Miller's Australian Competition & Consumer Law Annotated 2017. [39 ed.] 9780455500140, 0455500142

Citation preview

Miller’s Australian Competition and Consumer Law Annotated

Thomson Reuters (Professional) Australia Limited 19 Harris Street PYRMONT NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] http://www.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS NORTH AMERICA Thomson Reuters Eagan United States of America

ASIA PACIFIC Thomson Reuters Sydney Australia

LATIN AMERICA Thomson Reuters São Paulo Brazil

EUROPE Thomson Reuters London United Kingdom

Miller’s Australian Competition and Consumer Law Annotated 39TH EDITION

by RUSSELL V MILLER AM LLB (Hons) Senior Advisor in Competition Policy and Regulation, Centre for Strategy and Governance Member, Minter Ellison Australasian Competition Group

by ROD SIMS Chairman Australian Competition and Consumer Commission

LAWBOOK CO. 2017

Published in Sydney by Thomson Reuters (Professional) Australia Limited 19 Harris Street, Pyrmont, NSW 2009 First edition ........................................... second impression .............................. Second edition ....................................... Third edition ......................................... Fourth edition ........................................ Fifth edition .......................................... Sixth edition .......................................... Seventh edition ...................................... Eighth edition ........................................ Ninth edition ......................................... Tenth edition ......................................... Eleventh edition..................................... second impression .............................. Twelfth edition ...................................... second impression .............................. third impression ................................. Thirteenth edition .................................. Fourteenth edition .................................. Fifteenth edition .................................... Sixteenth edition .................................... Seventeeth edition.................................. Eighteenth edition ..................................

1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1990 1991 1991 1992 1993 1993 1994 1995 1996 1997

Nineteenth edition.................................. Twentieth edition ................................... Twenty-first edition ................................ Twenty-second edition............................ Twenty-third edition ............................... Twenty-fourth edition ............................. Twenty-fifth edition ............................... Twenty-sixth edition .............................. Twenty-seventh edition........................... Twenty-eighth edition ............................ Twenty-ninth edition .............................. Thirtieth edition ..................................... Thirty-first edition.................................. Thirty-second edition ............................. Thirty-third edition ................................ Thirty-fourth edition .............................. Thirty-fifth edition ................................. Thirty-sixth edition ................................ Thirty-seventh edition ............................ Thirty-eighth edition .............................. Thirty-ninth edition ................................

1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 June 2010 2011 2012 2013 2014 2015 2016 2017

National Library of Australia Cataloguing-in-Publication entry ISSN 1466-0130 ISBN 978–0–455–50014–0 © 2017 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All ACCC material in this book is reproduced by permission. It is subject to Commonwealth of Australia copyright. Product Developer: Catherine Fitzgerald Project Editors: Prudence Allan, Vanessa Schlenert Editorial and Production Team: Angela Bandiera, Paul Godwin, David Graham, Jinhong Tang, Sonia Tulse Index: Puddingburn Publishing Services Pty Ltd Printed by Ligare Pty Ltd, Riverwood, NSW, Australia This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: www.pefc.org.

FOREWORD By Rod Sims Chairman of the Australian Competition and Consumer Commission January 2017 Miller’s Australian Competition and Consumer Law Annotated is a constant companion of so many people in all ACCC meetings so I am delighted to introduce the 39th edition. Whether the reader is seeking to understand court outcomes, tribunal decisions or legislative changes, Millers paints a clear picture of Australia’s competition and consumer laws. The profit motive provides a powerful incentive for businesses to outdo each other on price, product and service. The profit motive can greatly benefit us all as consumers, but this can only occur if there is broad compliance with the Competition and Consumer Act 2010 (the Act). For this to occur there also has to be strong and visible enforcement of the Act so that businesses know and respect what they can and cannot do, and consumers can have faith in the operation of the market economy. First criminal cartel prosecution under the Act This edition of Miller’s contains a reference to a significant milestone for the Act; the first criminal cartel prosecution against a corporation under s 44ZZRG. On 14 July 2016, the Commonwealth Director of Public Prosecutions (CDPP) laid criminal charges against Nippon Yusen Kabushiki Kaisha (NYK), a global shipping company based in Japan in relation to a cartel involving the shipment of cars, trucks, and buses to Australia.1 NYK subsequently pleaded guilty and a sentencing hearing will occur in April 2017. The Australian Competition and Consumer Commission (ACCC) investigates cartel conduct, manages the immunity process, and refers serious cartel conduct to the CDPP to consider prosecution. Amendments criminalising cartel conduct came into force in July 2009 and the ACCC has taken a deliberately cautious approach in order to lay strong foundations for a continuing program of cases. Indeed, in November 2016, the CDPP laid criminal charges against a second company, Japanese-based Kawasaki Kisen Kaisha (K-Line), alleging involvement in the same cartel. High Court rules on online competition In late 2016, the High Court of Australia allowed the ACCC’s appeal in relation to Flight Centre Travel Group Ltd’s attempt to induce three international airlines to enter into price-fixing arrangements between 2005 and 2009 in relation to air fares offered online by the airlines that were cheaper than those offered by Flight Centre.2 At the core of the matter was the question of whether Flight Centre and the airlines are legally considered to be competitors. The ACCC brought the case because it considered that they were in competition with one another to sell flights to consumers, and the High Court agreed. The High Court decision will provide important guidance for the application of competition laws in Australia to other situations where competing offers are made directly to consumers by both agents and their principals. It is likely to be particularly relevant when businesses make online sales in competition with their agents. The matter will now return to the Full Federal Court for determination of the appeal and cross-appeal in relation to penalty brought by the parties. Harper reforms take shape In another major development, the government is taking steps to amend the Act to implement a broad range of reforms as recommended by the Harper Review. In December 2016, the government introduced a Bill containing amendments to the misuse of market power provisions (s 46) of the Act. The Bill also includes “consequential amendments” to repeal the telecommunications anti-competitive conduct provisions in Part © 2017 THOMSON REUTERS

