Australian Competition Act

Competition and Consumer Act 2010
No. 51, 1974
Compilation No. 139
Compilation date: 5 October 2021
Includes amendments up to: Act No. 111, 2021
Registered: 10 November 2021
This compilation is in 3 volumes
Volume 1: sections 1–110

Volume 2: sections 10.01–186
Volume 3: Schedules
Endnotes
Each volume has its own contents
This compilation includes commenced amendments made by Act No. 135,

2020
Prepared by the Office of Parliamentary Counsel, Canberra
Authorised Version C2021C00528 registered 10/11/2021

About this compilation
This compilation
This is a compilation of the Competition and Consumer Act 2010 that shows the
text of the law as amended and in force on 5 October 2021 (the compilation
date).
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on the Legislation Register (www.legislation.gov.au). The details of
amendments made up to, but not commenced at, the compilation date are
underlined in the endnotes. For more information on any uncommenced
amendments, see the series page on the Legislation Register for the compiled
law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see
the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on the Legislation
Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.

Contents
Part I—Preliminary 1
1 Short title ........................................................................... 1
2 Object of this Act .............................................................. 1
2A Application of Act to Commonwealth and
Commonwealth authorities ................................................ 1
2B Application of Act to States and Territories ...................... 2
2BA Application of Part IV to local government bodies ........... 2
2C Activities that are not business .......................................... 3
3 Repeal................................................................................ 4
4 Interpretation ..................................................................... 5
4A Subsidiary, holding and related bodies corporate ............ 19
4B Consumers ....................................................................... 22
4C Acquisition, supply and re-supply ................................... 22
4E Market ............................................................................. 23
4F References to purpose or reason ...................................... 23
4G Lessening of competition to include preventing or
hindering competition...................................................... 24
4H Application of Act in relation to leases and
licences of land and buildings ......................................... 24
4J Joint ventures .................................................................. 24
4K Loss or damage to include injury .................................... 25
4KA Definitions etc. that do not apply in Part XI or
Schedule 2 ....................................................................... 25
4L Severability ..................................................................... 25
4M Saving of law relating to restraint of trade and
breaches of confidence .................................................... 25
4N Extended application of Part IIIA.................................... 26
5 Extended application of this Act to conduct
outside Australia .............................................................. 26
6 Extended application of this Act to persons who
are not corporations ......................................................... 27
6AA Application of the Criminal Code ................................... 35
Part II—The Australian Competition and Consumer

Commission 36
6A Establishment of Commission ......................................... 36
7 Constitution of Commission ............................................ 37
8 Terms and conditions of appointment ............................. 37
Competition and Consumer Act 2010 i
Compilation No. 139 Compilation date: 05/10/2021 Registered: 10/11/2021

8A Associate members .......................................................... 37
8AB AER members taken to be associate members ................ 39
9 Remuneration .................................................................. 39
10 Deputy Chairpersons ....................................................... 40
11 Acting Chairperson.......................................................... 40
12 Leave of absence ............................................................. 41
13 Termination of appointment of members of the
Commission..................................................................... 41
14 Termination of appointment of associate members
of the Commission .......................................................... 42
15 Resignation ...................................................................... 43
16 Arrangement of business ................................................. 43
17 Disclosure of interests by Chairperson ............................ 43
17A Disclosure of certain interests by members of the
Commission when taking part in determinations of
matters ............................................................................. 43
18 Meetings of Commission ................................................. 44
19 Chairperson may direct Commission to sit in
Divisions ......................................................................... 45
25 Delegation by Commission ............................................. 47
26 Delegation by Commission of certain functions
and powers ...................................................................... 47
27 Staff of Commission ........................................................ 49
27A Consultants ...................................................................... 49
28 Functions of Commission in relation to
dissemination of information, law reform and
research ........................................................................... 49
29 Commission to comply with directions of Minister
and requirements of the Parliament ................................. 51
Part IIA—The National Competition Council 52

29A Establishment of Council ................................................ 52
29B Functions and powers of Council .................................... 52
29BA Commonwealth consent to conferral of functions
etc. on Council................................................................. 53
29BB How duty is imposed ....................................................... 54
29BC When a State/Territory energy law imposes a duty ......... 55
29C Membership of Council ................................................... 55
29D Terms and conditions of office ........................................ 55
29E Acting Council President................................................. 56
29F Remuneration of Councillors .......................................... 56
ii Competition and Consumer Act 2010

29G Leave of absence ............................................................. 56
29H Termination of appointment of Councillors .................... 57
29I Resignation of Councillors .............................................. 57
29J Arrangement of Council business.................................... 57
29L Council meetings ............................................................. 58
29LA Resolutions without meetings .......................................... 58
29M Staff to help Council........................................................ 59
29N Consultants ...................................................................... 59
29O Annual report .................................................................. 59
Part III—The Australian Competition Tribunal 61

30 Constitution of Tribunal .................................................. 61
31 Qualifications of members of Tribunal............................ 61
31A Appointment of Judge as presidential member of
Tribunal not to affect tenure etc. ..................................... 61
32 Terms and conditions of appointment ............................. 62
33 Remuneration and allowances of members of
Tribunal ........................................................................... 62
34 Acting appointments........................................................ 62
35 Suspension and removal of members of Tribunal ........... 64
36 Resignation ...................................................................... 64
37 Constitution of Tribunal for particular matters ................ 65
38 Validity of determinations ............................................... 65
39 President may give directions .......................................... 65
40 Disclosure of interests by members of Tribunal .............. 65
41 Presidential member to preside........................................ 66
42 Decision of questions ...................................................... 66
43 Member of Tribunal ceasing to be available ................... 66
43A Counsel assisting Tribunal .............................................. 67
43B Consultants ...................................................................... 67
44 Staff of Tribunal .............................................................. 68
44A Acting appointments........................................................ 68
Part IIIAA—The Australian Energy Regulator (AER) 69

Division 1—Preliminary 69
44AB Definitions ....................................................................... 69
44AC This Part binds the Crown ............................................... 69
44AD Extra-territorial operation ................................................ 69
Division 2—Establishment of the AER 71
44AE Establishment of the AER ............................................... 71
Competition and Consumer Act 2010 iii

44AF AER to hold money and property on behalf of the
Commonwealth ............................................................... 71
44AG Constitution of the AER .................................................. 71
Division 3—Functions and powers of the AER 72
44AH Commonwealth functions................................................ 72
44AI Commonwealth consent to conferral of functions
etc. on AER ..................................................................... 72
44AIA No merits review of AER decisions ................................ 73
44AJ How duty is imposed ....................................................... 73
44AK When a State/Territory energy law etc. imposes a
duty.................................................................................. 75
44AL Powers of the AER .......................................................... 75
Division 4—Administrative provisions relating to the AER 76
Subdivision A—Appointment etc. of members 76
44AM Appointment of Commonwealth AER members ............. 76
44AO Acting appointment of Commonwealth AER
member............................................................................ 76
44AP Appointment of State/Territory AER members ............... 77
44AQ Acting appointment of State/Territory AER
member............................................................................ 77
44AR AER Chair ....................................................................... 78
44ARA AER Deputy Chair .......................................................... 78
44ARB AER Deputy Chair to act as the AER Chair .................... 79
44AS Acting AER Deputy Chair............................................... 79
44AT Remuneration of AER members...................................... 80
44AU Additional remuneration of AER Chair ........................... 80
44AV Leave of absence ............................................................. 80
44AW Other terms and conditions .............................................. 81
44AX Outside employment........................................................ 81
44AY Disclosure of interests ..................................................... 81
44AZ Resignation ...................................................................... 82
44AAB Termination of appointment ............................................ 82
Subdivision B—Staff etc. to assist the AER 83
44AAC Staff etc. to assist the AER .............................................. 83
Subdivision C—Meetings of the AER etc. 83
44AAD Meetings .......................................................................... 83
44AAE Resolutions without meetings .......................................... 84
44AAEA Arbitration ....................................................................... 84
iv Competition and Consumer Act 2010

Subdivision CA—Divisions of the AER 85
44AAEB Divisions of the AER—functions and powers
under a law of the Commonwealth .................................. 85
44AAEC Divisions of the AER—functions and powers
under a State/Territory energy law or a local
energy instrument ............................................................ 87
Subdivision D—Miscellaneous 89
44AAF Confidentiality................................................................. 89
44AAFA Power of AER to obtain information and
documents ....................................................................... 91
44AAFB Failure to comply with notice to give information
etc. is an offence .............................................................. 92
44AAFC AER may inspect, copy and retain documents ................ 93
44AAG Federal Court may make certain orders ........................... 94
44AAGA Federal Court may order disconnection if an event
specified in the National Electricity Rules occurs ........... 95
44AAH Delegation by the AER .................................................... 96
44AAI Fees ................................................................................. 96
44AAK Regulations may deal with transitional matters ............... 96
Part IIIAB—Application of the finance law 98

44AAL Application of the finance law......................................... 98
Part IIIA—Access to services 99

44AA Objects of Part ................................................................. 99
44B Definitions ....................................................................... 99
44C How this Part applies to partnerships and joint
ventures ......................................................................... 103
44CA Meaning of declaration criteria .................................... 104
44D Meaning of designated Minister .................................... 105
44DA The principles in the Competition Principles
Agreement have status as guidelines ............................. 106
44E This Part binds the Crown ............................................. 107
Division 2—Declared services 108
Subdivision A—Recommendation by the Council 108
44F Person may request recommendation ............................ 108
44FA Council may request information .................................. 110
44G Criteria for the Council recommending declaration
of a service .................................................................... 111
Competition and Consumer Act 2010 v

44GA Time limit for Council recommendations ...................... 111
44GB Council may invite public submissions on the
application ..................................................................... 113
44GC Council must publish its recommendation..................... 115
Subdivision B—Declaration by the designated Minister 116
44H Designated Minister may declare a service ................... 116
44HA Designated Minister must publish his or her
decision ......................................................................... 116
44I Duration and effect of declaration ................................. 117
44J Revocation of declaration .............................................. 118
44K Review of declaration .................................................... 119
44KA Tribunal may stay operation of declaration ................... 120
44KB Tribunal may order costs be awarded ............................ 122
44L Review of decision not to revoke a declaration ............. 123
Division 2AA—Services that are ineligible to be declared 125
Subdivision A—Scope of Division 125
44LA Constitutional limits on operation of this Division ........ 125
Subdivision B—Ineligibility recommendation by Council 125
44LB Ineligibility recommendation ........................................ 125
44LC Council may request information .................................. 127
44LD Time limit for Council recommendations...................... 128
44LE Council may invite public submissions on the
application ..................................................................... 130
44LF Council must publish its recommendation..................... 131
Subdivision C—Designated Minister’s decision on ineligibility 132
44LG Designated Minister’s decision on ineligibility ............. 132
44LH Designated Minister must publish his or her
decision ......................................................................... 134
Subdivision D—Revocation of ineligibility decision 134
44LI Revocation of ineligibility decision ............................... 134
Subdivision E—Review of decisions 136
44LJ Review of ineligibility decisions ................................... 136
44LK Review of decision to revoke or not revoke an
ineligibility decision ...................................................... 138
Subdivision F—Other matters 140
44LL Ineligibility decisions subject to alteration,
cancellation etc. ............................................................. 140
vi Competition and Consumer Act 2010

Division 2A—Effective access regimes 141
Subdivision A—Recommendation by Council 141
44M Recommendation for a Ministerial decision on
effectiveness of access regime ....................................... 141
44MA Council may request information .................................. 142
Subdivision B—Decision by Commonwealth Minister 142
44N Ministerial decision on effectiveness of access
regime............................................................................ 142
Subdivision C—Extensions of Commonwealth Minister’s decision 144
44NA Recommendation by Council ........................................ 144
44NAA Council may request information .................................. 145
44NB Decision by the Commonwealth Minister ..................... 145
Subdivision CA—Revocation of Commonwealth Minister’s
decision 146
44NBA Recommendation by Council ........................................ 146
44NBB Council may request information .................................. 148
44NBC Decision by the Commonwealth Minister ..................... 149
Subdivision D—Procedural provisions 149
44NC Time limit for Council recommendations ...................... 149
44NE Council may invite public submissions ......................... 152
44NF Publication—Council .................................................... 154
44NG Publication—Commonwealth Minister ......................... 155
44O Review of Ministerial decision on effectiveness of
access regime ................................................................ 156
Subdivision F—State or Territory ceasing to be a party to
Competition Principles Agreement 157
44P State or Territory ceasing to be a party to
Competition Principles Agreement................................ 157
Division 2B—Competitive tender processes for government
owned facilities 159
44PA Approval of competitive tender process ........................ 159
44PAA Commission may request information ........................... 160
44PB Report on conduct of tender process ............................. 161
44PC Revocation of approval decision ................................... 161
44PD Time limit for Commission decisions............................ 163
44PE Commission may invite public submissions .................. 165
44PF Commission must publish its decisions ......................... 166
Competition and Consumer Act 2010 vii

44PG Review of Commission’s initial decision ...................... 167
44PH Review of decision to revoke an approval ..................... 169
Division 2C—Register of decisions and declarations 171
44Q Register of decisions, declarations and ineligibility
decisions ........................................................................ 171
Division 3—Access to declared services 172
Subdivision A—Scope of Division 172
44R Constitutional limits on operation of this Division ........ 172
Subdivision B—Notification of access disputes 172
44S Notification of access disputes ...................................... 172
44T Withdrawal of notifications ........................................... 173
Subdivision C—Arbitration of access disputes 173
44U Parties to the arbitration ................................................ 173
44V Determination by Commission ...................................... 173
44W Restrictions on access determinations ........................... 175
44X Matters that the Commission must take into
account .......................................................................... 177
44XA Time limit for Commission’s final determination ......... 178
44Y Commission may terminate arbitration in certain
cases .............................................................................. 179
44YA Commission must terminate arbitration if
declaration varied or set aside by Tribunal .................... 180
Subdivision D—Procedure in arbitrations 180
44Z Constitution of Commission for conduct of
arbitration ...................................................................... 180
44ZA Member of the Commission presiding at an
arbitration ...................................................................... 180
44ZB Reconstitution of Commission ...................................... 181
44ZC Determination of questions............................................ 181
44ZD Hearing to be in private ................................................. 181
44ZE Right to representation .................................................. 182
44ZF Procedure of Commission ............................................. 182
44ZG Particular powers of Commission.................................. 183
44ZH Power to take evidence on oath or affirmation .............. 184
44ZI Failing to attend as a witness ......................................... 184
44ZJ Failing to answer questions etc...................................... 184
44ZK Intimidation etc. ............................................................ 185
44ZL Party may request Commission to treat material as
confidential .................................................................... 185
viii Competition and Consumer Act 2010

44ZM Sections 18 and 19 do not apply to the
Commission in an arbitration ........................................ 186
44ZN Parties to pay costs of an arbitration .............................. 186
44ZNA Joint arbitration hearings ............................................... 186
Subdivision DA—Arbitration reports 188
44ZNB Arbitration reports ......................................................... 188
Subdivision E—Effect of determinations 190
44ZO Operation of final determinations .................................. 190
44ZOA Effect and duration of interim determinations ............... 191
Subdivision F—Review of final determinations 192
44ZP Review by Tribunal ....................................................... 192
44ZQ Provisions that do not apply in relation to a
Tribunal review ............................................................. 193
44ZR Appeals to Federal Court from determinations of
the Tribunal ................................................................... 193
44ZS Operation and implementation of a determination
that is subject to appeal ................................................. 194
44ZT Transmission of documents ........................................... 195
Subdivision G—Variation and revocation of determinations 195
44ZU Variation of final determinations ................................... 195
44ZUA Variation and revocation of interim determinations ...... 195
Division 4—Registered contracts for access to declared services 196
44ZV Constitutional limits on operation of this Division ........ 196
44ZW Registration of contract ................................................. 196
44ZX Review of decision not to register contract ................... 197
44ZY Effect of registration of contract .................................... 198
Division 5—Hindering access to declared services 199
44ZZ Prohibition on hindering access to declared
services .......................................................................... 199
Division 6—Access undertakings and access codes for services 200
Subdivision A—Giving of access undertakings and access codes 200
44ZZA Access undertakings by providers ................................. 200
44ZZAAA Proposed amendments to access undertakings .............. 202
44ZZAAB Access undertakings containing fixed principles ........... 204
44ZZAA Access codes prepared by industry bodies .................... 206
44ZZAB Commission may rely on industry body
consultations .................................................................. 208
Subdivision B—Effect of access undertakings and access codes 209
Competition and Consumer Act 2010 ix

44ZZBA When access undertakings and access codes come
into operation ................................................................ 209
Subdivision C—Extensions of access undertakings and access
codes 210
44ZZBB Extensions of access undertakings and access
codes.............................................................................. 210
Subdivision D—Procedural provisions 212
44ZZBC Time limit for Commission decisions............................ 212
44ZZBCA Commission may request information ........................... 214
44ZZBD Commission may invite public submissions .................. 214
44ZZBE Commission must publish its decisions ......................... 216
44ZZBF Review of decisions....................................................... 217
Subdivision F—Register of access undertakings and access codes 219
44ZZC Register of access undertakings and access codes ......... 219
Division 6A—Pricing principles for access disputes and access
undertakings or codes 220
44ZZCA Pricing principles for access disputes and access
undertakings or codes .................................................... 220
Division 6B—Overlap among determinations, registered
contracts, access undertakings and Tribunal review 221
44ZZCB Deferring access disputes or access undertakings ......... 221
44ZZCBA Deferral of arbitration if review is underway ................ 223
44ZZCC Overlap between determinations and access
undertakings .................................................................. 224
44ZZCD Overlap between registered contracts and access
undertakings .................................................................. 224
Division 7—Enforcement and remedies 226
44ZZD Enforcement of determinations ..................................... 226
44ZZE Enforcement of prohibition on hindering access ........... 227
44ZZF Consent injunctions ....................................................... 228
44ZZG Interim injunctions ........................................................ 228
44ZZH Factors relevant to granting a restraining
injunction....................................................................... 228
44ZZI Factors relevant to granting a mandatory
injunction....................................................................... 228
44ZZJ Enforcement of access undertakings ............................. 229
44ZZK Discharge or variation of injunction or other order ....... 229
x Competition and Consumer Act 2010

Division 8—Miscellaneous 230
44ZZL Register of determinations ............................................. 230
44ZZM Commonwealth consent to conferral of functions
etc. on the Commission or Tribunal by State or
Territory laws ................................................................ 230
44ZZMAA No merits review by Tribunal of decisions under
energy laws .................................................................... 231
44ZZMA How duty is imposed ..................................................... 231
44ZZMB When a law of a State or Territory imposes a duty ........ 232
44ZZN Compensation for acquisition of property ..................... 233
44ZZNA Operation of Parts IV and VII not affected by this
Part ................................................................................ 233
44ZZO Conduct by directors, servants or agents ....................... 233
44ZZOAAA Information to be given to Tribunal............................... 235
44ZZOAA Tribunal only to consider particular material ................ 237
44ZZOA Time limit for Tribunal decisions .................................. 238
44ZZP Regulations about review by the Tribunal ..................... 241
44ZZQ Regulations about fees for inspection etc. of
registers ......................................................................... 241
44ZZR Procedure of the Tribunal when performing
functions under a State/Territory energy law or a
designated Commonwealth energy law ......................... 241
Part IV—Restrictive trade practices 243

Division 1—Cartel conduct 243
Subdivision A—Introduction 243
45AA Simplified outline .......................................................... 243
45AB Definitions ..................................................................... 243
45AC Extended meaning of party ........................................... 245
45AD Cartel provisions ........................................................... 245
45AE Meaning of expressions in other provisions of this
Act ................................................................................. 251
Subdivision B—Offences etc. 252
45AF Making a contract etc. containing a cartel
provision........................................................................ 252
45AG Giving effect to a cartel provision ................................. 253
45AH Determining guilt .......................................................... 254
45AI Court may make related civil orders .............................. 254
Subdivision C—Civil penalty provisions 254
Competition and Consumer Act 2010 xi

45AJ Making a contract etc. containing a cartel
provision........................................................................ 254
45AK Giving effect to a cartel provision ................................. 255
Subdivision D—Exceptions 255
45AL Conduct notified ............................................................ 255
45AM Cartel provision subject to grant of authorisation .......... 256
45AN Contracts, arrangements or understandings
between related bodies corporate .................................. 256
45AO Joint ventures—prosecution .......................................... 257
45AP Joint ventures—civil penalty proceedings ..................... 258
45AQ Resale price maintenance .............................................. 259
45AR Exclusive dealing .......................................................... 259
45AS Dual listed company arrangement ................................. 260
45AT Acquisition of shares or assets....................................... 261
45AU Collective acquisition of goods or services by the
parties to a contract, arrangement or understanding ...... 261
Division 2—Other provisions 263
45 Contracts, arrangements or understandings that
restrict dealings or affect competition ........................... 263
45D Secondary boycotts for the purpose of causing
substantial loss or damage ............................................. 267
45DA Secondary boycotts for the purpose of causing
substantial lessening of competition .............................. 268
45DB Boycotts affecting trade or commerce ........................... 268
45DC Involvement and liability of employee
organisations ................................................................. 269
45DD Situations in which boycotts permitted.......................... 271
45E Prohibition of contracts, arrangements or
understandings affecting the supply or acquisition
of goods or services ....................................................... 275
45EA Provisions contravening section 45E not to be
given effect .................................................................... 278
45EB Sections 45D to 45EA do not affect operation of
other provisions of Part ................................................. 279
46 Misuse of market power ................................................ 279
46A Misuse of market power—corporation with
substantial degree of power in trans-Tasman
market............................................................................ 281
46B No immunity from jurisdiction in relation to
certain New Zealand laws ............................................. 283
47 Exclusive dealing .......................................................... 284
xii Competition and Consumer Act 2010

48 Resale price maintenance .............................................. 290
49 Dual listed company arrangements that affect
competition .................................................................... 290
50 Prohibition of acquisitions that would result in a
substantial lessening of competition .............................. 292
50A Acquisitions that occur outside Australia ...................... 294
51 Exceptions ..................................................................... 296
51AAA Concurrent operation of State and Territory laws .......... 301
Part IVB—Industry codes 302

51ACA Definitions ..................................................................... 302
51ACAA Meaning of industry code .............................................. 303
Division 2—Contravention of industry codes 304
51ACB Contravention of industry codes .................................... 304
Division 2A—Infringement notices 305
51ACC Purpose and effect of this Division ................................ 305
51ACD Issuing an infringement notice ...................................... 305
51ACE Matters to be included in an infringement notice .......... 306
51ACF Amount of penalty ......................................................... 306
51ACG Effect of compliance with an infringement notice ......... 307
51ACH Effect of failure to comply with an infringement
notice ............................................................................. 307
51ACI Infringement notice compliance period for
infringement notice........................................................ 308
51ACJ Withdrawal of an infringement notice ........................... 308
Division 3—Public warning notices 311
51ADA Commission may issue a public warning notice ............ 311
Division 4—Orders to redress loss or damage suffered by
non-parties etc. 312
51ADB Orders to redress loss or damage suffered by
non-parties etc. .............................................................. 312
51ADC Kinds of orders that may be made to redress loss
or damage suffered by non-parties etc. .......................... 314
Division 5—Investigation power 316
51ADD Commission may require corporation to provide
information .................................................................... 316
51ADE Extending periods for complying with notices .............. 316
51ADF Compliance with notices ............................................... 317
Competition and Consumer Act 2010 xiii

51ADG False or misleading information etc. ............................. 317
51AE Regulations relating to industry codes ........................... 319
51AEAA Functions and powers of Commission under
industry codes ................................................................ 322
51AEA Concurrent operation of State and Territory laws .......... 322
51AF Acquisition of property ................................................. 323
Part IVBA—News media and digital platforms mandatory

bargaining code 324
Division 1—Basic concepts 324
52A Definitions ..................................................................... 324
52B Making content available .............................................. 326
52C Interacting with content ................................................. 326
52D Distributing content ....................................................... 327
Division 2—Designated digital platform corporation and
designated digital platform services 329
52E Minister may make designation determination .............. 329
Division 3—Registered news businesses and registered news
business corporations 331
52F Application for registration of news business and
news business corporation ............................................. 331
52G Registration of news business and news business
corporation .................................................................... 331
52H Revocation of registration or endorsement—
general ........................................................................... 332
52I Revocation of registration or endorsement—false
or misleading information or documents ....................... 334
52J Obligation on registered news business
corporation to notify ACMA of loss of
qualification for registration .......................................... 334
52K Adding or removing news source from registered
news business ................................................................ 335
52L Requirements for connection between corporation
and news business ......................................................... 336
52M Revenue test .................................................................. 336
52N Content test.................................................................... 337
52O Australian audience test................................................. 337
52P Professional standards test ............................................. 338
xiv Competition and Consumer Act 2010

Division 4—General requirements 339
Subdivision A—Preliminary 339
52Q Obligations in respect of digital platform services
individually ................................................................... 339
Subdivision B—The minimum standards 339
52R Giving list and explanation of data provided to
registered news businesses ............................................ 339
52S Change to algorithm to bring about identified
alteration to distribution of content with significant
effect on referral traffic ................................................. 341
52V Section 52S—dominant purpose ................................... 342
52W Section 52S—significant effect ..................................... 342
Subdivision C—Recognition of original covered news content 343
52X Recognition of original covered news content............... 343
Subdivision D—Facilitating open communication 344
52Y Facilitating open communication—responsible
digital platform corporation for designated digital
platform service ............................................................. 344
52Z Facilitating open communication—registered news
business corporation for registered news business ........ 345
Subdivision E—Trade secrets and personal information 345
52ZA Trade secrets .................................................................. 345
52ZB Personal information ..................................................... 345
Division 5—Non-differentiation 346
52ZC Digital service to be supplied without
differentiating in relation to registered news
businesses ...................................................................... 346
Division 6—Bargaining 350
52ZD Bargaining news business representative for a
registered news business ............................................... 350
52ZE Notification of bargaining ............................................. 350
Subdivision B—Bargaining obligations 351
52ZF Application of Subdivision ............................................ 351
52ZG Bargaining parties, core bargaining issues and
represented registered news businesses ......................... 352
52ZH Obligation to negotiate in good faith ............................. 352
52ZI Obligation to notify Commission if agreement
reached .......................................................................... 352
Competition and Consumer Act 2010 xv

Subdivision BA—Mediation 353
52ZIA Obligation to participate in mediation ........................... 353
52ZIB Rules about conduct of mediation ................................. 353
52ZIC Termination of mediation .............................................. 354
Subdivision C—Miscellaneous 354
52ZJ Bargaining over other issues ......................................... 354
Division 7—Arbitration about remuneration issue 355
52ZK Register of bargaining code arbitrators.......................... 355
Subdivision B—Starting arbitration 355
52ZL Notification of arbitration .............................................. 355
52ZM Formation of arbitral panel ............................................ 356
52ZN Disclosure of conflicts of interest where ACMA
appoints member of panel ............................................. 358
52ZO Costs of arbitral panel.................................................... 359
52ZP Chair to notify start of arbitration .................................. 359
52ZQ Bargaining parties’ agreement about dealing with
extra services in arbitration ........................................... 359
Subdivision C—Final offer arbitration 360
52ZR Application .................................................................... 360
52ZS Obligation to participate in arbitration in good
faith ............................................................................... 360
52ZT Information request by bargaining party—general ........ 360
52ZU Information request by bargaining party—
challenges by other bargaining party ............................. 362
52ZV Information request by bargaining party—
miscellaneous rules........................................................ 362
52ZW Agreed early termination of arbitration ......................... 363
52ZX Final offer arbitration .................................................... 364
52ZXA Final offer to be accompanied by information
about contracts............................................................... 366
52ZY Final offer arbitration—termination of arbitration
if no final offers ............................................................. 366
52ZZ Matters to consider in arbitration, etc. ........................... 367
52ZZA Other requirements for arbitration determination .......... 367
52ZZB Submissions of bargaining parties ................................. 368
52ZZC Role of Commission ...................................................... 369
52ZZD Guidelines about conduct of arbitration ........................ 370
Subdivision D—Effect of arbitral determination 371
xvi Competition and Consumer Act 2010

52ZZE Bargaining parties must comply with the
determination................................................................. 371
Division 8—Enforcement etc. 372
52ZZF Record generating and keeping ..................................... 372
52ZZG Infringement notices—Division 4 of this Part .............. 372
52ZZH Joint and several liability for pecuniary liabilities ........ 372
Division 9—Agreements between digital platform corporations
and registered news business corporations 374
52ZZI Simplified outline of this Division ................................ 374
52ZZJ Standard offers—content ............................................... 374
52ZZK Standard offers—consequences of agreement ............... 377
52ZZL Contracting out of general requirements,
bargaining and arbitration.............................................. 378
52ZZM Offers relating to general requirements, bargaining
and arbitration not prohibited ........................................ 379
Division 10—Powers and functions of the ACMA in relation to
this Part 380
52ZZN Powers of the ACMA to obtain information etc. ........... 380
52ZZO No Ministerial directions to the ACMA in relation
to this Part ..................................................................... 381
52ZZP Exceptions to Part IV .................................................... 382
52ZZQ Concurrent operation of State and Territory laws .......... 382
52ZZR Giving information and producing documents by
electronic means ............................................................ 382
52ZZS Review of operation of this Part .................................... 382
Part IVC—Payment surcharges 384

