s 3 and Sch 1, opn 15 Dec 2001; am Act 63 of 2001 s 3 and Sch 2, opn 15 Dec 2001; Act 44 of 2010 s 3 and Sch 2[58], opn 1 July 2010; Act 103 of 2010 s 3 and Sch 5[96], opn 1 Jan 2011; Act 83 of 2014 s 3 and Sch 2 item 23, opn 18 July 2014]

(1CA) An application under subsection (1A) may be made at any time within 6 years after the day on which the cause of action that relates to the conduct accrued. [subs (1CA) subst Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001]

(1D) [subs (1D) rep Act 103 of 2010 s 3 and Sch 5[97], opn 1 Jan 2011] (1E) [subs (1E) rep Act 49 of 1994 s 3 and Sch] (2) The orders referred to in subsections (1) and (1A) are: (a) an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void ab initio or at all times on and after such date before the date on which the order is made as is specified in the order; (b) an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified; (ba) an order refusing to enforce any or all of the provisions of such a contract; (c) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage; [page 699]

(d) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage; (e) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to repair, or provide parts for, goods that had been supplied by the person who engaged in the conduct to the person who suffered, or is likely to suffer, the loss or damage; (f) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage; and (g) an order, in relation to an instrument creating or transferring an interest in land, directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to execute an instrument that: (i) varies, or has the effect of varying, the first-mentioned instrument; or (ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first-mentioned instrument. [subs (2) subst Act 81 of 1977 s 52; am Act 17 of 1986 s 55; Act 88 of 1995 s 91]

(2A) [subs (2A) rep Act 103 of 2010 s 3 and Sch 5[97], opn 1 Jan 2011] *(3) Where: (a) a provision of a contract made, or a covenant given, whether before or after the commencement of the Trade Practices Amendment Act 1977: (i) in the case of a provision of a contract, is unenforceable by reason of section 45 in so far as it confers rights or benefits or imposes duties or obligations on a corporation; or (ii) in the case of a covenant, is unenforceable by reason of section 45B in so far as it confers rights or benefits or

imposes duties or obligations on a corporation or on a person associated with a corporation; or (b) the engaging in conduct by a corporation in pursuance of or in accordance with a contract made before the commencement of the Trade Practices Amendment Act 1977 would constitute a contravention of section 47; the Court may, on the application of a party to the contract or of a person who would, but for subsection 45B(1), be bound by, or entitled to the benefit of, the covenant, as the case may be, make an order: (c) varying the contract or covenant, or a collateral arrangement relating to the contract or covenant, in such manner as the Court considers just and equitable; or [page 700] (d) directing another party to the contract, or another person who would, but for subsection 45B(1), be bound by, or entitled to the benefit of, the covenant, to do any act in relation to the firstmentioned party or person that the Court considers just and equitable. [subs (3) subst Act 81 of 1977 s 52]

(4) The orders that may be made under subsection (3) include an order directing the termination of a lease or the increase or reduction of any rent or premium payable under a lease. (5) The powers conferred on the Court under this section in relation to a contract or covenant do not affect any powers that any other court may have in relation to the contract or covenant in proceedings instituted in that other court in respect of the contract or covenant. [subs (5) am Act 81 of 1977 s 52]

(5A) [subs (5A) rep Act 103 of 2010 s 3 and Sch 5[97], opn 1 Jan 2011] (6) In subsection (2), interest, in relation to land, means: (a) a legal or equitable estate or interest in the land; or (b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of

shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or (c) a right, power or privilege over, or in connection with, the land. [subs (6) subst Act 103 of 2010 s 3 and Sch 5[98], opn 1 Jan 2011]

(7) [subs (7) rep Act 103 of 2010 s 3 and Sch 5[99], opn 1 Jan 2011] Note: Part VIB restricts awards of compensation for death or personal injury, and sets out time limits for commencing actions for compensation for death or personal injury. *Editor’s note: Section 82 of the Trade Practices Amendment Act 1977 provides as follows: 82 If a contract made before the commencement of this Act contained a provision that was in restraint of trade or commerce, then, subject to any order made under subsection 87(3) of the Principal Act as amended by this Act or under subsection 52(2) of this Act, nothing in the Principal Act shall be taken to have affected the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision was severable.

SECTION 87 GENERALLY [11,720.1A] Overview Section 87 confers a broad power on the court to make orders to compensate a person who has or is likely to suffer loss or damage by conduct of a person in contravention of specified parts of the Act. See Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd (2001) 114 FCR 108 at 119-21; (2002) ATPR ¶41-850; [2001] FCA 1620; BC200107102. The Trade Practices Amendment (Personal Injuries and Death) Act 2006 inserted provisions in ss 82 and 87 that prohibit the recovery of damages based on conduct that contravenes Pt V Div 1 (unfair practices) (see now ACL Pt 3-1) where the damages result from death or personal injury. See [11,720.25A]. This complements the amendments made by the Trade Practices Amendment (Personal Injuries and Death) Act (No 2) 2004 which inserted the rules in Pt VIB relating to limitations on damages for personal injuries from actions under other parts of the Act. See [11,740D.5]. Section 87 was amended by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 to enable the Director of Public Prosecutions to apply for orders in relation to loss or damage suffered by a person resulting from a breach of the criminal cartel provisions. See

[10,690ZZRA.5]. A separate provision applies to the Australian Consumer Law. See [14,500.5] and ACL s 237. [11,720.1] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. [page 701] [11,720.2] “person” In Pritchard v Racecage Pty Ltd (1996) 64 FCR 96; 135 ALR 717; (1996) ATPR ¶41-477, O’Loughlin J said that the word “person” in ss 82 and 87 does not extend to or include the estate of a deceased person or the representative of that estate. [11,720.3] “court” The reference to “a court” is intended to refer to a state Supreme Court or Territory court which has had a matter transferred to it pursuant to s 86A: Ewins v Buderim Imports Pty Ltd (1987) 76 ALR 157; (1987) ATPR ¶40-825 at 48,922. [11,720.5] Scope of orders under s 87 Section 87 confers a wide discretion on the court to make such orders as it thinks appropriate in the circumstances: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23; (1981) ATPR ¶40-226; Krakowski v Eurolynx Properties Ltd (1995) ATPR ¶41-419; Oraka Pty Ltd v Leda Holdings Pty Ltd (1997) ATPR ¶41-558 at 43,718; Tomasetti v Brailey [2013] NSWSC 1282; BC201312734 at [28] per R A Hulme J. The form of the order made must depend on the discretion of the court and not on the form of the relief sought by the applicant: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd, above, ATPR at 43,065: Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (2006) ATPR ¶42-104; [2006] FCA 157; BC200600788 at [3] per Gyles J. Section 87 extends to permit the court to make orders to direct a respondent to comply with a term of an undertaking given under s 87B:

Australian Competition and Consumer Commission v StoresOnline International Inc [2007] FCA 1597; BC200708943 at [17] per Tamberlin J. [11,720.6] Common law principles In early decisions the court took a narrow approach to s 87, guided largely by the range of orders available at common law and equity. It is now well accepted that s 87 is not to be given a restrictive interpretation which would defeat the intent of the section: Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353; 143 ALR 457; (1997) ATPR ¶41-560; Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470; 114 ALR 355; (1993) ATPR ¶41-269; Tenji v Henneberry & Assocs Pty Ltd (2000) 98 FCR 324; 172 ALR 679; [2000] FCA 550; BC200002117; Tenji v Henneberry & Assocs Pty Ltd (No 2) [2000] FCA 1271; BC200005700; I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2000) 179 ALR 89; (2000) ATPR ¶41-779; [2000] QCA 383; BC200005799; Crystal Auburn Pty Ltd v IL Wollerman Pty Ltd [2001] FCA 735; BC200103119 at [2] per Sundberg J; Osgaig Pty Ltd v Ajisen (Melbourne) Pty Ltd (2004) 213 ALR 153; 63 IPR 156; [2004] FCA 1394; BC200407145 at [125] per Weinberg J. In Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; 158 ALR 333; 73 ALJR 12; (1998) ATPR ¶41-665 at 41,411 the majority of the High Court said that the fact that s 87 may be applied to widely different contraventions of the Act, some of which can be seen as inviting analogies with torts such as deceit or with equity but others which find no ready analogies in the common law or equity, shows that it is wrong to limit the apparently clear words of the Act by reference to one or other of these analogies: Tenji v Henneberry & Assocs Pty Ltd, above; Tenji v Henneberry & Assocs Pty Ltd (No 2), above. The court may nevertheless have regard to common law principles in providing some guidance as to whether the discretion should be exercised in an appropriate case: Creative Landscape Design Centre Pty Ltd v Platz (1989) ATPR ¶40-980; Benlist Pty Ltd v Olivetti Australia Pty Ltd (1990) ATPR ¶41-043; Johnston v Delata Pty Ltd (FCA, Einfeld J, G 76788, 10 March 1993, unreported) at 23; Krakowski v Eurolynx Properties Ltd (1995) ATPR ¶41-419 at 40,715; Anema E Core Pty Ltd v Aromas Pty Ltd [1999] FCA 30; BC9905746 at [15]; Tenji v Henneberry & Assocs Pty Ltd, above. The common law bars of affirmation, lapse of time and the impossibility of

effecting restitutio in integram do not fetter the exercise of powers under s 87, but are matters to take into account in the exercise of discretion: Creative Landscape Design Centre Pty Ltd v Platz, above, at 50,697; [page 702] Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274 at 288; 84 ALR 700 at 706; (1989) ATPR ¶40-926; JAD International Pty Ltd v International Trucks Australia Ltd (1994) 50 FCR 378 at 380; Crystal Auburn Pty Ltd v IL Wollerman Pty Ltd, above, at [2] per Sundberg J. [11,720.7] Compensation An order under s 87 must be directed to compensating the applicant for the loss or damage which it has suffered: Finucane v New South Wales Egg Corp (1988) 80 ALR 486 at 519; (1988) ATPR ¶40-863; Frith v Gold Coast Mineral Springs Pty Ltd (1983) 47 ALR 547; 65 FLR 213; (1983) ATPR ¶40-339; Venning v Suburban Taxi Service Pty Ltd (FCA, Full Court, 18 August 1994, unreported) at 20; Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (2001) 109 FCR 528; 191 ALR 402; [2001] FCA 226; BC200100800; Lewarne v Momentum Productions Pty Ltd [2007] FCA 1530; BC200708566 at [8] per Stone J. An account of profits is not compensation but rather an award to prevent unjust enrichment: Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (2001) 109 FCR 528; 191 ALR 402; [2001] FCA 226; BC200100800 at [38]; Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd (2002) ATPR ¶41-850; [2001] FCA 1620; BC200107102 at [51] per Wilcox, French and Drummond JJ. Section 87 does not provide for orders based on apprehended conduct giving rise to apprehended loss or damage. Accordingly it does not permit injunctive relief unless such relief could prevent or reduce loss or damage flowing from past conduct: Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd, above, at [51] per Wilcox, French and Drummond JJ. Compensation under s 87 may, in an appropriate case, be different to damages: compensation may supplement damages where the measure of damages does not fairly compensate the plaintiff for its loss: For the Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 807; BC200705772 at [243]

per Young CJ. [11,720.7A] Damages an adequate remedy As s 87 provides a discretionary remedy, a court will be reluctant to make orders where damages are adequate to compensate the respondent for any loss or damage sustained: Milchas Investments Pty Ltd v Larkin (1989) ATPR ¶40-956 at 50,434. For example, in McPhillips v Ampol Petroleum (Vic) Pty Ltd (1990) ATPR ¶41814 at 51,257 Woodward J refused to make an order under s 87 extending the period of a franchise agreement where there had been representations made to the applicant that the respondent would renew the agreement. Woodward J said that in this instance damages would be an appropriate and adequate remedy. See also McDonald v Esanda Finance Corp Ltd (FCA, Davies J, G 747/91, 27 May 1993, unreported) at 17; (appeal) McDonald v Commonwealth Bank of Australia (FCA, Full Court, NG 468/93, 29 September 1993, unreported); Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91; 143 ALR 328; (1997) ATPR ¶41-567. [11,720.7B] Loss or damage Section 87(2)(d) permits the making of an order directing the person who engaged in the conduct to pay the person who has suffered loss or damage: Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; 158 ALR 333; (1998) ATPR ¶41-665; Australian Competition and Consumer Commission v Will Writers Guild Pty Ltd [2003] FCA 1231; BC200306448 at [12] per Weinberg J. Unlike s 82, s 87 also applies where loss or damage is likely to be suffered: Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 at [3143] per Sackville J. [11,720.7C] Recission The court is not bound by the remedies available at common law, for instance in relation to a party’s right to rescind for breach of contract or misrepresentation: Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83; (1988) ATPR ¶40-850 at 49,158; Treloar v Ivory (1991) ATPR ¶41-123 at 52,822; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608; Sharp v Ramage (1995) ATPR ¶41-398; Bisling Holdings Pty Ltd v Alfred Chater Pty Ltd (1995) ATPR ¶41397; Anema E Core Pty Ltd v Aromas Pty Ltd [1999] FCA 30; BC9905746 at [15]; Abigroup v Peninsula (2001) ATPR (Digest) ¶46-213 at [110] per

[page 703] Barrett J; McFarlane v Heritage Corp (Aust) Pty Ltd [2003] QSC 350; BC200306099 per Chesterman J; Campbell v BackOffice Investments Pty Ltd (2008) 66 ACSR 359; [2008] NSWCA 95; BC200803587 at [105] per Gyles JA. Unlike the position at common law regarding the remedy of recission of contracts, orders under s 87 may be made not only against parties to the contract but also against third parties who are involved in a contravention within the meaning of s 75B: Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353; 143 ALR 457; (1997) ATPR ¶41-560 at 43,740. In Wan v McDonald (1992) 105 ALR 473; (1992) ATPR ¶46-088, the court declared void certain contractual arrangements between the applicant and the respondent in addition to the grant of damages: see also Tubby Trout Pty Ltd v Sailbay Pty Ltd (1994) ATPR (Digest) ¶46-120 at 53,564; Security and Equity Trading (Aust) Pty Ltd v Umtali Holdings Pty Ltd (1995) ATPR ¶41-373 at 40,132; Oraka Pty Ltd v Leda Holdings Pty Ltd (1997) ATPR ¶41-558; McFarlane v Heritage Corp (Aust) Pty Ltd, above, per Chesterman J; Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liq) (No 2) [2006] FCA 157; BC200600788 at [3] per Gyles J; see KGL Health Pty Ltd v Mechtler [2007] FCA 1411; BC200707893 at [14] per Tamberlin J. In Gaffikin Marine Pty Ltd v Princes Street Marina Pty Ltd (1995) 17 ACSR 495; 13 ACLR 991; (1995) ATPR (Digest) ¶46-149 at 53,166 Young J questioned whether an order setting aside a contract was beyond power as s 87 is not an independent source of power to make a valid contract void. In Johnston v Delata Pty Ltd (FCA, Einfeld J, G 76788, 10 March 1993, unreported), Einfeld J said that in exercising its discretion under s 87 it is well established that in the absence of fraud, the court will be reluctant to find a contract rescinded and it should only be granted on the very strictest evidence: see Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274; 84 ALR 700; (1989) ATPR ¶40-926; Creative Landscape Design Centre Pty Ltd v Platz (1989) ATPR ¶40-980. [11,720.7D] Variation of contracts Section 87(3)(a) permits the court to vary a contract. The provision permits any party to the contract to apply for

an order — it is not limited to a party burdened by a provision that contravenes s 45 or a person who has suffered or is likely to suffer loss or damage. It is unlike s 87(1), (1A), (1B) and (2) each of which conditions the making of orders upon the court finding that a party to the proceedings has suffered or is likely to suffer loss or damage: Fadu Pty Ltd v ACN 008 112 196 Pty Ltd (2007) ATPR ¶42-206; [2007] FCA 1965; BC200710887 at [14] per Finn J. Circumstances may warrant varying a restraint in a contract associated with the sale of an interest in a business so that it does no more than provide a level of protection that would be acceptable at common law. Such an exercise of discretion would be permissible under s 87(3) even if a provision valid at common law was not saved from contravening s 45 because of s 51(2)(e): Fadu Pty Ltd v ACN 008 112 196 Pty Ltd, above, at [128] per Finn J. In ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (1991) 27 FCR 460; 97 ALR 513; (1991) ATPR ¶41-069, the Full Court said that it has the power under s 87 to vary a contract even as to matters of price though it would be slow to do so if it represents a bargain which they would not have struck themselves. See also Haydon v Jackson (1988) ATPR ¶40-845 at 49,099; Allied Westralian Finance v Westpac Pty Ltd (1992) ATPR (Digest) ¶46-082; Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405; (1992) ATPR ¶41-184 at 40,515; Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91; 143 ALR 328; (1997) ATPR ¶41-567. [11,720.7E] Restitution In an appropriate case s 87 permits restitution: Krakowski v Eurolynx Properties Ltd (1995) ATPR ¶41-419 at 40,714. [11,720.7F] Return of property Section 87(2)(c) permits the making of an order for the return of property: McFarlane v Heritage Corp (Aust) Pty Ltd [2003] QSC 350; BC200306099 at [89] per Chesterman J. [page 704] [11,720.15] Exercise of power of sale At common law, it has generally been held that interlocutory relief restraining the exercise of a power of sale will not be granted unless the amount of the mortgage debt is paid into court or held in some account pending the outcome of proceedings: Inglis v

Commonwealth Trading Bank of Australia (1972) 126 CLR 161; Harvey v McWatters (1948) 48 SR (NSW) 173; Glandore Pty Ltd v Elders Finance and Investment Co Ltd (1984) 4 FCR 130; 57 ALR 186; Mainbanner Pty Ltd v Dadincroft Pty Ltd (1988) ATPR ¶40-896 at 49,663; Graham v Commonwealth Bank of Australia (1988) ATPR ¶40-908; Rawcliffe v Custom Credit Corp (1994) ATPR ¶41-292 at 41,923; Ink Group Pty Ltd v Hong Kong Bank of Australia Ltd (1995) ATPR (Digest) ¶46-138 at 53,105. The rule appears to be based on a requirement not to deprive the mortgagee of the benefit of its security without adequate protection of payment of the full secured amount: Inglis v Commonwealth Trading Bank of Australia, above; Rawcliffe v Custom Credit Corp, above, at 41,923. This requirement has been mitigated in cases where the claim is said to go to the root of the mortgagee’s title including situations in which relief is sought under s 87 of the Act to vary or set aside the mortgage: Contractor Services Pty Ltd v Esanda Finance Corp Ltd (1990) ATPR ¶41-020 at 51,355; Angelatos v National Australia Bank (1994) ATPR ¶41-333 at 42,404. The court has a discretion under s 87 to relax the requirement. However it is unlikely to do so unless the applicant is able to show more than that a claim has been made and that there is a prospect, however slight, of its success: Glandore Pty Ltd v Elders Finance and Investment Co Ltd, above; Cunningham v National Australia Bank (1987) 15 FCR 495; Mainbanner Pty Ltd v Dadincroft Pty Ltd (1988) ATPR ¶40-896; Swift v Westpac Banking Corp (1995) ATPR ¶41-401. Also, in Rawcliffe v Custom Credit Corp, above, at 41,923 the court was prepared to depart from the general rule because the cause of action challenged the validity of the mortgage itself. In other situations the court may mould its order so as to require payment in of so much as will give adequate protection to the mortgagee: Muffingrove Pty Ltd v Melridge Mining and Exploration Pty Ltd (FCA, Hill J, QG 109/91, 26 September 1991, unreported) at 13. [11,720.18] Contract to lend money Ordinarily, specific performance will not be granted when the contract is one to lend money unless there are special factors which take it outside the ordinary situation: Western Wagon and Property Co v West [1982] 1 Ch 271; South African Territories Ltd v Wallington [1898] AC 309. That rule will not necessarily restrict the power of a court under s 87 to frame an order within the terms of the section. However, in determining whether to make such an order, the court may have

regard to the ordinary principles: Angelatos v National Australia Bank (1994) ATPR ¶41-333 at 42,403. See also Sedgwick Ltd v Bain Clarkson Ltd (t/as Bain Hogg Ltd) (1994) 56 FCR 578; 129 ALR 493; (1995) ATPR ¶41-411. [11,720.20] Contribution and indemnity Nothing in s 87 authorises the court to make orders for contribution or indemnity against other contravenors of the Act or persons involved in the primary contravention: Norgard v Rodpat Nominees Pty Ltd (1991) ATPR ¶41-139 at 52,999; ANZ Banking Group Ltd v Turnbull & Partners Ltd (1991) 106 ALR 115; Trade Practices Commission v Manfal Pty Ltd (No 3) (in liq) (1991) 33 FCR 382; 105 ALR 520; (1992) ATPR ¶41-160; Allstate Life Insurance Co v ANZ Banking Group Ltd (FCA, Beaumont J, No 381/94, 14 February 1995, unreported); Bialkower v Acohs Pty Ltd (1998) 83 FCR 1; 154 ALR 534; Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd [2001] FCA 595; BC200102542 at [17], [22] per Nicholson J; Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd (2001) 114 FCR 108; [2001] FCA 1620; BC200107102 at [50] per Wilcox, French and Drummond JJ; Fico v O’Leary (2004) ATPR (Digest) ¶46-259; [2004] WASC 215; BC200406677 at [230] per EM Heenan J; Lawson Hill Estate Pty Ltd v Tovegold Pty Ltd [2004] FCA 1593; BC200408492 at [174] per Wilcox J; Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd [2005] FCA 1703; BC200510099 at [239] per Nicholson J. [page 705] In Dorrough v Bank of Melbourne Ltd (1995) ANZ Ins Cas ¶61-290; (1995) ATPR (Digest) ¶46-152 at 53,185, Cooper J expressed the view that it was clearly arguable that a right of contribution could be made out on grounds other than s 87; see also Austotel Management Pty Ltd v Jamieson (1996) ATPR ¶41-454 at 41,571; Fico v O’Leary, above, at [231] per EM Heenan J. These arguments were developed by J C Campbell, “Contribution, Contributory Negligence and section 52 of the Trade Practices Act” (1993) 67 ALJ 87 to which the court referred (see now ACL s 18). In Pricom Pty Ltd v Sgarioto (1994) ATPR ¶41-365 at 42,755 the court

found that the Wrongs Act (Vic) 1958 would permit a claim for contribution to be based on the terms of the Fair Trading Act (Vic) 1985; see also Dorrough v Bank of Melbourne Ltd, above, ATPR at 53,185. The proposition in Dorrough was followed in Austotel Management Pty Ltd v Jamieson, above; Burke v LFOT Pty Ltd (2000) ATPR ¶41-781; [2000] FCA 1155; BC200004799. In Hanave Pty Ltd v LFOT Pty Ltd (1999) 168 ALR 318 at 327; (1999) ATPR ¶41-725 at 43,414, Moore J noted that the power to order contribution has been accepted to exist in several of the decisions in Bialkower v Acohs Pty Ltd, above, and should be accepted to exist. In Burke v LFOT Pty Ltd (2002) 187 ALR 612; 76 ALJR 749 the High Court (Kirby J dissenting) said that an order for contribution should not be made. Callinan J said, at [143], that the respondents had a statutory obligation not to engage in misleading and deceptive conduct. Having misled the appellants, it would strike at the very notions of justice and equity to require the appellants to make a contribution. Gaudron ACJ and Hayne J said, at [22], that to order contribution would unjustly enrich the respondent. McHugh J said, at [67], that it would be inequitable that contribution be ordered. See also Lawson Hill Estate Pty Ltd v Tovegold Pty Ltd, above, at [175] per Wilcox J; APF Properties Pty Ltd v Kestrel Holdings Pty Ltd (No 2) [2007] FCA 1561; BC200711523 at [370] per Heerey J. However, Pt VIA of the Act now provides that a claimant succeeding against two or more defendants for a breach of ACL s 18 may recover from each defendant only that proportion of the loss that the court considers just having regard to the defendant’s responsibility for the loss: see APF Properties Pty Ltd v Kestrel Holdings Pty Ltd (No 2), above, at [376] per Heerey J. See [11,740D.5]. [11,720.23] Declarations Subject to the jurisdiction of the court being correctly attracted, ss 21 and 23 of the Federal Court of Australia Act 1976 empower the court in appropriate circumstances to make a declaration of right to the effect that a provision has been contravened: RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164; 112 ALR 511; Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1993) 41 FCR 89; 113 ALR 257; (1993) ATPR ¶41-222 at 41,060; Jenkins v NZI Securities Australia Ltd (1994) 52 FCR 572; 124

ALR 605; (1994) ATPR ¶41-349 at 42,558; (appeal) Cameron v Qantas Airways Ltd (1995) ATPR ¶41-417 at 40,643; Qantas Airways Ltd v Cameron (1996) ATPR ¶41-530; Metcalfe v NZI Securities Australia Ltd (FCA, Sackville J, No 397/92, 29 June 1995, unreported); Australian Competition and Consumer Commission v International Technology Holdings Pty Ltd (1997) ATPR ¶41-559; Beagle Management Ltd v Targridge Ltd (1997) ATPR (Digest) ¶46-166; Mikaelian v CSIRO (1999) 163 ALR 172 at 184; Australian Competition and Consumer Commission v Pacific Dunlop Ltd (2001) ATPR ¶41-823; [2001] FCA 740; BC200103146 at [61] per North J; Australian Competition and Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439; BC200207111 at [301] per Dowsett J; Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432; BC200701951 at [6] per Kiefel; BC200701951J; Australian Competition and Consumer Commission v Digital Products Group Pty Ltd [2006] FCA 1732; BC200611111 at [11] per Tracey J; Australian Competition and Consumer Commission v Knight (2007) ATPR ¶42-165; [2007] FCA 1011; BC200705190 at [65] per Mansfield J; Australian Competition and Consumer Commission v GO Drew Pty Ltd [2007] FCA 1246; BC200706928 at [37] per Gray J; Australian Competition and Consumer Commission v Kokos International Pty Ltd (No 2) (2008) ATPR ¶42-212; [2008] FCA 5; BC200800032 at [46] per French J; Australian Competition and Consumer Commission [page 706] v Imagine Essential Services Ltd (No 2) [2008] FCA 446; BC200802378 at [15] per Gordon J; Australian Competition and Consumer Commission v Prouds Jewellers Pty Ltd (No 2) (2008) ATPR ¶42-230; [2008] FCA 476; BC200802503 at [5] per Moore J; Australian Competition and Consumer Commission v EDirect Pty Ltd (2008) ATPR ¶42-216; [2008] FCA 65; BC200802065 at [21] per Jacobson J; Australian Competition and Consumer Commission v Teracomm Ltd [2009] FCA 903; BC200907523, at [37]–[38] per Moore J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213 at [25] per Bennett J; Australian Competition & Consumer Commission (ACCC) v StoresOnline International Inc (No 2) [2010] FCA

418; BC201004266 at [30] per Edmonds J; Australian Competition & Consumer Commission (ACCC) v Powerballwin.com.au Pty Ltd [2010] FCA 378; BC201002458 at [43] per Tracey J; Director of Consumer Affairs Victoria v DW International Trading Pty Ltd [2010] VSC 515; BC201008498 per Dixon J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd [2011] FCA 393; BC201102461 per Bennett J; Australian Competition and Consumer Commission v Smash Enterprises Pty Ltd [2011] FCA 375; BC201102076 per Gordon J; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; BC201102241 per Gordon J; Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 2) [2012] FCA 19; BC201200119 per Tracey J; Abrahams v Biggs [2011] FCA 1475; BC201109853 per Jessup J; Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535; BC201203612 per Tracey J; Australian Competition and Consumer Commission v Jutsen (No 4) [2012] FCA 503; BC201203214 per Nicholas J; Australian Competition and Consumer Commission v EDirect Pty Ltd (in liq) [2012] FCA 976; BC201206672 per Reeves J; Australian Competition and Consumer Commission v UNJ Millenium Pty Ltd [2012] FCA 1123; BC201207940 per Greenwood J; Australian Competition and Consumer Commission v E Direct Pty Ltd [2012] FCA 1045; BC201208139 per Reeves J; SC Johnson & Son Pty Ltd v Reckitt Benckiser (Aust) Pty Ltd (No 2) [2012] FCA 1362; BC201209536 per Yates J; Pampered Paws Connection Pty Ltd v Pets Paradise Franchising (Qld) Pty Ltd (No 11) [2013] FCA 241; BC201301255 per Mansfield J; Australian Competition and Consumer Commission v Luv-aDuck Pty Ltd [2013] FCA 1136; BC201314592 per Davies J; Australian Competition and Consumer Commission v P&N Pty Ltd [2014] FCA 6; BC201400060 per Besanko J; Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267; BC201315388 per Mansfield J; Australian Competition and Consumer Commission (ACCC) v Taxsmart Group Pty Ltd [2014] FCA 487; BC201403564 per Davies J; Zwanenberg Australia Pty Ltd v Moira Mac’s Poultry and Fine Foods Pty Ltd (No 2) [2014] FCA 1401; BC201410883 per Jessup J; Australian Competition and Consumer Commission (ACCC) v Chopra [2015] FCA 539; BC201504567 per Middleton J. Discretionary remedy Declarations are a discretionary remedy. Factors

relevant to the exercise of the discretion include: • delay in bringing the proceedings: Australian Competition and Consumer Commission v Eurong Beach Resort Ltd [2005] FCA 1134; BC200506003 at [7] per Kiefel J; • whether the declaration serves to vindicate the applicant’s claim and assists in clarifying the law: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR ¶41-801; [2000] FCA 1885; BC200007918 at [34] per Carr J; Australian Competition and Consumer Commission v Albert [2005] FCA 1311; BC200507021 at [30] per Jacobson J; the public interest: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd, above, at [34] per Carr J; Australian Competition and Consumer Commission v Albert, above, at [30] per Jacobson J; Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2006] FCA 1118; BC200606499 at [8] per Siopis J; Australian Competition and Consumer Commission v Barton Mines Corporation [2006] FCA 1264; BC200608378 at [7] per Tracey J; Australian Competition and Consumer Commission v Zanok Technologies Pty Ltd [2009] FCA 1124; BC200909106 at [19] per Edmonds J. [page 707] •

to show that prohibited conduct will not be condoned and to educate the public: Australian Competition and Consumer Commission v Eurong Beach Resort Ltd [2005] FCA 1134; BC200506003 at [5] per Kiefel J; Australian Competition and Consumer Commission v GM Holden Ltd [2008] FCA 1428; BC200808135 at [13] per Siopis J; Australian Competition and Consumer Commission v Global Green Plan Ltd [2010] FCA 1057; BC201007228 at [7] per Bennett J; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; BC201102241 per Gordon J; Australian Competition and Consumer Commission v Link Solutions Pty Ltd (No 3) [2012] FCA 348; BC201202003

per Bennett J; Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2014] FCA 148; BC201400910 per Greenwood J. Form of declaration In Rural Press Ltd v Australian Competition and Consumer Commission (2003) 203 ALR 217; 78 ALJR 274; [2003] HCA 75; BC200307578 at [89]–[90] Gummow, Hayne and Heydon JJ (Gleeson CJ and Callinan J agreeing) expressed concern at the context in which declarations were made by the trial judge and said that close attention should be paid to the form of proposed declarations. Attention must be given to the form of the declaration so that it is informative as to the basis on which the court declares that a contravention has occurred: Australian Competition and Consumer Commission v Francis (2004) ATPR (Digest) ¶46-250; [2004] FCA 487; BC200402108 at [113] per Gray J. See Australian Competition and Consumer Commission v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2004] FCA 517; BC200402192 at [7] per Gray J; Australian Competition and Consumer Commission v Global One Mobile Entertainment Ltd (No 2) [2011] FCA 670; BC201104194 at [11]–[14] per Bennett J; Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd (No 2) [2014] FCA 1028; BC201407839 per Flick J; Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2015] FCA 274; BC201501979 at [83] per Gordon J. A declaration should not be too widely cast. Similarly, a declaration may be problematic if too narrowly cast: Australian Competition and Consumer Commission (ACCC) v Chrisco Hampers Australia Ltd (No 2) [2016] FCA 144; BC201601335 at [9] per Edelman J; Australian Competition and Consumer Commission v Chrisco Hampers Australia Limited (No 3) [2016] FCA 206 per Edelman J. A declaration should ordinarily be in a form reflecting the substantive cause of action sued upon: Metcalfe v NZI Securities Australia Ltd, above; (appeal) Metcalfe v NZI Securities Australia Ltd (FCA, Sheppard, Burchett and Lindgren JJ, No 523/95, 5 March 1996, unreported). See also s 163A. Ordinarily it will not be appropriate to grant a declaration of a contravention of the Act on an application for summary judgment unless the case is particularly clear and the other circumstances suggest that it is appropriate to do so: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489; BC200702336 at [25] per Besanko J.

Declarations by consent or admission A court will not usually make declarations on matters relating to public rights by consent or on admissions, but only if it is satisfied by evidence: Australian Competition and Consumer Commission v Audi Australia Pty Ltd (2008) ASAL ¶55-183; (2007) ATPR ¶42-211; [2007] FCA 1990; BC200711197 at [4] per Gordon J; see Australian Competition and Consumer Commission v Cosic Holdings Pty Ltd [2009] FCA 1579; BC200911577 at [49] per Barker J; Australian Competition and Consumer Commission v Smash Enterprises Pty Ltd (No 2) [2011] FCA 376; BC201104888 per Gordon J; Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [2011] FCA 372; BC201102057 at [13] per Gordon J; Australian Competition and Consumer Commission v Link Solutions Pty Ltd (No 3) [2012] FCA 348; BC201202003 per Bennett J; Director of Consumer Affairs v Nightingale Electrics Pty Ltd [2016] FCA 279; BC201601844 at [2] per Pagone J. [page 708] The rule against making of declarations upon admission or the parties’ consent is to preserve the integrity of the court and of the judicial process which would be compromised if orders are made that are not founded upon fact. However, this is a rule of practice that will not be followed where appropriate and necessary to do justice between the parties: Director of Consumer Affairs v Nightingale Electrics Pty Ltd [2016] FCA 279; BC201601844 at [2] per Pagone J. A court may make declarations by consent only after being satisfied that it is appropriate that the orders should be made: Australian Competition and Consumer Commission (ACCC) v Grove and Edgar Pty Ltd [2008] FCA 1956; BC200811599 at [18] per Reeves J; Australian Competition and Consumer Commission (ACCC) v AMV Holding Ltd [2009] FCA 605; BC200904933 at [7] per Moore J; Australian Competition and Consumer Commission v Star Promotions Club Pty Ltd [2010] FCA 139; BC201001050 per Rares J; Australian Competition and Consumer Commission v Link Solutions Pty Ltd (No 3) [2012] FCA 348; BC201202003 per Bennett J; Australian Competition and Consumer Commission v Renegade Gas Pty Ltd [2014] FCA 1135 per Gordon J; Australian Competition and Consumer Commission v Zen Telecom Pty Ltd [2014] FCA 1049; BC201408101 per

Barker J; Australian Competition and Consumer Commission v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393; BC201410907 per Wigney J; Australian Competition and Consumer Commission (ACCC) v South East Melbourne Cleaning Pty Ltd (in liq) (formerly Known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) [2015] FCA 25; BC201500239 per Murphy J; Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2015] FCA 274; BC201501979 at [80] per Gordon J; Australian Competition and Consumer Commission (ACCC) v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62; BC201600510 at [153] per Mortimer J. There have been many examples where courts have made declarations on the basis of a statement of agreed facts: Australian Competition and Consumer Commission v Jetplace Pty Ltd [2010] FCA 759; BC201005035 at [52]; Australian Competition and Consumer Commission v Cosic Holdings Pty Ltd [2009] FCA 1579; BC200911577; Australian Competition and Consumer Commission v Wilson Parking 1992 Pty Ltd [2009] FCA 1580; BC200911576; Minister for the Environment, Heritage and the Arts v PGP Developments Pty Ltd (2010) 183 FCR 10; [2010] FCA 58; BC201000508; Australian Competition and Consumer Commission v Willesee Healthcare Pty Ltd [2011] FCA 301; BC201102045; Australian Competition and Consumer Commission v Link Solutions Pty Ltd (No 3) [2012] FCA 348; BC201202003 per Bennett J; Australian Competition and Consumer Commission v Cotton On Kids Pty Ltd [2012] FCA 1428; BC201209956 per Tracey J; Australian Competition and Consumer Commission v Adepto Publications Pty Ltd [2013] FCA 247; BC201301415 per Cowdroy J; Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd (No 2) [2014] FCA 1028; BC201407839 per Flick J; Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2014] FCA 1434; BC201411359 per Pagone J; Director of Consumer Affairs v Nightingale Electrics Pty Ltd [2016] FCA 279; BC201601844 per Pagone J. In Australian Competition and Consumer Commission v Willesee Healthcare Pty Ltd (No 2) [2011] FCA 752 at [24]–[44], Dodds-Stretton J said: [24] In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No. 2) [2011] FCA 382 (“ACCC v MSY”), Perram J has since expressed the view that, although declarations as to public rights may be made on the basis of an agreed statement of facts, they may not be made by consent. Rather, such declarations may be made only if a contradictor has contested the relief.

[25] Perram J identified the two principal impediments to the making of declarations by consent and on the basis of agreed facts as: (a) the principle derived from Wallersteiner v Moir [1974] 1 WLR 991 (“Wallersteiner v Moir”) suggesting that declarations should not be made on submissions, but only on evidence (“the evidence requirement”); and [page 709] (b) the principle derived from Lord Dunedin’s speech in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 (“Russian Commercial”) suggesting that a declaration may not be made in the absence of a contradictor (“the contradictor requirement”). [26] On a detailed analysis of the judicial antecedents in the above principles, Perram J concluded that the evidence requirement derived from Wallersteiner v Moir was based on a misreading of the authorities and was otherwise unpersuasive. [27] Further, in Perram J’s view, Finkelstein J’s holding in ACCC v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 that a judge of the Federal Court was bound not to grant a declaration involving a public right in the absence of supportive evidence was based on a misconstruction of the ratio of BMI Ltd v Federated Clerks Union of Australia (1983) 76 FLR 141; [1983] FCA 351 (“BMI”). [28] In contrast, Perram J recognised that Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 (“ Forster”) imposed a binding requirement for a proper contradictor. In Forster, Gibbs J (with whom McTiernan, Stephen and Mason JJ agreed on that issue) approved Lord Dunedin’s description of a proper contradictor in Russian Commercial as “some one presently existing who has a true interest to oppose the declaration sought” (at 437 to 438). [29] In Perram J’s view, the majority in BMI (Keely and Beaumont JJ) held that, additionally, a contradictor was “a party arguing against the granting of the relief and that this could not be satisfied where the matter proceeded by consent” (at [32]). Perram J considered that, as the absence of a contradictor (in the sense of a party contesting the declaratory relief sought) was the basis of the majority’s decision in BMI, a single judge of the Federal Court was bound not to make a declaration involving a public right in the absence of a contest on the question. [30] His Honour nevertheless concluded that the majority view in BMI was probably incorrect and acknowledged that, contrary to his understanding of BMI, a large number of declarations by consent had in fact been made by this court. [31] Perram J concluded at [43]: (d) this court is bound by Forster not to make declarations without a contradictor; (e) as a matter of correct legal doctrine a contradictor will be present when all proper defendants have been joined and so are bound to the result. They will not cease to be contradictors merely because they consent to the proposed declarations; (f) BMI has, as its ratio decidendi, the contrary proposition which binds me. [32] While in my view his Honour’s conclusions in sub-paragraphs 43 (d) and (e) are correct, I am not, with respect, persuaded that the ratio of BMI is such as to preclude single judges of this court from making declarations involving a public right in the absence of a contradictor who contests that relief. [33] In BMI, the applicants, a group of employer organisations, sought three distinct species of

relief, viz: (a) an interpretation under s 110 of the Conciliation and Arbitration Act 1904 (Cth) (“C&A Act”) of certain provisions of a federal award, (b) declarations under s 21 of the Federal Court of Australia Act 1976 (Cth); and (c) declarations under s 108 of the C&A Act as “a person interested” that a State award was invalid under s 65 of the C&A Act, in so far as it purported to bind BMI in respect of employees engaged to perform various categories of work within three classifications of the federal award. [page 710] [34] The applicants’ first two claims were dealt with by a single judge, but the third claim for a declaration under s 108 of C & A Act was required to be heard by the Full Court. [35] The majority (Keely and Beaumont JJ) in their joint reasons observed that there was no opposition at the hearing of the application for the declaration under s 108 of the C&A Act. The applicants presented full argument, but the respondents represented at the hearing merely indicated that they raised no objection to declarations in the terms sought. [36] The majority observed that the discussions of Buckley and Scarman LLJ in Wallersteiner v Moir of the evidence requirement were pertinent to the present case. The majority stated that under s 108(3), the court had a discretion as to whether, in a particular case, it was appropriate to make a declaration and circumstances which must exist for the making of a declaration. [37] Their Honours stated (at 153): For the reasons advanced by Buckley LJ and Scarman J above we think that it is generally undesirable that the court should grant relief by way of declaratory orders under s 108 in the absence of any contest on the question. [38] Their Honours contemplated that it might be different if the matter were merely one of private right, but recognised that in the case before them, the declarations, if made, could practically extend well beyond the parties and would be seen to express the court’s views, notwithstanding that it had not had the benefit of any contrary argument. [39] Their Honours proceeded to consider extensively a number of different matters, which also weighed against the exercise of their discretion, including: (a) The fact that there were no practical benefit or useful purpose from the court’s expression of its views on the question, as it had become, due to the agreement of the parties, academic. (b) There were doubts about whether the federal award applied to the first applicant, BMI, as BMI may have been a member of an employers’ association expressly excluded from the application of that award. (c) It was arguable that the State award was not inconsistent with the federal award. (d) There was doubt about, and no evidence of, the eligibility of BMI employees for membership of the State union or of any other respondent who consented to the declaration. (e) The form of the declaration sought was unsatisfactory, because it declared an invalidity limited to certain activities of a particular employer, and, if made, could cause confusion, as it might be assumed that the court had found the State award otherwise valid. [40] Their Honours concluded (at 155) that:

In the circumstances we would decline to make the declaration sought. It is apparent from what we have said that the refusal of the relief sought is made on discretionary grounds… [41] In my opinion, while the majority in BMI characterised a proper contradictor as a party who contested the question, their discussion of that issue was expressly within the context of an application under s 108 of the C&A Act and the peculiar features of the case before them. On my reading of their Honours’ reasons, they did not purport to enunciate absolute requirements for a proper contradictor generally applicable in all contexts. Further, the absence of a proper contradictor (as defined) was but one of a number of factors which the majority proceeded to consider as relevant to the exercise of their discretion. Their Honours noted that the absence of a contradictor who contested the relief sought had a particular impact on some other relevant factors, but it did not appear to be, in itself, decisive. Their Honours’ comprehensive analysis of a number of other relevant factors suggests the contrary. [42] As the joint submissions stated: [page 711] [77] The true ratio in BMI Ltd is that, as a matter of discretion, the Court was not persuaded to grant the declaratory relief because of a stated concern that such an order could give a misleading impression in relation to activities of parties not before the Court. This (merely) reflects an exercise of discretion in the circumstances of that case. The majority judgment neither states nor purports to state a more general principle of the type identified by Perram J. [78] Further, and in any event, the matters causing concern which presented in BMI Ltd do not present in the circumstances of the present case. Those matters, identified above, that persuaded the Court in BMI Ltd to exercise its discretion to not make the declaration there sought by the applicant are not present in this controversy. [43] For the above reasons, in my opinion, the BMI majority’s requirement for a contradictor contesting the relief sought may be confined to declarations sought under the particular legislation relevant in that case and, moreover, was but one of a number of factors relevant to the exercise of the discretion. [44] Consequently, I considered that in the present case, the requirement for a proper contradictor was satisfied despite the absence of any contest, and it was both permissible and appropriate to make the relevant declarations by consent.

Courts have deferred making declaratory orders with the consent of the settling parties until after the hearing an determination of the proceedings against the continuing parties to avoid possible inconsistency in orders of the court: Australian Competition and Consumer Commission v Woolworths (SA) Pty Ltd (2003) 198 ALR 417; (2003) ATPR ¶41-941; [2003] FCA 530; BC200302752 at [27]–[31] per Mansfield J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd ((No 4) [2010] FCA 16; BC201000212 at [28] per Bennett J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17; BC201000213

at [28] per Bennett J; Australian Competition and Consumer Commission v EDirect Pty Ltd (in liq) [2012] FCA 976; BC201206672 per Reeves J. [11,720.25] Orders for compensation in relation to a contravention: s 87(1A) Section 87(1A) was repealed and replaced by the Trade Practices Amendment Act (No 1) 2001 and further amended by the Treasury Legislation Amendment (Application of Criminal Code) Act (No 1) 2001. Section 87(1A) permits the commission to bring a representative action in relation to Pt IV or IVB. The amendment follows the recommendations of the Australian Law Reform Commission in its report Compliance with the Trade Practices Act 1974, Report No 68, 1994. An application under s 87(1A) may be related to proceedings under other sections of the Act, or alternatively may stand alone: Fenech v Sterling (1984) 4 FCR 372; 57 ALR 98; (1984) ATPR ¶40-496 at 45,709; Dorfler v ANZ Banking Group Ltd (1991) 103 ALR 699; Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91; 143 ALR 328; (1997) ATPR ¶41-567. The remedies available under s 87(1A) are discretionary and may be affected by a number of factors including: • the time which has elapsed since the applicant became aware of the contravention; • the nature of the contravention; and • the degree of involvement of the person from whom relief is sought: Fenech v Sterling, above. See also Tenji v Henneberry & Assocs Pty Ltd (2000) 98 FCR 324; 172 ALR 679; (2000) ATPR (Digest) ¶46-204; [2000] FCA 550; BC200002117; Tenji v Henneberry & Assocs Pty Ltd (No 2) [2000] FCA 1271; BC200005700. Relief under s 87(1A) is compensatory: Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91; 143 ALR 328; (1997) ATPR ¶41-567. [page 712] The purpose for the inclusion of the phrase “likely to suffer loss or damage” in s 87(1A) is to afford the opportunity to an applicant to move quia timet in a similar way to the obtaining of injunctive relief against the Commission of an apprehended wrong: Poignand v NZI Securities Australia

Ltd (1992) 37 FCR 363; 109 ALR 213; (1992) ATPR ¶41-181 at 40,469. [11,720.25A] Prohibition on recovery of damages for death or personal injury The Trade Practices Amendment (Personal Injuries and Death) Act 2006 inserted s 87(1AA) and (1AB). The amendment gave effect to the recommendations of the Ipp committee in its final report, Review of the Law of Negligence in September 2002: see [11,740D.5]. The committee’s recommendations included: Recommendation 19: the Trade Practices Act should be amended to prevent individuals bringing actions for damages for personal injury or death under Pt V Div 1.

Section 87(1AA) and (1AB) were repealed by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 No 103, effective 1 January 2011. See now ACL Pt 3.1. [11,720.26] Representative actions by the Commission: s 87(1B) Section 87(1B) was repealed and replaced by the Trade Practices Amendment Act (No 1) 2001 and further amended by the Treasury Legislation Amendment (Application of Criminal Code) Act (No 1) 2001. The principal amendments follow the recommendations of the Australian Law Reform Commission in its report Compliance with the Trade Practices Act 1974, Report No 68, 1994. Section 87(1B) now permits the commission to commence a representative action with the consent of a person who has or is likely to suffer loss or damage from a contravention, without first having to commence proceedings under ss 79 or 80: Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd (2002) ATPR ¶41-850; [2001] FCA 1620; BC200107102 at [42] per Wilcox, French and Drummond JJ. It will ordinarily be prudent to plead that the necessary consent existed: Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491; 59 IPR 435; [2003] FCA 850; BC200304503 at [220] per Selway J. The necessity for the consent of the complainants provides the assurance of knowing that they do not wish to prove facts in support of the claim for compensation different from the facts as found in the action. If that were the case, the consent would be withheld and they (or any of them) could bring separate proceedings for compensation: Australian Competition and Consumer Commission v Keshow (No 2) [2005] FCA 989; BC200505290 at [6] per Mansfield J.

In Trade Practices Commission v Friendship Aloe Vera Pty Ltd (1988) ATPR ¶40-892 at 49,630 prior to the amendment to s 87(1B) by the Trade Practices Amendment Act (No 1) 2001, Pincus J said that the cause of action under s 87(1B) does not accrue until the making of a finding that a person has engaged in a relevant contravention. Drummond J accepted this part of Pincus J’s judgment in Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1997) 72 FCR 386; 142 ALR 569; (1997) ATPR ¶41-552 at 43,634. The legislative policy is that compensatory orders should only be available for the benefit of loss sufferers who were willing to be identified as such either by being parties or by consenting in writing to have the commission apply for a compensatory order on their behalf: Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 156 ALR 273; (1998) ATPR ¶41-648; (Notice of motion to dismiss) Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) ATPR ¶41-669; [1998] FCA 1560. However, s 87(1B) requires that the finding of contravening conduct must be made (as Pincus J observed in the Friendship Aloe Vera case, above) before the commission may make application under s 87(1A), though a separate proceeding is not necessarily required (at ATPR 43,635–7); see Australian Competition and Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439; BC200207111 at [23] per Dowsett J. See Australian Competition and Consumer Commission v Allphones Retail Pty Ltd [2011] FCA 538; BC201103377 per Foster J. Once the condition in s 87(1A) is satisfied, it is open to the commission to bring an application against both the party engaged in the proscribed conduct in addition to any persons involved in that contravention: Trade Practices Commission v Collings Construction Co Pty Ltd (1997) ATPR [page 713] (Digest) ¶46-167; Australian Competition and Consumer Commission v Golden Sphere International Inc (1998) 83 FCR 424; (1998) ATPR ¶41-638; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd, above, (1998). Part IVA of the Federal Court of Australia Act 1976 is to be construed

according to its terms notwithstanding the existence of s 87(1B): Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250; 142 ALR 177. However the availability of the procedure in s 87(1A) and (1B) is relevant to the exercise of the court’s discretion under Pt IVA. The court may for instance consider it appropriate that proceedings by the commission continue under s 87A [repealed] rather than under Pt IVA: Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd, above, (1998), ATPR at 41,200. [11,720.26A] Unliquidated damages and bankruptcy A claim for compensation under s 87(1B) is a claim in the nature of unliquidated damages that arises otherwise than by reason of a contract, promise or breach of trust under s 82 of the Bankruptcy Act 1966 and is not a provable debt in bankruptcy: Australian Competition and Consumer Commission v Kritharas (2000) 105 FCR 444; 178 ALR 363; [2000] FCA 1442; BC200006211 at [24], [28] per Katz J; Australian Competition and Consumer Commission v Black on White Pty Ltd (2001) 110 FCR 1; (2001) ATPR ¶41-820; [2001] FCA 187; BC200100893 at [30] per Spender J. [11,720.27] Orders for compensation in the absence of other proceedings in relation to a contravention: s 87(1C) Section 87(1C) was first inserted following the decision in Sent v Jet Corp of Australia Pty Ltd (1986) 160 CLR 540; 66 ALR 73. See the discussion in Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1997) 72 FCR 386; 142 ALR 569; (1997) ATPR ¶41-552 at 43,635–6; Tenji v Henneberry & Associates Pty Ltd (2000) 98 FCR 324; 172 ALR 679; (2000) ATPR (Digest) ¶46-204; [2000] FCA 550; BC200002117 at [8] per French J; Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (2001) 109 FCR 528; 191 ALR 402; [2001] FCA 226; BC200100800; Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd (2002) ATPR ¶41-850; [2001] FCA 1620; BC200107102 at [40] per Wilcox, French and Drummond JJ. Section 87(1C) was amended by the Treasury Legislation Amendment (Application of Criminal Code) Act (No 1) 2001 to refer to the new Pt VC inserted by that legislation. The subsection allows an application to be made under s 87(1A) in relation to a contravention even though proceedings have not been instituted under any other provision in relation to that contravention. Accordingly, it is open to an applicant to seek orders under s 87 even

though the applicant has not sought damages under s 82(2): Fielding v Vagrand Pty Ltd (1992) 39 FCR 251; 111 ALR 368; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608; Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353; 143 ALR 457; (1997) ATPR ¶41-560. Section 87 cannot sustain an order designed to compensate a misrepresentee for expectation damages because of the decision in Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; 63 ALR 600; (1986) ATPR ¶40-666; GIO Australia Holdings Ltd v Marks (1996) 70 FCR 559; (1997) ATPR ¶41-544 at 43,543–4. In Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd, above, at [31], Gyles J said that if it were not for the words in s 87 “including all of the orders mentioned in subsection (2) of this section” and the express terms of s 87(2), he would be inclined to read s 87(1) as not authorising orders in the nature of those encompassed by s 82. Section 87 permits a remedy (such as a set-off) to be sought in a defence, without a separate application: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; BC200606641 at [11] per Hodgson JA, and at [104] per Basten JA; HP Mercantile Pty Ltd v Dierickx [2012] NSWSC 1005; BC201206878 at [267] per White J. Section 87(1CA) was amended by the Trade Practices Amendment Act (No 1) 2001 to extend to 6 years the period within which a person may commence an action. The Australian Law Reform Commission in its report Compliance with the Trade Practices Act 1974, Report No 68, 1994 had recommended that the court instead be given a discretion to extend the limitation period in a given case. [page 714] This section clarifies some doubts which existed as to the appropriate time limits applying to s 87: Fenech v Sterling (1984) 4 FCR 372; 57 ALR 98; (1984) ATPR ¶40-496; Bate v International Computers (Aust) Pty Ltd (1984) 2 FCR 526; (1984) ATPR ¶40-475; Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1985) 61 ALR 504; (1985) ATPR ¶40-583; Blacker v National Australia Bank Ltd [2000] FCA 681; BC200002725. However, it does not provide any guidance in determining when a cause of

action accrues. It may be appropriate therefore to consider other limitation provisions: Calmao Pty Ltd v Stradbroke Waters Co-owners Co-op Society Ltd (1989) 21 FCR 28; 89 ALR 507; (1989) ATPR ¶40-984 at 50,741. However, s 87(1CA) does not incorporate a limitation period by analogy with courts of equity that applied limitation periods consistent with that of the common law: Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91; 143 ALR 328; (1997) ATPR ¶41-567. A cause of action under s 87(1A) may accrue as soon as loss or damage is likely to be suffered. This means that the time bar in s 87(1CA) may in a given case have a different operation to that in s 82(2), where in most cases the cause of action will accrue when loss or damage is suffered: Western Australia v Wardley Australia Ltd (1991) ATPR ¶41-131 at 52,929; Dorfler v ANZ Banking Group Ltd (1991) 103 ALR 699; Leitch v Natwest Australia Bank Ltd (1995) ATPR (Digest) ¶46-153 at 53,189; Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91; 143 ALR 328; (1997) ATPR ¶41-567; KA & C Smith Pty Ltd v Ward (1999) ATPR ¶41-717; Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (2001) 109 FCR 528; 191 ALR 402; [2001] FCA 226; BC200100800 at [22]–[23]; see Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 7) [2009] WASC 390; BC200911250 at [73] per EM Heenan J. However, in Magman International Pty Ltd v Westpac Banking Corp (1991) 32 FCR 1; 104 ALR 575; (1992) ATPR ¶41-161 at 40,198, Beaumont J said that in a case where actual damage is alleged and relief is sought under s 87(1A) the cause of action accrues, for limitation purposes, at the same time as a cause of action under s 82 would accrue. There is no relevant limitation period for bringing proceedings for an injunction under s 80. Therefore, there is no time provision in relation to the grant of relief under s 87(1) in proceedings brought under s 80: Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd, above, at [30]. [11,720.32] Nature of loss or damage The loss or damage contemplated by s 87(1A) is not limited to loss or damage in the sense in which it is used in s 82. Therefore for the purpose of s 87(1A) loss or damage will include any detriment suffered by a person who is bound to a contract induced by misleading or deceptive conduct in contravention of s 52 [now ACL s 18] or through unconscionable conduct: Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608. In that case Cooper J said that the expression meant no more than the disadvantage which is suffered by a person as a result of the

outward fault of another. Neither does the phrase involve any concept of quantum or assessment of damages as is the case under s 82: Demagogue Pty Ltd v Ramensky, above. See also Sedgwick Ltd v Bain Clarkson Ltd (t/as Bain Hogg Ltd) (1994) 56 FCR 578; 129 ALR 493; (1995) ATPR ¶41-411; Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353; 143 ALR 457; (1997) ATPR ¶41-560; Shop Distributive and Allied Employee’s Association v Karellas Investments Pty Ltd (No 2) (2007) 166 IR 51; [2007] FCA 1425; BC200707780 at [112] per Graham J. [11,720.33] Compensation in part of a loss or damage Section 87(1) permits an order compensating a person in part for loss or damage suffered or likely to be suffered. This contemplates that such partial compensation may be sufficient to do justice to the plaintiff, for example, because other relief has been granted which makes full financial compensation unnecessary or inappropriate: I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 192 ALR 1; [2002] HCA 41; BC200205780 at [19] per Gleeson J. However, the amount of loss or damage suffered is the amount which, under s 82, the plaintiff is entitled to recover. That right is not made subject to s 87. There is no warrant for reading s 87 as conferring upon a court a discretionary power to take away or modify a right conferred by s 82 [page 715] or to reduce damages to which an applicant would be otherwise entitled under s 87: I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd, above, at [20] per Gleeson J; at [53], [61] per Gaudron, Gummow and Hayne JJ; at [69] per McHugh J. [11,720.35] Equivalent state legislation For the equivalent provisions in the relevant Acts of the states and territories see the comparative table at [10,001]. _____________________

[11,720AAA]

Orders to redress loss or damage

suffered by non-party consumers etc 87AAA 2011]

[s 87AAA rep Act 103 of 2010 s 3 and Sch 5[100], opn 1 Jan

[11,720AAB] Kinds of orders that may be made to redress loss or damage suffered by non-party consumers etc 87AAB 2011]

[s 87AAB rep Act 103 of 2010 s 3 and Sch 5[100], opn 1 Jan

[11,725] Power of Court to prohibit payment or transfer of moneys or other property 87A

[s 87A rep Act 103 of 2010 s 3 and Sch 5[100], opn 1 Jan 2011] SECTION 87A GENERALLY

[11,725.1] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the “Comparative Table — Consumer Protection Provisions of the Trade Practices Act and ASIC Act” at [10,002]. [11,725.5] Equivalent state legislation For the equivalent provisions in the relevant Acts of the states and territories see the “Comparative Table — Commonwealth and State Fair Trading Provisions” at [10,001]. _____________________

[11,725AA] Special provision relating to Court’s exercise of powers under this Part in relation to boycott conduct 87AA

(1) In exercising its powers in proceedings under this Part in

relation to boycott conduct, the Court is to have regard to any action the applicant in the proceedings has taken, or could take, before an industrial authority in relation to the boycott conduct. In particular, the Court is to have regard to any application for conciliation that the applicant has made or could make. (2) In this section: boycott conduct means conduct that constitutes or would constitute: (a) a contravention of subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA; or (b) attempting to contravene one of those provisions; or (c) aiding, abetting, counselling or procuring a person to contravene one of those provisions; or (d) inducing, or attempting to induce, a person (whether by threats, promises or otherwise) to contravene one of those provisions; or [page 716] (e) being in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of one of those provisions; or (f) conspiring with others to contravene one of those provisions. industrial authority means: (a) a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a law of a State to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State; or (b) a special board constituted under a law of a State relating to factories; or (c) any other State board, court, tribunal, body or official prescribed by the regulations for the purposes of this definition. [def subst Act 54 of 2009 s 3 and Sch 18[27], opn 1 July 2009] [s 87AA insrt Act 60 of 1996 s 3 and Sch 17; am SLI 50 of 2006 reg 3 and Sch 15[6], opn 27 Mar 2006]

[11,725AB]

Limit on liability for misleading or

deceptive conduct 87AB

[s 87AB rep Act 103 of 2010 s 3 and Sch 5[100], opn 1 Jan 2011]

[11,725AC] 87AC 2011]

[11,730]

Declarations

[s 87AC rep Act 103 of 2010 s 3 and Sch 5[100], opn 1 Jan

Enforcement of undertakings

87B (1) The Commission may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the Commission has a power or function under this Act (other than Part X). (1A) The Commission may accept a written undertaking given by a person for the purposes of this section in connection with a clearance or an authorisation under Division 3 of Part VII. [subs (1A) insrt Act 131 of 2006 s 3 and Sch 1[21], opn 1 Jan 2007]

(2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Commission. (3) If the Commission considers that the person who gave the undertaking has breached any of its terms, the Commission may apply to the Court for an order under subsection (4). (4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders: (a) an order directing the person to comply with that term of the undertaking; (b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach; (c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach; (d) any other order that the Court considers appropriate.

[s 87B insrt Act 222 of 1992 s 13]

[page 717] SECTION 87B GENERALLY [11,730.5] Overview

See also ACL s 218.

[11,730.8] Nature of undertakings Undertakings given under the provision are statutory instruments. Arguably the principles of construction of a legislative document apply and not the principles of construction of a private contract: Australian Competition and Consumer Commission v Coles Group Ltd [2014] FCA 363; BC201402570 at [10] per Robertson J; Australian Competition and Consumer Commission v Woolworths Ltd [2014] FCA 364; BC201402565 at [14] per Robertson J. [11,730.10] When undertakings are required Undertakings may be used in a variety of purposes, for example to settle a dispute or for the purpose of obtaining an authorisation. Whether to proceed or not to proceed under s 87B is a matter for the commission and not the court: Trade Practices Commission v Cue Design Pty Ltd (1996) 85 A Crim R 500; (1996) ATPR ¶41-475 at 41,834 per O’Loughlin J; Australian Competition and Consumer Commission v Monza Imports Pty Ltd (2001) ATPR ¶41-843; [2001] FCA 1455; BC200106299 at [14] per Carr J; Australian Competition and Consumer Commission v Apollo Optical (Aust) Pty Ltd (2001) ATPR ¶41-843; [2001] FCA 1456; BC200106300 at [14] per Carr J; Australian Competition and Consumer Commission v Signature Security Group Pty Ltd (2003) ATPR ¶41-942; [2003] FCA 375; BC200302338 at [7] per Stone J. However, in Monza Imports, above, at [14] and Apollo Optical, above, at [14], Carr J did not rule out the possibility that in appropriate circumstances the court might take into account the commission’s refusal to accept an undertaking when deciding to make an order or to award costs, even when such orders are proposed on a consent basis. Similarly, a person may refuse to give an undertaking leaving the commission to decide if it wishes to commence proceedings: Australian

Competition and Consumer Commission v Signature Security Group Pty Ltd, above, at [8] per Stone J. [11,730.11] Content of undertakings The court should not “note” undertakings proferred to the commission without regard to their content. It is not necessary that the court positively find the proferred undertaking to be one within power of the commission to accept. The proper balance is for the court to consider the terms of the undertaking to be satisfied that prima facie it is one which the commission is empowered to accept: Australian Competition and Consumer Commission v Woolworths (SA) Pty Ltd (2003) 198 ALR 417; [2003] FCA 530; BC200302752 at [44] per Mansfield J. [11,730.12] Breach of undertaking An undertaking will be breached irrespective of whether the contravening conduct is deliberate, inadvertent or otherwise: Australian Competition and Consumer Commission v Signature Security Group Pty Ltd (2003) 52 ATR 1; (2003) ATPR ¶41-908; [2003] FCA 3; BC200300010 at [41] per Stone J. See Toll Holdings Ltd v Australian Competition and Consumer Commission (ACCC) (2009) 256 ALR 631; [2009] FCA 462; BC200903773 per Gray J. It is unlikely that the provision was intended to apply to undertakings where the controversy has been resolved by the court and where the effect of enforcing an undertaking would be to impose on a party obligations in excess of those imposed by the Act: Australian Competition and Consumer Commission v Signature Security Group Pty Ltd (2003) ATPR ¶41-942; [2003] FCA 375; BC200302338 at [9] per Stone J. A breach of a s 87B undertaking is unlikely to be analogous to a breach of contract: Dresna Pty Ltd v Misu Nominees Pty Ltd (2004) ATPR ¶42-013; [2004] FCAFC 169; BC200403968 at [57] per Marshall J. It is unclear whether a breach of a s 87B undertaking can constitute unlawful means for the tort of conspiracy: Dresna Pty Ltd v Misu Nominees Pty Ltd, above, at [19] per Kiefel and Jacobson JJ; at [59] per Marshall J. [page 718] The court may make orders under s 87 to direct a respondent to comply with a term of an undertaking given under s 87B: Australian Competition and

Consumer Commission v StoresOnline International Inc [2007] FCA 1597; BC200708943 at [17] per Tamberlin J. The court may also require the publication of corrective statements: Australian Competition and Consumer Commission v Roberson [2008] FCA 1735; BC200810167 per Graham J. In Australian Competition and Consumer Commission v Woolworths Ltd [2014] FCA 364; BC201402565 at Robertson J found that the respondent breached an undertaking in the offer of fuel discounts. Also Australian Competition and Consumer Commission (ACCC) v Coles Group Ltd [2014] FCA 363; BC201402570 per Robertson J. [11,730.15] Judicial review In Australian Petroleum Pty Ltd v Australian Competition and Consumer Commission (1997) 73 FCR 75; 143 ALR 381 Lockhart J said that the refusal by the commission to consent to an amendment to an undertaking was a decision to which s 3(2) of the Administrative Decisions (Judicial Review) Act 1977 applies. Lockhart J also said that as the undertaking derived its force from the Act and had the capacity to affect legal rights and obligations, it was a relevant “instrument”. An issue, yet unresolved, is whether the Act as a whole is inconsistent with there being a right of judicial review in relation to the acceptance of undertakings under s 87B. In Virgin Blue Airlines Pty Ltd v Australian Competition and Consumer Commission [2001] FCA 1271; BC200105348 at [33] Gyles J said, without deciding that an argument can be raised that the Act contemplates that the interests of commercial competitors of parties involved in transactions alleged to breach Pt IV of the Act will be vindicated by substantive action by the competitor in relation to which it has standing, rather than by judicial review of decisions of the commission. [11,730.16] Right to be heard or consulted The scheme of the legislation does not confer on an applicant a right to be heard in relation to a variation of a s 87B undertaking: Ironbridge Capital Pty Ltd v Australian Competition and Consumer Commission [2005] FCA 1315; BC200506943 at [88] per Emmett J. [11,730.17] Commission guidelines The commission has published guidelines on s 87B entitled Section 87B of the Competition and Consumer Act April 2014.

When are undertakings appropriate? The commission has stressed that it seeks to resolve matters under s 87B only when it believes that a breach has occurred or is likely to occur and that an administrative resolution based on enforceable undertakings offers the best solution. In deciding between litigation and administrative resolution the commission has said that it will be guided by the following factors: • the nature of the alleged breach in terms of: — its impact on third parties and the community at large; — the type of practice; — the product or service involved; — the size of the business or businesses involved; • the history of complaints against the business or businesses and of complaints involving the practice, the product or the industry generally and any relevant previous court or similar proceedings; • the cost-effectiveness for all parties of pursuing an administrative resolution instead of court action; • prospects for rapid resolution of the matter; and • the apparent good faith of the corporation. Elements of s 87B undertakings The commission has indicated that most undertakings will contain the following ingredients: • a positive commitment to cease the particular conduct and not recommence it; [page 719] •

• • •

corrective action to undo the harm caused by the alleged breach and mechanisms for compensation for parties adversely affected by the conduct; implementation of a program to improve the company’s overall compliance with the Act; the undertaking should be a matter of public record and open to public scrutiny; and the possibility of novel requirements, such as industry wide compliance programs and publication in journals.

The Commission generally does not favour behavioural obligations: see Application for Authorisation of Acquisition of Macquarie Generation by AGL Energy Ltd [2014] ACompT 1 at [384] Per Mansfield J, Mr Grant Latta nd Professor David Round. Unacceptable terms in undertakings The commission has indicated that undertakings will not be accepted if they include: • a denial of liability (but companies providing undertakings will not be required to admit having breached the Act); • a statement that the undertaking is not an admission in relation to action by third parties such as employees (but the undertaking need not make such an admission); • terms purporting to set up defences for possible non-compliance; or • obligations placed upon the commission. [11,730.25] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001, see the comparative table at [10,001]. _____________________

[11,735] Enforcement of undertakings — Secretary of the Department 87C (1) The Secretary of the Department may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the Secretary has a power or function under this Act. [subs (1) am Act 5 of 2011 s 3 and Sch 7 item 38, opn 19 Apr 2011]

(2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Secretary of the Department. [subs (2) am Act 5 of 2011 s 3 and Sch 7 item 38, opn 19 Apr 2011]

(3) If the Secretary of the Department considers that the person who gave the undertaking has breached any of its terms, the Secretary may apply to the Court for an order under subsection (4).

[subs (3) am Act 5 of 2011 s 3 and Sch 7 item 38, opn 19 Apr 2011]

(4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders: (a) an order directing the person to comply with that term of the undertaking; (b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach; (c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach; (d) any other order that the Court considers appropriate. [s 87C insrt Act 141 of 1994 s 3 and Sch 1]

[page 720] SECTION 87C GENERALLY [11,735.5] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. _____________________

[11,740]

Intervention by Commission

87CA (1) The Commission may, with the leave of the Court and subject to any conditions imposed by the Court, intervene in any proceeding instituted under this Act. (2) If the Commission intervenes in a proceeding, the Commission is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party. [s 87CA insrt Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001]

SECTION 87CA GENERALLY [11,740.5] Overview Section 87CA was inserted by the Trade Practices Amendment Act (No 1) 2001. It permits the commission to intervene in proceedings instituted under the Act with the leave of the court. If it intervenes it will be regarded as a party to the proceedings. It may therefore be subject to costs and other orders. The purpose of the provision is to permit the commission to have a role in matters that may raise significant public interest issues. See Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd [2010] FCA 521; BC201003537 per Dodds-Streeton J; See Technology Leasing Ltd v Bergia 2 Pty Ltd [2011] FCA 284; BC201101702 at [9]–[11] per Cowdroy J. Where the Commission intervenes (and is a party to proceedings), it is entitled to all the rights of a party. Those rights include access to discovered documents and affidavits: Technology Leasing Ltd v Bergia 2 Pty Ltd [2011] FCA 284; BC201101702 at [15] per Cowdroy J. See Technology Leasing Ltd v Bergia 2 Pty Ltd [2011] FCA 284; BC201101702 per Cowdroy J. [11,740.10] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. _____________________

[11,740CAA] 87CAA 2011]

The effect of Part VIB on this Part

[s 87CAA rep Act 103 of 2010 s 3 and Sch 5[100], opn 1 Jan

[page 721] PART VIA — PROPORTIONATE LIABILITY FOR MISLEADING AND DECEPTIVE CONDUCT [Pt VIA insrt Act 103 of 2004 s 3 and Sch 3, opn 26 July 2004] INTRODUCTION TO PART VIA [11,740CB.5] Overview This Part was inserted by the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004. Equivalent provisons were inserted in the Corporations Act 2001. See Selig v Wealthsure Pty Ltd (2015) 320 ALR 47; 105 ACSR 552; [2015] HCA 18; BC201503711 per French CJ, Kiefel, Bell, Gageler and Keane JJ. The Corporate Law Economic Reform Program (CLERP) was introduced in 1997 as a means for ongoing review and reform of corporate and business regulation in Australia. This reform (CLERP 9) implements recommendations of the Ramsay report, Independence of Australian Company Auditors, October 2001. CLERP 9 also proposed measures for proportionate liability for auditors. This was in response to concerns expressed by auditors at the cost and availability of professional indemnity insurance. The cost and availability of insurance was considered by a review committee chaired by Justice David Ipp. It released its final report, Review of the Law of Negligence, in September 2002. See [11,740D.5]. The introduction in this Part of a system of proportionate liability reflects comments and recommendations of the Davis Inquiry into the law of joint and several liability in 1995. See Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 296 ALR 3; 247 CLR 613; [2013] HCA 10; BC201301509; Selig v Wealthsure Pty Ltd (2015) 320 ALR 47; 105 ACSR 552; [2015] HCA 18; BC201503711 per French CJ, Kiefel, Bell, Gageler and Keane JJ. See Williams v Pisano [2015] NSWCA 177; BC201505727 at [49]–[52] per Bathurst CJ, McColl JA and Emmett JA. The objective of the Part is said to be the prevention of the “deep-pocket” syndrome, that is, when professionals are the targets of actions not because of culpability but because they are insured and have the capacity to pay large damages awards: see Shrimp v Landmark Operations Ltd [2007] FCA 1468; BC200708057 at [58]–[61] per Besanko J. The Part prevents a plaintiff from recovering 100 per cent of the plaintiff’s damages from any one of several wrongdoers when that wrongdoer’s “fault”, when compared with the other wrongdoers, was less than that. That is, the Part is directed to what was considered to be the undesirable consequences of the joint and several liability rule: Shrimp v Landmark Operations Ltd, above, at [61] per Besanko J; See Selig v Wealthsure Pty Ltd (2015) 320 ALR 47; 105 ACSR 552; [2015] HCA 18; BC201503711 per French CJ, Kiefel, Bell, Gageler and Keane JJ. The provisions of the Wrongs Act (Vic) are similar but not identical to this Part. See Miletich v Murchie [2012] FCA 1013; BC201207083 at [112] per Gray J.

_____________________

[11,740CB]

Application of Part

87CB (1) This Part applies to a claim (an apportionable claim) if the claim is a claim for damages made under section 236 of the Australian Consumer Law for: (a) economic loss; or (b) damage to property; [page 722] caused by conduct that was done in a contravention of section 18 of the Australian Consumer Law. [subs (1) am Act 103 of 2010 s 3 and Sch 5[100A] and [101], opn 1 Jan 2011]

(2) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind). (3) In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim. (4) For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1). (5) For the purposes of this Part, it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died. SECTION 87CB GENERALLY [11,740CB.25] Overview The Part applies to an “apportionable claim”, which is a claim for economic loss or damage to property under s 236 ACL caused by misleading or deceptive conduct in contravention of ACL s 18, where there is more than one “concurrent wrongdoer” whose acts or omissions caused the damages that are the subject of the claim. In proceedings involving an apportionable claim, the liability of a defendant who is a concurrent wrongdoer is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just

having regard to the extent of the defendant’s responsibility for the damage or loss. [11,740CB.28] Apportionable claim Under the provision an apportionable claim is a claim for damages under s 236 ACL caused by misleading or deceptiove conduct under s18 ACL. In Selig v Wealthsure Pty Ltd (2015) 320 ALR 47; 105 ACSR 552; [2015] HCA 18; BC201503711 per French CJ, Kiefel, Bell, Gageler and Keane JJ considered the equivalent provision under the Corporations Act 2001 (s 1041L). They said at [37] that an apportionable claim is a claim based on a contravention of relevantly s 18 ACL and does not extend to claims based upon conduct of a different kind, for example negligence or other provisions of the ACL. Section 87CB(2) provides that there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind); Hadgelias Holdings Pty Ltd and Waight v Seirlis [2015] 1 Qd R 337; [2014] QCA 177; BC201405896 at [25] per Holmes, Gotterson and Morrison JJA; Selig v Wealthsure Pty Ltd (2015) 320 ALR 47; 105 ACSR 552; [2015] HCA 18; BC201503711 per French CJ, Kiefel, Bell, Gageler and Keane JJ. In Selig v Wealthsure Pty Ltd, the High Court explained the consistency if its decision with the operation of s 87CB(2) in this way: [29] . . . When s 1041L(2) speaks of a claim based on more than one cause of action, it cannot be speaking of a claim liability for which arises due to contravention of a norm of conduct different from that which creates liability to a claim for damages described in s 1041L(1), namely s 1041H. ... [31] The function of s 1041L(2) is not to complete the definition of an apportionable claim. That has already been provided by s 1041L(1). Its purpose is to explain that, regardless of the number of ways in which a plaintiff seeks to substantiate a claim for damages based upon a contravention of s 1041H, so long as the loss or damage claimed is the same, apportionment

[page 723] is to be made on the basis that there is a single claim. Regardless of the various causes of action pleaded with respect to s 1041H, the responsibility of the defendants will be apportioned by reference to a notional single claim.

In Williams v Pisano [2015] NSWCA 177; BC201505727 at [62] Bathurst CJ, McColl JA and Emmett JA said that the language of Pt VIA does not suggest a legislative intention that liability for all claims should be the subject of apportionment as between wrongdoers. They concluded at [64] that the Part should be construed as applying to a claim for damages caused by conduct done in contravention only of s 18 of the ACL, not other provisions. The provision requires that the sum of the judgement amount against each of the concurrent wrongdoers must not exceed 100%: Williams v Pisano [2015] NSWCA 177; BC201505727 at [91] per Bathurst CJ, McColl JA and Emmett JA. [11,740CB.29] Concurrent wrongdoer The provision applies to wrongdoers who jointly commit a single act that causes the loss: Williams v Pisano [2015] NSWCA 177; BC201505727 at [81] per Bathurst CJ, McColl JA and Emmett JA. However, there are examples of wrongdoers acting jointly to whom the provision should not extend, for example partners. That is the reason for the inclusion of s 87CI: Williams v Pisano [2015] NSWCA 177; BC201505727 at [84] per Bathurst CJ, McColl JA and Emmett JA; See Hadgelias Holdings Pty Ltd and Waight v Seirlis [2015] 1 Qd R 337; [2014] QCA 177; BC201405896 per Holmes, Gotterson and Morrison JJA. [11,740CB.30] Causation The expression “caused” in s 87CB(3) should be read as meaning such as to give rise to liability in the concurrent wrongdoer to the applicant: Shrimp v Landmark Operations Ltd [2007] FCA 1468; BC200708057 at [62] per Besanko J; Macquarie Bank Ltd v Meinhardt (NSW) Pty Ltd [2010] NSWSC 1320; BC201008611 at [86] per Einstein J. See Marine & Civil Construction Company Pty Ltd v SGS Australia Pty Ltd [2012] FCA 907; BC201206265 per Siopis J. The phrase “independently of each other or jointly” in the s 87CB(3) definition qualifies the verb “caused”, rather than describing the acts or omissions. That is, the issue is not whether acts or omissions are jointly undertaken but whether they either independently produce the same outcome or combine in their effect to do so: Hadgelias Holdings Pty Ltd and Waight v Seirlis [2015] 1 Qd R 337; [2014] QCA 177; BC201405896 at [20] per Holmes, Gotterson and Morrison JJA. [11,740CB.40] Application to aiding and abetting

The provision has

an application to permit apportionment where a claim for misleading and deceptive conduct and a claim for aiding and abetting that conduct are brought together: Texxcon Pty Ltd v Austexx Corp Pty Ltd (No 2) [2013] VSC 343; BC201310644 at [10] per Davies J. _____________________

[11,740CC] Certain concurrent wrongdoers not to have benefit of apportionment 87CC (1) Nothing in this Part operates to exclude the liability of a concurrent wrongdoer (an excluded concurrent wrongdoer) in proceedings involving an apportionable claim if: (a) the concurrent wrongdoer intended to cause the economic loss or damage to property that is the subject of the claim; or (b) the concurrent wrongdoer fraudulently caused the economic loss or damage to property that is the subject of the claim. (2) The liability of an excluded concurrent wrongdoer is to be determined in accordance with the legal rules (if any) that (apart from this Part) are relevant. [page 724] (3) The liability of any other concurrent wrongdoer who is not an excluded concurrent wrongdoer is to be determined in accordance with the provisions of this Part. SECTION 87CC GENERALLY [11,740CC.25] Overview This provision provides that the Part does not exclude the liability of a concurrent wrongdoer if the concurrent wrongdoer intended to cause the loss or fraudulently caused the loss. In Duxbury v Pierce [2010] FCA 203; BC201001244 at [30] Marshall J found that the wrongdoers intended to cause loss and were therefore excluded as concurrent wrongdoers and liable for all of the loss caused.

_____________________

[11,740CD] Proportionate liability for apportionable claims 87CD (1) In any proceedings involving an apportionable claim: (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant’s responsibility for the damage or loss; and (b) the court may give judgment against the defendant for not more than that amount. (2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim: (a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part; and (b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant. (3) In apportioning responsibility between defendants in the proceedings: (a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law; and (b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings. (4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings. (5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise. SECTION 87CD GENERALLY [11,740CD.25] Overview The provision provides for the court to apportion liability for loss incurred, considering what is just having regard to

the defendant’s responsibility for the loss. See Duxbury v Pierce [2010] FCA 203; BC201001244 per Marshall J. See Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq) [2012] FCA 1028; BC201207287 per Rares J. See Selig v Wealthsure Pty Ltd (2015) 320 ALR 47; 105 ACSR 552; [2015] HCA 18; BC201503711 per French CJ, Kiefel, Bell, Gageler and Keane JJ; Williams v Pisano [2015] NSWCA 177; BC201505727 per Bathurst CJ, McColl JA and Emmett JA. [page 725] In Duxbury v Pierce [2010] FCA 203; BC201001244 at [30] Marshall J found that the wrongdoers intended to cause loss and were therefore excluded as concurrent wrongdoers and liable for all of the loss caused. _____________________

[11,740CE] Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware 87CE (1) If: (a) a defendant in proceedings involving an apportionable claim has reasonable grounds to believe that a particular person (the other person) may be a concurrent wrongdoer in relation to the claim; and (b) the defendant fails to give the plaintiff, as soon as practicable, written notice of the information that the defendant has about: (i) the identity of the other person; and (ii) the circumstances that may make the other person a concurrent wrongdoer in relation to the claim; and (c) the plaintiff unnecessarily incurs costs in the proceedings because the plaintiff was not aware that the other person may be a concurrent wrongdoer in relation to the claim; the court hearing the proceedings may order that the defendant pay all or any of those costs of the plaintiff. (2) The court may order that the costs to be paid by the defendant be

assessed on an indemnity basis or otherwise.

[11,740CF] defendant

Contribution not recoverable from

87CF A defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim: (a) cannot be required to contribute to any damages or contribution recovered from another concurrent wrongdoer in respect of the apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant); and (b) cannot be required to indemnify any such wrongdoer. SECTION 87CF GENERALLY [11,740CF.5] Overview This provision ensures that a defendant cannot be required to contribute to any damages recovered from another concurrent wrongdoer (or indemnify that wrongdoer) in relation to the same apportionable claim: see Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187; BC200801327 at [86] per Barrett J. _____________________

[11,740CG]

Subsequent actions

87CG (1) In relation to an apportionable claim, nothing in this Part or any other law prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss from bringing another action against any other concurrent wrongdoer for that damage or loss. [page 726] (2) However, in any proceedings in respect of any such action, the plaintiff cannot recover an amount of damages that, having regard to any damages

previously recovered by the plaintiff in respect of the damage or loss, would result in the plaintiff receiving compensation for damage or loss that is greater than the damage or loss actually sustained by the plaintiff.

[11,740CH] Joining non-party concurrent wrongdoer in the action 87CH (1) The court may give leave for any one or more persons to be joined as defendants in proceedings involving an apportionable claim. (2) The court is not to give leave for the joinder of any person who was a party to any previously concluded proceedings in respect of the apportionable claim.

[11,740CI]

Application of Part

87CI Nothing in this Part: (a) prevents a person being held vicariously liable for a proportion of an apportionable claim for which another person is liable; or (b) prevents a partner from being held severally liable with another partner for that proportion of an apportionable claim for which the other partner is liable; or (c) affects the operation of any other Act to the extent that it imposes several liability on any person in respect of what would otherwise be an apportionable claim. SECTION 87CI GENERALLY [11, 740CI] Overview The provision provides that nothing in Part VIA prevents a person being held vicariously liable for a proportion of an apportionable claim for which another person is liable. The provision therefore does not prevent a principal from being held vicariously liable for the wrongful actions of an agent so that there need not be an apportionment of liability as between principal and agent: Williams v Pisano [2015] NSWCA 177; BC201505727 at [77] per Bathurst CJ, McColl JA and Emmett JA. The provision is similar to the equivalent provision in the Wrongs Act

(Vic). See Miletich v Murchie [2012] FCA 1013; BC201207083 per Gray J. _____________________

[page 727] PART VIB — CLAIMS FOR DAMAGES OR COMPENSATION FOR DEATH OR PERSONAL INJURY [Pt VIB insrt Act 113 of 2004 s 3 and Sch 1, opn 13 July 2004] INTRODUCTION TO PART VIB [11,740D.5] Overview This Part was inserted by the Trade Practices Amendment (Personal Injuries and Death) Act (No 2) 2004. In May 2002 Commonwealth, state and territory ministers agreed to reforms intended to arrest the increasing cost of public liability insurance. In July 2002 the Commonwealth established a review committee chaired by Justice David Ipp to consider, among other things, the interaction of the Act with the common law principles applied in negligence and to recommend amendments to the Act to preclude reliance on the Act to recover damages for personal injuries and death. The committee released its final report, Review of the Law of Negligence in September 2002. The committee’s recommendations included: — Recommendation 17: the Trade Practices Act should be amended to provide that the rules relating to limitation of actions and quantum of damages recommended in this Report apply to any claim for negligently caused personal injury or death brought under Pt IVA in the form of an unconscionable conduct claim; — Recommendation 19: the Trade Practices Act should be amended to prevent individuals bringing actions for damages for personal injury or death under Pt V Div 1; — Recommendation 21 : the Trade Practices Act should be amended to provide that the rules relating to limitation of actions and quantum of damages recommended in this Report apply to any claim for negligently caused personal injury or death brought under Pt V Div 1A, Pt V Div 2A or Pt VA. States and territories agreed to implement the key recommendations of the Ipp Committee and have introduced civil liability reforms in their jurisdictions. This Part was introduced in the Act to ensure that the Act does not undermine state and territory reforms by permitting applicants to rely on the Act for damages, where such damages would not be available or would be limited under state or territory laws. This Part therefore introduces rules relating to limitations of actions and quantum of damages as recommended by the Ipp Committee. The rules under this Part apply to a claim for personal injury or death brought under the following provisions of the Australian Consumer Law: • Pt 2-2 (unconscionable conduct); • Pt 3-3 (safety of consumer goods and product related services); • Pt 3-4 (information standards); • Pt 3-5 (liability of manufacturers for goods with safety defects). • Pt 5-4 Div 2 (actions for damages against manufacturers of goods).

_____________________ DIVISION 1 — INTRODUCTION

[11,740D]

Definitions

87D In this Part, unless the contrary intention appears: applicable percentage has the meaning given by subsection 87Q(2). [page 728] average weekly earnings has the meaning given by section 87V. capable parent or guardian, of a minor, means a person who is a parent or guardian of the minor, and who is not under a disability. date of discoverability has the meaning given by section 87G. gratuitous attendant care services has the meaning given by subsection 87W(5). incapacitated person means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to a proceeding under this Act because of: (a) any disease, or any impairment of his or her mental condition; or (b) restraint of his or her person, lawful or unlawful, including detention or custody under a law of a State or Territory relating to mental health; or (c) war or warlike operations, or circumstances arising out of war or warlike operations. index number number has the meaning given by section 87N. long-stop period has the meaning given by section 87H. maximum amount of damages for non-economic loss has the meaning given by section 87M. minor means a person under 18. most extreme case has the meaning given by subsection 87P(2). non-economic loss means any one or more of the following: (a) pain and suffering; (b) loss of amenities of life; (c) loss of expectation of life;

(d) disfigurement. personal injury damages means damages or compensation for loss or damage that is, or results from, the death of or personal injury to a person. plaintiff, in relation to a proceeding, means: (a) if the proceeding is a proceeding that the Commission commences under paragraph 87(1A)(b), or under section 149 or paragraph 237(1)(b) of the Australian Consumer Law — a person on whose behalf the Commission commences the proceeding; or (aa) if the proceeding is a proceeding that the Director of Public Prosecutions commences under paragraph 87(1A)(ba) — a person on whose behalf the Director of Public Prosecutions commences the proceeding; or (b) in any other case — the person by whom the proceeding is brought (however described). [def am Act 59 of 2009 s 3 and Sch 1[63], opn 24 July 2009; Act 103 of 2010 s 3 and Sch 5[102], opn 1 Jan 2011]

proceeding to which this Part applies means a proceeding referred to in section 87E. quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December. [page 729] smoking has the same meaning as in the Tobacco Advertising Prohibition Act 1992. tobacco product has the same meaning as in the Tobacco Advertising Prohibition Act 1992.

[11,740E] 87E

Proceedings to which this Part applies

(1) This Part applies to proceedings taken under the Australian

Consumer Law: (a) that relate to Part 2-2, 3-3, 3-4 or 3-5, or Division 2 of Part 5-4, of the Australian Consumer Law; and (b) in which the plaintiff is seeking an award of personal injury damages; and (c) that are not proceedings in respect of the death of or personal injury to a person resulting from smoking or other use of tobacco products. [subs (1) am Act 103 of 2010 s 3 and Sch 5[103] and [104], opn 1 Jan 2011]

(2) However, for the purposes of Divisions 2 and 7, paragraph (1)(c) does not apply. DIVISION 2 — LIMITATION PERIODS

[11,740F]

Basic rule

87F (1) A court must not award personal injury damages in a proceeding to which this Part applies if the proceeding was commenced: (a) after the end of the period of 3 years after the date of discoverability for the death or injury to which the personal injury damages would relate; or (b) after the end of the long-stop period for that death or injury. (1A) However, paragraph (1)(b) does not apply in relation to a proceeding in respect of the death of or personal injury to a person resulting from smoking or other use of tobacco products. (2) This diagram shows when this Division prevents an award of personal injury damages. SECTION 87F GENERALLY [11,740F.5] Overview This provision inserts the new basic rule for limitation periods. Consistent with Ipp Committee Recommendation 24, this provision provides that a court must not award personal injury damages if the proceedings are commenced 3 years from the “date of discoverability” defined in s 87G. _____________________

[11,740G]

Date of discoverability

87G (1) Definition The date of discoverability for the death or injury is the first date when the plaintiff in the proceeding knows or ought to know each of the following: (a) that the death or personal injury has occurred; (b) that the death or personal injury was attributable to a contravention of this Act; (c) that in the case of a personal injury — the injury was significant enough to justify bringing an action. [page 730] (2) Constructive knowledge For the purposes of subsection (1), the plaintiff ought to know a fact if the plaintiff would have ascertained the fact had the plaintiff taken all reasonable steps before the date in question to ascertain the fact. (3) Use of the plaintiff’s conduct and statements In determining what the plaintiff knows or ought to have known, the court may have regard to the plaintiff’s conduct, and to the plaintiff’s oral or written statements. (4) Minors If the plaintiff is a minor, facts that a capable parent or guardian of the plaintiff knows or ought to know are taken for the purposes of subsection (1) to be facts that the plaintiff knows or ought to know. (5) Incapacitated persons If: (a) the plaintiff is an incapacitated person; and (b) there is a guardian of the plaintiff, or other person to manage all or part of the plaintiff’s estate, under a law of a State or Territory relating to the protection of incapacitated persons; facts that the guardian or other person knows or ought to know are taken for the purposes of subsection (1) to be facts that the plaintiff knows or ought to know. (6) Proceedings by personal representatives Despite subsection (1), if the plaintiff brings the proceeding in the capacity of the personal representative of a deceased person, the date of discoverability for the death

or injury is the earliest of: (a) if, had the deceased person commenced a proceeding, in relation to the contravention to which the death or injury relates, before his or her death, the date of discoverability under subsection (1) would have occurred more than 3 years before the death — that date; or (b) if, at the time of the plaintiff’s appointment as personal representative, the plaintiff knew, or ought to have known, all of the matters referred to in paragraphs (1)(a), (b) and (c) — the date of the appointment; or (c) if the first time at which the plaintiff knew, or ought to have known, all of the matters referred to in paragraphs (1)(a), (b) and (c) was after the date of appointment — the date of that first time. SECTION 87G GENERALLY [11,740G.5] Overview This provision defines the “date of discoverability” for the purpose of applying the limitation period in s 87F. Consistent with Ipp Committee Recommendation 24, s 87G defines the date of discoverability by reference to the date when the plaintiff knew or ought to have known that the death or personal injury has occurred, that the death or personal injury was attributable to a contravention of this Act and that the injury was significant enough to justify bringing an action. _____________________

[11,740H]

Long-stop period

87H (1) The long-stop period for the death or injury of a person is: (a) the period of 12 years following the act or omission alleged to have caused the death or injury; or (b) that period as extended by the court. (2) The court must not extend the period by more than 3 years beyond the date of discoverability for the death or injury. [page 731]

(3) In considering whether to extend the period, the court must have regard to the justice of the case, and, in particular, must have regard to: (a) whether the passage of time has prejudiced a fair trial; and (b) the nature and extent of the person’s loss or damage; and (c) the nature of the defendant’s conduct alleged to have caused the death or injury; and (d) the nature of the defendant’s conduct since the alleged act or omission. SECTION 87H GENERALLY [11,740H.5] Overview This provision defines the “long stop period” for the purpose of applying the limitation period in s 87F. The long stop period is the period of 12 years following the act or omission alleged to have caused the death or injury, unless that period is extended by the court. _____________________

[11,740J]

The effect of minority or incapacity

87J In working out whether the period of 3 years after the date of discoverability, or the long-stop period, has expired, disregard any period during which the plaintiff has been: (a) a minor who is not in the custody of a capable parent or guardian; or (b) an incapacitated person in respect of whom there is no guardian, and no other person to manage all or part of the person’s estate, under a law of a State or Territory relating to the protection of incapacitated persons. SECTION 87J GENERALLY [11,740J.5] Overview This provision suspends the limitation period in s 87F as proposed by Ipp Committee Recommendation 25. Recommendation 25 proposed that the limitation period should be suspended during any period of time during which the plaintiff has been a minor and not in the custody of a parent or guardian or is incapacitated.

_____________________

[11,740K]

The effect of close relationships

87K (1) If: (a) a cause of action to which the proceeding relates is founded on the death or injury to a person (the victim) who was a minor at the time of the act or omission alleged to have caused the death or injury; and (b) the proceeding is taken against a person who was at that time: (i) a parent or guardian of the victim; or (ii) a person in a close relationship with a parent or guardian of the victim; in working out whether the period of 3 years after the date of discoverability, or the long-stop period, has expired, disregard any period: (c) before the victim turns 25; or (d) if the victim dies before turning 25 — before the victim’s death. [page 732] (2) For the purposes of subparagraph (1)(b)(ii), a person is taken to be in a close relationship with a parent or guardian of the victim if the person’s relationship with the parent or guardian is such that: (a) the person might influence the parent or guardian not to bring a claim on behalf of the victim against the person; or (b) the victim might be unwilling to disclose to the parent or guardian the acts, omissions or events in respect of which the cause of action is founded. SECTION 87K GENERALLY [11,740K.5] Overview Consistent with Ipp Committee Recommendation 25, this provision defines the concept of “close relationship” and establishes its application in determining whether the limitation period in s 87F is suspended.

DIVISION 3 — LIMITS ON PERSONAL INJURY DAMAGES FOR NON-ECONOMIC LOSS

[11,740L] loss

Limits on damages for non-economic

87L A court must not, in a proceeding to which this Part applies, award as personal injury damages for non-economic loss an amount that exceeds the amount (if any) permitted under this Division. SECTION 87L GENERALLY [11,740L.5] Overview Section 82 permits a person to recover damages arising from a contravention of specified provisions of the Act. Section 87L limits the amount of personal injury damages for non-economic loss to that specified in Div 3. The section reflects Ipp Committee Recommendation 48. See [11,740D.5]. _____________________

[11,740M] Maximum amount of damages for non-economic loss 87M

(1) The maximum amount of damages for non-economic loss

is: (a) during the year in which this Part commences — $250,000; or (b) during a later year — the amount worked out (to the nearest multiple of $10) as follows:

where: current September CPI number is the index number for the quarter ending on 30 September in the year immediately preceding that later year. previous maximum amount is the maximum amount of damages for non-economic loss during the year immediately preceding that later

year. previous September CPI number is the index number for the quarter ending on the 30 September immediately preceding the 30 September referred to in the definition of current September CPI number. [page 733] (2) If an amount worked out under paragraph (1)(b) is a multiple of $5 (but not a multiple of $10), round the amount up to the nearest multiple of $10. (3) This section does not affect the operation of section 86AA. SECTION 87M GENERALLY [11,740M.5] Overview General damages in personal injury matters (that is, damages for non-economic loss) generally relate to pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Section 87M limits damages for non-economic loss to $250,000, adjusted for inflation. The section reflects Recommendation 48 of the Ipp Committee. See [11,740D.5]. _____________________

[11,740N]

Index numbers

87N (1) The index number for a quarter is the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter. (2) Subject to subsection (3), if, at any time before or after the commencement of this Act: (a) the Australian Statistician has published or publishes an index number in respect of a quarter; and (b) that index number is in substitution for an index number previously published by the Australian Statistician in respect of that quarter;

disregard the publication of the later index number for the purposes of this section. (3) If, at any time, the Australian Statistician has changed or changes the index reference period for the Consumer Price Index, then, in applying this section after the change took place or takes place, have regard only to index numbers published in terms of the new index reference period. [subs (3) am Act 4 of 2016 s 3 and Sch 5 item 4, opn 10 Mar 2016]

(4) In this section: Australian Statistician means the Australian Statistician referred to in subsection 5(2) of the Australian Bureau of Statistics Act 1975. SECTION 87N GENERALLY [11,740N.5] Overview The provision establishes how fixed monetary amounts are to be indexed by applying the Consumer Price Index. The requirement for indexation of fixed amounts by the Consumer Price Index is consistent with Ipp Committee Recommendation 61. _____________________

[11,740P]

Most extreme cases

87P (1) The court must not award as personal injury damages for noneconomic loss the maximum amount of damages for non-economic loss except in a most extreme case. (2) A most extreme case is a case in which the plaintiff suffers noneconomic loss of the gravest conceivable kind. [page 734] SECTION 87P GENERALLY [11,740P.5] Overview This provision prohibits the court from awarding the maximum amount of personal injury damages for non-economic loss, except in the “most extreme case”. The concept of the “most extreme case” was discussed by the Ipp Committee which recommended the imposition of a

threshold for general damages (non-economic loss) based on 15 per cent of a most extreme case: Recommendation 47. _____________________

[11,740Q] Cases of 33% or more (but not 100%) of a most extreme case 87Q (1) If the non-economic loss the plaintiff suffers is at least 33%, but less than 100%, of a most extreme case, the court must not award as personal injury damages for non-economic loss an amount that exceeds the applicable percentage of the maximum amount of damages for noneconomic loss. (2) The applicable percentage is the extent of the non-economic loss the plaintiff suffers, expressed as a percentage of a most extreme case. SECTION 87Q GENERALLY [11,740Q.5] Overview This provision provides limits the damages for non-economic loss (where the loss is at least 33 per cent but less than 100 per cent of a “most extreme case” defined in s 87P(2), by reference to the extent of the non-economic loss the plaintiff suffers, expressed as a percentage of a most extreme case). _____________________

[11,740R] Cases of 15% or more (but less than 33%) of a most extreme case 87R If the non-economic loss the plaintiff suffers is at least 15%, but less than 33%, of a most extreme case, the court must not award as personal injury damages for non-economic loss an amount that exceeds the amount set out in the following table: Cases of 15% or more (but less than 33%) of a most extreme case Item

Severity of the non-economic loss (as a proportion of a most

Damages for non-economic loss (as a proportion of the

extreme case)

maximum amount of damages for non-economic loss)

1

15%

1%

2

16%

1.5%

3

17%

2%

4

18%

2.5%

5

19%

3%

6

20%

3.5%

7

21%

4%

8

22%

4.5%

9

23%

5%

10

24%

5.5%

11

25%

6.5%

[page 735]

Cases of 15% or more (but less than 33%) of a most extreme case Item

Severity of the non-economic loss (as a proportion of a most extreme case)

Damages for non-economic loss (as a proportion of the maximum amount of damages for non-economic loss)

12

26%

8%

13

27%

10%

14

28%

14%

15

29%

18%

16

30%

23%

17

31%

26%

18

32%

30%

SECTION 87R GENERALLY [11,740R.5] Overview Like s 87Q, this provision limits the damages for non-economic loss. It contains a table which identifies the severity of the non-economic loss (as a proportion of a most extreme case) from 15 to 32 per cent and provides the percentage of damages for non-economic loss as a proportion of the maximum amount of damages for non-economic loss. _____________________

[11,740S] Cases of less than 15% of a most extreme case 87S If the non-economic loss the plaintiff suffers is less than 15% of a most extreme case, the court must not award personal injury damages for non-economic loss. SECTION 87S GENERALLY [11,740S.5] Overview Consistent with Ipp Committee Recommendation 47, this provision prohibits a court from awarding personal injury damages for non-economic loss if the non-economic loss the plaintiff suffers is less than 15 per cent of the most extreme case. _____________________

[11,740T] Referring to earlier decisions on noneconomic loss 87T

(1) In determining personal injury damages for non-economic loss,

the court may refer to earlier decisions of the court or of other courts for the purpose of establishing the appropriate award in the proceeding. (2) For that purpose, the parties to the proceeding or their counsel may bring the court’s attention to awards of personal injury damages for noneconomic loss in those earlier decisions. (3) This section does not affect the rules for determination of other damages or compensation. SECTION 87T GENERALLY [11,740T.5] Overview In determining personal injury damages for noneconomic loss this provision permits the court to refer to earlier decisions of the court or of other courts and permits counsel to bring the court’s attention to awards of personal injury damages for non-economic loss in those earlier decisions. [page 736] This provision reflects Ipp Committee Recommendation 46. See [11,740D.5]. _____________________ DIVISION 4 — LIMITS ON PERSONAL INJURY DAMAGES FOR LOSS OF EARNING CAPACITY

[11,740U] Personal injury damages for loss of earning capacity 87U In determining, in a proceeding to which this Part applies, personal injury damages for: (a) past economic loss due to loss of earnings or the deprivation or impairment of earning capacity; or (b) future economic loss due to the deprivation or impairment of earning capacity; or

(c) the loss of expectation of financial support; a court must disregard the amount by which the plaintiff’s gross weekly earnings during any quarter would (but for the personal injury or death in question) have exceeded: (d) if, at the time the award was made, the amount of average weekly earnings for the quarter was ascertainable — an amount that is twice the amount of average weekly earnings for the quarter; or (e) if: (i) at the time the award was made, the amount of average weekly earnings for the quarter was not ascertainable; or (ii) the award was made during, or before the start of, the quarter; an amount that is twice the amount of average weekly earnings for the quarter that, at the time the award was made, was the most recent quarter for which the amount of average weekly earnings was ascertainable. SECTION 87U GENERALLY [11,740U.5] Overview Section 87U limits damages for loss of earning capacity to twice the average weekly earnings. The section reflects Ipp Committee Recommendation 49. See [11,740D.5]. _____________________

[11,740V]

Average weekly earnings

87V (1) Average weekly earnings, for a quarter, means the amount: (a) published by the Australian Statistician as the average weekly earnings for all employees (total earnings, seasonally adjusted) for the reference period in that quarter; or (b) if the Australian Statistician fails or ceases to publish the amount referred to in paragraph (a) — the amount determined in the manner specified in the regulations. (2) Regulations made for the purposes of paragraph (1)(b) may specify matters by reference to which an amount is to be determined. (3) In this section:

reference period, in a quarter, is the period described by the Australian Statistician as the pay period ending on or before a specified day that is the third Friday of the middle month of that quarter. [page 737] SECTION 87V GENERALLY [11,740V.5] Overview This provision defines average weekly earnings for a quarter by reference to information published by the Australian Statistician. _____________________ DIVISION 5 — LIMITS ON PERSONAL INJURY DAMAGES FOR GRATUITOUS ATTENDANT CARE SERVICES

[11,740W] Personal injury damages for gratuitous attendant care services for plaintiff 87W (1) A court must not, in a proceeding to which this Part applies, award personal injury damages for gratuitous attendant care services for the plaintiff, except in accordance with this section. (2) The court must be satisfied that: (a) there is (or was) a reasonable need for the services to be provided; and (b) the need has arisen (or arose) solely because of personal injury to which the personal injury damages relate; and (c) the services would not be (or would not have been) provided to the plaintiff but for the injury; and (d) the services are provided (or are to be provided) for at least 6 hours per week; and (e) the services are provided (or are to be provided) over a period of at least 6 months. (3) If the services were provided during a quarter for which, at the time the

award was made, the amount of average weekly earnings was ascertainable, the court must not award as personal injury damages for the services: (a) if the services were provided for at least 40 hours per week — an amount per week that exceeds average weekly earnings for that quarter; or (b) if the services were provided for less than 40 hours per week — an amount per hour that exceeds 1/40 of average weekly earnings for that quarter. (4) If the services: (a) were provided during a quarter for which, at the time the award was made, the amount of average weekly earnings was not ascertainable; or (b) are to be provided after the time the award was made; the court must not award as personal injury damages for the services: (c) if the services were provided for at least 40 hours per week — an amount per week that exceeds average weekly earnings for the quarter that, at the time the award was made, was the most recent quarter for which the amount of average weekly earnings was ascertainable; or (d) if the services were provided for less than 40 hours per week — an amount per hour that exceeds 1/40 of average weekly earnings for that quarter. (5) Gratuitous attendant care services are services that one person provides to another person: (a) that: (i) are of a domestic nature; or (ii) relate to nursing; or [page 738] (iii) aim to alleviate the consequences of a personal injury; and (b) for which the other person has not paid or is not liable to pay. SECTION 87W GENERALLY

[11,740W.5] Overview Compensation may be awarded to an injured person to provide for their care and assistance such as nursing care and domestic assistance, even if this is provided gratuitously by a friend or relative: Griffiths v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387. Ipp Committee Recommendation 51 proposed the following qualifications to Griffiths v Kerkemeyer: (a) Damages for gratuitous services shall not be recoverable unless such services have been provided or are likely to be provided for more than six hours per week and for more than six consecutive months. (b) The maximum hourly rate for calculating damages for gratuitous services shall be one fortieth of average weekly FTOTE [full-time adult ordinary time earnings]. (c) The maximum weekly rate for calculating damages for gratuitous services shall be average weekly FTOTE. (d) Damages for gratuitous services may be awarded only in respect of services required by the plaintiff as a result of the injuries caused by the negligence of the defendant. Section 87W implements the Ipp Committee recommendation. _____________________

[11,740X] Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant care services 87X (1) A court must not, in a proceeding to which this Part applies, award personal injury damages for loss of the plaintiff’s capacity to provide gratuitous attendant care services to other persons, except in accordance with this section. (2) The court must be satisfied that: (a) prior to his or her loss of capacity to provide the services, the plaintiff had provided the services: (i) for at least 6 hours per week; and (ii) over a period of at least 6 months; and (b) the other person would have been entitled, if the plaintiff had died

as a result of the contravention of this Act to which the award relates, to recover damages under a law of a State or Territory for loss of the plaintiff’s services. (3) If the plaintiff would have provided the services during a quarter for which, at the time the award was made, the amount of average weekly earnings was ascertainable, the court must not award as personal injury damages for the services: (a) if the services would have been provided for at least 40 hours per week — an amount per week that exceeds average weekly earnings for that quarter; and (b) if the services would have been provided for less than 40 hours per week — an amount per hour that exceeds 1/40 of average weekly earnings for that quarter. (4) If the plaintiff: (a) would have provided the services during a quarter for which, at the time the award was made, the amount of average weekly earnings was not ascertainable; or (b) would have provided the services after the time the award was made; [page 739] the court must not award as personal injury damages for the services: (c) if the services were provided for at least 40 hours per week — an amount per week that exceeds average weekly earnings for the quarter that, at the time the award was made, was the most recent quarter for which the amount of average weekly earnings was ascertainable; or (d) if the services were provided for less than 40 hours per week — an amount per hour that exceeds 1/40 of average weekly earnings for that quarter. SECTION 87X GENERALLY

[11,740X.5] Overview Compensation may be awarded to an injured person who has lost the capacity to care for others even if that care is provided gratuitously: Sullivan v Gordon (1999) 47 NSWLR 319; 30 MVR 29. This head of damages is related to damages for gratuitous care awarded under the principles in Griffiths v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387. See [11,740W.5]. Ipp Committee Recommendation 52 proposed the following qualifications to Sullivan v Gordon: (a) Damages for loss of capacity to provide gratuitous services to for others shall not be recoverable unless, prior to the loss of capacity, such services were being provided for more than six hours per week and for more than six consecutive months. (b) Such damages are recoverable only in relation to services that were being provided to a person who (if the provider had been killed rather than injured) would have been entitled to recover damages for loss of the deceased’s services. (c) The maximum hourly rate for calculating damages for loss of capacity to provide gratuitous services for others shall be one fortieth of average weekly FTOTE [full-time adult ordinary time earnings]. (d) The maximum weekly rate for calculating damages for loss of capacity to provide gratuitous services shall be average weekly FTOTE. Section 87X implements the Ipp Committee recommendation in much the same way as s 87W implements the Ipp Committee recommendation on gratuitous attendant care services provided to a plaintiff. _____________________ DIVISION 6 — OTHER LIMITS ON PERSONAL INJURY DAMAGES

[11,740Y] Damages for future economic loss — discount rate 87Y (1) If an award of personal injury damages in a proceeding to which this Part applies is to include any component, assessed as a lump sum, for future economic loss of any kind, the present value of that future

economic loss is to be determined by applying: (a) a discount rate of the percentage prescribed by the regulations; or (b) if no percentage is prescribed — a discount rate of 5%. (2) A regulation made for the purposes of paragraph (1)(a) does not commence before the end of the period of 6 months starting: (a) if the regulation is laid before each House of the Parliament under section 38 of the Legislation Act 2003 on the same day — on that day; or [page 740] (b) if it is laid before each House of the Parliament under that section on different days — on the later of those days. [subs (2) subst Act 126 of 2015 s 3 and Sch 1 item 138, opn 5 Mar 2016]

(3) Except as provided by this section, this section does not affect any other law relating to the discounting of sums awarded as damages or compensation. SECTION 87Y GENERALLY [11,740Y.5] Overview A discount rate is applied to a lump sum received for future losses to determine its present value. The Ipp Committee recommended that a 3 per cent discount rate be applied: Recommendation 53. See [11,740D.5]. Section 87Y provides that a discount rate of 5 per cent be applied to damages for future economic loss. The discount rate may be varied by regulation. _____________________

[11,740Z] Damages for loss of superannuation entitlements 87Z A court must not, in a proceeding to which this Part applies, award personal injury damages for economic loss due to the loss of employer

superannuation contributions an amount that exceeds the following amount: Superannuation percentage x Damages for earnings loss where: damages for earnings loss are the personal injury damages payable (in accordance with this Part) for: (a) any past economic loss due to loss of earnings, or the deprivation or impairment of earning capacity, on which the entitlement to those contributions is based; and (b) any future economic loss due to the deprivation or impairment of earning capacity on which the entitlement to those contributions would be based. superannuation percentage is the highest employer’s charge percentage for a quarter under section 19 of the Superannuation Guarantee (Administration) Act 1992. SECTION 87Z GENERALLY [11,740Z.5] Overview This provision provides for the calculation of damages for the loss of superannuation entitlements. The Ipp Committee recommended that damages for loss of employer superannuation contributions should be calculated as a percentage of the damages awarded for loss of earning capacity, subject to the cap on such damages. It was recommended that the percentage be the minimum level of compulsory employer’s contributions required under the relevant Commonwealth legislation (the Superannuation Guarantee (Administration) Act 1992): Recommendation 58. This provision implements the Ipp Committee’s recommendation. _____________________ [page 741]

[11,740ZA]

Interest on damages

87ZA (1) A court must not, in a proceeding to which this Part applies, order the payment of interest on personal injury damages for: (a) non-economic loss; or (b) gratuitous attendant care services for the plaintiff; or (c) loss of the plaintiff’s capacity to provide gratuitous attendant care services to other persons. (2) If, in a proceeding to which this Part applies, a court is satisfied that interest is payable on personal injury damages of another kind, the rate of interest to be used in working out the interest is: (a) the rate of interest prescribed by the regulations; or (b) if no rate is prescribed — the 10-year benchmark bond rate on the day on which the court determines the personal injury damages. (3) This section does not affect the payment of interest on a debt under a judgment or order of a court. (4) In this section: 10-year benchmark bond rate, on a day, means: (a) if the day occurs on or after 1 March in a particular year and before 1 September in that year — the Commonwealth Government 10year benchmark bond rate: (i) as published by the Reserve Bank of Australia in the Reserve Bank of Australia Bulletin (however described); and (ii) applying on the first business day of January in that year; or (b) otherwise — the Commonwealth Government 10-year benchmark bond rate, as so published, applying on the first business day of July in the preceding year. business day means a day other than a Saturday, a Sunday or a public or bank holiday in any State, the Australian Capital Territory or the Northern Territory. SECTION 87ZA GENERALLY

[11,740ZA.5] Overview This provision provides that a court must not award interest on personal injury damages for non-economic loss, damages for gratuitous attendant care services for the plaintiff or for the loss of the plaintiff’s capacity to provide gratuitous attendant care services to other persons. This is consistent with the recommendation of the Ipp Committee that pre-judgment interest not be awarded on damages for non-economic loss: Recommendation 54. If the court is satisfied that interest should be awarded for personal injury damages of another kind, the interest rate is that prescribed in the Regulations or the 10-year benchmark bond rate. _____________________

[11,740ZB]

Exemplary and aggravated damages

87ZB (1) A court must not, in a proceeding to which this Part applies, award exemplary damages or aggravated damages in respect of death or personal injury. (2) This section does not affect whether a court has power to award exemplary damages or aggravated damages: (a) otherwise than in respect of death or personal injury; or (b) in a proceeding other than a proceeding to which this Part applies. [page 742]

SECTION 87ZB GENERALLY [11,740ZB.5] Overview This provision prohibits a court from awarding exemplary damages or aggravated damages for death or personal injury. Exemplary damages are damages intended to punish a defendant for conduct which shows a conscious and contumelious disregard for a plaintiff’s rights and to deter the defendant from committing similar conduct again. See [11,655.45]. Aggravated damages are compensatory in nature and are awarded for injury to the plaintiff’s feelings. See [11,655.48]. The Ipp Committee recommended that exemplary and aggravated damages

be abolished: Recommendation 60. This provision gives effect to that recommendation. _____________________ DIVISION 7 — STRUCTURED SETTLEMENTS

[11,740ZC] Court may make orders under section 87 for structured settlements 87ZC (1) In a proceeding to which this Part applies, a court may, on the application of the parties, make an order under section 87 approving a structured settlement, or the terms of a structured settlement, even though the payment of damages is not in the form of a lump sum award of damages. (2) This section does not limit the powers of a court to make an order under section 87 in a proceeding that is not a proceeding to which this Part applies. (3) In this section: structured settlement means an agreement that provides for the payment of all or part of an award of damages in the form of periodic payments funded by an annuity or other agreed means. SECTION 87ZC GENERALLY [11,740ZC.5] Overview This provision permits the court (on the application of the parties) to make an order under s 87 approving a structured settlement. A structured settlement is an agreement that provides for the payment an award of damages periodically (funded by an annuity or other agreed means) rather than in a single lump sum. This provision is consistent with Recommendation 57 of the Ipp Committee which proposed that in the case of personal injury or death, the award of damages for future economic loss in excess of $2 million the parties should attend mediation proceedings with a view to securing a structured settlement. _____________________

[page 743] PART VIC — INFRINGEMENT NOTICES [Repealed] [Pt VIC rep Act 103 of 2010 s 3 and Sch 5[105], opn 1 Jan 2011] INTRODUCTION TO PART VIC [11,760.0] Overview Sch 2.

This Part was repealed by the Australian Consumer Law. See [14,500.5] and

Old TPA section

New CCA section

87ZD

Purpose and effect of this Part

-

87ZE

Issue of an infringement notice

-

87ZF

Matters to be included in an infringement notice

-

87ZG

Amount of penalty

-

87ZH

Effect of compliance with an infringement notice -

87ZI

Effect of failure to comply with an infringement notice

-

87ZJ

Infringement notice compliance period for infringement notice

-

87ZK

Withdrawal of an infringement notice

-

[page 745] PART VID — SUBSTANTIATION NOTICES [Repealed] [Pt VID rep Act 103 of 2010 s 3 and Sch 5[105], opn 1 Jan 2011] INTRODUCTION TO PART VID [11,780.0] Overview This Part was repealed by the Australian Consumer Law legislation. See [14,500.5] and Schedule 2. Old TPA section

New CCA section

87ZL

Commission may require claims to be substantiated etc

ACL s 219

87ZM

Extending periods for complying with substantiation notices

ACL s 220

87ZN

Compliance with substantiation notices

ACL s 221

87ZO

False or misleading information etc

ACL s 222

[page 747] PART VII — AUTHORISATIONS, NOTIFICATIONS AND CLEARANCES IN RESPECT OF RESTRICTIVE TRADE PRACTICES [Pt VII am Act 131 of 2006 s 3 and Sch 1[22], opn 1 Jan 2007] INTRODUCTION TO PART VII [11,820.1] Overview This Part was amended by the Trade Practices Amendment Act (No 1) 2006 following the recommendations of the Dawson Committee. See [10,690.5]. This Part: • Specifies the types of conduct which may be authorised by the commission (including merger authorisations), the public benefit and competition tests the commission is to apply in considering an application for authorisation, and the procedural steps which the commission must follow. • Permits the notification of exclusive dealing conduct under s 47 of the Act, the circumstances in which the commission may refuse to allow the conduct to continue and the procedural steps which the commission must follow. • Permits the notification of collective bargaining arrangements for transactions up to $3 million. • Permits applications for merger clearances. Reform In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that authorisation and notification provisions be simplified to ensure that only a single authorisation application is required for a single business transaction or arrangement. The Harper Committee also recommended that the Commission be empowered to grant an exemption from ss 45, 46 (as proposed to be amended) and s 47 (if retained). On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amendments. See also [10,690.5].

_____________________ DIVISION 1 — AUTHORISATIONS (OTHER THAN SECTION 50 MERGER AUTHORISATIONS) [Div 1 am Act 131 of 2006 s 3 and Sch 1[23], opn 1 Jan 2007]

DIVISION 1 GENERALLY

[11,820.5] Overview The Division was amended by the Trade Practices Amendment Act (No 1) 2006 following the recommendations of the Dawson Committee. See [10,690.5]. The Dawson Committee highlighted general dissatisfaction with the process for non-merger authorisations. The main complaints were that it is inefficient, expensive, time-consuming, granted only for a limited time and subject to appeal by third parties. The amendment requires decisions on non-merger authorisations to be made by the commission within six months. It also requires consultation with applicants to provide guidance on the authorisation process and requirements under the Act. _____________________ [page 748]

[11,820]

Definitions

87ZP (1) In this Division: authorisation means an authorisation under this Division. [def insrt Act 131 of 2006 s 3 and Sch 1[24], opn 1 Jan 2007]

industry code of practice means a code regulating the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry. minor variation, in relation to an authorization, is a single variation that does not involve a material change in the effect of the authorization. (2) A reference in this Division to a proposal of the Commission is a reference to a notice of the Commission: (a) so far as the revocation of an authorization is concerned — under subsection 91B(3); and (b) so far as the revocation of an authorization and the substitution of another — under subsection 91C(3).

[s 87ZP insrt as s 87D Act 101 of 1998 Sch 1.27; renum Act 113 of 2004 s 3 and Sch 1, opn 13 July 2004; renum Act 44 of 2010 s 3 and Sch 2[25], opn 15 Apr 2010]

SECTION 87ZP GENERALLY [11,820.10] Overview This section was inserted originally as s 87D by the Gas Pipelines Access (Commonwealth) Act 1998. It was renumbered as s 87ZD by the Trade Practices Amendment (Personal Injuries and Death) Act (No 2) 2004. It was amended by the Trade Practices Amendment Act (No 1) 2006. The section was further renumbered as s 87ZP by the Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010. _____________________

[11,825] Power of Commission to grant authorisations 88 (1A) Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant an authorisation to the corporation: (a) to make a contract or arrangement, or arrive at an understanding, if a provision of the proposed contract, arrangement or understanding would be, or might be, a cartel provision; or (b) to give effect to a provision of a contract, arrangement or understanding if the provision is, or may be, a cartel provision; and, while such an authorisation remains in force: (c) in the case of an authorisation to make a contract or arrangement, or to arrive at an understanding — sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not prevent the corporation from making the contract or arrangement, or arriving at the understanding, in accordance with the authorisation; or (d) in the case of an authorisation to give effect to a provision of a contract, arrangement or understanding — sections 44ZZRG and 44ZZRK do not prevent the corporation from giving effect to the provision in accordance with the authorisation. [subs (1A) insrt Act 59 of 2009 s 3 and Sch 1[64], opn 24 July 2009]

(1) Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant an authorization to the corporation:

[page 749] (a) to make a contract or arrangement, or arrive at an understanding, where a provision of the proposed contract, arrangement or understanding would be, or might be, an exclusionary provision or would have the purpose, or would have or might have the effect, of substantially lessening competition within the meaning of section 45; or (b) to give effect to a provision of a contract, arrangement or understanding where the provision is, or may be, an exclusionary provision or has the purpose, or has or may have the effect, of substantially lessening competition within the meaning of section 45; and, while such an authorization remains in force: (c) in the case of an authorization to make a contract or arrangement or to arrive at an understanding — subsection 45(2) does not prevent the corporation from making the contract or arrangement or arriving at the understanding in accordance with the authorization and giving effect in accordance with the authorization to any provision of the contract or arrangement so made or of the understanding so arrived at; (d) in the case of an authorization to give effect to a provision of a contract: (i) the provision is not unenforceable by reason of subsection 45(1); and (ii) subsection 45(2) does not prevent the corporation from giving effect to the provision in accordance with the authorization; or (e) in the case of an authorization to give effect to a provision of an arrangement or understanding — subsection 45(2) does not prevent the corporation from giving effect to the provision in accordance with the authorization. (2) [subs (2) rep Act 88 of 1995 s 16] (2A) [subs (2A) rep Act 88 of 1995 s 16]

(3) [subs (3) rep Act 88 of 1995 s 16] (4) [subs (4) rep Act 88 of 1995 s 16] (5) Subject to this Part, the Commission may, upon application by or on behalf of a person, grant an authorization to the person: (a) to require the giving of, or to give, a covenant where the proposed covenant would have the purpose, or would have or might have the effect, of substantially lessening competition in a market referred to in paragraph 45B(2)(a); or (b) to enforce the terms of a covenant; and, while such an authorization remains in force: (c) in the case of an authorization to require the giving of, or to give, a covenant: (i) the covenant is not unenforceable by reason of subsection 45B(1); and (ii) subsection 45B(2) does not apply in relation to the covenant; or (d) in the case of an authorization to enforce the terms of a covenant: (i) the covenant is not unenforceable by reason of subsection 45B(1); and (ii) paragraphs 45B(2)(b) and (c) do not apply in relation to the covenant. [subs (5) am Act 88 of 1995 s 16]

(6) An authorization granted by the Commission to a person under any of the preceding provisions of this section to: (a) make a contract or arrangement or arrive at an understanding; (b) give effect to a provision of a contract, arrangement or understanding; [page 750] (c) require the giving of, or give, a covenant; or (d) enforce the terms of a covenant; has effect as if it were also an authorization in the same terms to every other person named or referred to in the application for the authorization as a party

to the contract, arrangement or understanding or as a proposed party to the proposed contract, arrangement or understanding, or as a person who is or would be bound by, or entitled to the benefit of, the covenant or the proposed covenant, as the case may be. (6A) Subject to this Part, the Commission may, on application by or on behalf of a corporation, grant an authorisation to the corporation to make a particular disclosure of information to which section 44ZZW or 44ZZX would or might apply. While the authorisation remains in force, that section does not apply in relation to the corporation making the disclosure. [subs (6A) insrt Act 185 of 2011 s 3 and Sch 1[5], opn 6 June 2012]

(6B) The Commission does not have power to grant an authorisation under subsection (6A) to a corporation to make a particular disclosure of information if the disclosure occurred before the Commission makes a determination in respect of the application. [subs (6B) insrt Act 185 of 2011 s 3 and Sch 1[5], opn 6 June 2012]

(6C) An application made to the Commission under subsection (6A) for an authorisation in relation to a particular disclosure of information may be expressed to be made also in relation to one or more other similar disclosures of information. If an application is so expressed, the Commission may grant a single authorisation in respect of all the disclosures or may grant separate authorisations in respect of any one or more of the disclosures. [subs (6C) insrt Act 185 of 2011 s 3 and Sch 1[5], opn 6 June 2012]

(7) Subject to this Part, the Commission may, upon application by or on behalf of a person, grant an authorization to the person, and to any other person acting in concert with the first-mentioned person, to engage in conduct to which section 45D, 45DA or 45DB would or might apply and, while such an authorization remains in force, that section does not apply in relation to the engaging in that conduct by the applicant and by any person acting in concert with the applicant. [subs (7) am Act 60 of 1996 s 3 and Sch 17; Act 101 of 1998 Sch 1.28]

(7A) Subject to this Part, the Commission may, on application by or on behalf of a person, grant an authorisation to the person to engage in conduct to which section 45E or 45EA would or might apply. While the authorisation remains in force, that section does not apply in relation to the person engaging in that conduct.

[subs (7A) insrt Act 60 of 1996 s 3 and Sch 17; am Act 101 of 1998 Sch 1.28]

(8) Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant an authorization to the corporation to engage in conduct that constitutes or may constitute the practice of exclusive dealing and, while such an authorization remains in force, section 47 does not prevent the corporation from engaging in that conduct in accordance with the authorization. [subs (8) am Act 101 of 1998 Sch 1.28]

(8AA) If: (a) the Commission grants an authorization to a corporation to engage in particular conduct under subsection (8); and [page 751] (b) the particular conduct referred to in the authorization is conduct expressly required or permitted under a contract, an arrangement, an understanding or an industry code of practice; then: (c) the authorization has effect as if it were also an authorization in the same terms to every other person named or referred to in the application for the authorization as a party or proposed party to the contract, arrangement, understanding or code; and (d) the authorization may be expressed so as to apply to or in relation to another person who becomes a party to the contract, arrangement, understanding or code at a time after the authorization is granted. [subs (8AA) insrt Act 101 of 1998 Sch 1.29]

(8AB) For the purposes of subsection (8AA), a reference in that subsection to a contract, an arrangement, an understanding or an industry code of practice includes a reference to a proposed contract, a proposed arrangement, a proposed understanding or a proposed industry code of practice (as the case requires). [subs (8AB) insrt Act 101 of 1998 Sch 1.29]

(8A) Subject to this Part, the Commission may, upon application by or on

behalf of a person, grant an authorisation to the person to engage in conduct that constitutes (or may constitute) the practice of resale price maintenance. While the authorisation remains in force, section 48 does not prevent the person from engaging in that conduct in accordance with the authorisation. [subs (8A) insrt Act 88 of 1995 s 16; am Act 101 of 1998 Sch 1.30]

(8B) Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant it an authorisation: (a) to make a dual listed company arrangement; or (b) to give effect to a provision of a dual listed company arrangement; and, while such an authorisation remains in force: (c) for an authorisation to make a dual listed company arrangement — section 49 does not prevent the corporation from: (i) making the arrangement in accordance with the authorisation; and (ii) giving effect, in accordance with the authorisation, to any provision of the arrangement so made; and (d) for an authorisation to give effect to a provision of a dual listed company arrangement — section 49 does not prevent the corporation from giving effect to the provision in accordance with the authorisation. [subs (8B) insrt Act 131 of 2006 s 3 and Sch 6[8], opn 1 Jan 2007]

(8C) An authorisation granted by the Commission to a corporation under subsection (8B) has effect as if it were also an authorisation in the same terms to the other corporation named or referred to in the application for the authorisation as a party to the arrangement or proposed arrangement. [subs (8C) insrt Act 131 of 2006 s 3 and Sch 6[8], opn 1 Jan 2007]

(8D) Subject to subsection 49(2), the Commission does not have power to grant an authorisation to a corporation to make a dual listed company arrangement if the arrangement has been made before the Commission makes a determination in respect of the application. [subs (8D) insrt Act 131 of 2006 s 3 and Sch 6[8], opn 1 Jan 2007]

[page 752]

(9) Subject to this Part, the Commission may, upon application by or on behalf of a person, grant an authorisation to the person to acquire a controlling interest in a body corporate (within the meaning of section 50A) and, while such an authorisation remains in force, section 50A does not, to the extent specified in the authorisation, apply in relation to the acquisition of that controlling interest. [subs (9) subst Act 131 of 2006 s 3 and Sch 1[25], opn 1 Jan 2007]

(10) An authorization to a corporation under subsection (1A) or (1) may be expressed so as to apply to or in relation to another person who: (a) in the case of an authorization to make a contract or arrangement or arrive at an understanding — becomes a party to the proposed contract or arrangement at a time after it is made or becomes a party to the proposed understanding at a time after it is arrived at; or (b) in the case of an authorization to give effect to a provision of a contract, arrangement or understanding — becomes a party to the contract, arrangement or understanding at a time after the authorization is granted. [subs (10) am Act 59 of 2009 s 3 and Sch 1[65], opn 24 July 2009]

(11) An authorization under subsection (5) may be expressed so as to apply to or in relation to another person who: (a) in the case of an authorization to require the giving of, or to give, a covenant — becomes bound by, or entitled to the benefit of, the proposed covenant at a time after the covenant is given; or (b) in the case of an authorization to enforce the terms of a covenant — becomes bound by, or entitled to the benefit of, the covenant at a time after the authorization is granted. (12) The Commission does not have power to grant an authorization to a corporation to make a contract or arrangement, to arrive at an understanding or to require the giving of, or to give, a covenant if the contract or arrangement has been made, the understanding has been arrived at or the covenant has been given before the Commission makes a determination in respect of the application. (13) An application made to the Commission under this section for an authorization in relation to a particular contract or proposed contract

(including an application mentioned in subsection (8AA)) may be expressed to be made also in relation to another contract or proposed contract that is or will be, or in relation to two or more other contracts or proposed contracts that are or will be, in similar terms to the first-mentioned contract or proposed contract and, where an application is so expressed, the Commission may grant a single authorization in respect of all the contracts or proposed contracts or may grant separate authorizations in respect of any one or more of the contracts or proposed contracts. [subs (13) am Act 101 of 1998 Sch 1.31]

(14) Where an application made to the Commission under this section for an authorization in relation to a particular contract or proposed contract is expressed in accordance with subsection (13) to be made also in relation to another contract or contracts or proposed contract or proposed contracts: (a) the application shall set out: (i) the names of the parties to each other contract; and [page 753] (ii) the names of the parties to each other proposed contract where those names are known to the applicant at the time when the application is made; and (b) if an authorization is granted in respect of a proposed contract the names of the parties to which were not so known to the applicant, the authorization shall, by force of this subsection, be deemed to be expressed to be subject to a condition that any party to the contract will, when so required by the Commission, furnish to the Commission the names of all the parties to the contract. (15) In subsections (13) and (14): (a) contract includes an arrangement, understanding, industry code of practice or covenant and proposed contract has a corresponding meaning; and (b) the reference to the parties to a contract or proposed contract shall, for the purposes of the application of those subsections in relation to a covenant or proposed covenant by reason of paragraph (a) of

this subsection, be read as a reference to the persons who are or will be, or but for subsection 45B(1) would be, respectively bound by, or entitled to the benefit of, the covenant or proposed covenant. [subs (15) am Act 101 of 1998 Sch 1.32]

(16) A corporation that has made an application to the Commission for an authorisation, or a person other than a corporation who has made an application to the Commission for an authorisation under subsection (9), may at any time, by notice in writing to the Commission, withdraw the application. SECTION 88 GENERALLY [11,825.5] Overview This section gives the commission power to grant authorisations. Following the passage of the Trade Practices Amendment Act (No 1) 2006, applications for merger authorisations are made directly to the tribunal under Pt VII Div 3. The section was amended by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 to enable the commission to grant authorisations relating to the cartel provisions under Div 1, Pt IV. See [10,690ZZRA.5]. Section 88(8AA) was inserted by the Gas Pipelines Access (Commonwealth) Act 1998. It provides that an authorisation extends to all persons named or referred to in the application for authorisation as a party to a contract, arrangement or understanding or industry code of practice. Section 88(10) and (11) provide that an authorisation may be expressed to apply to persons who become parties to the proposed contract, arrangement or understanding at a time after the contract, arrangement or understanding is made or arrived at or after authorisation is granted. Section 88(12) provides that an authorisation will not be granted in relation to a contract, arrangement or understanding retrospectively. Section 88(13) and (14) allow an authorisation to be granted for a series of contracts which are in similar terms provided the names of the parties both present and future are advised to the commission. For the purposes of these sections, the term “contract” is used to define a contract, arrangement, understanding or covenant. Section 88(16) allows the applicant for authorisation to withdraw the

application at any time. [11,825.6] Commission’s discretion The power of the commission to authorise conduct is discretionary. Although the exercise of the discretion means that the conditions in s 90 must be met, they are necessary conditions only. Their satisfaction does not require that the commission grant authorisation: Re Application by Medicines Australia Inc [2007] ACompT 4; BC200704950 at [106] per French J, Mr G F Latta and Professor C Walsh. [page 754] There is a discretion to refuse authorisation even where the relevant public benefit test is satisfied: Re Application by Medicines Australia Inc, above, at [106] per French J, Mr G F Latta and Professor C Walsh. [11,825.7] Application on behalf of another Section 88(1) permits an application for authorisation to be made by or on behalf of a corporation. However, an authorisation cannot be granted to X applied for by Y, unless Y made the application on behalf of X: Jones v Australian Competition and Consumer Commission [2002] FCA 1054; BC200204870 at [47] per Weinberg J; (appeal) Jones v Australian Competition and Consumer Commission (2003) 200 ALR 234; [2003] FCAFC 164; BC200304294 at [13] per Wilcox, Cooper and Allsop JJ. The expression “on behalf of” requires a degree of formal connection and of obligation which in general precludes a party from acting on behalf of another when that party acts contrary to the express wishes of that other: Jones v Australian Competition and Consumer Commission, above, at [56] per Weinberg J. There are circumstances in which a person may be said to act on behalf of another without the consent of the other. For example, a person may act on behalf of another who lacks legal capacity. A person also acts on behalf of another as an agent, where the doctrine of ostensible authority applies: Jones v Australian Competition and Consumer Commission, above, at [57] per Weinberg J. [11,825.10] Commission Guidelines

The Commission has published its

Guide To Authorisations 2013. _____________________

[11,850] Procedure for applications and the keeping of a register 89 *(1) To be valid, an application for an authorisation, a minor variation of an authorisation, a revocation of an authorisation, or a revocation of an authorisation and the substitution of another authorisation, must: (a) be in a form prescribed by the regulations and contain the information required by the form; and (b) be accompanied by any other information or documents prescribed by the regulations; and (c) be accompanied by the fee (if any) prescribed by the regulations. [subs (1) subst Act 131 of 2006 s 3 and Sch 2[1], opn 1 Jan 2007]

(1A) If the Commission receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice: (a) stating that the person has not made a valid application; and (b) giving reasons why the purported application does not comply with this Division. [subs (1A) insrt Act 131 of 2006 s 3 and Sch 2[1], opn 1 Jan 2007]

(1B) For the purposes of subsection (1A), business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory. [subs (1B) insrt Act 131 of 2006 s 3 and Sch 2[1], opn 1 Jan 2007]

*Editor’s note: Item 14 of Sch 2 of Act 131 of 2006 provides as follows: Saving (1) Regulations in force for the purposes of subsection 89(1) of the Trade Practices Act 1974 immediately before the commencement of this Schedule have effect, after that commencement, as if they had been made for the purposes of that subsection after that commencement. (2) An application made in accordance with subsection 89(1) of the Trade Practices Act 1974 before the commencement of this Schedule has effect, after that commencement, as if it had been made in accordance with that subsection after that commencement.

[page 755] (2) If the Commission receives an application referred to in subsection (1), the Commission must cause notice of the receipt of that application to be made public in such manner as it thinks fit. [subs (2) subst Act 101 of 1998 Sch 1.34; am Act 131 of 2006 s 3 and Sch 2[2], opn 1 Jan 2007]

*(3) The Commission must keep a register of: (a) applications for authorizations; and (b) applications for minor variations of authorizations; and (c) applications for, or the Commission’s proposals for, the revocation of authorizations; and (d) applications for, or the Commission’s proposals for, the revocation of authorizations and the substitution of other authorizations; including applications that have been withdrawn or proposals that have been abandoned. [subs (3) subst Act 101 of 1998 Sch 1.35]

(4) Subject to this section, the register kept under subsection (3) shall include: (a) any document furnished to the Commission in relation to an application or proposal referred to in subsection (3); (aa) any draft determination, and any summary of reasons, by the Commission that is furnished to a person under section 90A, or under that section as applied by section 91C; (ab) any record of a conference made in accordance with subsection 90A(8), or with that subsection as applied by section 91C, and any certificate in relation to a conference given under subsection 90A(9), or under that subsection as so applied; (b) particulars of any oral submission made to the Commission in relation to such an application or proposal; and (c) the determination of the Commission on such an application or proposal and the statement of the reasons given by the Commission for that determination. [subs (4) am Act 101 of 1998 Sch 1.37-9]

(5) Where a person furnishes a document to the Commission in relation to

an application or proposal referred to in subsection (3) or makes an oral submission to the Commission in relation to such an application or proposal, he or she may, at the time when the document is furnished or the submission is made, request that the document or a part of the document, or that particulars of the submission or of part of the submission, be excluded from the register kept under subsection (3) by reason of the confidential nature of any of the matters contained in the document or submission. [subs (5) am Act 88 of 1995 s 91; Act 101 of 1998 Sch 1.40]

*(5A) Where such a request is made: *Editor’s note: Item 36 of Sch 1 of Act 101 of 1998 provides as follows: Saving provision Despite the repeal of subsection 89(3), the register of applications in place under that subsection immediately before the day item 35 commences continues to have effect on and after that date as if it had been created for the purposes of subsection 89(3) of the Trade Practices Act 1974 as amended by this Act. *Editor’s note: Section 21 of Act 222 of 1992 provides as follows: Application of the merger amendments 21 (1) Subject to this section, the merger amendments apply to any acquisition that happens after the commencement of this Act.

[page 756] (a) if the document or the part of the document, or the submission or the part of the submission, to which the request relates contains particulars of: (i) a secret formula or process; (ii) the cash consideration offered for the acquisition of shares in the capital of a body corporate or assets of a person; or (iii) the current costs of manufacturing, producing or marketing goods or services; the Commission shall exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from the register kept under subsection (3); and (b) in any other case — the Commission may, if it is satisfied that it is

desirable to do so by reason of the confidential nature of the matters contained in the document or the part of the document, or in the submission or the part of the submission, exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from that register. [subs (5A) am Act 222 of 1992 s 15]

(5B) If the Commission refuses a request to exclude a document or a part of a document from the register kept under subsection (3), the Commission shall, if the person who furnished the document to the Commission so requires, return the document or part of the document to him or her and, in that case, paragraph (4)(a) does not apply in relation to the document or part of the document. [subs (5B) am Act 88 of 1995 s 91]

(5C) If the Commission refuses a request to exclude particulars of an oral submission or of part of an oral submission from the register kept under subsection (3), the person who made the submission may inform the Commission that he or she withdraws the submission or that part of the submission and, in that case, paragraph (4)(b) does not apply in relation to the submission or that part of the submission, as the case may be. [subs (5C) am Act 88 of 1995 s 91]

(5D) Where the Commission is satisfied that it is desirable to do so for any reason other than the confidential nature of matters contained in a document or submission, the Commission may exclude a document or part of a document referred to in paragraph (4)(a) or particulars referred to in paragraph (4)(b) from the register kept under subsection (3). (2) If at the commencement of this Act a proposed acquisition was the subject of any court proceedings under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to the following acquisitions as if the merger amendments had not been made: (a) the proposed acquisition; (b) any acquisition of the same shares or assets by a body corporate that, at the commencement of this Act, was related (within the meaning of the Principal Act) to a body corporate that was a party to the court proceedings. (3) If, on 4 November 1992, a proposed acquisition was the subject of an application for an authorisation under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to that acquisition as if the merger

amendments had not been made. (4) In this section, merger amendments means the amendments made by sections 2, 3, 6, 7, 12, 14, 15 and 17 of this Act.

[page 757] (5E) If a person requests, in accordance with subsection (5) that a document or a part of a document, or that particulars of a submission or of part of a submission, be excluded from the register kept under subsection (3), the document or part of the document, or particulars of the submission or of the part of the submission, shall not be included in that register until the Commission has made a determination in relation to the request. (6) A document shall not be included in the register kept under subsection (3) if a direction in relation to that document was in force under paragraph 22(1)(b) of this Act immediately before the commencement of the Trade Practices Amendment Act 1977. [subs (6) am Act 103 of 2010 s 3 and Sch 5[106], opn 1 Jan 2011] [s 89 am Act 101 of 1998 Sch 1]

SECTION 89 GENERALLY [11,850.5] Overview This section outlines the procedure for seeking an authorisation and also the circumstances in which confidentiality may be claimed in relation to information placed before the commission. Section 89(1)-(4) requires an application for authorisation to be in writing. The commission is required to place this application and related information on a public register. Section 88(5)-(5E) outlines the manner with which a claim for confidentiality in information provided to the commission will be dealt. A person furnishing a document or making oral submissions may request that the submissions or the document be excluded from the public register for reasons of confidentiality. If the information contains particulars of a secret formula or process, cash consideration offered for shares or assets or the current costs of manufacturing, producing or marketing goods or services then it will be excluded from the public register. Furthermore, if the information relates to anything else which the commission in its discretion

considers to be confidential, it may exclude the information from the public register. Where the commission refuses a request to exclude information from the public register due to its confidential nature then the person furnishing the document or making the submission may withdraw that document or submission, in which case the document or submission will not form part of the application for authorisation. _____________________

[11,855] Determination of applications for authorisations 90 (1) The Commission shall, in respect of an application for an authorization: (a) make a determination in writing granting such authorization as it considers appropriate; or (b) make a determination in writing dismissing the application. (2) The Commission shall take into account any submissions in relation to the application made to it by the applicant, by the Commonwealth, by a State or by any other person. Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B. (3) [repealed] (4) The Commission shall state in writing its reasons for a determination made by it. (5) Before making a determination in respect of an application for an authorization the Commission shall comply with the requirements of section 90A. Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B. [page 758] (5A) The Commission must not make a determination granting an

authorisation under subsection 88(1A) in respect of a provision of a proposed contract, arrangement or understanding that would be, or might be, a cartel provision, unless the Commission is satisfied in all the circumstances: (a) that the provision would result, or be likely to result, in a benefit to the public; and (b) that the benefit would outweigh the detriment to the public constituted by any lessening of competition that would result, or be likely to result, if: (i) the proposed contract or arrangement were made, or the proposed understanding were arrived at; and (ii) the provision were given effect to. [subs (5A) insrt Act 59 of 2009 s 3 and Sch 1[66], opn 24 July 2009]

(5B) The Commission must not make a determination granting an authorisation under subsection 88(1A) in respect of a provision of a contract, arrangement or understanding that is or may be a cartel provision, unless the Commission is satisfied in all the circumstances: (a) that the provision has resulted, or is likely to result, in a benefit to the public; and (b) that the benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that has resulted, or is likely to result, from giving effect to the provision. [subs (5B) insrt Act 59 of 2009 s 3 and Sch 1[66], opn 24 July 2009]

(5C) The Commission must not make a determination granting an authorisation under subsection 88(6A) in respect of a proposed disclosure of information to which section 44ZZW would or might apply, unless the Commission is satisfied in all the circumstances that the proposed disclosure would result, or be likely to result, in such a benefit to the public that the proposed disclosure should be allowed to be made. [subs (5C) insrt Act 185 of 2011 s 3 and Sch 1[6], opn 6 June 2012]

(5D) Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.subsection 88(6A) in respect of a proposed disclosure of information to which section 44ZZX would or might apply, unless the Commission is satisfied in all the circumstances: (a) that the proposed disclosure would result, or be likely to result, in a benefit to the public; and

(b) that the benefit would outweigh the detriment to the public constituted by any lessening of competition that would result, or be likely to result, if the corporation so disclosed the information. [subs (5D) insrt Act 185 of 2011 s 3 and Sch 1[6], opn 6 June 2012]

(6) The Commission shall not make a determination granting an authorization under subsection 88(1), (5) or (8) in respect of a provision (not being a provision that is or may be an exclusionary provision) of a proposed contract, arrangement or understanding, in respect of a proposed covenant, or in respect of proposed conduct (other than conduct to which subsection 47(6) or (7) applies), unless it is satisfied in all the circumstances that the provision of the proposed contract, arrangement or understanding, the proposed covenant, or the proposed conduct, as the case may be, would result, or be likely to result, in a benefit to the public and that that benefit would outweigh the detriment to the public constituted by any lessening of competition that would result, or be likely to result, if: [page 759] (a) the proposed contract or arrangement were made, or the proposed understanding were arrived at, and the provision concerned were given effect to; (b) the proposed covenant were given, and were complied with; or (c) the proposed conduct were engaged in; as the case may be. (7) The Commission shall not make a determination granting an authorization under subsection 88(1) or (5) in respect of a provision (not being a provision that is or may be an exclusionary provision) of a contract, arrangement or understanding or, in respect of a covenant, unless it is satisfied in all the circumstances that the provision of the contract, arrangement or understanding, or the covenant, as the case may be, has resulted, or is likely to result, in a benefit to the public and that that benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that has resulted, or is likely to result, from giving effect to the provision or complying with the covenant.

(8) The Commission shall not: (a) make a determination granting: (i) an authorization under subsection 88(1) in respect of a provision of a proposed contract, arrangement or understanding that is or may be an exclusionary provision; or (ii) an authorization under subsection 88(7) or (7A) in respect of proposed conduct; or (iii) an authorization under subsection 88(8) in respect of proposed conduct to which subsection 47(6) or (7) applies; or (iv) an authorisation under subsection 88(8A) for proposed conduct to which section 48 applies; unless it is satisfied in all circumstances that the proposed provision or the proposed conduct would result, or be likely to result, in such a benefit to the public that the proposed contract or arrangement should be allowed to be made, the proposed understanding should be allowed to be arrived at, or the proposed conduct should be allowed to take place, as the case may be; or (b) make a determination granting an authorization under subsection 88(1) in respect of a provision of a contract, arrangement or understanding that is or may be an exclusionary provision unless it is satisfied in all the circumstances that the provision has resulted, or is likely to result, in such a benefit to the public that the contract, arrangement or understanding should be allowed to be given effect to. [subs (8) am Act 98 of 1993 s 48 and Sch 3; Act 88 of 1995 s 17; Act 60 of 1996 s 3 and Sch 17]

(8A) The Commission must not make a determination granting an authorisation under subsection 88(8B) to make a dual listed company arrangement unless it is satisfied in all the circumstances that the making of the arrangement would result, or be likely to result, in such a benefit to the public (see subsection (9A)) that the arrangement should be allowed to be made. [subs (8A) insrt Act 131 of 2006 s 3 and Sch 6[9], opn 1 Jan 2007]

[page 760] (8B) The Commission must not make a determination granting an authorisation under subsection 88(8B) to give effect to a provision of a dual listed company arrangement unless it is satisfied in all the circumstances that the giving effect to the provision would result, or be likely to result, in such a benefit to the public (see subsection (9A)) that the provision should be allowed to be given effect to. [subs (8B) insrt Act 131 of 2006 s 3 and Sch 6[9], opn 1 Jan 2007]

(9) The Commission shall not make a determination granting an authorization under subsection 88(9) in respect of the acquisition of a controlling interest in a body corporate within the meaning of section 50A unless it is satisfied in all the circumstances that the proposed acquisition would result, or be likely to result, in such a benefit to the public (see subsection (9A)) that the acquisition should be allowed to take place. [subs (9) am Act 131 of 2006 s 3 and Sch 1[26] and Sch 6[10], opn 1 Jan 2007]

(9A) In determining what amounts to a benefit to the public for the purposes of subsections (8A), (8B) and (9): (a) the Commission must regard the following as benefits to the public (in addition to any other benefits to the public that may exist apart from this paragraph): (i) a significant increase in the real value of exports; (ii) a significant substitution of domestic products for imported goods; and (b) without limiting the matters that may be taken into account, the Commission must take into account all other relevant matters that relate to the international competitiveness of any Australian industry. [subs (9A) insrt Act 222 of 1992 s 16; am Act 131 of 2006 s 3 and Sch 6[11], opn 1 Jan 2007]

(10) If the Commission does not determine an application for an authorisation (other than an application for an authorisation under subsection 88(9)) within the relevant period, then it is taken to have granted the application at the end of that period. [subs (10) subst Act 131 of 2006 s 3 and Sch 2[3], opn 1 Jan 2007]

(10A) For the purposes of subsection (10), the relevant period is the period of 6 months beginning on the day the Commission received the application. However, if, before the end of that 6 month period: (a) the Commission has prepared a draft determination under subsection 90A(1) in relation to the application; and (b) the Commission determines in writing that that period is extended by a specified period of not more than 6 months; and (c) the applicant agrees to that period being so extended; the relevant period is that period as so extended. [subs (10A) subst Act 131 of 2006 s 3 and Sch 2[3], opn 1 Jan 2007]

(11) Subject to subsections (12) and (13), if the Commission does not determine an application for an authorisation under subsection 88(9) within: (a) 30 days from the day on which the application is received by the Commission; or (b) if the Commission, before the end of that period of 30 days, gives to the applicant a notice in writing requesting the applicant to give to the Commission additional information relevant to the determination of the application — the period consisting of 30 days from the day on which the application is received by the Commission increased by the number of days in the period commencing [page 761] on the day on which the notice is given to the applicant and ending on the day on which the applicant gives to the Commission such of the additional information as the applicant is able to provide; the Commission shall be deemed to have granted, at the end of that period, the authorisation applied for. [subs (11) am Act 222 of 1992 s 16; Act 131 of 2006 s 3 and Sch 2[4], opn 1 Jan 2007]

(11A) The Commission may, within the 30 day period mentioned in subsection (11), notify the applicant in writing that the Commission considers that the period should be extended to 45 days due to the complexity of the issues involved. If the Commission so notifies the

applicant, the references in subsection (11) to 30 days are to be treated as references to 45 days. [subs (11A) insrt Act 222 of 1992 s 16]

(12) If the applicant for an authorization informs the Commission in writing before the expiration of the period referred to in subsection (11) (in this subsection and in subsection (13) referred to as the base period) that the applicant agrees to the Commission taking a specified longer period for the determination of the application, a reference to that longer period shall be deemed for the purposes of that application to be substituted in subsection (11) for the reference in that subsection to the base period. [subs (12) am Act 131 of 2006 s 3 and Sch 2[5], [6], opn 1 Jan 2007]

(13) For the purposes of any application of subsection (12), a reference in that subsection to the base period shall, if a reference to another period is deemed by any other application or applications of that subsection to have been substituted in subsection (11) for the reference in subsection (11) to the base period, be construed as a reference to that other period. [subs (13) am Act 131 of 2006 s 3 and Sch 2[7], opn 1 Jan 2007]

(14) If a person to whom a notice has been sent under subsection 90A(2) in relation to a draft determination in respect of an application for an authorization notifies the Commission in accordance with subsection 90A(6) that he or she wishes the Commission to hold a conference in relation to the draft determination, the relevant period (worked out under subsection (10A) of this section) shall be deemed to be increased by a period equal to the period commencing on the day on which the first notification in relation to the draft determination was received by the Commission and ending on the seventh day after the day specified in the certificate given by a member of the Commission in pursuance subsection 90A(9) as the day on which the conference terminated. [subs (14) am Act 11 of 1990 s 59; Act 131 of 2006 s 3 and Sch 2[8], opn 1 Jan 2007]

(15) Where a party to a joint venture makes at the one time two or more applications for authorizations (other than an application for an authorisation under subsection 88(9)), being applications each of which deals with a matter relating to the joint venture: (a) the Commission shall not make a determination in respect of any one of those applications unless it also makes a determination or

determinations at the same time in respect of the other application or other applications; and (b) if the Commission does not make a determination in respect of any one of the applications within the relevant period (worked out under subsection (10A)) in relation to that application, the Commission shall be deemed to have granted, at the expiration of that period, all the authorizations applied for. [subs (15) am Act 131 of 2006 s 3 and Sch 2[9], [10], opn 1 Jan 2007]

[page 762] SECTION 90 GENERALLY [11,855.5] Overview The commission is required to make its determination in writing and to give reasons for its decision. Section 90(5A)-(9) outlines the two different tests which are to be used by the commission in determining whether it will grant an authorisation for conduct which would otherwise be in breach of the Act. These tests are as follows: • the public benefit arising from the conduct will outweigh the resultant detriment constituted by any lessening of competition in the relevant market; and • the public benefit arising from the conduct is such that the conduct ought to be allowed. Sections 90(5A) and 90(5B) were inserted by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 applying to authorisations relating to the cartel provisions under Div 1, Pt IV. See [10,690ZZRA.5]. In relation to the acquisition of a controlling interest in a corporation under s 50A or a dual listed company arrangement, the commission must regard the following as benefits: • a significant increase in the real value of exports; and • a significant substitution of domestic products for imported goods. The commission must also take into account all other relevant matters that

relate to the international competitiveness of any Australian industry. [11,855.10] Onus The onus of satisfying the tests for the grant of an authorisation rests on the applicant for authorisation: Re Queensland Timber Board (1975) 5 ALR 501; (1975) ATPR ¶40-005; Re Media Council of Australia (No 2) (1987) 88 FLR 1; (1987) ATPR ¶40-774; Re John Dee (Export) Pty Ltd (1989) 87 ALR 321; (1989) ATPR ¶40-938. [11,855.18] The need for authorisation The commission must determine whether to grant an authorisation having regard to the test in s 90. It is irrelevant that the application for authorisation may be unnecessary: Re Shell Co of Australia (1975) ATPR ¶35-220; Re Queensland Co-op Milling Assn Ltd (1976) 8 ALR 481; 25 FLR 169 at 180; (1976) ATPR ¶40-012; Re Applications by Australasian Performing Rights Assn (1999) ATPR ¶41-701 at 42,933–4. In Re Applications by Australasian Performing Rights Assn, above, at 42,933–4, the tribunal said that whether or not licences were covered by the exemption in s 51(3) of the Act was not a matter for the commission to decide. [11,855.19] Likely to result in public benefit that outweighs detriment The expression “likely to result” has a meaning similar to “likely to have the effect” as applied in s 50 of the Act. For a benefit or detriment to be considered, there must be a real chance and not a mere possibility of the benefit or detriment eventuating: Australian Gas Light Co v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317; (2003) ATPR ¶41-966 per French J; Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [155] per Goldberg J, Mr G F Latta and Professor D K Round; Re Application by Medicines Australia Inc [2007] ACompT 4; BC200704950 at [109] per French J, Mr G F Latta and Professor C Walsh. It is not enough that the benefit or detriment is speculative or a theoretical possibility. There must be a commercial likelihood that the applicants will, following the implementation of the relevant agreements, act in a manner that delivers or brings about the public benefit or the lessening of competition giving rise to the public detriment: Qantas Airways Ltd, above, at [156] per Goldberg J, Mr G F Latta and Professor D K Round. [11,855.19A] Efficiencies used to assess detriment and benefit

In

assessing the nature and extent of public detriment and benefit, it is necessary to consider the significance of any issues of allocative, dynamic and productive efficiency: Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [157] per Goldberg J, Mr G F Latta and Professor D K Round. [page 763] Allocative efficiency Allocative efficency occurs when the optimal level of resources is employed in a market at a given point in time (it is a static concept), as a result of the efficient operation of the independent market forces of supply and demand. When allocative efficiency is achieved, as a result of the responses of firms to market signals, the socially optimal level of output will be produced, at the minimum achievable long run cost. No alternative allocation of resources could improve the market’s outcome: Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [158] per Goldberg J, Mr G F Latta and Professor D K Round. Dynamic efficiency Dynamic efficiency involves consideration of adaptation by firms to the evolving supply and demand forces in the market. It is a function of innovation and change and relates to the search for new ideas, new products and new production methods, all of which can expand consumer choice, raise output levels and lead to cost savings in production: Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [159] per Goldberg J, Mr G F Latta and Professor D K Round. Productive or technical efficiency Productive or technical efficiency relates to the most efficient use of the resources and the technology currently available to a firm, in any given period of time. It will produce the maximum output possible from its available inputs, given the various technological constraints under which it may be operating, resulting in the minimum possible costs of production for that time period: Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [160] per Goldberg J, Mr G F Latta and Professor D K Round. A component of productive efficiency is “x-inefficiency”, which refers to those forms of productive inefficiency that result from the lack of competitive pressures on and incentives for a firm with market power. The greater the

competitive pressures to which a firm is exposed, the greater the pressure on it, for example, to keep costs low, and innovate in its production technology and processes. By contrast a firm with market power can allow inefficient management and production factors to occur and to persist over time: Qantas Airways Ltd, above, at [161] per Goldberg J, Mr G F Latta and Professor D K Round. Generally where a merger or set of arrangements enhances a firm’s market power and leads to an increase in prices, it reduces allocative efficiency and creates “deadweight loss” — the loss of producer and consumer surplus resulting from price increases. Such inefficiency amounts to public detriment. Alternatively such arrangements might also generate efficiencies leading to increased welfare, thereby constituting a public benefit: Qantas Airways Ltd, above, at [162] per Goldberg J, Mr G F Latta and Professor D K Round. [11,855.20] “public benefit” Although this term is not defined in the Act, it has been given a broad interpretation by the Commission and the Tribunal: Re Australian Assn of Pathology Practices Inc [2004] ACompT 4; BC200401774 at [135] per Hely J, Mr G F Latta and Dr J E Walker; Re Application by Michael Jools [2006] ACompT 5; BC200604784 at [23] per Finkelstein J, M Starrs and R Shogren. A public benefit is anything of value to the community generally, any contribution to the aims pursued by the society including as one of its principal elements (in the context of trade practices legislation) the achievement of the economic goals of efficiency and progress: Re Queensland Co-op Milling Assn Ltd (1976) 8 ALR 481; 25 FLR 169; (1976) ATPR ¶40-012 at 17,242; Re Application by Medicines Australia Inc [2007] ACompT 4; BC200704950 at [107] per French J, Mr G F Latta and Professor C Walsh; Re Application by Sea Swift Pty Ltd [2016] ACompT 9; BC201606314 at [42] per Farrell J, Mr RC Davey and Professor DK Round. A “public” benefit is one which must benefit the public generally, although some weight will be given to benefits which accrue to a smaller section of the community: Re Westralian Farmers Co-op Ltd (1979) 37 FLR 244; Re Howard Smith Industries Pty Ltd and Adelaide Steamship Industries Pty Ltd (1977) 28 FLR 385; (1977) ATPR ¶40-023. As noted above, in assessing the nature and extent of public benefit it is necessary to consider the significance of any issues of allocative, dynamic and productive efficiency. The question of which efficiencies should be taken

into account as public benefits (or which constitute relevant [page 764] public detriment) involves an assessment of the welfare implications of income distribution: Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [166] per Goldberg J, Mr G F Latta and Professor D K Round. The objective and statutory language of the Act supports the use of a form of the total welfare standard as the most appropriate standard for identifying and assessing public benefit: Qantas Airways Ltd, above, at [185] per Goldberg J, Mr G F Latta and Professor D K Round; Re VFF Chicken Meat Growers’ Boycott Authorisation [2006] ACompT 2; BC200602436 at [75] per Heerey J, Dr W J Beerworth and Professor C Walsh. The total welfare standard involves taking into account, in the context of a merger, those efficiencies that accrue either to consumers of the products of the merged firms, or to the producers of the products (which may then be converted into competitively significant expenditures, such as improved services, or retained by the form for use in other ways). By contrast, the consumer welfare standard only takes into account efficiencies that will be passed on to consumers in the form of lower prices or better products: Qantas Airways Ltd, above, at [171] per Goldberg J, Mr G F Latta and Professor D K Round. The difference between the outcomes of the two standards is that, under the total welfare standard, if the benefits associated with the proposed merger exceed the amount of the deadweight loss, then total welfare increases and the merger is allowed to proceed even if it might enhance market power. Equal weight is assigned to the loss in consumer welfare and any corresponding increase in producer surplus. Under the consumer welfare standard, a proposed merger that would enhance market power is not allowed to proceed unless a net benefit to consumers can be demonstrated in terms of lower prices, or new or improved products. Under this standard, a sufficient portion of the benefits of a merger must actually be passed on to consumers: Qantas Airways Ltd, above, at [173] per Goldberg J, Mr G F Latta and Professor D K Round.

[11,855.20A] Detriment to the public Section 90(6) and 90(7) requires consideration of the risk of “detriment” to the public. This extends to any impairment to the community generally, any harm or damage to the aims pursued by the society including, as one of its principal elements, the achievement of the goal of economic efficiency: Re 7-Eleven Stores Pty Ltd (1994) ATPR ¶41-357 at 42,683; Re Application by Medicines Australia Inc [2007] ACompT 4; BC200704950 at [108] per French J, Mr G F Latta and Professor C Walsh; Re Application by Sea Swift Pty Ltd [2016] ACompT 9; BC201606314 at [43] per Farrell J, Mr RC Davey and Professor DK Round. [11,855.21] Future with and without test In identifying and weighing the public benefits and detriment one must compare the future with the relevant conduct (the factual) and the future without the relevant conduct (the counterfactual). The question whether certain conduct will result in a public benefit is a question of fact to be determined in the appropriate context in each case: Re 7-Eleven Stores Pty Ltd (1994) ATPR ¶41-357 at 42,677; Re Queensland Independent Wholesalers Ltd (1995) 132 ALR 225; (1995) ATPR ¶41-438 at 40,928; Re Media Council of Australia (1996) ATPR ¶41497 at 42,241; Re AGL Cooper Basin Natural Gas Supply Arrangements (1997) ATPR ¶41-593 at 44,175; Re Applications by Australasian Performing Rights Assn (1999) ATPR ¶41-701 at 42,933, 42,936; Re Application by Australian Wool Growers Assn Ltd [1999] ACompT 4; BC9905639; Re Australian Assn of Pathology Practices Inc [2004] ACompT 4; BC200401774 at [136] per Hely J, Mr G F Latta and Dr J E Walker; Re VFF Chicken Meat Growers’ Boycott Authorisation [2006] ACompT 2; BC200602436 per Heerey J, Dr W J Beerworth and Professor C Walsh; Re Application by Medicines Australia Inc [2007] A CompT 4; BC200704950 at [117] per French J, Mr G F Latta and Professor C Walsh. The test is not to compare the present situation with the future situation, if the conduct were to take place. Rather, the test is to appraise the future, if the acquisition were to take place, in light of the alternative outcome, if the conduct were not to take place: Re Queensland Independent Wholesalers Ltd (1995) 132 ALR 225; (1995) ATPR ¶41-438; Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [151] per Goldberg J, Mr G F Latta and Professor D K Round; Re

[page 765] Application by Medicines Australia Inc, above, at [120] per French J, Mr G F Latta and Professor C Walsh; Re Application by Sea Swift Pty Ltd [2016] ACompT 9; BC201606314 at [44] per Farrell J, Mr RC Davey and Professor DK Round. In Re Application by Medicines Australia Inc, above, at [119] French J, Mr GF Latta and Professor C Walsh said: [119] Consideration of a future without the proposal in effect assists the public benefit and anticompetitive detriment assessment in at least three ways: (i) If the claimed public benefits are unlikely to exist without the proposal they can be described as benefits flowing from the proposal. (ii) If the claimed public benefits exist, in part, in a future without the proposal, the weight accorded to them may be reduced appropriately. (iii) If, in a future without the proposal, there are public detriments which are removed or mitigated in the future with the proposal, that may be considered as an element of the claimed public benefit flowing from the proposal. An example of the latter case, relevant to the present application, arises where statutory regulatory systems are not able to provide enforcement coverage in respect of the full range of conduct which is the target of their underlying policy. A voluntary industry code may provide an additional informal low cost complaint and enforcement mechanism covering both the conduct formally addressed by the statutory system and analogous or related conduct which the statutory system does not reach because of legal boundaries or resource limitations. Even if the voluntary enforcement mechanism has gaps and deficiencies, the additional coverage it provides may be identified as a public benefit by reason of its capacity to lessen the detriment associated with conduct within the letter or policy of the statutory theme. The relationship between statutory regulation and complementary voluntary codes in such cases is sometimes referred to as “co-regulation”.

[11,855.22] Authorisation of exclusionary provisions and price-fixing The tests for authorisations of exclusionary provisions and price-fixing are expressed differently in s 90. The accepted view had been that despite the difference in wording the two tests in practical application are essentially the same: Re Media Council of Australia (No 2) (1987) 88 FLR 1; (1987) ATPR ¶40-774; Re 7-Eleven Stores Pty Ltd (1994) ATPR ¶41-357. However, in Re Australian Assn of Pathology Practices Inc [2004] ACompT 4; BC200401774 at [93] Hely J, Mr G F Latta and Dr J E Walker suggested that the test applying to an exclusionary provision was limited to a consideration of the detriments arising from a lessening of competition: see Re EFPTOS Interchange Fees Agreement [2004] ACompT 7 at [25] per Heerey J, Mr R Davey and Ms M M Starrs; Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [148] per Goldberg J, Mr G F Latta and Professor D K

Round; Re VFF Chicken Meat Growers’ Boycott Authorisation [2006] ACompT 2; BC200602436 at [66] (VFF Chicken) per Heerey J, Dr WJ Beerworth and Professor C Walsh. The different wording in the tests in s 90(6) and s 90(8) suggests a different meaning was intended. With substantial lessening of competition provisions there is reason to look at the actual detriment caused by the lessening of competition because that is the only detriment that makes the conduct unlawful. However, exclusionary provisions are unlawful per se so no assessment of competition is required: VFF Chicken at [71] per Heerey J, Dr W J Beerworth and Professor C Walsh. The consideration is the net benefit to the public — benefits to the public sufficient to outweigh any detriments to the public from granting the authorisation: VFF Chicken at [74] per Heerey J, Dr W J Beerworth and Professor C Walsh; Re Application by Medicines Australia Inc [2007] ACompT 4; BC200704950 at [115] per French J, Mr GF Latta and Professor C Walsh. [11,855.23] Authorisation for exclusive dealing and third line forcing If the conduct is exclusive dealing under s 47(2), then the test for authorisation is in s 90(6). If the conduct is third line forcing then the test for authorisation is in s 90(8). The wording of the tests differ. Section [page 766] 90(6) limits the consideration of detriment to “the detriment to the public constituted by any lessening of competition” resulting from the relevant conduct, while there is no such limitation in s 90(8): Re Australian Assn of Pathology Practices Inc [2004] ACompT 4; BC200401774 at [93] per Hely J, Mr G F Latta and Dr J E Walker. In most cases the net benefit test is the appropriate test to apply when deciding whether there should be authorisation for third line forcing, though net benefit is not a necessary pre-condition for authorisation: Re Application by Michael Jools [2006] ACompT 5; BC200604784 at [7] per Finkelstein J, M Starrs and R Shogren; Re VFF Chicken Meat Growers’ Boycott Authorisation [2006] ACompT 2; BC200602436 at [74] per Heerey J, Dr W J Beerworth and Professor C Walsh.