v

Miller’s Australian Competition and Consumer Law Annotated

XIB of the Act. The government intends to introduce the remaining amendments covered in its Exposure Draft into parliament in early 2017. This includes proposed changes creating a prohibition against concerted practices that substantially lessen competition as well as key changes to the merger and non-merger authorisation and the notification provisions, as well as the National Access Regime in Part IIIA. Separately, the ACCC has acted on the Harper Review recommendations by updating our guidelines on the use of s 155 powers and implementing a Media Code of Conduct. Penalties must be relevant Specific and general deterrence is a critical objective of pecuniary penalties. To deter future contraventions, both the statutory maximum penalty and the penalties imposed by the Courts should act as a strong deterrent. For example, the ACCC has appealed the penalties imposed by the trial judge in the long-running Cement Australia case. We will argue to the Full Court of the Federal Court that the $17.1 million in penalties imposed against Cement Australia are inadequate, and not of appropriate deterrent value; we had submitted that penalties of more than $90 million were appropriate. Penalties must be commercially relevant and high enough for businesses not to see them as merely an acceptable cost of doing business. The same logic applies to penalties in consumer cases. At first instance, the Federal Court found Reckitt Benckiser Pty Ltd engaged in misleading conduct between 2011 and 2015 by making representations that Nurofen Specific Pain products were each formulated to specifically treat a particular type of pain, when this was not the case, and imposed penalties of $1.7 million. On appeal, the ACCC submitted to the Full Court that this level of penalty imposed on a company the size of Reckitt Benckiser did not act as an adequate deterrent, particularly in light of the widespread nature of the conduct and the substantial sales and profit associated with the misconduct. In December, the Full Court upheld the ACCC’s appeal and ordered a penalty of $6 million. This is the highest penalty awarded under the Australian Consumer Law for misleading conduct. On a different front, the Consumer Affairs Australia and New Zealand (CAANZ) review of the ACL is considering whether the ACL penalty regime remains appropriate. The ACCC considers that the current $1.1 million maximum penalties available for most contraventions of the ACL are too low to have a sufficient deterrent effect, particularly for large corporations. The ACCC considers that the maximum consumer law penalties should be comparable to those for contraventions of the competition laws. CAANZ is considering many issues as part of the review and will hand down a report in March 2017. The Productivity Commission is also examining the regulatory model underpinning the ACL with a report also expected in March. Signalling and delivering on priorities We have had several standout outcomes in enforcement proceedings decided this year. Each year we are clearly signalling our enforcement and compliance priorities, and acting to address consumer harm. Product safety is a prime example. In early 2016, the Federal Court ordered Woolworths Ltd to pay more than $3 million in penalties for breaches of the ACL relating to safety issues with house brand products.3 The defects in Woolworths’ products caused serious injuries, including burns from hot oil when the handle of the deep fryer broke and chemical burns caused by a defective cap on bottles of drain cleaner. Woolworths made admissions and cooperated in resolving the case, however, the Federal Court ordered a substantial penalty of $ 3.057 million given the seriousness of the conduct. The outcome comes at a time when the ACCC is encouraging all companies to pay close attention to quality assurance and be proactive in detecting and removing unsafe products from their shelves. In recent years, the ACCC has also focused on consumer issues affecting vulnerable and disadvantaged members of the community, in particular people who are newly arrived in Australia. We achieved an important outcome in this area drawing on various ACL remedies. In March, the Federal Court found that Clinica Internationale Pty Ltd (Clinica) and Mr Radovan Montague Laski, a director and the sole shareholder of Clinica, made false or misleading representations and engaged in unconscionable conduct in relation to a program allegedly offering permanent residency.4 Clinica offered migrants training and sponsored employment in the cleaning industry under a program which it claimed would lead to permanent