55 Object of this Part .......................................................... 384
55A Definitions ..................................................................... 384
Division 2—Limit on payment surcharges 386
55B Payment surcharges must not be excessive ................... 386
Division 3—Information about payment surcharges 387
55C Surcharge information notices ....................................... 387
55D Extending periods for complying with notices .............. 387
55E Participant must comply with notice ............................. 388
Competition and Consumer Act 2010 xvii

Division 4—Infringement notices 389
55F Purpose and effect of this Division ................................ 389
55G Issuing an infringement notice ...................................... 389
55H Matters to be included in an infringement notice .......... 390
55J Amount of penalty ......................................................... 390
55K Effect of compliance with an infringement notice ......... 390
55L Effect of failure to comply with an infringement
notice ............................................................................. 391
55M Infringement notice compliance period for
55N Withdrawal of an infringement notice ........................... 392
Part IVD—Consumer data right 394

Subdivision A—Object and simplified outline 394
56AA Object of this Part .......................................................... 394
56AB Simplified outline .......................................................... 394
Subdivision B—Designating sectors subject to the consumer data
right 395
56AC Designated sectors subject to the consumer data
right ............................................................................... 395
56AD Minister’s tasks before designating a sector etc. ........... 397
56AE Secretary must arrange for analysis, consultation
and report about an instrument proposing to
designate a sector .......................................................... 399
56AEA Commission must analyse an instrument proposing
to designate a sector ...................................................... 399
56AF Information Commissioner must analyse and
report about an instrument proposing to designate
a sector .......................................................................... 400
56AH Other matters ................................................................. 400
Subdivision C—Meanings of key terms 400
56AI Meanings of CDR data, directly or indirectly
derived and CDR consumer ........................................... 400
56AJ Meaning of data holder ................................................. 402
56AK Meaning of accredited data recipient............................ 404
56AL Meanings of CDR participant and designated
gateway ......................................................................... 404
56AM Meanings of chargeable CDR data, chargeable
circumstances and fee-free CDR data ........................... 405
xviii Competition and Consumer Act 2010

Subdivision D—Extension to external Territories and
extraterritorial operation 405
56AN Extension to external Territories ................................... 405
56AO Extraterritorial operation of the CDR provisions........... 406
56AP Geographical application of offences ............................ 407
Subdivision E—Application to government entities 407
56AQ CDR provisions bind the Crown ................................... 407
56AR Government entities may participate under this
Part ................................................................................ 408
56AS Participating government entities of a State or
Territory—declaration ................................................... 410
56AT Participating government entities of a State or
Territory—revocation .................................................... 410
Subdivision F—Application to acts done by or in relation to
agents etc. of CDR entities 411
56AU Acts done by or in relation to agents etc. of CDR
entities ........................................................................... 411
Division 2—Consumer data right 413
Subdivision A—Power to make consumer data rules 413
56BA Minister may make consumer data rules ....................... 413
56BAA Rules must include requirement to delete CDR
data on request from CDR consumer............................. 413
56BB Matters that the consumer data rules may deal with ...... 415
56BC Rules about disclosure, collection, use, accuracy,
storage, security or deletion of CDR data for
which there are CDR consumers ................................... 415
56BD Limitations for rules about CDR data for which
there are CDR consumers .............................................. 417
56BE Rules about disclosure, collection, use, accuracy,
storage, security or deletion of product data .................. 419
56BF Limitations for rules about product data ........................ 420
56BG Rules about designated gateways .................................. 421
56BH Rules about accreditation of data recipients .................. 422
56BI Rules about reporting, record keeping and auditing ...... 424
56BJ Rules about incidental or related matters ....................... 425
56BK Further limitations on the consumer data rules .............. 427
Subdivision B—Compliance with consumer data rules 428
56BL Obligation to comply with consumer data rules ............ 428
56BM Infringement notices ...................................................... 428
Competition and Consumer Act 2010 xix

56BN Misleading or deceptive conduct—offence ................... 429
56BO Misleading or deceptive conduct—civil penalty ........... 430
Subdivision C—Process for making consumer data rules etc. 431
56BP Minister’s tasks before making the rules ....................... 431
56BQ Secretary must arrange for consultation and report
before the rules are made ............................................... 431
56BR Commission and Information Commissioner must
analyse the proposed rules ............................................. 432
56BS Emergency rules: public consultation not required
etc. ................................................................................. 432
56BT Emergency rules: consequences if made ....................... 433
56BTA Other matters ................................................................. 433
Subdivision D—Fees for disclosing CDR data 433
56BU Charging a fee in inappropriate circumstances
when required to disclose CDR data ............................. 433
56BV Commission may intervene if fee for disclosing or
using chargeable CDR data is unreasonable etc. ........... 434
56BW Review by the Tribunal of determinations
specifying particular CDR participants ......................... 436
56BX Functions and powers of Tribunal ................................. 436
56BY Provisions that do not apply in relation to a
Tribunal review ............................................................. 437
Division 3—Accreditation etc. 438
Subdivision A—Accreditation process 438
56CA Granting accreditations.................................................. 438
56CB Review of decisions refusing to accredit ....................... 438
56CC Prohibition on holding out—offence ............................. 438
56CD Prohibition on holding out—civil penalty ..................... 439
Subdivision B—Register of Accredited Persons 440
56CE Register of Accredited Persons...................................... 440
56CF Evidentiary value of the register .................................... 440
Subdivision C—Data Recipient Accreditor 440
56CG Appointment of the Data Recipient Accreditor ............. 440
56CH Functions, powers and annual report ............................. 441
56CI Directions by Minister ................................................... 442
56CJ Delegation ..................................................................... 442
Subdivision D—Accreditation Registrar 443
56CK Appointment of the Accreditation Registrar .................. 443
56CL Functions, powers and annual report ............................. 443
xx Competition and Consumer Act 2010

56CM Directions by Minister ................................................... 444
56CN Delegation ..................................................................... 445
Division 4—External dispute resolution 446
56DA Minister may recognise external dispute resolution
schemes ......................................................................... 446
Division 5—Privacy safeguards 448
56EA Simplified outline .......................................................... 448
56EB Kinds of CDR data to which the privacy
safeguards apply ............................................................ 448
56EC Relationship with other laws ......................................... 449
Subdivision B—Consideration of CDR data privacy 450
56ED Privacy safeguard 1—open and transparent
management of CDR data ............................................. 450
56EE Privacy safeguard 2—anonymity and
pseudonymity ................................................................ 453
Subdivision C—Collecting CDR data 454
56EF Privacy safeguard 3—soliciting CDR data from
CDR participants ........................................................... 454
56EG Privacy safeguard 4—dealing with unsolicited
CDR data from CDR participants .................................. 454
56EH Privacy safeguard 5—notifying of the collection of
CDR data ....................................................................... 455
Subdivision D—Dealing with CDR data 455
56EI Privacy safeguard 6—use or disclosure of CDR
data by accredited data recipients or designated
gateways ........................................................................ 455
56EJ Privacy safeguard 7—use or disclosure of CDR
data for direct marketing by accredited data
recipients or designated gateways ................................. 456
56EK Privacy safeguard 8—overseas disclosure of CDR
data by accredited data recipients .................................. 457
56EL Privacy safeguard 9—adoption or disclosure of
government related identifiers by accredited data
recipients ....................................................................... 458
56EM Privacy safeguard 10—notifying of the disclosure
of CDR data................................................................... 460
Subdivision E—Integrity of CDR data 461
56EN Privacy safeguard 11—quality of CDR data ................. 461
Competition and Consumer Act 2010 xxi

56EO Privacy safeguard 12—security of CDR data, and
destruction or de-identification of redundant CDR
data ................................................................................ 462
Subdivision F—Correction of CDR data 463
56EP Privacy safeguard 13—correction of CDR data ............ 463
Subdivision G—Compliance with the privacy safeguards 465
56EQ Information Commissioner to promote compliance
etc. ................................................................................. 465
56ER Information Commissioner may conduct an
assessment relating to the management and
handling of CDR data .................................................... 466
56ES Notification of CDR data security breaches .................. 466
56ET Investigating breaches of the privacy safeguards
etc. ................................................................................. 468
56EU Civil penalty provisions................................................. 471
56EV Civil penalty provisions—maximum amount of
penalty ........................................................................... 473
56EW Enforceable undertakings .............................................. 474
56EX Injunctions ..................................................................... 475
56EY Actions for damages ...................................................... 475
56EZ Delegation to the Commission etc. ................................ 478
Division 6—Data standards etc. 479
Subdivision A—Data standards 479
56FA Making data standards ................................................... 479
56FB What data standards can set out etc. .............................. 480
56FC Data standards must be published ................................. 480
56FD Legal effect of data standards ........................................ 480
56FE Enforcement of binding data standards ......................... 481
Subdivision B—Data Standards Chair 482
56FF Data Standards Chair ..................................................... 482
56FG Appointment of the Data Standards Chair ..................... 482
56FH Functions and powers of the Data Standards Chair ....... 482
56FI Directions by Minister ................................................... 483
Subdivision C—Data Standards Body 483
56FJ Appointment of the Data Standards Body ..................... 483
56FK Function and powers of the Data Standards Body ......... 484
Subdivision D—Administrative provisions 484
56FL Acting appointments...................................................... 484
56FM Terms and conditions .................................................... 485
xxii Competition and Consumer Act 2010

56FN Remuneration ................................................................ 485
56FO Leave ............................................................................. 485
56FP Application of the finance law etc. ................................ 486
56FQ Resignation .................................................................... 486
56FR Termination of appointment .......................................... 487
56FS Delegation ..................................................................... 487
Division 7—Other matters 489
56GA CDR functions of the Information Commissioner ......... 489
56GAA Delegation by Secretary ................................................ 489
56GAB Concurrent operation of State and Territory laws .......... 490
56GB Referring to instruments as in force from time to
time................................................................................ 490
56GC Complying with requirements to provide CDR
data: protection from liability ........................................ 490
56GD Exemptions by the Commission .................................... 491
56GE Exemptions and modifications by regulations ............... 492
56GF Constitutional basis ....................................................... 493
56GG Compensation for acquisition of property ..................... 495
56GH Review of the operation of this Part .............................. 495
Part V—Carbon tax price reduction obligation 496

60 Simplified outline of this Part........................................ 496
60AA Objects etc. .................................................................... 497
60A Definitions ..................................................................... 498
60B Regulated goods ............................................................ 503
Division 2—Carbon tax price reduction obligation 504
60C Price exploitation in relation to the carbon tax
repeal ............................................................................. 504
60CA Failure to pass on cost savings—250% penalty............. 504
60D Notice to entity that is considered to have engaged
in price exploitation in relation to the carbon tax
repeal ............................................................................. 506
60E Commission may issue notice to aid prevention of
price exploitation in relation to the carbon tax
repeal ............................................................................. 507
60F Acquisition of property ................................................. 508
Division 2A—Carbon tax removal substantiation notices 509
60FA Carbon tax removal substantiation notices .................... 509
Competition and Consumer Act 2010 xxiii

60FB Extending periods for complying with carbon tax
removal substantiation notices....................................... 510
60FC Compliance with carbon tax removal
substantiation notices .................................................... 510
Division 2B—Carbon tax removal substantiation statements 512
60FD Carbon tax removal substantiation statements ............... 512
Division 2C—Statements for customers 515
60FE Statements for customers ............................................... 515
Division 3—Price monitoring in relation to the carbon tax repeal
etc. 517
60G Commission may monitor prices in relation to the
carbon tax repeal etc. ..................................................... 517
60H Information-gathering powers ....................................... 519
60J Reporting ....................................................................... 521
Division 4—False or misleading representations about the effect
of the carbon tax repeal etc. on prices 522
60K False or misleading representations about the
effect of the carbon tax repeal etc. on prices ................. 522
Division 5—Infringement notices 523
60L Issuing an infringement notice ...................................... 523
60M Effect of compliance with an infringement notice ......... 524
60N Effect of failure to comply with an infringement
notice ............................................................................. 525
60P Infringement notice compliance period for
60Q Withdrawal of an infringement notice ........................... 526
60R Effect of this Division ................................................... 527
Part VI—Enforcement and remedies 529

75B Interpretation ................................................................. 529
76 Pecuniary penalties ........................................................ 529
76A Defence to proceedings under section 76 relating
to a contravention of section 92..................................... 534
76B Consequences in some cases if substantially the
same conduct contravenes a provision of this Act
and is an offence ............................................................ 535
77 Civil action for recovery of pecuniary penalties ............ 536
77A Indemnification of officers ............................................ 536
77B Certain indemnities not authorised and certain
documents void ............................................................. 537
xxiv Competition and Consumer Act 2010

77C Application of section 77A to a person other than a
body corporate ............................................................... 537
78 Criminal proceedings not to be brought for
contraventions of Part IV............................................... 538
79 Offences against section 45AF or 45AG ....................... 538
79A Enforcement and recovery of certain fines .................... 539
79B Preference must be given to compensation for
victims ........................................................................... 542
80 Injunctions ..................................................................... 542
80A Price exploitation in relation to the carbon tax
repeal—orders limiting prices or requiring refunds
of money........................................................................ 545
80AB Stay of injunctions ......................................................... 546
80AC Injunctions to prevent mergers if authorisation
granted on the basis of false or misleading
information .................................................................... 548
81 Divestiture where merger contravenes section 50
or 50A ........................................................................... 548
81A Divestiture where merger done under authorisation
granted on false etc. information ................................... 550
82 Actions for damages ...................................................... 552
83 Findings and admissions of fact in proceedings to
be evidence .................................................................... 553
84 Conduct by directors, employees or agents ................... 554
85 Defences ........................................................................ 556
86 Jurisdiction of courts ..................................................... 557
86AA Limit on jurisdiction of Federal Circuit and Family
Court of Australia (Division 2)...................................... 558
86A Transfer of matters ........................................................ 558
86C Non-punitive orders....................................................... 559
86D Punitive orders—adverse publicity ............................... 561
86E Order disqualifying a person from managing
corporations ................................................................... 562
86F Privilege against exposure to penalty—
disqualification from managing corporations ................ 564
87 Other orders................................................................... 565
87AA Special provision relating to Court’s exercise of
powers under this Part in relation to boycott
conduct .......................................................................... 569
87B Enforcement of undertakings ........................................ 570
87C Enforcement of undertakings—Secretary of the
Department .................................................................... 571
Competition and Consumer Act 2010 xxv

87CA Intervention by Commission ......................................... 572
Part VIA—Proportionate liability for misleading and deceptive

conduct 573
87CB Application of Part ........................................................ 573
87CC Certain concurrent wrongdoers not to have benefit
of apportionment ........................................................... 573
87CD Proportionate liability for apportionable claims ............ 574
87CE Defendant to notify plaintiff of concurrent
wrongdoer of whom defendant aware ........................... 575
87CF Contribution not recoverable from defendant ................ 576
87CG Subsequent actions ........................................................ 576
87CH Joining non-party concurrent wrongdoer in the
action ............................................................................. 576
87CI Application of Part ........................................................ 576
Part VIB—Claims for damages or compensation for death or

personal injury 578
Division 1—Introduction 578
87D Definitions ..................................................................... 578
87E Proceedings to which this Part applies .......................... 580
Division 2—Limitation periods 581
87F Basic rule....................................................................... 581
87G Date of discoverability .................................................. 582
87H Long-stop period ........................................................... 584
87J The effect of minority or incapacity .............................. 584
87K The effect of close relationships .................................... 585
Division 3—Limits on personal injury damages for
non-economic loss 586
87L Limits on damages for non-economic loss .................... 586
87M Maximum amount of damages for non-economic
loss ................................................................................ 586
87N Index numbers ............................................................... 587
87P Most extreme cases ....................................................... 587
87Q Cases of 33% or more (but not 100%) of a most
extreme case .................................................................. 588
87R Cases of 15% or more (but less than 33%) of a
most extreme case ......................................................... 588
87S Cases of less than 15% of a most extreme case ............. 589
xxvi Competition and Consumer Act 2010

87T Referring to earlier decisions on non-economic
loss ................................................................................ 589
Division 4—Limits on personal injury damages for loss of
earning capacity 590
87U Personal injury damages for loss of earning
capacity ......................................................................... 590
87V Average weekly earnings .............................................. 590
Division 5—Limits on personal injury damages for gratuitous
attendant care services 592
87W Personal injury damages for gratuitous attendant
care services for plaintiff ............................................... 592
87X Personal injury damages for loss of plaintiff’s
capacity to provide gratuitous attendant care
services .......................................................................... 593
Division 6—Other limits on personal injury damages 595
87Y Damages for future economic loss—discount rate ........ 595
87Z Damages for loss of superannuation entitlements ......... 595
87ZA Interest on damages ....................................................... 596
87ZB Exemplary and aggravated damages ............................. 597
Division 7—Structured settlements 598
87ZC Court may make orders under section 87 for
structured settlements .................................................... 598
Part VII—Authorisations and notifications 599

Division 1—Authorisations 599
87ZP Definitions ..................................................................... 599
88 Commission may grant authorisations........................... 599
89 Procedure for applications and the keeping of a
register ........................................................................... 601
90 Determination of applications for authorisations........... 604
90A Commission to afford opportunity for conference
before determining application for authorisation ........... 610
90B Commission may rely on consultations undertaken
by the AEMC ................................................................ 613
91 Grant and variation of authorisations ............................ 614
91A Minor variations of authorizations ................................ 617
91B Revocation of an authorization ...................................... 619
91C Revocation of an authorization and substitution of
a replacement ................................................................ 621
92 Providing false or misleading information .................... 625
Competition and Consumer Act 2010 xxvii

Division 2—Notifications 626
Subdivision A—Exclusive dealing and resale price maintenance 626
93 Notification of exclusive dealing or resale price
maintenance................................................................... 626
93AAA Imposing conditions relating to notifications ................ 632
Subdivision B—Collective bargaining 633
93AA Definitions ..................................................................... 633
93AB Notification of collective bargaining ............................. 633
93AC Commission’s objection notice ..................................... 638
93ACA Imposing conditions relating to collective boycott
conduct .......................................................................... 640
93AD When collective bargaining notice comes into
force and ceases to be in force ....................................... 641
93AE Withdrawal of collective bargaining notice ................... 643
93AEA Only 1 collective bargaining notice under
subsection 93AB(1A) may be given .............................. 644
93AF Only 1 collective bargaining notice under
subsection 93AB(1) may be given................................. 644
93AG Stop notice for collective boycott conduct .................... 645
Subdivision C—Conferences 647
93A Commission to afford opportunity for conference
before giving notice ....................................................... 647
Subdivision D—Register of notifications 650
95 Register of notifications ................................................ 650
Division 3—Class exemptions 653
95AA Commission may determine class exemptions .............. 653
95AB Commission may withdraw the benefit of class
exemption in particular case .......................................... 654
Part VIIA—Prices surveillance 656

95A Interpretation ................................................................. 656
95B Exempt supplies ............................................................ 660
95C Application of Part ........................................................ 660
95D Crown to be bound ........................................................ 661
95E Object of this Part .......................................................... 661
95F Simplified overview of this Part .................................... 661
Division 2—Commission’s functions under this Part 663
95G Commission’s functions under this Part ........................ 663
xxviii Competition and Consumer Act 2010

Division 3—Price inquiries 665
Subdivision A—Holding of inquiries 665
95H Price inquiries................................................................ 665
95J Content of inquiry notices ............................................. 666
95K Period for completing inquiry ....................................... 667
95L Notice of holding of inquiry .......................................... 668
95M Notice of extension of period for completing
inquiry ........................................................................... 668
95N Price restrictions ............................................................ 669
Subdivision B—Reports on inquiries 671
95P Copies of report to be made available ........................... 671
95Q Notification of proposed prices after receipt of
report ............................................................................. 672
Subdivision C—Procedure at inquiries 673
95R Public inquiries etc. ....................................................... 673
95S Taking of evidence on oath or affirmation .................... 674
95T Failure of witness to attend............................................ 675
95U Refusal to be sworn or to answer question .................... 675
95V Protection of witnesses .................................................. 676
95W Allowances to witnesses ................................................ 676
Division 4—Price notifications 678
95X Declarations by Minister or Commission ...................... 678
95Y Declarations in relation to State or Territory
authorities ...................................................................... 678
95Z Price restrictions ............................................................ 680
95ZA Later notices modifying a locality notice ...................... 683
95ZB Applicable period in relation to a locality notice ........... 683
95ZC Register of price notifications ....................................... 684
95ZD Delegation by Commission ........................................... 686
Division 5—Price monitoring 687
95ZE Directions to monitor prices, costs and profits of
an industry ..................................................................... 687
95ZF Directions to monitor prices, costs and profits of a
business ......................................................................... 687
95ZG Exceptions to price monitoring...................................... 688
Division 6—Other provisions 689
95ZH Ministerial directions ..................................................... 689
Competition and Consumer Act 2010 xxix

95ZI Inquiries by an unincorporated body or a group of
2 or more individuals..................................................... 689
95ZJ Withdrawal of notices ................................................... 690
95ZK Power to obtain information or documents.................... 690
95ZL Inspection of documents etc. ......................................... 694
95ZM Retention of documents ................................................. 695
95ZN Confidential information ............................................... 695
95ZO Immunity ....................................................................... 696
95ZP Secrecy: members or staff members of the
Commission etc. ............................................................ 697
95ZPA Disclosure of protected information to the Energy
Department .................................................................... 698
95ZQ Secrecy: persons involved in inquiries by bodies
other than the Commission ............................................ 699
Part VIII—Resale price maintenance 702

96 Acts constituting engaging in resale price
maintenance................................................................... 702
96A Resale price maintenance in relation to services ........... 705
97 Recommended prices .................................................... 705
98 Withholding the supply of goods................................... 705
99 Statements as to the minimum price of goods ............... 706
100 Evidentiary provisions ................................................... 707
Part IX—Review by Tribunal of Determinations of

Commission 709
Division 1—Applications for review 709
101 Applications for review ................................................. 709
101A Application for review of notices under Division 2
of Part VII ..................................................................... 711
101B Application for review of notice under
section 95AB ................................................................. 711
102 Functions and powers of Tribunal ................................. 711
Division 2—Procedure and Evidence 721
103 Procedure generally ....................................................... 721
104 Regulations as to certain matters ................................... 721
105 Power to take evidence on oath ..................................... 722
106 Hearings to be in public except in special
circumstances ................................................................ 722
107 Evidence in form of written statement........................... 722
108 Taking of evidence by single member ........................... 723
xxx Competition and Consumer Act 2010

109 Participants in proceedings before Tribunal .................. 723
110 Representation ............................................................... 723
Competition and Consumer Act 2010 xxxi

Preliminary Part I
Section 1
An Act relating to competition, fair trading and

consumer protection, and for other purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Competition and Consumer Act 2010.
2 Object of this Act

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.
2A Application of Act to Commonwealth and Commonwealth

authorities
(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.
(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.
Competition and Consumer Act 2010 1

Part I Preliminary
Section 2B
(3A) The protection in subsection (3) does not apply to an authority of

the Commonwealth.
(4) Part 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.
2B Application of Act to States and Territories

(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;
(aaa) Part IVBA;
(aa) Part V;
(b) Part XIB;
(ba) Part XICA;
(c) the other provisions of this Act so far as they relate to the
above provisions.
(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.
2BA Application of Part IV to local government bodies

(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
2 Competition and Consumer Act 2010

Preliminary Part I
Section 2C
providing a particular service, such as the supply of electricity or

water.
2C Activities that are not business

(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 right (and none of whom is an authority of the
Commonwealth or an authority of a State or Territory);
or
(ii) only persons who are all acting for the same authority of
the Commonwealth; or
(iii) only persons who are all acting for the same authority of
a State or Territory; or
(iv) only the Crown in right of the Commonwealth and one
or more non-commercial authorities of the
Commonwealth; or
(v) only the Crown in right of a State or Territory and one
or more non-commercial authorities of that State or
Territory; or
(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;

Part I Preliminary
Section 3
(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.
(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.
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.
3 Repeal
The Restrictive Trade Practices Act 1971 and the Restrictive Trade
Practices Act 1972 are repealed.

Preliminary Part I
Section 4
4 Interpretation
(1) In this Act, unless the contrary intention appears:
accountable authority has the same meaning as in the Public
Governance, Performance and Accountability Act 2013.
Accreditation Registrar means:
(a) if a person holds an appointment under
subsection 56CK(1)—that person; or
(b) otherwise—the Commission.
accredited data recipient has the meaning given by section 56AK.
accredited person means a person who holds an accreditation
under subsection 56CA(1).
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.
AER or Australian Energy Regulator means the body established
by section 44AE.
AER Chair means the Chair of the AER.
AER member means a member of the AER.
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.
Australian law has the same meaning as in the Privacy Act 1988.

Part I Preliminary
Section 4
authorisation means 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.
authority, in relation to a State or Territory, and each 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.
Note: See also the definitions of Commonwealth authority and State or
Territory authority in subsection 95A(1) (which apply in relation to
Part VIIA).
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.
Note: See also the definitions of Commonwealth authority and State or
Territory authority in subsection 95A(1) (which apply in relation to
Part VIIA).
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.
binding data standard has the meaning given by
subsection 56FA(3).
business includes a business not carried on for profit.
cartel provision has the meaning given by section 45AD.
CDR consumer has the meaning given by subsection 56AI(3).
CDR data has the meaning given by subsection 56AI(1).

Preliminary Part I
Section 4
CDR participant has the meaning given by subsection 56AL(1).

CDR provisions has the meaning given by section 56AN.
Chairperson means the Chairperson of the Commission.
chargeable CDR data has the meaning given by
subsection 56AM(1).
chargeable circumstances:
(a) in relation to the disclosure of chargeable CDR data—has the
meaning given by subsection 56AM(2); or
(b) in relation to the use of chargeable CDR data—has the
meaning given by subsection 56AM(3).
civil penalty provision of the consumer data rules means a
provision of the consumer data rules that is a civil penalty
provision (within the meaning of the Regulatory Powers Act).
collective boycott conduct means conduct that has a purpose
referred to in subsection 45AD(3) in relation to a contract,
arrangement or understanding.
collects: a person collects information only if the person collects
the information for inclusion in:
(a) a record (within the meaning of the Privacy Act 1988); or
(b) a generally available publication (within the meaning of that
Act).
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.
Commonwealth AER member means an AER member referred to
in section 44AM.
competition includes:
(a) competition from goods that are, or are capable of being,
imported into Australia; and

Part I Preliminary
Section 4
(b) competition from services that are rendered, or are capable of

being rendered, in Australia 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.
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.
consumer data rules means rules in force under section 56BA.
contract includes a covenant.
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.
Councillor means a member of the Council, including the Council
President.
Council President means the Council President referred to in
subsection 29C(1).
court/tribunal order has the same meaning as in the Privacy Act
1988.

Preliminary Part I
Section 4
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.
data holder has the meaning given by subsection 56AJ(1).
Data Recipient Accreditor means:
(a) if a person holds an appointment under
subsection 56CG(1)—that person; or
(b) otherwise—the Commission.
data standard means a data standard made under section 56FA.
Data Standards Body means the body holding an appointment
under subsection 56FJ(1).
Data Standards Chair means:
(a) if a person holds an appointment under section 56FG—that
person; or
(b) otherwise—the Minister.
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 Chairperson means a Deputy Chairperson of the
Commission.
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

Part I Preliminary
Section 4
(b) the National Gas (Commonwealth) Law and Regulations (as

defined by the Australian Energy Market Act 2004); or
(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).
designated gateway has the meaning given by subsection 56AL(2).
designated sector has the meaning given by subsection 56AC(1).
directly or indirectly derived has the meaning given by
subsection 56AI(2).
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.
dual listed company arrangement has the same meaning as in
section 125-60 of the Income Tax Assessment Act 1997.
earliest holding day has the meaning given by
paragraph 56AC(2)(c).
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

Preliminary Part I
Section 4
(e) whether in any other form; or

(f) whether in any combination of forms.
external Territory:
(a) means a Territory referred to in section 122 of the
Constitution, where an Act makes provision for the
government of the Territory as a Territory; but
(b) does not include a Territory covered by the definition of
Territory in this subsection.
Note: The Australian Capital Territory, the Jervis Bay Territory, the
Northern Territory, Norfolk Island and the Territories of Christmas
Island and of Cocos (Keeling) Islands are covered by the definition of
Territory in this subsection.
fee-free CDR data has the meaning given by subsection 56AM(4).

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).
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.
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.
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;

Part I Preliminary
Section 4
(c) minerals, trees and crops, whether on, under or attached to

land or not; and
(d) gas and electricity.
holds: a person holds information if the person has possession or
control of a record (within the meaning of the Privacy Act 1988)
that contains the information.
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.
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.
member of the Tribunal includes the President and a person
appointed to act as a member of the Tribunal.
merger authorisation means an authorisation that:
(a) is an authorisation for a person to engage in conduct to which
section 50 or 50A would or might apply; but
(b) is not an authorisation for a person to engage in conduct to
which any provision of Part IV other than section 50 or 50A
would or might apply.
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.
organisation of employees means an organisation that exists or is
carried on for the purpose, or for purposes that include the purpose,

Preliminary Part I
Section 4
of furthering the interests of its members in relation to their

employment.
overseas merger authorisation means a merger authorisation that
is not an authorisation for a person to engage in conduct to which
section 50 would or might apply.
party, to a contract that is a covenant, includes a person bound by,
or entitled to the benefit of, the covenant.
personal information has the same meaning as in the Privacy Act
1988.
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.
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.
privacy safeguard penalty provision has the meaning given by
subsection 56EU(1).
privacy safeguards means the provisions in Subdivisions B to F of
Division 5 of Part IVD (about the consumer data right).