The tribunal will not ordinarily conduct a preliminary inquiry as to whether or not the conduct would result in a contravention of the Act. However, where the test to be applied by the tribunal may be different if the conduct for which authorisation is sought is third line forcing rather than exclusive dealing, the tribunal must necessarily consider whether the exclusive dealing for which authorisation is sought may constitute third line forcing: Re Australian Assn of Pathology Practices Inc, above, at [95] per Hely J, Mr G F Latta and Dr J E Walker. [11,855.25] Commission position on public benefit The commission has generally considered the following as public benefits: • the promotion of competition in an industry; • economic development such as the development of Australia’s natural resources by the encouragement of exploration and research and capital investment; • fostering business efficiency, be it in manufacturing, supply and distribution, administration and selling, particularly where it enables companies to compete more effectively with imports in the domestic market and with exports on world markets, that is to achieve international competitiveness; • industry rationalisation providing for more efficient allocation of resources and lower unit production costs; • the expansion of employment in efficient industries, including the prevention of unemployment in efficient industries and the development of employment growth in particular regions: the attainment of industrial harmony; • assistance to efficient small business, for example through guidance on costing, pricing and the like and through marketing initiatives such as buying groups which promote the competitiveness of small business; • the enhancement of quality and safety of goods and services and the expansion of consumer choice of the range of goods and services that are available; • the provision of better information to consumers and business alike to enable them to make informed choices in their dealings; • the promotion of equitable dealings in the market; • the promotion of cost savings in industry and the consequent

•

containment or reduction of prices at all levels in the supply chain; steps to protect the environment, such as industry arrangements to limit pollution. _____________________

[11,860] Commission to afford opportunity for conference before determining application for authorisation 90A (1) Before determining an application for an authorization (other than an application for an authorization under subsection 88(9)), the Commission shall prepare a draft determination in relation to the application. (2) The Commission shall, by notice in writing sent to the applicant and to each other interested person, invite the applicant or other person to notify the Commission, within 14 days after a date fixed by the Commission being not earlier than the day on which the notice is sent, whether the applicant or other person wishes the Commission to hold a conference in relation to the draft determination. [page 767] (3) If: (a) the draft determination provides for the granting of the application unconditionally; and (b) no person has made a written submission to the Commission opposing the application; each notice by the Commission under subsection (2) shall inform the person to whom the notice is sent that the draft determination so provides. (4) If: (a) the draft determination does not provide for the granting of the application or provides for the granting of the application subject to conditions; or

the draft determination provides for the granting of the application (b) unconditionally but a written submission has, or written submissions have, been made to the Commission opposing the application; the Commission shall send with each notice under subsection (2) a copy of the draft determination and: (c) in a case to which paragraph (a) applies — a summary of the reasons why the Commission is not satisfied that the application should be granted or why it is not satisfied that the application should be granted unconditionally; or (d) in a case to which paragraph (b) applies — a summary of the reasons why it is satisfied that the application should be granted unconditionally. (5) If each of the persons to whom a notice was sent under subsection (2): (a) notifies the Commission within the period of 14 days mentioned in that subsection that he or she does not wish the Commission to hold a conference in relation to the draft determination; or (b) does not notify the Commission within that period that he or she wishes the Commission to hold such a conference; the Commission may make the determination at any time after the expiration of that period. [subs (5) am Act 88 of 1995 s 91]

(6) If any of the persons to whom a notice was sent under subsection (2) notifies the Commission in writing within the period of 14 days mentioned in that subsection that he or she wishes the Commission to hold a conference in relation to the draft determination, the Commission shall appoint a date (being not later than 30 days after the expiration of that period), time and place for the holding of the conference and give notice of the date, time and place so appointed to each of the persons to whom a notice was sent under subsection (2). [subs (6) am Act 88 of 1995 s 91]

(7) At the conference: (a) the Commission shall be represented by a member or members of the Commission (being a member or members who participated in the preparation of the draft determination) nominated by the

Chairperson; and (b) each person to whom a notice was sent under subsection (2) and any other interested person whose presence at the conference is considered by the Commission to be appropriate is entitled to attend and participate personally or, in the case of a body corporate, may be represented by a person who, or by persons each of whom, is a director, officer or employee of the body corporate; and [page 768] (c) a person participating in the conference in accordance with paragraph (a) or (b) is entitled to have another person or other persons present to assist him or her but a person who so assists another person at the conference is not entitled to participate in the discussion; and (d) [repealed] (e) no other person is entitled to be present. [subs (7) am Act 88 of 1995 ss 64, 91]

(8) A member of the Commission participating in the conference shall make such record of the discussions as is sufficient to set out the matters raised by the persons participating in the conference. (9) The member of the Commission who represents the Commission at the conference, or, if the Commission is represented by more than one member of the Commission, one of those members appointed by the Chairperson: (a) may exclude from the conference any person who uses insulting language at the conference, creates, or takes part in creating or continuing, a disturbance at the conference or repeatedly interrupts the conference; (b) may terminate the conference when he or she is of the opinion that a reasonable opportunity has been given for the expression of the views of persons participating in the conference (other than persons excluded from the conference under paragraph (a)); and (c) shall give a certificate certifying the day on which the first

notification under subsection (6) in relation to the draft determination was received by the Commission and the day on which the conference terminated; and any such certificate shall be received in all courts as prima facie evidence of the matters certified. [subs (9) am Act 88 of 1995 ss 64, 91; Act 61 of 2016 s 3 and Sch 3 item 13, opn 21 Oct 2016]

(10) A document purporting to be a certificate referred to in subsection (9) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given. (11) The Commission shall take account of all matters raised at the conference and may at any time after the termination of the conference make a determination in respect of the application. (12) For the purposes of this section, interested person means a person who has notified the Commission in writing that he or she, or a specified unincorporated association of which he or she is a member, claims to have an interest in the application, being an interest that, in the opinion of the Commission, is real and substantial. [subs (12) am Act 88 of 1995 s 91]

(13) Where the Commission is of the opinion that two or more applications for authorizations that are made by the same person, or by persons being bodies corporate that are related to each other, involve the same or substantially similar issues, the Commission may treat the applications as if they constitute a single application and may prepare one draft determination in relation to the applications and hold one conference in relation to that draft determination. [page 769] SECTION 90A GENERALLY [11,860.5] Overview This section outlines the procedure by which the commission is required to provide a draft determination to the parties for an application for authorisation and to allow an opportunity for the parties to hold a conference in relation to that draft determination.

When the commission sends out its notice of the draft determination to the interested parties, it is required to invite the recipients of the notice to request a conference to discuss the draft determination within 14 days of the date of the letter. If no conference is requested then the determination will take effect at the end of that period. If, however, one or more parties requests a conference then the commission is required to appoint a date for that conference being no later than 30 days after the expiration of the initial 14day period. The participants at the conference may include the representative of the commission and the persons who received notice of the determination, their assistants (who may not participate directly in the conference) and the minister. A written record of the meeting must be made by the member of the commission attending the conference, who is also empowered to exclude “troublemakers” from the conference. _____________________

[11,863] Commission may rely on consultations undertaken by the AEMC 90B (1) This section applies if: (a) an application under section 88, 91A, 91B or 91C is made in relation to the National Electricity Rules or a provision of the Rules; and (b) the AEMC has done the following: (i) published the Rules or the provision and invited people to make submissions to it on the Rules or the provision; (ii) specified the effect of subsection (2) when it published the Rules or the provision; (iii) considered any submissions that were received within the time limit specified by it when it published the Rules or the provision. [subs (1) am Act 60 of 2006 s 3 and Sch 2[15], opn 23 May 2005]

(2) In making a determination under section 90, 91A, 91B or 91C: (a) the Commission may rely on the process mentioned in paragraph (1)(b), instead of undertaking the process mentioned in section 90A, subsection 91A(2), 91B(2) or 91C(2) or (5); and

(b) the Commission may take into account: (i) any submissions mentioned in subparagraph (1)(b)(iii); and (ii) any submissions, in respect of the application, made by the AEMC; and (c) despite subsection 90(2), the Commission may disregard any submissions, in relation to the application, made by the Commonwealth, by a State, or by any other person (other than the AEMC). (3) In this section: National Electricity Rules means: (a) the National Electricity Rules, as in force from time to time, made under the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia; or (b) those Rules as they apply as a law of another State; or [page 770] (c) those Rules as they apply as a law of a Territory; or (d) those Rules as they apply as a law of the Commonwealth. [subs (3) subst Act 60 of 2006 s 3 and Sch 2[16], opn 23 May 2005] [s 90B insrt Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

[11,865]

Grant and variation of authorisations

91 (1) An authorization may be expressed to be in force for a period specified in the authorization and, if so expressed, remains in force for that period only. (1A) An authorisation, other than an authorisation deemed to have been granted under subsection 90(10) or (11), comes into force on the day specified for the purpose in the authorisation, not being a day earlier than, and an authorisation deemed to have been granted under subsection 90(10) or (11) comes into force on: (a) where paragraph (b) or (c) does not apply — the end of the period

in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the authorisation; (b) if such an application is made to the Tribunal and the application is not withdrawn — the day on which the Tribunal makes a determination on the review; (c) if such an application is made to the Tribunal and the application is withdrawn — the day on which the application is withdrawn. (1B) A minor variation of an authorization comes into force on a day specified by the Commission in the determination making the variation, not being a day earlier than: (a) if neither paragraph (b) nor (c) applies — the end of the period in which an application may be made to the Tribunal for a review of the determination of the Commission in respect of the application for the minor variation; or (b) if such an application is made to the Tribunal and the application is not withdrawn — the day on which the Tribunal makes a determination on the review; or (c) if such an application is made to the Tribunal and the application is withdrawn — the day on which the application is withdrawn. [subs (1B) insrt Act 101 of 1998 Sch 1.41]

(1C) If an authorization (the prior authorization) is revoked and another authorization is made in substitution for it, that other authorization comes into force on the day specified for the purpose in that other authorization, not being a day earlier than: (a) if neither paragraph (b) nor (c) applies — the end of the period in which an application may be made to the Tribunal for a review of an application, or the Commission’s proposal, for the revocation of the prior authorization and the substitution of that other authorization; or (b) if such an application is made to the Tribunal and the application is not withdrawn — the day on which the Tribunal makes a determination on the review; or (c) if such an application is made to the Tribunal and the application is

withdrawn — the day on which the application is withdrawn. [subs (1C) insrt Act 101 of 1998 Sch 1.41]

[page 771] (2) If the Commission considers that it is appropriate to do so: (a) for the purpose of enabling due consideration to be given to: (i) an application for an authorization; or (ii) an application for a minor variation of an authorization; or (iii) an application for the revocation of an authorization and the substitution of a new one; or (b) pending the expiration of the time allowed for the making of an application to the Tribunal for review of a determination by the Commission of an application referred to in paragraph (a) and, if such an application for a review is made, pending the making of a determination by the Tribunal on the review; or (c) for any other reason; the Commission may at any time: (d) in the case of an application for an authorization — grant an authorization that is expressed to be an interim authorization; and (e) in the case of an application for a minor variation of an authorization — grant an authorization that is expressed to be an interim authorization dealing only with the matter the subject of the application for a variation; and (f) in the case of an application for the revocation of an authorization and the substitution of another — suspend the operation of the authorization sought to be revoked and grant an authorization that is expressed to be an interim authorization in substitution for the authorization suspended. [subs (2) am Act 101 of 1998 Sch 1.42-4]

(2AA) An authorization granted under paragraph 91(2)(d), (e) or (f) and expressed to be an interim authorization comes into force on such a date, not being a date before the grant of the interim authorization, as is specified by the Commission in the interim authorization.

[subs (2AA) insrt Act 101 of 1998 Sch 1.45]

(2AB) The Commission may, at any time, revoke an authorization that is expressed to be an interim authorization and, where that interim authorization is in substitution for an authorization the operation of which has been suspended, the revocation of the interim authorization has the effect of reviving the operation of the suspended authorization. [subs (2AB) insrt Act 101 of 1998 Sch 1.45]

(2A) Subsections 90(4) to (9), inclusive, do not apply in relation to an authorization that is expressed to be an interim authorization. (3) An authorization may be expressed to be subject to such conditions as are specified in the authorization. *(4) [subs (4) rep Act 101 of 1998 Sch 1.46] SECTION 91 GENERALLY [11,865.5] Overview Section 91(1) provides that an authorisation may be expressed to be in force for a certain period only. The authorisation, other than an authorisation which is deemed to have come into force under s 90(10) or (11), shall come into force under s 91(2) on the day specified for the authorisation but not earlier than: *Editor’s note Item 47 of Schedule 1 of Act 101 of 1998 provides as follows: Saving provision If, before the commencement of item 46: (a) the Commission had given notice under paragraph 91(4)(a) of the Trade Practices Act 1974 in relation to the authorization; but (b) the Commission had not made a determination under paragraph 91(4)(b) of that Act; subsection 91(4) of that Act continues in force as if the amendments of that Act made by items 27 to 56 had not been made.

[page 772] • • •

the end of the period in which an application can be made to the tribunal for a review of the commission’s determination; if an application is made for a review of the commission’s determination, the day on which the tribunal makes a decision; or if an application is made for a review of the commission’s

decision and then withdrawn, the date of the withdrawal of the application for review. [11,865.6] Commencement of authorisation Under s 91(1A) an authorisation commences, among other times, on the day on which the tribunal makes a determination on a review: see Re Qantas Airways Ltd (No 2) [2006] ACompT 1 per Goldberg J, Mr GF Latta and Professor DK Round. [11,865.7] Minor variations of an authorisation Section 91(1B) was inserted by the Gas Pipelines Access (Commonwealth) Act 1998. It provides that a minor variation of an authorisation comes into force on a day specified by the Commission in the determination. The expression “minor variation” is defined in s 87D(1) to mean a single variation that does not involve a material change in the effect of the authorisation. [11,865.8] Prior authorisations Section 91(1C) was inserted by the Gas Pipelines Access (Commonwealth) Act 1998. The section applies to an authorisation that is revoked and another authorisation made in substitution for it. [11,865.10] Interim authorisation Section 91(2) provides the Commission with the power to grant an interim authorisation if it considers it appropriate to do so: • for the purpose of enabling due consideration to be given to an application for authorisation; • pending the expiry of the time within which an application can be lodged for a review of the Commission’s determination by the Tribunal; or • for any other reason. [11,865.15] Conditions of authorisation Section 91(3) provides that an authorisation may be subject to certain conditions. However, there is not an unfettered discretion on the commission (or the tribunal on review) to impose whatever conditions it considers appropriate. The power to impose conditions is constrained, by the subject matter, scope and purpose of the Act: Re Application by Medicines Australia Inc [2007] ACompT 4; BC200704950 at [130] per French J, Mr GF Latta and Professor C Walsh. The nature and function of the conditions which can be specified in an

authorisation pursuant to s 91(3) are to be discerned by reference first to the meaning of the word “condition” and its immediate statutory context. The relevant ordinary meaning of “condition” is “something demanded or required as a prerequisite to the grant or performance of something else; a provision, a stipulation”: Re Application by Medicines Australia Inc, above, at [130] per French J, Mr GF Latta and Professor C Walsh. Where a proposed contract, arrangement or understanding, covenant or conduct is an industry code of ethics that creates a system of self-regulation in the public interest, it is not for the commission or the tribunal to use the conditioning power and its discretion in order to construct and impose its ideal or preferred system of self-regulation. The imposition of a condition designed to enhance or increase the likelihood of benefits said to flow from a voluntary code is not, however, redrafting the code. Re Application by Medicines Australia Inc, above, at [134] per French J, Mr GF Latta and Professor C Walsh. [page 773] [11,865.20] Revocation of authorisation The commission has power under s 91(4) to revoke an authorisation at any time upon giving notice to the party to which authorisation was granted and other interested persons, if the commission is of the opinion that: • the authorisation was granted on the basis of information or evidence that was false or misleading in a material particular; • that a condition to which the authorisation was expressed to be subject has not been complied with; or • there has been a material change of circumstances since the authorisation was granted. However, prior to revoking an authorisation, the commission is required to provide the opportunity to the interested parties to make submissions as to why the authorisation should not be revoked. _____________________

[11,870]

Minor variations of authorizations

91A (1) A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a minor variation of the authorization. (2) On receipt of an application, the Commission must, if it is satisfied that the variation sought in the application is a minor variation, by notice in writing given to any persons who appear to the Commission to be interested: (a) indicate the nature of the variation applied for; and (b) invite submissions in respect of the variation within a period specified by the Commission. Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B. (3) After considering the application and any submissions received within the period specified, the Commission may make a determination in writing varying the authorization or dismissing the application. (4) The Commission must not make a determination varying an authorization to which, if it were a new authorization, subsection 90(5A), (5B), (5D), (6) or (7) would apply, unless the Commission is satisfied that, in all the circumstances, the variation would not result, or would be likely not to result, in a reduction in the extent to which the benefit to the public of the authorization outweighs any detriment to the public caused by the authorization. [subs (4) am Act 59 of 2009 s 3 and Sch 1[67], opn 24 July 2009; Act 185 of 2011 s 3 and Sch 1[7], opn 6 June 2012]

(5) The Commission must not make a determination varying an authorization to which, if it were a new authorization, subsection 90(5C), (8), (8A), (8B) or (9) would apply, unless the Commission is satisfied that, in all the circumstances, the variation would not result, or would be likely not to result, in a reduction in the benefit to the public that arose from the original authorization. [subs (5) am Act 131 of 2006 s 3 and Sch6[12], opn 1 Jan 2007; Act 185 of 2011 s 3 and Sch 1[8], opn 6 June 2012]

(6) Nothing in this section prevents a person from applying for 2 or more variations in the same application.

(7) If: (a) a person applies for 2 or more variations: (i) at the same time; or [page 774] (ii) in such close succession that the variations could conveniently be dealt with by the Commission at the same time; and (b) the Commission is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the authorization; the Commission may deal with all of those variations together as if they were a single minor variation. (8) An application for a minor variation may be withdrawn by notice in writing to the Commission at any time. [s 91A insrt Act 101 of 1998 Sch 1.48] SECTION 91A GENERALLY [11,870.5] Overview Section 91A was inserted by the Gas Pipelines Access (Commonwealth) Act 1998. The section permits a person to apply to the Commission for a minor variation of an authorisation. The commission may grant a minor variation of an authorisation after considering the application and any submissions received without the need for a draft determination or a conference. It therefore provides a speedier resolution of an application for a minor variation of an authorisation. Section 91A(6) also allows a person to apply for two or more variations in the same application. _____________________

[11,875]

Revocation of an authorization

91B (1) A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a revocation of the authorization.

(2) On receipt of such an application, the Commission must, by notice in writing given to any persons who appear to the Commission to be interested: (a) indicate that the revocation of the authorization has been applied for; and (b) indicate the basis on which the revocation has been applied for; and (c) invite submissions in respect of the revocation within a period specified by the Commission. Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B. (3) If, at any time after granting an authorization, it appears to the Commission that: (a) the authorization was granted on the basis of evidence or information that was false or misleading in a material particular; or (b) a condition to which the authorization was expressed to be subject has not been complied with; or (c) there has been a material change of circumstances since the authorization was granted; the Commission may, by notice in writing given to any persons who appear to the Commission to be interested: (d) inform those persons that it is considering the revocation of the authorization; and (e) indicate the basis on which the revocation is being proposed; and (f) invite submissions in respect of the revocation within a period specified by the Commission. [page 775] (4) After considering any submissions invited under subsection (2) or (3) that are received within the period specified by the Commission under that subsection, the Commission may make a determination in writing: (a) revoking the authorization; or (b) deciding not to revoke the authorization. (5) If an objection to the revocation is included in any submission

(a) that was invited under subsection (2) or (3); and (b) that is received within the period specified by the Commission under that subsection; the Commission must not make a determination revoking the authorization unless the Commission is satisfied that it would, if the authorization had not already been granted, be prevented under subsection 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) or (9) from making a determination granting the authorization in respect of which the revocation is sought. [subs (5) am Act 131 of 2006 s 3 and Sch 6[13], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[68], opn 24 July 2009; Act 185 of 2011 s 3 and Sch 1[9], opn 6 June 2012]

(6) An application for revocation may be withdrawn by notice in writing to the Commission at any time. (7) The Commission may disregard any objection that, in its opinion, is either vexatious or frivolous. [s 91B insrt Act 101 of 1998 Sch 1.48]

SECTION 91B GENERALLY [11,875.5] Overview Section 91B was inserted by the Gas Pipelines Access (Commonwealth) Act 1998 and amended by the Trade Practices Amendment Act (No 1) 2006. The section permits a person to apply for a revocation of an authorisation. _____________________

[11,880] Revocation of an authorization and substitution of a replacement 91C (1) A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a revocation of the authorization and the substitution of a new authorization for the one revoked. (2) On receipt of such an application, the Commission must, by notice in writing given to any persons who appear to the Commission to be interested: (a) indicate that the revocation of the authorization, and the substitution of another authorization for it, has been applied for; and

(b) indicate the basis upon which the revocation and substitution has been applied for and the nature of the substituted authorization so applied for; and (c) invite submissions in respect of the revocation and substitution within a period specified by the Commission. Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B. (3) If, at any time after granting an authorization, it appears to the Commission that: (a) the authorization was granted on the basis of evidence or information that was false or misleading in a material particular; or [page 776] (b) a condition to which the authorization was expressed to be subject has not been complied with; or (c) there has been a material change of circumstances since the authorization was granted; the Commission may, by notice in writing given to any persons who appear to be interested: (d) inform those persons that it is considering the revocation of the authorization and the substitution of a new authorization; and (e) indicate the basis on which the revocation and substitution is being proposed and the nature of the substituted authorization proposed; and (f) invite submissions in respect of the proposed action within a period specified by the Commission. (4) After considering any submissions invited under subsection (2) or (3) in relation to an authorization that are received within the period specified by the Commission under that subsection and after compliance with the requirements of section 90A in accordance with subsection (5), the Commission may make a determination in writing: (a) revoking the authorization and granting another such authorization that it considers appropriate, in substitution for it; or

(b) deciding not to revoke the authorization. (5) Before making a determination under subsection (4) in relation to an application, or a proposal, for the revocation of an authorization and the substitution of another, the Commission must comply with the requirements of section 90A. Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B. (6) For the purposes of complying with section 90A in accordance with subsection (5), section 90A has effect: (a) as if the reference in subsection (1) to an application for an authorization (other than an application for an authorization under subsection 88(9)) were a reference to an application, or to a proposal, for the revocation of an authorization (other than an authorization granted on an application granted under subsection 88(9)) and the substitution of another authorization; and (b) as if references in other provisions of that section to an application, or to an application for an authorization, were references either to an application, or to a proposal, for the revocation of an authorization and the substitution of another; and (c) as if subsection 90A(2) had provided, in its operation in relation to a proposal for the revocation of an authorization and the substitution of another, that: (i) the reference to the applicant and to each other interested person were a reference only to each interested person; and (ii) each reference to the applicant or other person were a reference only to the other person. (7) The Commission must not make a determination revoking an authorization and substituting another authorization unless the Commission is satisfied that it would not be prevented under subsection 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) or (9) from making a determination granting the substituted authorization, if it were a new authorization sought under section 88. [subs (7) am Act 131 of 2006 s 3 and Sch 6[14], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[69], opn 24 July 2009; Act 185 of 2011 s 3 and Sch 1[10], opn 6 June 2012]

[page 777] (8) An application for the revocation of an authorization and the substitution of another authorization may be withdrawn by notice in writing to the Commission at any time. [s 91C insrt Act 101 of 1998 Sch 1.48]

SECTION 91C GENERALLY [11,880.5] Overview Section 91C was inserted by the Gas Pipelines Access (Commonwealth) Act 1998 and amended by the Trade Practices Amendment Act (No 1) 2006. The section permits a person to apply for a revocation of an authorisation and the substitution of a new authorisation for the one revoked. _____________________ DIVISION 2 — NOTIFICATIONS Subdivision A — Exclusive dealing and private disclosure of pricing information [Subdiv A am Act 131 of 2006 s 3 and Sch 3[5], opn 1 Jan 2007; Act 185 of 2011 s 3 and Sch 1[11], opn 6 June 2012]

[11,890] Clearance of contracts, arrangements or understandings in restraint of trade 92

[s 92 rep Act 81 of 1977 s 60]

[11,895] Notification of exclusive dealing or private disclosure of pricing information 93 *(1) Subject to subsection (2), a corporation that engages, or proposes to engage, in conduct of a kind referred to in section 44ZZW or subsection 47(2), (3), (4), (5), (6), (7), (8) or (9) may give to the Commission a notice setting out particulars of the conduct or proposed conduct.

[subs (1) am Act 88 of 1995 s 18; Act 131 of 2006 s 3 and Sch 3[6], opn 1 Jan 2007; Act 185 of 2011 s 3 and Sch 1[12], opn 6 June 2012]

(1A) To be valid, a notice under subsection (1) must: (a) be in a form prescribed by the regulations and contain the information required by the form; and (b) be accompanied by any other information or documents prescribed by the regulations; and (c) be accompanied by the fee (if any) prescribed by the regulations. [subs (1A) insrt Act 131 of 2006 s 3 and Sch 3[7], opn 1 Jan 2007]

*Editor’s note: Item 29 of Sch 3 of Act 131 of 2006 provides as follows: Saving (1) Regulations in force for the purposes of subsection 93(1) of the Trade Practices Act 1974 immediately before the commencement of this Schedule have effect, after that commencement, as if they had been made for the purposes of subsection 93(1A) of that Act after that commencement. (2) A notice given in accordance with subsection 93(1) of the Trade Practices Act 1974 before the commencement of this Schedule has effect, after that commencement, as if it had been given in accordance with subsection 93(1A) of that Act after that commencement.

[page 778] (2) A corporation may not give a notice for conduct or proposed conduct if: (a) the corporation applied for an authorisation for the conduct or proposed conduct; and (b) the Commission or the Trade Practices Commission made a determination dismissing the application; and (c) either: (i) the Tribunal or the Trade Practices Tribunal made a determination on an application for a review of a determination described in paragraph (b); or (ii) the time for making such an application for review has ended without the making of an application. [subs (2) subst Act 88 of 1995 s 65; am Act 131 of 2006 s 3 and Sch 7[34], opn 1 Jan 2007]

(2A) In subsection (2):

Trade Practices Commission means the Trade Practices Commission established by section 6A of this Act as in force immediately before this subsection commenced. Trade Practices Tribunal means the Trade Practices Tribunal continued in existence by section 30 of this Act as in force immediately before this subsection commenced. [subs (2A) insrt Act 88 of 1995 s 65]

(2B) If the Commission receives a purported notice under subsection (1) that it considers is not a valid notice, it must, within 5 business days of receiving the purported notice, give the person who made the purported notice a written notice: (a) stating that the person has not given a valid notice; and (b) giving reasons why the purported notice does not comply with this Division. [subs (2B) insrt Act 131 of 2006 s 3 and Sch 3[8], opn 1 Jan 2007]

(2C) Definition In subsection (2B): business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory. [subs (2C) insrt Act 131 of 2006 s 3 and Sch 3[8], opn 1 Jan 2007]

(3) If the Commission is satisfied that the engaging by a corporation in conduct or proposed conduct of a kind described in subsection 47(2), (3), (4) or (5) or paragraph 47(8)(a) or (b) or (9)(a), (b) or (c) and referred to in a notice given by the corporation to the Commission under subsection (1) has or would have the purpose or has or is likely to have, or would have or be likely to have, the effect of substantially lessening competition within the meaning of section 47 and that in all the circumstances: (a) the conduct has not resulted or is not likely to result, or the proposed conduct would not result or be likely to result, in a benefit to the public; or (b) any benefit to the public that has resulted or is likely to result from the conduct, or would result or be likely to result from the proposed conduct, would not outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result from the conduct or would result or be likely to result from the proposed conduct;

the Commission may at any time give notice in writing to the corporation stating that the Commission is so satisfied and accompanied by a statement setting out its reasons for being so satisfied. [subs (3) am Act 88 of 1995 s 18]

[page 779] (3A) If: (a) a corporation has notified the Commission under subsection (1) of conduct or proposed conduct described in section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d); and (b) the Commission is satisfied that the likely benefit to the public from the conduct or proposed conduct will not outweigh the likely detriment to the public from the conduct or proposed conduct; the Commission may give the corporation a written notice stating that the Commission is so satisfied. [subs (3A) insrt Act 88 of 1995 s 18; am Act 185 of 2011 s 3 and Sch 1[13], opn 6 June 2012]

(3B) The Commission must also give the corporation a written statement of its reasons for giving notice when the Commission gives the notice. [subs (3B) insrt Act 88 of 1995 s 18] (4) Before giving a notice under subsection (3) or (3A) the Commission shall comply with the requirements of section 93A. [subs (4) am Act 88 of 1995 s 18]

(5) In satisfying itself for the purposes of subsection (3) or (3A) in relation to any conduct or proposed conduct referred to in a notice given to the Commission by a corporation under subsection (1), the Commission shall seek such relevant information as it considers reasonable and appropriate and may make a decision on the basis of any information so obtained and any other information furnished to it by the corporation or any other person or otherwise in its possession. [subs (5) am Act 88 of 1995 s 18]

(6) A corporation that has given a notice to the Commission under this section in relation to any conduct or proposed conduct may, at any time before the Commission has given to the corporation a notice under

subsection (3) or (3A) in relation to the conduct or proposed conduct, by notice in writing to the Commission, withdraw the first-mentioned notice. [subs (6) am Act 88 of 1995 s 18]

(7) Where a corporation has given notice to the Commission under subsection (1): (a) in the case of a notice given before the expiration of the period of 3 months commencing on the date of commencement of the Trade Practices Amendment Act 1977, the engaging by the corporation in the conduct referred to in the notice on or after that date and before the giving of the notice shall not be taken, for the purposes of section 47, to have had the effect of substantially lessening competition within the meaning of that section; and (b) in any case, the engaging by the corporation in the conduct referred to in the notice after the giving of the notice shall not be taken, for the purposes of section 47, to have the purpose, or to have or be likely to have the effect, of substantially lessening competition within the meaning of that section unless: (i) the Commission has given notice to the corporation under subsection (3) of this section in relation to the conduct and the conduct takes place more than 30 days (or such longer period as the Commission by writing permits) after the day on which the Commission gave the notice; or (ii) the notice has been, or is deemed to have been, withdrawn and the conduct takes place after the day on which the notice was, or is deemed to have been, withdrawn. [page 780] (7A) A notice under subsection (1) describing conduct or proposed conduct referred to in section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) comes into force: (a) at the end of a prescribed period that started on the day when the corporation gave the Commission the notice; or (b) if the Commission gives notice to the corporation under subsection

93A(2) during that period — when the Commission decides not to give the corporation a notice under subsection (3A) of this section. [subs (7A) insrt Act 88 of 1995 s 18; am Act 185 of 2011 s 3 and Sch 1[14], opn 6 June 2012]

(7B) A notice under subsection (1) describing conduct or proposed conduct referred to in section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) does not come into force: (a) if the notice is withdrawn, or deemed to be withdrawn, before it would come into force under subsection (7A); or (b) if the Commission: (i) gives notice to the corporation under subsection 93A(2) during the period described in paragraph (7A)(a); and (ii) gives notice to the corporation under subsection (3A). [subs (7B) insrt Act 88 of 1995 s 18; am Act 185 of 2011 s 3 and Sch 1[14], opn 6 June 2012]

(7C) A notice under subsection (1) describing conduct referred to in section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) ceases to be in force: (a) when the notice is withdrawn or deemed to be withdrawn; or (b) if the Commission gives the corporation a notice under subsection (3A) — on the 31st day after the Commission gave the notice under subsection (3A) or on a later day specified in writing by the Commission. [subs (7C) insrt Act 88 of 1995 s 18; am Act 185 of 2011 s 3 and Sch 1[14], opn 6 June 2012]

(8) Where: (a) a corporation gives a notice to the Commission under subsection (1) in relation to any conduct or proposed conduct; (b) before or after the notice is given the corporation makes an application to the Commission for an authorization to engage in that conduct; (c) the Commission: (i) makes a determination dismissing the application; or (ii) makes a determination granting an authorization in respect of the application; and (d) the Tribunal makes a determination on an application for a review of the determination of the Commission or the time for making such an application for review expires without an application for

review having been made; the notice shall thereupon be deemed to be withdrawn. (9) If an application is made to the Tribunal for a review of the giving of a notice by the Commission under subsection (3) or (3A), a reference in subsection (7) or paragraph (7C)(b) to the day on which the Commission gave the notice shall be read as a reference to: (a) if the application is withdrawn — the day on which the application is withdrawn; [page 781] (b) if the Tribunal, on the application of the Commission or of any other person who the Tribunal is satisfied has an interest in the subject matter of the review, declares that the application for the review is not being proceeded with by the applicant with due diligence — the day on which the Tribunal makes the declaration; or (c) in any other case — the day on which the Tribunal makes a determination on the review. [subs (9) am Act 88 of 1995 s 18]

(10) Where: (a) a corporation has given a notice to the Commission under subsection (1) in relation to conduct or proposed conduct and the Commission has given notice to the corporation in writing under subsection (3) or (3A) in relation to the conduct or the proposed conduct; or (b) a notice given by a corporation to the Commission under subsection (1) in relation to conduct or proposed conduct is withdrawn or deemed to be withdrawn; the corporation is not entitled to give a further notice under subsection (1) to the Commission in relation to the same conduct or proposed conduct or in relation to conduct or proposed conduct to the like effect. [subs (10) am Act 88 of 1995 s 18]

SECTION 93 GENERALLY [11,895.5] Overview This section of the Act outlines the mechanism by which corporations can notify the commission of conduct which amounts to exclusive dealing. Once notification is lodged the conduct is deemed not to have the effect of substantially lessening competition and the corporation is permitted to engage in that conduct until otherwise notified by the commission. [11,895.10] Notification of third line forcing Third line forcing is the practice where a supplier supplies goods or services to a purchaser on the condition that the purchaser acquire goods or services from another person. The practice is prohibited by s 47 regardless of the impact that it may have on competition in a market. The Competition Policy Reform Act 1995 introduced a separate notification procedure for third line forcing. It inserted s 93(7A), (7B) and (7C) into the Act. The statutory scheme envisages “three situations in which statutory protection for third line forcing may be postponed, not come into force at all or, (having come into force), may cease to be in force”: Hospital Benefit Fund of Western Australia Inc v Australian Competition and Consumer Commission (1997) ATPR ¶41-569 at 51,034–5. _____________________

Subdivision B — Collective Bargaining [Subdiv B insrt Act 131 of 2006 s 3 and Sch 3[9], opn 1 Jan 2007]

INTRODUCTION TO SUBDIVISION B [11,895.200] Overview This Subdivision was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. Collective bargaining runs the risk of contravening the price-fixing and exclusionary provisions of s 45. Therefore, parties contemplating collective bargaining arrangements would invariably consider having the conduct protected through an authorisation.

[page 782] Collective bargaining arrangements may be authorised by the commission. Small businesses criticised the process as time-consuming and expensive. The amendment permits collective bargaining arrangements by small business to instead be notified to the commission, through a collective bargaining notice. The notification process will apply only to transactions not exceeding $3 million within a 12-month period. A collective bargaining notice comes into effect 14 days after lodgement. It would cease to have effect if the commission issues an objection notice or 3 years after the collective bargaining notice was given. The commission is entitled to issue an objection notice if the public benefit of the collective bargaining arrangement does not outweigh the anti-competitive detriment. A collective bargaining notice in effect provides protection from the prohibitions on price-fixing and exclusionary provisions under s 45. The amendment is intended to balance the power between small businesses and those that have substantial market power by providing a process that is quicker, simpler, cost-effective and less stringent than authorisation — although authorisation continues to be available. The Dawson Committee suggested that the combined effect of the introduction of a notification process for collective bargaining by small business and of amending the authorisation process will be to improve the accessibility and effectiveness of the Act, particularly for small business. _____________________

[11,895AA]

Definitions

93AA In this Subdivision: collective bargaining notice means a notice under subsection 93AB(1A) or (1). [def am Act 59 of 2009 s 3 and Sch 1[70], opn 24 July 2009]

conference notice means a notice under subsection 93A(2). contract means a contract, arrangement or understanding. objection notice means a notice under subsection 93AC(1) or (2).

SECTION 93AA GENERALLY [11,895AA.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,895.200]. _____________________

[11,895AB]

Notification of collective bargaining

93AB (1A) Notice to Commission — cartel provisions A corporation that: (a) has made, or proposes to make, a contract (the initial contract) that contains a cartel provision that: (i) has the purpose; or (ii) has or is likely to have the effect; mentioned in subsection 44ZZRD(2); or (b) has made, or proposes to make, a contract (the initial contract) that contains a cartel provision that has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c); or (c) proposes to give effect to a provision of a contract (the initial contract) where the provision is a cartel provision that: (i) has the purpose; or (ii) has or is likely to have the effect; mentioned in subsection 44ZZRD(2); or [page 783] (d) proposes to give effect to a provision of a contract (the initial contract) where the provision is a cartel provision that has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c); may give the Commission a notice (the collective bargaining notice) setting out particulars of the contract or proposed contract, but only if the 3 requirements set out in subsections (2), (3) and (4) are satisfied. Note 1: Subsection (6) deals with the form etc. of a collective bargaining notice.

Note 2: Section 93AD sets out when a collective bargaining notice comes into force. [subs (1A) insrt Act 59 of 2009 s 3 and Sch 1[71], opn 24 July 2009] (1) Notice to Commission — per se and competition provisions A corporation that: (a) has made, or proposes to make, a contract (the initial contract) containing a provision of the kind referred to in paragraph 45(2) (a); or (b) proposes to give effect to a provision of a contract (the initial contract) where the provision is of the kind referred to in paragraph 45(2)(b); may give the Commission a notice (the collective bargaining notice) setting out particulars of the contract or proposed contract, but only if the 3 requirements set out in subsections (2), (3) and (4) are satisfied. Note 1: Subsection (6) deals with the form etc of a collective bargaining notice. Note 2: Section 93AD sets out when a collective bargaining notice comes into force. [subs (1) am Act 59 of 2009 s 3 and Sch 1[72], opn 24 July 2009]

(2) First — making of initial contract First, the corporation must have made, or propose to make, the initial contract with 1 or more persons (the contracting parties) about: (a) the supply of particular goods or services to; or (b) the acquisition of particular goods or services from; another person (the target) by the corporation and the contracting parties. (3) Second — making of contracts with target Second, the corporation must reasonably expect that it will make 1 or more contracts with the target about: (a) the supply of 1 or more of those goods or services to; or (b) the acquisition of 1 or more of those goods or services from; the target by the corporation. (4) Third — price of contracts with target Third, the corporation must reasonably expect that: (a) in the case where the corporation reasonably expects to make only 1 contract with the target — the price for the supply or acquisition

of those goods or services under that contract; or (b) in the case where the corporation reasonably expects to make 2 or more contracts with the target — the sum of the prices for the supply or acquisition of those goods or services under those contracts; will not exceed $3,000,000, or such other amount as is prescribed by the regulations, in any 12 month period. The regulations may prescribe different amounts in relation to different industries. [page 784] (5) Timing of reasonable expectation The corporation must have the reasonable expectation referred to in subsections (3) and (4): (a) at the time of giving the collective bargaining notice; and (b) if the initial contract has been made — at the time it was made. (6) Form of notice etc To be valid, a collective bargaining notice must: (a) be in a form prescribed by the regulations and contain the information required by the form; and (b) be accompanied by any other information or documents prescribed by the regulations; and (c) be accompanied by the fee (if any) prescribed by the regulations. (7) Notice given by, or on behalf of, contracting persons A collective bargaining notice may be expressed to be given on behalf of one or more of the contracting parties, but only if those parties could have given the notice on their own behalf. If the notice is so expressed, then it is also taken to have been given by those parties. (8) When a notice may not be given A corporation may not give a collective bargaining notice in relation to a contract or proposed contract if: (a) it has applied for an authorisation in relation to the contract or proposed contract; and (b) the Commission has made a determination dismissing the application; and (c) either: (i) the Tribunal has made a determination on an application for

a review of the Commission’s determination; or (ii) the time for making such an application for review has ended without the making of an application. (9) Notice is invalid if given by union etc on behalf of the corporation A notice given by a corporation under subsection (1) is not a valid collective bargaining notice if it is given, on behalf of the corporation, by: (a) a trade union; or (b) an officer of a trade union; or (c) a person acting on the direction of a trade union. (10) Invalid collective bargaining notice If the Commission receives a purported collective bargaining notice that it considers is not a valid collective bargaining notice, it must, within 5 business days of receiving the purported notice, give the person who made the purported notice a written notice: (a) stating that the person has not given a valid collective bargaining notice; and (b) giving reasons why the purported collective bargaining notice does not comply with this Division. (10A) The Commission must, as soon as practicable after receiving a valid collective bargaining notice, give a copy of the notice to the target. (10B) Purpose/effect of a provision Subsections 44ZZRD(6), (7), (8) and (10) apply for the purposes of paragraphs (1A)(a) and (c) in a corresponding way to the way in which they apply for the purposes of Division 1 of Part IV. [subs (10B) insrt Act 59 of 2009 s 3 and Sch 1[73], opn 24 July 2009]

(10C) Purpose of a provision Subsections 44ZZRD(7), (9) and (11) apply for the purposes of paragraphs (1A)(b) and (d) in a corresponding way to the way in which they apply for the purposes of Division 1 of Part IV. [subs (10C) insrt Act 59 of 2009 s 3 and Sch 1[73], opn 24 July 2009]

[page 785] (11) Definition In this section: business day means a day that is not a Saturday, a Sunday or a public

holiday in the Australian Capital Territory. trade union means the following: (a) an association of employees that is registered as an organisation, or recognised, under the Fair Work (Registered Organisations) Act 2009; (b) an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory; (c) an association of employees a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment. [def subst Act 54 of 2009 s 3 and Sch 18[28], opn 1 July 2009]

SECTION 93AB GENERALLY [11,895AB.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,895.200]. The section was amended by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act. See [10,690ZZRA.5]. The section permits a corporation to give the commission a collective bargaining notice for conduct proposed under s 45 or in relation to a cartel provision under s 44ZZRD. _____________________

[11,895AC]

Commission’s objection notice

93AC (1) Commission’s objection notice — cartel provisions or per se provisions If a corporation gives the Commission: (aa) a collective bargaining notice under subsection 93AB(1A) in relation to a contract, or proposed contract, containing a cartel provision of the kind referred to in that subsection; or (a) a collective bargaining notice under subsection 93AB(1) in relation to a contract, or proposed contract, containing a provision of the kind referred to in subparagraph 45(2)(a)(i) or (b)(i) (exclusionary provisions); (b) [repealed]

then the Commission may, if it is satisfied that any benefit to the public that has resulted or is likely to result or would result or be likely to result from the provision does not or would not outweigh the detriment to the public that has resulted or is likely to result or would result or be likely to result from the provision, give the corporation a written notice (the objection notice) stating that it is so satisfied. [subs (1) am Act 59 of 2009 s 3 and Sch 1[74]–[78], opn 24 July 2009]

(2) Commission’s objection notice — competition provisions If a corporation gives the Commission a collective bargaining notice under subsection 93AB(1) in relation to a contract, or proposed contract, containing a provision of the kind referred to in subparagraph 45(2)(a)(ii) or (b)(ii), then the Commission may, if it is satisfied that: (a) the provision has or would have the purpose, or has or is likely to have or would have or be likely to have the effect, of substantially lessening competition (within the meaning of section 45); and (b) in all the circumstances, either: (i) the provision has not resulted or is not likely to result, or would not result or be likely to result, in a benefit to the public; or [page 786] (ii) any benefit to the public that has resulted or is likely to result, or would result or be likely to result, from the provision does not or would not outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result, or would result or be likely to result, from the provision; give the corporation a written notice (the objection notice) stating that it is so satisfied. [subs (2) am Act 59 of 2009 s 3 and Sch 1[79], [80], opn 24 July 2009]

(3) Reasons for objection notice The Commission must, at the time it gives a corporation an objection notice, give the corporation a written statement of its reasons for giving the notice.

(4) Conference before objection notice The Commission must comply with section 93A (conferences about draft objection notices) before giving an objection notice. (5) Commission to seek additional information For the purposes of deciding whether or not to give an objection notice: (a) the Commission must seek such relevant information as it considers reasonable and appropriate; and (b) the Commission may make a decision on the basis of: (i) any information so obtained; or (ii) any other information given to it by the corporation or any other person; or (iii) any other information in its possession. (6) Definition [subs (6) rep Act 59 of 2009 s 3 and Sch 1[81], opn 24 July 2009]

SECTION 93AC GENERALLY [11,895AC.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,895.200]. The section permits the commission to give a corporation an objection notice if it is satisfied that the benefit to the public from the provision (for which a collective bargaining notice was lodged) does not outweigh the detriment to the public from the provision. _____________________

[11,895AD] When collective bargaining notice comes into force and ceases to be in force 93AD (1) When collective bargaining notice comes into force A collective bargaining notice comes into force: (a) at the end of the period which is 14 days or such longer period as is prescribed by the regulations, starting on the day the corporation gave the Commission the notice; or (b) if the Commission gives the corporation a conference notice during the period referred to in paragraph (a) and then decides not to give

the corporation an objection notice — when the Commission makes that decision. (2) However, a collective bargaining notice does not come into force if: (a) it is withdrawn, or taken to be withdrawn, before it would come into force under subsection (1); or [page 787] (b) the Commission gives the corporation a conference notice during the period referred to in paragraph (1)(a) and then gives the corporation an objection notice. Note: Section 93AE deals with the withdrawal of a collective bargaining notice. (3) When collective bargaining notice ceases to be in force A collective bargaining notice ceases to be in force at the earliest of the following times: (a) when it is withdrawn or taken to be withdrawn; (b) if the Commission gives the corporation an objection notice — on the 31st day after the relevant day or on a later day specified in writing by the Commission; (c) at the end of the period of 3 years beginning on the day the corporation gave the collective bargaining notice. Note: Section 93AE deals with the withdrawal of a collective bargaining notice. (4) For the purposes of subsection (3), the relevant day is worked out in accordance with this table: Relevant day In this situation: 1 If an application is not made to the Tribunal for a review of the Commission’s decision to give the objection

the relevant day is: the day the Commission gave the notice.

2

notice If an application is made to the Tribunal for a review of the Commission’s decision to give the objection notice

(a) if the review application is withdrawn — the day of the withdrawal; or (b) if, on the application of the Commission or any other person who the Tribunal is satisfied has an interest in the subject matter of the review, the Tribunal declares that the applicant is not proceeding with the review application with due diligence — the day of the declaration; or (c) in any other case — the day on which the Tribunal makes a determination on the review.

SECTION 93AD GENERALLY [11,895AD.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,895.200]. The section specifies when a collective bargaining notice applies and when it ceases to apply. _____________________

[11,895AE] notice

Withdrawal of collective bargaining

93AE (1) Withdrawal by corporation A corporation may, by written notice given to the Commission, withdraw a collective bargaining notice it has given the Commission. (2) The corporation may do so at any time before the Commission gives it an objection notice in relation to the collective bargaining notice. [page 788]

(3) Deemed withdrawal If: (a) a corporation gives the Commission a collective bargaining notice in relation to a contract or proposed contract; and (b) before or after the corporation gave the notice, it applies to the Commission for an authorisation for that contract or proposed contract; and (c) the Commission makes a determination either dismissing the application or granting an authorisation in respect of the application; and (d) either: (i) the Tribunal makes a determination on an application for a review of the Commission’s determination; or (ii) the time for making such an application for review ends without the making of an application; then the collective bargaining notice is taken to be withdrawn. SECTION 93AE GENERALLY [11,895AE.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,895.200]. The section permits a corporation to withdraw a collective bargaining notice before the commission issues an objection notice. _____________________

[11,895AEA] Only 1 collective bargaining notice under subsection 93AB(1A) may be given 93AEA If: (a) a corporation gives the Commission a collective bargaining notice under subsection 93AB(1A) in relation to a contract or proposed contract; and (b) either: (i) the Commission gives the corporation an objection notice in relation to the contract or proposed contract; or (ii) the collective bargaining notice is taken to be withdrawn

under subsection 93AE(3); then a further collective bargaining notice under subsection 93AB(1A) cannot be given by any person in relation to the same contract or proposed contract or in relation to a contract or proposed contract to the like effect. [s 93AEA insrt Act 59 of 2009 s 3 and Sch 1[82], opn 24 July 2009]

SECTION 93AEA GENERALLY [93AEA.5] Overview This provision was inserted by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act. See [10,690ZZRA.5]. It permits only one collective bargaining notice to be given to the Commission under s 93AB(1A) in relation to a cartel provision. _____________________

[page 789]

[11,895AF] Only 1 collective bargaining notice under subsection 93AB(1) may be given 93AF If: (a) a corporation gives the Commission a collective bargaining notice under subsection 93AB(1) in relation to a contract or proposed contract; and (b) either: (i) the Commission gives the corporation an objection notice in relation to the contract or proposed contract; or (ii) the collective bargaining notice is taken to be withdrawn under subsection 93AE(3); then the corporation may not give the Commission a further collective bargaining notice under subsection 93AB(1) in relation to the same contract or proposed contract or in relation to a contract or proposed contract to the like effect. [s 93AF am Act 59 of 2009 s 3 and Sch 1[83], [84], opn 24 July 2009] [heading am Act 59 of 2009 s 3 and Sch 1[83], opn 24 July 2009]

SECTION 93AF GENERALLY [11,895AF.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,895.200]. The section prohibits a corporation from giving the commission a new collective bargaining notice for conduct previously covered by a collective bargaining notice that has either been withdrawn or for which the commission has issued an objection notice. _____________________

Subdivision C — Conferences [Subdiv C insrt Act 131 of 2006 s 3 and Sch 3[10], opn 1 Jan 2007]

[11,900] Commission to afford opportunity for conference before giving notice 93A (1) Before giving a notice under subsection 93(3) or (3A) or 93AC(1) or (2) in relation to any conduct or proposed conduct, the Commission shall prepare a draft notice in relation to that conduct or proposed conduct. [subs (1) am Act 88 of 1995 s 19; Act 131 of 2006 s 3 and Sch 3[11], opn 1 Jan 2007]

(2) The Commission shall, by notice in writing sent to the corporation to the conduct or proposed conduct of which the draft notice relates and to each other interested person, invite the corporation or other person to notify the Commission, within 14 days after a date fixed by the Commission being not earlier than the day on which the notice is sent, whether the corporation or other person wishes the Commission to hold a conference in relation to the draft notice. (3) The Commission shall send with each notice under subsection (2) a copy of the draft notice and a summary of the reasons why it proposes to give the notice under subsection 93(3) or (3A) or 93AC(1) or (2). [subs (3) am Act 88 of 1995 s 19; Act 131 of 2006 s 3 and Sch 3[12], opn 1 Jan 2007]

(4) If each of the persons to whom a notice was sent under subsection (2): (a) notifies the Commission in writing within the period of 14 days mentioned in that subsection that the person does not wish the Commission to hold a conference in relation to the draft notice; or [page 790] (b) does not notify the Commission within that period that he or she wishes the Commission to hold such a conference; the Commission must decide after the end of that period whether or not to give the notice under subsection 93(3) or (3A) or 93AC(1) or (2). [subs (4) am Act 88 of 1995 ss 19 and 91; Act 131 of 2006 s 3 and Sch 3[12], opn 1 Jan 2007]

(5) If any of the persons to whom a notice was sent under subsection (2) notifies the Commission in writing within the period of 14 days mentioned in that subsection that he or she wishes the Commission to hold a conference in

relation to the draft notice, the Commission shall appoint a date (being not later than 30 days after the expiration of that period), time and place for the holding of the conference and give notice of the date, time and place so appointed to each of the persons to whom a notice was sent under subsection (2). [subs (5) am Act 88 of 1995 s 91]

(6) At the conference: (a) the Commission shall be represented by a member or members of the Commission (being a member or members who participated in the preparation of the draft notice) nominated by the Chairperson; and (b) each person to whom a notice was sent under subsection (2) and any other interested person whose presence at the conference is considered by the Commission to be appropriate is entitled to attend and participate personally or, in the case of a body corporate, may be represented by a person who, or by persons each of whom, is a director, officer or employee of the body corporate; and (c) a person participating in the conference in accordance with paragraph (a) or (b) is entitled to have another person or other persons present to assist him or her but a person who so assists another person at the conference is not entitled to participate in the discussion; and (d) [repealed] (e) no other person is entitled to be present. [subs (6) am Act 88 of 1995 ss 66 and 91]

(7) A member of the Commission participating in the conference shall make such record of the discussions as is sufficient to set out the matters raised by the persons participating in the conference. (8) The member of the Commission who represents the Commission at the conference, or, if the Commission is represented by more than one member of the Commission, one of those members appointed by the Chairperson: (a) may exclude from the conference any person who uses insulting language at the conference, creates, or takes part in creating or continuing, a disturbance at the conference or repeatedly interrupts

the conference; (b) may terminate the conference when he or she is of the opinion that a reasonable opportunity has been given for the expression of the views of persons participating in the conference (other than persons excluded from the conference under paragraph (a)); and (c) shall give a certificate certifying the day on which the first notification under subsection (5) in relation to the draft notice was received by the Commission and the day on which the conference terminated; [page 791] and any such certificate shall be received in all courts as prima facie evidence of the matters certified. [subs (8) am Act 88 of 1995 ss 66 and 91; Act 61 of 2016 s 3 and Sch 3 item 14, opn 21 Oct 2016]

(9) A document purporting to be a certificate referred to in subsection (8) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given. (10) The Commission must take account of all matters raised at the conference. [subs (10) subst Act 88 of 1995 s 19]

(10A) After the conference, the Commission must decide whether or not to give a notice under subsection 93(3) or (3A) or 93AC(1) or (2). [subs (10A) insrt Act 88 of 1995 s 19; am Act 131 of 2006 s 3 and Sch 3[12], opn 1 Jan 2007]

(11) For the purposes of this section, interested person means a person who has notified the Commission in writing that he or she, or a specified unincorporated association of which he or she is a member, claims to have an interest in the matter, being an interest that, in the opinion of the Commission, is real and substantial. [subs (11) am Act 88 of 1995 s 91]

(12) Where the Commission is of the opinion that two or more notices given to the Commission under subsection 93(1) or 93AB(1A) or (1) by the same person, or by persons being bodies corporate that are related to each other, deal with substantially similar conduct or proposed conduct, the

Commission may treat the notices as if they constituted a single notice and may prepare one draft notice in relation to the notices so given to the Commission and hold one conference in relation to that draft notice. [subs (12) am Act 131 of 2006 s 3 and Sch 3[13], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[85], opn 24 July 2009]

SECTION 93A GENERALLY [11,900.5] Overview This section sets out the procedures for the commission to convene a conference with the party lodging notification of exclusive dealing conduct or a collective bargaining notice prior to a determination being made which is not in the party’s favour. The provision does not impliedly exclude a requirement of procedural fairness being extended to the applicant: Hospital Benefit Fund of Western Australia Inc v Australian Competition and Consumer Commission (1997) ATPR ¶41-569. _____________________

[11,905]

Clearance of mergers

[s 94 rep Act 81 of 1977 s 62]

94

Subdivision D — Register of notifications [Subdiv D insrt Act 131 of 2006 s 3 and Sch 3[14], opn 1 Jan 2007]

[11,910]

Register of notifications

(1) The Commission shall keep a register containing: (aa) notices relating to voluntary industry codes given to the Commission pursuant to regulations made under section 51AE (including notices that have been withdrawn pursuant to those regulations); and (a) draft notices, and summaries of reasons, by the Commission furnished to any person under section 93A; and

95

[page 792]

(b) records of conferences made in accordance with subsection 93A(7) and certificates in relation to conferences given under subsection 93A(8); and (c) notices (including notices that have been withdrawn) given to the Commission under section 93 or 93AB; and (d) documents furnished to the Commission in relation to such notices; and (e) particulars of any oral submissions made to the Commission in relation to such notices; and (f) particulars of notices given by the Commission to corporations in relation to notices given by corporations under section 93 or 93AB; and (g) particulars of any permits given by the Commission under subparagraph 93(7)(b)(i); and (ga) details of the specification of any day by the Commission under paragraph 93(7C)(b); and (gb) details of the specification of any day by the Commission under paragraph 93AD(3)(b); and (h) records of proceedings at conferences held under section 65J or 65M; and (j) particulars of recommendations made to the Minister by the Commission under section 65K or 65N. [subs (1) am Act 88 of 1995 s 20; Act 36 of 1998 Sch 1; Act 131 of 2006 s 3 and Sch 3[15]–[17], opn 1 Jan 2007]

(2) Where a person furnishes a document to the Commission: (a) in relation to a notice given to the Commission under section 93 or 93AB; or (b) in relation to a conference held under Division 3 of Part XI; or makes an oral submission to the Commission in relation to the notice or the conference, he or she may, at the time when the document is furnished or the submission is made, request that the document or a part of the document, or that particulars of the submission or of part of the submission, be excluded from the register kept under subsection (1) by reason of the confidential nature of any of the matters contained in the document or submission. [subs (2) am Act 88 of 1995 s 91; Act 131 of 2006 s 3 and Sch 3[18], opn 1 Jan 2007; Act 103 of 2010 s 3 and Sch 5[107], opn 1 Jan 2011]

*(3) Where such a request is made: [page 793] (a) if the document or part of the document, or the submission or part of the submission, to which the request relates contains particulars of: (i) a secret formula or process; (ii) the cash consideration offered for the acquisition of shares in the capital of a body corporate or of assets of a person; or (iii) the current costs of manufacturing, producing or marketing goods or services; the Commission shall exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from the register kept under subsection (1); and (b) in any other case — the Commission may, if it is satisfied that it is desirable to do so by reason of the confidential nature of matters contained in the document or the part of the document, or in the submission or the part of the submission, exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from that register. [subs (3) am Act 222 of 1992 s 17]

(4) If the Commission refuses a request to exclude a document or a part of a document from the register kept under subsection (1), the Commission shall, if the person who furnished the document to the Commission so requires, return the document or part of the document to him or her and, in that case, paragraph (1)(d) does not apply in relation to the document or part of the document. [subs (4) am Act 88 of 1995 s 91]

(5) Subsection (4) does not apply in relation to a document that was produced to the Minister or the Commission in pursuance of a notice under section 65Q or 155.

(6) If the Commission refuses a request to exclude particulars of an oral submission or of part of an oral submission from the register kept under subsection (1), the person who made the submission may inform the Commission that he or she withdraws the submission or that part of the submission and, in that case, paragraph (1)(e) does not apply in relation to the submission or that part of the submission, as the case may be. [subs (6) am Act 88 of 1995 s 91]

(7) Where the Commission is satisfied that it is desirable to do so for any reason other than the confidential nature of matters contained in a document or submission, the Commission may exclude a document or part of a document referred to in paragraph (1)(d) or particulars referred to in paragraph (1)(e) from the register kept under subsection (1). (8) If a person requests in accordance with subsection (2) that a document or a part of a document, or that particulars of a submission or of part of a submission, be excluded from the register kept under subsection (1), the document or the part of the document, or particulars of the submission or of the part of the submission, shall not be included in that register until the Commission has made a determination in relation to the request. *Editor’s note: Section 21 of Act 222 of 1992 provides as follows: Application of the merger amendments 21 (1) Subject to this section, the merger amendments apply to any acquisition that happens after the commencement of this Act. (2) If at the commencement of this Act a proposed acquisition was the subject of any court proceedings under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to the following acquisitions as if the merger amendments had not been made: (a) the proposed acquisition; (b) any acquisition of the same shares or assets by a body corporate that, at the commencement of this Act, was related (within the meaning of the Principal Act) to a body corporate that was a party to the court proceedings. (3) If, on 4 November 1992, a proposed acquisition was the subject of an application for an authorisation under the Principal Act in connection with the operation of section 50 or 50A of the Principal Act, the Principal Act continues to apply to that acquisition as if the merger amendments had not been made. (4) In this section, merger amendments means the amendments made by sections 2, 3, 6, 7, 12, 14, 15 and 17 of this Act.

[page 794] SECTION 95 GENERALLY [11,910.5] Overview The commission is required to keep a public register of all notifications and relevant documents which it receives. The provision was amended by the Trade Practices Amendment Act (No 1) 2006. See [72,895.200]. Reform The Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 would have the effect of amending the provision to remove the requirement for the Commission to keep a register containing records of proceedings at conferences held under s 65J or s 65M of the former Trade Practices Act, and recommendations made to the Minister responsible for the Trade Practices Act by the Commission under s 65K or s 65N of the Trade Practices Act. The requirements of ss 65J, 65K, 65M and 65N were superseded by Div 3 of Pt XI of the Act. Sections 132D and 132G of the Act now secure the objective of s 95(1)(h) and subs (j) relating to product safety decisions. Any information existing on a register previously held by the Commission under this provision will continue to be held under the Archives Act 1983 (Cth). On 25 March 2015, the Selection of Bills Committee referred the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 to the Economics Legislation Committee for inquiry and report. In its May 2015 report, the Committee recommended that the Bill be passed. _____________________ DIVISION 3 — MERGER CLEARANCES AND AUTHORISATIONS [Div 3 insrt Act 131 of 2006 s 3 and Sch 1[27], opn 1 Jan 2007]

Subdivision A — Preliminary INTRODUCTION TO SUBDIVISION A [11,913AA.5] Overview

This Subdivision was inserted by the Trade

Practices Amendment Act (No 1) 2006 following the recommendations of the Dawson Committee. See [10,690.5]. Currently, merging parties have the option of obtaining an informal clearance from the commission. The informal process has no statutory basis and provides no statutory immunity. Nor does informal clearance prevent proceeding by third parties. However, it is quick and provides some comfort to the merging parties. See [10,820.65]. The Dawson Committee considered that the current informal system was effective, though it required improvement. The disadvantages of the current system include lack of transparency regarding commission decisions and their reasoning, failure to provide avenues for appeal against the decision, and a lack of clear time frames for decision-making. The Subdivision includes a formal merger clearance system, similar to the provisions in the New Zealand Commerce Act. It supplements the current informal merger review process. The features of the formal merger clearance system include: • decisions are to be made within 40 business days by the commission. The decision is deemed to be refused if no decision is made within that period: s 95AO(1). The applicant, prior to the end of the 40-day period, may agree to an extension of time: s 95AO(2); • the commission must notify the applicant in writing of its decision and give written reasons for it: s 95AM; • following the receipt of an application for a merger clearance the commission must place a copy of the application and accompanying documents on its website, and invite submissions by notice on its website: s 95AG. The commission must keep a register of applications for merger clearances: s 95AH. Section 95AG and 95AH information requirements are subject to confidentiality claims: s 95AI; [page 795] •

decisions of the commission may be appealed to the Australian Competition Tribunal. The tribunal must make a decision within

•

30 days; the formal merger clearance process confers statutory immunity from action under s 50: s 95AC.

[11,913AA.10] Commission guidelines In January 2007 the commission published its Formal Merger Review Process Guidelines. The guidelines outline the approach the commission proposes to take in assessing applications for formal merger clearance and the requirements on applicants for merger clearances. The guidelines outline: • the statutory criteria for granting clearances; • how to apply for clearance and guidance for applicants; • the timeframes within which the commission will consider an application; • the process for review by the tribunal of commission clearance determinations. The guidelines were updated and replaced in June 2008. _____________________

[11,913AA]

Simplified outline of this Division

*95AA This Division is about merger clearances and merger authorisations. It relates to section 50: that section prohibits a person acquiring shares in the capital of a body corporate or assets of another person if the acquisition would have, or be likely to have, the effect of substantially lessening competition in a market. If a person has a clearance or authorisation for the acquisition, section 50 will not prevent the person from making the acquisition. The main differences between merger clearances and authorisations are: • different bodies decide whether they should be granted; • different timeframes apply for when the body must make its decision; • they have different tests that need to be satisfied for them to be granted; • merits review is not available for decisions on authorisations. For merger clearances (see Subdivision B):

• •

•

•

the Commission grants them; it must make its decision whether to grant within 40 business days (which can be extended if the applicant agrees or the Commission so decides), and if it does not, the application is taken to be refused; it cannot grant the clearance unless it is satisfied that the acquisition would not have the effect, or be likely to have the effect, of substantially lessening competition in a market; if it refuses to grant a clearance, or grants a clearance subject to conditions, then the person who applied for the clearance may apply to the Tribunal under Division 3 of Part IX for review of the Commission’s decision.

*Editor’s note: Item 53 of Sch 1 of Act 131 of 2006 provides as follows: Transitional (1) A person cannot make an application (the new application), after the commencement of this item, for an authorisation under Division 3 of Part VII of the Trade Practices Act 1974 in relation to an acquisition of shares or assets if, before the commencement of this item, the person made an application (the old application) under subsection 88(9) of that Act for an authorisation in relation to the acquisition. (2) However, the person can make the new application if: (a) the Commission has not made a determination on the old application; and (b) the person withdraws the old application.

[page 796]

For merger authorisations (see Subdivision C): • the Tribunal grants them; • it must make its decision whether to grant within 3 months (which can be extended to 6 months in special circumstances), and if it does not, the application is taken to be refused; • it cannot grant the authorisation unless it is satisfied that the acquisition would result, or be likely to result, in such a benefit to the public that the acquisition should be allowed to take place. Subdivision D contains a prohibition on providing false or misleading

information to the Commission or Tribunal under this Division or Division 3 of Part IX.

[11,913AB]

Definitions

95AB In this Division: authorisation means an authorisation granted under this Division. business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory. clearance means a clearance granted under this Division. merger authorisation register means the register kept under section 95AZ. merger clearance register means the register kept under section 95AH. minor variation, in relation to a clearance or an authorisation, is a single variation that does not involve a material change in the effect of the clearance or authorisation.

Subdivision B — Merger Clearances

[11,913AC] a merger

Commission may grant clearance for

95AC (1) The Commission may grant a clearance to a person: (a) to acquire shares in the capital of a body corporate; or (b) to acquire assets of another person. Note: Section 95AN prohibits the Commission from granting a clearance for an acquisition unless the Commission is satisfied that the acquisition would not have the effect, or be likely to have the effect, of substantially lessening competition. (2) If the Commission does so, then section 50 does not prevent the person from acquiring the shares or assets in accordance with the clearance. Note: The acquisition will only be protected from the operation of section 50 if it takes place in accordance with the clearance. If it does not, then section 50 will apply to the acquisition. If the acquisition contravenes

section 50, then the remedies in Part VI will apply (see, for example, penalties under section 76 and divestiture under section 81). (3) Without limiting subsection (2), an acquisition will not be in accordance with a clearance if any conditions of the clearance are not complied with (whether the conditions are to be complied with before, during or after the acquisition). SECTION 95AC GENERALLY [11,913AC.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. The section permits the commission to grant a merger clearance. If granted the merger will not be prevented by s 50. _____________________ [page 797]

[11,913AD]

Application for clearance

95AD A person who wants a clearance to acquire shares or assets must apply to the Commission for it. SECTION 95AD GENERALLY [11,913AD.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________

[11,913AE] application

Requirements for valid clearance

95AE (1) To be valid, the application must: (a) be in a form prescribed by the regulations and contain the information required by the form; and

(b) be accompanied by such other information or documents as are prescribed by the regulations; and (c) be accompanied by the fee (if any) prescribed by the regulations. (2) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Commission. SECTION 95AE GENERALLY [11,913AE.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5].

[11,913AF] invalid

Commission to notify if clearance application is

95AF If the Commission receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice: (a) stating that the person has not made a valid application; and (b) giving reasons why the purported application does not comply with this Division. SECTION 95AF GENERALLY [11,913AF.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________

[11,913AG] internet

Application to be published on the

95AG After receiving an application for a clearance, the Commission must: (a) subject to section 95AI (confidentiality), put a copy of the application, and accompanying information or documents, on its

website; and (b) by notice on its website, invite submissions in respect of the application within the period specified by it. [heading am Act 8 of 2010 s 3 and Sch 5, Pt 2[137(b)], opn 1 Mar 2010]

[page 798] SECTION 95AG GENERALLY [11,913AG.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________

[11,913AH]

Merger clearance register

95AH (1) The Commission must keep a register (the merger clearance register) of: (a) applications for clearances; and (b) applications for minor variations of clearances; and (c) applications for, or the Commission’s proposals under section 95AS for, the revocation of clearances or for the revocation of clearances and the substitution of other clearances; including applications that have been withdrawn or proposals that have been abandoned. (2) The register must include: (a) any document given to the Commission in relation to an application or proposal referred to in subsection (1); and (b) particulars of any oral submission made to the Commission in relation to such an application or proposal; and (c) the determination of the Commission on such an application or proposal and the statement of the reasons given by the Commission for that determination; unless section 95AI (confidentiality) prevents the inclusion.

SECTION 95AH GENERALLY [11,913AH.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________

[11,913AI]

Confidentiality claims etc

95AI (1) Requests for confidential treatment If a person gives information to the Commission in relation to an application or proposal referred to in subsection 95AH(1), the person may, at the time of giving the information, request that the information be excluded from the merger clearance register and the Commission’s website because of its confidential nature. (2) Confidentiality claims to be determined first If such a request is made, the Commission must exclude the information from the register and its website until it has made a determination on the request. (3) When Commission must exclude information — request made If such a request is made, the Commission must exclude the information from the register and its website if the information contains particulars of: (a) a secret formula or process; or (b) the cash consideration offered for the acquisition of shares in the capital of a body corporate or assets of a person; or (c) the current costs of manufacturing, producing or marketing goods or services. (4) When Commission may exclude information — request made If such a request is made, the Commission may, if it is satisfied that it is desirable to do so because of the confidential nature of the information, exclude the information from the register and its website. [page 799] (5) If request refused, document may be withdrawn If the Commission refuses such a request and the information is contained in a document, the

Commission must, if the person who gave the document to it so requires, return the document or part of the document to the person. In that case, it must exclude the document or the part of the document (as the case requires) from the register and its website. (6) If request refused, oral submission may be withdrawn If the Commission refuses such a request and the information was given by way of oral submission, the person who made the submission may withdraw all or part of the submission. In that case, the Commission must exclude the submission or part of the submission (as the case requires) from the register and its website. (7) When Commission may exclude information — no request made The Commission may exclude information from the register and its website if it is satisfied that it is desirable to do so for any reason other than the confidential nature of the information. SECTION 95AI GENERALLY [11,913AI.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________

[11,913AJ] Commission may seek additional information from applicant 95AJ The Commission may give the applicant a written notice requesting the applicant to give the Commission, within a specified period, additional information relevant to making its determination on the application. SECTION 95AJ GENERALLY [11,913AJ.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________

[11,913AK]

Commission may seek further

information and consult others 95AK (1) The Commission may give a person a written notice requesting the person to give the Commission, within a specified period, particular information relevant to making its determination on the application. (2) The Commission may consult with such persons as it considers reasonable and appropriate for the purposes of making its determination on the application. SECTION 95AK GENERALLY [11,913AK.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5].

[11,913AL]

Applicant may withdraw application

95AL The applicant may, by notice in writing to the Commission, withdraw the application at any time. [page 800] SECTION 95AL GENERALLY [11,913AL.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________

[11,913AM] Commission to make determination on application 95AM (1) The Commission must make a determination in writing: (a) granting the clearance; or (b) refusing to grant the clearance.

Note: The Commission must make its determination within the time limit set out in section 95AO. If it does not, then it is taken to have refused to grant the clearance. (2) In making its determination, the Commission must take into account: (a) any submissions in relation to the application made to it by the applicant, the Commonwealth, a State, a Territory or any other person that are received within the period specified under paragraph 95AG(b); and (b) any information received under section 95AJ within the period specified in the relevant notice under that section; and (c) any information received under subsection 95AK(1) within the period specified in the relevant notice under that subsection; and (d) any information obtained from consultations under subsection 95AK(2). (2A) In making its determination, the Commission may disregard: (a) any submissions in relation to the application made to it by the applicant, the Commonwealth, a State, a Territory or any other person that are received after the period specified under paragraph 95AG(b); and (b) any information received under section 95AJ after the period specified in the relevant notice under that section; and (c) any information received under subsection 95AK(1) after the period specified in the relevant notice under that subsection. (3) The Commission must notify the applicant in writing of its determination and give written reasons for it. SECTION 95AM GENERALLY [11,913AM.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________

[11,913AN]

When clearance must not be granted

95AN (1) The Commission must not grant a clearance in relation to a proposed acquisition of shares or assets unless it is satisfied that the

acquisition would not have the effect, or be likely to have the effect, of substantially lessening competition (within the meaning of section 50). (2) To avoid doubt, a clearance cannot be granted for an acquisition that has occurred. SECTION 95AN GENERALLY [11,913AN.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________ [page 801]

[11,913AO] application

Time limits for determining

95AO (1) If the Commission has not made a determination on the application within the period that begins on the day the application was given to the Commission and ends on the 40th business day after that day, the Commission is, subject to subsection (3), taken to have made a determination refusing to grant the clearance. (2) The applicant may, before the end of the period referred to in subsection (1) (including any period that is taken to be substituted for that period by any other application or applications of this subsection), agree to the Commission taking a specified longer period to make its determination. If the applicant does, the longer period is taken to be substituted for the period referred to in subsection (1). (3) However, if before the end of the period referred to in subsection (1) (including any period that is taken to be substituted for that period by any other application or applications of subsection (2)), the Commission decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, which must be notified in writing by the Commission to the applicant, the period is

extended by a further 20 business days and the longer period is taken to be substituted for the period referred to in subsection (1) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (2)). SECTION 95AO GENERALLY [11,913AO.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________

[11,913AP]

Clearance subject to conditions

95AP (1) The Commission may grant a clearance subject to such conditions as are specified in the clearance. Note 1: Under subsection 95AS(5), the Commission may revoke a clearance if a condition of the clearance has not been complied with. Note 2: If an acquisition takes place without complying with a condition of the clearance (whether the condition is to be complied with before, during or after the acquisition), the acquisition will not be in accordance with the clearance and so might contravene section 50 (see subsections 95AC(2) and (3)). If the acquisition contravenes section 50, then the remedies in Part VI will apply (see, for example, penalties under section 76 and divestiture under section 81). (2) Without limiting subsection (1), the Commission may grant a clearance subject to the condition that the person to whom the clearance is granted must make, and comply with, an undertaking to the Commission under section 87B. SECTION 95AP GENERALLY [11,913AP.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________ [page 802]

[11,913AQ]

When clearance is in force

95AQ (1) A clearance that is not subject to conditions comes into force on the day on which the determination granting the clearance is made. (2) A clearance that is subject to conditions comes into force: (a) if an application is made to the Tribunal for a review of the Commission’s determination and the application is not withdrawn — on the day on which the Tribunal makes a determination on the review; or (b) if an application is made to the Tribunal for a review of the Commission’s determination and the application is withdrawn — on the day on which the application is withdrawn; or (c) if the person to whom the clearance was given gives a notice in writing to the Commission stating that the person will not make an application to the Tribunal for review — on the day on which the notice is given; or (d) in any other case — at the end of the period in which an application may be made to the Tribunal for review of the determination. (3) A clearance may be expressed to be in force for a period specified in the clearance and, if so expressed, remains in force for that period only. SECTION 95AQ GENERALLY [11,913AQ.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________

[11,913AR]

Minor variations of clearances

95AR (1) Application for variation A person to whom a clearance was granted may apply to the Commission for a minor variation of the clearance. (2) Requirements for valid application To be valid, the application must:

(a) be in a form prescribed by the regulations and contain the information required by the form; and (b) be accompanied by such other information or documents as are prescribed by the regulations; and (c) be accompanied by the fee (if any) prescribed by the regulations. (2A) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Commission. (3) Commission to notify if application is invalid If the Commission receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice: (a) stating that the person has not made a valid application; and (b) giving reasons why the purported application does not comply with this Division. (4) Application to be published on the internet The Commission must, if it is satisfied that the variation sought in the application is a minor variation: (a) subject to section 95AI (confidentiality), put a copy of the application on its website; and [page 803] (b) by notice on its website, invite submissions in respect of the application within a period specified by it. [subs (4) am Act 8 of 2010 s 3 and Sch 5, Pt 2[137(b)], opn 1 Mar 2010]

(5) Commission must make a determination on the application The Commission must make a determination in writing: (a) varying the clearance; or (b) refusing to vary the clearance. The Commission must notify the applicant in writing of its determination and give written reasons for it.

(5A) In making its determination, the Commission must take into account: (a) any submissions received within the period specified under subsection (4); and (b) any information received under section 95AJ within the period specified in the relevant notice under that section (as that section applies because of subsection (11) of this section); and (c) any information received under subsection 95AK(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (11) of this section); and (d) any information obtained from consultations under subsection 95AK(2) (as that subsection applies because of subsection (11) of this section). (5B) In making its determination, the Commission may disregard: (a) any submissions received after the period specified under subsection (4); and (b) any information received under section 95AJ after the period specified in the relevant notice under that section (as that section applies because of subsection (11) of this section); and (c) any information received under subsection 95AK(1) after the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (11) of this section). (6) When variation must not be granted The Commission must not make a determination varying a clearance unless it is satisfied that the acquisition to which the clearance (as varied) would apply would not have the effect, or be likely to have the effect, of substantially lessening competition (within the meaning of section 50). (6A) Determination varying clearance may also vary clearance conditions A determination varying a clearance may also vary the conditions (if any) of the clearance to take account of the variation of the clearance. (7) Time limits for determining application If the Commission has not made a determination on the application within the period that begins on the day the application was given to the Commission and ends on the 40th business day after that day, the Commission is, subject to subsection (8A), taken to have made a determination refusing to vary the clearance. (8) The applicant may, before the end of the period referred to in

subsection (7) (including any period that is taken to be substituted for that period by any other application or applications of this subsection), agree to the Commission taking a specified longer period to make its determination. If the applicant does, the longer period is taken to be substituted for the period referred to in subsection (7). (8A) However, if before the end of the period referred to in subsection (7) (including any period that is taken to be substituted for that period by any other application or applications of subsection (8)), the Commission decides that the matter cannot be dealt [page 804] with properly within that period, either because of its complexity or because of other special circumstances, which must be notified in writing by the Commission to the applicant, the period is extended by a further 20 business days and the longer period is taken to be substituted for the period referred to in subsection (7) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (8)). (9) 2 or more variations at the same time If: (a) a person applies for 2 or more variations: (i) at the same time; or (ii) in such close succession that the variations could conveniently be dealt with by the Commission at the same time; and (b) the Commission is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the clearance; the Commission may deal with all of those variations together as if they were a single minor variation. (10) Applicant may withdraw application The applicant may, by notice in writing to the Commission, withdraw the application at any time. (11) Powers of Commission The following sections apply in relation to an application for a minor variation of a clearance in the same way as they apply in relation to an application for a clearance:

(a) section 95AJ (Commission may seek additional information from applicant); (b) section 95AK (Commission may seek further information and consult others). SECTION 95AR GENERALLY [11,913AR.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5]. _____________________

[11,913AS] Revocation of clearance or revocation of clearance and substitution of a new clearance 95AS (1) Application for revocation etc The Commission may revoke a clearance, or revoke a clearance and substitute a new clearance, if the person to whom the clearance was granted applies to the Commission for this to occur. (2) Requirements for valid application To be valid, the application must: (a) be in a form prescribed by the regulations and contain the information required by the form; and (b) be accompanied by such other information or documents as are prescribed by the regulations; and (c) be accompanied by the fee (if any) prescribed by the regulations. (2A) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Commission. (3) Commission to notify if application is invalid If the Commission receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice:

[page 805] (a) stating that the person has not made a valid application; and (b) giving reasons why the purported application does not comply with this Division. (4) Application to be published on the internet The Commission must: (a) subject to section 95AI (confidentiality), put a copy of the application on its website; and (b) by notice on its website, invite submissions in respect of the application within a period specified by it. [subs (4) am Act 8 of 2010 s 3 and Sch 5, Pt 2[137(b)], opn 1 Mar 2010]

(5) Commission’s power to revoke etc where no application The Commission may also revoke a clearance, or revoke a clearance and substitute a new clearance, if it is satisfied that: (a) the clearance was granted on the basis of information that was false or misleading in a material particular; or (b) a condition of the clearance has not been complied with; or (c) there has been a material change of circumstances since the clearance was granted. (6) Commission to give notice If the Commission is considering making a determination under subsection (5), it must give a notice to the person to whom the clearance was granted and put a notice on its website: (a) stating that it is considering making the determination; and (b) indicating the basis on which the determination is being proposed; and (c) inviting submissions in respect of the determination within the period specified by it. (7) Commission must make a determination The Commission must make a determination in writing: (a) revoking the clearance, or revoking the clearance and substituting a new clearance for the one revoked; or (b) refusing to revoke the clearance. The Commission must notify, in writing, the person to whom the clearance was granted of its determination and give written reasons for it.

(7A) In making its determination, the Commission must take into account: (a) any submissions invited under subsection (4) or (6) that are received within the period specified under that subsection; and (b) any information received under section 95AJ within the period specified in the relevant notice under that section (as that section applies because of subsection (13) of this section); and (c) any information received under subsection 95AK(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (13) of this section); and (d) any information obtained from consultations under subsection 95AK(2) (as that subsection applies because of subsection (13) of this section). (7B) In making its determination, the Commission may disregard: (a) any submissions invited under subsection (4) or (6) that are received after the period specified under that subsection; and [page 806] (b) any information received under section 95AJ after the period specified in the relevant notice under that section (as that section applies because of subsection (13) of this section); and (c) any information received under subsection 95AK(1) after the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (13) of this section). (8) When revocation etc must not be granted If an objection (other than an objection that, in the Commission’s opinion, is vexatious or frivolous) to a revocation of a clearance is made in a submission: (a) that was invited under subsection (4) or (6); and (b) that is received within the period specified; the Commission must not make a determination revoking the clearance unless it is satisfied that it would, if the clearance had not already been granted, be prevented under section 95AN from granting the clearance. (9) The Commission must not make a determination revoking a clearance and substituting another clearance unless it is satisfied that it would not be

prevented under section 95AN from granting the substituted clearance, if it were a new clearance sought under section 95AD. (10) Time limits for determining application If the Commission has not made a determination on an application made under subsection (1) within the period that begins on the day the application was given to the Commission and ends on the 40th business day after that day, the Commission is, subject to subsection (11A), taken to have made a determination refusing to revoke the clearance. (11) The applicant may, before the end of the period referred to in subsection (10) (including any period that is taken to be substituted for that period by any other application or applications of this subsection), agree to the Commission taking a specified longer period to make its determination. If the applicant does, the longer period is taken to be substituted for the period referred to in subsection (10). (11A) However, if before the end of the period referred to in subsection (10) (including any period that is taken to be substituted for that period by any other application or applications of subsection (11)), the Commission decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, which must be notified in writing by the Commission to the applicant, the period is extended by a further 20 business days and the longer period is taken to be substituted for the period referred to in subsection (10) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (11)). (12) Withdrawal of application The applicant may, by notice in writing to the Commission, withdraw the application at any time. (13) Powers of Commission The following sections apply in relation to an application for a revocation, or a revocation and substitution, of a clearance in the same way as they apply in relation to an application for a clearance: (a) section 95AJ (Commission may seek additional information from applicant); (b) section 95AK (Commission may seek further information and consult others).

[page 807] (14) Substituted clearances The following sections apply in relation to a clearance substituted under this section in the same way as they apply in relation to a clearance granted under section 95AM: (a) section 95AP (Clearance subject to conditions); (b) section 95AQ (When clearance is in force). SECTION 95AS GENERALLY [11,913AS.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AA.5].

Subdivision C — Merger authorisations INTRODUCTION TO SUBDIVISION C Prior to the commencement of the Trade Practices Amendment Act (No 1) 2006, applications were made to the commission for an authorisation to acquire shares or assets (a merger). The commission was able to grant an authorisation for a merger if it was satisfied that the merger would result (or be likely to result) in such a benefit to the public that the merger should be allowed to take place. However, merger authorisations were rarely sought because of the time taken by the commission to make a decision and because the decision is subject to appeal to the tribunal. The amendment permits merger authorisations to be lodged directly with the tribunal, making merger authorisations a one-step process. The tribunal is required to make a decision within 3 months, with third party considerations being taken into account in its assessment. _____________________

[11,913AT] a merger 95AT

Tribunal may grant authorisation for

(1) The Tribunal may grant an authorisation to a person:

(a) to acquire shares in the capital of a body corporate; or (b) to acquire assets of another person. Note 1: Section 95AZH prohibits the Tribunal from granting an authorisation for an acquisition unless the Tribunal is satisfied the acquisition would result, or be likely to result, in such a benefit to the public that the acquisition should be allowed to take place. Note 2: Division 2 of Part IX contains provisions about procedure and evidence that relate to proceedings before the Tribunal. (2) If the Tribunal does so, then section 50 does not prevent the person from acquiring the shares or assets in accordance with the authorisation. Note: The acquisition will only be protected from the operation of section 50 if it takes place in accordance with the authorisation. If it does not, then section 50 will apply to the acquisition. If the acquisition contravenes section 50, then the remedies in Part VI will apply (see, for example, penalties under section 76 and divestiture under section 81). (3) Without limiting subsection (2), an acquisition will not be in accordance with an authorisation if any conditions of the authorisation are not complied with (whether the conditions are to be complied with before, during or after the acquisition). [page 808]

SECTION 95AT GENERALLY [11,913AT.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [11,913AT.5]. In Application for Merger Authorisation of Warrnambool Cheese and Butter Factory Company Holdings Ltd ACT 4 0f 2013, Murray Goulburn Cooperative Co Limited proposed to acquire Warrnambool Cheese and Butter Factory Company Holdings Limited. That matter did not proceed to determination. In Application for Authorisation of Acquisition of Macquarie Generation by AGL Energy Ltd [2014] ACompT 1 per Mansfield J, Mr Grant Latta and Professor David Round, the Tribunal considered an application for the

acquisition by AGL Energy of electricity generator, Macquarie Generation. In Application for Authorisation of Acquisition of Macquarie Generation by AGL Energy Ltd [2014] ACompT 1 per Mansfield J, Mr Grant Latta and Professor David Round, at [118] the Tribunal said: The Tribunal is the original decision maker in relation to merger authorisations under the CC Act. The Tribunal’s consideration of a merger authorisation application has something of an inquisitorial character. It is necessary for the Tribunal to inform itself of the issues arising from the application and to obtain evidence going to those issues. The assistance of the ACCC in that process is integral. The role of the Tribunal in merger authorisation matters is quite different to its function in its merits review jurisdiction under the CC Act, where the Tribunal reviews decisions made by certain Ministers or the ACCC are conducted on the material that was before the original decision maker.

[11,913AT.10] Application In November 2013, Murray Goulburn CoOperative Co Limited applied to the Tribunal for authorization of its acquisition of Warrnambool Cheese and Butter Factory Company Holdings Limited. _____________________

[11,913AU]

Application for authorisation

95AU A person who wants an authorisation to acquire shares or assets must apply to the Tribunal for it. SECTION 95AU GENERALLY [11,913AU.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. [11,913AU.10] Application In November 2013, Murray Goulburn CoOperative Co Limited applied to the Tribunal for authorization of its acquisition of Warrnambool Cheese and Butter Factory Company Holdings Limited _____________________

[11,913AV]

Requirements for valid authorisation

application 95AV (1) To be valid, the application must: (a) be in a form prescribed by the regulations and contain the information required by the form; and (b) be accompanied by such other information or documents as are prescribed by the regulations; and (c) be accompanied by the fee (if any) prescribed by the regulations. [page 809] (2) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Tribunal. SECTION 95AV GENERALLY [11,913AV.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________

[11,913AW] Tribunal to notify if authorisation application is invalid 95AW If the Tribunal receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice: (a) stating that the person has not made a valid application; and (b) giving reasons why the purported application does not comply with this Division. SECTION 95AW GENERALLY

[11,913AW.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________

[11,913AX] Tribunal to notify Commission of authorisation application 95AX The Tribunal must, within 3 business days of receiving an application for an authorisation, give a copy of it to the Commission. SECTION 95AX GENERALLY [11,913AX.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________

[11,913AY] internet

Application to be published on the

95AY After receiving a copy of an application for an authorisation, the Commission must: (a) subject to section 95AZA (confidentiality), put a copy of the application, and accompanying information or documents, on its website; and (b) by notice on its website, invite submissions in respect of the application to be made to the Tribunal within a period specified by the Tribunal. [heading am Act 8 of 2010 s 3 and Sch 5, Pt 2[137(b)], opn 1 Mar 2010]

SECTION 95AY GENERALLY [11,913AY.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5].

[page 810] _____________________

[11,913AZ]

Merger authorisation register

95AZ (1) The Tribunal must keep a register (the merger authorisation register) of: (a) applications for authorisations; and (b) applications for minor variations of authorisations; and (c) applications for the revocation of authorisations or for the revocation of authorisations and the substitution of other authorisations; including applications that have been withdrawn. (2) The register must include: (a) any document given to the Tribunal in relation to an application referred to in subsection (1); and (b) particulars of any oral submission made to the Tribunal in relation to such an application; and (c) the determination of the Tribunal on such an application and the statement of the reasons given by the Tribunal for that determination; unless section 95AZA (confidentiality) prevents the inclusion. SECTION 95AZ GENERALLY [11,913AZ.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. In Application for Authorisation of Acquisition of Macquarie Generation by AGL Energy Ltd [2014] ACompT 1 at [132]–[136] Mansfield J, Mr Grant Latta and Professor David Round discussed some of the practical limitations in managing confidential information in merger authorisations. _____________________

[11,913AZA]

Confidentiality claims etc

95AZA (1) Requests for confidential treatment If a person gives information to the Tribunal in relation to an application or proposal referred to in subsection 95AZ(1), the person may, at the time of giving the information, request that the information be excluded from the merger authorisation register and the Commission’s website because of its confidential nature. (2) Confidentiality claims to be determined first If such a request is made, the information must be excluded from the register and the Commission’s website until the Tribunal has made a determination on the request. (3) When Tribunal must exclude information — request made If such a request is made, the Tribunal must exclude the information from the register and the Commission’s website if the information contains particulars of: (a) a secret formula or process; or (b) the cash consideration offered for the acquisition of shares in the capital of a body corporate or assets of a person; or (c) the current costs of manufacturing, producing or marketing goods or services. (4) When Tribunal may exclude information — request made If such a request is made, the Tribunal may, if it is satisfied that it is desirable to do so because of the confidential nature of the information, exclude the information from the register and the Commission’s website. [page 811] (5) If request refused, document may be withdrawn If the Tribunal refuses such a request and the information is contained in a document, the Tribunal must, if the person who gave the document to it so requires, return the document or part of the document to the person. In that case, it must exclude the document or the part of the document (as the case requires) from the register and the Commission’s website.

(6) If request refused, oral submission may be withdrawn If the Tribunal refuses such a request and the information was given by way of oral submission, the person who made the submission may withdraw all or part of the submission. In that case, the Tribunal must exclude the submission or part of the submission (as the case requires) from the register and the Commission’s website. (7) When Tribunal may exclude information — no request made The Tribunal may exclude information from the register and the Commission’s website if it is satisfied that it is desirable to do so for any reason other than the confidential nature of the information. SECTION 95AZA GENERALLY [11,913AZA.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. In Application by Sea Swift Pty Ltd (No 2) [2015] ACompT 6; BC201510224, the Tribunal, Mansfield J, Mr GF Latta and Mr RF Shogren, accepted the applicant’s claims for confidentiality over material it had submitted. _____________________

[11,913AZC] Tribunal may seek additional information from applicant 95AZC The Tribunal may give the applicant a written notice requesting the applicant to give the Tribunal, within a specified period, additional information relevant to making its determination on the application. SECTION 95AZC GENERALLY [11,913AZC.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________

[11,913AZD]

Tribunal may seek further

information and consult others etc 95AZD (1) The Tribunal may give a person a written notice requesting the person to give the Tribunal, within a specified period, particular information relevant to making its determination on the application. (2) The Tribunal may consult with such persons as it considers reasonable and appropriate for the purposes of making its determination on the application. (3) The Tribunal may disclose information excluded from the merger authorisation register under subsection 95AZA(3), (4) or (7) to such persons and on such terms as it considers reasonable and appropriate for the purposes of making its determination on the application. [page 812] SECTION 95AZD GENERALLY [11,913AZD.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________

[11,913AZE] application

Applicant may withdraw

95AZE The applicant may, by notice in writing to the Tribunal, withdraw the application at any time. SECTION 95AZE GENERALLY [11,913AZE.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________

[11,913AZEA]

Tribunal must require

Commission to give report 95AZEA (1) For the purposes of determining the application, the member of the Tribunal presiding on the application must require the Commission to give a report to the Tribunal. The report must be: (a) in relation to the matters specified by that member; and (b) given within the period specified by that member. (2) The Commission may also include in the report any matter it considers relevant to the application. SECTION 95AZEA GENERALLY [11,913AZEA.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________

[11,913AZF]

Commission to assist Tribunal

95AZF (1) For the purposes of determining the application: (a) the Commission may call a witness to appear before the Tribunal and to give evidence in relation to the application; and (b) the Commission may report on statements of fact put before the Tribunal in relation to the application; and (c) the Commission may examine or cross-examine any witnesses appearing before the Tribunal in relation to the application; and Note: The Commission may be represented by a lawyer: see paragraph 110(d). (d) the Commission may make submissions to the Tribunal on any issue the Commission considers relevant to the application. (2) For the purposes of determining the application, the member of the Tribunal presiding on the application may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal, as the member specifies. SECTION 95AZF GENERALLY

[11,913AZF.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. [page 813] _____________________

[11,913AZFA]

Commission may make enquiries

95AZFA The Commission may, for the purposes of section 95AZEA or 95AZF, make such enquiries as it considers reasonable and appropriate. SECTION 95AZFA GENERALLY [11,913AZFA.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________

[11,913AZG] application

Tribunal to make determination on

95AZG (1) The Tribunal must make a determination in writing: (a) granting the authorisation; or (b) refusing to grant the authorisation. Note: The Tribunal must make its determination within the time limit set out in section 95AZI. If it does not, then it is taken to have refused to grant the authorisation. (2) In making its determination, the Tribunal must take into account: (a) any submissions in relation to the application made to it by the applicant, the Commonwealth, a State, a Territory or any other person that are received within the period specified under paragraph 95AY(b); and (b) any information received under section 95AZC within the period specified in the relevant notice under that section; and

(c) any information received under subsection 95AZD(1) within the period specified in the relevant notice under that subsection; and (d) any information obtained from consultations under subsection 95AZD(2); and (e) the report given to it under section 95AZEA; and (f) any thing done as mentioned in section 95AZF. (2A) In making its determination, the Tribunal may disregard: (a) any submissions in relation to the application made to it by the applicant, the Commonwealth, a State, a Territory or any other person that are received after the period specified under paragraph 95AY(b); and (b) any information received under section 95AZC after the period specified in the relevant notice under that section; and (c) any information received under subsection 95AZD(1) after the period specified in the relevant notice under that subsection. (3) The Tribunal must notify the applicant in writing of its determination and give written reasons for it. SECTION 95AZG GENERALLY [11,913AZG.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________ [page 814]

[11,913AZH] granted

When authorisation must not be

95AZH (1) The Tribunal must not grant an authorisation in relation to a proposed acquisition of shares or assets unless it is satisfied in all the circumstances that the proposed acquisition would result, or be likely to result, in such a benefit to the public that the acquisition should be allowed to

occur. (2) In determining what amounts to a benefit to the public for the purposes of subsection (1): (a) the Tribunal must regard the following as benefits to the public (in addition to any other benefits to the public that may exist apart from this paragraph): (i) a significant increase in the real value of exports; (ii) a significant substitution of domestic products for imported goods; and (b) without limiting the matters that may be taken into account, the Tribunal must take into account all other relevant matters that relate to the international competitiveness of any Australian industry. (3) To avoid doubt, an authorisation cannot be granted for an acquisition that has occurred. SECTION 95AZH GENERALLY [11,913AZH.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. The Tribunal considered the provision for the first time in Application for Authorisation of Acquisition of Macquarie Generation by AGL Energy Ltd [2014] ACompT 1 per Mansfield J, Mr Grant Latta and Professor David Round. It applied a similar approach to that in s 90 of the Act. It was also considered in Re Application by Sea Swift Pty Ltd [2016] ACompT 9; BC201606314 per Farrell J, Mr RC Davey and Professor DK Round. See [11,855.20] and following. _____________________

[11,913AZI] application

Time limits for determining

95AZI (1) If the Tribunal has not made a determination on the application within the relevant period, the Tribunal is taken to have refused to grant the authorisation. (2) The relevant period is the period of 3 months beginning on the day

the application was given to the Tribunal. However, if before the end of that 3 month period the Tribunal determines in writing that: (a) the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances; and (b) that period is extended by a specified period of not more than 3 months; the relevant period is that period as so extended. (3) If the Tribunal makes a determination under subsection (2), it must notify the applicant in writing of its determination before the end of that 3 month period. SECTION 95AZI GENERALLY [11,913AZI.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. In Application for Authorisation of Acquisition of Macquarie Generation by AGL Energy Ltd [2014] ACompT 1 at [129] Mansfield J, Mr Grant Latta and Professor David Round said that the [page 815] provision does not invite a routine extension of time. Each application should be addressed in its particular circumstances. It is clear enough that the time frame imposed reflects a decision that it is in the public interest that a prompt determination is preferred to an exhaustive and prolonged inquiry that might take many months to complete. _____________________

[11,913AZJ]

Authorisation subject to conditions

95AZJ (1) The Tribunal may grant an authorisation subject to such conditions as are specified in the authorisation. Note 1: Under subsection 95AZM(6), the Commission may apply to the

Tribunal to revoke an authorisation if a condition of the authorisation has not been complied with. Note 2: If an acquisition takes place without complying with a condition of the authorisation (whether the condition is to be complied with before, during or after the acquisition), the acquisition will not be in accordance with the authorisation and so might contravene section 50 (see subsections 95AT(2) and (3)). If the acquisition contravenes section 50, then the remedies in Part VI will apply (see, for example, penalties under section 76 and divestiture under section 81). (2) Without limiting subsection (1), the Tribunal may grant an authorisation subject to the condition that the person to whom the authorisation is granted must make, and comply with, an undertaking to the Commission under section 87B. SECTION 95AZJ GENERALLY [11,913AZJ.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________

[11,913AZK]

When authorisation is in force

95AZK (1) An authorisation comes into force on the day on which the determination granting the authorisation is made. (2) An authorisation may be expressed to be in force for a period specified in the authorisation and, if so expressed, remains in force for that period only. SECTION 95AZK GENERALLY [11,913AZK.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________

[11,913AZL]

Minor variations of authorisations

95AZL (1) Application for variation The person to whom an authorisation was granted may apply to the Tribunal for a minor variation of the authorisation. (2) Requirements for valid application To be valid, the application must: (a) be in a form prescribed by the regulations and contain the information required by the form; and (b) be accompanied by such other information or documents as are prescribed by the regulations; and (c) be accompanied by the fee (if any) prescribed by the regulations. [page 816] (2A) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Tribunal. (3) Tribunal to notify if application is invalid If the Tribunal receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice: (a) stating that the person has not made a valid application; and (b) giving reasons why the purported application does not comply with this Division. (4) Tribunal to give the Commission a copy of the application The Tribunal must, if it is satisfied that the variation sought in the application is a minor variation, give a copy of it to the Commission within 3 business days of receiving it. (5) Application to be published on the internet After receiving a copy of the application, the Commission must: (a) subject to section 95AZA (confidentiality), put a copy of the application on its website; and (b) by notice on its website, invite submissions in respect of the application to be made to the Tribunal within a period specified by

the Tribunal. [subs (5) am Act 8 of 2010 s 3 and Sch 5, Pt 2[137(b)], opn 1 Mar 2010]

(6) Tribunal must make a determination on the application The Tribunal must make a determination in writing: (a) varying the authorisation; or (b) refusing to vary the authorisation. The Tribunal must notify the applicant in writing of its determination and give written reasons for it. (6A) In making its determination, the Tribunal must take into account: (a) any submissions received within the period specified under subsection (5); and (b) any information received under section 95AZC within the period specified in the relevant notice under that section (as that section applies because of subsection (13) of this section); and (c) any information received under subsection 95AZD(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (13) of this section); and (d) any information obtained from consultations under subsection 95AZD(2) (as that subsection applies because of subsection (13) of this section); and (e) the report given to it under section 95AZEA (as that section applies because of subsection (13) of this section); and (f) any thing done as mentioned in section 95AZF (as that section applies because of subsection (13) of this section). (6B) In making its determination, the Tribunal may disregard: (a) any submissions received after the period specified under subsection (5); and (b) any information received under section 95AZC after the period specified in the relevant notice under that section (as that section applies because of subsection (13) of this section); and [page 817] (c) any information received under subsection 95AZD(1) after the

period specified in the relevant notice under that subsection (as that subsection applies because of subsection (13) of this section). (7) When variation must not be granted The Tribunal must not make a determination varying an authorisation unless the Tribunal is satisfied that, in all the circumstances, the variation would not result, or would be likely not to result, in a reduction in the benefit to the public that arose from the original authorisation. (7A) Determination varying authorisation may also vary authorisation conditions A determination varying an authorisation may also vary the conditions (if any) of the authorisation to take account of the variation of the authorisation. (8) Time limits for determining application If the Tribunal has not made a determination on the application within the relevant period, the Tribunal is taken to have refused to vary the authorisation. (9) For the purposes of subsection (8), the relevant period is the period of 3 months beginning on the day the application was given to the Tribunal. However, if before the end of that 3 month period the Tribunal determines in writing that: (a) the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances; and (b) that period is extended by a specified period of not more than 3 months; the relevant period is that period as so extended. (10) If the Tribunal makes a determination under subsection (9), it must notify the applicant in writing of its determination before the end of that 3 month period. (11) 2 or more variations at the same time If: (a) a person applies for 2 or more variations: (i) at the same time; or (ii) in such close succession that the variations could conveniently be dealt with by the Tribunal at the same time; and (b) the Tribunal is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the authorisation;

the Tribunal may deal with all of those variations together as if they were a single minor variation. (12) Applicant may withdraw application The applicant may, by notice in writing to the Tribunal, withdraw the application at any time. (13) Powers and procedures of the Tribunal The following sections apply in relation to an application for a minor variation of an authorisation in the same way as they apply in relation to an application for an authorisation: (b) section 95AZC (Tribunal may seek additional information from applicant); (c) section 95AZD (Tribunal may seek further information and consult others etc); (ca) section 95AZEA (Tribunal must require Commission to give report); (d) section 95AZF (Commission to assist Tribunal); (e) section 95AZFA (Commission may make enquiries). SECTION 95AZL GENERALLY [11,913AZL.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________ [page 818]

[11,913AZM] Revocation of authorisation or revocation of authorisation and substitution of a new authorisation 95AZM (1) Application for revocation The Tribunal may revoke an authorisation, or revoke an authorisation and substitute a new authorisation, if the person to whom the authorisation was granted applies to the Tribunal for this to occur. (2) Requirements for valid application To be valid, the application must:

(a) be in a form prescribed by the regulations and contain the information required by the form; and (b) be accompanied by such other information or documents as are prescribed by the regulations; and (c) be accompanied by the fee (if any) prescribed by the regulations. (2A) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Tribunal. (3) Tribunal to notify if application is invalid If the Tribunal receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice: (a) stating that the person has not made a valid application; and (b) giving reasons why the purported application does not comply with this Division. (4) Tribunal to give the Commission a copy of the application The Tribunal must give a copy of the application to the Commission within 3 business days of receiving it. (5) Application to be published on the internet After receiving a copy of the application, the Commission must: (a) subject to section 95AZA (confidentiality), put a copy of the application on its website; and (b) by notice on its website, invite submissions in respect of the application to be made to the Tribunal within a period specified by the Tribunal. [subs (5) am Act 8 of 2010 s 3 and Sch 5, Pt 2[137(b)], opn 1 Mar 2010]

(6) Commission may apply for revocation The Commission may apply to the Tribunal for an authorisation to be revoked, or for an authorisation to be revoked and a new authorisation substituted for it, if the Commission is satisfied that: (a) the authorisation was granted on the basis of information that was false or misleading in a material particular; or (b) a condition of the authorisation has not been complied with; or (c) there has been a material change of circumstances since the

authorisation was granted. (7) Tribunal to give notice If the Tribunal is considering making a determination under subsection (6), the Tribunal must give a notice to the person to whom the authorisation was granted and cause a notice to be put on the Commission’s website: (a) stating that it is considering making the determination; and (b) indicating the basis on which the determination is being proposed; and (c) inviting submissions in respect of the determination within a period specified by the Tribunal. [page 819] (8) Tribunal must make a determination The Tribunal must make a determination in writing: (a) revoking the authorisation, or revoking the authorisation and substituting a new authorisation; or (b) refusing to revoke the authorisation. The Tribunal must notify, in writing, the person to whom the authorisation was granted of its determination and give written reasons for it. (8A) In making its determination, the Tribunal must take into account: (a) any submissions invited under subsection (5) or (7) that are received within the period specified under that subsection; and (b) any information received under section 95AZC within the period specified in the relevant notice under that section (as that section applies because of subsection (15) of this section); and (c) any information received under subsection 95AZD(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (15) of this section); and (d) any information obtained from consultations under subsection 95AZD(2) (as that subsection applies because of subsection (15) of this section); and (e) the report given to it under section 95AZEA (as that section applies because of subsection (15) of this section); and

(f)

any thing done as mentioned in section 95AZF (as that section applies because of subsection (15) of this section). (8B) In making its determination, the Tribunal may disregard: (a) any submissions invited under subsection (5) or (7) that are received after the period specified under that subsection; and (b) any information received under section 95AZC after the period specified in the relevant notice under that section (as that section applies because of subsection (15) of this section); and (c) any information received under subsection 95AZD(1) after the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (15) of this section). (9) When revocation etc must not be granted If an objection (other than an objection that, in the Tribunal’s opinion, is vexatious or frivolous) to a revocation of an authorisation is made in a submission: (a) that was invited under subsection (5) or (7); and (b) that is received within the period specified; the Tribunal must not make a determination revoking the authorisation unless the Tribunal is satisfied that it would, if the authorisation had not already been granted, be prevented under section 95AZH from granting the authorisation. (10) The Tribunal must not make a determination revoking an authorisation and substituting another authorisation unless it is satisfied that it would not be prevented under section 95AZH from making a determination granting the substituted authorisation, if it were a new authorisation sought under section 95AU. (11) Time limits for determining application If the Tribunal has not made a determination on an application under subsection (1) or (6) within the relevant period, the Tribunal is taken to have refused to revoke the authorisation. [page 820] (12) For the purposes of subsection (11), the relevant period is the period of 3 months beginning on the day the application was given to the Tribunal.

However, if before the end of that 3 month period the Tribunal determines in writing that: (a) the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances; and (b) that period is extended by a specified period of not more than 3 months; the relevant period is that period as so extended. (13) If the Tribunal makes a determination under subsection (12), it must notify the applicant in writing of its determination before the end of that 3 month period. (14) Withdrawal of application The applicant may withdraw an application under subsection (1), and the Commission may withdraw an application under subsection (6), by notice in writing to the Tribunal at any time. (15) Powers and procedures of the Tribunal The following sections apply in relation to an application for a revocation, or a revocation and substitution, of an authorisation in the same way as they apply in relation to an application for an authorisation: (b) section 95AZC (Tribunal may seek additional information from applicant); (c) section 95AZD (Tribunal may seek further information and consult others etc); (ca) section 95AZEA (Tribunal must require Commission to give report); (d) section 95AZF (Commission to assist Tribunal); (e) section 95AZFA (Commission may make enquiries). (16) Substituted authorisations The following sections apply in relation to an authorisation substituted under this section in the same way as they apply in relation to an authorisation granted under section 95AZG: (a) section 95AZJ (Authorisation subject to conditions); (b) section 95AZK (When authorisation is in force). SECTION 95AZM GENERALLY [11,913AZM.5] Overview

This section was inserted by the Trade

Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________

Subdivision D — Miscellaneous

[11,913AZN] information

Providing false or misleading

95AZN (1) A person must not give information to the Commission or Tribunal under this Division or Division 3 of Part IX if the person is negligent as to whether the information is false or misleading in a material particular. Note: Under section 76, the Court may order a person who contravenes this section to pay a pecuniary penalty. See also sections 80AC, 81A and 86C for other related remedies. (2) For the purposes of subsection (1), proof that the person knew, or was reckless as to whether, the information was false or misleading in a material particular is taken to be proof that the person was negligent as to whether the information was false or misleading in a material particular. [page 821] SECTION 95AZN GENERALLY [11,913AZN.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [72,913AT.5]. _____________________

[page 823] PART VIIA — PRICES SURVEILLANCE [Pt VIIA insrt Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004] INTRODUCTION TO PART VIIA [11,915.1] Overview The Trade Practices Legislation Amendment Act 2003 (which commenced on 1 March 2004) repealed the Prices Surveillance Act 1983 (PSA) and replaced it with Pt VIIA in the Trade Practices Act 1974. The PSA was introduced in 1983 as part of the Commonwealth government’s prices and incomes policy. It was intended to restrain price increases as part of an overall strategy to control inflationary pressures in the economy. The PSA provides for three types of price oversight: public inquiries conducted by the commission; price notification where specified companies are to notify the commission of a proposed price increase; and monitoring and reporting by the commission of prices, costs and profits of companies. In February 2000, the Productivity Commission was asked by the Assistant Treasurer to review the PSA. The PC delivered its report, Review of the Prices Surveillance Act 1983, Report No 14 on 14 August 2001. In its report the Productivity Commission noted that there has been considerable change in the economic and political environment since the PSA was first introduced. Monetary policy has been successful in keeping inflation low. Following a program of microeconomic reform (including the National Competition Policy of 1995), the role of price oversight has shifted to controlling monopolistic pricing by firms that do not face effective competition. This has also been partly addressed by the national access regime in Pt IIIA of the Act, which permits third party access to national infrastructure on terms negotiated or subject to regulatory intervention. The difficulty of prices setting (and the consequences of setting an incorrect price) prompted the Productivity Commission to recommend against those measures in the PSA that are an indirect form of price control. A measure of this type was also not considered necessary in view of the national access regime. The Productivity Commission concluded that there is a limited role for retaining only a modified inquiry and monitoring function in the PSA. As the PSA was enacted in different circumstances and no longer reflects good regulatory drafting, the Productivity Commission recommended that it be repealed and included as a new Part of the Act. In this way price oversight would also be viewed as a plank of Australia’s competition policy. While the government agreed with the thrust of the Productivity Commission’s recommendations, it considered that there was merit in retaining the existing price restriction provisions where it might be in the public interest, for example in circumstances where markets are undergoing structural change. Part VIIA is intended to give effect to the Productivity Commission’s recommendations and the government’s response. Like the PSA, it provides for price inquiries, price notification and price monitoring and for penalties for non-compliance. While it retains many of the concepts and provisions of the PSA, the drafting style has been modernised.

_____________________

DIVISION 1 — PRELIMINARY

[11,915A]

Interpretation

95A (1) In this Part, unless the contrary intention appears: applicable period, in relation to a locality notice, has the meaning given by section 95ZB. [page 824] body means any organisation or body, whether incorporated or unincorporated, and includes a group of 2 or more individuals. business notice means a notice under subsection 95L(3). Commonwealth authority means: (a) the Commonwealth; or (b) an authority, institution or other body (other than a society, association or incorporated company) established for a public purpose by or under a law of the Commonwealth; or (c) a society, association or incorporated company in which the Commonwealth, or an authority, institution or other body of the kind referred to in paragraph (b), has a controlling interest. declared person, in relation to goods or services of a particular description, means a person in relation to whom a declaration under subsection 95X(2) in relation to goods or services of that description is in force. exempt supply, in relation to goods or services of a particular description, means a supply of goods or services of that description in relation to which a declaration under section 95B is in force. external inquiry means an inquiry by a body other than the Commission. goods includes: (a) ships, aircraft and other vehicles; and

(b) animals, including fish; and (c) minerals, trees and crops, whether on, under or attached to land or not; and (d) water; and (e) gas and electricity. inquiry means an inquiry held in accordance with this Part into a matter or matters relating to prices for the supply of goods or services. inquiry body means: (a) in relation to an inquiry to be held, or being held, by the Commission — the Commission; or (b) in relation to an inquiry to be held, or being held, by a body other than the Commission — the other body. inquiry Chair means: (a) in relation to an inquiry to be held, or being held, by the Commission — the member of the Commission presiding at the inquiry; or (b) in relation to an inquiry to be held, or being held, by a body other than the Commission — the person presiding at the inquiry. inquiry notice means a notice under section 95H. law of the Commonwealth does not include: (a) the Northern Territory (Self-Government) Act 1978; or (b) the Norfolk Island Act 1979; or (c) a law made under, or continued in force by, an Act referred to in paragraph (a) or (b). [page 825] locality notice means a notice under subsection 95Z(5). member of the staff of the Commission means a person referred to in subsection 27(1) or a person engaged under section 27A. notified goods or services means goods or services of a particular

description in relation to which a declaration under subsection 95X(1) is in force. person includes a Commonwealth authority and a State or Territory authority. price includes: (a) a charge of any description; and (b) in relation to goods or services — any pecuniary benefit, whether direct or indirect, received or to be received by a person for or in connection with the supply by the person of the goods or services. response notice means a notice under subparagraph 95Z(6)(c)(i). services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and includes, but is not limited to, the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under: (a) a contract for or in relation to: (i) the performance of work (including work of a professional nature), whether with or without the supply of goods; or (ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or (iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or (b) a contract of insurance; or (c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or (d) any contract for or in relation to the lending of moneys; but does not include rights or benefits being the supply of goods or the performance of work under a contract of service. State or Territory authority means: (a) a State, the Australian Capital Territory or the Northern

Territory; or (b) an authority, institution or other body (except a society, association or incorporated company) established for a public purpose by or under a law of a State, the Australian Capital Territory or the Northern Territory; or (c) a society, association or incorporated company in which a State, the Australian Capital Territory or the Northern Territory, or an authority, institution or other body of the kind referred to in paragraph (b), has a controlling interest. supply includes: (a) in relation to goods — supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase; and (b) in relation to services — provide, grant or confer. [page 826] (2) In this Part, unless the contrary intention appears: (a) a reference to the supply of goods or services includes a reference to agreeing to supply goods or services; and (b) a reference to the supply of goods includes a reference to the supply of goods together with other property or services, or both; and (c) a reference to the supply of services includes a reference to the supply of services together with property or other services, or both; and (d) a reference to the supply of goods does not include a reference to: (i) a supply for use outside Australia; or (ii) a supply for which a price is not charged; or (iii) any other supply prescribed by the regulations; and (e) a reference to the supply of services does not include a reference to: (i) a supply outside Australia; or (ii) a supply for which a price is not charged; or (iii) any other supply prescribed by the regulations.

(3) For the purposes of this Part, a supply by way of retail sale is taken not to be a supply on terms and conditions that are the same as, or substantially similar to, the terms and conditions of a supply by way of wholesale sale.

[11,915B]

Exempt supplies

95B (1) The Minister, or the Commission with the approval of the Minister, may by notice published in the Gazette declare a supply of goods or services of a specified description, that is a supply in a specified manner, of a specified kind or in specified circumstances, to be an exempt supply for the purposes of this Part. (2) The Minister, or the Commission with the approval of the Minister, may by notice published in the Gazette vary or revoke a declaration under subsection (1).

[11,915C] 95C (a) (b) (c) (d) (e) (f)

(g)

Application of Part

(1) This Part applies in relation to the supply of goods or services: by a Commonwealth authority; or by a foreign corporation; or by a trading corporation in the course of, or for the purposes of, its trading operations; or by a financial corporation in the course of, or for the purposes of, its business operations; or by a body corporate incorporated in a Territory (other than the Northern Territory or Norfolk Island); or in an internal Territory (other than the Northern Territory), the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; or in the course of, or in connection with, trade or commerce: (i) among the States; or (ii) between a State and an internal Territory; or (iii) between a State and the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; or

[page 827] (iv) between an internal Territory and the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; or (v) between the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands; or (vi) between 2 internal Territories; and not otherwise. (2) However, this Part does not apply in relation to the supply of goods or services by: (a) an authority, institution or other body (except a society, association or incorporated company) established for a public purpose by or under a law of Norfolk Island; or (b) a society, association or incorporated company in which a controlling interest is held by Norfolk Island, or an authority, institution or other body covered by paragraph (a).

[11,915D]

Crown to be bound

95D (1) This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. (2) Nothing in this Part makes the Crown liable to be prosecuted for an offence. (3) The protection in subsection (2) does not apply to an incorporated Commonwealth authority or an incorporated State or Territory authority.

[11,915E]

Object of this Part

95E The object of this Part is to have prices surveillance applied only in those markets where, in the view of the Minister, competitive pressures are not sufficient to achieve efficient prices and protect consumers.

[11,915F]

Simplified overview of this Part

95F (1) This Part deals with 3 main things. (2) Price inquiries First, it provides for the Commission or another body to hold price inquiries in relation to the supply of goods or services. (3) These inquiries may relate to the supply of goods or services by a particular person. If so, the person’s ability to increase the prices of those goods or services during a particular period is restricted. However, there is a way for the person to increase prices during that period. (4) Price notifications Second, this Part allows the Minister or the Commission to declare goods or services to be notified goods or services and to declare a person to be a declared person in relation to such goods or services. (5) If this happens, the person’s ability to increase the prices of such goods or services during a particular period is restricted. However, there is a way for the person to increase prices during that period. (6) Price monitoring Third, this Part allows the Minister to direct the Commission to undertake price monitoring. [page 828] (7) This may be in relation to supplies of goods or services in a particular industry or in relation to supplies of goods or services by particular persons. DIVISION 2 — COMMISSION’S FUNCTIONS UNDER THIS PART

[11,915G] Part

Commission’s functions under this

95G (1) The Commission’s functions under this Part are set out in this section. (2) Price inquiries The Commission is to hold such inquiries as it is required to hold under section 95H. (3) The Commission may, with the Minister’s approval under section 95H,

hold such other inquiries as it thinks fit. (4) The Commission is to give the Minister a report on the results of each inquiry it holds. (5) Price notifications The Commission is to consider locality notices and to take, in relation to such notices, such action in accordance with this Part as it considers appropriate. (6) Price monitoring The Commission is to monitor prices, costs and profits in any industry or business that the Minister directs it to monitor and is to give the Minister a report on the results of such monitoring. (7) General In exercising its powers and performing its functions under this Part, the Commission must, subject to any directions given under section 95ZH, have particular regard to the following: (a) the need to maintain investment and employment, including the influence of profitability on investment and employment; (b) the need to discourage a person who is in a position to substantially influence a market for goods or services from taking advantage of that power in setting prices; (c) the need to discourage cost increases arising from increases in wages and changes in conditions of employment inconsistent with principles established by relevant industrial tribunals. DIVISION 3 — PRICE INQUIRIES Subdivision A — Holding of inquiries

[11,915H]

Price inquiries

95H (1) Inquiries by Commission The Minister may, by notice in writing given to the Chairperson, require the Commission to hold an inquiry into a specified matter or specified matters. (2) The Minister may, by notice in writing given to the Chairperson, approve the Commission holding an inquiry into a specified matter or specified matters. [page 829]

(3) Inquiries by other bodies The Minister may, by notice in writing, request a body other than the Commission to hold an inquiry into a specified matter or specified matters. (4) The other body must, if it agrees to hold the inquiry, appoint a person to preside at the inquiry. The appointment must be in writing. (5) However, if the other body is a group of 2 or more individuals, the Minister must, by writing, appoint one of those individuals to preside at the inquiry. (5A) The Minister must, as soon as practicable after confirmation that the other body will hold the inquiry, table a statement in each House of the Parliament: (a) specifying that the body will hold the inquiry; and (b) giving the Minister’s reasons for requesting the body, rather than the Commission, to hold the inquiry. (6) No inquiry in relation to exempt supply A notice under this section must not authorise the holding of an inquiry into a supply of goods or services of a particular description that is an exempt supply in relation to goods or services of that description. (7) No inquiry in relation to a State or Territory authority A notice under this section must not authorise the holding of an inquiry into the supply by a State or Territory authority of goods or services. SECTION 95H GENERALLY [11,915H.5] Overview This provision permits the minister to require the commission to hold an inquiry into a specified matter, except an exempt supply or the supply of goods or services by a state or territory authority. Petrol pricing inquiry On 15 June 2007 the treasurer approved the holding of a price inquiry by the commission into the price of unleaded petrol examining: the current structure of the industry; the extent of competition at the refinery; wholesale and retail levels, including the role of imports; the determination of prices at each of these levels, including the methodology for determining wholesale prices and current impediments to efficient petrol pricing and possible methods to address them. The commission delivered its report to the minister in December 2007.

Grocery inquiry On 22 January 2008 the Assistant Treasurer and Minister for Competition Policy and Consumer Affairs requested that the commission hold a public inquiry into the competitiveness of retail prices for standard groceries. The commission released its report in July 2008. _____________________

[11,915J]

Content of inquiry notices

95J (1) Description of goods or services An inquiry notice must specify the description of the goods or services in relation to which the inquiry is to be held. (2) Supply of goods or services by particular persons An inquiry notice must also specify whether the inquiry is to be held in relation to the supply of goods or services of that description by a particular person or persons. (3) If such an inquiry is to be held, the notice may also specify that person or persons. If it does not, the inquiry body must, by writing, determine that person or persons. [page 830] (4) The inquiry Chair must give the Minister notice in writing of the determination. (5) No inquiry in relation to a State or Territory authority The inquiry body must not determine a State or Territory authority as a person in relation to whom an inquiry will be held. (6) Ministerial directions The Minister may, in an inquiry notice, give such directions as he or she thinks fit as to the holding of the inquiry and the matters to be taken into consideration in the inquiry. (7) The inquiry body must comply with any such directions.

[11,915K]

Period for completing inquiry

95K (1) Inquiry period An inquiry notice must specify the period within which the inquiry is to be completed and a report on the inquiry is to

be given to the Minister. (2) The inquiry body must complete the inquiry and give the report to the Minister within that period. (3) Extensions The Minister may, before the end of the completion period, extend or further extend that period by notice in writing given to the inquiry Chair. Example: A notice under subsection (1) specifies that an inquiry is to be completed and a report given by 1 August. On 30 July the Minister gives a notice under subsection (3) extending the deadline to 8 August. On 6 August the Minister gives another notice under subsection (3) further extending the deadline to 12 August. (4) If the Minister does so, the inquiry body must complete the inquiry and give its report within the completion period as so extended or further extended. (5) In this section: completion period means the period within which the inquiry body is required by this section to complete an inquiry and to give its report on the inquiry.

[11,915L]

Notice of holding of inquiry

95L (1) General notice An inquiry body must, as soon as practicable, give notice of an inquiry it is to hold. (2) The notice must be given in each State, the Australian Capital Territory and the Northern Territory by advertisement published in the Gazette and in a newspaper circulating in that State or Territory. (3) Notice to particular person or persons If the inquiry is to be held in relation to the supply of goods or services by a particular person or persons, the inquiry body must, as soon as practicable, give the person, or each of the persons, a notice in writing. (4) Content of notice A notice under this section must: (a) state that the inquiry body is to hold the inquiry; and

(b) specify the matter or matters in relation to which the inquiry is to be held; and (c) specify the time and place at which the inquiry is to start; and (d) in the case of a notice under subsection (3) — set out the effect of section 95N; and (e) specify any other matter prescribed by the regulations. [page 831]

[11,915M] Notice of extension of period for completing inquiry 95M (1) If: (a) an inquiry is being held in relation to the supply of goods or services of a particular description by a particular person or persons; and (b) the Minister extends, or further extends, the period within which the inquiry is required to be completed and a report on the inquiry given to the Minister; the inquiry body must, as soon as possible, give the person, or each of the persons, a notice in writing giving details of the extension or further extension.

[11,915N]

Price restrictions

95N (1) This section applies if an inquiry body gives a person a business notice stating that it is to hold an inquiry in relation to the supply by the person of goods or services of a particular description. (2) Offence: previous local supply The person commits an offence if: (a) before the applicable day in relation to the business notice, the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions; and (b) the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions

in the period of 12 months before the current supply; and (c) the current supply is at a price that exceeds the highest price at which the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in that period; and (d) in a case where a notice has been given to the person under subsection (5) — the current supply is not in accordance with the notice. Penalty: 100 penalty units. [subs (2) am Act 4 of 2016 s 3 and Sch 4 item 66, opn 10 Mar 2016]

(3) Offence: no previous local supply The person commits an offence if: (a) before the applicable day in relation to the business notice, the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions; and (b) the person has not supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the period of 12 months before the current supply, but has supplied goods or services of that description elsewhere in Australia on the same or substantially similar terms and conditions in that period; and (c) the current supply is at a price that exceeds the highest price at which the person has supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in that period; and (d) in a case where a notice has been given to the person under subsection (5) — the current supply is not in accordance with the notice. Penalty: 100 penalty units. [subs (3) am Act 4 of 2016 s 3 and Sch 4 item 66, opn 10 Mar 2016]

[page 832] (4) Offence: no previous supply in Australia The person commits an offence if:

(a) before the applicable day in relation to the business notice, the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions; and (b) the person has not supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in the period of 12 months before the current supply; and (c) in a case where a notice has been given to the person under subsection (5) — the current supply is not in accordance with the notice. Penalty: 100 penalty units. [subs (4) am Act 4 of 2016 s 3 and Sch 4 item 66, opn 10 Mar 2016]

(5) Approval to increase prices The Commission may give the person a notice in writing stating that the person is permitted, during the period: (a) beginning on a specified day; and (b) ending at the beginning of the applicable day in relation to the business notice; to supply goods or services of a specified description in a specified locality on specified terms and conditions at a price not exceeding a specified price. (6) The Commission may give a notice under subsection (5) on its own initiative or on the application of the person. (7) Consultation In an external inquiry, the Commission must consult the body holding the inquiry before giving a notice under subsection (5). (8) Definition In this section: applicable day, in relation to a business notice, means the 14th day after whichever is the earlier of the following days: (a) the day on which the person given the notice receives a copy of the report by the inquiry body on the inquiry to which the notice relates; (b) the last day of the period within which the inquiry body is required to complete the inquiry to which the notice relates and to give the Minister a report on the inquiry.

Subdivision B — Reports on inquiries

[11,915P]

Copies of report to be made available

95P (1) Inquiry into supply of goods or services by particular persons For an inquiry held in relation to the supply of goods or services by a particular person or persons, the inquiry body must send the person, or each of the persons, a copy of the report on the inquiry on the day on which it gives the Minister the report. (2) A copy of a report sent to a person must be accompanied by a notice in writing setting out the effect of section 95Q. (3) All inquiries For any inquiry, the inquiry body must, unless the Minister directs otherwise, make copies of the report on the inquiry available for public inspection as soon as practicable after the period of 28 days beginning on the day on which it gives the Minister the report. [page 833]

[11,915Q] Notification of proposed prices after receipt of report 95Q (1) This section applies if a person receives a copy of a report on an inquiry held in relation to the supply by the person of goods or services of a particular description. (2) Price notification The person must, within 14 days after receiving the copy, give the Commission a notice in writing specifying the price or prices at which the person is supplying, or proposing to supply, goods or services of that description. (3) Offence A person commits an offence if the person contravenes subsection (2). Penalty: 10 penalty units. [subs (3) am Act 4 of 2016 s 3 and Sch 4 item 66, opn 10 Mar 2016]

(4) Public notification The Commission must, within 14 days after it receives the notice under subsection (2), make publicly available details of the price or prices specified in the notice.

Subdivision C — Procedure at inquiries

[11,915R]

Public inquiries etc

95R (1) Public inquiries An inquiry body must hold an inquiry in public, unless the Minister directs otherwise. (2) Taking of evidence The inquiry body may take evidence in private at an inquiry held in public if: (a) a witness objects to giving, in public, evidence that the inquiry body is satisfied is of a confidential nature; and (b) the inquiry body considers that it is desirable to do so. (3) The inquiry body may permit a person appearing as a witness at the inquiry to give evidence by giving, and verifying by oath or affirmation, a written statement. (4) If a statement is so given in an inquiry held in public, the inquiry body must make available to the public in such manner as it thinks fit the contents of the statement other than any matter: (a) that the person who gave the evidence objects to being made public; and (b) the evidence of which the body is satisfied would have been taken in private if that evidence had been given orally and the person had objected to giving it in public. (5) Written submissions The inquiry body may require or permit a person desiring to make a submission to the body to make the submission in writing. (6) If a submission is so made in an inquiry held in public, the inquiry body must make available to the public in such manner as it thinks fit the contents of the submission. (7) Procedure The procedure to be followed at an inquiry is within the discretion of the inquiry Chair. The inquiry body is not bound by the rules of evidence. (8) Subsection (7) operates: (a) subject to this Part; and (b) in any case — subject to any direction given to the inquiry body by the Minister; and

[page 834] (c) in an inquiry held by the Commission and at which the inquiry Chair is not the Chairperson — subject to any direction given to the inquiry Chair by the Chairperson. Note: See also section 95ZN (about confidentiality of information).

[11,915S] Taking of evidence on oath or affirmation 95S (1) Evidence on oath or affirmation An inquiry body may take evidence at an inquiry on oath or affirmation. (2) An oath or affirmation may be administered by: (a) in an inquiry by the Commission — a member of the Commission; or (b) in an external inquiry — the person presiding at the inquiry. (3) Summons The inquiry Chair may, by writing signed by him or her, summon a person to appear at an inquiry to give evidence and to produce such documents (if any) as are specified in the summons. (4) In an inquiry by the Commission, the power conferred on the inquiry Chair by subsection (3) may, at his or her discretion, be exercised on the application of another person.

[11,915T]

Failure of witness to attend

95T (1) A person commits an offence if: (a) the person is given a summons to appear as a witness at an inquiry; and (b) the person fails to attend as required by the summons or fails to appear and report himself or herself from day to day; and (c) the person has not been excused, or released from further attendance, by: (i) in an inquiry by the Commission — a member of the Commission; or

in an external inquiry — the person presiding at the (ii) inquiry. Penalty: 10 penalty units. [subs (1) am Act 4 of 2016 s 3 and Sch 4 item 66, opn 10 Mar 2016]

(2) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

[11,915U] question

Refusal to be sworn or to answer

95U (1) A person appearing as a witness at an inquiry must not: (a) refuse or fail to swear an oath or to make an affirmation if required to do so by: (i) in an inquiry by the Commission — a member of the Commission; or (ii) in an external inquiry — the person presiding at the inquiry; or (b) refuse or fail to answer a question that he or she is required to answer by the inquiry Chair; or (c) refuse or fail to produce a document that he or she was required to produce by a summons under this Part given to him or her. Penalty: 10 penalty units. [page 835] (2) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code). (3) It is a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to answer a question on the ground that the answer might tend to incriminate the person or to expose the person to a penalty. (4) It is a reasonable excuse for the purposes of subsection (2) for a person

to refuse or fail to produce a document on the ground that the production of the document might tend to incriminate the person or to expose the person to a penalty. (5) Subsections (3) and (4) do not limit what is a reasonable excuse for the purposes of subsection (2).

[11,915V]

Protection of witnesses

95V Subject to this Part, a person summoned to attend or appearing as a witness at an inquiry has the same protection, and is, in addition to the penalties provided by this Part, subject to the same liabilities, in any civil or criminal proceedings as a witness in proceedings in the High Court.

[11,915W]

Allowances to witnesses

95W (1) A witness summoned under this Part to appear at an inquiry is entitled to be paid such allowances for his or her travelling, and such other expenses, as are prescribed by the regulations. (2) The witness is entitled to be paid by: (a) if the witness was summoned by the inquiry Chair — the Commonwealth; or (b) if the witness was summoned on the application of a person — that person. (3) The regulations may provide for those allowances and expenses by reference to a scale of expenses for witnesses who attend before a court specified in the regulations. DIVISION 4 — PRICE NOTIFICATIONS

[11,915X] Declarations by Minister or Commission 95X (1) Notified goods or services The Minister, or the Commission with the approval of the Minister, may by notice published in the Gazette declare goods or services of a specified description to be notified goods or

services for the purposes of this Part. (2) Declared persons The Minister, or the Commission with the approval of the Minister, may by notice published in the Gazette declare a person to be, in relation to goods or services of a specified description, a declared person for the purposes of this Part. (3) The Commission must give the person notice in writing of a declaration under subsection (2). The notice must set out the effect of section 95Z. (4) A declaration under subsection (2) must specify the time when it is to cease to have effect. Such a declaration ceases to have effect at the time specified, unless it is revoked sooner. [page 836] (5) Variation or revocation The Minister, or the Commission with the approval of the Minister, may by notice published in the Gazette vary or revoke a declaration under this section.

[11,915Y] Declarations in relation to State or Territory authorities 95Y (1) The Minister must not make or approve a declaration of a State or Territory authority under section 95X unless: (a) the appropriate Minister of the State or Territory concerned has agreed to the declaration being made; or (b) the Council has, on the request (the current request) of an Australian government, recommended the declaration and the Minister has consulted the appropriate Minister of the State or Territory concerned. (2) Role of Council The Council must not recommend a declaration of a State or Territory authority in relation to goods or services unless it is satisfied that: (a) at least one Australian government has notified the State or

Territory concerned that the government is not satisfied that there is effective supervision of the prices charged by the authority for the supply of those goods or services; and (b) there is not such effective supervision; and (c) the supply of those goods or services by the authority has a significant direct or indirect impact on qualifying trade or commerce. (3) The Council must also not recommend a declaration of a State or Territory authority in relation to goods or services if: (a) in the 5 year period before it received the current request, it was satisfied (when considering a previous request) that there was effective supervision of prices charged by the authority for the supply of those goods or services; and (b) it is satisfied that there has not been a substantial change in the mechanism for that supervision since it was satisfied as mentioned in paragraph (a). (4) In deciding whether there is effective supervision of prices charged by a State or Territory authority, if the State or Territory concerned is a party to the Competition Principles Agreement, the Council must apply the relevant principles set out in the agreement. (5) Definitions In this section: Australian government means the Commonwealth, a State, the Australian Capital Territory or the Northern Territory. qualifying trade or commerce means trade or commerce described in paragraph 95C(1)(g) or trade and commerce between Australia and another place.

[11,915Z] 95Z

Price restrictions

(1) Offence: previous local supply A person commits an offence

if: (a) the person is a declared person in relation to notified goods or services; and (b) the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions (the

actual terms) at a particular price (the actual price); and [page 837] (c) the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the period of 12 months before the current supply; and (d) the actual price exceeds the highest price at which the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in that period; and (e) the current supply is not an exempt supply. Penalty: 100 penalty units. Note: Subsection (4) contains a defence to this offence. [subs (1) am Act 4 of 2016 s 3 and Sch 4 item 66, opn 10 Mar 2016]

(2) Offence: no previous local supply A person commits an offence if: (a) the person is a declared person in relation to notified goods or services; and (b) the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions (the actual terms) at a particular price (the actual price); and (c) the person has not supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the period of 12 months before the current supply, but has supplied goods or services of that description elsewhere in Australia on the same or substantially similar terms and conditions in that period; and (d) the actual price exceeds the highest price at which the person has supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in that period; and (e) the current supply is not an exempt supply. Penalty: 100 penalty units. Note: Subsection (4) contains a defence to this offence.

[subs (2) am Act 4 of 2016 s 3 and Sch 4 item 66, opn 10 Mar 2016]

(3) Offence: no previous supply in Australia A person commits an offence if: (a) the person is a declared person in relation to notified goods or services; and (b) the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions (the actual terms) at a particular price (the actual price); and (c) the person has not supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in the period of 12 months before the current supply; and (d) the current supply is not an exempt supply. Penalty: 100 penalty units. Note: Subsection (4) contains a defence to this offence. [subs (3) am Act 4 of 2016 s 3 and Sch 4 item 66, opn 10 Mar 2016]

(4) Defence Subsection (1), (2) or (3) does not apply if the following 4 requirements are satisfied. Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code). [page 838] (5) Locality notice The first requirement is that the person has given the Commission a notice (a locality notice) in writing stating that the person proposes to supply goods or services of that description in that locality on specified terms and conditions (the proposed terms) at a specified price (the proposed price). Note: The person may give further notices modifying the locality notice: see section 95ZA. (6) Response to locality notice The second requirement is that: (a) the applicable period in relation to the locality notice has ended; or (b) the Commission has given the person a notice in writing stating that it has no objection to the person supplying goods or services of that description in that locality on the proposed terms at the

proposed price; or (c) both of the following apply: (i) the Commission has given the person a notice (the response notice)in writing stating that it would have no objection to the person supplying goods or services of that description in that locality on the proposed terms at a specified price (the approved price) that is less than the proposed price; (ii) the person has, not later than 7 days after being given the response notice, given the Commission a notice in writing stating that the person proposes to supply goods or services of that description in that locality on the proposed terms at a price not exceeding the approved price. (7) Actual terms The third requirement is that the actual terms are the same as, or substantially similar to, the proposed terms. (8) Actual price The fourth requirement is that the actual price does not exceed: (a) if paragraph (6)(a) or (b) applies — the proposed price; or (b) if paragraph (6)(c) applies — the approved price.

[11,915ZA] notice

Later notices modifying a locality

95ZA (1) If a person gives the Commission a locality notice, the person may give the Commission one or more further notices in writing stating that the locality notice is to have effect as if there were substituted for the proposed price another specified price. (2) A price specified in a notice under subsection (1) must be: (a) less than the proposed price; and (b) less than the price specified in any previous notice under that subsection in relation to the locality notice. (3) If a notice is given under subsection (1), the locality notice has effect accordingly. (4) In this section:

proposed price has the meaning given by subsection 95Z(5).

[11,915ZB] Applicable period in relation to a locality notice 95ZB (1) The applicable period in relation to a locality notice is the period (the price-freeze period) of 21 days starting on the day on which the notice was given. (2) However, the Commission may, with the consent of the person who gave the locality notice, determine, before the end of the price-freeze period, that the applicable period in relation to the notice for the purposes of this section is a specified longer period. [page 839] (3) If the Commission so determines, that longer period is taken to become the applicable period in relation to the locality notice. (4) Also, if the Commission has given a response notice, the period that is the applicable period (worked out under subsections (1) to (3)) in relation to the locality notice is taken to be increased by a period of 14 days. Example: On 1 May the person gives the Commission a locality notice. Under subsection (1), the applicable period ends on 21 May. On 9 May the Commission, with the consent of the person, determines, under subsection (2), that the applicable period ends on 31 May. If the Commission also gives the person a response notice, under subsection (4), the applicable period instead of ending on 31 May ends on 14 June.

[11,915ZC]

Register of price notifications

95ZC (1) Keeping of register The Commission must keep, at such place as it thinks fit, a register for the purposes of this section.

(2) Information on the register If a person has given the Commission a locality notice, the Commission must, as soon as practicable after the end of the applicable period in relation to the notice, include in the register: (a) a copy of the notice, on which has been endorsed, or to which has been attached, a statement indicating the outcome of the Commission’s consideration of the notice (including any action taken by it in relation to the notice and the outcome of any such action); and (b) a copy of each notice given under this Part to, or by, the Commission in relation to the locality notice; and (c) a statement of the reasons for the outcome of the Commission’s consideration of the locality notice. (3) Gazette notice The Commission must, within 3 months after the end of the applicable period in relation to the locality notice, cause to be published in the Gazette a notice: (a) stating that the Commission received the locality notice and specifying the date it received the notice; and (b) setting out such particulars (if any) relating to the outcome of the Commission’s consideration of the locality notice as it considers appropriate. (4) Exclusion of confidential information A person who gives the Commission a document in relation to a locality notice, or who makes an oral submission to the Commission in relation to such a notice, may ask it to exclude from a document to be placed in the register any information: (a) that was in the document given by the person or in the submission made by the person; and (b) that the person claims is confidential. (5) The Commission may exclude the information if it is satisfied that the claim is justified and is not of the opinion that disclosure of the information is necessary in the public interest. [page 840] (6) An application may be made to the Administrative Appeals Tribunal

for the review of a decision under subsection (5) to refuse to exclude the information. (7) Inspection of register A person may, at any time during ordinary office hours in the place where the register is kept, inspect or make copies of, or take extracts from, the register. (8) Validity of acts done The validity of an act done by the Commission in relation to a locality notice is not affected by a failure of the Commission to comply with this section.

[11,915ZD]

Delegation by Commission

95ZD (1) The Commission may, by writing, delegate to a member of the Commission: (a) the Commission’s price notification powers in relation to specified locality notices; and (b) the Commission’s power under section 95ZJ relating to a notice given by the member exercising (as a delegate) the Commission’s price notification powers. (2) In this section: price notification powers means the Commission’s powers under paragraph 95Z(6)(b) or (c). DIVISION 5 — PRICE MONITORING

[11,915ZE] Directions to monitor prices, costs and profits of an industry 95ZE (1) The Minister may give the Commission a written direction: (a) to monitor prices, costs and profits relating to the supply of goods or services by persons in a specified industry; and (b) to give the Minister a report on the monitoring at a specified time or at specified intervals within a specified period. (2) Commercial confidentiality The Commission must, in preparing such a report, have regard to the need for commercial confidentiality. (3) Public inspection The Commission must make copies of the report

available for public inspection as soon as practicable after it gives the Minister the report.

[11,915ZF] Directions to monitor prices, costs and profits of a business 95ZF (1) The Minister may give the Commission a written direction: (a) to monitor prices, costs and profits relating to the supply of goods or services by a specified person; and (b) to give the Minister a report on the monitoring at a specified time or at specified intervals within a specified period. (2) Commercial confidentiality The Commission must, in preparing such a report, have regard to the need for commercial confidentiality. [page 841] (3) Commission to send person a copy of the report The Commission must send the person a copy of the report on the day it gives the Minister the report. (4) Public inspection The Commission must also make copies of the report available for public inspection as soon as practicable after the person has received a copy of the report.

[11,915ZG]

Exceptions to price monitoring

95ZG (1) Exempt supplies The Minister must not direct the Commission under this Division to monitor prices, costs and profits relating to a supply of goods or services of a particular description that is an exempt supply in relation to goods or services of that description. (2) State or Territory authorities The Minister must not direct the Commission under this Division to monitor prices, costs and profits of a State or Territory authority that supplies goods or services unless the State or Territory concerned has agreed to the direction being given.

DIVISION 6 — OTHER PROVISIONS

[11,915ZH]

Ministerial directions

95ZH (1) Commission The Minister may, by notice in writing give to the Chairperson, direct the Commission to give special consideration to a specified matter or matters in exercising its powers and performing its functions under this Part. (2) The Commission must comply with any such directions. (3) Other bodies The Minister may, by notice in writing given to the person presiding at an external inquiry, direct the body holding the inquiry to give special consideration to a specified matter or matters in holding the inquiry. (4) The body must comply with any such directions.

[11,915ZI] Inquiries by an unincorporated body or a group of 2 or more individuals 95ZI (1) This section applies to inquiries by an unincorporated body or a group of 2 or more individuals. (2) The regulations may make provision for and in relation to the manner in which the unincorporated body or group of individuals is to: (a) give a notice, report or other document to a person under this Part; or (b) do any other thing under this Part.

[11,915ZJ]

Withdrawal of notices

95ZJ (1) Commission The Commission may give a person a notice (the withdrawal notice) in writing withdrawing a notice it previously gave the person under this Part (other than this section). [page 842]

(2) If the Commission does so, this Part has effect, from the time at which the withdrawal notice is given to the person, as if the other notice had not been given to the person. (3) Other bodies The body holding an external inquiry may give a person a notice (the withdrawal notice) in writing withdrawing a notice it previously gave the person under this Part (other than this section). (4) If the body does so, this Part has effect, from the time at which the withdrawal notice is given to the person, as if the other notice had not been given to the person.

[11,915ZK] documents

Power to obtain information or

95ZK (1) Notice by Commission If the Chairperson has reason to believe that a person is capable of giving information or producing documents relevant to: (a) the Commission considering the matters contained in a locality notice that the person has given it; or (b) an inquiry that is being held in relation to the person; or (c) a supply of goods or services by the person that is of a kind in relation to which the Commission is carrying out an inquiry; or (d) a supply of goods or services by the person that is of a kind in relation to which the Commission is monitoring under section 95ZE or 95ZF; the Chairperson may, by notice in writing signed by him or her and given to the person, require the person to do one or more of the following: (e) give the Commission, by writing signed by the person or his or her agent or, in the case of a Commonwealth authority or a body corporate, by a competent officer of the authority or body, within the specified period and in the specified manner, specified information relating to the affairs of the person; (f) produce to the Commission, within the specified period and in the specified manner, specified documents relating to the affairs of the person; (g) if the person is a body corporate and the notice relates to the matter

in paragraph (d) — give the Commission, together with the information or documents concerned, a declaration in a form approved by the Chairperson and signed by: (i) the Chief Executive Officer (however described) of the body corporate; or (ii) a person nominated by the Chief Executive Officer; stating that the information or documents are true and correct. (2) Notice by other bodies If: (a) an external inquiry is being held in relation to a person; and (b) the inquiry Chair has reason to believe that the person is capable of giving information or producing documents relevant to the inquiry; the inquiry Chair may, by notice in writing signed by him or her and given to the person, require the person: (c) to give the body, by writing signed by the person or his or her agent or, in the case of a Commonwealth authority or a body corporate, by a competent officer of the authority or body, within the specified period and in the specified manner, specified information relating to the affairs of the person; or [page 843] (d) to produce to the body, within the specified period and in the specified manner, specified documents relating to the affairs of the person. (3) Period specified in notice A period specified in a notice under subsection (1) or (2) must end at least 14 days after the notice was given. (4) Offence: refusal or failure to comply with notice A person commits an offence if the person refuses or fails to comply with a notice given to the person under this section. Penalty: 20 penalty units. [subs (4) am Act 4 of 2016 s 3 and Sch 4 item 66, opn 10 Mar 2016]

(5) Subsection (4) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

(6) It is a reasonable excuse for the purposes of subsection (4) for an individual to refuse or fail to give information or produce a document on the ground that the information or production of the document might tend to incriminate the individual or to expose the individual to a penalty. (7) Subsection (6) does not limit what is a reasonable excuse for the purposes of subsection (5). (8) Offence: false or misleading declarations A person must not, in a declaration made for the purposes of paragraph (1)(g), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading. Penalty: 20 penalty units. (9) Making information or documents publicly available If: (a) a notice is given to a person under this section relating to an inquiry that is being held in public in relation to the person; and (b) the person gives the information concerned or produces the documents concerned to the inquiry body in connection with the inquiry; the inquiry body must make the information or documents available to the public in such manner as it thinks fit. Note: See also section 95ZN (about confidentiality of information).

[11,915ZL]

Inspection of documents etc

95ZL (1) Members or staff members A member of the Commission, or a member of the staff of the Commission, may inspect documents: (a) given to the Commission for the purposes of the exercise of its powers or the performance of its functions under this Part; or (b) produced at an inquiry. (2) A member of the Commission, or a member of the staff of the Commission, may also make copies of, or take extracts from, those documents. (3) Associate members An associate member of the Commission may inspect documents: (a) given to the Commission for the purposes of the exercise of its powers or the performance of its functions under this Part in

relation to an inquiry for the purposes of which the Chairperson has directed that the associate member be taken to be a member of the Commission; or [page 844] (b) produced at that inquiry. (4) An associate member of the Commission may also make copies of, or take extracts from, those documents. (5) External inquiries In an external inquiry, the person presiding at the inquiry, or a person providing assistance in the inquiry to the body holding the inquiry, may: (a) inspect documents given to the body for the purposes of the inquiry; and (b) make copies of, or take extracts from, those documents.

[11,915ZM]

Retention of documents

95ZM (1) The Commission, or a body other than the Commission, may retain a document given or produced to it as mentioned in section 95ZL. It may retain the document for such reasonable period as it thinks fit. (2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Commission or other body, as the case may be, to be a true copy. (3) The certified copy must be received in all courts and tribunals as evidence as if it were the original. (4) Until a certified copy is supplied, the Commission or other body, as the case may be, must, at such times and places as it thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.

[11,915ZN]

Confidential information

95ZN (1) This section applies if a person claims that disclosure of the following information would damage the competitive position of the person: (a) information made available, or to be made available, by or on behalf of the person (whether in oral evidence or in a written statement, submission or other document) at the hearing of an inquiry by the Commission or another body; (b) information given, or contained in a document produced, by the person under section 95ZK to the Commission or another body. (2) Commission or other body to take confidentiality steps If the Commission or other body, as the case may be: (a) is satisfied that the claim is justified; and (b) is not of the opinion that disclosure of the information is necessary in the public interest; it must take all reasonable steps to ensure that the information is not disclosed, without the consent of the person, in the proceedings or by it, to a person other than: (c) in relation to the Commission: (i) a member of the Commission or an associate member of the Commission; or (ii) a member of the staff of the Commission who receives the information in the course of his or her duties; or (d) in relation to the other body: (i) the person presiding at the inquiry concerned; or (ii) a person providing assistance in the inquiry to the other body. [page 845] (3) Interpretation This section has effect despite anything in sections 95R and 95ZK.

[11,915ZO] 95ZO

Immunity

(1) Members or associate members of the Commission A

member of the Commission, or an associate member of the Commission, has, in the performance of his or her functions or the exercise of his or her powers under this Part as a member or associate member, the same protection and immunity as a Justice of the High Court. (2) Person presiding at an external inquiry In an external inquiry, the person presiding at the inquiry has, in the performance of his or her functions or the exercise of his or her powers under this Part in that capacity, the same protection and immunity as a Justice of the High Court.

[11,915ZP] Secrecy: members or staff members of the Commission etc 95ZP (1) Offence An entrusted person commits an offence if: (a) the person: (i) makes a copy or other record of any protected information or of all or part of any protected document; or (ii) discloses any protected information to another person or to a court; or (iii) produces all or part of a protected document to another person or to a court; and (b) in doing so, the person is not acting in the course of performing or exercising functions, powers or duties under or in relation to this Act. Penalty: Imprisonment for 2 years. [subs (1) am Act 4 of 2016 s 3 and Sch 4 item 66, opn 10 Mar 2016]

(2) Courts An entrusted person cannot be required to: (a) disclose any protected information to a court; or (b) produce all or part of a protected document to a court; unless that disclosure or production is necessary for the purpose of carrying into effect the provisions of this Act. (3) Definitions In this section: court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. entrusted person means a person who is or was:

a member of the Commission or an associate member of the (a) Commission; or (b) a member of the staff of the Commission; or (c) appointed or engaged under the Public Service Act 1999. produce includes permit access to. protected document means a document that: (a) is given to or otherwise acquired by the Commission for the purposes of this Part; and (b) has not been made available to the public by the Commission under this Part. [page 846] protected information means information that: (a) is disclosed to, or obtained by, an entrusted person for the purposes of this Part or as permitted by the repealed Part; and (b) has not been made available to the public under this Part by the Commission and is not contained in oral evidence given in public at the hearing of an inquiry. repealed Part means Part V of the Prices Surveillance Act 1983, as continued in operation by Schedule 2 to the Trade Practices Legislation Amendment Act 2003.

[11,915ZQ] Secrecy: persons involved in inquiries by bodies other than the Commission 95ZQ (1) Offence An external person commits an offence if: (a) the person: (i) makes a copy or other record of any protected information or of all or part of any protected document; or (ii) discloses any protected information to another person or to a court; or (iii) produces all or part of a protected document to another

person or to a court; and (b) in doing so, the person is not acting in the course of performing or exercising functions, powers or duties under or in relation to this Act. Penalty: Imprisonment for 2 years. [subs (1) am Act 4 of 2016 s 3 and Sch 4 item 66, opn 10 Mar 2016]

(2) Courts An external person cannot be required to: (a) disclose any protected information to a court; or (b) produce all or part of a protected document to a court; unless that disclosure or production is necessary for the purpose of carrying into effect the provisions of this Act. (3) Definitions In this section: court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. external person means a person who is or was: (a) the person presiding at an external inquiry; or (b) a person providing assistance in such an inquiry to the body holding the inquiry. produce includes permit access to. protected document means a document that: (a) is given to or otherwise acquired by the body holding the external inquiry concerned for the purposes of that inquiry; and (b) has not been made available to the public by that body under this Part. protected information means information that: (a) is disclosed to, or obtained by, an external person for the purposes of the inquiry concerned; and [page 847] (b) has not been made available to the public under this Part by the body holding that inquiry and is not contained in oral evidence given in public at the hearing of that inquiry.

[page 849] PART VIII — RESALE PRICE MAINTENANCE INTRODUCTION TO PART VIII [12,010.1] Overview Section 48 of the Act prohibits resale price maintenance. This Part specifies the practices that constitute resale price maintenance under s 48, the circumstances in which those practices will be taken to apply, evidentiary provisions and the permitted practice of recommended prices. Precisely why it was thought necessary to separate the prohibition in s 48 from the practices in this Part which constitute resale price maintenance is unclear.

[12,010] Acts constituting engaging in resale price maintenance 96 (1) Subject to this Part, a corporation (in this section called the supplier) engages in the practice of resale price maintenance if that corporation does an act referred to in any of the paragraphs of subsection (3). (2) Subject to this Part, a person (not being a corporation and also in this section called the supplier) engages in the practice of resale price maintenance if that person does an act referred to in any of the paragraphs of subsection (3) where the second person mentioned in that paragraph is a corporation. (3) The acts referred to in subsections (1) and (2) are the following: (a) the supplier making it known to a second person that the supplier will not supply goods to the second person unless the second person agrees not to sell those goods at a price less than a price specified by the supplier; (b) the supplier inducing, or attempting to induce, a second person not to sell, at a price less than a price specified by the supplier, goods supplied to the second person by the supplier or by a third person who, directly or indirectly, has obtained the goods from the supplier;

the supplier entering into an agreement, or offering to enter into an agreement, for the supply of goods to a second person, being an agreement one of the terms of which is, or would be, that the second person will not sell the goods at a price less than a price specified, or that would be specified, by the supplier; (d) the supplier withholding the supply of goods to a second person for the reason that the second person: (i) has not agreed as mentioned in paragraph (a); or (ii) has sold, or is likely to sell, goods supplied to him or her by the supplier, or goods supplied to him or her by a third person who, directly or indirectly, has obtained the goods from the supplier, at a price less than a price specified by the supplier as the price below which the goods are not to be sold; (e) the supplier withholding the supply of goods to a second person for the reason that a third person who, directly or indirectly, has obtained, or wishes to obtain, goods from the second person: (i) has not agreed not to sell those goods at a price less than a price specified by the supplier; or (c)

[page 850]

(f)

(ii) has sold, or is likely to sell, goods supplied to him or her, or to be supplied to him or her, by the second person, at a price less than a price specified by the supplier as the price below which the goods are not to be sold; and the supplier using, in relation to any goods supplied, or that may be supplied, by the supplier to a second person, a statement of a price that is likely to be understood by that person as the price below which the goods are not to be sold.

[subs (3) am Act 88 of 1995 s 91]

(4) For the purposes of subsection (3): (a) where a price is specified by another person on behalf of the supplier, it shall be deemed to have been specified by the supplier;

(b) where the supplier makes it known, in respect of goods, that the price below which those goods are not to be sold is a price specified by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first-mentioned goods, by the supplier; (c) where a formula is specified by or on behalf of the supplier and a price may be ascertained by calculation from, or by reference to, that formula, that price shall be deemed to have been specified by the supplier; and (d) where the supplier makes it known, in respect of goods, that the price below which those goods are not to be sold is a price ascertained by calculation from, or by reference to, a formula specified by another person in respect of those goods or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first-mentioned goods, by the supplier. (5) In subsection (4), formula includes a set form or method. (6) For the purposes of subsection (3), anything done by a person acting on behalf of, or by arrangement with, the supplier shall be deemed to have been done by the supplier. (7) A reference in any of paragraphs (3)(a) to (e), inclusive, including a reference in negative form, to the selling of goods at a price less than a price specified by the supplier shall be construed as including references to: (a) the advertising of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be advertised for sale; (b) the displaying of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be displayed for sale; and (c) the offering of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be offered for sale; and a reference in paragraph (3)(d), (e) or (f) to a price below which the goods are not to be sold shall be construed as including a reference to the

price below which the goods are not to be advertised for sale, to the price below which the goods are not to be displayed for sale and to the price below which the goods are not to be offered for sale. SECTION 96 GENERALLY [12,010.5] Overview This section outlines those acts by a corporation and a person which will constitute resale price maintenance and so breach s 48 of the Act. In general terms a supplier will have engaged in resale price maintenance if the supplier: • makes it known that it will not supply goods unless the purchaser agrees not to sell those goods at a price less than that specified by the supplier (s 96(3)(a)); [page 851] •

•

•

•

induces or attempts to induce a purchaser not to sell goods supplied directly or indirectly by the supplier for a price less than that specified by the supplier (s 96(3)(b)); enters into or offers to enter into an agreement containing the term that a person obtaining the goods directly or indirectly from the supplier will not sell the goods for a price less than that specified by the supplier (s 96(3)(c)); withholds the supply of goods because the purchaser has: — not agreed not to sell those goods for a price less than that specified by the supplier; or — sold goods supplied to him directly or indirectly by the supplier for a price less than that specified by the supplier (s 96(3)(d)); withholds the supply of goods to a person because a third person who obtains those goods from the purchaser has: — not agreed not to sell those goods for a price less than that specified by the supplier; or — sold goods supplied to him directly or indirectly by the supplier for a price less than that specified by the supplier

•

(s 96(3)(e)); or uses in relation to any goods supplied by it a statement of a price that is likely to be understood by the purchaser as the price below which the goods may not be sold: s 96(3)(f).

[12,010.10] Motivation for supplier’s conduct It is not a defence or excuse for a breach of s 48 that the supplier was persuaded or coerced into doing so by one of its customers because, for example, that customer was unhappy with its competitors offering goods for sale at a lower price: Australian Competition and Consumer Commission v Dermalogica Pty Ltd (2005) 215 ALR 482; [2005] FCA 152; BC200500619 at [52] per Goldberg J. [12,010.15] “price specified by the supplier” For s 96 to apply, it is necessary for the supplier to have specified a price for the relevant goods. Section 96(4) provides that a price will be specified by the supplier in the following circumstances: • where a price is specified by a third person on behalf of the supplier (refer also to s 96(6) which provides that acts done on behalf of the supplier will be deemed to be the acts of the supplier); • where the supplier makes it known that the price below which the goods are not to be sold is that specified by a third person in relation to those goods or goods of a like description (refer also to s 96(6)); • where a formula is specified by or on behalf of the supplier and a price may be ascertained by reference thereto; and • where the supplier makes it known that the price below which the goods are not to be sold is to be calculated by a formula specified by another person. Section 4(1) defines price as a charge of any description. It is not necessary for a specific price to be stated — an approximation is sufficient: Trade Practices Commission v Bata Shoe Co of Australia Pty Ltd (1980) 44 FLR 145; (1980) ATPR ¶40-161; Peter Williamson Pty Ltd v Capitol Motors Pty Ltd (1982) 41 ALR 613; 61 FLR 257; (1982) ATPR ¶40291; Trade Practices Commission v Sony (Aust) Pty Ltd (1990) ATPR ¶41031; Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd

(1998) ATPR ¶41-641; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2002) ATPR (Digest) ¶46-215; [2001] FCA 1861; BC200108230 at [720] per Goldberg J. See also Trade Practices Commission v Penfolds Wines Pty Ltd (1991) 104 ALR 601; (1992) ATPR ¶41-163; Fairbairn v NCC Fashions Wholesale Pty Ltd [2005] FCA 1874; BC200511070 at [6] per Wilcox J. It is sufficient if the price is specified as being not less than that charged by another established retailer: Trade Practices Commission v Bata Shoe Co of Australia Pty Ltd, above. [page 852] A recommended price may be a specified price if it is not a true recommendation: Trade Practices Commission v Bata Shoe Co of Australia Pty Ltd, above; Trade Practices Commission v Pye Industries Pty Ltd (1978) ATPR ¶40-088; Trade Practices Commission v Service Station Assn Ltd (1992) 109 ALR 465; (1992) ATPR ¶41-179. See [12,010.45]. A price which is set by reference to some standard well known to the parties will also be a specified price: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168; 55 ALR 527; (1984) ATPR ¶40-482; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2), above, at [1004] per Goldberg J; see Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCA 762; BC200503921 per Gray J. A price is specified if it is ascertained by reference to a formula: s 96(4)(c). Section 96(4) defines “formula” as including a set form or method. In Commissioner of Trade Practices v Caltex Oil (Aust) Pty Ltd (1974) ATPR ¶40-000 Smithers J said: [The] notification by Caltex to Heath’s that the price which it desired Heath’s to adopt was three cents less than the Victorian Automobile Chamber price constituted a specification by Caltex of a formula by reference to which the price might be ascertained.

[12,010.35] Supplier making it known to second person that the supplier will not supply “making it known”

This expression involves the supplier expressing its

intentions in relation to price maintenance either directly through written or oral communication or by its conduct or indirectly by communication through a third party or publication: Australian Competition and Consumer Commission v Mayo International Pty Ltd (No 1) (1998) ATPR ¶41-653. It is not necessary that the supplier communicated its intention in strong language or in any particular mandatory form of words: Australian Competition and Consumer Commission v Dermalogica Pty Ltd (2005) 215 ALR 482; [2005] FCA 152; BC200500619 at [47] per Goldberg J. Although it is necessary to show that the supplier intended to use a threat to cause the second person to maintain the specified resale price, it is not necessary to show that the supplier actually intended to carry through on the threat: Australian Competition and Consumer Commission v Dermalogica Pty Ltd, above, at [48] per Goldberg J. “agreement” of second person not to sell below specified price An agreement under s 96(3)(a) need not be confined to something resembling a negotiated compact or the explicit provision of an assurance. It can extend to acquiescence or submission by the second person to a unilateral demand by the supplier: Australian Competition and Consumer Commission v Dermalogica Pty Ltd (2005) 215 ALR 482; [2005] FCA 152; BC200500619 at [50] per Goldberg J; see Australian Competition and Consumer Commission v Telwater Pty Ltd [2009] FCA 263; BC200901829 at [42] per Spender J. There is no need for evidence that a formal agreement is sought. All that must be shown is that the supplier made it known that agreement by the second person not to discount is required to maintain supply. It need not be shown that the supplier was even seeking acknowledgment that it had been made known, let alone any indication of the second person’s intended course of conduct in response to the making known: Australian Competition and Consumer Commission v Dermalogica Pty Ltd, above, at [51] per Goldberg J. [12,010.40] Supplier “inducing or attempting to induce” second person This expression is not defined in the Act. However, it might be taken to mean an exercise of persuasion or influence in order to bring about certain conduct in another person. This may take the form of both threats and extortions and promises of some benefit. It may also simply be a request for compliance. In Australian Competition and Consumer Commission v Mayo

International Pty Ltd (No 1) (1998) ATPR ¶41-653 at 41,276, Kiefel J said that “inducing” refers to actions which are effective, although they may not have comprised actual coercion or pressure, or the offer of an advantage. [page 853] The second person referred to in s 96(3)(b) is a reseller: Australian Competition and Consumer Commission v Mayo International Pty Ltd (No 1), above, at 41,276. The threat to withdraw a benefit, even one applied at the discretion of the supplier, may in certain circumstances amount to conduct carried out by a supplier with the intention of inducing a retailer to sell at not less than a price specified by the supplier: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168; 55 ALR 527; (1984) ATPR ¶40-482; Trade Practices Commission v BP Australia Ltd (1985) 7 FCR 499; 62 ALR 151; (1985) ATPR ¶40-638; Kadkhudayan v WD & HO Wills (Aust) Ltd (2001) ATPR ¶41-822; [2001] FCA 645; BC200102786 at [32] per Lee J; (appeal) Kadkhudayan v WD & HO Wills (Aust) Ltd (2002) ATPR ¶41-874; [2002] FCAFC 110; BC200202155 at [50] per North, Goldberg and Carr JJ. Examples of conduct which the courts have found to be an inducement or attempted inducement include the following: • withholding supply of products until a specified price is met: Trade Practices Commission v Pye Industries Pty Ltd (1978) ATPR ¶40-088; Trade Practices Commission v Bata Shoe Co of Australia Pty Ltd (1980) 44 FLR 145; (1980) ATPR ¶40-161; • the withdrawal of advertising or other allowances: Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR 544; 47 FLR 334; (1980) ATPR ¶40-169. See Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432; BC200701951 per Kiefel J; • a statement in a letter to a retailer to the effect, “Would you please note that all future advertisements for Sharp electronic calculators should show our uniform retail price”: Trade Practices Commission v Sharp Corp Australia Ltd (1975) 8 ALR 255; (1975) ATPR ¶40-010;

•

• •

a statement that it was illegal to sell products below the specified price: Commissioner of Trade Practices v Dalgety Australia Ltd (1973) 22 FLR 62 (prior legislation); offering a discount: Australian Competition and Consumer Commission v Mayo International Pty Ltd (No 1), above; and the withdrawal of a price support benefit: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168; 55 ALR 527; (1984) ATPR ¶40-482; Trade Practices Commission v BP Australia Ltd (1985) 7 FCR 499; 62 ALR 151; (1985) ATPR ¶40-638; Kadkhudayan v WD & HO Wills (Aust) Ltd, above, (2001); (appeal) Kadkhudayan v WD & HO Wills (Aust) Ltd, above, (2002) at [50] per North, Goldberg and Carr JJ.