vi

Miller’s Australian Competition and Consumer Law Annotated

Foreword

Australian residency. Approximately 90 migrants paid fees totalling more than $760,000 to participate in the program, with many paying in excess of $10,000 each. The Court ordered Clinica and Mr Laski to refund payments made by migrants and to pay penalties totalling $1.025 million ($700,000 and $325,000 respectively). The Court also disqualified Mr Laski from managing corporations for five years. The Full Federal Court is considering an appeal from Mr Laski and related entities on some of the orders made by the trial judge. There was also much interest in the so-called “Mind the Gap” judgment with the Federal Court dismissing the ACCC’s proceedings against Woolworths Ltd.5 In December 2014, Woolworths developed the “‘Mind the Gap”’ scheme to reduce a significant half-year gross profit shortfall, with category managers and buyers contacting many suppliers to ask for urgent payments ranging from $4,291 to $1.4 million. The Federal Court ruled that Woolworths’ requests for these payments were not unconscionable within the meaning of the ACL. Like the Flight Centre decision, the Federal Court’s ruling in ACCC v Valve Corp will also have lasting significance for the modern day marketplace. The judgment provides greater certainty where overseas-based online platforms supply digital goods to Australian consumers. In March 2016, the Court found that Valve, through its online game distribution platform Steam, and its Steam website, engaged in misleading or deceptive conduct and made false or misleading representations to Australian consumers about their consumer guarantee rights under the ACL. The court’s decision reinforces that foreign-based businesses selling goods and/or services to Australian consumers can be subject to the ACL, including the consumer guarantee provisions. It is also the first time the Courts have applied the extended definition of “goods” in the ACL to include computer software. In December, the Federal Court imposed penalties of $3 million against Valve. Key changes to the law This edition of Miller’s also outlines some important changes to the Act. On 1 July 2016, a new country of origin food labelling system started under the ACL. The new system will require most foods produced, grown or made in Australia to display a label with the kangaroo in a triangle symbol, as well as a bar chart. ACL regulators are responsible for enforcing compliance with the new laws after a two-year transition. We also have new laws banning excessive payment surcharges. The ban essentially stops businesses from charging customers more than what it costs the business to process the payment. The ban has a staged introduction applying to large businesses from 1 September 2016 and to all other businesses from 1 September 2017. From 12 November 2016, the ACL extended to protect small businesses from unfair terms in standard form contracts. If the court finds a term unfair, that particular term will be void and treated as if it never existed. In 2017, the ACCC is moving from its education phase to an enforcement approach where we will be targeting unfair contract terms. Large and complex merger reviews In terms of merger assessments, 2016 was another busy year for the ACCC with many large and complex matters coming across our desk, including JB Hi-Fi Ltd’s proposed acquisition of the Good Guys Discount Warehouses; Iron Mountain Incorporated’s proposed acquisition of Recall Holdings; and Metcash’s proposed acquisition of Home Timber & Hardware. Significantly, a number of proposals were abandoned after competition concerns were raised including a Brookfield-led consortium’s proposal to acquire Asciano Ltd. The ACCC subsequently approved a restructured joint proposal for Brookfield and Qube led consortia to acquire Asciano. In the year ahead, the ACCC will look closely at arguments put forward by merger parties where they say there will not be a substantial lessening of competition because one of the firms is failing. In conducting our informal merger assessments, we will be looking to strike a balance in making prompt decisions while also allowing sufficient time to gather evidence in preparation for litigation in contentious matters.