Part I Preliminary
Section 4
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 25-5(5) of that Act.
Registrar means the Registrar of the Tribunal.
Regulatory Powers Act means the Regulatory Powers (Standard
Provisions) Act 2014.
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:
(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 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;

Preliminary Part I
Section 4
(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.
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.
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

Part I Preliminary
Section 4

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.
State/Territory AER member means an AER member referred to
in section 44AP.
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.
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.
Territory means the following:
(a) the Australian Capital Territory;
(b) the Jervis Bay Territory;
(c) the Northern Territory;
(d) Norfolk Island;

Preliminary Part I
Section 4
(e) the Territory of Christmas Island;

(f) the Territory of Cocos (Keeling) Islands.
the Court or the Federal Court means the Federal Court of
Australia.
this Act includes Schedule 2 to the extent that it is applied under
Subdivision A of Division 2 of Part XI.
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.
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.
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
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

Part I Preliminary
Section 4
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.
(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 engaging in of a
concerted practice;
(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
engaging in of a concerted practice;
(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.
(3) Where a provision of this Act is expressed to render a provision of
a contract unenforceable if the provision of the contract has or is
likely to have a particular effect, that provision of this Act applies
in relation to the provision of the contract at any time when the
provision of the contract has or is likely to have that effect
notwithstanding that:
(a) at an earlier time the provision of the contract did not have
that effect or was not regarded as likely to have that effect; or

Preliminary Part I
Section 4A
(b) the provision of the contract 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.
4A Subsidiary, holding and related bodies corporate

(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).

Part I Preliminary
Section 4A
(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.
(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

Preliminary Part I
Section 4B
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
(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.
(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.

Part I Preliminary
Section 4B
4B Consumers
For the purposes of this Act, unless the contrary intention appears,
a person is taken to have acquired particular goods or services as a
consumer if the person would be taken to have acquired the goods
or services as a consumer under section 3 of the Australian
Consumer Law.
4C Acquisition, supply and re-supply

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
first-mentioned 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:
(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

Preliminary Part I
Section 4E
been acquired by the person who acquired them from

the original supplier.
4E Market
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 first-mentioned goods or services.
4F References to purpose or reason

(1) For the purposes of this Act:
(a) a provision of a contract, arrangement or understanding or of
a proposed contract, arrangement or understanding 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 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).

Part I Preliminary
Section 4G
4G Lessening of competition to include preventing or hindering

competition
For the purposes of this Act, references to the lessening of
competition shall be read as including references to preventing or
hindering competition.
4H Application of Act in relation to leases and licences of land and

buildings
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.
4J 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
(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

Preliminary Part I
Section 4K
(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 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.
4K Loss or damage to include injury

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.
4KA Definitions etc. that do not apply in Part XI or Schedule 2

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.
4L Severability
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.
4M Saving of law relating to restraint of trade and breaches of

confidence
This Act does not affect the operation of:

Part I Preliminary
Section 4N
(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.
4N Extended application of Part IIIA

(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, within the meaning of the Offshore
Petroleum and Greenhouse Gas Storage Act 2006, of a State,
a Territory or an external Territory.
(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.
(4) For the purposes of this section:
service includes proposed service covered by Division 2A of
Part IIIA.
5 Extended application of this Act to conduct outside Australia

(1) Each of the following provisions:
(a) Part IV;
(aa) Part IVBA;
(b) Part XI;
(ba) Part XICA;

Preliminary Part I
Section 6
(c) the Australian Consumer Law (other than Part 5-3);

(f) the remaining provisions of this Act (to the extent to which
they relate to any of the provisions covered by paragraph (a),
(aa), (b), (ba) 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.
(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.
(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.
6 Extended application of this Act to persons who are not

corporations
(1) Without prejudice to its effect apart from this section, this Act also
has effect as provided by this section.
(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

Part I Preliminary
Section 6
(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 45AF, 45AG, 45AJ, 45AK, 45, 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
(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

Preliminary Part I
Section 6
(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
(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
(d) in paragraph 87(3)(a) the words “in so far as it confers rights
or benefits or imposes duties or obligations on a corporation”
were omitted; and
(ea) 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
(eb) the second sentence in subsection 45E(1) were omitted; and
(g) subsection 96(2) were omitted; and
(h) 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.
(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.

Part I Preliminary
Section 6
(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
(a) the reference in paragraph 45AD(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 45AD(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 45AD(2)(e) to goods or services
re-supplied, or likely to be re-supplied, were, by express
provision, confined to goods or services re-supplied, or likely
to be re-supplied, to corporations or classes of corporations;
and
(d) the reference in paragraph 45AD(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 45AD(2):
“; or (g) goods or services re-supplied, or likely to be re-supplied, 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 45AD(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

Preliminary Part I
Section 6
(g) the reference in subparagraph 45AD(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 45AD(3)(a)(iii) and (iv) and
(b)(i) and (ii) to persons or classes of persons were, by
express provision, confined to corporations or classes of
corporations; and
(i) the reference in subparagraph 45AD(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 45AD(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 45AD(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 45AD(4)(e) to paragraph (2)(e) or
(f) included a reference to paragraph (2)(g) or (h); and
(m) section 45AD 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 45AD);
(ii) any other provision (other than section 4, 45AD, 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.

Part I Preliminary
Section 6
For the purposes of this subsection, likely and production have the
same meaning as in Division 1 of Part IV.
(2D) In addition to the effect that this Act (other than Parts IIIA, VIIA
(a) sections 45AF, 45AG, 45AJ and 45AK 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
corporation.
(2E) In addition to the effect that this Act (other than Parts IIIA, VIIA
(a) sections 45AF, 45AG, 45AJ and 45AK 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;

Preliminary Part I
Section 6
(ii) any other provision (other than section 4, 151AE or

151AJ or this subsection or subsection (5A)) to the
corporation.
(2F) In addition to the effect that this Act (other than Parts IIIA, VIIA
(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.
(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.
(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:

Part I Preliminary
Section 6
(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
(b) a reference in the provisions of Part XI to a corporation
included a reference to a person not being a corporation.
(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.
(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”.
(5A) Despite anything in section 45AF or 45AG, 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.
(5B) Despite anything in section 45AF or 45AG, 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

Preliminary Part I
Section 6AA
be punishable on conviction by a term of imprisonment not

exceeding 10 years or a fine not exceeding 2,000 penalty units, or
both.
6AA Application of the Criminal Code

(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 45AF or 45AG.

Part II The Australian Competition and Consumer Commission
Section 6A
Part II—The Australian Competition and

Consumer Commission
6A Establishment of Commission
(1) The Australian Competition and Consumer Commission is
established 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.
(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.
(4) Any money received by the Commission is received for and on
behalf of the Commonwealth.
(5) To avoid doubt, a right to sue is taken not to be personal property
for the purposes of subsection (3).

The Australian Competition and Consumer Commission Part II
Section 7
7 Constitution of Commission
(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.
(2) The members of the Commission shall be appointed by the
Governor-General and shall be so appointed as full-time members.
(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.
(4) At least one of the members of the Commission must be a person
who has knowledge of, or experience in, consumer protection.
Note: Under section 23 of the Public Governance, Performance and
Accountability Act 2013, the Chairperson may enter into contracts and
other arrangements on behalf of the Commonwealth.
8 Terms and conditions of appointment

(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.
8A Associate members
(1) The Minister may appoint persons to be associate members of the
Commission.

Section 8A
(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.
(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.
(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, or the consumer data rules, 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.
(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 the making by the Commission
of any decision for the purposes of subsection 93(3), (3A) or (3B)
or 93AC(1), (2) or (2A), 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, or a class of matters, in relation to
which the Chairperson proposes to give a direction under
subsection 19(1), whether he or she should direct that the

Section 8AB
Division concerned is to include an associate member of the

Commission or associate members of the Commission.
(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 referred to
in section 171.
8AB AER members taken to be associate members

(1) For the purposes of this Act and the Public Governance,
Performance and Accountability Act 2013, an 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: An 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, an 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 and 15 and for the purposes of
section 29 of the Public Governance, Performance and
Accountability Act 2013.
(3) As an associate member, the AER member holds office on such
terms and conditions as are specified in the instrument of his or her
appointment under section 44AM or 44AP.
9 Remuneration
(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.
(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.

Section 10
10 Deputy Chairpersons
(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.
(1A) If there is at least one fully-participating jurisdiction, the
Governor-General must not appoint a person as a Deputy
Chairperson unless the Governor-General is satisfied that a
majority of such jurisdictions support the appointment.
(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.
(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.
(3) Where a member of the Commission appointed as Deputy
Chairperson is, upon ceasing to be a 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.
(4) A Deputy Chairperson may resign his or her office of Deputy
Chairperson by writing signed by him or her and delivered to the
Governor-General.
(5) Not more than 2 persons may hold office as Deputy Chairperson at
any one time.
11 Acting Chairperson
(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.

Section 12
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.
(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.
(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.
12 Leave of absence
(1) A member of the Commission has such recreation leave
entitlements as are determined by the Remuneration Tribunal.
(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.
13 Termination of appointment of members of the Commission

(1) The Governor-General may terminate the appointment of a
member of the Commission for misbehaviour or physical or mental
incapacity.

Section 14
(2) If a 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:
(i) for any member (including the Chairperson)—
section 29 of the Public Governance, Performance and
Accountability Act 2013 (which deals with the duty to
disclose interests) or rules made for the purposes of that
section; or
(ii) for the Chairperson—section 17 of this Act; or
(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
14 Termination of appointment of associate members of the

Commission
(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:
remuneration for their benefit; or
(b) fails to comply with his or her obligations under section 29 of
the Public Governance, Performance and Accountability Act
2013 (which deals with the duty to disclose interests) or rules
made for the purposes of that section;
the Minister shall terminate the appointment of that associate

Section 15
15 Resignation
(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.
(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.
16 Arrangement of business
The Chairperson may give directions as to the arrangement of the
business of the Commission.
17 Disclosure of interests by Chairperson

(1) The Chairperson must 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.
(2) Subsection (1) applies in addition to section 29 of the Public
Governance, Performance and Accountability Act 2013 (which
deals with the duty to disclose interests).
17A Disclosure of certain interests by members of the Commission

when taking part in determinations of matters
(1) If, as a result of rules made for the purposes of section 29 of the
Public Governance, Performance and Accountability Act 2013
(which deals with the duty to disclose interests), the Chairperson
becomes aware that:
(a) a member of the Commission is taking part, or is to take part,
in the determination of a matter; and
(b) the member has a pecuniary interest that could conflict with
the proper performance of his or her functions in relation to
the determination of the matter;
then:

Section 18
(c) the Chairperson must cause the interest of the member to be

disclosed to each person concerned in the matter (if the
matter has not already been disclosed to that person in
accordance with the rules); and
(d) unless each person concerned in the matter consents to the
member taking part, or continuing to take part, in the
determination of the matter—the member must not take part,
or continue to take part, in the determination of the matter.
(2) In this section, member of the Commission includes an associate
18 Meetings of Commission
(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.
(2) Meetings of the Commission shall be held at such places as the
Chairperson determines.
(3) The Chairperson shall preside at all meetings of the Commission at
which he or she is present.
(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.
(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:

Section 19
(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.
(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.
19 Chairperson may direct Commission to sit in Divisions

(1) The Chairperson may, by writing signed by him or her, direct that
the powers of the Commission under this Act, or the consumer data
rules, 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.
(2) Without limiting subsection 33(3AB) of the Acts Interpretation Act
1901, a direction may:
(a) specify a particular matter in relation to which the Division is
to exercise the powers of the Commission; or
(b) specify a class of matters in relation to which the Division is
to exercise the powers of the Commission from time to time.
(2A) The Chairperson may vary or revoke a direction:

Section 19
(a) if the direction specifies a particular matter under

paragraph (2)(a)—at any time before the Division makes a
determination in relation to the matter; or
(b) otherwise—at any time.
(2B) If a direction is varied to change the membership of the Division,
the Division as constituted after the change may continue and
complete the determination of any matter that the Division was
dealing with before the change.
(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.
(3A) However, a direction under subsection (1) specifying a matter, or a
class of matters, in relation to which a Division is to exercise the
powers of the Commission does not prevent the Commission
dealing with that matter, or a matter in that class of matters,
otherwise than in the Division.
(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.
(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.
(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, or the consumer data rules,
notwithstanding that another Division of the Commission is
exercising powers of the Commission at the same time.
(8) A direction given under subsection (1) is not a legislative
instrument.

Section 25
25 Delegation by Commission
(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), the consumer data rules,
Procedural Rules under Part XIC, the Telecommunications Act
1997, the Telecommunications (Consumer Protection and Service
Standards) Act 1999, the Water Act 2007, Rules of Conduct under
Part 20 of the Telecommunications Act 1997, the National
Broadband Network Companies Act 2011, regulations under the
National Broadband Network Companies Act 2011, or the
Australian Postal Corporation Act 1989, other than this power of
delegation and its powers to grant, revoke or vary an authorization.
Note: Section 95ZD allows the Commission to delegate certain powers
under Part VIIA to a member of the Commission.
(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.
26 Delegation by Commission of certain functions and powers
Delegation to staff members of ASIC

(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.
(2) The Commission must not delegate a function or power under
subsection (1) unless the Chairperson of the Australian Securities

Section 26
and Investments Commission has agreed to the delegation in

writing.
Delegations relating to Part IVD or the consumer data rules

(3) The Commission may, by resolution and in accordance with
subsection (5), delegate any of its functions and powers under:
(a) Part VI; or
(b) Division 5 of Part XI; or
(c) section 155;
to the extent that the functions or powers relate to Part IVD or the
consumer data rules.
Note: Division 5 of Part XI relates to the consumer data rules in the way
described in section 56BM.
(4) A member of the Commission may, by writing and in accordance

with subsection (5), delegate any of the member’s functions and
powers under section 155 to the extent that the functions or powers
relate to Part IVD or the consumer data rules.
(5) A delegation under subsection (3) or (4) of a function or power
may be:
(a) to the Information Commissioner; or
(b) to a member of the staff of the Office of the Australian
Information Commissioner referred to in section 23 of the
Australian Information Commissioner Act 2010;
if:
(c) the Information Commissioner agrees to the delegation in
writing; and
(d) in the case of a delegation to a staff member referred to in
paragraph (b)—the Information Commissioner is satisfied
that the staff member:
(i) is an SES employee or acting SES employee; or
(ii) is holding or performing the duties of a sufficiently
senior office or position for the function or power.

Section 27
27 Staff of Commission
(1) The staff necessary to assist the Commission shall be persons
engaged under the Public Service Act 1999.
(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.
27A Consultants
(1) On behalf of the Commonwealth, the Commission may engage
persons to give advice to, and perform services for, the
Commission.
(2) The terms and conditions of engagement are as determined by the
Commission.
28 Functions of Commission in relation to dissemination of

information, law reform and research
(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;

Section 28
(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.
(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.
(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 the Parliament as soon as practicable after the report is received
by him or her.

Section 29
29 Commission to comply with directions of Minister and

requirements of the Parliament
(1) The Minister may give the Commission directions connected with
the performance of its functions or the exercise of its powers under
this Act.
(1A) The Minister must not give directions under subsection (1) relating
to:
(a) Part IIIA, IV, IVBA, VII, VIIA, X, XIB, XIC or XICA; or
(b) Division 3 of Part XI in relation to individual cases.
(1B) The Commission must comply with a direction.
(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.

Part IIA The National Competition Council
Section 29A
Part IIA—The National Competition Council
29A Establishment of Council

(1) The National Competition Council is established by this section.
(2) For the purposes of the finance law (within the meaning of the
Public Governance, Performance and Accountability Act 2013):
(a) the Council is a listed entity; and
(b) the Council President is the accountable authority of the
Council; and
(c) the following persons are officials of the Council:
(i) the Council President;
(ii) the other Councillors;
(iii) the staff referred to in subsection 29M(1);
(iv) consultants engaged under section 29N; and
(d) the purposes of the Council include the functions of the
Council referred to in section 29B.
29B Functions and powers of Council

(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.

The National Competition Council Part IIA
Section 29BA
(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.
(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.
(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.
29BA Commonwealth consent to conferral of functions etc. on

Council
(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.
(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.
(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.

Section 29BB
29BB How duty is imposed
Application
(1) 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.
State or Territory legislative power sufficient to support duty

(2) 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 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).
Commonwealth legislative power sufficient to support duty but

State or Territory legislative powers are not
(3) 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:

Section 29BC
(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.
29BC When a State/Territory energy law imposes a duty

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.
29C Membership of Council

(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.
29D Terms and conditions of office

(1) A Councillor may be appointed to hold office on either a full-time
or a part-time basis.

Section 29E
(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.
29E Acting Council President

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.
29F Remuneration of Councillors

(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.
29G Leave of absence

(1) A full-time Councillor has such recreation leave entitlements as are
determined by the Remuneration Tribunal.
(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.

Section 29H
29H Termination of appointment of Councillors

Councillor for misbehaviour or for physical or mental incapacity.
(2) The Governor-General must terminate the appointment of a
Councillor who:
remuneration for their benefit;
(b) fails to comply with his or her obligations under section 29 of
the Public Governance, Performance and Accountability Act
2013 (which deals with the duty to disclose interests) or rules
made for the purposes of that section;
(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.
29I Resignation of Councillors

A Councillor may resign by giving the Governor-General a signed
resignation notice.
29J Arrangement of Council business

(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

Section 29L
(b) if the parties to the Agreement are evenly divided on the

question of agreeing to a program—the Commonwealth.
29L Council meetings

(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.
(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.
29LA Resolutions without meetings

(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.

Section 29M
(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.
29M Staff to help Council

(1) The staff needed to help the Council are to be persons engaged
under the Public Service Act 1999.
(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.
29N Consultants
(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.
29O Annual report

An annual report prepared by the Council President and given to
the Minister under section 46 of the Public Governance,
Performance and Accountability Act 2013 for a period must
include details of the following:

Section 29O
(a) the time taken by the Council to make a recommendation on

any application under section 44F, 44M, 44NA or 44NBA
(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) section 44CA (about declaration criteria for 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.

The Australian Competition Tribunal Part III
Section 30
Part III—The Australian Competition Tribunal
30 Constitution of Tribunal
(1) The Trade Practices Tribunal that existed immediately before this
subsection commenced continues to exist as the Australian
Competition Tribunal.
(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.
(3) A member of the Tribunal shall be appointed by the
Governor-General.
31 Qualifications of members of Tribunal

(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.
(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.
31A Appointment of Judge as presidential member of Tribunal not

to affect tenure etc.
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,

Part III The Australian Competition Tribunal
Section 32
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.
32 Terms and conditions of appointment

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.
33 Remuneration and allowances of members of Tribunal

(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.
34 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.

Section 34
(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.
(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.
(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.

Section 35
35 Suspension and removal of members of Tribunal

(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.
(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.
36 Resignation
A member of the Tribunal may resign his or her office by writing
signed by him or her and delivered to the Governor-General.

Section 37
37 Constitution of Tribunal for particular matters

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.
38 Validity of determinations
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.
39 President may give directions

(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.
40 Disclosure of interests by members of Tribunal

(1) Where 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

Section 41
(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
(b) in any other case—the President shall cause the interest of
the member to be disclosed to the persons concerned in the
proceedings.
41 Presidential member to preside

The presidential member who is a member of a Division shall
preside at proceedings of that Division.
42 Decision of questions
(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.
43 Member of Tribunal ceasing to be available

(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.

Section 43A
(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).
(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.
43A Counsel assisting Tribunal

(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.
legal practitioner means a legal practitioner (however described)
of the High Court or of the Supreme Court of a State or Territory.
43B Consultants
The Registrar may, on behalf of the Commonwealth, engage
persons as consultants to, or to perform services for, the Tribunal.

Section 44
44 Staff of Tribunal
(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.
44A Acting appointments

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.

The Australian Energy Regulator (AER) Part IIIAA
Preliminary Division 1
Section 44AB
Part IIIAA—The Australian Energy Regulator

(AER)
Division 1—Preliminary
44AB Definitions
In this Part, unless the contrary intention appears:
Australian Energy Market Agreement means the agreement, as
amended from time to time:
(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.
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
part-time basis.
44AC This Part binds the Crown

This Part binds the Crown in each of its capacities.
44AD Extra-territorial operation

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;

Part IIIAA The Australian Energy Regulator (AER)
Division 1 Preliminary
Section 44AD
(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.

Establishment of the AER Division 2
Section 44AE
Division 2—Establishment of the AER
44AE Establishment of the AER

(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.
44AF AER to hold money and property on behalf of the

Commonwealth
The AER holds any money or property for and on behalf of the
Commonwealth.
44AG Constitution of the AER

The AER consists of:
(a) 2 Commonwealth AER members, appointed in accordance
with section 44AM; and
(b) 3 State/Territory AER members, appointed in accordance
with section 44AP.

Division 3 Functions and powers of the AER
Section 44AH
Division 3—Functions and powers of the AER
44AH Commonwealth functions

(1) 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.
(2) Regulations made for the purposes of paragraph (1)(b) may

empower the AER to make legislative instruments.
(3) Section 42 (disallowance) of the Legislation Act 2003 does not
apply to legislative instruments empowered by regulations made
for the purposes of paragraph (1)(b).
(4) Subsection (3) has effect subject to any express provision to the
contrary in the regulations.
44AI Commonwealth consent to conferral of functions etc. on AER
General rule
(1) Subject to section 44AIA, 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.

power, or the imposition of a duty, by a State/Territory energy law
or local energy instrument to the extent to which:
that may be imposed on the AER; or

Functions and powers of the AER Division 3
Section 44AIA

(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.
(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 the Australian Energy Market
Agreement, or any other relevant agreement between the
Commonwealth and the State or Territory that made the
instrument.
(5) To avoid doubt, if a State/Territory energy law is also a local
energy instrument, subsection (4) applies to the law.
44AIA No merits review of AER decisions

A decision of the AER under a State/Territory energy law or local
energy instrument is not to be subject to merits review (however
described) by a body established under a law of a State or
Territory.
44AJ How duty is imposed
Application
(1) 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.

Division 3 Functions and powers of the AER
Section 44AK

(2) The duty is taken not to be imposed by this Part (or any other law
(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.
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).

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.
(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
duties that may be imposed on the AER.
(6) Subsections (1) to (5) do not limit section 44AI.

Functions and powers of the AER Division 3
Section 44AK
44AK When a State/Territory energy law etc. imposes a duty

For the purposes of sections 44AI and 44AJ, a State/Territory
energy law or local energy instrument imposes a duty on the AER
if:
(a) the law or instrument confers a function or power on the
AER; and
conferred give rise to an obligation on the AER to perform
the function or to exercise the power.
44AL Powers of the AER

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.

Division 4 Administrative provisions relating to the AER
Section 44AM
Division 4—Administrative provisions relating to the AER

Subdivision A—Appointment etc. of members
44AM Appointment of Commonwealth AER members

(1) A Commonwealth AER member is to be appointed by the
Governor-General by written instrument, on either a full-time or
part-time basis.
Note: A Commonwealth AER member is also taken to be an associate
member of the Commission: see section 8AB.
(2) A 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 a Commonwealth AER
member unless the person has knowledge of, or experience in,
industry, commerce, economics, law, consumer protection or
public administration.
44AO Acting appointment of Commonwealth AER member

(1) The Minister may, by written instrument, appoint a person to act as
a 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
(b) during any period, or during all periods, when the
Commonwealth AER member:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the
office.
Note: For rules that apply to acting appointments, see sections 33AB and
33A of the Acts Interpretation Act 1901.

Administrative provisions relating to the AER Division 4
Section 44AP
(2) A person is not eligible for appointment to act as a Commonwealth

AER member unless the person has knowledge of, or experience
in, industry, commerce, economics, law, consumer protection or
44AP Appointment of State/Territory AER members

(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 has knowledge of, or experience in,
industry, commerce, economics, law, consumer protection or
44AQ Acting appointment of State/Territory AER member

(1) The Minister may, by written instrument, 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:
office.

Section 44AR
(2) A person is not eligible for appointment to act as a State/Territory

AER member unless the person has knowledge of, or experience
in, industry, commerce, economics, law, consumer protection or
44AR AER Chair

(1) One of the AER members is to be appointed by the
Governor-General 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.
(2) A person is not eligible for appointment as the AER Chair unless
the person is a full-time AER member.
(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.
44ARA AER Deputy Chair

(1) One of the AER members is to be appointed by the
Governor-General as the AER Deputy Chair, by written
instrument. The appointment as AER Deputy Chair may be made
at the same time as the appointment as AER member, or at a later
time.
(2) A person is not eligible for appointment as the AER Deputy Chair
unless the person is a full-time AER member.
(3) The AER Deputy Chair holds office for the period specified in the
instrument of appointment. The period must not exceed 5 years.
(4) If a person who is the AER Deputy Chair ceases to be an AER
member, then the person also ceases to be the AER Deputy Chair.

Section 44ARB
Note: A person may cease to be the AER Deputy Chair without ceasing to
be an AER member.
44ARB AER Deputy Chair to act as the AER Chair

The AER Deputy Chair is 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 all periods when the AER Chair:
office.
Note: See also subsection 33A(2) of the Acts Interpretation Act 1901.
44AS Acting AER Deputy Chair

(1) The Minister may, by written instrument, appoint an AER member
to act as the AER Deputy Chair:
(a) during a vacancy in the office of the AER Deputy 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
Deputy Chair:
office.
(2) If a person acting as the AER Deputy Chair ceases to be an AER

member, then the appointment to act as the AER Deputy Chair also
ceases.

Section 44AT
44AT Remuneration of AER members

(1) An 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 is to be paid the allowances that are prescribed.
(3) Subsections (1) and (2) have effect subject to the Remuneration
Tribunal Act 1973.
44AU Additional remuneration of AER Chair

(1) The AER Chair is to be paid additional remuneration (if any)
(2) The AER Chair is to be paid additional allowances (if any) that are
prescribed.
1973 other than subsection 7(11) of that Act.
44AV Leave of absence

(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.

Section 44AW
44AW Other terms and conditions

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.
44AX Outside employment

(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.
44AY Disclosure of interests

(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.
(3) Section 29 of the Public Governance, Performance and
Accountability Act 2013 (which deals with the duty to disclose
interests) does not apply in relation to a person who is an AER
member when he or she is acting in his or her capacity as an AER
member.
Note: Section 29 of the Public Governance, Performance and
Accountability Act 2013 will apply in relation to a person who is an
AER member when he or she is acting in his or her capacity as an
associate member of the Commission.

Section 44AZ
44AZ Resignation
(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.
(3) A person who is the AER Deputy Chair may resign the person’s
appointment as AER Deputy Chair by giving the
Governor-General a written resignation. The resignation does not
affect the person’s appointment as an AER member.
44AAB Termination of appointment
All AER members

(1) 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
(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
(c) if the member fails, without reasonable excuse, to comply
with section 44AY.
Additional grounds: full-time AER members

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

Section 44AAC
(b) the member engages, except with the Minister’s consent, in

paid employment outside the duties of his or her office.
Additional grounds: part-time AER members

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
44AAC Staff etc. to assist the AER

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.
44AAD Meetings
(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, 3 AER members constitute a quorum.
The quorum must include the AER Chair.

Section 44AAE
(4) Questions arising at a meeting must be determined by a majority of

the votes of the members present and voting.
(4A) The AER Chair has a deliberative vote and, in the event of an
equality of votes, also has a casting vote.
(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.
44AAE Resolutions without meetings

(1) If all 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 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.
44AAEA Arbitration
(1) Sections 44AAD 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

Section 44AAEB
(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).
Subdivision CA—Divisions of the AER
44AAEB Divisions of the AER—functions and powers under a law

of the Commonwealth
Directions
(1) The AER Chair may, by writing, direct that all or any of the AER’s
functions and powers:
(a) under this Part or under regulations made under this Act; or
(b) under another law of the Commonwealth;
in relation to a matter are to be performed and exercised by a
Division of the AER constituted by the AER Chair and at least 2
other AER members, as specified in the direction.
(2) If a direction under subsection (1) is in force in relation to a matter,
the Division of the AER specified in the direction may make
recommendations to the AER in relation to the matter.
the AER Chair may, by writing, at any time before the Division of
the AER specified in the direction has made a determination in
relation to the matter:
(a) revoke the direction; or

Section 44AAEB
(b) amend the direction in relation to the membership of the

Division or in any other respect.
If the membership of a Division of the AER is changed, the
Division as constituted after the change may complete the
determination of the matter.
The AER is taken to consist of the Division

direction given under subsection (1), the AER is taken to consist of
the Division of the AER specified in the direction.
Meetings
(5) The AER Chair is not required to attend a meeting of a Division of
the AER if the AER Chair does not think fit to do so.
(6) The AER Deputy Chair is not required to attend a meeting of a
Division of the AER if the AER Deputy Chair does not think fit to
do so.
(7) At a meeting of a Division of the AER at which neither the AER
Chair nor the AER Deputy Chair is presiding, an AER member
nominated for the purpose by the AER Chair is to preside.
(8) Despite section 44AAD, at a meeting of a Division of the AER, 2
AER members form a quorum. The quorum need not include the
AER Chair or AER Deputy Chair.
Functions and powers of the AER

(9) A Division of the AER specified under subsection (1) may perform
the functions and exercise the powers of the AER mentioned in
that subsection despite the fact that another Division of the AER is
performing those functions and exercising those powers at the
same time.