[12,010.45] Recommended price A supplier will not have induced a person to engage in resale price maintenance if the price is a recommended price under s 97. However, a price will cease to be a recommended price if it is not a genuine recommendation, for example where there is an obligation to comply: Trade Practices Commission v Bata Shoe Co of Australia Pty Ltd (1980) 44 FLR 145; (1980) ATPR ¶40-161. See [12,010.15]. [12,010.55] “for the reason that” The reason must be a substantial reason: Peter Williamson Pty Ltd v Capitol Motors Pty Ltd (1982) 41 ALR 613; 61 FLR 257; (1982) ATPR ¶40-291. [12,010.60] “selling” and advertising for sale This term is defined in s 96(7) as including advertising the goods, displaying the goods for sale and offering the goods for sale. The purpose of the provision is that maintenance of advertised prices indirectly amounts to maintenance of sale prices: Commissioner of Trade Practices v Caltex Oil (Australia) Pty Limited (1974) 4 ALR 133; 23 FLR 457 at 473; (1974) ATPR 40-000; Australian Competition and Consumer Commission v Telwater Pty Ltd [2009] FCA 263; BC200901829 at [13] per Spender J. The term “offering” is defined in s 4(2). [page 854] [12,010.65] “statement of price”

This term is defined in s 99(1) as a

statement which is: • applied to the goods by being woven in, impressed on, worked into or annexed or affixed to the goods or otherwise; • applied to a covering, label, reel or thing in or with which the goods are supplied; or • used in a sign, advertisement, invoice, catalogue, business letter, business paper, price list or other document or otherwise in a manner likely to lead to the belief that it refers to the goods. The term “covering” is defined in s 99(2) as including a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper. The term “label” includes a band or ticket. _____________________

[12,013] services

Resale price maintenance in relation to

96A (1) This Part applies to conduct in relation to services in a way that corresponds to the way it applies to conduct in relation to goods. (2) For the purposes of subsection (1), this Part is to be read with appropriate modifications, including the following modifications: (a) references in this Part to goods are to be read as references to services; (b) references to the sale of goods are to be read as references to the re-supply of services. [s 96A insrt Act 88 of 1995 s 21]

SECTION 96A GENERALLY [12,013.5] Overview This section was inserted by the Competition Policy Reform Act 1995. The section has the effect of ensuring that resale price maintenance practices are caught regardless of whether they apply to goods or services. For this purpose, a new definition of resupply of services has been inserted in s 4C(f). _____________________

[12,015]

Recommended prices

97 For the purposes of paragraph 96(3)(b), the supplier is not to be taken as inducing, or attempting to induce, a second person as mentioned in that paragraph in relation to any goods: (a) by reason only of a statement of a price being applied to the goods as mentioned in paragraph 99(1)(a) or being applied to a covering, label, reel or thing as mentioned in paragraph 99(1)(b), provided that the statement is preceded by the words “recommended price”; or (b) by reason only of his or her having given notification in writing to the second person (not being a notification by way of a statement being applied as mentioned in paragraph (a)) of the price that he or she recommends as appropriate for the sale of those goods, provided that there is included in the notification, and in each writing that refers, whether expressly or by implication, to the notification, a statement to the following effect: “The price set out or referred to herein is a recommended price only and there is no obligation to comply with the recommendation.”. [s 97 am Act 88 of 1995 s 91]

[page 855] SECTION 97 GENERALLY [12,015.5] Overview This is a definitional section which provides that a person will not be taken to have induced or attempted to induce resale price maintenance by reason only that the person has set a genuine non-obligatory recommended price. Section 97(a) provides that where a supplier applies a price to goods by way of recommendation, it must be preceded by the words “recommended price”. Section 97(b) provides that where a supplier notifies a recommended price in writing, he must also include a statement to the effect that: “The price set out or referred to herein is a recommended price only and there is no

obligation to comply with the recommendation.”. _____________________

[12,020]

Withholding the supply of goods

98 (1) For the purposes of paragraph 96(3)(d) or (e), the supplier shall be deemed to withhold the supply of goods to another person if: (a) the supplier refuses or fails to supply those goods to, or as requested by, the other person; (b) the supplier refuses to supply those goods except on terms that are disadvantageous to the other person; (c) in supplying goods to the other person, the supplier treats that person less favourably, whether in respect of time, method or place of delivery or otherwise, than the supplier treats other persons to whom the supplier supplies the same or similar goods; or (d) the supplier causes or procures a person to withhold the supply of goods to the other person as mentioned in paragraph (a), (b) or (c) of this subsection. (2) Paragraph 96(3)(d) does not apply in relation to the withholding by the supplier of the supply of goods to another person who, within the preceding year, has sold goods obtained, directly or indirectly, from the supplier at less than their cost to that other person: (a) for the purpose of attracting to the establishment at which the goods were sold persons likely to purchase other goods; or (b) otherwise for the purpose of promoting the business of that other person. (3) For the purposes of subsection (2), there shall be disregarded: (a) a genuine seasonal or clearance sale of goods that were not acquired for the purpose of being sold at that sale; or (b) a sale of goods that took place with the consent of the supplier. SECTION 98 GENERALLY [12,020.5] Overview This section outlines the circumstances when a supplier will be deemed to have withheld supply for the purposes of s 96(3). These circumstances arise where the supplier:

• • •

•

refuses or fails to supply goods to or as requested by a person; refuses to supply goods except on disadvantageous terms; treats a person less favourably in terms of time, method or place of delivery or otherwise than other persons to whom he supplies the same or similar goods; or causes or procures another person to do any of the above.

[12,020.10] Defences Section 98(2) provides that a withholding of supply will not constitute resale price maintenance where it can be established that the reason for the withholding was because the person seeking supply had used the goods for the purposes of loss leader selling within the immediately preceding year. [page 856] [12,020.30] Loss leadering The elements of the defence of loss leadering are set out in s 98(2). Loss leadering occurs where, in the year preceding the withholding of supply, the person seeking supply sold goods obtained from the supplier at less than their cost for the purpose of either: • attracting customers to that person’s business establishment; or • otherwise promoting the business of that person. Section 98(3) provides that this defence will not arise in situations where there is either a genuine seasonal or clearance sale of goods (which were not acquired specifically for that purpose) or the supplier has consented to the sale. The term “purpose” is defined in s 4F. In Trade Practices Commission v Orlane Australia Pty Ltd (1984) 1 FCR 157; 51 ALR 767; (1984) ATPR ¶40437 the court said that the purpose to be considered in resale price maintenance cases was the subjective purpose. [12,020.35] “less than cost” In Trade Practices Commission v Orlane Australia Pty Ltd (1984) 1 FCR 157; 51 ALR 767; (1984) ATPR ¶40-437 Northrop J said that the word “cost” did not mean price but rather meant the sum of acquisition costs together with marginal expenses referable solely and directly to the goods sold. The Full Federal Court in this case said that the term “cost” meant the net acquisition cost or the delivered cost of the goods.

[12,020.40] Case law The relevant case law in this area is as follows: • Commissioner of Trade Practices v Dalgety Australia Ltd (1973) 22 FLR 62; • Cool and Sons Pty Ltd v O’Brien Glass Industries Ltd (1981) 35 ALR 445; (1981) ATPR ¶40-220; • Trade Practices Commission v Orlane Australia Pty Ltd (1984) 1 FCR 157; 51 ALR 767; (1984) ATPR ¶40-437. _____________________

[12,025] goods

Statements as to the minimum price of

(1) For the purposes of paragraph 96(3)(f), if: (a) a statement is applied to goods, whether by being woven in, impressed on, worked into or annexed or affixed to the goods or otherwise; (b) a statement is applied to a covering, label, reel or thing in or with which goods are supplied; or (c) a statement is used in a sign, advertisement, invoice, catalogue, business letter, business paper, price list or other document or otherwise in a manner likely to lead to the belief that it refers to goods; the statement shall be deemed to have been used in relation to those goods. (2) For the purposes of subsection (1), covering includes a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper and label includes a band or ticket. 99

[12,030]

Evidentiary provisions

100 (1) Where, in proceedings under this Act by a person (in this section referred to as the plaintiff) against another person (in this section referred to as the defendant), it is claimed that the defendant has engaged in the practice of resale price maintenance and it is established that: (a) the defendant has acted, in relation to the plaintiff, as mentioned in paragraph 98(1)(a), (b), (c) or (d);

during a period ending immediately before the time when the (b) defendant so acted, the defendant had been supplying goods of the kind withheld to the plaintiff or to another person carrying on a business similar to that of the plaintiff; and [page 857] (c) during the period of 6 months immediately before the time when the defendant so acted, the defendant became aware of a matter or circumstance capable of constituting a reason referred to in paragraph 96(3)(d) or (e) for the defendant’s so acting; then, subject to subsection (2), it shall be presumed, unless the contrary is established, that that matter or circumstance was the reason for the defendant’s so acting. (2) Subsection (1) does not apply where the plaintiff establishes the matter mentioned in paragraph 98(1)(b) or (c) but the terms disadvantageous to the plaintiff, or the less favourable treatment of the plaintiff, consisted only of a requirement by the defendant as to the time at which, or the form in which, payment was to be made or as to the giving of security to secure payment. (3) In the application of this section in proceedings by the Commission for an injunction, references to the plaintiff shall be construed as references to a person specified in the application for the injunction as the person in relation to whom the defendant is claimed to have acted as mentioned in paragraph (1)(a). [subs (3) am Act 88 of 1995 s 67]

SECTION 100 GENERALLY [12,030.5] Overview This section outlines a number of evidentiary procedures which effectively ease the burden of proof on the person bringing an action for resale price maintenance. Section 100(3) provides that if the plaintiff can establish that a supplier withheld supply of goods where previously supply had been granted and within the 6 months immediately prior to the withholding the plaintiff had

been involved in discounting the goods below the specified price or supplying the goods to a person doing so, it will be presumed unless proven to the contrary that this was the reason for the withholding of supply. Section 100(2) provides that the above deeming provision will not apply in relation to a supplier providing disadvantageous terms or less favourable treatment consisting only of a requirement as to the timing or form of payment or security to be given. _____________________

[page 859] PART IX — REVIEW BY TRIBUNAL OF DETERMINATIONS OF COMMISSION INTRODUCTION TO PART IX [12,130.1] Overview This Part permits a person who is dissatisfied with a determination by the commission in relation to an application for an authorisation or in relation to the revocation of an authorisation to apply to the tribunal for a review of the determination. The Part specifies the functions and powers of the tribunal, the procedure of the tribunal and evidentiary matters.

DIVISION 1 — APPLICATIONS FOR REVIEW (OTHER THAN FOR MERGER CLEARANCES) [Div 1 am Act 131 of 2006 s 3 and Sch 1[28], opn 1 Jan 2007]

[12,130]

Applications for review

101 (1) A person dissatisfied with a determination by the Commission under Division 1 of Part VII: (a) in relation to an application for an authorization or a minor variation of an authorization; or (b) in relation to the revocation of an authorization, or the revocation of an authorization and the substitution of another authorization; may, as prescribed and within the time allowed by or under the regulations or under subsection (1B), as the case may be, apply to the Tribunal for a review of the determination. [subs (1) subst Act 101 of 1998 Sch 1.49; am Act 131 of 2006 s 3 and Sch 1[29], opn 1 Jan 2007]

(1AAA) Subsection (1) does not apply to a determination under subsection 89(1A). [subs (1AAA) insrt Act 131 of 2006 s 3 and Sch 2[11], opn 1 Jan 2007]

(1AA) If: (a) the person applying under subsection (1) for review of a determination was the applicant for an authorization, or for the

minor variation of an authorization, for the revocation of an authorization or for the revocation of an authorization and the substitution of another authorization; or (b) the Tribunal is satisfied that the person has a sufficient interest; the Tribunal must review the determination. [subs (1AA) insrt Act 101 of 1998 Sch 1.49]

(1A) Where a person has, whether before or after the commencement of this subsection, made an application under subsection (1) for a review of a determination, the Tribunal may, if the Tribunal determines it to be appropriate, make a determination by consent of the applicant, the Commission, and all persons who have been permitted under subsection 109(2) to intervene in the proceedings for review, whether or not the Tribunal is satisfied of the matters referred to in subsection 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) or (9). [subs (1A) am Act 131 of 2006 s 3 and Sch 6[15], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[86], opn 24 July 2009; Act 185 of 2011 s 3 and Sch 1[15], opn 6 June 2012]

[page 860] (1B) A presidential member may, on the application of a person concerned: (a) in an application for an authorization under subsection 88(9); or (b) in an application for a minor variation or a revocation of such an authorization; or (c) in an application for the revocation of such an authorization and the substitution of another authorization; shorten the time allowed by or under the regulations within which an application under subsection (1) may be made for a review of the determination by the Commission of the application referred to in paragraph (a), (b) or (c) if the member is satisfied that special circumstances exist and that, in all the circumstances, it would not be unfair to do so. [subs (1B) subst Act 101 of 1998 Sch 1.51]

(2) A review by the Tribunal is a re-hearing of the matter and subsections 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) and (9), 91A(4), 91A(5),

91B(5) and 91C(7) apply in relation to the Tribunal in like manner as they apply in relation to the Commission. [subs (2) am Act 101 of 1998 Sch 1.52; Act 131 of 2006 s 3 and Sch 6[16], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[87], opn 24 July 2009; Act 185 of 2011 s 3 and Sch 1[16], opn 6 June 2012]

SECTION 101 GENERALLY [12,130.5] Overview Section 101(1) provides a mechanism whereby a person who is dissatisfied with a decision of the commission in relation to an authorisation may apply to the tribunal for a review of that decision. If the tribunal is satisfied that the applicant has a “sufficient interest” it shall review the decision. Section 101(1A) allows the tribunal, with the consent of the applicant, the commission and any other persons allowed to intervene in the review proceedings under s 109(2), to make a determination even if it is not satisfied that the requisite public benefit has been established. This avoids the need for a full hearing. Section 101(1B) provides that a presidential member may shorten the length of time within which an application for review can be lodged if the member is satisfied that special circumstances exist and it would not be unfair to do so. Section 101(2) provides that any review will constitute a rehearing of the matter for all intents and purposes. [12,130.20] “sufficient interest” The tribunal must be satisfied that an applicant has a prima facie case for establishing that it has “sufficient interest” to seek a review under s 101. The categories of persons who have a sufficient interest include a person who establishes that his business interests or prospects could be adversely affected: Application by Wylie Steel Pty Ltd (1980) ATPR ¶40-170 at 42,344. The expression “sufficient interest” must be interpreted in the context of s 101 and having regard to the purpose of the Act and to the purpose of the limitation: Re Alliance Agreement; Application by PK Wakeman (1999) ATPR ¶41-675; Re Telstra Corp Ltd (2001) 160 FLR 120; (2001) ATPR ¶41812; [2001] ACompT 1; BC200100396. The qualitative content of a “sufficient interest” should not depend on the character of the Commission’s decisions that is sought to be reviewed:

Application by Independent Contractors Australia [2015] ACompT 1 per Mansfield J, RC Davey and R Steinwall. In Application by Independent Contractors Australia [2015] ACompT 1 at [39]–[40], Mansfield J, RC Davey and R Steinwall said: Finally, although the decision to permit a person to intervene in an application under s 109(2) is of a different character, it is the suggestion of the learned author of Competition And Consumer Law (Thomson Reuters, Looseleaf at [10.890], pp 251-2205) that the measure of [page 861] what an applicant for leave to intervene must demonstrate is a related question. The observations of the Tribunal in Re Fortescue, and in Re Qantas Airways Ltd (2003) ATPR 41-972; [2003] ACompT 4 at [9] (Re Qantas) may therefore also provide guidance. In Re Qantas, the Tribunal (Goldberg J, President and GF Latta and DK Round, Members) noted that s 109(2) does not ex-pressly impose a “sufficient interest” test, and that the competing contentions were that the proposed intervenor needed to show “a real and substantial interest” or that it needed to show only “a sufficient interest”. The Tribunal said at [7] that leave to intervene should be given, “whether the test be a real and substantial interest, a sufficient interest, or an interest which needs to be sufficient to justify the cost and the inconvenience of an extra party . . .”. It is implicit in that observation that the test expressly imposed by s 101(1AA)(b) of a sufficient interest imposes, in some degree at least, a lesser burden than the “real and substantial” test which appears to have been applied in the particular circumstances considered in Re Wakeman.

The standard applied however, is not to be unduly high. This is because if it were it may involve determining the very questions that will emerge at the hearing: Application by Wylie Steel Pty Ltd (1980) ATPR ¶40-170 at 42,345; Broken Hill Proprietary Co Ltd v Trade Practices Tribunal (1980) 31 ALR 401; 47 FLR 384; (1980) ATPR ¶40-173. If at the hearing the applicant does not have a sufficient interest it may then be open to review the standing of the applicant: Application by Wylie Steel Pty Ltd, above, at 42,345. It is unlikely that the requirement of a real and substantial interest arising under s 90A(12) should apply to s 101(1). The real and substantial interest requirement in s 90A(12) only applies where the commission is considering an application for an authorisation: Re Application by Jools, President of NSW Taxi Drivers Assn (2005) 219 ALR 328; [2005] ACompT 4 at [35] per Goldberg J. [12,130.22] Determination by consent under s 101(1A) In determining whether it is appropriate to make a consent determination under s 101(1A), the tribunal should consider four issues. First, whether the consent

determination is within power of the tribunal under s 102(1). Second, the tribunal must be satisfied that the procedures envisaged by the Act for making the application for authorisation and for seeking a review have been fulfilled. Third, the consent determination must not contain terms that contravene any other law. Fourth, the terms of the consent determination must not be such as to suggest that the determination would be inconsistent with the public benefit test envisaged under s 90(6): Re Application by National Foods Ltd (2002) ATPR ¶41-885; [2002] ACompT 3; BC200204820 at [9]–[13] per von Doussa J, Professor R S Duncan and Mr G F Latta. [12,130.23] Shortening the time allowed under s 101(1B) In Re Application by Adelaide Brighton Ltd Pursuant to Section 101(1B) of the Trade Practices Act 1974 (1999) ATPR ¶41-690, the tribunal made an order shortening the time within which a person who was dissatisfied with the commission’s decision could apply to the tribunal for a review. The order was made as the tribunal was satisfied that there were special circumstances, in particular that the applicant had to meet a number of critical time limits imposed by parties to the transaction. As this was the first application made to the tribunal under s 101(1B), the tribunal’s reasons were published to serve as a procedural guide to the section (at 42,821). Von Doussa J, the presidential member of the tribunal, offered the following guidance: • as no particular form is prescribed, an application should be commenced using the standard Form 5 from the Federal Court Rules, appropriately adapted; • an application should be considered at a hearing that is public and not by way of an informal and in camera approach to a presidential member; • the commission should be served as a matter of course as it may be able to offer assistance to the tribunal on the matters that will arise for consideration; • there is nothing to prevent an application being made before the outcome of the application to the commission for authorisation is known; [page 862]

•

•

•

•

•

the exercise of the power to shorten time is conditional on the presidential member being satisfied as to two matters, first that “special circumstances exist” and secondly, that “in all the circumstances, it would be unfair to . . . shorten time”; in the context of an application under s 101(1B), by an application for authorisation under s 88(9), it can be expected that the special circumstances relied on to enliven the power will be special circumstances peculiar to the applicant; the requirement of special circumstances could reasonably be determined on information given by the applicant without hearing any other person who may have an interest in the outcome; the condition relating to unfairness is directed mainly to matters concerning the situation of other persons whose interests could be affected by an order shortening time; and a final order should not be made under s 101(1B) until after the commission’s determination is available and the tribunal is in a position to know which other persons may have an interest upon which they should be heard.

[12,130.25] Review The tribunal is required under s 101(2) to conduct a full rehearing of the matter and must reach its own conclusions on the material before it. It is the determination itself rather than the reasoning process of the commission that is to be the subject of the inquiry on the review: Re 7-Eleven Stores Pty Ltd (1998) ATPR ¶41-666 at 41,451; Re Applications by Australasian Performing Rights Assn (1999) ATPR ¶41-701 at 42,936; Re Australian Wool Growers Assn Ltd (2000) ATPR ¶41-774; Re Real Estate Institute of Australia Ltd (2000) ATPR ¶41-775; Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [142] per Goldberg J, Mr G F Latta and Professor D K Round; Re Application by Medicines Australia Inc [2007] ACompT 4; BC200704950 at [138] per French J, Mr GF Latta and Professor C Walsh; The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 per French CJ, Gummow, Hayne, Crennan, Kiefle and Bell JJ. This is different to a review that is a re-consideration of a matter: The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750; [2012] HCA 36; BC201206986 at [57] per French CJ, Gummow,

Hayne, Crennan, Kiefle and Bell JJ. In Re Queensland Timber Board (1975) 5 ALR 501 at 504-5; (1975) ATPR ¶40-005 at 17,121 the court said: Such a review is by way of a re-hearing and it is clearly open to the parties to put material before the tribunal, even material which may not have been in existence at the time of the commission’s determination. This does not alter the nature of the proceedings, the effect of which must either be to affirm the commission’s decision or to substitute the tribunal’s determination for that of the commission.

Where there has been an earlier hearing and determination by the tribunal, a later tribunal, as a matter of practical common sense, will be fully justified in accepting the earlier tribunal’s finding of facts in the absence of cogent new evidence to show that some other finding should be made: Re Media Council of Australia (1996) ATPR ¶41-497 at 42,240; Re 7-Eleven Stores Pty Ltd (1998) ATPR ¶41-666 at 41,452. Similarly, where the applicants and other parties participating in the proceedings before the tribunal agree with findings on factual matters set out in the commission’s published reasons for determination, the tribunal would ordinarily be justified in treating those findings as common ground which significantly limits the areas of primary fact which the tribunal is itself required to examine in detail: Re 7-Eleven Stores Pty Ltd (1998) ATPR ¶41666 at 41,453. The tribunal must reach its own conclusions based on the material before it: Re Media Council of Australia (No 2) (1987) 88 FLR 1; (1987) ATPR ¶40-774; Re AGL Cooper Basin Natural Gas Supply Arrangements (1997) ATPR ¶41-593; Re Applications by Australasian Performing Rights Assn (1999) ATPR ¶41-701. Although s 90(6), (7), (8) and (9) do not strictly apply to the tribunal when considering revocation issues, questions of public benefit and detriment are at the heart of [page 863] the tribunal’s functions and powers: Re Media Council of Australia (1996) ATPR ¶41-497 at 42,239; Re Australian Wool Growers Assn Ltd (2000) ATPR ¶41-774; Re Real Estate Institute of Australia Ltd (2000) ATPR ¶41775. In assessing an application for authorisation the tribunal is not required to

ask whether the parties need to seek authorisation, that is, whether the proposed agreement or acquisition would, if carried into effect, breach the relevant sections of the Act: Qantas Airways Ltd, above, at [143] per Goldberg J, Mr G F Latta and Professor D K Round. In Re Alliance Agreement; Application by PK Wakeman (1999) ATPR ¶41-675, the tribunal found that an ordinary individual did not have sufficient interest concerning an authorisation for an alliance agreement between two airlines: Re 7-Eleven Stores Pty Ltd (1998) ATPR ¶41-666 at 41,452. [12,130.35] Withdrawal of application There is no mechanism for the withdrawal of an application for review once made. However, the tribunal may be prepared to grant leave to withdraw an application: Re United Permanent Building Society Ltd (1976) 26 FLR 68; Re Nursing Agencies Assn of Australia [2003] ACompT 2; BC200303667 at [12] per Goldberg J, Professor D Round and Ms M Starrs. _____________________

[12,135] Applications for review of notice under subsection 93(3) or (3A) or 93AC(1) or (2) 101A A person dissatisfied with the giving of a notice by the Commission under subsection 93(3) or (3A) or ,a 93AC(1) or (2) may, as prescribed and within the time allowed by or under the regulations, apply to the Tribunal for a review of the giving of the notice and, if the person was the person to whom the notice was given or the Tribunal is satisfied that the person has a sufficient interest, the Tribunal shall review the giving of the notice. [s 101A am Act 88 of 1995 s 22; Act 131 of 2006 s 3 and Sch 3[19], opn 1 Jan 2007]

SECTION 101A GENERALLY [12,135.5] Overview This section allows a person who is dissatisfied with a notice given by the commission that certain exclusive dealing conduct will result in a substantial lessening of competition in a relevant market or in relation to a collective bargaining notice to apply to the tribunal for a review of the decision.

_____________________

[12,140]

Functions and powers of Tribunal

102 (1) On a review of a determination of the Commission under Division 1 of Part VII in relation to: (a) an application for an authorization; or (b) an application for a minor variation of an authorization; or (c) an application for, or the Commission’s proposal for, the revocation of an authorization; or (d) an application for, or the Commission’s proposal for, the revocation of an authorization and the substitution of another authorization; the Tribunal may make a determination affirming, setting aside or varying the determination of the Commission and, for the purposes of the review, may perform all the functions and exercise all the powers of the Commission. [subs (1) subst Act 101 of 1998 Sch 1.53; am Act 131 of 2006 s 3 and Sch 1[30], opn 1 Jan 2007]

[page 864] (1A) If a person applies to the Tribunal for review of a determination of the Commission relating to: (a) the grant of an authorisation under subsection 88(9); or (b) the minor variation, or the revocation, of an authorization granted under that subsection; or (c) the revocation of an authorization granted under that subsection and the substitution of another authorization; the Tribunal must make its determination on the review within 60 days after receiving the application for review. [subs (1A) insrt Act 222 of 1992 s 18; am Act 101 of 1998 Sch 1.54]

(1B) The 60 day time limit in subsection (1A) does not apply if the Tribunal considers that the matter cannot be dealt with properly within that period of 60 days, either because of its complexity or because of other

special circumstances. [subs (1B) insrt Act 222 of 1992 s 18]

(1C) If subsection (1B) applies, the Tribunal must notify the applicant before the end of the 60 day period that the matter cannot be dealt with properly within that period. [subs (1C) insrt Act 222 of 1992 s 18]

(2) A determination by the Tribunal affirming, setting aside or varying a determination of the Commission under Division 1 of Part VII in relation to: (a) an application for an authorization; or (b) an application for a minor variation of an authorization; or (c) an application for, or the Commission’s proposal for, the revocation of an authorization; or (d) an application for, or the Commission’s proposal for, the revocation of an authorization and the substitution of another authorization; is, for the purposes of this Act other than this Part, to be taken to be a determination of the Commission. [subs (2) subst Act 101 of 1998 Sch 1.55; am Act 131 of 2006 s 3 and Sch 1[30], opn 1 Jan 2007]

(3) [subs (3) rep Act 88 of 1995 s 68] (4) Upon a review of the giving of a notice by the Commission under subsection 93(3): (a) if the person who applied for the review satisfies the Tribunal that: (i) the conduct or proposed conduct does not and would not have the purpose, and does not and is not likely to have or would not have and would not be likely to have the effect, of substantially lessening competition (within the meaning of section 47); or (ii) in all the circumstances: (A) the conduct or proposed conduct has resulted or is likely to result, or would result or be likely to result, in a benefit to the public; and (B) that benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result, or would result or be likely to result, from the

conduct or proposed conduct; the Tribunal must make a determination setting aside the notice; or [page 865] (b) if the person who applied for the review does not so satisfy the Tribunal — the Tribunal must make a determination affirming the notice. [subs (4) subst Act 131 of 2006 s 3 and Sch 7[17], opn 1 Jan 2007]

(5) Where the Tribunal makes a determination setting aside a notice given by the Commission under subsection 93(3), then, after the setting aside of the notice, subsection 93(7) has effect in relation to the conduct referred to in the notice as if the Commission had not given the notice. (5AA) Upon a review of the giving of a notice by the Commission under subsection 93AC(1): (a) if the person who applied for the review satisfies the Tribunal that any benefit to the public that has resulted or is likely to result or would result or be likely to result from the provision outweighs or would outweigh the detriment to the public that has resulted or is likely to result or would result or be likely to result from the provision — the Tribunal must make a determination setting aside the notice; or (b) if the person who applied for the review does not so satisfy the Tribunal — the Tribunal must make a determination affirming the notice. [subs (5AA) insrt Act 131 of 2006 s 3 and Sch 3[20], opn 1 Jan 2007]

(5AB) Upon a review of the giving of a notice by the Commission under subsection 93AC(2): (a) if the person who applied for the review satisfies the Tribunal that: (i) the provision does not and would not have the purpose, and does not and is not likely to have or would not have and would not be likely to have the effect, of substantially lessening competition (within the meaning of section 45); or

(ii) in all the circumstances: (A) the provision has resulted or is likely to result, or would result or be likely to result, in a benefit to the public; and (B) that benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result, or would result or be likely to result, from the provision; the Tribunal must make a determination setting aside the notice; or (b) if the person who applied for the review does not so satisfy the Tribunal — the Tribunal must make a determination affirming the notice. [subs (5AB) insrt Act 131 of 2006 s 3 and Sch 3[20], opn 1 Jan 2007]

(5AC) If the Tribunal sets aside a notice (the objection notice) given by the Commission under subsection 93AC(1) or (2), then: (a) if the Commission gave the objection notice as part of a process starting when the Commission gave a notice under subsection 93A(2) (conference notice) during the period described in paragraph 93AD(1)(a) — the Commission is taken for the purposes of paragraph 93AD(1)(b) to have decided not to give the objection notice at the time the Tribunal set it aside; and (b) for the purposes of subsections 93AD(2) and (3), the objection notice is taken not to have been given. [subs (5AC) insrt Act 131 of 2006 s 3 and Sch 3[20], opn 1 Jan 2007]

[page 866] (5A) The Tribunal must set aside a notice under subsection 93(3A) if the person who applied for a review of the giving of the notice satisfies the Tribunal that the likely benefit to the public from the conduct or proposed conduct to which the notice relates will outweigh the likely detriment to the public from the conduct or proposed conduct. [subs (5A) insrt Act 88 of 1995 s 23]

(5B) The Tribunal must affirm the giving of a notice under subsection 93(3A) if the person who applied for a review of the giving of the notice does not satisfy the Tribunal as described in subsection (5A). [subs (5B) insrt Act 88 of 1995 s 23] (5C) If the Tribunal sets aside a notice given by the Commission under subsection 93(3A), then: (a) if the Commission gave the notice as part of a process starting when the Commission gave a notice under subsection 93A(2) during the period described in paragraph 93(7A)(a) — the Commission is taken for the purposes of paragraph 93(7A)(b) to have decided not to give the notice under subsection 93(3A) at the time the Tribunal set aside the notice given under subsection 93(3A); and (b) for the purposes of subsections 93(7B) and (7C) the notice is taken not to have been given. [subs (5C) insrt Act 88 of 1995 s 23]

(6) For the purposes of a review by the Tribunal under this Division, the member of the Tribunal presiding at the review may require the Commission to furnish such information, make such reports and provide such other assistance to the Tribunal as the member specifies. [subs (6) am Act 131 of 2006 s 3 and Sch 1[31], opn 1 Jan 2007]

(7) For the purposes of a review under this Division, the Tribunal may have regard to any information furnished, documents produced or evidence given to the Commission in connexion with the making of the determination, or the giving of the notice, to which the review relates. [subs (7) am Act 131 of 2006 s 3 and Sch 1[32], opn 1 Jan 2007]

SECTION 102 GENERALLY [12,140.5] Overview This section sets out the functions and the powers of the tribunal. These include the following: • the tribunal may make a determination affirming, setting aside or varying a determination of the commission for authorisation (s 102(1)); • the tribunal may perform all the functions and exercise all the powers of the commission in reaching a determination (s

•

•

102(1)); any determination made by the tribunal in relation to an authorisation shall be deemed a decision of the commission (s 102(2)); and the tribunal may require the commission to furnish such information, make such reports and provide such other assistance as may be required by it (s 102(6)).

[12,140.10] Role of commission In Re Queensland Co-op Milling Assn Ltd (1976) 8 ALR 481; 25 FLR 169; (1976) ATPR ¶40-012 the role of the commission in hearings before the tribunal was stated as follows: • to examine any statements of facts and contentions put before the tribunal to ensure that all material facts and considerations are fully and fairly covered and to advise the tribunal accordingly; [page 867] • •

•

to furnish any additional information which it considers material to the tribunal; to provide assistance in evaluating the information furnished by such means as are appropriate, including the cross-examination of witnesses and production of additional information having the effect of correcting, qualifying or contradicting information provided; and to make submissions to the tribunal on material considerations. _____________________ DIVISION 2 — PROCEDURE AND EVIDENCE

[12,142]

Definition

102A In this Part: proceedings includes: (a) applications made to the Tribunal under Subdivision C of Division 3 of Part VII; and

(b)

applications made to the Tribunal under section 111 (about review of Commission’s decisions on merger clearances).

[s 102A insrt Act 131 of 2006 s 3 and Sch 1[33], opn 1 Jan 2007]

[12,145]

Procedure generally

103 (1) In proceedings before the Tribunal: (a) the procedure of the Tribunal is, subject to this Act and the regulations, within the discretion of the Tribunal; (b) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Tribunal permit; and (c) the Tribunal is not bound by the rules of evidence. (2) The powers of the Tribunal with respect to matters of procedure in particular proceedings may be exercised by a presidential member. [subs (2) am Act 131 of 2006 s 3 and Sch 1[34], opn 1 Jan 2007]

(3) The powers mentioned in subsection (2) may be exercised by a presidential member: (a) whether or not the Tribunal has been constituted under section 37 in relation to the proceedings; and (b) once the Tribunal is so constituted — whether or not that member is part of the Division of the Tribunal so constituted. [subs (3) insrt Act 131 of 2006 s 3 and Sch 1[34A], opn 1 Jan 2007]

SECTION 103 GENERALLY [12,145.5] Overview This section confers on the tribunal a discretion to conduct proceedings before it as it sees fit. It is exhorted not to be bound by technicalities, formalities and the rules of evidence. [12,145.7] Tribunal procedure This provision confers on the tribunal a general discretion to control and regulate its own proceedings. Although the provision appears in Div 2 of Pt IX of the Act, the provisions in Div 2 which relate to procedure and evidence apply to all hearings of the tribunal and not only to a review of determinations of the commission: Re Freight Victoria

Ltd (2002) ATPR ¶41-884; [2002] ACompT 1; BC200203854 at [17] per Goldberg J, Ms M M Starrs and Dr J E Walker. [page 868] The discretion conferred on the tribunal enables it to determine to allow an adjournment or temporary stay of proceedings, unfettered by any statutory limitation: Re Freight Victoria Ltd, above, at [17] per Goldberg J, Ms M M Starrs and Dr J E Walker. Ordinarily, after receipt of an application for review the tribunal will call a preliminary conference between all parties which have expressed an interest in the matter. At the preliminary hearing the tribunal will consider the following matters: • any application for intervention by interested parties; • the issues to be determined; • the means by which the hearing will be conducted; and • the timetable for conducting the hearing. Although the tribunal is not bound by the procedure of a court, it will generally set a timetable for: • the filing of detailed statements of facts and contentions by the parties; • the filing of replies to the statements of facts and contentions; • the presentation of relevant documentary evidence; • the conduct of interrogatories and discovery; and • the filing of witness statements. Proceedings are generally conducted in a manner similar to court proceedings. [12,145.15] Expert witnesses Although the tribunal is not bound by the rules of evidence, the practice direction issued by the Chief Justice of the Federal Court, Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia, applies to the tribunal: Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [217] per Goldberg J, Mr G F Latta and Professor D K Round. The practice direction is reproduced in the Federal Court volume of this Service behind guide card “Federal Court Practice

Notes” at [70,305]. Clause 1.2 of the guidelines provides that an expert witness is not an advocate for a party. Rather, cl 1.3 provides that an expert witness’ paramount duty is to the court and not to the person retaining the expert: see also National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd’s Rep 68 at 81 per Cresswell J. In Qantas Airways Ltd (2004) ATPR ¶42-027; [2004] ACompT 9 at [222] per Goldberg J, Mr G F Latta and Professor D K Round, the tribunal was critical of two experts who expressed a reluctance to respond to questions whose answers might have been adverse to the case put by the party calling them. See also the discussion in Pan Pharmaceuticals Ltd (in liq) v Selim [2008] FCA 416; BC200802343 per Emmett J. [12,145.20] Termination of proceedings It is open to the tribunal under s 103(1)(a) to give leave to an applicant to withdraw an application: Re Lakes R Us Pty Ltd [2006] ACompT 3; BC200603856 at [31] per French J. It is not open to the tribunal to impose conditions on the applicant lodging a fresh application seeking declaration of services under Pt IIIA of the Act: Mobileworld Operating Pty Ltd v Telstra Corp Ltd [2006] FCA 743; BC200604378 at [42] per Kenny J. _____________________

[12,150]

Regulations as to certain matters

104 The regulations may make provision: (a) for securing, by means of preliminary statements of facts and contentions, and by the production of documents, that all material facts and considerations are brought before the Tribunal by all persons participating in any proceedings before the Tribunal; and [page 869] (aa) with respect to evidence in proceedings before the Tribunal, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written

report); and (b) with respect to the representation in any such proceedings of persons having a common interest in the proceedings. [s 104 am Act 88 of 1995 s 24]

[12,155]

Power to take evidence on oath

105 (1) The Tribunal may take evidence on oath or affirmation and for that purpose a member of the Tribunal may administer an oath or affirmation. (2) A member of the Tribunal may summon a person to appear before the Tribunal to give evidence and to produce such documents (if any) as are referred to in the summons.

[12,160] Hearings to be in public except in special circumstances 106 (1) Subject to this section, the hearing of proceedings before the Tribunal shall be in public. (2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may: (a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; or (b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents filed or lodged with the Registrar, received in evidence by the Tribunal or placed in the records of the Tribunal. (3) The powers of the Tribunal under this section may be exercised by the Tribunal as constituted for the purposes of the hearing or by the Tribunal constituted by a presidential member. SECTION 106 GENERALLY

[12,160.5] Overview This section grants the tribunal power to direct that a hearing or part of a hearing take place in private. This power extends to excluding the parties but not their legal representatives: R v Trade Practices Tribunal; Ex parte Tooheys Ltd (1977) 16 ALR 609; 31 FLR 1. _____________________

[12,165]

Evidence in form of written statement

107 The Tribunal may permit a person appearing as a witness before the Tribunal to give evidence by tendering, and, if the Tribunal thinks fit, verifying by oath or affirmation, a written statement, which shall be filed with the Registrar.

[12,170]

Taking of evidence by single member

108 The Tribunal as constituted for the purposes of any proceedings in which evidence may be taken may authorize a presidential member to take evidence for the purposes of the proceedings on its behalf, with such limitations (if any) as the Tribunal so constituted directs, and, where such an authority is given: [page 870] (a) that member may take evidence accordingly; and (b) for the purposes of this Act, that member shall, in relation to the taking of evidence in accordance with the authority, be deemed to constitute the Tribunal.

[12,175] Participants in proceedings before Tribunal 109 (1) A person to whom an authorization under Division 1 of Part VII was granted is entitled to participate in any proceedings before the Tribunal instituted by another person in relation to that authorization. [subs (1) am Act 131 of 2006 s 3 and Sch 1[35], opn 1 Jan 2007]

(1A) A person to whom a notice was given by the Commission under subsection 93(3) or (3A) or 93AC(1) or (2) is entitled to participate in any proceedings before the Tribunal instituted by another person in relation to that notice. [subs (1A) am Act 88 of 1995 s 25; Act 131 of 2006 s 3 and Sch 3[21], opn 1 Jan 2007]

(2) The Tribunal may, upon such conditions as it thinks fit, permit a person to intervene in proceedings before the Tribunal. SECTION 109 GENERALLY [12,175.5] Intervention in proceedings before the tribunal The tribunal may permit a person to intervene in proceedings. There is no provision in the Act which specifies the circumstances under which this discretion is to be exercised. The threshold has been variously expressed to require a “real and substantial interest” or a “substantial interest” in the subject matter or that the interest must be sufficient to justify the cost and inconvenience of having an extra party in the proceedings: Qantas Airways Ltd (2003) ATPR ¶41-972; [2003] ACompT 4 at [4] per Goldberg J, Mr G F Latta and Professor D K Round; see also Re Alliance Agreement; Application by PK Wakeman (1999) ATPR ¶41-675; Re Telstra Corp Ltd (2001) 160 FLR 120; (2001) ATPR ¶41812; [2001] ACompT 1; BC200100396. See also Application by Services Sydney Pty Ltd [2005] ACompT 2 per Gyles J; Application by Independent Contractors Australia [2015] ACompT 1 per Mansfield J, RC Davey and R Steinwall; Re Application by Sea Swift Pty Ltd [2015] ACompT 5; BC201510223 at [8] per Mansfield J, Mr GF Latta and Mr RF Shogren. See also [10,650K.15]. _____________________

[12,180]

Representation

110 In proceedings before the Tribunal: (a) a natural person may appear in person; (aa) a person other than a body corporate may be represented by an employee of the person approved by the Tribunal; (b) a body corporate may be represented by an employee, or a director

or other officer, of the body corporate approved by the Tribunal; (c) an unincorporated association of persons or a member of an unincorporated association of persons may be represented by a member or officer of the association approved by the Tribunal; and (d) any person may be represented by a barrister or a solicitor of the Supreme Court of a State or Territory or of the High Court. [page 871] DIVISION 3 — REVIEW OF COMMISSION’S DETERMINATIONS ON MERGER CLEARANCES [Div 3 insrt Act 131 of 2006 s 3 and Sch 1[36], opn 1 Jan 2007]

[12,185]

Applications for review

111 (1) A person who applied under Subdivision B of Division 3 of Part VII for: (a) a clearance; or (b) a minor variation of a clearance; or (c) a revocation of a clearance; or (d) a revocation of a clearance and a substitution of another clearance; and who is dissatisfied with the determination by the Commission in relation to the application may, as prescribed and within the time allowed by or under the regulations or under subsection (5), apply to the Tribunal for a review of the determination. (2) A person who was granted a clearance under Subdivision B of Division 3 of Part VII that was: (a) revoked by a determination of the Commission under section 95AS; or (b) revoked and substituted with another clearance by a determination of the Commission under section 95AS; may, as prescribed and within the time allowed by or under the regulations, apply to the Tribunal for a review of the determination.

(2A) The regulations may make it a requirement that an applicant under subsection (1) or (2) give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Tribunal. (3) The Tribunal must review the determination after receiving the application and the prescribed fee. Note: Division 2 contains provisions about procedure and evidence that relate to proceedings before the Tribunal. (4) If a person has made an application under subsection (1) or (2) for a review of a determination, the Tribunal may, if the Tribunal determines it to be appropriate, make a determination by consent of the applicant and the Commission, whether or not the Tribunal is satisfied of the matters referred to in section 95AN. (5) A presidential member may, on the application by the applicant, shorten the time allowed by or under the regulations within which an application under subsection (1) may be made if the member is satisfied that special circumstances exist and that, in all the circumstances, it would not be unfair to do so. SECTION 111 GENERALLY [12,185.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. The section permits a person to apply to the tribunal for a review of the decision of the commission in relation to a merger clearance under Pt VII Div 3 Subdiv B. _____________________

[12,190]

Tribunal to notify Commission

112 The Tribunal must notify the Commission of the application for review. [page 872]

SECTION 112 GENERALLY [12,190.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. _____________________

[12,195]

Commission to give material to Tribunal

113 (1) After being notified of the application for review, the Commission must, within 2 business days, give to the Tribunal all the information that the Commission took into account in connection with the making of the determination to which the review relates. (1A) The Commission must identify which of that information (if any) the Commission excluded from the merger clearance register under subsection 95AI(3), (4) or (7). (2) In this section: business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory. merger clearance register means the register kept under section 95AH. SECTION 113 GENERALLY [12,195.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. _____________________

[12,200] Tribunal may consult etc to clarify information 114 (1) The Tribunal may seek such relevant information, and consult with such persons, as it considers reasonable and appropriate for the purposes of clarifying the information given to it under section 113. (2) The Tribunal may disclose information identified under subsection 113(1A) to such persons and on such terms as it considers reasonable and

appropriate for the purposes of clarifying the information. SECTION 114 GENERALLY [12,200.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. _____________________

[12,205]

Commission to assist Tribunal

115 For the purposes of the review, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies. SECTION 115 GENERALLY [12,205.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. _____________________ [page 873]

[12,210] Tribunal only to consider material before the Commission 116 For the purposes of the review, the Tribunal may have regard only to: (a) the information given to the Commission in connection with the making of the determination to which the review relates and that was given to the Tribunal under section 113; and (b) any other information that was referred to in the Commission’s reasons for making the determination to which the review relates;

and (c) any information given to the Tribunal under section 114; and (d) any information or report given to the Tribunal under section 115. SECTION 116 GENERALLY [12,210.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. _____________________

[12,215]

Tribunal to make decision on review

117 On the review of the Commission’s determination, the Tribunal must make a determination affirming, setting aside or varying the Commission’s determination. SECTION 117 GENERALLY [12,215.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. _____________________

[12,220]

Time limits for making review decision

118 (1) The Tribunal must make its decision on the review within 30 business days after receiving the application for review. (2) However, if before the end of that period the Tribunal decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, the period is extended by a further 60 business days. (3) If the Tribunal makes a decision under subsection (2), the Tribunal must notify the applicant of it before the end of the 30 business day period. (3A) If the Tribunal has not made its decision on the review within the

period applicable under subsection (1) or (2), the Tribunal is taken to have made a determination affirming the Commission’s determination. (4) In this section: business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory. SECTION 118 GENERALLY [12,220.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. _____________________ [page 874]

[12,225] Tribunal’s decision taken to be Commission’s 119 The Tribunal’s decision affirming, setting aside or varying the Commission’s determination is, for the purposes of this Act other than this Part, taken to be the Commission’s determination. SECTION 119 GENERALLY [12,225.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [10,690.5]. _____________________

[page 875] PART X* — INTERNATIONAL LINER CARGO SHIPPING [Pt X subst Act 34 of 1989 s 4] INTRODUCTION TO PART X [12,280] Overview The Trade Practices (International Liner Cargo Shipping) Amendment Act 1989 which commenced on 1 August 1989 replaced Pt X — Overseas Cargo Shipping of the Trade Practices Act with Pt X — International Liner Cargo Shipping. The repealed Pt X continued in force in relation to conference agreements in force or arrived at before the commencement of Pt X introduced by the 1989 Amendment Act for a transitional period of 6 months. Agreements arrived at after the commencement of the new Part are subject to regulation under this Part. This Part permits ocean carriers involved in liner cargo shipping services to include certain provisions in conference agreements that are exempt from the operation of ss 45 and 47 in Pt IV of the Act. The exemptions permit ocean carriers to enter into collaborative arrangements through registered conference agreements which provide coordinated or joint services, permit shared capacity or agreement on freight rates. Ocean carriers remain subject to the other prohibitions in Pt IV of the Act including misuse of market power under s 46, third line forcing in s 47(6) and (7) and anti-competitive mergers and acquisitions under s 50. The Explanatory Memorandum which accompanied the Trade Practices (International Liner Cargo Shipping) Amendment Act 1989 indicated that it gives effect to changes announced by the government in November 1987. The changes were designed to encourage a more competitive environment while permitting exporters and importers to continue to have access to liner conference shipping services. The Act was also designed to allow appropriate safeguards to ensure frequent and reliable sailings at internationally competitive rates. As indicated at [10,005.10], on 23 June 2003 the Productivity Commission was directed to inquire and report on the appropriate arrangements for regulation of international liner cargo shipping services. In its final report, Review of Part X of the Trade Practices Act: International Liner Cargo Shipping, October 2004, the Productivity Commission recommended a number of options ranging from the repeal of Pt X (in favour of the general application of competition laws) to modifying the operation of Pt X, should it be retained. The report was tabled in parliament on 5 October 2005. In August 2006 the Federal Government announced that it would make a number of amendments to Pt X to: clarify its objectives, remove discussion agreements from its scope, protect individual confidential service contracts between carriers and shippers, and introduce a range of penalties for breaches of its procedural provisions. *Editor’s note: Trade Practices (International Liner Cargo Shipping) Amendment Act No 34 of 1989 s 6 provides as follows: Continued application of existing Part X to existing conference agreements 6 (1) Where: (a) a conference agreement was in force immediately before the commencement of

this Act; or (b) a conference agreement was made or arrived at before the commencement of this Act, but had not come into operation before that commencement; Part X of the Principal Act as amended by this Act does not apply in relation to the agreement, but Part X of the Principal Act continues to apply in relation to the agreement for 6 months after commencement. (2) In subsection (1): conference agreement has the same meaning as in Part X of the Principal Act.

[page 876]

Reform In its draft report Competition Policy Review, released in September 2014, the Harper committee considered that cabotage restrictions should be removed, unless they can be shown to be in the public interest and there is no other means by which public interest objectives can be achieved. See [10,690.5].

_____________________ DIVISION 1 — PRELIMINARY

[12,285]

Objects of Part

10.01 (1) The principal objects of this Part are: (a) to ensure that Australian exporters have continued access to outwards liner cargo shipping services of adequate frequency and reliability at freight rates that are internationally competitive; and (b) to promote conditions in the international liner cargo shipping industry that encourage stable access to export markets for exporters in all States and Territories; and (c) to ensure that efficient Australian flag shipping is not unreasonably hindered from normal commercial participation in any outwards liner cargo shipping trade; and (d) as far as practicable, to extend to Australian importers in each State and Territory the protection given by this Part to Australian exporters. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) It is the intention of the Parliament that the principal objects of this

Part should be achieved: (a) by permitting continued conference operations while enhancing the competitive environment for international liner cargo shipping services through the provision of adequate and appropriate safeguards against abuse of conference power, particularly by: (i) enacting additional restrictive trade practice provisions applying to ocean carriers; (ii) requiring conference agreements to meet certain minimum standards; (iii) making conference agreements generally publicly available; (iv) permitting only partial and conditional exemption from restrictive trade practice prohibitions; and (v) requiring conferences to take part in negotiations with representative shipper bodies; (b) through increased reliance on private commercial and legal processes and a reduced level of government regulation of routine commercial matters; and (c) by the exercise of jurisdiction, consistent with international law: (i) over ocean carriers who have a substantial connection with Australia because they provide international liner cargo shipping services; and (ii) to enable remedies for contravention of the provisions of this Part to be enforced within Australia. [subs (2) am Act 123 of 2000 s 3 and Sch 1]

[page 877]

[12,287]

Simplified outline

10.01A The following is a simplified outline of this Part: • •

This Part sets up a system for regulating international liner cargo shipping services. The main components of that system are as follows:

•

•

•

• •

(a) registration of conference agreements; (b) regulation of non-conference ocean carriers with substantial market power; (c) regulation of unfair pricing practices; (d) registration of agents of ocean carriers. The parties to a conference agreement relating to international liner cargo shipping services may apply for the registration of the agreement. If the conference agreement is registered, the parties will be given partial and conditional exemptions from: (a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK (cartel conduct); and (b) section 45 (contracts etc that restrict dealings or affect competition); and (c) section 47 (exclusive dealing). The parties to a registered conference agreement are required to negotiate with, and provide information to, representative shipper bodies. The Commission may investigate whether grounds exist for the Minister to deregister a conference agreement. The main ground for deregistration is a breach by the parties to the agreement of requirements imposed on them by this Part.

[s 10.01A insrt Act 123 of 2000 s 3 and Sch 1; am Act 59 of 2009 s 3 and Sch 1[88], opn 24 July 2009]

[12,290]

Interpretation

10.02 (1) In this Part, unless the contrary intention appears: agreement means any contract, agreement, arrangement or understanding, whether made in or outside Australia. ancillary service, in relation to a scheduled cargo shipping service, means: (a) an inter-terminal transport service; or (b) a stevedoring service; or (c) a service provided outside Australia; that:

(d) relates to the cargo transported, or to be transported, on the scheduled cargo shipping service; and (e) is provided by, or on behalf of, the provider of the scheduled cargo shipping service. [def insrt Act 123 of 2000 s 3 and Sch 1]

association includes a body corporate. Australian exporter means a person who exports goods from Australia. Australian flag shipping operator means a person who: (a) is an Australian citizen or a body corporate incorporated by or under the law of the Commonwealth or of a State or Territory; [page 878] (b) provides, or proposes to provide, shipping services; and (c) normally uses, or proposes normally to use, in providing the services only: (i) a ship that is registered in Australia; or (ii) 2 or more ships, all or most of which are registered in Australia. Australian importer means a person who imports goods into Australia. [def insrt Act 123 of 2000 s 3 and Sch 1]

authorised officer means an officer of the Department who is authorised, in writing, by the Minister for the purposes of this Part. conference means an unincorporated association of 2 or more ocean carriers carrying on 2 or more businesses each of which includes, or is proposed to include, the provision of outwards liner cargo shipping services or inwards liner cargo shipping services. [def am Act 123 of 2000 s 3 and Sch 1]

conference agreement means: (a) an outwards conference agreement; or (b) an inwards conference agreement. [def subst Act 123 of 2000 s 3 and Sch 1]

designated inwards peak shipper body means an association specified

in a notice under subsection 10.03(2A). [def insrt Act 123 of 2000 s 3 and Sch 1]

designated inwards secondary shipper body means an association specified in a notice under subsection 10.03(2B). [def insrt Act 123 of 2000 s 3 and Sch 1]

designated inwards shipper body means: (a) a designated inwards peak shipper body; or (b) a designated inwards secondary shipper body. [def insrt Act 123 of 2000 s 3 and Sch 1]

designated outwards peak shipper body means an association specified in a notice under subsection 10.03(1). [def insrt Act 123 of 2000 s 3 and Sch 1]

designated outwards secondary shipper body means an association specified in a notice under subsection 10.03(2). [def insrt Act 123 of 2000 s 3 and Sch 1]

designated outwards shipper body means: (a) a designated outwards peak shipper body; or (b) a designated outwards secondary shipper body. [def insrt Act 123 of 2000 s 3 and Sch 1]

designated peak shipper body [def rep Act 123 of 2000 s 3 and Sch 1]

designated port area means the area within the limits of a port appointed under section 15 of the Customs Act 1901, being the limits fixed under that section. [def insrt Act 123 of 2000 s 3 and Sch 1]

[page 879] designated secondary shipper body means: (a) a designated outwards secondary shipper body; or (b) a designated inwards secondary shipper body. [def subst Act 123 of 2000 s 3 and Sch 1]

designated shipper body means:

(a) a designated outwards shipper body; or (b) a designated inwards shipper body. [def subst Act 123 of 2000 s 3 and Sch 1]

exemption order means an order under section 10.72A. [def insrt Act 123 of 2000 s 3 and Sch 1]

freight rate agreement means a conference agreement that consists of or includes freight rate charges. [def insrt Act 123 of 2000 s 3 and Sch 1]

freight rate charges: (a) in relation to an outwards conference agreement — means those parts of the conference agreement that specify freight rates (including base freight rates, surcharges, rebates and allowances) for outwards liner cargo shipping services; and (b) in relation to an inwards conference agreement — means those parts of the conference agreement that specify freight rates (including base freight rates, surcharges, rebates and allowances) for inwards liner cargo shipping services. [def insrt Act 173 of 1991 s 49; subst Act 123 of 2000 s 3 and Sch 1]

handling cargo includes a service that is related to handling of cargo. [def insrt Act 123 of 2000 s 3 and Sch 1]

inland terminal has the meaning given by section 10.02A. [def insrt Act 123 of 2000 s 3 and Sch 1]

international liner cargo shipping service means: (a) an outwards liner cargo shipping service; or (b) an inwards liner cargo shipping service. [def subst Act 123 of 2000 s 3 and Sch 1]

inter-terminal transport service means a service for the transport of various types of general cargo: (a) from an inland terminal to a port terminal; or (b) from a port terminal to an inland terminal; or (c) from a port terminal to another port terminal; and includes the handling of the cargo within any of those terminals. [def insrt Act 123 of 2000 s 3 and Sch 1]

inwards conference agreement means an agreement between members of a conference in relation to inwards liner cargo shipping services provided, or proposed to be provided, by them, and includes an inwards varying conference agreement. [def insrt Act 123 of 2000 s 3 and Sch 1]

[page 880] inwards liner cargo shipping service means an inwards scheduled cargo shipping service and, if the inwards scheduled cargo shipping service is part of a terminal-to-terminal service, includes an ancillary service that relates to the inwards scheduled cargo shipping service. [def subst Act 123 of 2000 s 3 and Sch 1]

inwards loyalty agreement means an agreement: (a) between an ocean carrier or conference and a shipper or designated inwards shipper body; and (b) that makes provision, in relation to inwards liner cargo shipping services, having the purpose or effect of giving certain benefits to the shipper, or a shipper represented by the designated inwards shipper body, if the shipper ships with the ocean carrier, or members of the conference: (i) all or particular cargo, or a particular portion of all or particular cargo, shipped by the shipper; or (ii) a particular quantity of cargo or of particular cargo. [def insrt Act 123 of 2000 s 3 and Sch 1]

inwards scheduled cargo shipping service means a scheduled cargo shipping service where the transport of the cargo by sea commences from a place outside Australia and ends at a place in Australia. [def insrt Act 123 of 2000 s 3 and Sch 1]

inwards varying conference agreement means an agreement: (a) that varies an inwards conference agreement; or (b) that otherwise affects an inwards conference agreement (including an agreement referred to in subsection (4)). [def insrt Act 123 of 2000 s 3 and Sch 1]

liner cargo shipping service [def rep Act 123 of 2000 s 3 and Sch 1]

loyalty agreement means: (a) an outwards loyalty agreement; or (b) an inwards loyalty agreement. [def subst Act 123 of 2000 s 3 and Sch 1]

ocean carrier means a person who provides, or proposes to provide, international liner cargo shipping services. outwards conference agreement means an agreement between members of a conference in relation to outwards liner cargo shipping services provided, or proposed to be provided, by them, and includes an outwards varying conference agreement. [def insrt Act 123 of 2000 s 3 and Sch 1]

outwards liner cargo shipping service means an outwards scheduled cargo shipping service and, if the outwards scheduled cargo shipping service is part of a terminal-to-terminal service, includes an ancillary service that relates to the outwards scheduled cargo shipping service. [def subst Act 123 of 2000 s 3 and Sch 1]

[page 881] outwards loyalty agreement means an agreement: (a) between an ocean carrier or conference and a shipper or designated outwards shipper body; and (b) that makes provision, in relation to outwards liner cargo shipping services, having the purpose or effect of giving certain benefits to the shipper, or a shipper represented by the designated outwards shipper body, if the shipper ships with the ocean carrier, or members of the conference: (i) all or particular cargo, or a particular portion of all or particular cargo, shipped by the shipper; or (ii) a particular quantity of cargo or of particular cargo. [def insrt Act 123 of 2000 s 3 and Sch 1]

outwards scheduled cargo shipping service means a scheduled cargo shipping service where the transport of the cargo by sea commences from a place in Australia and ends at a place outside Australia. [def insrt Act 123 of 2000 s 3 and Sch 1]

outwards varying conference agreement means an agreement: (a) that varies an outwards conference agreement; or (b) that otherwise affects an outwards conference agreement (including an agreement referred to in subsection (3)). [def insrt Act 123 of 2000 s 3 and Sch 1]

port terminal means: (a) the area within the limits of a wharf appointed under section 15 of the Customs Act 1901, being the limits fixed under that section; or (b) a terminal facility within the limits of a designated port area. [def insrt Act 123 of 2000 s 3 and Sch 1]

pricing practice means the fixing, controlling or maintaining by an ocean carrier of prices charged for, or the giving or allowing by an ocean carrier of discounts, allowances, rebates or credits in relation to, outwards liner cargo shipping services or inwards liner cargo shipping services provided by the ocean carrier. [def am Act 123 of 2000 s 3 and Sch 1]

provisionally registered conference agreement means a conference agreement that is provisionally registered under this Part. registered agent, in relation to an ocean carrier, means the person specified in the register of ocean carrier agents as the agent of the ocean carrier. registered conference agreement means a conference agreement that is finally registered under this Part. registered non-conference ocean carrier with substantial market power means an ocean carrier specified in the register of nonconference ocean carriers with substantial market power. Registrar means the Registrar of Liner Shipping. scheduled cargo shipping service means a scheduled service for the transport of various types of general cargo by sea on particular routes,

generally by container and generally at predetermined freight rates. [def insrt Act 123 of 2000 s 3 and Sch 1]

[page 882] stevedoring service means: (a) the loading or unloading of cargo into or from a ship; or (b) the handling of cargo within a port terminal. [def insrt Act 123 of 2000 s 3 and Sch 1]

terminal-to-terminal service means: (a) an outwards scheduled cargo shipping service, together with any ancillary service that relates to the outwards scheduled cargo shipping service; or (b) an inwards scheduled cargo shipping service, together with any ancillary service that relates to the inwards scheduled cargo shipping service. [def insrt Act 123 of 2000 s 3 and Sch 1]

vary, in relation to a conference agreement, includes vary by way of: (a) omitting or altering any of the provisions of, or parties to, the agreement; (b) adding new provisions or parties to the agreement; or (c) substituting new provisions or parties for any of the provisions of, or parties to, the agreement. varying conference agreement means: (a) an outwards varying conference agreement; or (b) an inwards varying conference agreement. [def subst Act 123 of 2000 s 3 and Sch 1]

(2) A reference in this Part to the minimum level of outwards liner cargo shipping services provided, or proposed to be provided, under an outwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, or outwards liner cargo shipping services provided, or proposed to be provided, under the agreement. [subs (2) am Act 123 of 2000 s 3 and Sch 1]

(2A) A reference in this Part to the minimum level of inwards liner cargo

shipping services provided, or proposed to be provided, under an inwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of inwards liner cargo shipping services provided, or proposed to be provided, under the agreement. [subs (2A) insrt Act 123 of 2000 s 3 and Sch 1]

(3) A reference in this Part to an agreement that affects an outwards conference agreement includes a reference to an agreement between parties to the conference agreement or between parties to the conference agreement and other ocean carriers: (a) that affects the conduct of parties to the conference agreement in relation to outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; (b) that affects the minimum level of outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or (c) that otherwise affects: (i) the operation, or proposed operation, of the conference agreement; or (ii) outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement. [subs (3) am Act 123 of 2000 s 3 and Sch 1]

[page 883] (4) A reference in this Part to an agreement that affects an inwards conference agreement includes a reference to an agreement between parties to the conference agreement or between parties to the conference agreement and other ocean carriers: (a) that affects the conduct of parties to the conference agreement in relation to inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or (b) that affects the minimum level of inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or

(c) that otherwise affects: (i) the operation, or proposed operation, of the conference agreement; or (ii) inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement. [subs (4) insrt Act 123 of 2000 s 3 and Sch 1]

(5) For the purposes of this Part (except where the contrary intention appears), if: (a) an ancillary service relates to a scheduled cargo shipping service; and (b) the ancillary service is provided on behalf of the provider of the scheduled cargo shipping service by a third person; the ancillary service is taken to be provided by the provider of the scheduled cargo shipping service instead of by the third person. [subs (5) insrt Act 123 of 2000 s 3 and Sch 1]

[12,292]

Inland terminals

10.02A (1) The Minister may, by legislative instrument, declare that a specified facility is an inland terminal for the purposes of this Part. [subs (1) am Act 109 of 2006 s 3 and Sch 2[97], opn 27 Sep 2006]

(2) The facility must be in Australia, but outside a designated port area. (3) In making a declaration under subsection (1), the Minister must have regard to the following matters: (a) whether the facility is under the control of a person who is, or of persons each of whom is: (i) an ocean carrier; or (ii) a person who provides services at the facility at the request of an ocean carrier; (b) whether the facility is used for either or both of the following purposes: (i) assembling export cargoes for transport to a port terminal located at the port where the cargoes are to be loaded onto ships for export; (ii) delivering imported cargoes to importers or their

representatives; (c) any other matters that the Minister thinks are relevant. (4) In making a declaration under subsection (1), the Minister must not give preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State. (5) A declaration under subsection (1) has effect accordingly. (6) [subs (6) rep Act 109 of 2006 s 3 and Sch 2[98], opn 27 Sep 2006] [s 10.02A insrt Act 123 of 2000 s 3 and Sch 1]

[page 884]

[12,295]

Designated shipper bodies

10.03 (1) If the Minister is of the opinion that an association represents the interests, in relation to outwards liner cargo shipping services, of Australian shippers generally, the Minister may, by legislative instrument, declare that the association is a designated outwards peak shipper body for the purposes of this Part. [subs (1) am Act 123 of 2000 s 3 and Sch 1; Act 109 of 2006 s 3 and Sch 2[99], opn 27 Sep 2006]

(2) If the Minister is of the opinion: (a) that an association represents the interests, in relation to outwards liner cargo shipping services, of all or any of the following kinds of persons: (i) Australian shippers in a particular trade; (ii) Australian shippers of particular kinds of goods; (iii) shippers in a particular part of Australia; (iv) producers of goods of a kind exported, or proposed to be exported, from Australia; and (b) that it is desirable that the association be a designated outwards secondary shipper body for the purposes of this Part; the Minister may, by legislative instrument, declare that the association is a designated outwards secondary shipper body for the purposes of this Part. [subs (2) am Act 123 of 2000 s 3 and Sch 1; Act 109 of 2006 s 3 and Sch 2[99], opn 27 Sep 2006]

(2A) If the Minister is of the opinion that an association represents the

interests, in relation to inwards liner cargo shipping services, of Australian shippers generally, the Minister may, by legislative instrument, declare that the association is a designated inwards peak shipper body for the purposes of this Part. [subs (2A) insrt Act 123 of 2000 s 3 and Sch 1; am Act 109 of 2006 s 3 and Sch 2[99], opn 27 Sep 2006]

(2B) If the Minister is of the opinion: (a) that an association represents the interests, in relation to inwards liner cargo shipping services, of all or any of the following kinds of persons: (i) Australian shippers in a particular trade; (ii) Australian shippers of particular kinds of goods; (iii) shippers in a particular part of Australia; and (b) that it is desirable that the association be a designated inwards secondary shipper body for the purposes of this Part; the Minister may, by legislative instrument, declare that the association is a designated inwards secondary shipper body for the purposes of this Part. [subs (2B) insrt Act 123 of 2000 s 3 and Sch 1; am Act 109 of 2006 s 3 and Sch 2[99], opn 27 Sep 2006]

(3) Where the Minister declares that an association is a designated outwards peak shipper body, a designated inwards peak shipper body, a designated outwards secondary shipper body or a designated inwards secondary shipper body for the purposes of this Part, the Registrar shall enter particulars of the association in the register of designated shipper bodies. [subs (3) am Act 123 of 2000 s 3 and Sch 1]

(4) The particulars entered in the register shall include whether the association is a designated outwards peak shipper body, a designated inwards peak shipper body, a designated outwards secondary shipper body or a designated inwards secondary shipper body. [subs (4) am Act 123 of 2000 s 3 and Sch 1]

[page 885] (5) The Minister may, by legislative instrument, make guidelines to be

applied by the Registrar in the exercise of the Registrar’s powers to nominate designated secondary shipper bodies for the purposes of sections 10.29, 10.41 and 10.52. [subs (5) am Act 109 of 2006 s 3 and Sch 2[99], opn 27 Sep 2006]

(6) The Registrar shall enter particulars of any nomination of a designated secondary shipper body for the purposes of section 10.29, 10.41 or 10.52 in the register of designated shipper bodies. (7) [subs (7) rep Act 109 of 2006 s 3 and Sch 2[100], opn 27 Sep 2006] SECTION 10.03 GENERALLY [12,295.5] Overview This section allows the minister to declare that a shipper body which represents Australian shippers generally is a designated peak shipper body and that a shipper body which represents the interests of a particular group of shippers is a designated secondary shipper body. [12,295.10] Peak shipper bodies Shipper bodies designated by the minister as a peak shipper body have the power to require conferences to negotiate over minimum service levels. They can also compel conference and non-conference operators with a substantial degree of market power to negotiate over freight rates, terms and conditions of carriage. [12,295.15] Secondary shipper bodies A shipper body designated by the minister as a secondary shipper body may also be able to require negotiations if it is nominated as a relevant body by the registrar, in the absence of a peak shipper body. Such designated shipper bodies receive a limited exemption from the restrictive trade practices provisions of the Act. _____________________ DIVISION 2 — ADDITIONAL RESTRICTIVE TRADE PRACTICE PROVISIONS APPLYING TO OCEAN CARRIERS

[12,345] Application of section 46 in relation to conference agreements

10.04 (1) For the purposes of section 46, if the parties to a conference agreement together have a substantial degree of power in a market in which any party to the agreement provides international liner cargo shipping services under the agreement, each party to the conference agreement shall be taken to have a substantial degree of power in the market. (2) In subsection (1): conference agreement means an agreement between members of a conference in relation to international liner cargo shipping services provided, or proposed to be provided, by them, and includes an agreement that varies such an agreement. SECTION 10.04 GENERALLY [12,345.5] Overview Where parties to a conference agreement collectively are found to have substantial market power consistent with the test for corporations then s 46 can apply. If the parties to a conference agreement meet this collective test then each member of the conference is deemed to have a substantial degree of power in a market by virtue of its membership of that conference. _____________________ [page 886]

[12,350] Discrimination between shippers prohibited 10.05

[s 10.05 rep Act 123 of 2000 s 3 and Sch 1]

DIVISION 3 — MINIMUM STANDARDS FOR CONFERENCE AGREEMENTS

[12,400]

Application of Australian law to

outwards conference agreements and withdrawal from agreements 10.06 (1) An outwards conference agreement must expressly provide for a question arising under the agreement in relation to an outwards liner cargo shipping service provided, or proposed to be provided, under the agreement to be determined in Australia in accordance with Australian law unless the parties and the Minister agree, in writing, to the particular question being otherwise determined. (2) An outwards conference agreement must expressly permit any party to the agreement to withdraw from the agreement on reasonable notice without penalty. [s 10.06 am Act 123 of 2000 s 3 and Sch 1]

SECTION 10.06 GENERALLY [12,400.5] Overview Section 10.06 provides that an outwards conference agreement must provide for disputes to be settled in Australia under Australian law unless the parties and the minister agree otherwise. Any party to an agreement must be allowed to withdraw, without penalty from an agreement on reasonable notice. _____________________

[12,405] Minimum levels of shipping services to be specified in conference agreements 10.07 (1) An outwards conference agreement must contain provisions specifying the minimum level of outwards liner cargo shipping services to be provided under the agreement. (2) An inwards conference agreement must contain provisions specifying the minimum level of inwards liner cargo shipping services to be provided under the agreement. Note: See also paragraph 10.33(1)(b) and section 10.72A. [subs (2) insrt Act 123 of 2000 s 3 and Sch 1]

(3) [subs (3) rep Act 123 of 2000 s 3 and Sch 1]

[s 10.07 am Act 123 of 2000 s 3 and Sch 1]

SECTION 10.07 GENERALLY [12,405.5] Overview An outwards conference agreement must specify the minimum levels of service to be provided ie the minimum frequency of sailings, ports of call etc. _____________________ [page 887]

[12,410] Conference agreements may include only certain restrictive trade practice provisions 10.08 (1) If a conference agreement includes a provision: (aa) that is a provision where the following conditions are satisfied in relation to the provision: (i) the purpose/effect condition set out in subsection 44ZZRD(2); (ii) the competition condition set out in subsection 44ZZRD(4); or (ab) that is a provision where the following conditions are satisfied in relation to the provision: (i) the purpose condition set out in subsection 44ZZRD(3); (ii) the competition condition set out in subsection 44ZZRD(4); or (a) that is an exclusionary provision; or (b) that has the purpose, or has or is likely to have the effect, of substantially lessening competition (within the meaning of section 45); the provision, so far as it is covered by paragraph (aa), (ab), (a) or (b), must either: (c) deal only with the following matters:

(i) the fixing or other regulation of freight rates; (ii) the pooling or apportionment of earnings, losses or traffic; (iii) the restriction or other regulation of the quantity or kind of cargo to be carried by parties to the agreement; (iv) the restriction or other regulation of the entry of new parties to the agreement; or (d) be neccessary for the effective operation of the agreement and of overall benefit to: (i) in the case of an outwards conference agreement — Australian exporters; or (ii) in the case of an inwards conference agreement — Australian importers. [subs (1) am Act 123 of 2000 s 3 and Sch 1; Act 59 of 2009 s 3 and Sch 1[89], [90], opn 24 July 2009]

(2) If a conference agreement includes a provision that permits or requires the practice of exclusive dealing (within the meaning of section 47), the provision, so far as it permits or requires that practice, must be necessary for the effective operation of the agreement and of overall benefit to: (a) in the case of an outwards conference agreement — Australian exporters; or (b) in the case of an inwards conference agreement — Australian importers. Note: See also paragraph 10.33(1)(ba) and section 10.72A. [subs (2) am Act 123 of 2000 s 3 and Sch 1]

(3) This section does not apply in relation to a provision of a conference agreement so far as the provision requires or permits a party to the agreement to enter into a loyalty agreement. (4) [subs (4) rep Act 123 of 2000 s 3 and Sch 1] SECTION 10.08 GENERALLY [12,410.5] Overview A conference agreement may only include certain exclusionary provisions or provisions which restrict competition, which are deemed necessary for conferences to continue to provide rationalised services to Australian shippers, that is, to fix or regulate freight

[page 888] rates, to pool earnings, losses or traffic, to restrict the quantity of goods carried by parties to the agreement and membership of the conference. Other restrictive exclusionary conduct may be given exemption provided that it meets the test of it being necessary for the effective operation of the agreement and of overall benefit to Australian exporters. If a conference agreement permits exclusive dealing, other than loyalty agreements, then it must meet the test of being necessary for the effective operation of the agreement and of overall benefit to Australian exporters. _____________________

[12,415] Where may consequences of conference agreements not complying with minimum standards be found? 10.09 The consequences of a conference agreement not complying with this Division are to be found in the following provisions: (a) section 10.28 (decision on application for provisional registration); (b) section 10.33 (decision on application for final registration); (c) section 10.45 (circumstances in which Minister may exercise powers in relation to registered conference agreements). SECTION 10.09 GENERALLY [12,415.5] Overview Section 10.09 is a “signpost provision” pointing to the consequences of a conference agreement not complying with Div 3 of Pt X. _____________________ DIVISION 4 — REGISTERS AND FILES AND PUBLIC INSPECTION OF THEM

[12,465]

Registers and conference agreement files

open to public inspection 10.10 (1) The registers and conference agreement files kept by the Registrar and the Commission under this Part are open to public inspection. (2) A person is entitled, on application to the Registrar or the Commission, as the case requires, and payment of the prescribed fee, to obtain a copy of the whole or any part of: (a) an entry in a register kept under this Part; or (b) a conference agreement file kept under this Part. SECTION 10.10 GENERALLY [12,465.5] Overview The public may look at the registers and conference agreement files kept by the registrar and the commission. On payment of a fee the party making the inspection is also entitled to a copy. _____________________

[12,470] What registers are to be kept by the Registrar? 10.11 (1) The Registrar shall keep: (a) a register of conference agreements; and (b) a register of designated shipper bodies; and (c) a register of non-conference ocean carriers with substantial market power; and (d) a register of obligations concerning unfair pricing practices; and [page 889] (e) a register of ocean carrier agents; and (f) a register of exemption orders. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) An entry in a register must contain such particulars as are prescribed in relation to the register.

[12,475] What conference agreement files are to be kept by the Registrar? 10.12 (1) The Registrar shall keep a file, to be known as the conference agreement file, for each conference agreement (other than a varying conference agreement). (2) The conference agreement file for a conference agreement must include: (a) documents filed with the Registrar under Division 6 in relation to the agreement or any relevant varying conference agreement (other than any part of a document that is not open to public inspection); (b) abstracts accepted by the Registrar under section 10.36 in relation to such documents (being abstracts of those parts of the documents that are not open to public inspection); and (c) notifications given to the Registrar under subsection 10.40(1) or 10.43(1) in relation to the agreement or any relevant varying conference agreement. SECTION 10.12 GENERALLY [12,475.5] Overview The registrar must keep a file, containing the specified documents, for each conference agreement registered. _____________________

[12,480] What register is to be kept by the Commission? 10.13 (1) The Commission shall keep a register of Commission investigations. (2) Subject to section 10.88, the register of Commission investigations shall contain: (a) references given to the Commission by the Minister under subsections 10.47(1), 10.50(1), 10.57(1) and 10.63(1); (b) particulars of decisions made by the Commission under

subsections 10.48(2), 10.48(2A) and 10.58(2) to hold investigations; (c) requests made to the Commission by the Minister under subsections 10.48(3) and 10.58(3); (d) documents given to the Commission in relation to investigations by it under this Part; (e) particulars of oral submissions made to the Commission in relation to such investigations; and (f) reports given to the Minister by the Commission in relation to such investigations. [subs (2) am Act 123 of 2000 s 3 and Sch 1]

SECTION 10.13 GENERALLY [12,480.5] Overview The commission is required to keep a register of investigations made by it, containing specified documents. _____________________ [page 890]

DIVISION 5 — EXEMPTIONS FROM CERTAIN RESTRICTIVE TRADE PRACTICE PROHIBITIONS

Subdivision A — Exemptions relating to conference agreements

[12,530] Exemptions apply only to certain activities 10.14 (1) Subject to this section, the exemptions provided by this Subdivision apply only in relation to the following parts of an outwards liner cargo shipping service or an inwards liner cargo shipping service: (a) the parts of the service that consist of the transport of the cargo by sea;

(b) stevedoring services; (c) activities that take place outside of Australia. (2) The exemptions provided by this Subdivision extend to the fixing of charges for an inter-terminal transport service where the service is part of an outwards liner cargo shipping service or an inwards liner cargo shipping service. (3) The exemptions provided by this Subdivision extend to the determination of common terms and conditions for bills of lading for use in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service. (4) To avoid doubt, the exemptions provided by this Subdivision do not extend to any dealings between the parties to a conference agreement and a person who provides ancillary services on behalf of the provider of a scheduled cargo shipping service. [s 10.14 subst Act 123 of 2000 s 3 and Sch 1]

SECTION 10.14 GENERALLY [12,530.5] Overview Exemptions relating to outwards liner cargo shipping services only apply to that part of the service which is by sea and activities which take place outside Australia. Stevedoring operations and transport of the cargo by land or air are not covered by the exemptions. The exemptions do apply to fixing “door to door” rates provided shippers also have the choice not to use these rates and to only use the part of the service and associated terminal facilities which is by sea and to determining common terms and conditions for bills of lading offered by conference members. These exemptions provide shippers with the option to use “door to door” services and provide standard conditions of carriage when shipping with any member of the conference. _____________________

[12,535] When do exemptions commence to apply in relation to registered conference agreements? 10.15 (1) The exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply in relation to the operation of a registered

outwards conference agreement only after the end of 30 days after the conference agreement is finally registered. (2) The exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply in relation to the operation of a registered inwards conference agreement only after whichever is the later of the following times: (a) the end of 30 days after the conference agreement is finally registered; (b) the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000. [subs (2) insrt Act 123 of 2000 s 3 and Sch 1] [s 10.15 am Act 123 of 2000 s 3 and Sch 1]

[page 891] SECTION 10.15 GENERALLY [12,535.5] Overview Conferences may only operate outwards liner shipper services with the protection of the exemption at the end of 30 days and after the conference agreement is finally registered. _____________________

[12,537] Application of exemptions to inwards liner cargo shipping services 10.15A

[s 10.15A rep Act 123 of 2000 s 3 and Sch 1]

[12,540] Exemptions do not apply to variations of conference agreement unless varying agreement registered 10.16 Where a registered conference agreement is varied or otherwise affected by a varying conference agreement (other than an agreement that consists solely of freight rate charges), the exemptions provided by this

Subdivision (other than sections 10.17A and 10.18A) apply only in relation to the operation of the registered conference agreement itself, and not that agreement as varied or otherwise affected, unless the varying conference agreement has been finally registered. [s 10.16 am Act 123 of 2000 s 3 and Sch 1]

SECTION 10.16 GENERALLY [12,540.5] Overview Exemptions do not apply to variations of agreements or variations of specific provisions of agreements until the variation has been finally registered. _____________________

[12,545] Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 10.17 (1) Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the making of a contract or arrangement, or the arriving at an understanding, if: (a) the contract, arrangement or understanding is a conference agreement; and (b) the parties apply for its provisional registration under this Part within 30 days after the making of the contract or arrangement or arriving at the understanding. [subs (1) am Act 59 of 2009 s 3 and Sch 1[91], opn 24 July 2009]

(2) Sections 44ZZRG, 44ZZRK and 45 do not apply in relation to conduct engaged in by a party to a registered conference agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service. [subs (2) am Act 123 of 2000 s 3 and Sch 1; Act 59 of 2009 s 3 and Sch 1[92], opn 24 July 2009] [heading am Act 59 of 2009 s 3 and Sch 1[91], opn 24 July 2009]

SECTION 10.17 GENERALLY [12,545.5] Overview Section 10.17 provides that s 45, which prohibits the making of anti-competitive agreements, does not apply to conference

agreements providing the parties to the agreement apply for provisional registration within 30 days of making the agreement. [page 892] Section 45 does not apply to conduct of a party to a registered conference agreement provided the conduct is authorised by a provision in the agreement and is limited to outwards liner shipping services. _____________________

[12,547] Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements 10.17A (1) Sections 44ZZRF, 44ZZRJ and 45 do not apply to the making of freight rate charges in a freight rate agreement if: (a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last-mentioned agreement is finally registered; and (b) the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement. [subs (1) am Act 59 of 2009 s 3 and Sch 1[93], opn 24 July 2009]

(2) Sections 44ZZRF, 44ZZRJ and 45 do not apply to the making of freight rate charges in a freight rate agreement if: (a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times: (i) the end of 30 days after the last-mentioned agreement is finally registered; (ii) the commencement of Part 2 of Schedule 1 to the Trade

Practices Amendment (International Liner Cargo Shipping) Act 2000; and (b) the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement. [subs (2) am Act 59 of 2009 s 3 and Sch 1[93], opn 24 July 2009]

(3) Sections 44ZZRG, 44ZZRK and 45 do not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if: (a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last-mentioned agreement is finally registered; and (b) the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement. [subs (3) am Act 59 of 2009 s 3 and Sch 1[94], opn 24 July 2009]

(4) Sections 44ZZRG, 44ZZRK and 45 do not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if: (a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times: [page 893] (i)

the end of 30 days after the last-mentioned agreement is finally registered; (ii) the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and (b) the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.

[subs (4) am Act 59 of 2009 s 3 and Sch 1[94], opn 24 July 2009] [s 10.17A insrt Act 173 of 1991 s 50; subst Act 123 of 2000 s 3 and Sch 1; am Act 59 of 2009 s 3 and Sch 1[93], [94], opn 24 July 2009] [heading am Act 59 of 2009 s 3 and Sch 1[93], opn 24 July 2009]

[12,550]

Exemption from section 47

10.18 (1) Section 47 does not apply in relation to conduct engaged in by a party to a registered conference agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) The exemption provided by subsection (1) does not apply in relation to subsections 47(6) and (7). SECTION 10.18 GENERALLY [12,550.5] Overview Section 10.18 provides that s 47, which prohibits exclusive dealing, does not apply to conduct of a party to a registered conference agreement provided the conduct is authorised by a provision of the agreement and is limited to outwards liner shipping services. This exemption does not apply to conduct known as “third line forcing” (that is, attaching a condition to a provision of a service that obliges a shipper to use services of a particular third party), which is prohibited by s 47(6) and (7). _____________________

[12,552] Exemptions from section 47 for freight rate agreements 10.18A (1) Section 47 does not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if: (a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days

after the last-mentioned agreement is finally registered; and (b) the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement. (2) Section 47 does not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if: (a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times: [page 894] (i)

the end of 30 days after the last-mentioned agreement is finally registered; (ii) the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and (b) the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement. (3) The exemptions provided by subsections (1) and (2) do not apply in relation to subsections 47(6) and (7). [s 10.18A insrt Act 173 of 1991 s 51; subst Act 123 of 2000 s 3 and Sch 1]

Subdivision B — Exemptions relating to loyalty agreements

[12,600] Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 10.19 (1) Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the making of a contract or arrangement, or the arriving at an understanding, if the contract, arrangement or understanding is a loyalty agreement. [subs (1) am Act 59 of 2009 s 3 and Sch 1[95], opn 24 July 2009]

(2) Sections 44ZZRG, 44ZZRK and 45 do not apply in relation to conduct engaged in by a party to a loyalty agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service. [subs (2) am Act 123 of 2000 s 3 and Sch 1; Act 59 of 2009 s 3 and Sch 1[96], opn 24 July 2009] [heading am Act 59 of 2009 s 3 and Sch 1[95], opn 24 July 2009]

SECTION 10.19 GENERALLY [12,600.5] Overview Section 10.19 provides exemption from s 45 (anticompetitive agreements) for the making of, and conduct giving effect to, loyalty agreements. _____________________

[12,605]

Exemption from section 47

10.20 (1) Section 47 does apply in relation to conduct engaged in by a party to a loyalty agreement in relation to another party to the agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) The exemption provided by subsection (1) does not apply in relation to subsections 47(6) and (7). SECTION 10.20 GENERALLY [12,605.5] Overview The conduct of a party under a loyalty agreement is exempt from ss 47 (exclusive dealing) and 10.05 (discrimination between shippers prohibited) provided it is authorised by the agreement and it is limited to outwards liner shipping services. An ocean carrier may discriminate between shippers on the basis that one is prepared to sign a loyalty agreement and the other is not. However, the carrier may not discriminate by refusing to offer shippers the option of a loyalty agreement. The exemption does not apply to conduct known as “third line forcing”, which is prohibited by s 47(6) and (7).

_____________________ [page 895]

[12,610] Exemptions cease to apply in relation to a shipper at the shipper’s option 10.21 The exemptions provided by this Subdivision in relation to the operation of a loyalty agreement cease to apply in relation to conduct engaged in by an ocean carrier in relation to a shipper if the shipper notifies, as prescribed, the commission and each ocean carrier who is a party to the agreement that the shipper no longer wishes the exemptions to apply. SECTION 10.21 GENERALLY [12,610.5] Overview If a shipper notifies a “loyalty agreement” to the commission and all other parties to the agreement, the exemptions cease to apply to conduct by the ocean carrier in relation to the shipper only and Pt IV applies. Other shippers who may be party to the same or a similar agreement are not affected. _____________________

[12,615] Application of exemptions to inwards liner cargo shipping services 10.21A

[s 10.21A rep Act 123 of 2000 s 3 and Sch 1]

Subdivision C — Exemption relating to inwards liner cargo shipping services [Repealed] [Subdiv C rep Act 123 of 2000 s 3 and Sch 1, opn 2 Mar 2001]

Subdivision D — Other exemptions

[12,645] Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations 10.24 (1) Sections 44ZZRF, 44ZZRJ, 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier, conference, shipper or designated shipper body so far as the conduct relates to the determination of terms and conditions of loyalty agreements. [subs (1) am Act 59 of 2009 s 3 and Sch 1[97], opn 24 July 2009]

(2) Sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier, conference, shipper or designated shipper body so far as the conduct relates to the obligations of an ocean carrier under any of the following provisions: (a) section 10.29 (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement); (b) section 10.41 (parties to registered conference agreement to negotiate with certain designated shipper bodies etc); (c) section 10.52 (non-conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc). [subs (2) am Act 59 of 2009 s 3 and Sch 1[98], opn 24 July 2009]

(3) The exemptions provided by this section do not apply in relation to subsections 47(6) and (7). (4) [subs (4) rep Act 123 of 2000 s 3 and Sch 1] [heading am Act 59 of 2009 s 3 and Sch 1[97], opn 24 July 2009]

[page 896] SECTION 10.24 GENERALLY [12,645.5] Overview Sections 45 and 47 do not apply to conduct by an ocean carrier, conference, shipper or designated shipper body in relation to conduct relating to: the determination of terms and conditions for model

loyalty agreements or the obligations of an ocean carrier to negotiate under this part. The exemption does not apply to conduct known as “third line forcing” which is prohibited by s 47(6) and (7). _____________________

[12,650] Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to stevedoring contracts 10.24A (1) Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the making of a stevedoring contract. Note: For stevedoring contract, see subsection (5). [subs (1) am Act 59 of 2009 s 3 and Sch 1[99], opn 24 July 2009] (2) Sections 44ZZRG, 44ZZRK, 45 and 47 do not apply in relation to conduct engaged in by a party to a stevedoring contract so far as the conduct gives effect to a provision of the contract. [subs (2) am Act 59 of 2009 s 3 and Sch 1[100], opn 24 July 2009]

(3) Sections 44ZZRF, 44ZZRJ, 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier or a stevedoring operator so far as the conduct relates to the determination of terms and conditions of a stevedoring contract. Note: For stevedoring operator, see subsection (5). [subs (3) am Act 59 of 2009 s 3 and Sch 1[101], opn 24 July 2009]

(3A) The exemptions provided by this section do not extend to any dealings between stevedoring operators. [subs (3A) insrt Act 7 of 2003 s 3 and Sch 2, opn 19 Mar 2003]

(4) The exemptions provided by this section do not apply in relation to subsections 47(6) and (7). (5) In this section: stevedoring contract means a contract between: (a) an ocean carrier; and (b) a stevedoring operator; under which the stevedoring operator provides, or arranges for the provision of, stevedoring services to the ocean carrier in connection

with cargo transported on international liner cargo shipping services provided by the ocean carrier. stevedoring operator means a person who: (a) provides, or proposes to provide; or (b) arranges for the provision of, or proposes to arrange for the provision of; stevedoring services in connection with cargo transported on international liner cargo shipping services. [s 10.24A insrt Act 123 of 2000 s 3 and Sch 1; am Act 59 of 2009 s 3 and Sch 1[99]–[101], opn 24 July 2009] [heading am Act 59 of 2009 s 3 and Sch 1[99], opn 24 July 2009]

[page 897] DIVISION 6 — REGISTRATION OF CONFERENCE AGREEMENTS

Subdivision A — Provisional registration

[12,665] Application for provisional registration of conference agreement 10.25 (1) The parties to a conference agreement may apply for its provisional registration under this Part. (2) The application must comply with the following provisions: (a) subsections 10.26(1) and (2) (how application is to be made and verified); (b) section 10.27 (copy of agreement to be filed with application etc). SECTION 10.25 GENERALLY

[12,670]

How application is to be made and verified _____________________

[12,665.5] Overview This is a “signpost” provision pointing to the requirements necessary to make a valid application for provisional registration. 10.26 (1) An application for the provisional registration of a conference agreement must be: (a) in the appropriate prescribed form; (b) made to the Registrar in accordance with the regulations; and (c) accompanied by the appropriate prescribed fee. (2) The application must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants. (3) The application may be made by a party to the agreement on behalf of the party and other parties to the agreement. SECTION 10.26 GENERALLY [12,670.5] Overview Parties to a conference agreement may apply for provisional registration of the agreement. The application must be made and verified in accordance with the regulations. _____________________

[12,675] Copy of agreement to be filed with application etc 10.27 (1) Subject to subsections (1A) and (1B), an application for the provisional registration of a conference agreement must be accompanied by: (a) a complete copy of the agreement so far as it is in writing (including all provisions of the agreement so far as they are in writing); and (b) a written memorandum that fully sets out the agreement so far as it is not in writing (including all provisions of the agreement so far as they are not in writing); other than any parts of the agreement that relate to the minimum level of: (c) in the case of an outwards conference agreement — outwards liner cargo shipping services to be provided under the agreement or an

outwards conference agreement that is varied or otherwise affected by the agreement; or [page 898] (d) in the case of an inwards conference agreement — inwards liner cargo shipping services to be provided under the agreement or an inwards conference agreement that is varied or otherwise affected by the agreement. [subs (1) am Act 173 of 1991 s 52; Act 123 of 2000 s 3 and Sch 1]

(1A) The copy of the agreement referred to in paragraph (1)(a) need not include the freight rate charges in the agreement. [subs (1A) insrt Act 173 of 1991 s 52]

(1B) The written memorandum referred to in paragraph (1)(b) need not include the freight rate charges in the agreement. [subs (1B) insrt Act 173 of 1991 s 52]

(2) A document that accompanies an application for the provisional registration of a conference agreement must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants. SECTION 10.27 GENERALLY [12,675.5] Overview An application for provisional registration of an agreement must have a copy of the agreement attached or, if the agreement is not in writing, a copy of a written memorandum which fully sets out all the provisions of the agreement other than details of minimum service levels. Any document which accompanies an application for provisional registration must comply with any regulations requiring its verification. _____________________

[12,677] Copy of conference agreement to be given to designated peak shipper body 10.27A

(1) If:

the parties to an outwards conference agreement apply for its (a) provisional registration; and (b) at the time of the application, there is a designated outwards peak shipper body; the parties must give the designated outwards peak shipper body a copy of: (c) the complete copy of the agreement referred to in paragraph 10.27(1)(a); and (d) the written memorandum referred to in paragraph 10.27(1)(b); as soon as practicable after the application is made. (2) If: (a) the parties to an inwards conference agreement apply for its provisional registration; and (b) at the time of the application, there is a designated inwards peak shipper body; the parties must give the designated inwards peak shipper body a copy of: (c) the complete copy of the agreement referred to in paragraph 10.27(1)(a); and (d) the written memorandum referred to in paragraph 10.27(1)(b); as soon as practicable after the application is made. [s 10.27A insrt Act 123 of 2000 s 3 and Sch 1]

[12,680] Decision on application for provisional registration 10.28 (1) If the Registrar is satisfied: (a) that an application has properly been made for the provisional registration of a conference agreement; and [page 899] (aa) in the case of an outwards conference agreement — that subsection 10.27A(1) has been complied with, or does not apply to the agreement; and

in the case of an inwards conference agreement — that subsection (ab) 10.27A(2) has been complied with, or does not apply to the agreement; and (b) in the case of an outwards conference agreement — that the agreement complies with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with that section; and (ba) in the case of an inwards conference agreement that was in force at the commencement of this paragraph — that there are no circumstances that, under the regulations, are taken to be special circumstances for the purposes of this paragraph; and (c) that provisional registration of the agreement is not prevented by one or more of the following provisions: (i) section 10.38 (application for registration to be returned where request for confidentiality refused etc); (ii) section 10.39 (application also to be made for registration of varying agreements); (iii) subsection 10.40(1) (notification of happening of affecting events prior to final registration etc); the Registrar shall, within 14 days after the making of the application, provisionally register the agreement by entering in the register of conference agreements: (d) particulars of the agreement; and (e) a notation to the effect that the agreement has been provisionally registered. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse to provisionally register the agreement. (3) When the Registrar provisionally registers the agreement or refuses to provisionally register the agreement, the Registrar shall immediately notify the applicants. (4) If the Registrar provisionally registers the agreement, the Registrar must give the Commission a copy of:

(a) the complete copy of the agreement referred to in paragraph 10.27(1)(a); and (b) the written memorandum referred to in paragraph 10.27(1)(b). [subs (4) insrt Act 123 of 2000 s 3 and Sch 1]

SECTION 10.28 GENERALLY [12,680.5] Overview The registrar has 14 days to decide whether or not to grant provisional registration. Whether or not the agreement is provisionally registered the registrar is required to notify the applicants accordingly. There are several reasons for refusal of registration: • that the application has not been made correctly; • that the agreement does not apply Australian law or allows for withdrawal of members without penalty on reasonable notice; [page 900] • • •

that a request for confidentiality has been refused and the application is returned; that application has not been made for provisional registration for a varying agreement; that notification has not been made of any event affecting the operation of the agreement. _____________________

[12,685] Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement 10.29 (1) The parties to a provisionally registered outwards conference agreement shall: (a) take part in negotiations with the designated outwards peak shipper bodies or, if there is not at that time a designated outwards peak

shipper body, the designated outwards secondary shipper bodies nominated by the Registrar for the purposes of the agreement for the purposes of this section, in relation to the minimum level of outwards liner cargo shipping services to be provided under the agreement (including any provisions of the agreement that affect the level of those services) and consider the matters raised, and representations made, by the shipper bodies; (b) if a shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties — make the information available to the shipper body; and (c) provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(1A) The parties to a provisionally registered inwards conference agreement must: (a) take part in negotiations with: (i) the designated inwards peak shipper bodies; or (ii) if there is not at that time a designated inwards peak shipper body — the designated inwards secondary shipper bodies nominated by the Registrar for the purposes of the agreement for the purposes of this section; in relation to the minimum level of inwards liner cargo shipping services to be provided under the agreement (including any provisions of the agreement that affect the level of those services) and consider the matters raised, and representations made, by the shipper bodies; and (b) if a shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties — make the

information available to the shipper body; and (c) provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer. [subs (1A) insrt Act 123 of 2000 s 3 and Sch 1]

[page 901] (1B) Subsections (1) and (1A) do not apply in relation to a conference agreement unless, within 14 days after the provisional registration of the agreement, the shipper bodies notify, as prescribed, the Registrar and the parties to the agreement that they wish to have negotiations in relation to the agreement. [subs (1B) insrt Act 123 of 2000 s 3 and Sch 1]

(2) Subsections (1) and (1A) do not apply in relation to a conference agreement if the shipper bodies notify, as prescribed, the Registrar and the parties to the agreement that they do not wish to have negotiations in relation to the agreement. [subs (2) am Act 123 of 2000 s 3 and Sch 1]

(3) The nomination of a designated secondary shipper body for the purposes of a provisionally registered conference agreement must be made by written notice given to the parties to the agreement. SECTION 10.29 GENERALLY [12,685.5] Overview Parties to a provisionally registered conference agreement must negotiate with the designated peak shipper body, or if there is no peak shipper body, a designated secondary shipper body nominated by the registrar, over minimum levels of service to be provided under the agreement (including any provisions of the agreement that affect the level of those services). Parties to the agreement and the shipper body must make available to each other, any information reasonably necessary for the purposes of the

negotiations. Parties to the agreement must provide an authorised officer with information relating to the negotiations and permit the officer to be present at the negotiations. They must also consider suggestions made by the officer. The shipper body may choose not to have negotiations in relation to an agreement. This may occur for example, where a varying agreement which does not affect minimum service levels is submitted for provisional registration. _____________________

Subdivision B — Final registration

[12,735] Application for final registration of conference agreement 10.30 (1) The parties to a provisionally registered conference agreement may apply for its final registration under this Part. (2) The application must comply with the following provisions: (a) subsections 10.31(1) and (2) (how application is to be made and verified); (b) section 10.32 (copy of agreement to be filed with application etc). SECTION 10.30 GENERALLY [12,735.5] Overview Parties to an agreement which is provisionally registered may apply for its final registration. This section also contains a “signpost” provision pointing to the requirements necessary to make a valid application. _____________________

[12,740] verified

How application is to be made and

10.31 (1) An application for the final registration of a conference agreement must be:

(a) in the appropriate prescribed form; [page 902] (b) made to the Registrar in accordance with the regulations; and (c) accompanied by the appropriate prescribed fee. (2) The application must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants. (3) The application may be made by a party to the agreement on behalf of the party and other parties to the agreement. SECTION 10.31 GENERALLY [12,740.5] Overview An application for final registration must be made and verified in accordance with the regulations. _____________________

[12,745] Copy of agreement to be filed with application etc 10.32 (1) Subject to subsections (1A) and (1B), an application for the final registration of a conference agreement must be accompanied by: (a) a complete copy of the agreement so far as it is in writing (including all provisions of the agreement so far as they are in writing); and (b) a written memorandum that fully sets out the agreement so far as it is not in writing (including all provisions of the agreement so far as they are not in writing). [subs (1) am Act 173 of 1991 s 53]

(1A) The copy of the agreement referred to in paragraph (1)(a) need not include the freight rate charges in the agreement. [subs (1A) insrt Act 173 of 1991 s 53]

(1B) The written memorandum referred to in paragraph (1)(b) need not include the freight rate charges in the agreement.

[subs (1B) insrt Act 173 of 1991 s 53]

(2) A document that accompanies an application for the final registration of a conference agreement must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants. SECTION 10.32 GENERALLY [12,745.5] Overview An application for final registration of a conference agreement must have a copy of the agreement attached or if the agreement is not in writing a copy of a written memorandum which fully sets out all of the provisions of the agreement. Any document which accompanies an application for final registration must comply with any regulations requiring its verification. _____________________

[12,750] Decision on application for final registration 10.33 (1) If the Registrar is satisfied: (a) that an application has properly been made for the final registration of a conference agreement; and (b) any of the following subparagraphs applies: [page 903] (i)

that the agreement complies with section 10.07 (minimum levels of shipping services to be specified in conference agreements) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with section 10.07; (ii) that section 10.07 does not apply in relation to the agreement because of an exemption order;

that the agreement is an inwards conference agreement that (iii) was in force at the commencement of this subparagraph; and (ba) any of the following subparagraphs applies: (i) that the agreement complies with section 10.08 (conference agreements may include only certain restrictive trade practice provisions) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with section 10.08; (ii) that section 10.08 does not apply in relation to the agreement because of an exemption order; (iii) that the agreement is an inwards conference agreement that was in force at the commencement of this subparagraph; and (c) in the case of an outwards conference agreement — that subsection 10.29(1) (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with, or does not apply, in relation to the agreement; and (ca) in the case of an inwards conference agreement — that subsection 10.29(1A) (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with, or does not apply, in relation to the agreement; and (d) that final registration of the agreement is not prevented by one or more of the following provisions: (i) section 10.38 (application for registration to be returned where request for confidentiality refused etc); (ii) section 10.39 (application also to be made for registration of varying conference agreements); (iii) subsection 10.40(1) (notification of happening of affecting events prior to final registration etc); the Registrar shall, within 14 days after the making of the application, finally register the agreement by entering in the register of conference agreements a

notation to the effect that the agreement has been finally registered. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse to finally register the agreement. (3) When the Registrar finally registers the agreement or refuses to finally register the agreement, the Registrar shall immediately notify the applicants. (4) If the Registrar finally registers the agreement, the Registrar must give the Commission a copy of: (a) the complete copy of the agreement referred to in paragraph 10.32(1)(a); and (b) the written memorandum referred to in paragraph 10.32(1)(b). [subs (4) insrt Act 123 of 2000 s 3 and Sch 1]

[page 904] SECTION 10.33 GENERALLY [12,750.5] Overview The registrar has 14 days to decide whether or not to grant final registration. Whether or not the agreement is finally registered the registrar shall notify the applicants accordingly. There are a number of reasons for refusal of registration: • the application has not been made correctly; • the application does not specify minimum levels of service or does not comply with the requirement that agreements may include only certain restrictive trade provisions; • that parties have not negotiated minimum levels of service; • that a request for confidentiality has been refused and the application returned; • that an application has not been made for registration of a varying agreement; or • that notification has not been made of an event affecting the operation of the agreement. _____________________

Subdivision C — Confidentiality requests

[12,800]

Request for confidentiality

10.34 (1) An application for the provisional or final registration of a conference agreement may include a request that a specified part of the application, or of a document accompanying the application, not be open to public inspection under this Part. (2) If such a request is included in the application, the application must include a statement of reasons in support of the request. SECTION 10.34 GENERALLY [12,800.5] Overview An application for provisional or final registration may include an application for certain parts of the agreement to remain confidential and not be placed on the public register. Any such application must include a statement of reasons in support of the request. _____________________

[12,805] Abstract to accompany request for confidentiality 10.35 (1) Where a request is made under section 10.34 that a part of the application in which the request is included, or of a document accompanying the application, not be open to public inspection under this Part, the application must be accompanied by an abstract of the part of the application or other document in relation to which the request is made. (2) The abstract must: (a) be in the appropriate prescribed form; and (b) comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants. SECTION 10.35 GENERALLY [12,805.5] Overview A request for confidentiality must be accompanied by an abstract, prepared in accordance with the regulations, of the part of the

document for which confidentiality is requested. _____________________ [page 905]

[12,810]

Examination of abstract

10.36 (1) Where: (a) a request is properly made under section 10.34 that a part of a document not be open to public inspection under this Part; and (b) the request is accompanied by an abstract of the part of the document; the Registrar shall first determine whether to accept the abstract. (2) If the Registrar is satisfied: (a) that the abstract adequately describes the scope of the part of the document; and (b) that the abstract complies with subsection 10.35(2); the Registrar shall accept the abstract. (3) If the Registrar is not satisfied, the Registrar shall: (a) refuse to accept the abstract; and (b) refuse the request and immediately notify the applicants of the decision. SECTION 10.36 GENERALLY [12,810.5] Overview The registrar determines whether or not to refuse or accept the abstract and if he refuses to accept the abstract he must refuse the request for confidentiality. The registrar may refuse to accept the abstract if it does not comply with the regulations or if it does not adequately describe the scope of the part of the document for which confidentiality is requested. If the registrar refuses to accept an abstract he must notify the applicants accordingly. _____________________

[12,815]

Decision on request for confidentiality

10.37 (1) If: (a) the Registrar is satisfied that a request has properly been made under section 10.34 that a part of a document not be open to public inspection under this Part; (b) the Registrar has, under section 10.36, accepted an abstract for the part of the document; and (c) the Registrar is also satisfied, on the basis of the statement of reasons in support of the request that is included in the application for provisional or final registration of the conference agreement concerned: (i) in the case of an outwards conference agreement — that granting the request would not disadvantage Australian exporters; and (ia) in the case of an inwards conference agreement — that granting the request would not disadvantage Australian importers; and (ii) that the request is justified because disclosure of the part of the document would disclose: (A) trade secrets; (B) information (other than trade secrets) having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or [page 906] (C) any other information concerning a person in relation to the person’s business or professional affairs, or concerning the business, commercial or financial affairs of an organisation or undertaking, the disclosure of which would, or could reasonably be expected to, unreasonably affect the person adversely

in relation to the person’s lawful business or professional affairs or the organisation or undertaking in relation to its lawful business, commercial or financial affairs; the Registrar shall, within 14 days after the making of the request, direct that the part of the document not be open to public inspection under this Part. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse the request and immediately notify the applicants of the decision. SECTION 10.37 GENERALLY [12,815.5] Overview The registrar has 14 days in which to decide whether or not to accept a request for confidentiality. Provided the request has been made properly and the abstract is adequate, the registrar is required to accept the request provided he is satisfied that granting the request would not be disadvantageous to Australian exporters and that disclosure of the information would adversely affect the conference in relation to its business. The criteria used for determining whether disclosure of information would adversely affect the conference are the criteria used in the Freedom of Information Act 1982. If the registrar refuses a request for confidentiality he must notify the applicants accordingly. _____________________

[12,820] Application for registration to be returned where request for confidentiality refused etc 10.38 Where: (a) an application for the provisional or final registration of a conference agreement includes a request under section 10.34 that a part of a document not be open to public inspection under this Part; and (b) the request is refused by the Registrar;

the Registrar shall also refuse the application, and shall return the application, and any documents that accompanied the application, to the applicants. SECTION 10.38 GENERALLY [12,820.5] Overview Where a request for confidentiality is refused, the application for provisional or final registration of the related conference agreement will also be refused and the registrar is required to return the application and any accompanying documents. _____________________ [page 907]

Subdivision D — Miscellaneous

[12,870] Application also to be made for registration of varying conference agreements 10.39 (1) Subject to subsection (2), if: (a) application has been made for the provisional or final registration of a conference agreement (in this section called the original agreement), but the original agreement has not been finally registered; and (b) another conference agreement that varies or otherwise affects the original agreement is or has been made or arrived at; the Registrar shall not provisionally or finally register the original agreement unless application has been made for the provisional registration of the other conference agreement. [subs (1) am Act 173 of 1991 s 54]

(2) Subsection (1) does not apply if the conference agreement referred to in paragraph (1)(b) consists solely of freight rate charges. [subs (2) insrt Act 173 of 1991 s 54]

SECTION 10.39 GENERALLY [12,870.5] Overview The registrar may not provisionally or finally register an agreement if another agreement that affects or varies the original agreement has been made, unless an application has been made for the provisional registration of the affecting or varying agreement. _____________________

[12,875] Notification of happening of affecting events prior to final registration etc 10.40 (1) If: (a) application has been made for the provisional or final registration of a conference agreement, but the agreement has not been finally registered; and (b) either of the following subparagraphs applies: (i) the proposed operation of the conference agreement is affected, or outwards liner cargo shipping services or inwards liner cargo shipping services proposed to be provided under the agreement are affected, by the happening of an event or otherwise than by a varying conference agreement; (ii) parties to the conference agreement have made or arrived at an agreement with other ocean carriers that affects outwards liner cargo shipping services or inwards liner cargo shipping services provided, or that would, but for the agreement, have been provided, by the other ocean carriers; the Registrar shall not provisionally or finally register the original agreement unless the parties to the agreement have notified the Registrar of the matter. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) The notice must be: (a) in the appropriate prescribed form; and (b) given to the Registrar in accordance with the regulations. [page 908]

(3) The notice must comply with any regulations requiring its verification (in whole or part). (4) Where the parties to a conference agreement give a notice under subsection (1), the Registrar may make such variations (if any) to the particulars entered in the register of conference agreements in relation to the agreement as the Registrar considers necessary or desirable to take account of the notice. SECTION 10.40 GENERALLY [12,875.5] Overview This section compels conferences to file details of events (other than varying conference agreements) and agreements with other ocean carriers which may have some impact on the conference agreement for which provisional or final registration has been sought. These events or “side agreements” may not necessarily vary the conference agreement in a technical sense, but it nevertheless may affect the operation of the agreement in some way. These would include those parts of an inwards shipping agreement which directly affect the provision of outwards services or an agreement between parties to a conference agreement and other ocean carriers which affect the provision of service to shippers on a specific or related trade route. _____________________ DIVISION 7 — OBLIGATIONS OF OCEAN CARRIERS IN RELATION TO REGISTERED CONFERENCE AGREEMENTS

[12,925] Parties to registered conference agreement to negotiate with certain designated shipper bodies etc 10.41 (1) The parties to a registered conference agreement shall: (a) take part in negotiations with a relevant designated shipper body in relation to negotiable shipping arrangements (including any provisions of the agreement that affect those arrangements)

whenever reasonably requested by the shipper body, and consider the matters raised, and representations made, by the shipper body; (b) if the shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties — make the information available to the shipper body; and (c) provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer. (2) The parties to the agreement shall give each relevant designated shipper body at least 30 days notice of any change in negotiable shipping arrangements unless the shipper body agrees to a lesser period of notice for the change. (2A) [subs (2A) rep Act 123 of 2000 s 3 and Sch 1] (3) In this section: eligible Australian contract means: (a) a contract entered into in Australia; or (b) a contract where questions arising under the contract are to be determined in accordance with Australian law. freight rates includes base freight rates, surcharges, rebates and allowances. [page 909] negotiable shipping arrangements: (a) in relation to an outwards conference agreement — means the arrangements for, or the terms and conditions applicable to, outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement (including, for example, freight rates, charges for inter-terminal transport

services, frequency of sailings and ports of call); or (b) in relation to an inwards conference agreement — means: (i) the arrangements for, or the terms and conditions applicable to, inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement (including, for example, freight rates, charges for inter-terminal transport services, frequency of sailings and ports of call), where those arrangements or those terms and conditions, as the case may be, are embodied in an eligible Australian contract; or (ii) the arrangements for, or the terms and conditions applicable to, the parts of the inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement that consist of activities that take place on land in Australia (including, for example, terminal handling charges and charges for inter-terminal transport services). relevant designated shipper body: (a) in relation to an outwards conference agreement — means: (i) a designated outwards peak shipper body; or (ii) a designated outwards secondary shipper body nominated by the Registrar (by written notice given to the parties to the agreement) for the purposes of the agreement for the purposes of this section; or (b) in relation to an inwards conference agreement — means: (i) a designated inwards peak shipper body; or (ii) a designated inwards secondary shipper body nominated by the Registrar (by written notice given to the parties to the agreement) for the purposes of the agreement for the purposes of this section. [subs (3) subst Act 123 of 2000 s 3 and Sch 1]

SECTION 10.41 GENERALLY [12,925.5] Overview

Parties to a registered conference agreement must

take part in negotiations over shipping arrangements with the designated peak shipper body or the designated secondary shipper body nominated by the registrar whenever reasonably requested and they must consider matters raised by the body. Parties to an agreement, so requested by the shipper body, must make available to each other any information reasonably necessary for the purpose of the negotiation. Parties to the agreement must: provide an authorised officer with information relating to negotiations; permit the officer to be present at the negotiations; and consider suggestions made by the officer. The parties to an agreement are required to give the shipper body with whom it negotiates at least 30 days’ notice of changes in shipping arrangements, unless the shipper body agrees to a lesser period (in cases where for instance, the changes benefit shippers, for example, freight rates are being reduced, or capacity being expanded). _____________________

[page 910]

[12,930] Application to be made for registration of varying conference agreements 10.42 (1) Subject to subsection (3), where a conference agreement that varies or otherwise affects a registered conference agreement is made or arrived at, application shall be made for its provisional registration. [subs (1) am Act 173 of 1991 s 55]

(2) The application must be made within 30 days after the making of or arriving at the agreement. (3) Subsection (1) does not apply to a conference agreement that consists solely of freight charges. [subs (3) insrt Act 173 of 1991 s 55]

SECTION 10.42 GENERALLY [12,930.5] Overview Parties must apply for provisional registration of an agreement or otherwise affecting an original agreement within 30 days of making the agreement. _____________________

[12,935] Parties to registered conference agreement to notify happening of affecting events etc 10.43 (1) Where: (a) the operation, or proposed operation, of a registered conference agreement is affected, or outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, under the agreement are affected, by the happening of an

event or otherwise than by a varying conference agreement; or (b) parties to a registered conference agreement make or arrive at an agreement with other ocean carriers that affects outwards liner cargo shipping services or inwards liner cargo shipping services provided, or that would, but for the agreement, have been provided, by the other ocean carriers; the parties to the registered conference agreement shall notify the Registrar of the matter. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) The notice must be: (a) in the appropriate prescribed form; and (b) given to the Registrar in accordance with the regulations within 30 days after the operation, or proposed operation, of the agreement is affected, the services are affected or the agreement is made or arrived at, as the case may be. (3) The notice must comply with any regulations requiring its verification (in whole or part). (4) Where the parties to a registered conference agreement give a notice under subsection (1), the Registrar may make such variations (if any) to the particulars entered in the register of conference agreements in relation to the agreement as the Registrar considers necessary or desirable to take account of the notice. (5) [subs (5) rep Act 123 of 2000 s 3 and Sch 1] [page 911] SECTION 10.43 GENERALLY [12,935.5] Overview This section compels parties to a registered conference agreement to file details of events (other than varying conference agreements) and “agreements” with other ocean carriers which may have some impact on the conference agreement. These events or “side agreements” may not necessarily vary the conference agreement in a technical sense, but nevertheless may affect the operation of

the conference agreement in some way. These would include those parts of an inwards shipping agreement which directly affect the provision of outwards services or an agreement between the parties to a conference agreement and other ocean carriers which affects the provision of services to shippers on a specific or related trade route. _____________________ DIVISION 8 — POWERS OF MINISTER IN RELATION TO REGISTERED CONFERENCE AGREEMENTS

[12,985] Powers exercisable by Minister in relation to registered conference agreements etc 10.44 (1) Subject to sections 10.45 and 10.46, the Minister may direct the Registrar: (a) to cancel the registration of a registered conference agreement; or (b) to cancel the registration of a registered conference agreement so far as it relates to: (i) a particular provision of the agreement; (ii) a particular party to the agreement; or (iii) particular conduct. (2) Where the Minister gives a direction under subsection (1), the Registrar shall immediately enter particulars of the direction in the register of conference agreements. (3) On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the agreement. (4) On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to a particular provision of the agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the provision. (5) On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so

far as it relates to a particular party to the agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the party. (6) On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to particular conduct, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to conduct of that kind in relation to the agreement. (7) A direction under subsection (1) must be given in writing, and the Registrar shall serve a copy of the direction on the parties to the conference agreement concerned. [page 912] (8) If: (a) the Commission reports to the Minister under section 10.47 or 10.48 in relation to either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix); and (b) after taking the report into account, the Minister is satisfied of either or both of those matters and decides to give a direction under subsection (1); the Minister must: (c) prepare a statement about the decision; and (d) cause: (i) a copy of the statement; and (ii) a copy of the Commission’s report; to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made. [subs (8) insrt Act 123 of 2000 s 3 and Sch 1]

SECTION 10.44 GENERALLY [12,985.5] Overview The minister may either direct the registrar to cancel the registration of a registered conference agreement or direct the

registrar to cancel the registration of a registered conference agreement in so far as it relates to a particular provision, or a particular party or particular conduct. The ministerial direction must be entered on to the register of conference agreements kept by the registrar. Cancellation of registration of an agreement or cancellation of an agreement in so far as it relates to a particular provision, party or conduct means that the relevant parties to the conference agreement no longer have exemption from ss 45 and 47 for the particular provisions of the agreement or the particular conduct. _____________________

[12,990] Circumstances in which Minister may exercise powers in relation to registered conference agreements 10.45 (1) The Minister shall not give a direction under subsection 10.44(1) in relation to a registered conference agreement unless: (a) the Minister is satisfied of one or more of the following matters: (i) in the case of an outwards conference agreement — that the agreement does not comply with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements); (ia) that section 10.07 (minimum levels of shipping services to be specified in conference agreements) applies to the agreement, and that the agreement does not comply with that section; (ib) that section 10.08 (conference agreements may include only certain restrictive trade practice provisions) applies to the agreement, and that the agreement does not comply with that section; (ii) that section 10.41 (parties to registered conference agreement to negotiate with certain designated shipper bodies etc) applies to the parties to the agreement, and that the parties have contravened, or propose to contravene, that

section; [page 913] (iia) that parties to the agreement have contravened, or propose to contravene, subsection 10.43(1) (parties to registered conference agreement to notify happening of affecting events etc); (iii) that section 10.42 (application to be made for registration of varying conference agreements) has not been complied with in relation to a conference agreement that varies or otherwise affects the agreement; (iv) that parties to the agreement have given effect to or applied, or propose to give effect to or apply, the agreement without due regard to the need for outwards liner cargo shipping services or inwards liner cargo shipping services provided under the agreement to be: (A) efficient and econominal; and (B) provided at the capacity and frequency reasonably required to meet the needs of shippers who use, and shippers who may reasonably be expected to need to use, the services; (v) in the case of an outwards conference agreement — that parties to the agreement have given effect to or applied, or propose to give effect to or apply, the agreement in a manner that prevents or hinders an Australian flag shipping operator from engaging efficiently in the provision of outwards liner cargo shipping services to an extent that is reasonable; (vi) that provisional or final registration of the agreement was granted on the basis of a statement or information that was false or misleading in a material particular; (vii) that parties to the agreement have breached an undertaking given by the parties to the agreement under section 10.49;

(viii)that subsection (3) applies to parties to the agreement; (ix) that subsection (4) applies to parties to the agreement; and (aa) if the Minister is satisfied of either or both of the matters referred to in subparagraphs (1)(a)(viii) and (ix) — at least 21 days before giving the direction, the Minister served on each party to the agreement a written notice of his or her intention to give the direction; and (b) the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the parties to the agreement directed at obtaining an undertaking or action by the parties that would have made a direction under subsection 10.44(1) unnecessary; and (c) either of the following subparagraphs applies: (i) the Commission has reported to the Minister under section 10.47 or 10.48 in relation to matters referred to in paragraph (a) of which the Minister is satisfied and the Minister has taken the report into account; (ii) the Minister is satisfied that the special circumstances of the case make it desirable to give the direction before he or she receives such a report from the Commission. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) For the purposes of subparagraph (1)(a)(v), in determining what is reasonable, have regard to: (a) the national interest; and (b) the interests of the following: [page 914] (i) Australian shippers generally; (ii) Australian shippers in a particular trade; (iii) Australian shippers of particular kinds of goods; (iv) shippers in a particular part of Australia; and (c) any other relevant matters. [subs (2) insrt Act 123 of 2000 s 3 and Sch 1]

(3) This subsection applies to the parties to a registered conference agreement if: (a) the agreement includes a provision that is covered by paragraph 10.08(1)(aa) or (b); and (b) the parties to the agreement have engaged in conduct, or propose to engage in conduct, to give effect to or apply the provision; and (c) that conduct or proposed conduct has not resulted in, or is unlikely to result in, a benefit to the public that outweighs the detriment to the public constituted by any lessening of competition that: (i) has resulted, or is likely to result, from the conduct; or (ii) would result, or be likely to result, if the proposed conduct were engaged in; and (d) there are exceptional circumstances that warrant the giving of a direction under subsection 10.44(1). [subs (3) insrt Act 123 of 2000 s 3 and Sch 1; am Act 59 of 2009 s 3 and Sch 1[102], opn 24 July 2009]

(4) This subsection applies to the parties to a registered conference agreement if: (a) the parties to the agreement have prevented, or are proposing to prevent, the entry of a prospective party to the agreement; and (b) the prevention or proposed prevention is unreasonable; and (c) the prevention or proposed prevention is contrary to the interests of any or all of the following: (i) Australian shippers generally; (ii) Australian shippers in a particular trade; (iii) Australian shippers of particular kinds of goods; (iv) shippers in a particular part of Australia; (v) in the case of an outwards conference agreement — producers of goods of a kind exported, or proposed to be exported, from Australia. [subs (4) insrt Act 123 of 2000 s 3 and Sch 1]

(5) [subs (5) rep Act 123 of 2000 s 3 and Sch 1] SECTION 10.45 GENERALLY [12,990.5] Overview

The minister may only exercise his powers under

this section if he is satisfied that the agreement does not comply with the minimum requirement for registration or if the parties to a conference agreement contravene or propose to contravene obligations established by the Part. These include negotiations with certain designated shipper bodies, notification of agreements or events affecting a registered conference agreement, hindering Australian flag shipping from participating in outwards liner shipping services and not having due regard for Australian exporter’s needs for outwards liner shipping services. The minister may only take action if the minister (or an authorised officer) has attempted to consult with the parties to the agreement with the aim of obtaining an undertaking to comply with the relevant provisions of the Part. [page 915] The minister shall not take action unless the minister has either first received a report from the commission on whether grounds exist for the minister to exercise his powers in relation to conference agreements or the minister is satisfied that special arrangements make it necessary to take action before receiving a report from the commission. _____________________

[12,995] Action to be taken where powers exercised by Minister without first obtaining Commission report 10.46 (1) Where the Minister gives a direction under subsection 10.44(1) before receiving a report under section 10.47 or 10.48 in relation to matters referred to in paragraph 10.45(1)(a) of which the Minister was satisfied before giving the direction, the Minister shall immediately refer the matters to the Commission under section 10.47. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) The Commission shall report to the Minister within a period of not more than 60 days in relation to those matters and any other matters that the

Commission is then investigating under this Division in relation to the conference agreement concerned. (3) If, after taking the Commission’s report into account, the Minister is satisfied of one or more of the matters referred to in paragraph 10.45(1)(a), the Minister may, within 21 days after receiving the Commission’s report, direct the Registrar not to take action under subsection (4) in relation to the agreement, and may also give such further directions under subsection 10.44(1) in relation to the agreement as the Minister considers appropriate. [subs (3) am Act 123 of 2000 s 3 and Sch 1]

(4) The Registrar shall delete the particulars of the direction under subsection 10.44(1) from the register of conference agreements at the end of 21 days after the Minister receives the Commission’s report unless the Minister has given a direction under subsection (3) in relation to the agreement. (5) On the deletion of the particulars of the direction, Subdivision A of Division 5 applies in relation to the agreement to the extent to which it would have applied but for the entry of the particulars. (6) Subsection (1) shall not be taken by implication to limit the matters that may be referred to the Commission under section 10.47. (7) A direction under subsection (3) must be given in writing, and the Registrar must serve a copy of the direction on the parties to the conference agreement concerned. [subs (7) am Act 123 of 2000 s 3 and Sch 1]

(8) If, after taking the Commission’s report into account: (a) the Minister is satisfied of either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix); and (b) the Minister decides to give a direction under subsection (3); the Minister must: (c) prepare a statement about the decision; and (d) cause: (i) a copy of the statement; and (ii) a copy of the Commission’s report; to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made. [subs (8) insrt Act 123 of 2000 s 3 and Sch 1]

[page 916] SECTION 10.46 GENERALLY [12,995.5] Overview Where the minister decides it is necessary to take action before receiving a commission report or reports, the minister is required, immediately after taking action, to refer the matter to the commission. In these cases the commission reports to the minister within 60 days on the matters concerned. The ministerial direction must be entered on to the register of conference agreements by the registrar. Unless the minister directs the registrar to refrain from doing so, the registrar is required, 21 days after the minister has received the commission’s report, to delete the particulars of the direction from the notation entered into the register of conference agreements. _____________________

[13,000] Investigation and report by Commission on reference by Minister 10.47 (1) The Minister may refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied in relation to a registered conference agreement of one or more specified matters referred to in paragraph 10.45(1)(a). [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) The Commission shall hold an investigation into the question and report to the Minister. (3) In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission. SECTION 10.47 GENERALLY [13,000.5] Overview The minister may refer to the commission for investigation and report the question whether grounds exist for the exercise of

his powers in relation to a specified matter. The commission is to give special consideration to any matters specified in the minister’s reference. _____________________

[13,005] Investigation and report by Commission on own initiative or on application by affected person 10.48 (1) A person affected by the operation of a registered conference agreement may apply to the Commission for an investigation into the question whether grounds exist for the Minister to be satisfied in relation to the agreement of one or more specified matters referred to in paragraph 10.45(1)(a). [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) If subsection (1) applies, the Commission may hold an investigation into the question, and, if it decides to do so, it shall inform the Minister of its decision and report to the Minister. [subs (2) am Act 123 of 2000 s 3 and Sch 1]

(2A) The Commission may, on its own initiative, hold an investigation into the question whether grounds exist for the Minister to be satisfied in relation to a registered conference agreement of either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix). [subs (2A) insrt Act 123 of 2000 s 3 and Sch 1]

[page 917] (2B) If subsection (2A) applies, the Commission must inform the Minister of its decision to hold an investigation and report to the Minister. [subs (2B) insrt Act 123 of 2000 s 3 and Sch 1]

(3) In its investigation, the Commission shall give special consideration to such matters (if any) as the Minister requests it to give special consideration. (4) A request under subsection (3) must be made in writing. (5) Without limiting subsection (1), each of the following persons shall be taken to be a person affected by the operation of a registered conference

agreement: (a) a party to the agreement; (b) a designated shipper body; (c) in the case of an outwards conference agreement — an Australian flag shipping operator; (d) a shipper who uses, or may reasonably be expected to need to use, outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, under the agreement; (e) an association representing shippers who use, or may reasonably be expected to need to use, such services. [subs (5) am Act 123 of 2000 s 3 and Sch 1]

SECTION 10.48 GENERALLY [13,005.5] Overview A person affected by the operation of a registered agreement may apply to the commission for an investigation. The commission may hold an investigation and if it does is required to inform the minister and make a report. A person affected is defined as being: • a party to the agreement; • a designated shipper body; • an Australian flag shipping operator in relation to the agreement; • an individual shipper; or • an association representing shippers who use or may be expected to need to use services provided under the agreement. _____________________

[13,010] Undertakings by parties to registered conference agreement 10.49 (1) The parties to a registered conference agreement may, at any time, offer to give an undertaking to do, or not to do, a specified act or thing. (2) The offer must be: (a) in the appropriate prescribed form; and (b) made to the Minister in accordance with the regulations.

(3) If the Minister accepts the offer, the Minister may do one or more of the following: (a) revoke any reference made to the Commission under section 10.47 in relation to the agreement; (b) direct the Commission, in writing, to cease holding any investigation being held by it under section 10.48 in relation to the agreement; (c) revoke any direction given under subsection 10.44(1) in relation to the agreement. [page 918] (4) If the Minister accepts the offer, the parties shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of conference agreements. (5) If the Minister revokes a direction given under subsection 10.44(1), the Registrar shall immediately include in the register a notation to the effect that the direction has been revoked. (6) On the inclusion of the notation, Subdivision A of Division 5 applies in relation to the agreement to the extent to which it would have applied but for the entry of the particulars of the direction. SECTION 10.49 GENERALLY [13,010.5] Overview Parties to an agreement may offer an undertaking to do or not to do a specified act which is subject to a reference to the Commission or a ministerial direction concerning the cancellation of the registration of a conference agreement. If the minister accepts the offer the minister may: • revoke a reference to the commission; • direct that a commission investigation be terminated; or • revoke a direction cancelling registration of the agreement or cancelling registration of an agreement in so far as it relates to a

particular provision, party or conduct. An undertaking or a revocation of a ministerial direction must be entered by the registrar in the register of conference agreements. _____________________

[13,015]

Enforcement of undertakings

10.49A (1) A party to a registered conference agreement must not contravene an undertaking given under section 10.49. (2) Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV. [s 10.49A insrt Act 123 of 2000 s 3 and Sch 1] DIVISION 9 — OBLIGATIONS OF NON-CONFERENCE OCEAN CARRIERS WITH SUBSTANTIAL MARKET POWER

[13,060] Investigations by Commission into market power of ocean carriers 10.50 (1) The Minister may refer to the Commission for investigation and report the question whether an ocean carrier has a substantial degree of market power in the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on a trade route otherwise than because the ocean carrier is a party to a conference agreement. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) The Commission shall hold an investigation into the question and report to the Minister. [subs (2) am Act 123 of 2000 s 3 and Sch 1]

(3) In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission. [subs (3) am Act 123 of 2000 s 3 and Sch 1]

[page 919]

SECTION 10.50 GENERALLY [13,060.5] Overview The minister may refer to the commission for inquiry and report whether or not a non-conference ocean carrier has a substantial degree of power in a market. The commission is to give special consideration to any matters specified in the minister’s reference. _____________________

[13,065] Determination by Minister of market power of ocean carriers 10.51 (1) Where: (a) the Commission reports to the Minister under section 10.50 that an ocean carrier has a substantial degree of market power in the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on a trade route otherwise than because the ocean carrier is a party to a conference agreement; or (b) an ocean carrier agrees, in writing, to the Minister giving a direction under this subsection in relation to the ocean carrier in relation to a trade route; the Minister may direct the Registrar to register the ocean carrier as a nonconference ocean carrier with substantial market power in relation to the trade route. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) Where the Minister gives a direction under subsection (1), the Registrar shall immediately enter particulars of the ocean carrier and the trade route in the register of non-conference ocean carriers with substantial market power. (3) A direction under subsection (1) must be in writing, and the Registrar shall serve a copy of the direction on the ocean carrier concerned. SECTION 10.51 GENERALLY [13,065.5] Overview The minister may direct the registrar to register an ocean carrier as a carrier with a substantial degree of market power, where the commission has reported positively or the ocean carrier agrees in writing

to the minister giving a direction (in which case there is no need for the minister to refer the matter to the commission for inquiry). _____________________

[13,070] Non-conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc 10.52 (1) A registered non-conference ocean carrier with substantial market power shall: (a) take part in negotiations with a relevant designated shipper body in relation to negotiable shipping arrangements whenever reasonably requested by the shipper body, and consider the matters raised, and representations made, by the shipper body; (b) if the shipper body requests the ocean carrier to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the ocean carrier — make the information available to the shipper body; and [page 920] (c) provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer. (2) The ocean carrier shall give each relevant designated shipper body at least 30 days notice of any change in negotiable shipping arrangements unless the shipper body agrees to a lesser period of notice for the change. (2A) [subs (2A) rep Act 123 of 2000 s 3 and Sch 1] (3) In this section: eligible Australian contract means:

(a) a contract entered into in Australia; or (b) a contract where questions arising under the contract are to be determined in accordance with Australian law. [def insrt Act 123 of 2000 s 3 and Sch 1]

freight rates includes base freight rates, surcharges, rebates and allowances. [def insrt Act 123 of 2000 s 3 and Sch 1]

negotiable shipping arrangements means: (a) the arrangements for, or the terms and conditions applicable to, outwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route (including, for example, freight rates, charges for inter-terminal transport services, frequency of sailings and ports of call); or (b) the arrangements for, or the terms and conditions applicable to, inwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route (including, for example, freight rates, charges for inter-terminal transport services, frequency of sailings and ports of call), where those arrangements or those terms and conditions, as the case may be, are embodied in an eligible Australian contract; or (c) the arrangements for, or the terms and conditions applicable to, the parts of the inwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route that consist of activities that take place on land in Australia (including, for example, terminal handling charges and charges for inter-terminal transport services). [def subst Act 123 of 2000 s 3 and Sch 1]

relevant designated shipper body: (a) in relation to negotiations connected with outwards liner cargo shipping services — means: (i) a designated outwards peak shipper body; or (ii) a designated outwards secondary shipper body nominated by the Registrar (by written notice given to the ocean carrier) for the purposes of the relevant trade route; or (b) in relation to negotiations connected with inwards liner cargo

shipping services — means: (i) a designated inwards peak shipper body; or [page 921] (ii) a designated inwards secondary shipper body nominated by the Registrar (by written notice given to the ocean carrier) for the purposes of the relevant trade route. [def subst Act 123 of 2000 s 3 and Sch 1]

relevant trade route means the trade route specified in relation to the ocean carrier in the register of non-conference ocean carriers with substantial market power. SECTION 10.52 GENERALLY [13,070.5] Overview A registered non-conference ocean carrier with substantial market power is subject to the same obligations to negotiate with designated shipper bodies as conference members. It must take part in negotiations over shipping arrangements with a designated peak shipper body or the designated secondary body nominated by the registrar whenever reasonably requested to do so and must consider matters raised by the shipper body. The ocean carrier and the shipper body in question must make available to the other party any information reasonably necessary for the purpose of negotiations. The ocean carrier must provide an authorised officer with information relating to negotiations, permit the officer to be present at the negotiations and consider suggestions made by the officer. The ocean carrier is required to give the designated shipper body with whom it negotiates at least 30 days’ notice of changes in shipping arrangements unless the shipper body agrees to a lesser period (in cases, for instance, where the changes benefit shippers eg where freight rates are being reduced, or capacity being expanded). _____________________

[13,075] Non-conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc 10.53 (1) A registered non-conference ocean carrier with substantial market power shall not prevent or hinder an Australian flag shipping operator from engaging efficiently in the provision of outwards liner cargo shipping services to an extent that is reasonable. (2) For the purposes of subsection (1), in determining what is reasonable, have regard to: (a) the national interest; and (b) the interests of the following: (i) Australian shippers generally; (ii) Australian shippers in a particular trade; (iii) Australian shippers of particular kinds of goods; (iv) shippers in a particular part of Australia; and (c) any other relevant matters. [subs (2) insrt Act 123 of 2000 s 3 and Sch 1]

SECTION 10.53 GENERALLY [13,075.5] Overview A non-conference ocean carrier with substantial market power may not hinder an Australian flag shipping operator from engaging efficiently to a reasonable extent in outwards liner shipping services. _____________________ [page 922]

DIVISION 10 — POWERS OF MINISTER IN RELATION TO NONCONFERENCE OCEAN CARRIERS WITH SUBSTANTIAL MARKET POWER

[13,125] Powers exercisable by Minister in relation to obligations of non-conference ocean carriers with substantial market power 10.54 (1) Subject to sections 10.55 and 10.56, the Minister may, by writing served on a registered non-conference ocean carrier with substantial market power, order the ocean carrier to comply with any of the ocean carrier’s obligations under Division 9. (2) Where the Minister makes an order under subsection (1), the Registrar shall immediately enter particulars of the order in the register of nonconference ocean carriers with substantial market power. SECTION 10.54 GENERALLY [13,125.5] Overview The minister may make an order requiring an ocean carrier to comply with its obligations ie to negotiate with certain designated shipper bodies and not to hinder Australian flag shipping operators. The registrar must register such an order. _____________________

[13,130] Circumstances in which Minister may exercise powers 10.55 The Minister shall not make an order under subsection 10.54(1) unless: (a) the Minister is satisfied of either or both of the following matters: (i) that section 10.52 (non-conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc) applies to the ocean carrier concerned, and that the ocean carrier has contravened, or proposes to contravene, that section; (ii) that the ocean carrier concerned has contravened, or proposes to contravene, section 10.53 (non-conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc);

(b) the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the ocean carrier directed at obtaining an undertaking or action by the ocean carrier that would have made an order under subsection 10.54(1) unnecessary; and (c) either of the following subparagraphs applies: (i) the Commission has reported to the Minister under section 10.57 or 10.58 in relation to matters referred to in paragraph (a) of which the Minister is satisfied and the Minister has taken the report into account; (ii) the Minister is satisfied that the special circumstances of the case make it desirable to make the order before he or she receives such a report from the Commission. [s 10.55 am Act 123 of 2000 s 3 and Sch 1]

SECTION 10.55 GENERALLY [13,130.5] Overview Section 10.55 mirrors the provisions applying to conference operators. The minister may not make an order unless the minister is satisfied that the non-conference ocean carrier with substantial market power has failed to negotiate with relevant shipper bodies or [page 923] has hindered an Australian flag shipping operator and the minister (or an authorised officer) has attempted to consult with the carrier with the aim of obtaining an undertaking which would make a ministerial order unnecessary. The minister shall not make an order unless the minister has either first received a report from the commission or is satisfied that special circumstances make it necessary to take action before receiving a report from the commission. _____________________

[13,135] Action to be taken where powers exercised by Minister without first obtaining Commission report 10.56 (1) Where the Minister makes an order under subsection 10.54(1) before receiving a report under section 10.57 or 10.58 in relation to matters referred to in paragraph 10.55(a) of which the Minister was satisfied before making the order, the Minister shall immediately refer the matters to the Commission under section 10.57. (2) The Commission shall report to the Minister within a period of not more than 60 days in relation to those matters and any other matters that the Commission is then investigating under this Division in relation to the ocean carrier concerned. (3) If, after taking the Commission’s report into account, the Minister is satisfied of one or more of the matters referred to in paragraph 10.55(a), the Minister may, within 21 days after receiving the Commission’s report, direct the Registrar not to take action under subsection (4) in relation to the ocean carrier, and may also make such further orders under subsection 10.54(1) in relation to the ocean carrier as the Minister considers appropriate. (4) The Registrar shall delete the particulars of the order under subsection 10.54(1) from the register of non-conference ocean carriers with substantial market power at the end of 21 days after the Minister receives the Commission’s report unless the Minister has given a direction under subsection (3) in relation to the ocean carrier. (5) Subsection (1) shall not be taken by implication to limit the matters that may be referred to the Commission under section 10.57. (6) A direction under subsection (3) must be given in writing, and the Registrar must serve a copy of the direction on the ocean carrier. [subs (6) am Act 123 of 2000 s 3 and Sch 1]

SECTION 10.56 GENERALLY [13,135.5] Overview Section 10.56 mirrors the provision applying to conference operators. Where the minister decides it is necessary to take action before receiving a commission report or reports, the minister is

required, immediately after taking the action, to refer the matter to the commission for a report within 60 days. Unless the minister directs the registrar not to do so, the registrar is required, after 21 days after the minister receives the commission’s report, to delete the particulars of the ministerial direction from the notation entered in the register of non-conference ocean carriers with substantial market power. _____________________ [page 924]

[13,140] Investigation and report by Commission on reference by Minister 10.57 (1) The Minister may refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied in relation to a registered non-conference ocean carrier with substantial market power of one or more specified matters referred to in paragraph 10.55(a). (2) The Commission shall hold an investigation into the question and report to the Minister. (3) In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission. SECTION 10.57 GENERALLY [13,140.4] Overview This section mirrors the provisions applying to conference operators. The minister may refer to the commission for investigation and report whether grounds exist for the minister to make an order in relation to a non-conference ocean carrier with substantial market power. The commission is required to give special consideration to matters specified in the minister’s reference. _____________________

[13,145] Investigation and report by Commission on application by affected person 10.58 (1) A person affected by the conduct of a registered nonconference ocean carrier with substantial market power may apply to the Commission for an investigation into the question whether grounds exist for the Minister to be satisfied in relation to the ocean carrier of one or more specified matters referred to in paragraph 10.55(a). (2) The Commission may hold an investigation into the question, and, if it decides to do so, it shall inform the Minister of its decision and report to the Minister. (3) In its investigation, the Commission shall give special consideration to such matters (if any) as the Minister requests it to give special consideration. (4) A request under subsection (3) must be made in writing. (5) Without limiting subsection (1), each of the following persons shall be taken to be a person affected by the conduct of a registered non-conference ocean carrier with substantial market power: (a) a designated shipper body; (b) in the case of an investigation relating to outwards liner cargo shipping services — an Australian flag shipping operator; (c) a shipper who uses, or may reasonably be expected to need to use, outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, on the trade route specified in relation to the ocean carrier in the register of non-conference ocean carriers with substantial market power; (d) an association representing shippers who use, or may reasonably be expected to need to use, such services. [subs (5) am Act 123 of 2000 s 3 and Sch 1]

[page 925]

SECTION 10.58 GENERALLY

[13,145.5] Overview This section mirrors the provisions applying to commission investigations in relation to conference operators. A person affected by the conduct of a non-conference ocean carrier with substantial market power may apply to the commission for an investigation. The commission may hold an investigation and if it does, is required to inform the minister and make a report. A person “affected” means: a designated shipper body, an Australian flag shipping operator, an individual shipper or association representing shippers who use, or may be expected to need to use, services provided on the trade route. _____________________

[13,150]

Undertakings by ocean carrier

10.59 (1) A registered non-conference ocean carrier with substantial market power may, at any time, offer to give an undertaking to do, or not to do, a specified act or thing. (2) The offer must be: (a) in the appropriate prescribed form; and (b) made to the Minister in accordance with the regulations. (3) If the Minister accepts the offer, the Minister may do one or more of the following: (a) revoke any reference made to the Commission under section 10.57 in relation to the ocean carrier; (b) direct the Commission, in writing, to cease holding any investigation being held by it under section 10.58 in relation to the ocean carrier; (c) revoke any order made under subsection 10.54(1) in relation to the ocean carrier. (4) If the Minister accepts the offer, the ocean carrier shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of non-conference ocean carriers with substantial market power. (5) If the Minister revokes an order made under subsection 10.54(1), the Registrar shall immediately include in the register a notation to the effect that the order has been revoked.

SECTION 10.59 GENERALLY [13,150.5] Overview This section mirrors the provisions applying to conference operators. An ocean carrier may offer an undertaking to do or not to do a specified act. If the minister accepts the offer the minister may invoke a reference to the commission, or direct that an investigation be ceased, or revoke an order. An undertaking or revocation of a ministerial order must be entered by the registrar in the register of non-conference ocean carriers with substantial market power. _____________________

[13,155]

Enforcement of orders and undertakings

10.60 (1) An ocean carrier shall not contravene an order made under subsection 10.54(1) or an undertaking given under section 10.59. (2) Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV. [page 926] SECTION 10.60 GENERALLY [13,155.5] Overview undertaking or an order.

Penalties in Pt VI apply to contravention of an _____________________

DIVISION 11 — UNFAIR PRICING PRACTICES

[13,205] Powers exercisable by Minister in relation to pricing practices etc

10.61 (1) Subject to section 10.62, the Minister may, by writing served on an ocean carrier, order the ocean carrier not to engage in a pricing practice. (2) Where the Minister makes an order under subsection (1), the Registrar shall immediately enter particulars of the order in the register of obligations concerning unfair pricing practices. SECTION 10.61 GENERALLY [13,205.5] Overview The minister may order (in writing) an ocean carrier not to engage in unfair pricing practices. A ministerial order must be entered by the registrar into the register of obligations concerning unfair pricing practices. _____________________

[13,210] Circumstances in which Minister may exercise powers 10.62 The Minister shall not make an order under subsection 10.61(1) unless: (a) the Minister is satisfied: (i) that the ocean carrier concerned has engaged in the pricing practice concerned in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on a particular trade route; (ii) that the practice has resulted in the freight rates charged by the ocean carrier for all or some outwards liner cargo shipping services or inwards liner cargo shipping services provided on the trade route being less than normal freight rates for services of that kind (as determined in accordance with section 10.66); (iii) that the practice is of such a magnitude or such a recurring or systematic character that it has prevented or hindered, or threatens to prevent or hinder, the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on the trade route that are:

(A) efficient and economical; and (B) provided at the capacity and frequency reasonably required to meet the needs of shippers who use, and shippers who may reasonably be expected to need to use, the services; and (iv) that the practice is contrary to the national interest (as determined in accordance with section 10.67); (b) the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the ocean carrier directed at obtaining an undertaking or action by the ocean carrier that would have made an order under subsection 10.61(1) unnecessary; and [page 927] (c) the Commission has reported to the Minister under section 10.63 in relation to the ocean carrier in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on the trade route and the Minister has taken the report into account. [s 10.62 am Act 123 of 2000 s 3 and Sch 1]

SECTION 10.62 GENERALLY [13,210.5] Overview The minister may not make an order in relation to unfair pricing practices unless the minister is satisfied that: • the ocean carrier has engaged in unfair pricing; • the rates charged by the carrier are less than the normal freight rates for services of that kind; • that the practice threatens or has hindered or prevented the provision of outward liner shipping services which are efficient, economical and adequate to shippers needs; • that the practice is contrary to the national interest. The minister is prevented from making an order unless he or she has received a report from the commission on the matter and he or she (or an authorised

officer) has attempted consultation with the aim of obtaining a voluntary undertaking to refrain from the practice. _____________________

[13,215]

Investigation and report by Commission

10.63 (1) The Minister may, on the complaint of an affected person or otherwise, refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied, in relation to an ocean carrier in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on a trade route, of the matters referred to in paragraph 10.62(a). [subs (1) Act 123 of 2000 s 3 and Sch 1]

(2) The Commission shall hold an investigation into the question and report to the Minister. (3) In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission. [s 10.63 am Act 123 of 2000 s 3 and Sch 1]

SECTION 10.63 GENERALLY [13,215.5] Overview The minister may, on receipt of a complaint of an affected person or otherwise, request from the commission an inquiry and report on whether a carrier is engaging in unfair pricing practices. The commission is required to hold an inquiry and report on the matters in accordance with the method of determining normal freight rates and national interest issues. Special consideration is to be given to any matters specified in the reference. _____________________

[13,220] Undertakings not to engage in pricing practices 10.64

(1) An ocean carrier may, at any time, offer to give an

undertaking: (a) not to engage in a pricing practice; and (b) to give the Registrar such information as the Registrar from time to time requires (verified as the Registrar requires) for the purpose of ascertaining whether the ocean carrier is engaging in, or has engaged in, the pricing practice. [page 928] (2) The offer must be: (a) in the appropriate prescribed form; and (b) made to the Minister in accordance with the regulations. (3) If the Minister accepts the offer, the Minister may do either or both of the following: (a) revoke any reference made to the Commission under subsection 10.63(1) in relation to the ocean carrier; (b) revoke any order made under subsection 10.61(1) in relation to the ocean carrier. [subs (3) am Act 123 of 2000 s 3 and Sch 1]

(4) If the Minister accepts the offer, the ocean carrier shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of obligations concerning unfair pricing practices. (5) If the Minister revokes an order made under subsection 10.61(1), the Registrar shall immediately include in the register a notation to the effect that the order has been revoked. SECTION 10.64 GENERALLY [13,220.5] Overview Section 10.64 provides that at any time, an ocean carrier may offer the minister an undertaking not to engage in an unfair pricing practice and from time to time to give the registrar information for the purpose of ascertaining whether the ocean carrier is engaging in or has engaged in the practice.

If the minister accepts the offer, he may revoke any reference to the commission for an inquiry or revoke any order made for the carrier not to engage in unfair pricing. If the minister accepts the offer, the registrar is required to enter the appropriate particulars in the register of obligations concerning unfair pricing practices. _____________________

[13,225]

Enforcement of orders and undertakings

10.65 (1) An ocean carrier shall not contravene an order made under subsection 10.61(1) or an undertaking given under section 10.64. (2) Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV. SECTION 10.65 GENERALLY [13,225.5] Overview Penalties in Pt VI of the Act apply to contravention of an order or undertaking (offer). _____________________

[13,230] Determination of normal freight rates for shipping services 10.66 (1) The normal freight rates for outwards liner cargo shipping services or inwards liner cargo shipping services provided on a trade route are, subject to subsection (2), the freight rates actually charged in the ordinary course of shipping business for the same or similar services on the same or a comparable trade route by ocean carriers who do not enjoy noncommercial advantages given by a government (including a government of a foreign country). [subs (1) am Act 123 of 2000 s 3 and Sch 1]

[page 929]

(2) If such actual freight rates do not exist or it is not possible to ascertain satisfactorily what they are, the normal freight rates for the services may be determined by: (a) comparing the costs of the ocean carrier concerned and comparable ocean carriers who do not enjoy non-commercial advantages given by a government (including a government of a foreign country); and (b) allowing reasonable margins of profit. (3) The comparison shall: (a) take into account all costs incurred in the ordinary course of shipping business, whether the costs are fixed or variable; and (b) allow for reasonable overhead expenses. SECTION 10.66 GENERALLY [13,230.5] Overview Section 10.66 provides that normal freight rates are defined to be rates actually charged for non-subsidised carriers for the same or similar services on a comparable trade route in the ordinary course of business. If it is not possible to ascertain what normal freight rates are, these rates can be constructed by comparing costs of the ocean carrier concerned with comparable carriers who are not subsidised and allowing for reasonable margins of profit. The comparisons take into account all costs incurred in the ordinary course of business and allow for overhead expenses. _____________________

[13,235] Determination of whether practice contrary to national interest 10.67 (1) In determining whether a pricing practice in relation to outwards liner cargo shipping services is contrary to the national interest, regard shall be had, in particular, to: (a) the effect that the practice has had, or is likely to have, in relation to: (i) continued access by Australian exporters to outwards liner cargo shipping services of adequate frequency and

reliability at freight rates that are internationally competitive; and (ii) stable access to export markets for exporters in all States and Territories; (b) the extent to which any advantages provided by the practice or similar practices are enjoyed by competitors of Australian exporters; and (c) the effect that denial of any advantages provided by the practice would have on the competitiveness of Australian industries. [subs (1) am Act 123 of 2000 s 3 and Sch 1]

(2) Subsection (3) applies when determining whether a pricing practice in relation to inwards liner cargo shipping services is contrary to the national interest. [subs (2) insrt Act 123 of 2000 s 3 and Sch 1]

(3) Regard must be had, in particular, to the effect that the practice has had, or is likely to have, in relation to continuous stable access by Australian importers in all States and Territories to inwards liner cargo shipping services that: (a) are of adequate frequency and reliability; and (b) are at freight rates that are internationally competitive. [subs (3) insrt Act 123 of 2000 s 3 and Sch 1]

[page 930] SECTION 10.67 GENERALLY [13,235.5] Overview Section 10.67 provides that the factors to be taken into account in deciding whether a practice is contrary to the national interests are: • the effect the price has had (or is likely to have) on continued access by Australian exporters to outwards liner cargo shipping services of adequate frequency and reliability at competitive freight rates; • stable access to export markets for exporters in all states and

• •

territories; the extent to which the same or similar advantages are granted to foreign competitors of Australian exporters; and the effect removal of the practice would have on the competitiveness of Australian industries. _____________________

DIVISION 12 — REGISTRATION OF OCEAN CARRIER AGENTS

[13,785] Ocean carrier who provides international liner cargo shipping services to have registered agent 10.68 (1) Every ocean carrier who provides international liner cargo shipping services shall, at all times, be represented for the purposes of this Act by a person who: (a) is an individual resident in Australia; (b) has been appointed by the ocean carrier as the ocean carrier’s agent for the purposes of this Act; and (c) is specified in the register of ocean carrier agents as the ocean carrier’s agent. (2) An ocean carrier who, without reasonable excuse, contravenes subsection (1) commits an offence punishable, on conviction, by a fine not exceeding: (a) in the case of a natural person — 20 penalty units; and (b) in the case of a body corporate — 100 penalty units. [subs (2) am Act 4 of 2016 s 3 and Sch 4 item 67, opn 10 Mar 2016; Act 61 of 2016 s 3 and Sch 1 items 152, 153, opn 21 Oct 2016]

SECTION 10.68 GENERALLY [13,785.5] Overview Every ocean carrier providing services to or from Australia must have an agent registered, for the purposes of this part with the Registrar of Liner Shipping. Penalties are provided separately for breaches by individuals or for bodies corporate.

_____________________

[13,790] Representation of ocean carrier by registered agent 10.69 (1) Everything done by or in relation to an ocean carrier’s registered agent in that capacity shall, for the purposes of this Act, be taken to be done by or in relation to the ocean carrier. (2) Without limiting subsection (1), a document required or permitted to be served on, or given to, an ocean carrier under or for the purposes of this Act (including the process of any court) may be served on, or given to, the ocean carrier by serving it on, or giving it to, the ocean carrier’s registered agent. (3) A document that is, under subsection (2), permitted to be served on, or given to, an ocean carrier’s registered agent may be served on, or given to, the agent by: (a) delivering it to the agent personally; or [page 931] (b) leaving it at, or sending it by pre-paid post to, the address for service specified in relation to the agent in the register of ocean carrier agents. (4) Subsection (3) does not affect: (a) the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or (b) the power of a court to authorise service of a document otherwise than as provided in that subsection. SECTION 10.69 GENERALLY [13,790.5] Overview Everything done by a registered agent in that capacity is to be taken to have been done by the ocean carrier. A document

served on the agent or sent to the address for service of the agent is considered to be served on the ocean carrier. _____________________

[13,795] Application by ocean carrier for registration of agent 10.70 (1) An ocean carrier may apply for the registration of a person as the ocean carrier’s agent for the purposes of this Act. (2) The person must: (a) be an individual resident in Australia; (b) have been appointed by the ocean carrier as the ocean carrier’s agent for the purposes of this Act; and (c) have an address for service in Australia. (3) The application must be: (a) made to the Registrar; (b) made in the prescribed form and in accordance with the regulations; and (c) accompanied by the prescribed fee. SECTION 10.70 GENERALLY [13,795.5] Overview An ocean carrier may apply for registration of an agent in accordance with the regulations. An agent must be an individual (ie, a natural person) resident in Australia and have an address for service in Australia. _____________________

[13,800]

Registration of agent

10.71 (1) Where an ocean carrier properly applies under section 10.70 for the registration of an agent, the Registrar shall register the agent by entering particulars of the ocean carrier and the agent in the register of ocean carrier agents. (2) The particulars entered in the register must include: (a) the name of the ocean carrier; and

(b) the name, and address for service, of the agent. SECTION 10.71 GENERALLY [13,800.5] Overview Where an ocean carrier properly applies the registrar must register the agent. _____________________ [page 932]

[13,805]

Change of agent etc

10.72 (1) An ocean carrier may, by notice given to the Registrar: (a) revoke the appointment of the ocean carrier’s registered agent and, subject to subsection (2), appoint a new agent for the purposes of this Act; (b) change the address for service of the ocean carrier’s registered agent to another address in Australia; or (c) request the Registrar to vary any of the particulars entered in the register of ocean carrier agents in relation to the ocean carrier. (2) A new agent appointed under paragraph (1)(a) must: (a) be an individual resident in Australia; and (b) have an address for service in Australia. (3) A notice under paragraph (1)(a), (b) or (c): (a) must be in the appropriate prescribed form; (b) must be given to the Registrar in accordance with the regulations; and (c) may be expressed to take effect on and from a specified future day. (4) Where an ocean carrier properly gives a notice under paragraph (1)(a) or (b), the Registrar shall immediately make such variations to the particulars entered in the register of ocean carrier agents in relation to the ocean carrier as are necessary to give effect to the notice. (5) Where an ocean carrier properly gives a notice under paragraph (1)(c),

the Registrar shall make such variations (if any) to the particulars entered in the register of ocean carrier agents in relation to the ocean carrier as the Registrar considers necessary or desirable to give effect to the notice. SECTION 10.72 GENERALLY [13,805.5] Overview An ocean carrier may revoke the appointment of an agent, appoint a new agent or otherwise vary the particulars of that carrier’s agent entered on the register of ocean carrier agents. _____________________ DIVISION 12A — EXEMPTION ORDERS FOR INWARDS CONFERENCE AGREEMENTS ETC [Div 12A insrt Act 123 of 2000 s 3 and Sch 1]

[13,820A] Exemption orders for inwards conference agreements etc 10.72A (1) The Minister may, by legislative instrument, make an order exempting: (a) a specified inwards conference agreement; or (b) specified inwards liner cargo shipping services; or (c) specified conduct in relation to the provision, or proposed provision, of inwards liner cargo shipping services; from the scope of any or all of the eligible regulatory provisions. Note: For specification by class, see subsection 13(3) of the Legislation Act 2003. [subs (1) am Act 109 of 2006 s 3 and Sch 2[101], [102], opn 27 Sep 2006; Act 126 of 2015 s 3 and Sch 1 item 139, opn 5 Mar 2016]

[page 933] (2) The Registrar must enter particulars of any order under subsection (1) in the register of exemption orders.

(3) [subs (3) rep Act 109 of 2006 s 3 and Sch 2[103], opn 27 Sep 2006] (4) For the purposes of this section, each of the following provisions is an eligible regulatory provision: (a) subsection 10.07(2); (b) section 10.08; (c) paragraph 10.28(1)(ba); (d) subsection 10.29(1A); (e) section 10.40; (f) section 10.41; (g) section 10.43; (h) subparagraph 10.45(1)(a)(iv); (i) subsection 10.45(3); (j) subsection 10.45(4); (k) section 10.52; (l) subparagraph 10.62(a)(i). [subs (4) am Act 123 of 2000 s 3 and Sch 1]

[13,820B]

Criteria for making exemption order

10.72B (1) The Minister must not make an exemption order unless the Minister is of the opinion that it is in the national interest to make the order. (2) For the purposes of subsection (1), in determining what is in the national interest, the Minister must have regard to each of the following: (a) Australia’s international relations; (b) Australia’s international obligations; (c) any relevant principle of international law or practice; (d) the interests of Australian exporters; (e) the interests of Australian importers; (f) any other relevant matters.

[13,820C] limited

Duration of exemption order may be

10.72C (1) An exemption order may be expressed to be in force for a period specified in the order.

(2) Subsection (1) does not prevent the revocation of an exemption order in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

[13,820D]

Conditions of exemption order

10.72D An exemption order may be expressed to be subject to such conditions as are specified in the order. [page 934] DIVISION 13 — GENERAL PROVISIONS RELATING TO REGISTERS AND CONFERENCE AGREEMENT FILES

[13,855] Form of registers and conference agreement files 10.73 (1) The registers and conference agreement files kept by the Registrar may be kept in such form (whether or not documentary form) as the Registrar considers appropriate. (2) The register of Commission investigations may be kept in such form (whether or not documentary form) as the Commission considers appropriate.

[13,860] Deletion of entries wrongly existing in certain registers 10.74 Where the Registrar is satisfied that an entry wrongly exists in a register kept by the Registrar, the Registrar shall delete the entry.

[13,865] registers 10.75

Deletion of obsolete entries in certain

Where the Registrar is satisfied that an entry in a register kept by

the Registrar is obsolete, the Registrar may delete the entry.

[13,870] Correction of clerical errors and other mistakes in certain registers etc 10.76 Where the Registrar is satisfied that a clerical error or other mistake exists in particulars entered in a register kept by the Registrar or that matters included in particulars entered in a register kept by the Registrar are obsolete, the Registrar may vary the particulars for the purpose of correcting the error or mistake or removing the obsolete matters. DIVISION 14 — ADMINISTRATION

[13,920] 10.77

Registrar of Liner Shipping

There shall be a Registrar of Liner Shipping.

[13,925]

Appointment of Registrar etc

10.78 The Registrar shall be appointed by the Minister, and holds office during the pleasure of the Minister.

[13,930]

Acting Registrar

10.79 The Minister may appoint a person to act as Registrar: (a) during a vacancy in the office of Registrar (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Registrar is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office. [page 935]

[13,935]

Registrar and staff to be public servants

10.80 The Registrar, and any staff of the Registrar, shall be persons engaged under the Public Service Act 1999. [s 10.80 am Act 146 of 1999 s 3 and Sch 1]

[13,940]

Delegation by Minister

10.81 The Minister may, by signed writing, delegate to the Registrar, or to a person occupying a specified office in the Department, all or any of the Minister’s powers under or in relation to this Part (other than powers under sections 10.02A and 10.03, subsections 10.06(1) and 10.44(1), sections 10.46, 10.47, 10.48 and 10.50, subsection 10.54(1), sections 10.56, 10.57 and 10.58, subsection 10.61(1) and sections 10.63 and 10.72A). [s 10.81 am Act 123 of 2000 s 3 and Sch 1]

SECTION 10.81 GENERALLY [13,940.5] Overview The minister may delegate to the registrar any of the minister’s powers under the Part except those in relation to: • designation of shipper bodies; • cancellation of an agreement or particulars of an agreement or conduct; • references to the commission for inquiry; • making an order in relation to unfair pricing practices; and • references to the tribunal for inquiry. _____________________

[13,945]

Delegation by Registrar

10.82 The Registrar may, by signed writing, delegate to a person occupying a specified office in the Department all or any of the Registrar’s powers under this Part. SECTION 10.82 GENERALLY [13,945.5] Overview The registrar may delegate any of his or her powers to a person occupying a specified office in the department. _____________________

DIVISION 14A — REVIEW OF DECISIONS OF COMMISSION [Div 14A insrt Act 123 of 2000 s 3 and Sch 1]

[13,960A]

Review by Tribunal

10.82A (1) For the purposes of this section, each of the following decisions of the Commission is a reviewable decision: (a) a decision to refuse to hold an investigation under subsection 10.48(2) or 10.58(2); (b) a decision under section 10.88 to: (i) exclude a document, or the particulars of a submission, from the register of Commission investigations; or (ii) refuse to exclude a document, or the particulars of a submission, from the register of Commission investigations. [page 936] (2) If the Commission makes a reviewable decision: (a) a person whose interests are affected by the decision; or (b) a designated shipper body; may apply in writing to the Tribunal for a review of the decision. (3) An application under this section for a review of a decision must be made within 21 days after the Commission made the decision. (4) If the Tribunal receives an application under this section for a review of a decision, the Tribunal must review the decision.

[13,960B]

Functions and powers of Tribunal

10.82B (1) On a review of a decision of the Commission of a kind mentioned in section 10.82A, the Tribunal may make a decision affirming, setting aside or varying the decision of the Commission and, for the purposes

of the review, may perform all the functions and exercise all the powers of the Commission. (2) A decision by the Tribunal affirming, setting aside or varying a decision of the Commission is taken for the purposes of this Act (other than this Division) to be a decision of the Commission. (3) For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies. (4) For the purposes of a review, the Tribunal may have regard to any information given, documents produced or evidence given to the Commission in connection with the making of the decision to which the review relates. Note: Division 2 of Part IX applies to proceedings before the Tribunal.

[13,960C] Provisions that do not apply in relation to a Tribunal review 10.82C Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision of the Commission of a kind mentioned in section 10.82A. DIVISION 14B — REVIEW OF DECISIONS OF MINISTER [Div 14B insrt Act 123 of 2000 s 3 and Sch 1]

[13,980D]

Review by Tribunal

10.82D (1) For the purposes of this section, each of the following decisions of the Minister is a reviewable decision: (a) a decision to: (i) give; or (ii) refuse to give; a direction under subsection 10.44(1), subsection 10.46(3), paragraph 10.49(3)(b), subsection 10.51(1), subsection 10.56(3) or paragraph 10.59(3)(b);

(b) a decision under section 10.49, 10.59 or 10.64 to: (i) accept an offer; or (ii) refuse to accept an offer; [page 937] (c) a decision under paragraph 10.49(3)(a), 10.59(3)(a) or 10.64(3)(a) to: (i) revoke a reference; or (ii) refuse to revoke a reference; (d) a decision under paragraph 10.49(3)(c) to: (i) revoke a direction; or (ii) refuse to revoke a direction; (e) a decision to: (i) make; or (ii) refuse to make; an order under subsection 10.54(1) or 10.61(1); (f) a decision under paragraph 10.59(3)(c) or 10.64(3)(b) to: (i) revoke an order; or (ii) refuse to revoke an order. (2) If the Minister makes a reviewable decision: (a) a person whose interests are affected by the decision; or (b) a designated shipper body; may apply in writing to the Tribunal for a review of the decision. (3) An application under this section for a review of a decision must be made within 21 days after the Minister made the decision. (4) If the Tribunal receives an application under this section for a review of a decision, the Tribunal must review the decision.

[13,980E]

Functions and powers of Tribunal

10.82E (1) On a review of a decision of the Minister of a kind mentioned in section 10.82D, the Tribunal may make a decision affirming, setting aside or varying the decision of the Minister and, for the purposes of

the review, may perform all the functions and exercise all the powers of the Minister. (2) A decision by the Tribunal affirming, setting aside or varying a decision of the Minister is taken for the purposes of this Act (other than this Division) to be a decision of the Minister. (3) For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may request the Minister to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies. The Minister must comply with such a request. (4) For the purposes of a review, the Tribunal may have regard to any information given, documents produced or evidence given to the Minister in connection with the making of the decision to which the review relates. Note: Division 2 of Part IX applies to proceedings before the Tribunal.

[13,980F] review

Modifying register after Tribunal

10.82F (1) If: (a) the Tribunal decides to set aside or vary a decision of the Minister; and (b) a register kept by the Registrar is not consistent with the decision of the Tribunal; the Minister must direct the Registrar to take such action, by way of modifying the register, as is necessary to ensure that the register is consistent with the Tribunal’s decision. [page 938] (2) The Registrar must comply with a direction under subsection (1). (3) If, in accordance with subsection (2), the Registrar: (a) deletes particulars of a direction under subsection 10.44(1) from the register of conference agreements; or

includes in the register of conference agreements a notation to the (b) effect that a direction under subsection 10.44(1) has been set aside; Subdivision A of Division 5 applies in relation to the conference agreement concerned to the extent to which that Subdivision would have applied but for the entry of the particulars of the direction.

[13,980G] Provisions that do not apply in relation to a Tribunal review 10.82G Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision of the Minister of a kind mentioned in section 10.82D. DIVISION 15 — MISCELLANEOUS

[13,995] Act not to affect rights under Freedom of Information Act 10.83 Nothing in this Part affects a right that a person may have under the Freedom of Information Act 1982.

[14,000]

Review of decisions of Registrar

10.84 (1) Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision. (2) In subsection (1): decision has the same meaning as in the Administrative Appeals Tribunal Act 1975. reviewable decision means a decision of the Registrar under this Part, other than: (a) a decision to provisionally or finally register a conference agreement; or (b) a decision as to the form of a register. SECTION 10.84 GENERALLY

[14,000.5] Overview Any decision of the registrar may be appealed to the Administrative Appeals Tribunal except in the case of a decision to provisionally or finally register a conference agreement (disaffected parties may challenge the agreement before the commission and seek to have the minister deregister it) and a decision on the form of a register. _____________________

[14,005] Statement to accompany notices of Registrar 10.85 (1) Where the Registrar makes a reviewable decision (within the meaning of section 10.84) and gives to a person whose interests are affected by the decision written notice of the making of the decision, the notice must include: (a) a statement to the effect that application may be made to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 for review of a decision of the Registrar under this Part; and [page 939] (b) a statement to the effect that a person who is entitled to apply to the Administrative Appeals Tribunal for review of a decision may, under section 28 of that Act, request a statement that includes reasons for the decision. (2) Paragraph (1)(b) does not apply in relation to a case to which subsection 28(4) of the Administrative Appeals Tribunal Act 1975 applies. (3) A contravention of subsection (1) in relation to a decision does not affect the validity of the decision. SECTION 10.85 GENERALLY [14,005.5] Overview Where the registrar makes a decision, a written notice to an affected person of the decision must also include a statement

saying the person may appeal to the Administrative Appeals Tribunal for a review of the decision and any person entitled to appeal has the right to request a reason for the decision under the Administrative Appeals Tribunal Act 1975. _____________________

[14,010]

Evidence

10.86 (1) A certificate signed by the Registrar stating any matter in relation to the registration under this Part of an ocean carrier, ocean carrier’s agent, conference agreement, direction, undertaking, determination or order, or any other matter in relation to a register, or conference agreement file, kept by the Registrar under this Part, is prima facie evidence of the matter. (2) Without limiting subsection (1), the matters that may be certified under that subsection include: (a) whether an ocean carrier, ocean carrier’s agent, conference agreement, undertaking, determination or order is or is not registered under this Part; (b) the name and address for service of an ocean carrier’s agent; and (c) the provisions and other particulars of a conference agreement, direction, undertaking, determination or order. (3) A document purporting to be a certificate under subsection (1) shall, unless the contrary is established, be taken to be such a certificate and to have been properly given. SECTION 10.86 GENERALLY [14,010.5] Overview A certificate signed by the registrar stating a matter in relation to registration under the Part is considered to be prima facie evidence. The matters which may be certified in this way include: • whether or not an ocean carrier, ocean carrier’s agent, a conference agreement, undertaking, determination or order is registered under the Part; • the name and address for service of an ocean carrier’s agent; and • the provisions or other particulars of an agreement, direction, undertaking, determination or order.