© 2017 THOMSON REUTERS

vii

Miller’s Australian Competition and Consumer Law Annotated

The authorisation and notification functions in Pt VII of the Act require the ACCC to look at whether there is a net public benefit with the conduct for which authorisation is sought or has been notified. The application by a number of banks to collectively bargain and boycott Apple on Apple Pay is one of the important and complex authorisations considered by the ACCC in 2016. We are proposing to make a final decision in early 2017. Market studies feature prominently It is not wise to imply, as some do, that where there is no clear breach of the Act, the market must always be working well. We think market studies can, in appropriate cases, be an important safety valve enabling the credible concerns of stakeholders to be examined. Market studies can also lead to policy recommendations, enforcement investigations and help identify whether other tools may address market failures such as information asymmetry concerns. The ACCC completed a very resource intensive inquiry into the east coast gas market. The ACCC used powers available under Pt VIIA to gather information and cut through some of the opaqueness of the market, and the cloak of confidentiality that has left previous inquiries to some extent incomplete. We made a number of recommendations that the CoAG Energy Council and state and territory governments considered to alleviate gas market issues. We also increased our focus on the agriculture sector. The ACCC conducted a series of workshops with fruit and vegetable growers and wine producers across the country. We are close to completing a market study into the beef and cattle sector and, following a direction under s 95H(1) of the Act, we have started a formal inquiry into Australia’s dairy industry. The ACCC continues to shine a light on the factors driving petrol prices in regional areas through targeted market studies. This year we handed down reports on the petrol markets in Launceston and Armidale. Following a direction under s 95ZE of the Act, the ACCC also published quarterly petrol monitoring reports. In 2016, we launched an industry wide study of new car retailing which will examine important competition and consumer issues. This market study will examine practices relating to consumer guarantees, warranties and new cars; fuel consumption; post-sale service arrangements and access to repair and service information and data. We have also completed our annual report on the private health insurance industry as directed by a Senate order. Our report focused on how insurers notify their customers about reductions in their coverage and benefits. Finally, in 2016 we announced a major study into the rapidly changing communications industry. We recognise the communications sector is one that all Australians have an interest in, and one that facilitates economic growth. Importantly, the study will also allow the ACCC to consider a wide range of interrelated issues that go to the proper functioning of the market. Lines of inquiry in communications As part of our regulatory work under Pt XIC of the Act, the ACCC started a declaration inquiry to determine whether to declare a wholesale domestic mobile roaming service. The inquiry will look at whether the difference in geographic coverage provided by Telstra, Optus and Vodafone is having a negative effect on competition for mobile services, and whether declaration of the service would be in the long-term interests of consumers. In a separate inquiry, the ACCC proposed to continue to declare the wholesale asymmetric digital subscriber line (ADSL) service for a further five years until February 2022. We will move to make a final decision in 2017. We also made a decision to declare a superfast broadband access service (SBAS), which should allow retailers to access certain non-NBN fixed line networks capable of supporting broadband services with a download rate of 25 megabits per second or more. Also in communications, the Federal Court is due to hand down a decision after Telstra sought judicial review of the ACCC’s access determination lowering prices for services provided over Telstra’s copper

viii

Miller’s Australian Competition and Consumer Law Annotated

Foreword

network by 9.4 per cent. We also made access determinations lowering prices for the declared mobile terminating access service and domestic transmission capacity service. Following on from the SBAS declaration, we commenced consultation on an access determination for that service in conjunction with the related local bitstream access service. Shipping channel declared In June 2016, the Australian Competition Tribunal declared the shipping channel service operated Port of Newcastle Operations Pty Ltd under Pt IIIA of the Act. Where an access seeker and provider cannot agree on the terms and conditions of access to a declared service, either party may request the ACCC to arbitrate. This occurred in November when Glencore Coal Assets Australia Pty Ltd requested the ACCC to arbitrate an access dispute with the Port of Newcastle Operations. At the same time, the declaration of the shipping channel service is the subject of an application for judicial review by the Full Federal Court in which the ACCC was an intervenor. If that challenge is successful, the arbitration process will stop. Also under Pt IIIA, the ACCC undertook assessment of a replacement access undertaking for the Hunter Valley rail network. It is an honour to introduce Miller’s on behalf of the ACCC. As you can tell by the weight of this edition, there is always something new in competition and consumer law in Australia. We are looking forward to another big and fascinating year in 2017. 1 2 3 4

Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha NSD1143/2016. Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd [2016] HCA 49. Australian Competition and Consumer Commission v Woolworths Ltd [2016] FCA 44. Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (In liq) (No 4) [2016] FCA 286. 5 Australian Competition and Consumer Commission v Woolworths Ltd [2016] FCA 1472.