Section 44AAEC
44AAEC Divisions of the AER—functions and powers under a

State/Territory energy law or a local energy instrument
Directions
(1) The AER Chair may, by writing, direct that all or any of the AER’s
functions and powers:
(a) under a State/Territory energy law; or
(b) under a local energy instrument;
in relation to a matter are to be performed and exercised by a
Division of the AER constituted by the AER Chair and at least 2
other AER members, as specified in the direction.
the Division of the AER specified in the direction may make
recommendations to the AER in relation to the matter.
the AER Chair may, by writing, at any time before the Division of
the AER specified in the direction has made a determination in
relation to the matter:
(a) revoke the direction; or
(b) amend the direction in relation to the membership of the
Division or in any other respect.
If the membership of a Division of the AER is changed, the
Division as constituted after the change may complete the
determination of the matter.
The AER is taken to consist of the Division

direction given under subsection (1), the AER is taken to consist of
the Division of the AER specified in the direction.
Meetings
(5) The AER Chair is not required to attend a meeting of a Division of
the AER if the AER Chair does not think fit to do so.

Section 44AAEC
(6) The AER Deputy Chair is not required to attend a meeting of a

Division of the AER if the AER Deputy Chair does not think fit to
do so.
(7) At a meeting of a Division of the AER at which neither the AER
Chair nor the AER Deputy Chair is presiding, an AER member
nominated for the purpose by the AER Chair is to preside.
(8) Despite section 44AAD, at a meeting of a Division of the AER, 2
AER members form a quorum. The quorum need not include the
AER Chair or AER Deputy Chair.
Functions and powers of the AER

(9) A Division of the AER specified under subsection (1) may perform
the functions and exercise the powers of the AER mentioned in
that subsection despite the fact that another Division of the AER is
performing those functions and exercising those powers at the
same time.
Application
(10) This section does not apply to a State/Territory energy law unless a
provision of:
(a) the State/Territory energy law; or
(b) another law of the State or Territory concerned;
provides that this section extends to, and has effect for the purposes
of, the State/Territory energy law.
(11) This section does not apply to a local energy instrument unless a
provision of:
(a) the local energy instrument; or
(b) the State/Territory energy law of the State or Territory
concerned; or
(c) another law of the State or Territory concerned;
provides that this section extends to, and has effect for the purposes
of, the local energy instrument.

Section 44AAF
Subdivision D—Miscellaneous
44AAF Confidentiality
(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.
Authorised use and disclosure

(2) For the purposes of subsection (1), the disclosure of information to
the extent required or permitted by a law of the Commonwealth, a
State or Territory, is authorised use and disclosure of the
information.
(3) Disclosing information to one of the following is authorised use
and disclosure of the information:
(a) the Commission;
(b) the AEMC;
(c) Australian Energy Market Operator 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.
(3A) If the AER is satisfied that particular information will enable or
assist an entity covered by subsection (3B) to perform or exercise
any of the entity’s functions or powers, disclosing the information
to the entity is authorised use and disclosure of the information.

Section 44AAF
(3B) The entities are as follows:

(a) a Department;
(b) a body (whether incorporated or not) established or appointed
for a public purpose by or under a law of the
Commonwealth;
(c) a body established or appointed by the Governor-General, or
by a Minister, otherwise than by or under a law of the
Commonwealth;
(d) the holder of an office established for public purposes by or
under a law of the Commonwealth.
(4) A person or body to whom information is disclosed under
subsection (3) or (3A) 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) or (3A).
(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 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

Section 44AAFA
(b) what may otherwise constitute, for the purposes of

subsection (1), authorised use or disclosure of information.
(9) Despite subsections (3) to (7), if:
(a) any of the following restricts or prohibits the use or
disclosure of information:
(i) section 18D of 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;
(ii) that section applied as a law of another State or
Territory; and
(b) the use or disclosure of the information would, apart from
this subsection, be authorised under this section;
the use or disclosure of the information is authorised for the
purposes of this section only to the extent that the use or disclosure
of the information is required or permitted in accordance with the
relevant section mentioned in subparagraph (i) or (ii).
44AAFA Power of AER to obtain information and documents
Notice requiring information etc.

(1) This section applies if the AER has reason to believe that a person
is capable of providing information, producing a document or
giving evidence that the AER requires for the performance of the
functions referred to in section 44AH (Commonwealth functions).
(2) The AER may, by written notice given to the person, require the
person to do one or more of the following:
(a) give such information to the AER;
(b) produce any such documents to the AER;
(c) appear before the AER, or before a specified person assisting
the AER who is an SES employee or an acting SES
employee, to give any such evidence (either orally or in
writing) and produce any such documents.
(3) The notice must specify:

Section 44AAFB
(a) if paragraph (2)(a) or (b) applies:

(i) the period within which the person must comply with
the notice; and
(ii) the manner in which the person must comply with the
notice; or
(b) if paragraph (2)(c) applies:
(i) the time at which the person must appear before the
AER or person; and
(ii) the place at which the person must appear before the
AER or person.
Oath or affirmation
(4) The AER may require the evidence given under paragraph (2)(c) to
be given on oath or affirmation. For that purpose, an AER member
or a person assisting the AER may administer the oath or
affirmation.
44AAFB Failure to comply with notice to give information etc. is an

offence
Offence
(1) A person commits an offence if:
(a) the person is given a notice under section 44AAFA; and
(b) the person fails to comply with the notice.
Penalty: Imprisonment for 2 years or 100 penalty units, or both.
Exceptions
(2) Subsection (1) 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 matters in
this subsection (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) does not apply to the extent that:

(a) the notice relates to producing documents; and

Section 44AAFC
(b) the person proves that, after a reasonable search, the person is
not aware of the documents; and
(c) the person provides a written response to the notice,
including a description of the scope and limitations of the
search.
Note: A defendant bears a legal burden in relation to the matter in
paragraph (3)(b) (see section 13.4 of the Criminal Code).
(4) For the purposes of (but without limiting) paragraph (3)(b), a

determination of whether a search is reasonable may take into
account the following:
(a) the nature and complexity of the matter to which the notice
relates;
(b) the number of documents involved;
(c) the ease and cost of retrieving a document relative to the
resources of the person who was given the notice;
(d) any other relevant matter.
44AAFC AER may inspect, copy and retain documents

(1) A member of the AER, or a person authorised by a member of the
AER, may inspect a document produced under section 44AAFA
and may make and retain copies of such a document.
(2) The AER may take, and retain for as long as is necessary,
possession of a document produced under section 44AAFA.
(3) 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 AER to be a true copy.
(4) The certified copy must be received in all courts and tribunals as
evidence as if it were the original.
(5) Until a certified copy is supplied, the AER must, at such times and
places as the AER 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 the document.

Section 44AAG
44AAG Federal Court may make certain orders

(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;
(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:

Section 44AAGA
(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.
44AAGA Federal Court may order disconnection if an event

specified in the National Electricity Rules occurs
(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.
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.

Section 44AAH
Registered participant has the same meaning as in the National

Electricity Law.
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.
44AAH Delegation by the AER

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.
44AAI Fees
(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.
44AAK Regulations may deal with transitional matters

(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.

Section 44AAK
(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
(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.
matters of a transitional nature also includes matters of an
application or saving nature.

Part IIIAB Application of the finance law
Section 44AAL
Part IIIAB—Application of the finance law
44AAL Application of the finance law

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.

Access to services Part IIIA
Section 44AA
Part IIIA—Access to services

44AA Objects of Part

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.
44B Definitions
access code means a code referred to in section 44ZZAA.
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.
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.
access undertaking means an undertaking under section 44ZZA.

Part IIIA Access to services
Section 44B
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.
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
(c) a decision under section 44ZZBB to extend or refuse to
extend the period for which an access undertaking is in
operation.
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 criteria, for a service, has the meaning given by
section 44CA.

Section 44B
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.
entity means a person, partnership or joint venture.
final determination means a determination other than an interim
determination.
fixed principle has the meaning given by section 44ZZAAB.
ineligibility recommendation means a recommendation made by
the Council under section 44LB.
interim determination means a determination that is expressed to
be an interim determination.
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

Section 44B
(d) the National Gas (Commonwealth) Law (within the meaning

of the Australian Energy Market Act 2004); or
(e) the Offshore Western Australian Pipelines (Commonwealth)
Law (within the meaning of the Australian Energy Market
Act 2004).
officer has the same meaning as in the Corporations Act 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.
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:
(a) 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

Section 44C
(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.
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.
44C How this Part applies to partnerships and joint ventures

(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.
(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.

Section 44CA
(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.
44CA Meaning of declaration criteria

(1) The declaration criteria for a service are:
(a) that access (or increased access) to the service, on reasonable
terms and conditions, as a result of a declaration of 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; and
Note: Market is defined in section 4E.
(b) that the facility that is used (or will be used) to provide the
service could meet the total foreseeable demand in the
market:
(i) over the period for which the service would be declared;
and
(ii) at the least cost compared to any 2 or more facilities
(which could include the first-mentioned facility); and
(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

Section 44D
(iii) the importance of the facility to the national economy;

and
(d) that access (or increased access) to the service, on reasonable
terms and conditions, as a result of a declaration of the
service would promote the public interest.
(2) For the purposes of paragraph (1)(b):
(a) if the facility is currently at capacity, and it is reasonably
possible to expand that capacity, have regard to the facility as
if it had that expanded capacity; and
(b) without limiting paragraph (1)(b), the cost referred to in that
paragraph includes all costs associated with having multiple
users of the facility (including such costs that would be
incurred if the service is declared).
(3) Without limiting the matters to which the Council may have regard
for the purposes of section 44G, or the designated Minister may
have regard for the purposes of section 44H, in considering
whether paragraph (1)(d) of this section applies the Council or
designated Minister must have regard to:
(a) the effect that declaring the service would have on
investment in:
(i) infrastructure services; and
(ii) markets that depend on access to the service; and
(b) the administrative and compliance costs that would be
incurred by the provider of the service if the service is
declared.
44D Meaning of designated Minister

(1) The Commonwealth Minister is the designated Minister unless
subsection (2), (3), (4) or (5) applies.
(2) In relation to declaring a service in a case where:
(a) the provider is a State or Territory body that has some control
over the conditions for accessing the facility that is used (or
is to be used) to provide the service; and

Section 44DA
(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 that has some control over the
conditions for accessing the facility that is used (or is to be
used) to provide the service; 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.
(5) In relation to revoking a decision:
(a) that a service is ineligible to be a declared service; and
(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.
44DA The principles in the Competition Principles Agreement have

status as guidelines
(1) For the avoidance of doubt:
(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

Section 44E
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.
(2) An effective access regime may contain additional matters that are
not inconsistent with Competition Principles Agreement principles.
44E This Part binds the Crown

(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
Section 44F
Division 2—Declared services

Subdivision A—Recommendation by the Council
44F Person may request recommendation

(1) The designated Minister, or any other person, may apply in writing
to the Council asking the Council to recommend that a particular
service be declared unless:
(a) the service is the subject of a regime for 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
(b) the service is the subject of an access undertaking in
operation under Division 6; or
(c) if a decision 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 service was
specified, in the application for that decision, as a service
proposed to be provided by means of the facility; or
(d) if the service is provided by means of a pipeline (within the
meaning of a National Gas Law)—there is:
(i) a 15-year no-coverage determination in force under the
National Gas Law in respect of the pipeline; or
(ii) a price regulation exemption in force under the National
Gas Law in respect of the pipeline; or
(e) there is a decision of the designated Minister in force under
section 44LG that the service is ineligible to be a declared
service.
Note: This means an application can only be made or dealt with under this
Subdivision if none of paragraphs (a) to (e) apply.
(1A) If the Council decides that one or more of paragraphs (1)(a) to (e)
apply for a service mentioned in a person’s purported application
under that subsection, the Council must give the person written
notice explaining:

Declared services Division 2
Section 44F
(a) why those paragraphs apply; and

(b) that such an application cannot be made for the service.
(2) After receiving an application under subsection (1), 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.
(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.
(5) The applicant may withdraw the application at any time before the
Council makes a recommendation relating to it.
(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.
(7) If a request is made under subsection (6), the Council must decide
to:
(a) make the variation; or
(b) reject the variation.

Section 44FA
(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.
44FA Council may request information

(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.
(4) Subsections 44GB(4) to (6) apply to information given in response
to a notice under this section (whether given in compliance with
the notice or not) in a corresponding way to the way those
subsections apply to a submission made in response to a notice
under subsection 44GB(1).

Section 44G
Note: This allows the Council to make the information publicly available,
subject to any confidentiality concerns.
44G Criteria for the Council recommending declaration of a service

The Council cannot recommend that a service be declared unless it
is satisfied of all of the declaration criteria for the service.
44GA Time limit for Council recommendations
Council to make recommendation within the consideration period

(1) 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).
Stopping the clock

(3) 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.
Stopping the clock

Item Column 1 Column 2 Column 3
Situation Start day End day
1 An agreement is The first day The last day of the period specified
made in relation to of the period in the agreement
the application specified in
under the agreement
subsection (5)

Section 44GA
Stopping the clock

2 A notice is given The day on The last day of the period specified
under which the in the notice for the giving of the
subsection 44FA(1) notice is given information
requesting
information in
relation to the
application
(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.
Stopping the clock by agreement

(5) 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.
Council may extend time for making recommendation

(7) 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.

Section 44GB
(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.
Publication
(10) 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.
Failure to comply with time limit does not affect validity

(11) 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.
44GB Council may invite public submissions on the application
Invitation
(1) 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).
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.

Section 44GC
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:
(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
(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.

Section 44GC
44GC Council must publish its recommendation

(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
provider.
Timing
(3) 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.
Consultation
(4) Before publishing under subsection (1), the Council may give any
one or more of the following persons:
(a) the applicant under section 44F;
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.

Section 44H
Subdivision B—Declaration by the designated Minister
44H Designated Minister may declare a service

(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.
(1A) The designated Minister must have regard to the objects of this
Part in making his or her decision.
(4) The designated Minister cannot declare a service unless he or she
is satisfied of all of the declaration criteria for the service.
(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:
(a) to have made a decision under this section in accordance with
the declaration recommendation; and
(b) to have published that decision under section 44HA.
44HA Designated Minister must publish his or her decision

(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
provider.

Section 44I
Consultation
(3) Before publishing under subsection (1), the designated Minister
may give any one or more of the following persons:
(a) the applicant under section 44F;
provider;
(c) any other person the designated Minister considers
appropriate;
(d) specifying what the designated Minister is proposing to
publish; and
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.
44I Duration and effect of declaration

(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.

Section 44J
(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.
44J Revocation of declaration

(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.
(2) The Council cannot recommend revocation of a declaration unless
it is satisfied that, at the time of the recommendation:
(a) subsection 44F(1) would prevent the making of an
application for a recommendation that the service concerned
be declared; or
(b) subsection 44H(4) would prevent the service concerned from
being declared.
(3) On receiving a revocation recommendation, the designated
Minister must either revoke the declaration or decide not to revoke
the declaration.
(3A) The designated Minister must have regard to the objects of this
(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.

Section 44K
(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 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.
44K Review of declaration

(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).
(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).

Section 44KA
(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.
(6B) The Tribunal must:
(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
(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).
44KA Tribunal may stay operation of declaration

(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:

Section 44KA
(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:
(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
last-mentioned 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.

Section 44KB
(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.
44KB Tribunal may order costs be awarded

(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 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

Section 44L
(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.
44L Review of decision not to revoke a declaration

(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.
section 44ZZOAA.
the Council to give assistance for the purposes of the review.

Section 44L

(ii) any other person who has been made a party to the
(6) The Tribunal may either:
(b) set aside the designated Minister’s decision and revoke the
declaration.

Services that are ineligible to be declared Division 2AA
Section 44LA
Division 2AA—Services that are ineligible to be declared

Subdivision A—Scope of Division
44LA Constitutional limits on operation of this Division

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
44LB Ineligibility recommendation
Person may request recommendation

(1) 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.
Council must make recommendation

(2) 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

Division 2AA Services that are ineligible to be declared
Section 44LB
(b) recommend to the designated Minister that he or she decide

that the service is not ineligible to be a declared service.
section 44LD.
on the application: see sections 44LC and 44LE.
Note 3: The Council must publish its recommendation: see section 44LF.
Limits on recommendation
(3) 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 declaration criteria
for 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.
Relationship between ineligibility recommendations, access

undertakings and competitive tender processes
(5) 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:

Section 44LC
(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.
Applicant may withdraw application

(7) The applicant may withdraw the application at any time before the
Council makes a recommendation relating to it.
44LC Council may request 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.
(ii) if the person is not the provider, or the person who
expects to be the provider—that person; and
Council:
period; and

Section 44LD
44LD Time limit for Council recommendations

section 44LB within the consideration period.
Stopping the clock

on an application under section 44LB, in a situation referred to in
period:
Stopping the clock

1 An agreement is The first day of The last day of the period
made in relation to the period specified in the agreement
the application specified in the
under agreement
subsection (5)
2 A notice is given The day on The last day of the period
under which the notice specified in the notice for the
subsection 44LC(1) is given giving of the information
requesting
information in
relation to the
application


Section 44LD
not exceed 60 days.

(5) The Council and the applicant may agree in writing that a specified
period is to be disregarded in working out the expected period.
agreement.
Extension of time for making decision

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.
(a) specify when the Council must now make a recommendation
on the application; and
(b) if the applicant is not the person who is, or expects to be, the
provider—that person.
Publication

Section 44LE

under this section.
44LE Council may invite public submissions on the application
Invitation
inviting public submissions on an application under section 44LB
if it considers that it is appropriate and practicable to do so.
make on the application, the Council:
the notice.

available.
Confidentiality
Council:

Section 44LF

submission under section 44LF;
the submission.
the person; and
of it; and
submission under section 44LF; and
making its recommendation on the application.
44LF Council must publish its recommendation
Council must publish its recommendation

recommendation under section 44LB and its reasons for the
recommendation.
(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.

Section 44LG
Timing
the day the designated Minister publishes his or her decision on the
recommendation or as soon as practicable after that day.
Consultation
(b) any other person the Council considers appropriate;
(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
considers relevant.
Subdivision C—Designated Minister’s decision on ineligibility
44LG Designated Minister’s decision on ineligibility

(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.

Section 44LG
(2) The designated Minister must have regard to the objects of this
(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
(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 declaration
criteria for 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.

Section 44LH
44LH Designated Minister must publish his or her decision

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.
Consultation
(3) Before publishing under subsection (1), the designated Minister
may give any one or more of the following persons:
(b) any other person the designated Minister considers
appropriate;
(c) specifying what the designated Minister is proposing to
publish; and
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
Subdivision D—Revocation of ineligibility decision
44LI Revocation of ineligibility decision
Council may recommend revocation if facility materially different

or upon request
(1) The Council may recommend to the designated Minister that the
designated Minister revoke his or her decision (the ineligibility
decision) that a service is ineligible to be a declared service. The

Section 44LI
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 declaration criteria
for 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.
Minister must decide whether to revoke

(3) 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
Minister must publish decision

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.
Deemed decision of Minister

(7) If the designated Minister does not publish his or her decision to
revoke or not to revoke the ineligibility decision within the period

Section 44LJ
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).
Limits on when a revocation can be made

(8) The designated Minister cannot revoke the ineligibility decision
without receiving a recommendation from the Council that the
ineligibility decision be revoked.
When a revocation comes into operation

(9) 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.
Subdivision E—Review of decisions
44LJ Review of ineligibility decisions
Application for review

(1) 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.

Section 44LJ
(3) The review by the Tribunal is a reconsideration of the matter based

on the information, reports and things referred to in
section 44ZZOAA.
Council to provide assistance

(6) Without limiting subsection (5), the member may, by written
(7) The Tribunal must:
(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
Tribunal’s decision
(8) 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.

Section 44LK
(9) If the designated Minister decided that a service is not ineligible to

be a declared service, the Tribunal may either:
(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).
Effect of Tribunal’s decision

(10) The Tribunal’s decision is taken to be a decision by the designated
Minister for all purposes of this Part (except this section).
44LK Review of decision to revoke or not revoke an ineligibility

decision
Application for review

designated Minister under subsection 44LI(3) may apply in writing
to the Tribunal for a review of the decision.
section 44ZZOAA.
Council to give assistance


Section 44LK
(6) Without limiting subsection (5), the member may, by written

(ii) the person who is, or expects to be, the provider of the
service; and
(8) 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:
(b) set aside the designated Minister’s decision to revoke the
(9) If the designated Minister decided not to revoke his or her
ineligibility decision, the Tribunal may either:
(b) set aside the designated Minister’s decision and revoke the
Effect of Tribunal’s decision

(10) 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

Section 44LL
by the Minister to revoke his or her decision that the service is

ineligible to be a declared service.
Subdivision F—Other matters
44LL Ineligibility decisions subject to alteration, cancellation etc.

(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.

Effective access regimes Division 2A
Section 44M
Division 2A—Effective access regimes

Subdivision A—Recommendation by Council
44M Recommendation for a Ministerial decision on effectiveness of

access regime
(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.
(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.
(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.
section 44NC.
on the application: see sections 44MA and 44NE.
Note 3: The Council must publish its recommendation: see section 44NF.
(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
(aa) must have regard to the objects of this Part; and
(b) must, subject to section 44DA, not consider any other
matters.

Division 2A Effective access regimes
Section 44MA
(4A) In deciding what recommendation it should make, the Council

must disregard Chapter 5 of a National Gas Law.
(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.
44MA Council may request information

application under section 44M.
provider; and
Council:
period; and
Subdivision B—Decision by Commonwealth Minister
44N Ministerial decision on effectiveness of access regime

(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

Section 44N
(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.
(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.
(2A) In making a decision, the Commonwealth Minister must disregard
Chapter 5 of a National Gas Law.
(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.
(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).

Section 44NA
Subdivision C—Extensions of Commonwealth Minister’s

decision
44NA Recommendation by Council

(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.
Application to Council
(2) 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.
Assessment by Council
(4) 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).
(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.
(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.

Section 44NAA
section 44NC.
on the application: see sections 44NAA and 44NE.
44NAA Council may request information

application under section 44NA.
provider; and
Council:
period; and
44NB Decision by the Commonwealth Minister

(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).
section 44NG.

Section 44NBA
(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).
Multiple extensions
(4) The Commonwealth Minister may extend the period for which a
decision is in force under section 44N more than once.
Subdivision CA—Revocation of Commonwealth Minister’s

decision
44NBA Recommendation by Council

(1) If a decision of the Commonwealth Minister is in force under
section 44N (including as a result of an extension under

Section 44NBA
section 44NB) that a regime established by a State or Territory for

access to a service is an effective access regime, the Council:
(a) may, on its own initiative; and
(b) must, on an application made under subsection (3);
consider whether to recommend that the Commonwealth Minister
revoke the decision.
(2) Before considering on its own initiative whether to recommend
that the Commonwealth Minister revoke the decision, the Council
must:
(a) publish, by electronic or other means, a notice to that effect;
and
(b) give a copy of the notice to:
(i) the responsible Minister for the State or Territory; and
(ii) the provider of the service.
(3) Any of the following may make a written application to the
Council asking it to recommend that the Commonwealth Minister
revoke the decision:
(a) a person who is seeking access to the service;
(b) the responsible Minister for the State or Territory;
(c) the provider of the service.
The Council must give a copy of the application to each entity
mentioned in paragraph (b) or (c), unless that entity is the
applicant.
(4) Subject to subsection (5), the Council’s consideration of whether to
make the recommendation must be in accordance with
subsection 44M(4).
(5) In considering whether to make the recommendation, the Council
must consider whether it is satisfied that the regime no longer
meets the relevant principles, set out in the Competition Principles
Agreement, relating to whether access regimes are effective access
regimes, because of either or both of the following:
(a) substantial changes to the regime;
(b) substantial amendments of those principles.

Section 44NBB
(6) If the Council is so satisfied, the Council must, in writing,

recommend to the Commonwealth Minister that he or she revoke
the decision.
(7) If the Council is not so satisfied, the Council must, in writing,
recommend to the Commonwealth Minister that he or she not
revoke the decision.
section 44NC.
Note 2: The Council may request information and invite public submissions:
see sections 44NBB and 44NE.
44NBB Council may request information

be relevant to deciding what recommendation to make under
section 44NBA.
(i) if an application was made under subsection 44NBA(3)
and the person is not the applicant—the applicant; and
provider; and
(iii) in every case—the responsible Minister for the State or
Territory; and
(3) In deciding what recommendation to make, the Council:
period; and

Section 44NBC
44NBC Decision by the Commonwealth Minister

(1) On receiving a recommendation under section 44NBA, the
Commonwealth Minister must assess whether he or she should
revoke the decision. Subject to subsection (2) of this section, he or
she must do this in accordance with subsection 44N(2).
section 44NG.
(2) In making his or her assessment, the Commonwealth Minister must

consider whether he or she is satisfied as to the matter set out in
subsection 44NBA(5).
(3) If the Commonwealth Minister is so satisfied, he or she must, by
notice in writing, decide to revoke the decision. The notice must
specify the day on which the revoked decision is to cease to be in
force.
(4) If the Commonwealth Minister is not so satisfied, he or she must,
by notice in writing, decide not to revoke the decision.
(5) If the Commonwealth Minister does not publish under
section 44NG his or her decision on the 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, he or she
is taken, immediately after the end of that 60-day period:
(a) to have made a decision under this section in accordance with
the recommendation made by the Council under
section 44NBA; and
(b) to have published that decision under section 44NG.
Subdivision D—Procedural provisions
44NC Time limit for Council recommendations

section 44M, 44NA or 44NBA, or on a consideration by the

Section 44NC
Council on its own initiative under section 44NBA, within the

or the consideration is notified under paragraph 44NBA(2)(a),
Stopping the clock

on an application under section 44M, 44NA or 44NBA, or on a
consideration by the Council on its own initiative under
section 44NBA, in a situation referred to in column 1 of an item of
the following table, disregard any day in a period:
Stopping the clock

1 An agreement is made The first day of the The last day of the period
in relation to the period specified in specified in the agreement
application under the agreement
subsection (5)
2 A notice is given under The day on which The last day of the period
subsection 44MA(1) the notice is given specified in the notice for
requesting information the giving of the
in relation to the information
application
subsection 44NAA(1) the notice is given specified in the notice for
application

Section 44NC
Stopping the clock

subsection 44NBB(1) the notice is given specified in the notice for
application or
consideration

not exceed 60 days.

(5) The Council, the applicant (if the Commission is not acting on its
own initiative under paragraph 44NBA(1)(a)) 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.
agreement.
Council may extend time for making recommendation

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.
(a) specify when the Council must now make its
recommendation; and

Section 44NE

(a) if the Commission is not acting on its own initiative under
paragraph 44NBA(1)(a)—the applicant; and
provider.
Publication

under this section.
44NE Council may invite public submissions
Invitation
inviting public submissions on an application under section 44M,
44NA or 44NBA, or on a consideration by the Council on its own
initiative under section 44NBA, if it considers that it is appropriate
and practicable to do so.

Section 44NE
make, the Council:
the notice.

available.
Confidentiality
Council:
submission under section 44NF;
the submission.
the person; and
of it; and

Section 44NF

submission under section 44NF; and
making its recommendation.
44NF Publication—Council
recommendation under section 44M, 44NA or 44NBA and its
reasons for the recommendation.
(a) the applicant under section 44M or 44NA, or under
section 44NBA (unless the recommendation relates to a
consideration by the Council under that section on its own
initiative); and
(b) the provider of the service.
Timing
the day the Commonwealth Minister publishes his or her decision
on the recommendation or as soon as practicable after that day.
Consultation
initiative);
(b) the provider of the service;
(c) any other person the Council considers appropriate;
(d) specifying what the Council is proposing to publish; and
Council within 14 days after the notice is given identifying

Section 44NG

considers relevant.
44NG Publication—Commonwealth Minister

(1) The Commonwealth Minister must publish, by electronic or other
means, his or her decision on a recommendation under
section 44M, 44NA or 44NBA and his or her reasons for the
decision.
(2) The Commonwealth Minister must give a copy of the publication
to:
initiative); and
(b) the provider of the service.
Consultation
(3) Before publishing under subsection (1), the Commonwealth
Minister may give any one or more of the following persons:
initiative);
(b) the provider of the service;
(c) any other person the Minister considers appropriate;
(d) specifying what the Minister is proposing to publish; and
Minister within 14 days after the notice is given identifying

Section 44O
(4) The Commonwealth Minister must have regard to any submission

so made in deciding what to publish. He or she may have regard to
44O Review of Ministerial decision on effectiveness of access regime

(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
(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.
(1A) If, on receiving a recommendation under section 44NBA relating
to a decision under section 44N, the Commonwealth Minister has
made a decision under section 44NBC:
(a) the person who applied under subsection 44NBA(3) for the
Council to make a recommendation relating to that decision
under section 44N; or
(b) any other person who could have applied under
subsection 44NBA(3) for the Council to make such a
recommendation;
may apply to the Tribunal for review of the Commonwealth
Minister’s decision under section 44NBC.
publication of the Commonwealth Minister’s decision.
section 44ZZOAA.