_____________________

[14,015] Notification by Commission of references etc 10.87 The Commission may make public, in such manner as it considers appropriate: (a) receipt of references under subsections 10.47(1), 10.50(1), 10.57(1) and 10.63(1); and [page 940] (b) decisions made by it under subsections 10.48(2), 10.48(2A) and 10.58(2) to hold investigations. [s 10.87 am Act 123 of 2000 s 3 and Sch 1]

SECTION 10.87 GENERALLY [14,015.5] Overview The commission may make public all references from the minister and applications from affected persons investigating under the Part. _____________________

[14,020] Exclusion of documents etc from register of Commission investigations 10.88 (1) Where: (a) a person gives a document to the Commission in relation to an investigation; or (b) a person makes an oral submission to the Commission in relation to an investigation; the person may, at the same time, request that the document, or the particulars of the submission, be excluded from the register because of the confidential nature of matters contained in the document or submission.

(2) If the Commission is satisfied that the request is justified because disclosure of matters contained in the document or submission would disclose: (a) trade secrets; (b) information (other than trade secrets) having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or (c) any other information concerning a person in relation to the person’s business or professional affairs, or concerning the business, commercial or financial affairs of an organisation or undertaking, the disclosure of which would, or could reasonably be expected to, unreasonably affect the person adversely in relation to the person’s lawful business or professional affairs or the organisation or undertaking in relation to its lawful business, commercial or financial affairs; the Commission shall exclude the document, or the particulars of the submission, from the register. (3) If: (a) the Commission refuses a request to exclude a document from the register; and (b) the person who gave the document requests the Commission to return it; the Commission shall return the document and, in that case, paragraph 10.13(2)(d) does not apply in relation to the document. (4) If: (a) the Commission refuses a request to exclude the particulars of an oral submission from the register; and (b) the person who made the submission withdraws it; paragraph 10.13(2)(e) does not apply in relation to the submission. (5) If the Commission is satisfied that it is otherwise desirable to do so, the Commission may exclude a document, or the particulars of a submission, from the register. [page 941]

(6) If a person makes a request under subsection (1), the document or the particulars of the submission concerned must not be included in the register until the Commission has dealt with the request. (7) In this section: document includes a part of a document. investigation means an investigation under section 10.47, 10.48, 10.50, 10.57, 10.58 or 10.63. [def am Act 123 of 2000 s 3 and Sch 1]

register means the register of Commission investigations. submission includes a part of a submission. SECTION 10.88 GENERALLY [14,020.5] Overview Where a person gives a document or makes an oral submission to the commission in relation to an investigation, the person may request that certain particulars be excluded from the register of investigations because of their confidential nature. The criteria for assessing a request for confidentiality are the same criteria as in the Freedom of Information Act 1982, however, the commission may also exclude other particulars if it considers it desirable to do so. _____________________

[14,025]

Disclosure of confidential information

10.89 (1) In this section: court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. give includes permit access to. officer means a person who is or has been: (a) the Registrar; (b) a member of the staff assisting the Registrar; or (c) a person to whom powers under this Part have been delegated by the Minister or the Registrar.

produce includes permit access to. (2) This section applies in relation to information if the information relates to a person and was obtained by an officer, either directly or indirectly, from a part of a document filed with the Registrar, being a part that is not open to public inspection. (3) This section applies in relation to a part of a document filed with the Registrar, being a part that is not open to public inspection. (4) An officer shall not: (a) make a record of any information to which this section applies; (b) divulge or communicate to a person any information to which this section applies; or (c) give a person a part of a document to which this section applies; unless the record is made, the information divulged or communicated or the part of the document given: (d) for the purposes of this Act; or [page 942] (e) in relation to the performance of a duty or the exercise of a power under or in relation to this Act. Penalty: $5,000 or imprisonment for 2 years, or both. (5) Subsection (4) applies in relation to the divulging or communicating of information whether directly or indirectly, but does not apply in relation to the divulging or communicating of information to, or the giving of a part of a document to, the Minister. (6) An officer shall not be required: (a) to produce in a court a part of a document to which this section applies; or (b) to divulge or communicate to a court any information to which this section applies; except so far as it is necessary to do so for the purposes of carrying into effect the provisions of this Act.

SECTION 10.89 GENERALLY [14,025.5] Overview No person who has been or is the registrar, or his or her staff, or a person to whom the registrar or the minister has delegated his or her powers may make a record of or communicate any information which has been granted confidentiality by the registrar except for the purposes of performance of his or her duties under the Part. The section imposes penalties. An officer may not be required to produce to a court a document or information which has been granted confidentiality by the registrar except for the purposes of carrying into effect the provisions of the Act. _____________________

[14,030]

Fees

10.90 (1) The regulations may prescribe fees for the purposes of this Part, including fees payable on applications and requests made under this Part. (2) The regulations shall not fix fees exceeding: (a) in the case of an application for provisional registration of a conference agreement — $1200; and (b) in the case of an application for final registration of a conference agreement — $700; and (c) in the case of an application for the registration of a person as an ocean carrier’s agent — $160; and (ca) in the case of variation of the register of ocean carrier agents following a notice under subsection 10.72(1) — $160; and (d) in the case of an application to obtain a copy of, the whole or any part of, an entry in a register kept under this Part or a conference agreement file kept under this Part — $200. [subs (2) am Act 123 of 2000 s 3 and Sch 1]

SECTION 10.90 GENERALLY [14,030.5] Overview Regulations may prescribe fees for the purposes of the Part which are not to exceed maximum levels prescribed.

_____________________ [page 943]

[14,035] Application of Part XID and section 155 to investigations under Part 10.91 (1) Part XID and section 155 apply in relation to an investigation by the Commission under this Part as if the investigation were an investigation by the Commission relating to a matter that constitutes, or may constitute, a contravention of this Act. [subs (1) am Act 131 of 2006 s 3 and Sch 8[3], opn 1 Jan 2007]

(2) Subsection (1) shall not be taken to limit by implication any powers that the Commission has apart from that subsection. SECTION 10.91 GENERALLY [14,035.5] Overview Section 155 of the Act gives the commission power to obtain information, documents and evidence, for investigations under this Part. _____________________

[14,040] Constitution of Tribunal for inquiries under Part etc 10.92

[s 10.92 rep Act 123 of 2000 s 3 and Sch 1]

[14,045] Participation in inquiries by Tribunal under Part etc 10.93

[s 10.93 rep Act 123 of 2000 s 3 and Sch 1]

[page 945] PART XI — APPLICATION OF THE AUSTRALIAN CONSUMER LAW AS A LAW OF THE COMMONWEALTH [Pt XI insrt Act 103 of 2010 s 3 and Sch 2[1], opn 1 Jan 2011]

DIVISION 1 — PRELIMINARY

[14,055]

Definitions

130 In this Part: associate: a person (the first person) is an associate of another person if: (a) the first person holds money or other property on behalf of the other person; or (b) if the other person is a body corporate — the first person is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of the other person. Australian Consumer Law means Schedule 2 as applied under Subdivision A of Division 2 of this Part. Chairperson has the same meaning as in subsection 4(1). corporation has the same meaning as in subsection 4(1). disclosure notice: see subsection 133D(3). embargo notice: see subsection 135S(1). embargo period for an embargo notice means the period specified in the embargo notice under paragraph 135S(3)(c) or (d). enforcement order: see paragraph 139D(1)(b). Family Court Judge means a Judge of the Family Court (including the Chief Justice, the Deputy Chief Justice or a Senior Judge). [def am Act 24 of 2016 s 3 and Sch 5 item 8, opn 1 July 2016]

Federal Court means the Federal Court of Australia. infringement notice means an infringement notice issued under

subsection 134A(1). infringement notice compliance period: see subsection 134F(1). infringement notice provision: see subsection 134A(2). inspector means a person who is appointed as an inspector under subsection 133(1). listed corporation has the meaning given by section 9 of the Corporations Act 2001. member of the Commission has the same meaning as in subsection 4(1). occupational liability: see subsection 137(5). personal injury includes: (a) prenatal injury; and (b) impairment of a person’s physical or mental condition; and [page 946] (c) disease; but does not include an impairment of a person’s mental condition unless the impairment consists of a recognised psychiatric illness. person assisting: see subsection 135D(2). professional standards law: see subsection 137(4). proposed ban notice: see subsection 132(1). proposed recall notice: see subsection 132A(1). reckless conduct: see subsection 139A(5). recreational services: see subsection 139A(2). search-related powers: see subsections 135A(1) and (2). search warrant means a warrant issued or signed under section 135Z or 136. smoking has the same meaning as in the Tobacco Advertising Prohibition Act 1992.

state of mind, of a person, includes a reference to: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person’s reasons for the person’s intention, opinion, belief or purpose. tobacco product has the same meaning as in the Tobacco Advertising Prohibition Act 1992.

[14,055A] 130A

Expressions defined in Schedule 2

An expression has the same meaning in this Part as in Schedule 2.

DIVISION 2 — APPLICATION OF THE AUSTRALIAN CONSUMER LAW AS A LAW OF THE COMMONWEALTH

Subdivision A — Application of the Australian Consumer Law

[14,060] Application of the Australian Consumer Law in relation to corporations etc 131 (1) Schedule 2 applies as a law of the Commonwealth to the conduct of corporations, and in relation to contraventions of Chapter 2, 3 or 4 of Schedule 2 by corporations. Note: Sections 5 and 6 of this Act extend the application of this Part (and therefore extend the application of the Australian Consumer Law as a law of the Commonwealth). (2) Without limiting subsection (1): (a) section 21 of Schedule 2 also applies as a law of the Commonwealth in relation to: (i) a supply or possible supply of goods or services by any person to a corporation (other than a listed public company); or (ii) an acquisition or possible acquisition of goods or services from any person by a corporation (other than a listed public company); and

[page 947] (b) section 147 of Schedule 2 also applies as a law of the Commonwealth to, and in relation to, a corporation as a supplier referred to in that section; and (c) Division 2 of Part 5-1 of Schedule 2 also applies as a law of the Commonwealth to and in relation to a person if the other person referred to in section 219 of Schedule 2 is a corporation. [subs (2) am Act 184 of 2011 s 3 and Sch 2[2], opn 1 Jan 2012]

(3) The table of contents in Schedule 2 is additional information that is not part of this Act. Information in the table may be added to or edited in any published version of this Act. SECTION 131 GENERALLY [14,060.5] Overview The provision provides for the application of the Australian Consumer Law to a corporation. The Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 would have the effect of amending s 131(2) to correct a drafting to extend the application of s 33 of the ACL, as a law of the Commonwealth, to the conduct of any person. On 25 March 2015, the Selection of Bills Committee referred the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 to the Economics Legislation Committee for inquiry and report by 13 May 2015. _____________________

[14,060A] services

Division does not apply to financial

131A (1) Despite section 131, this Division does not apply (other than in relation to the application of Part 5-5 of Schedule 2 as a law of the Commonwealth) to the supply, or possible supply, of services that are financial services, or of financial products. (2) Without limiting subsection (1):

Part 2-1 of Schedule 2 and sections 34 and 156 of Schedule 2 do not apply to conduct engaged in in relation to financial services; and (b) Part 2-3 of Schedule 2 does not apply to, or in relation to: (i) contracts that are financial products; or (ii) contracts for the supply, or possible supply, of services that are financial services; and (c) if a financial product consists of or includes an interest in land — the following provisions of Schedule 2 do not apply to that interest: (i) section 30; (ii) paragraphs 32(1)(c) and (d) and (2)(c) and (d); (iii) paragraphs 50(1)(c) and (d); (iv) section 152; (v) subparagraphs 154(1)(b)(iii) and (iv) and (2)(b)(iii) and (iv); (vi) subparagraphs 168(1)(b)(iii) and (iv); and (d) sections 39 and 161 of Schedule 2 do not apply to: (i) a credit card that is part of, or that provides access to, a credit facility that is a financial product; or (ii) a debit card that allows access to an account that is a financial product. (a)

[page 948]

[14,060B] Division does not apply to interim bans imposed by State or Territory Ministers 131B Despite section 131, this Division does not apply to an interim ban that is not imposed by the Commonwealth Minister.

[14,060C] 131C

Saving of other laws and remedies

(1) This Part is not intended to exclude or limit the concurrent

operation of any law, whether written or unwritten, of a State or a Territory. (2) Section 73 of the Australian Consumer Law does not operate in a State or a Territory to the extent necessary to ensure that no inconsistency arises between: (a) that section; and (b) a provision of a law of the State or Territory that would, but for this subsection, be inconsistent with that section. (3) Despite subsection (1): (a) if an act or omission of a person is both: (i) an offence against this Part or the Australian Consumer Law; and (ii) an offence against a law of a State or a Territory; and (b) the person is convicted of either of those offences; he or she is not liable to be convicted of the other of those offences. (4) Except as expressly provided by this Part or the Australian Consumer Law, nothing in this Part or the Australian Consumer Law is taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Part and the Australian Consumer Law had not been enacted.

Subdivision B — Effect of other Commonwealth laws on the Australian Consumer Law

[14,060D] Effect of Part VIB on Chapter 5 of the Australian Consumer Law 131D Chapter 5 of the Australian Consumer Law has effect subject to Part VIB.

[14,060E]

Application of the Legislation Act 2003

131E (1) The following instruments made under the Australian Consumer Law by the Commonwealth Minister are to be made by legislative instrument: (a) a determination under subsection 66(1) (display notices); (b) a notice under subsection 104(1) or 105(1) (safety standards);

(c) a notice under subsection 109(1) or (2) (interim bans); (d) a notice under subsection 111 (extensions of interim bans); (e) a notice under subsection 113 (revocation of interim bans); (f) a notice under subsection 114(1) or (2) (permanent bans); (g) a notice under subsection 117 (revocation of permanent bans); (h) a notice under subsection 112(1) (recall notices); (i) a notice under subsection 134(1) or 135(1) (information standards). (2) The following instruments made under the Australian Consumer Law are not legislative instruments: [page 949] (a) (b) (c) (d) (e)

an approval given under paragraph 106(5)(b) (approval to export); an approval given under paragraph 118(5)(b) (approval to export); a notice under subsection 128(3) (voluntary recalls); a notice under subsection 129(1) or (2) (safety warning notices); a notice under subsection 130(1) (announcement of results of an investigation); (f) a notice under subsection 223(1) or (2) (public warning notices). (3) To avoid doubt, an instrument made under the Australian Consumer Law by a responsible Minister who is not the Commonwealth Minister, or a regulator that is not the Commission, is not a legislative instrument. [s 131E am Act 126 of 2015 s 3 and Sch 1 item 140, opn 5 Mar 2016]

[14,060F] apply

Section 4AB of the Crimes Act does not

131F Section 4AB of the Crimes Act 1914 does not apply to any provision of this Part or the Australian Consumer Law.

[14,060G]

Application of the Criminal Code

131G (1) Corporate criminal responsibility Part 2.5 of the Criminal Code does not apply to an offence against this Part or the Australian

Consumer Law. (2) Mistake of fact defence Section 9.2 of the Criminal Code does not apply to an offence against Chapter 4 of the Australian Consumer Law. Note: Section 207 of the Australian Consumer Law provides a mistake of fact defence for offences under Chapter 4 of the Australian Consumer Law. DIVISION 3 — CONFERENCES FOR PROPOSED BANS AND RECALL NOTICES Subdivision A — Conference requirements before a ban or compulsory recall

[14,065] Commonwealth Minister must issue a proposed ban notice 132 (1) The Commonwealth Minister must issue a proposed ban notice if the Commonwealth Minister proposes to impose an interim ban, or a permanent ban: (a) on consumer goods of a particular kind; or (b) on product related services of a particular kind. (2) Subsection (1) does not apply in relation to an interim ban if the Commonwealth Minister has issued a notice under section 132J certifying that the ban should be imposed without delay. (3) The proposed ban notice must: (a) be in writing; and (b) be published on the internet; and (c) set out a copy of a draft notice for the imposition of the interim ban or permanent ban; and (d) set out a summary of the reasons for the proposed imposition of the ban; and (e) invite any person who supplies, or proposes to supply: (i) consumer goods of that kind; or (ii) product related services of that kind;

[page 950] to notify the Commission, in writing and within a period specified in the notice, if the person wishes the Commission to hold a conference in relation to the proposed imposition of the ban. (4) The period specified in the proposed ban notice under paragraph (3) (e): (a) must be a period of at least 10 days, or such longer period as the Commonwealth Minister specifies in the notice; and (b) must not commence before the day on which the notice is published. (5) A proposed ban notice is not a legislative instrument.

[14,065A] Commonwealth Minister must issue a proposed recall notice 132A (1) The Commonwealth Minister must issue a proposed recall notice if the Commonwealth Minister proposes to issue a recall notice for consumer goods of a particular kind. (2) Subsection (1) does not apply in relation to a recall notice if the Commonwealth Minister has issued a notice under section 132J certifying that the recall notice should be issued without delay. (3) The proposed recall notice must: (a) be in writing; and (b) be published on the internet; and (c) set out a copy of a draft recall notice; and (d) set out a summary of the reasons for the proposed issue of the recall notice; and (e) invite any person who supplies, or proposes to supply, consumer goods of that kind to notify the Commission, in writing and within a period specified in the notice, if the person wishes the Commission to hold a conference in relation to the proposed issue of the recall notice. (4) The period specified in the proposed recall notice under paragraph (3)

(e): (a) must be a period of at least 10 days, or such longer period as the Commonwealth Minister specifies in the notice; and (b) must not commence before the day on which the notice is published. (5) A proposed recall notice is not a legislative instrument.

[14,065B] Commonwealth Minister to be notified if no person wishes a conference to be held 132B (1) If no person notifies the Commission in accordance with a proposed ban notice, or a proposed recall notice, that the person wishes the Commission to hold a conference, the Commission must, in writing, notify the Commonwealth Minister of that fact. (2) A notice under subsection (1) is not a legislative instrument.

[14,065C]

Notification of conference

132C (1) If one or more persons notify the Commission in accordance with a proposed ban notice, or a proposed recall notice, that they wish the Commission to hold a conference, the Commission must: (a) appoint a day, time and place for the holding of the conference; and [page 951] (b) give written notice to the Commonwealth Minister, and to each person who so notified the Commission, of that day, time and place. (2) The day appointed must be at least 5 days, but not more than 14 days, after the end of the period: (a) for a proposed ban notice — specified under paragraph 132(3)(e); or

for a proposed recall notice—specified under paragraph 132A(3) (b) (e). (3) A notice under paragraph (1)(b) is not a legislative instrument.

[14,065D] Recommendation after conclusion of conference 132D (1) As soon as is practicable after the conclusion of a conference held under this Subdivision in relation to the proposed imposition of an interim ban or permanent ban, the Commission must: (a) by written notice given to the Commonwealth Minister, recommend that the Commonwealth Minister: (i) impose the ban in the same terms as the draft notice referred to in paragraph 132(3)(c); or (ii) impose the ban with such modifications to that notice as are specified by the Commission; or (iii) not impose the ban; and (b) cause a copy of the notice given under paragraph (a) to be given to each person who was present or represented at the conference. (2) As soon as is practicable after the conclusion of a conference held under this Subdivision in relation to the proposed issue of a recall notice, the Commission must: (a) by written notice given to the Commonwealth Minister, recommend that the Commonwealth Minister: (i) issue the recall notice in the same terms as the draft recall notice referred to in paragraph 132A(3)(c); or (ii) issue the recall notice with such modifications to that draft recall notice as are specified by the Commission; or (iii) not issue the recall notice; and (b) cause a copy of the notice given under paragraph (a) to be given to each person who was present or represented at the conference. (3) The Commonwealth Minister must: (a) have regard to a recommendation made under paragraph (1)(a) or (2)(a); and (b) if he or she decides to act otherwise than in accordance with the

recommendation — the Commonwealth Minister must, by written notice published on the internet, set out the reasons for his or her decision.

Subdivision B — Conference requirements after an interim ban is imposed

[14,065E] Opportunity for a conference after an interim ban has been imposed by the Commonwealth Minister 132E (1) This section applies if: (a) an interim ban on consumer goods of a particular kind, or on product related services of a particular kind, is in force; and [page 952] (b) the interim ban was imposed by the Commonwealth Minister; and (c) before the ban was imposed, the Commonwealth Minister published a notice under section 132J certifying that the interim ban should be imposed without delay. (2) The Commonwealth Minister must, by written notice published on the internet, invite any person who supplied, or proposes to supply: (a) consumer goods of that kind; or (b) product related services of that kind; to notify the Commission, in writing and within a period specified in the notice, if the person wishes the Commission to hold a conference in relation to the interim ban. (3) The period specified in the notice under subsection (2): (a) must be a period of at least 10 days, or such longer period as the Commonwealth Minister specifies in the notice; and (b) must not commence before the day on which the notice is published.

(4) A notice under subsection (2) is not a legislative instrument.

[14,065F]

Notification of conference

132F (1) If one or more persons notify the Commission in accordance with a notice published under subsection 132E(2) that they wish the Commission to hold a conference, the Commission must: (a) appoint a day, time and place for the holding of the conference; and (b) give written notice to the Commonwealth Minister, and to each person who so notified the Commission, of that day, time and place. (2) The day appointed must be at least 5 days, but not more than 14 days, after the end of the period specified in the notice under subsection 132E(2). (3) A notice under paragraph (1)(b) is not a legislative instrument.

[14,065G] Recommendation after conclusion of conference 132G (1) As soon as is practicable after the conclusion of a conference held under this Subdivision in relation to an interim ban, the Commission must: (a) by written notice given to the Commonwealth Minister, recommend that the interim ban remain in force, be varied or be revoked; and (b) cause a copy of the notice to be given to each person who was present or represented at the conference. (2) The Commonwealth Minister must: (a) have regard to a recommendation made under paragraph (1)(a); and (b) if he or she decides to act otherwise than in accordance with the recommendation — the Commonwealth Minister must, by written notice published on the internet, set out the reasons for his or her decision.

Subdivision C — Conduct of conferences

[14,065H]

Conduct of conferences

132H (1) At a conference held under Subdivision A or B of this Division: (a) the Commission must be represented by a member or members of the Commission who are nominated by the Chairperson; and [page 953] (b) each person who notified the Commission in accordance with whichever of the following is applicable: (i) a proposed ban notice; (ii) a proposed recall notice; (iii) a notice under subsection 132E(2); is entitled to be present or to be represented; and (c) any other person whose presence at the conference is considered by the Commission to be appropriate is entitled to be present or to be represented; and (d) the Commonwealth Minister is, or a person or persons nominated in writing by the Commonwealth Minister are, entitled to be present; and (e) the procedure to be followed must be as determined by the Commission. (2) The Commission must cause a record of the proceedings at the conference to be kept. (3) The Commission must, as far as is practicable, ensure that each person who is entitled to be present, or who is representing such a person, at the conference is given a reasonable opportunity at the conference to present his or her case and in particular: (a) to inspect any documents (other than a document that contains particulars of a secret formula or process) which the Commission proposes to consider for the purpose of making a recommendation

after the conclusion of the conference; and (b) to make submissions in relation to those documents.

Subdivision D — Miscellaneous

[14,065J] Interim ban and recall notice without delay in case of danger to the public 132J (1) If it appears to the Commonwealth Minister that consumer goods of a particular kind create an imminent risk of death, serious illness or serious injury, he or she may, by written notice published on the internet, certify that: (a) an interim ban on consumer goods of that kind should be imposed without delay; or (b) a recall notice for consumer goods of that kind should be issued without delay. (2) If it appears to the Commonwealth Minister that product related services of a particular kind create an imminent risk of death, serious illness or serious injury, he or she may, by written notice published on the internet, certify that an interim ban on services of that kind should be imposed without delay. (3) If: (a) the Commonwealth Minister publishes a notice under subsection (1) or (2); and (b) action of any kind has been taken under Subdivision A of this Division in relation to the interim ban or recall notice, but no recommendation has been made under section 132D; the Commonwealth Minister may impose the interim ban, or issue the recall notice, without regard to that action. (4) A notice under subsection (1) or (2) is not a legislative instrument. [page 954]

[14,065K] Copy of notices under this Division to be given to suppliers 132K (1) If the Commonwealth Minister: (a) issues a proposed ban notice; or (b) issues a proposed recall notice; or (c) publishes a notice under subsection 132E(2); or (d) publishes a notice under subsection 132J(1) or (2); he or she must cause a copy of the notice to be given to each person who, to the knowledge of the Commonwealth Minister, supplies the consumer goods, or the product related services, to which the notice relates. (2) The copy must be given: (a) within 2 days after the publication or issue of the notice; or (b) if it is not practicable to give the copy within that period — as soon as practicable after the end of that period. (3) A failure to comply with subsection (1) does not invalidate the notice. DIVISION 4 — ENFORCEMENT Subdivision A — Inspectors

[14,070]

Appointment of inspectors

133 (1) The Chairperson may, in writing, appoint a member of the staff assisting the Commission as an inspector. (2) The Chairperson must not appoint a person as an inspector unless the Chairperson is satisfied that the person has suitable qualifications and experience to exercise properly the powers of an inspector. (3) An inspector must, in exercising powers as an inspector, comply with any directions of the Chairperson. (4) If a direction under subsection (3) is given in writing, the direction is not a legislative instrument.

[14,070A]

Identity cards

133A (1) The Chairperson must issue an identity card to a person appointed as an inspector. (2) Form of identity card The identity card must: (a) be in the form prescribed by the regulations; and (b) contain a recent photograph of the person. (3) Offence A person commits an offence if: (a) the person has been issued with an identity card under subsection (1); and (b) the person ceases to be an inspector; and (c) the person does not, as soon as practicable after so ceasing, return the identity card to the Chairperson. Penalty: 1 penalty unit. (4) An offence against subsection (3) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [page 955] (5) Defence: card lost or destroyed Subsection (3) does not apply if the identity card was lost or destroyed. Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code. (6) Inspector must carry card An inspector issued with an identity card under subsection (1) must carry his or her identity card at all times when exercising powers as an inspector.

Subdivision B — Premises to which the public is given access

[14,070B] Power to enter premises to which the public has access — consumer goods 133B (1) An inspector may enter premises in or from which a person, in trade or commerce, supplies consumer goods, if the public has access to the premises at the time of entry, for the purpose of ascertaining whether:

any of those consumer goods will or may cause injury to any (a) person; or (b) a reasonably foreseeable use (including a misuse) of those consumer goods will or may cause injury to any person; and remain on the premises for such a purpose while the public has access to the premises. (2) While on the premises, the inspector may: (a) take photographs of: (i) any of those consumer goods; or (ii) equipment used in the manufacturing, processing or storage any of those consumer goods; and (b) inspect, handle and measure any of those consumer goods; and (c) purchase any of those consumer goods.

[14,070C] Power to enter premises to which the public has access — product related services 133C (1) An inspector may enter premises in or from which a person, in trade or commerce, supplies product related services, if the public has access to the premises at the time of entry, for the purposes of ascertaining whether: (a) as a result of any of those product related services being supplied, any consumer goods will or may cause injury to any person; or (b) a reasonably foreseeable use (including a misuse) of any consumer goods, to which any of those product related services relate, will or may cause injury to any person as a result of those services being supplied; and remain on the premises for such a purpose while the public has access to the premises. (2) While on the premises, the inspector may: (a) take photographs of: (i) the premises; or (ii) equipment used to supply any of those product related services; and

[page 956] (b) inspect, handle and measure such equipment; and (c) purchase any of those product related services.

Subdivision C — Disclosure notices relating to the safety of goods or services

[14,070D]

Power to obtain information etc

133D (1) Consumer goods The Commonwealth Minister or an inspector may give a disclosure notice to a person (the supplier) who, in trade or commerce, supplies consumer goods of a particular kind if the person giving the notice has reason to believe: (a) that: (i) consumer goods of that kind will or may cause injury to any person; or (ii) a reasonably foreseeable use (including a misuse) of consumer goods of that kind will or may cause injury to any person; and (b) that the supplier is capable of giving information, producing documents or giving evidence in relation to those consumer goods. (2) Product related services The Commonwealth Minister or an inspector may give a disclosure notice to a person (the supplier) who, in trade or commerce, supplies product related services of a particular kind if the person giving the notice has reason to believe: (a) that: (i) as a result of services of that kind being supplied, consumer goods of a particular kind will or may cause injury to any person; or (ii) a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which such services relate, will or may cause injury to any person as a result of such services being supplied; and

that the supplier is capable of giving information, producing (b) documents or giving evidence in relation to those services. (3) Disclosure notice A disclosure notice is a written notice requiring the supplier: (a) to give, in writing signed by the supplier, any such information to the person specified in the notice: (i) in the manner specified in the notice; and (ii) within such reasonable time as is specified in the notice; or (b) to produce, in accordance with such reasonable requirements as are specified in the notice, any such documents to the person specified in the notice; or (c) to appear before the person specified in the notice at such reasonable time, and at such place, as is specified in the notice: (i) to give any such evidence, on oath or affirmation; and (ii) to produce any such documents. (4) The person specified in the notice may be: (a) the Commonwealth Minister; or (b) an inspector (whether or not that inspector gave the notice).

[14,070E]

Self-incrimination

133E (1) A person is not excused from: (a) giving information or evidence; or [page 957] (b) producing a document; as required by a disclosure notice given to the person on the ground that the information or evidence, or production of the document, might tend to incriminate the person or expose the person to a penalty. (2) However, in the case of an individual: (a) the information or evidence given, or the document produced; and (b) giving the information or evidence, or producing the document; are not admissible in evidence against the individual:

(c) in any proceedings instituted by the individual; or (d) in any criminal proceedings, other than proceedings against the individual for an offence against section 133F or 133G.

[14,070F]

Compliance with disclosure notices

133F (1) A person commits an offence if: (a) the person is given a disclosure notice; and (b) the person refuses or fails to comply with the notice. Penalty: (a) if the person is a body corporate — 200 penalty units; or (b) if the person is not a body corporate — 40 penalty units. (2) Subsection (1) does not apply if the person complies with the disclosure notice to the extent to which the person is capable of complying with the notice. Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code. (3) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

[14,070G]

False or misleading information etc

133G A person commits an offence if: (a) the person gives information, evidence or a document in purported compliance with a disclosure notice; and (b) the person does so knowing that the information, evidence or document is false or misleading in a material particular. Penalty: (a) if the person is a body corporate — 300 penalty units; or (b) if the person is not a body corporate — 60 penalty units or imprisonment for 12 months, or both.

Subdivision D — Court orders relating to the destruction etc of goods

[14,070H] Court orders relating to consumer goods that do not comply with a safety standard etc 133H (1) If a court is satisfied that: (a) a person possesses or has control of consumer goods of a particular kind; and (b) any of the following apply: [page 958] (i)

the consumer goods do not comply with a safety standard that is in force for consumer goods of that kind and the cause of that non-compliance cannot be remedied; (ii) a permanent ban on consumer goods of that kind is in force; (iii) a recall notice for consumer goods of that kind is in force and a defect or dangerous characteristic of such consumer goods identified in the notice cannot be remedied; the court may, on the application of an inspector, make an order of a kind referred to in subsection (2). (2) The court may make an order under subsection (1) authorising one or more inspectors to do the following in accordance with any requirements specified in the order: (a) to enter the premises of the person that are specified in the order; (b) to search the premises for consumer goods of a kind specified in the order; (c) to seize any such consumer goods that are found at those premises; (d) to destroy or otherwise dispose of any such consumer goods that are so seized. (3) Before making an application under subsection (1), the inspector must: (a) take reasonable steps to discover who has an interest in the consumer goods; and (b) if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.

(4) A person notified under subsection (3) is entitled to be heard in relation to the application.

[14,070J] Recovery of reasonable costs of seizing, and destroying or disposing of, consumer goods 133J (1) If an inspector seizes, and destroys or otherwise disposes of, consumer goods in accordance with an order made under subsection 133H(1): (a) the person from whom the consumer goods were seized; or (b) if that person is not entitled to possess the consumer goods — the owner of the consumer goods; is liable to pay an amount equal to the costs reasonably incurred by the inspector in seizing, and in destroying or disposing of, the consumer goods. (2) An amount payable by a person under subsection (1): (a) is a debt due by the person to the Commonwealth; and (b) may be recovered by action in a court of competent jurisdiction. DIVISION 5 — INFRINGEMENT NOTICES [14,075.0] Overview This Division was introduced by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010. See [14,500.5]. Because of differences in existing State and Territory infringement notice regimes, the infringement notice provisions in this Division extend only to the Australian Consumer Law as applied as a law of the Commonwealth, not to the whole Australian Consumer Law. States and Territories may apply a similar regime within their jurisdictions. [page 959] The infringement notice power will allow a regulator to take action for more minor breaches of the Australian Consumer Law, for example, unfair practices or unsolicited consumer agreements.

Compliance with an infringement notice requires payment of the financial amount specified in the notice in order to avoid legal liability for the contravention. However, compliance with an infringement notice is not taken as an admission of liability or a contravention of the Australian Consumer Law. Compliance also means that the person is not open to civil or criminal proceedings in relation to the alleged contravention. A regulator cannot bring an action for failure to comply with an infringement notice. However, the regulator may then bring civil or criminal proceedings in relation to the alleged contravention. For many businesses this will prove to be a cost effective means of resolving a matter with a regulator with minimal business disruption and publicity, and without admission of liability. [14,075.10] Guidelines The Commission has published “Guidelines on the use of infringement notices”. The guidelines discuss, among other things, when the Commission is likely to issue an infringement notice. _____________________

[14,075]

Purpose and effect of this Division

134 (1) The purpose of this Division is to provide for the issue of an infringement notice to a person for an alleged contravention of an infringement notice provision as an alternative to proceedings for an order under section 224 of the Australian Consumer Law. (2) This Division does not: (a) require an infringement notice to be issued to a person for an alleged contravention of an infringement notice provision; or (b) affect the liability of a person to proceedings under Chapter 4 or Part 5-2 of the Australian Consumer Law in relation to an alleged contravention of an infringement notice provision if: (i) an infringement notice is not issued to the person for the alleged contravention; or (ii) an infringement notice issued to a person for the alleged contravention is withdrawn under section 134G; or (c) prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply

with the notice.

[14,075A]

Issuing an infringement notice

134A (1) If the Commission has reasonable grounds to believe that a person has contravened an infringement notice provision, the Commission may issue an infringement notice to the person. (2) Each of the following provisions of the Australian Consumer Law is an infringement notice provision: (a) a provision of Part 2-2; (b) a provision of Part 3-1 (other than subsection 32(1), 35(1) or 36(1), (2) or (3) or section 40 or 43); (c) subsection 66(2); (d) a provision of Division 2 of Part 3-2 (other than section 85); (e) a provision of Division 3 of Part 3-2 (other than subsection 96(2)); (f) subsection 100(1) or (3), 101(3) or (4), 102(2) or 103(2); [page 960] (g) subsection 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6), 131(1), 132(1), 136(1), (2) or (3) or 137(1) or (2); (h) subsection 221(1) or 222(1). (3) The Commission must not issue more than one infringement notice to the person for the same alleged contravention of the infringement notice provision. (4) The infringement notice does not have any effect if the notice: (a) is issued more than 12 months after the day on which the contravention of the infringement notice provision is alleged to have occurred; or (b) relates to more than one alleged contravention of an infringement notice provision by the person.

[14,075B] Matters to be included in an infringement notice An infringement notice must: be identified by a unique number; and state the day on which it is issued; and state the name and address of the person to whom it is issued; and identify the Commission; and state how the Commission may be contacted; and give details of the alleged contravention by the person, including: (i) the date of the alleged contravention; and (ii) the particular infringement notice provision that was allegedly contravened; and (g) state the maximum pecuniary penalty that the court could order the person to pay under section 224 of the Australian Consumer Law for the alleged contravention; and (h) specify the penalty that is payable in relation to the alleged contravention; and (i) state that the penalty is payable within the infringement notice compliance period for the notice; and (j) state that the penalty is payable to the Commission on behalf of the Commonwealth; and (k) explain how payment of the penalty is to be made; and (l) explain the effect of sections 134D, 134E, 134F and 134G.

134B (a) (b) (c) (d) (e) (f)

[14,075C]

Amount of penalty

134C The penalty to be specified in an infringement notice that is to be issued to a person, in relation to an alleged contravention of a provision of the Australian Consumer Law, must be a penalty equal to the amount worked out using the following table: Amount of penalty Item

If the infringement notice is the amount is. . . for an alleged contravention

of one of the following provisions of the Australian Consumer Law. . . 1

a provision of Part 2-2

(a) if the person is a listed corporation — 600 penalty units; or [page 961]

Amount of penalty Item

If the infringement notice is the amount is. . . for an alleged contravention of one of the following provisions of the Australian Consumer Law. . . (b) if the person is a body corporate other than a listed corporation — 60 penalty units; or (c) if the person is not a body corporate— 12 penalty units.

2

a provision of Part 3-1 (other (a) if the person is a listed than subsection 32(1), 35(1), corporation — 600 36(1), (2) or (3), section 40 or penalty units; or 43 or subsection 47(1)) (b) if the person is a body corporate other than a listed corporation — 60 penalty units; or

if the person is not a (c) body corporate — 12 penalty units. 3

subsection 47(1)

(a) if the person is a body corporate — 10 penalty units; or (b) if the person is not a body corporate — 2 penalty units.

4

subsection 66(2)

(a) if the person is a body corporate — 55 penalty units; or (b) if the person is not a body corporate — 11 penalty units.

5

a provision of Division 2 of Part 3-2 (other than section 85)

(a) if the person is a body corporate — 60 penalty units; or (b) if the person is not a body corporate — 12 penalty units.

6

a provision of Division 3 of (a) if the person is a body Part 3-2 (other than subsection corporate — 55 penalty 96(2)) units; or (b) if the person is not a body corporate — 11 penalty units.

7

subsection 100(1) or (3) or 101(3) or (4)

(a) if the person is a body corporate — 20 penalty units; or (b) if the person is not a body corporate — 4

penalty units. 8

subsection 102(2) or 103(2)

(a) if the person is a body corporate — 60 penalty units; or (b) if the person is not a body corporate — 12 penalty units. [page 962]

Amount of penalty Item

If the infringement notice is the amount is. . . for an alleged contravention of one of the following provisions of the Australian Consumer Law. . .

9

subsection 106(1), (2), (3) or (a) if the person is a listed (5), 107(1) or (2), 118(1), (2), corporation — 600 (3) or (5), 119(1) or (2) penalty units; or (b) if the person is a body corporate other than a listed corporation — 60 penalty units; or (c) if the person is not a body corporate — 12 penalty units.

10

subsection 125(4)

(a) if the person is a body corporate — 30 penalty units; or (b) if the person is not a body corporate — 6

penalty units. 11

subsection 127(1) or (2)

(a) if the person is a listed corporation — 600 penalty units; or (b) if the person is a body corporate other than a listed corporation — 60 penalty units; or (c) if the person is not a body corporate — 12 penalty units.

12

subsection 128(2) or (6), 131(1) or 132(1)

(a) if the person is a body corporate — 30 penalty units; or (b) if the person is not a body corporate — 6 penalty units.

13

subsection 136(1), (2) or (3) or 137(1) or (2)

(a) if the person is a listed corporation — 600 penalty units; or (b) if the person is a body corporate other than a listed corporation — 60 penalty units; or (c) if the person is not a body corporate — 12 penalty units.

14

subsection 221(1)

(a) if the person is a body corporate — 30 penalty units; or (b) if the person is not a body corporate — 6

penalty units. 15

subsection 222(1)

(a) if the person is a body corporate — 50 penalty units; or (b) if the person is not a body corporate — 10 penalty units [page 963]

[14,075D] Effect of compliance with an infringement notice 134D (1) This section applies if: (a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and (b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and (c) the infringement notice is not withdrawn under section 134G. (2) The person is not, merely because of the payment, regarded as: (a) having contravened the infringement notice provision; or (b) having been convicted of an offence constituted by the same conduct that constituted the alleged contravention of the infringement notice provision. (3) No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to: (a) the alleged contravention of the infringement notice provision; or (b) an offence constituted by the same conduct that constituted the alleged contravention.

[14,075E]

Effect of failure to comply with an

infringement notice 134E If: (a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and (b) the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and (c) the infringement notice is not withdrawn under section 134G; the person is liable to proceedings under Chapter 4 or Part 5-2 of the Australian Consumer Law in relation to the alleged contravention of the infringement notice provision. SECTION 134E GENERALLY [14,075E.5] Overview If a person fails to comply with an infringement notice, the person is liable to penalties and other orders under Pt 5-2 Australian Consumer Law. See Australian Competition and Consumer Commission v Le Sands Restaurant and Le Sands Café Pty Ltd [2011] FCA 105; BC201100468 per Jagot J. _____________________

[14,075F] Infringement notice compliance period for infringement notice 134F (1) Subject to this section, the infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day on which the infringement notice is issued by the Commission. (2) The Commission may extend, by notice in writing, the infringement notice compliance period for the notice if the Commission is satisfied that it is appropriate to do so. [page 964]

(3) Only one extension may be given and the extension must not be for longer than 28 days. (4) Notice of the extension must be given to the person who was issued the infringement notice. (5) A failure to comply with subsection (4) does not affect the validity of the extension. (6) If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.

[14,075G]

Withdrawal of an infringement notice

134G (1) Representations to the Commission The person to whom an infringement notice has been issued for an alleged contravention of an infringement notice provision may make written representations to the Commission seeking the withdrawal of the infringement notice. (2) Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading). (3) Withdrawal by the Commission The Commission may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so. (4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal. (5) Content of withdrawal notices The withdrawal notice must state: (a) the name and address of the person; and (b) the day on which the infringement notice was issued to the person; and (c) that the infringement notice is withdrawn; and (d) that proceedings under Chapter 4 or Part 5-2 of the Australian Consumer Law may be started or continued against the person in

relation to: (i) the alleged contravention of the infringement notice provision; or (ii) an offence constituted by the same conduct that constituted the alleged contravention. (6) Time limit for giving withdrawal notices To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice. (7) Refunds If the infringement notice is withdrawn after the person has paid the penalty specified in the infringement notice, the Commission must refund to the person an amount equal to the amount paid. [page 965] DIVISION 6 — SEARCH, SEIZURE AND ENTRY

Subdivision A — Powers of inspectors

[14,080]

Inspector may enter premises

135 (1) Consumer goods If an inspector has reason to believe that: (a) consumer goods of a particular kind will or may cause injury to any person; or (b) a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind will or may cause injury to any person; the inspector may, for the purposes of ascertaining the matter referred to in paragraph (a) or (b): (c) enter any premises in or from which the inspector has reason to believe that a person supplies consumer goods of that kind in trade or commerce; and (d) exercise search-related powers in relation to the premises. (2) Product related services If an inspector has reason to believe that: (a) as a result of product related services of a particular kind being supplied, consumer goods of a particular kind will or may cause

injury to any person; or (b) a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which product related services of a particular kind relate, will or may cause injury to any person as a result of such services being supplied; the inspector may, for the purposes of ascertaining the matter referred to in paragraph (a) or (b): (c) enter any premises in or from which the inspector has reason to believe that a person supplies product related services of that kind in trade or commerce; and (d) exercise search-related powers in relation to the premises. (3) Limitation on entry However, the inspector is not entitled to enter premises under subsection (1) or (2) unless: (a) the occupier of the premises has consented to the entry and the inspector has shown his or her identity card if required by the occupier; or (b) the entry is made under a search warrant; or (c) the entry is made in circumstances in which the exercise of searchrelated powers is required without delay in order to protect life or public safety. Note: For requirements relating to the occupier’s consent, see section 135H.

[14,080A]

Search-related powers of inspectors

135A (1) Search-related powers — consumer goods The following are the search-related powers that an inspector may exercise, under subsection 135(1), in relation to premises in or from which the inspector has reason to believe that a person supplies consumer goods of a particular kind: (a) if entry to the premises is under a search warrant — the power to seize consumer goods of that kind; (b) the power to inspect, handle and measure consumer goods of that kind; (c) the power to take samples of consumer goods of that kind; (d) the power:

(i)

to inspect, handle and read any documents relating to consumer goods of that kind; and [page 966]

(ii) to make copies of, or take extracts from, those documents; (e) the power: (i) to inspect, handle and measure equipment used in the manufacturing, processing or storage of consumer goods of that kind; and (ii) if entry to the premises is under a search warrant — to seize such equipment; (f) the power to make any still or moving image or any recording of: (i) consumer goods of that kind; or (ii) the premises; or (iii) any equipment referred to in subparagraph (e)(i). (2) Search-related powers — product related services The following are the search-related powers that an inspector may exercise, under subsection 135(2), in relation to premises in or from which the inspector has reason to believe that a person supplies product related services of a particular kind: (a) the power: (i) to inspect, handle and read any documents relating to services of that kind; and (ii) to make copies of, or take extracts from, those documents; (b) the power: (i) to inspect, handle and measure equipment used to supply services of that kind; and (ii) if entry to the premises is under a search warrant — to seize such equipment; (c) the power to make any still or moving image or any recording of: (i) any consumer goods to which product related services of that kind relate; or (ii) the premises; or

(iii) any equipment referred to in subparagraph (b)(i).

[14,080B] Inspector may ask questions and seek production of documents 135B (1) Entry with consent etc If an inspector enters premises because the occupier of the premises consents to the entry or in the circumstances referred to in paragraph 135(3)(c), the inspector may ask the occupier to: (a) answer any questions relating to the reasons for the inspector entering the premises that are put by the inspector; and (b) produce any document relating to the reasons for the inspector entering the premises that is requested by the inspector. (2) Entry under a search warrant If an inspector enters premises under a search warrant, the inspector may require any person on the premises to: (a) answer any questions relating to the reasons for the inspector entering the premises that are put by the inspector; and (b) produce any document relating to the reasons for the inspector entering the premises that is requested by the inspector. [page 967]

[14,080C] Failure to answer questions or produce documents 135C (1) A person commits an offence if: (a) the person is subject to a requirement under subsection 135B(2); and (b) the person fails to comply with the requirement. Penalty: (a) if the person is a body corporate — 150 penalty units; or (b) if the person is not a body corporate — 30 penalty units. (2) A person is not excused from:

(a) answering a question; or (b) producing a document; as required under subsection 135B(2) on the ground that the answer, or production of the document, might tend to incriminate the person or expose the person to a penalty. (3) However, in the case of an individual: (a) the answer, or the document produced; and (b) giving the answer, or producing the document; are not admissible in evidence against the individual in any criminal proceedings other than: (c) proceedings for any offence against subsection (1); or (d) proceedings for an offence based on the answer or document being false or misleading; or (e) proceedings for an offence based on the obstruction of public officials. (4) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

[14,080D]

Persons assisting inspectors

135D (1) Inspectors may be assisted by other persons An inspector may, in entering premises under section 135 and in exercising search-related powers in relation to the premises, be assisted by other persons if that assistance is necessary and reasonable. (2) A person giving such assistance is a person assisting the inspector. (3) Powers of a person assisting the inspector A person assisting the inspector may: (a) enter the premises; and (b) exercise search-related powers in relation to the premises, but only in accordance with a direction given to the person by the inspector. (4) A power exercised by a person assisting the inspector as mentioned in subsection (3) is taken for all purposes to have been exercised by the inspector.

[14,080E] warrant

Use of force in executing a search

135E In executing a search warrant, an inspector executing the warrant may use such force against persons and things as is necessary and reasonable in the circumstances. [page 968]

[14,080F] warrant

Announcement before entry under

135F (1) An inspector must, before entering premises under a search warrant: (a) announce that he or she is authorised to enter the premises; and (b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and (c) give any person at the premises an opportunity to allow entry to the premises. (2) However, an inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required: (a) to ensure the safety of a person (including the inspector or a person assisting the inspector); or (b) to ensure that the effective execution of the warrant is not frustrated. (3) If: (a) the inspector does not comply with subsection (1) because of subsection (2); and (b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises; the inspector must, as soon as practicable after entering the premises, show

his or her identity card to the occupier or other person.

[14,080G] Inspector must be in possession of search warrant 135G If a search warrant is being executed in relation to premises, an inspector executing the warrant must be in possession of: (a) the warrant issued under section 135Z or a copy of that warrant; or (b) the form of warrant completed under subsection 136(7), or a copy of that form.

Subdivision B — Obligations of inspectors

[14,080H]

Consent

135H (1) An inspector must, before obtaining the consent of an occupier of premises for the purposes of paragraph 135(3)(a), inform the occupier that the occupier may refuse consent. (2) A consent has no effect unless the consent is voluntary. (3) If an inspector enters premises because the occupier of the premises consented to the entry, the inspector, and a person assisting the inspector, must leave the premises if the consent ceases to have effect.

[14,080J] Details of search warrant etc must be given to the occupier of the premises 135J If: (a) a search warrant is being executed in relation to premises; and (b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises; [page 969]

an inspector executing the warrant must, as soon as practicable: (c) do one of the following: (i) if the warrant was issued under section 135Z — make a copy of the warrant available to the occupier or other person (which need not include the signature of the judge who issued it); (ii) if the warrant was signed under section 136 — make a copy of the form of warrant completed under subsection 136(7) available to the occupier or other person; and (d) inform the occupier or other person of the rights and responsibilities of the occupier or other person under Subdivision C.

Subdivision C — Occupier’s etc rights and responsibilities

[14,080K] Occupier etc entitled to observe execution of search warrant 135K (1) If: (a) a search warrant is being executed in relation to premises; and (b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises; the occupier or other person is entitled to observe the execution of the warrant. (2) The right to observe the execution of the search warrant ceases if the occupier or other person impedes that execution. (3) This section does not prevent the execution of the search warrant in 2 or more areas of the premises at the same time.

[14,080L] Occupier etc to provide inspector etc with facilities and assistance 135L (1) A person commits an offence if: (a) the person is:

the occupier of premises to which a search warrant relates; (i) or (ii) another person who apparently represents the occupier of those premises; and (b) the person fails to provide: (i) an inspector executing the warrant; and (ii) a person assisting the inspector; with all reasonable facilities and assistance for the effective exercise of their powers. Penalty: (a) if the person is a body corporate — 600 penalty units; or (b) if the person is not a body corporate — 120 penalty units or imprisonment for 2 years, or both. (2) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [page 970]

[14,080M] Receipts for seized consumer goods and equipment 135M (1) If consumer goods are seized under a search warrant, an inspector must provide a receipt for the goods. (2) If equipment is seized under a search warrant, an inspector must provide a receipt for the equipment. (3) One receipt may cover: (a) consumer goods and equipment that have been so seized; and (b) 2 or more kinds of consumer goods or equipment that have been so seized.

[14,080N] Return of seized consumer goods and equipment

135N (1) Subject to any order under section 135P, if an inspector seizes consumer goods or equipment under a search warrant, the inspector must take reasonable steps to return the consumer goods or equipment if: (a) the reason for the seizure no longer exists; or (b) the period of 60 days after the seizure ends; whichever happens first. (2) Subsection (1) does not apply if: (a) the consumer goods are, or the equipment is, forfeited or forfeitable to the Commonwealth; or (b) the consumer goods are, or the equipment is, the subject of a dispute as to ownership. (3) If, apart from this subsection, the inspector would be required to take reasonable steps to return consumer goods or equipment under subsection (1) because of paragraph (b) of that subsection, the inspector is not required to do so if: (a) the return of the consumer goods or equipment could cause an imminent risk of death, serious illness or serious injury; or (b) the inspector is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or a Territory) to retain, destroy, dispose of or otherwise deal with the consumer goods or equipment. (4) Consumer goods that are required to be returned under this section must be returned to the person from whom they were seized (or to the owner if that person is not entitled to possess them). (5) Equipment that is required to be returned under this section must be returned to the person from whom it was seized (or to the owner if that person is not entitled to possess it).

[14,080P] Judge may permit consumer goods or equipment to be retained 135P (1) An inspector who has seized consumer goods or equipment under a search warrant may, before the end of the period referred to in paragraph 135N(1)(b), apply to a judge of the Federal Court for an order that the inspector may retain the consumer goods or equipment for a further

period of up to 60 days. (2) If: (a) an application to a judge is made under subsection (1); and [page 971] (b) the judge is satisfied that it is necessary in all the circumstances for the inspector to continue to retain the consumer goods or equipment; the judge may order that the inspector may retain the consumer goods or equipment for a further period (not exceeding 60 days) specified in the order. (3) Before making the application under subsection (1), the inspector must: (a) take reasonable steps to discover who has an interest in the retention of the consumer goods or equipment; and (b) if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.

Subdivision D — Provisions relating to seizure

[14,080Q] Recovery of reasonable costs of seizing consumer goods or equipment 135Q (1) If an inspector seizes consumer goods or equipment under a search warrant: (a) the person from whom the consumer goods were seized, or the equipment was seized; or (b) if that person is not entitled to possess the consumer goods or equipment — the owner of the consumer goods or equipment; is liable to pay an amount equal to the costs reasonably incurred by the inspector in seizing the consumer goods or equipment. (2) An amount payable by a person under subsection (1): (a) is a debt due by the person to the Commonwealth; and

(b) may be recovered by action in a court of competent jurisdiction.

[14,080R] Destruction or disposal of seized consumer goods or equipment 135R (1) If: (a) an inspector seizes consumer goods, or equipment used to supply product-related services, under a search warrant; and (b) apart from this section, the inspector is required to return the consumer goods or equipment to a person; and (c) either: (i) the inspector cannot, despite making reasonable efforts, locate the person; or (ii) the person has refused to take possession of the consumer goods or equipment; a court may, on the application of the inspector, make an order authorising the inspector to destroy or otherwise dispose of the consumer goods or equipment. (2) If subparagraph (1)(c)(ii) applies, the inspector must, before making an application under subsection (1), inform the person referred to in that subparagraph that the inspector proposes to make an application under that subsection. (3) If: (a) an order is made under subsection (1); and [page 972] (b) subparagraph (1)(c)(ii) applies; the person referred to in that subparagraph is liable to pay an amount equal to the costs reasonably incurred by the inspector in destroying or disposing of the consumer goods or equipment. (4) An amount payable by a person under subsection (3): (a) is a debt due by the person to the Commonwealth; and

(b) may be recovered by action in a court of competent jurisdiction.

Subdivision E — Embargo notices

[14,080S]

Embargo notices

135S (1) An inspector who enters premises under a search warrant may give an embargo notice to the occupier of the premises. (2) The inspector may give the notice to the occupier of the premises: (a) by causing a copy of the notice to be served on the occupier; or (b) if the occupier cannot be located after all reasonable steps have been taken to do so — by: (i) causing a copy of the notice to be served on a person on the premises who is reasonably believed to be in regular contact with the occupier; or (ii) causing a copy of the notice to be affixed to the premises, or to a thing on the premises, in a prominent position. (3) The embargo notice must: (a) be in writing; and (b) specify the consumer goods, or product related services, to which the notice relates; and (c) if the notice relates to consumer goods — state that the specified consumer goods must not be: (i) supplied in or from the premises; or (ii) transferred, moved, altered, destroyed or otherwise interfered with; during the period specified in the notice; and (d) if the notice relates to product related services — state that the specified product related services must not be supplied in or from the premises during the period specified in the notice; and (e) explain the effect of section 135V or 135W. (4) Despite anything in any other law, a contract for a supply of consumer goods or product related services that is prohibited by an embargo notice is void. (5) If consumer goods are supplied in contravention of an embargo notice:

the supplier must immediately return or refund to the person who acquired the goods any consideration (or the value of any consideration) that that person gave: (i) under an agreement for the supply; or (ii) under a related contract or instrument; and (b) if the goods have been removed from the premises in which they were subject to the embargo notice—the person who acquired the goods must: (i) return the goods to the premises; or (a)

[page 973] (ii) notify the supplier of the place where the supplier may collect the goods; and (c) if subparagraph (b)(ii) applies — the supplier must collect the goods from the place notified to the supplier, and return them to the premises.

[14,080T]

Embargo period for embargo notices

135T (1) Embargo period Subject to this section, the embargo period for an embargo notice must not be longer than: (a) if the inspector giving the notice secures consumer goods under section 135V or secures equipment under section 135W — 24 hours; or (b) otherwise — 28 days. (2) Extensions of embargo period An inspector may, before the embargo period ends, apply to a judge of the Federal Court for an extension of the period. (3) If an inspector intends to make an application under subsection (2), the inspector must, before making the application, notify the occupier of the premises to which the embargo notice relates of that intention. (4) The occupier of the premises is entitled to be heard in relation to the application.

(5) The judge may extend the embargo period for a specified period if the judge is satisfied that the extension is necessary in all the circumstances.

[14,080U] Multiple embargo notices for the same consumer goods or product related services 135U An inspector must not give an embargo notice in relation to consumer goods, or product related services, of a particular kind if: (a) an embargo notice (the earlier embargo notice) has already been given in relation to consumer goods, or product related services, of that kind; and (b) the embargo period for the earlier embargo notice did not end at least 5 days ago.

[14,080V] Power of inspectors to secure consumer goods 135V If: (a) an embargo notice relates to consumer goods; and (b) the inspector who gives the notice believes on reasonable grounds that it is necessary to secure the consumer goods in order to ensure that the notice is complied with; the inspector may, during the embargo period for the embargo notice, do anything that the inspector thinks is necessary to secure those consumer goods (whether by locking them up, placing a guard or otherwise).

[14,080W] Power of inspectors to secure equipment used to supply product related services 135W If: (a) an embargo notice relates to product related services; and [page 974]

(b) the inspector who gives the notice believes on reasonable grounds that it is necessary to secure equipment used to supply the services in order to ensure that the notice is complied with; the inspector may, during the embargo period for the embargo notice, do anything that the inspector thinks is necessary to secure that equipment (whether by locking it up, placing a guard or otherwise).

[14,080X] Consent to supply etc embargoed consumer goods etc 135X (1) If an embargo notice relating to consumer goods has been given, the owner of the goods or another person who has an interest in the goods may, in writing, request consent to do any of the following: (a) to supply the goods; (b) to transfer, move, alter, destroy or otherwise interfere with the goods. (2) If an embargo notice relating to product related services has been given, the following persons may, in writing, request consent to supply the services: (a) the person who would, but for the embargo notice, supply the services; (b) another person whose interests would be affected if the services were not supplied. (3) If a request for consent is made under subsection (1) or (2), the requested consent may be given, in writing, by the Commonwealth Minister, the Chairperson or any inspector. (4) A consent given under subsection (3) is not a legislative instrument.

[14,080Y]

Compliance with embargo notices

135Y (1) A person commits an offence if: (a) the person knows that an embargo notice has been given; and (b) the person, contrary to the embargo notice, does an act or omits to do an act. Penalty:

(a) if the person is a body corporate — 200 penalty units; or (b) if the person is not a body corporate — 40 penalty units. (2) A person commits an offence if: (a) the person knows that an embargo notice has been given; and (b) the person causes another person: (i) to do an act that is contrary to the embargo notice; or (ii) contrary to the embargo notice, to omit to do an act. Penalty: (a) if the person is a body corporate — 200 penalty units; or (b) if the person is not a body corporate — 40 penalty units. (3) Subsection (1) or (2) does not apply in relation to: (a) an act done in accordance with a consent given under section 135X; or (b) if the embargo notice relates to consumer goods — an act done for the purpose of protecting or preserving the consumer goods; or (c) if the embargo notice relates to product related services — an act done for the purpose of protecting or preserving equipment used to supply the services. [page 975] Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code. (4) Strict liability applies to paragraphs (1)(b) and (2)(b). Note: For strict liability, see section 6.1 of the Criminal Code.

Subdivision F — Issue of search warrants

[14,080Z]

Issue of search warrants

135Z (1) Application for warrant An inspector may apply to a judge of the Federal Court for a warrant in relation to premises. (2) Issue of warrant The judge may issue the warrant if:

an affidavit has been given to the judge setting out the grounds on (a) which the issue of the warrant is being sought; and (b) the applicant, or some other person, has given to the judge such further information (if any) as the judge requires concerning the grounds on which the issue of the warrant is being sought; and (c) the judge is satisfied that there are reasonable grounds for issuing the warrant. (3) Content of warrant The warrant must: (a) specify the purpose for which the warrant is issued; and (b) describe the premises to which the warrant relates; and (c) state that the warrant is issued under this section; and (d) name one or more inspectors; and (e) authorise the inspector or inspectors so named: (i) to enter the premises; and (ii) to exercise search-related powers in relation to the premises; and (f) state whether the entry is authorised to be made at any time of the day or night, or during specified hours of the day or night; and (g) specify a day (which must not be more than 7 days after the day the warrant is issued) on which the warrant ceases to be in force.

[14,085]

Search warrants by telephone, fax etc

136 (1) Application for warrant An inspector may apply to a judge of the Federal Court by telephone, fax or other electronic means for a warrant under section 135Z in relation to premises if the inspector believes on reasonable grounds that the delay that would occur if an application were made in person would frustrate the effective execution of the warrant. (2) Voice communication The judge may require communication by voice to the extent that it is practicable in the circumstances. (3) Affidavit Before applying for the warrant, the inspector must prepare an affidavit of the kind mentioned in paragraph 135Z(2)(a). (4) If it is necessary to do so, the inspector may apply for the warrant before the affidavit has been sworn. (5) Signing of warrant If the judge is satisfied:

(a) after considering the terms of the affidavit; and [page 976] (b) after receiving such further information (if any) as the judge requires concerning the grounds on which the issue of the warrant is being sought; that there are reasonable grounds for issuing the warrant, the judge may complete and sign the same warrant that the judge would issue under section 135Z if the application had been made under that section. (6) Notification If the judge completes and signs the warrant, the judge must inform the inspector, by telephone, fax or other electronic means, of: (a) the terms of the warrant; and (b) the day on which and the time at which the warrant was signed. (7) Form of warrant The inspector must then complete a form of warrant in the same terms as the warrant completed and signed by the judge, stating on the form the name of the judge and the day on which and the time at which the warrant was signed. (8) Completed form of warrant to be given to judge The inspector must also, not later than the day after the day on which the warrant ceased to be in force or the day of execution of the warrant, whichever is the earlier, send to the judge: (a) the form of warrant completed by the inspector; and (b) the affidavit referred to in subsection (3), which must have been duly sworn. (9) Attachment The judge must attach to the documents provided under subsection (8) the warrant signed by the judge. (10) Authority of warrant A form of warrant duly completed under subsection (7) is authority for the same powers as are authorised by the warrant signed by the judge. (11) If: (a) it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and

(b) the warrant signed by the judge authorising the exercise of the power is not produced in evidence; the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.

[14,085A] Offence relating to warrants by telephone, fax etc 136A An inspector commits an offence if the inspector: (a) states in a document that purports to be a form of warrant under section 136 the name of a judge unless that judge signed the warrant; or (b) states on a form of warrant under that section a matter that, to the inspector’s knowledge, departs in a material particular from the terms of the warrant signed by the judge under that section; or (c) purports to execute, or presents to another person, a document that purports to be a form of warrant under that section that the inspector knows: (i) has not been approved by a judge under that section; or (ii) departs in a material particular from the terms of a warrant signed by a judge under that section; or (d) gives to a judge a form of warrant under that section that is not the form of warrant that the inspector purported to execute. Penalty: 120 penalty units or imprisonment for 2 years, or both. [page 977]

Subdivision G — Miscellaneous

[14,085B]

Powers of judges

136B (1) Powers conferred personally A power conferred on a judge by this Division is conferred on the judge: (a) in a personal capacity; and

(b) not as a court or a member of a court. (2) Powers need not be accepted The judge need not accept the power conferred. (3) Protection and immunity A judge exercising a power conferred by this Division has the same protection and immunity as if he or she were exercising the power: (a) as the court of which the judge is a member; or (b) as a member of the court of which the judge is a member. DIVISION 7 — REMEDIES

[14,090]

Limit on occupational liability

137 (1) State or Territory professional standards law limits liability A professional standards law of a State, the Australian Capital Territory or the Northern Territory applies to limit occupational liability relating to an action for a contravention of section 18 of the Australian Consumer Law in the same way as it limits occupational liability arising under a law of the State or Territory. (2) However, the professional standards law applies for that purpose: (a) only in relation to a scheme that was prescribed by the regulations at the time (the contravention time) of the contravention; and (b) as if the scheme were in force under that law at the contravention time, in the form the scheme would have been in if: (i) the scheme had not been amended or revoked under that law since the scheme was first prescribed; and (ii) any additions, omissions, substitutions and other modifications prescribed by the regulations at the contravention time had been made to the scheme. (3) Operation of choice of law rules For the purposes of working out whether a professional standards law of a particular State or Territory applies under subsection (1) in relation to a particular contravention of section 18 of the Australian Consumer Law, choice of law rules operate in relation to the contravention in the same way as they operate in relation to a tort. (4) Professional standards laws A professional standards law is a law

that provides for the limitation of occupational liability by reference to schemes for limiting that liability that were formulated and published in accordance with that law. (5) Occupational liability Occupational liability is civil liability arising directly or vicariously from anything done or omitted by a person who: (a) does or omits to do the thing in the course of his or her profession, trade or occupation; and (b) is a member of a body: [page 978] (i)

that represents the interests of persons who have the same profession, trade or occupation; and (ii) whose membership is limited principally to such persons.

[14,090A] Contributory acts or omissions to reduce compensation in defective goods actions 137A (1) If the loss or damage to which a defective goods action under section 138 or 139 of the Australian Consumer Law relates was caused by both: (a) an act or omission of: (i) the individual who suffers the injuries referred to in that section; or (ii) a person for whom that individual is responsible; and (b) a safety defect of the goods to which the action relates; the amount of the loss or damage is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to that individual’s share in the responsibility for the loss or damage. (2) If the loss or damage to which a defective goods action under section 140 or 141 of the Australian Consumer Law relates was caused by both: (a) an act or omission of: (i) the person who suffered the loss or damage; or

(ii) another person for whom that person is responsible; and (b) a safety defect of the goods to which the action relates; the amount of the loss or damage is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to the person’s share in the responsibility for the loss or damage. SECTION 137A GENERALLY [14,090A.5] Overview This provision was inserted by the Australian Consumer Law. See [14,500.5]. The provision is in similar (but not the same terms) as s 82(1B) of the Act. Section 82(1B) was inserted by the Corporate Law Economic Reform (Audit and Corporate Disclosure) Act 2004. It was repealed on the commencement of the Australian Consumer Law by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 No 103. See also [14,090B.5]. _____________________

[14,090B] Reduction of the amount of loss or damage if the claimant fails to take reasonable care 137B If: (a) a person (the claimant) makes a claim under subsection 236(1) of the Australian Consumer Law in relation to economic loss, or damage to property, suffered by the claimant because of the conduct of another person; and (b) the conduct contravened section 18 of the Australian Consumer Law; and (c) the claimant suffered the loss or damage as result: (i) partly of the claimant’s failure to take reasonable care; and (ii) partly of the conduct of the other person; and [page 979] (d) the other person did not intend to cause the loss or damage and did

not fraudulently cause the loss or damage; the amount of the loss or damage that the claimant may recover under subsection 236(1) of the Australian Consumer Law is to be reduced to the extent to which a court thinks just and equitable having regard to the claimant’s share in the responsibility for the loss or damage. SECTION 137B GENERALLY [14,090B.5] Overview This provision was inserted by the Australian Consumer Law. See [14,500.5]. The provision is in similar (but not the same terms) as s 82(1B) of the Act. Section 82(1B) was inserted by the Corporate Law Economic Reform (Audit and Corporate Disclosure) Act 2004. It was repealed on the commencement of the Australian Consumer Law by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 No 103. Prior to its repeal, s 82(1B) of the Act provided for a reduction of damages for a breach of s 52 (now ACL s 18) to the extent the court considered just and equitable having regard to the claimant’s share in the responsibility for the loss or damage: see APF Properties Pty Ltd v Kestrel Holdings Pty Ltd (No 2) [2007] FCA 1561; BC200711523 per Heerey J. See Jainran Pty Ltd v Boyana Pty Ltd [2008] NSWSC 468; BC200803479 at [142] per Bryson AJ; BMW Australia Finance Ltd v Miller & Associates Insurance Broking Pty Ltd [2009] VSCA 117; BC200904871 at [144] per Robson AJA. See Valcorp Australia Pty Ltd v Angas Securities Ltd [2012] FCAFC 22; BC201201088 per Jacobson, Siopis and Nicholas JJ. See also [11,655.22]. _____________________

[14,090C] Limits on recovery of amounts for death or personal injury 137C (1) A person is not entitled to recover an amount of loss or damage by action under subsection 236(1) of the Australian Consumer Law to the extent to which: (a) the action would be based on the conduct contravening a provision of Part 2-1 or 3-1 of the Australian Consumer Law; and

(b) the loss or damage is, or results from, death or personal injury; and (c) the death or personal injury does not result from smoking or other use of tobacco products. (2) Divisions 2 and 7 of Part VIB of this Act apply to an action under subsection 236(1) of the Australian Consumer Law for loss or damage a person suffers to the extent to which: (a) the action is based on the conduct contravening a provision of Part 2-1 or 3-1 of the Australian Consumer Law; and (b) the loss or damage is, or results from, death or personal injury; and (c) the death or personal injury results from smoking or other use of tobacco products; as if the action were a proceeding to which Part VIB of this Act applied. Note 1: Division 2 of Part VIB of this Act deals with the limitation periods that apply for claims for damages or compensation for death or personal injury and, to the extent to which that Division is applied to the action by this subsection, it overrides subsection 236(2) of the Australian Consumer Law. [page 980] Note 2: Division 7 of Part VIB of this Act deals with structured settlements for claims for damages or compensation for death or personal injury.

[14,090D] Compensation orders etc arising out of unfair contract terms 137D In determining whether to make an order under subsection 237(1) or 238(1) of the Australian Consumer Law in relation to: (a) a contravention of a provision of Part 2-2 of the Australian Consumer Law; or (b) a term of a contract that has been declared under section 250 of the Australian Consumer Law to be an unfair term; the court may have regard to the conduct of the parties to the proceeding referred to in that subsection since the contravention occurred or the

declaration was made. [s 137D am Act 147 of 2015 s 3 and Sch 1 item 19, opn 12 Nov 2016]

[14,090E] Limits on compensation orders etc for death or personal injury 137E (1) A court must not make an order under subsection 237(1) or 238(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person to the extent to which: (a) the action would be based on the conduct contravening a provision of Part 2-1 or 3-1 of the Australian Consumer Law; and (b) the loss or damage is, or results from, death or personal injury; and (c) the death or personal injury does not result from smoking or other use of tobacco products. (2) Division 2 of Part VIB of this Act applies to an application for an order under subsection 237(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person to the extent to which: (a) the action would be based on the conduct contravening a provision of Part 2-1 or 3-1 of the Australian Consumer Law; and (b) the loss or damage is, or results from, death or personal injury; and (c) the death or personal injury results from smoking or other use of tobacco products; as if the proceeding in relation to the application were a proceeding to which Part VIB of this Act applies and as if the making of the application were the commencement of the proceeding. Note: Division 2 of Part VIB of this Act deals with the limitation periods that apply for claims for damages or compensation for death or personal injury and, to the extent to which that Division is applied to the application by this subsection, it overrides subsection 237(3) of the Australian Consumer Law. (3) Division 7 of Part VIB of this Act applies to a proceeding in which an order under subsection 237(1) or 238(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the

conduct of another person is made, to the extent to which: [page 981] (a) the action would be based on the conduct contravening a provision of Part 2-1 or Part 3-1 of the Australian Consumer Law; and (b) the loss or damage is, or results from, death or personal injury; and (c) the death or personal injury results from smoking or other use of tobacco products; as if the proceeding were a proceeding to which Part VIB of this Act applied. Note: Division 7 of Part VIB of this Act deals with structured settlements for claims for damages or compensation for death or personal injury.

[14,090F] Court may make orders for the purpose of preserving money or other property held by a person 137F (1) A court may, on the application of the Commonwealth Minister or the Commission, make an order or orders mentioned in subsection (3) if: (a) proceedings of a kind referred to in subsection (2) have been taken against a person, or proceedings of a kind referred to in paragraph (2)(d) may be taken against a person; and (b) the court is satisfied that it is necessary or desirable to make the order or orders for the purpose of preserving money or other property held by, or on behalf of, the person if the person is liable, or may become liable, under the Australian Consumer Law: (i) to pay money by way of a fine, damages, compensation, refund or otherwise; or (ii) to transfer, sell or refund other property; and (c) the court is satisfied that the making of such an order or orders will not unduly prejudice the rights and interests of any other person. (2) Kinds of proceedings taken against the person For the purposes of

paragraph (1)(a), the kinds of proceedings taken against the person are: (a) proceedings against the person for an offence against a provision of Chapter 4 of the Australian Consumer Law; or (b) an application under section 232 of the Australian Consumer Law for an injunction against the person in relation to: (i) a contravention of a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or (ii) a term of a contract in relation to which a declaration under section 250 of the Australian Consumer Law has been made; or (c) an action under subsection 236(1) of the Australian Consumer Law against the person in relation to a contravention of a provision of Part 2-1 or Chapter 3 of the Australian Consumer Law; or (d) an application for an order under subsection 237(1) or 239(1) of the Australian Consumer Law against a person in relation to: (i) a contravention of a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or (ii) a term of a contract in relation to which a declaration under section 250 of the Australian Consumer Law has been made. [subs (2) am Act 147 of 2015 s 3 and Sch 1 item 20, opn 12 Nov 2016]

[page 982] (3) Kinds of orders that may be made The court may make the following orders under subsection (1) of this section in a relation to money or other property held by, or on behalf of, a person (the respondent): (a) an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the respondent, or to an associate of the respondent, from making a payment, in total or partial discharge of the debt: (i) to the respondent; or (ii) to another person at the direction or request of the respondent;

an order prohibiting, either absolutely or subject to conditions, a (b) person who is holding money or other property on behalf of the respondent, or on behalf of an associate of the respondent: (i) from paying all or any of the money to the respondent, or to another person at the direction or request of the respondent; or (ii) from transferring the other property to the respondent, or to another person at the direction or request of the respondent, or otherwise parting with possession of that property; (c) an order prohibiting, either absolutely or subject to conditions, the taking or sending by any person of money of the respondent, or of an associate of the respondent, to a place outside the State or Territory in which the money is held; (d) an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by any person of other property of the respondent, or of an associate of the respondent, to a place outside the State or Territory in which that property is located; (e) if the respondent is a natural person — an order appointing a receiver or trustee of the property, or of part of the property, of the respondent with such powers as are specified in the order. (4) Operation of order If the court makes such an order, the order operates: (a) for the period specified in the order (which must not be longer than 30 days if the application for the order was an ex parte application); or (b) if proceedings in relation to which the order is made are concluded before the end of that period—until the conclusion of those proceedings. (5) Other This section: (a) has effect subject to the Bankruptcy Act 1966; and (b) does not affect any other powers of the court.

[14,090G] Compliance with orders made under section 137F

137G (1) A person commits an offence if: (a) an order made under section 137F applies to the person; and (b) the person contravenes, or refuses or fails to comply with, the order. Penalty: (a) if the person is a body corporate — 900 penalty units; or (b) if the person is not a body corporate — 180 penalty units. (2) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [page 983]

[14,090H]

Finding in proceedings to be evidence

137H (1) In an action against a person under subsection 236(1) of the Australian Consumer Law: (a) a finding of a fact by a court to which subsection (3) of this section applies is prima facie evidence of that fact; and (b) the finding may be proved by production of a document under the seal of the court from which the finding appears. (2) In proceedings for an order against a person under subsection 237(1) or 239(1) of the Australian Consumer Law: (a) a finding of a fact by a court to which subsection (3) of this section applies is prima facie evidence of that fact; and (b) the finding may be proved by production of a document under the seal of the court from which the finding appears. (3) This subsection applies to a finding of a fact by a court that is made in proceedings under section 228, 232, 246, 247 or 248 of the Australian Consumer Law, or for an offence against a provision of Chapter 4 of the Australian Consumer Law, in which the person has been found: (a) to have contravened a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or (b) to have attempted to contravene such a provision; or (c) to have aided, abetted, counselled or procured a person to

contravene such a provision; or (d) to have induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or (e) to have been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) to have conspired with others to contravene such a provision. DIVISION 8 — JURISDICTIONAL MATTERS

[14,095] Court

Conferring jurisdiction on the Federal

138 (1) Jurisdiction is conferred on the Federal Court in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding has been instituted under this Part or the Australian Consumer Law. (2) The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than: (a) the jurisdiction of the Federal Circuit Court under section 138A; and (b) the jurisdiction of the several courts of the States and Territories under section 138B; and (c) the jurisdiction of the High Court under section 75 of the Constitution. [subs (2) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

[14,095A] Conferring jurisdiction on the Federal Circuit Court 138A Circuit

(1) Subject to this section, jurisdiction is conferred on the Federal

[page 984]

Court in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than the Commonwealth Minister. [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

(2) If proceedings under Part 3-5, or section 236, of the Australian Consumer Law are instituted in, or transferred to, the Federal Circuit Court, the Federal Circuit Court does not have jurisdiction to award an amount for loss or damage that exceeds: (a) $750,000; or (b) if another amount is specified in the regulations — that other amount. Note: For transfers from the Federal Court to the Federal Circuit Court: see section 32AB of the Federal Court of Australia Act 1976. [s 138A am Act 13 of 2013 s 3 and Sch 1 item 90, Sch 2 item 1, opn 12 Apr 2013]

[14,095B] Conferring jurisdiction on State and Territory Courts 138B (1) Jurisdiction is conferred on the several courts of the States and Territories in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than the Commonwealth Minister or the Commission. (2) However, subsection (1) does not apply in relation to a matter arising under: (a) Division 3 of Part 3-1 of the Australian Consumer Law; or (b) Part 3-5 of the Australian Consumer Law. (3) The jurisdiction conferred by subsection (1) on the several courts of the States is conferred within the limits of their several jurisdictions, whether those limits are as to locality, subject matter or otherwise. (4) The jurisdiction conferred by subsection (1) on the several courts of the Territories is conferred to the extent that the Constitution permits. (5) This section is not to be taken to enable an inferior court of a State or a Territory to grant a remedy other than a remedy of a kind that the court is able to grant under the law of that State or Territory.

SECTION 138B GENERALLY [14,095B.5] Overview The provision confers jurisdiction on the courts of the states and territories under this Part and the Australian Consumer Law where a civil proceeding is instituted by a person, other than the Commonwealth Minister or the Commission. Reform The Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 would have the effect of repealing s 138B(2), and other provisions in this Part to correct an error in the drafting of the Act regarding the jurisdiction of state and territory courts. Specifically, the amendment extends jurisdiction to state and territory courts to hear cases relating to pyramid selling (Div 3 of Pt 3-1 of the ACL) and manufacturer’s liability for goods with safety defects (Pt 3-5 of the ACL). On 25 March 2015, the Selection of Bills Committee referred the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 to the Economics Legislation Committee for inquiry and report. In its May 2015 report, the Committee recommended that the Bill be passed. _____________________ [page 985]

[14,095C] Court

Transfer of matters by the Federal

138C (1) Subject to subsections (2) and (3), if: (a) a civil proceeding instituted by a person (other than the Commonwealth Minister or the Commission) is pending in the Federal Court; and (b) a matter for determination in the proceeding arises under this Part or the Australian Consumer Law; the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the matter, and any other matter for determination in

the proceeding, to a court of a State or a Territory. (2) The Federal Court must not transfer a matter to another court under subsection (1) unless: (a) the other court has power to grant the remedies sought before the Federal Court in the matter; and (b) it appears to the Federal Court that: (i) the matter arises out of, or is related to, a proceeding that is pending in the other court; or (ii) it is otherwise in the interests of justice that the matter be determined by the other court. (3) Subsection (1) does not apply in relation to a matter arising under: (a) Division 3 of Part 3-1 of the Australian Consumer Law; or (b) Part 3-5 of the Australian Consumer Law. (4) If the Federal Court transfers a matter to another court under subsection (1): (a) further proceedings in the matter must be as directed by the other court; and (b) the judgment of the other court in the matter is enforceable throughout Australia and the external Territories as if it were a judgment of the Federal Court. SECTION 138C GENERALLY [14,095C.5] Overview The provision permits a civil proceeding in the Federal Court by a person (other than the Commonwealth Minister or the Commission) to be transferred to a court of a state or territory. Reform The Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 would have the effect of amending s 138C(1) and repealing s 138C(3), and other provisions in this Part to correct an error in the drafting of the Act regarding the jurisdiction of state and territory courts. Specifically, the amendment extends jurisdiction to state and territory courts to hear cases relating to pyramid selling (Div 3 of Pt 3-1 of the ACL) and manufacturer’s liability for goods with safety defects (Pt 3-5 of the ACL). On 25 March 2015, the Selection of Bills Committee referred the

Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 to the Economics Legislation Committee for inquiry and report. In its May 2015 report, the Committee recommended that the Bill be passed. _____________________ [page 986]

[14,095D] Transfer of matters by a State or Territory court 138D (1) This section applies if: (a) a proceeding is pending in a court (other than the Supreme Court) of a State or a Territory; and (b) a matter for determination in the proceeding arises under this Part or the Australian Consumer Law, other than under: (i) Division 3 of Part 3-1 of the Australian Consumer Law; or (ii) Part 3-5 of the Australian Consumer Law; or (iii) Chapter 4 of the Australian Consumer Law. (2) The court must, if directed to do so by the Federal Court, transfer to the Federal Court: (a) the matter; and (b) such other matters for determination in the proceeding, the determination of which would (apart from any law of a State or of the Northern Territory relating to cross-vesting of jurisdiction) be within the jurisdiction of the Federal Court, as the Federal Court determines. (3) Subject to subsection (4), the court may, on the application of a party to the proceeding or of its own motion, transfer the matter to a court (other than the Supreme Court) of another State or Territory. (4) The court (the first court) must not transfer a matter to another court under subsection (3) unless: (a) the other court has power to grant the remedies sought before the

first court in the matter; and (b) it appears to the first court that: (i) the matter arises out of, or is related to, a proceeding that is pending in the other court; or (ii) it is otherwise in the interests of justice that the matter be determined by the other court. (5) If the court transfers a matter to another court under subsection (3), further proceedings in the matter must be as directed by the other court. SECTION 138D GENERALLY [14,095D.5] Overview The provision provides that if directed by the Federal Court, proceeding in a state or territory court under this Part or the Australian Consumer Law must be transferred by the state or territory court to the Federal Court. Reform The Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 would have the effect of amending s 138D(1)(b) and other provisions in this Part to correct an error in the drafting of the Act regarding the jurisdiction of state and territory courts. Specifically, the amendment extends jurisdiction to state and territory courts to hear cases relating to pyramid selling (Div 3 of Pt 3-1 of the ACL) and manufacturer’s liability for goods with safety defects (Pt 3-5 of the ACL). On 25 March 2015, the Selection of Bills Committee referred the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 to the Economics Legislation Committee for inquiry and report. In its May 2015 report, the Committee recommended that the Bill be passed. _____________________ [page 987]

[14,095E] Court

Transfer of proceedings to Family

138E (1) If: (a) a civil proceeding is pending in the Federal Court; and (b) a matter for determination in the proceeding arises under this Part or the Australian Consumer Law, other than under: (i) Division 3 of Part 3-1 of the Australian Consumer Law; or (ii) Part 3-5 of the Australian Consumer Law; the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the proceeding to the Family Court. (2) Subject to subsection (3), if a proceeding is transferred to the Family Court under subsection (1): (a) the Family Court has jurisdiction to hear and determine the proceeding; and (b) the Family Court also has jurisdiction to hear and determine matters not otherwise within its jurisdiction (whether because of paragraph (a) or otherwise): (i) that are associated with matters arising in the proceeding; or (ii) that, apart from subsection 32(1) of the Federal Court of Australia Act 1976, the Federal Court would have had jurisdiction to hear and determine in the proceeding; and (c) the Family Court may, in and in relation to the proceeding: (i) grant such remedies; and (ii) make orders of such kinds; and (iii) issue, and direct the issue of, writs of such kinds; as the Federal Court could have granted, made, issued or directed the issue of, in and in relation to the proceeding; and (d) remedies, orders and writs granted, made or issued by the Family Court in and in relation to the proceeding have effect, and may be enforced by the Family Court, as if they had been granted, made or issued by the Federal Court; and (e) appeals lie from judgments of the Family Court given in and in relation to the proceeding as if the judgments were judgments of the Federal Court constituted by a single Judge of that Court, and do not otherwise lie; and (f) subject to paragraphs (a) to (e) of this subsection, this Act, the

regulations, the Federal Court of Australia Act 1976, the Rules of Court made under that Act, and other laws of the Commonwealth, apply in and in relation to the proceeding as if: (i) a reference to the Federal Court (other than in the expression the Court or a Judge) included a reference to the Family Court; and (ii) a reference to a Judge of the Federal Court (other than in the expression the Court or a Judge) included a reference to a Family Court Judge; and (iii) a reference to the expression the Court or a Judge when used in relation to the Federal Court included a reference to a Family Court Judge sitting in Chambers; and (iv) a reference to a Registrar of the Federal Court included a reference to a Registrar of the Family Court; and (v) any other necessary changes were made. [page 988] (3) If any difficulty arises in the application of paragraphs (2)(c), (d) and (f) in or in relation to a particular proceeding, the Family Court may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty. (4) An appeal does not lie from a decision of the Federal Court in relation to the transfer of a proceeding under this Act to the Family Court. SECTION 138E GENERALLY [14,095E.5] Overview The provision permits a civil proceeding in the Federal Court by a person (other than the Commonwealth Minister or the Commission) to be transferred to the Family Court. Reform The Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 would have the effect of amending s 138E(1)(b) and other provisions in this Part to correct an error in the drafting of the Act

regarding the jurisdiction of state and territory courts. Specifically, the amendment extends jurisdiction to state and territory courts to hear cases relating to pyramid selling (Divi 3 of Pt 3-1 of the ACL) and manufacturer’s liability for goods with safety defects (Pt 3-5 of the ACL). On 25 March 2015, the Selection of Bills Committee referred the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 to the Economics Legislation Committee for inquiry and report. In its May 2015 report, the Committee recommended that the Bill be passed. _____________________ DIVISION 9 — MISCELLANEOUS

[14,100]

Intervention by the Commission

139 (1) The Commission may, with the leave of a court and subject to any conditions imposed by the court, intervene in any proceeding instituted under this Part or the Australian Consumer Law. (2) If the Commission intervenes in a proceeding, the Commission is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.

[14,100A] Terms excluding consumer guarantees from supplies of recreational services 139A (1) A term of a contract for the supply of recreational services to a consumer by a person is not void under section 64 of the Australian Consumer Law only because the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying: (a) the application of all or any of the provisions of Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law; or (b) the exercise of a right conferred by such a provision; or (c) any liability of the person for a failure to comply with a guarantee that applies under that Subdivision to the supply. (2) Recreational services are services that consist of participation in:

(a) a sporting activity or a similar leisure time pursuit; or (b) any other activity that: [page 989] (i)

involves a significant degree of physical exertion or physical risk; and (ii) is undertaken for the purposes of recreation, enjoyment or leisure. (3) This section does not apply unless the exclusion, restriction or modification is limited to liability for: (a) death; or (b) a physical or mental injury of an individual (including the aggravation, acceleration or recurrence of such an injury of the individual); or (c) the contraction, aggravation or acceleration of a disease of an individual; or (d) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual: (i) that is or may be harmful or disadvantageous to the individual or community; or (ii) that may result in harm or disadvantage to the individual or community. (4) This section does not apply if the exclusion, restriction or modification would apply to significant personal injury suffered by a person that is caused by the reckless conduct of the supplier of the recreational services. (5) The supplier’s conduct is reckless conduct if the supplier: (a) is aware, or should reasonably have been aware, of a significant risk that the conduct could result in personal injury to another person; and (b) engages in the conduct despite the risk and without adequate justification.

[14,100B] Conduct of directors, employees or agents of bodies corporate 139B (1) If, in a proceeding under this Part or the Australian Consumer Law in respect of conduct that is engaged in by a body corporate and to which this Part or the Australian Consumer Law applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show: (a) that a director, employee or agent of the body corporate engaged in that conduct within the scope of the actual or apparent authority of the director, employee or agent; and (b) that the director, employee or agent had that state of mind. (2) Any conduct engaged in on behalf of a body corporate: (a) by a director, employee or agent of the body corporate within the scope of the actual or apparent authority of the director, employee or agent; or (b) by any other person: (i) at the direction of a director, employee or agent of the body corporate; or (ii) with the consent or agreement (whether express or implied) of such a director, employee or agent; if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent; is taken, for the purposes of this Part or the Australian Consumer Law, to have been engaged in also by the body corporate. [page 990]

[14,100C] Conduct of employees or agents of persons other than bodies corporate 139C (1) If, in a proceeding under this Part or the Australian Consumer Law in respect of conduct that is engaged in by a person (the principal) other than a body corporate and to which this Part or the Australian

Consumer Law applies, it is necessary to establish the state of mind of the principal, it is sufficient to show: (a) that an employee or agent of the principal engaged in that conduct within the scope of the actual or apparent authority of the employee or agent; and (b) the employee or agent had that state of mind. [subs (1) am Act 136 of 2012 s 3 and Sch 1 item 31, opn 22 Sep 2012]

(2) Any conduct engaged in on behalf of a person (the principal) other than a body corporate: (a) by an employee or agent of the principal within the scope of the actual or apparent authority of the employee or agent; or (b) by any other person: (i) at the direction of an employee or agent of the principal; or (ii) with the consent or agreement (whether express or implied) of such an employee or agent; if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent; is taken, for the purposes of this Part or the Australian Consumer Law, to have been engaged in also by the principal. (3) If: (a) a person other than a body corporate is convicted of an offence; and (b) subsection (1) or (2) applied in relation to the conviction on the basis that the person was the principal mentioned in that subsection; and (c) the person would not have been convicted of the offence if that subsection had not been enacted; the person is not liable to be punished by imprisonment for that offence.

[14,100D] fines

Enforcement and recovery of certain

139D (1) If a person defaults in paying a fine that has been imposed on the person for an offence against a provision of Chapter 4 of the Australian Consumer Law or section 137G of this Act, a court may:

(a) exercise any power that the court has apart from this section in relation to the enforcement and recovery of the fine; or (b) make an order (the enforcement order), on the application of the Commonwealth Minister or the Commission, declaring that the fine is to have effect, and may be enforced, as if it were a judgment debt under a judgment of the court. (2) If: (a) the court makes an enforcement order; and (b) the person gives security for the payment of the fine; the court must cancel the enforcement order. [page 991] (3) If the court makes an enforcement order, the court may, at any time before the enforcement order is executed: (a) allow the person a specified time in which to pay the fine; or (b) allow the person to pay the fine by specified instalments. (4) If the court allows the person a specified time in which to pay the fine: (a) the enforcement order must not be executed unless the person fails to pay the fine within that time; and (b) if the person pays the fine within that time — the enforcement order is taken to have been discharged. (5) If the court allows the person to pay the fine by specified instalments: (a) the enforcement order must not be executed unless the person fails to pay such an instalment at or before the time when it becomes payable; and (b) if the person pays all those instalments — the enforcement order is taken to have been discharged. (6) The term of a sentence of imprisonment imposed by an order under a law of a State or a Territory applied by section 15A of the Crimes Act 1914 (including an order described in subsection 15A(1AA) of that Act) in respect of a fine is to be calculated at the rate of one day’s imprisonment for each $25 of the amount of the fine that is from time to time unpaid.

[14,100DA] Application of section 229 of the Australian Consumer Law to a person other than a body corporate 139DA If, as a result of the operation of Part 2.4 of the Criminal Code, a person other than a body corporate is: (a) convicted of an offence (the relevant offence) against subsection 229(1) of the Australian Consumer Law; or (b) convicted of an offence (the relevant offence) against section 11.4 of the Criminal Code in relation to an offence referred to in subsection 229(1) of the Australian Consumer Law; the relevant offence is taken to be punishable on conviction by a fine not exceeding $550.

[14,100E]

Cessation of enforcement orders etc

139E (1) Subject to this section, an enforcement order in relation to a fine ceases to have effect: (a) on payment of the fine; or (b) if the fine is not paid — on full compliance with the enforcement order. (2) Subject to this section, if a person is required under one or more enforcement orders to serve periods of imprisonment, those periods must be served consecutively. (3) If: (a) a person would, but for this subsection, be required under one or more enforcement orders that relate to 3 or more fines to serve periods of imprisonment that in aggregate are longer than 3 years; and (b) those fines were imposed (whether or not in the same proceedings) for offences constituted by contraventions: [page 992]

(i) that occurred within a period of 2 years; and (ii) that appear to a court to have been of the same nature or of a substantially similar nature; the court must, by order, declare that the enforcement order or orders cease to have effect in respect of those fines after the person has served an aggregate of 3 years’ imprisonment. (4) If subsection (3) would, but for this subsection, apply to a person with respect to offences committed by the person within 2 or more overlapping periods of 2 years, the court must make an order under that subsection in relation to only one of those periods. (5) The order under subsection (4) must relate to the period which would give the person the maximum benefit under subsection (3). (6) For the purposes of subsection (4), the court may vary or revoke an order made under subsection (3).

[14,100F] property

Compensation for acquisition of

139F (1) If the operation of this Part (including Schedule 2 as applied by this Part) would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person. (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines. (3) In this section: acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

[14,100G]

Regulations

139G (1) The Governor-General may make regulations prescribing matters: (a) required or permitted by Schedule 2 to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to that Schedule. (2) Before the Governor-General makes a regulation for the purposes of paragraph 25(n) of Schedule 2 prescribing a kind of term of a contract, or a kind of effect that such a term has, the Commonwealth Minister must take into consideration: (a) the detriment that a term of that kind would cause to consumers; and (aa) the detriment that a term of that kind would cause to businesses employing fewer than 20 persons; and (b) the impact on business generally of prescribing that kind of term or effect; and (c) the public interest. [subs (2) am Act 147 of 2015 s 3 and Sch 1 items 21, 22, opn 12 Nov 2016]

(2A) Before the Governor-General makes a regulation prescribing a law for the purposes of subsection 28(4) of Schedule 2: [page 993] (a) the Commonwealth Minister must be satisfied that the law provides enforceable protections for businesses employing fewer than 20 persons that are equivalent to the protections provided by Part 2-3, together with Parts 5-1 and 5-2, of Schedule 2; and (b) the Commonwealth Minister must take into consideration: (i) any detriment to businesses of that kind resulting from prescribing the law; and (ii) the impact on business generally resulting from prescribing the law; and (iii) the public interest. [subs (2A) insrt Act 147 of 2015 s 3 and Sch 1 item 23, opn 12 Nov 2016]

(3) Before the Governor-General makes a regulation under subsection (1)

for the purposes of paragraph 65(1)(a) of Schedule 2 in relation to supplies of a particular kind, the Commonwealth Minister must be satisfied that: (a) the laws of the Commonwealth; and/or (b) the laws of the States and Territories; adequately provide for consumer rights in relation to supplies of that kind. (4) The regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of Schedule 2 or of specified provisions of Schedule 2: (a) conduct engaged in by a specified organisation or body that performs functions in relation to the marketing of primary products; or (b) any of the following: (i) a specified contract or proposed contract made; (ii) contracts included in a specified class of contracts made; (iii) specified conduct entered into; pursuant to or for the purposes of a specified agreement, arrangement or understanding between the Government of Australia and the Government of a foreign country; or (c) prescribed conduct engaged in in the course of a business carried on by the Commonwealth or by a prescribed authority of the Commonwealth. (5) Strict compliance with a form of application or notice prescribed for the purposes of Schedule 2 is not, and is taken never to have been, required and substantial compliance is, and is taken always to have been, sufficient.

[page 995] PART XIAA — APPLICATION OF THE AUSTRALIAN CONSUMER LAW AS A LAW OF A STATE OR TERRITORY [Pt XIAA insrt Act 103 of 2010 s 3 and Sch 2[1], opn 1 Jan 2011]

_____________________

[14,120]

Definitions

140 In this Part: application law means: (a) a law of a participating jurisdiction that applies the applied Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or (b) any regulations or other legislative instrument made under a law described in paragraph (a); or (c) the applied Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications. applied Australian Consumer Law means (according to the context): (a) the text described in section 140B; or (b) that text, applying as a law of a participating jurisdiction, either with or without modifications. apply, in relation to the applied Australian Consumer Law, means apply the applied Australian Consumer Law by reference: (a) as in force from time to time; or (b) as in force at a particular time. Commonwealth entity means: (a) an authority of the Commonwealth; or (b) an officer of the Commonwealth. imposes a duty has the meaning given by section 140G. modifications includes additions, omissions and substitutions.

officer, in relation to the Commonwealth, includes the following: (a) a Minister; (b) a person who holds: (i) an office established by or under an Act; or (ii) an appointment made under an Act; or (iii) an appointment made by the Governor-General or a Minister but not under an Act; (c) a person who is a member or officer of an authority of the Commonwealth; (d) a person who is: (i) in the service or employment of the Commonwealth, or of an authority of the Commonwealth; or (ii) employed or engaged under an Act. participating jurisdiction means a participating State or participating Territory. [page 996] participating State means a State that is a party to the Intergovernmental Agreement for the Australian Consumer Law and applies the applied Australian Consumer Law as a law of the State, either with or without modifications. participating Territory means a Territory that is a party to the Intergovernmental Agreement for the Australian Consumer Law and applies the applied Australian Consumer Law as a law of the Territory, either with or without modifications. Territory means the Australian Capital Territory or the Northern Territory.

[14,120A]

Object of this Part

140A The object of this Part is to facilitate the application of the Australian Consumer Law by participating States and participating Territories.

[14,120B]

The applied Australian Consumer Law

140B The applied Australian Consumer Law consists of: (a) Schedule 2; and (b) the regulations made under section 139G of this Act.

[14,120C] Federal Court may exercise jurisdiction under application laws of Territories 140C The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the applied Australian Consumer Law.

[14,120D] Exercise of jurisdiction under crossvesting provisions 140D This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross-vesting of jurisdiction.

[14,120E] Commonwealth consent to conferral of functions etc on Commonwealth entities 140E (1) An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the applied Australian Consumer Law. Note: Section 140G sets out when such a law imposes a duty on a Commonwealth entity. (2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which: (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or (b) the authorisation would otherwise exceed the legislative power of the Commonwealth.

(3) The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned. [page 997]

[14,120F]

How duty is imposed

140F (1) Application This section applies if an application law purports to impose a duty on a Commonwealth entity. Note: Section 140G sets out when such a law imposes a duty on a Commonwealth entity. (2) State or Territory legislative power sufficient to support duty The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which: (a) imposing the duty is within the legislative powers of the State or Territory concerned; and (b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity. Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 140E to the imposition of the duty by that law). (3) Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity. (4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act. (5) The duty is taken to be imposed by this Act in accordance with

subsection (3) only to the extent to which imposing the duty: (a) is within the legislative powers of the Commonwealth; and (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity. (6) Subsections (1) to (5) do not limit section 140E.

[14,120G] duty

When an application law imposes a

140G For the purposes of this Part, an application law imposes a duty on a Commonwealth entity if: (a) the law confers a function or power on the entity; and (b) the circumstances in which the function or power is conferred give rise to an obligation on the entity to perform the function or to exercise the power.

[14,120H] Application laws may operate concurrently with this Act 140H This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.

[14,120J]

No doubling-up of liabilities

140J (1) If: (a) an act or omission is an offence against this Act and is also an offence against an application law; and [page 998] (b) the offender has been punished for the offence under the application law;

the offender is not liable to be punished for the offence against this Act. (2) If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.

[14,120K] References in instruments to the Australian Consumer Law 140K (1) A reference in any instrument to the Australian Consumer Law is a reference to: (a) the Australian Consumer Law as applied under Division 2 of Part XI; and (b) the applied Australian Consumer Laws of any or all of the participating jurisdictions. (2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.

[page 999] PART XIA — THE COMPETITION CODE [Pt XIA insrt Act 88 of 1995 s 26] INTRODUCTION TO PART XIA [14,140.1] Overview The Commonwealth relies extensively on the corporations power and the trade and commerce power in the Constitution to support the Act, particularly Pt IV. However, a number of entities that are unincorporated, for example the professions, are beyond the Act’s reach. In August 1996 a committee chaired by Professor Frederick Hilmer delivered its report on its review into national competition policy, Report of the Independent Committee of Inquiry: National Competition Policy. The Hilmer Committee recognised the Commonwealth’s constitutional limitations in its support for the universal application of the Act. It recommended that: The exemptions from the general conduct rule [Part IV Trade Practices Act] for certain nonincorporated businesses be removed by a referral of powers from the States to the Commonwealth. If this could not be agreed, the Committee would favour States enacting application legislation to the same effect. . . (Recommendation 15.2). Under the Conduct Code Agreement signed in 1995, the Commonwealth, states and territories agreed that Pt IV of the Act (and ancillary provisions) should apply in the states and territories by way of application legislation to all persons (cl 5(1)). See [17,905]. This would be achieved by relying on the wider constitutional powers available to the states and territories, in particular to have their laws apply to all persons, not just corporations. In this way Pt IV of the Act will have universal application, irrespective of the business structure employed. To achieve the universal application, the Commonwealth enacted a Schedule version of Pt IV: see [14,400]. This Schedule mirrors Pt IV except that references to a “corporation” are replaced with references to a “person”. The Schedule version of the Act has been applied by all states and territories: see [14,146.5]. As applied, this Schedule version is known as the Competition Code. The Competition Codes therefore overcome the limitations of Pt IV that are the product of the Commonwealth’s limited constitutional power. The Schedule version of the Act was amended by the passage of the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. That Act introduced parallel criminal offence provisions and civil liability provisions for making or giving effect to a cartel provision. See [10,690ZZRA.5].

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[14,140] 150A

Definitions

In this Part, unless the contrary intention appears:

application law means: (a) a law of a participating jurisdiction that applies the Competition Code, either with or without modifications, as a law of the participating jurisdiction; or (b) any regulations or other legislative instrument made under a law described in paragraph (a); or (c) the Competition Code, applying as a law of the participating jurisdiction, either with or without modifications. apply, in relation to the Competition Code, means apply the Competition Code by reference: [page 1000] (a) as in force from time to time; or (b) as in force at a particular time. Commonwealth entity means: (a) an authority of the Commonwealth; or (b) an officer of the Commonwealth. [def insrt Act 131 of 2006 s 3 and Sch 11[1], opn 6 Nov 2006]

Competition Code means (according to the context): (a) the text described in section 150C; or (b) that text, applying as a law of a participating jurisdiction, either with or without modifications. modifications includes additions, omissions and substitutions. officer, in relation to the Commonwealth, includes the following: (a) a Minister; (b) a person who holds: (i) an office established by or under an Act; (ii) an appointment made under an Act; (iii) an appointment made by the Governor-General or a Minister but not under an Act; (c) a person who is a member or officer of an authority of the Commonwealth;

a person who is in the service or employment of the Commonwealth, or of an authority of the Commonwealth, or is employed or engaged under an Act. participating jurisdiction means a participating State or Territory. participating State means a State that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the State, either with or without modifications. participating Territory means a Territory that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the Territory, either with or without modifications. Schedule version of Part IV means the text that is set out in Part 1 of Schedule 1 to this Act. (d)

[def am Act 61 of 1999 s 3 and Sch 1; Act 44 of 2010 s 3 and Sch 4[4], opn 1 July 2010]

Territory means the Australian Capital Territory or the Northern Territory.

[14,143]

Objects of this Part

150B The objects of this Part are: (a) to facilitate the application of the Competition Code by participating Territories; and (b) to facilitate the application of the Competition Code by participating States.

[14,146]

The Competition Code

150C (1) The Competition Code consists of: (a) the Schedule version of Part IV; [page 1001] (b) the remaining provisions of this Act (except sections 2A, 5, 6 and 172), so far as they would relate to the Schedule version if the

Schedule version were substituted for Part IV; (c) the regulations under this Act, so far as they relate to any provision covered by paragraph (a) or (b). (2) For the purpose of forming part of the Competition Code, the provisions referred to in paragraphs (1)(b) and (c) are to be modified as necessary to fit in with the Schedule version of Part IV. In particular, references to corporations are to include references to persons who are not corporations. SECTION 150C GENERALLY [14,146.5] Overview As indicated, each state and territory has passed application legislation to give effect to the Competition Code: • Competition Policy Reform (ACT) Act 1996; • Competition Policy Reform (Northern Territory) Act 1996; • Competition Policy Reform (New South Wales) Act 1995; • Competition Policy Reform (Queensland) Act 1996; • Competition Policy Reform (South Australia) Act 1996; • Competition Policy Reform (Tasmania) Act 1996; • Competition Policy Reform (Victoria) Act 1995. The Competition Policy Reform (New South Wales) Act 1995 (which is a typical example of the application law) is reproduced in this work at [18,500] et seq. The Competition Code will apply to any person or entity in each participating state and territory: Australian Competition and Consumer Commission v Ranu Pty Ltd [2007] FCA 1777; BC200710651 at [3] per Heerey J. See Australian Competition and Consumer Commission v Kokos International Pty Ltd (No 2) (2008) ATPR ¶42-212; [2008] FCA 5; BC200800032 per French J; Australian Competition and Consumer Commission v Dally M Publishing and Research Pty Ltd (2007) ATPR ¶42176; [2007] FCA 1220; BC2000706518 per Finkelstein J. _____________________

[14,149] Federal Court may exercise jurisdiction under application laws of Territories

150D The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the Competition Code. [s 150D am Act 57 of 2000 s 3 and Sch 1]

[14,152] Exercise of jurisdiction under crossvesting provisions 150E This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross-vesting of jurisdiction.

[14,155] Commonwealth consent to conferral of functions etc on Commonwealth entities 150F (1) An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the Competition Code. Note: Section 150FB sets out when such a law imposes a duty on a Commonwealth entity. [page 1002] (2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which: (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or (b) the authorisation would otherwise exceed the legislative power of the Commonwealth. (3) The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or

Territory concerned. [s 150F subst Act 131 of 2006 s 3 and Sch 11[2], opn 6 Nov 2006] SECTION 150F GENERALLY [14,155.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. The purpose of the provision is to authorise the conferral of functions, to the extent that it does not exceed the legislative competence of the Commonwealth. The section was required in response to the decision of the High Court in R v Hughes (2000) 202 CLR 535; 171 ALR 155; [2000] HCA 22; BC200002055. _____________________

[14,155FA]

How duty is imposed

150FA (1) Application This section applies if an application law purports to impose a duty on a Commonwealth entity. Note: Section 150FB sets out when such a law imposes a duty on a Commonwealth entity. (2) State or Territory legislative power sufficient to support duty The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which: (a) imposing the duty is within the legislative powers of the State or Territory concerned; and (b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity. Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 150F to the imposition of the duty by that law). (3) Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

(4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act. (5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty: (a) is within the legislative powers of the Commonwealth; and [page 1003] (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity. (6) Subsections (1) to (5) do not limit section 150F. [s 150FA insrt Act 131 of 2006 s 3 and Sch 11[2], opn 6 Nov 2006]

SECTION 150FA GENERALLY [14,155A.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006. See [14,155.5]. _____________________

[14,155FB] duty

When an application law imposes a

150FB For the purposes of sections 150F and 150FA, an application law imposes a duty on a Commonwealth entity if: (a) the law confers a function or power on the entity; and (b) the circumstances in which the function or power is conferred give rise to an obligation on the entity to perform the function or to exercise the power. [s 150FB insrt Act 131 of 2006 s 3 and Sch 11[2], opn 6 Nov 2006]

SECTION 150FB GENERALLY [14,155B.5] Overview

This section was inserted by the Trade Practices

Amendment Act (No 1) 2006. See [14,155.5]. _____________________

[14,158] Application laws may operate concurrently with this Act 150G This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act. SECTION 150G GENERALLY [14,158.5] Overview The section provides that the existence of Pt IV is not intended to exclude the operation of state application laws. However, in the case of any direct inconsistency the Act will prevail to the extent of the inconsistency. See [11,475.5].

[14,161]

No doubling-up of liabilities

150H (1) If: (a) an act or omission is an offence against this Act and is also an offence against an application law; and (b) the offender has been punished for the offence under the application law; the offender is not liable to be punished for the offence against this Act. (2) If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct. [page 1004]

[14,164] References in instruments to the Competition Code

150I (1) A reference in any instrument to the Competition Code is a reference to the Competition Codes of any or all of the participating jurisdictions. (2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.

[14,167] Authorisations etc under this Act may relate also to Competition Code 150J The validity of an authorisation, notification, clearance or any other thing given or done for the purposes of this Act is not affected only because it was given or done also for the purposes of the Competition Code. [s 150J insrt Act 131 of 2006 s 3 and Sch 1[37], opn 1 Jan 2007]

[14,170] Gazettal of jurisdictions that excessively modify the Code 150K (1) If the Minister is satisfied that the laws of a participating jurisdiction have made significant modifications to the Competition Code in its application to persons within the legislative competence of the participating jurisdiction, the Minister may publish a notice in the Gazette stating that the Minister is so satisfied. (2) The Minister may, by further notice in the Gazette, revoke a notice published under subsection (1).

[page 1005] PART XIB — THE TELECOMMUNICATIONS INDUSTRY: ANTICOMPETITIVE CONDUCT AND RECORD-KEEPING RULES [Pt XIB insrt Act 58 of 1997 s 3 and Sch 1] INTRODUCTION TO PART XIB [14,175AA.0] Overview This Part was inserted by the Trade Practices Amendment (Telecommunications) Act 1996. It commenced on 30 April 1997. Part XIB provides for anti-competitive conduct provisions in the telecommunications industry. It operates in conjunction with the general anti-competitive provisions in Pt IV of the Act. The key component of Pt XIB requires a carrier or a carriage service provider to comply with the “competition rule” that it not engage in anti-competitive conduct: s 151AK. A carrier or carriage service provider engages in anti-competitive conduct if its conduct is in contravention of ss 45, 45B, 46, 47 or 48 of the Act and the conduct relates to a telecommunications market: s 151AJ. Presumably to avoid any doubt arising from the decision in Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478; 67 ALR 253; (1986) ATPR ¶40-714, it is specifically provided that anti-competitive conduct may involve the exercise of an existing legal or equitable right, whether under a contract or otherwise: s 151AJ(6). Conduct occurring before 1 July 1997 is not regarded as anti-competitive conduct: s 151AJ(8). The commission may issue a Pt A competition notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in anti-competitive conduct. The commission may also issue a Pt B competition notice stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule. Where directed by the commission this Part requires carriers and carriage service providers to file tariff information with the commission. The commission may also make record-keeping rules that apply to carriers and carriage service providers. In June 2000 the Commonwealth engaged the Productivity Commission to review the telecommunications specific competition provisions, including Pt XIB. On 23 December 2001 the government released the Productivity Commission’s report, Telecommunications Competition Regulation (Report No 16 of 2001). The report recommends, among other things, the retention of the specific provisions in Pt XIB in relation to anti-competitive conduct. Following the Productivity Commission’s report, the Commonwealth introduced a number of amendments to Pt XIB designed to enhance the accountability and transparency of decision-making. The amendments were inserted by the Telecommunications Competition Act 2002. Part XIB was further amended by the Telecommunications Legislation Amendment (Competition and Consumer Issues) Act 2005. This Act introduces an operational separation framework to Telstra to provide equivalence and transparency of Telstra’s wholesale and retail operations. Telstra is a vertically integrated company that operates in a number of telecommunications markets. It also owns infrastructure to which competitors need access. The Act also introduces amendments to the telecommunications regime to respond to industry change. The Telecommunications Legislation Amendment (Competition and Consumer Issues) Act

amended Pt XIB (and Pt XIC) to facilitate the operational separation of Telstra and to improve the operation of the telecommunications competition regime. [page 1006] Part XIB was amended by the Trade Practices Legislation Amendment Act (No 1) 2007. The amendments ensure continuing consistency between Pt XIB and s 46, in relation to leveraging of market power, coordinated market power and predatory pricing. See [10,690.5]. Consequential amendments were also made to this Part by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. See [10,690ZZRA.5] and [14,177.5]. Reform In its final report, Competition Policy Review, released in March 2015, the Harper Committee recommended that s 46 be replaced by a new provision that prevents firms with substantial market power from engaging in conduct that has the purpose or effect of substantially lessening competition. On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policy-division/ed_competition_law_amend ments. See also [10,690.5]. As a result of those proposed changes the Department of Communications and the Arts is undertaking a review of this Part which has linkages to the concepts in s 46. For this purpose in September 2016 the Department released a discussion paper “ Review of the Part XIB telecommunications anti-competitive conduct provisions”.

_____________________ DIVISION 1 — INTRODUCTION

[14,175AA] 151AA •

•

•

Simplified outline

The following is a simplified outline of this Part: This Part sets up a special regime for regulating anticompetitive conduct in the telecommunications industry. The regime applies in addition to Part IV. The Part sets out the circumstances in which carriers and carriage service providers are said to engage in anticompetitive conduct. A carrier or carriage service provider must not engage in anticompetitive conduct. This rule is called the competition rule.

•

•

•

•

The Commission may issue a notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in anti-competitive conduct. The notice is called a Part A competition notice. Proceedings for the enforcement of the competition rule (other than proceedings for injunctive relief) must not be instituted unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force at the time when the alleged conduct occurred. The Commission may issue a notice stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule. The notice is called a Part B competition notice. A Part B competition notice is prima facie evidence of the matters in the notice. [page 1007]

•

•

• •

The Commission may make an order exempting specified conduct from the scope of the definition of anti-competitive conduct. The order is called an exemption order. Carriers and carriage service providers may be directed to file tariff information with the Commission. The direction is called a tariff filing direction. The Commission may make record-keeping rules that apply to carriers and carriage service providers. Carriers and carriage service providers may be directed by the Commission to make certain reports available. The direction is called a disclosure direction.

[s 151AA am Act 52 of 1999 s 3 and Sch 1; Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[14,175AB] 151AB

Definitions

In this Part, unless the contrary intention appears:

ACA [def rep Act 45 of 2005 s 3 and Sch 1, opn 1 July 2005]

ACMA means the Australian Communications and Media Authority. [def insrt Act 45 of 2005 s 3 and Sch 1, opn 1 July 2005]

anti-competitive conduct has the meaning given by section 151AJ. carriage service has the same meaning as in the Telecommunications Act 1997. carriage service provider has the same meaning as in the Telecommunications Act 1997. carrier has the same meaning as in the Telecommunications Act 1997. carrier licence has the same meaning as in the Telecommunications Act 1997. competition notice means: (a) a Part A competition notice; or (b) a Part B competition notice. [def subst Act 52 of 1999 s 3 and Sch 1]

competition rule means the rule set out in section 151AK. content service has the same meaning as in the Telecommunications Act 1997. [def insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

data processing device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device. disclosure direction means a direction under subsection 151BUB(2), 151BUC(2), 151BUDB(2) or 151BUDC(2). [def insrt Act 52 of 1999 s 3 and Sch 1; am Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

eligible partnership has the same meaning Telecommunications Act 1997. exemption order means an order under section 151BA.

as

in

the

[page 1008]

facility has the same meaning as in the Telecommunications Act 1997. Federal Court means the Federal Court of Australia. listed carriage service has the same meaning as in the Telecommunications Act 1997. [def insrt Act 52 of 1999 s 3 and Sch 1]

Ministerially-directed report has the meaning given by section 151BUAA. [def insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

NBN corporation has the same meaning as in the National Broadband Network Companies Act 2011. [def insrt Act 23 of 2011 s 3 and Sch 1 item 25A, opn 13 Apr 2011]

Part A competition notice means a notice issued under subsection 151AKA(1) or (2). [def insrt Act 52 of 1999 s 3 and Sch 1]

Part B competition notice means a notice issued under subsection 151AL(1). [def insrt Act 52 of 1999 s 3 and Sch 1]

person includes a partnership. Note: Section 151CH sets out additional rules about partnerships. record-keeping rule means a rule under section 151BU. service provider rule has the same meaning as in the Telecommunications Act 1997. tariff filing direction means a direction under section 151BK. telecommunications market has the meaning given by section 151AF. [s 151AB am Act 52 of 1999 s 3 and Sch 1]

[14,175AC]

Extension to external Territories

151AC (1) This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997). (2) The operation of this Part, and the other provisions of this Act so far as they relate to this Part, in relation to Norfolk Island is not affected by the

amendments made by Division 1 of Part 1 of Schedule 5 to the Territories Legislation Amendment Act 2016. [subs (2) insrt Act 33 of 2016 s 3 and Sch 5 item 26, opn 1 July 2016] [s 151AC am Act 33 of 2016 s 3 and Sch 5 item 25, opn 1 July 2016]

[14,175AD]

Continuity of partnerships

151AD For the purposes of this Part, a change in the composition of a partnership does not affect the continuity of the partnership.

[14,175AE]

Additional operation of Part

151AE (1) Without prejudice to its effect apart from this section, this Part also has effect as provided by this section. [page 1009] (2) This Part has, by force of this subsection, the effect it would have if: (a) any references in this Part to a carrier were, by express provision, confined to a carrier that is a corporation; and (b) any references in this Part to a carrier service provider were, by express provision, confined to a carriage service provider that is a corporation. (3) In addition to the effect that this Part has as provided by subsection (2), this Part has, by force of this subsection, the effect it would have if subsections 151AJ(2) and (3) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to: (a) trade or commerce between Australia and places outside Australia; or (b) trade or commerce among the States; or (c) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or (d) the supply of goods or services to the Commonwealth or an

authority or instrumentality of the Commonwealth.

[14,175AF]

Telecommunications market

151AF For the purposes of this Part, a telecommunications market is a market in which any of the following goods or services are supplied or acquired: (a) carriage services; (b) goods or services for use in connection with a carriage service; (c) access to facilities; (d) content services. Note: Market has a meaning affected by section 4E. [s 151AF am Act 140 of 2010 s 3 and Sch 1[211], opn 1 Jan 2011]

[14,175AG] When a body corporate is related to a partnership 151AG For the purposes of this Part, if: (a) a carrier or a carriage service provider is a partnership; and (b) a body corporate is related to a partner in the partnership; the body corporate is taken to be related to the carrier or carriage service provider, as the case requires.

[14,175AH] Degree of power in a telecommunications market 151AH (1) For the purposes of this Part, if: (a) a body corporate is related to: (i) a carrier; or (ii) a carriage service provider; and (b) the body corporate has a substantial degree of power in a telecommunications market; the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market. (2) For the purposes of this Part, if:

(a) 2 or more bodies corporate are related to the one: (i) carrier; or [page 1010] (ii) carriage service provider; and (b) those bodies corporate together have a substantial degree of power in a telecommunications market; the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market. (3) For the purposes of this Part, if: (a) a body corporate is related to: (i) a carrier; or (ii) a carriage service provider; and (b) the body corporate and the carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market; the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market. (4) For the purposes of this Part, if: (a) 2 or more bodies corporate are related to: (i) a carrier; or (ii) a carriage service provider; and (b) those bodies corporate and that carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market; the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market. (5) In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard must be had to the extent to which the conduct of the person or any of those persons in that market is constrained by the conduct of: (a) competitors, or potential competitors, of the person or of any of

those persons in that market; or (b) persons to whom or from whom the person or any of those persons supplies or acquires goods or services in that market. (5A) In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard may be had to the power that the person has, or that the persons have, in that market that results from: (a) any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the person has or may have, or that the persons have or may have, with another party or parties; and (b) any covenants, or proposed covenants, that the person is or would be, or that the persons are or would be, bound by or entitled to the benefit of. [subs (5A) insrt Act 159 of 2007 s 3 and Sch 2[4], opn 25 Sep 2007]

(6) Subsections (5) and (5A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market. [subs (6) am Act 159 of 2007 s 3 and Sch 2[5], opn 25 Sep 2007]

[page 1011] (6A) For the purposes of this Part, without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial degree of power in a telecommunications market, a person may have a substantial degree of power in a telecommunications market even though: (a) the person does not substantially control the market; or (b) the person does not have absolute freedom from constraint by the conduct of: (i) competitors, or potential competitors, of the person in that market; or (ii) persons to whom or from whom the person supplies or

acquires goods or services in that market. [subs (6A) insrt Act 159 of 2007 s 3 and Sch 2[6], opn 25 Sep 2007]

(6B) To avoid doubt, for the purposes of this Part, more than 1 person may have a substantial degree of power in a telecommunications market. [subs (6B) insrt Act 159 of 2007 s 3 and Sch 2[6], opn 25 Sep 2007]

(7) In this Part: (a) a reference to power is a reference to market power; and (b) a reference to power in relation to, or to conduct in, a telecommunications market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.

[14,175AI] Interpretation of Part IV or VII not affected by this Part 151AI In determining the meaning of a provision of Part IV or VII, the provisions of this Part are to be ignored. DIVISION 2 — ANTI-COMPETITIVE CONDUCT

[14,175AJ]

Anti-competitive conduct

151AJ (1) This section sets out the 2 circumstances in which: (a) a carrier; or (b) a carriage service provider; is said to engage in anti-competitive conduct for the purposes of this Part. (2) A carrier or carriage service provider engages in anti-competitive conduct if the carrier or carriage service provider: (a) has a substantial degree of power in a telecommunications market; and (b) either: (i) takes advantage of that power in that or any other market with the effect, or likely effect, of substantially lessening competition in that or any other telecommunications market; or

(ii) takes advantage of that power in that or any other market, and engages in other conduct on one or more occasions, with the combined effect, or likely combined effect, of substantially lessening competition in that or any other telecommunications market. [subs (2) am Act 52 of 1999 s 3 and Sch 1; Act 159 of 2007 s 3 and Sch 2[7], opn 25 Sep 2007]

(2A) Without limiting the matters to which regard may be had for the purpose of determining whether a carrier or carriage service provider has engaged in anti-competitive conduct as defined in subsection (2), regard may be had to: [page 1012] (a) any conduct of the carrier or carriage service provider that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the carrier or carriage service provider of supplying such goods or services; and (b) the reasons for that conduct. [subs (2A) insrt Act 159 of 2007 s 3 and Sch 2[8], opn 25 Sep 2007]

(3) A carrier or carriage service provider engages in anti-competitive conduct if the carrier or carriage service provider: (a) engages in conduct in contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48; and (b) the conduct relates to a telecommunications market. [subs (3) am Act 59 of 2009 s 3 and Sch 1[103], opn 24 July 2009]

(4) For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation, in determining whether conduct of the carrier or provider is in contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48 the following assumptions are to be made: (a) the assumption that each reference to a corporation in: (i) those sections; and (ii) sections 44ZZRL and 44ZZRM; included a reference to a carrier, or a carriage service provider, that is not a corporation;

(b) the assumption that subsections 45(8) and 47(12) and section 44ZZRN had not been enacted. [subs (4) am Act 59 of 2009 s 3 and Sch 1[104], [105], opn 24 July 2009]

(5) For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation or a partnership, in determining whether conduct of the carrier or provider is in contravention of section 45, 45B, 46, 47 or 48, the following assumptions are to be made: (a) the assumption that the expression “or any body corporate related to such a corporation” were omitted from subsection 45(3); (b) the assumption that the expression “or a body corporate related to the corporation” were omitted from paragraph 45(4)(b); (c) the assumption that the expression “or of a body corporate that is related to the corporation” were omitted from paragraphs 46(1)(a) and (1AA)(a); (d) the assumption that subsection 46(2) had not been enacted; (e) the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from each of the following provisions: (i) paragraphs 47(2)(d) and (e); (ii) paragraphs 47(3)(d) and (e); (iii) subparagraphs 47(8)(a)(i) and (ii); (f) the assumption that the expression “not being a body corporate related to the corporation” were omitted from subsections 47(6) and (7) and paragraphs 47(8)(c) and 47(9)(d); (g) the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from paragraphs 47(9)(a) and (b); [page 1013] (h) the assumption that the expression “, or by a body corporate related to the corporation,” were omitted from paragraph 47(10)(b); (i) the assumption that the expression “or any body corporate related to that corporation” were omitted from subparagraph 47(13)(b)(i);

(j)

the assumption that the expression “or any body corporate related to either of those corporations” were omitted from paragraph 47(13)(c) and the expression “any body corporate related to the last-mentioned corporation” were substituted; (k) the assumption that the expression “where the second person mentioned in that paragraph is a corporation” were omitted from subsection 96(2). [subs (5) am Act 200 of 1997 Sch 2.30; Act 131 of 2006 s 3 and Sch 7[31], opn 1 Jan 2007; Act 159 of 2007 s 3 and Sch 2[8A], opn 25 Sep 2007]

(6) A person may be taken to have engaged in anti-competitive conduct even if the conduct involves the exercise, or proposed exercise, of an existing legal or equitable right (whether under a contract or otherwise). (7) Despite anything in this section, a carrier or carriage service provider does not engage in anti-competitive conduct if that conduct does not constitute a contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48: (a) because an authorisation is in force; or (b) because of the operation of subsection 44ZZRL(1) or 45(8A) or section 93; or (c) because of the operation of subsection 45(9); or (d) because of the operation of subsection 45B(8); or (e) because of the operation of section 44ZZRM. [subs (7) am Act 131 of 2006 s 3 and Sch 3[22], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[106]– [109], opn 24 July 2009; Act 23 of 2011 s 3 and Sch 1 item 25B, opn 13 Apr 2011]

(8) A carrier or carriage service provider does not engage in anticompetitive conduct if that conduct occurred before 1 July 1997. (9) Despite anything in this section, a person does not engage in anticompetitive conduct if, under section 577BA of the Telecommunications Act 1997, the conduct is authorised for the purposes of subsection 51(1) of this Act. [subs (9) insrt Act 140 of 2010 s 3 and Sch 1[33], opn 1 Jan 2011; Act 23 of 2011 s 3 and Sch 1 item 25C, opn 13 Apr 2011]

(10) Despite anything in this section, a person does not engage in anticompetitive conduct if, under section 151DA, the conduct is authorised for the purposes of subsection 51(1). [subs (10) insrt Act 23 of 2011 s 3 and Sch 1 item 25D, opn 13 Apr 2011]

[14,175AK]

The competition rule

151AK (1) A carrier or carriage service provider must not engage in anti-competitive conduct. (2) For the purposes of this Part, the rule set out in subsection (1) is to be known as the competition rule. Note: For enforcement of the competition rule, see Division 7. [page 1014] DIVISION 3 — COMPETITION NOTICES AND EXEMPTION ORDERS Subdivision A — Competition notices

[14,175AKA]

Part A competition notices

151AKA (1) Particular anti-competitive conduct The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in a specified instance of anticompetitive conduct. (2) Kind of anti-competitive conduct The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in at least one instance of anti-competitive conduct of a kind described in the notice. (3) Part A competition notice A notice under subsection (1) or (2) is to be known as a Part A competition notice. (4) Part A competition notices under subsection (2) For the purposes of this Part, a kind of anti-competitive conduct described in a Part A competition notice under subsection (2) is taken to be conduct of a kind dealt with in the notice. (5) To avoid doubt, a Part A competition notice under subsection (2) is not required to specify any instance of anti-competitive conduct. (6) In deciding how to describe a kind of anti-competitive conduct in a Part A competition notice under subsection (2), the Commission may have

regard to: (a) whether the carrier or carriage service provider concerned could, by varying its conduct, continue to engage in anti-competitive conduct and avoid proceedings against it under one or more provisions of Division 7; and (b) any other matters that the Commission thinks are relevant. (7) Threshold for issuing Part A competition notices The Commission may issue a Part A competition notice under subsection (1) that specifies an instance of anti-competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in that instance of anti-competitive conduct. (8) The Commission may issue a Part A competition notice under subsection (2) that describes a kind of anti-competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in at least one instance of anti-competitive conduct of that kind. (9) Procedural fairness The Commission is not required to observe any requirements of procedural fairness in relation to the issue of a Part A competition notice. Note: For the effect of a Part A competition notice, see subsections 151BY(3), 151CB(3), 151CC(3) and 151CE(5). [subs (9) subst Act 140 of 2010 s 3 and Sch 1[212], opn 1 Jan 2011]

(10) [subs (10) rep Act 140 of 2010 s 3 and Sch 1[212], opn 1 Jan 2011] Note: For the effect of a Part A competition notice, see subsections 151BY(3), 151CB(3), 151CC(3) and 151CE(5). [s 151AKA insrt Act 52 of 1999 s 3 and Sch 1]

[page 1015] SECTION 151AKA GENERALLY [14,175AKA.5] Overview The provision permits the commission to issue a Pt A competition notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in a specified instance of anti-

competitive conduct. See Telstra Corporation Ltd v Australian Competition and Consumer Commission [2006] FCA 737; BC200604238 per Bennett J. The purpose of a Pt A competition notice is to cause the recipient of the notice to stop the specified anti-competitive conduct: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493; BC200702362 at [249] per Bennett J. [14,175AKA.10] Clarity of a competition notice and a consultation notice A Pt A competition notice and a consultation notice under s 151AKA(10) must not be so vaguely expressed that its meaning or application is a matter of real uncertainty. The notices must convey, with reasonable and sufficient clarity and certainty, the subject matter with which they deal and enable the recipient to know what is required if their issue is to be a valid exercise of statutory power: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493; BC200702362 at [36] per Bennett J. The requirement of reasonable clarity is met if, where a statutory notice is to elicit a response, the notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information is required or sought: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. The notices should not themselves be construed as statutory provision and they need not plead all the facts necessary to constitute a contravention or possible contravention of the Act: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. [14,175AKA.13] Retrospective operation of competition notice Part XIB does not envisage that a Pt A competition notice may issue with retrospective effect: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 3) [2007] FCA 1905; BC200711521 at [72] per Bennett J. [14,175AKA.15] Consultation notice Before issuing a Pt A competition notice, the commission must give a notice under s 151AKA(10) (a “consultation notice”) stating that the commission intends to issue a Pt A notice, describing in summary form the anti-competitive conduct and inviting the carrier or carriage service provider to make a submission: Telstra

Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493; BC200702362 at [34] per Bennett J. The purpose of a consultation notice is to provide the affected carrier or carriage service provider with an opportunity to make a submission to the commission on its proposal to issue a Pt A competition notice. To achieve its purpose a consultation notice must provide sufficient detail to enable a real, practical and reasonably specific response as to whether the recipient is engaging in the kind of conduct alleged and whether the conduct is anticompetitive: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. The explanatory memorandum accompanying the Telecommunications Competition Act 2002, which introduced s 151AKA(10), indicates that the consultation notice need not contain full particulars of the instance or kind of anti-competitive conduct that is proposed to be specified in the notice, though in some circumstances this may be appropriate. This is confirmed by the requirement that the conduct be described only in “summary form”: see Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. A “summary form” allows for a minimum, but not a maximum, of information to be provided: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. [page 1016] A consultation notice will not contain all of the matters subsequently addressed in a Pt A competition notice. The commission is not under a duty to provide a fully particularised pleading in relation to the impugned conduct and a failure to do so does not amount to a denial of procedural fairness: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. [14,175AKA.20] Judicial review The issue of a consultation notice under s 151AKA(10) is an action taken prior to the ultimate decision to issue a Pt A competition notice. The action is procedural in character and is not a decision of an administrative character under s 5 of the Administrative

Decisions (Judicial Review) Act 1977: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493; BC200702362 at [56] per Bennett J. The issue of a consultation notice is “conduct” of the commission engaged in for the purpose of making a decision and is therefore reviewable under s 6 of the Administrative Decisions (Judicial Review) Act 1977: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. The court has jurisdiction to review a Pt A competition notice under s 39B of the Judiciary Act 1903: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. [14,175AKA.25] Procedural fairness The purpose of inserting a requirement to issue a consultation notice under s 151AKA(10) is to enhance certainty and procedural fairness. They are not intended to increase or decrease the administrative law obligation to provide procedural fairness but rather to reflect that obligation: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493; BC200702362 at [215] per Bennett J. While the obligation to issue a consultation notice informs the obligation to provide procedural fairness, it does not displace it: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. There is no inconsistency between the application of s 151AKA(9) and (1) which impose a minimum standard of information disclosure and a common law duty of procedural fairness: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. A consultation notice will not contain all of the matters subsequently addressed in a Pt A competition notice. The commission is not under a duty to provide a fully particularised pleading in relation to the impugned conduct and a failure to do so does not amount to a denial of procedural fairness: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. In Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, Bennett J found that the Pt A competition notice issued by the commission to Telstra differed in substance from the consultation notice in the kind of anti-competitive conduct it described.

Accordingly, Telstra was not provided with a consultation notice under s 151AKA(10) and the commission was not entitled to issue a Pt A competition notice. If the commission bases its decision to issue a Pt A competition notice on some particular issue or material adverse to Telstra that was not apparent from the consultation notice, procedural fairness would require that some step additional to the issue of the consultation notice be taken: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. The statutory requirement for procedural fairness is fulfilled in the case of a Pt A competition notice issued under s 151AKA(2) by adhering to the process of consultation under s 151AKA(10). This does not include the reasoning processes of the commission or generalised information that the commission might propose to take into account at the time of issuing either the consultation notice or the Pt A competition notice: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2), above, per Bennett J. [page 1017] [14,175AKA.30] Application of the Acts Interpretation Act A competition notice is an “instrument” under s 46 of the Acts Interpretation Act 1901: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 3) [2007] FCA 1905; BC200711521 at [45] per Bennett J. Section 46 of the Acts Interpretation Act 1901 is a rule of construction, not a rule of law: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 3), above, at [55] per Bennett J. Section 46 applies where particular provisions are beyond power. It does not apply where there is a lack of power to make the whole instrument: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 3), above, at [57] per Bennett J. That is, while s 46 may apply to cut down the scope of an overly wide provision, there is no occasion for reading down if the provision is wholly beyond power: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 3), above, at [58] per Bennett J.

_____________________

[14,175AL]

Part B competition notices

151AL (1) The Commission may issue a written notice: (a) stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule; and (b) setting out particulars of that contravention. (2) A notice under subsection (1) is to be known as a Part B competition notice. [subs (2) am Act 52 of 1999 s 3 and Sch 1]

(3) Threshold for issuing Part B competition notices The Commission may issue a Part B competition notice relating to a particular contravention if the Commission has reason to believe that the carrier or carriage service provider concerned has committed, or is committing, the contravention. [subs (3) insrt Act 52 of 1999 s 3 and Sch 1]

(4) Notice may be issued after proceedings have been instituted To avoid doubt, a Part B competition notice may be issued even if any relevant proceedings under Division 7 have been instituted. [subs (4) insrt Act 52 of 1999 s 3 and Sch 1]

Note: For the effect of a Part B competition notice, see subsection 151AN(1). [s 151AL am Act 52 of 1999 s 3 and Sch 1]

[14,175AM] Competition notice to be given to carrier or carriage service provider 151AM As soon as practicable after issuing a competition notice, the Commission must give a copy of the competition notice to the carrier or carriage service provider concerned.

[14,175AN] notice 151AN

Evidentiary effect of competition

(1) In any proceedings under, or arising out of, this Part, a Part

B competition notice is prima facie evidence of the matters in the notice. [subs (1) am Act 52 of 1999 s 3 and Sch 1]

(2) A document purporting to be a competition notice must, unless the contrary is established, be taken to be a competition notice and to have been properly issued. [page 1018] (3) The Commission may certify that a document is a copy of a competition notice. (4) This section applies to the certified copy as if it were the original.

[14,175AO] notice

Duration of Part A competition

151AO (1) A Part A competition notice comes into force: (a) when it is issued; or (b) if the notice specifies a later time — at that later time; and, unless sooner revoked, remains in force until the end of the period specified in the notice. The period must not be longer than 12 months. [subs (1) am Act 52 of 1999 s 3 and Sch 1]

(2) If a Part A competition notice expires, this Part does not prevent the Commission from issuing a fresh Part A competition notice under section 151AKA that relates to the same matter as the expired notice. [subs (2) am Act 52 of 1999 s 3 and Sch 1] [s 151AO am Act 52 of 1999 s 3 and Sch 1]

[14,175AOA]

Variation of competition notice

151AOA (1) If a competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice so long as the variation is of a minor nature. (2) If a Part A competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice

by omitting the time at which the notice is expressed to come into force and substituting a later time. (3) If a competition notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation. [s 151AOA insrt Act 52 of 1999 s 3 and Sch 1]

[14,175AOB]

Revocation of competition notice

151AOB (1) The Commission may revoke a competition notice. (2) If a competition notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the notice has been revoked. [s 151AOB insrt Act 52 of 1999 s 3 and Sch 1]

[14,175AP]

Guidelines

151AP (1) In deciding whether to issue a competition notice, the Commission must have regard to: (a) any guidelines in force under subsection (2); and (b) such other matters as the Commission considers relevant. (2) The Commission must, by written instrument, formulate guidelines for the purposes of subsection (1). [page 1019] (3) Guidelines under subsection (2) must address the appropriateness of the Commission issuing a competition notice as opposed to the Commission taking other action under this Act. [subs (3) subst Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

(4) The Commission must take all reasonable steps to ensure that guidelines under subsection (2) comply with subsection (3) within 12 months after the commencement of this subsection. [subs (4) insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

SECTION 151AP GENERALLY [14,175AP.5] Guidelines The commission has published guidelines under s 151AP: Telecommunications Competition Notice Guidelines, February 2004. See Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493; BC200702362 at [71] per Bennett J. _____________________

[14,175AQ]

Commission to act expeditiously

151AQ (1) If the Commission has reason to suspect that a carrier or carriage service provider has contravened, or is contravening, the competition rule, the Commission must act expeditiously in deciding whether to issue a competition notice in relation to that contravention. (2) A failure to comply with subsection (1) does not affect the validity of a competition notice.

[14,175AQA] Stay of proceedings relating to competition notices 151AQA (1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision to issue a competition notice. [subs (1) am Act 194 of 1999 s 3 and Sch 25]

(2) If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application. However, this subsection does not apply to an order under subsection (3). (3) If: (a) either: (i) a person applies to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision to issue a competition notice; or

(ii) a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice; and (b) any relevant proceedings have been instituted under Division 7 of this Part; the Federal Court or a Judge of the Federal Court may, by order, on such conditions as the Court or the Judge thinks fit, stay those proceedings. [page 1020] (4) If: (a) a person applies to the Federal Circuit Court under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision to issue a competition notice; and (b) any relevant proceedings have been instituted under Division 7 of this Part; the Federal Circuit Court or a Judge of the Federal Circuit Court may, by order, on such conditions as the Court or the Judge thinks fit, stay those proceedings. [subs (4) insrt Act 194 of 1999 s 3 and Sch 25; am Act 13 of 2013 s 3 and Sch 1 items 91, 92, Sch 2 item 1, opn 12 Apr 2013] [s 151AQA insrt Act 52 of 1999 s 3 and Sch 1]

[14,175AQB]

Advisory notices

151AQB (1) Issue of advisory notice The Commission may give the carrier or carriage service provider a written notice (an advisory notice) advising the carrier or provider of the action it should take, or consider taking, in order to ensure that it does not engage, or continue to engage, in anti-competitive conduct. [subs (1) subst Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

(2) The Commission does not have a duty to consider whether to issue an advisory notice in relation to: (a) a particular instance of anti-competitive conduct; or

(b) a particular kind of anti-competitive conduct; before it issues a Part A competition notice in relation to that instance or kind of conduct. [subs (2) subst Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

(3) Nature of advisory notice An advisory notice is an instrument of an advisory character. (4) [subs (4) rep Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002] (5) Varying or revoking advisory notice The Commission may vary or revoke an advisory notice. (6) If an advisory notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation. (7) If an advisory notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the advisory notice has been revoked. (8) Publication of advisory notice If the Commission is satisfied that: (a) the publication of an advisory notice would result, or be likely to result, in a benefit to the public; and (b) that benefit would outweigh any substantial prejudice to the commercial interests of a person that would result, or be likely to result, if the advisory notice were published; the Commission may publish the advisory notice in such manner as it thinks fit. [subs (8) insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002] [s 151AQB insrt Act 52 of 1999 s 3 and Sch 1; am Act 46 of 2001 s 3 and Sch 1]

[page 1021]

[14,175AR]

Register of competition notices

151AR (1) The Commission must keep a Register in relation to competition notices. (2) The Register must include particulars of all competition notices (including notices that have expired).

(3) The Register may be maintained by electronic means. (4) A person may, on payment of the fee (if any) specified in the regulations: (a) inspect the Register; and (b) make a copy of, or take extracts from, the Register. (5) For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register. (6) If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information: (a) on a data processing device; or (b) by way of electronic transmission.

Subdivision B — Exemption orders

[14,175AS]

Exemption orders

151AS (1) A person may apply to the Commission for an order exempting specified conduct of the person from the scope of section 151AJ (which deals with anti-competitive conduct). The order is called an exemption order. (2) An exemption order is not invalid only because the conduct specified in the order is conduct of a kind that, apart from the order, is outside the scope of section 151AJ (which deals with anti-competitive conduct).

[14,175AT]

Form of application

151AT An application for an exemption order must be: (a) in writing; and (b) in a form approved in writing by the Commission; and (c) accompanied by the prescribed fee.

[14,175AU]

Further information

151AU (1) The Commission may request an applicant for an exemption order to give the Commission further information about the application. (2) The Commission may refuse to consider the application until the applicant gives the Commission the information. (3) The Commission may withdraw its request for further information, in whole or in part. [subs (3) insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[page 1022]

[14,175AV]

Withdrawal of application

151AV An applicant for an exemption order may withdraw the application by written notice given to the Commission.

[14,175AW] Commission must publicise receipt of applications 151AW If the Commission receives an application for an exemption order, the Commission must publicise the receipt of the application in such manner as it thinks fit.

[14,175AX] Commission may refuse to consider application if it relates to the same conduct as an authorisation application 151AX (1) This section applies if: (a) the Commission receives, or has received, an application for an exemption order; and (b) the Commission receives, or has received, an application for an authorisation under Division 1 of Part VII; and (c) the application for the exemption order and the application for the authorisation relate to the same conduct.

(2) The Commission may refuse to: (a) consider the application for the exemption order; or (b) convene a conference under section 151AZ to discuss the application for the exemption order; until: (c) the Commission has made a determination under section 90 in relation to the application for the authorisation; or (d) if the Commission makes such a determination — the expiry of the time limit allowed for a person to apply to the Tribunal for a review of the determination; or (e) if a person applies to the Tribunal for a review of the determination — the review (including any court proceedings arising out of the review) is finalised.

[14,175AY] Commission may refuse to consider application if it relates to the same conduct as a Part VII notification 151AY (1) This section applies if: (a) the Commission receives, or has received, an application for an exemption order; and (b) the Commission receives, or has received, a notice under subsection 93(1) or 93AB(1A) or (1); and (c) the application for the exemption order and the notice relate to the same conduct. [subs (1) am Act 131 of 2006 s 3 and Sch 3[23], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[110], opn 24 July 2009]

(2) The Commission may refuse to: (a) consider the application for the exemption order; or [page 1023] (b) convene a conference under section 151AZ to discuss the

application for the exemption order; until: (c) the Commission decides whether or not to give a notice under subsection 93(3) or (3A) or 93AC(1) or (2); or (d) if the Commission gives such a notice — the expiry of the time limit allowed for a person to apply to the Tribunal for review of the decision; or (e) if a person applies to the Tribunal for a review of the decision — the review (including any court proceedings arising out of the review) is finalised. [subs (2) am Act 131 of 2006 s 3 and Sch 3[24], opn 1 Jan 2007]

[14,175AZ] Commission may convene conference to discuss application 151AZ (1) If the Commission receives an application for an exemption order, the Commission may convene a conference to discuss the application. (2) If the Commission decides to convene a conference, the Commission must give: (a) the applicant (or a representative of the applicant); and (b) any other persons whom the Commission considers interested; a reasonable opportunity to attend and take part in the conference. (3) This Act does not prevent a conference under this section from being combined with a conference under section 90A or 93A if the combined conference relates to the same conduct.

[14,175BA] application

Commission must grant or reject

151BA If the Commission receives an application for an exemption order, the Commission must either: (a) make the order; or (b) refuse to make the order.

[14,175BB] Commission to give opportunity for submissions 151BB Before making an exemption order, the Commission must give: (a) the applicant; and (b) any other person whom the Commission considers interested; a reasonable opportunity to make submissions to the Commission about the order.

[14,175BC]

Criteria for making exemption order

151BC (1) The Commission must not make an exemption order in relation to particular conduct of a person unless it is satisfied that: (a) both: (i) the conduct will result, or is likely to result, in a benefit to the public; and (ii) that benefit outweighs, or will outweigh, the detriment to the public constituted by any lessening of competition that will result, or is likely to result, from engaging in the conduct; or [page 1024] (b) the conduct is not anti-competitive conduct. (2) In determining whether the Commission is satisfied about the matters referred to in paragraph (1)(a), the Commission may have regard to the following matters: (a) the extent to which the conduct relates to the supply of goods or services on favourable terms and conditions to: (i) a financially disadvantaged individual; or (ii) an individual who is disadvantaged on health grounds; or (iii) a registered charity; or (iiia) a community organisation that is a not-for-profit entity and is not a charity; or

(b)

(c) (d)

(e)

(iv) an educational institution; or (v) a health facility; the extent to which the conduct relates to the supply of goods or services for: (i) community, charitable or educational purposes; or (ii) the promotion of health or safety; on favourable terms and conditions; the need to satisfy any applicable universal service obligation; the extent to which the conduct prevents or reduces, or is likely to prevent or reduce, pollution or other forms of degradation of environmental amenity; the extent to which the conduct contributes, or is likely to contribute, to technical innovation, or the development of new goods or services, by Australian industry.

[subs (2) am Act 169 of 2012 s 3 and Sch 2 item 164, opn 3 Dec 2012]

(3) Subsection (2) does not, by implication, limit the matters to which the Commission may have regard. (4) The Commission must not make an exemption order in relation to particular conduct of a person if: (a) the conduct is in contravention of section 46; and (b) subsection 46(6) does not apply to the conduct. (5) Subsections 151AJ(4) and (5) apply for the purposes of subsection (4) of this section in a corresponding way to the way in which they apply for the purposes of subsection 151AJ(3). (6) In this section: environment includes all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings.

[14,175BD]

Notification of decision

151BD (1) If the Commission makes an exemption order, the Commission must give the applicant a written notice setting out the order and the reasons for the order. (2) If the Commission refuses to make an exemption order, the Commission must give the applicant a written notice stating that the order

has been refused and setting out the reasons for the refusal. [page 1025]

[14,175BE] limited

Duration of exemption order may be

151BE An exemption order may be expressed to be in force for a period specified in the order.

[14,175BF]

Conditions of exemption order

151BF An exemption order may be expressed to be subject to such conditions as are specified in the order.

[14,175BG]

Revocation of exemption order

151BG (1) If: (a) an exemption order is in force in relation to a person; and (b) the Commission is satisfied that: (i) the order was made on the basis of information that was false or misleading in a material particular; or (ii) a condition to which the order is subject has been contravened; or (iii) there has been a material change of circumstances since the order was made; the Commission may revoke the order. (2) The Commission must not revoke an exemption order unless the Commission has first: (a) published a draft notice of revocation and invited people to make submissions to the Commission on the draft notice; and (b) considered any submissions that were received within the time limit specified by the Commission when it published the draft notice.

(3) The Commission may make a further exemption order under section 151BA in substitution for the revoked order. (4) If the Commission revokes an exemption order relating to a person, the Commission must give the person a written notice stating that the order has been revoked and setting out the reasons for the revocation. (5) A revocation of an exemption order takes effect: (a) at the time when notice of the revocation is given; or (b) if a later time is specified in the notice of the revocation — at that later time.

[14,175BH]

Register of exemption orders

151BH (1) The Commission must keep a Register in relation to exemption orders. (2) The Register must include the following: (a) particulars of all exemption orders (including orders that have expired); (b) applications for exemption orders received by the Commission (including applications that have been withdrawn); (c) particulars of decisions refusing to make exemption orders; (d) particulars of decisions revoking, or refusing to revoke, exemption orders; (e) particulars of the Commission’s reasons for making exemption orders. [page 1026] (3) Despite subsection (2), the Register must not set out information covered by subsection (2) if the disclosure of the information could reasonably be expected to prejudice substantially the commercial interests of the person, or any of the persons, to whom the information relates. (4) The Register may be maintained by electronic means. (5) A person may, on payment of the fee (if any) specified in the regulations:

(a) inspect the Register; and (b) make a copy of, or take extracts from, the Register. (6) For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register. (7) If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information: (a) on a data processing device; or (b) by way of electronic transmission.

[14,175BI] False or misleading information supplied in connection with application for an exemption order 151BI

[s 151BI rep Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

Subdivision C — Miscellaneous

[14,175BJ]

Conduct includes proposed conduct

151BJ A reference in this Division to conduct includes a reference to proposed conduct. DIVISION 4 — TARIFF FILING

[14,175BK]

Tariff filing directions

151BK (1) This section applies to a person who is a carrier or carriage service provider if the Commission is satisfied that the person has a substantial degree of power in a telecommunications market. (2) The Commission may give the person a written direction that: (a) contains a statement to the effect that any or all of the following are within the scope of the direction: (i) specified carriage services;

(ii) specified ancillary goods; (iii) specified ancillary services; and (b) complies with subsection (3), (4) or (5). The direction is called a tariff filing direction. Note: For enforcement of tariff filing directions, see Division 7. (3) A direction complies with this subsection if it contains a requirement that if, at the time the direction is given, the person has charges for goods or services within the scope [page 1027] of the direction, the person must give the Commission, within the period and in the form specified in the direction, a written statement setting out such information about those charges as is specified in the direction. (4) A direction complies with this subsection if it contains a requirement that the person must, at least 7 days before: (a) imposing a new charge for goods or services within the scope of the direction at any time when the direction is in force; or (b) varying a charge for goods or services within the scope of the direction at any time when the direction is in force; or (c) ceasing to impose a charge for goods or services within the scope of the direction at any time when the direction is in force; give the Commission, in the form specified in the direction, a written statement setting out such information about the person’s intentions as is specified in the direction. Note: See subsection (6) for a special rule relating to this subsection. (5) A direction complies with this subsection if it contains a requirement that, in the event that the person: (a) imposes a new charge for goods or services within the scope of the direction at any time when the direction is in force; or (b) varies a charge for goods or services within the scope of the direction at any time when the direction is in force; or (c) ceases to impose a charge for goods or services within the scope of the direction at any time when the direction is in force;

the person must give the Commission: (d) within such period after the imposition, variation or cessation, as the case may be, as is specified in the direction; and (e) in the form specified in the direction; a written statement setting out such information about the imposition, variation or cessation, as the case may be, as is specified in the direction. (6) The Commission may, on the application of the person, make a written determination that subsection (4) has effect, in relation to a specified matter, as if the reference in that subsection to 7 days were a reference to such shorter period as is specified in the determination. The determination has effect accordingly. (7) This section does not, by implication, limit section 87B or 155. (8) This section does not prevent 2 or more tariff filing directions being given to the same person at the same time. (9) For the purposes of this section, information relating to the terms and conditions on which goods or services have been, are being or are proposed to be supplied is taken to be information relating to charges that have been imposed, are being imposed or are proposed to be imposed for those goods or services. (10) A tariff filing direction given before 1 July 1997 comes into force on 1 July 1997. (11) In this section: ancillary goods means goods for use in connection with a carriage service. [page 1028] ancillary service means a service for use in connection with a carriage service. variation, in relation to a charge, means a variation of the nature of the charge or the amount of the charge, or both.

[14,175BL]

Specification of goods and services

151BL (1) Goods or services may be specified in a tariff filing direction by reference to any or all of the following: (a) the nature of the goods or services; (b) the customers to whom the goods or services are, or are proposed to be, supplied (whether those customers are identified by name, by inclusion in a specified class or in any other way); (c) the kinds of terms and conditions on which the goods or services are, or are proposed to be, supplied. (2) Subsection (1) does not, by implication, limit the ways in which goods and services may be specified in a tariff filing direction.

[14,175BM]

Notification of reasons

151BM If the Commission gives a tariff filing direction to a person, the Commission must give the person a written notice setting out the reasons for the direction.

[14,175BN]

Duration of direction may be limited

151BN A tariff filing direction may be expressed to cease to be in force at a time ascertained in accordance with the direction. Note: A time specified in accordance with the direction may be the time of occurrence of a specified event or the time when a specified condition is satisfied.

[14,175BO]

Revocation of direction

151BO (1) If a tariff filing direction relating to a person is in force, the Commission may revoke the direction. (2) The Commission must give the person a written notice stating that the direction has been revoked. (3) A revocation of a tariff filing direction takes effect: (a) at the time when the notice of revocation is given; or (b) if a later time is specified in the notice of revocation — at that later

time.

[14,175BP]

Variation of direction

151BP (1) If a tariff filing direction relating to a person is in force, the Commission may vary the direction. (2) The Commission must give the person a written notice setting out: (a) the terms of the variation; and (b) the reasons for the variation. [page 1029] (3) A variation of a tariff filing direction takes effect: (a) at the time when the notice of variation is given; or (b) if a later time is specified in the notice of variation — at that later time.

[14,175BQ]

Public access to tariff information

151BQ (1) This section applies to a particular item of information given to the Commission by a person (the first person) in accordance with a tariff filing direction. (2) If the Commission is satisfied that: (a) the disclosure of the information would result, or be likely to result, in a benefit to the public; and (b) that benefit would outweigh both: (i) the detriment to the public constituted by any lessening of competition that would result, or be likely to result, if the information were disclosed; and (ii) any substantial prejudice to the commercial interests of a person that would result, or be likely to result, if the information were disclosed; the Commission must give the first person a written notice stating that the Commission intends to make copies of the information, together with copies

of the direction, available for inspection and purchase by the public. (3) If the Commission gives the first person a notice under subsection (2), the Commission must make copies of the information, together with copies of the direction, available for inspection and purchase by the public: (a) as soon as practicable after the end of the 7-day period that began when the notice was given to the first person; or (b) if the Commission decides that the information and direction should not be made available during a further period of up to 14 days — after the end of that further period.

[14,175BR]

Register of tariff filing directions

151BR (1) The Commission must keep a Register in relation to tariff filing directions. (2) The Register must include the following: (a) particulars of all tariff filing directions (including directions that have expired); (b) particulars of all revocations of tariff filing directions; (c) particulars of all variations of tariff filing directions. (3) The Register may be maintained by electronic means. (4) A person may, on payment of the fee (if any) specified in the regulations: (a) inspect the Register; and (b) make a copy of, or take extracts from, the Register. (5) For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register. [page 1030] (6) If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information: (a) on a data processing device; or

(b) by way of electronic transmission.

[14,175BS] 151BS

False or misleading tariff information

[s 151BS rep Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

[14,175BT]

Meaning of terms and conditions

151BT In this Division: terms and conditions, in relation to the supply of goods or services, includes: (a) charges for the supply of the goods or services; and (b) any discounts, allowances, rebates or credits given or allowed in relation to the supply of the goods or services; and (c) any commissions or similar benefits (whether monetary or otherwise) payable or given in relation to the supply of the goods or services; and (d) the supply of other goods or services, where the other goods or services are supplied in connection with the first-mentioned goods or services; and (e) the making of payments for such other goods or services. DIVISION 5 — TARIFF FILING BY TELSTRA

[14,175BTA]

Tariff filing by Telstra

151BTA (1) This section applies to a charge for a basic carriage service. (2) At least 7 days before: (a) imposing a new charge; or (b) varying a charge; or (c) ceasing to impose a charge; Telstra must give the Commission, in a form approved in writing by the Commission, a written statement setting out such information about Telstra’s intentions as the Commission requires.

(3) The Commission may, on the application of Telstra, make a written determination that subsection (2) has effect, in relation to a specified matter, as if the reference in that subsection to 7 days were a reference to such shorter period as specified in the determination. (4) A determination under subsection (3) has effect accordingly. (5) Divisions 6 and 7 apply to a contravention of subsection (2) in a corresponding way to the way in which they apply to a contravention of a tariff filing direction. (6) This section does not, by implication, limit the application of Division 4 to Telstra. (7) The Commission may, by written notice given to Telstra, exempt a charge for a specified basic carriage service from the scope of subsection (2). [page 1031] (8) A basic carriage service may be specified for the purposes of subsection (7) by reference to any or all of the following: (a) the customers to whom the services are, or are proposed to be, supplied; (b) the kinds of terms and conditions on which the services are, or are proposed to be, supplied. (9) Subsection (8) does not, by implication, limit subsection (7). (10) An exemption under subsection (7) may be unconditional or subject to such conditions (if any) as are specified in the exemption. (11) Section 151BQ applies to information given to the Commission under this section in a corresponding way to the way in which it applies to information given to the Commission in accordance with a tariff filing direction. (12) [subs (12) rep Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001] (13) In this section: basic carriage service has the meaning given by section 174 of the Telecommunications Act 1991, as in force before 1 July 1997, but does not include a service supplied to an existing carrier.

existing carrier means a person who held a general telecommunications licence, or a public mobile licence, that was in force under the Telecommunications Act 1991 immediately before 1 July 1997. Telstra [def rep Act 140 of 2010 s 3 and Sch 1[34], opn 1 Jan 2011]

terms and conditions has the same meaning as in section 151BT. variation, in relation to a charge, means a variation of the nature of the charge or the amount of the charge, or both. DIVISION 6 — RECORD-KEEPING RULES AND DISCLOSURE DIRECTIONS [Div 6 am Act 52 of 1999 s 3 and Sch 1]

[14,175BU] Commission may make recordkeeping rules 151BU (1) The Commission may, by written instrument, make rules for and in relation to requiring one or more specified carriers or one or more specified carriage service providers to keep and retain records. Rules under this subsection may also require those carriers or carriage service providers to prepare reports consisting of information contained in those records. Rules under this subsection may also require those carriers or carriage service providers to give any or all of the reports to the Commission. Rules under this subsection are to be known as record-keeping rules. [subs (1) am Act 52 of 1999 s 3 and Sch 1]

Note 1: Carriers and carriage service providers may be specified by name, by inclusion in a specified class or in any other way. Note 2: For enforcement of the record-keeping rules, see Division 7. (2) The rules may specify the manner and form in which the records are to be kept. (2A) The rules may specify the manner and form in which reports are to be prepared. [subs (2A) insrt Act 52 of 1999 s 3 and Sch 1]

[page 1032] (2B) The rules may provide for: (a) the preparation of reports as and when required by the Commission; or (b) the preparation of periodic reports relating to such regular intervals as are specified in the rules. [subs (2B) insrt Act 52 of 1999 s 3 and Sch 1]

(2C) The rules may require or permit a report prepared in accordance with the rules to be given to the Commission, in accordance with specified software requirements and specified authentication requirements: (a) on a specified kind of data processing device; or (b) by way of a specified kind of electronic transmission. [subs (2C) insrt Act 52 of 1999 s 3 and Sch 1]

(2D) Subsections (2), (2A), (2B) and (2C) do not limit subsection (1). [subs (2D) insrt Act 52 of 1999 s 3 and Sch 1]

(3) If the rules apply to a particular carrier or carriage service provider, the Commission must give the carrier or provider a copy of the rules. (4) The Commission must not exercise its powers under this section so as to require the keeping or retention of records unless the records contain, or will contain, information that is relevant to: (a) ascertaining whether the competition rule has been, or is being, complied with; or (b) ascertaining whether tariff filing directions have been, or are being, complied with; or (c) the operation of this Part (other than this Division); or (d) the operation of Part XIC (which deals with access); or (da) the operation of the National Broadband Network Companies Act 2011 or regulations under that Act; or (e) the operation of Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or (f) the operation of Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with

regulation of Telstra’s charges). [subs (4) am Act 52 of 1999 s 3 and Sch 1; Act 52 of 1999 s 3 and Sch 3; Act 23 of 2011 s 3 and Sch 1 item 26, opn 13 Apr 2011]

(5) Record-keeping rules made before 1 July 1997 come into force on 1 July 1997. (6) This section does not limit section 155 (which is about the general information-gathering powers of the Commission). [subs (6) insrt Act 52 of 1999 s 3 and Sch 1]

[14,175BUAA] Commission

Minister may give directions to

151BUAA (1) The Minister may, by legislative instrument, give a direction to the Commission in relation to the exercise of its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC. [subs (1) am Act 10 of 2015 s 3 and Sch 3 item 68, opn 5 Mar 2016]

[page 1033] (1A) The Minister may only give a direction under subsection (1) that: (a) requires the Commission to exercise its powers under section 151BU, 151BUDB, 151BUDB or 151BUDC; or (b) requires the Commission to exercise its powers under section 151BU, 151BUDB, 151BUDB or 151BUDC in a particular way. (1B) The Minister may, by legislative instrument, give a direction to the Commission requiring it, in the event that it receives a specified Ministerially-directed report, to: (a) prepare a specified kind of analysis of the report; and (b) publish the analysis within a specified period after receiving the report. Note: For specification by class, see subsection 13(3) of the Legislation Act 2003. [subs (1B) am Act 46 of 2011 s 3 and Sch 2[427], opn 27 Dec 2011; Act 10 of 2015 s 3 and Sch 3 item 69, opn 5 Mar 2016; Act 126 of 2015 s 3 and Sch 1 item 141, opn 5 Mar 2016]

(1C) The Minister may, by legislative instrument, give a direction to the Commission requiring it, in the event that it receives a report in a specified series of Ministerially-directed periodic reports, to: (a) prepare a specified kind of analysis of the report; and (b) publish the analysis within a specified period after receiving the report. [subs (1C) am Act 10 of 2015 s 3 and Sch 3 item 69, opn 5 Mar 2016]

(2) The Commission must comply with a direction under this section. (3) If: (a) a record-keeping rule is made as a result of a direction under subsection (1); and (b) the rule requires the preparation of a report; then: (c) the rule must contain a statement to the effect that the rule was made as a result of a Ministerial direction; and (d) a report prepared under the rule is to be known as a Ministeriallydirected report. (4) [subs (4) rep Act 10 of 2015 s 3 and Sch 3 item 70, opn 5 Mar 2016] [s 151BUAA insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[14,175BUAAA] Minister to give direction to Commission about Telstra’s wholesale operations and retail operations *151BUAAA opn 1 Jan 2011]

[s 151BUAAA rep Act 140 of 2010 s 3 and Sch 1[35],

[14,175BUAB]

Request for disclosure

151BUAB (1) A person may request the Commission to exercise its powers under: (a) section 151BUA or 151BUB in relation to a particular report; or *Editor’s note: Telecommunications Legislation Amendment (Competition and Consumer

Safeguards) Act 2010 Sch 1[40], effective 1 January 2011, provides: Transitional — continuity of special Telstra directions The repeal of section 151BUAAA of the Competition and Consumer Act 2010 effected by this Part does not affect the continuity of a special Telstra direction (within the meaning of that section) that was in force immediately before the commencement of this item.

[page 1034] (b) section 151BUC in relation to a particular series of periodic reports. (2) The request must be in writing. (3) The Commission must consider the request. (4) However, the Commission need not consider the request if it considers that the request is frivolous, vexatious or was not made in good faith. [s 151BUAB insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[14,175BUA]

Commission gives access to reports

151BUA (1) This section applies to a particular report given to the Commission by a carrier, or a carriage service provider, in accordance with the record-keeping rules. (2) Criteria for disclosure If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to: (a) promote competition in markets for listed carriage services; or (b) facilitate the operation of: (i) this Part (other than this Division); or (ii) Part XIC (which deals with access); or (iia) the National Broadband Network Companies Act 2011 or regulations under that Act; or (iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or (iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with

regulation of Telstra’s charges); the Commission may give the carrier or carriage service provider concerned: (c) a written notice stating that the Commission intends to make copies of the report or extracts, together with other relevant material (if any) specified in the notice, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; or (d) a written notice stating that the Commission intends to make copies of the report or extracts, together with other relevant material (if any) specified in the notice, available for inspection and purchase: (i) by such persons as are specified in the notice; and (ii) on such terms and conditions (if any) as are specified in the notice; as soon as practicable after the end of the period specified in the notice. Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901. [subs (2) am Act 52 of 1999 s 3 and Sch 3; Act 23 of 2011 s 3 and Sch 1 item 27, opn 13 Apr 2011; Act 46 of 2011 s 3 and Sch 2[428], opn 27 Dec 2011]

(3) Period specified in notice The period specified in a notice under subsection (2) must run for at least 28 days after the notice was given. (4) Criteria for giving notice In deciding whether to give a notice under subsection (2), the Commission must have regard to: (a) the legitimate commercial interests of the carrier or carriage service provider concerned; and [page 1035] (b) such other matters as the Commission considers relevant. (5) Consultation before giving notice The Commission must not give the carrier or carriage service provider concerned a notice under subsection (2) unless the Commission has first: (a) given the carrier or carriage service provider a written notice:

(i)

setting out a draft version of the notice under subsection (2); and (ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and (b) considered any submission that was received within that time limit. The time limit specified in a notice under paragraph (a) must be at least 28 days after the notice was given. (6) Public access If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(c), the Commission: (a) must make copies of the report or extracts, together with the other material (if any) specified in the notice, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; and (b) may also give a written direction to the carrier or carriage service provider concerned requiring it to take such action as is specified in the direction to inform the public, or such persons as are specified in the direction, that the report is, or the extracts are, so available. Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901. [subs (6) am Act 46 of 2011 s 3 and Sch 2[429], opn 27 Dec 2011]

(7) A person must comply with a direction under paragraph (6)(b). (8) Limited access If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(d), the Commission must: (a) make copies of the report or extracts, together with the other material (if any) specified in the notice, available for inspection and purchase by the persons specified in the notice as soon as practicable after the end of the period specified in the notice; and (b) take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the notice. (9) If, in accordance with subsection (8), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the notice concerned.