© 2017 THOMSON REUTERS

ix

PREFACE Although 2016 promised to be a year of significant legislative change following the Government’s response to the Harper Review, by year-end (with one exception) only a discussion draft of the post-Harper legislation had been issued. The exception was introduction of a Bill in December to amend the controversial misuse of market power provision – s 46. That Bill, which is likely to re-enliven the controversy that raged over the Harper recommendations, is planned to come into effect mid-year assuming it passes the Parliament. Although the post-Harper legislation was not in final form by the cut-off date for this edition, the discussion draft and Bill will provide practitioners, academics and students with a window on what the law is likely to be. This edition includes annotations on each of those significant post-Harper changes. Turning to the Australian Consumer Law (“ACL”), the extent to which it has so quickly become a main-stream feature in consumer litigation in State and Territory courts is notable. The ACL featured, or was cited, in over 60 cases in those courts in 2016, with the NSW Court of Appeal and the NSW Supreme Court accounting for almost 70% of the cases. While space does not permit inclusion of all of those State and Territory decisions, a growing number do appear in this edition and more will appear in the online edition. Legislative change also occurred in the consumer area. First, a new Pt IVC was inserted in the Act to deal with excessive surcharges on credit and debit cards. The new provisions, in force from 1 September 2016, apply to retailers with gross revenue of >$25 million, assets of >$12.5 million or more than 50 employees. From 1 September 2017, the provisions will apply to all retailers. The second is the unfair contract terms law, amended in 2015 to extend to business-to-business standard form contracts, but only with effect from 12 November 2016. There was no abatement in court decisions considered for this edition. Two cases are of particular note. In December, the High Court handed down the decision in Flight Centre. The majority decided that the travel agency group was in competition with the airlines it represented. The full ramifications for principal-agent relationships, especially in the on-line environment, have not yet been assessed. The second was a landmark case – the first criminal prosecution under the cartel provisions. Nippon Yusen Kabushiki Kaisha pleaded guilty to criminal cartel conduct in relation to the transportation of vehicles to Australia. The plea obviated an opportunity to discover how the cartel provisions might work in practice. As with previous editions, constraints on the size of the book necessitated removal of some older examples in earlier editions. Where cases have been removed that is noted. Unconstrained by size, the online version contains all cases removed from the current edition (and earlier editions). It is updated regularly during the year. I continue to be indebted to readers who bring to my attention cases and articles worth considering for inclusion, and also those who draw my attention to inevitable errors and omissions. I am particularly grateful for the work of the very professional editorial team at Thomson Reuters who, throughout the year, produce this work in each of its formats. This edition includes all amendments to the Act and Regulations up to 1 January 2017. RVM Sydney January 2017

© 2017 THOMSON REUTERS

xi

TABLE OF CONTENTS Foreword ......................................................................................................................................................... v Preface ........................................................................................................................................................... xi Table of Contents ......................................................................................................................................... xiii About this Publication .................................................................................................................................. xv Table of Cases .............................................................................................................................................. xxi COMPETITION AND CONSUMER ACT 2010 ...................................................................................... 3 Table of Provisions ......................................................................................................................................... 3 Table of Amending Legislation .................................................................................................................... 40 Part I – Preliminary ...................................................................................................................................... 57 Part II – The Australian Competition and Consumer Commission .......................................................... 159 Part IIA – The National Competition Council .......................................................................................... 183 Part III – The Australian Competition Tribunal ........................................................................................ 193 Part IIIAA – The Australian Energy Regulator (AER) ............................................................................. 203 Part IIIAB – Application of the finance law ............................................................................................. 219 Part IIIA – Access to services .................................................................................................................... 221 Part IV – Restrictive trade practices .......................................................................................................... 353 Part IVB – Industry codes .......................................................................................................................... 561 Part V – Carbon tax price reduction obligation ........................................................................................ 581 Part VI – Enforcement and remedies ......................................................................................................... 601 Part VIA – Proportionate liability for misleading and deceptive conduct ............................................... 757 Part VIB – Claims for damages or compensation for death or personal injury ...................................... 763 Part VII – Authorisations, notifications and clearances in respect of restrictive trade practices ............ 777 Part VIIA – Prices surveillance .................................................................................................................. 911 Part VIII – Resale price maintenance ........................................................................................................ 939 Part IX – Review by Tribunal of Determinations of Commission ........................................................... 953 Part X – International liner cargo shipping ............................................................................................... 979 Part XI – Application of the Australian Consumer Law as a Law of the Commonwealth ................... 1039 Part XIAA – Application of the Australian Consumer Law as a Law of the State or Territory ........... 1105 Part XIA – The Competition Code .......................................................................................................... 1109 Part XIB – The Telecommunications Industry: Anti-competitive conduct and record-keeping rules ... 1115 Part XIC – Telecommunications access regime ...................................................................................... 1185 Part XID – Search and seizure ................................................................................................................. 1295 Part XII – Miscellaneous .......................................................................................................................... 1311 Part XIII – Application and transitional provisions relating to the competition provisions .................. 1365 Schedule 1 – The Schedule Version of Part IV [Not Reproduced] ........................................................ 1369 Schedule 2 – The Australian Consumer Law ...................................................................................... 1371 Chapter 1 – Introduction .......................................................................................................................... 1383 Chapter 2 – General protections .............................................................................................................. 1418 Part 2–1 – Misleading or deceptive conduct ........................................................................................... 1418 Part 2–2 – Unconscionable conduct ......................................................................................................... 1537 Part 2–3 – Unfair contract terms .............................................................................................................. 1568 Chapter 3 – Specific protections .............................................................................................................. 1580 Part 3–1 – Unfair practices ...................................................................................................................... 1580 Part 3–2 – Consumer transactions ............................................................................................................ 1634 Part 3–3 – Safety of consumer goods and product related services ....................................................... 1685 Part 3–4 – Information standards ............................................................................................................. 1713 Part 3–5 – Liability of manufacturers for goods with safety defects ..................................................... 1718 Chapter 4 – Offences ................................................................................................................................ 1731 Part 4–1 – Offences relating to unfair practices ...................................................................................... 1731