Section 44P
as the Commonwealth Minister.
(i) the person who applied for the review; and
(ii) any other person who has been made a party to the
(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
44P State or Territory ceasing to be a party to Competition

Principles Agreement
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:

Section 44P
(a) a decision by the Commonwealth Minister that the regime is

an effective access regime ceases to be in force; and
(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.

Competitive tender processes for government owned facilities Division 2B
Section 44PA
Division 2B—Competitive tender processes for government

owned facilities
44PA Approval of competitive tender process
Application to Commission
(1) 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.
Decision of Commission
(3) The Commission must, by notice in writing, approve or refuse to
approve 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.
(4) The Commission must not approve a tender process as a

competitive tender process unless:

Division 2B Competitive tender processes for government owned facilities
Section 44PAA
(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.
Period for which decision in force

(5) 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.
(6) The Commission may, by writing, extend that period by a specified

period. The Commission may do so more than once.
Legislation Act 2003

(7) A notice under subsection (3) is not a legislative instrument.
44PAA Commission may request information

(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

Section 44PB
(3) In deciding whether to approve or refuse to approve the tender

process, the Commission:
period; and
44PB Report on conduct of tender process
Report
(1) 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.
Commission may ask for further information

(3) 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) A report under subsection (1) is not a legislative instrument.
44PC Revocation of approval decision
Discretionary revocation
(1) 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.

Section 44PC
Note 1: The Commission may invite public submissions on any proposed

revocation decision: see section 44PE.
(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.
(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.
Mandatory revocation
(5) 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;

Section 44PD
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.
Definition
business day means a day that is not a Saturday, a Sunday, or a
public holiday in the Australian Capital Territory.
44PD Time limit for Commission decisions
Commission to make decision within 90 days

(1) 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.
Stopping the clock

(2) In working out the expected period in relation to a decision on an
application under subsection 44PA(1), in a situation referred to in
period:
Stopping the clock

1 An agreement is The first day The last day of the period
made in relation to of the period specified in the agreement
the application under specified in
subsection (4) the agreement
2 A notice is given The day on The last day of the period
under which the specified in the notice for the
subsection 44PAA(1) notice is given giving of the information

Section 44PD
Stopping the clock

requesting
information in
relation to the
application
3 A notice is published The day on The day specified in the notice as
under which the the day by which submissions
subsection 44PE(1) notice is may be made
inviting public published
submissions in
relation to the
application
(3) Despite subsection (2), do not disregard any day more than once.

(4) 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.
Deemed approval as a competitive tender process

(6) 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.

Section 44PE
44PE Commission may invite public submissions
Invitation
(1) 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.
(3) Subject to subsection (6), in making its decision, the Commission:
the notice.
Commission may make submissions publicly available

(4) The Commission may make any written submission, or a written
record (which may be a summary) of any oral submission, publicly
available.
Confidentiality
Commission:
submission under section 44PF;

Section 44PF

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
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:
submission under section 44PF; and
making its decision.
44PF Commission must publish its decisions

(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.
Consultation
(3) Before publishing under subsection (1), the Commission may give
the following persons:

Section 44PG
(a) for any decision—the applicant under subsection 44PA(1) or

any other person the Commission considers appropriate;
service;
(c) specifying what the Commission is proposing to publish; and
Commission within 14 days after the notice is given
(4) The Commission must have regard to any submission so made in
considers relevant.
44PG Review of Commission’s initial decision
Application
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.
Review
section 44ZZOAA.
as the Commission.

Section 44PG
the Commission to give assistance for the purposes of the review.
notice, require the Commission to give information, and to make
(ii) the person who made the application under
subsection 44PA(1) requesting approval of a tender
process as a competitive tender process; and
(6) 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 44PH
44PH Review of decision to revoke an approval
Application
(1) 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;
service.
Review
section 44ZZOAA.
as the Commission.

Section 44PH
(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
(6) The Tribunal must, by writing, affirm or set aside the
Commission’s decision.

Register of decisions and declarations Division 2C
Section 44Q
Division 2C—Register of decisions and declarations
44Q Register of decisions, declarations and ineligibility decisions

The Commission must maintain a public register that includes:
(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
(ba) each decision of a designated Minister under section 44LG
that a 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
(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).

Division 3 Access to declared services
Section 44R
Division 3—Access to declared services

Subdivision A—Scope of Division
44R Constitutional limits on operation of this Division

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
44S Notification of access disputes

(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.
(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.

Access to declared services Division 3
Section 44T
44T Withdrawal of notifications

(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.
(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.
(3) If the notification is withdrawn, it is taken for the purposes of this
Part never to have been given.
Subdivision C—Arbitration of access disputes
44U Parties to the arbitration

The parties to the arbitration of an access dispute are:
(a) the provider;
(b) the third party;
(c) any other person who applies in writing to be made a party
and is accepted by the Commission as having a sufficient
interest.
44V Determination by Commission

(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;

Section 44V
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.
(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.
(2A) Without limiting paragraph (2)(d), a requirement referred to in that
paragraph may do either or both of the following:
(a) require the provider to expand the capacity of the facility;
(b) require the provider to expand the geographical reach of the
facility.
(3) A determination does not have to require the provider to provide
access to the service by the third party.
(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.

Section 44W
(6) A determination is not a legislative instrument.
44W Restrictions on access determinations

(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 (including expansions of the capacity of the facility
and expansions of the geographical reach 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 (including expanding the capacity of
the facility and expanding the geographical reach of the
facility);
(ea) requiring the provider to bear some or all of the costs of
maintaining extensions of the facility (including expansions
of the capacity of the facility and expansions of the
geographical reach 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.
(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.

Section 44W
(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.
(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.
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 44X
44X Matters that the Commission must take into account
Final determinations
(1) 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 (including expansions
of capacity and expansions of geographical reach) 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.
(2) The Commission may take into account any other matters that it
thinks are relevant.
Interim determinations
(3) 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.
(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).

Section 44XA
44XA Time limit for Commission’s final determination
Commission to make final determination within 180 days

(1) 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.
Stopping the clock

(2) 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:
Stopping the clock

1 An agreement is made in The first day of The last day of the period
relation to the arbitration the period specified in the agreement
under subsection (4) specified in the
agreement
2 A direction is given The first day of The last day of the period
under the period specified for the giving of
subsection 44ZG(1) to specified for the the information or the
give information or make giving of the making of the submission
a submission within a information or
specified period the making of
the submission
3 A decision is published The day on The day on which the
under which the Commission makes its
subsection 44ZZCB(4) decision is decision on the access
deferring consideration published undertaking under
of the dispute while the subsection 44ZZA(3)
Commission considers
an access undertaking
4 The Commission, under The day on The day the Tribunal makes

Section 44Y
Stopping the clock

subsection 44ZZCBA(1) which the its decision under
or (2), defers arbitrating Commission section 44K on the review
the dispute while a gives the notice
declaration is under to defer
review by the Tribunal arbitrating the
dispute

(4) 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.
agreement.
Deemed final determination

(6) 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.
44Y Commission may terminate arbitration in certain cases

(1) The Commission may at any time terminate an arbitration (without
making a final determination) if it thinks that:
(a) the notification of the dispute was vexatious; or

Section 44YA
(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.
(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.
44YA Commission must terminate arbitration if declaration varied

or set aside by Tribunal
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.
Subdivision D—Procedure in arbitrations
44Z Constitution of Commission for conduct of arbitration

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.
44ZA Member of the Commission presiding at an arbitration

(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.

Section 44ZB
44ZB Reconstitution of Commission

(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
(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.
44ZC Determination of questions

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.
44ZD Hearing to be in private

(1) Subject to subsection (2), an arbitration hearing for an access
dispute is to be in private.

Section 44ZE
(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.
44ZE Right to representation

In an arbitration hearing before the Commission under this Part, a
party may appear in person or be represented by someone else.
44ZF Procedure of Commission

(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.
(4) The Commission may determine that an arbitration hearing is to be
conducted by:

Section 44ZG
(a) telephone; or
(b) closed circuit television; or
(c) any other means of communication.
44ZG Particular powers of Commission

(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.

Section 44ZH
44ZH Power to take evidence on oath or affirmation

(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.
44ZI Failing to attend as a witness

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
44ZJ Failing to answer questions etc.

(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.

Section 44ZK
(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).
44ZK Intimidation etc.

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.
44ZL Party may request Commission to treat material as

confidential
(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.

Section 44ZM
(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.
44ZM Sections 18 and 19 do not apply to the Commission in an

arbitration
Sections 18 and 19 do not apply to the Commission, as constituted
for an arbitration.
44ZN Parties to pay costs of an arbitration

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.
44ZNA Joint arbitration hearings
Joint arbitration hearing

(1) 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

Section 44ZNA
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.
Consulting the parties

(3) 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.
Directions to presiding member

(5) 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.
Constitution and procedure of Commission

(6) 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.
Record of proceedings etc.

(7) 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.

Section 44ZNB
(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:
(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) The following are not legislative instruments:
(a) a notice made under subsection (1);
(b) a direction given under subsection (5).
Subdivision DA—Arbitration reports
44ZNB Arbitration reports

(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.
Report must include certain matters

(3) 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;

Section 44ZNB
(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.
Report may include other matters

(4) The report may include any other matter that the Commission
considers relevant.
Confidentiality
(5) 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
identifying any information the party considers should not be
published because of its confidential commercial nature.
considers relevant.

Section 44ZO

(8) A report prepared under subsection (1) is not a legislative
instrument.
Subdivision E—Effect of determinations
44ZO Operation of final determinations

(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.
(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.
Backdating
(3) 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.
(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.
However, the specified day cannot be a day on which the third
party did not have access to the service.

Section 44ZOA
Operation of interim determination

(5) 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.
Interest
(6) 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).
Guidelines
(7) 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.
(8) The Commission must, by legislative instrument, determine
guidelines for the purposes of subsection (7).
(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.
44ZOA Effect and duration of interim determinations

(1) An interim determination takes effect on the day specified in the
determination.

Section 44ZP
(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).
(c) an interim determination made by the Tribunal (while
reviewing a final determination relating to the access dispute)
takes effect.
Subdivision F—Review of final determinations
44ZP Review by Tribunal

(1) A party to a final determination may apply in writing to the
Tribunal for a review of the determination.
(2) The application must be made within 21 days after the Commission
made the final determination.
(3) A review by the Tribunal is a re-arbitration of the access dispute
section 44ZZOAA.
Note: There are time limits that apply to the Tribunal’s decision on the
review: see section 44ZZOA.
as the Commission.

Section 44ZQ

(ii) the other party or parties to the final determination; and
(6) The Tribunal may either affirm or vary the Commission’s
determination.
(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.
44ZQ Provisions that do not apply in relation to a Tribunal review

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.
44ZR Appeals to Federal Court from determinations of the

Tribunal
(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.

Section 44ZS
(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.
44ZS Operation and implementation of a determination that is

subject to appeal
(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.
(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

Section 44ZT
(ii) the giving of a decision on the appeal;

whichever is earlier.
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
44ZU Variation of final determinations

(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.
(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.
44ZUA Variation and revocation of interim determinations

(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.

Division 4 Registered contracts for access to declared services
Section 44ZV
Division 4—Registered contracts for access to declared

services
44ZV Constitutional limits on operation of this Division

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.
44ZW Registration of contract

(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
(b) the interests of all persons who have rights to use the service
to which the contract relates.

Registered contracts for access to declared services Division 4
Section 44ZX
(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.
(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.
44ZX Review of decision not to register contract

(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.
publication of the Commission’s decision.
section 44ZZOAA.
as the Commission.

Division 4 Registered contracts for access to declared services
Section 44ZY
(ii) the other party or parties to the contract; and

(b) publish, by electronic or other means, the notice; and
(6) The Tribunal may either:
(a) affirm the Commission’s decision; or
(b) register the contract.
44ZY Effect of registration of contract

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.

Hindering access to declared services Division 5
Section 44ZZ
Division 5—Hindering access to declared services
44ZZ Prohibition on hindering access to declared services

(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
Section 44ZZA
Division 6—Access undertakings and access codes for

services
Subdivision A—Giving of access undertakings and access codes
44ZZA Access undertakings by providers

(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;
(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.
(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:
(ab) the pricing principles specified in section 44ZZCA;
(a) the legitimate business interests of the provider;
(c) the interests of persons who might want access to the service;
(da) whether the undertaking is in accordance with an access code
that applies to the service;

Access undertakings and access codes for services Division 6
Section 44ZZA
(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.
(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.
(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.
(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.
(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.

Section 44ZZAAA
(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.
(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.
submissions in relation to its decision: see sections 44ZZBCA and
44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
44ZZAAA Proposed amendments to access undertakings
Commission may give an amendment notice in relation to an

undertaking
(1) 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

Section 44ZZAAA
(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.
Person may give a revised undertaking in response to notice

(5) 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.
(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.
Commission not required to accept revised undertaking

(9) The Commission is not required to accept the revised undertaking
under section 44ZZA.

Section 44ZZAAB
No duty to propose amendments

(10) 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.
Notice of proposed amendment is not a legislative instrument

(11) A notice given under subsection (1) is not a legislative instrument.
44ZZAAB Access undertakings containing fixed principles
Access undertakings may contain fixed principles

(1) 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.
Consideration of fixed principles

(4) 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.

Section 44ZZAAB
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).
Fixed principles must be carried over to later undertakings

(5) 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
(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.
Variation or revocation of fixed principles when no undertaking is

in operation
(7) 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.

Section 44ZZAA
Alteration of fixed principles

(8) 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.
44ZZAA Access codes prepared by industry bodies

(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:
(ab) the pricing principles specified in section 44ZZCA;
(a) the legitimate business interests of providers who might give
undertakings in accordance with the code;
(c) the interests of persons who might want access to the service
covered by the code;
(e) any matters specified in regulations made for the purposes of
this subsection;
(f) any other matters that the Commission thinks are relevant.

Section 44ZZAA
(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.
(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.
(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.
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.
44ZZBD.

Section 44ZZAB
44ZZAB Commission may rely on industry body consultations

(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;
(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.
(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).
code has the same meaning as it has in section 44ZZAA.
industry body has the same meaning as it has in section 44ZZAA.

Section 44ZZBA
Subdivision B—Effect of access undertakings and access codes
44ZZBA When access undertakings and access codes come into

operation
Acceptance of access undertakings or access codes

(1) 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
(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.
Withdrawal or variation of access undertakings or access codes

(4) 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:
(5) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent
to the withdrawal or variation of an access undertaking or access

Section 44ZZBB
code, the withdrawal or variation comes into operation at the time

of the Tribunal’s decision.
Revocation or variation of fixed principles in access undertakings

(6) 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:
(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.
Subdivision C—Extensions of access undertakings and access

codes
44ZZBB Extensions of access undertakings and access codes
Access undertakings
(1) 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.
(2) The provider of the service must specify in the application a

proposed extension period.

Section 44ZZBB
(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.
Access codes
(4) 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).
Multiple extensions
(8) The Commission may extend the period for which an access
undertaking or an access code is in operation more than once.
44ZZBD.

Section 44ZZBC
Subdivision D—Procedural provisions
44ZZBC Time limit for Commission decisions
Commission to make decision on application within 180 days

(1) 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.
Stopping the clock

(2) In working out the expected period in relation to an access
undertaking application or an access code application, in a situation
referred to in column 1 of an item of the following table, disregard
any day in a period:
Stopping the clock

relation to the the period specified in the agreement
application under specified in the
subsection (4) agreement
2 A notice is given under The day on The last day of the period
subsection 44ZZBCA(1) which the notice specified in the notice for the
requesting information in is given giving of the information
relation to the
application
3 A notice is published The day on The day specified in the
under which the notice notice as the day by which
subsection 44ZZBD(1) is published submissions may be made
inviting public
submissions in relation
to the application

Section 44ZZBC
Stopping the clock

4 A decision is published The day on The day on which the final
under which the determination in relation to
subsection 44ZZCB(4) decision is the arbitration of the access
deferring consideration published dispute is made
of whether to accept the
access undertaking, in
whole or in part, while
the Commission
arbitrates an access
dispute

(4) 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.
agreement.
Deemed final determination

(6) 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.

Section 44ZZBCA
44ZZBCA Commission may request information

(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:
(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
(3) In making a determination, the Commission:
period; and
44ZZBD Commission may invite public submissions
Invitation
(1) 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.

Section 44ZZBD
(3) Subject to subsection (6), in making its decision on the application,
the Commission:
the notice.
Commission may make submissions publicly available

(4) The Commission may make any written submission, or a written
record (which may be a summary) of any oral submission, publicly
available.
Confidentiality
Commission:
submission under section 44ZZBE;
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
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:

Section 44ZZBE

submission under section 44ZZBE; and
making its decision on the application.
44ZZBE Commission must publish its decisions

(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.
Consultation
(3) 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;
(d) specifying what the Commission is proposing to publish; and
considers relevant.

Section 44ZZBF
44ZZBF Review of decisions
Application
(1) 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.
Review
section 44ZZOAA.
as the Commission (other than the power to propose amendments
under section 44ZZAAA).
(ii) the provider of the service; and

Section 44ZZBF
(6) 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
(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.
(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.

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

codes
44ZZC Register of access undertakings and access codes

(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.
(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.

Division 6A Pricing principles for access disputes and access undertakings or codes
Section 44ZZCA
Division 6A—Pricing principles for access disputes and

access undertakings or codes
44ZZCA Pricing principles for access disputes and access

undertakings or codes
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.

Overlap among determinations, registered contracts, access undertakings and Tribunal
review Division 6B
Section 44ZZCB
Division 6B—Overlap among determinations, registered

contracts, access undertakings and Tribunal
review
44ZZCB Deferring access disputes or access undertakings

(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
(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.
Deferral of arbitration of access dispute

(2) 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.
Deferral of consideration of access undertaking

(3) If:

Division 6B Overlap among determinations, registered contracts, access undertakings
and Tribunal review
Section 44ZZCB
(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.
Publication
(4) 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.
Guidelines
(5) 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) A notice made under subsection (1) is not a legislative instrument.

review Division 6B
Section 44ZZCBA
44ZZCBA Deferral of arbitration if review is underway
Commission may defer arbitration if declaration not stayed

(1) 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.
Commission must defer arbitration if declaration stayed

(2) 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.
Resumption of arbitration if declaration affirmed

(3) If the Commission defers arbitrating the access dispute and the
Tribunal affirms the declaration, the Commission must resume
arbitrating the dispute.

Division 6B Overlap among determinations, registered contracts, access undertakings
and Tribunal review
Section 44ZZCC
Termination of arbitration if declaration varied or set aside
(4) 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.
Notices are not legislative instruments

(6) A notice given under subsection (1) or (2) is not a legislative
instrument.
44ZZCC Overlap between determinations and access undertakings

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.
44ZZCD Overlap between registered contracts and access

undertakings
If, at a particular time:

review Division 6B
Section 44ZZCD
(a) a contract is registered under Division 4 in relation to a
(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.

Division 7 Enforcement and remedies
Section 44ZZD
Division 7—Enforcement and remedies
44ZZD Enforcement of determinations

(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.
(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.

Enforcement and remedies Division 7
Section 44ZZE
44ZZE Enforcement of prohibition on hindering access

(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;
(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.

Division 7 Enforcement and remedies
Section 44ZZF
44ZZF Consent injunctions

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.
44ZZG Interim injunctions

(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.
44ZZH Factors relevant to granting a restraining injunction

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
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person engages in conduct of
that kind.
44ZZI Factors relevant to granting a mandatory injunction

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

Enforcement and remedies Division 7
Section 44ZZJ
(c) there is an imminent danger of substantial damage to any

person if the first-mentioned person refuses or fails to do that
thing.
44ZZJ Enforcement of access undertakings

(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).
(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;
44ZZK Discharge or variation of injunction or other order

The Federal Court may discharge or vary an injunction or order
granted under this Division.

Division 8 Miscellaneous
Section 44ZZL
Division 8—Miscellaneous
44ZZL Register of determinations

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.
44ZZM Commonwealth consent to conferral of functions etc. on the

Commission or Tribunal by State or Territory laws
(1) Subject to section 44ZZMAA, 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

power, or the imposition of a duty, by a law of a State or Territory
to the extent to which:
that may be imposed on the Commission or Tribunal; or
(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.

Miscellaneous Division 8
Section 44ZZMAA
44ZZMAA No merits review by Tribunal of decisions under energy

laws
(1) This section applies if a State/Territory energy law or the
Australian Energy Market Act 2004 purports to confer a function
or power, or to impose a duty, in relation to a decision made under:
(a) a State/Territory energy law; or
(b) a uniform energy law applied as a law of the Commonwealth
under the Australian Energy Market Act 2004.
However, this section does not apply in relation to a decision
relating to the disclosure of confidential or protected information
under such a law.
(2) The purported conferral or imposition has no effect to the extent to
which it would require or permit merits review (however
described) of the decision by the Tribunal.
(3) This section applies despite anything in any law of the
Commonwealth, a State or a Territory.
44ZZMA How duty is imposed
Application
(1) 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
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.

(2) The duty is taken not to be imposed by this Act (or any other law

Section 44ZZMB
(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.
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).

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
duties that may be imposed on the Commission or Tribunal.
(6) Subsections (1) to (5) do not limit section 44ZZM.
44ZZMB When a law of a State or Territory imposes a duty

For the purposes of sections 44ZZM and 44ZZMA, a State or
Territory access regime law imposes a duty on the Commission or
Tribunal if:
(a) the law confers a function or power on the Commission or
Tribunal; and

Section 44ZZN

conferred give rise to an obligation on the Commission or
Tribunal to perform the function or to exercise the power.
44ZZN Compensation for acquisition of property

(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.
44ZZNA Operation of Parts IV and VII not affected by this Part

This Part does not affect the operation of Parts IV and VII.
44ZZO Conduct by directors, servants or agents

(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:

Section 44ZZO
(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:
(a) 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
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.

Section 44ZZOAAA
(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.
(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.
44ZZOAAA Information to be given to Tribunal
Tribunal to notify decision maker

(1) 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.
Decision maker to give material to Tribunal

(3) 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), 44NB(3A) or 44NBC(5)—all of the information that
the Council took into account in connection with making the
recommendation to which the decision under review relates;

Section 44ZZOAAA
(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.
Tribunal may request further information

(4) 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.
(ii) if the application is made under section 44K, 44L, 44LJ,
44LK or 44O—the Council; and
(iii) if the application is made under section 44PG, 44PH,
44ZP, 44ZX or 44ZZBF—the Commission; and
(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.

Section 44ZZOAA
Certain material before the Tribunal not to be disclosed

(8) 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.
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.
44ZZOAA Tribunal only to consider particular material

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:

Section 44ZZOA
(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.
44ZZOA Time limit for Tribunal decisions

(1) The Tribunal must make a decision on a review under this Part
within the consideration period.
period), starting at the start of the day the application for review is
received, unless the consideration period is extended under
subsection (7).
Stopping the clock

(3) 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:
Stopping the clock

relation to the application the period specified in the
under subsection (5) specified in the agreement
agreement

Section 44ZZOA
Stopping the clock

subsection 44ZZOAAA(5) the notice is given specified in the notice for
requesting information in the giving of the
relation to the decision to information
which the application
relates
subsection 44K(6A), the notice is given specified in the notice for
44L(5A), 44LJ(6), the giving of the
44LK(6), 44O(5A), information or the report
44PG(5A), 44PH(5A),
44ZP(5A), 44ZX(5A) or
44ZZBF(5A) requiring
information or a report to
be given in relation to the
review

(5) 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.

Section 44ZZOA
Extension of time for making decision

(7) If the Tribunal is unable to make a decision on an application for
review 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.
(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
(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.
Publication
(10) If the Tribunal extends the consideration period under
(b) specifying the day by which it must now make a decision on
the application for review.

(11) 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.

Section 44ZZP
44ZZP Regulations about review by the Tribunal

(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).
(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.
44ZZQ Regulations about fees for inspection etc. of registers

The regulations may make provision about the inspection of
registers maintained under this Part (including provision about
fees).
44ZZR Procedure of the Tribunal when performing functions under

a State/Territory energy law or a designated
Commonwealth energy law
(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;

Section 44ZZR
(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.

Restrictive trade practices Part IV
Cartel conduct Division 1
Section 45AA
Part IV—Restrictive trade practices

Division 1—Cartel conduct
Subdivision A—Introduction
45AA 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.
45AB Definitions
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

Part IV Restrictive trade practices
Division 1 Cartel conduct
Section 45AB
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.
obtaining includes:
(a) obtaining for another person; and

Section 45AC
(b) inducing a third person to do something that results in

another person obtaining.
party has a meaning affected by section 45AC.
production includes manufacture, processing, treatment, assembly,
disassembly, renovation, restoration, growing, raising, mining,
extraction, harvesting, fishing, capturing and gathering.
45AC Extended meaning of party

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.
45AD Cartel provisions

(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.
Purpose/effect condition
(2) 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:

Section 45AD
(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
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
(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 45AC.
Purpose condition
(3) 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
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
(iv) the acquisition, or likely acquisition, of goods or
services from persons or classes of persons by any or all
of the parties to the contract, arrangement or
understanding; or

Section 45AD
(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
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

Section 45AD
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).
Competition condition
(4) 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 in trade or commerce; 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 in trade or commerce;
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 in trade or commerce 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 in trade or commerce;
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 in trade or
commerce; or
(h) if subparagraph (3)(a)(iii) applies in relation to preventing,
restricting or limiting the supply, or likely supply, of goods

Section 45AD
or services—the supply of those goods or services in trade or

commerce; or
(i) if subparagraph (3)(a)(iv) applies in relation to preventing,
restricting or limiting the acquisition, or likely acquisition, of
goods or services—the acquisition of those goods or services
in trade or commerce; or
(j) if paragraph (3)(c) applies in relation to a supply of goods or
services—the supply of those goods or services in trade or
commerce; or
(k) if paragraph (3)(c) applies in relation to an acquisition of
goods or services—the acquisition of those goods or services
in trade or commerce.
Note 2: Trade or commerce is defined in section 4 to mean trade or commerce
within Australia or between Australia and places outside Australia.
Immaterial whether identities of persons can be ascertained

(5) It is immaterial whether the identities of the persons referred to in
paragraph (2)(e) or (f) or subparagraph (3)(a)(iii) or (iv) or (b)(i) or
(ii) can be ascertained.
Recommending prices etc.

(6) 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.
Immaterial whether particular circumstances or particular

conditions
(7) It is immaterial whether:
(a) for the purposes of subsection (2), subparagraphs (3)(a)(iii)
and (iv) and paragraphs (3)(b) and (c)—a supply or

Section 45AD
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.
Considering related provisions—purpose/effect condition

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 first-mentioned contract,
arrangement or understanding;
has that purpose, or has or is likely to have that effect.
Considering related provisions—purpose condition

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

Section 45AE
one of the parties to the first-mentioned contract,

arrangement or understanding;
has that purpose.
Purpose/effect of a provision
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.
Purpose of a provision
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.
45AE Meaning of expressions in other provisions of this Act

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 45AF
Subdivision B—Offences etc.
45AF Making a contract etc. containing a cartel provision
Offence
(1) 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.
(2) The fault element for paragraph (1)(b) is knowledge or belief.
Penalty
(3) 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.
Indictable offence
(4) An offence against subsection (1) is an indictable offence.

Section 45AG
45AG Giving effect to a cartel provision
Offence
(1) 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.
(2) The fault element for paragraph (1)(a) is knowledge or belief.
Penalty
(3) 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.
Pre-commencement contracts etc.

(4) Paragraph (1)(a) applies to contracts or arrangements made, or
understandings arrived at, before, at or after the commencement of
this section.
Indictable offence
(5) An offence against subsection (1) is an indictable offence.

Section 45AH
45AH Determining guilt

(1) A corporation may be found guilty of an offence against
section 45AF or 45AG 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 45AC.
(2) A corporation cannot be found guilty of an offence against

section 45AF or 45AG 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.
45AI Court may make related civil orders

If a prosecution against a person for an offence against
section 45AF or 45AG 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
45AJ Making a contract etc. containing a cartel provision

A corporation contravenes this section if:

Section 45AK
(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.
45AK Giving effect to a cartel provision

(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.
Subdivision D—Exceptions
45AL Conduct notified

(1) Sections 45AF, 45AG, 45AJ and 45AK 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 45AD(2); or
(ii) has the purpose mentioned in a paragraph of
subsection 45AD(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).

Section 45AM
(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 45AJ or 45AK bears an evidential burden
in relation to that matter.
45AM Cartel provision subject to grant of authorisation

(1) Sections 45AF and 45AJ 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.

contravention of section 45AJ bears an evidential burden in
relation to that matter.
45AN Contracts, arrangements or understandings between related

bodies corporate
(1) Sections 45AF, 45AG, 45AJ and 45AK 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.