(10) Offences A person who contravenes subsection (7) commits an offence punishable on conviction by a fine not exceeding 20 penalty units. [subs (10) am Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001; Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016]

(11) A person who contravenes subsection (9) commits an offence punishable on conviction by a fine not exceeding 100 penalty units. [subs (11) am Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016] [s 151BUA insrt Act 52 of 1999 s 3 and Sch 1; am Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

[page 1036]

[14,175BUB] Carrier or carriage service provider gives access to reports 151BUB (1) This section applies to a report prepared by a carrier, or a carriage service provider, in accordance with the record-keeping rules. (2) Disclosure direction If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to: (a) promote competition in markets for listed carriage services; or (b) facilitate the operation of: (i) this Part (other than this Division); or (ii) Part XIC (which deals with access); or (iia) the National Broadband Network Companies Act 2011 or regulations under that Act; or (iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or (iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges); the Commission may give the carrier or carriage service provider concerned: (c) a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in

the direction, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the direction; or (d) a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase: (i) by such persons as are specified in the direction; and (ii) on such terms and conditions (if any) as are specified in the direction; as soon as practicable after the end of the period specified in the direction. Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901. [subs (2) am Act 52 of 1999 s 3 and Sch 3; Act 23 of 2011 s 3 and Sch 1 item 28, opn 13 Apr 2011; Act 46 of 2011 s 3 and Sch 2[430], opn 27 Dec 2011]

(3) The period specified in a direction under subsection (2) must run for at least 28 days after the direction was given. (4) A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction. (5) Criteria for giving direction In deciding whether to give a direction under subsection (2), the Commission must have regard to: (a) the legitimate commercial interests of the carrier or carriage service provider concerned; and (b) such other matters as the Commission considers relevant. (6) Consultation before giving direction The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first: (a) given the carrier or carriage service provider a written notice: [page 1037] (i)

setting out a draft version of the direction; and

(ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and (b) considered any submission that was received within that time limit. The time limit specified in the notice must be at least 28 days after the notice was given. (7) Direction to give information about availability of report If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that the report is, or extracts are, available for inspection and purchase. (8) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that the report is, or the extracts are, available for inspection and purchase. (9) A person must comply with a direction under subsection (7) or (8). (10) Reasonable charge The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase. (11) Compliance with terms and conditions If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction. (12) Offences A person who contravenes subsection (9) commits an offence punishable on conviction by a fine not exceeding 20 penalty units. [subs (12) am Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001; Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016]

(13) A person who contravenes subsection (11) commits an offence punishable on conviction by a fine not exceeding 100 penalty units. [subs (13) am Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001; Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016]

(14) Section 151BUC does not limit this section Section 151BUC does not limit this section. [s 151BUB insrt Act 52 of 1999 s 3 and Sch 1]

[14,175BUC] Carrier or carriage service provider gives access to periodic reports 151BUC (1) This section applies to a particular series of periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record-keeping rules. [page 1038] (2) Disclosure direction If the Commission is satisfied that the disclosure of each of the reports in that series, or the disclosure of particular extracts from each of the reports in that series, would be likely to: (a) promote competition in markets for listed carriage services; or (b) facilitate the operation of: (i) this Part (other than this Division); or (ii) Part XIC (which deals with access); or (iia) the National Broadband Network Companies Act 2011 or regulations under that Act; or (iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or (iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges); the Commission may give the carrier or carriage service provider concerned: (c) a written direction requiring it to make copies of each of those reports or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase by the public by such times as are ascertained in accordance with the

direction; or (d) a written direction requiring it to make copies of each of those reports or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase: (i) by such persons as are specified in the direction; and (ii) on such terms and conditions (if any) as are specified in the direction; by such times as are ascertained in accordance with the direction. Note 1: For example, a direction under paragraph (2)(c) could require that each report in a particular series of quarterly reports be made available by the 28th day after the end of the quarter to which the report relates. Note 2: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901. [subs (2) am Act 52 of 1999 s 3 and Sch 3; Act 23 of 2011 s 3 and Sch 1 item 29, opn 13 Apr 2011; Act 46 of 2011 s 3 and Sch 2[431], opn 27 Dec 2011]

(3) In the case of the first report in the series (or extracts from that report), the applicable time ascertained in accordance with a direction under subsection (2) must be later than the 28th day after the day on which the direction was given. (4) A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction. (5) Criteria for giving direction In deciding whether to give a direction under subsection (2), the Commission must have regard to: (a) the legitimate commercial interests of the carrier or carriage service provider concerned; and (b) such other matters as the Commission considers relevant. (6) Consultation before giving direction The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first: [page 1039]

(a) given the carrier or carriage service provider a written notice: (i) setting out a draft version of the direction; and (ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and (b) considered any submission that was received within that time limit. The time limit specified in the notice must be at least 28 days after the notice was given. (7) Direction to give information about availability of reports If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that each of those reports is, or extracts are, available for inspection and purchase. (8) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that each of those reports is, or the extracts are, available for inspection and purchase. (9) A person must comply with a direction under subsection (7) or (8). (10) Reasonable charge The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase. (11) Compliance with terms and conditions If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction. (12) Offences A person who contravenes subsection (9) commits an offence punishable on conviction by a fine not exceeding 20 penalty units. [subs (12) am Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001; Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016]

(13) A person who contravenes subsection (11) commits an offence punishable on conviction by a fine not exceeding 100 penalty units. [subs (13) am Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001; Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016]

[s 151BUC insrt Act 52 of 1999 s 3 and Sch 1]

[14,175BUD] requirements

Exemption of reports from access

151BUD (1) Full exemption The Commission may, by legislative instrument, make a determination exempting specified reports from the scope of sections 151BUA, 151BUB and 151BUC, either: (a) unconditionally; or (b) subject to such conditions (if any) as are specified in the determination. The determination has effect accordingly. Note: For specification by class, see subsection 13(3) of the Legislation Act 2003. [subs (1) am Act 46 of 2011 s 3 and Sch 2[432], opn 27 Dec 2011; Act 103 of 2013 s 3 and Sch 3 item 71, opn 29 June 2013; Act 126 of 2015 s 3 and Sch 1 item 141, opn 5 Mar 2016]

[page 1040] (2) If all of the information contained in a report (the first report) is, or is to be, set out in a report under Division 12A, the first report is exempt from the scope of sections 151BUA, 151BUB and 151BUC. (3) Partial exemption The Commission may, by legislative instrument, make a determination that specified information is exempt information for the purposes of this section, either: (a) unconditionally; or (b) subject to such conditions (if any) as are specified in the determination. The determination has effect accordingly. Note: For specification by class, see subsection 13(3) of the Legislation

Act 2003. [subs (3) am Act 46 of 2011 s 3 and Sch 2[433], opn 27 Dec 2011; Act 103 of 2013 s 3 and Sch 3 item 71, opn 29 June 2013; Act 126 of 2015 s 3 and Sch 1 item 141, opn 5 Mar 2016]

(4) If some, but not all, of the information contained in a report is, or is to be, set out in a report under Division 12A, so much of the information as is, or is to be, set out in the Division 12A report is exempt information for the purposes of this section. (5) If a report contains exempt information, sections 151BUA, 151BUB and 151BUC apply as if: (a) the exempt information were not part of the report; and (b) so much of the report as does not consist of the exempt information were a report in its own right. (6) Disallowable instrument [subs (6) rep Act 103 of 2013 s 3 and Sch 3 item 72, opn 29 June 2013] [s 151BUD insrt Act 52 of 1999 s 3 and Sch 1]

[14,175BUDA] Commission gives access to Ministerially-directed reports 151BUDA (1) This section applies to a particular Ministerially-directed report given to the Commission by a carrier, or a carriage service provider, in accordance with the record-keeping rules. (2) Public access The Commission: (a) may make: (i) copies of the report or copies of extracts from the report; and (ii) such other relevant material (if any) as the Commission determines; available to the public; and (b) may also give a written direction to the carrier or provider requiring it to take such action as is specified in the direction to inform the public, or such persons as are specified in the direction, that the report is, or the extracts are, so available. Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

[subs (2) am Act 46 of 2011 s 3 and Sch 2[434], opn 27 Dec 2011]

(3) Limited access The Commission may make: (a) copies of the report or copies of extracts from the report; and (b) such other relevant material (if any) as the Commission determines; [page 1041] available: (c) to particular persons; and (d) on such terms and conditions (if any) as the Commission determines. (4) If subsection (3) applies, the Commission must take reasonable steps to inform the persons who access copies of the report or extracts of the terms and conditions (if any) on which the copies are available. (5) If, in accordance with subsection (3), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) on which the copy is available. (6) Offences A person commits an offence if: (a) the person is subject to a direction under paragraph (2)(b); and (b) the person omits to do an act; and (c) the omission breaches the direction. Penalty: 20 penalty units. [subs (6) am Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016]

(7) Offences A person commits an offence if: (a) the person is subject to a requirement under subsection (5); and (b) the person omits to do an act; and (c) the act or omission breaches the requirement. Penalty: 100 penalty units. [subs (7) am Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016]

(8) Exercise of power by Commission The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.

(9) Application of section 151BUA This section does not limit section 151BUA. [s 151BUDA insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[14,175BUDB] Carrier or carriage service provider gives access to Ministerially-directed reports 151BUDB (1) This section applies to a Ministerially-directed report prepared by a carrier, or a carriage service provider, in accordance with the record-keeping rules. (2) Disclosure direction The Commission may give the carrier or provider: (a) a written direction requiring it to make copies of the report or copies of particular extracts from the report, together with other relevant material (if any) specified in the direction, available: (i) to the public; and (ii) in the manner specified in the direction; and (iii) as soon as practicable after the end of the period specified in the direction; or (b) a written direction requiring it to make copies of the report or copies of particular extracts from the report, together with other relevant material (if any) specified in the direction, available: (i) to such persons as are specified in the direction; and [page 1042] (ii) on such terms and conditions (if any) as are specified in the direction; and (iii) in the manner specified in the direction; and (iv) as soon as practicable after the end of the period specified in the direction. Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

[subs (2) am Act 46 of 2011 s 3 and Sch 2[435], opn 27 Dec 2011]

(3) A direction under paragraph (2)(b) is also taken to require the carrier or provider to take reasonable steps to inform the persons who access the copies of the report or extracts of the terms and conditions (if any) that are specified in the direction. (4) Direction to give information about availability of report If the Commission gives the carrier or provider a direction under paragraph (2)(a), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public: (a) that the report is, or extracts are, available; and (b) of the way in which the report or extracts may be accessed. (5) If the Commission gives the carrier or provider a direction under paragraph (2)(b), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(b) direction that: (a) the report is, or extracts are, available; and (b) of the way in which the report or extracts may be accessed. (6) Compliance with terms and conditions If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction. (7) Offences A person commits an offence if: (a) the person is subject to a direction under subsection (4) or (5); and (b) the person omits to do an act; and (c) the omission breaches the direction. Penalty: 20 penalty units. [subs (7) am Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016]

(8) A person commits an offence if: (a) the person is subject to a requirement under subsection (6); and (b) the person does an act or omits to do an act; and (c) the act or omission breaches the requirement. Penalty: 100 penalty units. [subs (8) am Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016]

(9) Exercise of power by Commission The Commission may only exercise a power under this section as required by a direction in force under

section 151BUAA. (10) Application of section 151BUB This section does not limit section 151BUB. (11) Application of section 151BUDC Section 151BUDC does not limit this section. [s 151BUDB insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[page 1043]

[14,175BUDC] Carrier or carriage service provider gives access to Ministerially-directed periodic reports 151BUDC (1) This section applies to a particular series of Ministerially-directed periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record-keeping rules. (2) Disclosure direction The Commission may give the carrier or provider: (a) a written direction requiring it to make copies of each of the reports in that series or copies of particular extracts from each of the reports in that series, together with other relevant material (if any) specified in the direction, available: (i) to the public; and (ii) in the manner specified in the direction; and (iii) by such times as are ascertained in accordance with the direction; or (b) a written direction requiring it to make copies of each of the reports in the series or copies of particular extracts from each of the reports in the series, together with other relevant material (if any) specified in the direction, available: (i) to such persons as are specified in the direction; and (ii) on such terms and conditions (if any) as are specified in the

direction; and (iii) in the manner specified in the direction; and (iv) by such times as are ascertained in accordance with the direction. Note 1: For example, a direction under paragraph (2)(a) could require that each report in a particular series of quarterly reports be made available by the 28th day after the end of the quarter to which the report relates. Note 2: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901. [subs (2) am Act 46 of 2011 s 3 and Sch 2[436], opn 27 Dec 2011]

(3) A direction under paragraph (2)(b) is also taken to require the carrier or provider to take reasonable steps to inform the persons who access the copies of the report or extracts of the terms and conditions (if any) that are specified in the direction. (4) Direction to give information about availability of report If the Commission gives the carrier or provider a direction under paragraph (2)(a), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public: (a) that each of those reports is, or extracts are, available; and (b) of the way in which those reports or extracts may be accessed. (5) If the Commission gives the carrier or provider a direction under paragraph (2)(b), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(b) direction: (a) that each of those reports is, or extracts are, available; and (b) of the way in which those reports or extracts may be accessed. (6) Compliance with terms and conditions If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction. [page 1044] (7) Offences A person commits an offence if:

(a) the person is subject to a direction under subsection (4) or (5); and (b) the person omits to do an act; and (c) the omission breaches the direction. Penalty: 20 penalty units. [subs (7) am Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016]

(8) A person commits an offence if: (a) the person is subject to a requirement under subsection (6); and (b) the person does an act or omits to do an act; and (c) the act or omission breaches the requirement. Penalty: 100 penalty units. [subs (8) am Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016]

(9) Exercise of power by Commission The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA. (10) Application of section 151BUC This section does not limit section 151BUC. (11) Application of section 151BUDB Section 151BUDB does not limit this section. [s 151BUDC insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[14,175BUE]

Access via the internet

151BUE If the Commission, a carrier or a carriage service provider is required under this Division to make copies of a report, extracts or other material available for inspection and purchase, the Commission, carrier or carriage service provider, as the case may be, may comply with that requirement by making the report, extracts or other material available for inspection and purchase on the internet. [s 151BUE insrt Act 52 of 1999 s 3 and Sch 1; am Act 8 of 2010 s 3 and Sch 5, Pt 2[137(a), (b)], opn 1 Mar 2010]

[14,175BUF]

Self-incrimination

151BUF (1) An individual is not excused from giving a report under the record-keeping rules, or from making a report or extracts available under this Division, on the ground that the report or extracts might tend to incriminate

the individual or expose the individual to a penalty. (2) However: (a) giving the report or making the report or extracts available; or (b) any information, document or thing obtained as a direct or indirect consequence of giving the report or making the report or extracts available; is not admissible in evidence against the individual in: (c) criminal proceedings other than proceedings under, or arising out of, section 151BV; or (d) proceedings under section 151BY for recovery of a pecuniary penalty in relation to a contravention of a disclosure direction. [s 151BUF insrt Act 52 of 1999 s 3 and Sch 1]

[page 1045]

[14,175BV]

Incorrect records

151BV (1) A person must not, in purported compliance with a requirement imposed by the record-keeping rules, make a record of any matter or thing in such a way that it does not correctly record the matter or thing. (2) A person who contravenes subsection (1) commits an offence punishable on conviction by imprisonment for a term not exceeding 6 months. Note: See also sections 4AA and 4B of the Crimes Act 1914. [subs (2) am Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001; Act 4 of 2016 s 3 and Sch 4 item 68, opn 10 Mar 2016]

DIVISION 7 — ENFORCEMENT OF THE COMPETITION RULE, TARIFF FILING DIRECTIONS, RECORD-KEEPING RULES AND DISCLOSURE DIRECTIONS [Div 7 am Act 52 of 1999 s 3 and Sch 1]

[14,175BW] Person involved in a contravention of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction 151BW A reference in this Division to a person involved in a contravention of the competition rule, a tariff filing direction, a recordkeeping rule or a disclosure direction is a reference to a person who: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced, whether by threats or promises or otherwise, the contravention; or (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention. [s 151BW am Act 52 of 1999 s 3 and Sch 1]

[14,175BX] Pecuniary penalties for breach of the competition rule, a tariff filing direction, a recordkeeping rule or a disclosure direction 151BX (1) If the Federal Court is satisfied that a person: (a) has contravened the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction; or (b) has attempted to contravene the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction; or (c) has been involved in a contravention of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction; the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate. [subs (1) am Act 52 of 1999 s 3 and Sch 1]

(2) In determining a pecuniary penalty, the Court must have regard to all relevant matters, including: (a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered as a result of the contravention; and [page 1046] (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct. (3) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed: (a) in the case of a contravention of the competition rule — for each contravention: (i) if the contravention continued for more than 21 days — the sum of $31 million and $3 million for each day in excess of 21 that the contravention continued; or (ii) otherwise — the sum of $10 million and $1 million for each day that the contravention continued; or (b) in the case of a contravention of a tariff filing direction — $10 million for each contravention; or (c) in the case of a contravention of a record-keeping rule or of a disclosure direction — $250,000 for each contravention. [subs (3) am Act 52 of 1999 s 3 and Sch 1; Act 119 of 2005 s 3 and Sch 4, opn 24 Sep 2005]

(4) The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed: (a) in the case of a contravention of a record-keeping rule or of a disclosure direction — $50,000 for each contravention; or (b) in any other case — $500,000 for each contravention. [subs (4) am Act 52 of 1999 s 3 and Sch 1]

(5) If conduct constitutes a contravention of: (a) 2 or more tariff filing directions; or (b) 2 or more record-keeping rules; or (c) 2 or more disclosure directions; proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of the tariff filing directions, record-

keeping rules or disclosure directions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct. [subs (5) am Act 52 of 1999 s 3 and Sch 1]

(6) If a person’s conduct gives rise to a liability to pay a pecuniary penalty under: (a) this Part; and (b) Part VI; proceedings relating to the conduct may be instituted against the person under this Part or under Part VI. However, the person is not liable to more than one pecuniary penalty in respect of the same conduct.

[14,175BY] penalties

Civil action for recovery of pecuniary

151BY (1) The Commission may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 151BX. (2) A proceeding under subsection (1) may be commenced within 6 years after the contravention. [page 1047] (3) A proceeding under subsection (1) must not be instituted in relation to: (a) a contravention of the competition rule; or (b) attempting to contravene the competition rule; or (c) aiding, abetting, counselling or procuring a person to contravene the competition rule; or (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene the competition rule; or (e) being in any way, directly or indirectly, knowingly concerned in, or party to, a contravention by a person of the competition rule; or (f) conspiring with others to contravene the competition rule;

unless: (g) in a case where paragraph (a) applies — the alleged conduct is of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred; or (h) in any other case — the alleged conduct is related to conduct of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred. [subs (3) am Act 52 of 1999 s 3 and Sch 1]

[14,175BZ] Criminal proceedings not to be brought for contraventions of the competition rule, tariff filing directions, record-keeping rules or disclosure directions 151BZ (1) Criminal proceedings do not lie against a person only because the person: (a) has contravened the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction; or (b) has attempted to contravene the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction; or (c) has been involved in a contravention of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction. [subs (1) am Act 52 of 1999 s 3 and Sch 1]

(2) To avoid doubt, this section does not affect the operation of Division 137 of the Criminal Code in respect of tariff information. [subs (2) subst Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

(3) To avoid doubt, subsection (1) does not apply in relation to proceedings for an offence against section 44ZZRF or 44ZZRG. [subs (3) insrt Act 59 of 2009 s 3 and Sch 1[111], opn 24 July 2009] [s 151BZ am Act 52 of 1999 s 3 and Sch 1]

[14,175CA]

Injunctions

151CA (1) Subject to subsection (3), if the Federal Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute: (a) a contravention of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction; or [page 1048] (b) attempting to contravene the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction; or (c) aiding, abetting, counselling or procuring a person to contravene the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction; or (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction; or (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of the competition rule, a tariff filing direction a record-keeping rule or a disclosure direction; or (f) conspiring with others to contravene the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction; the Court may, on the application of the Commission or any other person, grant an injunction in such terms as the Court determines to be appropriate. [subs (1) am Act 52 of 1999 s 3 and Sch 1]

(2) If: (a) an application for an injunction under subsection (1) has been made; and (b) the Court determines it to be appropriate to do so; the Court may grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1).

(3) If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1). (4) The Court may rescind or vary an injunction granted under subsection (1) or (3). (5) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised: (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and (b) whether or not the person has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind. (6) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised: (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing. (7) If the Commission makes an application to the Court for the grant of an injunction under this section, the Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages. (8) [subs (8) rep Act 52 of 1999 s 3 and Sch 1] [page 1049]

[14,175CB]

Orders to disclose information or

publish an advertisement — breach of the competition rule 151CB (1) If, on the application of the Commission, the Federal Court is satisfied that a person (the first person) has engaged in conduct constituting a contravention of the competition rule, the Court may make either or both of the following orders: (a) an order requiring the first person, or a person involved in the contravention, to disclose to the public, or to one or more specified persons, in such manner as is specified in the order, specified information, where the information is: (i) in the possession of the first person; or (ii) information to which the first person has access; (b) an order requiring the first person, or a person involved in the contravention, to publish, at the person’s own expense, in a manner and at times specified in the order, advertisements the terms of which are specified in, or are to be determined in accordance with, the order. (2) Subsection (1) does not limit section 151CA. (3) An application under subsection (1) must not be made in relation to a contravention of the competition rule unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred. [subs (3) am Act 52 of 1999 s 3 and Sch 1]

[14,175CC] Actions for damages — breach of the competition rule 151CC (1) A person who suffers loss or damage by conduct of another person that was done in contravention of the competition rule may recover the amount of the loss or damage by action against: (a) that other person; or (b) any person involved in the contravention. (2) An action under subsection (1) may be commenced at any time within

3 years after the date on which the cause of action accrued. (3) An action under subsection (1) must not be brought in relation to a contravention of the competition rule unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred. [subs (3) am Act 52 of 1999 s 3 and Sch 1]

[14,175CD] evidence

Finding of fact in proceedings to be

151CD (1) This section applies to a finding of any fact by a court made in proceedings under section 151BY, 151CA or 151CB in which a person has been found to have contravened, or to have been involved in a contravention of, the competition rule or a tariff filing direction. (2) In: (a) a proceeding under sectiob 151CC against the person; or (b) an application under section 151CE(1) for an order against the person; the finding: [page 1050] (c) is prima facie evidence of that fact; and (d) may be proved by production of a document under the seal of the court from which the finding appears.

[14,175CE] Other orders — compensation for breach of the competition rule 151CE (1) If, in a proceeding instituted under this Division in relation to a contravention of the competition rule, the Federal Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer,

loss or damage by conduct of another person that was engaged in in contravention of the competition rule, the Court may, on the application of a party to the proceedings, make such orders as it thinks appropriate against: (a) the person who engaged in the conduct; or (b) a person who was involved in the contravention; if the Court considers that the orders concerned will: (c) compensate the first-mentioned person, in whole or in part, for the loss or damage; or (d) prevent or reduce the loss or damage. (2) The Federal Court may make an order under subsection (1) whether or not it: (a) grants an injunction under section 151CA; or (b) makes an order under section 151BX, 151CB or 151CC. (3) Subsection (1) does not, by implication, limit section 151CA. (4) The Federal Court’s orders include, but are not limited to, the following: (a) an order declaring the whole or any part of: (i) a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct; or (ii) a collateral arrangement relating to such a contract; to be void and, if the Court thinks fit, to have been void ab initio or at all times on and after such date before the date on which the order is made as is specified in the order; (b) an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified; (c) an order refusing to enforce any or all of the provisions of such a contract or collateral arrangement; (d) an order directing: (i) the person who engaged in the conduct; or (ii) a person who was involved in the contravention constituted

by the conduct; to refund money or return property to the person who suffered the loss or damage; (e) an order directing: (i) the person who engaged in the conduct; or [page 1051] (ii) a person who was involved in the contravention constituted by the conduct; to pay to the person who suffered the loss or damage the amount of the loss or damage; (f) an order directing: (i) the person who engaged in the conduct; or (ii) a person who was involved in the contravention constituted by the conduct; at the person’s own expense, to supply specified goods or services to the person who suffered, or is likely to suffer, the loss or damage. (5) An application under subsection (1) must not be made in relation to a contravention of the competition rule unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred. [subs (5) am Act 52 of 1999 s 3 and Sch 1]

(6) The powers conferred on the Federal Court by this section in relation to a contract do not affect any powers that any other court may have in relation to the contract in proceedings instituted in that other court in respect of the contract.

[14,175CF] agents 151CF

Conduct by directors, employees or

Part 32 of the Telecommunications Act 1997 applies in relation

to proceedings under this Division in a corresponding way to the way in which it applies to proceedings under that Act (as defined by section 574 of that Act). DIVISION 8 — DISCLOSURE OF DOCUMENTS BY COMMISSION

[14,175CG] Disclosure of documents by Commission 151CG (1) This section applies to a person if: (a) the person makes an application to the Commission for an exemption order; or (b) under section 151BG, the Commission gives the person an opportunity to make a submission to the Commission about a proposal to revoke an exemption order; or (c) the Commission institutes a proceeding against the person under Division 7. (2) The Commission must, at the request of the person and on payment of the fee (if any) specified in the regulations, give to the person: (a) a copy of each document that has been given to, or obtained by, the Commission in connection with the matter to which the application, proposal or proceeding relates and tends to establish the person’s case; and (b) a copy of any other document in the possession of the Commission that comes to the attention of the Commission in connection with the matter and to which the application, proposal or proceeding relates and tends to establish the person’s case; so long as the document is not obtained from the person or prepared by an officer or professional adviser of the Commission. (3) If the Commission does not comply with a request under subsection (2), the [page 1052]

Federal Court must, upon application by the person, make an order directing the Commission to comply with the request. This rule has effect subject to subsection (4). (4) The Federal Court may refuse to make an order under subsection (3) about a document or a part of a document if the Federal Court considers it inappropriate to make the order on the grounds that the disclosure of the contents of the document or part of the document would prejudice any person, or for any other reason. (5) Before the Federal Court gives a decision on an application under subsection (3), the Federal Court may require any documents to be produced to it for inspection. (6) An order under this section may be expressed to be subject to such conditions as are specified in the order. DIVISION 9 — TREATMENT OF PARTNERSHIPS

[14,175CH]

Treatment of partnerships

151CH This Part applies to a partnership as if the partnership was a person, but it applies with the following changes: (a) obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners; (b) any offence against this Part that would otherwise be committed by the partnership is taken to have been committed by each partner who: (i) aided, abetted, counselled or procured the relevant act or omission; or (ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner). DIVISION 10 — REVIEW OF DECISIONS

[14,175CI]

Review by Tribunal

151CI (1) If the Commission makes a decision under section 151BA to refuse to make an exemption order relating to conduct of a person, the person may apply to the Tribunal for a review of the decision. (2) If the Commission makes a decision under section 151BG to revoke an exemption order relating to conduct of a person, the person may apply to the Tribunal for a review of the decision. (3) If the Commission makes a decision under section 151BQ to make information obtained from a person available for inspection and purchase, the person may apply to the Tribunal for a review of the decision. (3A) If the Commission: (a) makes a decision under section 151BUA to make a report obtained from a person, or an extract from such a report, available for inspection and purchase; or (b) makes a decision under section 151BUB or 151BUC to give a person a written direction to make a report or extract available for inspection and purchase; the person may apply to the Tribunal for a review of the decision. [subs (3A) insrt Act 52 of 1999 s 3 and Sch 1]

[page 1053] (4) An application under this section for a review of a decision must be: (a) in writing; and (b) in the case of an application under subsection (1) or (2) — made within 21 days after the Commission made the decision; and (c) in the case of an application under subsection (3) — made within 7 days after the Commission made the decision; and (d) in the case of an application under subsection (3A) — made within 28 days after the Commission made the decision. [subs (4) am Act 52 of 1999 s 3 and Sch 1]

(5) If the Tribunal receives an application under this section for a review of a decision, the Tribunal must review the decision.

[14,175CJ]

Functions and powers of Tribunal

*151CJ (1) Decision on review On a review of a decision of the Commission of a kind mentioned in section 151CI, the Tribunal may make a decision: (a) in any case — affirming the Commission’s decision; or (b) in the case of a review of a decision of the Commission under section 151BA refusing to make an exemption order — both: (i) setting aside the Commission’s decision; and (ii) in substitution for the decision so set aside, making an exemption order; or (c) in the case of a review of a decision of the Commission under section 151BG to revoke an exemption order — setting aside the Commission’s decision; or (d) in the case of a review of a decision of the Commission under section 151BQ, section 151BUA, 151BUB or 151BUC — setting aside or varying the Commission’s decision; and, for the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission. [subs (1) subst Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

(2) A decision by the Tribunal: (a) affirming a decision of the Commission; or (b) setting aside a decision of the Commission; or (c) made in substitution for a decision of the Commission; or (d) varying a decision of the Commission; *Editor’s note: Schedule 2 cl 115 of the Telecommunications Competition Act 2002 No 140 provides as follows:

Transitional — section 151CJ of the Trade Practices Act 1974 115 Subsections 151CJ(1) and (2) of the Trade Practices Act 1974 as amended by this Part apply in relation to: (a) an application under section 151CI of the Trade Practices Act 1974 that was made after the commencement of this item; or (b) an application under section 151CI of the Trade Practices Act 1974 that was made before the commencement of this item, so long as the Tribunal did not make a decision on the review

under subsection 151CJ(1) commencement of this item.

of

that

Act

before

the

[page 1054] is taken, for the purposes of this Act (other than this Division), to be a decision of the Commission. [subs (2) subst Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

(3) Conduct of review For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies. (4) For the purposes of a review, the Tribunal may have regard to any information given, documents produced or evidence given to the Commission in connection with the making of the decision to which the review relates. Note: Division 2 of Part IX applies to proceedings before the Tribunal.

[14,175CK] Provisions that do not apply in relation to a Tribunal review 151CK Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision of the Commission of a kind mentioned in section 151CI. DIVISION 11 — REVIEWS OF COMPETITIVE SAFEGUARDS WITHIN THE TELECOMMUNICATIONS INDUSTRY

[14,175CL] Reviews of competitive safeguards within the telecommunications industry 151CL (1) The Commission must review, and report each financial year to the Minister on, competitive safeguards within the telecommunications industry, including:

(a) matters relating to the operation of this Part and Part XIC; and (b) such other matters relating to competition in the telecommunications industry as the Commission thinks appropriate. (2) The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the financial year concerned. (3) The Commission must, if directed in writing to do so by the Minister, review, and report to the Minister on, specified matters relating to competitive safeguards within the telecommunications industry. (4) The Commission must give a report under subsection (3) to the Minister before the end of the period specified in the direction. (5) The Minister must cause a copy of a report under this section to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report. (6) This section applies to a financial year ending on or after 30 June 1998. (7) In this section: telecommunications industry has the same meaning as in the Telecommunications Act 1997. [page 1055] DIVISION 12 — MONITORING OF TELECOMMUNICATIONS CHARGES PAID BY CONSUMERS

[14,175CM] Monitoring of telecommunications charges paid by consumers 151CM (1) The Commission must monitor, and report each financial year to the Minister on: (a) charges paid by consumers for the following goods and services: (i) listed carriage services; (ii) goods for use in connection with a listed carriage service;

services for use in connection with a listed carriage service; and (b) the adequacy of Telstra’s compliance with Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with price control arrangements for Telstra). (c) [repealed] (d) [repealed] (iii)

[subs (1) subst Act 52 of 1999 s 3 and Sch 1; am Act 52 of 1999 s 3 and Sch 3; Act 52 of 1999 s 3 and Sch 4; Act 111 of 2009 s 3 and Sch 1[107] and [108], opn 17 Nov 2009; Act 38 of 2015 s 3 and Sch 1 items 7, 8, opn 1 July 2015]

(2) The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the financial year concerned. (3) The Minister must cause a copy of a report under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report. (4) This section applies to a financial year ending on or after 30 June 1998. (5) In this section: digital data service provider [def rep Act 111 of 2009 s 3 and Sch 1[109], opn 17 Nov 2009]

listed carriage service has the Telecommunications Act 1997. universal service provider

same

meaning

as

in

the

[def rep Act 38 of 2015 s 3 and Sch 1 item 9, opn 1 July 2015]

DIVISION 12A — REPORTS ABOUT COMPETITION IN THE TELECOMMUNICATIONS INDUSTRY [Div 12A insrt Act 52 of 1999 s 3 and Sch 1]

[14,175CMA] Public reports about competition in the telecommunications industry 151CMA (1) The Commission must monitor, and report to the Minister on, such matters relating to competition in the telecommunications industry

as are specified in a determination made by the Minister for the purposes of this subsection. Note: For examples of matters that may be specified in a determination under subsection (1), see section 151CMC. [subs (1) am Act 10 of 2015 s 3 and Sch 3 item 71, opn 5 Mar 2016]

[page 1056] (2) Reports under subsection (1) are to be given to the Minister in respect of such regular intervals as are specified in a determination made by the Minister for the purposes of this subsection. [subs (2) am Act 10 of 2015 s 3 and Sch 3 item 71, opn 5 Mar 2016]

(3) Reports under subsection (1) must comply with such requirements in relation to the protection of confidential information as are specified in a determination made by the Minister for the purposes of this subsection. For this purpose, information is confidential information if, and only if, the publication of the information could reasonably be expected to prejudice substantially the commercial interests of a person. [subs (3) am Act 10 of 2015 s 3 and Sch 3 item 71, opn 5 Mar 2016]

(4) The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the regular interval to which the report relates. (5) The Minister must cause a copy of a report under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report. (6) The Minister may, by legislative instrument, make a determination for the purposes of subsection (1), (2) or (3). [subs (6) subst Act 10 of 2015 s 3 and Sch 3 item 72, opn 5 Mar 2016]

(7) In this section: telecommunications industry has the same meaning as in the Telecommunications Act 1997. [s 151CMA insrt Act 52 of 1999 s 3 and Sch 1]

[14,175CMB] Confidential reports about competition in the telecommunications industry 151CMB (1) The Commission must monitor, and report to the Minister on, such matters relating to competition in the telecommunications industry as are specified in a determination made by the Minister for the purposes of this subsection. Note: For examples of matters that may be specified in a determination under subsection (1), see section 151CMC. [subs (1) am Act 10 of 2015 s 3 and Sch 3 item 73, opn 5 Mar 2016]

(2) Reports under subsection (1) are to be given to the Minister in respect of such regular intervals as are specified in a determination made by the Minister for the purposes of this subsection. [subs (2) am Act 10 of 2015 s 3 and Sch 3 item 73, opn 5 Mar 2016]

(3) The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the regular interval to which the report relates. (4) The Minister may, by legislative instrument, make a determination for the purposes of subsection (1) or (2). [subs (4) subst Act 10 of 2015 s 3 and Sch 3 item 74, opn 5 Mar 2016]

(5) In this section: telecommunications industry has the same meaning as in the Telecommunications Act 1997. [s 151CMB insrt Act 52 of 1999 s 3 and Sch 1]

[page 1057]

[14,175CMC] Examples of matters that may be specified in a determination under section 151CMA or 151CMB 151CMC The following are examples of matters that may be specified in a determination made for the purposes of subsection 151CMA(1) or

151CMB(1): (a) charges for: (i) carriage services; or (ii) goods for use in connection with a carriage service; or (iii) services for use in connection with a carriage service; (b) carriers’ and carriage service providers’ respective shares of the total supply of: (i) carriage services; or (ii) goods for use in connection with a carriage service; or (iii) services for use in connection with a carriage service; (c) carriers’ and carriage service providers’ revenues relating to their respective shares of the total supply of: (i) carriage services; or (ii) goods for use in connection with a carriage service; or (iii) services for use in connection with a carriage service; (d) other indicators (whether quantitative or qualitative) relating to the supply of: (i) carriage services; or (ii) goods for use in connection with a carriage service; or (iii) services for use in connection with a carriage service. [s 151CMC insrt Act 52 of 1999 s 3 and Sch 1; am Act 10 of 2015 s 3 and Sch 3 item 75, opn 5 Mar 2016]

DIVISION 13 — REVIEW OF OPERATION OF THIS PART [Repealed] [Div 13 rep Act 109 of 2014 s 3 and Sch 2 item 112, opn 17 Oct 2014]

DIVISION 14 — OPERATIONAL SEPARATION FOR TELSTRA [Repealed] [Div 14 rep Act 140 of 2010 s 3 and Sch 1 item 66, opn 6 Mar 2012]

DIVISION 15 — VOLUNTARY UNDERTAKINGS GIVEN BY TELSTRA

[Div 15 insrt Act 140 of 2010 s 3 and Sch 1[36], opn 1 Jan 2011]

[14,175CQ] Telstra

Voluntary undertakings given by

151CQ (1) Scope This section applies if an undertaking given by Telstra is in force under section 577A, 577C or 577E of the Telecommunications Act 1997. Note 1: Section 577A of the Telecommunications Act 1997 deals with undertakings about structural separation. Note 2: Section 577C of the Telecommunications Act 1997 deals with undertakings about hybrid fibre-coaxial networks. Note 3: Section 577E of the Telecommunications Act 1997 deals with undertakings about subscription television broadcasting licences. [page 1058] (2) Commission must have regard to Telstra’s conduct If Telstra has engaged, or is required to engage, in conduct in order to comply with the undertaking, then, in performing a function, or exercising a power, under this Part in relation to Telstra, the Commission must have regard to the conduct to the extent that the conduct is relevant. DIVISION 16 — NBN CORPORATIONS [Div 16 insrt Act 23 of 2011 s 3 and Sch 1 item 29A, opn 13 Apr 2011]

[14,175DA] 51(1)

Authorised conduct — subsection

151DA (1) Objects The objects of this section are: (a) to promote the national interest in structural reform of the telecommunications industry; and (b) to promote uniform national pricing of eligible services supplied by NBN corporations by authorising, for the purposes of

subsection 51(1), certain conduct engaged in by NBN corporations. Note 1: If conduct is authorised for the purposes of subsection 51(1), the conduct is disregarded in deciding whether a person has contravened Part IV. Note 2: See also subsection 151AJ(10). (2) Authorised conduct — points of interconnection If: (a) an NBN corporation is a carrier or carriage service provider; and (b) the NBN corporation: (i) owns or controls one or more facilities; or (ii) is a nominated carrier in relation to one or more facilities; and (c) the NBN corporation refuses to permit interconnection of those facilities at a particular location with one or more facilities of: (i) a service provider; or (ii) a utility; and (d) the location is not a listed point of interconnection; and (e) the refusal is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities; the refusal is authorised for the purposes of subsection 51(1). Note: For listed point of interconnection, see section 151DB. (3) Authorised conduct — bundling of designated access services If: (a) an NBN corporation is a carrier or carriage service provider; and (b) the NBN corporation: (i) refuses to supply; or (ii) refuses to offer to supply; a designated access service to a service provider or utility unless the service provider or utility acquires, or agrees to acquire, one or more other designated access services (other than voice telephony facilitation services) from the NBN corporation; and (c) the refusal is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities; the refusal is authorised for the purposes of subsection 51(1).

[page 1059] (4) Authorised conduct — uniform national pricing If an NBN corporation engages in conduct that is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities, that conduct is authorised for the purposes of subsection 51(1). (5) Uniform national pricing For the purposes of this section, uniform national pricing of an eligible service supplied, or offered to be supplied, by an NBN corporation to service providers and utilities is achieved, if, and only if, the price-related terms and conditions on which the NBN corporation supplies, or offers to supply, the eligible service to service providers and utilities are the same throughout Australia. (6) For the purposes of this section, in determining whether there is uniform national pricing of an eligible service supplied, or offered to be supplied, by an NBN corporation, disregard any discrimination by the NBN corporation against another person on the grounds that the NBN corporation has reasonable grounds to believe that the other person would fail, to a material extent, to comply with the terms and conditions on which the NBN corporation supplies, or on which the NBN corporation is reasonably likely to supply, the eligible service. (6A) Examples of grounds for believing as mentioned in subsection (6) include: (a) evidence that the other person is not creditworthy; and (b) repeated failures by the other person to comply with the terms and conditions on which the same or a similar eligible service has been supplied (whether or not by the NBN corporation). (7) For the purposes of this section, in determining whether eligible services are characterised as: (a) the same eligible service; or (b) different eligible services; it is immaterial whether the services are supplied, or offered to be supplied, using: (c) the same facilities or kinds of facilities; or

(d) different facilities or kinds of facilities. (8) For example, the same eligible service could be supplied, or offered to be supplied, using: (a) an optical fibre line; or (b) terrestrial radiocommunications equipment; or (c) a satellite. (9) Definitions In this section: access virtual circuit service means an eligible service that is known as: (a) an access virtual circuit service; or (b) the access virtual circuit component of a fibre access service. connectivity virtual circuit service means an eligible service that is known as: (a) a connectivity virtual circuit service; or (b) the connectivity virtual circuit component of a fibre access service. designated access service means: (a) an access virtual circuit service; or (b) a connectivity virtual circuit service; or (c) a network-network interface service; or (d) a user network interface service; or (e) a voice telephony facilitation service. [page 1060] eligible service has the same meaning as in section 152AL. listed point of interconnection has the meaning given by section 151DB. network-network interface service means an eligible service that is known as: (a) a network-network interface service; or (b) the network-network interface component of a fibre access service. nominated carrier has the same meaning as in the Telecommunications Act 1997.

point of interconnection means a location for the interconnection of facilities. price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price. service provider has the same meaning as in the Telecommunications Act 1997. special access undertaking has the same meaning as in Part XIC. telecommunications industry has the same meaning as in the Telecommunications Act 1997. uniform national pricing has the meaning given by subsections (5) and (6). use, in relation to a facility, means use: (a) in isolation; or (b) in conjunction with one or more other things. user network interface service means an eligible service that is known as: (a) a user network interface service; or (b) the user network interface service component of a fibre access service. utility means: (a) Airservices Australia; or (b) a State or Territory transport authority; or (c) a rail corporation (within the meaning of the National Broadband Network Companies Act 2011); or (d) an electricity supply body (within the meaning of that Act); or (e) a gas supply body (within the meaning of that Act); or (f) a water supply body (within the meaning of that Act); or (g) a sewerage services body (within the meaning of that Act); or (h) a storm water drainage services body (within the meaning of that Act); or (i) a State or Territory road authority (within the meaning of that Act). voice telephony facilitation service means a service that facilitates the supply of a carriage service that is a carriage service for the purpose

of voice telephony.

[14,175DB]

Listed points of interconnection

151DB (1) The Commission: (a) must prepare a written list setting out points of interconnection; and (b) may, by writing, vary that list. (2) For the purposes of this Division, a point of interconnection specified in a list in force under subsection (1) is a listed point of interconnection. (2A) The Commission must not vary a list under subsection (1) except with the agreement of an NBN corporation. [page 1061] (2B) Subsection (2A) ceases to have effect when the Communications Minister makes a declaration under section 48 of the National Broadband Network Companies Act 2011 that, in the Communications Minister’s opinion, the national broadband network should be treated as built and fully operational. (2C) For the purposes of subsection (2B), Communications Minister has the same meaning as in the National Broadband Network Companies Act 2011. (3) The Commission must publish on its website a copy of a list in force under subsection (1). (4) A list under subsection (1) is not a legislative instrument. (5) A variation of a list under subsection (1) is not a legislative instrument.

[14,175DC] Review of policies and procedures relating to the identification of listed points of interconnection 151DC

[s 151DC rep Act 109 of 2014 s 3 and Sch 2 item 113, opn 17

Oct 2014]

[14,175DD] 151DD Oct 2014]

Review of operation of this Division

[s 151DD rep Act 109 of 2014 s 3 and Sch 2 item 113, opn 17

[page 1063] PART XIC — TELECOMMUNICATIONS ACCESS REGIME [Pt XIC insrt Act 58 of 1997 s 3 and Sch 1] INTRODUCTION TO PART XIC [14,177.5] Overview Part IIIA is a generic access regime for third parties seeking access to infrastructure facilities which are of national significance and which cannot be economically duplicated. It was believed that the specific nature of telecommunications and its complexity warranted an access regime separate to Pt IIIA. Part XIC was the result. As such, there is much similarity between Pts IIIA and XIC: Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 412; [2000] FCA 589; BC200002176 at [192]. See Seven Network Ltd v News Ltd (2007) ATPR (Digest) ¶42-274; [2007] FCA 1062; BC200705841 per Sackville J. The object of Part XIC is to promote the long-term interests of end users (s 152AB): Application by Chime Communications Pty Ltd (2008) 222 FLR 323; [2008] ACompT 4; BC200811630 at [4] per Finkelstein J, R Davey and Professor D Round; Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23; BC200901501 at [10] per Jacobson, Lander and Foster JJ; See Pipe Networks Pty Ltd v Commonwealth Superannuation Corp [2013] FCA 444; BC201302481 per Tracey J. In Application by Chime Communications Pty Ltd (2008) 222 FLR 323; [2008] ACompT 4; BC200811630 at [4], Finkelstein J, R Davey and Professor D Round said: The aim of the access regime is to create conditions for improved competition by removing a barrier to entry in an upstream or downstream market that inhibits competition in that market or other markets. Access to the declared services has the capacity to promote either service-based or facility-based competition. Facility-based competition is presumed to be a necessary condition for long-term efficiency because that is when innovation is more likely to occur. Service-based competition is, over the long-term, regarded as merely a stepping stone to facility-based competition. In June 2000 the Commonwealth engaged the Productivity Commission to review the telecommunications specific competition provisions, including Pt XIC. On 23 December 2001 the government released the Productivity Commission’s report, Telecommunications Competition Regulation (Report No 16 of 2001). The report broadly recommended, among other things, the retention of the specific provisions in Pt XIC for providing access to telecommunications services. Following the Productivity Commission’s report, the Commonwealth introduced a number of amendments to Pt XIC designed to provide greater certainty and timely access for access seekers, facilitate investment in new telecommunications services, and encourage greater transparency. The amendments were inserted by the Telecommunications Competition Act 2002.

Part XIC was further amended by the Telecommunications Legislation Amendment (Competition and Consumer Issues) Act 2005. This Act introduces an operational separation framework to Telstra to provide equivalence and transparency of Telstra’s wholesale and retail operations. Telstra is a vertically integrated company that operates in a number of telecommunications markets. It also owns infrastructure to which competitors need access. The Act also introduces amendments to the telecommunications regime to respond to industry change. [page 1064] In September 2009, the government introduced the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009. The Bill contains amendments to the Telecommunications Act 1997 (Tel Act), Pts XIB and XIC of the Trade Practices Act 1974 (Act), the Radiocommunications Act 1992 (the Radcom Act) and the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the Consumer Protection Act). The Bill also makes consequential amendments to the National Transmission Network Sale Act 1998 (NTN Sale Act). On 17 September 2009, the Bill was referred to the Senate Environment, Communications and the Arts Legislative Committee. The Senate delivered its report “Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009” in October 2009. The Senate committee recommended that the Bill be passed. In a dissenting report a number of senators recommended that further consideration of the Bill not proceed until after the National Broadband Network implementation study has been completed and the government has tabled its response. The Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009 lapsed when Parliament was dissolved ahead of the August 2010 federal election. The Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010 reintroduced measures which were in the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009. Some adjustments have been made to the measures reintroduced in this Bill. The National Broadband Network, will deliver a wholesale-only, open access telecommunications market structure. Consistent with the structure that will be delivered through the NBN, the Bill provides a framework for Telstra to voluntarily structurally separate. On 20 June 2010 Telstra and NBN Co announced that they had entered into a Financial Heads of Agreement. That Agreement will provide for the progressive migration of customer services from Telstra’s copper and subscription television cable networks to the new wholesale-only fibre network to be built and operated by NBN Co and would deliver the envisaged structural reform. The Bill passed both houses of Parliament on 29 November 2010. The Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 received royal assent on 15 December 2010. The provisions amending the Competition and Consumer Act 2010 Pts XIB and XIC commenced on 1 January 2011. Reform In its final draft report Competition Policy Review, the Harper Committee has recommended that the following regulatory functions be transferred from the Commission and the Council and be undertaken

within a single national access and pricing regulator: • The powers given to the Council and the Commission under the National Access Regime in Pt IIIA • The powers given to the Council under the National Gas Law • The functions undertaken by the Australian Energy Regulator under the National Electricity law and the National Gas Law • The telecommunications access and pricing functions of the Commission • Price regulation and related advisory roles under the Water Act 2007 (Cth). See [10,690.5]. [14,177.10] Constitutional validity The application of Pt XIC (and specifically ss 152AL(3) and 152AR) to Telstra’s unconditioned local loop services (ULLS) is not beyond the legislative power of Parliament by reason of s 51(xxxi) of the Constitution (the acquisition of [page 1065] property on just terms from any state or person): Telstra Corporation Ltd v Commonwealth [2008] HCA 7; BC200801217 at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

_____________________ DIVISION 1 — INTRODUCTION

[14,177AA] 152AA • •

•

Simplified outline

The following is a simplified outline of this Part: This Part sets out a telecommunications access regime. A carriage service, or a related service, supplied, or capable of being supplied, by a carrier (other than an NBN corporation) or a carriage service provider (other than an NBN corporation) is a declared service if: (a) the Commission has declared the service to be a declared service; or (b) the service is supplied by the carrier or carriage service provider, and a special access undertaking given by the carrier or carriage service provider is in operation in relation to the service. A carriage service, or a related service, supplied, or capable of being supplied, by an NBN corporation is a declared service if:

•

•

•

•

•

•

•

(a) the Commission has declared the service to be a declared service; or (b) the NBN corporation has formulated a standard form of access agreement that relates to access to the service; or (c) the service is supplied by the NBN corporation, and a special access undertaking given by the NBN corporation is in operation in relation to the service. Carriers and carriage service providers who provide declared services are required to comply with standard access obligations in relation to those services. The standard access obligations facilitate the provision of access to declared services by service providers in order that service providers can provide carriage services and/or content services. The terms and conditions on which carriers and carriage service providers are required to comply with the standard access obligations are subject to agreement. If agreement cannot be reached, but the carrier or carriage service provider has given an access undertaking, the terms and conditions are as set out in the access undertaking. If agreement cannot be reached, no access undertaking is in operation, but the Commission has made binding rules of conduct, the terms and conditions are as specified in the binding rules of conduct. If agreement cannot be reached, no access undertaking is in operation, and no binding rules of conduct have been made, the terms and conditions are as specified in an access determination made by the Commission. A carrier, carriage service provider or related body must not prevent or hinder the fulfilment of a standard access obligation. [page 1066]

Note: Even though this section mentions binding rules of conduct, binding rules of conduct may only be made if the Commission considers that

there is an urgent need to do so. [s 152AA am Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; Act 140 of 2010 s 3 and Sch 1[114], opn 1 Jan 2011; Act 23 of 2011 s 3 and Sch 1 item 30, opn 13 Apr 2011]

[14,177AB]

Object of this Part

152AB (1) Object The object of this Part is to promote the long-term interests of end-users of carriage services or of services provided by means of carriage services. (2) Promotion of the long-term interests of end-users For the purposes of this Part, in determining whether a particular thing promotes the long-term interests of end-users of either of the following services (the listed services): (a) carriage services; (b) services supplied by means of carriage services; regard must be had to the extent to which the thing is likely to result in the achievement of the following objectives: (c) the objective of promoting competition in markets for listed services; (d) the objective of achieving any-to-any connectivity in relation to carriage services that involve communication between end-users; (e) the objective of encouraging the economically efficient use of, and the economically efficient investment in: (i) the infrastructure by which listed services are supplied; and (ii) any other infrastructure by which listed services are, or are likely to become, capable of being supplied. [subs (2) am Act 119 of 2005 s 3 and Sch 9, opn 24 Sep 2005]

(3) Subsection (2) limits matters to which regard may be had Subsection (2) is intended to limit the matters to which regard may be had. (4) Promoting competition In determining the extent to which a particular thing is likely to result in the achievement of the objective referred to in paragraph (2)(c), regard must be had to the extent to which the thing will remove obstacles to end-users of listed services gaining access to listed services. (5) Subsection (4) does not limit matters to which regard may be had Subsection (4) does not, by implication, limit the matters to which regard

may be had. (6) Encouraging efficient use of infrastructure etc In determining the extent to which a particular thing is likely to result in the achievement of the objective referred to in paragraph (2)(e), regard must be had to the following matters: (a) whether it is, or is likely to become, technically feasible for the services to be supplied and charged for, having regard to: (i) the technology that is in use, available or likely to become available; and (ii) whether the costs that would be involved in supplying, and charging for, the services are reasonable or likely to become reasonable; and (iii) the effects, or likely effects, that supplying, and charging for, the services would have on the operation or performance of telecommunications networks; (b) the legitimate commercial interests of the supplier or suppliers of the services, including the ability of the supplier or suppliers to exploit economies of scale and scope; [page 1067] (c) the incentives for investment in: (i) the infrastructure by which the services are supplied; and (ii) any other infrastructure by which the services are, or are likely to become, capable of being supplied. [subs (6) am Act 119 of 2005 s 3 and Sch 9, opn 24 Sep 2005]

(7) Subsection (6) does not limit matters to which regard may be had Subsection (6) does not, by implication, limit the matters to which regard may be had. (7A) Investment risks For the purposes of paragraph (6)(c), in determining incentives for investment, regard must be had to the risks involved in making the investment. [subs (7A) insrt Act 119 of 2005 s 3 and Sch 9, opn 24 Sep 2005]

(7B) Subsection (7A) does not, by implication, limit the matters to which

regard may be had. [subs (7B) insrt Act 119 of 2005 s 3 and Sch 9, opn 24 Sep 2005]

(8) Achieving any-to-any connectivity For the purposes of this section, the objective of any-to-any connectivity is achieved if, and only if, each enduser who is supplied with a carriage service that involves communication between end-users is able to communicate, by means of that service, with each other end-user who is supplied with the same service or a similar service, whether or not the end-users are connected to the same telecommunications network. SECTION 152AB GENERALLY [14,177AB.5] Overview Section 152AB(1) provides that the objective of the Part is to promote the long term interests of end users of carriage services or of services provided by means of carriage services. The matters to be considered in making this assessment are specified in s 152AB(2): see Re Telstra Corporation Ltd [2006] ACompT 4; BC200603967 at [63] per Goldberg J, Mr R Davey and Professor D Round; Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; BC200810333 at [12] per Rares J; the appeal was heard in Australian Competition and Consumer Commission (ACCC) v Telstra Corp Ltd (2009) 176 FCR 203; 256 ALR 615; [2009] FCAFC 68; BC200904877 per Ryan, Jacobson and Foster JJ. [14,177AB.10] Assessing long term future impact Determining the long-term interests of end users in a given case may involve consideration of the existing state of the market and the future impact of the matter under consideration, both in the immediate future and over the longer term: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23; BC200901501 at [244] per Jacobson, Lander and Foster JJ. This involves a comparison of what is sometimes referred to as the factual (the “future with”) with the counterfactual (the “future without”): Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 at [12] per Finkelstein J, R Davey and Professor D Round; Application by Telstra Corporation Ltd [2009] ACompT 1 at [12] per Middleton J, R Davey and Professor D Round. In Application by Chime Communications Pty Ltd (above) at [13]–[15]

Finkelstein J, R Davey and Professor D Round explained the approach as follows: [13] The task of deciding what is likely to happen in the future is not simply a matter of guesswork. Logically the first step is to examine the existing state of affairs as regards the three objectives: promoting competition, achieving any-to-any connectivity and encouraging economic efficiencies. While the course of the future is not predictable with certainty the chance that an event will occur, or that a particular situation will arise, is estimable, at least in [page 1068] ordinal terms. Moreover, while past events are not a certain guide to the future, their evaluation is a necessary, if not integral, step in determining what is likely to happen in the future: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 419. This is particularly so in the “future without” analysis as the status quo is often a useful guide as to what is likely to happen in the future. An investigation of the existing state of affairs necessarily involves an analysis of empirical data. That is to say, good analysis is “empirically based and robust” and bad analysis is “a priori and untested by evidence”: T Sharpe, “Trying to make sense of abuse of a dominant position” in C Robinson (ed), Regulating Utilities and Promoting Competition (2006) 139. [14] An analysis of what may happen in the “future with” and the “future without” cannot be based on empirical data for the future, for that data does not exist. The process of deciding what is likely to happen in the future may be assisted by the application of an appropriate model that has been developed for predicting behaviour in particular circumstances. Most models seek to show a link between an existing state of affairs (based on assumptions derived from observation of the past or present) and a particular forecast outcome … [15] The Tribunal has in the past discussed what is involved in reaching the required degree of satisfaction that an order will promote the long-term interests of end-users. In Re Seven Network Ltd (No 4)the Tribunal said (at [119]) that the required “degree of satisfaction is reached by applying the future with and the future without test, that is to say we compare the future situation with the exemption orders having been made with the future situation without the exemption orders having been made. We then ask the question: which situation is in the [long-term interests of end-users]”. The Tribunal also discussed (at [120]) the meaning of “end-users” (they include actual and potential end-users), “interests” (the interests of end-users in obtaining lower prices than would otherwise be the case, increased quality of service and increased diversity and scope in product offerings) and “long-term” (the period over which the full effects of the Tribunal’s decision will be felt).

In Application by Telstra Corporation Ltd (above) at [18]–[19] per Middleton J, Mr R Davey and Professor D Round discussed the concept of the “long-term”: [18] Of course, in this application, the Tribunal is required to determine these matters over the ‘long-term’. In Re Seven Network Limited (No 4) [2004] ACompT 11 the importance of the longterm perspective was stressed, including the need to ensure that there is no potential conflict between promoting competition and encouraging economically efficient investment in infrastructure. The Tribunal stated (at [122]): The use of the “long-term” may also assist in resolving the apparent tension between the criteria in s 152AB(2)(c) and (e). For example, action that promotes competition in the short-term may deter

investment and hence, over the longer-term, competition may lessen (resulting in reduction to efficiency and innovation). Moreover, an action may promote competition at the retail level (resulting in more channels offered by more operators), but may deter facilities-based competition, with fewer service providers being prepared to establish delivery mechanisms of their own than would otherwise be the case. Assessed over the long-term, however, there is less likely to be any conflict between the promotion of competition and efficiency. Nonetheless, to the extent that there are mixed effects, we will have regard to the overall or net effect. [19] As the Tribunal has indicated, the sole issue for determination in this proceeding is whether the making of the exemption order would promote the LTIE. Sections 152AB and 152AT do not involve a balancing between the short-term and the long-term, but rather due regard must be had to the LTIE: see Telstra at [243]. However, as the Full Court said in Telstra (at [244]): In any given case, this may well involve consideration of the existing state of the market and [page 1069] the future impact of the particular thing under consideration, both in the immediate future and over the longer term. The reference to the short-term, in such a context, would not necessarily be an error or involve a misconstruction of the requirements of s 152AB.

In Application by Telstra Corporation Ltd (above) at [79]–[81], Middleton J, Mr R Davey and Professor D Round said: [79] In terms of commercial reality, the long term is but an iteration or evolution of successive short terms. While in economic theory the long term is a blueprint of sorts, embodying the current most efficient outcome in a theoretical “what if” sense given current technology, end-user demands and preferences (and what these are today could be quite different in a month or a year’s time), in practical business terms the long term evolves as market conditions change and as firms adapt to changing pressures of market supply and demand. [80] Regulation of existing assets seeks to achieve a progression towards theoretically optimum levels of efficiency and competition. Regulation cannot start with a clean slate and engineer the long-term ideal. It has to do the best it can at any given time with the assets in place and with a realistic assessment of future commercial and social likelihoods and their impact on economic efficiency, broadly defined. [81] Accordingly, measurement of the effect of a regulatory change on the LTIE in a practical sense necessitates consideration of the likely series of short-term outcomes as the market evolves over time, responding to changing market forces of supply and demand. This may well require an examination of the existing nature and level of competition in the market and the impact of the matter in question in both the near future as well as in the longer term. A balancing or weighting process will then be necessary to evaluate the overall long-term impact on end-users of any proposed change sought in the regulatory environment.

[14,177AB.12] Having regard to relevant matters Section 152AB(2) lists the matters to which regard must be had in determining whether the long term interests of end users is being promoted. When ss 152AB and 152AH require the tribunal to have “regard” to certain matters, the tribunal is required to take those matters into account and

give them weight as fundamental elements in making its determination: Re Telstra Corporation Ltd [2006] ACompT 4; BC200603967 at [63] per Goldberg J, Mr R Davey and Professor D Round; see Re Application by Vodafone Network Pty Ltd [2007] ACompT 1; BC200700099 per Goldberg J, Mr R Davey and Mr R Shogren; see Telstra Corporation Ltd v ACCC [2008] FCA 1758; BC200810333 at [105] per Rares J; Application by Telstra Corporation Ltd [2010] ACompT 1 at [143] per Mansfield J, Mr R Steinwall and RF Shogren. In Application by Telstra Corporation Ltd [2009] ACompT 1 at [20], Middleton J, Mr R Davey and Professor D Round said: The Tribunal must have regard to the objectives set out in all of sub-paragraphs (c), (d) and (e) of s 152AB(2). Sub-paragraphs (c) and (e) are subject to further statutory requirements in ss 152AB(4), 152AB(6) and 152AB(7)(A). The Tribunal must consider and give appropriate weight to the extent to which the making of an exemption order is likely to result in the achievement of each of the stated objectives, and treat each objective as a central and fundamental element: see Telstra at [266]–[267]. No element is to be given primacy, but one element may in any given case be given more weight: see Telstra at [272]. This is not to say that after a consideration of the objectives, the Tribunal may not conclude in any given case that one element is decisive. What the Tribunal must not do is impermissibly confine itself to one objective to the exclusion of the others, nor treat exante any individual objective as having primacy in terms of its weight or influence over other objective: Telstra at [270].

[page 1070] Arguably the expressions “have regard to” and “take into account” should be considered interchangeable: Telstra Corporation Ltd v ACCC [2008] FCA 1436; BC200808259 at [19] per Lindgren J. In determining whether a term relating to price is reasonable, regard must be had to s 152AB and s 152AH: Re Telstra Corporation Ltd, above, per Goldberg J, Mr R Davey and Professor D Round; Re Telstra Corporation Ltd (No 3) [2007] ACompT 3; BC200703762 at [12] per Goldberg J, Mr R Davey and Professor D Round. [14,177AB.15] Promoting competition in markets for listed services In determining whether an exemption will promote the long-term interests of end-users regard must be had to the promotion of competition in markets for listed services in s 152AB(2). This starts with an analysis of the relevant market in which the applicant

and those affected by the decision operate. In Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 at [20]–[28] Finkelstein J, R Davey and Professor D Round explained the approach in considerable detail. They concluded at [29] that: [29] The Tribunal is of opinion that, despite its critics, the structure-conduct-performance model provides a limited but nevertheless useful foundation for purposes of market analysis, provided its limitations (its static nature, its unidirectional focus, its “group” rather than individual competitor focus, and its failure to consider inter-firm rivalries and strategic behaviour (especially with respect to entry deterrence and barriers to expansion)) are kept in mind. Its main usefulness comes from its identification of the variables of interest in any examination of competition in a market.

However, in Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 at [11] Finkelstein J, R Davey and Professor D Round said: The Tribunal is of opinion that it is necessary to review the relatively static and uni-directional model that guided the Tribunal in QCMA. QCMA was decided at a time when industrial organisation economists emphasised the causal flow from industry structure (eg number of sellers, concentration, entry conditions etc) via conduct (eg price and non-price behaviour) to performance (eg profits, efficiency, innovation etc). This approach has been overtaken by developments in economic theory and by empirical assessments of competition in modern markets which attest to the fact that this causal flow is by no means the dominant mechanism to explain market behaviour. Thus, the QCMA paradigm is no longer an infallible guide to assessing the behaviour of firms and markets. Sole reliance on this method has the potential to provide misleading conclusions about market behaviour.

See [10,070.13]. In Application by Chime Communications Pty Ltd (No 2) (above) at [20]– [28] Finkelstein J, R Davey and Professor D Round explained the meaning of “competition” in considerable detail. They concluded at [48] that: [48] What, then, do we draw from the various models for studying a market to determine its competitiveness and for assessing how the market may behave in the future? In the Tribunal’s view a market is sufficiently competitive if the market experiences at least a reasonable degree of rivalry between firms each of which suffers some constraint in their use of market power from competitors (actual and potential) and from customers. The criteria for such competition are structural (a sufficient number of sellers, few inhibitions on entry and expansion), conduct-based (eg no collusion between firms, no exclusionary or predatory tactics) and performance-based (eg firms should be efficient, prices should reflect costs and be responsive to changing market forces).

Competition is a process of actual rivalry. In Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 at [7] Finkelstein J, R Davey and Professor D Round said: [page 1071]

We recognise that the word “competition” is used by economists to mean different things. For the purposes of s 152AB(2)(c) the Tribunal is of opinion that competition refers to a process of actual rivalry in telecommunications market(s). Part XIC establishes a regime to promote competition in telecommunications market(s), to achieve any-to-any connectivity, and to encourage efficient investment in telecommunications infrastructure. These goals are achieved via the medium of access. The desired outcome is to create, through facilitating access, market(s) in which there is sufficient competition between rivals to produce the stated efficiencies. There will be sufficient or effective competition (as opposed to the unobtainable concept of perfect competition) if market(s) experience at least a reasonable degree of genuine rivalry between the constituent firms, each of which suffers some constraint imposed by competitors, customers and suppliers. When there is actual competition (ie when there is a sufficient number of sellers or there is present other indicia of interactive rivalry) each seller has the strongest incentive to offer customers the best (most efficient) price, the best possible quality in its product and the best service. Under competitive market conditions sellers also have the strongest incentive to innovate and develop new products or services: R Baldwin and M Cave Understanding Regulation — Theory, Strategy, and Practice (1999) 211.

Barriers to entry are important in determining the competitiveness of a market. In Application by Chime Communications Pty Ltd (No 2) (above) at [53] Finkelstein J, R Davey and Professor D Round said: [53] The Tribunal would proceed on the basis that barriers to entry are both structural, based on exogenously determined market characteristics, and endogenous, being the result of the incumbent’s strategic behaviour to deter entry. Structural barriers are based on cost structures, such as economies of scale, switching costs, demand characteristics (eg preferences for differentiated products), access to information and legal restrictions (eg patents or environmental regulations). Strategic barriers include limit pricing and general entry deterrence, advertising, targeted innovation, product proliferation, expansion of capacity, predatory responses to entry and any other targeted action that would “raise a rival’s costs”. Consequential variations in both market share and market concentration over time as entry occurs must also be examined. The Tribunal is of opinion that any assessment of the effect of barriers to entry, in a forward-looking sense, must include a comprehensive assessment of the current structural and behavioural characteristics of the market and firms at issue, and of how past conduct has shaped this structural and behavioural environment.

See also [10,025.25]. In Re Review of Freight Handling Services at Sydney International Airport (2000) ATPR ¶41-754 at 40,755; [2000] ACompT 1, considering an equivalent provision in s 44H of the Act, the tribunal said that the notion of “promoting” competition does not require it to be satisfied that there would be an advance in competition in the sense that competition would be increased. Rather, it considered that the notion of “promoting” competition involves the idea of creating the conditions or environment for improving competition from what it would be otherwise. That is, given declaration, the opportunities and environment for competition will be better than they would be without declaration. Also see Application by Telstra Corporation Ltd [2009] ACompT 1 at [9] per Middleton J, Mr R Davey and Professor D

Round. In Re Telstra Corporation Ltd (No 3) [2007] ACompT 3; BC200703762 at [96] Goldberg J, Mr R Davey and Professor D Round agreed with this observation with one qualification. The qualification is that under s 44H(4) the minister must consider whether access “would promote competition” whereas under s 152AB(2) the tribunal must have regard to the “the extent to which” the term or condition is likely to result in the achievement of the objective of promoting competition in relevant markets. The difference in language recognised the different legislative regimes in Pts IIIA and XIC. When, for example, s 152AB(2)(c) directs the commission to have regard to the extent to which averaging (of the estimated efficient costs of supplying the unconditioned local loop service), is likely to result in the achievement of promoting competition [page 1072] in rural areas, the tribunal must consider the extent of the competitive impact on averaging in rural areas, not only the improvement of the environment for competition. In Re Application by Optus Mobile Pty Ltd (2006) 205 FLR 29; (2007) ATPR ¶42-137; [2006] ACompT 8; BC200609592 at [123] per Goldberg J, Mr R Davey and Mr R Shogren, the tribunal said that determining Optus’ domestic GSM terminating access service (DGTAS) costs as a stand alone mobile operator would, all things being equal, be likely to result in the achievement of the objective of promoting competition in markets for listed services under s 152AB(2)(c). See also [14,177AH.5] and [14,177CR.5]. [14,177AB.25] Any-to-any connectivity In determining whether an exemption will promote the long-term interests of end-users, regard must be had to any-to-any connectivity. That is, end users of a particular service must be able to communicate with each other end-user who is supplied with the same or similar service whether or not the end-user is connected to the same network: s 152AB(8). See Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 at [55] per

Finkelstein J, R Davey and Professor D Round. [14,177AB.35] Economically efficient use of infrastructure In determining whether an exemption will promote the long-term interests of end-users, regard must be had to encouraging the economically efficient use of, and the economically efficient investment in infrastructure under s 152AB(2). In Re Seven Network Limited (No 4) (2004) 187 FLR 373; (2005) ATPR 42-056; [2004] ACompT 11 at [96] the Tribunal said: Efficient investment, however, implies the right mix. That is, efficient outcomes mean that optimal buy/build decisions are being made, as assessed from the perspective of end-users. By ‘optimal’ is meant providing the best outcome in terms of prices, quality and diversity.

To this should be added innovation: Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 per Finkelstein J, R Davey and Professor D Round. Efficiency is the product of competition — if a thing is likely to result in the achievement of the objective of promoting competition that thing will, or is likely to, encourage efficiencies: Application by Chime Communications Pty Limited (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 at [56] Finkelstein J, R Davey and Professor D Round. There may be rare case where competition is encouraged but no efficiencies are achieved, for example where an entrant duplicates a natural monopoly network: Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 at [82] per Finkelstein J, R Davey and Professor D Round. Apart from these examples, the efficiency objective in s 152AB(2) is not a separate consideration to the objective of promoting competition: Application by Chime Communications Pty Limited (No 2), (above) at [83] per Finkelstein J, R Davey and Professor D Round. _____________________

[14,177AC] 152AC ACA

Definitions

In this Part, unless the contrary intention appears:

[def rep Act 45 of 2005 s 3 and Sch 1, opn 1 July 2005]

ACCC telecommunications access code

[def rep Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

access has the meaning given by section 152AF. [page 1073] access agreement has the meaning given by section 152BE. [def insrt Act 140 of 2010 s 3 and Sch 1[115], opn 1 Jan 2011]

access determination means a determination under section 152BC. [def insrt Act 140 of 2010 s 3 and Sch 1[116], opn 1 Jan 2011]

access seeker has the meaning given by section 152AG. access undertaking means a special access undertaking. [def am Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; Act 140 of 2010 s 3 and Sch 1[117], opn 1 Jan 2011]

ACMA means the Australian Communications and Media Authority. [def insrt Act 45 of 2005 s 3 and Sch 1, opn 1 July 2005]

approved TAF telecommunications access code [def rep Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

binding rules of conduct means rules made under subsection 152BD(1). [def insrt Act 140 of 2010 s 3 and Sch 1[118], opn 1 Jan 2011]

carriage service has the same meaning as in the Telecommunications Act 1997, and includes a proposed carriage service. carriage service provider has the same meaning as in the Telecommunications Act 1997. carrier has the same meaning as in the Telecommunications Act 1997. carrier licence has the same meaning as in the Telecommunications Act 1997. category A standard access obligation has the meaning given by section 152AR. [def insrt Act 23 of 2011 s 3 and Sch 1 item 31, opn 13 Apr 2011]

category B standard access obligation has the meaning given by section 152AXB. [def insrt Act 23 of 2011 s 3 and Sch 1 item 32, opn 13 Apr 2011]

conditional-access customer equipment means customer equipment that: (a) consists of or incorporates a conditional access system that allows a service provider to determine whether an end-user is able to receive a particular service; and (b) either: (i) is for use in connection with the supply of a content service; or (ii) is of a kind specified in the regulations. constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. [def insrt Act 52 of 1999 s 3 and Sch 1]

content service has the same meaning as in the Telecommunications Act 1997, and includes a proposed content service. customer equipment has the same meaning as in the Telecommunications Act 1997. data processing device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device. [page 1074] declared service has the meaning given by section 152AL. designated superfast telecommunications network has the meaning given by section 152AGA. [def insrt Act 23 of 2011 s 3 and Sch 1 item 89, opn 12 Apr 2012]

draft TAF telecommunications access code [def rep Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

facility has the same meaning as in the Telecommunications Act 1997. Federal Court means the Federal Court of Australia. final access determination means an access determination other than an interim access determination.

[def insrt Act 140 of 2010 s 3 and Sch 1[119], opn 1 Jan 2011]

final migration plan has the Telecommunications Act 1997.

same

meaning

as

in

the

[def insrt Act 140 of 2010 s 3 and Sch 1[37], opn 1 Jan 2011]

fixed principles provision has the meaning given by section 152BCD. [def insrt Act 140 of 2010 s 3 and Sch 1[120], opn 1 Jan 2011]

fixed principles term or condition has the meaning given by section 152CBAA. [def insrt Act 140 of 2010 s 3 and Sch 1[121], opn 1 Jan 2011]

interim access determination means an access determination that is expressed to be an interim access determination. [def insrt Act 140 of 2010 s 3 and Sch 1[122], opn 1 Jan 2011]

Layer 2 bitstream service has the same meaning as in the Telecommunications Act 1997. [def insrt Act 23 of 2011 s 3 and Sch 1 item 90, opn 12 Apr 2012]

Ministerial pricing determination means a determination under section 152CH. modifications includes additions, omissions and substitutions. [def insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

national broadband network has the same meaning as in the National Broadband Network Companies Act 2011. [def insrt Act 23 of 2011 s 3 and Sch 1 item 91, opn 12 Apr 2012]

NBN Co has the same meaning as in the National Broadband Network Companies Act 2011. [def insrt Act 23 of 2011 s 3 and Sch 1 item 33, opn 13 Apr 2011]

NBN corporation has the same meaning as in the National Broadband Network Companies Act 2011. [def insrt Act 23 of 2011 s 3 and Sch 1 item 34, opn 13 Apr 2011]

nominated carrier has the same meaning as in the Telecommunications Act 1997. ordinary access undertaking [def rep Act 140 of 2010 s 3 and Sch 1[123], opn 1 Jan 2011]

[page 1075] person includes a partnership. Note: section 152EN sets out additional rules about partnerships. Procedural Rules means Procedural Rules made under section 152ELA. [def insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December. [def insrt Act 109 of 2014 s 3 and Sch 2 item 2, opn 17 Oct 2014]

service provider has the same meaning as in the Telecommunications Act 1997. special access undertaking means an undertaking under Subdivision B of Division 5. [def insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

standard access obligation means: (a) a category A standard access obligation; or (a) a category B standard access obligation. [def subst Act 23 of 2011 s 3 and Sch 1 item 35, opn 13 Apr 2011]

superfast carriage service has the same meaning as in section 141 of the Telecommunications Act 1997. [def insrt Act 23 of 2011 s 3 and Sch 1 item 92, opn 12 Apr 2012]

TAF [def rep Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

telecommunications access code [def rep Act 140 of 2010 s 3 and Sch 1[124], opn 1 Jan 2011]

telecommunications network has the same meaning as in the Telecommunications Act 1997. variation agreement has the meaning given by subsection 152BE(3). [def insrt Act 140 of 2010 s 3 and Sch 1[125], opn 1 Jan 2011]

[14,177AD] 152AD

This Part binds the Crown

(1) The following provisions of this Act bind the Crown in right

of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory: (a) this Part; (b) the other provisions of this Act so far as they relate to this Part. (2) This Part does not make the Crown liable to be prosecuted for an offence. (3) The protection in subsection (2) does not apply to an authority of the Commonwealth or an authority of a State or Territory.

[14,177AE]

Extension to external Territories

152AE (1) This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997). [page 1076] (2) The operation of this Part, and the other provisions of this Act so far as they relate to this Part, in relation to Norfolk Island is not affected by the amendments made by Division 1 of Part 1 of Schedule 5 to the Territories Legislation Amendment Act 2016. [subs (2) insrt Act 33 of 2016 s 3 and Sch 5 item 28, opn 1 July 2016] [s 151AE am Act 33 of 2016 s 3 and Sch 5 item 27, opn 1 July 2016]

[14,177AF]

Access

152AF (1) A reference in this Part to access, in relation to a declared service, is a reference to access by a service provider in order that the service provider can provide carriage services and/or content services. (2) For the purposes of this Part, anything done by a carrier or carriage service provider in fulfilment of a standard access obligation is taken to be an aspect of access to a declared service. (3) For the purposes of this Part, if an access determination imposes a requirement on a carrier or carriage service provider as mentioned in

paragraph 152BC(3)(e), anything done by the carrier or provider in fulfilment of the requirement is taken to be an aspect of access to a declared service. [subs (3) insrt Act 140 of 2010 s 3 and Sch 1[126], opn 1 Jan 2011]

[14,177AG]

Access seeker

152AG (1) This section sets out the circumstances in which a person is taken to be an access seeker in relation to a declared service for the purposes of this Part. (2) A service provider is an access seeker in relation to a declared service if the provider makes, or proposes to make, a request in relation to that service under section 152AR (which deals with the category A standard access obligations), or section 152AXB (which deals with the category B standard access obligations) whether or not: (a) the request is refused; or (b) the request is being complied with. [subs (2) am Act 23 of 2011 s 3 and Sch 1 items 36, 37, opn 13 Apr 2011]

(3) A service provider is an access seeker in relation to a declared service if: (a) the provider wants access to the service; or (b) the provider wants to change some aspect of the provider’s existing access to the service; or (c) the supplier of the service wants to change some aspect of the provider’s existing access to the service.

[14,177AGA] Designated superfast telecommunications network 152AGA (1) For the purposes of this Part, if: (a) a telecommunications network is used, or is proposed to be used, to supply one or more Layer 2 bitstream services wholly or principally to residential or small business customers, or prospective residential or small business customers, in Australia; and

[page 1077] (b) the network is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential or small business customers, or prospective residential or small business customers, in Australia; and (c) the network is not the national broadband network; and (d) either: (i) the network came into existence on or after 1 January 2011; or (ii) the network was altered or upgraded on or after 1 January 2011 and, as a result of the alteration or upgrade, the network became capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia; the network is a designated superfast telecommunications network. (2) A network is not a designated superfast telecommunications network for the purposes of this Part if, under subsection 141A(1) of the Telecommunications Act 1997, the network is exempt from section 141 of that Act. Note: Section 141 of the Telecommunications Act 1997 deals with the supply of Layer 2 bitstream services. [subs (2) am Act 136 of 2012 s 3 and Sch 1 items 32-34, opn 22 Sep 2012]

(3) Deemed networks For the purposes of this section, if: (a) a telecommunications network is altered or upgraded on or after 1 January 2011; and (b) as a result of the alteration or upgrade, a part of the network became capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia; then: (c) that part is taken to be a network in its own right; and (d) the network referred to in paragraph (c) is taken to have come into

existence on or after 1 January 2011. (4) For the purposes of this section, if: (a) a telecommunications network is extended on or after 1 January 2011; and (b) the extended part of the network is capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia; then: (c) the extended part is taken to be a network in its own right; and (d) the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011. (5) If: (a) a part of the infrastructure of a telecommunications network is situated in a particular area that is being or was developed as a particular stage of a real estate development project (within the ordinary meaning of that expression); and (b) the network is extended to another area that is being, or is to be, developed as another stage of the project; subsection (4) does not apply to the extension. [page 1078] (6) If: (a) a telecommunications network was in existence immediately before 1 January 2011; and (b) the network is extended on or after 1 January 2011; and (c) no point on the infrastructure of the extension is located more than: (i) 1 kilometre; or (ii) if a longer distance is specified in the regulations — that longer distance; from a point on the infrastructure of the network as the network stood immediately before 1 January 2011;

subsection (4) does not apply to the extension. (7) The regulations may provide that subsection (4) does not apply to a specified extension of a telecommunications network. Note: For specification by class, see the Acts Interpretation Act 1901. (8) Certain installations and connections are not taken to be an extension, alteration or upgrade For the purposes of this section, if: (a) a line is or was installed for the purposes of connecting particular premises to a telecommunications network; and (b) the installation of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the network; and (c) the premises are in close proximity to a line that forms part of the infrastructure of the network; and (d) the network is capable of being used to supply a superfast carriage service; and (e) the network came into existence before 1 January 2011; neither the installation of the line mentioned in paragraph (a), nor the connection of the premises, is taken to be an extension, alteration or upgrade of the network. (9) Small business customer For the purposes of this section, small business customer means: (a) a customer who is a small business employer (within the meaning of the Fair Work Act 2009); or (b) a customer who: (i) carries on a business; and (ii) does not have any employees. For the purposes of paragraph (a), it is to be assumed that each reference in section 23 of the Fair Work Act 2009 to a national system employer were a reference to an employer (within the ordinary meaning of that expression). (10) Alteration For the purposes of this section, an alteration of a telecommunications network does not include an extension of the network. (11) Upgrade For the purposes of this section, an upgrade of a telecommunications network does not include an extension of the network. [s 152AGA insrt Act 23 of 2011 s 3 and Sch 1 item 93, opn 12 Apr 2012]

[14,177AH] conditions

Reasonableness — terms and

152AH (1) For the purposes of this Part, in determining whether particular terms and conditions are reasonable, regard must be had to the following matters: [page 1079] (a) whether the terms and conditions promote the long-term interests of end-users of carriage services or of services supplied by means of carriage services; (b) the legitimate business interests of the carrier or carriage service provider concerned, and the carrier’s or provider’s investment in facilities used to supply the declared service concerned; (c) the interests of persons who have rights to use the declared service concerned; (d) the direct costs of providing access to the declared service concerned; (e) the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility; (f) the economically efficient operation of a carriage service, a telecommunications network or a facility. (2) Subsection (1) does not, by implication, limit the matters to which regard may be had. SECTION 152AH GENERALLY [14,177AH.5] Overview Section 152AH specifies the matters to which regard must be had in determining whether a term is reasonable. [14,177AH.10] Having regard to relevant matters When ss 152AB and 152AH require the tribunal to have “regard” to certain matters, the tribunal is required to take those matters into account and give them weight

as fundamental elements in making its determination: Re Telstra Corporation Ltd (2006) ATPR ¶42-121; [2006] ACompT 4; BC200603967 at [68] per Goldberg J, Mr R Davey and Professor D Round; Application by Telstra Corporation Ltd [2010] ACompT 1 at [143] per Mansfield J, Mr R Steinwall and RF Shogren. See also [14,177CR.5]. [14,177AH.15] Reasonable terms and conditions In determining whether a term relating to price is reasonable, regard must be had to ss 152AB and 152AH: Re Telstra Corporation Ltd (2006) ATPR ¶42-121; [2006] ACompT 4; BC200603967 per Goldberg J, Mr R Davey and Professor D Round; Re Telstra Corporation Ltd (No 3) [2007] ACompT 3; BC200703762 at [12] per Goldberg J, Mr R Davey and Professor D Round. The inquiry is not whether there is an alternative price that is more reasonable: Re Application by Optus Mobile Pty Ltd (2006) 205 FLR 29; (2007) ATPR ¶42-137; [2006] ACompT 8; BC200609592 at [93] per Goldberg J, Mr R Davey and Mr R Shogren. See Re Application by Vodafone Network Pty Ltd (2007) ATPR ¶42-150; [2007] ACompT 1; BC200700099 at [10] per Goldberg J, Mr R Davey and Mr R Shogren. In Application by Telstra Corporation Ltd [2010] ACompT 1 Mansfield J, Mr R Steinwall and RF Shogren reviewed a decision of the Commission under s 152BV(2). In contrast to the approach under s 152AT, the Tribunal said at [143]–[146]: “[143] The Tribunal noted above Telstra’s emphasis upon the object of Part XIC of the Act of promoting the long-term interests of end-users of the carriage services or of the services applied by means of the carriage services, requiring regard to be had to whether the 2008 Undertaking is likely to result in achieving the objectives set out in s 152AB(2), and only those objectives. Obviously, it does not follow that s 152AH must be ignored. It would be contrary to the Act to do so. Section 152BV(2)(d) requires the Tribunal to be satisfied that the terms and conditions in the 2008 Undertaking are reasonable. Section 152AH requires the Tribunal to have regard to specified matters in deciding whether those terms and conditions are reasonable. Each of the matters referred to in s 152AH(1)(a) to (f) must be considered and weight given to each of them as a fundamental element in the decision: see R v Hunt; Ex Parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329; R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333. So much was [page 1080] recognised by the Tribunal in the LSS Decision at [68]. The assessment of reasonableness, by reference to those matters, is of course informed by the stated object of Part XIC in s 152AB(1) as

explained and confined by s 152AB(2). Indeed, s 152AH(1)(a) specifically refers to the object of Part XIC as expressed in s 152AB(1), and s 152AH(1)(f) reflects in a less specific way the objective described in s 152AB(2)(e). [144] The Tribunal does not consider that the decision in Telstra v ACompT dictates any different conclusion. It did not concern the review by the Tribunal of a decision under s 152BV(2) or the application of s 152AH. Rather, it concerned applications by Telstra under s 152AT of the Act, and s 152AT(4) expressly precluded the granting of such an application unless the decision maker was satisfied that the making of the order would promote the long-term interests of end-users: see at [139] to [141]. In the present context, ss 152BV and 152AH inform how the object of Part XIC is to be served or fulfilled. [145] The Tribunal also does not accept Telstra’s contention that, based upon that decision, it should simply look to the alternatives of the “future with” and the “future without” the 2008 Undertaking. That inquiry was of course important in the context of that case. But the Tribunal’s task is defined by the provisions of the Act. As was said in the decision in Re Seven Network Ltd (No 4) [2004] ACompT 11 (the Seven Network Decision) at [119], the “future with” and the “future without” approach provides helpful guidance in testing the LTIE, but it is to be applied in the context of the particular legislative provisions directly applicable. The Tribunal has pointed out that, in this matter, its focus is upon its satisfaction of the reasonableness of the 2008 Undertaking under ss 152BV(2) and 152AH. That is, the legislative setting in which the LTIE is specified to be assessed. If the Tribunal is not so satisfied, the “future without” almost certainly involves the ACCC arbitrating access disputes concerning the ULLS in Band 2 areas, with an outcome of arbitrated terms and conditions — including price — which will then indicate the LTIE. It is not possible to assess the “future without”, except as ascertained by the process of arbitration and its outcome. Its outcome is in one sense unknown. But there is no reason to think that its outcome would not be appropriate, or would not be the result of appropriately followed arbitration processes. Nor is there any reason to think that its outcome will not be in the LTIE. [146] Consequently, in the Tribunal’s view, it is required to consider the reasonableness of the methods and principles used by Telstra in proffering the 2008 Undertaking, principally in relation to the proposed monthly charge: see Telstra Corporation Limited [2006] ACompT 4 at [63], as explained in s 152AH. If it is satisfied of its reasonableness, it will accept the 2008 Undertaking: Optus Mobile Pty Limited [2006] ACompT 8 at [9]; Telstra Corporation Limited [2006] ACompT 4 at [20]. If it is not, it cannot accept the 2008 Undertaking.”

Generally price should reflect and not exceed forward-looking efficient economic costs: Re Application by Optus Mobile Pty Ltd, above, at [99] per Goldberg J, Mr R Davey and Mr R Shogren. A price for access to a telecommunications service based on forward-looking long-run incremental costs (FL-LRIC) (depending on the construction of that approach) may be reasonable having regard to the matters set out in s 152AH and the objectives in s 152AB: Re Application by Optus Mobile Pty Ltd, above, at [108] per Goldberg J, Mr R Davey and Mr R Shogren. The reference in s 152AH(1)(d) to the “direct costs of providing access to the declared service concerned” is intended to exclude the consequential costs which the access provider might incur as a result of increased competition from access in any relevant market: Re Application by Optus Mobile Pty Ltd,

above, at [138] per Goldberg J, Mr R Davey and Mr R Shogren. See also [14,177AB]. [14,177AH.25] Economically efficient operation of a carriage service The inclusion of the term “economically” in s 152AH(1)(f) suggests that concepts of allocative, productive and [page 1081] dynamic efficiency should be considered. Allocative efficiency will be best promoted where the price of a service reflects the underlying marginal cost of providing the service: Re Telstra Corporation Ltd (2006) ATPR ¶42-121; [2006] ACompT 4; BC200603967 per Goldberg J, Mr R Davey and Professor D Round. [14,177AH.35] Carrier’s legitimate business interests The explanatory memorandum to the Trade Practices Amendment (Telecommunications) Bill 1996 indicates that references to the legitimate business interests of the carrier or carriage service provider and the “direct” costs of providing access are intended to preclude arguments that the provider should be reimbursed by the third party seeking access for consequential costs which the provider may incur as a result of increased competition in an upstream or downstream market. A carrier’s “legitimate business interests” is what is regarded as allowable and appropriate in commercial or business terms: Re Telstra Corporation Ltd (2006) ATPR ¶42-121; [2006] ACompT 4; BC200603967 per Goldberg J, Mr R Davey and Professor D Round. In Re Telstra Corporation Ltd, above, the tribunal said at [89]: [89] ... In the context of s 152AH(1)(b), the expression connotes something which is allowable and appropriate when negotiating access to the carrier’s infrastructure. When looked at through the prism of a charge term and condition of access and its relationship to a carrier’s cost structure, it is a reference to the interest of a carrier in recovering the costs of its infrastructure and its operating costs and obtaining a normal return on its capital …

This approach was again adopted by the tribunal in Re Telstra Corporation Ltd (No 3) [2007] ACompT 3; BC200703762 at [180] per Goldberg J, Mr R Davey and Professor D Round.

[14,177AH.45] Interests of persons who have rights to use the declared services In Re Telstra Corporation Ltd [2006] ACompT 4; BC200603967 at [68], Goldberg J, Mr R Davey and Professor D Round said that the interests of persons who have a right to use the LSS [Line Sharing Service], access seekers, are served by an access price that enables them to compete on their merits (that is, on the basis of their own efficiency) in downstream markets: Re Telstra Corporation Ltd (No 3) [2007] ACompT 3; BC200703762 at [262] per Goldberg J, Mr R Davey and Professor D Round. _____________________

[14,177AI]

When public inquiry commences

152AI For the purposes of this Part, a public inquiry held by the Commission under Part 25 of the Telecommunications Act 1997 commences when the Commission publishes the notice under section 498 of that Act about the inquiry. [s 152AI insrt Act 140 of 2010 s 3 and Sch 1[127], opn 1 Jan 2011]

[14,177AJ] Interpretation of Part IIIA not affected by this Part 152AJ In determining the meaning of a provision of Part IIIA, the provisions of this Part (other than section 152CK) are to be ignored.

[14,177AK] Operation of Parts IV and VII not affected by this Part 152AK

This Part does not affect the operation of Parts IV and VII. [page 1082] DIVISION 2 — DECLARED SERVICES

[14,177AL]

Declared services

152AL (1) Eligible service For the purposes of this section, an eligible service is: (a) a listed carriage service (within the meaning of the Telecommunications Act 1997); or (b) a service that facilitates the supply of a listed carriage service (within the meaning of that Act); where the service is supplied, or is capable of being supplied, by a carrier or a carriage service provider (whether to itself or to other persons). (2) [subs (2) rep Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002] (3) Declaration made after public inquiry — services not supplied by an NBN corporation The Commission may, by written instrument, declare that a specified eligible service is a declared service if: (a) the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the declaration; and (b) the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997; and (c) the report was published during the 180-day period ending when the declaration was made; and (d) the Commission is satisfied that the making of the declaration will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services. Note: Eligible services may be specified by name, by inclusion in a specified class or in any other way. [subs (3) am Act 200 of 1997 Sch 2.31]

(3A) A declaration under subsection (3) does not apply to an eligible service to the extent to which the service is supplied, or is capable of being supplied, by an NBN corporation (whether to itself or to other persons). [subs (3A) insrt Act 23 of 2011 s 3 and Sch 1 item 38, opn 13 Apr 2011]

(3B) Before commencing to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make a declaration under subsection (3) in relation to an eligible service, the Commission must consider whether to hold a public inquiry under that Part about a proposal to make a declaration under subsection (8A) in relation to the service.

Note:

For combined public inquiries, see section 152AN.

[subs (3B) insrt Act 23 of 2011 s 3 and Sch 1 item 38, opn 13 Apr 2011]

(3C) Mandatory declaration — Layer 2 bitstream service As soon as practicable after the commencement of this subsection, the Commission must declare under subsection (3) that a specified Layer 2 bitstream service is a declared service. [subs (3C) insrt Act 23 of 2011 s 3 and Sch 1 item 94, opn 12 Apr 2012]

(3D) A declaration mentioned in subsection (3C) has no effect except to the extent (if any) to which the Layer 2 bitstream service is supplied using a designated superfast telecommunications network. [page 1083] Note: For designated superfast telecommunications network, see section 152AGA. [subs (3D) insrt Act 23 of 2011 s 3 and Sch 1 item 94, opn 12 Apr 2012]

(3E) Paragraphs (3)(a) to (d) do not apply to a declaration mentioned in subsection (3C). [subs (3E) insrt Act 23 of 2011 s 3 and Sch 1 item 94, opn 12 Apr 2012]

(3F) If a Layer 2 bitstream service is declared as mentioned in subsection (3C), that subsection does not, by implication, prevent the Commission from making a declaration under subsection (3) in relation to another Layer 2 bitstream service. [subs (3F) insrt Act 23 of 2011 s 3 and Sch 1 item 94, opn 12 Apr 2012]

(3G) If a Layer 2 bitstream service is declared as mentioned in subsection (3C), that subsection does not, by implication, prevent the Commission from making another declaration under subsection (3) in relation to the same Layer 2 bitstream service. [subs (3G) insrt Act 23 of 2011 s 3 and Sch 1 item 94, opn 12 Apr 2012]

(3H) The other declaration mentioned in subsection (3G) has no effect except to the extent (if any) to which the Layer 2 bitstream service is supplied otherwise than by using a designated superfast telecommunications network. Note: For designated superfast telecommunications network, see

section 152AGA. [subs (3H) insrt Act 23 of 2011 s 3 and Sch 1 item 94, opn 12 Apr 2012] (4) Declaration has effect A declaration under subsection (3) has effect accordingly. [subs (4) am Act 23 of 2011 s 3 and Sch 1 item 39, opn 13 Apr 2011]

(5) Gazettal of declaration A copy of a declaration under subsection (3) is to be published in the Gazette. [subs (5) am Act 23 of 2011 s 3 and Sch 1 item 39, opn 13 Apr 2011]

(6) Related services A reference in paragraph (1)(b) to a service that facilitates the supply of a carriage service does not include a reference to the use of intellectual property except to the extent that it is an integral but subsidiary part of the first-mentioned service. (7) Services covered by special access undertakings — services not supplied by an NBN corporation If: (a) a person (other than an NBN corporation) gives the Commission a special access undertaking in relation to a service or a proposed service; and (b) the undertaking is in operation; and (c) the person supplies the service or proposed service (whether to itself or to other persons); the service supplied by the person is a declared service. To avoid doubt, if the undertaking is subject to limitations, the service supplied by the person is a declared service only to the extent to which the service falls within the scope of the limitations. [subs (7) insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; am Act 23 of 2011 s 3 and Sch 1 item 40, opn 13 Apr 2011]

(8) The Commission may declare a service under subsection (3) even if the service is, to any extent, covered by subsection (7). [subs (8) insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

(8A) Declaration made after public inquiry — services supplied by an NBN corporation The Commission may, by written instrument, declare that a specified [page 1084] eligible service, to the extent to which the service is supplied, or is capable of

being supplied, by a specified NBN corporation (whether to itself or to other persons), is a declared service if: (a) the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the declaration; and (b) the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997; and (c) the report was published during the 180-day period ending when the declaration was made; and (d) the Commission is satisfied that the making of the declaration will promote the long term interests of end-users of carriage services or of services provided by means of carriage services. If the Commission does so, the declared service relates to the NBN corporation for the purposes of subsections 152AXB(2) and 152AXC(7). Note: Eligible services may be specified by name, by inclusion in a specified class or in any other way. [subs (8A) insrt Act 23 of 2011 s 3 and Sch 1 item 41, opn 13 Apr 2011]

(8B) A declaration under subsection (8A) has effect accordingly. [subs (8B) insrt Act 23 of 2011 s 3 and Sch 1 item 41, opn 13 Apr 2011]

(8C) A copy of a declaration under subsection (8A) is to be published in the Gazette. [subs (8C) insrt Act 23 of 2011 s 3 and Sch 1 item 41, opn 13 Apr 2011]

(8CA) Subsection (3C) does not, by implication, prevent a Layer 2 bitstream service from being declared under subsection (8A). [subs (8CA) insrt Act 23 of 2011 s 3 and Sch 1 item 95, opn 12 Apr 2012]

(8D) Services supplied by an NBN corporation — standard form of access agreement If: (a) an eligible service is supplied, or is capable of being supplied, by an NBN corporation (whether to itself or to other persons); and (b) the NBN corporation is a carrier or a carriage service provider; and (c) the NBN corporation has formulated a standard form of access agreement that relates to access to the service; and (d) the standard form of access agreement is available on the NBN corporation’s website; then:

(e) the service, to the extent to which it is supplied, or is capable of being supplied, by the NBN corporation (whether to itself or to other persons) is a declared service; and (f) the declared service relates to the NBN corporation for the purposes of subsections 152AXB(2) and 152AXC(7). [subs (8D) insrt Act 23 of 2011 s 3 and Sch 1 item 41, opn 13 Apr 2011]

(8E) Services covered by special access undertakings — services supplied by an NBN corporation If: (a) an NBN corporation gives the Commission a special access undertaking in relation to a service or a proposed service; and (b) the undertaking is in operation; and [page 1085] (c) the NBN corporation supplies the service or proposed service (whether to itself or to other persons); then: (d) the service supplied by the NBN corporation is a declared service; and (e) the declared service relates to the NBN corporation for the purposes of subsections 152AXB(2) and 152AXC(7). To avoid doubt, if the undertaking is subject to limitations, the service supplied by the NBN corporation is a declared service only to the extent to which the service falls within the scope of the limitations. [subs (8E) insrt Act 23 of 2011 s 3 and Sch 1 item 41, opn 13 Apr 2011]

(8F) The Commission may declare a service under subsection (8A) even if the service is, to any extent, covered by subsection (8E). [subs (8F) insrt Act 23 of 2011 s 3 and Sch 1 item 41, opn 13 Apr 2011]

(9) Declaration is not a legislative instrument A declaration under this section is not, and is taken never to have been, a legislative instrument. [subs (9) insrt Act 7 of 2008 s 3 and Sch 1[1], opn 20 Mar 2008; am Act 126 of 2015 s 3 and Sch 1 item 142, opn 5 Mar 2016]

(10) A variation of a declaration made under this section is not, and is taken never to have been, a legislative instrument.

[subs (10) insrt Act 7 of 2008 s 3 and Sch 1[1], opn 20 Mar 2008; am Act 126 of 2015 s 3 and Sch 1 item 142, opn 5 Mar 2016]

(11) A revocation of a declaration made under this section is not, and is taken never to have been, a legislative instrument. [subs (11) insrt Act 7 of 2008 s 3 and Sch 1[1], opn 20 Mar 2008; am Act 126 of 2015 s 3 and Sch 1 item 142, opn 5 Mar 2016]

(12) If: (a) a declaration was made under this section before the commencement of this subsection; and (b) the declaration ceased to be in force before the commencement of this subsection; then: (c) the declaration is taken never to have been a legislative instrument; and (d) if the declaration was varied or revoked before the commencement of this subsection — the variation or revocation is taken never to have been a legislative instrument. [subs (12) insrt Act 7 of 2008 s 3 and Sch 1[1], opn 20 Mar 2008; am Act 126 of 2015 s 3 and Sch 1 item 143, opn 5 Mar 2016]

(13) For the purposes of paragraph (12)(b), assume that the Legislation Act 2003 had never been enacted. [subs (13) insrt Act 7 of 2008 s 3 and Sch 1[1], opn 20 Mar 2008; am Act 126 of 2015 s 3 and Sch 1 item 144, opn 5 Mar 2016]

(14) Subsections (9) to (12) are enacted for the avoidance of doubt. [subs (14) insrt Act 7 of 2008 s 3 and Sch 1[1], opn 20 Mar 2008]

SECTION 152AL GENERALLY [14,177AL.1] Constitutional validity The application of Pt XIC (and specifically ss 152AL(3) and 152AR) to Telstra’s unconditioned local loop services (ULLS) is not beyond the [page 1086] legislative power of Parliament by reason of s 51(xxxi) of the Constitution

(the acquisition of property on just terms from any state or person): Telstra Corporation Ltd v Commonwealth [2008] HCA 7; BC200801217 at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. [14,177AL.5] Source of power under s 152AL Section 152AL should not be seen as a separate source of power in the relevant sense from the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997 s 39. Section 39 was only applicable in particular circumstances and for a particular period. Section 152AL operates after that period and without the same restrictions: Telstra Corp Ltd v Seven Cable Television Pty Ltd (2000) ATPR ¶41-785 at 41,345; [2000] FCA 1160; BC200004794. The language of s 39 of the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997 suggests that it survives the exercise of the substantive power conferred by s 152AL. Therefore a specified eligible service is a declared service under s 152AL for the purposes of s 152AR: Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) ATPR ¶41-785 at 41,346; [2000] FCA 1160; BC200004794. [14,177AL.10] Eligible service In determining whether a particular service “facilitates the supply of a listed carriage service” under s 152AL(1) it is legitimate to have regard to commercial as well as technical considerations: Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362; [2000] FCA 589; BC200002176 at [44]. [14,177AL.15] Declaration is not a legislative instrument Section 152AL(9) was inserted by the Trade Practices Amendment (Access Declarations) Act 2008. It provides that a declaration under this section is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003. See Telstra Corporation Ltd v ACCC [2008] FCA 1436; BC200808259 at [26] per Lindgren J. _____________________

[14,177ALA]

Duration of declaration

152ALA (1) Expiry date A declaration under section 152AL (other than a declaration mentioned in subsection 152AL(3C)) must specify an

expiry date for the declaration. [subs (1) am Act 23 of 2011 s 3 and Sch 1 item 96, opn 12 Apr 2012]

(2) In specifying an expiry date, the Commission must have regard to: (a) the principle that the expiry date for a declaration should occur in the period: (i) beginning 3 years after the declaration was made; and (ii) ending 5 years after the declaration was made; unless, in the Commission’s opinion, there are circumstances that warrant the expiry date occurring in a shorter or longer period; and (b) such other matters (if any) as the Commission considers relevant. [subs (2) subst Act 140 of 2010 s 3 and Sch 1[128], opn 1 Jan 2011]

(3) Subsection (2) has effect subject to subsection (4). (4) Extension of expiry date The Commission may, by notice published in the Gazette, extend or further extend the expiry date of a specified declaration under section 152AL, so long as the extension or further extension is for a period of not more than 5 years. [page 1087] (5) Duration of declaration Unless sooner revoked, a declaration under section 152AL (other than a declaration mentioned in subsection 152AL(3C)) ceases to be in force on the expiry date of the declaration. [subs (5) am Act 23 of 2011 s 3 and Sch 1 item 96, opn 12 Apr 2012]

(5A) A declaration mentioned in subsection 152AL(3C) remains in force indefinitely. [subs (5A) insrt Act 23 of 2011 s 3 and Sch 1 item 97, opn 12 Apr 2012]

(6) Fresh declaration If a declaration under section 152AL expires, this Part does not prevent the Commission from making a fresh declaration under section 152AL in the same terms as the expired declaration. (6A) If the fresh declaration comes into force immediately after the expiry of the expired declaration, the fresh declaration is taken to be a declaration that replaces the expired declaration [subs (6A) insrt Act 140 of 2010 s 3 and Sch 1[129], opn 1 Jan 2011]

(7) Public inquiry during 18-month period ending on the expiry date

of a declaration The Commission must: (a) during the 18-month period ending on the expiry date of a declaration, hold a public inquiry under Part 25 of the Telecommunications Act 1997 about: (i) whether to extend or further extend the expiry date of the declaration; and (ii) whether to revoke the declaration; and (iii) whether to vary the declaration; and (iv) whether to allow the declaration to expire without making a new declaration under section 152AL; and (v) whether to allow the declaration to expire and then to make a new declaration under section 152AL; and (vi) whether to extend or further extend the expiry date of a declaration by a period of not more than 12 months and then to allow the declaration to expire without making a new declaration under section 152AL; and (b) prepare a report about the inquiry under section 505 of the Telecommunications Act 1997; and (c) publish the report during the 180-day period ending on the expiry date of the first-mentioned declaration. [subs (7) am Act 140 of 2010 s 3 and Sch 1[130], [131], opn 1 Jan 2011]

(8) If: (a) after holding a public inquiry under subsection (7) in relation to a declaration, the Commission allows the declaration to expire and then makes a new declaration under section 152AL; and (b) the report mentioned in paragraph (7)(b) was published during the 180-day period ending when the new declaration was made; the Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c), or paragraphs 152AL(8A)(a), (b) and (c), as the case requires, in relation to the new declaration. [subs (8) am Act 23 of 2011 s 3 and Sch 1 item 42, opn 13 Apr 2011]

(9) If: (a) after holding a public inquiry under subsection (7) in relation to a declaration, the Commission revokes or varies the declaration; and

[page 1088] (b) the report mentioned in paragraph (7)(b) was published during the 180-day period ending at the time of the revocation or variation; the Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c), or paragraphs 152AL(8A)(a), (b) and (c), as the case requires, in relation to the revocation or variation (as those paragraphs apply to the power of revocation and variation because of subsection 152AO(1)). [subs (9) am Act 23 of 2011 s 3 and Sch 1 item 42, opn 13 Apr 2011]

(10) Extension notice is not a legislative instrument A notice under subsection (4) is not, and is taken never to have been, a legislative instrument. [subs (10) insrt Act 7 of 2008 s 3 and Sch 1[2], opn 20 Mar 2008; am Act 126 of 2015 s 3 and Sch 1 item 145, opn 5 Mar 2016]

(11) If: (a) a declaration was made under section 152AL before the commencement of this subsection; and (b) a notice relating to the declaration was published under subsection (4) of this section before the commencement of this subsection; and (c) the declaration ceased to be in force before the commencement of this subsection; the notice is taken never to have been a legislative instrument. [subs (11) insrt Act 7 of 2008 s 3 and Sch 1[2], opn 20 Mar 2008; am Act 126 of 2015 s 3 and Sch 1 item 145, opn 5 Mar 2016]

(12) For the purposes of paragraph (11)(c), assume that the Legislation Act 2003 had never been enacted. [subs (12) insrt Act 7 of 2008 s 3 and Sch 1[2], opn 20 Mar 2008; am Act 126 of 2015 s 3 and Sch 1 item 146, opn 5 Mar 2016]

(13) Subsections (10) and (11) are enacted for the avoidance of doubt. [subs (13) insrt Act 7 of 2008 s 3 and Sch 1[2], opn 20 Mar 2008] [s 152ALA insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

SECTION 152ALA GENERALLY [14,177ALA.5]

Notice is not a legislative instrument

Section

152ALA(10) was inserted by the Trade Practices Amendment (Access Declarations) Act 2008. It provides that a notice under this section is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003. See Telstra Corporation Ltd v ACCC [2008] FCA 1436; BC200808259 at [26] per Lindgren J. _____________________

[14,177AM] services

Inquiries about proposals to declare

152AM (1) This section applies to a public inquiry of a kind mentioned in paragraph 152AL(3)(a) or (8A)(a) or 152ALA(7)(a). [subs (1) am Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; Act 23 of 2011 s 3 and Sch 1 item 43, opn 13 Apr 2011]

(2) The Commission may hold the inquiry: (a) on its own initiative; or (b) if requested in writing to do so by a person. [page 1089] (3) The Commission does not have a duty to consider whether to hold a public inquiry of a kind mentioned in paragraph 152AL(3)(a) or (8A)(a) if the Commission is requested to do so by a person. [subs (3) subst Act 140 of 2010 s 3 and Sch 1[132], opn 1 Jan 2011; am Act 23 of 2011 s 3 and Sch 1 item 43, opn 13 Apr 2011]

(4) The Commission must give the ACMA a copy of the report about the inquiry prepared in accordance with section 505 of the Telecommunications Act 1997. [subs (4) am Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; Act 45 of 2005 s 3 and Sch 2, opn 1 July 2005]

(5) If the inquiry is held at the request of a person, the Commission must give the person a copy of the report about the inquiry prepared under section 505 of the Telecommunications Act 1997. [subs (5) am Act 200 of 1997 Sch 2.32]

[14,177AN] Combined inquiries about proposals to declare services 152AN (1) The Commission may decide to combine 2 or more public inquiries of a kind mentioned in paragraph 152AL(3)(a), or (8A)(a) or 152ALA(7)(a). [subs (1) am Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; Act 23 of 2011 s 3 and Sch 1 item 44, opn 13 Apr 2011]

(2) If the Commission makes such a decision: (a) the Commission may publish a single notice relating to the combined inquiry under section 498 of the Telecommunications Act 1997; and (b) the Commission may prepare a single discussion paper about the combined inquiry under section 499 of that Act; and (c) the Commission may hold hearings relating to the combined inquiry under section 501 of that Act; and (d) the Commission must ensure that each inquiry is covered by a report under section 505 of that Act, whether the report relates: (i) to a single one of those inquiries; or (ii) to any 2 or more of those inquiries. [subs (2) am Act 200 of 1997 Sch 2.33; Act 52 of 1999 s 3 and Sch 1]

[14,177AO] declaration

Variation or revocation of

152AO (1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by section 152AL, but it applies with the following changes. (1A) If: (a) a declaration under section 152AL relates to a particular service; and (b) in the Commission’s opinion, the service is of minor importance; the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to revoke the declaration. [subs (1A) insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

(2) [subs (2) rep Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002] (3) If a variation of a declaration under subsection 152AL(3) or (8A) is a variation that, under the Procedural Rules, is taken to be a variation of a minor nature, the [page 1090] Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about the proposed variation. [subs 3 am Act 119 of 2005 s 3 and Sch 7[4], opn 24 Mar 2006; Act 23 of 2011 s 3 and Sch 1 item 45, opn 13 Apr 2011]

(4) The Commission must not vary or revoke a declaration mentioned in subsection 152AL(3C). Note: Subsection 152AL(3C) deals with Layer 2 bitstream services. [subs (4) insrt Act 23 of 2011 s 3 and Sch 1 item 98, opn 12 Apr 2012]

SECTION 152AO GENERALLY [14,177AO.5] Altering a specified eligible service The status of a specified eligible service as a declared service under s 152AL(3) cannot be altered except in accordance with s 33(3) of the Acts Interpretation Act 1901, unless the variation is of a minor nature: Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) ATPR ¶41-785 at 41,346; [2000] FCA 1160; BC200004794. _____________________

[14,177AP] Inquiries about revocation of declared services 152AP

[s 152AP rep Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[14,177AQ]

Register of declared services

152AQ (1) The Commission must keep a Register in relation to declarations under section 152AL.

(2) The Register must include the following: (a) particulars of all such declarations (including declarations that have been revoked); (b) particulars of variations and revocations of such declarations; (c) copies of reports prepared in accordance with section 505 of the Telecommunications Act 1997 in relation to inquiries mentioned in paragraph 152AL(3)(a) or (8A)(a) or 152ALA(7)(a) of this Act. [subs (2) am Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; Act 23 of 2011 s 3 and Sch 1 item 46, opn 13 Apr 2011]

(3) The Register is to be maintained by electronic means. [subs (3) am Act 140 of 2010 s 3 and Sch 1[133], opn 1 Jan 2011]

(4) The Register is to be made available for inspection on the Commission’s website. [subs (4) subst Act 140 of 2010 s 3 and Sch 1[134], opn 1 Jan 2011]

(5) The Register is not a legislative instrument. [subs (5) subst Act 140 of 2010 s 3 and Sch 1[134], opn 1 Jan 2011]

(6) [subs (6) rep Act 140 of 2010 s 3 and Sch 1[134], opn 1 Jan 2011]

[14,177AQA] 152AQA 2011]

Pricing principle

[s 152AQA rep Act 140 of 2010 s 3 and Sch 1[135], opn 1 Jan

[page 1091] SECTION 152AQA GENERALLY [14,177AQA.5] Overview Section 152AQA does not contain any matters which the Commission, expressly or by implication, is bound to take into account in making a determination of “principles relating to the price of access to a declared service” mandated by s 152AQA(1). Nor does it contain any matters which the Commission, expressly or by implication, is bound to take into account if it wishes to include in that determination “price related terms and conditions relating to access to the declared service” as permitted by s 152AQA(2): Vodafone Australia Ltd v Australian Competition and

Consumer Commission [2005] FCA 1294; BC200506940 at [50] per Edmonds J. See Telstra Corporation Limited v Australian Competition and Consumer Commission (2009) 110 ALD 64; [2009] FCA 757; BC200906221 per Lindgren J. [14,177AQA.10] Price-related terms and conditions The specification of a price (whether indicative or otherwise) under s 152AQA(1) is a term or condition relating to price within the definition of “price related terms and conditions” in s 152AQA(8): Vodafone Australia Ltd v Australian Competition and Consumer Commission [2005] FCA 1294; BC200506940 at [69] per Edmonds J. Section 152AQA(2) authorises the Commission to specify a price or prices as part of a s 152AQA(1) determination: Vodafone Australia Ltd v Australian Competition and Consumer Commission, above, at [69] per Edmonds J. This section was repealed by the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 No 140 of 2010, effective 1 January 2011. _____________________

[14,177AQB] Model terms and conditions relating to access to core services 152AQB 2011]

[s 152AQB rep Act 140 of 2010 s 3 and Sch 1[135], opn 1 Jan

SECTION 152AQB GENERALLY [14,177AQB.5] Overview Section 152AQB requires the commission, among other things, to make a written determination setting out model terms and conditions relating to access to each specified core service in s 152AQB(1) and to have regard to that in an arbitration. In Telstra Corporation Ltd v ACCC [2008] FCA 1758; BC200810333 at [138] Rares J said that in failing to take into account Industry Code 569 (applying to ordering, provisioning and customer transfer in the Unconditioned Local Loop Service) the commission failed to exercise its powers in accordance with s 152AQB(9).

[14,177AQB.10] Model terms and conditions Section 152AQB(2) does not prescribe in a mandatory way the content of the model terms and conditions which the commission’s determination is required to set out: Australian Competition and Consumer Commission (ACCC) v Telstra Corporation Ltd (2009) 176 FCR 203; 256 ALR 615; [2009] FCAFC 68; BC200904877 at [46] per Ryan, Jacobson and Foster JJ. The model terms and conditions to be set out in a determination under s 152AQB(2) are not intended to be exhaustive — the commission has a discretion over the scope and content of the model terms and conditions which it determines: Australian Competition and Consumer Commission (ACCC) v Telstra Corporation Ltd (2009) 176 FCR 203; 256 ALR 615; [2009] FCAFC 68; BC200904877 at [49] per Ryan, Jacobson and Foster JJ. In Telstra [2009] above, the Court said at [50]–[53], [58]–[60]: [50] It is also significant, in our view, that s 152AQB(2) does not preface the phrase “model terms and conditions” with a definite article or any other expression apt to indicate that the model terms and conditions are contemplated as being all those which could reasonably be [page 1092] made for access to a particular core service or as being otherwise exhaustive. This feature of the language of the subsection creates, at the very least, an ambiguity as to the duty which was intended to be imposed in relation to the reach or content of the model rules and conditions which the ACCC is required to determine. [51] We also derive some assistance in the proper construction of s 152AQB(2) from the fact that the section as a whole is concerned with the determination of “model” terms and conditions. The epithet “model”, we think, connotes an illustrative guide or template rather than a prescriptive definition of the substance or scope of the regulation of access to a core service which the terms and conditions are to effect. [52] The phrase “model terms and conditions” is not specifically defined anywhere in the Act and is only used in the Act in Pt XIC. The other sections where it appears are ss 152BK, 152BS, 152BV, 152BW and 152BX. Section 152BK deals with the content of a telecommunications access code made under s 152BJ of the Act. Section 152BK(2) provides that: Different sets of model terms and conditions may be set out for: (a) different kinds of obligations; or (b) the same kind of obligation in so far as it applies to different kinds of declared services. [53] Sections 152BS, 152BV, 152BW and 152BX deal with the interaction between ordinary access undertakings and the provisions that are to apply if model terms and conditions are adopted as well as those which are to apply in the event that model terms and conditions are not adopted. All of those provisions contemplate the existence of different sets of model terms and conditions — not just by reference to different kinds of declared services but also by reference to different kinds of obligations. The existence and terms of these provisions in Pt XIC in close proximity to s 152AQB supports our view that s 152AQB(2) does not mandate that the ACCC is obliged to produce one all

encompassing set of model terms and conditions for each core service but rather contemplates the flexible non-exhaustive approach adopted by the ACCC in its 2003 and 2008 Determinations in respect of (inter alia) ULLS ordering and provisioning processes … [58] We also consider that the interpretation of s 152AQB(2) which we favour is more conducive to a formulation by the ACCC of model terms and conditions which gives practical effect to the policy inherent in the objectives identified in s 152AB of the Act of encouraging access providers and access seekers to agree on a regime for access to a core service which promotes competition in markets for those services. The ACCC is not itself a participant in the telecommunications industry. Accordingly, if it were required to promulgate a model set of terms and conditions providing exhaustively for access to a particular core service, it could well stifle or reduce competition which might otherwise be enhanced by technical innovations or additions to the model devised by an access provider and an access seeker. [59] In the same context, we agree with the contention advanced on behalf of Optus that it is impossible to glean from within the four corners of Pt XIC of the Act a sufficiently certain legal standard against which a court could determine whether a particular set of model terms and conditions contained “all” or “all material” provisions for regulating access to the core service in question. [60] A related consideration which militates against the view that s 152AQB(2) requires the promulgation of an exhaustive set of model terms and conditions is the fact that the model terms and conditions do not, of themselves, confer rights or impose obligations on access providers, access seekers or end users. Their only operative effect is that the ACCC must “have regard” to them if required to arbitrate an access dispute in relation to the relevant core service (see s 152AQB(9)).

[page 1093] This section was repealed by the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 No 140 of 2010, effective 1 January 2011. _____________________

[14,177AQC] property

Compensation for acquisition of

152AQC (1) If the operation of any or all of the following provisions: (a) subsection 152AL(9), (10), (11), (12), (13) or (14); (b) subsection 152ALA(10), (11), (12) or (13); would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person. (2) If the Commonwealth and the person do not agree on the amount of the

compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines. (3) In this section: acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. just terms has the same meaning as in paragraph 51(xxxi) of the Constitution. [s 152AQC insrt Act 7 of 2008 s 3 and Sch 1[3], opn 20 Mar 2008]

SECTION 152AQC GENERALLY [14,177AQC.5] Overview Section 152AQC was inserted by the Trade Practices Amendment (Access Declarations) Act 2008. It provides for reasonable compensation by the Commonwealth if the application of the provisions in that section would result in the acquisition of property from a person other than on just terms. The provision was inserted to ensure that it does not, in its application, infringe s 51(xxxi) of the Constitution. _____________________ DIVISION 3 — STANDARD ACCESS OBLIGATIONS Subdivision A — Category A standard access obligations [Heading insrt Act 23 of 2011 s 3 and Sch 1 item 47, opn 13 Apr 2011]

[14,177AR] obligations

Category A standard access

152AR (1) This section sets out the category A standard access obligations. [subs (1) am Act 23 of 2011 s 3 and Sch 1 item 48, opn 13 Apr 2011]

(2) Access provider and active declared services For the purposes of this section, if a carrier (other than an NBN corporation) or a carriage service provider (other than an NBN corporation) supplies declared services,

whether to itself or to other persons: (a) the carrier or provider is an access provider; and (b) the declared services are active declared services. [subs (2) am Act 23 of 2011 s 3 and Sch 1 item 49, opn 13 Apr 2011]

(3) Supply of active declared service to service provider An access provider must, if requested to do so by a service provider: (a) supply an active declared service to the service provider in order that the service provider can provide carriage services and/or content services; and [page 1094] (b) take all reasonable steps to ensure that the technical and operational quality of the active declared service supplied to the service provider is equivalent to that which the access provider provides to itself; and (c) take all reasonable steps to ensure that the service provider receives, in relation to the active declared service supplied to the service provider, fault detection, handling and rectification of a technical and operational quality and timing that is equivalent to that which the access provider provides to itself. (4) Limit on paragraph (3)(a) obligation Paragraph (3)(a) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects: (a) preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the request was made; (b) preventing the access provider from obtaining a sufficient amount of the service to be able to meet the access provider’s reasonably anticipated requirements, measured at the time when the request was made; (c) preventing a person from obtaining, by the exercise of a prerequest right, a sufficient level of access to the declared service to

be able to meet the person’s actual requirements; (d) depriving any person of a protected contractual right; (e) preventing Telstra from complying with an undertaking in force under section 577A, 577C or 577E of the Telecommunications Act 1997; or (f) if a final migration plan is in force — requiring Telstra to engage in conduct in connection with matters covered by the final migration plan. [subs (4) am Act 140 of 2010 s 3 and Sch 1[38], opn 1 Jan 2011]

*(4A) Ordering and provisioning — paragraph 3(b) To avoid doubt, ordering and provisioning are taken to be aspects of technical and operational quality referred to in paragraph (3)(b). [subs (4A) insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

(4B) The regulations may provide that, for the purposes of subsection (4A), a specified act or thing is taken to be ordering. Note: For specification by class, see subsection 13(3) of the Legislation Act 2003. [subs (4B) insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; am Act 46 of 2011 s 3 and Sch 2[437], opn 27 Dec 2011; Act 126 of 2015 s 3 and Sch 1 item 147, opn 5 Mar 2016]

(4C) The regulations may provide that, for the purposes of subsection (4A), a specified act or thing is taken to be provisioning. Note: For specification by class, see subsection 13(3) of the Legislation Act 2003. [subs (4C) insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; am Act 46 of 2011 s 3 and Sch 2[437], opn 27 Dec 2011; Act 126 of 2015 s 3 and Sch 1 item 147, opn 5 Mar 2016]

*Editor’s note: Schedule 2 cl 113 of the Telecommunications Competition Act 2002 No 140 provides as follows: Transitional — paragraph 152AR(3)(a) of the Trade Practices Act 1974 113 The amendment made by this Part is to be disregarded in determining the meaning that paragraph 152AR(3)(b) of the Trade Practices Act 1974 had before the commencement of this item.

[page 1095]

(5) Interconnection of facilities If an access provider: (a) owns or controls one or more facilities; or (b) is a nominated carrier in relation to one or more facilities; the access provider must, if requested to do so by a service provider: (c) permit interconnection of those facilities with the facilities of the service provider for the purpose of enabling the service provider to be supplied with active declared services in order that the service provider can provide carriage services and/or content services; and (d) take all reasonable steps to ensure that: (i) the technical and operational quality and timing of the interconnection is equivalent to that which the access provider provides to itself; and (ii) if a standard is in force under section 384 of the Telecommunications Act 1997 — the interconnection complies with the standard; and (e) take all reasonable steps to ensure that the service provider receives, in relation to the interconnection, fault detection, handling and rectification of a technical and operational quality and timing that is equivalent to that which the access provider provides to itself. (6) Provision of billing information If a service provider uses active declared services supplied by an access provider in accordance with subsection (3), the access provider must, if requested to do so by the service provider, give the service provider billing information in connection with matters associated with, or incidental to, the supply of those active declared services. (7) Timing and content of billing information The billing information referred to in subsection (6) must: (a) be given at such times or intervals as are ascertained in accordance with the regulations; and (b) be given in a manner and form ascertained in accordance with the regulations; and (c) set out such particulars as are ascertained in accordance with the regulations. (8) Conditional-access customer equipment If an access provider

supplies an active declared service by means of conditional-access customer equipment, the access provider must, if requested to do so by a service provider who has made a request referred to in subsection (3), supply to the service provider any service that is necessary to enable the service provider to supply carriage services and/or content services by means of the active declared service and using the equipment. (9) Exceptions This section does not impose an obligation on an access provider if there are reasonable grounds to believe that: (a) the access seeker would fail, to a material extent, to comply with the terms and conditions on which the access provider complies, or on which the access provider is reasonably likely to comply, with that obligation; or (b) the access seeker would fail, in connection with that obligation, to protect: (i) the integrity of a telecommunications network; or (ii) the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility. [page 1096] (10) Examples — paragraph (9)(a) grounds Examples of grounds for believing as mentioned in paragraph (9)(a) include: (a) evidence that the access seeker is not creditworthy; and (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the access provider). (11) Starting date for obligations An obligation imposed by this section does not arise before 1 July 1997. (12) Definitions In this section: pre-request right, in relation to a request made for the purposes of paragraph (3)(a), means a right under a contract, that was in force at the time when the request was made. [def am Act 140 of 2010 s 3 and Sch 1[136], opn 1 Jan 2011]

protected contractual right means a right under a contract that was in force at the beginning of 13 September 1996. SECTION 152AR GENERALLY [14,177AR.1] Constitutional validity The application of Pt XIC (and specifically ss 152AL(3) and 152AR) to Telstra’s unconditioned local loop services (ULLS) is not beyond the legislative power of Parliament by reason of s 51(xxxi) of the Constitution (the acquisition of property on just terms from any state or person): Telstra Corporation Ltd v Commonwealth [2008] HCA 7; BC200801217 at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. [14,177AR.5] Depriving a person of a protected contractual right Section 152AR(3)(a) does not impose an obligation to supply an active declared service to the extent that it would have the effect of depriving any person of a protected contractual right under s 152AR(4)(d). A protected contractual right is a right under a contract that was in force at the beginning of 13 September 1996: s 152AR(12). This is the date that the second exposure draft of the legislation was published. See Seven Network Ltd v Australian Competition and Consumer Commission (2007) 164 FCR 127; 245 ALR 68; [2007] FCA 1929; BC200711069 per Buchanan J. The expression “protected contractual right” should be given a strict construction as it facilitates the achievement of the legislative purpose by narrowing pre-existing exclusive arrangements calculated to prevent access by competitors or to delimit the terms of access by such competitors: Seven Cable Television Pty Ltd v Telstra Corp Ltd (2000) 171 ALR 89; [2000] FCA 350; BC200001241 at [31]; (appeal) Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd (2000) 175 ALR 433; (2000) ATPR ¶41-784; [2000] FCA 1159; BC200004795. Section 152AR(4)(c) simply refers to a right and not to the character, quality or extent of that right. It is not to be read down by the preceding three paragraphs. It therefore includes a right of exclusivity or bundling: Seven Cable Television Pty Ltd v Telstra Corp Ltd, above, at [31]–[32]; (appeal) Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd, above. Section 152AR(4) requires that the right must be in existence at the time that access is sought to be granted or is granted and has not for example been

extinguished by agreement or operation of law. However, s 152AR(4) does not appear to require that the identical contract under which the right existed continue in existence. The right will not be lost if it is restated or preserved in another contract between the parties and there is no legal hiatus in the continuance of that right. This is because the section protects the “right” and not the “contract”: Seven Cable Television Pty Ltd v Telstra Corp Ltd, above, at [33]; (appeal) Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd, above. [page 1097] The “right” need not be identical to the right in existence at 13 September 1996. It is appropriate to look at the substance of the right and not simply the form in which the right is conferred: Seven Cable Television Pty Ltd v Telstra Corp Ltd, above, at [34]; (appeal) Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd, above. If there exists a protected contractual right, there must still be an assessment whether the nature and extent of that right and the grant of access would deprive the person of that right: Seven Cable Television Pty Ltd v Telstra Corp Ltd, above, at [55]; (appeal) Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd, above. [14,177AR.10] Access and interconnection For the court’s consideration of an access and interconnection agreement see Telstra Corporation Ltd v Optus Networks Pty Ltd [2002] FCAFC 296; BC200205570. ________________________

[14,177ARA] Layer 2 bitstream services to be supplied on a non-discriminatory basis 152ARA (1) No discrimination between access seekers If a Layer 2 bitstream service is: (a) supplied using a designated superfast telecommunications network; and

(b) a declared service; a carrier (other than an NBN corporation) or carriage service provider (other than an NBN corporation) must not, in complying with any of its category A standard access obligations in relation to the service, discriminate between access seekers. Note: For explanatory material, see section 152CJH.

(2) The rule in subsection (1) does not prevent discrimination against an access seeker if the carrier or carriage service provider has reasonable grounds to believe that the access seeker would fail, to a material extent, to comply with the terms and conditions on which the carrier or carriage service provider complies, or on which the carrier or carriage service provider is reasonably likely to comply, with the relevant obligation. (3) Examples of grounds for believing as mentioned in subsection (2) include: (a) evidence that the access seeker is not creditworthy; and (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the carrier or carriage service provider). (7) No discrimination by a carrier or carriage service provider in favour of itself If: (a) a Layer 2 bitstream service is: (i) supplied using a designated superfast telecommunications network; and (ii) a declared service; and (b) the carrier (other than an NBN corporation) or carriage service provider (other than an NBN corporation) supplies, or is capable of supplying, the service to itself and to other persons; and (c) the carrier or carriage service provider is subject to a category A standard access obligation in relation to the service; the carrier or carriage service provider must not discriminate in favour of itself in relation to the supply of the service. [s 152ARA insrt Act 23 of 2011 s 3 and Sch 1 item 99, opn 12 Apr 2012]

[page 1098]

[14,177ARB] Layer 2 bitstream services — carriers and carriage service providers to carry on related activities on a non-discriminatory basis 152ARB (1) Scope This section applies to a carrier or carriage service provider if: (a) a Layer 2 bitstream service is: (i) supplied using a designated superfast telecommunications network; and (ii) a declared service; and (b) the carrier or provider is subject to a category A standard access obligation in relation to the service. (2) No discrimination The carrier or provider must not, in carrying on any of the following activities, discriminate between access seekers: (a) developing a new eligible service; (b) enhancing a declared service; (c) extending or enhancing the capability of a facility or telecommunications network by means of which a declared service is, or is to be, supplied; (d) planning for a facility or telecommunications network by means of which a declared service is, or is to be, supplied; (e) an activity that is preparatory to the supply of a declared service; (f) an activity that is ancillary or incidental to the supply of a declared service; (g) giving information to service providers about any of the above activities. Note: For explanatory material, see section 152CJH.

(6) Definition in this section: eligible service has the same meaning as in section 152AL. [s 152ARB insrt Act 23 of 2011 s 3 and Sch 1 item 99, opn 12 Apr 2012]

[14,177AS] Ordinary class exemptions from standard access obligations 152AS 2011]

[s 152AS rep Act 140 of 2010 s 3 and Sch 1[137], opn 1 Jan

[14,177ASA] Anticipatory class exemptions from category A standard access obligations 152ASA (1) Determination providing for exemption The Commission may, by written instrument, determine that, in the event that a specified service or proposed service becomes an active declared service, each of the members of a specified class of carrier or of a specified class of carriage service provider are exempt from any or all of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service. (1A) A service or a proposed service must not be specified in a determination under this section if, at the time when the determination is made, the service or proposed service is a declared service. [subs (1A) insrt Act 140 of 2010 s 3 and Sch 1[138], opn 1 Jan 2011]

[page 1099] (2) A determination under this section may be unconditional or subject to such conditions or limitations as are specified in the determination. Note: For judicial enforcement of conditions and limitations, see section 152BBAA. [subs (2) am Act 119 of 2005 s 3 and Sch 5, opn 24 Sep 2005]

(2A) A determination under this section may: (a) provide that the determination must not be varied; or (b) provide that the determination must not be varied except in such circumstances as are specified in the determination. [subs (2A) insrt Act 140 of 2010 s 3 and Sch 1[139], opn 1 Jan 2011]

(2B) A determination under this section may: (a) provide that the determination must not be revoked; or (b) provide that the determination must be revoked except in such circumstances as are specified in the determination. [subs (2B) insrt Act 140 of 2010 s 3 and Sch 1[139], opn 1 Jan 2011]

(3) A determination under this section has effect accordingly. (4) Criteria for making determination The Commission must not make a determination under this section unless the Commission is satisfied that the making of the determination will promote the long-term interests of end-users of carriage services or of services supplied by means of carriage services. (8) Expiry time of determination A determination under this section must specify the expiry time of the determination. If a determination expires, this Part does not prevent the Commission from making a fresh determination under this section in the same terms as the expired determination. [subs (8) am Act 140 of 2010 s 3 and Sch 1[140], opn 1 Jan 2011]

(9) The expiry time of the determination may be described by reference to the end of a period beginning when the service or proposed service becomes an active declared service. (10) Subsection (9) does not, by implication, limit subsection (8). (11) Consultation If, in the Commission’s opinion, the making of a determination under this section is likely to have a material effect on the interests of a person, then, before making the determination, the Commission must first: (a) publish a draft of the determination and invite people to make submissions to the Commission on the question of whether the draft determination should be made; and (b) consider any submissions that were received within the time limit specified by the Commission when it published the draft determination. (11A) Variation or revocation of determination Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by subsection (1), but it applies with the following changes. [subs (11A) insrt Act 140 of 2010 s 3 and Sch 1[141], opn 1 Jan 2011]

(11B) A provision referred to in paragraph (2A)(a) or (b) or (2B)(a) or (b) cannot be varied or removed. [subs (11B) insrt Act 140 of 2010 s 3 and Sch 1[141], opn 1 Jan 2011]

[page 1100] (11C) A determination under this section must not be varied or revoked in a manner that is inconsistent with a provision referred to in paragraph (2A) (a) or (b) or (2B)(a) or (b). [subs (11C) insrt Act 140 of 2010 s 3 and Sch 1[141], opn 1 Jan 2011]

(12) Determination is not a legislative instrument made under subsection (1) is not a legislative instrument.

A determination

[subs (12) subst Act 140 of 2010 s 3 and Sch 1[142], opn 1 Jan 2011]

(13) Definition In this section: active declared service has the same meaning as in section 152AR. [subs (13) am Act 140 of 2010 s 3 and Sch 1[143], opn 1 Jan 2011] [s 152ASA insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; am Act 119 of 2005 s 3 and Sch 6, opn 24 Sep 2005]

[14,177AT] Ordinary individual exemptions from standard access obligations 152AT 2011]

[s 152AT rep Act 140 of 2010 s 3 and Sch 1[144], opn 1 Jan

SECTION 152AT GENERALLY [14,177AT.5] Overview Section 152AT permits the provider of a declared carriage service to apply for an exemption from the standard access obligations. The Explanatory Memorandum which accompanied the Trade Practices Amendment (Telecommunications) Bill 1996 provides the following explanation of s 152AT: This section will enable individual carriers or carriage service providers to present a case to the ACCC that the long-term interests of end-users will be promoted by the limitation or removal of the

standard access obligations on that carrier or carriage service provider or which may in the future be placed on that carrier or carriage service provider. Given the service declaration itself (which has industry wide application) was made on the basis that it would promote the long-term interests of end-users, it is appropriate that a similar test apply where an individual seeks to have the relevant obligation removed. This mechanism could be used where infrastructure investments of national or regional significance are proposed which would provide long-term and substantial benefits to endusers of carriage services and services supplied by means of carriage services, but would not proceed or would be severely hampered if the standard access obligations applied in their entirety. The provision is drafted in broad terms because ACCC judgments about the giving of an exemption and the precise nature of exemptions need to be made on a case-by-case basis. See Application by Telstra Corporation Ltd [2009] ACompT 1 at [42]–[45] per Middleton J, Mr R Davey and Professor D Round.

[14,177AT.10] Criteria for granting an exemption order Under s 152AT(4), the commission must not make an exemption order under paragraph (3)(a) unless it is satisfied that the making of the order will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services. In determining the long-term interests of end users, consideration must be given to all the factors in s 152AB, not just some of them: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23; BC200901501 at [268], [272] per Jacobson, Lander and Foster JJ; see Application by AAPT Limited [2009] ACompT 5; BC200908313 per Finkelstein J, R Davey and Professor D Round; Application by AAPT Limited [2009] ACompT 6; BC200908312 per Finkelstein J, R Davey and Professor D Round; [page 1101] This requires a comparison between the future with the exemptions and the future without the exemptions and an assessment, in the light of that comparison, of which state of affairs is in the long-term interests of end users: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23; BC200901501 at [159] per Jacobson, Lander and Foster JJ. Determining the long-term interests of end users in a given case may involve consideration of the existing state of the market and the future impact of the matter under consideration, both in the immediate future and over the longer term: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23; BC200901501 at [244] per Jacobson, Lander and Foster JJ. An issue is whether the commission (or the tribunal when reviewing a decision of the commission) is required to make an exemption order upon being satisfied that the order will promote the longterm interests of end-users. One view is that the condition described in s 152AT(4) defines the circumstances in which the head of power in s 152AT(3) must be exercised. An alternative view is that the state of satisfaction that is required by s 152AT(4) is simply a condition that must be satisfied before an exemption order is made and the decision-maker is still required to take all

relevant considerations into account in deciding whether or not to make an order: see Application by Chime Communications Pty Ltd (2008) 222 FLR 323; [2008] ACompT 4; BC200811630 at [6] per Finkelstein J, R Davey and Professor D Round. In Application by Chime Communications Pty Ltd (2008) 222 FLR 323; [2008] ACompT 4; BC200811630 at [7]–[8] Finkelstein J, R Davey and Professor D Round concluded: 7 The Tribunal is of opinion that s 152AT(4) does not define the manner in which the power in s 152AT(3) is to be exercised. This is clear from the structure of the section, which to some extent is worth repeating. First, a provider of a declared service may apply for an exemption. Second, the ACCC (or the Tribunal) must consider that application. Third, after considering the application the ACCC (or the Tribunal) must: (a) make an exemption order; or (b) refuse the application. To this point no limitation is imposed on the decision-making power. Nor is there any requirement to take particular considerations into account. Then there is s 152AT(4), which in terms imposes a prohibition upon the making of an exemption order unless the criterion is satisfied. The section is silent on when the order should be made. This structure shows that there is no duty to make an exemption order if the s 152AT(4) criterion is satisfied. First, that is not what s 152AT(3) provides. It would be necessary to rewrite the section to produce that result. Second, the imposition of the supposed obligation would be inconsistent with Parliament’s intention to confer a broad power on the ACCC (and the Tribunal) such that each application must be considered on a case by case basis. The Explanatory Memorandum to the Trade Practices Amendment (Telecommunications) Bill 1996 states that “[t]he provision [s 152AT] is drafted in broad terms because ACCC judgments about the giving of an exemption and the precise nature of exemptions given need to be made on a case-by-case basis. 8 Nor can it be accepted, as was put by the ACCC, that the range of factors that it (or the Tribunal) is able to take into account in reaching a decision is “extremely limited”. This submission was based on Re Sydney Airports Corporation Ltd (2000) 156 FLR 10. There the Tribunal considered the ambit of the Minister’s power under s 44H to declare a particular service (in that case an airport) for the purpose of enabling third parties to obtain access to that service. Section 44H(4) sets out six matters which the Minister must satisfy himself of before making a declaration. The Tribunal observed (at [223]) that s 44H(4) “cover[s] such a range of considerations that the Tribunal considers there is little room left for an exercise of discretion if it be satisfied of all the matters set out [therein]”. This is especially so when a prescribed matter includes the “public interest”. On this aspect, the contrast between s 44H and s 152AT could not be greater. Section 152AT does not specify any matters (save for the s 152AT(4) criterion) which the ACCC (or the Tribunal) must

[page 1102] satisfy itself of before making or refusing to make an exemption order. The matter is otherwise left at large. The matters to be taken into account must be determined by implication from the subject matter, scope and purpose of Part XIC. It follows that it is for the ACCC (or the Tribunal) to determine the appropriate weight to be given to any relevant matter.”

The respondents in the Chime proceedings (including Telstra) sought judicial review of the tribunal’s decision before the full Federal Court. The court said the tribunal was wrong if it assumed that it had a residual

discretion under s 152AT (even where it found that an exemption would be in the long-term interests of end users. When an application is made under s 152AT, the issue is resolved solely by determining whether an exemption order would be in the long-term interests of end users: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23; BC200901501 at [146] per Jacobson, Lander and Foster JJ. The court said at [140], [141], [144]: 140. In our opinion, s 152AT(4) is cast in its terms so that the ACCC should not make an order under s 152AT(3)(a) to relieve a carrier or carriage service provider from the consequences of the s 152AL declaration unless positively satisfied that the declaration, which had previously been made to promote the LTIE, should no longer constrain that carrier or carriage service provider. The effect of an order for exemption under s 152AT is to reverse the effect of the previous declaration made under s 152AL. In those circumstances, it is not surprising that s 152AT(4) says that the order should not be made unless the ACCC or the Tribunal is so satisfied. 141. We can see no room for any residual discretion reposing in the ACCC if it is satisfied that an order should be made to promote the LTIE. There is no further inquiry to be made. 144. We think that there is no room for the exercise of discretion in a consideration of an application under s 152AT. If the ACCC or the Tribunal is satisfied that an order should be made exempting a carrier or a carriage service provider under s 152AT because such an order would promote the LTIE, then, in our opinion, the order would have to be made. That is consistent with the purpose of s 152AT, which is to relieve the applicant from the consequences of the declaration under s 152AL. It is also consistent with s 152AB(1) which spells out the single object of Part XIC, viz the promotion of the LTIE.”

The full Federal Court agreed with submissions made by Telstra that there is no statutory presumption against making an exemption order under s 152AT(3)(a) and no legal onus lying on an applicant to rebut such a presumption: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23; BC200901501 at [161] per Jacobson, Lander and Foster JJ. In determining whether an exemption order will promote the long-term interests of end users, consideration should be given to whether there are conditions or limitations that could be imposed in the making of the order which would assist in making that decision. This must be approached at the same time as the commission (or tribunal) is considering whether it is satisfied that an exemption order will promote the long-term interests of end users: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23; BC200901501 at [282], [290] per Jacobson, Lander and Foster JJ. A critical part of the tribunal’s reasoning in Chime leading to its ultimate decision to set aside the exemption orders was its holding that, in order for

Telstra to satisfy the requirements of s 152AT(4), it was necessary for Telstra to adduce empirical evidence before the Tribunal from which it would be possible to arrive at conclusions about market behaviour both as it existed at the time the exemptions were under consideration and in the future. The court said that to impose a requirement of empirical evidence for an applicant for exemption to meet in a case such as the present is, to apply the wrong test to the objective of competition required to be considered under s 152AB(2)(c): Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23; BC200901501 at [173]–[175] per Jacobson, Lander and Foster JJ. [page 1103] In Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919; Application by Chime Communications Pty Ltd (No 3) [2009] ACompT 4; BC200907929 Finkelstein J, R Davey and Professor D Round granted an exemption to Telstra (on conditions) from the standard access obligations in respect of two declared services — the wholesale line rental service and the local carriage service. In Application by Telstra Corporation Ltd [2009] ACompT 1, Middleton J, Mr R Davey and Professor D Round refused to grant an exemption to Telstra for an exemption from all the standard access obligations in s 152AR. In Application by AAPT Limited [2009] ACompT 5; BC200908313; Application by AAPT Limited [2009] ACompT 6; BC200908312, Finkelstein J, R Davey and Professor D Round granted applications by Telstra for exemption from the standard access obligations in relation to the PSTN service for CBD exchange service areas. This section was repealed by the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 No 140 of 2010, effective 1 January 2011. ________________________

[14,177ATA] Anticipatory individual exemptions from category A standard access obligations

152ATA (1) Application for exemption order A person who is, or expects to be, a carrier or a carriage service provider may apply to the Commission for a written order that, in the event that a specified service or proposed service becomes an active declared service, the person is exempt from any or all of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service. (2) An application under subsection (1) must be: (a) in writing; and (b) in a form approved in writing by the Commission for the purposes of this paragraph. (2A) Before the Commission makes a decision under subsection (3) in relation to the application, the applicant may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the application, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature. [subs (2A) insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(3) Commission must make exemption order or refuse application After considering the application, the Commission must: (a) make a written order that, in the event that the service or proposed service becomes an active declared service, the applicant is exempt from one or more of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service; or (b) refuse the application. (3A) A service or a proposed service must not be specified in an order under paragraph (3)(a) if, at the time when the order is made, the service or proposed service is a declared service. [subs (3A) insrt Act 140 of 2010 s 3 and Sch 1[145], opn 1 Jan 2011]

[page 1104] (4) An order under paragraph (3)(a) may be unconditional or subject to such conditions or limitations as are specified in the order. Note: For judicial enforcement of conditions and limitations, see section

152BBAA. [subs (4) am Act 119 of 2005 s 3 and Sch 5, opn 24 Sep 2005]

(4A) An order under paragraph (3)(a) may: (a) provide that the order must not be varied; or (b) provide that the order must not be varied except in such circumstances as are specified in the order. [subs (4A) insrt Act 140 of 2010 s 3 and Sch 1[146], opn 1 Jan 2011]

(4B) An order under paragraph (3)(a) may: (a) provide that the order must not be revoked; or (b) provide that the order must not be revoked except in such circumstances as are specified in the order. [subs (4B) insrt Act 140 of 2010 s 3 and Sch 1[146], opn 1 Jan 2011]

(5) An order under paragraph (3)(a) has effect accordingly. (6) Criteria for making exemption order The Commission must not make an order under paragraph (3)(a) unless the Commission is satisfied that the making of the order will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services. (7) Serial applications If: (a) a person makes an application (the first application) under subsection (1) for an order in relation to a service or proposed service; and (b) the Commission refuses the first application; and (c) the person subsequently makes another application under subsection (1); and (d) the Commission is satisfied that: (i) the first application and the other application have material similarities; or (ii) the grounds on which the person made the first application are materially similar to the grounds on which the person has made the other application; the Commission may refuse to consider the other application. [subs (7) insrt Act 140 of 2010 s 3 and Sch 1[147], opn 1 Jan 2011]

(10) Expiry time for exemption order An order under paragraph (3)(a) must specify the expiry time for the order. If an order expires, this Part does not prevent the Commission from making a fresh order under paragraph (3)

(a) in the same terms as the expired order. [subs (10) am Act 140 of 2010 s 3 and Sch 1[148], opn 1 Jan 2011]

(10A) The expiry time for the order may be described by reference to the end of a period beginning when the service or proposed service becomes an active declared service. (10B) Subsection (10A) does not, by implication, limit subsection (10). (11) Consultation If, in the Commission’s opinion, the making of an order under paragraph (3)(a) is likely to have a material effect on the interests of a person, then, before making the order, the Commission must first: (a) publish the application for the order and invite people to make submissions to the Commission on the question of whether the order should be made; and [page 1105] (b) consider any submissions that were received within the time limit specified by the Commission when it published the application. (12) Commission to make decision within 6 months If the Commission does not make a decision on an application under this section within 6 months after receiving the application, the Commission is taken to have made, at the end of that 6-month period, an order under paragraph (3) (a) in accordance with the terms of the application. (13) In calculating the 6-month period referred to in subsection (12), disregard: (a) if the Commission has published the application under subsection (11) — a day in the period: (i) beginning on the date of publication; and (ii) ending at the end of the time limit specified by the Commission when it published the application; and (b) if the Commission has requested further information under section 152AU in relation to the application — a day during any part of which the request, or any part of the request, remains unfulfilled. (14) Extension of decision-making period The Commission may, by

written notice given to the applicant, extend or further extend the 6-month period referred to in subsection (12), so long as: (a) the extension or further extension is for a period of not more than 3 months; and (b) the notice includes a statement explaining why the Commission has been unable to make a decision on the application within that 6-month period or that 6-month period as previously extended, as the case may be. (15) As soon as practicable after the Commission gives a notice under subsection (14), the Commission must cause a copy of the notice to be made available on the internet. [subs (15) am Act 8 of 2010 s 3 and Sch 5, Pt 2[137(a)], opn 1 Mar 2010]

(16) Notification of refusal of application If the Commission makes a decision refusing an application under subsection (1), the Commission must give the applicant a written statement setting out the reasons for the refusal. (16A) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by paragraph (3)(a), but it applies with the following changes. [subs (16A) insrt Act 140 of 2010 s 3 and Sch 1[149], opn 1 Jan 2011]

(16B) A provision referred to in paragraph (4A)(a) or (b) or (4B)(a) or (b) cannot be varied or removed. [subs (16B) insrt Act 140 of 2010 s 3 and Sch 1[149], opn 1 Jan 2011]

(16C) An order under paragraph (3)(a) must not be varied or revoked in a manner that is inconsistent with a provision referred to in (4A)(a) or (b) or (4B)(a) or (b). [subs (16C) insrt Act 140 of 2010 s 3 and Sch 1[149], opn 1 Jan 2011]

(18) Definition In this section: active declared service has the same meaning as in section 152AR. [subs (18) am Act 140 of 2010 s 3 and Sch 1[150], opn 1 Jan 2011] [s 152ATA insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[page 1106] SECTION 152ATA GENERALLY [14,177ATA.5] Overview Section 152ATA permits a person who may be a carrier or carriage service provider to apply to the Commission for an exemption under s152ATA(3). The commission cannot make and order unless it is satisfied that it is in the long-term interests of end-users. Section 152ATA is solely concerned with future events and may be invoked even before a person becomes a carrier or carriage service provider. It can be invoked by a carrier or carriage service provider before the carrier or carriage service provider has any listed carriage service: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23; BC200901501 at [28] per Jacobson, Lander and Foster JJ. ________________________

[14,177AU] Individual exemptions — request for further information 152AU (1) This section applies to an application under subsection 152ATA(1). [subs (1) am Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; Act 140 of 2010 s 3 and Sch 1[151], opn 1 Jan 2011]

(2) The Commission may request the applicant to give the Commission further information about the application. (2A) If: (a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and (b) the applicant does not give the Commission the information within the time limit allowed by the Procedural Rules; the Commission may, by written notice given to the applicant, refuse the application. [subs (2A) insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(2B) Subsection (2A) has effect despite anything in this Division. [subs (2B) insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(3) If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the application until the applicant gives the Commission the information. [subs (3) am Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(4) The Commission may withdraw its request for further information, in whole or in part. [subs (4) insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[14,177AV] Review by Tribunal of exemption order decision 152AV 2011]

[s 152AV rep Act 140 of 2010 s 3 and Sch 1[152], opn 1 Jan

[14,177AW] *152AW 2011]

Functions and powers of Tribunal

[s 152AW rep Act 140 of 2010 s 3 and Sch 1[152], opn 1 Jan

[page 1107] SECTION 152AW GENERALLY [14,177AW.5] Overview The provision specified how the tribunal was to conduct a review, the matters the tribunal may consider and the time within which a decision must be made. The section was repealed by the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 No 140 of 2010, effective 1 January 2011. [14,177AW.10] Matters the tribunal may consider Section 152AW(4) provides that the tribunal may only have regard to information, documents or evidence that was available to the commission in making its decision. However this does not preclude members of the tribunal making use of their

own expertise, knowledge and experience: Application by Chime Communications Pty Ltd (No 2) (2009) 257 ALR 765; [2009] ACompT 2; BC200905919 at [11] per Finkelstein J, R Davey and Professor D Round. ________________________

[14,177AX] Provisions that do not apply in relation to a Tribunal review 152AX 2011]

[s 152AX rep Act 140 of 2010 s 3 and Sch 1[152], opn 1 Jan

SECTION 152AX GENERALLY [14,177AX.5] Overview Section 152AX was not intended to define the nature of the review conducted under s 152AW. The intention was to create a separate legislative review process for review of exemption decisions under ss 152AT and 152ATA. The section was repealed by the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 No 140 of 2010, effective 1 January 2011. ________________________

[14,177AXA] Statement of reasons for decision — specification of documents 152AXA If the Commission: (a) makes a decision under section 152ATA; and (b) gives a person a written statement setting out the reasons for the decision; *Editor’s note: Schedule 2 cl 69 of the Telecommunications Competition Act 2002 No 140 provides as follows: Application — section 152AW of the Trade Practices Act 1974

69 (1) Subsections 152AW(1), (2) and (3) of the Trade Practices Act 1974 as amended by this Part apply in relation to: (a) an application under section 152AV of the Trade Practices Act 1974 that was made

after the commencement of this item; or (b) an application under section 152AV of the Trade Practices Act 1974 that was made before the commencement of this item, so long as the Tribunal did not make a decision on the review under subsection 152AW(1) of that Act before the commencement of this item. (2) Subsections 152AW(4) to (7) of the Trade Practices Act 1974 as amended by this Part apply in relation to an application under section 152AV of the Trade Practices Act 1974 that was made after the commencement of this item. (3) Despite the repeal of subsection 152AW(4) of the Trade Practices Act 1974 by this Part, that subsection continues to apply, in relation to an application under section 152AV of the Trade Practices Act 1974 that was made before the commencement of this item, as if that repeal had not happened.

[page 1108] the statement must specify the documents that the Commission examined in the course of making the decision. [s 152AXA insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; am Act 140 of 2010 s 3 and Sch 1[153], [154], [155], opn 1 Jan 2011]

Subdivision B — Category B standard access obligations [Subdiv insrt Act 23 of 2011 s 3 and Sch 1 item 50, opn 13 Apr 2011]

[14,177AXB] obligations

Category B standard access

152AXB (1) This section sets out the category B standard access obligations. (2) Supply of declared service to service provider If: (a) an NBN corporation is a carrier or carriage service provider; and (b) under subsection 152AL(8A), (8D) or (8E), a declared service relates to the NBN corporation; the NBN corporation must, if requested to do so by a service provider, supply the service to the service provider in order that the service provider can provide carriage services and/or content services. Note: For declared services, see subsection 152AL(8A), (8D) or (8E). (3) Limit on subsection (2) obligations Subsection (2) does not impose

an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects: (a) preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the request was made; (b) preventing the NBN corporation from obtaining a sufficient amount of the service to be able to meet the NBN corporation’s reasonably anticipated requirements, measured at the time when the request was made; (c) preventing a person from obtaining, by the exercise of a prerequest right, a sufficient level of access to the declared service to be able to meet the person’s actual requirements. (3A) Subsection (2) does not impose an obligation on an NBN corporation to supply a service in circumstances where a refusal by the NBN corporation to supply the service is authorised under section 151DA for the purposes of subsection 51(1). (4) Interconnection of facilities If: (a) an NBN corporation is a carrier or carriage service provider; and (b) the NBN corporation: (i) owns or controls one or more facilities; or (ii) is a nominated carrier in relation to one or more facilities; the NBN corporation must, if requested to do so by a service provider: (c) permit interconnection of those facilities with the facilities of the service provider for the purpose of enabling the service provider to be supplied with declared services in order that the service provider can provide carriage services and/or content services; and [page 1109] (d) take all reasonable steps to ensure that, if a standard is in force under section 384 of the Telecommunications Act 1997, the interconnection complies with the standard.

(4A) Subsection (4) does not apply to an interconnection at a location that is not a listed point of interconnection (within the meaning of section 151DB). (5) Conditional-access customer equipment If: (a) an NBN corporation is a carrier or carriage service provider; and (b) the NBN corporation supplies a declared service by means of conditional-access customer equipment; the NBN corporation must, if requested to do so by a service provider who has made a request referred to in subsection (2), supply to the service provider any service that is necessary to enable the service provider to supply carriage services and/or content services by means of the declared service and using the equipment. (6) Exceptions This section does not impose an obligation on an NBN corporation if there are reasonable grounds to believe that: (a) the access seeker would fail, to a material extent, to comply with the terms and conditions on which the NBN corporation complies, or on which the NBN corporation is reasonably likely to comply, with that obligation; or (b) the access seeker would fail, in connection with that obligation, to protect: (i) the integrity of a telecommunications network; or (ii) the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility. (7) Examples — paragraph (6)(a) grounds Examples of grounds for believing as mentioned in paragraph (6)(a) include: (a) evidence that the access seeker is not creditworthy; and (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the NBN corporation). (8) Definition In this section: pre-request right, in relation to a request made for the purposes of subsection (2), means a right under a contract that was in force at the time when the request was made.

[14,177AXC] NBN corporation to supply declared services on a non-discriminatory basis 152AXC (1) No discrimination between access seekers An NBN corporation must not, in complying with any of its category B standard access obligations, discriminate between access seekers. Note: For explanatory material, see section 152CJH. (2) The rule in subsection (1) does not prevent discrimination against an access seeker if the NBN corporation has reasonable grounds to believe that the access seeker would fail, to a material extent, to comply with the terms and conditions on which the NBN corporation complies, or on which the NBN corporation is reasonably likely to comply, with the relevant obligation. [page 1110] (3) Examples of grounds for believing as mentioned in subsection (2) include: (a) evidence that the access seeker is not creditworthy; and (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the NBN corporation). (7) No discrimination by an NBN corporation in favour of itself If: (a) an NBN corporation is a carrier or carriage service provider; and (b) under subsection 152AL(8A), (8D) or (8E), a declared service relates to the NBN corporation; and (c) the NBN corporation is subject to a category B standard access obligation in relation to the service; the NBN corporation must not discriminate in favour of itself in relation to the supply of the service. (12) Authorised conduct If conduct is authorised under section 151DA for the purposes of subsection 51(1), the conduct is taken not to be discrimination for the purposes of this section.

[14,177AXD] NBN corporation to carry on related activities on a non-discriminatory basis 152AXD (1) An NBN corporation must not, in carrying on any of the following activities, discriminate between access seekers: (a) developing a new eligible service; (b) enhancing a declared service; (c) extending or enhancing the capability of a facility or telecommunications network by means of which a declared service is, or is to be, supplied; (d) planning for a facility or telecommunications network by means of which a declared service is, or is to be, supplied; (e) an activity that is preparatory to the supply of a declared service; (f) an activity that is ancillary or incidental to the supply of a declared service; (g) giving information to service providers about any of the above activities. Note: For explanatory material, see section 152CJH. (5A) If conduct is authorised under section 151DA for the purposes of subsection 51(1), the conduct is taken not to be discrimination for the purposes of this section. (6) Definition In this section: eligible service has the same meaning as in section 152AL. Subdivision C — Compliance with standard access obligations [Heading insrt Act 23 of 2011 s 3 and Sch 1 item 50, opn 13 Apr 2011]

[14,177AY] obligations

Compliance with standard access

152AY (1) This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations. [page 1111]

(2) The carrier or carriage service provider must comply with the obligations: (a) if an access agreement between: (i) the carrier or carriage service provider, as the case requires; and (ii) the access seeker; is in operation and specifies terms and conditions about a particular matter — on such terms and conditions relating to that matter as are set out in the agreement; or (b) if: (i) paragraph (a) does not apply in relation to terms and conditions about a particular matter; and (ii) a special access undertaking given by the carrier or carriage service provider is in operation, and the undertaking specifies terms and conditions about that matter—on such terms and conditions relating to that matter as are set out in the undertaking; or (c) if: (i) neither paragraph (a) nor (b) applies to terms and conditions about a particular matter; and (ii) binding rules of conduct specify terms and conditions about that matter; on such terms and conditions relating to that matter as are set out in the binding rules of conduct; or (d) if: (i) none of the above paragraphs applies to terms and conditions about a particular matter; and (ii) an access determination specifies terms and conditions about that matter; on such terms and conditions relating to that matter as are set out in the access determination. Note 1: Sections 152BCC, 152BDB, 152BDE, 152CBIA, 152CBIB and 152CBIC, which deal with inconsistency, should be read and applied before this section is read and applied. Note 2: Even though subsection (2) mentions binding rules of conduct,

binding rules of conduct may only be made if the Commission considers that there is an urgent need to do so. Note 3: For transitional provisions, see Division 2 of Part 2 of Schedule 1 to the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010. [s 152AY subst Act 140 of 2010 s 3 and Sch 1[156], opn 1 Jan 2011]

[14,177AYA] Ancillary obligations — confidential information 152AYA If: (a) a carrier or carriage service provider is required to comply with a standard access obligation that arose because of a request made by an access seeker; and (b) at or after the time when the request was made, the access seeker gives particular information to the carrier or carriage service provider to enable the carrier or carriage service provider to comply with the standard access obligation; and (c) at or before the time when the information was given, the access seeker gave the carrier or carriage service provider a written notice to the effect that: (i) that information; or [page 1112] (ii) a class of information that includes that information; is to be regarded as having been given on a confidential basis for the purpose of enabling the carrier or carriage service provider to comply with the standard access obligation; the carrier or carriage service provider must not, without the written consent of the access seeker, use that information for a purpose other than enabling the carrier or carriage service provider to comply with: (d) the standard access obligation; or (e) any other standard access obligation that arose because of a request

(f)

made by the access seeker; or any other obligation imposed by a law.

[s 152AYA insrt Act 52 of 1999 s 3 and Sch 1]

[14,177AZ]

Carrier licence condition

152AZ A carrier licence held by a carrier is subject to a condition that the carrier must comply with: (a) any standard access obligations that are applicable to the carrier; and (aa) any rule in section 152ARA, 152ARB, 152AXC or 152AXD that is applicable to the carrier; and (b) any obligations under section 152AYA that are applicable to the carrier. [s 152AZ am Act 52 of 1999 s 3 and Sch 1; Act 23 of 2011 s 3 and Sch 1 item 51, opn 13 Apr 2011; s 3 and Sch 1 item 100, opn 12 Apr 2012]

[14,177BA]

Service provider rule

152BA (1) In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act. (2) A carriage service provider must comply with: (a) any standard access obligations that are applicable to the provider; and (aa) any rule in section 152ARA, 152ARB, 152AXC or 152AXD that is applicable to the provider; and (b) any obligations under section 152AYA that are applicable to the provider. [subs (2) am Act 52 of 1999 s 3 and Sch 1; Act 23 of 2011 s 3 and Sch 1 item 52, opn 13 Apr 2011; s 3 and Sch 1 item 101, opn 12 Apr 2012]

[14,177BB] Judicial enforcement of standard access obligations 152BB

(1) If the Federal Court is satisfied that a carrier or carriage

service provider has contravened any of the standard access obligations that are applicable to the carrier or provider, the Court may, on the application of: (a) the Commission; or (b) any person whose interests are affected by the contravention; make all or any of the following orders: (c) an order directing the carrier or provider to comply with the obligation; (d) an order directing the carrier or provider to compensate any other person who had suffered loss or damage as a result of the contravention; [page 1113] (e) any other order that the Court thinks appropriate. (1AA) If the Federal Court is satisfied that a carrier or carriage service provider has contravened the rule in subsection 152ARA(1) or (7) or 152ARB(2), the Court may, on the application of: (a) the Commission; or (b) any person whose interests are affected by the contravention; make all or any of the following orders: (c) an order directing the carrier or provider to comply with the obligation; (d) an order directing the carrier or provider to compensate any other person who had suffered loss or damage as a result of the contravention; (e) any other order that the Court thinks appropriate. [subs (1AA) insrt Act 23 of 2011 s 3 and Sch 1 item 102, opn 12 Apr 2012]

(1AB) If the Federal Court is satisfied that an NBN corporation has contravened the rule in subsection 152AXC(1) or (7) or 152AXD(1), the Court may, on the application of: (a) the Commission; or (b) any person whose interests are affected by the contravention; make all or any of the following orders:

(c) an order directing the NBN corporation to comply with that rule; (d) an order directing the NBN corporation to compensate any other person who had suffered loss or damage as a result of the contravention; (e) any other order that the Court thinks appropriate. [subs (1AB) insrt Act 23 of 2011 s 3 and Sch 1 item 53, opn 13 Apr 2011]

(1A) If the Federal Court is satisfied that a carrier or carriage service provider has contravened an obligation imposed by section 152AYA, the Court may, on the application of: (a) the Commission; or (b) the access seeker who gave the information concerned; make all or any of the following orders: (c) an order directing the carrier or carriage service provider to comply with the obligation; (d) an order directing the carrier or carriage service provider to compensate any other person who has suffered loss or damage as a result of the contravention; (e) any other order that the Court thinks appropriate. [subs (1A) insrt Act 52 of 1999 s 3 and Sch 1]

(2) The Federal Court may discharge or vary an order granted under this section. (3) This section does not limit section 152BBAA. [subs (3) insrt Act 119 of 2005 s 3 and Sch 5, opn 24 Sep 2005]

[14,177BBAA] Judicial enforcement of conditions and limitations of exemption determinations and orders 152BBAA (1) If the Federal Court is satisfied that a person has contravened any of the conditions or limitations of: [page 1114]

(a) a determination under section 152ASA; or (b) an order under section 152ATA; the Court may, on the application of: (c) the Commission; or (d) any person whose interests are affected by the contravention; make all or any of the following orders: (e) an order directing the person to comply with the condition or limitation; (f) an order directing the person to compensate any other person who had suffered loss or damage as a result of the contravention; (g) any other order that the Court thinks appropriate. [subs (1) am Act 140 of 2010 s 3 and Sch 1[157], [158], opn 1 Jan 2011]

(2) The Federal Court may discharge or vary an order granted under this section. (3) This section does not limit section 152BB. [s 152BBAA insrt Act 119 of 2005 s 3 and Sch 5, opn 24 Sep 2005]

[14,177BBA] Commission may give directions in relation to negotiations 152BBA (1) This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations. (2) If the following parties: (a) the carrier or carriage service provider, as the case requires; (b) the access seeker; propose to negotiate, or are negotiating, with a view to agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a), the Commission may, for the purposes of facilitating those negotiations, if requested in writing to do so by either party, give a party a written procedural direction requiring the party to do, or refrain from doing, a specified act or thing relating to the conduct of those negotiations. (3) The following are examples of the kinds of procedural directions that may be given under subsection (2): (a) a direction requiring a party to give relevant information to the

other party; (b) a direction requiring a party to carry out research or investigations in order to obtain relevant information; (c) a direction requiring a party not to impose unreasonable procedural conditions on the party’s participation in negotiations; (d) a direction requiring a party to respond in writing to the other party’s proposal or request in relation to the time and place of a meeting; (e) a direction requiring a party, or a representative of a party, to attend a mediation conference; (f) a direction requiring a party, or a representative of a party, to attend a conciliation conference. (4) For the purposes of paragraph (3)(c), if a party (the first party) imposes, as a condition on the first party’s participation in negotiations, a requirement that the other party must not disclose to the Commission any or all information, or the contents of any or all documents, provided in the course of negotiations, that condition is taken to be an unreasonable procedural condition on the first party’s participation in those negotiations. [page 1115] (5) A person must not contravene a direction under subsection (2). (6) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (5); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (5); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (5); or (d) conspire with others to effect a contravention of subsection (5). (7) In deciding whether to give a direction under subsection (2), the Commission must have regard to: (a) any guidelines in force under subsection (8); and (b) such other matters as the Commission considers relevant. (8) The Commission may, by written instrument, formulate guidelines for

the purposes of subsection (7). (9) In addition to its effect apart from this subsection, this section also has the effect it would have if: (a) each reference to a carrier were, by express provision, confined to a carrier that is a constitutional corporation; and (b) each reference to a carriage service provider were, by express provision, confined to a carriage service provider that is a constitutional corporation; and (c) each reference to an access seeker were, by express provision, confined to an access seeker that is a constitutional corporation. [s 152BBA insrt Act 52 of 1999 s 3 and Sch 1]

[14,177BBB]

Enforcement of directions

152BBB (1) If the Federal Court is satisfied that a person has contravened subsection 152BBA(5) or (6), the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate. (2) In determining the pecuniary penalty, the Court must have regard to all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered as a result of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct. (3) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed $250,000 for each contravention. (4) The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed $50,000 for each contravention. (5) The Commission may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in subsection (1).