© 2017 THOMSON REUTERS

xiii

TABLE OF CONTENTS

Part 4–2 – Offences relating to consumer transactions ........................................................................... 1751 Part 4–3 – Offences relating to safety of consumer goods and product related services ...................... 1767 Part 4–4 – Offences relating to information standards ............................................................................ 1775 Part 4–5 – Offences relating to substantiation notices ............................................................................ 1778 Part 4–6 – Defences .................................................................................................................................. 1780 Part 4–7 – Miscellaneous ......................................................................................................................... 1786 Chapter 5 – Enforcement and remedies ................................................................................................... 1790 Part 5–1 – Enforcement ............................................................................................................................ 1790 Part 5–2 – Remedies ................................................................................................................................. 1794 Part 5–3 – Country of origin representations .......................................................................................... 1858 Part 5–4 – Remedies relating to guarantees ............................................................................................ 1865 Part 5–5 – Liability of suppliers and credit providers ............................................................................ 1881 Chapter 6 – Application and Transitional Provisions .............................................................................. 1888 Part 1 – Application and transitional provisions relating to the Consumer Credit Legislation Amendment (Enhancements) Act 2012 ................................................................................................................ 1888 Part 1A – Application provision relating to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 .................................................................................................... 1889 COMPETITION AND CONSUMER REGULATIONS 2010 ........................................................... 1891 Table of Provisions ................................................................................................................................... 1891 Table of Amending Legislation ................................................................................................................ 1895 Part I – Preliminary .................................................................................................................................. 1900 Part 2 – General ........................................................................................................................................ 1902 Part 2A – Review by Tribunal of access determinations ........................................................................ 1935 Part 2B – Telecommunications access regime ......................................................................................... 1939 Part 3 – International liner cargo shipping .............................................................................................. 1942 Part 4 – Anti-competitive disclosure of pricing and other information ................................................ 1949 Part 5 – Authorisations, notifications and clearances in respect of restrictive trade practices – prescribed matters .............................................................................................................................................. 1951 Part 6 – Australian Consumer Law .......................................................................................................... 1955 Part 7 – Transitional matters – Australian Consumer Law ..................................................................... 1962 Schedule 1 – Forms – General [Not reproduced] ................................................................................... 1964 Schedule 1A – Matters for which no fee is payable ............................................................................... 1965 Schedule 1B – Fees payable to Commission or Tribunal for applications and notices ........................ 1966 Schedule 2 – Fees – registration of conference agreements ................................................................... 1968 Schedule 3 – Forms – registration of conference agreements [Not Reproduced] ................................. 1969 RELATED REGULATIONS ................................................................................................................. 1971 Competition and Consumer (Industry Codes – Franchising) Regulation 2014 ...................................... 1973 Competition and Consumer (Industry Codes – Oilcode) Regulation 2006 ............................................ 2021 Trade Practices (Horticulture Code of Conduct) Regulations 2006 ....................................................... 2075 Trade Practices (Industry Codes – Unit Pricing) Regulations 2009 ....................................................... 2097 RELATED MATERIALS ....................................................................................................................... 2107 Merger guidelines ..................................................................................................................................... 2109 Informal Merger review process guidelines ............................................................................................. 2163 Formal merger review process guidelines ............................................................................................... 2185 ACCC immunity and cooperation policy for cartel conduct .................................................................. 2243 Index .......................................................................................................................................................... 2257 Index of Definitions ................................................................................................................................... 235

xiv

Miller’s Australian Competition and Consumer Law Annotated

ABOUT THIS PUBLICATION Legislation ................................................................................................................................... xv Currency ...................................................................................................................................... xv Legislative amendments in this edition .................................................................................. xvi Future Commencements ................................................................................................................................. xvi Proposed amendments .................................................................................................................................. xvii

Legislation — special features ............................................................................................... xviii Side notes ...................................................................................................................................................... xviii History notes .................................................................................................................................................. xviii Comparative notes for TPA/ACL ..................................................................................................................... xix Cross-references ............................................................................................................................................. xix Editor’s notes .................................................................................................................................................. xix

Paragraph numbering ................................................................................................................ xix Miller Online ................................................................................................................................ xx Legislation copyright ................................................................................................................. xx Enquiries ...................................................................................................................................... xx

LEGISLATION Miller’s Australian Competition and Consumer Law, 39th edition contains the following Acts, regulations and related materials: • Competition and Consumer Act 2010 (except Sch 1) • Competition and Consumer Regulations 2010 (except Schs 1 and 3 forms) • Competition and Consumer (Industry Codes—Franchising) Regulation 2014 • Competition and Consumer (Industry Codes—Oilcode) Regulation 2006 • Trade Practices (Horticulture Code of Conduct) Regulations 2006 • Trade Practices (Industry Codes—Unit Pricing) Regulations 2009 • Merger Guidelines 2008 (21 November 2008 version) • Informal Merger Review Process Guidelines (September 2013 version) • Formal Merger Review Process Guidelines (30 June 2008 version) and • ACCC immunity and cooperation policy for cartel conduct (10 September 2014 version) Editor’s Note:

The Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat)) Regulation 2014 and the Competition and Consumer (Industry Codes—Food and Grocery) Regulation 2015 are not reproduced in this edition of the book. The material is available in the online version of this publication.