Section 45AO
45AO Joint ventures—prosecution

Sections 45AF and 45AG do not apply in relation to a contract,
arrangement or understanding containing a cartel provision if the
defendant proves that:
(a) the cartel provision is:
(i) for the purposes of a joint venture; and
(ii) reasonably necessary for undertaking the joint venture;
and
(b) the joint venture is for any one or more of the following:
(i) production of goods;
(ii) supply of goods or services;
(iii) acquisition of goods or services; and
(c) the joint venture is not carried on for the purpose of
substantially lessening competition; and
(d) 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, arrangement or understanding; and
(e) 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, arrangement or
understanding 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 a legal burden in relation to the matter in this
section (see section 13.4 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.

Section 45AP
45AP Joint ventures—civil penalty proceedings

(1) Sections 45AJ and 45AK do not apply in relation to a contract,
arrangement or understanding containing a cartel provision if the
defendant proves that:
(a) the cartel provision is:
(i) for the purposes of a joint venture; and
(ii) reasonably necessary for undertaking the joint venture;
and
(b) the joint venture is for any one or more of the following:
(i) production of goods;
(ii) supply of goods or services;
(iii) acquisition of goods or services; and
(c) the joint venture is not carried on for the purpose of
substantially lessening competition; and
(d) 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, arrangement or understanding; and
(e) 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, arrangement or
understanding 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.
(2) A defendant who wishes to rely on subsection (1) must prove that
matter on the balance of probabilities.

Section 45AQ
45AQ Resale price maintenance

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 section 88; 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.

45AR Exclusive dealing

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 section 88 or
93, constitute a contravention of section 47.
(2) Sections 45AG and 45AK 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 section 88 or 93
contravene, section 47; or

Section 45AS
(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 section 88 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) in relation to

a contravention of section 45AJ or 45AK bears an evidential
burden in relation to that matter.
45AS Dual listed company arrangement

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 section 88, contravene
section 49.
(2) Sections 45AG and 45AK 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

Section 45AT
(b) the giving effect to the cartel provision would, or would apart
from section 88, contravene section 49.
(3) A person who wishes to rely on subsection (1) or (2) in relation to

a contravention of section 45AJ or 45AK bears an evidential
burden in relation to that matter.
45AT Acquisition of shares or assets

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.

45AU Collective acquisition of goods or services by the parties to a

contract, arrangement or understanding
provision, in so far as:
(a) the cartel provision has the purpose, or has or is likely to
have the effect, mentioned in subsection 45AD(2); and
(b) either:
(i) the cartel provision relates to the price for goods or
services to be collectively acquired, whether directly or

Section 45AU
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.


Other provisions Division 2
Section 45
Division 2—Other provisions
45 Contracts, arrangements or understandings that restrict dealings

or affect competition
(1) A corporation must not:
(a) make a contract or arrangement, or arrive at an
understanding, if 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, if that provision has the purpose, or has or is
likely to have the effect, of substantially lessening
competition; or
(c) engage with one or more persons in a concerted practice that
has the purpose, or has or is likely to have the effect, of
substantially lessening competition.
(2) Paragraph (1)(b) applies in relation to contracts or arrangements
made, or understandings arrived at, before or after the
commencement of this section.
(3) For the purposes of this section, competition means:
(a) in relation to a provision of a contract, arrangement or
understanding or of a proposed contract, arrangement or
understanding—competition in any market in which:
(i) a corporation that is a party to the contract, arrangement
or understanding, or would be a party to the proposed
(ii) 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; or
(b) in relation to a concerted practice—competition in any
market in which:

Division 2 Other provisions
Section 45
(i) a corporation that is a party to the practice; or

(ii) any body corporate related to such a corporation;
or services or would, but for the practice, 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 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 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 provision of a
contract, arrangement or understanding or of a proposed contract,
arrangement or understanding, or to or in relation to a concerted
practice, in so far as the provision or practice relates to:
(a) conduct that contravenes section 48; or
(b) conduct that would contravene section 48 if subsection 48(2)
did not apply; or
(c) conduct that would contravene section 48 if it were not
authorised under section 88; or
(d) 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.
(5A) The making of a contract, arrangement or understanding does not
constitute a contravention of this section because the contract,

Section 45
arrangement or understanding contains a provision the giving

effect to which would, or would apart from subsection 47(10) or
section 88 or 93, constitute a contravention of section 47.
(6) This section does not apply to or in relation to the giving effect to a
provision of a contract, arrangement or understanding, or to or in
relation to engaging in a concerted practice, by way of:
(a) engaging in conduct that contravenes, or would but for the
operation of subsection 47(10) or section 88 or 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 section 88 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;
does not contravene this section if the conduct would, or would
apart from section 88, contravene section 49.
(7) This section does not apply to or in relation to:
(a) a contract, arrangement or understanding to the extent that
the contract, arrangement or understanding directly or
indirectly provides for; or
(b) a proposed contract, arrangement or understanding to the
extent that the proposed contract, arrangement or
understanding would directly or indirectly provide for; or

Section 45
(c) a concerted practice to the extent that the practice directly

involves;
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) a contract, arrangement or understanding, or
(b) a proposed contract, arrangement or understanding; or
(c) a concerted practice;
the only parties to which are or would be bodies corporate that are
related to each other.
(8AA) This section does not apply to or in relation to a concerted practice
if the only persons engaging in it are or would be:
(a) the Crown in right of the Commonwealth and one or more
authorities of the Commonwealth; or
(b) the Crown in right of a State or Territory and one or more
authorities of that State or Territory.
(8A) Subsection (1) 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.
(9) The making by a corporation of a contract that contains a provision
in relation to which the corporation intends to apply for an
authorisation under section 88 is not a contravention of
subsection (1) 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

Section 45D
(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 (1).
45D Secondary boycotts for the purpose of causing substantial loss

or damage
(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
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 section 88.
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.

Section 45DA
45DA Secondary boycotts for the purpose of causing substantial

lessening of competition
(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
second person); or
(ii) a third person acquiring goods or services from a fourth
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.
permitted boycotts.

(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.
45DB Boycotts affecting trade or commerce

(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

Section 45DC
involving the movement of goods between Australia and places

outside Australia.
permitted boycotts.

45DC Involvement and liability of employee organisations
Certain organisations taken to be acting in concert

(1) 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.
Consequences of organisation contravening subsection 45D(1),

45DA(1) or 45DB(1)
(2) 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).

Section 45DC
Loss or damage taken to have been caused by organisation’s

conduct
(3) 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.
Taking proceedings if organisation is a body corporate

(4) 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.
Taking proceedings if organisation is not a body corporate

(5) 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

Section 45DD
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;
(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
(f) 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.
45DD Situations in which boycotts permitted
Dominant purpose of conduct relates to employment matters—

conduct by a person
(1) 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.
Dominant purpose of conduct relates to employment matters—

conduct by employee organisation and employees
(2) 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:

Section 45DD
(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.
Dominant purpose of conduct relates to environmental protection

or consumer protection
(3) 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.

Section 45DD
Meaning of industrial action—basic definition

(4) 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.
Meaning of industrial action—further clarification

(5) 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.

Section 45DD
Subsections (1), (2) and (3) do not protect people not covered by
them
(6) 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.
Defences to contravention of subsection 45DB(1)

(7) 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.
Each person to prove defence

(8) 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;
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.

Section 45E
45E Prohibition of contracts, arrangements or understandings

affecting the supply or acquisition of goods or services
Situations to which section applies

(1) 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).
Prohibition in a supply situation

(2) 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

Section 45E
(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.
Prohibition in an acquisition situation

(3) 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.
No contravention if second person gives written consent to written

contract etc.
(4) 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.
Meaning of accustomed to supply

(5) 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)):

Section 45E
(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.
Exception to subsection (5)

(6) 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.
Meaning of accustomed to acquire

(7) 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.

Section 45EA
Exception to subsection (7)

(8) 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
45EA Provisions contravening section 45E not to be given effect

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).

Section 45EB
45EB Sections 45D to 45EA do not affect operation of other

provisions of Part
Nothing in section 45D, 45DA, 45DB, 45DC, 45DD, 45E or 45EA
affects the operation of any other provision of this Part.
46 Misuse of market power

(1) A corporation that has a substantial degree of power in a market
must not engage in conduct that has the purpose, or has or is likely
to have the effect, of substantially lessening competition in:
(a) that market; or
(b) any other market in which that corporation, or a body
corporate that is related to that corporation:
(i) supplies goods or services, or is likely to supply goods
or services; or
(ii) supplies goods or services, or is likely to supply goods
or services, indirectly through one or more other
persons; or
(c) any other market in which that corporation, or a body
corporate that is related to that corporation:
(i) acquires goods or services, or is likely to acquire goods
or services; or
(ii) acquires goods or services, or is likely to acquire goods
or services, indirectly through one or more other
persons.
(3) A corporation is taken for the purposes of this section to have a
substantial degree of power in a market if:
(a) a body corporate that is related to that corporation has, or 2
or more bodies corporate each of which is related to that
corporation together have, a substantial degree of power in
that market; or
(b) that corporation and a body corporate that is, or that
corporation and 2 or more bodies corporate each of which is,
related to that corporation, together have a substantial degree
of power in that market.

Section 46
(4) In determining for the purposes of this section the degree of power
that a body corporate or bodies corporate have in a market:
(a) regard must be had 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:
(i) competitors, or potential competitors, of the body
corporate or of any of those bodies corporate in that
market; or
(ii) persons to whom or from whom the body corporate or
any of those bodies corporate supplies or acquires goods
or services in that market; and
(b) regard may be had to the power the body corporate or bodies
corporate have in that market that results from:
(i) any contracts, arrangements or understandings that the
body corporate or bodies corporate have with another
party or other parties; or
(ii) any proposed contracts, arrangements or understandings
that the body corporate or bodies corporate may have
with another party or other parties.
(5) For the purposes of this section, a body corporate may have a
substantial degree of power in a market even though:
(a) the body corporate does not substantially control that 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.
(6) Subsections (4) and (5) do not 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.

Section 46A
(7) To avoid doubt, for the purposes of this section, more than one
corporation may have a substantial degree of power in a market.
(a) a reference to power is a reference to market power; and
(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.
46A Misuse of market power—corporation with substantial degree

of power in trans-Tasman market
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
trans-Tasman 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.

Section 46A
(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.
(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 trans-Tasman 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.
(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
trans-Tasman 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.

Section 46B
(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, 47, 49 and 50, because an
authorisation is in force or because of the operation of
subsection 45(8A) or section 93.
(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.
46B No immunity from jurisdiction in relation to certain New

Zealand laws
(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.

Section 47
47 Exclusive dealing
(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.
(3) A corporation also engages in the practice of exclusive dealing if
the corporation refuses:

Section 47
(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:
(d) has acquired, or has not agreed not to acquire, goods or
services, or goods or services of a particular kind or
to the corporation;
(e) has re-supplied, or has not agreed not to re-supply, goods or
related to the corporation; or
(f) has re-supplied, or has not agreed not to re-supply, goods or
description, acquired from the corporation to any person, or
has re-supplied, or has not agreed not to re-supply, goods or
description, acquired from the corporation:
other than particular places or classes of places.
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

Section 47
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.
(a) to acquire goods or services from a person; or
(b) to acquire goods or services at a particular price from a
person;
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.
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 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.

Section 47

(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;
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.
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:
other than particular places or classes of places; or

Section 47
(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.
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:
(a) has acquired, or has not agreed not to acquire, goods or
to the corporation;
(b) has re-supplied, or has not agreed not to re-supply, goods or
related to the corporation;
(c) has supplied goods or services, or goods or services of a
particular kind or description:
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.
(10) Subsection (1) does not apply to the practice of exclusive dealing
by a corporation unless:
(a) the engaging by the corporation in the conduct that
constitutes the practice of exclusive dealing has the purpose,
or has or is likely to have the effect, of substantially lessening
competition; or

Section 47
(b) the engaging by the corporation in the conduct that

constitutes the practice of exclusive dealing, 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.
(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.
(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.
(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;

Section 48

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.
48 Resale price maintenance

(1) A corporation or other person shall not engage in the practice of
resale price maintenance.
(2) Subsection (1) does not apply to a corporation or other person
engaging in conduct that constitutes the practice of resale price
maintenance if:
(a) the corporation or other person has given the Commission a
notice under subsection 93(1) describing the conduct; and
(b) the notice is in force under section 93.
49 Dual listed company arrangements that affect competition

(1) A corporation must not:
(a) make a dual listed company arrangement if a provision of the
proposed arrangement has the purpose, or would have or be
competition; or
(b) give effect to a provision of a dual listed company
arrangement if that provision has the purpose, or has or is
competition.

Section 49

Exception
(2) 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.
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 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;

Section 50
(b) the provisions of any other 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.
50 Prohibition of acquisitions that would result in a substantial

lessening of competition
(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 an authorisation for the acquisition under
section 88.
(2) A person must not directly or indirectly:

(a) acquire shares in the capital of a corporation; or
(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 an authorisation for the acquisition under section 88.
(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;

Section 50
(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 an authorization
to acquire the shares or assets; and
(c) the person applied for the grant of such 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 authorization is disposed of; or
(e) the contract ceases to be subject to the condition;
whichever first happens.
(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.
market means a market for goods or services in:
(a) Australia; or
(b) a State; or

Section 50A
(c) a Territory; or
(d) a region of Australia.
50A Acquisitions that occur outside Australia

(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.
(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.
(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;

Section 50A
(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.
(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

Section 51
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.
(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:
(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.
market means a substantial market for goods or services in
Australia, in a State or in a Territory.
51 Exceptions
(1) In deciding whether a person has contravened this Part, the
following must be disregarded:
(a) anything specified in, and specifically authorised by:

Section 51
(i) an Act (not including an Act relating to patents, trade

marks, designs or copyrights); or
(ii) regulations made under such an 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.
(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.
(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.

Section 51
(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;
(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
subsection (1) the State or Territory was a
fully-participating 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

Section 51
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;
(f) 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.
(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, or concerted practice, to the extent that it
relates to the remuneration, conditions of employment, hours
of work or working conditions of employees; or
(aa) to:
(i) the making of a contract or arrangement, or the entering
into of an understanding; or
(ii) any provision of a contract, arrangement or
understanding;
to the extent that the contract, arrangement, understanding or
provision relates to the remuneration, conditions of
employment, hours of work or working conditions of
employees; or
(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; or
(c) to:
(i) any provision of a contract, arrangement or
understanding; or
(ii) any concerted practice;

Section 51
to the extent that the provision or concerted practice obliges a

person to comply with or apply standards of dimension,
design, quality or performance prepared or approved by
Standards Australia or a prescribed association or body; or
(d) to:
understanding; or
between partners none of whom is a body corporate, to the
extent that the provision or concerted practice relates to:
(iii) the terms of the partnership; or
(iv) the conduct of the partnership business; or
(v) competition between the partnership and a party to the
contract, arrangement, understanding or concerted
practice, while the party is, or after the party ceases to
be, a partner; or
(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:
understanding; or
to the extent that the provision or concerted practice relates
exclusively to:
(iii) the export of goods from Australia; or
(iv) the supply of services outside Australia;
if full and accurate particulars of the provision or concerted
practice were given to the Commission no more than 14 days
after the day the contract or arrangement was made or the
understanding or concerted practice was entered into, or
before 8 September 1976, whichever was the later.
(2AA) For the purposes of paragraph (2)(g), the particulars to be given to
the Commission:

Section 51AAA
(a) need not include particulars of prices for the goods or

services; but
(b) must include particulars of any method of fixing, controlling
or maintaining such prices.
(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.
(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.
51AAA Concurrent operation of State and Territory laws

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.

Part IVB Industry codes
Section 51ACA
Part IVB—Industry codes

51ACA Definitions
(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
(b) the prescribed provisions of any voluntary industry code that
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 has the meaning given by section 51ACAA.
infringement notice means an infringement notice issued under
subsection 51ACD(1).
infringement notice compliance period: see subsection 51ACI(1).
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

Industry codes Part IVB
Section 51ACAA
(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.
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.
51ACAA Meaning of industry code

(1) For the purposes of this Part, an industry code is (subject to
subsection (2)) a code that regulates the conduct of participants in
an industry towards other participants in the industry or towards
consumers in the industry.
(2) If this Act provides that an industry code prescribed by the
regulations for the purposes of this Part may include a provision of
a certain kind, then:
(a) the regulations may prescribe, for the purposes of this Part,
an industry code that includes a provision of that kind,
whether or not the provision regulates conduct of a kind
mentioned in subsection (1); and
(b) if the regulations do prescribe, for the purposes of this Part,
an industry code that includes a provision of that kind, the
inclusion of the provision does not prevent the code from
being an industry code for the purposes of this Part.

Division 2 Contravention of industry codes
Section 51ACB
Division 2—Contravention of industry codes
51ACB Contravention of industry codes

A corporation must not, in trade or commerce, contravene an
applicable industry code.

Infringement notices Division 2A
Section 51ACC
Division 2A—Infringement notices
51ACC Purpose and effect of this Division

(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
(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.
51ACD Issuing an infringement notice

(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:

Division 2A Infringement notices
Section 51ACE
(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.
51ACE Matters to be included in an infringement notice

(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
(j) explain how payment of the penalty is to be made; and
(k) explain the effect of sections 51ACG, 51ACH, 51ACI and
51ACJ.
51ACF 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 a civil

Section 51ACG
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.
51ACG Effect of compliance with an infringement notice

(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.
51ACH Effect of failure to comply with an infringement notice

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;

Section 51ACI
the person is liable to proceedings under section 76 in relation to

the alleged contravention of the civil penalty provision of the
industry code.
51ACI Infringement notice compliance period for infringement

notice
(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.
51ACJ Withdrawal of an infringement notice
Representations to the Commission

(1) 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.

Section 51ACJ
(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).
Withdrawal by the Commission

(3) 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.
Content of withdrawal notices

(5) 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.
Time limit for giving withdrawal notices

(6) To be effective, the withdrawal notice must be given to the person
within the infringement notice compliance period for the
infringement notice.

Section 51ACJ
Refunds
(7) 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.

Public warning notices Division 3
Section 51ADA
Division 3—Public warning notices
51ADA Commission may issue a public warning notice
Commission may issue a public warning notice

(1) 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.
Notice is not a legislative instrument

(2) A notice issued under subsection (1) is not a legislative instrument.

Division 4 Orders to redress loss or damage suffered by non-parties etc.
Section 51ADB
Division 4—Orders to redress loss or damage suffered by

non-parties etc.
51ADB Orders to redress loss or damage suffered by non-parties

etc.
Orders
(1) 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.
(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

Orders to redress loss or damage suffered by non-parties etc. Division 4
Section 51ADB
(b) prevent or reduce the loss or damage suffered, or likely to be

suffered, by the non-parties in relation to the contravening
conduct.
Application for orders

(4) 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.
Determining whether to make an order

(6) 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.
When a non-party is bound by an order etc.

(8) 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

Division 4 Orders to redress loss or damage suffered by non-parties etc.
Section 51ADC
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.
51ADC Kinds of orders that may be made to redress loss or damage

suffered by non-parties etc.
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
(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);
(b) 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);

Orders to redress loss or damage suffered by non-parties etc. Division 4
Section 51ADC
(c) an order refusing to enforce any or all of the provisions of

such a contract or arrangement;
(d) an order directing the respondent to refund money or return
property to a non-party referred to in that subsection;
(e) 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;
(f) an order directing the respondent, at his or her own expense,
to supply specified services to a non-party referred to in that
subsection;
(g) 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
Section 51ADD
Division 5—Investigation power
51ADD Commission may require corporation to provide

information
(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.
(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.
51ADE Extending periods for complying with notices

(1) A corporation that has been given a notice under section 51ADD
may, at any time within the period within which the corporation
must comply with the notice (as extended under any previous
application of subsection (2)), apply in writing to the Commission
for an extension of the period for complying with the notice.
(2) A member of the Commission may, by written notice given to the
corporation, extend the period within which the corporation must
comply with the notice.

Investigation power Division 5
Section 51ADF
(3) Subsection (2) does not affect any operation that subsection 33(3)
of the Acts Interpretation Act 1901 has in relation to a notice under
section 51ADD of this Act.
Delegation
(4) A member of the Commission may, by writing, delegate the
member’s powers under subsection (2) to a member of the staff of
the Commission who is an SES employee or an acting SES
employee.
Note 2: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain
provisions relating to delegations.
(5) In performing a function, or exercising a power, under a

delegation, the delegate must comply with any directions of the
member.
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.
51ADG False or misleading information etc.

(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

Division 5 Investigation power
Section 51ADG
(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.

Section 51AE
51AE Regulations relating to industry codes
Regulations may prescribe industry codes etc.

(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).
Conferral of functions and powers

(1A) If regulations prescribe an industry code, the industry code may
confer on a person or body functions and powers in relation to the
code, including functions and powers in relation to the following
matters:
(a) monitoring compliance with the code;
(b) dealing with disputes or complaints arising under, or in
relation to, the code;
(c) dealing with matters relating to a prospective agreement
(including disputes or complaints relating to such an
agreement) that would, if entered into, have the effect that
one or more parties to the agreement is a participant in the
industry to which the code relates;
(d) conducting investigations under, or in relation to, the code;
(e) providing exemptions from the code or specified provisions
of the code;
(f) reviewing, or reporting on, the operation of the code or
activities under, or in relation to, the code;

Section 51AE
(g) any other matter relating to the operation, application or

administration of the code.
(1B) For the purposes of subsection (1A), the persons or bodies on
whom an industry code may confer functions and powers are:
(a) if the function or power is a function of providing, or a power
to provide, exemptions from the code or specified provisions
of the code—any of the following:
(i) the Commission;
(ii) the Australian Energy Regulator;
(iii) a Minister (whether or not a Minister administering this
provision); or
(b) otherwise—any person or body (whether or not a participant
in the industry to which the code relates), including a person
or body referred to in subparagraph (a)(i), (ii) or (iii).
How functions and powers are to be exercised

(1C) If an industry code prescribed by the regulations confers on a
person or body a function or power in relation to the code, the code
may provide that the function or power is to be exercised by
legislative instrument or other kind of written instrument.
(1D) However, if an industry code confers on a person or body a
function of providing, or a power to provide, exemptions from the
code or specified provisions of the code, then (despite anything to
the contrary in the code):
(a) the function or power must be exercised by written
instrument (an exemption instrument); and
(b) if the code does not provide that an exemption instrument
made under the code is a legislative instrument, then:
(i) if each exemption provided by the instrument relates to
a particular entity—the instrument is a notifiable
instrument; or
(ii) otherwise—the instrument is a legislative instrument.
Note: If the code provides that an exemption instrument made under the
code is a legislative instrument, then the instrument is a legislative
instrument: see subsection 8(2) of the Legislation Act 2003.

Section 51AE
Requirements to provide information

(1E) An industry code prescribed by the regulations:
(a) may require a person or body to provide another person or
body with information or documents relevant to the
operation, application or administration of the code (whether
or not any of those persons or bodies are participants in the
industry to which the code relates); and
(b) may confer on a person or body (whether or not a participant
in the industry to which the code relates) a function of
imposing, or a power to impose, a requirement of the kind
(1F) Paragraph (1E)(b) does not limit subsection (1A).
Pecuniary penalties
(2) If regulations prescribe an industry code (other than a code that
relates to the industry of franchising), the industry code may
prescribe a pecuniary penalty not exceeding 600 penalty units for a
contravention of a civil penalty provision of the code.
(2A) If regulations prescribe an industry code that relates to the industry
of franchising, the industry code may do the following:
(a) prescribe that the pecuniary penalty for a contravention of a
civil penalty provision of the code by a body corporate is 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, has obtained directly or indirectly
and that is reasonably attributable to the
contravention—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 of 12 months ending at the end of the month
in which the contravention occurred;

Section 51AEAA
(b) prescribe that the pecuniary penalty for a contravention of a

civil penalty provision of the code by a person who is not a
body corporate is $500,000;
(c) if the code does not prescribe a pecuniary penalty mentioned
in paragraph (a) or (b) for a contravention of a civil penalty
provision of the code—prescribe a pecuniary penalty not
exceeding 600 penalty units for the contravention.
(2B) An expression used paragraph (2A)(a) has the same meaning as in
paragraph 76(1A)(b).
Incorporation of matters contained in other instruments

(3) If regulations prescribe an industry code that applies to one or
more entities that are authorised by or under a law of the
Commonwealth or of a State or Territory to sell electricity, the
regulations may make provision in relation to a matter by applying,
adopting or incorporating, with or without modification, any matter
contained in an instrument or other writing as in force or existing
from time to time.
(4) Subsection (3) applies despite subsection 14(2) of the Legislation
Act 2003.
51AEAA Functions and powers of Commission under industry

codes
To avoid doubt, the functions and powers of the Commission under
this Act include any function or power conferred on the
Commission by an industry code prescribed for the purposes of this
Part.
51AEA Concurrent operation of State and Territory laws


Section 51AF
51AF Acquisition of property
Scope
(1) This section applies to the following provisions:
(a) paragraphs 51AE(1A)(b) and (c);
(b) a provision of an industry code prescribed for the purposes of
this Part that is authorised by paragraph 51AE(1A)(b) or (c);
(c) any other provision of this Act or the regulations, to the
extent to which the provision relates to a provision
mentioned in paragraph (a) or (b) of this subsection.
Effect of provisions
(2) The provisions have no effect to the extent (if any) to which their
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).

Part IVBA News media and digital platforms mandatory bargaining code
Division 1 Basic concepts
Section 52A
Part IVBA—News media and digital platforms

mandatory bargaining code
Division 1—Basic concepts
52A Definitions
In this Part:
ACMA means the Australian Communications and Media
Authority.
bargaining news business representative, for a registered news
business, has the meaning given by section 52ZD.
bargaining parties has the meaning given by section 52ZG.
core bargaining issues has the meaning given by section 52ZG.
core news content means content that reports, investigates or
explains:
(a) issues or events that are relevant in engaging Australians in
public debate and in informing democratic decision-making;
or
(b) current issues or events of public significance for Australians
at a local, regional or national level.
covered news content means content that is any of the following:
(a) core news content;
(b) content that reports, investigates or explains current issues or
events of interest to Australians.
designated digital platform corporation means a corporation that
is specified as a designated digital platform corporation in a
determination under section 52E.
designated digital platform service, of a designated digital
platform corporation, means a service that is specified as a

News media and digital platforms mandatory bargaining code Part IVBA
Basic concepts Division 1
Section 52A
designated digital platform service of the corporation in a

determination under section 52E.
news business means:
(a) a news source; or
(b) a combination of news sources.
news source means any of the following, if it produces, and
publishes online, news content:
(a) a newspaper masthead;
(b) a magazine;
(c) a television program or channel;
(d) a radio program or channel;
(e) a website or part of a website;
(f) a program of audio or video content designed to be
distributed over the internet.
registered news business means a news business that is registered
under section 52G.
registered news business corporation:
(a) a registered news business corporation means a corporation
that is registered under section 52G; and
(b) a registered news business corporation, for a registered
news business, means the corporation that is endorsed under
section 52G as the registered news business corporation for
the registered news business.
register of bargaining code arbitrators means the register
established under section 52ZK.
remuneration issue has the meaning given by subsection 52ZL(1).
represented registered news business has the meaning given by
section 52ZG.
responsible digital platform corporation for a designated digital
platform service is:
(a) a corporation that:

Section 52B
(i) is a related body corporate of the service’s designated

digital platform corporation; and
(ii) if the corporation is not incorporated in Australia—is
managed in Australia; and
(iii) either by itself or together with other corporations,
operates or controls the designated digital platform
service in supplying services that are used by
Australians; or
(b) if there is no corporation that satisfies the requirements of
paragraph (a)—the service’s designated digital platform
corporation.
52B Making content available

(1) For the purposes of this Part, a service makes content available if:
(a) the content is reproduced on the service, or is otherwise
placed on the service; or
(b) a link to the content is provided on the service; or
(c) an extract of the content is provided on the service.
(2) Subsection (1) does not limit, for the purposes of this Part, the
ways in which a service makes content available.
52C Interacting with content

(1) For the purposes of this Part, a user of a service interacts with
content made available by the service if:
(a) the content is reproduced on the service, or is otherwise
placed on the service, and the user interacts with the content;
or
(b) a link to the content is provided on the service and the user
interacts with the link; or
(c) an extract of the content is provided on the service and the
user interacts with the extract.
ways in which a user of a service interacts with content made
available by a service.

Basic concepts Division 1
Section 52D
52D Distributing content

(1) For the purposes of this Part, the following are examples of ways
in which a service distributes content that is made available by the
service:
(a) ranking the content;
(b) curating the content;
(c) making the content more or less prominent;
(d) making a user more or less likely to interact with the content.
ways in which a service distributes content that is made available
by the service.
(3) For the purposes of this Part, treat the following alterations as
alterations to the ways in which a service distributes content that is
made available by the service:
(a) an alteration to the ways in which the service distributes a
particular class of content;
Example 1: An alteration that increases the prevalence or prominence of
video content made available by the service by making such
video content play automatically.
Example 2: An alteration that increases or decreases the prevalence or
prominence of content made available by the service with which
users of the service have previously interacted.
content made available by the service by making extracts from
the content available on the service automatically.
Example 4: An alteration that increases the ranking of content made
available by the service if a user’s friends and family have
interacted with content.
(b) an alteration to the ways in which the service distributes
content of a particular content creator, or class of content
creators;
Example 1: An alteration that increases or decreases the prevalence or
prominence of content made available by the service if the
content is created by a news business that has facilities to make
content load rapidly.