[page 1116] (6) A proceeding under subsection (5) may be commenced within 6 years after the contravention. (7) Criminal proceedings do not lie against a person only because the person has contravened subsection 152BBA(5) or (6). [s 152BBB insrt Act 52 of 1999 s 3 and Sch 1]

[14,177BBC]

Commission’s role in negotiations

152BBC (1) This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations. (2) If the following parties: (a) the carrier or carriage service provider, as the case requires; (b) the access seeker; propose to negotiate, or are negotiating, with a view to agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a), the parties may jointly request the Commission in writing to arrange for a representative of the Commission to attend, or mediate at, those negotiations. (3) The Commission may comply with the request if the Commission considers that compliance with the request would be likely to facilitate those negotiations. (4) For the purposes of this section, each of the following persons may be a representative of the Commission: (a) a member, or associate member, of the Commission; or (b) a person referred to in subsection 27(1); or (c) a person engaged under section 27A. (5) [repealed] [subs (5) rep Act 140 of 2010 s 3 and Sch 1[159], opn 1 Jan 2011] [s 152BBC insrt Act 52 of 1999 s 3 and Sch 1]

[14,177BBD] Reaching agreement on terms and conditions of access

152BBD (1) The Commission must, in exercising its powers under sections 152BBA and 152BBC in relation to any of the category A standard access obligations, have regard to the desirability of access providers (within the meaning of section 152AR) and access seekers agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a) in a timely manner. [subs (1) am Act 23 of 2011 s 3 and Sch 1 item 55, opn 13 Apr 2011]

(2) The Commission must, in exercising its powers under sections 152BBA and 152BBC in relation to any of the category B standard access obligations, have regard to the desirability of NBN corporations and access seekers agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a) in a timely manner. [subs (2) insrt Act 23 of 2011 s 3 and Sch 1 item 56, opn 13 Apr 2011] [s 152BBD insrt Act 124 of 2001 s 3 and Sch 1, opn 27 Sep 2001; am Act 23 of 2011 s 3 and Sch 1 item 54, opn 13 Apr 2011]

[page 1117] DIVISION 4 — ACCESS DETERMINATIONS [Div 4 subst Act 140 of 2010 s 3 and Sch 1[160], opn 1 Jan 2011]

Subdivision A — Commission may make access determinations

[14,177BC]

Access determinations

152BC (1) The Commission may make a written determination relating to access to a declared service. (2) A determination under subsection (1) is to be known as an access determination. (3) An access determination may: (a) specify any or all of the terms and conditions on which a carrier or carriage service provider is to comply with any or all of the standard access obligations applicable to the carrier or provider; or (b) specify any other terms and conditions of an access seeker’s access to the declared service; or (c) require a carrier or carriage service provider to comply with any or

all of the standard access obligations applicable to the carrier or provider in a manner specified in the determination; or (d) require a carrier or carriage service provider to extend or enhance the capability of a facility by means of which the declared service is supplied; or (e) impose other requirements on a carrier or carriage service provider in relation to access to the declared service; or (f) specify the terms and conditions on which a carrier or carriage service provider is to comply with any or all of those other requirements; or (g) require access seekers to accept, and pay for, access to the declared service; or (h) provide that any or all of the obligations referred to in section 152AR are not applicable to a carrier or carriage service provider, either: (i) unconditionally; or (ii) subject to such conditions or limitations as are specified in the determination; or (i) restrict or limit the application to a carrier or carriage service provider of any or all of the obligations referred to in section 152AR; or (j) deal with any other matter relating to access to the declared service. (4) Subsection (3) does not limit subsection (1). (4A) Paragraphs (3)(h) and (i) do not apply to an access determination that relates to a declared service that is a Layer 2 bitstream service supplied using a designated superfast telecommunications network. (4AA) An access determination may be expressed to be an NBN-specific access determination. [subs (4A) insrt Act 23 of 2011 s 3 and Sch 1 item 57, opn 13 Apr 2011; renum as subs (4AA) Act 136 of 2012 s 3 and Sch 1 item 35, opn 22 Sep 2012]

(4B) An access determination does not apply in relation to access to a declared service to the extent to which the service is supplied, or is capable of being supplied, by an NBN corporation unless the access determination is expressed to be an NBN-specific access determination. [subs (4B) insrt Act 23 of 2011 s 3 and Sch 1 item 57, opn 13 Apr 2011]

[page 1118] (4C) If an access determination is expressed to be an NBN-specific access determination, the access determination does not apply in relation to access to a declared service to the extent to which the service is supplied, or is capable of being supplied, by a person other than an NBN corporation. [subs (4C) insrt Act 23 of 2011 s 3 and Sch 1 item 57, opn 13 Apr 2011]

(5) An access determination may make different provision with respect to: (a) different carriers or carriage service providers; or (b) different classes of carriers or carriage service providers; or (c) different access seekers; or (d) different classes of access seekers. (6) Subsection (5) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901. (7) An access determination may provide for the Commission to perform functions, and exercise powers, under the determination. (8) Terms and conditions specified in an access determination as mentioned in paragraph (3)(a), (b) or (f) must include terms and conditions relating to price or a method of ascertaining price. (9) An access determination is not a legislative instrument.

[14,177BCA] Matters that the Commission must take into account 152BCA (1) The Commission must take the following matters into account in making an access determination: (a) whether the determination will promote the long-term interests of end-users of carriage services or of services supplied by means of carriage services; (b) the legitimate business interests of a carrier or carriage service provider who supplies, or is capable of supplying, the declared service, and the carrier’s or provider’s investment in facilities used to supply the declared service; (c) the interests of all persons who have rights to use the declared

service; (d) the direct costs of providing access to the declared service; (e) the value to a person of extensions, or enhancement of capability, whose cost is borne by someone else; (f) the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility; (g) the economically efficient operation of a carriage service, a telecommunications network or a facility. (2) If a carrier or carriage service provider who supplies, or is capable of supplying, the declared service supplies one or more other eligible services, then, in making an access determination that is applicable to the carrier or provider, as the case may be, the Commission may take into account: (a) the characteristics of those other eligible services; and (b) the costs associated with those other eligible services; and (c) the revenues associated with those other eligible services; and (d) the demand for those other eligible services. (3) The Commission may take into account any other matters that it thinks are relevant. [page 1119] (4) This section does not apply to an interim access determination. (5) In this section: eligible service has the same meaning as in section 152AL.

[14,177BCB] Restrictions on access determinations 152BCB (1) The Commission must not make an access determination that would have any of the following effects: (a) preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service

(b)

(c)

(d) (e)

(f)

(g)

to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR or 152AXB; preventing a carrier or carriage service provider from obtaining a sufficient amount of the service to be able to meet the carrier’s or provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR or 152AXB; preventing a person from obtaining, by the exercise of a predetermination right, a sufficient level of access to the declared service to be able to meet the person’s actual requirements; depriving any person of a protected contractual right; resulting in an access seeker becoming the owner (or one of the owners) of any part of a facility without the consent of the owner of the facility; requiring a person (other than an access seeker) to bear an unreasonable amount of the costs of: (i) extending or enhancing the capability of a facility; or (ii) maintaining extensions to or enhancements of the capability of a facility; requiring a carrier or carriage service provider to provide an access seeker with access to a declared service if there are reasonable grounds to believe that: (i) the access seeker would fail, to a material extent, to comply with the terms and conditions on which the carrier or provider provides, or is reasonably likely to provide, that access; or (ii) the access seeker would fail, in connection with that access, to protect the integrity of a telecommunications network or to protect the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility.

[subs (1) am Act 23 of 2011 s 3 and Sch 1 item 58, opn 13 Apr 2011]

(2) Examples of grounds for believing as mentioned in subparagraph (1) (g)(i) include: (a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the carrier or carriage service provider). (3) The Commission must not make an access determination that is inconsistent with any of the standard access obligations that are, or will be, applicable to a carrier or carriage service provider. [page 1120] (3A) If a final migration plan is in force, the Commission must not make an access determination that would have the effect of requiring Telstra to engage in conduct in connection with matters covered by the final migration plan. (3B) The Commission must not make an access determination that would have the effect of: (a) requiring an NBN corporation to engage in conduct that is inconsistent with conduct authorised under subsection 151DA(2) or (3) for the purposes of subsection 51(1); or (b) preventing an NBN corporation from giving a refusal that is authorised under subsection 151DA(3) for the purposes of subsection 51(1). [subs (3B) insrt Act 23 of 2011 s 3 and Sch 1 item 58A, opn 13 Apr 2011]

(3C) The Commission must not make an access determination that would have the effect of preventing an NBN corporation from engaging in conduct that is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities. [subs (3C) insrt Act 23 of 2011 s 3 and Sch 1 item 58A, opn 13 Apr 2011]

(3D) In subsection (3C), eligible services, uniform national pricing and utilities have the same meaning as in section 151DA. [subs (3D) insrt Act 23 of 2011 s 3 and Sch 1 item 58A, opn 13 Apr 2011]

(4) If the Commission makes an access determination that has the effect of depriving a person (the second person) of a pre-determination right to require the carrier or provider to provide access to the declared service to the second person, the determination must also require the access seeker:

(a) to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and (b) to reimburse the carrier or provider and the Commonwealth for any compensation that the carrier or provider or the Commonwealth agrees, or is required by a court order, to pay to the second person as compensation for the deprivation. (4A) The Commission must not make an access determination that: (a) relates to any or all of the category B standard access obligations applicable to an NBN corporation; and (b) has the effect (whether direct or indirect) of discriminating between access seekers. Note: For explanatory material, see section 152CJH. [subs (4A) insrt Act 23 of 2011 s 3 and Sch 1 item 59, opn 13 Apr 2011]

(4B) Subsection (4A) does not prevent discrimination against an access seeker if the Commission has reasonable grounds to believe that the access seeker would fail, to a material extent, to comply with the terms and conditions on which the NBN corporation complies, or on which the NBN corporation is reasonably likely to comply, with the relevant obligation. [subs (4B) insrt Act 23 of 2011 s 3 and Sch 1 item 59, opn 13 Apr 2011]

(4C) Examples of grounds for believing as mentioned in subsection (4B) include: (a) evidence that the access seeker is not creditworthy; and [page 1121] (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the NBN corporation). [subs (4C) insrt Act 23 of 2011 s 3 and Sch 1 item 59, opn 13 Apr 2011]

(5) An access determination is of no effect to the extent to which it contravenes subsection (1), (3), (3A), (3B), (3C), (4A) or (4G). [subs (5) am Act 23 of 2011 s 3 and Sch 1 item 60, opn 13 Apr 2011; s 3 and Sch 1 item 105, opn 12 Apr 2012]

(6) In this section: pre-determination right means a right under a contract that was in force: (a) if the access determination is one of a series of 2 or more successive access determinations — immediately before the first access determination came into force; or (b) otherwise — immediately before the access determination came into force. protected contractual right means a right under a contract that was in force at the beginning of 13 September 1996.

[14,177BCC] Access agreements prevail over inconsistent access determinations 152BCC If an access determination is applicable to the following parties: (a) a carrier or carriage service provider; (b) an access seeker; the access determination has no effect to the extent to which it is inconsistent with an access agreement that is applicable to those parties.

[14,177BCCA] Final migration plan prevails over inconsistent access determinations 152BCCA If a final migration plan is in force, an access determination has no effect to the extent to which it would have the effect of: (a) preventing Telstra from complying with the final migration plan; or (b) requiring Telstra to engage in conduct in connection with matters covered by the final migration plan.

[14,177BCD] 152BCD

Fixed principles provisions

(1) An access determination may include a provision that is

specified in the determination to be a fixed principles provision. (2) If a fixed principles provision is included in an access determination, the determination must provide that a specified date is the nominal termination date for the fixed principles provision. The nominal termination date may be later than the expiry date for the determination. (3) If: (a) an access determination (the replacement access determination) is expressed to replace a previous access determination; and (b) the previous access determination included a fixed principles provision; and [page 1122] (c) the nominal termination date for the fixed principles provision is later than the day on which the replacement access determination comes into force; then: (d) the replacement access determination must include a provision in the same terms as the fixed principles provision; and (e) the provision must be specified in the replacement access determination to be a fixed principles provision; and (f) the nominal termination date for the fixed principles provision so included in the replacement access determination must be the same as, or later than, the nominal termination date for the fixed principles provision included in the previous access determination; and (g) if the previous access determination provided that the previous access determination must not be varied so as to alter or remove the fixed principles provision — the replacement access determination must provide that the replacement access determination must not be varied so as to alter or remove the fixed principles provision; and (h) if the previous access determination provided that the previous access determination must not be varied so as to alter or remove

the fixed principles provision except in such circumstances as are specified in the previous access determination: (i) the replacement access determination must provide that the replacement access determination must not be varied so as to alter or remove the fixed principles provision except in such circumstances as are specified in the replacement access determination; and (ii) those circumstances must be the same as the circumstances specified in the previous access determination. (4) If: (a) a fixed principles provision is included in an access determination; and (b) the access determination ceases to be in force before the nominal termination date for the fixed principles provision; the fixed principles provision ceases to be in force when the access determination ceases to be in force. Note: Even though a fixed principles provision ceases to be in force when the access determination ceases to be in force, subsection (3) requires that a replacement access determination include a provision in the same terms as the fixed principles provision. (5) If a fixed principles provision is included in an access determination, the access determination must: (a) provide that the access determination must not be varied so as to alter or remove the fixed principles provision; or (b) provide that the access determination must not be varied so as to alter or remove the fixed principles provision except in such circumstances as are specified in the access determination.

[14,177BCE] Access determinations may be set out in the same document 152BCE document.

Two or more access determinations may be set out in the same

[page 1123]

[14,177BCF]

Duration of access determination

152BCF (1) An access determination relating to access to a declared service: (a) comes into force on the day specified in the determination as the day on which the determination is to come into force; and (b) unless sooner revoked, ceases to be in force on the expiry date for the determination. (2) The specified day may be earlier than the day on which the determination was made. (2A) The specified day must not be earlier than the date of commencement of this section. (3) If the declared service is covered by a declaration under section 152AL, and the declaration is not a fresh declaration that replaces a previous declaration, the specified day must not be earlier than the day on which the declaration came into force. (3A) If the declared service is covered by subsection 152AL(7), the specified day must not be earlier than the day on which the service became a declared service under that subsection. (3B) If the declared service is covered by subsection 152AL(8D), the specified day must not be earlier than the day on which the service became a declared service under that subsection. [subs (3B) insrt Act 23 of 2011 s 3 and Sch 1 item 61, opn 13 Apr 2011]

(3C) If the declared service is covered by subsection 152AL(8E), the specified day must not be earlier than the day on which the service became a declared service under that subsection. [subs (3C) insrt Act 23 of 2011 s 3 and Sch 1 item 61, opn 13 Apr 2011]

(4) If: (a) an access determination is expressed to replace a previous access determination relating to access to the declared service; and (b) the previous access determination is not an interim access determination;

the specified day must be the first day after the expiry of the previous access determination. (4A) If: (a) an access determination is expressed to replace a previous access determination relating to access to the declared service; and (b) the previous access determination is an interim access determination; and (c) the declared service is covered by a declaration under section 152AL; the specified day must not be earlier than the day on which the declaration came into force. (5) Expiry date An access determination must specify an expiry date for the determination. (6) In specifying an expiry date for an access determination, the Commission must have regard to: (a) in a case where the declared service is covered by a declaration under section 152AL — the principle that the expiry date for the determination should be the same as the expiry date for the declaration (as that declaration stood at the time when the access determination was made) unless, in the Commission’s opinion, there are circumstances that warrant the specification of another date as the expiry date for the access determination; and [page 1124] (b) such other matters (if any) as the Commission considers relevant. (7) If an access determination expires, this Part does not prevent the Commission from making a fresh access determination under section 152BC in the same terms as the expired access determination. (8) Automatic revocation of access determination If: (a) an access determination relating to access to a declared service is in force; and (b) the declared service is covered by a declaration under section

152AL, and the declaration ceases to be in force; and (c) the Commission does not make a fresh declaration under section 152AL that replaces the declaration referred to in paragraph (b) of this subsection; the access determination is taken to be revoked at the time of the cessation. (9) If: (a) an access determination relating to access to a declared service is in force; and (b) the declared service is covered by a declaration under section 152AL, and the declaration is revoked; and (c) the Commission does not make a fresh declaration under section 152AL that replaces the declaration referred to in paragraph (b) of this subsection; the access determination is taken to be revoked at the time of the revocation of the declaration. (9A) If: (a) an interim access determination relating to access to a declared service is in force; and (b) a final access determination relating to access to the declared service comes into force; the interim access determination is taken to be revoked at the time when the final access determination comes into force. (10) Extension of access determination If: (a) an access determination (the original access determination) relating to access to a declared service is in force; and (b) the Commission has commenced to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make another access determination in relation to access to the service; and (c) the Commission considers that it will make the other access determination, but will not be in a position to do so before the expiry date for the original access determination; the Commission may, by writing, declare that the expiry date for the original access determination is taken to be the day immediately before the day on which the other access determination comes into force.

(11) The Commission must publish a declaration under subsection (10) on the Commission’s website. (12) If: (a) after holding a public inquiry under subsection 152ALA(7) in relation to a section 152AL declaration, the Commission: (i) extends or further extends the expiry date for the declaration by a period of not more than 12 months; and [page 1125] (ii) decides to allow the declaration to expire after the end of that period; and (b) an access determination is in force in relation to access to the declared service; the Commission may, by writing, extend the expiry date for the access determination by the same period. (13) The Commission must publish an instrument under subsection (12) on the Commission’s website. (14) The Commission is not required to observe any requirements of procedural fairness in relation to a decision under subsection (10) or (12). (15) A declaration under subsection (10) is not a legislative instrument. (16) An instrument under subsection (12) is not a legislative instrument.

[14,177BCG]

Interim access determinations

152BCG (1) If: (a) the Commission makes a declaration under section 152AL after the commencement of this section; and (b) the declaration is not a fresh declaration that replaces a previous declaration; and (c) the Commission has commenced to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination in relation to access to the declared service; and

(d) either: (i) the Commission considers that it is unlikely that a final access determination in relation to access to the service will be made within 6 months after the commencement of the public inquiry; or (ii) the Commission considers that there is an urgent need to make an access determination in relation to access to the service before the completion of the public inquiry; the Commission must make an interim access determination in relation to access to the service. (2) If: (a) a declaration is in force under section 152AL; and (b) no access determination has previously been made in relation to access to the declared service; the Commission may make an interim access determination in relation to access to the service. (3) The day specified in an interim access determination as the day on which the determination is to come into force must not be earlier than the day on which the declaration mentioned in paragraph (1)(a) or (2)(a), as the case may be, came into force. (4) The Commission is not required to observe any requirements of procedural fairness in relation to the making of an interim access determination. (5) The Commission must not make an interim access determination otherwise than in accordance with this section. [page 1126]

[14,177BCGA]

Stay of access determinations

152BCGA (1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision of the Commission to make an access determination. (2) If a person applies to the Federal Court under subsection 39B(1) of the

Judiciary Act 1903 for a writ or injunction in relation to a decision of the Commission to make an access determination, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application. Subdivision B — Public inquiries about proposals to make access determinations

[14,177BCH] Access determination to be made after public inquiry 152BCH (1) The Commission must not make an access determination unless: (a) the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the determination; and (b) the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997; and (c) the report was published during the 180-day period ending when the determination was made. (2) Subsection (1) does not apply to an interim access determination. (3) Subsection (1) has effect subject to section 152BCI.

[14,177BCI]

When public inquiry must be held

152BCI (1) If: (a) the Commission makes a declaration under section 152AL after the commencement of this section; and (b) no access determination has previously been made in relation to access to the declared service; the Commission must, within 30 days after the declaration is made, commence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service. (2) If:

(a) a declaration is in force under section 152AL immediately after the commencement of this section; and (b) no access determination has previously been made in relation to access to the declared service; the Commission must, during the 12-month period beginning at the commencement of this section, commence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service. (3) If: (a) a declaration is in force under section 152AL; and (b) an access determination has previously been made in relation to access to the declared service; [page 1127] the Commission must, during the period: (c) beginning 18 months before the expiry date for the access determination; and (d) ending 6 months before the expiry date for the access determination; commence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service. (4) Subsection (3) has effect subject to subsections (5), (6) and (7). (5) If: (a) a declaration (the current declaration) is in force under section 152AL; and (b) an access determination has previously been made in relation to access to the declared service; and (c) the expiry date of the current declaration is extended or further extended for a period of not more than 12 months; and (d) the Commission decides to allow the current declaration to expire without making a new declaration under section 152AL;

the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service. (6) If: (a) a declaration is in force under section 152AL; and (b) an access determination (the current determination) is in force in relation to access to the declared service; and (c) the Commission commences to hold a public inquiry under subsection 152ALA(7) in relation to the declaration; then: (d) the Commission may defer holding a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service until the Commission decides whether to extend or further extend the expiry date for the declaration; and (e) if the Commission decides to extend or further extend the expiry date for the declaration — the Commission must commence to hold such a public inquiry before the expiry date for the current access determination; and (f) if the Commission decides not to extend or further extend the expiry date for the declaration — the Commission is not required to hold such a public inquiry. (7) If: (a) a declaration is in force under section 152AL; and (b) an access determination has previously been made in relation to access to the declared service; and (c) after holding a public inquiry under subsection 152ALA(7) in relation to the declaration, the Commission decides to allow the declaration to expire without making a new declaration under section 152AL; the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.

[page 1128] Note: If a service is a declared service under subsection 152AL(7) (which deals with special access undertakings), there is no need for the Commission to make a declaration of the service under section 152AL. (8) Despite anything else in this section, if: (a) the Commission makes binding rules of conduct that relate to access to a declared service; and (b) no access determination is in force in relation to access to the declared service; the Commission must, within 30 days after the binding rules of conduct are made, commence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.

[14,177BCJ] Combined inquiries about proposals to make access determinations 152BCJ (1) The Commission may decide to combine 2 or more public inquiries of a kind mentioned in section 152BCH. (2) If the Commission makes such a decision: (a) the Commission may publish a single notice relating to the combined inquiry under section 498 of the Telecommunications Act 1997; and (b) the Commission may prepare a single discussion paper about the combined inquiry under section 499 of that Act; and (c) the Commission may hold hearings relating to the combined inquiry under section 501 of that Act; and (d) the Commission must ensure that each inquiry is covered by a report under section 505 of that Act, whether the report relates: (i) to a single one of those inquiries; or (ii) to any 2 or more of those inquiries.

[14,177BCK]

Time limit for making an access

determination 152BCK (1) This section applies if the Commission commences to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination, and the declared service to which the access determination relates is not covered by subsection 152AL(8D). [subs (1) am Act 23 of 2011 s 3 and Sch 1 item 62, opn 13 Apr 2011]

(2) The Commission must make a final access determination within 6 months after that commencement. (3) Extension of decision-making period The Commission may, by written notice published on its website, extend or further extend the 6-month period referred to in subsection (2), so long as: (a) the extension or further extension is for a period of not more than 6 months; and (b) the notice includes a statement explaining why the Commission has been unable to make a final access determination within that 6month period or that 6-month period as previously extended, as the case may be. Note: The Commission may be required to make an interim access determination — see section 152BCG. [page 1129] Subdivision C — Variation or revocation of access determinations

[14,177BCN] Variation or revocation of access determinations 152BCN (1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by section 152BC, but it applies with the following changes. (2) The Commission is not required to hold a public inquiry under Part 25 the Telecommunications Act 1997 about a proposal to vary an access determination if:

(a) the variation is of a minor nature; or (b) each: (i) carrier or carriage service provider; and (ii) access seeker; whose interests are likely to be affected by the variation has consented in writing to the variation. (3) The Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to revoke an access determination if the Commission is satisfied that each: (a) carrier or service provider; and (b) access seeker; whose interests are likely to be affected by the revocation has consented in writing to the revocation. (4) If a fixed principles provision is included in an access determination: (a) a provision referred to in paragraph 152BCD(5)(a) or (b) cannot be varied or removed; and (b) the access determination must not be varied in a manner that is inconsistent with a provision referred to in paragraph 152BCD(5) (a) or (b). (5) The Commission does not have a duty to consider whether to exercise the power to vary or revoke an access determination, whether the Commission is requested to do so by another person, or in any other circumstances. (6) If the Commission has commenced to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to vary an access determination, the Commission may alter the proposed variation. (7) Notice of the alteration is to be published in the same way in which a notice relating to the public inquiry was published under section 498 of the Telecommunications Act 1997. (8) Subsection (7) does not apply in relation to an alteration if: (a) the alteration is of a minor nature; or (b) each: (i) carrier or carriage service provider; and (ii) access seeker; whose interests are likely to be affected by the alteration has

consented in writing to the alteration. (9) Despite anything else in this section, if: (a) the Commission makes binding rules of conduct that relate to access to a declared service; and [page 1130] (b) an access determination is in force in relation to access to the declared service; the Commission must, within 30 days after the binding rules of conduct are made, commence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to vary the access determination. Subdivision D — Compliance with access determinations

[14,177BCO]

Carrier licence condition

152BCO A carrier licence held by a carrier is subject to a condition that the carrier must comply with any access determinations that are applicable to the carrier.

[14,177BCP]

Service provider rule

152BCP (1) In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act. (2) A carriage service provider must comply with any access determinations that are applicable to the provider. Subdivision E — Private enforcement of access determinations

[14,177BCQ]

Private enforcement of access

determinations 152BCQ (1) If the Federal Court is satisfied, on the application of: (a) an access seeker; or (b) a carrier; or (c) a carriage service provider; that a person has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of an access determination, the Court may make any or all of the following orders: (d) an order granting an injunction on such terms as the Court thinks appropriate: (i) restraining the person from engaging in the conduct; or (ii) if the conduct involves refusing or failing to do something — requiring the person to do that thing; (e) an order directing the person to compensate the applicant for loss or damage suffered as a result of the contravention; (f) any other order that the Court thinks appropriate. (2) The revocation or expiry of an access determination does not affect any remedy under subsection (1) in respect of a contravention of the access determination that occurred when the access determination was in force. (3) If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned. (4) A reference in this section to a person involved in the contravention is a reference to a person who has: (a) aided, abetted, counselled or procured the contravention; or [page 1131] (b) induced the contravention, whether through threats or promises or otherwise; or (c) been in any way (directly or indirectly) knowingly concerned in or

a party to the contravention; or (d) conspired with others to effect the contravention.

[14,177BCR]

Consent injunctions

152BCR On an application for an injunction under section 152BCQ, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.

[14,177BCS]

Interim injunctions

152BCS The Federal Court may grant an interim injunction pending determination of an application under section 152BCQ.

[14,177BCT] Factors relevant to granting a restraining injunction 152BCT The power of the Federal Court to grant an injunction under section 152BCQ restraining a person from engaging in conduct may be exercised whether or not: (a) it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or (b) the person has previously engaged in conduct of that kind; or (c) there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

[14,177BCU] Factors relevant to granting a mandatory injunction 152BCU The power of the Federal Court to grant an injunction under section 152BCQ requiring a person to do a thing may be exercised whether or not: (a) it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or (b) the person has previously refused or failed to do that thing; or

(c) there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that thing.

[14,177BCV] Discharge or variation of injunction or other order 152BCV The Federal Court may discharge or vary an injunction or order granted under this Subdivision. Subdivision F — Register of Access Determinations

[14,177BCW]

Register of Access Determinations

152BCW (1) The Commission is to maintain a register, to be known as the Register of Access Determinations, in which the Commission includes all access determinations in force. [page 1132] (2) The Register is to be maintained by electronic means. (3) The Register is to be made available for inspection on the Commission’s website. (4) The Register is not a legislative instrument. (5) If the Commission is satisfied that: (a) publication of a particular provision of an access determination could reasonably be expected to prejudice substantially the commercial interests of a person; and (b) the prejudice outweighs the public interest in the publication of the provision; the Commission may remove the provision from the version of the access determination that is included in the Register. (6) If the Commission does so, the Commission must include in the Register an annotation to that effect.

DIVISION 4A — BINDING RULES OF CONDUCT [Div 4A subst Act 140 of 2010 s 3 and Sch 1[160], opn 1 Jan 2011]

Subdivision A — Commission may make binding rules of conduct

[14,177BD]

Binding rules of conduct

152BD (1) The Commission may make written rules that: (a) specify any or all of the terms and conditions on which a carrier or carriage service provider is to comply with any or all of the standard access obligations applicable to the carrier or provider in relation to a specified declared service; or (b) require a carrier or carriage service provider to comply with any or all of the standard access obligations applicable to the carrier or provider in relation to a specified declared service in a manner specified in the rules; if the Commission considers that there is an urgent need to do so. Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901. (2) Rules under subsection (1) are to be known as binding rules of conduct. (3) Binding rules of conduct may be of general application or may be limited as provided in the rules. (4) In particular, binding rules of conduct may be limited to: (a) particular carriers or carriage service providers; or (b) particular classes of carriers or carriage service providers; or (c) particular access seekers; or (d) particular classes of access seekers. (4A) Binding rules of conduct may be expressed to be NBN-specific binding rules of conduct. [subs (4A) insrt Act 23 of 2011 s 3 and Sch 1 item 63, opn 13 Apr 2011]

(4B) Binding rules of conduct do not apply in relation to access to a declared service to the extent to which the service is supplied, or is capable of being supplied, by an NBN corporation unless the binding rules of conduct are expressed to be NBN-specific binding rules of conduct.

[subs (4B) insrt Act 23 of 2011 s 3 and Sch 1 item 63, opn 13 Apr 2011]

[page 1133] (4C) If binding rules of conduct are expressed to be NBN-specific binding rules of conduct, the binding rules of conduct do not apply in relation to access to a declared service to the extent to which the service is supplied, or is capable of being supplied, by a person other than an NBN corporation. [subs (4C) insrt Act 23 of 2011 s 3 and Sch 1 item 63, opn 13 Apr 2011]

(5) Subsection (4) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901. (6) The Commission is not required to observe any requirements of procedural fairness in relation to the making of binding rules of conduct. (7) The Commission does not have a duty to consider whether to make binding rules of conduct, whether at the request of a person or in any other circumstances. (8) Binding rules of conduct may provide for the Commission to perform functions, and exercise powers, under the rules. (9) An instrument under subsection (1) is not a legislative instrument.

[14,177BDAA] Matters that the Commission must take into account 152BDAA (1) The Commission must take the following matters into account in making binding rules of conduct: (a) whether the binding rules of conduct will promote the long-term interests of end-users of carriage services or of services supplied by means of carriage services; (b) the legitimate business interests of a carrier or carriage service provider who supplies, or is capable of supplying, the declared service, and the carrier’s or provider’s investment in facilities used to supply the declared service; (c) the interests of all persons who have rights to use the declared service;

(d) the direct costs of providing access to the declared service; (e) the value to a person of extensions, or enhancement of capability, whose cost is borne by someone else; (f) the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility; (g) the economically efficient operation of a carriage service, a telecommunications network or a facility. (2) If a carrier or carriage service provider who supplies, or is capable of supplying, the declared service supplies one or more other eligible services, then, in making binding rules of conduct that are applicable to the carrier or provider, as the case may be, the Commission may take into account: (a) the characteristics of those other eligible services; and (b) the costs associated with those other eligible services; and (c) the revenues associated with those other eligible services; and (d) the demand for those other eligible services. (3) The Commission may take into account any other matters that it thinks are relevant. [page 1134] (4) The Commission is not required by subsection (1) or (2) to take a matter into account if it is not reasonably practicable for the Commission to do so, having regard to the urgent need to make the binding rules of conduct. (5) For the purposes of taking a particular matter into account under this section, the Commission is not required to obtain information, or further information, that is not already in the possession of the Commission if it is not reasonably practicable for the Commission to do so, having regard to the urgent need to make the binding rules of conduct. (6) In this section: eligible service has the same meaning as in section 152AL.

[14,177BDA]

Restrictions on binding rules of

conduct 152BDA (1) The Commission must not make binding rules of conduct that would have any of the following effects: (a) preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR or 152AXB; (b) preventing a carrier or carriage service provider from obtaining a sufficient amount of the service to be able to meet the carrier’s or provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR or 152AXB; (c) preventing a person from obtaining, by the exercise of a pre-rules right, a sufficient level of access to the declared service to be able to meet the person’s actual requirements; (d) depriving any person of a protected contractual right; (e) resulting in an access seeker becoming the owner (or one of the owners) of any part of a facility without the consent of the owner of the facility; (f) requiring a person (other than an access seeker) to bear an unreasonable amount of the costs of: (i) extending or enhancing the capability of a facility; or (ii) maintaining extensions to or enhancements of the capability of a facility; (g) requiring a carrier or carriage service provider to provide an access seeker with access to a declared service if there are reasonable grounds to believe that: (i) the access seeker would fail, to a material extent, to comply with the terms and conditions on which the carrier or provider provides, or is reasonably likely to provide, that access; or (ii) the access seeker would fail, in connection with that access, to protect the integrity of a telecommunications network or to protect the safety of individuals working on, or using services supplied by means of, a telecommunications network or a

facility. [subs (1) am Act 23 of 2011 s 3 and Sch 1 item 64, opn 13 Apr 2011]

(2) Examples of grounds for believing as mentioned in subparagraph (1) (g)(i) include: (a) evidence that the access seeker is not creditworthy; and [page 1135] (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the carrier or carriage service provider). (3) The Commission must not make binding rules of conduct that are inconsistent with any of the standard access obligations that are, or will be, applicable to a carrier or carriage service provider. (3A) If a final migration plan is in force, the Commission must not make binding rules of conduct that would have the effect of requiring Telstra to engage in conduct in connection with matters covered by the final migration plan. (3B) The Commission must not make binding rules of conduct that would have the effect of: (a) requiring an NBN corporation to engage in conduct that is inconsistent with conduct authorised under subsection 151DA(2) or (3) for the purposes of subsection 51(1); or (b) preventing an NBN corporation from giving a refusal that is authorised under subsection 151DA(3) for the purposes of subsection 51(1). [subs (3B) insrt Act 23 of 2011 s 3 and Sch 1 item 64A, opn 13 Apr 2011]

(3C) The Commission must not make binding rules of conduct that would have the effect of preventing an NBN corporation from engaging in conduct that is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities. [subs (3C) insrt Act 23 of 2011 s 3 and Sch 1 item 64A, opn 13 Apr 2011]

(3D) In subsection (3C), eligible services, uniform national pricing and utilities have the same meaning as in section 151DA.

[subs (3D) insrt Act 23 of 2011 s 3 and Sch 1 item 64A, opn 13 Apr 2011]

(4) If the Commission makes binding rules of conduct that have the effect of depriving a person (the second person) of a pre-rules right to require the carrier or provider to provide access to the declared service to the second person, the rules must also require the access seeker: (a) to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and (b) to reimburse the carrier or provider and the Commonwealth for any compensation that the carrier or provider or the Commonwealth agrees, or is required by a court order, to pay to the second person as compensation for the deprivation. (4A) The Commission must not make binding rules of conduct that: (a) relate to any or all of the category B standard access obligations applicable to an NBN corporation; and (b) have the effect (whether direct or indirect) of discriminating between access seekers. Note: For explanatory material, see section 152CJH. [subs (4A) insrt Act 23 of 2011 s 3 and Sch 1 item 65, opn 13 Apr 2011]

(4B) Subsection (4A) does not prevent discrimination against an access seeker if the Commission has reasonable grounds to believe that the access seeker would fail, to a [page 1136] material extent, to comply with the terms and conditions on which the NBN corporation complies, or on which the NBN corporation is reasonably likely to comply, with the relevant obligation. [subs (4B) insrt Act 23 of 2011 s 3 and Sch 1 item 65, opn 13 Apr 2011]

(4C) Examples of grounds for believing as mentioned in subsection (4B) include: (a) evidence that the access seeker is not creditworthy; and (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided

(whether or not by the NBN corporation). [subs (4C) insrt Act 23 of 2011 s 3 and Sch 1 item 65, opn 13 Apr 2011]

(5) Binding rules of conduct are of no effect to the extent to which they contravene subsection (1), (3), (3A), (3B), (3C), (4A) or (4G). [subs (5) am Act 23 of 2011 s 3 and Sch 1 item 66, opn 13 Apr 2011; s 3 and Sch 1 item 107, opn 12 Apr 2012]

(6) In this section: pre-rules right means a right under a contract that was in force immediately before the binding rules of conduct came into force. protected contractual right means a right under a contract that was in force at the beginning of 13 September 1996.

[14,177BDB] Access agreements prevail over inconsistent binding rules of conduct 152BDB If binding rules of conduct are applicable to the following parties: (a) a carrier or carriage service provider; (b) an access seeker; the binding rules of conduct have no effect to the extent to which they are inconsistent with an access agreement that is applicable to those parties.

[14,177BDC] conduct

Duration of binding rules of

152BDC (1) Binding rules of conduct come into force on the day specified in the rules as the day on which the rules are to come into force. (2) Binding rules of conduct must specify an expiry date for the rules. (3) An expiry date must occur in the 12-month period beginning when the rules were made. (4) Unless sooner revoked, binding rules of conduct cease to be in force on the expiry date for the rules.

[14,177BDCA]

Final migration plan prevails over

inconsistent binding rules of conduct 152BDCA If a final migration plan is in force, binding rules of conduct have no effect to the extent to which they would have the effect of: (a) preventing Telstra from complying with the final migration plan; or [page 1137] (b) requiring Telstra to engage in conduct in connection with matters covered by the final migration plan.

[14,177BDD] Commission must give copy of binding rules of conduct to carrier etc 152BDD If binding rules of conduct are limited to a particular carrier, carriage service provider or access seeker, as soon as practicable after making the rules, the Commission must give a copy of the rules to the carrier, carriage service provider or access seeker, as the case may be.

[14,177BDE] Access determinations that are inconsistent with binding rules of conduct 152BDE If a provision of an access determination (other than a fixed principles provision) is inconsistent with binding rules of conduct, the provision has no effect to the extent of the inconsistency.

[14,177BDEA]

Stay of binding rules of conduct

152BDEA (1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision of the Commission to make binding rules of conduct. (2) If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision of the Commission to make binding rules of conduct, the Court must not make any

orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application. Subdivision B — Compliance with binding rules of conduct

[14,177BDF]

Carrier licence condition

152BDF A carrier licence held by a carrier is subject to a condition that the carrier must comply with any binding rules of conduct that are applicable to the carrier.

[14,177BDG]

Service provider rule

152BDG (1) In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act. (2) A carriage service provider must comply with any binding rules of conduct that are applicable to the provider. Subdivision C — Private enforcement of binding rules of conduct

[14,177BDH] Private enforcement of binding rules of conduct 152BDH (1) If the Federal Court is satisfied, on the application of: (a) an access seeker; or [page 1138] (b) a carrier; or (c) a carriage service provider; that a person has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of binding rules of conduct, the Court may make any or all of the following orders:

an order granting an injunction on such terms as the Court thinks (d) appropriate: (i) restraining the person from engaging in the conduct; or (ii) if the conduct involves refusing or failing to do something — requiring the person to do that thing; (e) an order directing the person to compensate the applicant for loss or damage suffered as a result of the contravention; (f) any other order that the Court thinks appropriate. (2) The revocation or expiry of binding rules of conduct does not affect any remedy under subsection (1) in respect of a contravention of the rules that occurred when the rules were in force. (3) If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned. (4) A reference in this section to a person involved in the contravention is a reference to a person who has: (a) aided, abetted, counselled or procured the contravention; or (b) induced the contravention, whether through threats or promises or otherwise; or (c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or (d) conspired with others to effect the contravention.

[14,177BDI]

Consent injunctions

152BDI On an application for an injunction under section 152BDH, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.

[14,177BDJ]

Interim injunctions

152BDJ The Federal Court may grant an interim injunction pending determination of an application under section 152BDH.

[14,177BDK] Factors relevant to granting a restraining injunction 152BDK The power of the Federal Court to grant an injunction under section 152BDH restraining a person from engaging in conduct may be exercised whether or not: (a) it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or [page 1139] (b) the person has previously engaged in conduct of that kind; or (c) there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

[14,177BDL] Factors relevant to granting a mandatory injunction 152BDL The power of the Federal Court to grant an injunction under section 152BDH requiring a person to do a thing may be exercised whether or not: (a) it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or (b) the person has previously refused or failed to do that thing; or (c) there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that thing.

[14,177BDM] Discharge or variation of injunction or other order 152BDM The Federal Court may discharge or vary an injunction or order granted under this Subdivision.

Subdivision D — Register of Binding Rules of Conduct

[14,177BDN] Conduct

Register of Binding Rules of

152BDN (1) The Commission is to maintain a register, to be known as the Register of Binding Rules of Conduct, in which the Commission includes all binding rules of conduct in force. (2) The Register is to be maintained by electronic means. (3) The Register is to be made available for inspection on the Commission’s website. (4) The Register is not a legislative instrument. (5) If the Commission is satisfied that: (a) publication of a particular provision of binding rules of conduct could reasonably be expected to prejudice substantially the commercial interests of a person; and (b) the prejudice outweighs the public interest in the publication of the provision; the Commission may remove the provision from the version of the rules that is included in the Register. (6) If the Commission does so, the Commission must include in the Register an annotation to that effect. DIVISION 4B — ACCESS AGREEMENTS [Div 4B subst Act 140 of 2010 s 3 and Sch 1[160], opn 1 Jan 2011]

[14,177BE]

Access agreements

152BE (1) For the purposes of this Part, an access agreement is an agreement, where: (a) the agreement is in writing; and (b) the agreement is legally enforceable; and [page 1140]

(c) the agreement relates to access to a declared service; and (d) the parties to the agreement are: (i) an access seeker; and (ii) the carrier or carriage service provider who supplies, or proposes to supply, the declared service; and (e) any of the following subparagraphs applies: (i) the agreement embodies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any or all of the standard access obligations applicable to the carrier or provider; (ii) if an access determination imposes requirements on a carrier or carriage service provider in relation to access to the declared service, as mentioned in paragraph 152BC(3)(e) — the agreement embodies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any or all of those requirements; (iii) the agreement embodies any other terms and conditions of the access seeker’s access to the declared service; (iv) the agreement requires the carrier or carriage service provider to comply with any or all of the standard access obligations applicable to the carrier or provider in a manner specified in the agreement; (v) the agreement requires the carrier or carriage service provider to extend or enhance the capability of a facility by means of which the declared service is supplied; (vi) the agreement imposes other requirements on the carrier or carriage service provider in relation to access to the declared service; (vii) the agreement specifies the terms and conditions on which the carrier or carriage service provider is to comply with any or all of those other requirements; (viii)the agreement requires the access seeker to accept, and pay for, access to the declared service; (ix) the agreement provides that any or all of the obligations referred to in section 152AR are not applicable to the carrier or carriage service provider, either unconditionally or subject

to such conditions or limitations as are specified in the agreement; (x) the agreement restricts or limits the application to the carrier or carriage service provider of any or all of the obligations referred to in section 152AR; (xi) the agreement deals with any other matter relating to access to the declared service. (1A) Paragraph (1)(b) does not apply to the agreement to the extent (if any) to which the agreement is covered by subparagraph (1)(e)(ix) or (x). (1B) Subparagraphs (1)(e)(ix) and (x) do not apply to an agreement that relates to a declared service that is a Layer 2 bitstream service supplied using a designated superfast telecommunications network. [subs (1B) insrt Act 23 of 2011 s 3 and Sch 1 item 108, opn 12 Apr 2012]

[page 1141] (2) If: (a) an agreement relates to access to an eligible service (within the meaning of section 152AL); and (b) at the time the agreement was entered into to, the eligible service was a not a declared service; and (c) at a later time (the declaration time), the eligible service becomes a declared service; and (d) if the agreement had been entered into immediately after the declaration time, the agreement would have been an access agreement; the agreement becomes an access agreement immediately after the declaration time. (3) If: (a) an access agreement is varied by another agreement (the variation agreement); and (b) the variation agreement is in writing; and (c) the variation agreement is legally enforceable; a reference in this Part to the access agreement is a reference to the access

agreement as varied by the variation agreement. (4) It is immaterial whether an access agreement or variation agreement was entered into before or after the commencement of this section. (5) An access agreement is not a legislative instrument. (6) A variation agreement is not a legislative instrument.

[14,177BEA] agreements

Quarterly reports about access

152BEA (1) Within 30 days after the end of each quarter, a carrier or carriage service provider who supplies, or proposes to supply, a declared service must give the Commission a written statement setting out details of any access agreement in relation to the service in force at any time during that quarter. (2) The details that must be given under subsection (1) are: (a) the parties to the agreement; and (b) the service to which the agreement relates; and (c) the date the agreement was entered into; and (d) the period of the agreement; and (e) if the agreement was varied during the quarter — the details referred to in paragraphs (a) to (d) and (g) in relation to the variation agreement; and (f) if the agreement was terminated, rescinded or cancelled before the expiry of the agreement — the date the agreement was terminated, rescinded or cancelled; and (g) such information (if any) about the agreement as is specified in an instrument in force under subsection (3). (3) The Commission may, by writing, specify information for the purposes of paragraph (2)(g). (4) An instrument under subsection (3) (including the instrument as amended) ceases to be in force 5 years after the day it is made (unless it is revoked sooner). (5) The Commission must publish an instrument under subsection (3) on the Commission’s website.

[page 1142] (6) An instrument under subsection (3) is not a legislative instrument. (7) The Commission may, by writing, require information in a statement given to the Commission under this section to be verified by statutory declaration. (8) This section does not limit section 155. [s 152BEA subst Act 109 of 2014 s 3 and Sch 2 item 3, opn 17 Oct 2014]

[14,177BEB] Commission may request copy of access agreement or variation agreement 152BEB (1) The Commission may, by writing, request a carrier or carriage service provider who supplies, or proposes to supply, a declared service to provide a copy of either or both of the following: (a) an access agreement in relation to the service; (b) a variation agreement for an access agreement in relation to the service. Note: The Procedural Rules may provide for the practice and procedure to be followed by the Commission in making a request under this subsection. (2) The carrier or carriage service provider must provide a copy of the document within 10 days after the day the request was made under subsection (1). (3) An instrument under subsection (1) is not a legislative instrument. (4) This section does not limit section 155. [s 152BEB subst Act 109 of 2014 s 3 and Sch 2 item 3, opn 17 Oct 2014]

[14,177BEBA] NBN corporation to give the Commission a statement about the differences between an access agreement and a standard form of access agreement 152BEBA

(1) Access agreement If:

(a) an access agreement is covered by subsection 152BE(1); and (b) the carrier or carriage service provider who supplies, or proposes to supply, the declared service is an NBN corporation; and (c) immediately before the access agreement was entered into, a standard form of access agreement relating to access to the service was available on the NBN corporation’s website; and (d) the terms and conditions set out in the access agreement are not the same as the terms and conditions set out in the standard form of access agreement; the NBN corporation must, within 7 days after the day on which the access agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission: (e) identifying the parties to the access agreement; and (f) describing the differences between the terms and conditions set out in the access agreement and the terms and conditions set out in the standard form of access agreement; and (j) setting out such other information (if any) about the access agreement as is required by the form. [page 1143] (2) Variation agreement If: (a) a variation agreement is entered into after the commencement of this section; and (b) the carrier or carriage service provider who supplies, or proposes to supply, the service to which the relevant access agreement relates is an NBN corporation; and (c) immediately before the variation agreement was entered into, a standard form of access agreement relating to access to the service was available on the NBN corporation’s website; and (d) the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) are not the same as the terms and conditions set out in the standard form of access agreement; the NBN corporation must, within 7 days after the day on which the variation

agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission: (e) identifying the parties to the relevant access agreement (as varied by the variation agreement); and (f) describing the differences between the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) and the terms and conditions set out in the standard form of access agreement; and (j) setting out such other information (if any) about the relevant access agreement (as varied by the variation agreement) as is required by the form. [s 152BEBA insrt Act 23 of 2011 s 3 and Sch 1 item 67, opn 13 Apr 2011]

[14,177BEBB] NBN corporation to give the Commission a statement about the differences between an access agreement and a special access undertaking 152BEBB (1) Access agreement If: (a) an access agreement is covered by subsection 152BE(1); and (b) the carrier or carriage service provider who supplies, or proposes to supply, the declared service is an NBN corporation; and (c) immediately before the access agreement was entered into, a special access undertaking that: (i) relates to access to the service; and (ii) was given by the NBN corporation; was in operation; and (d) the terms and conditions set out in the access agreement are not the same as the terms and conditions set out in the special access undertaking; the NBN corporation must, within 7 days after the day on which the access agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission: (e) identifying the parties to the access agreement; and

(f)

describing the differences between the terms and conditions set out in the access agreement and the terms and conditions set out in the special access undertaking; and [page 1144]

(j)

setting out such other information (if any) about the access agreement as is required by the form. (2) Variation agreement If: (a) a variation agreement is entered into after the commencement of this section; and (b) the carrier or carriage service provider who supplies, or proposes to supply, the service to which the relevant access agreement relates is an NBN corporation; and (c) immediately before the variation agreement was entered into, a special access undertaking that: (i) relates to access to the service; and (ii) was given by the NBN corporation; was in operation; and (d) the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) are not the same as the terms and conditions set out in the special access undertaking; the NBN corporation must, within 7 days after the day on which the variation agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission: (e) identifying the parties to the relevant access agreement (as varied by the variation agreement); and (f) describing the differences between the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) and the terms and conditions set out in the special access undertaking; and (j) setting out such other information (if any) about the relevant access agreement (as varied by the variation agreement) as is required by the form.

[s 152BEBB insrt Act 23 of 2011 s 3 and Sch 1 item 67, opn 13 Apr 2011]

[14,177BEBC] NBN corporation to give the Commission a statement about the differences between an access agreement and an access determination 152BEBC (1) Access agreement If: (a) an access agreement is covered by subsection 152BE(1); and (b) the carrier or carriage service provider who supplies, or proposes to supply, the declared service is an NBN corporation; and (c) immediately before the access agreement was entered into, an access determination relating to access to the service was in force; and (d) the terms and conditions set out in the access agreement are not the same as the terms and conditions set out in the access determination; the NBN corporation must, within 7 days after the day on which the access agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission: (e) identifying the parties to the access agreement; and (f) describing the differences between the terms and conditions set out in the access agreement and the terms and conditions set out in the access determination; and [page 1145] (j)

setting out such other information (if any) about the access agreement as is required by the form. (2) Variation agreement If: (a) a variation agreement is entered into after the commencement of this section; and (b) the carrier or carriage service provider who supplies, or proposes

to supply, the service to which the relevant access agreement relates is an NBN corporation; and (c) immediately before the variation agreement was entered into, an access determination relating to access to the service was in force; and (d) the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) are not the same as the terms and conditions set out in the access determination; the NBN corporation must, within 7 days after the day on which the variation agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission: (e) identifying the parties to the relevant access agreement (as varied by the variation agreement); and (f) describing the differences between the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) and the terms and conditions set out in the access determination; and (j) setting out such other information (if any) about the relevant access agreement (as varied by the variation agreement) as is required by the form. [s 152BEBC insrt Act 23 of 2011 s 3 and Sch 1 item 67, opn 13 Apr 2011]

[14,177BEBD] Register of NBN Access Agreement Statements 152BEBD (1) The Commission is to maintain a register, to be known as the Register of NBN Access Agreement Statements, in which the Commission includes all statements given to it under the following provisions: (a) section 152BEBA; (b) section 152BEBB; (c) section 152BEBC. (2) The Register is to be maintained by electronic means. (3) The Register is to be made available for inspection on the Commission’s website.

(4) The Register is not a legislative instrument. (5) If the Commission is satisfied that: (a) publication of particular material contained in a statement could reasonably be expected to prejudice substantially the commercial interests of a person; and (b) the prejudice outweighs the public interest in the publication of the matter; the Commission may remove the material from the version of the statement that is included in the Register. (6) If the Commission does so, the Commission must include in the Register an annotation to that effect. [s 152BEBD insrt Act 23 of 2011 s 3 and Sch 1 item 67, opn 13 Apr 2011]

[page 1146]

[14,177BEBE] Layer 2 bitstream services — carrier or carriage service provider to give the Commission a statement about the differences between an access agreement and a special access undertaking 152BEBE (1) Access agreement If: (a) an access agreement is covered by subsection 152BE(1); and (b) the declared service to which the agreement relates is a Layer 2 bitstream service supplied using a designated superfast telecommunications network; and (c) the carrier or carriage service provider who supplies, or proposes to supply, the declared service is not an NBN corporation; and (d) immediately before the access agreement was entered into, a special access undertaking that: (i) relates to access to the service; and (ii) was given by the carrier or provider; was in operation; and

(e) the terms and conditions set out in the access agreement are not the same as the terms and conditions set out in the special access undertaking; the carrier or provider must, within 7 days after the day on which the access agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission: (f) identifying the parties to the access agreement; and (g) describing the differences between the terms and conditions set out in the access agreement and the terms and conditions set out in the special access undertaking; and (k) setting out such other information (if any) about the access agreement as is required by the form. (2) Variation agreement If: (a) a variation agreement is entered into after the commencement of this section; and (b) the declared service to which the relevant access agreement relates is a Layer 2 bitstream service supplied using a designated superfast telecommunications network; and (c) the carrier or carriage service provider who supplies, or proposes to supply, the service to which the relevant access agreement relates is not an NBN corporation; and (d) immediately before the variation agreement was entered into, a special access undertaking that: (i) relates to access to the service; and (ii) was given by the carrier or provider; was in operation; and (e) the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) are not the same as the terms and conditions set out in the special access undertaking; the carrier or provider must, within 7 days after the day on which the variation agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission: [page 1147]

(f)

identifying the parties to the relevant access agreement (as varied by the variation agreement); and (g) describing the differences between the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) and the terms and conditions set out in the special access undertaking; and (k) setting out such other information (if any) about the relevant access agreement (as varied by the variation agreement) as is required by the form. [s 152BEBE insrt Act 23 of 2011 s 3 and Sch 1 item 109, opn 12 Apr 2012]

[14,177BEBF] Layer 2 bitstream services — carrier or carriage service provider to give the Commission a statement about the differences between an access agreement and an access determination 152BEBF (1) Access agreement If: (a) an access agreement is covered by subsection 152BE(1); and (b) the declared service to which the agreement relates is a Layer 2 bitstream service supplied using a designated superfast telecommunications network; and (c) the carrier or carriage service provider who supplies, or proposes to supply, the declared service is not an NBN corporation; and (d) immediately before the access agreement was entered into, an access determination relating to access to the service was in force; and (e) the terms and conditions set out in the access agreement are not the same as the terms and conditions set out in the access determination; the carrier or provider must, within 7 days after the day on which the access agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission: (f) identifying the parties to the access agreement; and

describing the differences between the terms and conditions set out in the access agreement and the terms and conditions set out in the access determination; and (k) setting out such other information (if any) about the access agreement as is required by the form. (2) Variation agreement If: (a) a variation agreement is entered into after the commencement of this section; and (b) the declared service to which the relevant access agreement relates is a Layer 2 bitstream service supplied using a designated superfast telecommunications network; and (c) the carrier or carriage service provider who supplies, or proposes to supply, the service to which the relevant access agreement relates is not an NBN corporation; and (d) immediately before the variation agreement was entered into, an access determination relating to access to the service was in force; and (e) the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) are not the same as the terms and conditions set out in the access determination; (g)

[page 1148] the carrier or provider must, within 7 days after the day on which the variation agreement was entered into, give the Commission a statement, in a form approved in writing by the Commission: (f) identifying the parties to the relevant access agreement (as varied by the variation agreement); and (g) describing the differences between the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) and the terms and conditions set out in the access determination; and (k) setting out such other information (if any) about the relevant access agreement (as varied by the variation agreement) as is required by

the form. [s 152BEBF insrt Act 23 of 2011 s 3 and Sch 1 item 109, opn 12 Apr 2012]

[14,177BEBG] Register of Layer 2 Bitstream Access Agreement Statements 152BEBG (1) The Commission is to maintain a register, to be known as the Register of Layer 2 Bitstream Access Agreement Statements, in which the Commission includes all statements given to it under the following provisions: (a) section 152BEBE; (b) section 152BEBF. (2) The Register is to be maintained by electronic means. (3) The Register is to be made available for inspection on the Commission’s website. (4) The Register is not a legislative instrument. (5) If the Commission is satisfied that: (a) publication of particular material contained in a statement could reasonably be expected to prejudice substantially the commercial interests of a person; and (b) the prejudice outweighs the public interest in the publication of the matter; the Commission may remove the material from the version of the statement that is included in the Register. (6) If the Commission does so, the Commission must include in the Register an annotation to that effect. [s 152BEBG insrt Act 23 of 2011 s 3 and Sch 1 item 109, opn 12 Apr 2012]

[14,177BEC]

Carrier licence condition

152BEC A carrier licence held by a carrier is subject to a condition that the carrier must comply with sections 152BEA, 152BEB, 152BEBA, 152BEBB, 152BEBC, 152BEBE and 152BEBF. [s 152BEC am Act 23 of 2011 s 3 and Sch 1 item 68, opn 13 Apr 2011; s 3 and Sch 1 item 110, opn 12 Apr 2012]

[14,177BED]

Service provider rule

152BED (1) In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act. [page 1149] (2) A carriage service provider must comply with sections 152BEA, 152BEB, 152BEBA, 152BEBB, 152BEBC, 152BEBE and 152BEBF. [subs (2) am Act 23 of 2011 s 3 and Sch 1 item 69, opn 13 Apr 2011; s 3 and Sch 1 item 111, opn 12 Apr 2012]

DIVISION 5 — ACCESS UNDERTAKINGS Subdivision A — Ordinary access undertakings [Repealed] [subdiv A rep Act 140 of 2010 s 3 and Sch 1[161], opn 1 Jan 2011]

Subdivision B — Special access undertakings [subdiv B insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[14,177CBA] undertaking?

What is a special access

152CBA (1) Scope This section applies to: (a) a person (other than an NBN corporation) who is, or expects to be, a carrier or a carriage service provider supplying: (i) a listed carriage service (within the meaning of the Telecommunications Act 1997); or (ii) a service that facilitates the supply of a listed carriage service (within the meaning of that Act); whether to itself or to other persons, so long as the service is not a declared service; or (b) a person who is an NBN corporation and who is, or expects to be, a

carrier or carriage service provider supplying or capable of supplying: (i) a listed carriage service (within the meaning of the Telecommunications Act 1997); or (ii) a service that facilitates the supply of a listed carriage service (within the meaning of that Act); whether to itself or to other persons, so long as: (iii) the service is not a declared service under subsection 152AL(8A); and (iv) there is no access determination that applies in relation to access to the service. [subs (1) subst Act 23 of 2011 s 3 and Sch 1 item 70, opn 13 Apr 2011]

(2) Undertaking The person may give a written undertaking (a special access undertaking) to the Commission in connection with the provision of access to the service. (3) If paragraph (1)(a) applies, the undertaking must state that, in the event that the person supplies the service (whether to itself or to other persons), the person: (a) agrees to be bound by the obligations referred to in section 152AR, to the extent that those obligations would apply to the person in relation to the service if the service were treated as an active declared service; and (b) undertakes to comply with the terms and conditions specified in the undertaking in relation to the obligations referred to in paragraph (a). [page 1150] Note: The undertaking need not specify all terms and conditions — see subparagraph 152AY(2)(b)(ii). [subs (3) am Act 23 of 2011 s 3 and Sch 1 item 71, opn 13 Apr 2011]

(3A) If paragraph (1)(b) applies, the undertaking must state that, in the event that the person supplies, or becomes capable of supplying, the service (whether to itself or to other persons), the person:

(a) agrees to be bound by the obligations referred to in section 152AXB, to the extent that those obligations would apply to the person in relation to the service if the service were treated as a declared service; and (b) undertakes to comply with the terms and conditions specified in the undertaking in relation to the obligations referred to in section 152AXB. Note: The undertaking need not specify all terms and conditions — see subparagraph 152AY(2)(b)(ii). [subs (3A) insrt Act 23 of 2011 s 3 and Sch 1 item 72, opn 13 Apr 2011]

(3B) The undertaking may also state, in the event that the person supplies the service (whether to itself or to other persons), the person: (a) will engage in specified conduct in relation to access to the service; and (b) will do so on such terms and conditions as are specified in the undertaking. [subs (3B) insrt Act 140 of 2010 s 3 and Sch 1[163], opn 1 Jan 2011]

(3C) If the person is an NBN corporation, the undertaking may also state that the NBN corporation will engage in specified conduct in relation to: (a) developing a new eligible service (within the meaning of section 152AL); or (b) enhancing a declared service; or (c) extending or enhancing the capability of a facility or telecommunications network by means of which a declared service is, or is to be, supplied; or (d) planning for a facility or telecommunications network by means of which a declared service is, or is to be, supplied; or (e) an activity that is preparatory to the supply of a declared service; or (f) an activity that is ancillary or incidental to the supply of a declared service; or (g) giving information to service providers about any of the above activities. [subs (3C) insrt Act 23 of 2011 s 3 and Sch 1 item 73, opn 13 Apr 2011]

(3D) For the purposes of this Part, in determining whether the undertaking relates to a particular service or proposed service, disregard a statement

included in the undertaking in accordance with subsection (3C). [subs (3D) insrt Act 23 of 2011 s 3 and Sch 1 item 73, opn 13 Apr 2011]

(4) The undertaking must be in a form approved in writing by the Commission. (5) The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking. (6) Expiry time The undertaking must specify the expiry time of the undertaking. (7) The expiry time of the undertaking may be described by reference to the end of a period beginning: (a) when the undertaking comes into operation; or (b) when the person begins to supply the service (whether to itself or to other persons). (8) Subsection (7) does not, by implication, limit subsection (6). [page 1151] (9) The undertaking may provide for the person to extend, or further extend, the expiry time of the undertaking, so long as: (a) the extension or further extension is approved by the Commission; and (b) the undertaking sets out criteria that are to be applied by the Commission in deciding whether to approve the extension or further extension. (10) If the undertaking expires, this Part does not prevent the person from giving a fresh special access undertaking in the same terms as the expired undertaking. [subs (10) subst Act 140 of 2010 s 3 and Sch 1[164], opn 1 Jan 2011]

(10A) Commission may perform functions or exercise power If the undertaking provides for the Commission to perform functions or exercise powers in relation to the undertaking, the Commission may perform those functions, and exercise those powers, in accordance with the undertaking. [subs (10A) insrt Act 140 of 2010 s 3 and Sch 1[165], opn 1 Jan 2011]

(11) Related services A reference in subparagraphs (1)(a)(ii) and (b)(ii) to a service that facilitates the supply of a carriage service does not include a reference to the use of intellectual property except to the extent that it is an integral but subsidiary part of the first-mentioned service. [subs (11) am Act 23 of 2011 s 3 and Sch 1 item 74, opn 13 Apr 2011]

(12) Definition In this section: active declared service has the same meaning as in section 152AR (disregarding subsection 152AL(7)). Note: A service includes a proposed service — see section 152CBJ. SECTION 152CBA GENERALLY [14,177CBA.5] Overview The provision provides that a carrier or carriage service provider may give a written undertaking to the commission in connection with the provision of access to the service. [14,177CBA.10] Undertaking with limitations Under s 152CBA(5) an undertaking may contain limitations. The expression is not defined. In Seven Network Ltd v ACCC (2007) 164 FCR 127; 245 ALR 68; [2007] FCA 1929; BC200711069 at [78]–[85] Buchanan J said: [78] The term is not defined. I was told there is no judicial authority on the use of the term in s 152CBA(5). Clearly enough, however, a limitation of the kind envisaged involves the notion of an exception to any obligation of supply on demand under s 152AR. That seems one essential characteristic in the statutory context under consideration. Another way of expressing it is that it reduces the scope of the service supplied. It might be noted that s 152AL(7) indicates “to avoid doubt” that a declared service does not extend to matters excluded by a limitation. [79] A limitation, in my view, may be expressed in the description of the service itself or it may be imported by matters specified elsewhere in the undertaking which have the requisite effect. [80] More difficult is the identification of the kinds of exceptions which might be regarded as limitations. Clearly they must limit the service to be provided and not just deal with how it is to be provided. How a service is to be provided is the sort of matter with which s 152AY deals — that is, the manner of compliance with standard access obligations. An undertaking may specify terms and conditions about such an issue.

[page 1152] [81] It appears to me that limitations (on the one hand) and terms and conditions (on the other) are necessarily in different fields. Terms and conditions can only operate in relation to a “declared

service” after any limitations on the service are taken into account. Put another way, limitations bear upon the accurate identification of the service and terms and conditions relate to the provision of the service. [82] In the present case the ACCC expressed the view that a limitation need not be geographical in character. I agree with that assessment. There is no indication in the statutory scheme that it is only geographical limitations that are referred to by s 152CBA(5). [83] There is nothing of direct assistance about s 152CBA(5) in any extrinsic explanatory material. However, counsel for the ACCC pointed out that s 152BS(6A) (which deals with “ordinary access undertakings”) uses identical language to s 152CBA(5). Section 152BS(6A) was introduced in 2002. The explanatory memorandum to the Telecommunications Competition Bill 2002 explained its intent as follows: Proposed subsection 152BS(6A) will make it clear that an undertaking may be made without limitations or may be subject to such limitations as are specified in the undertaking. This makes it clear that an undertaking may be given only in relation to, for example, a relevant service supplied in a specified area or by means of a particular facility. [84] The reference to “facility” requires further elucidation. Section 152AC ascribes to “facility” the meaning given by the Telecommunications Act. In that Act it is, by s 7, defined to mean: (a) any part of the infrastructure of a telecommunications network; or (b) any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network. [85] That confirms what, in my view, the natural meaning of the language in ss 152BS(6A) and 152CBA(5) conveys. A limitation may be geographical. It may also be a limitation expressed by reference to the facilities or a particular facility, used to supply a service. No doubt, other limitations could be expressed which also bear upon the identification of the service (that is, whether it will be provided rather than how it will be provided).

See also Seven Network Ltd v ACCC [2008] FCA 411; BC200802250 per Buchanan J. ________________________

[14,177CBAA] conditions

Fixed principles terms and

152CBAA (1) A special access undertaking may provide that a term or condition specified in the undertaking is a fixed principles term or condition for a period that, under the undertaking, is expressed to be the notional fixed period for the fixed principles term or condition. (2) If the undertaking does so, the undertaking may also provide that one or more specified circumstances are qualifying circumstances in relation to the fixed principles term or condition. (3) The notional fixed period for a fixed principles term or condition must:

(a) begin when the undertaking comes into operation; and (b) end: (i) at the expiry time of the undertaking; or (ii) if an earlier time is ascertained in accordance with the undertaking — at that earlier time; or [page 1153] (iii) if a later time is ascertained in accordance with the undertaking — at that later time. (4) If: (a) a fixed principles term or condition is specified in a special access undertaking; and (b) the undertaking ceases to be in operation before the end of the notional fixed period for the fixed principles term or condition; the fixed principles term or condition ceases to be in operation when the undertaking ceases to be in operation. Note: Even though the fixed principles term or condition ceases to be in operation when the undertaking ceases to be in operation, subsection (5) ensures that a fresh undertaking can include an identical fixed principles term or condition. (5) Consequences — acceptance of other undertaking If: (a) a special access undertaking (the original undertaking) given by a person in relation to a particular service contained a fixed principles term or condition (the original fixed principles term or condition); and (b) the original undertaking was accepted by the Commission; and (c) during the notional fixed period for the original fixed principles term or condition, the person gives the Commission another special access undertaking (the other undertaking) in relation to the service; and (d) the other undertaking contains a fixed principles term or condition (the corresponding fixed principles term or condition) that is identical to the original fixed principles term or condition; and

(e) the notional fixed period for the corresponding fixed principles term or condition ends at or before the end of the notional fixed period for the original fixed principles term or condition; and (f) if there are qualifying circumstances in relation to the original fixed principles term or condition: (i) there are qualifying circumstances in relation to the corresponding fixed principles term or condition; and (ii) those qualifying circumstances are identical to the qualifying circumstances in relation to the original fixed principles term or condition; and (g) if there are qualifying circumstances in relation to the original fixed principles term or condition — none of those circumstances exist; then: (h) the Commission must not reject the other undertaking for a reason that concerns: (i) the corresponding fixed principles term or condition; or (ii) the notional fixed period for the corresponding fixed principles term or condition; or (iii) if there are qualifying circumstances in relation to the corresponding fixed principles term or condition — the specification of those circumstances; and [page 1154] (i)

(j)

paragraphs 152CBD(2)(a), (b), (c) and (ca) do not apply to: (i) the corresponding fixed principles term or condition; or (ii) the notional fixed period for the corresponding fixed principles term or condition; or (iii) if there are qualifying circumstances in relation to the corresponding fixed principles term or condition — those circumstances; and if the corresponding fixed principles term or condition is the only term or condition contained in the other undertaking — paragraph

152CBD(2)(d) does not apply to the other undertaking; and (k) if the corresponding fixed principles term or condition is not the only term or condition contained in the other undertaking — subparagraph 152CBD(2)(d)(ii) does not require the Commission to consider any submissions to the extent to which they relate to: (i) the corresponding fixed principles term or condition; or (ii) the notional fixed period for the corresponding fixed principles term or condition; or (iii) if there are qualifying circumstances in relation to the corresponding fixed principles term or condition — those circumstances. (6) Consequences — variation of undertaking If: (a) a special access undertaking given by a person in relation to a particular service contains a fixed principles term or condition (the original fixed principles term or condition); and (b) the undertaking has been accepted by the Commission; and (c) during the notional fixed period for the original fixed principles term or condition, the person gives the Commission a variation of the undertaking; and (d) the varied undertaking contains a fixed principles term or condition (the corresponding fixed principles term or condition) that is identical to the original fixed principles term or condition; and (e) the notional fixed period for the corresponding fixed principles term or condition is identical to the notional fixed period for the original fixed principles term or condition; and (f) if there are qualifying circumstances in relation to the original fixed principles term or condition: (i) there are qualifying circumstances in relation to the corresponding fixed principles term or condition; and (ii) those qualifying circumstances are identical to the qualifying circumstances in relation to the original fixed principles term or condition; and (g) if there are qualifying circumstances in relation to the original fixed principles term or condition — none of those circumstances exist;

the Commission must not reject the variation for a reason that concerns: (h) the corresponding fixed principles term or condition; or (i) the notional fixed period for the corresponding fixed principles term or condition; or [page 1155] (j)

if there are qualifying circumstances in relation to the corresponding fixed principles term or condition — the specification of those circumstances.

[s 152CBAA insrt Act 140 of 2010 s 3 and Sch 1[166], opn 1 Jan 2011]

[14,177CBB] undertaking

Further information about

152CBB (1) This section applies if a person gives a special access undertaking to the Commission. (2) The Commission may request the person to give the Commission further information about the undertaking. (2A) If: (a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and (b) the person does not give the Commission the information within the time limit allowed by the Procedural Rules; the Commission may, by written notice given to the person, reject the undertaking. [subs (2A) insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(2B) Subsection (2A) has effect despite anything in this Division. [subs (2B) insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(2C) If the Commission makes a decision under subsection (2A) to reject the undertaking, subsection 152CBC(5) has effect as if the decision had been made under subsection 152CBC(2). [subs (2C) insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(3) If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the undertaking until the person gives the Commission the information. [subs (3) am Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(4) The Commission may withdraw its request for further information, in whole or in part.

[14,177CBC] Commission to accept or reject access undertaking 152CBC (1) This section applies if a person gives a special access undertaking to the Commission. (1A) Before the Commission makes a decision under subsection (2) in relation to the undertaking, the person may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the undertaking, so long as the modification is a modification that, under the Procedural Rules, is taken to be of a minor nature. [subs (1A) insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(2) Decision to accept or reject undertaking After considering the undertaking, the Commission must: (a) accept the undertaking; or (b) reject the undertaking. (3) Notice of decision If the Commission accepts the undertaking, the Commission must give the person a written notice stating that the undertaking has been accepted. [page 1156] (4) If the Commission rejects the undertaking, the Commission must give the person a written notice: (a) stating that the undertaking has been rejected; and (b) setting out the reasons for the rejection. (5) Commission to make decision within 6 months If the Commission

does not make a decision under subsection (2) about the undertaking within 6 months after receiving the undertaking, the Commission is taken to have made, at the end of that 6-month period, a decision under subsection (2) to accept the undertaking. (6) In calculating the 6-month period referred to in subsection (5), disregard: (aa) if: (i) the Commission has given a notice under section 152CBDA in relation to the undertaking; and (ii) no varied undertaking was given to the Commission in response to the notice; a day in the period specified in the notice; and (ab) if: (i) the Commission has given a notice under section 152CBDA in relation to the undertaking; and (ii) a varied undertaking was given to the Commission in response to the notice; and (iii) the Commission did not publish the varied undertaking under paragraph 152CBD(2)(d); a day in the period: (iv) beginning on the day in which the notice was given; and (v) ending when the varied undertaking was given to the Commission in response to the notice; and (ac) if: (i) the Commission has given a notice under section 152CBDA in relation to the undertaking; and (ii) a varied undertaking was given to the Commission in response to the notice; and (iii) the varied undertaking was published under paragraph 152CBD(2)(d); a day in the period: (iv) beginning on the day on which the notice was given; and (v) ending at the end of the time specified by the Commission when it published the varied undertaking; and (a) if paragraph (ac) does not apply and the Commission has published

the undertaking under paragraph 152CBD(2)(d) — a day in the period: (i) beginning on the date of publication; and (ii) ending at the end of the time limit specified by the Commission when it published the undertaking; and (b) if the Commission has requested further information under section 152CBB in relation to the undertaking — a day during any part of which the request, or any part of the request, remains unfulfilled. [subs (6) am Act 140 of 2010 s 3 and Sch 1[167], [168], opn 1 Jan 2011]

[page 1157] (7) Extension of decision-making period The Commission may, by written notice given to the person, extend or further extend the 6-month period referred to in subsection (5), so long as: (a) the extension or further extension is for a period of not more than 3 months; and (b) the notice includes a statement explaining why the Commission has been unable to make a decision on the undertaking within that 6-month period or that 6-month period as previously extended, as the case may be. (8) As soon as practicable after the Commission gives a notice under subsection (7), the Commission must cause a copy of the notice to be made available on the internet. [subs (8) am Act 8 of 2010 s 3 and Sch 5, Pt 2[137(a)], opn 1 Mar 2010]

[14,177CBCA]

Serial undertakings

152CBCA If: (a) a person gives a special access undertaking (the first special access undertaking) to the Commission; and (b) the Commission rejects the first special access undertaking; and (c) the person subsequently gives another special access undertaking to the Commission; and

the Commission is satisfied that any or all of the provisions of the (d) first special access application are materially similar to any or all of the provisions of the other special access undertaking; the Commission may refuse to consider the other special access undertaking. [s 152CBCA insrt Act 140 of 2010 s 3 and Sch 1[169], opn 1 Jan 2011]

[14,177CBD] undertaking

Criteria for accepting access

152CBD (1) This section applies if a person gives the Commission a special access undertaking relating to a service. (2) The Commission must not accept the undertaking unless: (a) if paragraph 152CBA(1)(a) applies — the Commission is satisfied that: (i) the terms and conditions referred to in paragraph 152CBA(3) (b) would be consistent with the obligations referred to in paragraph 152CBA(3)(a); and (ii) those terms and conditions are reasonable; and (b) if paragraph 152CBA(1)(b) applies — the Commission is satisfied that: (i) the terms and conditions referred to in subsection 152CBA(3A) would be consistent with the obligations referred to in section 152AXB; and (ii) those terms and conditions are reasonable; and (c) the Commission is satisfied that the undertaking is consistent with any Ministerial pricing determination; and (ca) if subsection 152CBA(3B) applies — the Commission is satisfied that: (i) the conduct referred to in paragraph 152CBA(3B)(a) will promote the long-term interests of end-users of carriage services or of services supplied by means of carriage services; and [page 1158]

(ii) the terms and conditions referred to in paragraph 152CBA(3B)(b) are reasonable; and (cb) if subsection 152CBA(3C) applies — the Commission is satisfied that the conduct specified in accordance with that subsection will promote the long-term interests of end-users of carriage services or of services supplied by means of carriage services; and (d) the Commission has: (i) published the undertaking and invited people to make submissions to the Commission on the undertaking; and (ii) considered any submissions that were received within the time limit specified by the Commission when it published the undertaking. Note: Section 152AH contains a list of matters to be taken into account in determining whether terms and conditions are reasonable. [subs (2) am Act 140 of 2010 s 3 and Sch 1[170], opn 1 Jan 2011; Act 23 of 2011 s 3 and Sch 1 items 75, 76, opn 13 Apr 2011]

(3) Subsection (2) has effect subject to subsection 152CBAA(5) (fixed principles terms and conditions). [subs (3) insrt Act 140 of 2010 s 3 and Sch 1[171], opn 1 Jan 2011]

(4) If the undertaking provides that a term or condition specified in the undertaking is a fixed principles term or condition for a period that, under the undertaking, is expressed to be the notional fixed period for the fixed principles term or condition, the Commission must refuse to accept the undertaking if the Commission considers that: (a) the fixed principles term or condition should not be a fixed principles term or condition; or (b) that notional fixed period should not be the notional fixed period for the fixed principles term or condition; or (c) if the undertaking provides that one or more specified circumstances are qualifying circumstances in relation to the fixed principles term or condition — any of the qualifying circumstances should not be qualifying circumstances in relation to the fixed principles term or condition; or (d) if the undertaking does not provide that particular circumstances are qualifying circumstances in relation to the fixed principles term or condition — those circumstances should be qualifying

circumstances in relation to the fixed principles term or condition. [subs (4) insrt Act 140 of 2010 s 3 and Sch 1[171], opn 1 Jan 2011]

(5) Subsection (4) has effect subject to subsection 152CBAA(5) (fixed principles terms and conditions). [subs (5) insrt Act 140 of 2010 s 3 and Sch 1[171], opn 1 Jan 2011]

(5A) If: (a) the undertaking contains price-related terms and conditions relating to the supply of a service; and (b) the price-related terms and conditions are reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities; then: (c) the Commission must not reject the undertaking for a reason that concerns the price-related terms and conditions; and [page 1159] (d) paragraph (2)(b) does not apply to the price-related terms and conditions. [subs (5A) insrt Act 23 of 2011 s 3 and Sch 1 item 76A, opn 13 Apr 2011]

(5B) In subsection (5A), eligible services, price-related terms and conditions, uniform national pricing and utilities have the same meaning as in section 151DA. [subs (5B) insrt Act 23 of 2011 s 3 and Sch 1 item 76A, opn 13 Apr 2011]

(5C) If a refusal is authorised under subsection 151DA(2) or (3) for the purposes of subsection 51(1): (a) the Commission must not reject the undertaking for a reason that concerns that refusal; and (b) paragraph (2)(b) of this section does not apply to that refusal. [subs (5C) insrt Act 23 of 2011 s 3 and Sch 1 item 76A, opn 13 Apr 2011]

(6) If a special access undertaking is given to the Commission in response to a notice under section 152CBDA, the Commission is not required to publish the undertaking under paragraph (2)(d) of this section unless the

Commission is satisfied that: (a) the variations specified in the notice are not of a minor nature; or (b) the variations specified in the notice are likely to have a material adverse effect on the legitimate commercial interests of any person. [subs (6) insrt Act 140 of 2010 s 3 and Sch 1[171], opn 1 Jan 2011]

SECTION 152CBD GENERALLY [14,177CBD.5] Overview The provision specifies the matters in relation to which the commission must be satisfied before accepting an undertaking. Under s 152CBD(2)(a) the commission must not accept an undertaking unless it is satisfied that the terms and conditions are consistent with the special access obligations in s 152CBA. The commission is not required to assess the undertaking for consistency. It is to assess the terms and conditions for consistency: Seven Network Ltd v ACCC (2007) 164 FCR 127; 245 ALR 68; [2007] FCA 1929; BC200711069 at [67] per Buchanan J. ________________________

[14,177CBDA] undertaking

Variation of special access

152CBDA (1) This section applies if a person gives a special access undertaking (the original undertaking) to the Commission. (2) The Commission may give the person a written notice stating that, if the person: (a) makes such variations to the original undertaking as are specified in the notice; and (b) gives the varied undertaking to the Commission within the period specified in the notice; the Commission will consider the varied undertaking under section 152CBC as if the varied undertaking had been given to the Commission instead of the original undertaking. (3) If the person gives the Commission a varied undertaking in response to the notice, the Commission must consider the varied undertaking under

section 152CBC as if the varied undertaking had been given to the Commission instead of the original undertaking. [page 1160] (4) The Commission does not have a duty to consider whether to give a notice under subsection (2). [s 152CBDA insrt Act 140 of 2010 s 3 and Sch 1[172], opn 1 Jan 2011]

[14,177CBE]

Extension of access undertaking

152CBE (1) This section applies if: (a) a special access undertaking is given by a person; and (b) the undertaking is in operation; and (c) the undertaking provides for the person to extend the expiry time of the undertaking, so long as the extension is approved by the Commission; and (d) the undertaking sets out criteria that are to be applied by the Commission in deciding whether to approve the extension. (2) The person may apply to the Commission for approval of the extension. The application must be made in the 12-month period ending at the expiry time. (3) An application under subsection (2) must be: (a) in writing; and (b) in a form approved in writing by the Commission. (4) After considering the application, the Commission must decide whether to: (a) approve the extension; or (b) refuse to approve the extension. (5) The Commission must approve the extension if the Commission is satisfied that the criteria referred to in paragraph (1)(d) have been met. (6) If the Commission approves the extension, the Commission must give the person a written notice stating that the extension has been approved. (7) If the Commission refuses to approve the extension, the Commission

must give the person a written notice: (a) stating that the Commission has refused to approve the extension; and (b) setting out the reasons for the refusal. (8) In this section, a reference to an extension includes a reference to a further extension.

[14,177CBF]

Duration of access undertaking

152CBF (1) This section applies if a person gives the Commission a special access undertaking relating to a service. (2) If the Commission accepts the undertaking: (a) the undertaking comes into operation at the time of acceptance; and (b) the undertaking continues in operation until: (i) it expires; or (ii) it is withdrawn as mentioned in section 152CBI; even if, in the case of an undertaking covered by subsection 152CBA(3), the service becomes an active declared service. [subs (2) am Act 23 of 2011 s 3 and Sch 1 item 77, opn 13 Apr 2011]

(3) In this section: active declared service has the same meaning as in section 152AR (disregarding subsection 152AL(7)). [page 1161]

[14,177CBG]

Variation of access undertakings

152CBG (1) This section applies if a special access undertaking given by a person is in operation. (2) The person may give the Commission a variation of the undertaking. (2A) Before the Commission makes a decision under subsection (3) in relation to the variation, the person may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the

variation, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature. [subs (2A) insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(3) Decision to accept or reject variation After considering the variation, the Commission must decide to: (a) accept the variation; or (b) reject the variation. (4) Section 152CBD applies to the variation in a corresponding way to the way in which it applies to an undertaking. However, if the variation is a variation that, under the Procedural Rules, is taken to be a variation of a minor nature, the Commission is not required to comply with paragraph 152CBD(2)(d) in relation to the variation. [subs (4) am Act 119 of 2006 s 3 and Sch 7[20], opn 24 Mar 2006]

(4A) Subsection (4) has effect subject to subsection 152CBAA(6) (fixed principles terms and conditions). [subs (4A) insrt Act 140 of 2010 s 3 and Sch 1[173], opn 1 Jan 2011]

(5) Notice of decision If the Commission accepts the variation, the Commission must give the person a written notice: (a) stating that the variation has been accepted; and (b) setting out the terms of the variation. (6) If the Commission rejects the variation, the Commission must give the person a written notice: (a) stating that the variation has been rejected; and (b) setting out the reasons for the rejection. (7) Commission to make decision within 6 months If the Commission does not make a decision under subsection (3) about the variation within 6 months after receiving the variation, the Commission is taken to have made, at the end of that 6-month period, a decision under subsection (3) to accept the variation. (8) In calculating the 6-month period referred to in subsection (7), disregard: (a) if the Commission has published the variation under paragraph 152CBD(2)(d) — a day in the period: (i) beginning on the date of publication; and (ii) ending at the end of the time limit specified by the

Commission when it published the variation; and (b) if the Commission has requested further information under section 152CBH in relation to the variation — a day during any part of which the request, or any part of the request, remains unfulfilled. [page 1162] (9) Extension of decision-making period The Commission may, by written notice given to the person, extend or further extend the 6-month period referred to in subsection (7), so long as: (a) the extension or further extension is for a period of not more than 3 months; and (b) the notice includes a statement explaining why the Commission has been unable to make a decision on the variation within that 6month period or that 6-month period as previously extended, as the case may be. (10) As soon as practicable after the Commission gives a notice under subsection (9), the Commission must cause a copy of the notice to be made available on the internet. [subs (10) am Act 8 of 2010 s 3 and Sch 5, Pt 2[137(a)], opn 1 Mar 2010]

[14,177CBH] Further information about variation of access undertaking 152CBH (1) This section applies if a person gives the Commission a variation of a special access undertaking. (2) The Commission may request the person to give the Commission further information about the variation. (2A) If: (a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and (b) the person does not give the Commission the information within the time limit allowed by the Procedural Rules;

the Commission may, by written notice given to the person, reject the variation. [subs (2A) insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(2B) Subsection (2A) has effect despite anything in this Division. [subs (2B) insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(2C) If the Commission makes a decision under subsection (2A) to reject the variation, subsection 152CBG(7) has effect as if the decision had been made under subsection 152CBG(3). [subs (2C) insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(3) If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the variation until the person gives the Commission the information. [subs (3) am Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

(4) The Commission may withdraw its request for further information, in whole or in part.

[14,177CBI] undertaking

Voluntary withdrawal of

152CBI (1) This section applies if a special access undertaking given by a person is in operation. (2) The person may, by written notice given to the Commission, withdraw the undertaking if: (a) the service to which the undertaking relates is a declared service when the notice is given; or [page 1163] (b) both: (i) the service to which the undertaking relates is not a declared service when the notice is given; and (ii) at least 12 months before the notice is given, the person informed the Commission in writing that the person proposed

to withdraw the undertaking. (3) For the purposes of this section, in determining whether a service is a declared service, disregard subsections 152AL(7) and (8E). [subs (3) am Act 23 of 2011 s 3 and Sch 1 item 78, opn 13 Apr 2011]

[14,177CBIA] Special access undertakings prevail over inconsistent access determinations 152CBIA An access determination has no effect to the extent to which it is inconsistent with a special access undertaking that is in operation. [s 152CBIA insrt Act 140 of 2010 s 3 and Sch 1[174], opn 1 Jan 2011]

[14,177CBIB] Special access undertakings prevail over inconsistent binding rules of conduct 152CBIB Binding rules of conduct have no effect to the extent to which they are inconsistent with a special access undertaking that is in operation. [s 152CBIB insrt Act 140 of 2010 s 3 and Sch 1[174], opn 1 Jan 2011]

[14,177CBIC] Access agreements prevail over special access undertakings 152CBIC A special access undertaking has no effect to the extent to which it is inconsistent with an access agreement. [s 152CBIC insrt Act 140 of 2010 s 3 and Sch 1[174], opn 1 Jan 2011]

[14,177CBJ]

Proposed service

152CBJ In this Subdivision, a reference to a service includes a reference to a proposed service. Subdivision C — General provisions [Subdiv C insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[14,177CC]

Register of access undertakings

152CC (1) The Commission is to maintain a Register in which the Commission includes: (a) all access undertakings that have been accepted by the Commission (including those that are no longer in operation); and (b) all variations of access undertakings. (2) The Register is to be maintained by electronic means. [subs (2) am Act 140 of 2010 s 3 and Sch 1[175], opn 1 Jan 2011]

[page 1164] (3) The Register is to be made available for inspection on the Commission’s website. [subs (3) subst Act 140 of 2010 s 3 and Sch 1[176], opn 1 Jan 2011]

(4) The Register is not a legislative instrument. [subs (4) subst Act 140 of 2010 s 3 and Sch 1[176], opn 1 Jan 2011]

(5) [repealed] [subs (5) rep Act 140 of 2010 s 3 and Sch 1[176], opn 1 Jan 2011]

[14,177CD]

Enforcement of access undertakings

152CD (1) This section applies if an access undertaking given by a person (the first person) is in operation. [subs (1) am Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

(2) If: (a) the Commission; or (b) any person (the affected person) whose interests are affected by the undertaking; thinks that the first person has breached the access undertaking, the Commission or affected person may apply to the Federal Court for an order under subsection (3). [subs (2) am Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

(3) If the Federal Court is satisfied that the first person has breached the undertaking, the Court may make all or any of the following orders: (a) an order directing the first person to comply with the undertaking;

(b) an order directing the first person to compensate any other person who has suffered loss or damage as a result of the breach; (c) any other order that the Court thinks appropriate. [subs (3) am Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

(4) The Federal Court may discharge or vary an order granted under this section.

[14,177CDA] Deferral of consideration of an access undertaking etc 152CDA (1) The Procedural Rules may authorise the Commission to defer consideration of: (a) an access undertaking; or (b) a variation of an access undertaking. (2) Subsection (1) has effect despite anything in this Division. [s 152CDA insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

[14,177CE] 152CE 2011]

Review by Tribunal

[s 152CE rep Act 140 of 2010 s 3 and Sch 1[177], opn 1 Jan

SECTION 152CE GENERALLY [14,177CE.5] Overview A person whose interests are affected by a decision of the commission may apply to the tribunal for a review of the decision: see Re Telstra Corporation Ltd [2006] ACompT 4; BC200603967 per Goldberg J, Mr R Davey and Professor [page 1165] D Round;Application by Telstra Corporation Ltd [2010] ACompT 1 per Mansfield J, Mr R Steinwall and RF Shogren. This section was repealed by the Telecommunications Legislation

Amendment (Competition and Consumer Safeguards) Act 2010 No 140, effective 1 January 2011. ________________________

[14,177CF] 152CF 2011]

Functions and powers of Tribunal

[s 152CF rep Act 140 of 2010 s 3 and Sch 1[177], opn 1 Jan

SECTION 152CF GENERALLY [14,177CF.5] Overview A decision made by the tribunal on review is taken to be a decision of the commission under s 152CF(2). Section 152CF(4) limits the tribunal to material that was before the commission: Telstra Corporation Ltd (No 1) [2006] ACompT 7; BC20069373 at [21] per Goldberg J. See also Telstra Corporation Ltd (No 2) [2006] ACompT 10; BC200610089 per Goldberg J. However, there is no statutory limitation on the nature or extent of the submissions or contentions which may be advanced before the tribunal: Re Telstra Corporation Ltd [2006] ACompT 4; BC200603967 at [19] per Goldberg J, Mr R Davey and Professor D Round; Application by Optus Mobile Pty Ltd [2006] ACompT 8; BC200609592 at [17] per Goldberg J, Mr R Davey and Mr R Shogren; see Application by Telstra Corporation Ltd [2010] ACompT 1 at [152] per Mansfield J, Mr R Steinwall and RF Shogren. Just because a document is referred to in the statement given for the purposes of s 152CGA and just because a document falls within the scope of the documents under s 152CF(4), it does not follow automatically that the tribunal either will consider, or is bound to consider, and examine those documents: Telstra Corporation Ltd (No 1) [2006] ACompT 7; BC20069373 at [30] per Goldberg J. This section was repealed by the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 No 140, effective 1 January 2011. ________________________

[14,177CG] Provisions that do not apply in relation to a Tribunal review 152CG 2011]

[s 152CG rep Act 140 of 2010 s 3 and Sch 1[177], opn 1 Jan

[14,177CGA] Statement of reasons for reviewable decision — specification of documents 152CGA 2011]

[s 152CGA rep Act 140 of 2010 s 3 and Sch 1[177], opn 1 Jan

[14,177CGB] Access undertakings prevail over inconsistent arbitral determinations 152CGB 2011]

[s 152CGB rep Act 140 of 2010 s 3 and Sch 1[178], opn 1 Jan

DIVISION 6 — MINISTERIAL PRICING DETERMINATIONS

[14,177CH]

Ministerial pricing determinations

152CH (1) The Minister may, by legislative instrument, make a determination [page 1166] setting out principles dealing with price-related terms and conditions relating to the standard access obligations. The determination is to be known as a Ministerial pricing determination. Note 3A: Subsection 152CDB(2) provides that the Commission must not accept a special access undertaking unless the undertaking is consistent with any Ministerial pricing determination. Note 4: Subsection 152CI(1) provides that a provision of an access

undertaking has no effect to the extent that the provision is inconsistent with any Ministerial pricing determination. Note 5: Subsection 152CI(2) provides that a provision of an access determination has no effect to the extent that the provision is inconsistent with any Ministerial pricing determination. Note 5A: Subsection 152CI(3) provides that a provision of binding rules of conduct have no effect to the extent that the provision is inconsistent with any Ministerial pricing determination. [subs (1) am Act 140 of 2010 s 3 and Sch 1[179]–[181], opn 1 Jan 2011; Act 103 of 2013 s 3 and Sch 3 item 73, opn 29 June 2013]

(2) [subs (2) rep Act 103 of 2013 s 3 and Sch 3 item 74, opn 29 June 2013] (3) In this section: price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.

[14,177CI] Undertakings, access determinations and binding rules of conduct that are inconsistent with Ministerial pricing determinations 152CI (1) If a provision of an access undertaking is inconsistent with any Ministerial pricing determination, the provision has no effect to the extent of the inconsistency. (2) If a provision of an access determination is inconsistent with any Ministerial pricing determination, the provision has no effect to the extent of the inconsistency. [subs (2) subst Act 140 of 2010 s 3 and Sch 1[182], opn 1 Jan 2011]

(3) If a provision of binding rules of conduct is inconsistent with any Ministerial pricing determination, the provision has no effect to the extent of the inconsistency. [subs (3) insrt Act 140 of 2010 s 3 and Sch 1[182], opn 1 Jan 2011]

[14,177CJ] Register of Ministerial pricing determinations

152CJ (1) The Commission must keep a Register of Ministerial pricing determinations. (2) The Register is to be maintained by electronic means. [subs (2) am Act 140 of 2010 s 3 and Sch 1[183], opn 1 Jan 2011]

(3) The Register is to be made available for inspection on the Commission’s website. [subs (3) subst Act 140 of 2010 s 3 and Sch 1[184], opn 1 Jan 2011]

(4) The Register is not a legislative instrument. [subs (4) subst Act 140 of 2010 s 3 and Sch 1[184], opn 1 Jan 2011]

[page 1167] (5) [repealed] [subs (5) rep Act 140 of 2010 s 3 and Sch 1[184], opn 1 Jan 2011]

DIVISION 6A — SUPPLY OF SERVICES BY NBN CORPORATIONS [Div 6A insrt Act 23 of 2011 s 3 and Sch 1 item 79, opn 13 Apr 2011]

[14,177CJA] corporations

Supply of services by NBN

152CJA (1) An NBN corporation must not supply an eligible service (within the meaning of section 152AL) to another person unless: (a) the service is a declared service under subsection 152AL(8A); or (b) both: (i) the NBN corporation has formulated a standard form of access agreement that relates to access to the service; and (ii) the standard form of access agreement is available on the NBN corporation’s website; or (c) both: (i) a special access undertaking given by the NBN corporation is in operation; and (ii) the undertaking relates to the service. (2) If:

(a) as the result of a request made by an access seeker under section 152AXB, an NBN corporation is subject to a category B standard access obligation in relation to a declared service; and (b) the NBN corporation has formulated a standard form of access agreement that relates to access to the service; and (c) the standard form of access agreement is available on the NBN corporation’s website; and (d) the access seeker requests the NBN corporation to enter into an access agreement that: (i) relates to access to the service; and (ii) sets out terms and conditions that are the same as the terms and conditions set out in the standard form of access agreement; the NBN corporation must comply with the request mentioned in paragraph (d). Note: An NBN corporation will not be subject to a category B standard access obligation in the circumstances set out in subsection 152AXB(3) or (6). (3) If an access seeker does not make a request under paragraph (2)(d), this Part does not, by implication, prevent the NBN corporation and the access seeker from entering into an access agreement that sets out terms and conditions that are not the same as the terms and conditions set out in the standard form of access agreement.

[14,177CJB]

Mandatory NBN services

152CJB (1) Scope This section applies if a condition of a carrier licence held by an NBN corporation requires the NBN corporation to comply with this section in relation to a specified eligible service (within the meaning of section 152AL) that is [page 1168] supplied, or is capable of being supplied, by the NBN corporation (whether

to itself or other persons). Note 1: See section 41 of the National Broadband Network Companies Act 2011. Note 2: For declaration of carrier licence conditions, see section 63 of the Telecommunications Act 1997. (2) Compliance by NBN corporation The NBN corporation must, within 90 days after the carrier licence condition comes into force: (a) both: (i) formulate a standard form of access agreement that relates to access to the service; and (ii) make the standard form of access agreement available on the NBN corporation’s website; or (b) give the Commission a special access undertaking in connection with the provision of access to the service. (3) If: (a) the NBN corporation, in accordance with paragraph (2)(b), gives the Commission a special access undertaking in connection with the provision of access to the service; and (b) the Commission rejects the undertaking; the NBN corporation must, within 90 days after the rejection of the undertaking: (c) formulate a standard form of access agreement that relates to access to the service; and (d) make the standard form of access agreement available on the NBN corporation’s website. (4) If the NBN corporation, in accordance with (a) subparagraph (2)(a)(ii); or (b) paragraph (3)(d); makes a standard form of access agreement available on the NBN corporation’s website, the NBN corporation must ensure that a standard form of access agreement that: (c) relates to access to the service; and (d) is formulated by the NBN corporation; is available on the NBN corporation’s website at all times during the remainder of the period when the carrier licence condition is in force.

(5) If: (a) the NBN corporation, in accordance with paragraph (2)(b), gives the Commission a special access undertaking in connection with the provision of access to the service; and (b) the Commission accepts the undertaking; and (c) the undertaking subsequently ceases to be in operation; the NBN corporation must ensure that a standard form of access agreement that: (d) relates to access to the service; and (e) is formulated by the NBN corporation; is available on the NBN corporation’s website at all times during the remainder of the period when the carrier licence condition is in force. [page 1169]

[14,177CJC]

Carrier licence condition

152CJC A carrier licence held by an NBN corporation is subject to a condition that the NBN corporation must comply with any rules in section 152CJA that are applicable to the NBN corporation. Note: See also section 62D of the Telecommunications Act 1997.

[14,177CJD]

Service provider rule

152CJD (1) In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act. (2) If an NBN corporation is a service provider, the NBN corporation must comply with any rules in section 152CJA that are applicable to the NBN corporation.

[14,177CJE] 152CJE

Judicial enforcement of obligations

(1) If the Federal Court is satisfied that an NBN corporation

has contravened an obligation imposed by section 152CJA or 152CJB, the Court may, on the application of: (a) the Commission; or (b) any person whose interests are affected by the contravention; make all or any of the following orders: (c) an order directing the NBN corporation to comply with the obligation; (d) an order directing the NBN corporation to compensate any other person who has suffered loss or damage as a result of the contravention; (e) any other order that the Court thinks appropriate. (2) The Federal Court may discharge or vary an order granted under this section.

[14,177CJF]

Standard form of access agreement

152CJF For the purposes of this Part, if, at a particular time, a service is not a declared service, a standard form of access agreement relating to access to the service may be formulated by an NBN corporation at that time on the assumption that the service is a declared service.

[14,177CJG] When NBN corporation is not capable of supplying a carriage service 152CJG (1) Condition of a carrier licence If a condition of a carrier licence held by an NBN corporation prohibits the NBN corporation from supplying a specified carriage service to carriers or service providers, then, for the purposes of: (a) this Part; and (b) subsections 41(1) and (2) of the National Broadband Network Companies Act 2011; the NBN corporation is taken not to be capable of supplying the service. Note: See subsection 41(3) of the National Broadband Network Companies Act 2011. (2) Avoidance of doubt Subsection (1) is enacted for the avoidance of

doubt. [page 1170] DIVISION 6B — EXPLANATORY MATERIAL RELATING TO ANTIDISCRIMINATION PROVISIONS [Div 6B insrt Act 23 of 2011 s 3 and Sch 1 item 79, opn 13 Apr 2011]

[14,177CJH] Explanatory material relating to anti-discrimination provisions 152CJH The Commission must: (a) as soon as practicable after the commencement of this section, publish on its website explanatory material relating to the following provisions: (ia) section 152ARA; (ib) section 152ARB; (i) section 152AXC; (ii) section 152AXD; (iii) subsections 152BCB(4A) to (4C) and (4G) to (4J); (iv) subsections 152BDA(4A) to (4C) and (4G) to (4J); and (b) keep that statement up-to-date. [s 152CJH am Act 23 of 2011 s 3 and Sch 1 items 112, 113 and 114, opn 12 Apr 2012]

DIVISION 7 — RELATIONSHIP BETWEEN THIS PART AND PART IIIA

[14,177CK] Part IIIA

Relationship between this Part and

152CK (1) A notification must not be given under section 44S in relation to an access dispute if: (a) the dispute relates to one or more aspects of access to a declared service (within the meaning of this Part); and

(b) the third party referred to in that section is a service provider (within the meaning of this Part). (2) The Commission must not accept an undertaking under section 44ZZA that relates to a declared service (within the meaning of this Part) if the terms and conditions set out in the undertaking relate to the provision of access to one or more service providers (within the meaning of this Part). (3) If: (a) an undertaking under section 44ZZA is in operation in relation to a particular service; and (b) at a particular time, the service becomes a declared service (within the meaning of this Part); the undertaking ceases to be in operation to the extent (if any) to which it sets out terms and conditions relating to the provision of access to one or more service providers (within the meaning of this Part). (4) For the purposes of this section, if a special access undertaking given by a person other than an NBN corporation is in operation, assume that subsection 152AL(7) has effect in relation to the undertaking as if paragraph 152AL(7)(c) had not been enacted. [subs (4) insrt Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; am Act 23 of 2011 s 3 and Sch 1 item 80, opn 13 Apr 2011]

[page 1171] (5) For the purposes of this section, if a special access undertaking given by an NBN corporation is in operation, assume that subsection 152AL(8E) has effect in relation to the undertaking as if paragraph 152AL(8E)(c) had not been enacted. [subs (5) insrt Act 23 of 2011 s 3 and Sch 1 item 81, opn 13 Apr 2011]

DIVISION 8 — RESOLUTION OF DISPUTES ABOUT ACCESS [Repealed] [Div 8 rep Act 140 of 2010 s 3 and Sch 1[185], opn 1 Jan 2011]

DIVISION 9 — REGISTERED AGREEMENTS FOR ACCESS TO DECLARED SERVICES

[Repealed] [Div 9 rep Act 140 of 2010 s 3 and Sch 1[186], opn 1 Jan 2011]

DIVISION 10 — HINDERING THE FULFILMENT OF A STANDARD ACCESS OBLIGATION ETC [Div 10 am Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002]

[14,177EF] Prohibition on hindering the fulfilment of a standard access obligation etc 152EF (1) A person must not engage in conduct for the purpose of preventing or hindering the fulfilment of: (a) a standard access obligation; or (b) a requirement imposed by an access determination; or (ba) a requirement imposed by binding rules of conduct; if the person is: (c) a carrier or a carriage service provider who supplies a declared service; or (d) a service provider to whom a declared service is being supplied by a carrier or carriage service provider; or (e) a body corporate that is related to a carrier or provider referred to in paragraph (c) or (d). [subs (1) subst Act 140 of 2002 s 3 and Sch 2, opn 19 Dec 2002; am Act 140 of 2010 s 3 and Sch 1[187], opn 1 Jan 2011]

(2) A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or from other relevant circumstances. This subsection does not limit the manner in which the purpose of a person may be established for the purposes of subsection (1). (3) Subsection (1) does not have effect before 1 July 1997.

[14,177EG] Enforcement of prohibition on hindering the fulfilment of a standard access

obligation etc 152EG (1) If the Federal Court is satisfied, on the application of any person, that another person (the obstructor) has engaged, is engaging, or is proposing to engage in conduct constituting a contravention of section 152EF, the Court may make all or any of the following orders: [page 1172] (a) an order granting an injunction on such terms as the Court thinks appropriate: (i) restraining the obstructor from engaging in the conduct; or (ii) if the conduct involves refusing or failing to do something — requiring the obstructor to do that thing; (b) an order directing the obstructor to compensate a person who has suffered loss or damage as a result of the contravention; (c) any other order that the Court thinks appropriate. (2) If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.

[14,177EH]

Consent injunctions

152EH On an application for an injunction under section 152EG, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.

[14,177EI]

Interim injunctions

152EI (1) The Federal Court may grant an interim injunction pending determination of an application under section 152EG. (2) If the Commission makes an application under section 152EG to the

Federal Court for an injunction, the Court must not require the Commission or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.

[14,177EJ] Factors relevant to granting a restraining injunction 152EJ The power of the Federal Court to grant an injunction under section 152EG restraining a person from engaging in conduct may be exercised whether or not: (a) it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or (b) the person has previously engaged in conduct of that kind; or (c) there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

[14,177EK] Factors relevant to granting a mandatory injunction 152EK The power of the Federal Court to grant an injunction under section 152EG requiring a person to do a thing may be exercised whether or not: (a) it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or (b) the person has previously refused or failed to do that thing; or (c) there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that thing.

[14,177EL] Discharge or variation of injunction or other order 152EL The Federal Court may discharge or vary an injunction or order granted under this Division.

[page 1173] DIVISION 10A — PROCEDURAL RULES [Div 10A insrt Act 119 of 2005 s 3 and Sch 7, opn 24 Sep 2005]

[14,177ELA]

Procedural Rules

152ELA (1) The Commission may, by written instrument, make rules: (a) making provision for or in relation to the practice and procedure to be followed by the Commission in performing functions, or exercising powers, under this Part; or (b) making provision for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Commission under this Part; or (c) prescribing matters required or permitted by any other provision of this Part to be prescribed by the Procedural Rules. (2) Rules under subsection (1) are to be known as Procedural Rules. (3) The Procedural Rules may make provision for or in relation to any or all of the following: (a) the confidentiality of information or documents given to the Commission by: (i) an applicant for an order under subsection 152ATA(1); or (ii) a person who gave the Commission an access undertaking or a variation of an access undertaking; (iii) [repealed] (b) [repealed] (c) the form and content of applications, undertakings, variations or other documents given to the Commission under this Part. (d) [repealed] [subs (3) am Act 140 of 2010 s 3 and Sch 1[188]–[193], opn 1 Jan 2011]

(4) Subsection (3) does not limit subsection (1). (5) The Procedural Rules may make provision for or in relation to a matter by empowering the Commission to make decisions of an administrative character.

(6) Subsection (5) does not limit subsection (1). [subs (6) subst Act 140 of 2010 s 3 and Sch 1[194], opn 1 Jan 2011]

(7) [repealed] [subs (7) rep Act 140 of 2010 s 3 and Sch 1[194], opn 1 Jan 2011]

(8) An instrument under subsection (1) is a legislative instrument. [subs (8) am Act 126 of 2015 s 3 and Sch 1 item 148, opn 5 Mar 2016]

Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.

[14,177ELB]

Public consultation

152ELB (1) Before making any Procedural Rules, the Commission must: (a) publish a draft of the Procedural Rules on the Commission’s website and invite people to make submissions to the Commission on the draft Procedural Rules; and [page 1174] (b) consider any submissions that are received within the time limit specified by the Commission when it published the draft Procedural Rules. [subs (1) am Act 8 of 2010 s 3 and Sch 5, Pt 1[125], opn 1 Mar 2010]

(2) The time limit specified by the Commission must be at least 30 days after the day of publication of the draft Procedural Rules.

[14,177ELC] Plan for the development of Procedural Rules 152ELC (1) Within 6 months after the commencement of this section, the Commission must: (a) prepare a written plan setting out: (i) an outline of the Commission’s proposals for making Procedural Rules; and

(ii) an indicative timetable for making those Procedural Rules; and (b) make a copy of the plan available on the Commission’s website. [subs (1) am Act 8 of 2010 s 3 and Sch 5, Pt 1[126], opn 1 Mar 2010]

(2) A failure to comply with the plan does not affect the validity of an instrument under subsection 152ELA(1). (3) The plan is not a legislative instrument. [subs (3) am Act 126 of 2015 s 3 and Sch 1 item 148, opn 5 Mar 2016]

DIVISION 11 — MISCELLANEOUS

[14,177ELD] property

Compensation for acquisition of

152ELD (1) If the operation of this Part would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person. (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines. (3) In this section: acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. just terms has the same meaning as in paragraph 51(xxxi) of the Constitution. this Part includes Division 2 of Part 2 of Schedule 1 to the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010. [s 152ELD insrt Act 140 of 2010 s 3 and Sch 1[195], opn 1 Jan 2011]

[14,177EM]

Continuity of partnerships

152EM For the purposes of this Part, a change in the composition of a partnership does not affect the continuity of the partnership.

[page 1175]

[14,177EN]

Treatment of partnerships

152EN This Part applies to a partnership as if the partnership were a person, but it applies with the following changes: (a) obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners; (b) any offence against this Part that would otherwise be committed by the partnership is taken to have been committed by each partner who: (i) aided, abetted, counselled or procured the relevant act or omission; or (ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).

[14,177EO] agents

Conduct by directors, servants or

152EO (1) If, in a proceeding under this Part in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and (b) that the director, servant or agent had the state of mind. (2) Any conduct engaged in on behalf of a body corporate: (a) by a director, servant or agent of the body corporate within the scope of the person’s actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or

agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent; is taken for the purposes of this Part to have been engaged in also by the body corporate, unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct. (3) A reference in subsection (1) to the state of mind of a person includes a reference to: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person’s reasons for the intention, opinion, belief or purpose. (4) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.

[14,177EOA]

Review of operation of this Part etc

152EOA (1) Before 30 June 2014, the Minister must cause to be conducted a review of the operation of: (a) this Part; and (b) the remaining provisions of this Act so far as they relate to this Part; and [page 1176] (c) Division 2 of Part 2 of the National Broadband Network Companies Act 2011; and (d) the remaining provisions of the National Broadband Network Companies Act 2011 so far as they relate to Division 2 of Part 2 of that Act. [subs (1) am Act 23 of 2011 s 3 and Sch 1 item 81A, opn 13 Apr 2011]

(1A) Without limiting subsection (1), a review under that subsection must consider the following matters:

(a) the supply by NBN corporations of eligible services covered by section 10, 11, 12, 13, 14, 15 or 16 of the National Broadband Network Companies Act 2011; (b) the types of eligible services that have been, are being, or are proposed to be, supplied by NBN corporations. [subs (1A) insrt Act 23 of 2011 s 3 and Sch 1 item 81A, opn 13 Apr 2011]

(1B) For the purposes of subsection (1A), eligible service has the same meaning as in section 152AL. [subs (1B) insrt Act 23 of 2011 s 3 and Sch 1 item 81A, opn 13 Apr 2011]

(2) A review under subsection (1) must make provision for public consultation. (3) The Minister must cause to be prepared a report of a review under subsection (1). (4) The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report. [s 152EOA insrt Act 140 of 2010 s 3 and Sch 1[195A], opn 1 Jan 2011]

[14,177EP] Regulations about fees for inspection etc of registers 152EP The regulations may make provision about the inspection of registers maintained under this Part (including provision about fees).

[14,177EQ] Assistance to independent telecommunications adjudicator 152EQ (1) For the purposes of this section, the independent telecommunications adjudicator is a company that: (a) is limited by guarantee; and (b) is identified, in an undertaking in force under section 577A of the Telecommunications Act 1997, as the independent telecommunications adjudicator for the purpose of this section. (2) The Commission may assist the independent telecommunications adjudicator.

(3) The assistance may include the following: (a) the provision of information (including protected information within the meaning of section 155AAA); (b) the provision of advice; (c) the making available of resources and facilities (including secretariat services and clerical assistance). [s 152EQ subst Act 140 of 2010 s 3 and Sch 1 item 67, opn 6 Mar 2012]

[page 1177]

[14,177ER] Telstra

Voluntary undertakings given by

152ER (1) Scope This section applies if an undertaking given by Telstra is in force under section 577A, 577C or 577E of the Telecommunications Act 1997. Note 1: Section 577A of the Telecommunications Act 1997 deals with undertakings about structural separation. Note 2: Section 577C of the Telecommunications Act 1997 deals with undertakings about hybrid fibre-coaxial networks. Note 3: Section 577E of the Telecommunications Act 1997 deals with undertakings about subscription television broadcasting licences. (2) Commission must have regard to Telstra’s conduct If Telstra has engaged, or is required to engage, in conduct in order to comply with the undertaking, then, in performing a function, or exercising a power, under this Part in relation to Telstra, the Commission must have regard to the conduct to the extent that the conduct is relevant. (3) Commission must not prevent Telstra from complying with the undertaking The Commission must not perform a function, or exercise a power, under this Part so as to prevent Telstra from complying with the undertaking. [s 152ER insrt Act 140 of 2010 s 3 and Sch 1[39], opn 1 Jan 2011]

[page 1179] PART XID — SEARCH AND SEIZURE [Pt XID insrt Act 131 of 2006 s 3 and Sch 8[4], opn 1 Jan 2007] INTRODUCTION TO PART XID [14,178.5] Overview This Part was inserted by the Trade Practices Amendment Act (No 1) 2006 following the recommendations of the Dawson Committee. See [10,690.5]. The Dawson Committee recommended that the commission be required to obtain a warrant to enter premises and inspect documents. It considered that such a requirement would ensure that there was no question of lack of impartiality or unreasonableness in relation to the process. The Part was amended by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. See [10,690ZZRA.5]. This Part requires the chairperson of the commission to appoint suitably qualified inspectors to enter premises and remove material with the consent of the occupier or under the terms of a warrant issued by a magistrate.

________________________ DIVISION 1 — PRELIMINARY

[14,178] 154 •

• • •

Simplified outline

The following is a simplified outline of this Part: This Part sets out an enforcement regime for the purposes of finding out whether there has been a contravention of this Act, Part 20 of the Telecommunications Act 1997 or Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999. Division 2 provides for the appointment of inspectors and the issue of identity cards. Division 3 deals with entry to premises with the consent of the occupier of the premises. Division 4 deals with entry to premises under a search warrant issued by a magistrate. It sets out the powers available under a search warrant, the obligations of persons entering the premises and the rights and responsibilities of the occupier of the premises.

Division 5 contains some general provisions relating to the • operation of electronic equipment at premises. Note: See also section 155 (which deals with the obtaining of information, documents and evidence).

[14,178A]

Definitions

*154A

In this Part: consultant means a person engaged under section 27A. contravention, in relation to a law, includes an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence against that law.

[def insrt Act 59 of 2009 s 3 and Sch 2[7], opn 24 July 2009]

*Editor’s note: Item 52(a) of Sch 2 of Act 59 of 2009 provides that amendments made to s 154A by Sch 2 “to the extent to which that section relates to Division 4 of Part XID” of the Trade Practices Act 1974 applies “in relation to search warrants issued after the commencement of this item” (24 July 2009).

[page 1180]

data includes: (a) information in any form; or (b) any program (or part of a program). [def insrt Act 59 of 2009 s 3 and Sch 2[8], opn 24 July 2009]

data held in a computer includes: (a) data held in any removable data storage device for the time being held in a computer; or (b) data held in a data storage device on a computer network of which the computer forms a part. [def insrt Act 59 of 2009 s 3 and Sch 2[9], opn 24 July 2009]

data storage device means a thing containing, or designed to contain, data for use by a computer. [def insrt Act 59 of 2009 s 3 and Sch 2[10], opn 24 July 2009]

evidential material means a document or other thing that may afford evidence relating to: (a) a contravention of this Act; or (b) a contravention of Part 20 of the Telecommunications Act 1997; or (c) a contravention Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or (d) a contravention of section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part. [def subst Act 59 of 2009 s 3 and Sch 2[11], opn 24 July 2009]

executing officer, for a search warrant, means: (a) the inspector named in the warrant as being responsible for executing the warrant; or (b) if that inspector does not intend to be present at the execution of the warrant — another inspector whose name has been written in the warrant by the inspector so named; or (c) another inspector whose name has been written in the warrant by the inspector last named in the warrant. [def subst Act 59 of 2009 s 3 and Sch 2[12], opn 24 July 2009]

inspector means a person appointed as an inspector under section 154B. occupier, in relation to premises, includes a person present at the premises who apparently represents the occupier. officer assisting, for a search warrant, means: (a) an inspector who is assisting in executing the warrant; or (b) a person authorised under section 154K in relation to the warrant. premises means: (a) an area of land or any other place (whether or not it is enclosed or built on); or (b) a building or other structure; or (c) a vehicle, vessel or aircraft; or (d) a part of any such premises. search warrant means a warrant issued by a magistrate under section 154X or signed by a magistrate under section 154Y.

thing includes a thing in electronic or magnetic form. [page 1181] SECTION 154A GENERALLY [14,178A.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________ DIVISION 2 — APPOINTMENT OF INSPECTORS AND IDENTITY CARDS

[14,178B]

Appointment of inspectors

154B (1) The Chairperson may, by writing, appoint a member of the staff assisting the Commission to be an inspector. (2) Staff member to have suitable qualifications and experience The Chairperson must not do so unless he or she is satisfied that the staff member has suitable qualifications and experience to properly exercise the powers of an inspector. (3) Inspector to comply with Chairperson’s directions An inspector must comply with any directions of the Chairperson in exercising powers or performing functions as an inspector. SECTION 154B GENERALLY [14,178B.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178C]

Identity cards

154C (1) The Chairperson must issue an identity card to an inspector. (2) Form of identity card The identity card must: (a) be in the form prescribed by the regulations; and (b) contain a recent photograph of the inspector. (3) Offence A person commits an offence if: (a) the person has been issued with an identity card; and (b) the person ceases to be an inspector; and (c) the person does not return the identity card to the Chairperson as soon as practicable. Penalty: 1 penalty unit. (4) An offence against subsection (3) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (5) Card lost or destroyed Subsection (3) does not apply if the identity card was lost or destroyed. Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code. (6) Inspector must carry card An inspector must carry his or her identity card at all times when exercising powers or performing functions as an inspector. (7) Inspector must produce card on request An inspector is not entitled to exercise any powers under this Part in relation to premises if: (a) the occupier of the premises has requested the inspector to produce the inspector’s identity card for inspection by the occupier; and (b) the inspector fails to comply with the request. [page 1182] SECTION 154C GENERALLY [14,178C.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

DIVISION 3 — ENTRY TO PREMISES WITH CONSENT

[14,178D]

Entry with consent

154D (1) Entry An inspector may enter premises if: (a) the Commission, the Chairperson or a Deputy Chairperson has reasonable grounds for suspecting that there may be evidential material on the premises; and (b) the inspector obtains the consent of the occupier of the premises to enter the premises. [subs (1) am Act 159 of 2007 s 3 and Sch 1[11], opn 25 Sep 2007]

(2) The inspector may be accompanied by any one or more of the following persons (each of whom is an assistant): (a) another member of the staff assisting the Commission; (b) a consultant. (3) Obtaining consent Before obtaining the consent of a person to enter premises under this Division, the inspector must inform the person that the person may refuse consent. (4) A consent of a person is not effective for the purposes of this section unless it is voluntary. SECTION 154D GENERALLY [14,178D.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178E]

Powers in relation to premises

154E (1) The inspector or an assistant may do any of the following after entering premises under this Division: (a) search the premises, and any thing on the premises, for the evidential material; (b) make copies of the evidential material found on the premises; (c) operate electronic equipment at the premises to see whether the

evidential material is accessible by doing so; Note: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises). (d) remove the evidential material from the premises with the consent of the owner of the material; Note: See also subsection (2). (e) secure the evidential material, pending the obtaining of a search warrant to seize it; (f) take equipment and material onto the premises, and use it, for any of the above purposes. [page 1183] (2) Obtaining consent to remove evidential material Before obtaining the consent of a person to remove evidential material from premises under paragraph (1)(d), the inspector or an assistant must inform the person of the purpose for which the material is required and that the person may refuse consent. A consent of a person is not effective for the purposes of that paragraph unless the consent is voluntary. SECTION 154E GENERALLY [14,178E.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178F] premises

Operation of electronic equipment at

154F (1) If: (a) an inspector or an assistant enters premises under this Division; and (b) he or she believes on reasonable grounds that any data accessed by

operating electronic equipment at the premises (including data not held at the premises) might constitute evidential material; he or she may do only 1 of 2 things. [subs (1) subst Act 59 of 2009 s 3 and Sch 2[13], opn 24 July 2009]

(2) Removal of documents One thing he or she may do is operate the equipment or other facilities at the premises to put the data in documentary form and remove the documents so produced from the premises. [subs (2) am Act 59 of 2009 s 3 and Sch 2[14], [15], opn 24 July 2009]

(3) Removal of disk, tape or other storage device The other thing he or she may do is operate the equipment or other facilities at the premises to transfer the data to a disk, tape or other storage device that: (a) is brought to the premises for the exercise of the power; or (b) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises; and remove the disk, tape or other storage device from the premises. [subs (3) am Act 59 of 2009 s 3 and Sch 2[16], opn 24 July 2009]

SECTION 154F GENERALLY [14,178F.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________ DIVISION 4 — ENTRY TO PREMISES UNDER A SEARCH WARRANT* Subdivision A — Powers available under a search warrant

[14,178G] The things that are authorised by a search warrant 154G (1) A search warrant that is in force in relation to premises authorises the executing officer or an officer assisting to do any of the following:

*Editor’s note: Item 52(b) of Sch 2 of Act 59 of 2009 provides that amendments made to Div 4 of Pt XID by Sch 2 “apply in relation to search warrants issued after the commencement of this item” (24 July 2009).

[page 1184] (a) enter the premises; (b) search the premises, and any thing on the premises, for the kind of evidential material specified in the warrant, and seize things of that kind found on the premises; (c) make copies of the kind of evidential material specified in the warrant found on the premises; (d) operate electronic equipment at the premises to see whether the kind of evidential material specified in the warrant is accessible by doing so; Note: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises). (e) take equipment and material onto the premises, and use it, for any of the above purposes. (1A) In executing a search warrant that is in force in relation to premises, the executing officer or an officer assisting may: (a) for a purpose incidental to the execution of the warrant; or (b) with the written consent of the occupier of the premises; take photographs, or make video recordings, of the premises or of anything at the premises. [subs (1A) insrt Act 59 of 2009 s 3 and Sch 2[17], opn 24 July 2009]

(1B) If a search warrant in relation to premises is being executed, the executing officer and the officers assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises: (a) for not more than one hour; or (b) for a longer period if the occupier of the premises consents in writing. [subs (1B) insrt Act 59 of 2009 s 3 and Sch 2[17], opn 24 July 2009]

(2) Seizing other evidence If: (a) the executing officer or an officer assisting, in the course of searching for the kind of evidential material specified in the warrant, finds another thing that he or she believes on reasonable grounds to be evidence of: (i) an indictable offence against this Act; or (ii) an indictable offence against Part 20 of the Telecommunications Act 1997; or (iii) an indictable offence against Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or (iv) an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part; and (b) he or she believes on reasonable grounds that it is necessary to seize the other thing in order to prevent its concealment, loss or destruction; then he or she may seize that other thing. [subs (2) am Act 59 of 2009 s 3 and Sch 2[18], opn 24 July 2009]

SECTION 154G GENERALLY [14,178G.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________ [page 1185]

[14,178GA] processing

Removing things for examination or

154GA (1) A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a search warrant if:

(a) both of the following subparagraphs apply: (i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; (ii) there are reasonable grounds to believe that the thing contains or constitutes evidential material; or (b) the occupier of the premises consents in writing. (2) Notice to occupier If a thing is moved to another place for the purpose of examination or processing under subsection (1), the executing officer must, if it is practicable to do so: (a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and (b) allow the occupier or his or her representative to be present during the examination or processing. (3) Period of removal The thing may be moved to another place for examination or processing for no longer than 72 hours. (4) Extensions An executing officer may apply to a magistrate for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended. (5) The executing officer must give notice of the application to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application. (6) The magistrate may order an extension for a period specified in the order if the magistrate is satisfied that the extension is necessary. [s 154GA insrt Act 59 of 2009 s 3 and Sch 2[19], opn 24 July 2009]

[14,178H] premises

Operation of electronic equipment at

154H (1) If: (a) a search warrant is in force in relation to premises; and (b) the executing officer or an officer assisting believes on reasonable grounds that any data accessed by operating electronic equipment at the premises (including data not held at the premises) might

constitute evidential material of the kind specified in the warrant; he or she may do only 1 of 3 things. [subs (1) subst Act 59 of 2009 s 3 and Sch 2[20], opn 24 July 2009]

(2) Seizure One thing he or she may do is seize the equipment and any disk, tape or other associated device. Note: Subsection (5) sets out limitations on seizure. [page 1186] (3) Removal of documents Another thing he or she may do is operate the equipment or other facilities at the premises to put the data in documentary form and remove the documents so produced from the premises. Note: An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance — see section 154RA. [subs (3) am Act 59 of 2009 s 3 and Sch 2[21]–[23], opn 24 July 2009]

(4) Removal of disk, tape or other storage device The final thing he or she may do is operate the equipment or other facilities at the premises to transfer the data to a disk, tape or other storage device that: (a) is brought to the premises; or (b) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises; and remove the disk, tape or other storage device from the premises. Note: An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance — see section 154RA. [subs (4) am Act 59 of 2009 s 3 and Sch 2[24], [25], opn 24 July 2009]

(5) Limitation on seizure A person may seize a thing under subsection (2) only if: (a) it is not practicable to put the data in documentary form as mentioned in subsection (3) or to transfer the data as mentioned in subsection (4); or (b) possession of the thing by the occupier could constitute an offence

against a law of the Commonwealth. [subs (5) am Act 59 of 2009 s 3 and Sch 2[26], opn 24 July 2009]

SECTION 154H GENERALLY [14,178H.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178J] Securing electronic equipment for use by experts 154J (1) If a search warrant in relation to premises is being executed and the executing officer or an officer assisting believes on reasonable grounds that: (a) the kind of evidential material specified in the warrant may be accessible by operating electronic equipment at the premises; and (b) expert assistance is required to operate the equipment; and (c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with; he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise. (2) Notice to occupier The executing officer or officer assisting must give notice to the occupier of the premises of his or her intention to secure the equipment and of the fact that the equipment may be secured for up to 24 hours. (3) Period equipment may be secured The equipment may be secured: (a) for a period not exceeding 24 hours; or (b) until the equipment has been operated by the expert; whichever happens first. [page 1187]

(4) Extensions If the executing officer or officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of that period. (5) The executing officer or officer assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application. (6) The magistrate may order an extension for a period specified in the order if the magistrate is satisfied that the extension is necessary. SECTION 154J GENERALLY [14,178J.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________ Subdivision B — Availability of assistance and use of force in executing a search warrant

[14,178K]

Authorisation of officers assisting

154K The executing officer for a search warrant may, by writing, authorise a member of the Australian Federal Police, a member of the staff assisting the Commission, or a consultant, to assist in executing the warrant. [s 154K am Act 59 of 2009 s 3 and Sch 2[27], opn 24 July 2009]

SECTION 154K GENERALLY [14,178K.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178L] Availability of assistance and use of force in executing a search warrant

154L In executing a search warrant: (a) the executing officer may obtain such assistance as is necessary and reasonable in the circumstances; and (b) the executing officer, or another inspector who is an officer assisting, may use such force against persons and things as is necessary and reasonable in the circumstances; and (ba) a member of the Australian Federal Police who is an officer assisting may use such force against persons and things as is necessary and reasonable in the circumstances; and (c) a person who is not an inspector, but who is an officer assisting, may use such force against things as is necessary and reasonable in the circumstances. [s 154L am Act 59 of 2009 s 3 and Sch 2[28], opn 24 July 2009]

SECTION 154L GENERALLY [14,178L.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________ [page 1188] Subdivision C — Obligations of executing officer and officers assisting

[14,178M]

Announcement before entry

154M (1) Before any person enters premises under a search warrant, the executing officer must: (a) announce that he or she is authorised to enter the premises; and (b) give any person at the premises an opportunity to allow entry to the premises. (2) However, the executing officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate

entry to the premises is required to ensure that the effective execution of the warrant is not frustrated. SECTION 154M GENERALLY [14,178M.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178N] occupier

Details of warrant to be given to

154N If a search warrant in relation to premises is being executed and the occupier of the premises is present at the premises, the executing officer or an officer assisting must make available to the occupier a copy of the warrant or a copy of the form of warrant. SECTION 154N GENERALLY [14,178N.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________ Subdivision D — Occupier’s rights and responsibilities

[14,178P] Occupier entitled to observe search being conducted 154P (1) If a search warrant in relation to premises is being executed and the occupier of the premises is present at the premises, the occupier is entitled to observe the search being conducted. (2) The occupier’s right to observe the search being conducted ends if the occupier impedes the search. (3) This section does not prevent 2 or more areas of the premises being

searched at the same time. SECTION 154P GENERALLY [14,178P.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________ [page 1189]

[14,178Q] Occupier to provide reasonable facilities and assistance 154Q The occupier of premises in relation to which a search warrant is being executed must provide the executing officer and any officer assisting with all reasonable facilities and assistance for the effective exercise of their powers. Penalty: 30 penalty units. SECTION 154Q GENERALLY [14,178Q.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178R] Answering of questions or producing evidential material 154R (1) If a search warrant in relation to premises is being executed, the executing officer or an officer assisting may: (a) require a person at the premises to answer questions or produce evidential material to which the warrant relates; and (b) seize that evidential material.

(2) A person commits an offence if the person fails to comply with a requirement under subsection (1). Penalty: 30 penalty units or imprisonment for 12 months, or both. [subs (2) am Act 59 of 2009 s 3 and Sch 2[29], opn 24 July 2009]

(3) Self incrimination is no excuse An individual is not excused from answering a question or producing evidential material on the ground that the answer, or the production of the material, might tend to incriminate the individual or make the individual liable to a penalty. (4) However, the answer is not admissible in evidence against the individual in any criminal proceedings, penalty, other than: (a) proceedings for an offence against subsection (2); or (b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part. [subs (4) am Act 59 of 2009 s 3 and Sch 2[30], [31], opn 24 July 2009]

SECTION 154R GENERALLY [14,178R.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178RA] Person with computer knowledge to assist access etc 154RA (1) The executing officer for a search warrant may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following: (a) access data held in, or accessible from, a computer that is on premises to which the warrant relates; (b) transfer the data to a disk, tape or other storage device; (c) convert the data into documentary form. [page 1190]

(2) The magistrate may grant the order if the magistrate is satisfied that: (a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and (b) the specified person is: (i) reasonably suspected of having committed the contravention, or one or more of the contraventions, stated in the search warrant; or (ii) the owner or lessee of the computer; or (iii) an employee of the owner or lessee of the computer; and (c) the specified person has relevant knowledge of: (i) the computer or a computer network of which the computer forms a part; or (ii) measures applied to protect data held in, or accessible from, the computer. (3) A person commits an offence if: (a) the person is subject to an order under this section; and (b) the person engages in conduct; and (c) the person’s conduct breaches the order. Penalty for a contravention of this subsection: Imprisonment for 6 months. [s 154RA insrt Act 59 of 2009 s 3 and Sch 2[32], opn 24 July 2009]

Subdivision E — General provisions relating to seizure

[14,178S]

Copies of seized things to be provided

154S (1) If, under a search warrant relating to premises, the executing officer or an officer assisting seizes: (a) a document, film, computer file or other thing that can be readily copied; or (b) a storage device the information in which can be readily copied; then he or she must, if requested to do so by the occupier of the premises, give a copy of the thing or the information to the occupier as soon as practicable after the seizure. (2) However, subsection (1) does not apply if possession of the document, film, computer file, thing or information by the occupier could constitute an

offence against a law of the Commonwealth. SECTION 154S GENERALLY [14,178S.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178T] Receipts for things seized or moved under warrant 154T (1) If a thing is seized under a search warrant or moved under subsection 154GA(1), the executing officer or an officer assisting must provide a receipt for the thing. [subs (1) am Act 59 of 2009 s 3 and Sch 2[33], opn 24 July 2009]

(2) If 2 or more things are seized or moved, they may be covered in the one receipt. [subs (2) am Act 59 of 2009 s 3 and Sch 2[34], opn 24 July 2009] [heading am Act 59 of 2009 s 3 and Sch 2[33], opn 24 July 2009]

[page 1191] SECTION 154T GENERALLY [14,178T.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178U]

Return of seized things

154U (1) Subject to any contrary order of a court, if a person (the seizer) seizes a thing under this Division, the person must return it if: (a) the reason for its seizure no longer exists or it is decided that it is

not to be used in evidence; or (b) the period of 120 days after its seizure ends; whichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership. [subs (1) am Act 59 of 2009 s 3 and Sch 2[35], opn 24 July 2009]

(2) At the end of the 120 days specified in subsection (1), the seizer must take reasonable steps to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it), unless: (a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 120 days and have not been completed (including an appeal to a court in relation to those proceedings); or (b) an inspector may retain the thing because of an order under section 154V; or (c) the seizer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the thing. [subs (2) am Act 59 of 2009 s 3 and Sch 2[35], opn 24 July 2009]

SECTION 154U GENERALLY [14,178U.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178V] retained

Magistrate may permit a thing to be

154V (1) Application for extension An inspector may apply to a magistrate for an order that he or she may retain the thing for a further period if: (a) before the end of 120 days after the seizure; or (b) before the end of a period previously specified in an order of a magistrate under this section;

proceedings in respect of which the thing may afford evidence have not commenced. [subs (1) am Act 59 of 2009 s 3 and Sch 2[36], opn 24 July 2009]

(2) Grant of extension If the magistrate is satisfied that it is necessary for the inspector to continue to retain the thing for the purposes of an investigation as to whether there has been: (a) a contravention of this Act; or (b) a contravention of Part 20 of the Telecommunications Act 1997; or (c) a contravention of Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or [page 1192] (d) a contravention of section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part; the magistrate may order that the inspector may retain the thing for a period (not exceeding 3 years) specified in the order. [subs (2) am Act 59 of 2009 s 3 and Sch 2[37]–[41], opn 24 July 2009]

(3) Affect on interested parties Before making the application, the inspector must: (a) take reasonable steps to discover who has an interest in the retention of the thing; and (b) if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application. SECTION 154V GENERALLY [14,178V.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178W]

Disposal of things if there is no owner

or owner cannot be located 154W If: (a) a thing is seized under this Division; and (b) a person would otherwise be required to return the thing to its owner; and (c) there is no owner or the person cannot, despite making reasonable efforts, locate the owner; the person may dispose of the thing in such manner as he or she thinks appropriate. SECTION 154W GENERALLY [14,178W.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________ Subdivision F — Search warrants

Issue of search warrants 154X (1) Application for warrant An inspector may apply to a magistrate for a warrant under this section in relation to premises. (2) Issue of warrant The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that: (a) there is evidential material on the premises; or (b) there may be evidential material on the premises within the next 72 hours. Note: A magistrate who holds office under a law of a State or Territory may issue a warrant in relation to premises even if those premises are not in that State or Territory. [subs (2) am Act 59 of 2009 s 3 and Sch 2[42], opn 24 July 2009]

(3) However, the magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by

affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought. [page 1193] (4) Content of warrant The warrant must state: (a) a description of the premises to which the warrant relates; and (b) the kind of evidential material that is to be searched for under the warrant (including stating the contraventions to which the warrant relates); and (c) the name of the inspector who is to be responsible for executing the warrant; and (d) whether the warrant may be executed at any time of the day or night or during specified hours of the day or night; and (e) the day (not more than one week after the issue of the warrant) on which the warrant ceases to have effect. SECTION 154X GENERALLY [14,178X.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178Y]

Search warrants by telephone, fax etc

154Y (1) Application for warrant If, in an urgent case, an inspector considers it necessary to do so, the inspector may apply to a magistrate by telephone, fax or other electronic means for a warrant under section 154X in relation to premises. (2) Voice communication The magistrate may require communication by voice to the extent that it is practicable in the circumstances. (3) Information Before applying for the warrant, the inspector must prepare an information of the kind mentioned in subsection 154X(2) in relation to the premises that sets out the grounds on which the warrant is

sought. If it is necessary to do so, the inspector may apply for the warrant before the information is sworn or affirmed. (4) Issue of warrant If the magistrate is satisfied: (a) after having considered the terms of the information; and (b) after having received such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought; that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same warrant that the magistrate would issue under section 154X if the application had been made under that section. (5) Notification If the magistrate completes and signs the warrant, the magistrate must inform the applicant, by telephone, fax or other electronic means, of: (a) the terms of the warrant; and (b) the day on which and the time at which the warrant was signed; and (c) the day (not more than one week after the magistrate completes and signs the warrant) on which the warrant ceases to have effect. (6) Form of warrant The applicant must then complete a form of warrant in the same terms as the warrant completed and signed by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed. (7) Completed form of warrant to be given to magistrate The applicant must also, not later than the day after the day of expiry or execution of the warrant, whichever is the earlier, send to the magistrate: [page 1194] (a) the form of warrant completed by the applicant; and (b) the information referred to in subsection (3), which must have been duly sworn or affirmed. (8) Attachment The magistrate is to attach to the documents provided under subsection (7) the warrant completed by the magistrate.

(9) Authority of warrant A form of warrant duly completed under subsection (6) is authority for the same powers as are authorised by the warrant signed by the magistrate. (10) If: (a) it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and (b) the warrant signed by the magistrate authorising the exercise of the power is not produced in evidence; the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant. SECTION 154Y GENERALLY [14,178Y.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178Z]

Offences relating to warrants

154Z (1) An inspector must not make, in an application for a warrant, a statement that the inspector knows to be false or misleading in a material particular. Penalty: Imprisonment for 2 years. (2) An inspector must not: (a) state in a document that purports to be a form of warrant under section 154Y the name of a magistrate unless that magistrate issued the warrant; or (b) state on a form of warrant under that section a matter that, to the inspector’s knowledge, departs in a material particular from the form authorised by the magistrate; or (c) purport to execute, or present to another person, a document that purports to be a form of warrant under that section that the inspector knows: (i) has not been approved by a magistrate under that section; or (ii) departs in a material particular from the terms authorised by a

magistrate under that section; or (d) give to a magistrate a form of warrant under that section that is not the form of warrant that the inspector purported to execute. Penalty: Imprisonment for 2 years. SECTION 154Z GENERALLY [14,178Z.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________ [page 1195] Subdivision G — Powers of magistrates

[14,178ZA]

Powers conferred on magistrates

154ZA (1) A power conferred on a magistrate by this Division is conferred on the magistrate in a personal capacity and not as a court or a member of a court. The magistrate need not accept the power conferred. (2) A magistrate exercising such a power has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member. SECTION 154ZA GENERALLY [14,178ZA.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________ DIVISION 5 — GENERAL PROVISIONS RELATING TO ELECTRONIC EQUIPMENT

[14,178ZB] premises

Operation of electronic equipment at

154ZB A person may operate electronic equipment at premises in order to exercise a power under this Part only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. SECTION 154ZB GENERALLY [14,178ZB.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[14,178ZC] Compensation for damage to electronic equipment 154ZC (1) This section applies if: (a) as a result of electronic equipment being operated as mentioned in section 154E, 154F, 154G, 154H or 154J: (i) damage is caused to the equipment; or (ii) the data recorded on the equipment is damaged; or (iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and (b) the damage or corruption occurs because: (i) insufficient care was exercised in selecting the person who was to operate the equipment; or (ii) insufficient care was exercised by the person operating the equipment. (2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on. (3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for

such reasonable amount of compensation as the Court determines. [page 1196] (4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment. (5) Compensation is payable out of money appropriated by the Parliament. (6) For the purposes of subsection (1): damage, in relation to data, includes damage by erasure of data or addition of other data. SECTION 154ZC GENERALLY [14,178ZC.5] Overview This section was inserted by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. ________________________

[page 1197] PART XII — MISCELLANEOUS INTRODUCTION TO PART XII [14,180.1] Overview This Part contains a number of miscellaneous provisions including provisions relating to the production and inspection of documents, evidence before the commission, the provision of legal and financial assistance, the imposition of charges by the commission and the preparation of an annual report. The Part also contains three significant provisions that relate to the operation and enforcement of the Act. Section 155 confers power on the commission to require the production of information or documents that constitute or may constitute a contravention of the Act. Section 163A specifies that a declaration may be sought in relation to certain provisions of the Act before a court having jurisdiction. Section 172 permits the Governor-General to make regulations that are not inconsistent with the Act. The Part also includes s 155AAA, which was introduced by the Corporations (NZ Closer Economic Relations) and Other Legislation Amendment Act 2007. It permits the commission to release information to a number of Australian government bodies and to a foreign government body to enable those bodies to exercise their functions.

________________________

[14,180] Power to obtain information, documents and evidence 155 (1) Subject to subsection (2A), if the Commission, the Chairperson or a Deputy Chairperson has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act or Division 4A or 4B of Part 3.3 of the Radiocommunications Act 1992, or is relevant to a designated communications matter (as defined by subsection (9)) or a designated water matter (as defined by subsection (9A)) or is relevant to the making of a decision by the Commission under subsection 91B(4), 91C(4), 93(3) or (3A) or 93AC(1) or (2) or 95AS(7) or the making of an application under subsection 95AZM(6), a member of the Commission may, by notice in writing served on that person, require that person: (a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body

corporate, within the time and in the manner specified in the notice, any such information; (b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or (c) to appear before the Commission, or before a member of the staff assisting the Commission who is an SES employee or an acting SES employee and who is specified in the notice, at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents. [subs (1) am Act 88 of 1995 s 27; Act 88 of 1995 s 70; Act 58 of 1997 s 3 and Sch 1; Act 131 of 2006 s 3 and Sch 3[25] and Sch 8[5]–[6], opn 1 Jan 2007; Act 68 of 2007 s 3 and Sch 1[178]–[179], opn 29 May 2007; Act 159 of 2007 s 3 and Sch 1[12], opn 25 Sep 2007; Act 138 of 2007 s 3 and Sch 1[7], opn 3 Mar 2008]

(2) [subs (2) rep Act 131 of 2006 s 3 and Sch 8[7], opn 1 Jan 2007] (2A) A member of the Commission may not give a notice under subsection (1) merely because: [page 1198] (a) a person has refused or failed to comply with a notice under subsection 95ZK(1) or (2) on the ground that complying with the notice would tend to incriminate the person, or to expose the person to a penalty; or (b) a person has refused or failed to answer a question that the person was required to answer by the person presiding at an inquiry under Part VIIA, on the ground that the answer would tend to incriminate the person, or to expose the person to a penalty; or (c) a person has refused or failed to produce a document referred to in a summons under subsection 95S(3), on the ground that production of the document would tend to incriminate the person, or to expose the person to a penalty. [subs (2A) insrt Act 88 of 1995 s 70; am Act 134 of 2003 s 3 and Sch 1, opn 1 Mar 2004; Act 131 of 2006 s 3 and Sch 8[8], opn 1 Jan 2007]

(3) If a notice under subsection (1) requires a person to appear before the

Commission to give evidence, the Commission may require the evidence to be given on oath or affirmation. For that purpose, any member of the Commission may administer an oath or affirmation. [subs (3) subst Act 131 of 2006 s 3 and Sch 8[9], opn 1 Jan 2007]

(3A) If a notice under subsection (1) requires a person to appear before a member of the staff assisting the Commission to give evidence, the staff member may require the evidence to be given on oath or affirmation and may administer an oath or affirmation. [subs (3A) insrt Act 131 of 2006 s 3 and Sch 8[9], opn 1 Jan 2007]

(4) A member of the Commission may exercise, or continue to exercise, a power under subsection (1) in relation to a matter referred to in that subsection until: (a) the Commission commences proceedings in relation to the matter (other than proceedings for an injunction, whether interim or final); or (b) the close of pleadings in relation to an application by the Commission for a final injunction in relation to the matter. [subs (4) insrt Act 116 of 2008 s 3 and Sch 3[14], opn 22 Nov 2008]

(5) A person shall not: (a) refuse or fail to comply with a notice under this section; (b) in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading; (c) [repealed] [subs (5) am Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001; Act 131 of 2006 s 3 and Sch 8[11], [12], opn 1 Jan 2007]

(5A) Paragraph (5)(a) does not apply to the extent that the person is not capable of complying with the notice. Note: A defendant bears an evidential burden in relation to the matter in subsection (5A), see subsection 13.3(3) of the Criminal Code. [subs (5A) insrt Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

(6) [subs (6) rep Act 131 of 2006 s 3 and Sch 8[13], opn 1 Jan 2007] (6A) A person who contravenes subsection (5) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months. Note 1: Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility. Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties. [subs (6A) subst Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001; am Act 128 of 2002 s 3 and Sch 1, opn II Dec 2002; Act 131 of 2006 s 3 and Sch 8[14], opn 1 Jan 2007]

[page 1199] *(7) A person is not excused from furnishing information or producing a document in pursuance of this section on the ground that the information or document may tend to incriminate the person or expose the person to a penalty, but the answer by an individual to any question asked in a notice under this section or the furnishing by an individual of any information in pursuance of such a notice, is not admissible in evidence against the individual in any criminal proceedings, other than: (a) proceedings for an offence against this section; or (b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this section. [subs (7) am Act 131 of 2006 s 3 and Sch 8[15], [16], opn 1 Jan 2007; Act 68 of 2007 s 3 and Sch 1[180], opn 29 May 2007; Act 59 of 2009 s 3 and Sch 2[43]–[47], opn 24 July 2009]

(7A) This section does not require a person: (a) to give information or evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or (b) to produce a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or (c) to give information or evidence, or to produce a document, that would disclose the deliberations of the Cabinet of a State or Territory. Note: A defendant bears an evidential burden in relation to the matters in subsection (7A), see subsection 13.3(3) of the Criminal Code. [subs (7A) insrt Act 88 of 1995 s 70; am Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001; Act 131 of 2006 s 3 and Sch 8[17], opn 1 Jan 2007]

(7B) This section does not require a person to produce a document that would disclose information that is the subject of legal professional privilege.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code). [subs (7B) insrt Act 131 of 2006 s 3 and Sch 8[18], opn 1 Jan 2007]

(8) Nothing in this section implies that notices may not be served under this section and section 155A in relation to the same conduct. [subs (8) insrt Act 70 of 1990 s 11]

(9) A reference in this section to a designated communications matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under: (a) the Telecommunications Act 1997; or (b) the Telecommunications (Consumer Protection and Service Standards) Act 1999; or (ba) the National Broadband Network Companies Act 2011; or (c) Part XIB or XIC of this Act; or (d) Division 4A or 4B of Part 3.3 of the Radiocommunications Act 1992. [subs (9) insrt Act 58 of 1997 s 3 and Sch 1; am Act 52 of 1999 s 3 and Sch 3; Act 68 of 2007 s 3 and Sch 1[181]–[182], opn 29 May 2007; Act 23 of 2011 s 3 and Sch 1 item 82, opn 13 Apr 2011]

*Editor’s note: Item 53(1) of Sch 2 of Act 59 of 2009 provides: “The amendments of subsection 155(7) of the Trade Practices Act 1974 made by this Schedule apply in relation to notices under section 155 of that Act served after the commencement of this item.”

[page 1200] (9A) A reference in this section to a designated water matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under: (a) Part 4 or Part 4A of the Water Act 2007; or (b) regulations made under that Act for the purposes of Part 4 of that Act; or (c) water charge rules, or water market rules, made under Part 4 of that Act.

[subs (9A) insrt Act 138 of 2007 s 3 and Sch 1[8], opn 1 July 2008; am Act 139 of 2008 s 3 and Sch 2[3]–[4], opn 15 Dec 2008]

(10) In this section: legal professional privilege includes privilege under Division 1 of Part 3.10 of the Evidence Act 1995. [subs (10) insrt Act 131 of 2006 s 3 and Sch 8[19], opn 1 Jan 2007]

SECTION 155 GENERALLY [14,180.5] Overview The commission obtains relevant information informally from its own inquiries or from businesses and the public. Section 155 is the principal source of power available to the commission to compel the production of information, documents or evidence. The section was amended by the Trade Practices Amendment Act (No 1) 2006 in response to the recommendations of the Dawson Committee. See [14,178.5]. Section 155(1) now requires that a person issued with a notice appear before the commission or a senior member of staff (at SES level). The commission may also require that evidence be given under oath. A person is not required to produce a document that would disclose information that is the subject of legal professional privilege (s 155(7B)). A notice given under s 155 may lawfully require a company to which it is directed to answer questions, provide information or produce documents which might tend to expose it to a penalty: Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 1) (1979) 36 FLR 450, followed in Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565; 57 FLR 363; Constantine v Trade Practices Commission (1994) 48 FCR 141; 120 ALR 341; (1994) ATPR ¶41-291 at 41,918; Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460; 43 ALR 449; Dunlop Olympic Ltd v Trade Practices Commission (1982) 40 ALR 367; 62 FLR 145. The scope of the power should not be narrowly confined. It is not possible to define a priori the limits of an investigation which might properly be made: see Davenport v Trade Practices Commission (1983) 47 ALR 505; 70 FLR 123; Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267; BC200406517 at [4] per Tamberlin J. For an overview of the principles applying to the provision see Obeid v Australian Competition and Consumer Commission (ACCC) [2014] FCA

839; BC201406280 per Farrell J; (appeal) Obeid v Australian Competition and Consumer Commission [2014] FCAFC 155; BC201409802 per Allsop CJ; Mansfield J and Middleton J. Reform The Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 would have the effect of inserting s 155(8A) to permit the Commission to seek a court order directing a person to comply with a notice given under s 155. On 25 March 2015, the Selection of Bills Committee referred the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 to the Economics Legislation Committee for inquiry and report. In its May 2015 report, the Committee recommended that the Bill be passed. In its final report Competition Policy Review, released in March 2015, the Harper Committee recommended that s 155 be extended to cover the investigation of alleged contraventions of court enforceable undertakings. [page 1201] On 5 September 2016 the Government released an Exposure Draft of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016, reflecting its response to the recommendations of the Harper Committee. The Exposure draft is available at https://consult.treasury.gov.au/market-and-competition-policydivision/ed_competition_law_amendments. See also [10,690.5]. [14,180.10] Use of power for a proper purpose The power to require information under s 155 must be exercised for the purpose of assisting the commission in the exercise of its functions and not otherwise: Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561; 31 FLR 129; Seven Network Ltd v Australian Competition and Consumer Commission (2004) ATPR ¶42-007; [2004] FCA 885; BC200404311 at [14] per Branson J; Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267; BC200406517 at [48] per Sackville and Emmett JJ, Tamberlin J agreeing; Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244; [2009] FCAFC 136; BC200909075 at [61] per Black CJ, Mansfield and Jacobson JJ. See Astrazeneca Ltd v Commerce

Commission [2009] NZSC 92; [2010] 1 NZLR 297 per Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ. The power must be exercised bona fide and not for a collateral purpose: Davenport v Trade Practices Commission (1983) 47 ALR 505 at 510; 70 FLR 123. See Korean Air Lines Co Ltd v Australian Competition and Consumer Commission [2008] FCA 265; BC200801368 at [45] per Jacobson J; See Astrazeneca Ltd v Commerce Commission [2009] NZSC 92; [2010] 1 NZLR 297 per Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ. [14,180.15] Reason to believe a person is capable of furnishing information The statutory requirement of “reason to believe” involves both a belief in fact and reasonable grounds for that belief: Seven Network Ltd v Australian Competition and Consumer Commission (2004) ATPR ¶42007; [2004] FCA 885; BC200404311 at [15] per Branson J. The required belief is a belief that the person to whom the notice is to be given is capable of furnishing information, producing documents, or giving evidence: WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 561; 41 FLR 175; Seven Network Ltd v Australian Competition and Consumer Commission, above, at [15] per Branson J; Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267; BC200406517 at [18] per Tamberlin J; Emirates v Australian Competition and Consumer Commission (2009) 255 ALR 35; [2009] FCA 312; BC200902213 at [29] per Middleton J; Obeid v Australian Competition and Consumer Commission (ACCC) [2014] FCA 839; BC201406280 per Farrell J. It is not necessary that there be a belief that the information, documents or evidence will establish or tend to establish a contravention, but merely that they relate to the matter: WA Pines Pty Ltd v Bannerman, above, ALR at 561; Seven Network Ltd v Australian Competition and Consumer Commission, above, at [17] per Branson J; Seven Network Ltd v Australian Competition and Consumer Commission, above, at [49] per Sackville and Emmett JJ, Tamberlin J agreeing; Emirates v Australian Competition and Consumer Commission (2009) 255 ALR 35; [2009] FCA 312; BC200902213 at [29] per Middleton J. Whether the known or suspected facts relate to a matter that constitutes, or may constitute, a contravention of the Act is a question of law. It is not affected by a belief held by the commission, the Chairperson or the Deputy Chairperson: WA Pines Pty Ltd v Bannerman, above, ALR at 561; Seven

Network Ltd v Australian Competition and Consumer Commission, above, at [16] per Branson J. In referring to a matter that may constitute a contravention of the Act, s 155 is not referring only to known facts. A matter which may constitute a contravention can involve a body of facts which are not fully known but which, when fully known, may disclose a contravention: WA Pines Pty Ltd v Bannerman, above, ALR at 561; Seven Network Ltd v Australian Competition and Consumer Commission, above, at [16] per Branson J; Seven Network Ltd v Australian Competition and Consumer Commission, above, at [49] per Sackville and Emmett JJ, Tamberlin J agreeing. [page 1202] If the necessary relationship exists between the information or documents required and the “matter that constitutes or may constitute a contravention” of the Act, the notice is not open to objection on the ground that it is burdensome: Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 31 ALR 519; 47 FLR 163. Section 155 enables the commission to serve a notice requiring the production of documents despite the fact that the person in possession of the documents has no legal right to that possession. See Allied Mills Industries Pty Ltd v Trade Practices Commission (No 1) (1981) 34 ALR 105; 55 FLR 125 per Sheppard J. [14,180.17] Information sought under a notice The information that may be sought under a notice is broad and far reaching. It can include the identification and location of another person who in turn may be capable of providing information: Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267; BC200406517 at [18] per Tamberlin J, at [81] per Emmett and Tamberlin JJ; Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244; [2009] FCAFC 136; BC200909075 at [62] per Black CJ, Mansfield and Jacobson JJ. [14,180.20] Form and content of notice A notice under s 155 must convey with reasonable clarity to the recipient what information he or she is

required to produce: Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565 at 570; 57 FLR 363 per Northrop, Deane and Fisher JJ; Seven Network Ltd v Australian Competition and Consumer Commission (2004) ATPR ¶42-007; [2004] FCA 885; BC200404311 at [14] per Branson J; Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267; BC200406517 at [49] per Sackville and Emmett JJ, Tamberlin J agreeing; Obeid v Australian Competition and Consumer Commission (ACCC) [2014] FCA 839; BC201406280 per Farrell J. The “matters” must be sufficiently identified in the notice to disclose to the recipient of the notice that the information he is required to furnish and the documents he is required to produce “relate” to one or more of the “matters” of a kind described in s 155(1): Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565; 57 FLR 363; Seven Network Ltd v Australian Competition and Consumer Commission, above, at [49] per Sackville and Emmett JJ, Tamberlin J agreeing; see A.B Pty Ltd v Australian Crime Commission [2009] FCA 119; BC200900744 at [43] per Flick J; Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244; [2009] FCAFC 136; BC200909075 at [35] per Black CJ, Mansfield and Jacobson JJ; Obeid v Australian Competition and Consumer Commission (ACCC) [2014] FCA 839; BC201406280 per Farrell J. However a notice should be reasonably, not precisely, construed and the terms used in notices will ordinarily take their meaning from the commercial circumstances in which the notices are given: Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 31 ALR 519 at 531; 47 FLR 163 per Brennan, Keely and Fisher JJ. What may be required of a notice addressed to a member of the public might be different from what must be included in a notice directed to a larger commercial organisation whose officers can be expected to be familiar with the regulatory framework affecting their organisation: Seven Network Ltd v Australian Competition and Consumer Commission, above, at [75] per Sackville and Emmett JJ, Tamberlin J agreeing; Emirates v Australian Competition and Consumer Commission (2009) 255 ALR 35; [2009] FCA 312; BC200902213 at [47] per Middleton J. There is no requirement that a notice plead all the facts necessary to constitute a contravention or possible contravention of the Act: SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370; 89 ALR 105; Seven Network

Ltd v Australian Competition and Consumer Commission, above, at [49], [68], per Sackville and Emmett JJ, Tamberlin J agreeing. There is also no requirement that a notice specify any possible defence which may be raised by a defendant, even though a defence or exemption is part of the matter giving rise to an investigation of a possible contravention: Seven Network Ltd v Australian Competition and Consumer Commission, above, at [17], per Tamberlin J. [page 1203] [14,180.25] Compliance with a notice The mere fact that compliance with a requirement to furnish information or to produce documents would be burdensome will not invalidate that requirement in a s 155 notice nor will objective harshness, unreasonableness or oppressiveness of a requirement in such a notice constitute an independent ground of invalidity, unless the requirement could not possibly be made in good faith or could only have been imposed to achieve a collateral purpose or was made without regard to the burden which it would impose upon the recipient: Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565; 57 FLR 363; Porter v Australian Prudential Regulation Authority [2010] FCA 125; BC201000940 at [53] per Peram J. A person given a notice under s 155 cannot obtain an order for discovery and interrogatories merely upon the assertion, without evidence, of an absence of the necessary “reason to believe”: WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559; 41 FLR 175. The proposition that a s 155 notice cannot legitimately require the recipient to “act as a detective” needs qualification. Compliance with the requirements of a notice may involve a degree of investigation on the recipient’s behalf in order to determine matters which are properly within its control, for instance when the recipient is a company: Dunlop Olympic Ltd v Trade Practices Commission (1982) 40 ALR 367; 62 FLR 145. In the absence of evidence that by complying with a subpoena a servant would act in violation of his or her duty to a master, the servant is obliged to produce documents on subpoena: Rochfort v Trade Practices Commission (1982) 153 CLR 134; 43 ALR 659.

[14,180.30] False or misleading information Section 155(5)(b) prohibits a person from knowingly furnishing information or giving evidence that is false or misleading. In Australian Competition and Consumer Commission v GIA Pty Ltd (2002) ATPR ¶41-902; [2002] FCA 1298; BC200206281 at [19] Heerey J noted that the provision of false or misleading information in response to a s 155 notice is a serious offence that hinders and obstructs the administration of the Act and thus the protection of consumers and the interests of fair trading. In June 2008 a summons was issued requiring Richard Pratt (an officer of Visy Industries Holdings Pty Ltd) to answer charges that on 26 July 2005 he knowingly gave false or misleading evidence in relation to the commission’s investigation of a packaging cartel: see Australian Competition and Consumer Commission v Pratt [2008] FCA 1373; BC200807895 per Ryan J. See also Australian Competition and Consumer Commission v Pratt (No 2) [2008] FCA 1833; BC200810726 per Ryan J; Australian Competition and Consumer Commission v Pratt (No 3) (2009) 175 FCR 558; [2009] FCA 407; BC200903355 per Ryan J. The charges were subsequently withdrawn due to Mr Pratt’s ill health. Mr Pratt later died. In Australian Competition and Consumer Commission v Narnia Investments Pty Ltd [2009] FCA 395; BC200903008 at [26] Marshall J imposed fines on the respondents for providing false information under s 155(5)(b). In Australian Competition and Consumer Commission v Boyle [2015] FCA 1039; BC201509383, Rangiah J imposed a $3500 fine on the respondent for giving false evidence under s 155. [14,180.40] When the commission’s powers cease Section 155 should not be used as an aid to judicial proceedings which have already been instituted. However, merely because proceedings brought by a private party are pending under the Act, the commission is not prevented from exercising its powers under s 155 unless such exercise would constitute interference with judicial proceedings of a kind that would prejudice the due performance of its function by the judicial arm of government: Trade Practices Commission v Pioneer Concrete (Vic) Pty Ltd (1981) 36 ALR 151 at 166-7; 55 FLR 77 per Deane J. The decision was upheld on appeal: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460;

43 ALR 449. In Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission, above, Gibbs J was inclined to the view that if the power were used to assist a party in proceedings already pending, in a way that would give such a party advantages which the rules of procedure would otherwise deny him, [page 1204] there would be a contempt of court: see, for example, Brambles Holdings Ltd v Trade Practices Commission (1980) 32 ALR 328; 44 FLR 182; Trade Practices Commission v Ampol Petroleum (Vic) Pty Ltd (1994) ATPR ¶41305; Laing v Carroll (2005) 146 FCR 511; [2005] FCAFC 202; BC200506862 at [73] per Spender J, at [272] per Lander J; see Korean Air Lines Co Ltd v Australian Competition and Consumer Commission [2008] FCA 265; BC200801368 at [46] per Jacobson J. However, not all investigations into facts which are the subject of pending proceedings will constitute a contempt of court: see for example Victoria v Australian Building Construction Employees and Builders’ Labourers’ Federation (1982) 152 CLR 25; 41 ALR 71; 56 ALJR 506. In Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission, above, ALR at 453, Gibbs J stated that no contempt had been made out because “it was not shown that the person who gave the notice had any intention to interfere with the course of justice, or that there was a real risk that the exercise of powers under s 155 would in the circumstances have that effect”. In Korean Air Lines v ACCC (No 3) [2008] FCA 701; BC200803463 at [86] Jacobson J accepted the view of Deane J in Trade Practices Commission v Pioneer Concrete (Vic) Pty Ltd (1981) 36 ALR 151; 55 FLR 77 at 95; (1981) ATPR ¶40-229 that the power conferred by s 155 is to be used only for the performance of the administrative function of determining whether proceedings should be instituted. That leaves open the question whether the power ceases when the commission has formally resolved that legal proceedings be commenced. In Korean Air Lines v ACCC (No 3), above, at [99]–[105] Jacobson J said: [99] The question of law is a debateable one. It cannot rise above the statement of Davies and Foster JJ in Kotan at 516 that there may be an arguable case that the power to issue a s 155 notice ceases when the Commission has formally resolved that legal proceedings be commenced. But there are

other indications that this proposition does not accurately state the law. [100] First, Davies and Foster JJ thought the preferable view to be to the contrary. Second, Lockhart J was inclined to the view that the power to issue a notice under s 155 does not end and is not abused merely because the Commission has made a decision to institute proceedings against the addressee of a proposed notice. His Honour went on to say that whether the power to issue a notice is abused is a question of fact to be determined in all of the circumstances: Kotan at 521. [101] Third, Lockhart J’s view is supported by the observations of French J in Shannahan v Trade Practices Commission (1991) 28 FCR 239 at 244. (See also French J at first instance in Re Kotan Holdings Pty Ltd & Ors v Trade Practices Commission (1991) 13 ATPR 41-122 at [7]). His Honour said that there is nothing in the terms, context or purpose of s 155 to indicate that the power is compromised by the Commission having decided to commence proceedings. [102] Fourth, in Rural Press at [37], Mansfield J agreed with the view expressed by Lockhart J in Kotan. Mansfield J went on at [38] to say that the question of whether the power has been exercised for an improper purpose is a matter to be decided in all the circumstances. I respectfully agree with this observation. [103] Nor, in my view, does the statement of Franki J in Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182 at 189 support the view that the power automatically ceases when the proceedings have been commenced. [104] It seems to me that the effect of what Franki J said was captured in the words of Gibbs CJ in Pioneer Concrete at 467-468. Thus, if the power were used to assist a party in proceedings already pending, in a way that would confer an advantage which the procedures of the Court would otherwise deny, there would be a contempt; however, not every investigation into facts the subject of an existing proceeding constitutes a contempt.

[page 1205] [105] In any event, whether or not the question of law is decided favourably to KAL, the contention fails at the factual level because I am not satisfied that the ACCC had decided to commence proceedings.

As Korean Air Lines v ACCC (No 3) suggests, there is uncertainty as to when the commission’s power under s 155 cease, in particular, whether it ceases to be able to rely on s 155 when it has determined to institute legal proceedings. There is also uncertainty over whether the commission loses the ability to invoke s 155 once it has commenced proceedings for an interim injunction. To address this uncertainty s 155(4) was introduced by the Trade Practices Legislation Amendment Act 2008. It commenced on 22 November 2008. See [14,005.10]. The provision provides that a member of the commission may exercise, or continue to exercise, a power under subs (1) until:

the Commission commences proceedings in relation to the • matter (other than proceedings for an injunction, whether interim or final); or • the close of pleadings in relation to an application by the Commission for a final injunction in relation to the matter. In its Bill form, the provision was considered by the Senate Standing Committee on Economics in its report, The Trade Practices Legislation Amendment Bill 2008 [Provisions], published in August 2008. The committee recommended its inclusion: Recommendation 3. [14,180.45] Decision to issue notice — review under Administrative Decisions (Judicial Review) Act The decision to issue a s 155 notice is not one to which s 13 of the Administrative Decisions (Judicial Review) Act applies because the decision falls within the ambit of the exclusionary provisions in para (f)(i) and (iv) of Sch 2 of that Act: Ricegrowers Co-op Mills Ltd v Bannerman (1981) 35 ALR 553; 53 FLR 408. As a result an applicant will be unable to obtain reasons for the decision to issue the s 155 notice. However, review of the decision under ss 5 or 6 of the Administrative Decisions (Judicial Review) Act is not precluded: see, for example, Mildura Fruit Juices Pty Ltd v Bannerman (1983) 67 FLR 1; (1983) ATPR ¶40-365. [14,180.75] Privilege against self-incrimination and exposure to penalties In Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (1999) 163 ALR 465; (1999) ATPR ¶41-692 at 42,853–1 Sackville J said: The privilege against self incrimination and the privilege against exposure to a penalty are reflections of the one fundamental principle, namely that those who allege the commission of a crime or the incurring of a penalty should prove it themselves and not be able to compel the accused or the respondent to provide proof against himself or herself: Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129; 123 ALR 503; (1994) ATPR ¶41-342 at 42,458, per Burchett J (with whom Black CJ and Davies J agreed). There is therefore no reason to think that the scope of the privilege against exposure to a penalty is any narrower than that of the privilege against self incrimination.