CURRENCY The Acts and regulations have been updated to include all available amendments to 1 January 2017. © 2017 THOMSON REUTERS

xv

Miller’s Australian Competition and Consumer Law Annotated

LEGISLATIVE AMENDMENTS IN THIS EDITION Amendments to the Competition and Consumer Act 2010 (Cth), Competition and Consumer Regulations 2010 (Cth) and related regulations as set out below have been incorporated into this publication. Competition and Consumer Act 2010 • Acts and Instruments (Framework Reform) Act 2015 – Act 10 of 2015 • Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 – Act 126 of 2015 • Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 – Act 147 of 2015 • Statute Law Revision Act (No 1) 2016 – Act 4 of 2016 • Competition and Consumer Amendment (Payment Surcharges) Act 2016 – Act 9 of 2016 • Courts Administration Legislation Amendment Act 2016 – Act 24 of 2016 • Territories Legislation Amendment Act 2016 – Act 33 of 2016 • Statute Update Act 2016 – Act 61 of 2016 Competition and Consumer Regulations 2010 • Competition and Consumer Amendment (National Energy Laws) Regulation 2015 – SLI 106 of 2015 • Treasury Laws Amendment (2016 Measures No 1) Regulation 2016 – F2016L00156 of 2016 • Treasury Laws Amendment (2016 Measures No 2) Regulation 2016 – F2016L00705 of 2016 Trade Practices (Horticulture Code of Conduct) Regulations 2006 • Acts and Instruments (Framework Reform) (Consequential Amendments) Regulation 2016 – F2016L00170 of 2016 FUTURE COMMENCEMENTS Corporations and Other Legislation Amendment (Insolvency Law Reform) Regulation 2016 Uncommenced amendments made by the Corporations and Other Legislation Amendment (Insolvency Law Reform) Regulation 2016 (F2016L01926) to the Competition and Consumer (Industry Codes–Franchising) Regulation 2014 and the Competition and Consumer (Industry Codes–Oilcode) Regulation 2006 have been included in the body of the text in the form of future history notes. These future history notes are preceded by a star (★). Example: Future history note under the substitution of paragraph (c) in item 4.2 of the Franchising Code of Conduct (contained in the Schedule to the Competition and Consumer (Industry Codes–Franchising) Regulation 2014): ★ [Item 4 future am F2016L01926 of 2016, s 4 and Sch 1 item 23, with effect from a date TBP, or if not sooner, 1 Mar 2017, by substituting ‘a Chapter 5 body corporate’ for ‘an externally-administered body corporate’ in para (c) in item 4.2. Item 4.2 will read: “4.2 Whether the franchisor, a franchisor director, an associate of the franchisor or a director of an associate of the franchisor, has been: (a) in the last 10 years—convicted of a serious offence, or an equivalent offence outside Australia; or (b) in the last 5 years—subject to final judgment in civil proceedings for a matter mentioned in paragraph 4.1(a); or (c) in the last 10 years—bankrupt, insolvent under administration or a Chapter 5 body corporate in Australia or elsewhere.”]

xvi

Miller’s Australian Competition and Consumer Law Annotated

About this Publication

Competition and Consumer Act 2010 (Cth) Future Commencements Amending legislation

Number

140 of 2010 Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010

Date of gazettal/ Date of commencement assent/registration 15 Dec 2010 Sch 1 items 57–59 commence immediately after a final functional separation undertaking comes into force under Pt 9 of Sch 1 to the Telecommunications Act 1997.

Competition and Consumer (Industry Codes–Franchising) Regulation 2014 (Cth) Future Commencements Amending legislation

Number

Corporations and Other F2016L01926 Legislation Amendment 2016 (Insolvency Law Reform) Regulation 2016

Date of gazettal/ Date of commencement assent/registration of 13 Dec 2016 Sch 1 items 19-23 commence at the same time as Sch 1 to the Insolvency Law Reform Act 2016 commences (to be proclaimed or 1 Mar 2017).

Competition and Consumer (Industry Codes–Oilcode) Regulation 2006 (Cth) Future Commencements Amending legislation

Number

Corporations and Other F2016L01926 Legislation Amendment 2016 (Insolvency Law Reform) Regulation 2016

Date of gazettal/ Date of commencement assent/registration of 13 Dec 2016 Sch 1 items 24-28 commence at the same time as Sch 1 to the Insolvency Law Reform Act 2016 commences (to be proclaimed or 1 Mar 2017).