Section 52D
Example 2: An alteration that decreases the prevalence or prominence of

content made available by the service if the content is created by
an automated account.
content made available by the service if the content is from a
particular website, where attempts have been made to manipulate
rankings of content from the website.
content made available by the service if the content is from an
account of a celebrity or other prominent individual.
(c) an alteration to the ways in which the service distributes a
particular class of content in relation to a particular class of
users of the service.
Example 1: An alteration that prevents inappropriate content being made
available by the service to children.
particular content made available by the service to users of a
particular age.
particular content made available by the service to users who
have indicated they do not wish to see such content.
content made available by the service to users who are affected
by a natural disaster, if the content is reliable information about
the disaster.
kinds of alterations that are alterations to the ways in which a
service distributes content that is made available by the service.

Designated digital platform corporation and designated digital platform services
Division 2
Section 52E
Division 2—Designated digital platform corporation and

designated digital platform services
52E Minister may make designation determination

(1) The Minister may, by legislative instrument, make a determination
that:
(a) specifies one or more services covered by subsection (2) in
relation to a corporation as designated digital platform
services of the corporation; and
(b) specifies the corporation as a designated digital platform
corporation.
(2) This subsection covers a service in relation to a corporation if:
(a) the corporation, either by itself or together with one or more
related bodies corporate of the corporation, operates or
controls the service; or
(b) a related body corporate of the corporation, either by itself or
together with one or more other related bodies corporate of
the corporation, operates or controls the service.
(3) In making the determination, the Minister must consider:
(a) whether there is a significant bargaining power imbalance
between Australian news businesses and the group comprised
of the corporation and all of its related bodies corporate; and
(b) whether that group has made a significant contribution to the
sustainability of the Australian news industry through
agreements relating to news content of Australian news
businesses (including agreements to remunerate those
businesses for their news content).
(4) In making the determination, the Minister may consider any reports
or advice of the Commission.
(5) Before making the determination, the Minister must give the
corporation notice in writing that the Minister intends to make a

Division 2 Designated digital platform corporation and designated digital platform
services
Section 52E
determination under subsection (1) specifying the corporation and
a particular service or particular services.
(6) The Minister must not make the determination before the end of
the period of 30 days starting on the day on which the notice under
subsection (5) is given.

Registered news businesses and registered news business corporations Division 3
Section 52F
Division 3—Registered news businesses and registered

news business corporations
52F Application for registration of news business and news business

corporation
(1) A corporation (the applicant corporation) may apply to the
ACMA, in relation to a news business, for:
(a) if the news business is not already a registered news
business—the registration of the news business; and
(b) if the applicant corporation is not already a registered news
business corporation—the registration of the applicant
corporation; and
(c) the endorsement of the applicant corporation as the registered
news business corporation for the news business.
(a) be in writing; and
(b) set out every news source that comprises the news business;
and
(c) set out details of the applicant corporation’s point of contact
for the purposes of section 52Z; and
(d) if regulations made for the purposes of this paragraph specify
requirements—meet those requirements.
(3) The news business set out in the application may be comprised of
some or all of the news sources that the applicant corporation,
either by itself or together with other corporations, operates or
controls.
52G Registration of news business and news business corporation

(1) If the ACMA considers that the requirement in subsection (2) is
met, the ACMA must:
(a) if the news business is not already a registered news
business—register the news business; and

Division 3 Registered news businesses and registered news business corporations
Section 52H
(b) if the applicant corporation is not already a registered news

business corporation—register the applicant corporation; and
(c) endorse the applicant corporation as the registered news
business corporation for the news business.
(2) The requirement in this subsection is met if:
(a) the application is in accordance with subsection 52F(2); and
(b) if the news business is not already a registered news
business—none of the news sources set out in the application
in accordance with paragraph 52F(2)(b) form part of another
news business that is a registered news business; and
(c) if the news business is not already a registered news
business—all of the following requirements are met in
relation to the news business:
(i) the requirement in subsection 52N(1) (the content test);
(ii) the requirement in subsection 52O(1) (the Australian
audience test);
(iii) the requirement in subsection 52P(1) (the professional
standards test); and
(d) if the applicant corporation is not already a registered news
business corporation—the applicant corporation meets the
requirement in subsection 52M(1) (the revenue test); and
(e) the applicant corporation meets the requirement in
section 52L (connection between applicant corporation and
news business) in relation to the news business.
(3) The ACMA must publish details of each registration and

endorsement on the ACMA’s website (including details of the
applicant corporation’s point of contact for the purposes of
section 52Z).
52H Revocation of registration or endorsement—general
Revocation of registration of news business

(1) The ACMA may revoke the registration of a registered news
business if the ACMA considers that one or more of the news

Section 52H
sources that form part of the registered news business form part of
another registered news business.
business if the ACMA considers that any of the following
requirements are not met in relation to the news business:
(a) the requirement in subsection 52N(1) (the content test);
(b) the requirement in subsection 52O(1) (the Australian
audience test);
(c) the requirement in subsection 52P(1) (the professional
standards test).
business if there is no registered news business corporation that is
endorsed as the registered news business corporation for the news
business.
Revocation of registration of corporation

business corporation if the ACMA considers that the corporation
does not meet the requirement in subsection 52M(1) (the revenue
test).
business corporation if the corporation is not endorsed as the
registered news business corporation for at least one registered
news business.
Revocation of registration of endorsement of corporation for news

business
(6) The ACMA may revoke the endorsement of a registered news
business corporation as the registered news business corporation
for a registered news business if the ACMA considers that the
corporation does not meet the requirement in section 52L
(connection between corporation and news business) in relation to

Section 52I
(7) To avoid doubt, the ACMA may revoke the endorsement of a

registered news business corporation as the registered news
business corporation for a registered news business at the same
time as it endorses another registered news business corporation as
the registered news business corporation for the registered news
business.
Example: A registered news business corporation (the selling corporation) sells
a registered news business to another corporation. The other
corporation applies under section 52G for registration as a registered
news business corporation and for endorsement as the registered news
business corporation for the registered news business. The ACMA
grants the application at the same time as revoking the endorsement of
the selling corporation as the registered news business corporation for
52I Revocation of registration or endorsement—false or misleading

information or documents
(1) This section applies if, as a result of an application by a
corporation under section 52F, the ACMA:
(a) registered a news business; or
(b) registered a corporation; or
(c) endorsed a corporation as the registered news business
corporation for a news business.
(2) The ACMA may revoke the registration or endorsement if the
ACMA considers that the corporation, in making the application,
gave the ACMA information that was or documents that were false
or misleading in a material particular.
(3) To avoid doubt, for the purposes of this section, information or
documents may be false or misleading in a material particular
because of the omission of a matter or thing.
52J Obligation on registered news business corporation to notify

ACMA of loss of qualification for registration
(1) The registered news business corporation for a registered news
business must notify the ACMA, as soon as practicable, if any of

Section 52K
the following requirements are no longer met in relation to the

registered news business corporation or the registered news
business:
(a) the requirement in subsection 52N(1) (the content test);
(b) the requirement in subsection 52O(1) (the Australian
audience test);
(c) the requirement in subsection 52P(1) (the professional
standards test);
(d) the requirement in subsection 52M(1) (the revenue test);
(e) the requirement in section 52L (connection between
corporation and news business).
(2) The notification must be in writing.
52K Adding or removing news source from registered news business

(1) A registered news business corporation for a registered news
business may apply to the ACMA for:
(a) the addition of a news source to the news business; or
(b) the removal of a news source from the news business.
(b) set out every news source that comprises the news business;
and
(c) specify the news source to be added or removed; and
(3) The ACMA may add the news source to the news business if the
ACMA considers that:
(a) the application is in accordance with subsection (2); and
(b) the news source does not form part of another news business
that is a registered news business; and
(c) the corporation would continue to meet the requirement in
52L (connection between applicant corporation and news

Section 52L
business) in relation to the news business if the news source

were added to the news business; and
(d) the news business would continue to meet all of the
following requirements if the news source were added to the
news business:
(i) the requirement in subsection 52N(1) (the content test);
(ii) the requirement in subsection 52O(1) (the Australian
audience test);
(iii) the requirement in subsection 52P(1) (the professional
standards test).
(4) The ACMA may remove the news source from the registered news
business if the application is in accordance with subsection (2).
(5) The ACMA must publish details of the addition or removal on the
ACMA’s website.
52L Requirements for connection between corporation and news

business
For the purposes of this Division, the requirement is that the
corporation, either by itself or together with other corporations,
operates or controls the news business.
52M Revenue test

(1) For the purposes of this Division, the requirement is that the annual
revenue of the corporation (or of a related body corporate of the
corporation), as set out in the corporation’s (or the related body
corporate’s) annual accounts prepared in accordance with generally
accepted accounting principles, exceeds $150,000:
(a) for the most recent year for which there are such accounts; or
(b) for at least 3 of the 5 most recent years for which there are
such accounts.
(a) the corporation (or the related body corporate) acquired a
business; and

Section 52N
(b) the business’ annual revenue for a year starting before the
acquisition is ascertainable from annual accounts prepared in
accordance with generally accepted accounting principles.
(3) For the purposes of subsection (1) treat the revenue of the
corporation (or of the related body corporate) for the year
mentioned in paragraph (2)(b) as including the business’ annual
revenue for that year.
52N Content test

(1) The requirement in this subsection is met in relation to a news
business if the primary purpose of each news source covered by
subsection (2) is to create content that is core news content.
(2) This subsection covers a news source if it comprises, whether by
itself or together with other news sources, the news business.
(3) For the purposes of subsection (1), in determining whether the
primary purpose of a news source is to create content that is core
news content, take into account the following matters:
(a) the amount of core news content created by the news source;
(b) the frequency with which the news source creates core news
content;
(c) the degree of prominence given to core news content created
by the news source, compared with the degree of prominence
given to other content created by the news source;
(d) any other relevant matter.
52O Australian audience test

business if every news source covered by subsection (2) operates
predominantly in Australia for the dominant purpose of serving
Australian audiences.
itself or together with other news sources, the news business.

Section 52P
52P Professional standards test

business if:
(a) every news source covered by subsection (2):
(i) is subject to the rules of the Australian Press Council
Standards of Practice or the Independent Media Council
Code of Conduct; or
(ii) is subject to the rules of the Commercial Television
Industry Code of Practice, the Commercial Radio Code
of Practice or the Subscription Broadcast Television
Codes of Practice; or
(iii) is subject to the rules of a code of practice mentioned in
paragraph 8(1)(e) of the Australian Broadcasting
Corporation Act 1983 or paragraph 10(1)(j) of the
Special Broadcasting Service Act 1991; or
(iv) is subject to internal editorial standards that are
analogous to the rules mentioned in subparagraph (i),
(ii) or (iii) to the extent that they relate to the provision
of quality journalism; or
(v) is subject to rules specified in the regulations that
replace those mentioned in subparagraph (i), (ii) or (iii);
or
(vi) is subject to other rules specified in the regulations; and
(b) every news source covered by subsection (2) has editorial
independence from the subjects of its news coverage.
itself or together with other news sources, the relevant news
business.

General requirements Division 4
Section 52Q
Division 4—General requirements

Subdivision A—Preliminary
52Q Obligations in respect of digital platform services individually

(1) The provisions of Subdivisions B and C create obligations in
respect of every designated digital platform service, in respect of
each registered news business.
(2) Those obligations are placed on the responsible digital platform
corporation for the designated digital platform service, in respect of
the registered news business corporation for the registered news
business.
(3) If there is more than one responsible digital platform corporation
for the designated digital platform service:
(a) those obligations are placed on each of those responsible
digital platform corporations separately; and
(b) treat references in Subdivision B and C to the responsible
digital platform corporation for the designated digital
platform service as being references to each responsible
digital platform corporation for the designated digital
platform service.
Subdivision B—The minimum standards
52R Giving list and explanation of data provided to registered news

businesses
(1) If the designated digital platform service makes available covered
news content of the registered news business, the responsible
digital platform corporation for the designated digital platform
service must ensure that:
(a) information covered by subsection (2) is given to the
registered news business corporation for the registered news
business; and

Division 4 General requirements
Section 52R
(b) the information is given in terms that are readily

comprehensible; and
(c) if there are other designated digital platform services of the
responsible digital platform corporation—the information is
given in terms that relate specifically to the designated digital
platform service (and not in terms that relate to that service
and those other designated digital platform services in
aggregate); and
(d) the information is given to the registered news business
corporation no later than 28 days after the day on which the
registered news business was registered under section 52G;
and
(e) if regulations made for the purposes of this paragraph specify
other requirements for that information—those requirements
are satisfied.
(2) This subsection covers information that comprises lists and
explanations of the types of data covered by subsection (3).
(3) This subsection covers data:
(a) that relates to interactions of users of the designated digital
platform service with covered news content made available
by the designated digital platform service; and
(b) that the designated digital platform service provides to one or
more registered news businesses.
(4) The responsible digital platform corporation for the designated
digital platform service must ensure that:
(a) updated information covered by subsection (2) is given
annually to the registered news business corporation for the
registered news business; and
(b) the updated information is given in terms mentioned in
paragraphs (1)(b) and (c); and
(c) the updated information is given to the registered news
business corporation no later than 12 months after the later of
the following days:

Section 52S
(i) the day on which information was given to the

registered news business corporation in accordance with
subsection (1);
(ii) the most recent day on which updated information was
previously given to the registered news business
corporation in accordance with this subsection; and
other requirements for the updated information—those
requirements are satisfied.
(5) To avoid doubt, nothing in this section requires the responsible
digital platform corporation to give the data covered by
subsection (3) to the registered news business corporation.
52S Change to algorithm to bring about identified alteration to

distribution of content with significant effect on referral
traffic
(a) a change is planned to be made to an algorithm of the
designated digital platform service; and
(b) the dominant purpose of the change is to bring about an
identified alteration to the ways in which the designated
digital platform service distributes content that is made
available by the service; and
(c) the change is likely to have a significant effect on the referral
traffic from the designated digital platform service to the
covered news content of registered news businesses
(considered as a whole) that the service makes available.
(2) The responsible digital platform corporation for the designated
(a) notice of the change is given to the registered news business
corporation for each registered news business; and
(b) the notice is given:
(i) unless subparagraph (ii) applies—at least 14 days before
the change is made; or

Section 52V
(ii) if the change relates to a matter of urgent public

interest—no later than 48 hours after the change is
made; and
(c) the notice describes the change, and the effect mentioned in
paragraph (1)(c), in terms that are readily comprehensible;
and
(d) if there are other designated digital platform services of the
responsible digital platform corporation—the notice is given
in terms that relate specifically to the designated digital
platform service (and not in terms that relate to that service
and those other designated digital platform services in
aggregate).
(3) However, subsection (2) does not apply if the change is made
within 14 days after the day on which the registered news business
corporation was registered under section 52G.
52V Section 52S—dominant purpose

For the purposes of paragraph 52S(1)(b), treat a change as not
having the dominant purpose mentioned in that paragraph if the
change is any of the following:
(a) a change to an algorithm made as part of routine maintenance
with the dominant purpose of ensuring the ongoing
effectiveness of the algorithm;
(b) a change to an algorithm with the dominant purpose of
ensuring that the algorithm operates more quickly or more
efficiently.
52W Section 52S—significant effect

(1) For the purposes of paragraph 52S(1)(c), in determining whether
the change is likely to have the significant effect mentioned in the
paragraph, take into account the following matters:
(a) whether, as a result of the change, there is likely to be a
significant variation to the amount of covered news content
made available by the designated digital platform service;

Section 52X
(b) whether, as a result of the change, there is likely to be a

significant variation to the proportion of content made
available by the designated digital platform service
represented by covered news content;
(c) any other relevant matter (subject to subsection (2)).
(2) For the purposes of paragraph 52S(1)(c), in determining whether
the change is likely to have the significant effect mentioned in the
paragraph, disregard the following matters:
(a) whether, as a result of the change, there is likely to be a
significant variation to the proportion of covered news
content of all registered news businesses made available by
the designated digital platform service represented by the
covered news content of a particular registered news
business;
(b) the relative turnover of registered news businesses whose
covered news content is made available by the designated
digital platform service;
(c) the relative volume of covered news content created by
registered news businesses whose covered news content is
made available by the designated digital platform service;
(d) the relative financial position of registered news businesses
whose covered news content is made available by the
designated digital platform service.
Subdivision C—Recognition of original covered news content
52X Recognition of original covered news content

The responsible digital platform corporation for the designated
(a) a proposal is developed for the designated digital platform
service to recognise original covered news content when it
makes available and distributes that content; and
(b) registered news business corporations are consulted in
developing that proposal before it is published; and

Section 52Y
(c) the proposal is published no later than 6 months after the first
registration of a news business under section 52G.
Subdivision D—Facilitating open communication
52Y Facilitating open communication—responsible digital platform

corporation for designated digital platform service
The responsible digital platform corporation for a designated
digital platform service must:
(a) set up a point of contact in Australia for the purpose of this
section no later than 28 days after the Minister makes a
determination under section 52E specifying the designated
digital platform corporation; and
(b) if regulations made for the purposes of this paragraph specify
requirements for the point of contact—ensure that the point
of contact meets those requirements; and
(c) give details of that point of contact to every registered news
business corporation:
(i) unless subparagraph (ii) applies—no later than 10
business days after the responsible digital platform
corporation sets up the point of contact; or
(ii) if the registered news business corporation is registered
under section 52G after the responsible digital platform
corporation sets up the point of contact—no later than
10 business days after the registered news business
corporation is registered under section 52G; and
(d) acknowledge every communication to that point of contact
from a registered news business corporation for a registered
news business that relates to the registered news business’
covered news content made available by the designated
digital platform service; and
(e) if regulations made for the purposes of this paragraph specify
requirements for the acknowledgement—ensure that the
acknowledgement meets those requirements.

Section 52Z
52Z Facilitating open communication—registered news business

corporation for registered news business
A registered news business corporation for a registered news
business must:
(a) set up a point of contact for the purpose of this section no
later than the day on which the registered news business
corporation is registered under section 52G; and
requirements for the point of contact—ensure that the point
of contact meets those requirements; and
(c) acknowledge every communication to that point of contact
from a responsible digital platform corporation for a
designated digital platform service that relates to the
registered news business’ covered news content made
available by that designated digital platform service; and
requirements for the acknowledgement—ensure that the
acknowledgement meets those requirements.
Subdivision E—Trade secrets and personal information
52ZA Trade secrets

Nothing in this Division requires the giving of information the
disclosure of which would reveal a trade secret.
52ZB Personal information

Nothing in this Division requires or authorises the giving of
information that is personal information (within the meaning of the
Privacy Act 1988).

Division 5 Non-differentiation
Section 52ZC
Division 5—Non-differentiation
52ZC Digital service to be supplied without differentiating in

relation to registered news businesses
(1) This section applies if a responsible digital platform corporation
for a designated digital platform service, either by itself or together
with other corporations, operates or controls a digital service
(whether or not the designated digital platform service).
(2) The responsible digital platform corporation must ensure that the
supply of the digital service does not, in relation to crawling,
indexing, making available and distributing news businesses’
covered news content:
(a) differentiate between registered news businesses, because of
any of the following matters:
(ia) a corporation being registered under section 52G, or
being endorsed under that section as the registered news
business corporation for a news business;
(i) a bargaining news business representative for a
registered news business making a notification under
52ZE(1), or not making such a notification;
(ii) a bargaining news business representative for a
registered news business giving a notice under 52ZL(2),
or not giving such a notice;
(iii) a registered news business being paid, or not being paid,
an amount of remuneration for the making available of
the registered news business’ covered news content by a
designated digital platform service (whether or not the
remuneration is paid in accordance with a determination
of a panel under section 52ZX));
(iv) a registered news business being the subject of, or not
being the subject of, an agreement of a kind described in
section 52ZZK or 52ZZL;
(v) a registered news business being the subject of, or not
being the subject of, an agreement resulting from the

Non-differentiation Division 5
Section 52ZC
acceptance of an offer of a kind described in

section 52ZZM; or
(b) differentiate between registered news businesses and news
businesses that are not registered news businesses, because of
any of the following matters:
(i) a matter mentioned in subparagraph (a)(ia), (i), (ii), (iii),
(iv) or (v);
(ii) a news business covered by subsection (3) being paid,
or not being paid, an amount of remuneration for the
making available of the news business’ covered news
content by a designated digital platform service;
(iii) a news business covered by subsection (3) being the
subject of, or not being the subject of, an agreement of a
kind described in section 52ZZK or 52ZZL;
(iv) a news business covered by subsection (3) being the
subject of, or not being the subject of, an agreement
resulting from the acceptance of an offer of a kind
described in section 52ZZM; or
(c) differentiate between news businesses that are not registered
news businesses, because of any of the following matters:
(i) a corporation being eligible to be registered under
section 52G, or being eligible to be endorsed under that
section as the registered news business corporation for a
news business;
(ii) a corporation applying under section 52F for
registration of itself, or of a news business, or for
endorsement of itself as the registered news business
corporation for a news business.
(3) This subsection covers a news business if:
(a) the news business is not a registered news businesses; and
(b) none of the news sources that comprise the business form
part of a registered news business.
(4) Subsection (2) does not apply in relation to differentiation if:
(a) there is an agreement between:

Division 5 Non-differentiation
Section 52ZC
(i) the responsible digital platform corporation, or a related

body corporate of the responsible digital platform
corporation; and
(ii) a corporation that is registered (or is eligible to be
registered) under section 52G and, either by itself or
together with other corporations, operates or controls a
news business; and
(b) the agreement provides that a corporation mentioned in
subparagraph (a)(i) will ensure that remuneration is to be
paid to the news business for the making available of the
news business’ covered news content by the digital service;
and
(c) the differentiation arises solely from the amount of that
remuneration.
(5) Subsection (2) does not apply in relation to differentiation if:
(a) there is an agreement between:
(i) the responsible digital platform corporation, or a related
corporation; and
(ii) a corporation that is registered (or is eligible to be
registered) under section 52G and, either by itself or
together with other corporations, operates or controls a
news business; and
(b) the agreement provides that:
(i) a corporation mentioned in subparagraph (a)(ii) will
ensure the provision of a specified type of covered news
content to be made available by the digital service; and
(ii) a corporation mentioned in subparagraph (a)(i) will
ensure that the content is ranked preferentially when the
digital service distributes the covered news content; and
(c) the differentiation arises solely from that preferential ranking.
(a) treat the reference in the definition of news source in
section 52A to “it produces” as instead being a reference to
“it regularly produces”; and

Non-differentiation Division 5
Section 52ZC
(b) treat the reference in that definition to “news content” as

instead being a reference to “covered news content”.

Division 6 Bargaining
Section 52ZD
Division 6—Bargaining
52ZD Bargaining news business representative for a registered news

business
(1) The registered news business corporation for a registered news
business is the bargaining news business representative for the
registered news business.
(a) a registered news business corporation for a registered news
business makes an agreement in writing with a person; and
(b) the agreement provides that the person should be the
bargaining news business representative for the registered
news business.
(3) Despite subsection (1), the person is the bargaining news business
representative for the registered news business.
(4) To avoid doubt, a person can be the bargaining news business
representative for 2 or more registered news businesses.
52ZE Notification of bargaining

(1) The bargaining news business representative for a registered news
business may notify a responsible digital platform corporation for a
designated digital platform service that it wishes to bargain over
one or more specified issues relating to the registered news
business’ covered news content made available by the designated
digital platform service.
(2) If the bargaining news business representative is the bargaining
news business representative for 2 or more registered news
businesses, a notification made for the purposes of subsection (1)
may relate to some or all of those registered news businesses.

Bargaining Division 6
Section 52ZF
(3) If the responsible digital platform corporation is the responsible

digital platform corporation for 2 or more designated digital
platform services:
(a) a notification made for the purposes of subsection (1) may
relate to some or all of those designated digital platform
services; and
(b) where the notification relates to more than one designated
digital platform service—treat references in this Division and
in Division 7 to the designated digital platform service as
including references to each of the designated digital
platform services to which the notification relates.
(4) A notification made for the purposes of subsection (1) must set out
the following matters:
(a) the bargaining news business representative;
(b) each registered news business to which the notification
relates;
(c) the designated digital platform service;
(d) the responsible digital platform corporation for the
designated digital platform service;
(e) the specified issues mentioned in subsection (1);
(f) if regulations made for the purposes of this paragraph specify
other matters—those matters.
(5) A notification made for the purposes of subsection (1) cannot be
later varied to relate to a registered news business that was not set
out in the notification.
Subdivision B—Bargaining obligations
52ZF Application of Subdivision

This Subdivision applies if a notification is made for the purposes
of subsection 52ZE(1).

Division 6 Bargaining
Section 52ZG
52ZG Bargaining parties, core bargaining issues and represented

registered news businesses
(1) The bargaining parties are as follows:
(a) the bargaining news business representative that made the
notification;
(b) the responsible digital platform corporation for the
designated digital platform service to which the notification
relates.
(2) The bargaining parties may agree, in writing, that they wish to
bargain over one or more extra specified issues relating to the
registered news business’ covered news content made available by
any of the following:
(a) the designated digital platform service;
(b) specified services other than the designated digital platform
service.
(3) The core bargaining issues are:
(a) the specified issues in the notification (as mentioned in
paragraph 52ZE(4)(e)); and
(a) the specified issues in an agreement (if any) between the
bargaining parties as mentioned in subsection (2).
(4) Each registered news business to which the notification relates is a
represented registered news business.
52ZH Obligation to negotiate in good faith

Each bargaining party must negotiate in good faith over each core
bargaining issue.
52ZI Obligation to notify Commission if agreement reached

If the bargaining parties reach agreement over each core bargaining
issue, they must ensure that a written notification of the agreement
is given to the Commission as soon as practicable.

Bargaining Division 6
Section 52ZIA
Subdivision BA—Mediation
52ZIA Obligation to participate in mediation

(a) the bargaining parties have not reached agreement over each
core bargaining issue within 3 months after the notification
was made for the purposes of subsection 52ZE(1); or
(b) the bargaining parties agree to refer the core bargaining
issues to mediation under this Subdivision.
(2) Each bargaining party must participate in a mediation about the
core bargaining issues.
(3) To avoid doubt, each bargaining party must comply with
section 52ZH (good faith negotiations) in respect of the mediation.
(4) The mediator is to be appointed by the ACMA.
52ZIB Rules about conduct of mediation

(1) The regulations may set out rules relating to the conduct of a
mediation under this Subdivision.
(2) A mediation under this Subdivision is to be conducted according to
those rules.
(3) Despite subsection 14(2) of the Legislation Act 2003, regulations
made for the purposes of subsection (1) may make provision in
relation to a matter by applying, adopting or incorporating, with or
without modification, any matter contained in an instrument or
other writing as in force or existing from time to time.
(4) Without limiting the scope of regulations that may be made for the
purposes of subsection (1), those regulations may:
(a) set out rules relating to the payment of the costs of the
mediator; and
(b) without limiting the scope of paragraph (a), specify who is to
pay those costs.

Division 7 Arbitration about remuneration issue
Section 52ZIC
52ZIC Termination of mediation

(1) A mediation under this Subdivision terminates if:
(a) unless paragraph (b) applies—2 months have passed since
the start of the mediation; or
(b) if the bargaining parties agree to a 2-month extension of the
mediation—4 months have passed since the start of the
mediation; or
(c) the mediator decides to terminate the mediation in
accordance with subsections (3) and (4); or
(d) the bargaining parties agree to terminate the mediation.
(2) To avoid doubt, the bargaining parties can only agree to one
extension in accordance with paragraph (1)(b).
(3) The mediator may decide to terminate the mediation if, having
regard to the conduct of the bargaining parties in the mediation, the
mediator considers that there are no reasonable prospects of the
bargaining parties reaching agreement over each core bargaining
issue.
(4) The mediator may decide to terminate the mediation whether or not
a bargaining party has asked the mediator to do so.
Subdivision C—Miscellaneous
52ZJ Bargaining over other issues

To avoid doubt, nothing in this Division limits the bargaining
parties to negotiating only over the core bargaining issues.

Arbitration about remuneration issue Division 7
Section 52ZK
Division 7—Arbitration about remuneration issue

52ZK Register of bargaining code arbitrators

(1) The ACMA must establish and keep a register of bargaining code
arbitrators.
(2) Each such person listed on the register must be:
(a) a person experienced in legal matters, economic matters or
industry matters; or
(b) a person who the ACMA considers has appropriate
experience to be a member of an arbitral panel for the
purposes of this Part.
(3) In listing a person on the register, the ACMA must consider
requirements (if any) specified in regulations made for the
purposes of this subsection.
Subdivision B—Starting arbitration
52ZL Notification of arbitration

(a) a notification has been made for the purposes of
subsection 52ZE(1) to a responsible digital platform
corporation for a designated digital platform service; and
(b) one of the core bargaining issues (the remuneration issue)
concerns the remuneration to be paid to a registered news
business for the making available of the registered news
business’ covered news content by the designated digital
platform service.
(2) The bargaining party that is the bargaining news business
representative may give a notice to the Commission that arbitration
about the remuneration issue should start, if:
(a) both of the following conditions are satisfied:

Section 52ZM
(i) mediation in respect of the core bargaining issues has

terminated in accordance with section 52ZIC;
(ii) the bargaining parties had not reached an agreement
about terms for resolving the remuneration issue before
the mediation terminated; or
(b) the bargaining parties have agreed to arbitration about terms
for resolving the remuneration issue no earlier than 10
business days after the notification referred to in
paragraph (1)(a) was made.
(4) However, the bargaining party that is the bargaining news business
representative cannot give a notice under subsection (2) at a time
if, within the period of 24 months ending at that time, a notice has
been given under subsection (2) in respect of:
(a) the designated digital platform service mentioned in
paragraph (1)(a); and
(b) the registered news business mentioned in paragraph (1)(b).
(5) As soon as practicable after the Commission has been given a
notice under subsection (2), it must give the ACMA and each of
the bargaining parties a notice stating that:
(a) an arbitral panel is to be formed; and
(b) the members of the panel are to be appointed in accordance
with section 52ZM.
52ZM Formation of arbitral panel

(1) This section applies if a notice has been given under
subsection 52ZL(5).
(2) An arbitral panel is to be formed to arbitrate about the
remuneration issue.