The privilege against self-incrimination is a fundamental principle of the common law and not merely a rule of evidence. It is related to the privileges against exposure to a civil penalty, forfeiture and ecclesiastical censure: Smith v R (2007) 63 ACSR 445; [2007] WASCA 163; BC200706303 at [49] per Buss JA. For a discussion of the development of the privilege see

Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 543; 82 LGERA 51; 118 ALR 392; BC9303552 per McHugh J and Smith v R, above, at [50] per Buss JA. As a matter of construction of s 155, a person or a corporation is not entitled to refuse production of documents or information because it may tend to incriminate them or expose them to a pecuniary penalty: Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 509; (1983) ATPR ¶40-341. The Pyneboard decision was examined by the High Court in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [page 1206] [2002] HCA 49; BC200202568 in considering whether s 155 abrogates legal professional privilege: see [14,180.77]. In that case, at [29], Gleeson CJ, Gaudron, Gummow and Hayne JJ, while refusing to follow Pyneboard, did not say that it was wrongly decided. Under the common law the privilege against self-incrimination does not extend to corporations: Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 118 ALR 392. Similarly at common law, the privilege against exposure to a civil penalty does not extend to corporations: Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96; 123 ALR 503; (1994) ATPR ¶41-342 at 42,486; Trade Practices Commission v IMB Group Pty Ltd (1994) ATPR ¶41-348 at 42,546; Trade Practices Commission v IMB Group Pty Ltd (1994) ATPR ¶41-348 at 42,546; Trade Practices Commission v Ampol Petroleum (Vic) Pty Ltd (1994) 54 FCR 316; 127 ALR 533; (1995) ATPR ¶41-384. [14,180.77] Legal professional privilege Legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; BC200202568 at [9] per Gleeson CJ, Gaudron, Gummow

and Hayne JJ, at [114] per Kirby J, at [133] per Callinan J. For a useful practical examination of legal professional privilege, without prejudice privilege and public interest privilege see Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd [2003] FCA 626; BC200303170 per Emmett J; see also Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266; 60 ATR 466; [2005] FCA 1247; BC200507068 at [30] per Kenny J; General Workcover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502; [2006] NSWCA 84; BC200602686 at [72] per McColl JA; Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444; BC200702081 per Heerey J; Korean Air Lines Co Ltd v Australian Competition and Consumer Commission [2008] FCA 265; BC200801368 at [57] per Jacobson J; Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88; BC200800675 at [7] per Gordon J (her Honour also considers the issue of public interest immunity at [25]–[33]). See Visy Industries Holdings Pty Ltd v ACCC (2007) 161 FCR 122; (2007) ATPR ¶42-184; [2007] FCAFC 147; BC200707773. Legal privilege may extend to documents prepared for another by a nonlawyer, for the dominant purpose of that other being provided with legal advice: Pratt Holdings Pty Ltd v Cmr of Taxation (2004) 136 FCR 357; 207 ALR 217; [2004] FCAFC 122; BC200402621 at [20]; Korean Air Lines Co Ltd v ACCC (No 2) [2008] FCA 449; BC200802256 at [6] per Gyles J. See Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 254 ALR 198; [2009] FCAFC 32; BC200901725 per Mansfield, Kenny and Middleton JJ (litigation privilege does not apply to final proofs of evidence once served). Legal professional privilege may not apply where an ulterior purpose for the communication is demonstrated, for example where the communication was made in furtherance of a criminal or fraudulent purpose: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission, above, at [36] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, at [114] per Kirby J. Statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities like legal professional privilege in the absence of clear words or a necessary implication to that effect: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission, above, at [11] per Gleeson CJ, Gaudron,

Gummow and Hayne JJ, at [43] per McHugh J, at [112] per Kirby J, at [132] per Callinan J. Section 155 does not abrogate legal professional privilege: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission, above, at [37] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, at [56] per McHugh J, at [113] per Kirby J, at [144] per Callinan J; Woolworths Ltd v Fels [2002] HCA 50; BC200206566 at [3] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, at [5] per McHugh J, at [9] per Kirby J, at [17] per Callinan J. [page 1207] The privilege may, however, be waived: see Australian Competition and Consumer Commission v George Weston Foods Ltd (2003) 198 ALR 592; [2003] FCA 601; BC200303140 per Conti J; Anbu v Vulcanite Pty Ltd [2015] FCA 283; BC201502114 per Wigney J. [14,180.80] Disclosure of documents by the commission The obligation on the commission to disclose documents under s 157 does not affect the power of the commission under s 155: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460; 43 ALR 449 at 4534 per Gibbs J. [14,180.85] Admissability of evidence Answers to s 155 notices are admissions binding only on the parties providing them. However, such answers may be evidence against other parties if they go to proof of a common purpose: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609; 40 FLR 83; (1978) ATPR ¶40-126. Admissions of one corporate respondent’s agent may constitute admissible evidence against another corporate respondent where both of the corporate respondents and the agent are party to the same illegal enterprise and the admissions were made in furtherance of the illegal enterprise: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2004) ATPR (Digest) ¶46-260; [2004] FCA 1678; BC200408833 at [121] per Merkel J.

[14,180.90] Investigations to be conducted in private An examination conducted pursuant to a notice issued under s 155(1)(c) for the purpose of investigating a contravention of the Act is required to be held in private: Constantine v Trade Practices Commission (1994) 48 FCR 141; 120 ALR 341; (1994) ATPR ¶41-291. In the course of that judgment the court made the following comments: Exercise in public of the investigative powers conferred by s 155 on the Commission to enable it to determine whether or not a contravention has occurred and to procure means of proving in a curial proceeding that a contravention has occurred, is so likely to be inimical to the effectiveness of the investigation and to interests of those who are the subject of investigation, both witnesses and those suspected of contravention, that the requirement of privacy may be seen to have been intended by the legislature, notwithstanding that the requirement is not explicitly stated in the Act.

[14,180.93] Failure to comply with a notice A person who fails to comply with a notice commits an offence: s 115(6A). This brings it within s 4.3(a) of the Criminal Code Act 1995: Australian Competition and Consumer Commission (ACCC) v Davies [2015] FCA 1017; BC201508940 per Reeves J. In Australian Competition and Consumer Commission v Neville [2007] FCA 1583; BC200708766 at [61] Lindgren J fined the respondent $2160 and ordered the respondent to perform 200 hours of community service for failing to comply with s 155(5)(b). In Australian Competition and Consumer Commission v Rana (2008) ATPR ¶42-223; [2008] FCA 374; BC200801855 North J imposed a term of imprisonment of 6 months. [14,180.95] Undertakings required of legal representatives Legal representatives that are present during examinations may be lawfully required by the commission to undertake not to disclose to others for a certain period of time what has been disclosed to the legal representative during the examination: Constantine v Trade Practices Commission (1994) 48 FCR 141; 120 ALR 341; (1994) ATPR ¶41-291 at 41,919, 41,921; Bonan v Hadgkiss (2006) 92 ALD 116; 157 IR 278; [2006] FCA 1334; BC200608128 at [36] per Besanko J. The confidentiality obligation will not extend indefinitely and in particular will not extend beyond the commencement of legal proceedings the subject of the examination: Trade Practices Commission v Ampol Petroleum (Vic) Pty Ltd (1994) 126 ALR 111; (1994) ATPR ¶41-344 at 42,505.

[page 1208] [14,180.100] Delegation of commission’s power For the purposes of s 155(1)(c) a member of the commission may receive evidence if the commission has validly delegated its power to the member. The commission may by resolution properly delegate its power to require a person to give evidence before the commission under s 25 of the Act: Australian Competition and Consumer Commission v Rural Press Ltd (2000) 169 ALR 573 at 575-6; (2000) ATPR ¶41-753. [14,180.105] Commission guidelines The Commission published “ACCC Guidelines — Use of section 155 powers” in September 2016. ________________________

[14,183AAA]

Protection of certain information

155AAA (1) A Commission official must not disclose any protected information to any person except: (a) when the Commission official is performing duties or functions as a Commission official; or (b) when the Commission official or the Commission is required or permitted by: (i) this Act or any other law of the Commonwealth; or (ii) a prescribed law of a State or internal Territory; to disclose the information. (2) Subsection (1) does not allow a Commission official to disclose protected information when performing a function of the Commission described in section 28. (3) Disclosure to Ministers A Commission official may disclose protected information to the designated Minister. (4) If protected information relates to a matter arising under: (a) a provision of this Act; or (b) a provision of another Act; that is administered by a Minister other than the designated Minister, a Commission official may disclose the protected information to the other

Minister. (5) Subsection (4) does not limit subsection (3). (6) Disclosure to Secretaries etc A Commission official may disclose protected information to: (a) the Secretary of the designated Department; or (b) an officer of the designated Department who is authorised by the Secretary of that Department, in writing, for the purposes of this subsection; for the purpose of advising the designated Minister. (7) If protected information relates to a matter arising under: (a) a provision of this Act; or (b) a provision of another Act; that is administered by a Minister other than the designated Minister, a Commission official may disclose the protected information to: (c) the Secretary of the Department that is administered by the other Minister; or (d) an officer of that Department who is authorised by the Secretary of that Department, in writing, for the purposes of this subsection; for the purpose of advising the other Minister. (8) Subsection (7) does not limit subsection (6). (9) Disclosure to a Royal Commission A Commission official may disclose protected information to a Royal Commission. [page 1209] (10) The Chairperson may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (9). (11) An instrument under subsection (10) is not a legislative instrument. (12) Disclosure to certain agencies, bodies and persons If the Chairperson is satisfied that particular protected information will enable or assist any of the following agencies, bodies or persons: (a) the Australian Bureau of Statistics; (b) the Australian Communications and Media Authority;

(c) (d) (e) (f) (g)

the Australian Prudential Regulation Authority; the Australian Securities and Investments Commission; the National Competition Council; the Productivity Commission; any other agency within the meaning of the Freedom of Information Act 1982; (h) the Australian Statistician; (i) the Commissioner of Taxation; (j) the Australian Competition Tribunal; (k) the Director of Public Prosecutions; (ka) [repealed] (l) the Reserve Bank of Australia; (la) the Clean Energy Regulator; (lb) the Climate Change Authority; (m) a State/Territory government body; (n) a foreign government body; to perform or exercise any of the functions or powers of the agency, body or person, an authorised Commission official may disclose that protected information to the agency, body or person concerned. [subs (12) am Act 102 of 2011 s 3 and Sch 1[8], opn 8 Dec 2011; Act 132 of 2011 s 3 and Sch 1[102], opn 2 Apr 2012; s 3 and Sch 1[258D], opn 1 July 2012; Act 44 of 2012 s 3 and Sch 1 item 4, opn 1 July 2012; Act 38 of 2015 s 3 and Sch 1 item 10, opn 1 July 2015]

(13) The Chairperson may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (12). (14) An instrument under subsection (13) is not a legislative instrument. (15) Disclosure with consent A Commission official may disclose protected information that relates to the affairs of a person if: (a) the person has consented to the disclosure; and (b) the disclosure is in accordance with that consent. (16) Disclosure of publicly available information A Commission official may disclose protected information if it is already publicly available. (17) Disclosure of summaries or statistics A Commission official may disclose: (a) summaries of protected information; or (b) statistics derived from protected information;

if those summaries or statistics, as the case may be, are not likely to enable the identification of a person. (18) Disclosure authorised by regulations The regulations may: (a) authorise a Commission official to disclose protected information in specified circumstances; and [page 1210] (b) provide that the Chairperson may, by writing, impose conditions to be complied with in relation to the disclosure of protected information in those circumstances. (19) An instrument under regulations made for the purposes of paragraph (18)(b) is not a legislative instrument. (20) Delegation The Chairperson may, by writing, delegate any or all of his or her functions and powers under: (a) this section; or (b) regulations made for the purposes of subsection (18); to a member of the Commission. (21) Definitions In this section: authorised Commission official means a Commission official authorised by the Chairperson, in writing, for the purposes of this section. Commission official means: (a) a member, or associate member, of the Commission; or (b) a person referred to in subsection 27(1); or (c) a person engaged under section 27A. core statutory provision means: (a) a provision of Part IV, V, VII, VIII, XI, XIB or XIC; or (b) the remaining provisions of this Act so far as they relate to a provision covered by paragraph (a); or (c) a provision of the regulations made under section 172 so far as it relates to a provision covered by paragraph (a) or (b); or (d) a provision of the Australian Consumer Law (other than Part 5-

3); or (e) a provision of the regulations made under section 139G so far as it relates to a provision covered by paragraph (d). [def am Act 103 of 2010 s 3 and Sch 5[108]–[110], opn 1 Jan 2011]

designated Department means the Department that is responsible for the administration of this section (other than subsections (4) and (7)). designated Minister means the Minister who is responsible for the administration of this section (other than subsections (4) and (7)). disclose means divulge or communicate. foreign country includes a region where: (a) the region is a colony, territory or protectorate of a foreign country; or (b) the region is part of a foreign country; or (c) the region is under the protection of a foreign country; or (d) a foreign country exercises jurisdiction or control over the region; or (e) a foreign country is responsible for the region’s international relations. foreign government body means: (a) the government of a foreign country; or (b) an agency or authority of a foreign country; or (c) the government of part of a foreign country; or (d) an agency or authority of part of a foreign country. [page 1211] information includes information in a document and information given in evidence. protected information means: (a) information that: (i) was given in confidence to the Commission; and (ii) relates to a matter arising under a core statutory provision; or

(b) information that: (i) was obtained by the Commission under Part XID or section 155; and (ii) relates to a matter arising under a core statutory provision; or (ba) information that was obtained by the Commission under paragraph 60FD(2)(b) or section 60FA or 60H; or (c) information that: (i) was obtained by the Commission under section 151AU, 152AU, 152CBB or 152CBH or rules in force under section 151BU; and (ii) relates to a matter arising under Part XIB or XIC; or (d) information that was obtained by the Commission under section 118C, 118G, 118NE or 118NI of the Radiocommunications Act 1992; or (e) information that: (i) was given in confidence to the Commission by a foreign government body; and (ii) relates to a matter arising under a provision of a law of a foreign country or of a part of a foreign country; or (f) information that: (i) was obtained by the Commission under section 155; and (ii) relates to a designated water matter within the meaning of that section. For the purposes of this definition, it is immaterial whether the information was given to or obtained by the Commission before, at or after the commencement of this section. [def am Act 139 of 2008 s 3 and Sch 2[5], opn 15 Dec 2008; Act 140 of 2010 s 3 and Sch 1[196], opn 1 Jan 2011]

Royal Commission has the same meaning as in the Royal Commissions Act 1902. State/Territory government body means: (a) the government of a State or Territory; or (b) an agency or authority of a State or Territory. [subs (21) am Act 68 of 2007 s 3 and Sch 2[3], opn 19 July 2007; am Act 83 of 2014 s 3 and Sch 2 items 24, 25, opn 18 July 2014]

[s 155AAA insrt Act 85 of 2007 s 3 and Sch 3[3], opn 19 July 2007; Act 83 of 2014 s 3 and Sch 2 item 23, opn 18 July 2014]

SECTION 155AAA GENERALLY [14,183AAA.5] Overview This provision was inserted by the Corporations (NZ Closer Economic Relations) and Other Legislation Amendment Act 2007. It commenced on 19 July 2007. The provision provides that a commission official must not disclose any protected information (including information obtained by the commission under s 155), except in particular circumstances. The circumstances are when the official is performing duties or functions of the commission or when permitted by the Act or regulations. See Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2008] FCA 391; BC200802186 at [17] per Tamberlin J. [page 1212] Importantly, the commission may release information (on conditions if it chooses) to a number of Australian government bodies and to a foreign government body to enable those bodies to exercise their functions. The commission’s power to release protected information extends to any foreign government body. However, the genesis of the provision relates to the sharing of information with the New Zealand Commerce Commission. This was considered by the Productivity Commission in its report, Australia New Zealand Competition and Consumer Protection Regimes. See [10,005.10]. In the above report, the Productivity Commission recommended that the Australian Act and the New Zealand Act be amended to enable the commission and the New Zealand Commerce Commission to exchange information that has been obtained through their information gathering powers: see Recommendation 6.4. ________________________

[14,183AA]

Protection of Part VB information

155AA (1) A Commission official must not disclose any protected Part VB information to any person, except:

(a) when the Commission official is performing duties or functions as a Commission official; or (b) when the Commission official or the Commission is required or permitted by law to disclose the information. [subs (1) am Act 61 of 1999 s 3 and Sch 1; Act 85 of 2007 s 3 and Sch 3[4] and [5], opn 19 July 2007]

(2) Subsection (1) does not allow a Commission official to disclose protected Part VB information when performing a function of the Commission described in section 28. [subs (2) am Act 61 of 1999 s 3 and Sch 1; Act 85 of 2007 s 3 and Sch 3[6] and [7], opn 19 July 2007]

(3) In this section: Commission official means: (a) a member, or associate member, of the Commission; (b) a person referred to in subsection 27(1); (c) a person engaged under section 27A. disclose means divulge or communicate. information includes information in a document and information given in evidence. protected Part IV information [def rep Act 85 of 2007 s 3 and Sch 3[8], opn 19 July 2007]

protected Part VB information means: (a) information that: (i) was obtained by the Commission under Part XID or section 155; and (ii) relates to a matter that arose under Part VB before its repeal by item 32 of Schedule 1 to the Statute Stocktake (Regulatory and Other Laws) Act 2009; or (b) information that was obtained by the Commission under section 75AY before its repeal by item 32 of Schedule 1 to the Statute Stocktake (Regulatory and Other Laws) Act 2009. [def insrt Act 61 of 1999 s 3 and Sch 1; am Act 131 of 2006 s 3 and Sch 8[21], opn 1 Jan 2007; Act 111 of 2009 s 3 and Sch 1[44] and [45], opn 17 Nov 2009] [s 155AA insrt Act 88 of 1995 s 71; am Act 61 of 1999 s 3 and Sch 1]

[page 1213]

[14,183AB] Protection of Part XIB or XIC information 155AB 2007]

[s 155AB rep Act 85 of 2007 s 3 and Sch 3[9], opn 19 July

[14,185] Power to obtain information and documents in New Zealand relating to transTasman markets 155A (1) Where the Commission, the Chairperson or a Deputy Chairperson has reason to believe that a person is capable of furnishing information or producing documents relating to a matter that constitutes, or may constitute, a contravention of section 46A, a member of the Commission may, by written notice served on the person in New Zealand, require the person: (a) to furnish to the Commission, by writing signed by the person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information; or (b) to produce to the Commission, or to a person specified in the notice acting on behalf of the Commission, in accordance with the notice, any such documents. [subs (1) am Act 88 of 1995 s 72; Act 159 of 2007 s 3 and Sch 1[13], opn 25 Sep 2007]

(2) The person may comply with the notice by providing the information or document to the New Zealand Commerce Commission for transmission to the Australian Competition and Consumer Commission. [subs (2) am Act 88 of 1995 s 72]

(3) Nothing in this section implies that notices may not be served under this section and section 155 in relation to the same conduct. (4) This section binds the Crown in all its capacities. [s 155A insrt Act 70 of 1990 s 12]

[14,190]

Australian Competition and Consumer

Commission may receive information and documents on behalf of New Zealand Commerce Commission 155B (1) Where, by notice under section 98H of the Commerce Act 1986 of New Zealand, the New Zealand Commerce Commission requires a person to furnish any information or produce any document, the information or document may be provided to the Australian Competition and Consumer Commission for transmission to the New Zealand Commerce Commission. [subs (1) am Act 88 of 1995 s 73]

(2) As soon as practicable after the information or document is provided to the Australian Competition and Consumer Commission, the Australian Competition and Consumer Commission is to transmit it to the New Zealand Commerce Commission. [subs (2) am Act 88 of 1995 s 73]

(3) A person must not: (a) contravene a notice under section 98H of the Commerce Act 1986 of New Zealand; or (b) in purported compliance with such a notice, knowingly furnish information that is false or misleading in a material particular. Penalty: 20 penalty units. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties. [subs (3) am Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

[page 1214] (3A) Paragraph (3)(a) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matters in subsection (3A), see subsection 13.3(3) of the Criminal Code. [subs (3A) insrt Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

(4) A person is not excused from furnishing information or producing a document under a notice under section 98H of the Commerce Act 1986 of New Zealand on the ground that the information, or the production of the document, may tend to incriminate the person, but: (a) any information furnished or document produced under such a notice; and (b) any information, document or thing obtained as a direct or indirect consequence of furnishing the information or producing the document; is not admissible in evidence against the person in any criminal proceedings, other than proceedings for an offence against subsection (3). (5) This section binds the Crown in all its capacities, but nothing in this section permits the Crown in any of its capacities to be prosecuted for an offence. (6) This section applies in and outside Australia. [s 155B insrt Act 70 of 1990 s 12]

[14,195]

Inspection of documents by Commission

156 (1) A member of the Commission, or a person authorized by a member of the Commission, may inspect a document produced in pursuance of a notice under section 155 or 155A and may make copies of, or take extracts from, the document. [subs (1) am Act 70 of 1990 s 13]

(2) The Commission may, for the purposes of this Act, take, and retain for as long as is necessary for those purposes, possession of a document produced in pursuance of a notice under section 155 or 155A but the person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by a member of the Commission under his or her hand to be a true copy and the certified copy shall be received in all courts as evidence as if it were the original. [subs (2) am Act 70 of 1990 s 13; Act 88 of 1995 s 91]

(3) Until such a certified copy is supplied, the Commission shall, at such times and places as it thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorized by that person, to

inspect and make copies of or take extracts from the document.

[14,200]

Disclosure of documents by Commission

157 (1) Subject to subsection (1A), if: (a) a corporation makes an application to the Commission under section 88, 91A, 91B or 91C or Subdivision B of Division 3 of Part VII; or (b) the Commission proposes the revocation of an authorization under subsection 91B(3) or the revocation of an authorization and the substitution of another authorization under subsection 91C(3); or (ba) the Commission proposes to revoke, or to revoke and substitute, a clearance under section 95AS; or (c) a proceeding is instituted against a corporation or other person under section 77, 80, 80AC, 81 or 81A; or [page 1215] (d) an application is made under, subsection 51ADB(1), section 86C or 86D or subsection 87(1A) for an order against a corporation or other person; the Commission shall, at the request of the corporation or other person and upon payment of the prescribed fee (if any), furnish to the corporation or other person: (e) a copy of every document that has been furnished to, or obtained by, the Commission in connexion with the matter to which the application, notice or proceeding relates and tends to establish the case of the corporation or other person; and (f) a copy of any other document in the possession of the Commission that comes to the attention of the Commission in connexion with the matter to which the application, notice or proceeding relates and tends to establish the case of the corporation or other person; not being a document obtained from the corporation or other person or prepared by an officer or professional adviser of the Commission.

[subs (1) am Act 101 of 1998 Sch 1.56; Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001; Act 131 of 2006 s 3 and Sch 1[38]–[40], opn 1 Jan 2007; Act 59 of 2009 s 3 and Sch 1[112], opn 24 July 2009; Act 44 of 2010 s 3 and Sch 2[20], opn 15 Apr 2010; Act 103 of 2010 s 3 and Sch 5[111] and [112], opn 1 Jan 2011]

(1AA) Subject to subsections (1AB) and (1A), if an application for an order against a person is made under: (a) section 137F; or (b) subsection 237(1), or section 246 or 247, of the Australian Consumer Law; the Commission must, at the request of the person and upon payment of the prescribed fee (if any), give the person: (c) a copy of every document that has been given to, or obtained by, the Commission in connection with the matter to which the application relates and tends to establish the case of the person; and (d) a copy of any other document in the possession of the Commission that comes to the attention of the Commission in connection with the matter to which the application relates and tends to establish the case of the person. [subs (1AA) insrt Act 103 of 2010 s 3 and Sch 5[113], opn 1 Jan 2011]

(1AB) Subsection (1AA) does not apply to a document obtained from the person, or prepared by an officer or professional adviser of the Commission. [subs (1AB) insrt Act 103 of 2010 s 3 and Sch 5[113], opn 1 Jan 2011]

(1A) Protected cartel information — Commission may refuse to comply with request If a request under subsection (1) relates to a document containing protected cartel information, the Commission may refuse to comply with the request. [subs (1A) insrt Act 59 of 2009 s 3 and Sch 1[113], opn 24 July 2009]

(1B) In exercising its powers under subsection (1A), the Commission must have regard to the following matters: (a) the fact that the protected cartel information was given to the Commission in confidence; (b) Australia’s relations with other countries; (c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence and criminal investigation;

(d) in a case where the protected cartel information was given by an informant: (i) the protection or safety of the informant or of persons associated with the informant; and [page 1216] (ii) the fact that the production of a document containing protected cartel information, or the disclosure of protected cartel information, may discourage informants from giving protected cartel information in the future; (e) the legitimate interests of the corporation which, or the person who, made the request under subsection (1); (f) such other matters (if any) as the Commission considers relevant. [subs (1B) insrt Act 59 of 2009 s 3 and Sch 1[113], opn 24 July 2009]

(2) Court order If the Commission does not comply with a request under subsection (1) otherwise than because of a refusal under subsection (1A), the Court shall, subject to subsection (3), upon application by the corporation which, or other person who, made the request, make an order directing the Commission to comply with the request. [subs (2) am Act 59 of 2009 s 3 and Sch 1[114], opn 24 July 2009]

(3) The Court may refuse to make an order under subsection (2) in respect of a document or part of a document if the Court considers it inappropriate to make the order by reason that the disclosure of the contents of the document or part of the document would prejudice any person, or for any other reason. (4) Before the Court gives a decision on an application under subsection (2), the Court may require any documents to be produced to it for inspection. (5) An order under this section may be expressed to be subject to conditions specified in the order. (6) Definition In this section: protected cartel information has the same meaning as in section 157B. [subs (6) insrt Act 59 of 2009 s 3 and Sch 1[115], opn 24 July 2009]

SECTION 157 GENERALLY

[14,200.3] Overview In Trade Practices Commission v TNT Management Pty Ltd (No 3) (1981) 39 ALR 665 at 670; 55 FLR 219 at 224 Bowen J said that the purpose of s 157 is that a corporation be given copies of documents which the commission has and which would, broadly speaking, support the corporation’s case. This is in contrast to the obligation of a prosecutor who knows of a credible witness who can supply facts which tend to show that an accused is innocent, to make the witness or his or her statement available to the defence. These comments were supported by Mansfield J in Australian Competition and Consumer Commission v Rural Press Ltd (1999) 169 ALR 201; (2000) ATPR ¶41-739 at 40,566. However as Mansfield J said in Australian Competition and Consumer Commission v Rural Press Ltd (1999) 169 ALR 201; (2000) ATPR ¶41-739 at 40,568 the applicant will be entitled to withhold a statement of evidence of a material witness, even if that information may tend to establish the case of a respondent corporation or other person, if that statement was physically prepared by an officer of the corporation or other person. In Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (2006) ATPR ¶42-102; [2006] FCA 136; BC200600688 at [37], Heerey J said that s 157 is not directed towards documents on which the commission relies but is directed towards documents obtained by the commission which tend to establish the case of the corporation or other person. [14,200.5] “prepared by an officer of the Commission” The requirement that a document not be one that is prepared by an officer of the commission refers to a document which has been drawn up by such an officer, whether any particular contribution of ideas is evident in the contents [page 1217] of it: Trade Practices Commission v TNT Management Pty Ltd [1981] ACLD 831; Australian Competition and Consumer Commission v Rural Press Ltd (1999) 169 ALR 201; (2000) ATPR ¶41-739. However, the preparation of a document by an officer does not mean that the statement is not also the product of the potential witness concerned: Australian Competition and Consumer Commission v Rural Press Ltd (1999) 169 ALR 201 at 201; (2000)

ATPR ¶41-739 at 40,568. See also Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2008] FCA 1298; BC200807502 at [10] per Tamberlin J. It is not necessary that such a document involve some element of intellectual activity to fall within the protection. The word “prepare” ordinarily means “to make ready”. The measure of its scope is the act of physical preparation or creation: Australian Competition and Consumer Commission v Rural Press Ltd (1999) 169 ALR 201 at 201; (2000) ATPR ¶41-739 at 40,567; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353; BC200401409 at [17] per Selway J. [14,200.10] “tends to establish the case” A document “tends to establish the case” of a corporation if it supports the corporation’s case. A document which might suggest some line of inquiry which could be of assistance to a corporation in conducting its case does not come within the description: Trade Practices Commission v TNT Management Pty Ltd, above. [14,200.15] Documents to which s 157 applies The documents to which s 157 applies may include briefing notes, summaries or precis of evidence, commentaries, reports, internal memoranda or witness statements: Australian Competition and Consumer Commission v Rural Press Ltd (1999) 169 ALR 201; (2000) ATPR ¶41-739 at 40,566. [14,200.20] Legal professional privilege The court has a discretionary power under s 157(2) to order the production of documents notwithstanding that they would ordinarily be protected by legal professional privilege: Australian Competition and Consumer Commission v FFE Building Services Ltd (2003) ATPR ¶41-967; [2003] FCA 1181; BC200306283 at [59] per Wilcox J. See also Arnotts Ltd v Trade Practices Commission (No 1) (1989) 21 FCR 297; 87 ALR 73; Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2008] FCA 1298; BC200807502 at [13] per Tamberlin J. However, legal professional privilege is not abrogated by s 157. The existence of the privilege is a factor to be taken into account in considering the proper exercise of the court’s discretion. In exercising its discretion the court should take into account the general intention disclosed by s 157 that a

corporation be given fair treatment in the sense that it is to be given documents which the commission has and which would support the corporation’s case, including by tending to impeach the commission’s case: Australian Competition and Consumer Commission v FFE Building Services Ltd, above, at [59] per Wilcox J; Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd,, above, at [13] per Tamberlin J. See also s 155 and [14,180.77]. [14,200.25] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provision see the Australian Securities and Investments Commission Act 2001. ________________________

[14,200AA] Disclosure of documents by Tribunal in relation to merger authorisations 157AA (1) If: (a) a corporation makes an application to the Tribunal in relation to an authorisation under Subdivision C of Division 3 of Part VII; or (b) the Tribunal proposes to revoke, or to revoke and substitute, an authorisation granted to the corporation under section 95AZM; [page 1218] the Tribunal must, at the request of the corporation and upon payment of the prescribed fee (if any), give to the corporation: (c) a copy of every document that has been given to, or obtained by, the Tribunal in relation to the application or revocation that tends to establish the corporation’s case; and (d) a copy of any other document in the Tribunal’s possession that comes to the Tribunal’s attention in relation to the application or revocation that tends to establish the corporation’s case.

(2) However, subsection (1) does not require the Tribunal to give to the corporation a document that was: (a) obtained from the corporation; or (b) prepared by an officer or professional adviser of the Tribunal. (3) If the Tribunal does not comply with a requirement under subsection (1), then, subject to subsection (4), the Court must, upon application by the corporation, make an order directing the Tribunal to comply with the requirement. (4) The Court may refuse to make an order under subsection (3) in respect of a document or part of a document if the Court considers it inappropriate to make the order by reason that the disclosure of the contents of the document or part of the document would prejudice any person, or for any other reason. (5) Before the Court gives a decision on an application under subsection (3), the Court may require any documents to be produced to it for inspection. (6) An order under this section may be expressed to be subject to conditions specified in the order. [s 157AA insrt Act 131 of 2006 s 3 and Sch 1[41], opn 1 Jan 2007]

[14,203] Disclosure of information by Commission 157A (1) The Commission or a Commission official may disclose to: (a) the AER; or (b) the AEMC; or (c) any staff or consultant assisting the AER or the AEMC in performing its functions or exercising its powers; any information that it obtains under this Act that is relevant to the functions or powers of the AER or the AEMC. Note: The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information. (2) The AER or a person mentioned in paragraph (1)(c) may use the information for any purpose connected with the performance of the AER’s functions or the exercise of its powers. (3) The AEMC or a person mentioned in paragraph (1)(c) may use the information for any purpose connected with the performance of the AEMC’s

functions or the exercise of its powers. (4) The Commission or a Commission official may impose conditions to be complied with in relation to information disclosed. [page 1219] (5) In this section: Commission official means: (a) a member, or associate member, of the Commission; or (b) a person referred to in subsection 27(1); or (c) a person engaged under section 27A. [s 157A insrt Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

[14,208] Disclosure of protected cartel information to a court or tribunal 157B (1) Commission or a Commission official not required to disclose protected cartel information The Commission or a Commission official is not to be required: (a) to produce to a court or tribunal a document containing protected cartel information; or (b) to disclose protected cartel information to a court or tribunal; except with the leave of the court or tribunal. (2) In exercising its powers to grant leave under subsection (1), the court or tribunal must have regard to the following matters: (a) the fact that the protected cartel information was given to the Commission in confidence; (b) Australia’s relations with other countries; (c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence and criminal investigation; (d) in a case where the protected cartel information was given by an informant:

the protection or safety of the informant or of persons (i) associated with the informant; and (ii) the fact that the production of a document containing protected cartel information, or the disclosure of protected cartel information, may discourage informants from giving protected cartel information in the future; (e) in the case of a court — the interests of the administration of justice; (f) in the case of a tribunal — the interests of securing the effective performance of the tribunal’s functions; and must not have regard to any other matters. (3) If: (a) a document is produced; or (b) information is disclosed; to a court or tribunal in accordance with leave granted under subsection (1) in relation to particular proceedings, the document or information must not be adduced in other proceedings before the court or tribunal except: (c) in accordance with leave granted under subsection (1) in relation to the other proceedings; or (d) as a result of an exercise of power under subsection (4) in relation to the other proceedings. (4) Commission or a Commission official may disclose protected cartel information The Commission or a Commission official may: [page 1220] (a) produce to the court or tribunal a document containing protected cartel information; or (b) disclose protected cartel information to the court or tribunal. (5) In exercising the powers conferred by subsection (4), the Commission or Commission official must have regard to the following matters: (a) the fact that the protected cartel information was given to the Commission in confidence; (b) Australia’s relations with other countries;

(c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence and criminal investigation; (d) in a case where the protected cartel information was given by an informant: (i) the protection or safety of the informant or of persons associated with the informant; and (ii) the fact that the production of a document containing protected cartel information, or the disclosure of protected cartel information, may discourage informants from giving protected cartel information in the future; (e) in the case of production or disclosure to a court — the interests of the administration of justice; (f) in the case of production or disclosure to a tribunal — the interests of securing the effective performance of the tribunal’s functions; and must not have regard to any other matters. (6) If: (a) a document is produced; or (b) information is disclosed; to a court or tribunal as a result of an exercise of power under subsection (4) in relation to particular proceedings, the document or information must not be adduced in other proceedings before the court or tribunal except: (c) in accordance with leave granted under subsection (1) in relation to the other proceedings; or (d) as a result of an exercise of power under subsection (4) in relation to the other proceedings. (7) Definitions In this section: Commission official means: (a) a member, or associate member, of the Commission; or (b) a person referred to in subsection 27(1); or (c) a person engaged under section 27A. disclose means divulge or communicate. protected cartel information means information that: (a) was given to the Commission in confidence; and

(b) relates to a breach, or a possible breach, of section 44ZZRF, 44ZZRG, 44ZZRJ or 44ZZRK. [s 157B insrt Act 59 of 2009 s 3 and Sch 1[116], opn 24 July 2009]

[page 1221]

[14,213] Disclosure of protected cartel information to a party to court proceedings etc 157C (1) Commission or Commission official not required to make discovery of documents containing protected cartel information etc If: (a) a person is a party to proceedings before a court; and (b) the Commission is not a party to the proceedings; the Commission or a Commission official is not to be required, in connection with the proceedings, to: (c) make discovery (however described) to the person of a document containing protected cartel information; or (d) produce to the person a document containing protected cartel information. (2) If: (a) a person is considering instituting proceedings before a court; and (b) the proceedings have not yet been instituted; the Commission or a Commission official is not to be required, in connection with the prospective proceedings, to: (c) make discovery (however described) to the person of a document containing protected cartel information; or (d) produce to the person a document containing protected cartel information. (3) Commission or Commission official may disclose protected cartel information If: (a) a person is a party to proceedings before a court; and (b) the Commission is not a party to the proceedings; the Commission or a Commission official may, on application by the person:

(c) make a copy of a document containing protected cartel information; and (d) give the copy to the person. (4) If: (a) a person is considering instituting proceedings before a court; and (b) the proceedings have not yet been instituted; the Commission or a Commission official may, on application by the person: (c) make a copy of a document containing protected cartel information; and (d) give the copy to the person. (5) In exercising the powers conferred by subsection (3) or (4), the Commission or Commission official must have regard to the following matters: (a) the fact that the protected cartel information was given to the Commission in confidence; (b) Australia’s relations with other countries; (c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence and criminal investigation; (d) in a case where the protected cartel information was given by an informant: (i) the protection or safety of the informant or of persons associated with the informant; and (ii) the fact that the production of a document containing protected cartel information, or the disclosure of protected cartel information, may discourage informants from giving protected cartel information in the future; [page 1222] (e) the interests of the administration of justice; and must not have regard to any other matters. (6) If a copy of a document is given to a party, or prospective party, to proceedings before a court as a result of an exercise of power under

subsection (3) or (4), the copy must not be adduced in other proceedings before: (a) the court; or (b) another court; or (c) a tribunal; except: (d) as a result of an exercise of power under subsection (3) or (4) in relation to the other proceedings; or (e) in accordance with leave granted under subsection 157B(1) in relation to the other proceedings; or (f) as a result of an exercise of power under subsection 157B(4) in relation to the other proceedings. (7) Definitions In this section: Commission official means: (a) a member, or associate member, of the Commission; or (b) a person referred to in subsection 27(1); or (c) a person engaged under section 27A. protected cartel information means information that: (a) was given to the Commission in confidence; and (b) relates to a breach, or a possible breach, of section 44ZZRF, 44ZZRG, 44ZZRJ or 44ZZRK. [s 157C insrt Act 59 of 2009 s 3 and Sch 1[116], opn 24 July 2009]

[14,218]

General powers of a court

157D (1) Power of a court in a criminal or civil proceeding The power of a court to control the conduct of a criminal or civil proceeding, in particular with respect to abuse of process, is not affected by section 157B or 157C, except so far as that section expressly or impliedly provides otherwise. (2) Stay order — criminal proceeding A refusal by a court to grant leave under subsection 157B(1) does not prevent the court from later ordering that a criminal proceeding be stayed on the ground that the refusal would have a substantial adverse effect on a defendant’s right to receive a fair hearing. (3) Stay order — civil proceeding A refusal by a court to grant leave

under subsection 157B(1) does not prevent the court from later ordering that a civil proceeding be stayed on the ground that the refusal would have a substantial adverse effect on the hearing in the proceeding. (4) In deciding whether to order a stay of the civil proceeding, the court must consider: (a) the extent of any financial loss that a party would suffer as a result of the proceeding being stayed; and (b) whether a party has reasonable prospects of obtaining a remedy in the proceeding; and (c) any other matter the court considers relevant. [s 157D insrt Act 59 of 2009 s 3 and Sch 1[116], opn 24 July 2009]

[page 1223]

[14,220] Protection of members of Tribunal, counsel and witnesses 158 (1) A member of the Tribunal has, in the performance of his or her duty as a member, the same protection and immunity as a Justice of the High Court. [subs (1) am Act 88 of 1995 s 91]

(2) A person appearing before the Tribunal on behalf of a person, or assisting the Tribunal as counsel, has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court. [subs (2) am Act 88 of 1995 s 28]

(3) Subject to this Act, a person appearing before the Tribunal or the Commission to give evidence has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, in any civil or criminal proceedings as a witness in proceedings in the High Court.

[14,255]

Incriminating answers

*159 (1) A person appearing before the Commission to give evidence or produce documents is not excused from answering a question, or producing a

document, on the ground that the answer to the question, or the document, may tend to incriminate the person or expose the person to a penalty. [subs (1) am Act 88 of 1995 s 91; Act 59 of 2009 s 3 and Sch 2[48], opn 24 July 2009]

(2) Evidence given by an individual before the Commission is not admissible against the individual in any criminal proceedings, other than: (a) proceedings for an offence against this Part; or (b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part. [subs (2) subst Act 59 of 2009 s 3 and Sch 2[49], opn 24 July 2009]

[14,260]

Failure of witness to attend

160 (1) A person served, as prescribed, with a summons to appear as a witness before the Tribunal shall not: (a) fail to attend as required by the summons; or (b) fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by a member of the Tribunal. [subs (1) Act 88 of 1995 s 91; am Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

(1A) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code. [subs (1A) insrt Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

*Editor’s note: Item 53(2) of Sch 2 of Act 59 of 2009 provides: “(2) The amendments of section 159 of the Trade Practices Act 1974 made by this Schedule apply in relation to: (a) requirements to give evidence; and (b) requirements to produce documents; imposed after the commencement of this item [24 July 2009].”

[page 1224] (2) A person who contravenes subsection (1) is guilty of an offence

punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties. [subs (2) subst Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

[14,265] Refusal to be sworn or to answer questions 161 (1) A person appearing as a witness before the Tribunal shall not: (a) refuse or fail to be sworn or to make an affirmation; (b) refuse or fail to answer a question that he or she is required to answer by the member presiding at the proceedings; or (c) refuse or fail to produce a document that he or she was required to produce by a summons under this Act served on him or her as prescribed. [subs (1) am Act 88 of 1995 s 91; Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

(1A) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code. [subs (1A) insrt Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

(2) It is a reasonable excuse for an individual to refuse or fail to answer a question that he or she is required to answer under this section that the answer to the question may tend to incriminate him or her. Note: A defendant bears an evidential burden in relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal Code. [subs (2) am Act 88 of 1995 ss 74 and 91; Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

(3) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with

penalties. [subs (3) subst Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

[14,270]

Contempt

162 (1) A person shall not: (a) insult a member of the Tribunal, a member of the Commission or an AER member in the exercise of his or her powers or functions as a member; (b) interrupt the proceedings of the Tribunal or a conference held by the Commission under section 90 or 93A, Division 3 of Part XI or section 151AZ; (c) create a disturbance, or take part in creating or continuing a disturbance, in or near a place where the Tribunal is sitting or the Commission is holding such a conference; or (d) do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court. [subs (1) am Act 88 of 1995 s 91; Act 58 of 1997 s 3 and Sch 1; Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005; Act 103 of 2010 s 3 and Sch 5[114], opn 1 Jan 2011]

(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties. [subs (2) subst Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001]

[page 1225]

[14,275]

Intimidation etc

162A A person who: (a) threatens, intimidates or coerces another person; or (b) causes or procures damage, loss or disadvantage to another person;

for or on account of that other person proposing to furnish or having furnished information, or proposing to produce or having produced documents, to the Commission, the Tribunal or the AER, or for or on account of the other person proposing to appear or having appeared as a witness before the Tribunal is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties. [s 162A am Act 146 of 2001 s 3 and Sch 2, opn 15 Dec 2001; Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

[14,280]

Prosecutions

163 (1) Prosecutions for offences against this Act may be brought in any court having jurisdiction in the matter. [subs (1) am Act 57 of 2000 s 3 and Sch 1]

*(2) In so far as this section has effect as a law of the Commonwealth, the Federal Court has jurisdiction in any matter in respect of which a criminal proceeding is instituted for an offence to which subsection (1) applies, and that jurisdiction is exclusive of the jurisdiction of any other court other than: (a) the jurisdiction of a Supreme Court of a State or Territory under section 68 of the Judiciary Act 1903 with respect to any matter in respect of which a criminal proceeding is instituted for an offence against section 44ZZRF or 44ZZRG; and (b) the jurisdiction of a court under section 68 of the Judiciary Act 1903 with respect to the examination and commitment for trial on indictment of a person who is charged with an indictable offence; and (c) the jurisdiction of the High Court under section 75 of the Constitution. [subs (2) subst Act 59 of 2009 s 3 and Sch 1[117], opn 24 July 2009]

(3) [subs (3) rep Act 106 of 1998 s 3 and Sch 2] (4) Proceedings under this section, other than proceedings instituted by:

(aa) the Director of Public Prosecutions; or (a) the Commission; or (b) a person authorised in writing by the Commission; or (c) a person authorised in writing by the Secretary of the Department; shall not be instituted except with the consent in writing of the Minister or of a person authorised by the Minister in writing to give such consents. [subs (4) subst Act 20 of 1988 s 5; am Act 57 of 2000 s 3 and Sch 1; Act 59 of 2009 s 3 and Sch 1[119], [120], opn 24 July 2009; am Act 5 of 2011 s 3 and Sch 7 item 39, opn 19 Apr 2011]

*Editor’s note: Item 118 of Sch 1 of Act 59 of 2009 provides: “Despite the repeal of subsection 163(2) of the Trade Practices Act 1974 by this Schedule, that subsection continues to apply, in relation to prosecutions instituted before the commencement of this item [24 July 2009], as if that repeal had not happened.”

[page 1226] (5) A prosecution for an offence against section 118, 154Q, 155 or 155B may be commenced at any time after the commission of the offence. [subs (5) am Act 70 of 1990 s 14; Act 131 of 2006 s 3 and Sch 8[23], opn 1 Jan 2007]

(6) Despite subsection (2), the Federal Court does not have jurisdiction in any matter in respect of which a criminal proceeding is instituted for an offence against section 44ZZRF or 44ZZRG if the proceeding is instituted before the commencement of Schedule 1 to the Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009. [subs (6) insrt Act 59 of 2009 s 3 and Sch 1[121], opn 24 July 2009]

SECTION 163 GENERALLY [14,280.5] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provision see the Australian Securities and Investments Commission Act 2001. [14,280.8] Prosecutions by the commission Section 163(4) contemplates prosecutions by the commission for alleged offences against the

Act, although the Act does not expressly confer power to prosecute. The commission may share the common law right available to a citizen to commence criminal proceedings: Australian Competition and Consumer Commission v Oceana Commercial Pty Ltd (2004) ATPR (Digest) ¶46-255; [2004] FCAFC 174; BC200404122 at [141] per Heerey, Sundberg and Dowsett JJ. [14,280.10] Consent of the minister As to the correlation between any description or particulars of the offence contained in the written consent and the description of the minister, and the particulars in the information and the summons, see Travel Land Pty Ltd v Doherty (1982) 41 ALR 563; 63 FLR 41; (1982) ATPR ¶40-293. [14,280.15] Stated case for Full Court — proceedings commenced by information A single judge of the Federal Court lacks the power to state a case for the opinion of the Full Court of the Federal Court of Australia in proceedings commenced by information which seeks a fine in respect of a contravention of the Act. Such proceedings do not raise “any question concerning a matter with respect to which an appeal would lie from a judgment of the judge to a Full Court of the Court” within the meaning of s 25(6) of the Federal Court of Australia Act 1976: Henderson v Pioneer Homes Pty Ltd (1979) 25 ALR 179 per Franki and Northrop JJ (Smithers J dissenting). ________________________

[14,285]

Declarations and orders

163A (1) Declarations and orders Subject to this section, a person may, in relation to a matter arising under this Act, institute a proceeding in a court having jurisdiction to hear and determine proceedings under this section seeking the making of: (a) a declaration in relation to the operation or effect of any provision of this Act other than the following provisions: (i) Part V; *(ia) [repealed] (ii) Part XIB; (iii) Part XIC; or

*Editor’s Note: Item 50 of Schedule 1 of the Statute Stocktake (Regulatory and Other Laws) Act 2009 No 111 provides as follows:

[page 1227] (aaa)a declaration in relation to the operation or effect of any provision of the Australian Consumer Law other than Division 1 of Part 3-2 or Part 5-4; or (aa) a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act; or (b) an order by way of, or in the nature of, prohibition, certiorari or mandamus; or both such a declaration and such an order. [subs (1) am Act 58 of 1997 s 3 and Sch 1; Act 61 of 1999 s 3 and Sch 1; Act 57 of 2000 s 3 and Sch 1; Act 59 of 2009 s 3 and Sch 1[122], opn 24 July 2009; Act 111 of 2009 s 3 and Sch 1[46], opn 17 Nov 2009; Act 103 of 2010 s 3 and Sch 5[115] and [116], opn 1 Jan 2011; Act 136 of 2012 s 3 and Sch 1 item 36, opn 22 Sep 2012; Act 83 of 2014 s 3 and Sch 2 item 26, opn 18 July 2014]

(1A) Subsection (1) does not apply in relation to a matter arising under Part IIIAA. [subs (1A) insrt Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

(2) When Minister may institute, or intervene in, proceedings Subject to subsection (2A), the Minister may institute a proceeding under this section and may intervene in any proceeding instituted under this section or in a proceeding instituted otherwise than under this section in which a party is seeking the making of a declaration of a kind mentioned in paragraph (1)(a) or (aa) or an order of a kind mentioned in paragraph (1)(b). [subs (2) am Act 88 of 1995 s 75; Act 58 of 1997 s 3 and Sch 1; Act 57 of 2000 s 3 and Sch 1; Act 59 of 2009 s 3 and Sch 1[122], opn 24 July 2009]

(2A) Subsections (1) and (2) do not permit the Minister: (a) to institute a proceeding seeking a declaration, or an order described in paragraph (1)(b), that relates to Part IV; or (b) to intervene in a proceeding so far as it relates to a matter that arises under Part IV. [subs (2A) insrt Act 88 of 1995 s 75]

(3) When Commission may institute proceedings The Commission may institute a proceeding in the Court seeking, in relation to a matter arising under this Act, the making of a declaration of the kind that may be made under paragraph (1)(a). [subs (3) subst Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001; Act 59 of 2009 s 3 and Sch 1[122], opn 24 July 2009]

(3A) Jurisdiction of Federal Court Subject to subsections (4B) and (4C), in so far as this section has effect as a law of the Commonwealth, the Federal Court has jurisdiction to hear and determine proceedings under this section. [subs (3A) insrt Act 57 of 2000 s 3 and Sch 1; am Act 59 of 2009 s 3 and Sch 1[122], opn 24 July 2009]

(4) The jurisdiction of the Federal Court under subsection (3A) to make: (a) a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act by the Tribunal; or Transitional — Repeal of subparagraph 163A(1)(a)(ia) of the Trade Practices Act 1974 50 (1) Despite the repeal of subparagraph 163A(1)(a)(ia) of the Trade Practices Act 1974 made by item 46 of this Part, that subparagraph continues to apply, so that a declaration about the operation or effect of Part VB of the old law cannot be sought, as if that repeal had not happened. (2) In this item: old law means the Trade Practices Act 1974 as in force immediately before the commencement of this item.

[page 1228] (b) an order of a kind mentioned in paragraph (1)(b) directed to the Tribunal; shall be exercised by not less than 3 Judges. [subs (4) am Act 57 of 2000 s 3 and Sch 1]

(4A) Jurisdiction of State/Territory Supreme Courts etc In so far as this section has effect as a law of the Commonwealth, the Supreme Court of a State or Territory does not have jurisdiction to hear and determine proceedings under this section otherwise than in accordance with subsection

(4B) or (4C). This subsection has effect despite any other law, including section 39 of the Judiciary Act 1903. [subs (4A) insrt Act 59 of 2009 s 3 and Sch 1[123], opn 24 July 2009]

(4B) If a decision to prosecute a person for an offence against section 44ZZRF or 44ZZRG has been made and the prosecution is proposed to be commenced in the Supreme Court of a State or Territory: (a) the Federal Court does not have jurisdiction with respect to any matter in which a person seeks the making of a paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in relation to that decision; and (b) if the Supreme Court is the Supreme Court of a State — in so far as this section has effect as a law of the Commonwealth, the Supreme Court is invested with federal jurisdiction with respect to any such matter; and (c) if the Supreme Court is the Supreme Court of a Territory, then: (i) in so far as this section has effect as a law of the Commonwealth; and (ii) subject to the Constitution; the Supreme Court is conferred with jurisdiction with respect to any such matter. [subs (4B) insrt Act 59 of 2009 s 3 and Sch 1[123], opn 24 July 2009]

(4C) Subject to subsection (4D), at any time when: (a) a prosecution for an offence against section 44ZZRF or 44ZZRG is before the Supreme Court of a State or Territory; or (b) an appeal arising out of such a prosecution is before the Supreme Court of a State or Territory; the following apply: (c) the Federal Court does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks the making of a paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in relation to a related criminal justice process decision; (d) if the Supreme Court is the Supreme Court of a State — in so far as this section has effect as a law of the Commonwealth, the Supreme Court is invested with federal jurisdiction with respect to

any such matter; (e) if the Supreme Court is the Supreme Court of a Territory, then: (i) in so far as this section has effect as a law of the Commonwealth; and (ii) subject to the Constitution; the Supreme Court is conferred with jurisdiction with respect to any such matter. [subs (4C) insrt Act 59 of 2009 s 3 and Sch 1[123], opn 24 July 2009]

(4D) Subsection (4C) does not apply if, before the commencement of a prosecution for an offence against section 44ZZRF or 44ZZRG, a person seeks the making of a paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in relation to a related criminal justice process decision. [subs (4D) insrt Act 59 of 2009 s 3 and Sch 1[123], opn 24 July 2009]

[page 1229] (4E) If subsection (4D) applies, the prosecutor may apply to the Federal Court for a permanent stay of the paragraph (1)(aa) or (b) proceedings referred to in that subsection, and the Federal Court may grant such a stay if the Federal Court determines that: (a) the matters the subject of the proceedings are more appropriately dealt with in the criminal justice process; and (b) a stay of proceedings will not substantially prejudice the person. [subs (4E) insrt Act 59 of 2009 s 3 and Sch 1[123], opn 24 July 2009]

(5) Definitions

In this section, proceeding includes a cross-proceeding.

[subs (5) am Act 59 of 2009 s 3 and Sch 1[123], opn 24 July 2009]

(6) In this section: related criminal justice process decision has the same meaning as in section 39B of the Judiciary Act 1903. [subs (6) insrt Act 59 of 2009 s 3 and Sch 1[124], opn 24 July 2009]

SECTION 163A GENERALLY [14,285.1] Financial services

Financial services are regulated by the

Australian Securities and Investments Commission. For the equivalent provision see the Australian Securities and Investments Commission Act 2001. [14,285.3] Declarations Section 163A(3) was amended by the Trade Practices Amendment Act (No 1) 2001 to give the commission the same power to seek a declaration as that available to another person under s 163A(1)(a). Section 163A(3A) was introduced following the decision in Re Wakim; Ex parte McNally (1999) 198 CLR 511; 163 ALR 270. However, in the absence of clear words the provision should not be construed as displacing the power of a state or territory court to grant declaratory relief: Woodham v Lander [2004] ACTSC 34; BC200403100 at [23] per Harper M. [14,285.5] Section not to apply to civil litigation under consumer protection provisions of the Act The words in section 163A(1)(aa) “any act or thing done, proposed to be done or purporting to be done under this Act” relate to the conduct of persons or bodies entrusted with some function under the Act rather than to a step taken as part of a contractual dispute between two parties: Polgardy v Australian Guarantee Corp Ltd (1981) 34 ALR 391; 52 FLR 240. [14,285.10] “in relation to a matter” In Re Tooth & Co Ltd (1978) 19 ALR 191 at 197; 31 FLR 314 the court said: Because of the terms of Chapter III of the Constitution, the court can only validly be given jurisdiction where there is a “matter” . . . The distinction between “matter” and “proceeding” has to be borne in mind in applying s 163A (see Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265; Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 541 and Felton v Mulligan (1971) 124 CLR 367 at 382; [1972] ALR 33 at 40-1). However, the words used in s 163A do not necessarily require the existence of a “matter” separate and distinct from the “proceeding”. Section 163A is an example of the method of legislating to confer jurisdiction which is referred to in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 165 and Hooper v Hooper (1955) 91 CLR 529 at 535-6, where the statute deals with substantive rights although expressed in terms conferring jurisdiction.

The requirement that there be a “matter” derives from the power conferred under s 77 of the Constitution, to define the jurisdiction of the courts it creates and to invest the courts of the states with federal jurisdiction: Australian Gas Light Co v Australian Competition and Consumer Commission (No 2) (2003) ATPR ¶41-962; [2003] FCA 1229; BC200306410

at [36] per French J. [page 1230] In that case, French J had to consider an application seeking declarations that the applicant’s proposed acquisition would not contravene s 50 of the Act. French J said at [40]: The making of a declaration as to the lawfulness of future conduct has long been accepted as an exercise of judicial power. The fact that declaratory relief relates to future conduct does not place it outside the bounds of federal jurisdiction. If the claim for the declaration arises out of a contemporary controversy in which a party’s freedom of action is challenged in some way, that controversy can constitute a matter for the purposes of the exercise of federal jurisdiction. Whether or not there is a real controversy is a question of judgment. In the present case, in my opinion, there is a real controversy about the right or freedom of AGL to proceed with the proposed acquisition in relation to the Loy Yang A power station and the coal mine. Its freedom to do so has been challenged in a very practical way by the regulator in correspondence and most explicitly in its defence where it denies that the proposed acquisitions would not contravene s 50 of the Trade Practices Act.

The effect of s 163A(1) and (3A) is arguably to confer on the court jurisdiction to hear and determine proceedings in relation to a “matter” arising under the Act in which a declaration is sought under s 163A: Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317; 200 ALR 607 at [169] per Branson J. [14,285.13] Hypothetical or assumed facts The court will not make a declaration where the question is purely hypothetical or based on assumed statement of facts: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9; BC9901019 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203; (1999) ATPR ¶41-705. [14,285.15] Order for costs In O’Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) (1995) 55 FCR 591; 128 ALR 718; (1995) ATPR ¶41393 at 40,361 Spender J observed that when the Commission intervenes under s 163A it does so pursuant to the statute. On intervention the person can tender evidence and participate fully in all aspects of the argument and can appeal. Subject to any express restriction, the discretion given to the Federal Court under the Federal Court of Australia Act 1976, for ordering

costs applies equally to s 163A. ________________________

[14,290] Proceedings by Commission to be in its official name 164

[s 164 rep Act 81 of 1977 s 76]

[14,295] Inspection of, furnishing of copies of, and evidence of, documents 165 (1) A person may, on application in accordance with the regulations and on payment of the prescribed fee (if any): (a) inspect any document contained in the register kept under subsection 89(3) or 95(1) or section 95AH; and (b) obtain a copy of such a document (including, where the person so requests, a copy certified to be a true copy under the hand of a person authorized by the Commission to certify such copies). [subs (1) am Act 59 of 2009 s 3 and Sch 2[50], opn 27 June 2009]

(2) Subject to subsection (3) and to any direction under subsection 106(2), a person may, on application in accordance with the regulations and on payment of the prescribed fee (if any): (a) inspect the document recording a declaration under section 50A or a determination of the Tribunal or any document furnished to, or recorded in the records of, the Tribunal in pursuance of this Act or the regulations; and [page 1231] (b) obtain a copy of such a document (including, where the person so requests, a copy certified to be a true copy under the hand of the Registrar or of a Deputy Registrar). (3) Unless the Tribunal in a particular case otherwise directs, subsection (2) does not apply in relation to a document furnished to the Tribunal if the

person by whom the document was furnished claims, as prescribed, that the document contains matter of a confidential nature. (3A) Subject to any direction under subsection 106(2), a person may, on application in accordance with the regulations and on payment of the prescribed fee (if any): (a) inspect any document contained in the register kept under section 95AZ; and (b) obtain a copy of such a document (including, where the person so requests, a copy certified to be a true copy by the Registrar or a Deputy Registrar). [subs (3A) insrt Act 59 of 2009 s 3 and Sch 2[51], opn 27 June 2009]

(4) A copy of a determination of the Commission, certified to be a true copy by a person authorized by the Commission to certify copies of determinations of the Commission, shall be received in all courts as evidence of the determination. (5) A document purporting to be a copy of a determination of the Commission and to be certified to be a true copy in accordance with subsection (4) shall, unless the contrary is established, be deemed to be such a copy and to be so certified. (6) A copy of a declaration under section 50A or a determination of, or undertaking given to, the Tribunal, certified to be a true copy under the hand of the Registrar or of a Deputy Registrar, shall be received in all courts as evidence of the declaration, determination or undertaking.

[14,300] Certificates as to furnishing of particulars to Commission 166 (1) Where particulars of, or of a provision of, a contract, arrangement or understanding have been furnished to the Commission for the purposes of paragraph 51(2)(g), the Commission shall, on application by a party to the contract or to the arrangement or understanding, cause to be furnished to the party a certificate signed by a member of the Commission specifying the particulars so furnished and the date on which the particulars were furnished. (2) A certificate referred to in subsection (1) shall be received in all courts

as evidence that the particulars specified in the certificate were furnished to the Commission on the date so specified. (3) A person is not entitled to inspect any particulars of, or of a provision of, a contract, arrangement or understanding that have been furnished to the Commission for the purposes of paragraph 51(2)(g), but the Commission may make those particulars available to the Minister or to an officer acting on behalf of, and with the authority of, the Minister or to a court.

[14,305]

Judicial notice

167 (1) All courts shall take judicial notice of: (a) the official signature of any person who holds or has held the office of President, Deputy President, member of the Tribunal, Chairperson, Deputy Chairperson, member of the Commission, Registrar, Deputy Registrar, AER Chair or AER member and of the fact that that person holds or has held that office; and [page 1232] (b) the official seal of the Tribunal, of the Commission or of the AER; if the signature or seal purports to be attached or appended to an official document. [subs (1) am Act 88 of 1995 s 76; Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005]

(1A) All courts must take judicial notice of: (a) the official signature of a person who holds or has held the office of Chairman, Deputy Chairman, or member (including associate member) of the New Zealand Commerce Commission and of the fact that the person holds or has held the office; and (b) the imprint of the common seal of the New Zealand Commerce Commission; if the signature or imprint purports to be attached or appended to an official document. [subs (1A) insrt Act 70 of 1990 s 15]

(2) In this section, court includes a Federal Court or a court of a State or

Territory and all persons authorized by law or by consent of parties to receive evidence.

[14,310] related 168

[s 168 rep Act 81 of 1977 s 78]

[14,315] court 169

Presumption that bodies corporate not

Single judge may exercise jurisdiction of

[s 169 rep Act 81 of 1977 s 78]

[14,320]

Legal and financial assistance

170 (1) A person: (a) who has instituted, or proposes to institute, a proceeding before the Commission or the Tribunal, or a proceeding before the Court under Part IVB, Part VI or section 163A, or under Part 3-5 or Chapter 5 of the Australian Consumer Law; (b) who is entitled to participate, or has been permitted to intervene, in a proceeding before the Commission or the Tribunal; or (c) against whom a proceeding before the Court has been instituted under Part IVB, Part VI or section 163A, or under Part 3-5 or Chapter 5 of the Australian Consumer Law; may apply to the Attorney-General for a grant of assistance under this section in respect of the proceeding. [subs (1) am Act 106 of 1992 s 5 and Sch; Act 36 of 1998 Sch 1; Act 103 of 2010 s 3 and Sch 5[117]– [120], opn 1 Jan 2011]

(2) Where an application is made by a person under subsection (1), the Attorney-General, or a person appointed or engaged under the Public Service Act 1999 (the public servant) authorized in writing by the AttorneyGeneral, may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the grant by the

Commonwealth to the person, either unconditionally or subject to such conditions as the Attorney-General or public servant determines, of such legal or financial assistance in relation to the proceeding as the AttorneyGeneral or public servant determines. [subs (2) am Act 88 of 1995 s 91; Act 146 of 1999 s 3 and Sch 1]

[page 1233] (3) In this section: (a) a reference to a proceeding before the Commission is a reference to a proceeding in relation to an application for, or in relation to the revocation of, an authorisation under Division 1 of Part VII or a clearance under Division 3 of Part VII; and (b) a reference to a proceeding before the Tribunal is a reference to: (i) an application to the Tribunal for a declaration under subsection 50A(1); or (ii) a proceeding in relation to an application for, or the revocation of, an authorisation under Division 3 of Part VII; or (iii) an application for a review of a determination, or of the giving of a notice, by the Commission. [subs (3) insrt Act 131 of 2006 s 3 and Sch 1[42], [43], opn 1 Jan 2007]

[14,325]

Annual report by Commission

171 (1) The Commission shall, within 60 days after each year ending on 30 June, furnish to the Minister, for presentation to the Parliament, a report with respect to its operations in that year. (2) The report must include a cumulative list of all Commonwealth, State and Territory laws that the Commission knows about that authorise things for the purposes of subsection 51(1) of this Act or subsection 51(1) of the Competition Code (as defined in section 150A). [subs (2) insrt Act 88 of 1995 s 29]

(3) The report must also include:

(aa) details of the time taken by the Commission to: (i) make final determinations under section 44V in relation to access disputes; and (ii) make decisions on access undertaking applications (within the meaning of section 44B) or access code applications (within the meaning of that section); and (iii) make decisions on applications under subsection 44PA(1) (about government tendering); and (a) the number of: (i) notices given by the Commission under section 155; and (ii) [repealed] (iii) notices given by the Commission under section 155A; and (b) a general description of the nature of the matters in respect of which the notices were given; and (c) the number of proceedings brought to challenge the validity of the notices; and (ca) the number of search warrants issued by a judge under section 135Z or signed by a judge under section 136; and (d) the number of search warrants issued by a magistrate under section 154X or signed by a magistrate under section 154Y; and (da) a general description of the nature of the matters in respect of which the search warrants referred to in paragraph (ca) or (d) were issued or signed; and (db) the number of proceedings brought to challenge the validity of the search warrants referred to in paragraph (ca) or (d); and [page 1234] (dc) the number of entries onto premises under section 133B or 133C, Division 6 of Part XI or Part XID; and (e) the number of complaints received by the Commission; and (f) a general summary of the kinds of complaints received by the Commission and how it dealt with them; and (g) a general description of the major matters investigated by the

Commission; and (h) the number of times the Commission has intervened in proceedings and a general description of the reasons for doing so. [subs (3) insrt Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001; am Act 92 of 2006 s 3 and Sch 1[113], opn 1 Oct 2006; Act 131 of 2006 s 3 and Sch 8[24]–[27], opn 1 Jan 2007; Act 103 of 2010 s 3 and Sch 5[121]–[123], opn 1 Jan 2011]

SECTION 171 GENERALLY [14,325.5] Overview The section requires the commission to furnish to the minister for presentation to Parliament an annual report of its operations. Until the insertion of s 171(3) by the Trade Practices Amendment Act (No 1) 2001, the section did not specify in any detail the matters that should be included in the annual report. Section 171(3) now lists a number of matters that must be included in the annual report. ________________________

[14,327]

Charges by the Commission

171A (1) The Commission may make a charge of an amount, or at a rate, determined by the Commission for: (a) supplying a person with material published by the Commission in the course of carrying out its functions or exercising its powers; or (b) permitting a person to attend or take part in a prescribed activity arranged by or on behalf of the Commission for the purpose of carrying out any of its functions. (2) Where: (a) the Commission provides a discretionary service for a person; and (b) this Act does not otherwise provide for a charge for the service; the Commission may make a charge of such amount, or at such a rate, as is agreed between the Commission and the person. (3) In this section, a reference to the provision by the Commission of a discretionary service for a person is a reference to the doing of an act by the Commission, being a prescribed act that: (a) the Commission has power to do but is not required to do by or under any law; and

(b) the Commission does at the person’s request. [s 171A insrt Act 136 of 1991 s 23]

[14,328B] Division 3 of Part IIIA does not confer judicial power on the Commission 171B (1) Division 3 of Part IIIA has no effect to the extent (if any) to which it purports to confer judicial power on the Commission. [subs (1) am Act 140 of 2010 s 3 and Sch 1[197], opn 1 Jan 2011]

[page 1235] (2) In this section: judicial power means the judicial power of the Commonwealth referred to in section 71 of the Constitution. [s 171B insrt Act 58 of 1997 s 3 and Sch 1]

[14,330]

Regulations

172 (1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act (other than Schedule 2) to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act (other than Schedule 2) and, in particular, prescribing: (a) matters in connexion with the procedure of the Tribunal, the Commission and the AER; and (b) the fees and expenses of witnesses in proceedings before the Tribunal and the Commission; and (c) matters for and in relation to the costs, if any, that may be awarded by the Court in proceedings before the Court under this Act; and (d) the fees payable to the Commission on making a prescribed application, or giving a prescribed notice, to the Commission under this Act or the regulations. [subs (1) am Act 136 of 1991 s 24; Act 108 of 2004 s 3 and Sch 1, opn 23 May 2005; Act 103 of 2010

s 3 and Sch 5[124] and [125], opn 1 Jan 2011]

(1A) [subs (1A) rep Act 103 of 2010 s 3 and Sch 5[126], opn 1 Jan 2011] (1B) Regulations made for the purposes of paragraph (1)(a) or (b) do not apply in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law. Note: See section 44ZZR. [subs (1B) insrt Act 45 of 2007 s 3 and Sch 1[81], opn 1 July 2008]

(2) The regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of this Act (other than Part IV or Schedule 2) or of specified provisions of this Act (other than Part IV or Schedule 2): (a) conduct engaged in by a specified organization or body that performs functions in relation to the marketing of primary products; (b) a prescribed contract or proposed contract, contracts included in a prescribed class of contracts, or prescribed conduct, being a contract, proposed contract or class of contracts made, or conduct engaged in, in pursuance of or for the purposes of a specified agreement, arrangement or understanding between the Government of Australia and the Government of a country outside Australia; or (c) prescribed conduct engaged in in the course of a business carried on by the Commonwealth or by a prescribed authority of the Commonwealth. [subs (2) am Act 88 of 1995 s 30; Act 103 of 2010 s 3 and Sch 5[127], opn 1 Jan 2011]

(2A) The regulations may prescribe the circumstances in which the Commission may, on behalf of the Commonwealth, wholly or partly waive the fee that would otherwise be payable for an application referred to in subsection 89(1). [subs (2A) insrt Act 131 of 2006 s 3 and Sch 2[12], opn 1 Jan 2007]

[page 1236] (2B) Subsection (2A) does not apply to an application for an authorisation under subsection 88(9), a minor variation of such an authorisation, a

revocation of such an authorisation or a revocation of such an authorisation and the substitution of another authorisation. [subs (2B) insrt Act 131 of 2006 s 3 and Sch 2[12], opn 1 Jan 2007]

(3) Strict compliance with a form of application or notice prescribed for the purposes of this Act is not, and shall be deemed never to have been, required and substantial compliance is, and shall be deemed always to have been, sufficient.

[14,335] Authorisation for the purposes of subsection 51(1) 173 (1) In deciding whether a person (including a corporation) has contravened section 50 of this Act, the vesting of ownership of primary products in the person by legislation is to be taken, for the purposes of subparagraph 51(1)(a)(i), to be specified in, and specifically authorised by, this section. (2) In this section: primary products means: (a) agricultural or horticultural produce, including produce that has been subjected to a manufacturing process; or (b) crops, whether on or attached to the land or not; or (c) animals (whether dead or alive); or (d) the bodily produce (including natural increase) of animals. Note: An example of agricultural produce that has been subjected to a manufacturing process is sugar cane that has been transformed into raw sugar. [s 173 insrt Act 106 of 1998 s 3 and Sch 3]

SECTION 173 GENERALLY [14,335.5] Overview Section 173 was inserted by the Trade Practices Amendment (Country of Origin Representations) Act 1998. It exempts from the application of s 50 (mergers) the vesting of primary products in a person by legislation. The most likely application is to statutory boards and authorities in which primary products are vested.

The section was inserted to put to rest any suggestion that the vesting of primary products might constitute a relevant “acquisition” of assets thereby attracting s 50. This was conceivable as s 4(4) states that the reference to the acquisition of assets is to be construed as the acquisition of any legal or equitable interest in the assets. The section now removes the vesting of primary products by legislation from the application of s 50. [14,335.10] Primary products Primary products are defined in s 173(2) in identical terms to s 2C(3) which applies in determining whether an activity is a business activity. ________________________

[page 1237] PART XIII — APPLICATION AND TRANSITIONAL PROVISIONS RELATING TO THE COMPETITION PROVISIONS [Pt 13 insrt Act 59 of 2009 s 3 and Sch 1[125], opn 24 July 2009]

DIVISION 1 — CARTEL CONDUCT

[14,340]

Definitions

174 In this Division: commencement time means the commencement of Division 1 of Part IV.

[14,345] Giving effect after the commencement time to a cartel provision in existence before that time 175 The following provisions of this Act: (a) paragraph 88(1A)(b); (b) paragraph 93AB(1A)(c); (c) paragraph 93AB(1A)(d); apply in relation to a contract or arrangement made, or an understanding arrived at, before, at or after the commencement time.

[14,350] Proceedings relating to price-fixing contraventions taking place before the commencement time 176 Despite the repeal of section 76D by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009, that section continues to apply, in relation to proceedings (whether instituted before or

after the commencement time) in relation to a contravention that took place before the commencement time, as if that repeal had not happened.

[14,355] Authorisations in force before the commencement time 177 (1) This section applies if: (a) an authorisation (the pre-commencement authorisation) was granted to a person to give effect to a provision of a contract, arrangement or understanding; and (b) the provision is a cartel provision; and (c) the authorisation was in force immediately before the commencement time. (2) This Act has effect, after the commencement time, as if: (a) the Commission had, at the commencement time, granted to the person an authorisation under subsection 88(1A) to give effect to the cartel provision; and (b) the day specified in the subsection 88(1A) authorisation as the day the authorisation comes into force were the day on which Division 1 of Part IV commenced; and (c) if, immediately before the commencement time, the precommencement authorisation was expressed to be in force for a period (the initial period) specified in that authorisation — the subsection 88(1A) authorisation were expressed to be in force for a period specified in the subsection 88(1A) authorisation, and that period were the period: (i) starting at the commencement time; and (ii) ending at the end of the initial period; and [page 1238] (d) any requirements for the granting of the subsection 88(1A) authorisation were satisfied. (3) Subsection (2) does not prevent the subsection 88(1A) authorisation

from being varied, revoked or set aside in accordance with this Act.

[14,360] Notifications in force before the commencement time 178 (1) This section applies if: (a) a person gave the Commission a collective bargaining notice under subsection 93AB(1) in relation to a proposal to give effect to a provision of a contract, arrangement or understanding; and (b) the provision is a cartel provision of the kind referred to in paragraph 93AB(1A)(c) or (d); and (c) the subsection 93AB(1) notice is in force immediately before the commencement time. (2) This Act has effect, after the commencement time, as if: (a) the person had, at the commencement time, given the Commission a collective bargaining notice under subsection 93AB(1A) in relation to a proposal to give effect to the cartel provision; and (b) despite subsections 93AD(1) and (2), the subsection 93AB(1A) notice had come into force at the commencement time; and (c) despite paragraph 93AD(3)(c), the period applicable to the subsection 93AB(1A) notice for the purposes of paragraph 93AD(3)(c) were the period: (i) starting at the commencement time; and (ii) ending at the end of the period of 3 years starting on the day the person gave the subsection 93AB(1) notice to the Commission; and (d) any requirements for the giving of the subsection 93AB(1A) notice were satisfied. (3) Subsection (2) does not prevent the subsection 93AB(1A) notice from ceasing to be in force in accordance with this Act. DIVISION 2 — APPLICATION OF AMENDMENTS MADE BY THE COMPETITION AND CONSUMER LEGISLATION AMENDMENT ACT 2011 [Div 2 insrt Act 184 of 2011 s 3 and Sch 1[3], opn 6 Feb 2012]

[14,380]

Amendments of section 50

179 The amendments of section 50 made by Schedule 1 to the Competition and Consumer Legislation Amendment Act 2011 apply to acquisitions occurring after the commencement of that Schedule. [page 1239]

[14,400]

* SCHEDULE 1 — THE SCHEDULE VERSION OF PART IV

[Sch 1 am Act 60 of 1996 s 3 and Sch 17; Act 61 of 1999 s 3 and Sch 1; Act 111 of 2009 s 3 and Sch 1[47], opn 17 Nov 2009; Act 44 of 2010 s 3 and Sch 4[5], opn 1 July 2010]

PART 1 — SCHEDULE VERSION OF PART IV [Pt 1 insrt Act 61 of 1999 s 3 and Sch 1]

Note: See section 150A. DIVISION 1 — CARTEL CONDUCT [Div 1 insrt Act 59 of 2009 s 3 and Sch 1[126], opn 24 July 2009]

Subdivision A — Introduction Simplified outline 44ZZRA The following is a simplified outline of this Division: • This Division sets out parallel offences and civil penalty provisions relating to cartel conduct. • A person must not make, or give effect to, a contract, arrangement or understanding that contains a cartel provision. • A cartel provision is a provision relating to: (a) price-fixing; or (b) restricting outputs in the production and supply chain; or (c) allocating customers, suppliers or territories; or (d) bid-rigging; by parties that are, or would otherwise be, in competition with each other.

Definitions 44ZZRB In this Division: annual turnover, of a body corporate during a 12-month period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12-month period, other than: (a) supplies made from any of those bodies corporate to any other of those bodies corporate; or (b) supplies that are input taxed; or (c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999); or *Editor’s note: Item 49 of Schedule 1 of the Statute Stocktake (Regulatory and Other Laws) Act 2009 No 111 provides as follows: Application of items 47 and 48 49 If, at the time when this item commences, item 5 of Schedule 4 to the Trade Practices Amendment (Australian Consumer Law) Act 2009 has commenced, then a reference to the Schedule in the heading of item 47 or 48 of this Part is taken to be a reference to Schedule 1.

[page 1240] (d) supplies that are not made in connection with an enterprise that the body corporate carries on; or (e) supplies that are not connected with Australia. Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act. benefit includes any advantage and is not limited to property. bid includes: (a) tender; and (b) the taking, by a potential bidder or tenderer, of a preliminary step in a bidding or tendering process. evidential burden, in relation to a matter, means the burden of adducing

or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. knowledge has the same meaning as in the Criminal Code. likely, in relation to any of the following: (a) a supply of goods or services; (b) an acquisition of goods or services; (c) the production of goods; (d) the capacity to supply services; includes a possibility that is not remote. obtaining includes: (a) obtaining for another person; and (b) inducing a third person to do something that results in another person obtaining. party has a meaning affected by section 44ZZRC. production includes manufacture, processing, treatment, assembly, disassembly, renovation, restoration, growing, raising, mining, extraction, harvesting, fishing, capturing and gathering. Extended meaning of party 44ZZRC For the purposes of this Division, if a body corporate is a party to a contract, arrangement or understanding (otherwise than because of this section), each body corporate related to that body corporate is taken to be a party to that contract, arrangement or understanding. Cartel provisions 44ZZRD (1) For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if: (a) either of the following conditions is satisfied in relation to the provision: (i) the purpose/effect condition set out in subsection (2); (ii) the purpose condition set out in subsection (3); and (b) the competition condition set out in subsection (4) is satisfied in relation to the provision.

[page 1241] (2) Purpose/effect condition The purpose/effect condition is satisfied if the provision has the purpose, or has or is likely to have the effect, of directly or indirectly: (a) fixing, controlling or maintaining; or (b) providing for the fixing, controlling or maintaining of; the price for, or a discount, allowance, rebate or credit in relation to: (c) goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or (d) goods or services acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or (e) goods or services re-supplied, or likely to be re-supplied, by persons or classes of persons to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or (f) goods or services likely to be re-supplied by persons or classes of persons to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding. Note 1: The purpose/effect condition can be satisfied when a provision is considered with related provisions — see subsection (8). Note 2: Party has an extended meaning — see section 44ZZRC. (3) Purpose condition The purpose condition is satisfied if the provision has the purpose of directly or indirectly: (a) preventing, restricting or limiting: (i) the production, or likely production, of goods by any or all of the parties to the contract, arrangement or understanding; or (ii) the capacity, or likely capacity, of any or all of the parties to the contract, arrangement or understanding to supply services; or (iii) the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or (b) allocating between any or all of the parties to the contract,

arrangement or understanding: (i) the persons or classes of persons who have acquired, or who are likely to acquire, goods or services from any or all of the parties to the contract, arrangement or understanding; or (ii) the persons or classes of persons who have supplied, or who are likely to supply, goods or services to any or all of the parties to the contract, arrangement or understanding; or (iii) the geographical areas in which goods or services are supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or (iv) the geographical areas in which goods or services are acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or (c) ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services: (i) one or more parties to the contract, arrangement or understanding bid, but one or more other parties do not; or [page 1242] (ii) 2 or more parties to the contract, arrangement or understanding bid, but at least 2 of them do so on the basis that one of those bids is more likely to be successful than the others; or (iii) 2 or more parties to the contract, arrangement or understanding bid, but not all of those parties proceed with their bids until the suspension or finalisation of the request for bids process; or (iv) 2 or more parties to the contract, arrangement or understanding bid and proceed with their bids, but at least 2 of them proceed with their bids on the basis that one of those bids is more likely to be successful than the others; or (v) 2 or more parties to the contract, arrangement or understanding bid, but a material component of at least one of

those bids is worked out in accordance with the contract, arrangement or understanding. Note 1: For example, subparagraph (3)(a)(iii) will not apply in relation to a roster for the supply of after-hours medical services if the roster does not prevent, restrict or limit the supply of services. Note 2: The purpose condition can be satisfied when a provision is considered with related provisions — see subsection (9). Note 3: Party has an extended meaning — see section 44ZZRC. (4) Competition condition The competition condition is satisfied if at least 2 of the parties to the contract, arrangement or understanding: (a) are or are likely to be; or (b) but for any contract, arrangement or understanding, would be or would be likely to be; in competition with each other in relation to: (c) if paragraph (2)(c) or (3)(b) applies in relation to a supply, or likely supply, of goods or services — the supply of those goods or services; or (d) if paragraph (2)(d) or (3)(b) applies in relation to an acquisition, or likely acquisition, of goods or services — the acquisition of those goods or services; or (e) if paragraph (2)(e) or (f) applies in relation to a re-supply, or likely re-supply, of goods or services — the supply of those goods or services to that re-supplier; or (f) if subparagraph (3)(a)(i) applies in relation to preventing, restricting or limiting the production, or likely production, of goods — the production of those goods; or (g) if subparagraph (3)(a)(ii) applies in relation to preventing, restricting or limiting the capacity, or likely capacity, to supply services — the supply of those services; or (h) if subparagraph (3)(a)(iii) applies in relation to preventing, restricting or limiting the supply, or likely supply, of goods or services — the supply of those goods or services; or (i) if paragraph (3)(c) applies in relation to a supply of goods or Services — the supply of those goods or services; or (j) if paragraph (3)(c) applies in relation to an acquisition of goods or

services — the acquisition of those goods or services. Note: Party has an extended meaning — see section 44ZZRC. [page 1243] (5) Immaterial whether identities of persons can be ascertained It is immaterial whether the identities of the persons referred to in paragraph (2) (e) or (f) or subparagraph (3)(a)(iii), (b)(i) or (ii) can be ascertained. (6) Recommending prices etc For the purposes of this Division, a provision of a contract, arrangement or understanding is not taken: (a) to have the purpose mentioned in subsection (2); or (b) to have, or be likely to have, the effect mentioned in subsection (2); by reason only that it recommends, or provides for the recommending of, a price, discount, allowance, rebate or credit. (7) Immaterial whether particular circumstances or particular conditions It is immaterial whether: (a) for the purposes of subsection (2), subparagraph (3)(a)(iii) and paragraphs (3)(b) and (c) — a supply or acquisition happens, or a likely supply or likely acquisition is to happen, in particular circumstances or on particular conditions; and (b) for the purposes of subparagraph (3)(a)(i) — the production happens, or the likely production is to happen, in particular circumstances or on particular conditions; and (c) for the purposes of subparagraph (3)(a)(ii) — the capacity exists, or the likely capacity is to exist, in particular circumstances or on particular conditions. (8) Considering related provisions — purpose/effect condition For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose, or to have or be likely to have the effect, mentioned in subsection (2) if the provision, when considered together with any or all of the following provisions: (a) the other provisions of the contract, arrangement or understanding; (b) the provisions of another contract, arrangement or understanding,

if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the firstmentioned contract, arrangement or understanding; has that purpose, or has or is likely to have that effect. (9) Considering related provisions — purpose condition For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose mentioned in a paragraph of subsection (3) if the provision, when considered together with any or all of the following provisions: (a) the other provisions of the contract, arrangement or understanding; (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the firstmentioned contract, arrangement or understanding; has that purpose. (10) Purpose/effect of a provision For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose, or not to have or to be likely to have the effect, mentioned in subsection (2) by reason only of: (a) the form of the provision; or (b) the form of the contract, arrangement or understanding; or [page 1244] (c) any description given to the provision, or to the contract, arrangement or understanding, by the parties. (11) Purpose of a provision For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose mentioned in a paragraph of subsection (3) by reason only of: (a) the form of the provision; or (b) the form of the contract, arrangement or understanding; or (c) any description given to the provision, or to the contract, arrangement or understanding, by the parties.

Meaning of expressions in other provisions of this Act 44ZZRE In determining the meaning of an expression used in a provision of this Act (other than this Division, subsection 6(2C), paragraph 76(1A)(aa) or subsection 93AB(1A)), this Division is to be disregarded. Subdivision B — Offences etc Making a contract etc containing a cartel provision 44ZZRF (1) Offence A person commits an offence if: (a) the person makes a contract or arrangement, or arrives at an understanding; and (b) the contract, arrangement or understanding contains a cartel provision. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) The fault element for paragraph (1)(b) is knowledge or belief. (3) Penalty An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following: (a) (a) $10,000,000; (b) if the court can determine the total value of the benefits that: (i) have been obtained by one or more persons; and (ii) are reasonably attributable to the commission of the offence; 3 times that total value; (c) if the court cannot determine the total value of those benefits — 10% of the corporation’s annual turnover during the 12-month period ending at the end of the month in which the corporation committed, or began committing, the offence. (4) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both. (5) Indictable offence An offence against subsection (1) is an indictable offence. Giving effect to a cartel provision 44ZZRG (1) Offence A person commits an offence if:

(a) a contract, arrangement or understanding contains a cartel provision; and (b) the person gives effect to the cartel provision. (2) The fault element for paragraph (1)(a) is knowledge or belief. (3) Penalty An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not exceeding the greater of the following: (a) $10,000,000; [page 1245] (b) if the court can determine the total value of the benefits that: (i) have been obtained by one or more persons; and (ii) are reasonably attributable to the commission of the offence; 3 times that total value; (c) if the court cannot determine the total value of those benefits — 10% of the body corporate’s annual turnover during the 12-month period ending at the end of the month in which the body corporate committed, or began committing, the offence. (4) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both. (5) Pre-commencement contracts etc Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section. (6) Indictable offence An offence against subsection (1) is an indictable offence. Determining guilt 44ZZRH (1) A person may be found guilty of an offence against section 44ZZRF or 44ZZRG even if: (a) each other party to the contract, arrangement or understanding is a person who is not criminally responsible; or (b) subject to subsection (2), all other parties to the contract,

arrangement or understanding have been acquitted of the offence. Note: Party has an extended meaning — see section 44ZZRC. (2) A person cannot be found guilty of an offence against section 44ZZRF or 44ZZRG if: (a) all other parties to the contract, arrangement or understanding have been acquitted of such an offence; and (b) a finding of guilt would be inconsistent with their acquittal. Court may make related civil orders 44ZZRI If a prosecution against a person for an offence against section 44ZZRF or 44ZZRG is being, or has been, heard by a court, the court may: (a) grant an injunction under section 80 against the person in relation to: (i) the conduct that constitutes, or is alleged to constitute, the offence; or (ii) other conduct of that kind; or (b) make an order under section 86C, 86D, 86E or 87 in relation to the offence. Subdivision C — Civil penalty provisions Making a contract etc containing a cartel provision 44ZZRJ A person contravenes this section if: (a) the person makes a contract or arrangement, or arrives at an understanding; and (b) the contract, arrangement or understanding contains a cartel provision. Note: For enforcement, see Part VI. [page 1246] Giving effect to a cartel provision 44ZZRK (1) A person contravenes this section if: (a) a contract, arrangement or understanding contains a cartel

provision; and (b) the person gives effect to the cartel provision. Note: For enforcement, see Part VI. (2) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section. Subdivision D — Exceptions Conduct notified 44ZZRL (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply to a person in relation to a contract, arrangement or understanding containing a cartel provision, in so far as: (a) the cartel provision: (i) has the purpose, or has or is likely to have the effect, mentioned in subsection 44ZZRD(2); or (ii) has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c); and (b) the person has given the Commission a collective bargaining notice under subsection 93AB(1A) setting out particulars of the contract, arrangement or understanding; and (c) the notice is in force under section 93AD. (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter. Cartel provision subject to grant of authorisation 44ZZRM (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the making of a contract that contains a cartel provision if: (a) the contract is subject to a condition that the provision will not come into force unless and until the person is granted an authorisation to give effect to the provision; and (b) the person applies for the grant of such an authorisation within 14 days after the contract is made. (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.

Contracts, arrangements or understandings between related bodies corporate 44ZZRN (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding if the only parties to the contract, arrangement or understanding are bodies corporate that are related to each other. (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter. Joint ventures — prosecution 44ZZRO (1) Sections 44ZZRF and 44ZZRG do not apply in relation to a contract containing a cartel provision if: (a) the cartel provision is for the purposes of a joint venture; and [page 1247] (b) the joint venture is for the production and/or supply of goods or services; and (c) in a case where subparagraph 4J(a)(i) applies to the joint venture — the joint venture is carried on jointly by the parties to the contract; and (d) in a case where subparagraph 4J(a)(ii) applies to the joint venture — the joint venture is carried on by a body corporate formed by the parties to the contract for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (1A) Section 44ZZRF does not apply in relation to an arrangement or

understanding containing a cartel provision if: (a) the arrangement or understanding is not a contract; and (b) when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding: (i) intended the arrangement or understanding to be a contract; and (ii) reasonably believed that the arrangement or understanding was a contract; and (c) the cartel provision is for the purposes of a joint venture; and (d) the joint venture is for the production and/or supply of goods or services; and (e) in a case where subparagraph 4J(a)(i) applies to the joint venture — the joint venture is carried on jointly by the parties to the arrangement or understanding; and (f) in a case where subparagraph 4J(a)(ii) applies to the joint venture — the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (1B) Section 44ZZRG does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if: (a) the arrangement or understanding is not a contract; and (b) when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding: (i) intended the arrangement or understanding to be a contract; and (ii) reasonably believed that the arrangement or understanding was a contract; and

(c) when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and [page 1248] (d) the cartel provision is for the purposes of a joint venture; and (e) the joint venture is for the production and/or supply of goods or services; and (f) in a case where subparagraph 4J(a)(i) applies to the joint venture — the joint venture is carried on jointly by the parties to the arrangement or understanding; and (g) in a case where subparagraph 4J(a)(ii) applies to the joint venture — the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (2) A person who wishes to rely on subsection (1), (1A) or (1B) bears an evidential burden in relation to that matter. (3) Notice to prosecutor A person is not entitled to rely on subsection (1), (1A) or (1B) in a trial for an offence unless, within 28 days after the day on which the person is committed for trial, the person gives the prosecutor: (a) a written notice setting out: (i) the facts on which the person proposes to rely for the purpose of discharging the evidential burden borne by the person in relation to the matter in subsection (1), (1A) or (1B), as the case may be; and

(ii) the names and address of any witnesses whom the person proposes to call for the purpose of discharging the evidential burden borne by the person in relation to the matter in subsection (1), (1A) or (1B), as the case may be; and (b) certified copies of any documents which the person proposes to adduce or point to for the purpose of discharging the evidential burden borne by the person in relation to the matter in subsection (1), (1A) or (1B), as the case may be. (4) If the trial of a person for an offence is being, or is to be, held in a court, the court may, by order: (a) exempt the person from compliance with subsection (3); or (b) extend the time within which the person is required to comply with subsection (3). (5) For the purposes of paragraph (3)(b), a certified copy of a document is a copy of the document certified to be a true copy by: (a) a Justice of the Peace; or (b) a commissioner for taking affidavits. Joint ventures — civil penalty proceedings 44ZZRP (1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a contract containing a cartel provision if: (a) the cartel provision is for the purposes of a joint venture; and (b) the joint venture is for the production and/or supply of goods or services; and [page 1249] (c) in a case where subparagraph 4J(a)(i) applies to the joint venture — the joint venture is carried on jointly by the parties to the contract; and (d) in a case where subparagraph 4J(a)(ii) applies to the joint venture — the joint venture is carried on by a body corporate formed by the parties to the contract for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by

means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (1A) Section 44ZZRJ does not apply in relation to an arrangement or understanding containing a cartel provision if: (a) the arrangement or understanding is not a contract; and (b) when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding: (i) intended the arrangement or understanding to be a contract; and (ii) reasonably believed that the arrangement or understanding was a contract; and (c) the cartel provision is for the purposes of a joint venture; and (d) the joint venture is for the production and/or supply of goods or services; and (e) in a case where subparagraph 4J(a)(i) applies to the joint venture — the joint venture is carried on jointly by the parties to the arrangement or understanding; and (f) in a case where subparagraph 4J(a)(ii) applies to the joint venture — the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (1B) Section 44ZZRK does not apply in relation to giving effect to a cartel

provision contained in an arrangement or understanding if: (a) the arrangement or understanding is not a contract; and (b) when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding: (i) intended the arrangement or understanding to be a contract; and (ii) reasonably believed that the arrangement or understanding was a contract; and (c) when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and (d) the cartel provision is for the purposes of a joint venture; and [page 1250] (e) the joint venture is for the production and/or supply of goods or services; and (f) in a case where subparagraph 4J(a)(i) applies to the joint venture — the joint venture is carried on jointly by the parties to the arrangement or understanding; and (g) in a case where subparagraph 4J(a)(ii) applies to the joint venture — the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (2) A person who wishes to rely on subsection (1), (1A) or (1B) bears an evidential burden in relation to that matter.

Covenants affecting competition 44ZZRQ (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract containing a cartel provision, in so far as the cartel provision constitutes a covenant to which section 45B applies or, but for subsection 45B(9), would apply. (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter. Resale price maintenance 44ZZRR (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision relates to: (a) conduct that contravenes section 48; or (b) conduct that would contravene section 48 but for the operation of subsection 88(8A); or (c) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply. (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter. Exclusive dealing 44ZZRS (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as giving effect to the cartel provision would, or would but for the operation of subsection 47(10) or 88(8) or section 93, constitute a contravention of section 47. (2) Sections 44ZZRG and 44ZZRK do not apply in relation to the giving effect to a cartel provision by way of: (a) engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or 88(8) or section 93 contravene, section 47; or

[page 1251] (b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when: (i) an authorisation under subsection 88(8) is in force in relation to conduct engaged in by that person on that condition; or (ii) by reason of subsection 93(7), conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition. (3) A person who wishes to rely on subsection (1) or (2) bears an evidential burden in relation to that matter. Dual listed company arrangement 44ZZRT (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as: (a) the contract, arrangement or understanding is a dual listed company arrangement; and (b) the making of the contract, arrangement or understanding would, or would apart from subsection 88(8B), contravene section 49. (2) Sections 44ZZRG and 44ZZRK do not apply in relation to the giving effect to a cartel provision, in so far as: (a) the cartel provision is a provision of a dual listed company arrangement; and (b) the giving effect to the cartel provision would, or would apart from subsection 88(8B), contravene section 49. (3) A person who wishes to rely on subsection (1) or (2) bears an evidential burden in relation to that matter. Acquisition of shares or assets 44ZZRU (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not

apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision provides directly or indirectly for the acquisition of: (a) any shares in the capital of a body corporate; or (b) any assets of a person. (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter. Collective acquisition of goods or services by the parties to a contract, arrangement or understanding 44ZZRV (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as: (a) the cartel provision has the purpose, or has or is likely to have the effect, mentioned in subsection 44ZZRD(2); and [page 1252] (b) either: (i) the cartel provision relates to the price for goods or services to be collectively acquired, whether directly or indirectly, by the parties to the contract, arrangement or understanding; or (ii) the cartel provision is for the joint advertising of the price for the re-supply of goods or services so acquired. (2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter. DIVISION 1A — ANTI-COMPETITIVE DISCLOSURE OF PRICING AND OTHER INFORMATION [Div 1A insrt Act 185 of 2011 s 3 and Sch 1[17], opn 6 June 2012]

Definitions 44ZZS In this Division: disclose has a meaning affected by section 44ZZU.

Division 1A goods or services means goods or services to which this Division applies (see section 44ZZT). evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. intermediary: see subsection 44ZZU(3). private disclosure to competitors: see section 44ZZV. Goods and services to which this Division applies 44ZZT This Division applies to goods and services of the classes prescribed by the regulations for the purpose of section 44ZZT of the Competition and Consumer Act 2010. Provisions affecting whether a person has disclosed information to another person 44ZZU (1) Disclosure to director, employee or agent etc of another person For the purpose of this Division: (a) if a person (the first person) makes a disclosure of information to another person (the second person) in the second person’s capacity as a director, employee or agent of a body corporate, the disclosure is taken to have been made by the first person to the body corporate; and (b) if a person (the first person) makes a disclosure of information to another person (the second person) in the second person’s capacity as an employee or agent of another person (not being a body corporate), the disclosure is taken to have been made by the first person to that other person. (2) Disclosure to discloser’s own agent For the purpose of this Division, the disclosure of information by a person (the first person) to another person is to be disregarded if: (a) the disclosure is made to the other person in the other person’s capacity as an agent of the first person; and (b) subsection (3) does not apply to the disclosure.

[page 1253] (3) Disclosure through intermediary If: (a) a person (the first person) makes a disclosure of information to another person (the intermediary); and (b) the first person makes the disclosure to the intermediary for the purpose of the intermediary disclosing (or arranging for the disclosure of) the information to one or more other persons; and (c) the information is so disclosed to one or more of those other persons (the recipients); then, for the purpose of this Division: (d) the disclosure of the information to the recipients is taken to have been made by the first person; and (e) the disclosure of the information to the intermediary is to be disregarded (unless the intermediary is a competitor or potential competitor of the first person in a market). (4) Accidental disclosure For the purpose of this Division, the disclosure of information by a person (the first person) to another person (the recipient) is to be disregarded if the disclosure to the recipient is due to: (a) an accident; or (b) the default of a person other than the first person; or (c) some other cause beyond the control of the first person. Note: This subsection does not apply to a disclosure of information covered by subsection (3). (5) Section 84 not limited This section does not limit section 84. Meaning of private disclosure to competitors 44ZZV (1) Main definition A disclosure of information by a corporation is a private disclosure to competitors, in relation to a particular market, if the disclosure is to one or more competitors or potential competitors of the person in that market, and is not to any other person. Note: The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more competitors or potential

competitors, and is not to any other person. (2) Anti-avoidance For the purpose of determining whether a person (the first person) has made a private disclosure to competitors in relation to a particular market, the fact that the disclosure is also made to another person who is not a competitor or potential competitor of the first person in that market is to be disregarded if: (a) for a disclosure that is not made through an intermediary — the first person made the disclosure to the other person for the purpose of avoiding the application of section 44ZZW to the disclosure; or (b) for a disclosure that is made through an intermediary — either: (i) the first person directed or requested the intermediary to disclose the information to the other person for the purpose of avoiding the application of section 44ZZW to the disclosure; or (ii) the intermediary disclosed the information to the other person for the purpose of avoiding the application of section 44ZZW to the disclosure. [page 1254] (3) Fact that the information is otherwise available is not relevant The question whether a disclosure of information by a person is a private disclosure to competitors is not affected by the information otherwise being or becoming available to competitors or potential competitors of the person in the market, or to other persons. Person must not make private disclosure of pricing information etc to competitors 44ZZW A person must not make a disclosure of information if: (a) the information relates to a price for, or a discount, allowance, rebate or credit in relation to, Division 1A goods or services supplied or likely to be supplied, or acquired or likely to be acquired, by the person in a market (whether or not the information also relates to other matters); and

(b) the disclosure is a private disclosure to competitors in relation to that market; and (c) the disclosure is not in the ordinary course of business. Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(6A) or notified under subsection 93(1). Person must not make disclosure of pricing information etc for purpose of substantially lessening competition 44ZZX (1) The prohibition A person must not make a disclosure of information if: (a) the information relates to one or more of the following (whether or not it also relates to other matters): (i) a price for, or a discount, allowance, rebate or credit in relation to, Division 1A goods or services supplied or likely to be supplied, or acquired or likely to be acquired, by the person; (ii) the capacity, or likely capacity, of the person to supply or acquire Division 1A goods or services; (iii) any aspect of the commercial strategy of the person that relates to Division 1A goods or services; and (b) the person makes the disclosure for the purpose of substantially lessening competition in a market. Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(6A). (2) Determining whether disclosure made for purpose of substantially lessening competition In determining, for the purpose of this section, if a person has made a disclosure for the purpose of substantially lessening competition in a market, the matters to which the court may have regard include (but are not limited to): (a) whether the disclosure was a private disclosure to competitors in relation to that market; and (b) the degree of specificity of the information; and (c) whether the information relates to past, current or future activities; and (d) how readily available the information is to the public; and (e) whether the disclosure is part of a pattern of similar disclosures by

the person. (3) Without limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a person may be taken to have made a disclosure of information for the purpose of substantially lessening competition in a [page 1255] market even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or of any other person or from other relevant circumstances. Exceptions that apply to sections 44ZZW and 44ZZX 44ZZY (1) Disclosure authorised by law: general exception for 10 years Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a person if: (a) the disclosure is authorised by or under a law of the Commonwealth, a State or a Territory; and (b) the disclosure occurs before the end of 10 years after the day on which the Competition and Consumer Amendment Act (No 1) 2011 receives the Royal Assent. Note: This subsection has effect in addition to: (a) subsection (6) (which covers compliance with continuous disclosure requirements of the Corporations Act 2001); and (b) subsection 51(1) (which covers things authorised by certain laws). (2) Disclosure to related bodies corporate Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a body corporate (the first body corporate) if the disclosure is to one or more other bodies corporate that are related to the first body corporate, and is not to any other person. Note: The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more bodies corporate that are related to the first body corporate, and is not to any other person. (3) Disclosure for collective bargaining Sections 44ZZW and 44ZZX

do not apply to the disclosure of information by a person if: (a) the person has given the Commission a collective bargaining notice under subsection 93AB(1A) or (1) setting out particulars of a contract or proposed contract; and (b) the notice is in force; and (c) the disclosure is to one or more of the other contracting parties, and is not to any other person; and (d) the disclosure of the information: (i) if the notice relates to a contract — is required by the contract; or (ii) if the notice relates to a proposed contract — is made in the course of negotiations for the proposed contract or, if the proposed contract is entered into, is required by the contract. Note: The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more of the other contracting parties, and is not to any other person. (4) Disclosure in course of authorised conduct Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a person if: (a) an authorisation under section 88 (other than subsection 88(6A)) applies to or in relation to the person; and (b) the authorisation is in force; and (c) the disclosure of the information is made in the course of engaging in conduct that is covered by the authorisation. Note: A disclosure that would otherwise contravene section 44ZZW or 44ZZX can also be directly authorised under subsection 88(6A). [page 1256] (5) Disclosure covered by notification under section 93 Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a person if: (a) the person has given the Commission a notice under subsection 93(1) describing conduct; and (b) the disclosure is conduct described in the notice; and

(c) the notice is in force under section 93. (6) Compliance with continuous disclosure requirements of the Corporations Act 2001 Sections 44ZZW and 44ZZX do not apply to the disclosure of information by a person if the disclosure is made for the purpose of complying with Chapter 6CA of the Corporations Act 2001. Additional exceptions that only apply to section 44ZZW 44ZZZ (1) Disclosure of information to acquirer or supplier of goods or services Section 44ZZW does not apply to the disclosure of information by a person (the first person) to another person (the recipient) if: (a) the information relates to goods or services supplied or likely to be supplied, by the first person to the recipient; or (b) the information relates to goods or services acquired or likely to be acquired, by the first person from the recipient. (2) Disclosure to unknown competitor Section 44ZZW does not apply to the disclosure of information by a person (the first person) to another person (the recipient) if: (a) the recipient is a competitor or potential competitor of the first person in the market referred to in that section; and (b) the first person did not know, and could not reasonably be expected to have known, that the recipient was such a competitor or potential competitor. (3) Disclosure to participants in joint venture Section 44ZZW does not apply to the disclosure of information by a person if: (a) either: (i) the person is a participant in a joint venture for the production and/or supply of goods or services; or (ii) the person proposes to enter into a joint venture with one or more other persons (the proposed participants); and (b) the disclosure is to one or more participants or proposed participants in the joint venture, and is not to any other person; and (c) the disclosure is made for the purposes of the joint venture or in the course of negotiations for the joint venture.

Note: The effect of section 44ZZU must be taken into account in working out whether the disclosure is to one or more participants in the joint venture, and is not to any other person. (3A) Disclosure relating to provision of loans etc to same person Section 44ZZW does not apply to the disclosure of information between 2 or more persons (the relevant persons) if: (a) the information relates to services, being loans or credit, supplied, or likely to be supplied, by one or more of the relevant persons; and [page 1257] (b) 2 or more of the relevant persons are, in relation to the same person (the borrower), doing either or both of the following: (i) providing such services to the borrower; (ii) considering whether to provide such services to the borrower; (c) the disclosure is for the purpose of, or related to, providing services, or considering whether to provide services, to the borrower as mentioned in paragraph (b). (3B) Disclosure between credit provider and provider of credit service Section 44ZZW does not apply to the disclosure of information by a person to another person if: (a) one of the persons is a credit provider, and the other person provides a credit service, within the meaning of the National Consumer Credit Protection Act 2009; and (b) the disclosure is made in the course of the relationship between the persons in their capacities as credit provider and provider of a credit service. (4) Disclosure relating to acquisition of shares or assets Section 44ZZW does not apply to the disclosure of information by a person (the first person) in so far as the information is disclosed in connection with a contract, arrangement or understanding that provides, or a proposed contract, arrangement or understanding that would provide, for the acquisition of any shares in the capital of a body corporate, or any assets of a person, by or

from the first person. Note: For the meaning of acquisition of shares, and acquisition of assets, see subsection 4(4). (5) Disclosure if borrower insolvent etc Section 44ZZW does not apply to the disclosure of information between 2 or more persons (the relevant persons) if: (a) at least one of the relevant persons: (i) has provided a loan or credit to another person (the borrower); and (ii) has been notified of a borrower insolvency situation (see subsection (6)); and (b) the information relates to services, being loans or credit, supplied, or likely to be supplied, by one or more of the relevant persons; and (c) the disclosure is for the purpose of one or more of the relevant persons considering whether to take measures to return the borrower to solvency, or to avoid or reduce the risk of the borrower becoming insolvent. (6) For the purpose of subsection (5), a relevant person is notified of a borrower insolvency situation if: (a) the person is notified that there are reasonable grounds for suspecting that one or more of the following may be or become insolvent: (i) the borrower; (ii) a person who has given a guarantee or indemnity in respect of loans or credit provided to the borrower by one or more of the relevant persons; and (b) the notification is given by the borrower, or by a person referred to in subparagraph (a)(ii). Burden of proof 44ZZZA If: (a) proceedings are brought against a person in respect of section 44ZZW or 44ZZX; and

[page 1258] (b) the person seeks to rely on subsection 44ZZU(2) or (4), or on a subsection of section 44ZZY or 44ZZZ; the person bears an evidential burden in relation to the matters set out in that subsection on which the person seeks to rely. Mere receipt of information does not constitute being knowingly involved in contravention 44ZZZB For the purpose of paragraph 76(1)(e), a person is not taken to be directly or indirectly knowingly concerned in, or party to, a contravention of section 44ZZW or 44ZZX merely because the person is a recipient of information disclosed in contravention of that section. DIVISION 2 — OTHER PROVISIONS [Heading am Act 59 of 2009 s 3 and Sch 1[126], opn 24 July 2009]

Contracts, arrangements or understandings that restrict dealings or affect competition 45 (1) If a provision of a contract made before the commencement of this section: (a) is an exclusionary provision; or (b) has the purpose, or has or is likely to have the effect, of substantially lessening competition; that provision is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a person. (2) A person shall not: (a) make a contract or arrangement, or arrive at an understanding, if: (i) the proposed contract, arrangement or understanding contains an exclusionary provision; or (ii) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or (b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or

the understanding was arrived at, before or after the commencement of this section, if that provision: (i) is an exclusionary provision; or (ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition. (3) For the purposes of this section, competition, in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, means competition in any market in which a person who is a party to the contract, arrangement or understanding or would be a party to the proposed contract, arrangement or understanding, or any body corporate related to such a person, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services. [subs (3) am Act 59 of 2009 s 3 and Sch 1[127], opn 24 July 2009]

(4) For the purposes of the application of this section in relation to a particular person, a provision of a contract, arrangement or understanding or of a proposed [page 1259] contract, arrangement or understanding shall be deemed to have or to be likely to have the effect of substantially lessening competition if that provision and any one or more of the following provisions, namely: (a) the other provisions of that contract, arrangement or understanding or proposed contract, arrangement or understanding; and (b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the person or a body corporate related to the person is or would be a party; together have or are likely to have that effect. (5) This section does not apply to or in relation to: (a) a provision of a contract where the provision constitutes a covenant to which section 45B applies or, but for subsection 45B(9), would apply;

(b) a provision of a proposed contract where the provision would constitute a covenant to which section 45B would apply or, but for subsection 45B(9), would apply; or (c) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding in so far as the provision relates to: (i) conduct that contravenes section 48; or (ii) conduct that would contravene section 48 but for the operation of subsection 88(8A); or (iii) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply. (6) The making of a contract, arrangement or understanding does not constitute a contravention of this section by reason that the contract, arrangement or understanding contains a provision the giving effect to which would, or would but for the operation of subsection 47(10) or 88(8) or section 93, constitute a contravention of section 47 and this section does not apply to or in relation to the giving effect to a provision of a contract, arrangement or understanding by way of: (a) engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or 88(8) or section 93 contravene, section 47; or (b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when: (i) an authorization under subsection 88(8) is in force in relation to conduct engaged in by that person on that condition; or (ii) by reason of subsection 93(7) conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.

(6A) The following conduct: (a) the making of a dual listed company arrangement; (b) the giving effect to a provision of a dual listed company arrangement; [page 1260] does not contravene this section if the conduct would, or would apart from subsection 88(8B), contravene section 49. [subs (6A) insrt Act 131 of 2006 s 3 and Sch 6[17], opn 1 Jan 2007]

(7) This section does not apply to or in relation to a contract, arrangement or understanding in so far as the contract, arrangement or understanding provides, or to or in relation to a proposed contract, arrangement or understanding in so far as the proposed contract, arrangement or understanding would provide, directly or indirectly for the acquisition of any shares in the capital of a body corporate or any assets of a person. (8) This section does not apply to or in relation to a contract, arrangement or understanding, or a proposed contract, arrangement or understanding, the only parties to which are or would be bodies corporate that are related to each other. (8A) Subsection (2) does not apply to a person engaging in conduct described in that subsection if: (a) the person has given the Commission a collective bargaining notice under subsection 93AB(1) describing the conduct; and (b) the notice is in force under section 93AD. [subs (8A) insrt Act 131 of 2006 s 3 and Sch 3[26], opn 1 Jan 2007]

(9) The making by a person of a contract that contains a provision in relation to which subsection 88(1) applies is not a contravention of subsection (2) of this section if: (a) the contract is subject to a condition that the provision will not come into force unless and until the person is granted an authorization to give effect to the provision; and (b) the person applies for the grant of such an authorization within 14 days after the contract is made;

but nothing in this subsection prevents the giving effect by a person to such a provision from constituting a contravention of subsection (2). Contracts, arrangements or understandings in relation to prices 45A [s 45A rep Act 59 of 2009 s 3 and Sch 1[128], opn 24 July 2009] Covenants affecting competition 45B (1) A covenant, whether the covenant was given before or after the commencement of this section, is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a first person or on a person associated with a first person if the covenant has, or is likely to have, the effect of substantially lessening competition in any market in which the first person or any person associated with the first person supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services. (2) A first person or a person associated with a first person shall not: (a) require the giving of a covenant, or give a covenant, if the proposed covenant has the purpose, or would have or be likely to have the effect, of substantially lessening competition in any market in which: [page 1261] (i)

the first person, or any person associated with the first person by virtue of paragraph (7)(b), supplies or acquires, is likely to supply or acquire, or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services; or (ii) any person associated with the first person by virtue of the operation of paragraph (7)(a) supplies or acquires, is likely to supply or acquire, or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services, being a supply or acquisition in relation to which that person

is, or would be, under an obligation to act in accordance with directions, instructions or wishes of the first person; (b) threaten to engage in particular conduct if a person who, but for subsection (1), would be bound by a covenant does not comply with the terms of the covenant; or (c) engage in particular conduct by reason that a person who, but for subsection (1), would be bound by a covenant has failed to comply, or proposes or threatens to fail to comply, with the terms of the covenant. (3) Where a person: (a) issues an invitation to another person to enter into a contract containing a covenant; (b) makes an offer to another person to enter into a contract containing a covenant; or (c) makes it known that the person will not enter into a contract of a particular kind unless the contract contains a covenant of a particular kind or in particular terms; the first-mentioned person shall, by issuing that invitation, making that offer or making that fact known, be deemed to require the giving of the covenant. (4) For the purposes of this section, a covenant or proposed covenant shall be deemed to have, or to be likely to have, the effect of substantially lessening competition in a market if the covenant or proposed covenant, as the case may be, would have, or be likely to have, that effect when taken together with the effect or likely effect on competition in that market of any other covenant or proposed covenant to the benefit of which: (a) a person who is or would be, or but for subsection (1) would be, entitled to the benefit of the first-mentioned covenant or proposed covenant; or (b) a person associated with the person referred to in paragraph (a); is or would be, or but for subsection (1) would be, entitled. (5) The requiring of the giving of, or the giving of, a covenant does not constitute a contravention of this section by reason that giving effect to the covenant would, or would but for the operation of subsection 88(8) or section 93, constitute a contravention of section 47 and this section does not apply to or in relation to engaging in conduct in relation to a covenant by

way of: (a) conduct that contravenes, or would but for the operation of subsection 88(8) or section 93 contravene, section 47; or (b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when: [page 1262] (i)

an authorization under subsection 88(8) is in force in relation to conduct engaged in by that person on that condition; or (ii) by reason of subsection 93(7) conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition. (6) This section does not apply to or in relation to a covenant or proposed covenant where the only persons who are or would be respectively bound by, or entitled to the benefit of, the covenant or proposed covenant are persons who are associated with each other or are bodies corporate that are related to each other. (7) For the purposes of this section, section 45C and subparagraph 87(3) (a)(ii), the first person and another person (the second person) shall be taken to be associated with each other in relation to a covenant or proposed covenant if, and only if: (a) the first person is a body corporate and the second person is under an obligation (otherwise than in pursuance of the covenant or proposed covenant), whether formal or informal, to act in accordance with directions, instructions or wishes of the first person in relation to the covenant or proposed covenant; or (b) the second person is a body corporate in relation to which the first person is in the position mentioned in subparagraph 4A(1)(a)(ii). (8) The requiring by a person of the giving of, or the giving by a person of,

a covenant in relation to which subsection 88(5) applies is not a contravention of subsection (2) of this section if: (a) the covenant is subject to a condition that the covenant will not come into force unless and until the person is granted an authorization to require the giving of, or to give, the covenant; and (b) the person applies for the grant of such an authorization within 14 days after the covenant is given; but nothing in this subsection affects the application of paragraph (2)(b) or (c) in relation to the covenant. (9) This section does not apply to or in relation to a covenant or proposed covenant if: (a) the sole or principal purpose for which the covenant was or is required to be given was or is to prevent the relevant land from being used otherwise than for residential purposes; or (b) both of the following subparagraphs apply: (i) the person who required or requires the covenant to be given was or is, at that time, a registered charity; (ii) the covenant was or is required to be given for or in accordance with the purposes or objects of that registered charity; or (c) both of the following subparagraphs apply: (i) the covenant was or is required to be given in pursuance of a legally enforceable requirement made by a registered charity; (ii) that legally enforceable requirement was or is made for or in accordance with the purposes or objects of that registered charity. [subcl (9) am Act 169 of 2012 s 3 and Sch 2 items 165, 166, opn 3 Dec 2012]

[page 1263] Covenants in relation to prices 45C (1) In the application of subsection 45B(1) in relation to a covenant that has, or is likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a

discount, allowance, rebate or credit in relation to, goods or services supplied or acquired by the persons who are, or but for that subsection would be, bound by or entitled to the benefit of the covenant, or by any of them, or by any persons associated with any of them, in competition with each other, that subsection has effect as if the words “if the covenant has, or is likely to have, the effect of substantially lessening competition in any market in which the first person or any person associated with the first person supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services” were omitted. (2) In the application of subsection 45B(2) in relation to a proposed covenant that has the purpose, or would have or be likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired by the persons who would, or would but for subsection 45B(1), be bound by or entitled to the benefit of the proposed covenant, or by any of them, or by any persons associated with any of them, in competition with each other, paragraph 45B(2)(a) has effect as if all the words after the words “require the giving of a covenant, or give a covenant” were omitted. (3) For the purposes of this Act, a covenant shall not be taken not to have, or not to be likely to have, the effect, or a proposed covenant shall not be taken not to have the purpose, or not to have, or not to be likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services by reason only of: (a) the form of the covenant or proposed covenant; or (b) any description given to the covenant by any of the persons who are, or but for subsection 45B(1) would be, bound by or entitled to the benefit of the covenant or any description given to the proposed covenant by any of the persons who would, or would but for subsection 45B(1), be bound by or entitled to the benefit of the proposed covenant. (4) For the purposes of the preceding provisions of this section, but without limiting the generality of those provisions:

(a) a covenant shall be deemed to have, or to be likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied as mentioned in subsection (1) if the covenant has, or is likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a resupply of the goods or services by persons to whom the goods or services are supplied by the persons who are, or but for subsection 45B(1) would be, bound by or entitled to the benefit of the covenant, or by any of them, or by any persons associated with any of them; and [page 1264] (b) a proposed covenant shall be deemed to have the purpose, or to have, or to be likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied as mentioned in subsection (2) if the proposed covenant has the purpose, or would have or be likely to have the effect, as the case may be, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re-supply of the goods or services by persons to whom the goods or services are supplied by the persons who would, or would but for subsection 45B(1), be bound by or entitled to the benefit of the proposed covenant, or by any of them, or by any persons associated with any of them. (5) The reference in subsection (1) to the supply or acquisition of goods or services by persons in competition with each other includes a reference to the supply or acquisition of goods or services by persons who, but for a provision of any contract, arrangement or understanding or of any proposed

contract, arrangement or understanding, would be, or would be likely to be, in competition with each other in relation to the supply or acquisition of the goods or services. Secondary boycotts for the purpose of causing substantial loss or damage 45D (1) A person must not, in concert with a second person, engage in conduct: (a) that hinders or prevents: (i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or (ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person. Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7). Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts. (2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose. Secondary boycotts for the purpose of causing substantial lessening of competition 45DA (1) A person must not, in concert with a second person, engage in conduct: (a) that hinders or prevents: (i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or (ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the

second person); and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing a substantial lessening of competition in any market in which the fourth person supplies or acquires goods or services. Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7). Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts. [page 1265] (2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose. Note: This version of Part IV does not contain an equivalent of section 45DB of the Competition and Consumer Act 2010. [subs (2) am Act 103 of 2010 s 3 and Sch 5[128], opn 1 Jan 2011]

Involvement and liability of employee organisations 45DC (1) Certain organisations taken to be acting in concert If 2 or more persons (the participants), each of whom is a member or officer of the same organisation of employees, engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with another person, then, unless the organisation proves otherwise, the organisation is taken for the purposes of sections 45D and 45DA: (a) to engage in that conduct in concert with the participants; and (b) to have engaged in that conduct for the purposes for which the participants engaged in it. (2) Consequences of organisation contravening subsection 45D(1) or 45DA(1) The consequences of an organisation of employees engaging, or being taken by subsection (1) to engage, in conduct in concert with any its members or officers in contravention of subsection 45D(1) or 45DA(1) are as set out in subsections (3), (4) and (5).

(3) Loss or damage taken to have been caused by organisation’s conduct Any loss or damage suffered by a person as a result of the conduct is taken, for the purposes of this Act, to have been caused by the conduct of the organisation. (4) Taking proceedings if organisation is a body corporate If the organisation is a body corporate, no action under section 82 to recover the amount of the loss or damage may be brought against any of the members or officers of the organisation in respect of the conduct. (5) Taking proceedings if organisation is not a body corporate If the organisation is not a body corporate: (a) a proceeding in respect of the conduct may be brought under section 77, 80 or 82 against an officer of the organisation as a representative of the organisation’s members and the proceeding is taken to be a proceeding against all the persons who were members of the organisation at the time when the conduct was engaged in; and (b) subsection 76(2) does not prevent an order being made in a proceeding mentioned in paragraph (a) that was brought under section 77; and (c) the maximum pecuniary penalty that may be imposed in a proceeding mentioned in paragraph (a) that was brought under section 77 is the penalty applicable under section 76 in relation to a body corporate; and (d) except as provided by paragraph (a), a proceeding in respect of the conduct must not be brought under section 77 or 82 against any of the members or officers of the organisation; and (e) for the purpose of enforcing any judgment or order given or made in a proceeding mentioned in paragraph (a) that was brought under section 77 or 82, process may be issued and executed against the following property or interests as if the organisation were a body corporate and the absolute owner of the property or interests: [page 1266]

(i)

(f)

any property of the organisation or of any branch or part of the organisation, whether vested in trustees or however otherwise held; (ii) any property in which the organisation or any branch or part of the organisation has a beneficial interest, whether vested in trustees or however otherwise held; (iii) any property in which any members of the organisation or of a branch or part of the organisation have a beneficial interest in their capacity as members, whether vested in trustees or however otherwise held; and if paragraph (e) applies, no process is to be issued or executed against any property of members or officers of the organisation or of a branch or part of the organisation except as provided in that paragraph.

Situations in which boycotts permitted 45DD (1) Dominant purpose of conduct relates to employment matters — conduct by a person A person does not contravene, and is not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person. (2) Dominant purpose of conduct relates to employment matters — conduct by employee organisation and employees If: (a) an employee, or 2 or more employees who are employed by the same employer, engage in conduct in concert with another person who is, or with other persons each of whom is: (i) an organisation of employees; or (ii) an officer of an organisation of employees; and (b) the conduct is only engaged in by the persons covered by paragraph (a); and (c) the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the

employee, or any of the employees, covered by paragraph (a); the persons covered by paragraph (a) do not contravene, and are not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in the conduct. (3) Dominant purpose of conduct relates to environmental protection or consumer protection A person does not contravene, and is not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in conduct if: (a) the dominant purpose for which the conduct is engaged in is substantially related to environmental protection or consumer protection; and (b) engaging in the conduct is not industrial action. Note 1: If an environmental organisation or a consumer organisation is a body corporate: (a) it is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption; and (b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption. Note 2: If an environmental organisation or a consumer organisation is not a body corporate: (a) it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1) and 45DA(1) (consequently, this exemption does not cover the organisation as such); but (b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption. [page 1267] (4) Meaning of industrial action — basic definition In subsection (3), industrial action means: (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice

in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where: (i) the terms and conditions of the work are prescribed, wholly or partly, by a workplace instrument or an order of an industrial body; or (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or (b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by a workplace instrument or by an order of an industrial body; or (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or (d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work. For this purpose, industrial body, and workplace instrument have the same meanings as in the Fair Work Act 2009. [subs (4) am Act 54 of 2009 s 3 and Sch18[29], [30], opn 1 July 2009]

(5) Meaning of industrial action — further clarification For the purposes of subsection (3): (a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and (b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions. (6) Subsections (1), (2) and (3) do not protect people not covered by them In applying subsection 45D(1) or 45DA(1) to a person who is not covered by subsection (1), (2) or (3) in respect of certain conduct, disregard the fact that other persons may be covered by one of those subsections in respect of the same conduct. Note: Section 415 of the Fair Work Act 2009 limits the right to bring actions under the Competition Code in respect of industrial action that is protected action for the purposes of that section.

[cl 45DD am Act 54 of 2009 s 3 and Sch 18[31], opn 1 July 2009]

Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services 45E (1) Situations to which section applies This section applies in the following situations: (a) a supply situation — in this situation, a person (the first person) has been accustomed, or is under an obligation, to supply goods or services to another person (the second person); or [page 1268] (b) an acquisition situation — in this situation, a person (the first person) has been accustomed, or is under an obligation, to acquire goods or services from another person (the second person). Note: For the meanings of accustomed to supply and accustomed to acquire, see subsections (5) and (7). (2) Prohibition in a supply situation In a supply situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of: (a) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or (b) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person, except subject to a condition: (i) that is not a condition to which the supply of such goods or services by the first person to the second person has previously been subject because of a provision in a contract between those persons; and

(ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services. (3) Prohibition in an acquisition situation In an acquisition situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of: (a) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person; or (b) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person, except subject to a condition: (i) that is not a condition to which the acquisition of such goods or services by the first person from the second person has previously been subject because of a provision in a contract between those persons; and (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services. (4) No contravention if second person gives written consent to written contract etc Subsections (2) and (3) do not apply to a contract, arrangement or understanding if it is in writing and was made or arrived at with the written consent of the second person. (5) Meaning of “accustomed to supply” In this section, a reference to a person who has been accustomed to supply goods or services to a second person includes (subject to subsection (6)): (a) a regular supplier of such goods or services to the second person; or (b) the latest supplier of such goods or services to the second person; or (c) a person who, at any time during the immediately preceding 3

months, supplied such goods or services to the second person. [page 1269] (6) Exception to subsection (5) If: (a) goods or services have been supplied by a person to a second person under a contract between them that required the first person to supply such goods or services over a period; and (b) the period has ended; and (c) after the end of the period, the second person has been supplied with such goods or services by another person and has not also been supplied with such goods or services by the first person; then, for the purposes of the application of this section in relation to anything done after the second person has been supplied with goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to supply such goods or services to the second person. (7) Meaning of “accustomed to acquire” In this section, a reference to a person who has been accustomed to acquire goods or services from a second person includes (subject to subsection (8)): (a) a regular acquirer of such goods or services from the second person; or (b) a person who, when last acquiring such goods or services, acquired them from the second person; or (c) a person who, at any time during the immediately preceding 3 months, acquired such goods or services from the second person. (8) Exception to subsection (7) If: (a) goods or services have been acquired by a person from a second person under a contract between them that required the first person to acquire such goods or services over a period; and (b) the period has ended; and (c) after the end of the period, the second person has refused to supply such goods or services to the first person; then, for the purposes of the application of this section in relation to anything

done after the second person has refused to supply goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to acquire such goods or services from the second person. Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A). Provisions contravening section 45E not to be given effect 45EA A person must not give effect to a provision of a contract, arrangement or understanding if, because of the provision, the making of the contract or arrangement, or the arriving at the understanding, by the person: (a) contravened subsection 45E(2) or (3); or (b) would have contravened subsection 45E(2) or (3) if: (i) section 45E had been in force when the contract or arrangement was made, or the understanding was arrived at; and (ii) the words “is in writing and” and “written” were not included in subsection 45E(4). Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A). [page 1270] Sections 45D to 45EA do not affect operation of other provisions of Part 45EB Nothing in section 45D, 45DA, 45DC, 45DD, 45E or 45EA affects the operation of any other provision of this Part. Misuse of market power 46 (1) A person (the first person) who has a substantial degree of power in a market shall not take advantage of that power in that or any other market for the purpose of: (a) eliminating or substantially damaging a competitor of the first person or of a body corporate that is related to the first person in that or any other market;

(b) preventing the entry of a person into that or any other market; or (c) deterring or preventing a person from engaging in competitive conduct in that or any other market. [subs (1) am Act 159 of 2007 s 3 and Sch 2[9], opn 25 Sep 2007]

(1AAA) If a person supplies goods or services for a sustained period at a price that is less than the relevant cost to the person of supplying the goods or services, the person may contravene subsection (1) even if the person cannot, and might not ever be able to, recoup losses incurred by supplying the goods or services. [subs (1AAA) insrt Act 116 of 2008 s 3 and Sch 2[1A], opn 22 Nov 2008]

(1AA) A person that has a substantial share of a market must not supply, or offer to supply, goods or services for a sustained period at a price that is less than the relevant cost to the person of supplying such goods or services, for the purpose of: (a) eliminating or substantially damaging a competitor of the person or of a body corporate that is related to the person in that or any other market; or (b) preventing the entry of a person into that or any other market; or (c) deterring or preventing a person from engaging in competitive conduct in that or any other market. [subs (1AA) insrt Act 159 of 2007 s 3 and Sch 2[9A], opn 25 Sep 2007]

(1AB) For the purposes of subsection (1AA), without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial share of a market, the Court may have regard to the number and size of the competitors of the person in the market. [subs (1AB) insrt Act 159 of 2007 s 3 and Sch 2[9A], opn 25 Sep 2007]

(1A) For the purposes of subsections (1) and (1AA): (a) the reference in paragraphs (1)(a) and (1AA)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and (b) the reference in paragraphs (1)(b) and (c) and (1AA)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons. [subs (1A) am Act 159 of 2007 s 3 and Sch 2[9B]–[9D], opn 25 Sep 2007]

(2) If:

(a) a body corporate that is related to a person (the first person) has, or 2 or more bodies corporate each of which is related to the one person (the first person) together have, a substantial degree of power in a market; or (b) a person (the first person) and a body corporate that is, or a person (the first person) and 2 or more bodies corporate each of which is, related to the first person, together have a substantial degree of power in a market; the first person shall be taken for the purposes of this section to have a substantial degree of power in that market. [page 1271] (3) In determining for the purposes of this section the degree of power that a person (the first person) or bodies corporate has or have in a market, the Court shall have regard to the extent to which the conduct of the first person or of any of those bodies corporate in that market is constrained by the conduct of: (a) competitors, or potential competitors, of the first person or of any of those bodies corporate in that market; or (b) persons to whom or from whom the first person or any of those bodies corporate supplies or acquires goods or services in that market. [subs (3) am Act 116 of 2008 3 and Sch 2[3], opn 22 Nov 2008]

(3A) In determining for the purposes of this section the degree of power that a person (the first person) or bodies corporate has or have in a market, the court may have regard to the power the first person or bodies corporate has or have in that market that results from: (a) any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the first person or bodies corporate has or have, or may have, with another party or other parties; and (b) any covenants, or proposed covenants, that the first person or bodies corporate is or are, or would be, bound by or entitled to the

benefit of. [subs (3A) insrt Act 159 of 2007 s 3 and Sch 2[10], opn 25 Sep 2007; am Act 116 of 2008 s 3 and Sch 2[3], opn 22 Nov 2008]

(3B) Subsections (3) and (3A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this section, the degree of power that a person or bodies corporate has or have in a market. [subs (3B) insrt Act 159 of 2007 s 3 and Sch 2[10], opn 25 Sep 2007]

(3C) For the purposes of this section, without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial degree of power in a market, a person may have a substantial degree of power in a market even though: (a) the person does not substantially control the market; or (b) the person does not have absolute freedom from constraint by the conduct of: (i) competitors, or potential competitors, of the person in that market; or (ii) persons to whom or from whom the person supplies or acquires goods or services in that market. [subs (3C) insrt Act 159 of 2007 s 3 and Sch 2[10], opn 25 Sep 2007; am Act 116 of 2008 s 3 and Sch 2[3], opn 22 Nov 2008]

(3D) To avoid doubt, for the purposes of this section, more than 1 person may have a substantial degree of power in a market. [subs (3D) insrt Act 159 of 2007 s 3 and Sch 2[10], opn 25 Sep 2007]

(4) In this section: (a) a reference to power is a reference to market power; (b) a reference to a market is a reference to a market for goods or services; and (c) a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market. (4A) Without limiting the matters to which the court may have regard for the purpose of determining whether a person has contravened subsection (1), the court may have regard to: [page 1272]

(a) any conduct of the person that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the person of supplying such goods or services; and (b) the reasons for that conduct. [subs (4A) insrt Act 159 of 2007 s 3 and Sch 2[11], opn 25 Sep 2007; am Act 116 of 2008 3 and Sch 2[4A], opn 22 Nov 2008]

(5) Without extending by implication the meaning of subsection (1), a person shall not be taken to contravene that subsection by reason only that the person acquires plant or equipment. (6) This section does not prevent a person from engaging in conduct that does not constitute a contravention of any of the following sections, namely, sections 45, 45B, 47, 49 and 50, by reason that an authorization or clearance is in force or by reason of the operation of subsection 45(8A) or section 93. [subs (6) am Act 131 of 2006 s 3 and Sch 1[44], Sch 3[27] and Sch 6[18], opn 1 Jan 2007]

(6A) In determining for the purposes of this section whether, by engaging in conduct, a person has taken advantage of the person’s substantial degree of power in a market, the court may have regard to any or all of the following: (a) whether the conduct was materially facilitated by the person’s substantial degree of power in the market; (b) whether the person engaged in the conduct in reliance on the person’s substantial degree of power in the market; (c) whether it is likely that the person would have engaged in the conduct if the person did not have a substantial degree of power in the market; (d) whether the conduct is otherwise related to the person’s substantial degree of power in the market. This subsection does not limit the matters to which the court may have regard. [subs (6A) insrt Act 116 of 2008 s 3 and Sch 2[5], opn 22 Nov 2008]

(7) Without in any way limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a person may be taken to have taken advantage of the person’s power for a purpose referred to in subsection (1) notwithstanding that, after all the

evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or of any other person or from other relevant circumstances. Exclusive dealing 47 (1) Subject to this section, a person shall not, in trade or commerce, engage in the practice of exclusive dealing. (2) A person (the first person) engages in the practice of exclusive dealing if the first person: (a) supplies, or offers to supply, goods or services; (b) supplies, or offers to supply, goods or services at a particular price; or (c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the first person; on the condition that the person (the second person) to whom the first person supplies, or offers or proposes to supply, the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate: [page 1273] (d) will not, or will not except to a limited extent, acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; (e) will not, or will not except to a limited extent, re-supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or (f) in the case where the first person supplies or would supply goods or services, will not re-supply the goods or services to any person, or will not, or will not except to a limited extent, re-supply the

goods or services: (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (ii) in particular places or classes of places or in places other than particular places or classes of places. (3) A person (the first person) also engages in the practice of exclusive dealing if the first person refuses: (a) to supply goods or services to a second person; (b) to supply goods or services to a second person at a particular price; or (c) to give or allow a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services to a second person; for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate: (d) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; (e) has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or (f) has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired from the first person to any person, or has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired from the first person: (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (ii) in particular places or classes of places or in places other than particular places or classes of places. (4) A person (the first person) also engages in the practice of exclusive

dealing if the first person: (a) acquires, or offers to acquire, goods or services; or (b) acquires, or offers to acquire, goods or services at a particular price; on the condition that the person (the second person) from whom the first person acquires or offers to acquire the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate will not supply goods or [page 1274] services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description: (c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (d) in particular places or classes of places or in places other than particular places or classes of places. (5) A person (the first person) also engages in the practice of exclusive dealing if the first person refuses: (a) to acquire goods or services from a second person; or (b) to acquire goods or services at a particular price from a second person; for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate has supplied, or has not agreed not to supply, goods or services, or goods or services of a particular kind or description: (c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (d) in particular places or classes of places or in places other than particular places or classes of places. (6) A person (the first person) also engages in the practice of exclusive dealing if the first person:

(a) supplies, or offers to supply, goods or services; (b) supplies, or offers to supply, goods or services at a particular price; or (c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the first person; on the condition that the person (the second person) to whom the first person supplies or offers or proposes to supply the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person. [subs (6) am Act 131 of 2006 s 3 and Sch 7[32], opn 1 Jan 2007]

(7) A person (the first person) also engages in the practice of exclusive dealing if the first person refuses: (a) to supply goods or services to a second person; (b) to supply goods or services at a particular price to a second person; or (c) to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a second person; for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person. [subs (7) am Act 131 of 2006 s 3 and Sch 7[32], opn 1 Jan 2007]

(8) A person (the first person) also engages in the practice of exclusive dealing if the first person grants or renews, or makes it known that the first person will not exercise a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building on the condition that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate: [page 1275]

(a) will not, or will not except to a limited extent: (i) acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; or (ii) re-supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; (b) will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description: (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (ii) in particular places or classes of places or in places other than particular places or classes of places; or (c) will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person. (9) A person (the first person) also engages in the practice of exclusive dealing if the first person refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building for the reason that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate: (a) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; (b) has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person; (c) has supplied goods or services, or goods or services of a particular

kind or description: (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (ii) in particular places or classes of places or in places other than particular places or classes of places; or (d) has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person. (10) Subsection (1) does not apply to the practice of exclusive dealing constituted by a person engaging in conduct of a kind referred to in subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or (9)(a), (b) or (c) unless: (a) the engaging by the person in that conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition; or [page 1276] (b) the engaging by the person in that conduct, and the engaging by the person, or by a body corporate related to the person, in other conduct of the same or a similar kind, together have or are likely to have the effect of substantially lessening competition. (10A) Subsection (1) does not apply to a person engaging in conduct described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if: (a) the person has given the Commission a notice under subsection 93(1) describing the conduct; and (b) the notice is in force under section 93. (11) Subsections (8) and (9) do not apply with respect to: (a) conduct engaged in: (i) by a registered charity; and (ii) for or in accordance with the purposes or objects of that registered charity; or (b) conduct engaged in in pursuance of a legally enforceable requirement made by a registered charity, being a requirement

made for or in accordance with the purposes or objects of that registered charity. [subcl (11) am Act 169 of 2012 s 3 and Sch 2 item 167, opn 3 Dec 2012]

(12) Subsection (1) does not apply with respect to any conduct engaged in by a body corporate by way of restricting dealings by another body corporate if those bodies corporate are related to each other. (13) In this section: (a) a reference to a condition shall be read as a reference to any condition, whether direct or indirect and whether having legal or equitable force or not, and includes a reference to a condition the existence or nature of which is ascertainable only by inference from the conduct of persons or from other relevant circumstances; (b) a reference to competition, in relation to conduct to which a provision of this section other than subsection (8) or (9) applies, shall be read as a reference to competition in any market in which: (i) the person engaging in the conduct or any body corporate related to that person; or (ii) any person whose business dealings are restricted, limited or otherwise circumscribed by the conduct or, if that person is a body corporate, any body corporate related to that body corporate; supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services; and (c) a reference to competition, in relation to conduct to which subsection (8) or (9) applies, shall be read as a reference to competition in any market in which the person engaging in the conduct or any other person whose business dealings are restricted, limited or otherwise circumscribed by the conduct, or any body corporate related to either of those persons, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services. Resale price maintenance

48 A person shall not engage in the practice of resale price maintenance. [page 1277] Dual listed company arrangements that affect competition 49 (1) A person must not: (a) make a dual listed company arrangement if a provision of the proposed arrangement has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or (b) give effect to a provision of a dual listed company arrangement if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition. Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(8B). Exception (2) The making by a person of a dual listed company arrangement that contains a provision that has the purpose, or would have or be likely to have the effect, of substantially lessening competition does not contravene this section if: (a) the arrangement is subject to a condition that the provision will not come into force unless and until the person is granted an authorisation to give effect to the provision; and (b) the person applies for the grant of such an authorisation within 14 days after the arrangement is made. However, this subsection does not permit the person to give effect to such a provision. Meaning of competition (3) For the purposes of this section, competition, in relation to a provision of a dual listed company arrangement or of a proposed dual listed company arrangement, means competition in any market in which: (a) a person that is a party to the arrangement or would be a party to the proposed arrangement; or (b) any body corporate related to such a person;

supplies or acquires, or is likely to supply or acquire, goods or services or would, apart from the provision, supply or acquire, or be likely to supply or acquire, goods or services. (4) For the purposes of the application of this section in relation to a particular person, a provision of a dual listed company arrangement or of a proposed dual listed company arrangement is taken to have, or to be likely to have, the effect of substantially lessening competition if that provision and any one or more of the following provisions: (a) the other provisions of that arrangement or proposed arrangement; (b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the person or a body corporate related to the person is or would be a party; together have or are likely to have that effect. [cl 49 insrt Act 131 of 2006 s 3 and Sch 6[19], opn 1 Jan 2007]

Prohibition of acquisitions that would result in a substantial lessening of competition 50 (1) A person must not directly or indirectly: (a) acquire shares in the capital of a body corporate; or (b) acquire any assets of a person; [page 1278] if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market. Note: The person will not be prevented from making the acquisition if the corporation is granted a clearance or an authorisation for the acquisition under Division 3 of Part VII: see subsections 95AC(2) and 95AT(2). [subs (1) am Act 131 of 2006 s 3 and Sch 1[45], opn 1 Jan 2007; Act 184 of 2011 s 3 and Sch 1[4], opn 6 Feb 2012]

(3) Without limiting the matters that may be taken into account for the purposes of subsection (1) in determining whether the acquisition would have the effect, or be likely to have the effect, of substantially lessening

competition in a market, the following matters must be taken into account: (a) the actual and potential level of import competition in the market; (b) the height of barriers to entry to the market; (c) the level of concentration in the market; (d) the degree of countervailing power in the market; (e) the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins; (f) the extent to which substitutes are available in the market or are likely to be available in the market; (g) the dynamic characteristics of the market, including growth, innovation and product differentiation; (h) the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor; (i) the nature and extent of vertical integration in the market. (4) Where: (a) a person has entered into a contract to acquire shares in the capital of a body corporate or assets of a person; (b) the contract is subject to a condition that the provisions of the contract relating to the acquisition will not come into force unless and until the person has been granted a clearance or an authorization to acquire the shares or assets; and (c) the person applied for the grant of such a clearance or an authorization before the expiration of 14 days after the contract was entered into; the acquisition of the shares or assets shall not be regarded for the purposes of this Act as having taken place in pursuance of the contract before: (d) the application for the clearance or authorization is disposed of; or (e) the contract ceases to be subject to the condition; whichever first happens. [subs (4) am Act 131 of 2006 s 3 and Sch 1[46]–[48], opn 1 Jan 2007]

(5) For the purposes of subsection (4), an application for a clearance shall be taken to be disposed of: (a) in a case to which paragraph (b) of this subsection does not apply — at the expiration of 14 days after the period in which an

application may be made to the Tribunal for a review of determination by the Commission of the application for clearance; or (b) if an application is made to the Tribunal for a review of determination by the Commission of the application for clearance — at the expiration of 14 days after the date of making by the Tribunal of a determination on the review.

the the the the the

[subs (5) am Act 131 of 2006 s 3 and Sch 1[49], [50], opn 1 Jan 2007]

[page 1279] (5A) For the purposes of subsection (4), an application for an authorisation is taken to be disposed of 14 days after the day the Tribunal makes a determination on the application. [subs (5A) insrt Act 131 of 2006 s 3 and Sch 1[51], opn 1 Jan 2007]

(6) In this section: market means a market for goods or services in: (a) Australia; or (b) a State; or (c) a Territory; or (d) a region of Australia. [subs (6) am Act 63 of 2001 s 3 and Sch 1, opn 26 July 2001; Act 184 of 2011 s 3 and Sch 1[5], opn 6 Feb 2012]

Exceptions 51 (1) In deciding whether a person has contravened this Part, the following must be disregarded: (a) anything that is disregarded for the purposes of Part IV of the Competition and Consumer Act 2010 because of subsection 51(1) of that Act; (b) anything done in a State, if the thing is specified in, and specifically authorised by: (i) an Act passed by the Parliament of that State; or (ii) regulations made under such an Act;

(c) anything done in the Australian Capital Territory, if the thing is specified in, and specifically authorised by: (i) an enactment as defined in section 3 of the Australian Capital Territory (Self-Government) Act 1988; or (ii) regulations made under such an enactment; (d) anything done in the Northern Territory, if the thing is specified in, and specifically authorised by: (i) an enactment as defined in section 4 of the Northern Territory (Self-Government) Act 1978; or (ii) regulations made under such an enactment; (e) anything done in another Territory, if the thing is specified in, and specifically authorised by: (i) an Ordinance of that Territory; or (ii) regulations made under such an Ordinance. [subs (1) am Act 103 of 2010 s 3 and Sch 5[129], opn 1 Jan 2011]

(1A) Without limiting subsection (1), conduct is taken to be specified in, and authorised by, a law for the purposes of that subsection if: (a) a licence or other instrument issued or made under the law specifies one or both of the following: (i) the person authorised to engage in the conduct; (ii) the place where the conduct is to occur; and (b) the law specifies the attributes of the conduct except those mentioned in paragraph (a). For this purpose, law means a State Act, enactment or Ordinance. [page 1280] (1B) Subsections (1) and (1A) apply regardless of when the State Acts, enactments, Ordinances, regulations or instruments referred to in those subsections were passed, made or issued. (1C) The operation of subsection (1) (other than paragraph (1)(a)) is subject to the following limitations: (a) in order for something to be regarded as specifically authorised for the purposes of subsection (1), the authorising provision must

expressly refer to the Competition Code; (b) paragraphs (1)(b), (c), (d) and (e) do not apply in deciding whether a person has contravened section 50; (c) regulations referred to in subparagraph (1)(b)(ii), (c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a particular thing to be disregarded if the thing happens more than 2 years after those regulations came into operation; (d) regulations referred to in subparagraph (1)(b)(ii), (c)(ii) or (d)(ii) do not have the effect of requiring a particular thing to be disregarded to the extent that the regulations are the same in substance as other regulations that: (i) were made for the purposes of the subparagraph concerned; and (ii) came into operation more than 2 years before the particular thing happened. (2) In determining whether a contravention of a provision of this Part other than section 45D, 45DA, 45E, 45EA or 48 has been committed, regard shall not be had: (a) to any act done in relation to, or to the making of a contract or arrangement or the entering into of an understanding, or to any provision of a contract, arrangement or understanding, to the extent that the contract, arrangement or understanding, or the provision, relates to, the remuneration, conditions of employment, hours of work or working conditions of employees; (b) to any provision of a contract of service or of a contract for the provision of services, being a provision under which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which he or she may engage during, or after the termination of, the contract; (c) to any provision of a contract, arrangement or understanding, being a provision obliging a person to comply with or apply standards of dimension, design, quality or performance prepared or approved by Standards Australia or by a prescribed association or body; (d) to any provision of a contract, arrangement or understanding between partners none of whom is a body corporate, being a

provision in relation to the terms of the partnership or the conduct of the partnership business or in relation to competition between the partnership and a party to the contract, arrangement or understanding while he or she is, or after he or she ceases to be, a partner; (e) in the case of a contract for the sale of a business or of shares in the capital of a body corporate carrying on a business — to any provision of the contract that is solely for the protection of the purchaser in respect of the goodwill of the business; or (g) to any provision of a contract, arrangement or understanding, being a provision that relates exclusively to the export of goods from Australia or to the supply of services outside Australia, if full and accurate particulars of the provision [page 1281] (not including particulars of prices for goods or services but including particulars of any method of fixing, controlling or maintaining such prices) were furnished to the Commission before the expiration of 14 days after the date on which the contract or arrangement was made or the understanding was arrived at, or before 8 September 1976, whichever was the later. [subs (2) am Act 63 of 2002 s 3 and Sch 1, opn 1 July 1999; Act 46 of 2011 s 3 and Sch 2[438], opn 27 Dec 2011]

(2A) In determining whether a contravention of a provision of this Part other than section 48 has been committed, regard shall not be had to any acts done, otherwise than in the course of trade or commerce, in concert by ultimate users or consumers of goods or services against the suppliers of those goods or services. (3) A contravention of a provision of this Part other than section 46 or 48 shall not be taken to have been committed by reason of: (a) the imposing of, or giving effect to, a condition of: (i) a licence granted by the proprietor, licensee or owner of a patent, of a registered design, of a copyright or of EL rights

within the meaning of the Circuit Layouts Act 1989, or by a person who has applied for a patent or for the registration of a design; or (ii) an assignment of a patent, of a registered design, of a copyright or of such EL rights, or of the right to apply for a patent or for the registration of a design; to the extent that the condition relates to: (iii) the invention to which the patent or application for a patent relates or articles made by the use of that invention; (iv) goods in respect of which the design is, or is proposed to be, registered and to which it is applied; (v) the work or other subject matter in which the copyright subsists; or (vi) the eligible layout in which the EL rights subsist; (b) the inclusion in a contract, arrangement or understanding authorizing the use of a certification trade mark of a provision in accordance with rules applicable under Part XI of the Trade Marks Act 1955, or the giving effect to such a provision; or (c) the inclusion in a contract, arrangement or understanding between: (i) the registered proprietor of a trade mark other than a certification trade mark; and (ii) a person registered as a registered user of that trade mark under Part IX of the Trade Marks Act 1955 or a person authorized by the contract to use the trade mark subject to his or her becoming registered as such a registered user; of a provision to the extent that it relates to the kinds, qualities or standards of goods bearing the mark that may be produced or supplied, or the giving effect to the provision to that extent. (4) This section applies in determining whether a provision of a contract is unenforceable by reason of subsection 45(1), or whether a covenant is unenforceable by reason of subsection 45B(1), in like manner as it applies in determining whether a contravention of a provision of this Part has been committed. [page 1282]

THE SCHEDULE GENERALLY [14,400.5] Competition Code Under the Conduct Code Agreement, the states and territories have agreed to adopt this Schedule version of Pt IV. This is done by way of application legislation passed by each state and territory. This Schedule version mirrors Pt IV of the Act with the important difference that references to a corporation have been replaced with a reference to persons. This recognises the broader constitutional reach of the states and territories. ________________________ *PART 2 — SCHEDULE VERSION OF PART VB [Repealed] [Pt 2 rep Act 111 of 2009 s 3 and Sch 1[48], opn 17 Nov 2009]

*Editor’s note: Item 49 of Schedule 1 of the Statute Stocktake (Regulatory and Other Laws) Act 2009 No 111 provides as follows: Application of items 47 and 48 49 If, at the time when this item commences, item 5 of Schedule 4 to the Trade Practices Amendment (Australian Consumer Law) Act 2009 has commenced, then a reference to the Schedule in the heading of item 47 or 48 of this Part is taken to be a reference to Schedule 1.

[page 1283]

[14,500]

SCHEDULE 2 — THE AUSTRALIAN CONSUMER LAW

[sch 2 subst Act 103 of 2010 s 3 and Sch 1[1], opn 1 Jan 2011]

CHAPTER 1 — INTRODUCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Application of this Schedule Definitions Meaning of consumer Misleading representations with respect to future matters When donations are treated as supplies or acquisitions Related bodies corporate Meaning of manufacturer Goods affixed to land or premises Meaning of safety defect in relation to goods Asserting a right to payment References to acquisition, supply and re-supply Application of Schedule in relation to leases and licences of and buildings Loss or damage to include injury Meaning of continuing credit contract Contraventions of this Schedule Severability References to provisions in this Schedule

CHAPTER 2 — GENERAL PROTECTIONS PART 2-1 — MISLEADING OR

[14,505] [14,510] [14,515] [14,520] [14,525] [14,530] [14,535] [14,540] [14,545] [14,550] [14,555] [14,560] [14,565] [14,570] [14,575] [14,580] [14,585]

DECEPTIVE CONDUCT 18 19

Misleading or deceptive conduct Application of this Part to information providers

[14,590] [14,595]

PART 2-2 UNCONSCIONABLE CONDUCT 20 21 22 22A

Unconscionable conduct within the meaning of the unwritten law Unconscionable conduct in connection with goods or services Matters the court may have regard to for the purposes of section 21 Presumption relating to whether representations are misleading

[14,600] [14,605] [14,610] [14,612]

PART 2-3 — UNFAIR CONTRACT TERMS 23 24

Unfair terms of consumer contracts and small business contracts Meaning of unfair

[14,615] [14,620] [page 1284]

25 26

27 28

Examples of unfair terms Terms that define main subject matter of consumer contracts or small business contracts etc are unaffected Standard form contracts Contracts to which this Part does not apply

CHAPTER 3 — SPECIFIC PROTECTIONS

[14,625]

[14,630] [14,635] [14,640]

PART 3-1 — UNFAIR PRACTICES DIVISION1 — FALSE OR MISLEADING REPRESENTATIONS ETC 29 30 31 32 33 34 35 36 37 38

False or misleading representations about goods or services False or misleading representations about sale etc of land Misleading conduct relating to employment Offering rebates, gifts, prizes etc Misleading conduct as to the nature etc of goods Misleading conduct as to the nature etc of services Bait advertising Wrongly accepting payment Misleading representations about certain business activities Application of provisions of this Division to information providers

[14,645] [14,650] [14,655] [14,660] [14,665] [14,670] [14,675] [14,680] [14,685] [14,690]

DIVISION 2 — UNSOLICITED SUPPLIES 39 40 41 42 43

Unsolicited cards etc Assertion of right to payment for unsolicited goods or services Liability etc of recipient for unsolicited goods Liability of recipient for unsolicited services Assertion of right to payment for unauthorised entries or advertisements

[14,695] [14,700] [14,705] [14,710] [14,715]

DIVISION 3 — PYRAMID SCHEMES 44 45 46

Participation in pyramid schemes Meaning of pyramid scheme Marketing schemes as pyramid schemes

[14,720] [14,725] [14,730]

DIVISION 4 — PRICING 47 48

Multiple pricing Single price to be specified in certain circumstances

[14,735] [14,740]

DIVISION 5 — OTHER UNFAIR PRACTICES 49 50

Referral selling Harassment and coercion

[14,745] [14,750] [page 1285]

PART 3-2 — CONSUMER TRANSACTIONS DIVISION 1 — CONSUMER GUARANTEES SUBDIVISION A — Guarantees relating to the supply of goods 51 52 53 54 55 56 57 58 59

Guarantee as to title Guarantee as to undisturbed possession Guarantee as to undisclosed securities etc Guarantee as to acceptable quality Guarantee as to fitness for any disclosed purpose etc Guarantee relating to the supply of goods by description Guarantees relating to the supply of goods by sample or demonstration model Guarantee as to repairs and spare parts Guarantee as to express warranties

[14,755] [14,760] [14,765] [14,770] [14,775] [14,780] [14,785] [14,790] [14,795]

SUBDIVISION B — Guarantees relating to the supply of services 60 61 62 63

Guarantee as to due care and skill Guarantees as to fitness for a particular purpose etc Guarantee as to reasonable time for supply Services to which this Subdivision does not apply

[14,800] [14,805] [14,810] [14,815]

SUBDIVISION C — Guarantees not to be excluded etc by contract 64 64A

Guarantees not to be excluded etc by contract Limitation of liability for failures to comply with guarantees

[14,820] [14,825]

SUBDIVISION D — Miscellaneous 65 66 67 68

Application of this Division to supplies of gas, electricity and telecommunications Display notice Conflict of laws Convention on Contracts for the International Sale of Goods

[14,830] [14,835] [14,840] [14,845]

DIVISION 2 — UNSOLICITED CONSUMER AGREEMENTS SUBDIVISION A — Introduction 69 70 71 72

Meaning of unsolicited consumer agreement Presumption that agreements are unsolicited consumer agreements Meaning of dealer Meaning of negotiation

[14,850] [14,855] [14,860] [14,865] [page 1286]

SUBDIVISION B — Negotiating unsolicited consumer agreements 73 74 75 76 77

Permitted hours for negotiating an unsolicited consumer agreement Disclosing purpose and identity Ceasing to negotiate on request Informing person of termination period etc Liability of suppliers for contraventions by dealers

[14,870] [14,875] [14,880] [14,885] [14,890]

SUBDIVISION C — Requirements for unsolicited consumer agreements etc 78 79 80 81

Requirement to give document to the consumer Requirements for all unsolicited consumer agreements etc Additional requirements for unsolicited consumer agreements not negotiated by telephone Requirements for amendments of unsolicited consumer agreements

[14,895] [14,900] [14,905] [14,910]

SUBDIVISION D — Terminating unsolicited consumer agreements 82 83 84 85 86 87 88

Terminating an unsolicited consumer agreement during the termination period Effect of termination Obligations of suppliers on termination Obligations and rights of consumers on termination Prohibition on supplies etc for 10 business days Repayment of payments received after termination Prohibition on recovering amounts after termination

[14,915] [14,920] [14,925] [14,930] [14,935] [14,940] [14,945]

SUBDIVISION E — Miscellaneous 89 90

Certain provisions of unsolicited consumer agreements void Waiver of rights

[14,950] [14,955]

91 92 93 94 95

Application of this Division to persons to whom rights of consumers and suppliers are assigned etc Application of this Division to supplies to third parties Effect of contravening this Division Regulations may limit the application of this Division Application of this Division to certain conduct covered by the Corporations Act

[14,960] [14,965] [14,970] [14,975] [14,980]

DIVISION3 — LAY-BY AGREEMENTS 96 97 98 99

Lay-by agreements must be in writing etc Termination of lay-by agreements by consumers Termination of lay-by agreements by suppliers Effect of termination

[14,985] [14,990] [14,995] [15,000] [page 1287]

DIVISION 4 — MISCELLANEOUS 100 101 102 103

Supplier must provide proof of transaction etc Consumer may request an itemised bill Prescribed requirements for warranties against defects Repairers must comply with prescribed requirements

[15,005] [15,010] [15,015] [15,020]

PART 3-3 — SAFETY OF CONSUMER GOODS AND PRODUCT RELATED SERVICES DIVISION 1 — SAFETY STANDARDS 104 105

Making safety standards for consumer goods and product related services Declaring safety standards for consumer goods and product related services

[15,025] [15,030]

106 107 108

Supplying etc consumer goods that do not comply with safety standards Supplying etc product related services that do not comply with safety standards Requirement to nominate a safety standard

[15,035] [15,040] [15,045]

DIVISION 2 — BANS ON CONSUMER GOODS AND PRODUCT RELATED SERVICES SUBDIVISION A — Interim bans 109

110 111 112 113

Interim bans on consumer goods or product related services that will or may cause injury to any person etc Places in which interim bans apply Ban period for interim bans Interaction of multiple interim bans Revocation of interim bans

[15,050] [15,055] [15,060] [15,065] [15,070]

SUBDIVISION B — Permanent bans 114 115 116 117

Permanent bans on consumer goods or product related services Places in which permanent bans apply When permanent bans come into force Revocation of permanent bans

[15,075] [15,080] [15,085] [15,090]

SUBDIVISION C — Compliance with interim bans and permanent bans 118 119

Supplying etc consumer goods covered by a ban Supplying etc product related services covered by a ban

[15,095] [15,100] [page 1288]

SUBDIVISION D — Temporary exemption from mutual recognition principles 120 121

Temporary exemption under the Trans-Tasman Mutual Recognition Act 1997 Temporary exemption under the Mutual Recognition Act 1992

[15,105] [15,110]

DIVISION 3 — RECALL OF CONSUMER GOODS SUBDIVISION A — Compulsory recall of consumer goods 122 123 124 125 126 127

Compulsory recall of consumer goods Contents of a recall notice Obligations of a supplier in relation to a recall notice Notification by persons who supply consumer goods outside Australia if there is compulsory recall Interaction of multiple recall notices Compliance with recall notices

[15,115] [15,120] [15,125] [15,130] [15,135] [15,140]

SUBDIVISION B — Voluntary recall of consumer goods 128

Notification requirements for a voluntary recall of consumer goods

[15,145]

DIVISION 4 — SAFETY WARNING NOTICES 129 130

Safety warning notices about consumer goods and product related services Announcement of the results of an investigation etc

DIVISION 5 — CONSUMER GOODS, OR PRODUCT RELATED SERVICES,

[15,150] [15,155]

ASSOCIATED WITH DEATH OR SERIOUS INJURY OR ILLNESS 131

Suppliers to report consumer goods associated with the death or serious injury or illness of any person 132 Suppliers to report product related services associated with the death or serious injury or illness of any person 132A Confidentiality of notices given under this Division

[15,160]

[15,165] [15,170]

DIVISION 6 — MISCELLANEOUS 133

Liability under a contract of insurance

[15,175]

PART 3-4 — INFORMATION STANDARDS 134 135

Making information standards for goods and services Declaring information standards for goods and services

[15,180] [15,185] [page 1289]

136 137

Supplying etc goods that do not comply with information standards Supplying etc services that do not comply with information standards

PART 3-5 — LIABILITY OF MANUFACTURERS FOR GOODS WITH SAFETY DEFECTS DIVISION 1 — ACTIONS AGAINST MANUFACTURERS FOR GOODS WITH SAFETY DEFECTS 138

Liability for loss or damage suffered by an injured

[15,190] [15,195]

139 140 141

142

individual Liability for loss or damage suffered by a person other than an injured individual Liability for loss or damage suffered by a person if other goods are destroyed or damaged Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged Defences to defective goods actions

[15,200] [15,205] [15,210]

[15,215] [15,220]

DIVISION 2 — DEFECTIVE GOODS ACTIONS 143 144 145 146 147 148

149

Time for commencing defective goods actions Liability joint and several Survival of actions No defective goods action where workers’ compensation law etc applies Unidentified manufacturer Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard Representative actions by the regulator

[15,225] [15,230] [15,235] [15,240] [15,245]

[15,250] [15,255]

DIVISION 3 — MISCELLANEOUS 150

Application of all or any provisions of this Part etc not to be excluded or modified

CHAPTER 4 — OFFENCES PART 4-1 — OFFENCES RELATING TO UNFAIR PRACTICES DIVISION1—FALSE OR MISLEADING REPRESENTATIONS ETC

[15,260]

151 152 153

False or misleading representations about goods or services False or misleading representations about sale etc of land Misleading conduct relating to employment

[15,265] [15,270] [15,275] [page 1290]

154 155 156 157 158 159 160

Offering rebates, gifts, prizes etc Misleading conduct as to the nature etc of goods Misleading conduct as to the nature etc of services Bait advertising Wrongly accepting payment Misleading representations about certain business activities Application of provisions of this Division to information providers

[15,280] [15,285] [15,290] [15,295] [15,300] [15,305] [15,310]

DIVISION 2 — UNSOLICITED SUPPLIES 161 162 163

Unsolicited cards etc Assertion of right to payment for unsolicited goods or services Assertion of right to payment for unauthorised entries or advertisements

[15,315] [15,320] [15,325]

DIVISION 3 — PYRAMID SCHEMES 164

Participation in pyramid schemes

[15,330]

DIVISION 4 — PRICING 165 166

Multiple pricing Single price to be specified in certain circumstances

[15,335] [15,340]

DIVISION 5 — OTHER UNFAIR PRACTICES 167 168

Referral selling Harassment and coercion

[15,345] [15,350]

PART 4-2 — OFFENCES RELATING TO CONSUMER TRANSACTIONS DIVISION 1 — CONSUMER GUARANTEES 169

Display notices

[15,355]

DIVISION 2 — UNSOLICITED CONSUMER AGREEMENTS SUBDIVISION A — Negotiating unsolicited consumer agreements 170 171 172 173

Permitted hours for negotiating an unsolicited consumer agreement Disclosing purpose and identity Ceasing to negotiate on request Informing person of termination period etc

[15,360] [15,365] [15,370] [15,375] [page 1291]

SUBDIVISION B — Requirements for unsolicited consumer agreements etc 174 175 176

Requirement to give document to the consumer Requirements for all unsolicited consumer agreements etc Additional requirements for unsolicited consumer

[15,380] [15,385]

177

agreements not negotiated by telephone Requirements for amendments of unsolicited consumer agreements

[15,390] [15,395]

SUBDIVISION C — Terminating unsolicited consumer agreements 178 179 180 181

Obligations of suppliers on termination Prohibition on supplies for 10 business days Repayment of payments received after termination Prohibition on recovering amounts after termination

[15,400] [15,405] [15,410] [15,415]

SUBDIVISION D — Miscellaneous 182 183 184 185 186 187

Certain provisions of unsolicited consumer agreements void Waiver of rights Application of this Division to persons to whom rights of consumers and suppliers are assigned etc Application of this Division to supplies to third parties Regulations may limit the application of this Division Application of this Division to certain conduct covered by the Corporations Act

[15,420] [15,425] [15,430] [15,435] [15,440] [15,445]

DIVISION3 — LAY-BY AGREEMENTS 188 189 190 191

Lay-by agreements must be in writing etc Termination charges Termination of lay-by agreements by suppliers Refund of amounts

[15,450] [15,455] [15,460] [15,465]

DIVISION 4 — MISCELLANEOUS 192 193

Prescribed requirements for warranties against defects Repairers must comply with prescribed requirements

PART 4-3 — OFFENCES RELATING TO

[15,470] [15,475]

SAFETY OF CONSUMER GOODS AND PRODUCT RELATED SERVICES DIVISION 1 — SAFETY STANDARDS 194

Supplying etc consumer goods that do not comply with safety standards

[15,480] [page 1292]

195 196

Supplying etc product related services that do not comply with safety standards Requirement to nominate a safety standard

[15,485] [15,490]

DIVISION 2 — BANS ON CONSUMER GOODS AND PRODUCT RELATED SERVICES 197 198

Supplying etc consumer goods covered by a ban Supplying etc product related services covered by a ban

[15,500] [15,505]

DIVISION 3 — RECALL OF CONSUMER GOODS 199 200 201

Compliance with recall orders Notification by persons who supply consumer goods outside Australia if there is compulsory recall Notification requirements for a voluntary recall of consumer goods

DIVISION 4 — CONSUMER GOODS, OR PRODUCT RELATED SERVICES, ASSOCIATED WITH DEATH OR SERIOUS INJURY OR ILLNESS

[15,510] [15,515] [15,520]

202

Suppliers to report consumer goods etc associated with the death or serious injury or illness of any person

[15,525]

PART 4-4 — OFFENCES RELATING TO INFORMATION STANDARDS 203 204

Supplying etc goods that do not comply with information standards Supplying etc services that do not comply with information standards

[15,530] [15,535]

PART 4-5 — OFFENCES RELATING TO SUBSTANTIATION NOTICES 205 206

Compliance with substantiation notices False or misleading information etc

[15,540] [15,545]

PART 4-6 — DEFENCES 207 208 209 210 211

Reasonable mistake of fact Act or default of another person etc Publication of advertisements in the ordinary course of business Supplying goods acquired for the purpose of resupply Supplying services acquired for the purpose of resupply

[15,550] [15,555] [15,560] [15,565] [15,570] [page 1293]

PART 4-7 — MISCELLANEOUS 212 213 214

Prosecutions to be commenced within 3 years Preference must be given to compensation for victims Penalties for contraventions of the same nature etc

[15,575] [15,580] [15,585]

215 216 217

Penalties for previous contraventions of the same nature etc Granting of injunctions etc Criminal proceedings not to be brought for contraventions of Chapter 2 or 3

[15,590] [15,595] [15,600]

CHAPTER 5 — ENFORCEMENT AND REMEDIES PART 5-1 — ENFORCEMENT DIVISION 1 — UNDERTAKINGS 218

Regulator may accept undertakings

[15,605]

DIVISION 2 — SUBSTANTIATION NOTICES 219 220 221 222

Regulator may require claims to be substantiated etc Extending periods for complying with substantiation notices Compliance with substantiation notices False or misleading information etc

[15,610] [15,615] [15,620] [15,625]

DIVISION 3 — PUBLIC WARNING NOTICES 223

Regulator may issue a public warning notice

[15,630]

PART 5-2 — REMEDIES DIVISION 1 — PECUNIARY PENALTIES 224 225 226 227

Pecuniary penalties Pecuniary penalties and offences Defence Preference must be given to compensation for victims

[15,635] [15,640] [15,645] [15,650]

228 229 230

Civil action for recovery of pecuniary penalties Indemnification of officers Certain indemnities not authorised and certain documents void

[15,655] [15,660] [15,665]

DIVISION 2 — INJUNCTIONS 232 233 234 235

Injunctions Consent injunctions Interim injunctions Variation and discharge of injunctions

[15,670] [15,675] [15,680] [15,685] [page 1294]

DIVISION 3 — DAMAGES 236

Actions for damages

[15,690]

DIVISION 4 — COMPENSATION ORDERS ETC FOR INJURED PERSONS AND ORDERS FOR NON-PARTY CONSUMERS SUBDIVISION A — Compensation orders etc for injured persons 237 238

Compensation orders etc on application by an injured person or the regulator Compensation orders etc arising out of other proceedings

[15,695] [15,700]

SUBDIVISION B — Orders for non-party consumers 239

Orders to redress etc loss or damage suffered by nonparty consumers

[15,705]

240 241

Determining whether to make a redress order etc for non-party consumers When a non-party consumer is bound by a redress order etc

[15,710] [15,715]

SUBDIVISION C — Miscellaneous 242 243 244 245

Applications for orders Kinds of orders that may be made Power of a court to make orders Interaction with other provisions

[15,720] [15,725] [15,730] [15,735]

DIVISION 5 — OTHER REMEDIES 246 247 248 249 250

Non-punitive orders Adverse publicity orders Order disqualifying a person from managing corporations ____ Privilege against exposure to penalty or forfeiture — disqualification from managing corporations Declarations relating to consumer contracts and small business contracts

[15,740] [15,745] [15,750] [15,755] [15,760]

DIVISION 6 — DEFENCES 251 252 253

Publication of advertisement in the ordinary course of business Supplying consumer goods for the purpose of resupply Supplying product related services for the purpose of re-supply

[15,765] [15,770] [15,775]

PART 5-3 — COUNTRY OF ORIGIN REPRESENTATIONS 254 255

Overview Country of origin representations do not contravene certain provisions

[15,780] [15,785]

256

Cost of producing or manufacturing goods

[15,790] [page 1295]

257 258

Rules for determining the percentage of costs of production or manufacture attributable to a country Proceedings relating to false, misleading or deceptive conduct or representations

[15,795] [15,800]

PART 5-4 — REMEDIES RELATING TO GUARANTEES DIVISION 1 — ACTION AGAINST SUPPLIERS SUBDIVISION A — Action against suppliers of goods 259 260 261 262 263 264 265 266

Action against suppliers of goods When a failure to comply with a guarantee is a major failure How suppliers may remedy a failure to comply with a guarantee When consumers are not entitled to reject goods Consequences of rejecting goods Replaced goods Termination of contracts for the supply of services that are connected with rejected goods Rights of gift recipients

[15,805] [15,810] [15,815] [15,820] [15,825] [15,830] [15,835] [15,840]

SUBDIVISION B — Action against suppliers of services 267 268

Action against suppliers of services When a failure to comply with a guarantee is a major

[15,845]

269 270

failure Termination of contracts for the supply of services Termination of contracts for the supply of goods that are connected with terminated services

[15,850] [15,855] [15,860]

DIVISION 2 — ACTION FOR DAMAGES AGAINST MANUFACTURERS OF GOODS 271 272 273

Action for damages against manufacturers of goods Damages that may be recovered by action against manufacturers of goods Time limit for actions against manufacturers of goods

[15,865] [15,870] [15,875]

DIVISION 3 — MISCELLANEOUS 274 275 276 276A 277

Indemnification of suppliers by manufacturers Limitation of liability etc This Part not to be excluded etc by contract Limitation in certain circumstances of liability of manufacturer to seller Representative actions by the regulator

[15,880] [15,885] [15,890] [15,895] [15,900] [page 1296]

PART 5-5 — LIABILITY OF SUPPLIERS AND CREDIT PROVIDERS DIVISION 1 — LINKED CREDIT CONTRACTS 278 279

Liability of suppliers and linked credit providers relating to linked credit contracts Action by consumer to recover amount of loss or damage ____

[15,905] [15,910]

280 281 282 283 284 285 286

Cases where a linked credit provider is not liable Amount of liability of linked credit providers Counter-claims and offsets Enforcement of judgments etc Award of interest to consumers Liability of suppliers to linked credit providers, and of linked credit providers to suppliers Joint liability proceedings and recovery under section 135 of the National Credit Code

[15,915] [15,920] [15,925] [15,930] [15,935] [15,940] [15,945]

DIVISION 2 — NON-LINKED CREDIT CONTRACTS 287

Liability of suppliers and credit providers relating to non-linked credit contracts

[15,950]

CHAPTER 6 — APPLICATION AND TRANSITIONAL PROVISIONS PART 1 — APPLICATION AND TRANSITIONAL PROVISIONS RELATING TO THE CONSUMER CREDIT LEGISLATION AMENDMENT (ENHANCEMENTS) ACT 2012 288 289 290

Application of amendments relating to lay-by agreements Application of amendment relating to repairs Saving of regulations relating to repairs

PART 1A — APPLICATION PROVISION RELATING TO THE TREASURY LEGISLATION AMENDMENT (SMALL BUSINESS AND UNFAIR CONTRACT TERMS) ACT 2015

[15,955] [15,960] [15,965]

290A Application provision relating to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015

[15,975]

[page 1297]

[14,500] SCHEDULE 2 — THE AUSTRALIAN CONSUMER LAW INTRODUCTION TO SCHEDULE 2 (AUSTRALIAN CONSUMER LAW)

[14,500.5]

Overview

This Schedule houses the Australian Consumer Law (ACL) and related remedial and enforcement provisions, many of which were previously contained in TPA Pt V. That Part was repealed on the commencement of the ACL on 1 January 2011. The ACL is a single national consumer law that replaces a number of existing national, State and Territory laws. On 24 June 2009, the Minister for Competition Policy and Consumer Affairs announced that the name of the Act would be changed to the Competition and Consumer Act 2010. That occurred on 1 January 2011 with the commencement of the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010. The name change more accurately reflects the content of the Act — the two distinct (but related) subjects — competition law and consumer law. Development of the Australian Consumer Law On 30 April 2008 the Productivity Commission released the final report of its review of Australia’s consumer policy framework. It was the first substantial review of Australia’s consumer law since 1984. The inquiry followed the recommendations of the Australian Government Taskforce on Reducing Regulatory Burden on Business, and the Productivity Commission’s Review of National Competition Policy Reforms (No 33) of April 2005. At its meeting of 2 October 2008, COAG agreed to a new consumer policy framework comprising a single national consumer law based on the Act, drawing on the recommendations of the Productivity Commission and best practice in state and territory consumer laws, including a provision relating to unfair contracts.