PROPOSED AMENDMENTS Competition and Consumer Act 2010 • Competition and Consumer Amendment (Australian Country of Origin Food Labelling) Bill 2015 – 2nd reading speech Senate 12 Feb 2015; restored to Notice Paper 15 Sep 2016. Sch 1 items 1-15 commence 12 months after date of assent. • Competition and Consumer Amendment (Competition Policy Review) Bill 2016 [Exposure Draft]. Submissions on Schs 1-6 and 8-13 closed 28 Oct 2016. Sch 1, Sch 2 Pt 1, Schs 3 and 4, Sch 5 items 1-23, Schs 6 and 8, Sch 9 items 1-22, Sch 10 items 1-88, 90-114 and 116-142, Sch 11 item 1, Sch 12 items 1-4, Sch 13 items 1-13, 15-32 and 34-37 commence on proclamation or 6 months after date of assent. Sch 2 items 49 and 50 commence immediately after provs covered by table item 3 (to be proclaimed or 6 months after date of assent). Sch 10 item 89 commences

© 2017 THOMSON REUTERS

xvii

Miller’s Australian Competition and Consumer Law Annotated

immediately after provs covered by table item 5 (to be proclaimed or 6 months after date of assent). Sch 10 item 115 commences immediately after provs covered by table item 11 (to be proclaimed or 6 months after date of assent). [Editor’s Note: Sch 7 of the Exposure Draft contained amendments dealing with the misuse of market power. Submissions on Sch 7 closed 30 Sep 2016. The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was introduced to Parliament on 1 Dec 2016 (information relating to this Bill is found in the paragraph after next).] • Competition and Consumer Amendment (Country of Origin) Bill 2016 – passed House of Reps 28 Nov 2016; 2nd reading speech Senate 29 Nov 2016. Report of Senate Economics Legislation Committee tabled 10 Oct 2016. Sch 1 commences day after date of assent. • Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 – 2nd reading speech House of Reps 1 Dec 2016. Referred to Senate Economics Legislation Committee for inquiry and report by 16 Feb 2017. Schs 1 and 2 commence on a date to be proclaimed or 6 months after date of assent.

LEGISLATION – SPECIAL FEATURES SIDE NOTES Thomson Reuters authored subsection headings are inserted throughout the text of the Competition and Consumer Act 2010 (Cth). These “side notes” (displayed in bold type inside square brackets to the right of a subsection number) are designed to aid in the interpretation of the relevant subsections, where no subsection heading is contained within the actual text of the legislation. Example: Side note to s 45DA(1) of the Competition and Consumer Act 2010 (Cth): (1) [Prohibited conduct] 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. HITSORY NOTES The history notes have been entered into an abbreviated form using the number and year of the amending Act or regulation and a descriptor (eg. “insrt”) to show the effect of the amending Act or regulation. The abbreviations used in the historical notes are as follows: • insrt – inserted • am – amended • subst – substituted • rep – repealed • exp – expired • reinsrt – reinserted • renum – renumbered • reloc – relocated • mod – modified Example: History note under s 151BC(2) of the Competition and Consumer Act 2010 (Cth):

xviii

Miller’s Australian Competition and Consumer Law Annotated

About this Publication

[Subs (2) am Act 169 of 2012, s 3 and Sch 2 item 164, with effect from 3 Dec 2012] This note indicates that subsection (2) was amended by Act 169 of 2012, Schedule 2 item 164. S 3 is a reference to the enacting provision. Details of the short title of the amending Act or regulation, assent/gazettal/registration and commencement dates and transitional provisions are located in the Table of Amending Legislation following the Table of Provisions. COMPARATIVE NOTES FOR TPA/ACL To assist interpretation of the legislative changes resulting from the introduction of the ACL, comparative notes about provisions in the Trade Practices Act 1974 and the ACL are set out below the relevant sections of the Competition and Consumer Act 2010. Example: Comparative note under repealed s 44JA of the Competition and Consumer Act 2010 (Cth): History of the TPA/ACL For current provision (post ACL reform) see s 44J(7). CROSS-REFERENCES Cross-references have been integrated into this publication to indicate where a particular regulation affects a section of the Competition and Consumer Act 2010 (Cth). Example: Cross-reference under s 44AAG of the Competition and Consumer Act 2010 (Cth): [Cross-reference: Competition and Consumer Regulations 2010, reg 6AA prescribes orders about energy laws for s 44AAG(2)(e).] EDITOR’S NOTES Editor’s notes have been integrated into this publication to assist practitioners with identifying information relevant to the interpretation of a particular section or regulation, including: • transitional, application and savings provisions which pertain to amendments of the Competition and Consumer Act 2010 (Cth) following the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth), Act 103 of 2010, on 1 J