On 17 February 2009, the then Minister for Competition Policy and Consumer Affairs, the Honourable Chris Bowen MP, released an information and consultation paper entitled “An Australian Consumer Law: Fair Markets — Confident Consumers”. The purpose was to explain the components of the national consumer law and to seek views and explore options for augmentations and modifications to existing generic consumer protections based on best practice in existing state and territory laws. On 24 June 2009, the Minister of Competition and Consumer Policy, the Honourable Craig Emerson MP, introduced into parliament the Trade Practices Amendment (Australian Consumer Law) Bill 2009 (the first ACL Bill). First tranche reforms The first ACL Bill contained the first tranche of amendments applying to unfair contracts, new enforcement powers for the Australian Competition and Consumer Commission (ACCC) and new civil pecuniary penalties for contraventions of certain consumer protection provisions. The Bill was referred to the Senate Economics Legislation Committee for review. In its report entitled “Trade Practices Amendment (Australian Consumer Law) Bill 2009 [page 1298] [Provisions]”, released in September 2009, the Senate committee recommended that the Bill be passed. However, it recommended that the ACCC and the Australian Securities and Investments Commission (ASIC) issue a set of guidelines on the operation of the Bill to assist parties to understand their rights and obligations. The first ACL Bill had not been passed by the Senate when parliament rose in November 2009. It was subsequently passed as the Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010 No 44 on 17 March 2010 and received the Royal Assent on 14 April 2010. This implemented the first tranche of reforms. The new enforcement powers and the civil penalty and enforcement provisions commenced on the day after assent (15 April 2010).

The unfair contract term provisions commenced within the Commonwealth on 1 July 2010. On that date mirror provisions commenced in Victoria and New South Wales. The unfair contract term provisions apply in the other States and Territories from 1 January 2011. Second tranche reforms On 17 March 2010 the Minister introduced into Parliament the second tranche of the ACL reforms, contained in the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (the second ACL Bill). The second ACL Bill was referred to the Senate for review and report. The Economics Legislation Committee delivered its report “Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 [Provisions]” in May 2010. The Committee recommended that the Bill be passed. The Committee also recommended that the government publish explanatory materials on consumer rights (including in relation to extended warranties) and that the ACCC and consumer regulators issue national guidance in relation to the new consumer guarantees. The Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 was passed on 25 June 2010. This second ACL Act, and with it, the remainder of the ACL commenced on 1 January 2011. Reform On 12 June 2015, Consumer Affairs Ministers agreed terms of reference for the review of the Australian Consumer Law. This is the first review of the ACL since it commenced on 1 January 2011. The review is being undertaken by Consumer Affairs Australia and New Zealand (CAANZ). An Issues Paper was released on Thursday, 31 March 2016 to facilitate consultation. CCANZ released an Interim report in October 2016.

[14,500.35] Administration and jurisdictional operation of the Australian Consumer Law The States and Territories have passed application laws to ensure that the ACL applies in their jurisdictions. In this way a national consumer law is achieved. In July 2009, the Commonwealth, States and Territories signed an

intergovernmental agreement that addresses the content of the ACL, its implementation, and consultation and voting provisions for alteration of the ACL. The ACL is jointly administered by the Commission and by State and Territory consumer law agencies. It is enforced by all Australian courts and tribunals, including State and Territory courts and tribunals. [page 1299] Consumer issues associated with financial products are regulated by ASIC under the ASIC Act. Arguably the objective of the ACL (like Pt V of the TPA before it) is to protect the consumer by eliminating unfair trade practices: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1; (1982) ATPR ¶40-307 at 43,786; BC8200090 per Mason J. The ACL operates in conjunction with and not to the exclusion of the common law.

[14,500.40]

New Zealand Consumer Law

The New Zealand Consumer Reform Bill received royal assent on 17 December 2013. Some of the amendments commenced immediately, while others commenced within 6 months. It amends among other things the Fair Trading Act 1986 (NZ) and the Consumer Guarantees Act 1993 (NZ). Part of the stated aim of the New Zealand reforms is to achieve greater harmonisation with the Australian Consumer Law. CHAPTER 1 — INTRODUCTION

[14,505] 1

Application of this Schedule

This Schedule applies to the extent provided by: (a) Part XI of the Competition and Consumer Act; or (b) an application law.

[14,510]

Definitions

(1) In this Schedule: ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999. acceptable quality: see sections 54(2) to (7). ACN has the meaning given by section 9 of the Corporations Act 2001. acquire includes: (a) in relation to goods — acquire by way of purchase, exchange or taking on lease, on hire or on hire-purchase; and (b) in relation to services — accept. Note: Section 5 deals with when receipt of a donation is an acquisition. adverse publicity order: see section 247(2). affected person, in relation to goods, means: (a) a consumer who acquires the goods; or (b) a person who acquires the goods from the consumer (other than for the purpose of re-supply); or (c) a person who derives title to the goods through or under the consumer. agreement document: see section 78(2). applicable industry code has the meaning given by section 51ACA(1) of the Competition and Consumer Act. 2

[page 1300] application law has the same meaning as in section 140 of the Competition and Consumer Act. article includes a token, card or document. ASIC means the Australian Securities and Investments Commission. assert a right to payment: see section 10(1). associate regulator:

for the purposes of the application of this Schedule as a law of (a) the Commonwealth — means a body that is, for the purposes of the application of this Schedule as a law of a State or a Territory, the regulator within the meaning of the application law of the State or Territory; or (b) for the purposes of the application of this Schedule as a law of a State or a Territory — means: (i) the Commission; or (ii) a body that is, for the purposes of the application of this Schedule as a law of another State or a Territory, the regulator within the meaning of the application law of that other State or Territory. authority, in relation to a State or a Territory (including an external Territory), means: (a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or (b) an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest. authority of the Commonwealth means: (a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or (b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest. banker has the same meaning as in section 4(1) of the Competition and Consumer Act. ban period for an interim ban: see section 111(1). business includes a business not carried on for profit. business day, in relation to an unsolicited consumer agreement, means a day that is not: (a) a Saturday or Sunday; or (b) a public holiday in the place where the agreement was made.

business or professional relationship includes a relationship between employer and employee, or a similar relationship. call on, in relation to negotiating an unsolicited consumer agreement, does not include call by telephone. Commission has the same meaning as in section 4(1) of the Competition and Consumer Act. [page 1301] Commonwealth mandatory standard, in relation to goods, means a mandatory standard in respect of the goods imposed by a law of the Commonwealth. Commonwealth Minister means the Minister who administers Part XI of the Competition and Consumer Act. Competition and Consumer Act means the Competition and Consumer Act 2010. consumer: see section 3. consumer contract: see section 23(3). consumer goods means goods that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption, and includes any such goods that have become fixtures since the time they were supplied if: (a) a recall notice for the goods has been issued; or (b) a person has voluntarily taken action to recall the goods. continuing credit contract: see section 14(1). contravening conduct: see section 239(1)(a)(i). court, in relation to a matter, means any court having jurisdiction in the matter. covering includes a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper. credit card: see section 39(5).

credit provider means a person providing, or proposing to provide, in the course of a business carried on by the person, credit to consumers in relation to the acquisition of goods or services. dealer: see section 71. debit card: see section 39(6). declared term: see section 239(1)(a)(ii). defective goods action means an action under section 138, 139, 140 or 141, and includes such an action because of section 138(3) or 145. disclosed purpose: see section 55(2). displayed price: see sections 47(2) to (5). document means any record of information, and includes: (a) anything on which there is writing; and (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and (d) a map, plan, drawing or photograph. [def subst Act 46 of 2011 s 3 and Sch 2[439], opn 27 Dec 2011]

enforcement proceeding means: (a) a proceeding for an offence against Chapter 4; or (b) a proceeding instituted under Chapter 5 (other than under sections 237 and 239). [page 1302] evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. express warranty, in relation to goods, means an undertaking, assertion or representation: (a) that relates to:

the quality, state, condition, performance or characteristics of the goods; or (ii) the provision of services that are or may at any time be required for the goods; or (iii) the supply of parts that are or may at any time be required for the goods; or (iv) the future availability of identical goods, or of goods constituting or forming part of a set of which the goods, in relation to which the undertaking, assertion or representation is given or made, form part; and (b) that is given or made in connection with the supply of the goods, or in connection with the promotion by any means of the supply or use of the goods; and (c) the natural tendency of which is to induce persons to acquire the goods. financial product has the meaning given by section 12BAA of the Australian Securities and Investments Commission Act 2001. financial service has the meaning given by section 12BAB of the Australian Securities and Investments Commission Act 2001. free item includes a free service. goods includes: (a) ships, aircraft and other vehicles; and (b) animals, including fish; and (c) minerals, trees and crops, whether on, under or attached to land or not; and (d) gas and electricity; and (e) computer software; and (f) second-hand goods; and (g) any component part of, or accessory to, goods. grown: see section 255(7). GST has the meaning given by section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999. industry code has the meaning given by section 51ACA of the Competition and Consumer Act. (i)

information provider: see sections 19(5) and (6). information standard: see sections 134(1) and 135(1). inner container includes any container into which goods are packed, other than a shipping or airline container, pallet or other similar article. [page 1303] interest, in relation to land, means: (a) a legal or equitable estate or interest in the land; or (b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or (c) a right, power or privilege over, or in connection with, the land. interim ban: see sections 109(1) and (2). involved: a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced, whether by threats or promises or otherwise, the contravention; or (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention. joint liability proceedings means proceedings relating to the joint and several liability under section 278 of a linked credit provider and a supplier of goods or services. label includes a band or ticket. lay-by agreement: see section 96(3). linked credit contract: see section 278(2). linked credit provider, in relation to a supplier of goods or services,

means a credit provider: (a) with whom the supplier has a contract, arrangement or understanding relating to: (i) the supply to the supplier of goods in which the supplier deals; or (ii) the business carried on by the supplier of supplying goods or services; or (iii) the provision to persons to whom goods or services are supplied by the supplier of credit in respect of payment for those goods or services; or (b) to whom the supplier, by arrangement with the credit provider, regularly refers persons for the purpose of obtaining credit; or (c) whose forms of contract, forms of application or offers for credit are, by arrangement with the credit provider, made available to persons by the supplier; or (d) with whom the supplier has a contract, arrangement or understanding under which contracts, applications or offers for credit from the credit provider may be signed by persons at premises of the supplier. listed public company has the meaning given by section 995-1(1) the Income Tax Assessment Act 1997. loan contract means a contract under which a person in the course of a business carried on by that person provides or agrees to provide, whether on one or more occasions, credit to a consumer in one or more of the following ways: [page 1304] (a) by paying an amount to, or in accordance with the instructions of, the consumer; (b) by applying an amount in satisfaction or reduction of an amount owed to the person by the consumer; (c) by varying the terms of a contract under which money owed to the person by the consumer is payable;

(d) by deferring an obligation of the consumer to pay an amount to the person; (e) by taking from the consumer a bill of exchange or other negotiable instrument on which the consumer (whether alone or with another person or other persons) is liable as drawer, acceptor or endorser. major failure: see sections 260 and 268. mandatory standard, in relation to goods, means a standard: (a) for the goods or anything relating to the goods; and (b) that, under a law of the Commonwealth, a State or a Territory, must be complied with when the goods are supplied by their manufacturer, being a law creating an offence or liability if there is such non-compliance; but does not include a standard which may be complied with by meeting a higher standard. manufacturer: see section 7. market has the same meaning as in section 4E of the Competition and Consumer Act. materials, in relation to goods, means: (a) if the goods are unmanufactured raw products — those products; and (b) if the goods are manufactured goods — all matter or substances used or consumed in the manufacture of the goods (other than matter or substances that are treated as overheads); and (c) in either case — the inner containers in which the goods are packed. mixed supply: see section 3(11). National Credit Code has the meaning given by section 5(1) of the National Consumer Credit Protection Act 2009. negotiated by telephone: see section 78(3). negotiation: see section 72. new participant: see section 45(2). non-linked credit contract: see section 287(5).

non-party consumer means: (a) in relation to conduct referred to in section 239(1)(a)(i) — a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct; and (b) in relation to a term of a contract referred to in section 239(1)(a) (ii) — a person who is not, or has not been, a party to an enforcement proceeding in relation to the term. [def am Act 147 of 2015 s 3 and Sch 1 item 24, opn 12 Nov 2016]

[page 1305] participant, in a pyramid scheme, means a person who participates in the scheme. participate, in a pyramid scheme: see section 44(3). participation payment: see section 45(1)(a). permanent ban: see sections 114(1) and (2). premises means: (a) an area of land or any other place (whether or not it is enclosed or built on); or (b) a building or other structure; or (c) a vehicle, vessel or aircraft; or (d) a part of any such premises. price, of goods or services, means: (a) the amount paid or payable (including any charge of any description) for their acquisition; or (b) if such an amount is not specified because the acquisition is part only of a transaction for which a total amount is paid or payable: (i) the lowest amount (including any charge of any description) for which the goods or services could reasonably have been acquired from the supplier at the time of the transaction or, if not from the supplier, from another supplier; or (ii) if they could not reasonably have been acquired separately

from another supplier — their value at the time of the transaction. prior negotiations or arrangements, in relation to the acquisition of goods by a consumer, means negotiations or arrangements: (a) that were conducted or made with the consumer by another person in the course of a business carried on by the other person; and (b) that induced the consumer to acquire the goods, or otherwise promoted the acquisition of the goods by the consumer. product related service means a service for or relating to: (a) the installation of consumer goods of a particular kind; or (b) the maintenance, repair or cleaning of consumer goods of a particular kind; or (c) the assembly of consumer goods of a particular kind; or (d) the delivery of consumer goods of a particular kind; and, without limiting paragraphs (a) to (d), includes any other service that relates to the supply of consumer goods of that kind. proof of transaction: see section 100(4). publish, in relation to an advertisement, means include in a publication intended for sale or public distribution (whether to the public generally or to a restricted class or number of persons) or for public display (including in an electronic form). pyramid scheme: see section 45(1). recall notice: see section 122(1). recovery period: see section 41(4). recruitment payment: see section 45(1)(b). [page 1306] regulations means regulations made under section 139G of the Competition and Consumer Act. regulator:

(a) for the purposes of the application of this Schedule as a law of the Commonwealth — means the Commission; or (b) for the purposes of the application of this Schedule as a law of a State or a Territory — has the meaning given by the application law of the State or Territory. rejection period: see section 262(2). related, in relation to a body corporate: see section 6. related contract or instrument: see section 83(2). rely on, in relation to a term of a consumer contract or small business contract, includes the following: (a) attempt to enforce the term; (b) attempt to exercise a right conferred, or purportedly conferred, by the term; (c) assert the existence of a right conferred, or purportedly conferred, by the term. [def am Act 147 of 2015 s 3 and Sch 1 item 25, opn 12 Nov 2016]

responsible Minister means: (a) the Commonwealth Minister; or (b) the Minister of a State who administers the application law of the State; or (c) the Minister of a Territory who administers the application law of the Territory. safety defect, in relation to goods: see section 9. safety standard: see sections 104(1) and 105(1). sale by auction, in relation to the supply of goods by a person, means a sale by auction that is conducted by an agent of the person (whether the agent acts in person or by electronic means). send includes deliver, and sent and sender have corresponding meanings. serious injury or illness means an acute physical injury or illness that requires medical or surgical treatment by, or under the supervision of, a medical practitioner or a nurse (whether or not in a hospital, clinic or similar place), but does not include:

an ailment, disorder, defect or morbid condition (whether of (a) sudden onset or gradual development); or (b) the recurrence, or aggravation, of such an ailment, disorder, defect or morbid condition. services includes: (a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and [page 1307] (b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under: (i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or (ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or (iii) a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or (iv) a contract of insurance; or (v) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or (vi) any contract for or in relation to the lending of money; but does not include rights or benefits being the supply of goods or the performance of work under a contract of service. share includes stock. ship has the meaning given by section 3(1) of the Admiralty Act 1988.

single price: see section 48(7). small business contract: see subsection 23(4). [def insrt Act 147 of 2015 s 3 and Sch 1 item 26, opn 12 Nov 2016]

standard form contract has a meaning affected by section 27. [def insrt Act 147 of 2015 s 3 and Sch 1 item 26, opn 12 Nov 2016]

substantially transformed, in relation to goods: see section 255(3). substantiation notice means a notice under section 219. substantiation notice compliance period: see section 221(2). supply, when used as a verb, includes: (a) in relation to goods — supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase; and (b) in relation to services — provide, grant or confer; and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings. Note: Section 5 deals with when a donation is a supply. supply of limited title: see section 51(2). telecommunications service: see section 65(2). termination charge: see section 97(2). termination period, in relation to an unsolicited consumer agreement, means the period within which the consumer under the agreement is, under section 82 or under the agreement, entitled to terminate the agreement. [page 1308] tied continuing credit contract means a continuing credit contract under which a credit provider provides credit in respect of the payment by a consumer for goods or services supplied by a supplier in relation to whom the credit provider is a linked credit provider. tied loan contract means a loan contract entered into between a credit provider and a consumer where: (a) the credit provider knows, or ought reasonably to know, that the

consumer enters into the loan contract wholly or partly for the purposes of payment for goods or services supplied by a supplier; and (b) at the time the loan contract is entered into the credit provider is a linked credit provider of the supplier. trade or commerce means: (a) trade or commerce within Australia; or (b) trade or commerce between Australia and places outside Australia; and includes any business or professional activity (whether or not carried on for profit). transparent (a) in relation to a document — means: (i) expressed in reasonably plain language; and (ii) legible; and (iii) presented clearly; and (b) in relation to a term of a consumer contract or small business contract — see section 24(3). [def am Act 147 of 2015 s 3 and Sch 1 item 27, opn 12 Nov 2016]

unfair, in relation to a term of a consumer contract or small business contract: see section 24(1). [def am Act 147 of 2015 s 3 and Sch 1 item 28, opn 12 Nov 2016]

unsolicited consumer agreement: see section 69. unsolicited goods means goods sent to a person without any request made by the person or on his or her behalf. unsolicited services means services supplied to a person without any request made by the person or on his or her behalf. upfront price: see section 26(2). warranty against defects: see section 102(3). (2) In this Schedule: (a) a reference to engaging in conduct is a reference to doing or refusing to do any act, including: (i) the making of, or the giving effect to a provision of, a contract or arrangement; or

(ii) the arriving at, or the giving effect to a provision of, an understanding; or (iii) the requiring of the giving of, or the giving of, a covenant; and [page 1309] (b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), is a reference to the doing of or the refusing to do any act, including: (i) the making of, or the giving effect to a provision of, a contract or arrangement; or (ii) the arriving at, or the giving effect to a provision of, an understanding; or (iii) the requiring of the giving of, or the giving of, a covenant; and (c) a reference to refusing to do an act includes a reference to: (i) refraining (otherwise than inadvertently) from doing that act; or (ii) making it known that that act will not be done; and (d) a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.

[14,515]

Meaning of consumer

3 (1) Acquiring goods as a consumer A person is taken to have acquired particular goods as a consumer if, and only if: (a) the amount paid or payable for the goods, as worked out under subsections (4) to (9), did not exceed: (i) $40,000; or (ii) if a greater amount is prescribed for the purposes of this

paragraph — that greater amount; or (b) the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or (c) the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads. (2) However, subsection (1) does not apply if the person acquired the goods, or held himself or herself out as acquiring the goods: (a) for the purpose of re-supply; or (b) for the purpose of using them up or transforming them, in trade or commerce: (i) in the course of a process of production or manufacture; or (ii) in the course of repairing or treating other goods or fixtures on land. (3) Acquiring services as a consumer A person is taken to have acquired particular services as a consumer if, and only if: (a) the amount paid or payable for the services, as worked out under subsections (4) to (9), did not exceed: (i) $40,000; or (ii) if a greater amount is prescribed for the purposes of subsection (1)(a) — that greater amount; or (b) the services were of a kind ordinarily acquired for personal, domestic or household use or consumption. (4) Amounts paid or payable for purchases For the purposes of subsection (1) or (3), the amount paid or payable for goods or services purchased by a person is taken to be the price paid or payable by the person for the goods or services, unless subsection (5) applies. [page 1310] (5) For the purposes of subsection (1) or (3), if a person purchased goods or services by a mixed supply and a specified price was not allocated to the goods or services in the contract under which they were purchased, the amount paid or payable for goods or services is taken to be: (a) if, at the time of the acquisition, the person could have purchased

from the supplier the goods or services other than by a mixed supply — the price at which they could have been purchased from the supplier; or (b) if: (i) paragraph (a) does not apply; but (ii) at the time of the acquisition, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply; the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or (c) if, at the time of the acquisition, goods or services of the kind acquired could not have been purchased from any supplier except by a mixed supply — the value of the goods or services at that time. (6) Amounts paid or payable for other acquisitions For the purposes of subsection (1) or (3), the amount paid or payable for goods or services acquired by a person other than by way of purchase is taken to be the price at which, at the time of the acquisition, the person could have purchased the goods or services from the supplier, unless subsection (7) or (8) applies. (7) For the purposes of subsection (1) or (3), if: (a) goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from the supplier, or could have been purchased only by a mixed supply; but (b) at that time, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply; the amount paid or payable for the goods or services is taken to be the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier. (8) For the purposes of subsection (1) or (3), if goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from any supplier other than by a mixed supply, the amount paid or payable for the goods or services is taken to be the value of the goods or services at that time.

(9) Amounts paid or payable for obtaining credit If: (a) a person obtains credit in connection with the acquisition of goods or services by him or her; and (b) the amount paid or payable by him or her for the goods or services is increased because he or she so obtains credit; obtaining the credit is taken for the purposes of subsection (3) to be the acquisition of a service, and the amount paid or payable by him or her for the service of being provided with the credit is taken to include the amount of the increase. (10) Presumption that persons are consumers If it is alleged in any proceeding under this Schedule, or in any other proceeding in respect of a matter arising under this [page 1311] Schedule, that a person was a consumer in relation to particular goods or services, it is presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services. (11) Amounts paid or payable for obtaining credit A purchase or other acquisition of goods or services is made by a mixed supply if the goods or services are purchased or acquired together with other property or services, or together with both other property and other services. (12) Supplies to consumers In this Schedule, a reference to a supply of goods or services to a consumer is a reference to a supply of goods or services to a person who is taken to have acquired them as a consumer. SECTION 3 GENERALLY [14,515.5] Overview This provision was inserted as part of the Australian Consumer Law. See [14,500.5]. See also ACL s 4B. For a full list of comparative provisions see [10,001]. In its report the Commonwealth Consumer Affairs Advisory Council (CCAAC) recommended the adoption of a consistent approach to defining “consumer” in the Australian Consumer Law with the same definition to

apply to statutory consumer guarantees (Finding 5.3). See [14,500.5]. Under the provision a person acquires goods as a consumer if (and only if): (a) The goods do not exceed $40,000 (or a higher prescribed amount); or (b) the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or (c) the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads, and the person did not acquire the goods (or hold himself or herself out as acquiring the goods) for the purpose of re-supply, for the purpose of using them up or transforming them in trade or commerce in the course of a process of production or manufacture, or in the course of repairing or treating other goods or fixtures on land. Under the provision, a person is taken to have acquired particular services as a consumer if, and only if, the services were of a kind ordinarily acquired for personal, domestic or household use or consumption. The definition of consumer in s 3 applies in broadly the following circumstances: • Consumer guarantees (Pt 3-2, Div 1) • Unsolicited consumer agreements, lay-by sales agreements, the provision of itemised bills, the definition of “continuing credit contracts” and “linked credit contracts” (Pt 3-2, Div 2) The definition of consumer in s 3 does not apply to the provisions on unconscionable conduct under Pt 2-2. In Pt 2-2 a consumer is defined simply as the person to whom a supplier supplies goods or services. The provisions that apply to unfair contracts in Pt 3-2 employ the expression “consumer contract”. That expression is not linked to the definition of “consumer” under s 3. Rather, s 23(3) defines a “consumer contract” for the purpose of the provisions on unfair contracts as a contract for: (a) the supply of goods or services; or (b) a sale or grant of an interest in land, to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption. [14,515.10] Acquire

See the definition in ACL s 2.

[page 1312] [14,515.15] Goods

See the definition in ACL s 2 and [10,055.15].

[14,515.20] Ordinarily acquired for personal, domestic or household use or consumption See [10,055.40]. [14,515.25] Acquisition for re-supply or for transformation in trade or commerce See [10,055.42]. ________________________

[14,520] Misleading representations with respect to future matters (1) If: (a) a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and (b) the person does not have reasonable grounds for making the representation; the representation is taken, for the purposes of this Schedule, to be misleading. (2) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by: (a) a party to the proceeding; or (b) any other person; the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary. (3) To avoid doubt, subsection (2) does not: (a) have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or (b) have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation. (4) Subsection (1) does not limit by implication the meaning of a reference 4

in this Schedule to: (a) a misleading representation; or (b) a representation that is misleading in a material particular; or (c) conduct that is misleading or is likely or liable to mislead; and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation. SECTION 4 GENERALLY [14,520.5] Overview This provision was inserted as part of the Australian Consumer Law. For a full discussion of Schedule 2: ACL see [14,500.5]. ACL s 18, replaces TPA s 51A. For a full list of comparative provisions see [10,001]. Prior to the enactment of s 51A, it had been held that in order for an informant to prove that a statement as to the future was false, it would be necessary to show that the defendant did not believe that the forecast or the prediction would be satisfied or was recklessly indifferent concerning the forecast or the prediction: Thompson v Mastertouch TV Service Pty Ltd (No 1) (1977) 29 FLR 270; (1977) ATPR ¶40-027 at 17,366 per Franki J; DigiTech (Australia) Ltd v Brand (2004) 62 IPR 184; (2004) ATPR 46-248; [2004] NSWCA 58; BC200401385 at [92] per Sheller, Ipp and McColl JJA: see Hatt v Magro (2007) 34 WAR 256; (2007) ATPR 42-169; [2007] WASCA 124; BC200704368 at [36] per Steytler P, Wheeler and Pullin JJA agreeing. [page 1313] It was also accepted in Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; 55 ALR 25; (1984) ASC 55-334; (1984) ATPR ¶40-463 that the non-fulfilment of a promise when the time for performance arrives or the fact that a prediction proves inaccurate does not of itself establish that the promisor’s intention lacked foundation or that he did not believe that the prediction would eventuate. The perceived inadequacies flowing from these two decisions resulted in

the enactment of s 51A by the Trade Practices Revision Act 1986. For a comprehensive discussion of the introduction of s 51A and the operation of the provision see Re McGrath; Pan Pharmaceuticals Ltd (in liq) v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230; 246 ALR 514; [2008] FCAFC 2; BC200800143 at [165]–[194] per Allsop J. The provision was re-drafted when it was introduced into the Australian Consumer Law to remove a number of ambiguities that have arisen in the judicial interpretation of TPA s 51A. Specifically, the provision clarifies that: • it does not have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making it. • even if contrary evidence is adduced, the person who made the representation may still be found not to have had reasonable grounds for making the representation. Section 4 therefore makes clear that merely adducing evidence of reasonable grounds does not constitute a substantive defence to an action for misleading or deceptive conduct. Commonwealth, State and Territory agencies have published “General Law: A Guide for Business and Legal Practitioners 2010”, which provides guidance on this provision. [14,520.15] Representations with respect to a future matter Section 4 does not, and s 51A did not, have a retrospective operation to cover representations as to future conduct made before the section was operational. That is, the section applies to representations made after its introduction, not to representations made pre-enactment but with post-enactment consequences: Cedric Constructions Pty Ltd v Elders Finance and Investment Co Ltd (1988) ATPR ¶40-879 at 49,540 per Einfeld J. The section is an interpretation section designed to facilitate proof. Relevant causes of action must be found in other provisions of the Act: Cream v Bushcolt Pty Ltd (2004) ATPR ¶42-004; (2004) Aust Contract R 90-199; [2004] WASCA 82; BC200402143 at [129] per Malcolm CJ, Miller and McKechnie JJ agreeing; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364; BC200807885 at [96] per Collier J. It has also been suggested that the section applies even to a statement of an expectation that something will occur at a future date — on TPA s 51A, see: Sykes v Reserve Bank of Australia (1998) ATPR ¶41-608; (appeal) Sykes v

Reserve Bank of Australia (1998) 88 FCR 511; 158 ALR 710; (1999) ATPR ¶41-699; BC9805901; Seven Network Ltd v News Ltd (2007) ATPR (Digest) 42-274; [2007] FCA 1062; BC200705841 at [3182] per Sackville J; Lowe v Mack Trucks Australia Pty Ltd [2008] FCA 439; BC200802285 at [44] per Kenny J; Alpine Beef Pty Limited v Trycill Pty Limited [2010] FCA 136; BC201001117 per Flick J. The mere fact that representations as to future conduct or events do not come to pass does not make the representation misleading or deceptive: James v ANZ Banking Group Ltd (1986) 64 ALR 347; 6 IPR 540; (1986) ASC 55-477; (1986) ATPR (Digest) 46-005; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; 55 ALR 25; (1984) ASC 55334; (1984) ATPR ¶40-463; Quadrascan Graphics Pty Ltd v Crosfield Electronics ANZ Pty Ltd (FCA, Carr J, WAG 124/93, 18 May 1995, unreported) at 127; Valentine Films Pty Ltd v Trimex Pty Ltd (FCA, Merkel J, No 10/93, 7 March 1996, unreported, BC9600599) at 25; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) ¶46-179; [1997] FCa 1101; BC9705420; Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd [2001] FCA 1876; BC200108272 at [290] per Weinberg J; Fubilan Catering Services Ltd v Compass Groups (Australia) Pty Ltd [2007] FCA 1205; BC200706381 at [547] per French J; (appeal) Fubilan Catering Services Ltd v Compass Groups (Aust) Pty Ltd [2008] FCAFC 53; BC200802248 per Heerey, Sackville and McKerracher JJ; Ventouris Enterprises Pty Limited v Dib Group Limited [2010] NSWSC 963; BC201006707 at [93] per Slattery J. See also [14,590.155]; Auswest Timbers Pty Limited v [page 1314] Secretary to the Department of Sustainability and Environment (2010) 241 FLR 360; [2010] VSC 389; BC201006317 per Croft J; Consolo Ltd v Bennett [2012] FCAFC 120; BC201206471 per Keane CJ, McKerracher, Katzmann JJ; Henderson v McSharer [2015] FCA 396; BC201503156 per Gilmour J. There is no requirement that the “future matter” relate to a specific future time or occasion. Section 4 may equally operate on a representation as to an unspecified future time — on s 51A, see: Dukemaster Pty Ltd v Bluehive Pty Ltd [2002] FCAFC 377; BC200207083 at [93] per Conti J.

It is appropriate to treat a representation as relating to an event or conduct in the future even though it implies a representation as to the maker’s present state of mind: Ting v Blanche (1993) 118 ALR 543 at 553; (1993) ATPR ¶41-282; BC9305082 per Hill J; Digi-Tech (Aust) Ltd v Brand (2004) 62 IPR 184; (2004) ATPR 46-248; [2004] NSWCA 58; BC200401385 at [99] per Sheller, Ipp and McColl JJA; Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding AG [2004] NSWSC 149; BC200401598 at [281] per Einstein J; Cream v Bushcolt Pty Ltd, above, at [131] per Malcolm CJ, Miller and McKechnie JJ agreeing. However, a distinction needs to be drawn between a representation as to the future and a present representation that there is statistically objective basis for a particular consequence occurring in the future, such that the representation is in the nature of a hypothetical: Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2015] NSWCA 94; BC201502639 at [149] per Bathurst CJ, Beazley P and Barrett JA. Section 51A(1) was concerned only with representations and not with the broader concept of conduct. It therefore had a direct relevance to s 53, now ACL s 29, for example, but indirect operation upon s 52, now ACL s 18, which refers to conduct: Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189; (1989) ATPR ¶40-940 at 50,250. Section 51A(1) provided that any representation made by a corporation in relation to a future matter would be taken to be misleading unless the corporation had reasonable grounds for making the representation: Cameron v Qantas Airways Ltd (1995) 55 FCR 147; (1995) ATPR ¶41-417; BC9507577; (appeal) Qantas Airways Ltd v Cameron (No 3) (1996) 68 FCR 387; 148 ALR 378; (1996) ATPR ¶41-530; Australian Competition and Consumer Commission (ACCC) v ATS All Trades and Services Pty Ltd [2009] FCA 647; BC200905264 per Moore J. Where the corporation did have reasonable grounds for making a representation with respect to a future matter, there was no contravention of s 52 (now ACL s 18): Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1; (2004) ATPR ¶42-010; [2004] FCAFC 175; BC200404123 at [14] per Heerey, Sundberg and Dowsett JJ; Silver Fox Co Pty Ltd v Lenard’s Pty Ltd (2004) ATPR ¶42-024; [2004] FCA 1225; BC200406128 at [167] per Mansfield J; Entirity Business Services Pty Ltd v Garsoft Pty Ltd [2011] FCA 76; BC201100385 per Moore J; Crossman v Taylor (No 3) [2011] FCA 734; BC201104604 per Besanko J; Skiwing Pty Ltd v Trust Company of Australia

Ltd [2011] FCA 438; BC201102813 per Buchanan J; Haros v Linfox [2011] FCA 699; BC201104399 per Tracey J; Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2015] NSWCA 94; BC201502639 per Bathurst CJ, Beazley P and Barrett JA. Note that TPA s 51A concerns representations of a “corporation” while ACL s 4 refers to a person. [14,520.20] Reasonable grounds for making a representation The word “reasonable” in s 4 is not able to be applied as if it constituted a fixed set of rules or a fixed standard of permissible behaviour equally applicable in all contexts. See Gatsios Holdings Pty Ltd v Nick Kritharas Holdings Pty Ltd (in liq) (2002) ATPR ¶41-864; [2002] NSWCA 29; BC200200853 at [21] per Spigelman CJ for a discussion of the meaning of “reasonable” in the context of the previous s 51A. In Gatsios Spigelman CJ said at [21] that nothing in the case law under the consumer protection provisions of the Act suggests that the approach to what are, or are not, “reasonable grounds” for the making of a representation as to future matters represents a standard of reasonableness of the [page 1315] same quality as that which the authorities suggest is appropriate when dealing with the prospect of depriving a trustee of his or her right of indemnity. A representation may be made on reasonable grounds if it is based on information provided by someone to the person who ultimately makes the representation. The question will depend upon the reputation of the person providing the information and past dealings: Australian Competition & Consumer Commission (ACCC) v Danoz Direct Pty Ltd (2003) 60 IPR 296; (2003) ATPR (Digest) ¶46-241; [2003] FCA 881; BC200304701 at [174] per Dowsett J. [14,520.25] Representation taken to be misleading In using the expression “is taken. . . to be misleading”, the provision does not deem such a representation to be misleading conduct. The expression “shall be taken to be misleading” indicates that there is a matter of judgment or decision remaining to be exercised as to the quality of the representation. For a discussion of the

expression “is taken to be misleading” in the context of TPA s 51A, see: Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189; (1989) ATPR ¶40-940 at 50,250. [14,520.30] Accessorial liability Section 4 does not detract from the principles for accessorial liability that actual knowledge of the essential elements of the contravention is required if ss 75B or 80 is to apply. However, the reversal of onus in s 4(2) does not apply where accessorial liability of ss 75B or 80 is relied on. For discussion of this principle in the context of s 51A(2), see Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1; (2004) ATPR ¶42-010; [2004] FCAFC 175; BC200404123 at [10]–[15] per Heerey, Sundberg and Dowsett JJ; Australian Competition and Consumer Commission (ACCC) v Global Prepaid Communications Pty Ltd (in liq) (2006) ATPR ¶42-103; [2006] FCA 146; BC200600710 at [45] per Gyles J; Hatt v Magro (2007) 34 WAR 256; (2007) ATPR 42-169; [2007] WASCA 124; BC200704368 at [42] per Steytler P, Wheeler JA (agreeing); at [65] per Pullin JA; Stewart v White [2011] QCA 291; BC201108118 at [36] per McMurdo P, Muir JA and Wilson AJA. Where ss 75B or 80 accessorial liability is an issue in relation to the representation of a future matter, the existence or otherwise of reasonable grounds will be relevant. If reasonable grounds exist, there will have been no contravention and thus no question of accessorial liability will arise: Quinlivan v Australian Competition and Consumer Commission, above, at [10]–[15] per Heerey, Sundberg and Dowsett JJ; Australian Competition and Consumer Commission (ACCC) v Global Prepaid Communications Pty Ltd (in liq), above, at [45] per Gyles J; Stewart v White [2011] QCA 291; BC201108118 at [37] per McMurdo P, Muir JA and Wilson AJA. [14,520.35] Adducing evidence of a future matter Note: Cases in this paragraph decided under TPA s 51A are relevant for the interpretation of ACL s 4. Where TPA s 51A referred to a “corporation”, ACL s 4 refers to a “person”. The provision places an onus on the person who made the representation to adduce evidence to discharge a statutory presumption that it did not have reasonable grounds for making a representation with respect to a future event, on s 51A, see: Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189; (1989) ATPR ¶40-940 at 50,250; Ritchie v Woollett (NSWSC, Santow J, No 3918/95, 25 September 1996, unreported,

BC9604492); Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525; (1996) ATPR ¶41-534; BC9604412; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) 42 IPR 1; (1998) ATPR ¶41-633; BC9801863; Australian Competition & Consumer Commission v Optell Pty Ltd (1998) 41 IPR 49; (1998) ATPR ¶41-640; BC9802179; Australian Competition and Consumer Commission v IMB Group Pty Ltd (1999) ATPR ¶41-704; [1999] FCA 819; BC9903985; Blacker v National Australia Bank Ltd [2000] FCA 681; BC200002725; Minister for Health & Aged Care v Harrington Associates Ltd (2000) 107 FCR 212; [2000] FCA 1723; BC200007297; City of Botany Bay Council v Jazabas Pty Ltd [2002] ANZ ConvR 300; (2001) ATPR (Digest) ¶46-210; [2001] NSWCA 94; BC200101634 at [85] per Mason P; Concrete Constructions Group Ltd v Litevale Pty Ltd (2002) 170 FLR 290; (2002) ATPR (Digest) ¶46-224; [2002] NSWSC 670; BC200204352 at [156] per Mason P; Sanders v Glev Franchises Pty Ltd [2002] FCA 1332; BC200206415 at [280] per Kenny J; Hatt v Magro (2007) 34 WAR 256; (2007) ATPR 42-169; [2007] WASCA 124; BC200704368 at [38] per Steytler P, Wheeler JA (agreeing) [page 1316] and Pullin JA; see Commissioner for Fair Trading, Dept of Commerce v Perrett [2007] NSWSC 1130; BC200708733 at [125] per Harrison J; see, however, Re McGrath; Pan Pharmaceuticals Ltd (in liq) v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230; (2008) ATPR ¶42-213; [2008] FCAFC 2; BC200800143 at [177] per Allsop J; Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd (No 2) [2008] FCA 1480; BC200808721 at [96] per Flick J; Narellan Pools Pty Ltd v Huntsman Chemical Co Australia Pty Ltd [2010] FCA 267; BC201001610 at [46] per Edmonds J; Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 5) [2010] FCA 313; BC201001977 at [268] per Logan J; Takemoto v Moody’s Investors Service Pty Ltd [2010] FCA 407; BC201002604 at [22] per Flick J; (appeal) Australian Competition & Consumer Commission (ACCC) v Dateline Imports Pty Ltd [2015] FCAFC 114; BC201508279 per Gilmour, McKerracher and Gleeson JJ. It could be said that s 51A(2) did not ultimately reverse the onus of proof but simply provided that the deeming takes effect unless the corporation

adduces some evidence to the contrary. Once such evidence is adduced it is for the court to make a judgment on the balance of probabilities, having regard to all the evidence, as to whether the corporation had reasonable grounds for making the representation: Australian Competition & Consumer Commission (ACCC) v Universal Sports Challenge Ltd [2002] FCA 1276; BC200206452 at [46] per Emmett J; Fubilan Catering Services Ltd v Compass Groups (Australia) Pty Ltd [2007] FCA 1205; BC200706381 at [545] per French J; (appeal) Fubilan Catering Services Ltd v Compass Groups (Aust) Pty Ltd [2008] FCAFC 53; BC200802248 per Heerey, Sackville and McKerracher JJ; North East Equity Pty Ltd v Proud Nominees Pty Ltd [2007] FCA 1587; BC200708769 at [20] per Rares J; see, however, Re McGrath; Pan Pharmaceuticals Ltd (in liq) v Australian Naturalcare Products Pty Ltd, above, at [177]–[180] per Allsop J; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364; BC200807885 at [277] per Collier J; Alpine Beef Pty Ltd v Trycill Pty Ltd [2010] FCA 136; BC201001117 at [76] per Flick J; North East EquityPty Ltd v Proud Nominees Pty Ltd (2012) 285 ALR 217; [2012] FCAFC 1; BC201200080 per Mansfield, Greenwood and Barker JJ. See Bennett v Elysium Noosa Pty Ltd (in liq) (2012) 202 FCR 72; [2012] FCA 211; BC201201829 per Reeves J. The interpretation in Universal Sports Challenge, above, was rejected by Stone J in Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136; BC200706369 at [82]. Stone J said: [82] … I would read the phrase “evidence to the contrary” as meaning evidence adduced by the person making the representation that, to the satisfaction of the Court, establishes that there were reasonable grounds for making the representation. In other words, I interpret the subsection as providing that the person making the representation can only avoid the deeming provision by establishing on the usual balance of probabilities that there were reasonable grounds for making the representation.

The operation of the provision was comprehensively considered in Re McGrath; Pan Pharmaceuticals Ltd (in liq) v Australian Naturalcare Products Pty Ltd, above, at [165]–[194] per Allsop J. After examining all the authorities, Allsop J said at [191]–[193]: [191] It is important to understand that the submission of the appellant that Keane JA rejected was that once “evidence was put forward”, the onus to prove a lack of reasonable grounds was on the representee. Keane JA did refer to “the trend of established authority”, by reference to Danoz Direct [2003] FCA 881 and Henry Kaye [2004] FCA 1363. In the latter case, as I have said, Kenny J expressly rejected the views of Emmett J in Universal Sports Challenge [2002] FCA 1276. Importantly, however, Keane JA then, in [127] and [128], expressed his understanding of what Emmett J had said. That understanding, which Keane JA said reflected common sense, and which reflects my understanding of the operation of the section, was that the provision required evidence

“to the contrary” to be adduced, that is evidence that tended to establish, or that admitted of the inference that there were, reasonable grounds for making the

[page 1317] representation, before the deeming provision ceased to operate. It seems to me that that is what Emmett J was saying. His Honour was not referring to any evidence relevant to that topic, but evidence “to the contrary”. [192] If evidence is adduced by the representor that is said to be evidence to the contrary, it will be for the Court to determine whether it is to the contrary in the sense just discussed. If it is, the deeming provision will cease to operate. That was the view of Emmett J, as understood by Keane JA. That is my view. That was not, however, an expression of the view that the legal or persuasive onus has been changed by s 51A(2), as some of the judgments in the “trend of established authority” referred to by Keane JA have stated. For instance, if evidence “to the contrary” is adduced by the representor, and if the representee itself adduces evidence tending to the lack of reasonable grounds, the matter might be equally poised. In such a case, there has been evidence “to the contrary” adduced by the representee, thereby eliminating the operation of the deeming provision, and, on the totality of the evidence, the proof of the reasonableness (or lack thereof) of the grounds is evenly balanced. Section 51A(2) does not, in my view, mean that in those circumstances the representor has not met an onus. The section does not cast the legal or persuasive onus, in such a case, on the representor.Its terms do not say so. The enactment history makes clear that the terms were deliberately chosen not to say so. Keane JA, despite his reference to the “trend of established [first instance] authority”, does not say so. In my respectful view, to the extent that decisions such as IMB Group (1999) ATPR 41-704; Blacker [2000] FCA 681; Henry Kaye [2004] FCA 1363; Lewarne [2007] FCA 1136 and Emerald Ocean [2005] FCA 1703 say, or may be taken as saying, that the legal or persuasive onus of proof is shifted to the representor by s 51A(2), they are wrong. None examined the enactment history of s 51A. If it be thought, contrary to my reading of Keane JA’s reasons, that his Honour’s reference to Henry Kaye [2004] FCA 1363 as “established authority” was a conclusion that s 51A(2) effected a reversal of the legal and persuasive onus of proof, I would be driven to the respectful view that his Honour was plainly wrong for the reasons that I have given. [193] To the extent that this interpretation of s 51A(2) may lead to an inconsistency between the Commonwealth, Australian Capital Territory, South Australian and Tasmanian provisions, on the one hand, and the simpler onus-shifting provisions elsewhere in Australia in terms similar or identical to the proposed s 51A(2) in cl 21 of the Amendment Bill or the Revision Bill, on the other hand, that is a result of clear Parliamentary choice (at least in respect of the Commonwealth Parliament), not any quirk or idiosyncrasy of judicial interpretation. [emphasis added]

See Rosebanner Pty Ltd v EnergyAustralia (2009) 223 FLR 460; [2009] NSWSC 43; BC200900802 at [422] per Ward J; Traderight Pty Ltd v Bank of Queensland (2010) 266 ALR 503; 238 FLR 358; [2010] NSWSC 139; BC201001052 at [103] per Ward J; Astram Financial Services Pty Limited v Bank of Queensland Limited [2010] FCA 1010; BC201006750 at [309] per Buchanan J; Traderight (NSW) Pty Ltd v Bank Of Queensland Ltd [2014] NSWSC 55; BC201400484 per Ball J.

The position was altered by the amendments introduced when this section was incorporated as part of the Australian Consumer Law. See [14,520.5]. [14,520.45] Contractual promise Section 4 does not provide in what circumstances a representation as to a future matter shall be implied for a contractual promise. A fortiori, it does not import into every contractual promise an implied representation as to intent and capacity to perform, nor does it prove that any such implied representation was relied upon by the other contracting party. See, in the context of s 51A: Concrete Constructions Group v Litevale Pty Ltd (2002) 170 FLR 290; (2002) ATPR (Digest) ¶46224; [2002] NSWSC 670; BC200204352 at [166], [171] per Mason P. See, however, Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 at 238-41; (1990) ATPR ¶41-049; [1991] ANZ ConvR 75; (1990) V ConvR 54378 per Ormiston J; HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 211 ALR 79; 79 ALJR [page 1318] 190; [2004] HCA 54; BC200407490 at [13] per Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ; Coles Supermarkets Australia Pty Ltd v FKP Ltd [2008] FCA 1915; BC200811389 at [69] per Gordon J; See Zwanenberg Australia Pty Ltd v Moira Macs Poultry and Fine Foods Pty Ltd [2014] FCA 1072 per Jessup J. [14,520.50] Relationship to misleading and deceptive conduct There is support for the proposition that in the absence of s 51A [ACL s 4], representations with respect to any future matter may still have been caught by s 52 (now ACL s 18): see Bell v Australasian Recyclers (WA) Pty Ltd (1986) ATPR ¶40-644; James v ANZ Banking Group Ltd (1986) 64 ALR 347; (1986) 6 IPR 540; (1986) ASC 55-477; (1986) ATPR (Digest) ¶46-005 at 53,034; Ting v Blanche (1993) 118 ALR 543; (1993) ATPR ¶41-282; BC9305082; Quadrascan Graphics Pty Ltd v Crosfield Electronics ANZ Pty Ltd (FCA, Carr J, No 124/93, 18 May 1995, unreported); Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525; (1996) ATPR ¶41534; BC9604412. For instance, in Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189; (1989) ATPR ¶40-940, Lee J said that there may

be conduct which contravenes s 52 without it being established that there was an implied representation by the maker of the prediction that there were reasonable grounds for the belief that the prediction would be fulfilled. A positive unqualified prediction, for instance, may be misleading conduct if circumstances show the need for some qualification and no qualification is attached to the prediction or there is a need to disclose the risk of nonfulfilment and no such disclosure is made. In Bowler v Hilda Pty Ltd (1998) 80 FCR 191; 153 ALR 95; (1998) ATPR ¶41-625 at 40,855–7; BC9800669, Heerey J agreed with the views of Lee J in Wheeler Grace, above. He said that it is the objective nature of the alleged contravenor’s conduct that is ultimately determinative of liability and not his or her state of mind. Also the words of the statute are to be given their natural meaning and not moulded to fit the pre-existing common law. This view was said to be applicable equally in the absence of s 51A. See also Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171; BC200300826 at [627] per Allsop J. It will also be enough to show that when the representation was made the representor lacked the means to cause the event to occur: Rousselis v Aizeema (Aust) Pty Ltd (1994) ATPR (Digest) ¶46-116; BC9305158. In the absence of s 51A, however, the burden would remain with the applicant to show that the representation was misleading or deceptive: Ting v Blanche (1993) 118 ALR 543; (1993) ATPR ¶41-282 at 41,763; BC9305082; Sykes v Reserve Bank of Australia (1998) 88 FCR 511; 158 ALR 710; (1999) ATPR ¶41-699 at 42,902; BC9805901. Section 51A therefore placed the evidentiary burden on the respondent to establish that reasonable grounds for making the representation existed: Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) ¶46-179 at 54,432; BC9705420. In Adelaide Petroleum NL v Poseidon Ltd (1988) ATPR ¶40-901 at 49,699 French J argued that the consequences of bringing unfulfilled promises and predictions within the scope of s 52 was so far reaching that the legislature could be expected to have made that clear. The position was altered by the amendments introduced when this section was incorporated as part of the Australian Consumer Law. See [14,520.5]. [14,520.55] Pleadings in relation to a future matter A party invoking the application of s 4 should make it clear that it is doing so. See: Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) ¶46-179; BC9705420; Truth About Motorways Pty Ltd v Macquarie Infrastructure

Investment Management Ltd (1998) 42 IPR 1; (1998) ATPR ¶41-633; BC9801863; Australian Competition and Consumer Commission v IMB Group Pty Ltd (1999) ATPR ¶41-704; [1999] FCA 819; BC9903985; O’Neill v Medical Benefits Fund of Australia (2002) 122 FCR 455; (2002) ATPR ¶41-882; [2002] FCAFC 188; BC200203216 at [16] per Carr, Moore and Marshall JJ. In Cummings v Rundle (1993) 41 FCR 559; 113 ALR 285; (1993) ATPR (Digest) ¶46-103, the question was left open as to whether there is any requirement that a specific reference to the previous s 51A needs to be pleaded or some reference made to it. However it has been said that [page 1319] despite Cummings v Rundle a number of judges are of the opinion that where a party wishes to rely on s 51A, it must give a clear indication of that to its opponent: Australian Competition and Consumer Commission v IMB Group Pty Ltd, above. See Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) ¶46-179; BC9705420; Sykes v Reserve Bank of Australia (1998) 88 FCR 511; 158 ALR 710; (1999) ATPR ¶41-699 at 42,902; BC9805901; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2006] QCA 194; BC200604049 at [79] per McPherson JJA. The duty of the applicant to make it clear is discharged if it pleads that the respondent did not have reasonable grounds for making the representation and that it was thereby misleading or deceptive. However, in Cummings v Rundle (1993) 41 FCR 559; 113 ALR 285; (1993) ATPR (Digest) ¶46-103, Sheppard and Neaves JJ questioned the correctness of this view and suggested that s 51A is an evidentiary provision not directed at what a party must plead. They said that s 51A is designed to facilitate proof but is not part of the law which provides for the cause of action for which s 52, now ACL s 18, provides. In Bowler v Hilda Pty Ltd (1998) 80 FCR 191; 153 ALR 95; (1998) ATPR ¶41-625 at 40,857; BC9800669 it was assumed that s 51A is an evidentiary rather than a substantive provision. Alternatively, the applicant can plead the representation and say that it was misleading by virtue of s 4. See: Western Australia v Bond Corp Holdings Ltd (1990) 99 ALR 125; (1991) ASC 56-031; (1991) ATPR 41-081;

BC9003745 per French J; Turner v Kinian Pty Ltd (FCA, French J, WAG 78/92, 19 August 1992, unreported; BC9203688); Hunt Contracting Co Pty Ltd v Roebuck Resources NL (1992) 110 ALR 183; (1992) ATPR ¶41-193 at 40,618; Whitemark Pty Ltd v Cann Australia Pty Ltd (FCA, French J, WAG 211/92, 31 March 1993, unreported; BC9304710); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) 42 IPR 1; (1998) ATPR 41-633; BC9801863. The applicant must identify the representation to which s 4 applies. It is not sufficient to make an ambit claim in relation to any representation which might turn out to be a representation as to a future matter. On identifying the representation in the context of s 51A, see: Hunt Contracting Co Pty Ltd v Roebuck Resources NL, above; Aussie Home Security Pty Ltd v Sales Systems Australia Pty Ltd [1999] FCA 1458; BC9906915. The position was altered by the amendments introduced when this section was incorporated as part of the Australian Consumer Law. See [14,520.5]. [14,520.60] Financial services Financial services are regulated by the Australian Securities and Investments Commission. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001, see the comparative tables at [10,001]. ________________________

[14,525] When donations are treated as supplies or acquisitions 5 (1) For the purposes of this Schedule, other than Parts 3-3, 3-4, 4-3 and 4-4: (a) a donation of goods or services is not treated as a supply of the goods or services unless the donation is for promotional purposes; and (b) receipt of a donation of goods or services is not treated as an acquisition of the goods or services unless the donation is for promotional purposes. (2) For the purposes of Parts 3-3, 3-4, 4-3 and 4-4: (a) any donation of goods or services is treated as a supply of the goods or services; and

(b)

receipt of any donation of goods or services is treated as an acquisition of the goods or services. SECTION 5 GENERALLY

[14,525.5] Overview This provision was inserted as part of the Australian Consumer Law. See [14,500.5]. ________________________ [page 1320]

[14,530]

Related bodies corporate

6 (1) A body corporate is taken to be related to another body corporate if the bodies corporate would, under section 4A(5) of the Competition and Consumer Act, be deemed to be related to each other. (2) In proceedings under this Schedule, it is presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other. SECTION 6 GENERALLY [14,530.5] Overview This provision was inserted as part of the Australian Consumer Law. See [14,500.5]. See also s 4A(5) of the Competition and Consumer Act 2010. For a full list of comparative provisions see [10,001]. ________________________

[14,535] 7

Meaning of manufacturer

(1) A manufacturer includes the following: (a) a person who grows, extracts, produces, processes or assembles goods; (b) a person who holds himself or herself out to the public as the manufacturer of goods;

(c) a person who causes or permits the name of the person, a name by which the person carries on business or a brand or mark of the person to be applied to goods supplied by the person; (d) a person (the first person) who causes or permits another person, in connection with: (i) the supply or possible supply of goods by that other person; or (ii) the promotion by that other person by any means of the supply or use of goods; to hold out the first person to the public as the manufacturer of the goods; (e) a person who imports goods into Australia if: (i) the person is not the manufacturer of the goods; and (ii) at the time of the importation, the manufacturer of the goods does not have a place of business in Australia. (2) For the purposes of subsection (1)(c): (a) a name, brand or mark is taken to be applied to goods if: (i) it is woven in, impressed on, worked into or annexed or affixed to the goods; or (ii) it is applied to a covering, label, reel or thing in or with which the goods are supplied; and (b) if the name of a person, a name by which a person carries on business or a brand or mark of a person is applied to goods, it is presumed, unless the contrary is established, that the person caused or permitted the name, brand or mark to be applied to the goods. (3) If goods are imported into Australia on behalf of a person, the person is taken, for the purposes of paragraph (1)(e), to have imported the goods into Australia. [page 1321] SECTION 7 GENERALLY [14,535.5] Overview This provision was inserted as part of the Australian Consumer Law. See [14,500.5]. It replaces, in part, TPA s 74A.

For a full list of comparative provisions see [10,001]. [14,535.15] Manufacturer Section 7(1) lists the circumstances in which a person will be regarded as a manufacturer. The provision does not prevent the actual manufacturer being a party to proceedings commenced against a person who is a deemed manufacturer, see: White v Eurocycle Pty Ltd (1994) ATPR ¶41-330; BC9400769 per Boehm AJ; Leeks v FXC Corp (2002) 189 ALR 288; (2002) ATPR ¶41-859; [2002] FCA 72; BC200200176 at [14] per Finn J. A person will be regarded a manufacturer despite it incorporating a clear statement to the effect that it is not the manufacturer of the product: Australian Competition & Consumer Commission v Glendale Chemical Products Pty Ltd (1998) 40 IPR 619 at 627; (1998) ATPR ¶41-632; [1998] FCA 180; BC9800559; (appeal) Glendale Chemical Products Pty Ltd v Australian Competition and Consumer Commission (1998) 90 FCR 40; (1998) ASAL 55-021; (1999) ATPR ¶41-672; BC9806620. For a consideration of this definition under the Manufacturers Warranties Act 1974 (SA) see Electricity Trust of South Australia v Krone (Aust) Technique Pty Ltd (1994) 51 FCR 540; 123 ALR 202; (1994) ATPR ¶41337; BC9405851. [14,535.20] The “manufacture” of goods The expression was formerly defined in s 74A to include goods grown, extracted, produced, processed and assembled. The definition applied to the growing and harvesting of oysters: Ryan v Great Lakes Council (1999) 102 LGERA 123; (1999) ATPR ¶46-191 at 52,339; [1999] FCA 177; BC9900565; (appeal) Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307; 109 LGERA 1; 177 ALR 18; (2000) ATPR (Digest) ¶46-207. [14,535.25] Deemed manufacturer Section 7(1)(e) defines an importer of goods to be the manufacturer in the circumstances outlined. However it does not limit an action to the importer alone. An actual foreign manufacturer may be a party to the proceedings: White v Eurocycle Pty Ltd (1994) ATPR ¶41-330; BC9400769; Leeks v FXC Corp (2002) 189 ALR 288; (2002) ATPR ¶41-859; [2002] FCA 72; BC200200176 at [13] per Finn J. ________________________

[14,540]

Goods affixed to land or premises

8 For the purposes of this Schedule, goods are taken to be supplied to a consumer even if they are affixed to land or premises at the time of the supply. SECTION 8 GENERALLY [14,540.5] Overview This provision was inserted as part of the Australian Consumer Law. See [14,500.5]. It replaces TPA s 74A(8). For a full list of comparative provisions see [10,001]. ________________________

[14,545] goods

Meaning of safety defect in relation to

9 (1) For the purposes of this Schedule, goods have a safety defect if their safety is not such as persons generally are entitled to expect. (2) In determining the extent of the safety of goods, regard is to be given to all relevant circumstances, including: (a) the manner in which, and the purposes for which, they have been marketed; and (b) their packaging; and [page 1322] (c) the use of any mark in relation to them; and (d) any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and (e) what might reasonably be expected to be done with or in relation to them; and (f) the time when they were supplied by their manufacturer. (3) An inference that goods have a safety defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer

goods of the same kind were supplied. (4) An inference that goods have a safety defect is not to be made only because: (a) there was compliance with a Commonwealth mandatory standard for them; and (b) that standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by their manufacturer. SECTION 9 GENERALLY [14,545.5] Overview This provision was inserted as part of the Australian Consumer Law. See [14,500.5]. It replaces TPA s 75AC. For a full list of comparative provisions see [10,001]. The provision applies to actions against manufacturers for goods with safety defects under Pt 3-5 of the Australian Consumer Law. [14,545.10] Goods with a safety defect Goods have a safety defect if their safety is not such as persons are generally entitled to expect. The standard to be applied is an objective one based upon what the public at large, rather than any particular individual, is entitled to expect: Australian Competition & Consumer Commission v Glendale Chemical Products Pty Ltd (1998) 40 IPR 619; (1998) ATPR ¶41-632; [1998] FCA 180; BC9800559; (appeal) Glendale Chemical Products Pty Ltd v Australian Competition and Consumer Commission (1998) 90 FCR 40; (1998) ASAL 55-021; (1999) ATPR ¶41-672; BC9806620; Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd (2004) ASAL 55-130; (2004) ATPR ¶42-014; [2004] FCA 853; BC200404164 at [186] per Kiefel J; Middleton v Erwin (2009) 52 MVR 218; [2009] NSWSC 108; BC200901191 at [82] per Harrison J; See Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd (No 3) [2009] FCA 5; BC200900026 per Jessup J; Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (2010) 184 FCR 1; 266 ALR 1; [2010] FCA 180; BC201001051 at [913] per Jessup J; Merck Sharpe & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; BC201107861 at [191] per Keane CJ, Bennett and Gordon JJ. Section 9(2) makes it clear that the section applies even if there is no inherent defect in the goods. For discussion of the application of the former TPA s 75AC see: Australian Competition & Consumer Commission v

Glendale Chemical Products Pty Ltd, above; (appeal) Glendale Chemical Products Pty Ltd v Australian Competition and Consumer Commission, above. In Ryan v Great Lakes Council (1999) 102 LGERA 123; (1999) ATPR ¶46-191; [1999] FCA 177; BC9900565; (appeal) Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307; 109 LGERA 1; 177 ALR 18; (2000) ATPR (Digest) ¶46-207, the court found that contaminated oysters were defective under s 75AC(1). One reading of s 9 is that a defect is a situation rather than a particular aspect of the composition of the goods in question: it is a situation the existence of which must be determined as a matter of judgment only after consideration of all relevant circumstances, see: Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (2010) 184 FCR 1; 266 ALR 1; [2010] FCA 180; BC201001051, at [928] per Jessup J; Merck Sharpe & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; BC201107861 per Keane CJ, Bennett and Gordon JJ. [page 1323] The fact that a risk of complication attends the use of goods would not of itself render them defective: Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd (2004) ASAL 55-130; (2004) ATPR ¶42-014; [2004] FCA 853; BC200404164 at [197] per Kiefel J. Section 9(2) lists a number of factors which can be taken into account in determining the safety of goods. There is no requirement to bring evidence addressing each of these categories. It is for the applicant to determine what evidence is considered necessary to discharge the onus of proof under TPA s 75AD (now ACL s 138): Morris v Alcon Laboratories (Aust) Pty Ltd (2003) ASAL 55-104; (2003) ATPR ¶41-923; [2003] FCA 151; BC200300685 at [20] per RD Nicholson J; Mayes v Australia Cedar Pty Ltd (2006) ASAL 55159; (2006) ATPR ¶42-119; [2006] NSWSC 597; BC200604479 per Grove J. Application In Thomas v Southcorp Australia Pty Ltd [2004] VSC 34; BC200400317 Balmford J found that a malfunctioning heater that caused a house fire was defective. In Roots v Trussmaster Pty Ltd [2003] QSC 348; BC200306087 at [16]

White J found that a building frame was defective. In Skerbic v McCormack [2007] ACTSC 93; BC200710117 Harper M found that a garage roller door was defective due to inadequate instructions provided by the manufacturer regarding its installation; (appeal) Gliderol International Pty Ltd v Skerbic (2009) 170 ACTR 1; [2009] ACTCA 16; BC200909580 at [64] per Refshauge, Penfold and Cowdroy JJ. In Saint-Gobain Abrasives Pty Ltd v McPherson [2009] NSWCA 214; BC200906525, Basten JA, Campbell JA and Simpson J found that an abrasive disc which disintegrated was defective. In Drew v Makita (Aust) Pty Ltd [2008] QDC 223 Tutt DCJ found that the defendant’s circular saw was defective because the design of the saw prevented its protective guard from retracting in certain circumstances; an appeal was heard in Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 066; BC200901843 per Holmes and Muir JJA, Daubney J. In Kay v Murray Irrigation Ltd [2009] NSWSC 1411; BC200911482 Fullerton J found that a concrete footboard on a farming property was defective. In Merck Sharpe & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; BC201107861 per Keane CJ, Bennett and Gordon JJ, the court considered whether the prescription drug ‘Vioxx’ caused personal injuries. [14,545.15] The manner in which, and the purposes for which the goods have been marketed There may be different expectations for a product marketed for general consumer use as opposed to a more specific use. It may also have implications for the extent of any instructions or warnings which must accompany the goods. [14,545.20] Packaging of the goods Different types of packaging may be warranted depending on the use to which the goods are put. For example, certain products may need childproof packaging. [14,545.25] The use of any mark in relation to the goods The use of an inappropriate mark may not only render the goods defective but may also give rise to claims for misleading and deceptive conduct under s 18. [14,545.30] Any instructions or warnings Particular warnings or instructions may be necessary where the goods can be put to more than one

use or may, if not used in accordance with directions, give rise to injury or damage. Persons generally are entitled to be warned of a danger or lack of safety in respect of a use to which goods might reasonably be expected to be put: Australian Competition & Consumer Commission v Glendale Chemical Products Pty Ltd (1998) 40 IPR 619; (1998) ATPR ¶41-632; [1998] FCA 180; BC9800559; (appeal) Glendale Chemical Products Pty Ltd v Australian Competition and Consumer Commission (1998) 90 FCR 40; (1998) ASAL 55-021; (1999) ATPR ¶41-672; BC9806620; see Forbes v Selleys Pty Ltd [2002] NSWSC 547; BC200203689 at [9] per [page 1324] Cripps AJ; Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd (2004) ASAL 55130; (2004) ATPR ¶42-014; [2004] FCA 853; BC200404164 at [199]. The reference to “instructions” was most likely intended as a reference to instructions provided to consumers. In Skerbic v McCormack [2007] ACTSC 93; BC200710117 at [41] Harper M suggested that the provision would apply to inadequate instructions provided by the manufacturer of a garage door. In Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (2010) 184 FCR 1; 266 ALR 1; [2010] FCA 180; BC201001051 at [919] Jessup J said that the Product Information relating to the respondent’s drug was an instruction or warning under s 75AC(2)(d), now s 9(2)(d); Merck Sharpe & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; BC201107861 per Keane CJ, Bennett and Gordon JJ. [14,545.35] What might reasonably be expected to be done with the goods A manufacturer may be obliged to specify the uses to which the goods can be put, particularly where the same goods may be used in both domestic and commercial applications. It may also be necessary to warn purchasers of the possibility of misuse. [14,545.40] The time when they were supplied by the manufacturer This recognises that goods may deteriorate over time and that more suitable goods may have been developed since the goods were first put on the market. This is also recognised in s 9(3) which prevents an inference from being

drawn that the goods are defective merely because of the fact that after they were supplied by the manufacturer safer goods of the same kind were supplied. See Saint-Gobain Abrasives Pty Ltd v McPherson [2009] NSWCA 214; BC200906525 per Basten JA, Campbell JA and Simpson J. ________________________

[14,550]

Asserting a right to payment

10 (1) A person is taken to assert a right to payment from another person if the person: (a) makes a demand for the payment or asserts a present or prospective right to the payment; or (b) threatens to bring any legal proceedings with a view to obtaining the payment; or (c) places or causes to be placed the name of the other person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining the payment; or (d) invokes or causes to be invoked any other collection procedure, or threatens to do so, with a view to obtaining the payment; or (e) sends any invoice or other document that: (i) states the amount of the payment; or (ii) sets out the price of unsolicited goods or unsolicited services; or (iii) sets out the charge for placing, in a publication, an entry or advertisement; and does not contain a statement, to the effect that the document is not an assertion of a right to a payment, that complies with any requirements prescribed by the regulations. (2) For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a person is taken to have been sent by that person unless the contrary is established. [page 1325]

SECTION 10 GENERALLY [14,550.5] Overview This provision was inserted as part of the Australian Consumer Law. See [14,500.5]. It replaces TPA s 64. For a full list of comparative provisions see [10,001]. ________________________

[14,555] supply

References to acquisition, supply and re-

In this Schedule: (a) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods pursuant to a supply of the goods; and (b) a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services; and (c) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both; and (d) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; and (e) a reference to the re-supply of goods acquired from a person includes a reference to: (i) a supply of the goods to another person in an altered form or condition; and (ii) a supply to another person of goods in which the firstmentioned goods have been incorporated; and (f) a reference to the re-supply of services (the original services) acquired from a person (the original supplier) includes a reference to: (i) a supply of the original services to another person in an altered form or condition; and (ii) a supply to another person of other services that are substantially similar to the original services, and could not

11

have been supplied if the original services had not been acquired by the person who acquired them from the original supplier. SECTION 11 GENERALLY [14,555.5] This provision was inserted as part of the Australian Consumer Law. See [14,500.5]. See also CCA s 4C. For a full list of comparative provisions see [10,001]. ________________________

[14,560] Application of Schedule in relation to leases and licences of land and buildings In this Schedule: (a) a reference to a contract includes a reference to a lease of, or a licence in respect of, land or a building or part of a building (despite the express references in this Schedule to such leases or licences); and (b) a reference to making or entering into a contract, in relation to such a lease or licence, is a reference to granting or taking the lease or licence; and

12

[page 1326] (c) a reference to a party to a contract, in relation to such a lease or licence, includes a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence. SECTION 12 GENERALLY [14,560.5] This provision was inserted as part of the Australian Consumer Law. See [14,500.5]. See also CCA s 4H. For a full list of comparative provisions see [10,001]. ________________________

[14,565]

Loss or damage to include injury

In this Schedule: (a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and (b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.

13

[14,565.5] Overview This provision was inserted as part of the Australian Consumer Law. See [14,500.5]. See also CCA s 4K. For a full list of comparative provisions see [10,001]. ________________________

[14,570]

Meaning of continuing credit contract

(1) If: (a) a person (the creditor), in the course of a business carried on by the creditor, agrees with a consumer to provide credit to the consumer in relation to: (i) payment for goods or services; or (ii) cash supplied by the creditor to the consumer from time to time; or (iii) payment by the creditor to another person in relation to goods or services, or cash, supplied by that other person to the consumer from time to time; and (b) the creditor: (i) has an agreement, arrangement or understanding (the credit agreement) with the consumer in relation to the provision of the credit; or (ii) is engaged in a course of dealing (the credit dealing) with the consumer in relation to the provision of the credit; and (c) the amounts owing to the creditor from time to time under the credit agreement or credit dealing are, or are to be, calculated on the basis that: (i) all amounts owing; and (ii) all payments made;

14

by the consumer under, or in respect of, the credit agreement or credit dealing are entered in one or more accounts kept for the purpose of that agreement or dealing; the credit agreement or credit dealing is taken, for the purposes of this Schedule, to be a continuing credit contract. (2) If subsection (1)(a)(iii) applies, the creditor is taken, for the purposes of this section, to have provided credit to the consumer in relation to any goods or services, or cash, supplied by another person to the consumer to the extent of any payments made, or to be made, by the creditor to that other person. [page 1327] [14,570.5] Overview This provision was inserted as part of the Australian Consumer Law. See [14,500.5]. It replaces TPA s 73A. For a full list of comparative provisions see [10,001]. ________________________

[14,575]

Contraventions of this Schedule

15 Conduct is not taken, for the purposes of this Schedule, to contravene a provision of this Schedule merely because of the application of: (a) section 23(1); or (b) a provision of Division 1 of Part 3-2 (other than section 66(2)); or (c) a provision of Part 3-5.

[14,580]

Severability

16 (1) If the making of a contract after the commencement of this section contravenes this Schedule because the contract includes a particular provision, nothing in this Schedule affects the validity or enforceability of the contract otherwise than in relation to that provision, so far as that provision is severable. (2) This section has effect subject to any order made under Division 4 of

Part 5-2. [14,580.5] Overview This provision was inserted as part of the Australian Consumer Law. See [14,500.5]. See also CCA s 4L. For a full list of comparative provisions see [10,001]. ________________________

[14,585]

References to provisions in this Schedule

17 In this Schedule, a reference to a provision is a reference to a provision of this Schedule, unless the contrary intention appears. CHAPTER 2 — GENERAL PROTECTIONS PART 2-1 — MISLEADING OR DECEPTIVE CONDUCT

[14,590]

Misleading or deceptive conduct

18 (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1). Note: For rules relating to representations as to the country of origin of goods, see Part 5-3. SECTION 18 GENERALLY [14,590.5] Overview This provision was inserted as part of the Australian Consumer Law. For a full discussion of Schedule 2: ACL see [14,500.5]. ACL s 18, replaces TPA s 52. For a full list of comparative provisions see [10,001]. The provision prohibits misleading and deceptive conduct in broadly the same terms as s 52 and its equivalents in State and Territory Fair Trading Acts. Cases decided under the former s 52 will be relevant to s 18. Formerly, s 52 referred to the conduct of a corporation, where ACL s 18 refers to the conduct of a “person”. Commonwealth, State and Territory agencies have published “General

Law: A Guide for Business and Legal Practitioners 2010”, which provides guidance on this provision. [page 1328] [14,590.10] Operation of the provision Section 52 [ACL s 18] is a comprehensive provision which does not purport to create liability but rather establishes a norm of conduct — see in the context of TPA s 52: Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470; 114 ALR 355; (1993) ATPR ¶41-269; BC9304807; Tubby Trout Pty Ltd v Sailbay Pty Ltd (1994) ATPR (Digest) ¶46-120 at 53,561; BC9406542; Jenkins v NZI Securities Australia Ltd (1994) 52 FCR 572; 124 ALR 605; (1994) ATPR ¶41-349; BC9400298; Chapman v Luminis Pty Ltd (No 4) (2001) 123 FCR 62; (2002) ATPR (Digest) ¶46-214; [2001] FCA 1106; BC200105040 at [162] per von Doussa J; Fico v O’Leary (2004) ATPR (Digest) ¶46-259; [2004] WASC 215; BC200406677 at [191] per EM Heenan J. See Shahid v Australasian College of Dermatologists (2007) 72 IPR 555; [2007] FCA 693; BC200703509 at [61] per Nicholson J. Effect should be given to the ordinary meaning of the words in the section without being qualified by common law courses of action, though it is accepted that established common law concepts may assist in assessing liability under s 18(1): Brown v Jam Factory Pty Ltd (1981) 35 ALR 79; 53 FLR 340; [1981] ANZ ConvR 156; (1981) ATPR ¶40-213 at 42,928; Jaldiver Pty Ltd v Nelumbo Pty Ltd (1993) ATPR ¶46-097. [14,590.15] The significance of the heading Section 52 [now ACL s 18] was included within the heading “Consumer protection”. In Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; 18 ALR 639; (1978) ATPR ¶40-067; BC7800029 Barwick CJ said that s 52 is concerned with conduct which is deceptive of members of the public in their capacity as consumers of goods or services. In that same case Stephen J said that the heading to s 52 did not restrict the effect of s 52. The approach of Stephen J was followed by Wilcox J in Lubidineuse v Bevanere Pty Ltd (1984) 3 FCR 1; 55 ALR 273; (1984) ASC 55-352; (1984) ATPR ¶40-487. Also in ER Squibb & Sons Pty Ltd v Tully Corp Pty Ltd (1986) 6 IPR 489; (1986) ASC 55-472; (1986)

ATPR ¶40-691 at 47,594; BC8601574 Gray J said that s 52 is not governed by the fact that Pt V of the Act appears under the heading “consumer protection”. It was therefore possible for one corporation to commence proceedings against another corporation in respect of misleading or deceptive conduct engaged in during private negotiations leading to a contract. In the High Court decision of Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; 92 ALR 193 at 196; 64 ALJR 293; (1990) ATPR ¶41-022 at 51,363 the majority of the High Court said: In these circumstances it is not permissible to give to the heading of Pt V the effect of confining the general words of s 52 to cases involving the protection of consumers alone … [t]hat being so, the general words of s 52 must be construed as applying even-handedly to corporations involved in a transaction or dealing with one another “in trade or commerce”.

Brennan J, however, stated that the section only prohibits conduct which misleads or deceives a person in its capacity as a consumer. The most recent authority of Handley v Snoid (1981) ATPR ¶40-219 indicates that the general heading of Pt V is not restricted to the protection of consumers only. This explains why most actions to date have been brought by traders rather than consumers: Handley v Snoid, above. See also Matheson Engineers Pty Ltd v El Raghy (1992) 37 FCR 6; (1992) ATPR ¶41-192 at 40,611; BC9203668. Under the ACL, the section appears under the heading “General Protection”. [14,590.20] Related legislation and common law actions Note: Cases in this paragraph decided under TPA s 52 are relevant to the interpretation of ACL s 18. Legislation dealing with designs, trademarks, copyright and patents did not operate to exclude or modify the duty imposed on a defendant under s 52 to refrain from engaging in conduct that is misleading or deceptive: Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1979) 27 ALR 387; (1979) ATPR ¶40-135 at 18,475; Microsoft Corp v PC Club Australia Pty Ltd (2005) 148 FCR 310; 67 IPR 262; [page 1329] [2005] FCA 1522; BC200509138 per Conti J. See Coca Cola Company v PepsiCo Inc (No 2) [2014] FCA 1287 per Besanko J; Electrolux Home

Products Pty Ltd v Delap Impex KFT (2015) 110 IPR 164; [2015] FCA 62; BC201500493 per Farrell J; see Accor Australia & New Zealand Hospitality Pty Limited v Liv Pty Limited (2015) 112 IPR 494; [2015] FCA 554; BC201505256 per Rangiah J. The interpretation of s 52 was held not to be affected by common law causes of action such as deceit and passing off: Brown v Jam Factory Pty Ltd (1981) 35 ALR 79; 53 FLR 340; [1981] ANZ ConvR 156; (1981) ATPR ¶40213. Section 52 did not distinguish between representations of fact and representations as to matters other than fact or necessarily adopt the common law authorities respecting fraudulent and innocent misrepresentations of fact: RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164; 112 ALR 511; (1993) ATPR 41-225; BC9304639; see Caltex Australia Petroleum Pty Ltd v Charben Haulage Pty Ltd [2005] FCAFC 271; BC200511078 at [257] per Tamberlin, Kiefel and Emmett JJ. However, the principles which apply to an action in passing off are useful in considering the application of s 52: Taco Bell Pty Ltd v Taco Co of Australia Inc (1981) 40 ALR 153; 60 FLR 60; (1982) ATPR ¶40-277 at 43,941; Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Assn of New South Wales (1998) 42 IPR 481; (1998) ATPR ¶41-645; BC9802841; Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd (2005) 225 ALR 57; 67 IPR 497; [2005] FCA 1521; BC200508952. It may be that the cause of action in s 52 is wider than that available in passing off so that any case that fails under s 52 must also fail in passing off: Osgaig Pty Ltd v Ajisen (Melbourne) Pty Ltd (2004) 213 ALR 153; 63 IPR 156; [2004] FCA 1394; BC200407145 at [80] per Weinberg J; see Colorado Group Ltd v Strandbags Group Pty Ltd (2006) 67 IPR 628; (2006) AIPC 92182; [2006] FCA 160; BC200600791 at [55] per Finkelstein J; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136; 69 IPR 23; [2006] FCA 446; BC200602559 at [117] per Heerey J; see Colorado Group Ltd v Strandbags Group Pty Ltd (2007) 164 FCR 506; 243 ALR 127; [2007] FCAFC 184; BC200710465 per Kenny, Gyles and Allsop JJ; see Woodtree Pty Ltd v Zheng (2007) 164 FCR 369; 74 IPR 484; [2007] FCA 1922; BC200710705 per Heerey J; see Hansen Beverage Company v Bickfords (Aust) Pty Ltd (2008) 75 IPR 505; (2008) AIPC ¶92292; [2008] FCA 406; BC200802057 at [78] per Middleton J; Optical 88 Limited v Optical 88 Pty Limited (No 2) [2010] FCA 1380; BC201009532 at

[338] per Yates J. The common law principles are also useful for determining the proper measure of damages (previously under TPA s 82, now specifically provided for contravention of the ACL under s 236): Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; 63 ALR 600; (1986) ATPR ¶40666; BC8601405. Common law principles should be used as a guide, but as Deane and Fitzgerald JJ said in Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; (1982) ASC 55-207; (1982) ATPR ¶40-303 at 43,748; (1982) 2 TPR 48, the indiscriminate importation into s 52 of principles involving passing off and the associated area of trade mark law is likely to be productive of error and to give rise to arguments founded on false assumptions. In Webb Distributors (Aust) Pty Ltd v Victoria (1993) 117 ALR 321; (1993) ATPR (Digest) ¶46-113; BC9303613, the majority of the High Court held that the Trade Practices Act was not intended to eliminate the detailed provisions applying to the treatment of creditors on the winding up of a company. In Pritchard v Racecage Pty Ltd (1996) 64 FCR 96; 135 ALR 717; (1996) ATPR ¶41-477; BC9600431, the court had to consider the impact of Northern Territory legislation abolishing certain common law rights in respect of death or injury to a person. O’Loughlin J said that the provisions in the Trade Practices Act (ss 52 (now ACL s 18), 51AA (now ACL s 20), 82 (see now ACL s 236) and 87 (see ACL 237–238)) were not intended to extend, at large, to claims for personal injuries or to claims arising as a consequence of death where the injuries or death occurred as a result of a motor vehicle accident and where there are no other circumstances in the nature of trade or commerce that would attract the operation of the Act. [page 1330] [14,590.25] Loss suffered by another In an obiter comment in Pritchard v Racecage Pty Ltd (1996) 64 FCR 96; 135 ALR 717; (1996) ATPR ¶41-477; BC9600431 O’Loughlin J said that legislative protection in terms of Lord Campbell’s Act does not extend to Pts IVA and V of the Trade Practices Act. See now ACL Pts 2-2 and Pt 3-1.

[14,590.30] Financial services Previously, s 995(2) of the Corporations Act 2001 prohibited conduct that is misleading or deceptive in relation to any dealings in securities including the allotment or issue of securities, the issue of any prospectuses and the making of takeover offers or takeover announcements: see Australian Securities Commission v Nomura International Plc (1998) 89 FCR 301; 160 ALR 246; 29 ACSR 473; BC9806633; Edensor Nominees Pty Ltd v Australian Securities and Investments Commission (2002) 120 FCR 78; 190 ALR 516; [2002] FCA 307; BC200200976 at [40] per Hill, Sundberg and Mansfield JJ; Fraser v NRMA Holdings Ltd (1995) 55 FCR 452; 127 ALR 543; 15 ACSR 590; (1995) ATPR ¶41-374 at 40,141; A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd (2006) 14 ANZ Ins Cas 61-709; [2006] FCA 520; BC200603233; Ashmere Cove Pty Ltd v Beekink [2009] FCA 564; BC200904879. Section 12DA of the Australian Securities and Investments Commission Act 2001 now prohibits conduct in relation to financial services that is misleading or deceptive or likely to mislead or deceive: see Cassidy v NRMA Health Pty Ltd (2002) ATPR ¶41-891; [2002] FCA 1228; BC200205849 per Jacobson J; Cassidy v Medical Benefits Fund of Australia Ltd (No 2) (2003) 12 ANZ Ins Cas 61-549; (2002) ATPR ¶41-892; [2002] FCA 1097; BC200205219 per Hill J; Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1; 205 ALR 402; [2003] FCAFC 289; BC200307781 at [27] per Stone J; Australian Securities and Investments Commission v Tower Australia Ltd [2003] FCA 660; BC200302555 per Sackville J; Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) 134 FCR 585; (2004) ATPR ¶41980; [2004] FCAFC 34; BC200400513 per Moore, Mansfield and Stone JJ; Australian Competition & Consumer Commission v Commonwealth Bank of Australia (2004) ASAL 55-117; (2004) ATPR ¶41-975; [2003] FCA 1397; BC200307559 per Conti J; National Exchange Pty Ltd v Australian Securities & Investments Commission (2004) 49 ACSR 369; 61 IPR 420; [2004] FCAFC 90; BC200402007 per Dowsett, Jacobson, and Bennett JJ; Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199; BC200503983 per Atkinson J, Williams and Keane JJA; Australian Securities & Investments Commission v Cash King Pty Ltd [2005] FCA 1429; BC200507700 per Stone J; Australian Securities and Investments Commission (ASIC) v Preston [2005] FCA 1805; BC200510771 per Finkelstein J; Maritime Workers of Australia Credit Union Ltd v MSB Credit

Union Ltd (2005) ATPR ¶42-080; [2005] FCA 1211; BC200506442 per Tamberlin J; Motor Trade Finances Prestige Leasing Pty Ltd v Elderslie Finance Group Corp Ltd [2006] NSWSC 1348; BC200610351 per White J; see Green v AMP Financial Planning Pty Ltd [2008] NSWSC 1164; BC200810781 per Hammerschlag J; Australian Securities and Investments Commission (ASIC) v Cycclone Magnetic Engines Inc (2009) 224 FLR 50; 71 ACSR 1; [2009] QSC 58; BC200901865 per Martin J; see Avoca Consultants Pty Ltd v Millennium3 Financial Services Pty Ltd (2009) 179 FCR 46; 73 ACSR 307; [2009] FCA 883; BC200907389 per Barker J; see Astram Financial Services Pty Limited v Bank of Queensland Limited [2010] FCA 1010; BC201006750 at [303] per Buchanan J. See Prosperity Group International Pty Ltd v Queensland Communication Co Pty Ltd (No 3) [2011] FCA 1122; BC201107495 per Logan J; Clifford v Vegas Enterprises Pty Ltd [2011] FCAFC 135; BC201108379 per North, Besanko and Jessup JJ; Technology Leasing Ltd v Lennmar Pty Ltd [2012] FCA 709; BC201204911 per Cowdroy J; Roumanus v Orchard Holdings (NSW) Pty Ltd [2012] FCA 775; BC201205287 per Foster J; Forrest v Australian Securities and Investments Commission (2012) 291 ALR 399; [2012] HCA 39; BC201207489 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; Lee v Westpac Banking Corp [2012] NSWSC 899; BC201206333 per Harrison AsJ; Salvatore Coco v Westpac Banking Corp [2012] NSWSC 565; BC201203605 per Hammerschlag J; Wingecarribee Shire Council v Lehman Brothers Australia Ltd [2012] FCA 1028; BC201207287 per Rares J; Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200; BC201208415 per Jagot J; Australian Securities and [page 1331] Investments Commission v Accounts Control Management Services Pty Ltd [2012] FCA 1164; BC201208184 per Perram J; Enterprise Finance Solutions Pty Ltd v Austec Pty Ltd [2013] FCA 491; BC201302833 per Nicholas J; Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd [2014] FCAFC 70; BC201404623 per Allsop CJ, White and Wigney JJ; Australian Securities and Investments Commission v GE Capital Finance Australia, in the matter of GE Capital Finance Australia [2014] FCA 701 per Jacobson J;

Addenbrooke Pty Ltd v Duncan (No 6) (2015) 107 ACSR 600; [2015] FCA 793; BC201507356 per Foster J; Archer Capital 4A Ltd as Trustee for Archer Capital Trust 4A v Sage Group PLC (2015) 108 ACSR 218; [2015] FCA 960; BC201508497 per Farrell J; Australian Securities and Investments Commission (ASIC) v Superannuation Warehouse Australia Pty Ltd [2015] FCA 1167; BC201510541 per Beach J; Ambergate Ltd v CMA Corp Ltd (Admin Apptd) [2016] FCA 94; BC201600725 per Buchanan J. In Cleary v Australian Co-operative Foods Ltd (No 2) (1999) 32 ACSR 701; [1999] NSWSC 991; BC9906556, shares in a New South Wales cooperative were held to be governed by the Australian Securities and Investments Commission Act and not by s 52 [ACL s 18]. In Re NRMA Ltd (2000) 34 ACSR 261; 18 ACLC 533; [2000] NSWSC 408; BC200002624 Santow J said that the information memorandum issued as part of the reorganisation of the company should not be treated as separate from any dealing in securities. The absence of an equivalent provision to s 6(3) of the Competition and Consumer Act, does not suggest s 12DA intended not to apply to the conduct involving the internet or to any other conduct involving the use of postal, telegraphic or telephonic services: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200; BC201208415 at [2901] per Jagot J. Arguably s 52 [ACL s 18] did not apply to the allotment of shares: Singh v Singh [2004] NSWSC 850; BC200406090 at [55] per McLaughlin M. For the equivalent provisions in the Australian Securities and Investments Commission Act 2001 see the comparative table at [10,001]. [14,590.33] Human Rights and Responsibilities In Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc (No 2) [2011] VSC 153; BC201102208 Pagone J considered the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to the then equivalent provision in the Victorian Fair Trading Act, s 9. [14,590.34] Constitutional guarantee of freedom of communication A number of decisions have established an implied immunity or freedom of communication in the constitution: Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; 34 ALD 1; 124 ALR 1; BC9404647; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96; 71

ALJR 818; BC9702860. The constitutional guarantee does not confer freedom to distribute in trade or commerce, material containing misrepresentations: Plastec Australia Pty Ltd v Plumbing Solutions Pty Ltd [2012] FCA 510; BC201203217 at [400] per Greenwood J. [14,590.35] Country of origin representations A corporation does not contravene s 18 only because it makes a country of origin representation that complies with Pt 5-3: s 255. [14,590.36] Representations in relation to a future matter Misleading representations in relation to future matters are addressed in s 4 of the ACL. For a s 4 overview see [14,520.5]. For further information see [14,520.15] and [14,520.35]. “CORPORATION” [14,590.45] Overview Formerly, s 52 referred to a “corporation”, which was defined in s 4. Section 18 now refers to a “person”. [page 1332] “IN TRADE OR COMMERCE” [14,590.50] Definition of “trade or commerce” The expression “trade or commerce” is defined in s 4(1) of the Act to mean trade or commerce within Australia or between Australia and places outside Australia. The words “trade” and “commerce” are not defined in the Act. For a discussion of “trade or commerce” see [10,025.95]. [14,590.55] Interpreting the expression “in trade or commerce” The expression “in trade or commerce” has been discussed in many cases in the context of s 52 of the TPA. These cases are also relevant to the interpretation of ACL s 18. In Re Ku-ring-gai Co-op Building Society (No 12) Ltd (1978) 22 ALR 621; 36 FLR 134; (1978) ATPR ¶40-094 at 17,926, Bowen CJ said that the word

“trade” can be given its accepted English meaning, that is, to traffic by way of sale or exchange or commercial dealing. In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; 92 ALR 193; 64 ALJR 293; (1990) ATPR ¶41-022, the majority of the court indicated that the construction of the words “with respect to . . . trade and commerce” in s 51(i) of the Constitution was not of assistance on the question of the effect of the word “in” as part of the requirement that the conduct proscribed by s 52(1) of the Act take place “in trade or commerce”. The words “with respect to” in s 52(i) of the Constitution have a wider operation than the phrase “in trade or commerce” in s 52 of the Act. In that decision (ALR at 197; ATPR at 51,363–4) the majority of the court favoured the following interpretation of the expression “in trade or commerce”: Alternatively, the reference to conduct “in trade or commerce” in s 52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. So construed, to borrow and adapt words used by Dixon J in a different context in Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 381, the words “in trade or commerce” referred to “the central conception” of trade or commerce and not to the “immense field of activities” in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business.

There has been general support for this approach: Plimer v Roberts (1997) 80 FCR 303; 150 ALR 235; (1998) ATPR ¶41-602 at 40,521; BC9706557 and at first instance Fasold v Roberts (1997) 70 FCR 489; 145 ALR 548; (1997) ATPR ¶41-561 at 43,777–81; BC9702172; Sykes v Reserve Bank of Australia (1997) 151 ALR 579; (1998) ATPR ¶41-608; BC9707161; Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170; (1998) ATPR (Digest) ¶46-186; BC9802262; Martin v Tasmania Development and Resources (1999) 163 ALR 79; (1999) ATPR (Digest) ¶46-193; [1999] FCA 593; BC9902224; Firewatch Australia Pty Ltd v Country Fire Authority (1999) 93 FCR 520; (1999) ATPR (Digest) 46-198; [1999] FCA 761; BC9903234; Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169; (1999) ATPR ¶41-730; [1999] FCA 1625; BC9907691; Cook v Pasminco Ltd (2000) 99 FCR 548; (2000) ATPR ¶41-167 at 41,034; [2000] FCA 677; BC200002707; Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2001) ATPR (Digest) ¶46-212; [2001] FCA 1056; BC200104487 at [152] per Lindgren J; (appeal) Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; (2002) ATPR ¶41-879; [2002] FCAFC 197; BC200203308 at [78] per Heerey J (Black CJ agreeing); Gianni Versace SpA v Monte (2002)

119 FCR 349; (2002) ATPR (Digest) ¶46-218; [2002] FCA 190; BC200200707 at [102] per Tamberlin J; Hearn v O’Rourke (2002) 193 ALR 264; (2002) ATPR ¶41-893; [2002] FCA 1179; BC200205525 at [3], [12] per Kiefel J; (appeal) Hearn v O’Rourke (2003) 129 FCR 64; (2003) ATPR 41931; [2003] FCAFC 78; BC200302019; Village Building Co Ltd v Canberra International Airport Pty Ltd (2004) 139 FCR 330; 210 ALR 114; [2004] FCAFC 240; BC200405571 at [41] per French, Sackville and Conti JJ; Braverus Maritime Inc v Port Kembla Coal Terminal Ltd (2005) 148 FCR 68; (2006) ATPR (Digest) ¶46-267; [2005] FCAFC 256; BC200510599 at [148] per Tamberlin, Mansfield and Allsop JJ; Shahid v Australasian College of Dermatologists (2007) 72 IPR 555; [2007] FCA 693; BC200703509 at [50] per Nicholson J; [page 1333] (appeal) Shahid v Australasian College of Dermatologists (2008) 168 FCR 46; 248 ALR 267; [2008] FCAFC 72; BC200803280 at [139] per Jessup J (Branson and Stone JJ agreeing); Barker v Commonwealth Bank of Australia [2012] FCA 942; BC201206576 per Besanko J; Norcast S.AR.L v Bradken Ltd (No 2) [2013] FCA 235; BC201301413 at [341] per Gordon J; Nextra Australia Pty Ltd v Fletcher [2014] FCA 399 per Collier J; Murphy v Westpac Banking Corp [2014] FCA 1104; BC201408815 per Griffiths J; Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52; BC201504528 per Middleton, McKerracher and Davies JJ; Williams v Pisano [2015] NSWCA 177; BC201505727 at [37] per Bathurst CJ, McColl JA and Emmett JA. In Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272; 107 ALR 709; (1992) ASC (Digest) 56-167; (1992) ATPR ¶41-169, it was held that the giving of a speech by a minister at an international wool conference was a matter that was in relation to trade or commerce but not conduct which was actually “in” trade or commerce. Also in Chapman v Luminis Pty Ltd (No 4) (2001) 123 FCR 62; (2002) ATPR (Digest) ¶46-214; [2001] FCA 1106; BC200105040 at [178] von Doussa J said that a report by a professor on Aboriginal cultural issues that would be impacted by the construction of a bridge to Hindmarsh Island in South Australia was not conduct in trade or commerce.

In E v Australian Red Cross Society (1991) 27 FCR 310; 99 ALR 601; (1991) ATPR ¶41-085 at 52,354; BC9103001, Wilcox J said that it would not be appropriate to describe the gratuitous provision of public welfare services substantially at government expense as the conduct of a trade. See also Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405; (1992) 10 ACLC 1394; (1992) ATPR ¶41-184 at 40,507; BC9203659. The case concerned the sale of, among other things, a private residence. The court found, however, that the sale as pleaded was part of a series of transactions involving dealings in land arising out of one course of dealing which could be said to be in the ordinary course of a trade or business: Pricom Pty Ltd v Sgarioto (1994) ATPR ¶41-365; (1995) V ConvR 54-513; BC9401354. For a more detailed discussion of the meaning of “trade or commerce” see [10,025.95]. In Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; 111 ALR 61; (1993) ATPR ¶41-199; BC9203820, Hill J said that the placing of an advertisement in a national newspaper by the appellant was conduct in trade or commerce. In Hosmer Holdings Pty Ltd v CAJ Investments Pty Ltd (1995) 57 FCR 45 at 64; (1995) ATPR ¶41-407; BC9507785, Moore J said that the respondent’s acquisition of property comprising six shops that were let with a view to having an income-producing asset that would either be retained or which might be sold constituted conduct in trade or commerce. See also Prestia v Aknar (1996) 40 NSWLR 165; 132 FLR 180; (1996) ATPR (Digest) 46-157; BC9602363. In Orion Pet Products Pty Ltd v RSPCA (Vic) (2002) 120 FCR 191; (2002) ATPR (Digest) ¶46-223; [2002] FCA 860; BC200203803 at [191] Weinberg J said that representations made by the Royal Society for the Prevention of Cruelty to Animals relating to dog collars manufactured by the applicant were not made in trade or commerce. In Fasold v Roberts (1997) 70 FCR 489; 145 ALR 548; (1997) ATPR ¶41561 at 43,777–81; BC9702172 the second respondent was said to have engaged in conduct that was misleading or deceptive in giving lectures and publishing articles advancing the hypothesis that a boat-shaped formation near Mount Ararat in Eastern Turkey was the remains of Noah’s Ark. Sackville J found that the activities were not in trade or commerce. After reviewing various authorities he concluded that they support a number of propositions which shed light on Concrete Constructions (NSW) Pty Ltd v Nelson, above:

•

a person undertaking public presentations, such as exhibiting films or publishing advertisements, engages in conduct in trade or commerce if the presentations are designed to advance or protect the commercial interests of the exihibitor, or the publisher, or of trading entities represented by the exhibitor or publisher: Glorie v WA Chip & Pulp Co Pty Ltd (1981) 39 ALR 67; 55 FLR 310; 1 TPR 84; Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc, above, at [152] [page 1334]

per Lindgren J; Gianni Versace SpA v Monte (2002) 119 FCR 349; (2002) ATPR (Digest) ¶46-218; [2002] FCA 190; BC200200707 at [103] per Tamberlin J; • altruistic motives will not necessarily prevent the public presentation being in trade or commerce, depending on the other circumstances of the case: Glorie v WA Chip and Pulp Co Pty Ltd, above; • a person may make public statements designed to influence trading patterns, yet not make those statements in trade or commerce: Unilan Holdings Pty Ltd v Kerin, above; and • public statements by a person not engaged in trade or commerce himself or herself, may be made in trade or commerce if designed to encourage others to invest, or continue investments, in a particular trading corporation: Meadow Gem Pty Ltd v ANZ Executors & Trustee Co Ltd (1994) ATPR (Digest) ¶46-130; BC9401058. ‘ The fact that an activity is not directed at consumers as such does not result in it not having a “trading or commercial character” in terms of Concrete Constructions (NSW) Pty Ltd v Nelson, above: Nixon v Slater & Gordon (2000) 175 ALR 15; (2000) ATPR ¶41-765; [2000] FCA 531; BC200001995. In Sykes v Reserve Bank of Australia (1998) 88 FCR 511; 158 ALR 710; (1999) ATPR ¶41-699 at 42,904; BC9805901, Heerey J said that dealing in trade or commerce is not limited to that between parties in contractual relations. In NRMA Ltd v Yates (2000) 18 ACLC 45; (1999) ATPR ¶41-721; [1999] NSWSC 859; BC9905393, Santow J said that statements made by a

director as to alleged inefficient management of the company as part of his campaign for election to the Board were made in trade and commerce. However, the decision has been questioned: Yates v Whitlam (1999) 32 ACSR 595 at 600–1; (1999) ATPR ¶41-722 at 43,381 per Windeyer J. The fact that conduct is not that of a participant in the relevant trade or commerce may be highly relevant in determining whether it is in trade or commerce, though not conclusive of that question: Dataflow Computer Services Pty Ltd v Goodman, above. In that case, Hely J said that an email sent by a former employee claiming that the company was about to alter its distribution practices was not made in trade or commerce, but was rather that of a bystander commenting on the trade or commerce in which others were engaged. The principles discussed in Fasold v Roberts, above, were considered in some detail by Gyles J in Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449; (1999) ATPR ¶41-710 at 43,120–1; [1999] FCA 1019; BC9905793. Gyles J said that a public statement made by the applicant concerning likely noise from a possible subdivision of land was not made in trade or commerce (at ATPR 43,122). In the course of the judgment, Gyles J said (at ATPR 43,121) that in his opinion the better view was that Glorie v WA Chip and Pulp Co Pty Ltd, above, was inconsistent with Concrete Constructions (NSW) Pty Ltd v Nelson, above. Statements made by a person not himself or herself engaged in trade or commerce may answer the statutory expression if, for example, they are designed to encourage others to invest, or to continue investments, in a particular trading entity: Fasold v Roberts (1997) 70 FCR 489 at 531; 145 ALR 548; (1997) ATPR ¶41-561; BC9702172; Houghton v Arms (2006) 225 CLR 553; 231 ALR 534; [2006] HCA 59; BC200610333 at [34] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. If the conduct relates to services provided by a member of a profession, it will not automatically amount to conduct in trade or commerce by reason only that the services are provided for a fee or reward: LT King Pty Ltd v Besser (2002) 172 FLR 140; [2002] VSC 354; BC200205016 at [24] per Osborn J; Shahid v Australasian College of Dermatologists (2008) 168 FCR 46; 248 ALR 267; [2008] FCAFC 72; BC200803280 per Jessup J (Branson and Stone JJ agreeing). The essential character of core activities undertaken by the legal profession is not that of trade or commerce. Conversely, the essential character of some

activities undertaken by the legal profession is that of effecting or directly facilitating commercial transactions: LT King Pty Ltd v Besser, above, at [24] per Osborn J. See also [10,025.95]. [page 1335] “ENGAGE IN CONDUCT” [14,590.60] Conduct ACL s 2(2) defines the reference to “engaging in conduct”. It will include doing or refusing to do any act or giving effect to a provision of a contract, arrangement, understanding or covenant. It does not matter that a representation constituting “conduct” relates to a future event or that what is said does not amount to a warranty. Nor does it matter that “conduct” involves a continuing course of conduct or of repeated events or of conduct known to the public or a group of the public: Brown v Jam Factory Pty Ltd (1981) 35 ALR 79; 53 FLR 340; [1981] ANZ ConvR 156; (1981) ATPR ¶40-213. There is no need to limit the ordinary meaning of the word “conduct”. There is also no requirement that the conduct arise out of any special relationship between the parties, any contractual or other arrangement, the existence of any special duty on one party to the other or the fact that the conduct may involve statements, opinions or information given gratuitously: Menhaden Pty Ltd v Citibank NA (1984) 1 FCR 542; 55 ALR 709; (1984) ASC 55-341; (1984) ATPR 40-471. This explains the diverse and novel fact situations in which TPA s 52 has been used. It is also for this reason that conduct which constitutes a breach of s 18 may also give rise to a simultaneous common law cause of action, for example, in passing off, breach of contract or negligence. Representations about the existence or scope of contractual terms may constitute “conduct” under s 18 — on s 52 TPA see: Jobern Pty Ltd v BreakFree Resorts (Vic) Pty Ltd (2008) Aust Contract R ¶90-269; [2007] FCA 1066; BC200705750 at [196] per Gordon J. Although a number of actions under s 18 will involve a representation, s 18 merely requires that “conduct” as opposed to a “representation” be

misleading or deceptive. For a discussion of this distinction in the context of s 52, see Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470; 114 ALR 355; (1993) ATPR ¶41-269; BC9304807; Butcher v Lachlan Elder Realty Pty Ltd (2004) 212 ALR 357; 79 ALJR 308; [2004] HCA 60; BC200408200 at [103] per McHugh J; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364; BC200807885 at [97] per Collier J. “MISLEADING OR DECEPTIVE” [14,590.65] The expression “misleading or deceptive” The expression “misleading or deceptive” is not defined in the Act. In Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1979) 27 ALR 387; (1979) ATPR ¶40-135 Keely J adopted the dictionary meaning given by Franki J in Weitmann v Katies Ltd (1977) 29 FLR 336; 2 TPC 329; (1977) ATPR ¶40041. The most appropriate meaning for the word “deceive” is to cause to believe what is false, to mislead as to a matter of fact, to lead into error, to impose upon, delude or take in. The most appropriate definition for the word “mislead” is to lead astray in action or conduct, to lead into error or to cause to err: Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; (2001) ATPR ¶41-794 at 42,546; [2000] FCA 1572; BC200006717. Some guidance in determining the meaning of the expression “misleading or deceptive” may be obtained from the principles which have developed around the tort of passing off, though some caution should be used as there are no express limitations on the width of s 18 — under TPA s 52, see Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; 18 ALR 639; (1978) ATPR ¶40-067 at 17,690; BC7800029; Conagra Incorporated v McCain Foods (Aust) Pty Ltd (1991) 101 ALR 461; 22 IPR 175; (1991) ATPR ¶41-121; BC9103183, affirmed on appeal in Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 23 IPR 193; 106 ALR 465; BC9203428. [14,590.70] The expression “likely to mislead or deceive” In McWilliams Wines Pty Ltd v McDonalds System of Australia Pty Ltd (1980) 33 ALR 394; 49 FLR 455; (1980) ATPR ¶40-188 at 42,590 Northrop J said that the words “or is likely to mislead or deceive” means “may mislead or deceive” or “may be expected to mislead or deceive” or “has a capacity or

tendency to mislead or deceive”. [page 1336] Conduct is “likely” to mislead or deceive if there is a real or not remote chance or possibility regardless of whether it is less or more than 50 per cent: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; 55 ALR 25; (1984) ASC 55-334; (1984) ATPR ¶40-463; Tomlinex Pty Ltd v Candoura Pty Ltd (1994) ATPR ¶41-302 at 42,023; BC9406526; Sabre Corp Pty Ltd v Laboratories Pharm-a-Care Pty Ltd (1995) 31 IPR 445; (1995) ATPR 41-396; BC9507861; Central Equity Ltd v Central Corp Pty Ltd (1995) 32 IPR 481; (1995) ATPR ¶41-443 at 40,998; BC9502892; Australian Protective Electronics Pty Ltd v Pabflow Pty Ltd (1996) 35 IPR 327; (1996) ATPR 41-524; BC9603201; S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354; 168 ALR 396; (1999) ATPR ¶41-667; BC9806178; Australian Securities Commission v Nomura International Plc (1998) 89 FCR 301; 160 ALR 246; 29 ACSR 473; BC9806633; Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd (No 2) [2008] FCA 1480; BC200808721 at [84] per Flick J; Corporation of the City of Adelaide v Adelaide City Fines Pty Ltd (2009) 253 ALR 417; [2009] FCA 132; BC200900861 at [92] per Mansfield J; Unilever Australia Ltd v Goodman Fielder Consumer Foods Pty Ltd [2009] FCA 1305; BC200910300 at [23] per Buchanan J. The words make it clear that it is unnecessary to prove that the conduct in question actually deceived or misled anyone: Butcher v Lachlan Elder Realty Pty Ltd (2004) 212 ALR 357; 79 ALJR 308; [2004] HCA 60; BC200408200 at [112] per McHugh J; Google Inc v Australian Competition and Consumer Commission (2013) 294 ALR 404; [2013] HCA 1; BC201300295 per French CJ, Crennan and Kiefel JJ. APPROACH TO SECTION 18 [14,590.73] General approach to assessing misleading conduct There is a two step analaysis in determining whether conduct is misleading or deceptive. In Australian Competition and Consumer Commission v Telstra Corp Ltd (2007) 244 ALR 470; (2007) ATPR ¶42-203; [2007] FCA 1904;

BC200711520, Gordon J described that approach at [14]–[15]: First, it is necessary to ask whether each or any of the pleaded representations is conveyed by the particular events complained of: Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at [105]; National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] ATPR 42-000 at [18] per Dowsett J (with whom Jacobson and Bennett JJ agreed) and Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] ATPR 42-106 at [37] … Second, it is necessary to ask whether the representations conveyed are false, misleading or deceptive or likely to mislead or deceive. This is a “quintessential question of fact”: Australian Competition and Consumer Commission v Telstra (2004) 208 ALR 459 at [49].

[14,590.75] Approach in case of non-express representation Where an alleged misrepresentation has not been expressly made and the relevant deception is likely to be of the public, the following propositions should be considered: • It is necessary to identify the relevant section of the public who are likely to be misled. • Once the relevant section of the public is established, the matter is to be considered by reference to all who come within it, including the astute and gullible and the intelligent and the notso-intelligent, the well-educated, as well as the poorly educated. • Evidence that some person has formed an erroneous conclusion is admissible. • It is necessary to enquire why the proven misconception has arisen: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; (1982) ASC 55-207; (1982) ATPR ¶40-303 at 43,751; (1982) 2 TPR 48; Pivot Transport Pty Ltd v Bulkhaul Ltd (1993) ATPR ¶41-223 at 41,079. These propositions are considered below. [14,590.80] Identifying the relevant section of the public In determining whether conduct is misleading or deceptive for the purposes of s 18 the class of persons likely to be affected has to [page 1337] be identified, see: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; (1982) ASC 55-207; (1982) ATPR ¶40-303; (1982) 2 TPR 48;

Targetts Pty Ltd v Target Australia Pty Ltd (1993) 26 IPR 51; (1993) ASC 56-220; (1993) ATPR 41-231; BC9304867; Quadrascan Graphics Pty Ltd v Crosfield Electronics ANZ Pty Ltd (FCA, Carr J, No 124/93, 18 May 1995, unreported; BC9507757); Guide Dogs Owners’ & Friends’ Association Inc v Guide Dog Assn of New South Wales (1999) 43 IPR 531; [1999] FCA 316; BC9901319; Roses Only & Lush Pty Ltd v Mark Lyons Pty Ltd (1999) 47 IPR 593; (1999) ATPR 41-706; [1999] FCA 1000; BC9904170; South Australian Brewing Co Pty Ltd v Carlton & United Breweries Ltd (2001) 185 ALR 719; 53 IPR 90; [2001] FCA 902; BC200103803 at [72] per Mansfield J; Australian Competition and Consumer Commission v Dell Computers Pty Ltd (2002) ASAL 55-082; (2002) ATPR ¶41-878; [2002] FCA 847; BC200203645 at [17] per Jacobson J; Cassidy v Medical Benefits Fund of Australia Ltd (No 2) (2003) 12 ANZ Ins Cas 61-549; (2002) ATPR ¶41-892; [2002] FCA 1097; BC200205219 at [42] per Hill J; Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1; 205 ALR 402; [2003] FCAFC 289; BC200307781 at [31] per Stone J; Butcher v Lachlan Elder Realty Pty Ltd (2004) 212 ALR 357; 79 ALJR 308; [2004] HCA 60; BC200408200 at [36] per Gleeson CJ, Hayne and Heydon JJ; Shahid v Australasian College of Dermatologists (2007) 72 IPR 555; [2007] FCA 693; BC200703509 at [64] per Nicholson J; Australian Competition and Consumer Commission v Telstra Corp Ltd (2007) 244 ALR 470; (2008) ASAL ¶55-180; [2007] FCA 1904; BC200711520 at [16] per Gordon J; Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2008) 77 IPR 1; (2008) ATPR ¶42-235; [2008] FCA 607; BC200803337 at [56] per Bennett J; Corporation of the City of Adelaide v Adelaide City Fines Pty Ltd (2009) 253 ALR 417; [2009] FCA 132; BC200900861 at [93] per Mansfield J; Leonie’s Travel Pty Ltd v International Air Transport Association (2009) 255 ALR 89; [2009] FCA 280; BC200902177 at [95] per Moore J. Although it was common for conduct falling within s 52 to occur when statements were made to members of the public, it was not essential to found an action on s 52 that statements be directed to the public or some identifiable section of it: Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325; 59 ALR 334; (1985) ASC 55-401; (1985) ATPR ¶40-565 at 46,570; Monarch Investments Pty Ltd v Yeramba Estates Pty Ltd (1997) 37 IPR 363; (1997) ATPR (Digest) ¶46-170; BC9700621; Kimberly Clark Australia Pty Ltd v Carter Holt Harvey Tissue Australia Ltd (1997) 37 IPR 293; (1997) ATPR (Digest) ¶46-171; BC9701085; Unilever Australia Ltd v Revlon Australia Pty

Ltd (No 2) [2014] FCA 875; BC201406575 per Gleeson J. Whether a representation is made to the public or a section of it is a matter of characterisation: Australian Securities and Investments Commission v National Exchange Pty Ltd (2003) 202 ALR 24 at 27–8; 47 ACSR 128 at 131–2; [2003] FCA 955; BC200305187; .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521; 61 IPR 81; [2004] FCA 424; BC200401833 at [18] per Finkelstein J. Class of consumers affected by the conduct Section 18 does not expressly state the persons or class of persons which should be considered as the possible victims for the purpose of deciding whether conduct is misleading or deceptive or likely to mislead or deceive. It has been said, in the context of s 52, that consideration should be given to the class of consumers likely to be affected by the conduct: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1; (1982) ATPR ¶40-307; BC8200090; Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; 111 ALR 61; (1993) ATPR ¶41-199; BC9203820; Trade Practices Commission v Telstra Corp Ltd (1993) ATPR ¶41-256; BC9304949; Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84; 117 ALR 393; (1993) ATPR ¶41-266; BC9305001; Campomar Sociedad Ltd v Nike International Ltd (2000) 169 ALR 677; 46 IPR 481; (2000) ATPR (Digest) ¶46-201; [2000] HCA 12; BC200000767; George Weston Foods Ltd v Goodman Fielder Ltd (2000) 49 IPR 553; [2000] FCA 1632; BC200006966; Mark Foys Pty Ltd v TVSN (Pacific) Ltd (2000) 49 IPR 303; (2001) ATPR ¶41-795 at 42,5689; [2000] FCA 1626; BC200006942; South Australian Brewing Co Pty Ltd v Carlton & United Breweries Ltd (2001) 185 ALR 719; 53 IPR 90; [2001] FCA 902; BC200103803 at [72] per Mansfield J; Telstra Corporation Ltd v Royal & Sun Alliance Insurance [page 1338] Australia Ltd (2003) 57 IPR 453; (2003) ATPR 41-951; [2003] FCA 786; BC200304197 at [73] per Merkel J; Mobileworld Communications Pty Ltd v Q & Q Global Enterprise (2003) 61 IPR 98; (2004) AIPC 91-955; [2003] FCA 1404; BC200307359 at [123] per Allsop J; Cash Converters Pty Ltd v

Tallut Pty Ltd (2005) ATPR ¶42-074; [2005] FCA 939; BC200504814 at [57] per Siopis J; Energizer Australia Pty Ltd v Remington Products Australia Pty Ltd (2008) 76 IPR 63; (2008) ATPR ¶42-219; [2008] FCA 58; BC200800891 at [16] per Moore J; Unilever Australia Ltd v Goodman Fielder Consumer Foods Pty Ltd [2009] FCA 1305; BC200910300 at [21] per Buchanan J; Polaris Communications Pty Ltd v Dynamic Hearing Pty Ltd [2009] FCA 890; BC200908945 at [56] per Sundberg J; (appeal) Dynamic Hearing Pty Ltd v Polaris Communications Pty Ltd [2010] FCAFC 135; BC201008709 per Moore, Besanko and Gordon JJ; Specsavers Pty Ltd v Optical Superstore Pty Ltd (No 2) [2010] FCA 566; BC201003718 at [75] per Katzmann J; Australian Competition and Consumer Commission v Singtel Optus Pty Limited [2010] FCA 1177; BC201008108 at [28] per Perram J; STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240; BC201008447 at [70] per Rares J; (appeal) Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15; BC201200782 per Greenwood, McKerracher and Reeves JJ; SC Johnson & Son Pty Ltd v Reckitt Benckiser (Aust) Pty Ltd [2012] FCA 1266; BC201208775 per Yates J; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 304 ALR 186; 88 ALJR 176; [2013] HCA 54; BC201315601 at [53] per French CJ, Crennan, Bell and Keane JJ; Coca Cola Company v PepsiCo Inc (No 2) [2014] FCA 1287 per Besanko J. In determining the class of consumers affected by the conduct, the court must consider whether a reasonably significant number of potential consumers would be likely to be misled or deceived: Weitmann v Katies Ltd (1977) 29 FLR 336; 2 TPC 329; (1977) ATPR ¶40-041 at 17,444–5; Pinetrees Lodge Pty Ltd v Atlas International Travel Pty Ltd (1981) 38 ALR 187; 59 FLR 244; Honey v Australian Airlines Ltd (1989) 14 IPR 264; (1989) ATPR 40-961; Equity Access Pty Ltd v Westpac Banking Corp (1989) 16 IPR 431; (1990) ATPR ¶40-994; Conagra Inc v McCain Foods (Aust) Pty Ltd (1991) 101 ALR 461; 22 IPR 175; (1991) ATPR ¶41-121; BC9103183, affirmed on appeal in Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 23 IPR 193; 106 ALR 465; BC9203428. What constitutes a reasonably significant number of consumers is a question of fact in each case: T V-am plc v Amalgamated Television Services Pty Ltd (1988) 12 IPR 85; (1988) ATPR ¶40-891; R & C Products Pty Ltd v SC Johnson & Son Pty Ltd (1994) ATPR ¶41-364 at 42,729; BC9400178; SC Johnson & Son Pty Ltd v Reckitt Benckiser (Aust) Pty Ltd [2012] FCA 1266; BC201208775 per Yates

J. In a case involving a representation to the public it is not necessary that significant members of the public be misled by the impugned conduct before there can be a contravention of s 18 — in the context of s 52, see: .au Domain Administration Ltd v Domain Names Australia Pty Ltd, above, at [25] per Finkelstein J. [14,590.85] The persons falling within the relevant section of the public In Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 25 ALR 91; 40 FLR 165; 5 TPC 111; (1979) ATPR ¶40-116 the court said that the question of whether conduct is misleading is to be tested by the effect on a person, not particularly intelligent or well-informed, but perhaps of somewhat less than average intelligence and background knowledge, although the test is not the effect on a person who is, for example, quite unusually stupid. In Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; (1982) ASC 55-207; (1982) ATPR ¶40-303 at 43,751; 2 TPR 48 Franki J confirmed that the matter is to be considered by reference to all persons who come within the relevant section of the public including the astute and the gullible, the intelligent and the not-so intelligent, the well-educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations. See also Finucane v New South Wales Egg Corp (1988) 80 ALR 486; (1988) ATPR ¶40-863 (Finucane); Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; 111 ALR 61; (1993) ATPR ¶41-199; BC9203820; Targetts Pty Ltd v Target Australia Pty Ltd (1993) 26 IPR 51; (1993) ASC 56-220; (1993) ATPR ¶41231 at 41,191; BC9304867; Sabre Corp Pty Ltd v Laboratories Pharm-ACare Pty Ltd (1995) 31 IPR 445; (1995) ATPR 41-396; [page 1339] BC9507861; Hoad v Nationwide News Pty Ltd (1997) 37 IPR 407; (1997) ATPR (Digest) 46-169; BC9700407; Australian Competition & Consumer Commission v Optell Pty Ltd (1998) 41 IPR 49; (1998) ATPR 41-640; BC9802179; Campomar Sociedad Ltd v Nike International Ltd (2000) 169 ALR 677; 46 IPR 481; (2000) ATPR (Digest) ¶46-201; [2000] HCA 12;

BC200000767; BHG Nominees Pty Ltd v Ellis Young Investments Pty Ltd (in liq) [2000] FCA 419; BC200001549; Cantarella Bros Pty Ltd v Valcorp Fine Foods Pty Ltd (2002) ASAL 55-073; (2002) ATPR ¶41-856; [2002] FCA 8; BC200200016 at [35] per Lindgren J; Anheuser-Busch Inc v Budejovicky Budvar Narodni Podnik (2002) 56 IPR 182; (2002) AIPC 91-789; [2002] FCA 390; BC200201323 at [238] per Allsop J; CPA Australia Ltd v Dunn (2007) 74 IPR 495; (2007) ATPR ¶42-205; [2007] FCA 1966; BC200710880 at [27] per Weinberg J; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; 257 ALR 610; [2009] HCA 25; BC200906574 at [26] per French J; Technology Leasing Ltd v Lennmar Pty Ltd [2012] FCA 709; BC201204911 per Cowdroy J. Reasonable members of the class However, in Finucane, above, Lockhart J observed that in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1; (1982) ATPR ¶40-307; BC8200090 it was suggested that the class of persons likely to be affected was more restricted so that the court would test the effect of conduct upon a reasonable member of the class: Typing Centre of New South Wales Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627; (1989) ASC 55-709; (1989) ATPR ¶40-943; Commercial Dynamics Pty Ltd v M Hawke Nominees Pty Ltd (1996) ATPR ¶41-503; BC9603229; Australian Competition & Consumer Commission v Woolworths Ltd (2002) ASAL 55-085; (2002) ATPR ¶41-889; [2002] FCA 1001; BC200204494 at [9] per Lindgren J; AstraZeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2005] FCA 1645; BC200509738 at [107] per Edmonds J; Johnson & Johnson Pacific Pty Ltd v Unilever Australia Ltd (2006) 69 IPR 232; [2006] FCA 486; BC200603396 at [9] per Tamberlin J; Walker as Commissioner for Fair Trading v Rugs a Million Pty Ltd [2006] WASC 127; BC200604988 at [35] per Simmonds J; Johnson & Johnson Pacific Pty Ltd v Unilever Australia Ltd (No 2) (2006) 70 IPR 574; (2007) ATPR ¶42-136; [2006] FCA 1646; BC200609769 at [17], [70] per Bennett J; Natural Waters of Viti Ltd v Dayals (Fiji) Artesian Waters Ltd (2007) 71 IPR 571; (2007) ATPR ¶42-148; [2007] FCA 200; BC200700939 at [28] per Bennett J; see Rana v University of South Australia [2007] FCA 816; BC200704152 at [57] per Besanko J; (appeal) Rana v University of South Australia [2007] FCAFC 188; BC200710545 per Branson, Sundberg and Dowsett JJ; Energizer Australia Pty Ltd v Remington Products Australia Pty Ltd (2008) 76 IPR 63; (2008) ATPR ¶42-219; [2008] FCA 58;

BC200800891 at [16] per Moore J (see Energizer Australia Pty Ltd v Remington Products Australia Pty Ltd (No 2) (2008) ATPR ¶42-221; [2008] FCA 171; BC200801491 per Moore J; see Energizer Australia Pty Ltd v Remington Products Australia Pty Ltd (No 3) (2008) ATPR ¶42-222; [2008] FCA 304; BC200801478 per Moore J); Australian Competition and Consumer Commission v Prouds Jewellers Pty Ltd (2008) 75 IPR 306; (2008) ¶ATPR 42-217; [2008] FCA 75; BC200800652 at [16] per Moore J; (appeal) Australian Competition and Consumer Commission (ACCC) v Prouds Jewellers Pty Ltd [2008] FCAFC 199; BC200811421 per Black CJ, Ryan and Gordon JJ; Nathan v Capital Finance Australia Ltd [2008] FCA 459; BC200802421 at [6] per Marshall J; Commissioner for Fair Trading, Department of Commerce v Hunter [2008] NSWSC 277; BC200802120 at [29] per McCallum J; Australian Competition and Consumer Commission (ACCC) v Terania Pty Ltd [2008] FCA 732; BC200803830 at [20] per Mansfield J; Ricegrowers Ltd v Real Foods Pty Ltd (2008) 77 IPR 32; [2008] FCA 639; BC200803340 at [81] per Rares J; Evans v Graham (2009) 84 IPR 127; [2009] NSWSC 1378; BC200911489 at [23] per Gzell J; Specsavers Pty Ltd v Optical Superstore Pty Ltd (No 2) [2010] FCA 566; BC201003718 at [77] per Katzmann J; Optical 88 Ltd v Optical 88 Pty Ltd (No 2) [2010] FCA 1380; BC201009532 at [325] per Yates J; Specsavers Pty Ltd v Optical Superstore Pty Ltd (2010) 276 ALR 569; [2010] FCA 1446; BC201010190 at [16] per Katzmann J; Nick Scali Ltd v Super A-Mart Pty Ltd [2011] FCA 751; BC201104866 at [92] per Yates J. Samsung Electronics Australia Pty Ltd v LG Electronics Australia Pty Ltd [2011] FCA 664; BC201104102 at [28] per Rares J; Australian Competition and Consumer Commission v European City Guide SL [2011] FCA 804; BC201105454 per Moore J; Australian Competition and Consumer Commission (ACCC) v European City Guide SL [2011] FCA 804; BC201105454 [page 1340] at [55] per Moore J; New South Wales Lotteries Corporation Pty Ltd v Kuzmanovski [2011] FCAFC 106; BC201106379 per Siopis, Cowdroy and Tracey JJ; ALDI Stores (A Limited Partnership) v EFTPOS Payments Australia Ltd [2011] FCA 1114; BC201107539 per Jacobson J; Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2011] FCA

1254; BC201108516 at [16] per Murphy J; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 304 ALR 186; 88 ALJR 176; [2013] HCA 54; BC201315601 per French CJ, Crennan, Bell and Keane JJ; Telstra Corp Ltd v Singtel Optus Pty Ltd [2014] VSC 35; BC201400576 per Elliott J; Glaxosmithkline Australia Pty Ltd v Pharmacor Pty Ltd [2014] FCA 1202; BC201409500 per Beach J; Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia Ltd (2015) 111 IPR 1; [2015] FCA 35; BC201501211 per Robertson J. Australian Postal Corp v Digital Post Australia Pty Ltd (No 2) (2012) 96 IPR 532; [2012] FCA 862; BC201206030 per Marshall J; Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134; BC201207034 per Greenwood, Logan and Yates JJ; REA Group Ltd v Real Estate 1 Ltd [2013] FCA 559; BC201302952 per Bromberg J; Madden v Seafolly Pty Ltd [2014] FCAFC 30; BC201402065 at [77] per Marshall, Rares and Robertson JJ; Australian Competition and Consumer Commission v Safe Breast Imaging Pty Ltd [2014] FCA 238; BC201401593 per Barker J. In Finucane, Lockhart J said of TPA s 52 (ALR at 516; ATPR at 49,344): In my view, the decision in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd, does not overrule the reasoning of Franki J in Taco Co of Australia Inc v Taco Bell Pty Ltd, as to the definition of the class of persons likely to be affected by conduct in contravention of s 52. I prefer that reasoning and adopt it in this case. The definition of the class of persons likely to be affected cannot be stated in absolute terms. It is really a question of identification of the relevant class of persons according to the facts of a particular case. There may, for example, be a case of a corporation seeking to sell its products to more ingenious members of society. The definition of the class of persons likely to be affected in that case would reflect the characteristics of those persons.

In FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479; 7 ANZ Ins Cas ¶61-118; (1992) ATPR 41-176 at 40,410; BC9203503, the court had regard to the limited audience to which the publication was directed and the powers of perception and understanding of that audience. In Sabre Corp Pty Ltd v Laboratories Pharm-A-Care Pty Ltd (1995) 31 IPR 445; (1995) ATPR 41-396; BC9507861, at ATPR 40,384 Beazley J said that the test is probably one of the reasonable response of persons within the relevant sector of the public. See however Brueckner v Carroll (1995) ATPR 41-379 at 40,239; BC9403411. See Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639; 92 IPR 222; [2011] FCAFC 98; BC201105891 per Greenwood J (Tracey J agreeing).

In .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521; 61 IPR 81; [2004] FCA 424; BC200401833 at [21] Finkelstein J said that logic demands that if one is dealing with a diverse group, then, for the purpose of determining whether particular conduct has the capacity to mislead, it is necessary to select a hypothetical individual from that section of the group which is most likely to be misled: (appeal) Domain Names Australia Pty Ltd v .au Domain Administration Ltd (2004) 139 FCR 215; 63 IPR 1; [2004] FCA 247; BC200405911 at [26] per Wilcox, Heerey and RD Nicholson JJ; Unilever Australia Ltd v Goodman Fielder Consumer Foods Pty Ltd [2009] FCA 1305; BC200910300 at [21] per Buchanan J. See Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (2010) 267 ALR 721; 86 IPR 247; [2010] FCA 423; BC201003003 per Perram J; Telstra Corp Ltd v Phone Directories Co Pty Ltd [2014] FCA 568 at [398] per Murphy J. An assessment that the hypothetical ordinary and reasonable member of the target class is likely to have been misled or deceived will usually exclude the insignificant number of class members whose reaction is extreme or fanciful: Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2014] FCA 568 at [399] per Murphy J.

[page 1341] CONDUCT THAT IS MISLEADING OR DECEPTIVE OR LIKELY TO MISLEAD OR DECEIVE [14,590.90] The requirement of a misrepresentation Conduct cannot be categorised as misleading or deceptive, or likely to be misleading or deceptive under s 18 unless the conduct contains or conveys a misrepresentation. For discussion of the requirement of a misrepresentation under former TPA s 52, see: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; (1982) ASC 55-207; (1982) ATPR ¶40-303 at 43,751; 2 TPR 48; Lego Australia Pty Ltd v Paul’s (Merchants) Pty Ltd (1982) 42 ALR 344; 60 FLR 465; (1982) ATPR ¶40-308 at 43,804–5; Chase Manhattan Overseas Corporation v Chase Corp Ltd (1985) 9 FCR 129; 63 ALR 345; 6 IPR 59; (1986) ATPR ¶40-661 at 47,336; Equity Access Pty Ltd v Westpac Banking Corp (1989) 16 IPR 431; (1990) ATPR ¶40-994 at 50,950; Marlbro Shelving Systems Pty Ltd v ARC Engineering Pty Ltd (1983) 72 FLR 418; (1983) ASC 55-249; (1983) ATPR ¶40-355 at 44,292; Trade Practices Commission v Telstra Corp Ltd (1993) ATPR ¶41-256 at 41,452; BC9304949; Brueckner v Carroll (1995) ATPR ¶41-379; BC9403411; Brophy v NIAA Corp Ltd (in liq) (1995) ATPR ¶41-399; BC9504260; Intrac (Sales) Pty Ltd v Riverside Plumbing & Gas Fitting Pty Ltd (1997) ATPR ¶41-572; CA Henschke & Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63; (2000) ATPR (Digest) ¶46-199; [1999] FCA 1561; BC9907464; Marleef Pty Ltd v Metcash Trading Ltd [2001] FCA 1316; BC200105506 at [57] per Weinberg J; Butcher v Lachlan Elder Realty Pty Ltd (2002) 55 NSWLR 558; [2002] NSWCA 237; BC200204907 at [32] per Handley JA (Beazley and Hodgson JJA agreeing); Australian Competition and Consumer Commission v Clarion Marketing Pty Ltd [2009] FCA 1441; BC200911007 at [34] per Nicholas J; see Sanofi-Aventis Australia Pty Ltd v Apotex Pty Ltd (No 3) [2011] FCA 846; BC201105581 per Jagot J. Although often conduct that gives rise to a claim under s 18 will be brought about by a representation, a representation is not essential in order for s 18 to apply — on TPA s 52, see: Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1979) 27 ALR 387; (1979) ATPR ¶40-135 at 18,475;

Bridge Stockbrokers Ltd v Bridges Stockbrokers Ltd (1984) 4 FCR 460; 57 ALR 401; (1985) ATPR ¶40-502 at 46,024; Hunt Contracting Co Pty Ltd v Roebuck Resources NL (1992) 110 ALR 183; (1992) ATPR ¶41-193 at 40,606; Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; (2001) ATPR ¶41-794; [2000] FCA 1572; BC200006717; Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189; (1989) ATPR ¶40-940 at 50,250; Butcher v Lachlan Elder Realty Pty Ltd (2004) 212 ALR 357; 79 ALJR 308; [2004] HCA 60; BC200408200 at [104] per McHugh J; Osgaig Pty Ltd v Ajisen (Melbourne) Pty Ltd (2004) 213 ALR 153; 63 IPR 156; [2004] FCA 1394; BC200407145 at [80] per Weinberg J; Marine & Civil Construction Co Pty Ltd v SGS Australia Pty Ltd [2012] FCA 907; BC201206265 per Siopis J; ACN 055 378 240 Pty Ltd (formerly Marine & Civil Construction Co Pty Ltd) v SGS Australia Pty Ltd [2013] FCAFC 46; BC201302477 per North, Jacobson and Gilmour JJ. Section 18 should not be approached on the assumption that it is confined exclusively to circumstances which constitute some form of misrepresentation but rather it is necessary to examine the conduct and ask the question whether the impugned conduct, of its nature, constitutes misleading or deceptive conduct, see: Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546; 79 ALR 83; (1988) ASC 55-648; (1988) ATPR ¶40-850 at 49,151. It is clear that the issue is not yet settled: Treloar v Ivory (1991) 4 WAR 318; (1991) ATPR ¶41-123 at 52,817 per Ipp J. [14,590.95] The time for testing a character of a representation Where a misrepresentation is relied on in support of a claim under s 18 the relevant time for testing the character of the representation complained of is at the date of the making of the misrepresentation and not with the benefit of hindsight. For discussion on the time of testing, see: Cedric Constructions Pty Ltd v Elders Finance & Investment Co Ltd (1988) ATPR 40-879 at 49,539; Khalaf Agaiby v Darlington Commodities Ltd (1985) ASC 55-387; (1985) ATPR ¶40-535 at 46,323; Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (1999) 44 IPR 281; (1999) ATPR (Digest) ¶46-192 at 52,354; [page 1342]

[1999] FCA 461; BC9901711; (appeal) Dr Martens Australia Pty Ltd v Rivers (Aust) Pty Ltd (1999) 95 FCR 136; 47 IPR 499; (2000) ATPR ¶41734; CA Henschke & Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63; (2000) ATPR (Digest) ¶46-199; [1999] FCA 1561; BC9907464. Where a representation is relied on, it must be clear and unambiguous or at least not so vague as to be illusory: Roberts v Hong Kong Bank of Australia Ltd (1993) 35 AILR 213; BC9304743. [14,590.100] Evidence of misleading or deceptive conduct It is for the court to determine objectively whether specific conduct is misleading or deceptive or likely to mislead or deceive: FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479; 7 ANZ Ins Cas ¶61-118; (1992) ATPR ¶41-176 at 40,409; BC9203503; Rumcoast Holdings Pty Ltd v Prospero Publishing Pty Ltd (1999) 152 FLR 240; 48 IPR 75; (1999) ATPR ¶41-724 at 43,402; [1999] WASC 176; BC9906293 (appeal) Prospero Publishing Pty Ltd v Rumcoast Holdings Pty Ltd (2000) ATPR ¶41-762; [2000] WASCA 61; BC200000981; Domain Names Australia Pty Ltd v.au Domain Administration Ltd (2004) 139 FCR 215; 63 IPR 1; [2004] FCAFC 247; BC200405911 at [22] per Wilcox, Heerey and RD Nicholson JJ. See Hansen Beverage Company v Bickfords (Australia) Pty Ltd (2008) 171 FCR 579; 251 ALR 1; [2008] FCAFC 181; BC200810030 at [55] per Tamberlin J; GMA Garnet Pty Ltd v Barton International Inc [2009] FCA 439; BC200903493 at [562] per Barker J. The fact that there is actual evidence that a person has been misled does not conclusively establish that the conduct is misleading or deceptive or likely to mislead or deceive: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; (1982) ASC 55-207; (1982) ATPR ¶40-303; 2 TPR 48; McWilliams Wines Pty Ltd v McDonalds System of Australia Pty Ltd (1980) 33 ALR 394; 49 FLR 455; (1980) ATPR ¶40-188; ‘Q’ Promotions Pty Ltd v Queensland Bloodstock Breeders & Sales Pty Ltd (FCA, Drummond J, QG 109/93, 16 July 1993, unreported; BC9304929) at 19; S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354; 168 ALR 396; (1999) ATPR ¶41-667 at 42,509; BC9806178; Poulet Frais Pty Ltd v Silver Fox Co Pty Ltd (2005) 220 ALR 211; (2005) ATPR 42-075; [2005] FCAFC 131; BC200505073 at [75] per Branson, Nicholson and Jacobson JJ; AstraZeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd (2006) ASAL 55155; (2006) ATPR 42-106; [2006] FCAFC 22; BC200601002 at [33] per

Wilcox, Bennett and Graham JJ; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136; 69 IPR 23; [2006] FCA 446; BC200602559 at [80] per Heerey J; Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia Ltd (2015) 111 IPR 1; [2015] FCA 35; BC201501211 per Robertson J. Whether particular conduct is misleading or deceptive is a question of fact to be answered in the context of the evidence as to the alleged conduct and as to relevant surrounding facts and circumstances: Lego Australia Pty Ltd v Paul’s (Merchants) Pty Ltd (1982) 42 ALR 344; 60 FLR 465; (1982) ATPR ¶40-308 at 43,804; S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354; 168 ALR 396; (1999) ATPR ¶41-667 at 42,509; BC9806178; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; 257 ALR 610; [2009] HCA 25; BC200906574 at [102] per Gummow, Hayne, Heydon and Kiefel JJ; Culligan v Aco Pty Ltd [2009] NSWCA 290; BC200908574 at [45] per Basten JA, Young JA and Sackville AJA. ‘ As the test is an objective one, the failure of an applicant to call evidence from people who may have been misled may not be fatal to the applicant’s claim: Glorie v WA Chip & Pulp Co Pty Ltd (1981) 39 ALR 67; 55 FLR 310 at 321; 1 TPR 84; MacPhee v Peters Foods Australia Pty Ltd (in liq) (2004) 60 IPR 51; [2003] FCA 1528; BC200308125 at [35] per Hill J; Foxtel Management Pty Ltd v Australian Video Retailers Assn Ltd (2004) 214 ALR 554; [2004] FCA 1613; BC200408494 at [87] per Conti J. Indeed where the target class is large, the absence of evidence from individuals saying they were misled may be of little significance: Australian Competition and Consumer Commission (ACCC) v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; BC201404735 at [45] per Allsop CJ; Australian Competition and Consumer Commission (ACCC) v Coles Supermarkets Australia Pty Ltd (No 2) [2014] FCA 1022; BC201408004 per Allsop CJ. [page 1343] Although evidence that a person has actually been misled does not conclusively establish that the conduct is misleading or deceptive or likely to mislead or deceive, nevertheless such evidence may be relevant and persuasive and will be admissible: Global Sportsman Pty Ltd v Mirror

Newspapers Pty Ltd (1984) 2 FCR 82; 55 ALR 25; (1984) ASC 55-334; (1984) ATPR ¶40-463 at 45,343; Bridge Stockbrokers Ltd v Bridges Stockbrokers Ltd (1984) 4 FCR 460; 57 ALR 401; 5 IPR 81; (1985) ATPR ¶40-502 at 46,022; Marlbro Shelving Systems Pty Ltd v ARC Engineering Pty Ltd (1983) 72 FLR 418; (1983) ASC 55-249; (1983) ATPR ¶40-355; Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 4 FCR 450; 57 ALR 167; 3 IPR 619; (1985) ATPR ¶40-507; R & C Products Ltd v Abundant Earth Pty Ltd (1984) 3 FCR 40; 55 ALR 38; (1984) ASC 55-364; (1984) ATPR 40-488; Arcric Investments Pty Ltd v Ductline Pty Ltd (1992) ATPR ¶41-180 at 40,459; BC9203622; Central Equity Ltd v Central Corp Pty Ltd (1995) 32 IPR 481; (1995) ATPR ¶41-443 at 40,998; BC9502892; McIlhenny Co v Blue Yonder Holdings Pty Ltd (1997) 149 ALR 496; 39 IPR 187; (1997) ATPR 41-587; BC9704514; Natural Waters of Viti Ltd v Dayals (Fiji) Artesian Waters Ltd (2007) 71 IPR 571; (2007) ATPR ¶42-148; [2007] FCA 200; BC200700939 at [30] per Bennett J; CPA Australia Ltd v Dunn (2007) 74 IPR 495; (2007) ATPR ¶42-205; [2007] FCA 1966; BC200710880 at [26] per Weinberg J; Playcorp Group of Companies Pty Ltd v Peter Bodum A/S (2010) 84 IPR 542; [2010] FCA 23; BC201000310 at [79] per Middleton J. [14,590.105] Conduct of the respondent In order for there to be a contravention of s 18(1) of the Act it is the conduct of the person being sued that must be misleading or deceptive. It is irrelevant that members of the public are misled or deceived, not by any conduct of the person, but by the conduct of others for whom the person was not responsible. For discussion of conduct in the context of TPA s 52(1), see: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; 55 ALR 25; (1984) ASC 55334; (1984) ATPR ¶40-463 at 45,346; Bridge Stockbrokers Ltd v Bridges Stockbrokers Ltd (1984) 4 FCR 460; 57 ALR 401; 5 IPR 81; (1985) ATPR ¶40-502 at 46,023; Equity Access Pty Ltd v Westpac Banking Corp (1989) 16 IPR 431; (1990) ATPR ¶40-994 at 50,950; Australian Competition and Consumer Commission v Google Inc (2012) 201 FCR 503; [2012] FCAFC 49; BC201203635 per Keane CJ, Jacobson & Lander JJ. For example, if a product carries a label which identifies a manufacturer and that label is removed by a person for whose acts the manufacturer is not responsible, and in consequence a purchaser is misled, the misleading conduct will not have been produced by the manufacturer: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1;

(1982) ATPR ¶40-307 at 43,784; BC8200090. In Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) ATPR ¶41-980; [2004] FCAFC 34; BC200400513 at [40] per Moore and Mansfield JJ and at [70] per Stone J, the court said that an advertising agent who does no more than prepare an advertisement for a client does not make a relevant representation that is misleading or deceptive. Therefore, in some circumstances it is necessary to take account of the steps that a person affected by the conduct might reasonably be expected to take in order to determine whether the conduct is misleading or deceptive: Metcalfe v NZI Securities Australia Ltd (1995) ATPR ¶41-418 at 40,671; BC9507736. [14,590.110] Misleading representations of fact and law The generality of s 18 does not support any implied limitation that would exclude from its operation conduct inducing error of law, see: CA Henschke & Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63; (2000) ATPR (Digest) 46-199; [1999] FCA 1561; BC9907464. Conduct which contravenes s 18 may also involve false or misleading representations of fact or mixed fact and law as well as applying to misrepresentations per se, see under TPA s 52: Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 1) (1991) 28 FCR 151; 100 ALR 447; (1991) ATPR ¶41-091 at 52,455; BC9103015. In Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (FCA, Burchett J, NG 243/90, 3 December 1992, unreported, BC9203213) at 43, the court said that although copyright involved mixed questions of fact and law it would be possible for an incorrect statement about copyright to be misleading. Indeed, in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470; 114 ALR 355; (1993) ATPR ¶41-269 at 41,647; BC9304807 the court said that TPA s 52 would have an [page 1344] application to the case which involved misleading or deceptive conduct arising from a warranty embodied as a provision of a written contract in the absence of any pre-contractual conduct which would otherwise attract the operation of TPA s 52.

[14,590.115] Puffery A “puff” may be described as a superlative or comparative that is a self-evident exaggeration, unlikely to mislead. At common law, puffs (which are widely used in advertising) do not have the character of a misrepresentation nor do they give rise to contractual relations. Whether a representation is a puff depends on the particular facts considered in light of the ordinary incidents and character of commercial behaviour: Australian Competition and Consumer Commission v Kaye [2004] FCA 1363; BC200407004 at [122] per Kenny J; Lowe v Mack Trucks Australia Pty Ltd [2008] FCA 439; BC200802285 at [51] per Kenny J. However, the interpretation of s 52 was not affected by common law causes of action or concepts: see [14,590.20]. What may constitute a mere puff at general law may have constituted misleading or deceptive conduct under s 52: Sabre Corp Pty Ltd v Laboratories Pharm-A-Care Pty Ltd (1995) 31 IPR 445; (1995) ATPR 41-396; BC9507861; Fried v Dixie Holdings Pty Ltd [2000] FCA 1048; BC200004338 (comfortable cruising speed of a ship); Minister for Health & Aged Care v Harrington Assocs Ltd (2000) 107 FCR 212; [2000] FCA 1723; BC200007297. See 3Meg.Com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASCA 128; BC201204643 per Pullin, Newnes and Murphy JA. See Volunteer Eco Students Abroad Pty Ltd v Reach Out Volunteers Pty Ltd [2013] FCA 731; BC201311325 per Grifiths J; Specsavers Pty Ltd v Luxottica Retail Australia Pty Ltd [2013] FCA 648; BC201310671 per Griffiths J. In Collier Constructions Pty Ltd v Foskett Pty Ltd (1990) 97 ALR 460; 19 IPR 44; (1990) ATPR (Digest) ¶46-063; BC9003633 at 53,231 Gummow J said of TPA s 52: In my view it would not be correct to translate the learning in those authorities immediately into the construction of s 52 of the Trade Practices Act, so as to decide that if a statement was first classified as a “mere puff” at general law, it necessarily did not have the character of conduct that was misleading or deceptive, or likely to mislead or deceive. The circumstances of each case must be assessed and measured against the terms of the legislation itself. Thus, in particular circumstances, a representation that new home units are to be ‘bigger and better’ than in any existing building may be likely to mislead or deceive within the meaning of s 52.

However, in Culley & Russell Pty Ltd v Goyder (2001) 158 FLR 466; (2001) ASAL 55-061; [2001] WASCA 27; BC200100296 the court said that statements made by a partner that he was personal friends with the respondent and they had substantial assets was a mere puff. [14,590.120]

Confusion, uncertainty and misleading or deceptive

conduct Ordinarily, mere proof that the conduct of the person (formerly corporation) has caused confusion or uncertainty in the minds of the relevant section of the public will not suffice to prove misleading or deceptive conduct, see: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1; (1982) ATPR ¶40-307 at 43,783–4; BC8200090; Arcric Investments Pty Ltd v Ductline Pty Ltd (1992) ATPR ¶41-180 at 40,459; BC9203622; Chase Manhattan Overseas Corporation v Chase Corp Ltd (1985) 9 FCR 129; 63 ALR 345; 6 IPR 59; (1986) ATPR ¶40-661 at 47,337; Equity Access Pty Ltd v Westpac Banking Corp (1989) 16 IPR 431; (1990) ATPR ¶40-994 at 50,950; Thai Silk Co Ltd v Aser Nominees Pty Ltd (1991) ASC 56-114; (1991) ATPR 41-146; BC9102990; BR Gamer (Investments) Pty Ltd v GA Gamer (1993) ATPR ¶41-200; BC9203819; Park v Allied Mortgage Corp Ltd (1993) ATPR (Digest) 46-105; BC9304841; R &C Products Pty Ltd v SC Johnson & Sons Pty Ltd (1993) 42 FCR 188; 113 ALR 887; (1993) ATPR ¶41-234 at 41,203; BC9304758; Trade Practices Commission v Telstra Corp Ltd (1993) ATPR ¶41-256 at 41,452; BC9304949; Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483 at 489; (1988) ASC 55644; (1988) ATPR 40-846; ‘Q’ Promotions Pty Ltd v Queensland Bloodstock Breeders & Sales Pty Ltd (FCA, Drummond J, QG 109/93, 16 July 1993, unreported; BC9304929) at 9; Really Useful Group Ltd v Gordon & Gotch Ltd (1994) 29 IPR 19; (1994) ATPR ¶41-336 at 42,418; BC9406081; Sabre Corp Pty Ltd v [page 1345] Laboratories Pharm-A-Care Pty Ltd (1995) 31 IPR 445; (1995) ATPR 41396; BC9507861; Brueckner v Carroll (1995) ATPR ¶41-379; BC9403411; Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd (1996) 66 FCR 451; 34 IPR 225; (1996) ATPR ¶41-483; BC9601869; Nike International Ltd v Campomar Sociedad Ltd (1996) 35 IPR 385; (1996) AIPC 91-271; (1996) ATPR ¶41-518 at 42,468; BC9603724; Monaco Willows Pty Ltd v Greenbax Pty Ltd (1996) 36 IPR 387; (1996) ATPR ¶41527; BC9603866; Campomar Sociedad, Limitada v Nike International Ltd (1998) 85 FCR 331; 156 ALR 316; (1998) ATPR (Digest) ¶46–185; BC9803068; S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd

(1998) 88 FCR 354; 168 ALR 396; (1999) ATPR ¶41-667 at 42,509; BC9806178; Australian Securities Commission v Nomura International Plc (1998) 89 FCR 301; 160 ALR 246; 9 ACSR 473; BC9806633; Foxtel Management Pty Ltd v Australian Video Retailers Assn Ltd (2004) 214 ALR 554; [2004] FCA 1613; BC200408494 at [85] per Conti J; AstraZeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd (2006) ASAL 55-155; (2006) ATPR ¶42-106; [2006] FCAFC 22; BC200601002 at [38] per Wilcox, Bennett and Graham JJ; Woodtree Pty Ltd v Zheng (2007) 211 FLR 18; [2007] FMCA 457; BC200704519 at [134] per Riley FM; Scotch Whisky Association v De Witt (2007) 74 IPR 382; (2008) AIPC 92-264; [2007] FCA 1649; BC200709534 at [83] per Sundberg J; Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586; 74 IPR 232; [2007] FCAFC 170; BC200710256 at [60] per French, Tamberlin and Rares JJ; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 8) (2008) 75 IPR 557; (2008) ATPR ¶42229; [2008] FCA 470; BC200802418 at [88] per Heerey J; Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639; 92 IPR 222; [2011] FCAFC 98; BC201105891 at [204] per Greenwood J (Tracey J agreeing); REA Group Ltd v Real Estate 1 Ltd [2013] FCA 559; BC201302952 per Bromberg J; Spanline Weatherstrong Building Systems Pty Ltd v Tabellz Pty Ltd [2013] FCA 1019 per Griffiths J; Coca Cola Company v PepsiCo Inc (No 2) [2014] FCA 1287 per Besanko J. So, for example, in the case of the promotion of a similar product to another corporation, that conduct would not have breached s 52 merely because members of the public would be caused to wonder whether it might not be the case the two products came from the same source: see Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd, above, at ATPR 43,789; Philips Electronics NV v Remington Products Australia Pty Ltd (1997) 39 IPR 283; (1997) ATPR ¶41–595; BC9705539; Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2008) 77 IPR 1; (2008) ATPR ¶42-235; [2008] FCA 607; BC200803337 at [45] per Bennett J. In Parkdale Custom Built Furniture Pty Ltd v Puxu, above, Brennan J explained how an erroneously held assumption held by a consumer would not suffice. See also McIlhenny Co v Blue Yonder Holdings Pty Ltd (1997) 149 ALR 496; 39 IPR 187; (1997) ATPR 41-587; BC9704514. In Parkdale Custom Built Furniture Pty Ltd v Puxu, above, Brennan J stated at ATPR at 43,798–9: Therefore, a manufacturer who exercises his freedom to manufacture goods according to a design

which is not protected by valid registration does not engage in conduct which is misleading or deceptive or which is likely to mislead or deceive. If consumers or potential consumers believe that all goods of a particular design are manufactured by him who first establishes a market reputation as a manufacturer of those goods, that belief is or may be erroneous. The error may be attributed to a preconceived belief that the manufacturer who first establishes a market reputation has a monopoly in the manufacture and sale of goods of that kind but, unless the manufacturer has acquired a statutory monopoly, that belief is also erroneous and the error flows from a misconception of law. A later manufacturer who does no more than exercise his freedom to manufacture and sell goods made in accordance with the design in the public domain does not mislead or deceive and if a consumer has an erroneous preconceived belief that the first manufacturer has a monopoly, a false assumption by the consumer as to the source of the later manufacturer’s goods is self-induced.

For conduct to be misleading or deceptive it must be conduct which is not only confusing but which leads the appropriate class of persons to be misled or deceived: McDonalds System of Australia Pty Ltd v McWilliams Wines Pty Ltd (No 2) (1979) 28 ALR 236; 41 FLR 436; (1979) [page 1346] ATPR ¶40-140 at 18,518; Fire Nymph Products Ltd v Jalco Products (WA) Pty Ltd (1983) 47 ALR 355; 1 IPR 79; 74 FLR 102; (1983) ATPR ¶40-353; Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; 111 ALR 61; (1993) ATPR ¶41-199; BC9203820; Aussie Airlines Pty Ltd v Australian Airlines Ltd (No 2) (1996) 67 FCR 451; (1996) ATPR 41-512; BC9602787; Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; (2001) ATPR ¶41-794; [2000] FCA 1572; BC200006717; Mark Foys Pty Ltd v TVSN (Pacific) Ltd (2000) 49 IPR 303; (2001) ATPR ¶41-795; [2000] FCA 1626; BC200006942. However in McDonalds System of Australia Pty Ltd v McWilliams Wines Pty Ltd (No 2), above, at ATPR 18,518 Franki J stated that the words “or is likely to mislead or deceive” in s 52(1) suggests that conduct which is confusing to the relevant persons may be said to be likely to mislead or deceive those persons. The better approach would seem to be to examine the conduct and determine whether the appropriate class of persons is actually misled or deceived. Where, after making such an inquiry the court finds that the relevant persons are confused, it should then investigate the cause of that confusion to determine whether it is the result of misleading or deceptive conduct on the part of the respondent: Chase Manhattan Overseas Corporation v Chase Corp Ltd (1985) 9 FCR 129; 63 ALR 345; 6 IPR 59;

(1986) ATPR ¶40-661 at 47,337. In Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; (1982) ASC 55-207; (1982) ATPR ¶40-303; 2 TPR 48, the majority of the court indicated that there is no general proposition that the intervention of an erroneous assumption between conduct and any misconception necessarily destroys a necessary chain of causation such that the conduct itself cannot properly be described as misleading or deceptive or as being likely to mislead or deceive. The test is to determine whether the confusion arose because of misleading or deceptive conduct on the part of the respondent: Taco Co of Australia Inc v Taco Bell Pty Ltd, above, ATPR at 43,752. See also Campomar Sociedad Ltd v Nike International Ltd (2000) 169 ALR 677; 46 IPR 481; (2000) ATPR (Digest) ¶46-201; [2000] HCA 12; BC200000767; See Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2014] FCA 568 at [404] per Murphy J. [14,590.125] Acting in reliance on a representation Note: cases in this paragraph that were decided under TPA s 52 are relevant to the interpretation of ACL s 18. Where a representation induces a person to act upon it, it can be assumed that the person has acted in reliance on the representation. This assumption is one of fact and may be rebutted by other inconsistent evidence: Jones v Acfold Investments Pty Ltd (1985) 6 FCR 512; 59 ALR 613; (1985) ASC 55398; (1985) ATPR ¶40-561; Nobile v National Australia Bank Ltd (1987) ASC 55-580; (1987) ATPR ¶40-787; Sutton v AJ Thompson Pty Ltd (in liq) (1987) 73 ALR 233; (1987) ASC 55-583; (1987) ATPR ¶40-789; Marks v GIO Australia Holdings Ltd (1996) 63 FCR 304; (1996) ASC (Digest) 56343; (1996) ATPR ¶41-471; BC9600181; (appeal) GIO Australia Holdings Ltd v Marks (1996) 70 FCR 559; (1997) ATPR ¶41-544; BC9605543; (High Court) Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; 158 ALR 333; 73 ALJR 12; (1998) ATPR ¶41-665; Como Investments Pty Ltd (in liq) v Yenald Nominees Pty Ltd [1997] ANZ ConvR 466; (1997) ATPR ¶41-550; BC9700056; Builders Warehouse Group Ltd v Multinail Australia Pty Ltd (FCA, Spender, O’Loughlin and Cooper JJ, No 0314/98, 2 April 1998, unreported, BC9801060); Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545; (1999) ATPR ¶41-687 at 42,791; [1999] FCA 357; BC9901296; Equuscorp Pty Ltd v Kamisha Corp Ltd (1999) ATPR ¶41-697 at 42,894; [1999] FCA 681; BC9902697; Charter Pacific Corp Ltd v Belrida

Enterprises Pty Ltd [2002] QSC 254; BC200205011 at [595] per Fryberg J. It may be appropriate to infer reliance in the absence of testimonial evidence from the relier: Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471 at 481-3; 110 ALR 535; (1992) ATPR ¶41-198 at 40,660–2; BC9203796; Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242 at 266-9; 125 FLR 151; (1995) ATPR ¶41-403 at 40,458–61; BC9504308; Como Investments Pty Ltd (in liq) v Yenald Nominees Pty Ltd, above, at 43,619–20; Australian Competition and Consumer Commission v Internic Technology Pty Ltd (1998) 42 IPR 225; (1998) ATPR ¶41-646 at 41,163; BC9803245. [page 1347] [14,590.130] Statements which are literally true Note: cases in this paragraph that were decided under TPA s 52 are relevant to the interpretation of ACL s 18. A statement which is literally true may nevertheless be misleading or deceptive: TEC & Tomas (Aust) Pty Ltd v Matsumiya Computer Co Pty Ltd (1984) 1 FCR 28; 53 ALR 167; 2 IPR 81; (1984) ATPR ¶40-438 at 45,029; Chase Manhattan Overseas Corporation v Chase Corp Ltd (1985) 9 FCR 129; 63 ALR 345; 6 IPR 59; (1986) ATPR ¶40-661 at 47,336; Trotman Australia Pty Ltd v Hobsons Press (Aust) Pty Ltd (1991) 22 IPR 397; BC9103409; National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 49 ACSR 369; 61 IPR 420; [2004] FCAFC 90; BC200402007 at [49] per Jacobson and Bennett JJ; Primus Telecommunications Pty Ltd v Kooee Communications Pty Ltd [2011] FCA 8; BC201100064 at [36] per Marshall J. See Bennett v Elysium Noosa Pty Ltd (in liq) (2012) 202 FCR 72; [2012] FCA 211; BC201201829 per Reeves J. This may occur, for example, where the statement which is literally true conveys a second meaning which is false: World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181; 2 TPC 303; (1977) ATPR ¶40-040 at 17,436, see also B & W Cabs Ltd v Brisbane Cabs Pty Ltd (1991) 30 FCR 177; 21 IPR 563; (1991) ATPR ¶41-126; BC9103270. In Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; 18 ALR 639; (1978) ATPR 40067 at 17,690; BC7800029 Stephen J cited the example of an advertisement

for an opera at which a named and famous prima donna would appear, where the actual performer was an unknown person bearing by chance the name of the famous prima donna. In that circumstance the announcement would be literally true but deceptive because it would convey to others something more than the literal meaning which the words spelled out. It is irrelevant to the issue of whether a statement is misleading that the truth could have been ascertained upon enquiry: Trotman Australia Pty Ltd v Hobsons Press (Aust) Pty Ltd, above. A document which when read as a whole is factually true and accurate may still be capabale of being misleading if it contains a potentially misleading primary statement which is corrected elsewhere in the document but without the reader’s attention being adequately drawn to the correction: National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 49 ACSR 369; 61 IPR 420; [2004] FCAFC 90; BC200402007 at [50] per Jacobson and Bennett JJ; Primus Telecommunications Pty Ltd v Kooee Communications Pty Ltd [2011] FCA 8; BC201100064 at [36] per Marshall J. [14,590.135] “Without Prejudice” negotiations Note: cases in this paragraph that were decided under TPA s 52 are relevant to the interpretation of ACL s 18. For Pt V of the TPA, see now ACL Ch 2. In Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86; 98 ALR 659; (1991) ATPR ¶41-065; BC9003697 the applicant sought production of notes taken at a “without prejudice” meeting. Hill J ordered discovery of those notes. In relation to the status of “without prejudice” negotiations Hill J said (ATPR at 52,019): It seems to me that if, in the course of “without prejudice” negotiations, a party to those negotiations engages in conduct which is misleading or deceptive or likely to mislead or deceive contrary to s 52 of the Trade Practices Act and as a result the other party to the negotiations relying, for example, upon the misleading or deceptive conduct suffers loss, proof of the negotiations should not be rendered impossible by the “without prejudice” rule. There is, in such a case, no longer the same subject matter in dispute between the parties as was in dispute at the time of the negotiation. A fortiori where the party suffering damage was not at all a party to the negotiations. The public policy to be found in Pt V of the Trade Practices Act is not to be rendered nugatory by permitting a party to hide behind the fact that his or her conduct, which is misleading or deceptive, occurred during the course of “without prejudice” negotiations. A party cannot, with impunity, engage in misleading or deceptive conduct resulting in loss to another under the cover of “without prejudice” negotiations.

See also Rosebanner Pty Ltd v EnergyAustralia (2009) 223 FLR 460; [2009] NSWSC 43; BC200900802 at [408] per Ward J.

[page 1348] For a useful discussion of the policy basis of the ‘without prejudice’ rule see Pihiga Pty Ltd v Roche [2011] FCA 240; BC201101349 per Lander J. [14,590.140] Assessing the overall nature of statements and representations Note: cases in this paragraph that were decided under TPA s 52 are relevant to the interpretation of ACL s 18. Where statements have been made either before or in the course of complex negotiations for a significant transaction for the sale and purchase of property, those statements must not be considered in isolation but in the overall context of the transaction: Pappas v Soulac Pty Ltd (1983) 50 ALR 231; (1983) ASC 55-274; (1983) ATPR ¶40-411 at 44,782; Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193; (1987) ATPR (Digest) ¶46-030 at 53,086; Australian Competition and Consumer Commission v Oceana Commercial Pty Ltd [2004] ANZ ConvR 67; (2004) ATPR (Digest) ¶46-244; [2003] FCA 1516; BC200307835 at [173] per Kiefel J; Quiet Achiever Investments Pty Ltd v MDM Properties Pty Ltd [2006] VSC 365; BC200608019 at [56] per Whelan J. Conduct to be considered in its overall context This principle is not restricted to the sale and purchase of property but applies equally to any conduct which has the capacity to mislead or deceive. That is, the conduct must be considered in its overall context having regard to all the relevant circumstances: see Treloar v Ivory (1991) 4 WAR 318; (1991) ATPR ¶41123 at 52,818; Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; (1982) ASC 55-207; (1982) ATPR ¶40-303 at 43,749; 2 TPR 48; Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84; 117 ALR 393; (1993) ATPR ¶41-266 at 41,594; BC9305001; Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326; 34 IPR 176; (1996) ATPR ¶41-478; BC9600587; Australian Competition & Consumer Commission v Gary Peer & Assocs Pty Ltd (2005) 142 FCR 506; 65 IPR 1; [2005] FCA 404; BC200502001 at [54] per Sundberg J; 260 Oxford Street Pty Ltd v Premetis [2006] NSWCA 96; BC200603503 at [83] per Tobias JA (Basten JA and Young CJ agreeing); Australian Competition and Consumer Commission v Telstra Corp Ltd (2007) 244 ALR 470; (2007) ATPR ¶42-203; [2007] FCA 1904;

BC200711520 at [116] per Gordon J; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; 257 ALR 610; [2009] HCA 25; BC200906574 at [102] per Gummow, Hayne, Heydon and Kiefel JJ; Culligan v Aco Pty Ltd [2009] NSWCA 290; BC200908574 at [45] per Basten JA, Young JA and Sackville AJA; Wingecarribee Shire Council v Lehman Brothers Australia Ltd [2012] FCA 1028; BC201207287 per Rares J; Cunningham v Westpac Banking Corporation Ltd [2012] FCA 1088; BC201207631 per Reeves J; Australian Competition and Consumer Commission v EDirect Pty Ltd [2012] FCA 1045; BC201208139 per Reeves J; Forty Two International Pty Ltd v Barnes (2014) 97 ACSR 450; [2014] FCA 85; BC201400563 per Griffiths J; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 304 ALR 186; 88 ALJR 176; [2013] HCA 54; BC201315601 at [40] per French CJ, Crennan, Bell and Keane JJ; Australian Competition and Consumer Commission v DuluxGroup (Australia) Pty Ltd [2014] FCA 1158 at [7] per Siopis J. Advertisements and the dominant message In the case of advertisements, the whole advertisement should be considered and it would be wrong to select words which alone may mislead but when viewed in their context are not misleading or are otherwise qualified in the rest of the advertisement: Parkda