Section 52ZN
(3) The membership of the panel is to be comprised of:

(a) the Chair; and
(b) unless the bargaining parties agree that the sole member of
the panel is the Chair—2 other members.
(4) The members of the panel are to be appointed by agreement
between the bargaining parties.
(5) The bargaining parties may agree to appoint persons who are, or
are not, listed on the register of bargaining code arbitrators.
(6) If the bargaining parties agree on the appointment of one or more
of the members, each of the bargaining parties must give the
Commission and the ACMA a notice that:
(a) specifies:
(i) the name (or names) of the person (or persons)
appointed; and
(ii) the date of the agreement; and
other information—that information.
(7) For the purposes of subsection (6), the notice must be given no
later than the end of:
(a) the period of 10 business days after the notice was given
under subsection 52ZL(5); or
a different period—that period.
(8) If the bargaining parties cannot agree on the appointment of one or
more of the members within that period, the ACMA must make
that appointment or those appointments.
(9) The ACMA may only make an appointment of a person who is
listed on the register of bargaining code arbitrators.

Section 52ZN
52ZN Disclosure of conflicts of interest where ACMA appoints

member of panel
(1) Before the ACMA appoints a person to be a member of the panel,
the ACMA must give the person a reasonable opportunity to
declare actual or potential conflicts of interest in accordance with
subsection (2).
(2) Before a person accepts appointment as a member of the panel, the
person must declare to the ACMA any actual or potential conflict
of interest in relation to the arbitration.
(3) If the ACMA has reason to consider that a person who has been
appointed as a member of the panel has any actual or potential
conflict of interest in relation to the arbitration (regardless whether
the person declared the conflict in accordance with subsection (2)):
(a) the ACMA may give a notice in writing to the person stating
that the person should no longer be a member of the panel;
and
(b) the person ceases to be a member of the panel when ACMA
gives the person the notice.
(4) If the ACMA gives a notice under paragraph (3)(a), the ACMA
must, as soon as practicable:
(a) give a copy of the notice to the bargaining parties; and
(b) make an appointment of another person as a member of the
panel.
(5) For the purposes of paragraph (4)(b), the ACMA may only make
an appointment of a person who is listed on the register of
bargaining code arbitrators.
(6) For the purposes of this section, a person has a conflict of interest
in relation to the arbitration if the person has any interest,
pecuniary or otherwise, that could conflict with the proper
performance of the person’s functions in relation to the arbitration.

Section 52ZO
52ZO Costs of arbitral panel

(1) The bargaining parties must each pay half of the costs of each
member of the panel.
(2) Each member of the panel is to determine that member’s costs,
worked out as daily costs.
(3) If regulations made for the purposes of this subsection specify rules
relating to those costs (including the amount of those costs), the
bargaining parties must comply with those rules.
52ZP Chair to notify start of arbitration

(1) The Chair must notify the bargaining parties that arbitration about
terms for resolving the remuneration issue will start on a specified
day that is no later than 5 business days (or, if the regulations
specify a different period, the end of that period) after the
appointment of the Chair.
52ZQ Bargaining parties’ agreement about dealing with extra

services in arbitration
(1) The bargaining parties may agree, in writing, that specified
services other than the designated digital platform service should
be dealt with in the arbitration.
(2) If the bargaining parties notify the Chair of the agreement before
the start of the arbitration, Subdivision C applies as if:
(a) the remuneration issue related to the designated digital
platform service and the specified services mentioned in
subsection (1); and

Section 52ZR
(b) references in that Subdivision to the designated digital

platform service included references to those specified
services.
Subdivision C—Final offer arbitration
52ZR Application
This Subdivision applies if the Chair has given notice under
section 52ZP.
52ZS Obligation to participate in arbitration in good faith

Each bargaining party must participate in the arbitration in good
faith.
52ZT Information request by bargaining party—general

(1) Each bargaining party may give the other bargaining party a
request that the other bargaining party give it specified information
if:
(a) the information is covered by subsection (2); and
(b) it is reasonable for the bargaining party to make the request
for the purposes of this Division; and
(c) the request is made no later than 5 business days after the
start of arbitration; and
(d) the bargaining party has not made a previous request under
this subsection in respect of the arbitration.
(2) This subsection covers information that is held by any of the
following:
(a) if the other bargaining party is the responsible digital
platform corporation:

Section 52ZT
(i) the responsible digital platform corporation;

(ii) a related body corporate of the responsible digital
platform corporation; or
(b) if the other bargaining party is the bargaining news business
representative:
(i) the registered news business corporation for the
represented registered news business;
(ii) a related body corporate of the registered news business
corporation for the represented registered news
business.
(3) A request under subsection (1) must:
(a) be made in writing; and
(b) set out reasons why it is reasonable for the bargaining party
to make the request for the purposes of this Division; and
(c) if regulations made for the purposes of this paragraph specify
other requirements—comply with those requirements.
(4) The bargaining party must give a copy of the request to the panel
on the same day that it gives the request to the other bargaining
party.
(5) If a bargaining party makes a request under subsection (1), the
other bargaining party must ensure that:
(a) the request is complied with no later than 10 business days
after:
(i) unless subparagraph (ii) applies—the request was given
to the other bargaining party; or
(ii) if an application is made under subsection 52ZU(1)—
the panel makes a ruling under subsection 52ZU(3); and
(b) the information requested is given in terms that are readily
comprehensible; and
(c) if the other bargaining party is the responsible digital
platform corporation and there are other designated digital
platform services of the responsible digital platform
corporation—the information is given in terms that relate
specifically to the designated digital platform service (and

Section 52ZU
not in terms that relate to that service and those other

designated digital platform services in aggregate); and
other requirements for that information—those requirements
are satisfied.
52ZU Information request by bargaining party—challenges by

other bargaining party
(1) The other bargaining party may apply to the panel, in writing, for a
ruling that it is not reasonable for the bargaining party to make the
request for the purposes of this Division, in relation to all or a
specified part of the information requested.
(2) An application under subsection (1) can be made no later than 10
business days after the bargaining party gives the request to the
other bargaining party.
(3) If an application is made under subsection (1), the panel must make
a ruling in relation to it no later than 10 business days after it is
made.
(4) The ruling may relate to all or a specified part of the information
requested.
(5) In making the ruling, the panel must consider the matters
mentioned in subsection 52ZZ(1).
(6) Nothing in section 52ZT requires the giving of information to the
extent (if any) that the panel makes a ruling under subsection (3)
that it was not reasonable for the bargaining party to make the
request for the purposes of this Division, in relation to all or a
specified part of the information requested.
52ZV Information request by bargaining party—miscellaneous

rules
(1) Nothing in section 52ZT requires the giving of information the
disclosure of which would reveal a trade secret.

Section 52ZW
(2) Nothing in section 52ZT requires or authorises the giving of

information that is personal information (within the meaning of the
Privacy Act 1988).
(3) If a bargaining party gives information to the other bargaining
party in order to comply with subsection 52ZT(5), the other
bargaining party must ensure that the information is not used for a
purpose other than a purpose in relation to arbitration under this
Division.
(a) there is a reference to a number of business days in a
provision in section 52ZT or 52ZU; and
(b) regulations made for the purposes of this paragraph specify a
different number of business days in respect of that
provision.
(5) Treat that reference in the provision as being to the number of
business days specified in the regulations as mentioned in
paragraph (4)(b).
52ZW Agreed early termination of arbitration

(a) the bargaining parties agree that the arbitration should
terminate; and
(b) the panel did not make a determination in accordance with
subsection 52ZX(1) before the agreement was made; and
(c) no information was given by a bargaining party in order to
comply with a request made under subsection 52ZT(1) before
the agreement was made.
(2) The parties must notify the Chair of the agreement as soon as
practicable after the day on which the agreement is made.
(3) The arbitration terminates in accordance with that agreement, but
no earlier than the day on which parties notify the Chair of the
agreement in accordance with subsection (2).

Section 52ZX
(4) However, if the parties fail to comply with subsection (2):

(a) subsection (3) does not apply; and
(b) the agreement does not affect the validity of the arbitration or
any aspect of the arbitration.
52ZX Final offer arbitration

(1) The panel is to make a determination under this subsection about
the terms for resolving the remuneration issue that:
(a) is in accordance with subsections (7), (8) and (9) (final offer
arbitration); and
(b) sets out a lump sum amount (the remuneration amount) for
remunerating the registered news business for the making
available of the registered news business’ covered news
content by the designated digital platform service for 2 years;
and
(c) is consistent with rights under contracts that are in force
between:
(i) the responsible digital platform corporation or a related
corporation; and
(ii) the registered news business corporation for the
represented registered news business or a related body
corporate of that registered news business corporation.
(2) Each of the bargaining parties must:
(a) submit to the panel a final offer for what the remuneration
amount should be (expressed as a lump sum); and
(b) give a copy of the final offer to the Commission on the same
day that it submits the final offer to the panel.
(3) If a bargaining party gives a copy of the final offer to the
Commission, the Commission must give a copy of the final offer to
the other bargaining party as soon as practicable.
(4) A final offer:
(a) cannot be submitted later than the latest of the following:

Section 52ZX
(i) the end of the period of 10 business days after the day
on which the arbitration starts;
(ii) if a bargaining party makes a request under
subsection 52ZT(1) (information requests)—the end of
the period of 10 business days after the latest day on
which the other bargaining party may comply with the
request in accordance with subsection 52ZT(5);
(iii) if a bargaining party makes an application under
subsection 52ZU(1) (challenges to information
requests)—the end of the period of 10 business days
after the day on which the panel makes a ruling in
relation to the application under subsection 52ZU(3);
(iv) if regulations made for the purposes of this
subparagraph specify a different period—the end of that
period;
(v) if the panel considers that exceptional circumstances
justify a different period—the end of that period; and
(b) cannot be more than 30 pages in length.
(5) An offer that does not comply with subsection (4) is not a final
offer for the purposes of this Division.
(6) A final offer, once submitted, cannot be withdrawn or amended.
(7) The panel must accept one of the final offers unless the panel
considers that each final offer is not in the public interest because it
is highly likely to result in serious detriment to:
(a) the provision of covered news content in Australia; or
(b) Australian consumers.
(8) If the panel does not accept one of those final offers, it must
ascertain the remuneration amount by adjusting the most
reasonable of those offers in a manner that results in that offer
being in the public interest.
(9) If one bargaining party fails to submit to the panel a final offer for
what the remuneration amount should be, in accordance with
subsection (4), the panel must:

Section 52ZXA
(a) accept the final offer submitted by the other bargaining party,
in accordance with subsection (7); or
(b) ascertain the remuneration amount by adjusting the final
offer submitted by the other party, in accordance with
subsection (8).
52ZXA Final offer to be accompanied by information about

contracts
(1) If a bargaining party submits to the panel a final offer in
accordance with subsection 52ZX(4), it must, on the same day that
it submits the final offer to the panel, give the panel information
that:
(a) is relevant to the arbitration; and
(b) relates to all contracts that are in force between:
(i) the responsible digital platform corporation or a related
corporation; and
(ii) the registered news business corporation for the
represented registered news business or a related body
corporate of that registered news business corporation.
(2) Nothing in subsection (1) requires the giving of information if
doing so would disclose information that is protected against
disclosure by a duty of confidence.
(3) To avoid doubt, subsection (2) does not prevent a bargaining party
from giving information under subsection (1) if the other
bargaining party agrees to the bargaining party doing so.
52ZY Final offer arbitration—termination of arbitration if no final

offers
If both bargaining parties fail to submit to the panel a final offer for
what the remuneration amount should be, the arbitration terminates
on the day after the last day on which such a final offer could have
been submitted in accordance with subsection 52ZX(4).

Section 52ZZ
52ZZ Matters to consider in arbitration, etc.

(1) In making a determination under subsection 52ZX(1) (including in
complying with subsections 52ZX(7), (8) and (9)), the panel must
consider the following matters:
(a) the benefit (whether monetary or otherwise) of the registered
news business’ covered news content to the designated
digital platform service;
(b) the benefit (whether monetary or otherwise) to the registered
news business of the designated digital platform service
making available the registered news business’ covered news
content;
(c) the reasonable cost to the registered news business of
producing covered news content;
(ca) the reasonable cost to the designated digital platform service
of making available covered news content in Australia;
(d) whether a particular remuneration amount would place an
undue burden on the commercial interests of the designated
digital platform service.
(2) In considering the matters set out in subsection (1), the panel must
consider the bargaining power imbalance between Australian news
businesses and the designated digital platform corporation.
52ZZA Other requirements for arbitration determination

(1) The panel must make the determination no later than 35 business
days (or, if the regulations specify a different period, the end of
that period) after the latest of the following days:
(a) the last day on which a final offer may be submitted in
accordance with subsection 52ZX(4);
(b) the last day on which a submission may be given by a
bargaining party in accordance with subsection 52ZZB(1);
(c) the last day on which a submission may be given by the
Commission in accordance with subsection 52ZZC(1);
(d) the last day on which a submission may be given by a
bargaining party in accordance with subsection 52ZZC(3).

Section 52ZZB
(2) If the Chair is not the sole member of the panel:

(a) the panel must endeavour to make the determination by
unanimous decision of the members of the panel; and
(b) where a unanimous decision is not possible, the panel must
make the determination by majority decision of the members
of the panel.
(3) The panel must, as soon as practicable, give written reasons for
making the determination to the bargaining parties and the
Commission.
(4) Those written reasons must contain the information (if any)
specified in regulations made for the purposes of this subsection.
52ZZB Submissions of bargaining parties

(1) Each bargaining party may give to the panel a submission about
the final offer of the other bargaining party, no later than 5
business days (or, if the regulations specify a different period, the
end of that period) after the panel has received both final offers (in
accordance with paragraph 52ZX(2)(a)).
(2) The submission can only deal with issues that are dealt with in any
material accompanying either of the final offers.
(3) The submission cannot be more than 20 pages in length.
(4) If a bargaining party gives the panel a submission under
subsection (1):
(a) the bargaining party must give a copy of the submission to
the Commission on the same day that it gives the submission
to the panel; and
(b) if the Commission is given a copy of the submission under
paragraph (a), the Commission must give a copy of the
submission to the other bargaining party as soon as
practicable.

Section 52ZZC
52ZZC Role of Commission

(1) The Commission may give to the panel a submission in relation to
the arbitration, no later than 10 business days (or, if the regulations
specify a different period, the end of that period) after the
Commission has received both final offers (in accordance with
paragraph 52ZX(2)(b)).
(1A) The information contained in the submission must be:
(a) impartial factual information that relates to the relevant
market; and
(b) impartial information that relates to relevant economic
principles.
(2) If the Commission gives the panel a submission under
subsection (1), it must give the bargaining parties a copy of the
submission on the same day that it gives the submission to the
panel.
(3) Each bargaining party may give to the panel a submission about
the Commission’s submission, no later than 5 business days after
the bargaining party has received the Commission’s submission.
(4) The bargaining party’s submission cannot be more than 20 pages in
length.
(5) If a bargaining party gives the panel a submission under
subsection (3):
(a) the bargaining party must give a copy of the submission to
the Commission on the same day that it gives the submission
to the panel; and
(b) if the Commission is given a copy of the submission under
paragraph (a), the Commission must give a copy of the
submission to the other bargaining party as soon as
practicable.

Section 52ZZD
52ZZD Guidelines about conduct of arbitration

(1) The Commission may, in writing, make guidelines relating to the
conduct of an arbitration under this Division.
(2) However, the Commission cannot include in the guidelines a
provision that relates to any of the following matters unless the
Minister has approved the provision, in writing:
(a) how a panel makes a ruling under subsection 52ZU(3)
(information requests);
(b) the content of final offers made by bargaining parties in
accordance with subsection 52ZX(2);
(c) the content of submissions given by bargaining parties in
accordance with subsection 52ZZB(1);
(d) how a panel makes a determination in accordance with
subsection 52ZX(1).
(3) A panel may take the guidelines into account in conducting an
arbitration under this Division.
(4) However:
(a) the panel need not take the guidelines into account in
conducting the arbitration; and
(b) a failure by the panel to take the guidelines into account in
conducting the arbitration does not affect the validity of the
arbitration or any aspect of the arbitration.
(5) The Commission must publish the guidelines on its website as soon
as practicable.
(6) General information made available by the Commission in
accordance with subsection 28(1) must not relate to the conduct of
an arbitration under this Division.
(7) Guidelines made under subsection (1) are not a legislative
instrument.

Section 52ZZE
Subdivision D—Effect of arbitral determination
52ZZE Bargaining parties must comply with the determination

The bargaining parties must comply with a determination made by
the panel in accordance with subsection 52ZX(1).

Division 8 Enforcement etc.
Section 52ZZF
Division 8—Enforcement etc.
52ZZF Record generating and keeping

(1) A responsible digital platform corporation for a designated digital
platform service must comply with requirements specified in
regulations made for the purposes of subsection (2).
(2) The regulations may specify requirements for the generation and
keeping of records relating to the operation of this Part.
(3) Division 5 of Part IVB applies in relation to subsection (1) in the
same way in which it applies in relation to an applicable industry
code (within the meaning of that Part).
(4) This section does not limit section 155 (which is about the general
information-gathering powers of the Commission).
52ZZG Infringement notices—Division 4 of this Part

(1) Subject to subsection (2), Division 2A of Part IVB applies in
relation to an alleged contravention of a provision of Division 4 of
this Part in the same way in which it applies in relation to an
alleged contravention of a civil penalty provision of an industry
code (within the meaning of that Part).
(2) For the purposes of applying Division 2A of Part IVB in
accordance with subsection (1), treat the reference in
paragraph 51ACF(a) to 50 penalty units as being a reference to 600
penalty units.
52ZZH Joint and several liability for pecuniary liabilities

(a) a responsible digital platform corporation for a designated
digital platform service is liable to a pecuniary penalty in
accordance with section 76 because it contravened a
provision of this Part; and

Enforcement etc. Division 8
Section 52ZZH
(b) the responsible digital platform corporation is not the

service’s designated digital platform corporation.
(2) The responsible digital platform corporation and the service’s
designated digital platform corporation are jointly and severally
liable for the pecuniary penalty.

Division 9 Agreements between digital platform corporations and registered news
business corporations
Section 52ZZI
Division 9—Agreements between digital platform

corporations and registered news business
corporations
52ZZI Simplified outline of this Division
Responsible digital platform corporations may make standard

offers relating to remuneration for registered news business
corporations. If an offer is accepted by a registered news
business corporation, rules under this Part relating to
bargaining and arbitration do not apply to the parties to the
contract.
Responsible digital platform corporations (and related bodies

corporate) may also make agreements outside this Part to
disapply rules under this Part relating to bargaining,
arbitration and other matters.
Responsible digital platform corporations (and related bodies

corporate) may also make offers relating to such matters under
this Part.
52ZZJ Standard offers—content

(1) An offer by a responsible digital platform corporation for a
designated digital platform corporation complies with this
subsection if:
(a) the responsible digital platform corporation makes the offer
to each registered news business corporation covered by
subsection (2) (a covered RNBC); and
(b) the offer provides for the matters in subsection (3)
(acceptance procedure); and
(c) the offer provides that a binding agreement resulting from it
will have:

Agreements between digital platform corporations and registered news business
corporations Division 9
Section 52ZZJ
(i) the features mentioned in subsection (4) (formal
matters); and
(ii) the features mentioned in subsection (5) (remuneration).
(2) A registered news business corporation is covered by this
subsection unless:
(a) regulations made for the purposes of this paragraph specify a
kind or kinds of registered news business corporation; and
(b) the registered news business corporation is not of that kind or
one of those kinds.
(3) For the purposes of paragraph (1)(b), the matters are as follows:
(a) a covered RNBC may accept the offer before the end of the
offer period;
(b) subject to paragraphs (c) and (d), such an acceptance
becomes final, and a resulting agreement between the
responsible digital platform corporation and the covered
RNBC becomes binding, at the end of the offer period;
(c) the covered RNBC may revoke such an acceptance before the
end of the offer period;
(d) the responsible digital platform corporation may revoke the
offer before the end of the offer period.
(4) For the purposes of subparagraph (1)(c)(i), the features of the
agreement are as follows:
(a) the agreement provides that it covers specified corporations
(the covered corporations); and
(b) each covered corporation is:
(i) the responsible digital platform corporation; or
(iii) the registered news business corporation; or
(iv) a related body corporate of the registered news business
corporation; and
(c) the agreement specifies a 2 year period (the covered period)
during which it is in force; and

Section 52ZZJ
(d) the agreement specifies one or more designated digital
platform services or other services (the covered services) of
the designated digital platform corporation; and
(e) the agreement expressly provides that some or all provisions
mentioned in subsection 52ZZK(4) (the specified provisions)
are not to apply to the extent that they would impose an
obligation on one covered corporation in respect of another
covered corporation in relation to the covered services.
(5) For the purposes of subparagraph (1)(c)(ii), the features of the
agreement are as follows:
(a) the agreement specifies that the responsible digital platform
corporation will ensure the payment of remuneration to the
covered RNBC (or a related body corporate of the covered
RNBC) for the making available of the registered news
business’ covered news content by one or more of the
covered services, in respect of the covered period; and
other features—those features.
(6) Regulations made for the purposes of paragraph (5)(b) may specify
features relating to the amount of the remuneration mentioned in
paragraph (5)(a) (including features that require the determination
of that remuneration to be based on specified factors).
(7) Subsection (6) does not limit the scope of regulations that may be
made for the purposes of paragraph (5)(b).
(8) The offer period is the period that:
(a) starts when the responsible digital platform corporation gives
a copy of the offer to a covered RNBC; and
(b) ends:
(i) unless subparagraph (ii) applies—60 days after the
period starts; or
(ii) if regulations made for the purposes of this
subparagraph specify a different day—on that day.

Section 52ZZK
(9) To avoid doubt, this section does not prevent the making of other
kinds of offers or agreements.
52ZZK Standard offers—consequences of agreement

digital platform corporation makes an offer to make a
binding agreement; and
(b) the offer complies with subsection 52ZZJ(1); and
(c) the responsible digital platform corporation has given a copy
of the offer to all registered news business corporations
covered by subsection 52ZZJ(2); and
(d) a registered news business corporation for a registered news
business has accepted the offer, and the resulting agreement
has become binding on the responsible digital platform
corporation and the registered news business corporation;
and
(e) the parties to the agreement notify the Commission, in
writing, that the agreement has become binding.
(2) The specified provisions do not apply to the extent that
(disregarding this subsection) they impose an obligation on one
covered corporation in respect of another covered corporation in
relation to the covered services that are designated digital platform
services.
(3) However, subsection (2) does not apply if, before the agreement
became binding, a notification has been made for the purposes of
subsection 52ZE(1) to the responsible digital platform corporation,
in relation to the registered news business.
(4) The provisions are as follows:
(a) Division 6 (bargaining);
(b) Division 7 (arbitration about remuneration issue).

Section 52ZZL
52ZZL Contracting out of general requirements, bargaining and
arbitration
digital platform corporation (or a related body corporate of
such a responsible digital platform corporation) makes a
binding agreement with another corporation (the news
business corporation); and
(b) the agreement provides that it covers specified corporations
(the covered corporations); and
(c) each covered corporation is:
(i) the responsible digital platform corporation; or
(iii) the news business corporation; or
(iv) a related body corporate of the news business
corporation; and
(d) the agreement specifies the period (the covered period)
during which it is in force; and
(e) the agreement specifies one or more designated digital
platform services or other services (the covered services) of
the designated digital platform corporation; and
(f) the agreement expressly provides that some or all provisions
mentioned in subsection (4) (the specified provisions) are not
to apply to the extent that they would impose an obligation
on one covered corporation in respect of another covered
corporation in relation to the covered services; and
(g) the parties to the agreement notify the Commission, in
writing, that the agreement has been made.
(2) The specified provisions do not apply to the extent that
(disregarding this subsection) they impose an obligation on one
covered corporation in respect of another covered corporation in
relation to the covered services that are designated digital platform
services.

Section 52ZZM
(3) However, subsection (2) does not apply if:
(a) an arbitration under Division 7 started in relation to any of
the covered services in respect of the payment of
remuneration, for a period starting or ending in the covered
period, to the news business corporation (or a related body
corporate of the news business corporation); and
(b) before the agreement was made:
(i) the panel made a determination in accordance with
subsection 52ZX(1); or
(ii) a bargaining party gave information in order to comply
with a request made under subsection 52ZT(1).
(4) The provisions are as follows:
(a) Division 4 (general requirements);
(b) Division 6 (bargaining);
(c) Division 7 (arbitration about remuneration issue).
52ZZM Offers relating to general requirements, bargaining and

arbitration not prohibited
(1) To avoid doubt, nothing in this Part prevents a responsible digital
platform corporation for a designated digital platform corporation
(or a related body corporate of such a responsible digital platform
corporation) from making an offer, to corporations covered by
subsection (2) in general, to make an agreement of a kind described
in paragraphs 52ZZL(1)(a) to (f).
(2) This subsection covers a corporation that, either by itself or
together with other corporations, operates or controls a news
business.
(3) To avoid doubt:
(a) the offer may provide that it is not subject to further
negotiations; and
(b) this section does not prevent the making of other kinds of
offer.

Division 10 Powers and functions of the ACMA in relation to this Part
Section 52ZZN
Division 10—Powers and functions of the ACMA in

relation to this Part
52ZZN Powers of the ACMA to obtain information etc.
Application of Broadcasting Services Act 1992

(1) Subject to this Division, Parts 13 and 14B of the Broadcasting
Services Act 1992, and any other provisions of that Act to the
extent that they relate to either of those Parts, apply as if:
(a) a reference in Part 13 of the Broadcasting Services Act 1992
to the ACMA’s broadcasting, content and datacasting
functions included a reference to the powers and functions of
the ACMA under Part IVBA of this Act; and
(b) the references in paragraphs 168(2)(b) and 187(2)(b) of that
Act to the “due administration of this Act” included a
reference to the due administration of Part IVBA of this Act.
Note: Part 13 of the Broadcasting Services Act 1992 deals with
information-gathering by the ACMA, and Part 14B of that Act deals
with civil penalties.
Offences and civil penalty provisions

(2) For the purposes of applying the Broadcasting Services Act 1992 in
relation to this Part in accordance with subsection (1):
(a) omit the penalty in section 201 of that Act and instead treat
that section as if it were a civil penalty provision for the
purposes of that Act; and
(b) disregard subsections 202(1) and (2) of that Act; and
(c) disregard subsections 205F(4) and (5) of that Act; and
(d) treat the maximum penalty for a contravention of a civil
penalty provision of Part 13 or 14B of that Act (including a
contravention of a provision that is treated as a civil penalty
provision because of this section) as being 600 penalty units.

Powers and functions of the ACMA in relation to this Part Division 10
Section 52ZZO
52ZZO No Ministerial directions to the ACMA in relation to this

Part
(1) Section 14 of the Australian Communications and Media Authority
Act 2005 does not apply in relation to the performance of the
ACMA’s functions, or the exercise of the ACMA’s powers, under:
(a) this Part; or
(b) Part 13 of the Broadcasting Services Act 1992, as it applies in
relation to this Part because 52ZZN of this Act.
(2) Subsection (3) applies for the purposes of applying Part 13 (the
applied Part) of the Broadcasting Services Act 1992 in relation to
this Part in accordance with section 52ZZN of this Act.
(3) Disregard any provision in the applied Part to extent that the
provision allows the Minister (within the meaning of the provision)
to give a direction to the ACMA that relates to the performance of
the ACMA’s functions, or the exercise of the ACMA’s powers,
under this Part.

Section 52ZZP
52ZZP Exceptions to Part IV

For the purposes of subsection 51(1), an arrangement between 2 or
more registered news business corporations is specified and
specifically authorised if it is an arrangement for the purposes of
negotiating, under or in relation to this Part, with a responsible
digital platform corporation in relation to covered news content.
52ZZQ Concurrent operation of State and Territory laws

52ZZR Giving information and producing documents by electronic

means
Paragraphs 9(1)(d) and (2)(d) and 11(1)(e) and (2)(e) of the
Electronic Transactions Act 1999 do not apply to a requirement, or
permission, under this Part to give information in writing or
produce a document.
Note: Those paragraphs of the Electronic Transactions Act 1999 deal with
the consent of the recipient of information or documents to the
information being given, or the documents being produced, by way of
electronic communication.
52ZZS Review of operation of this Part

(1) Within the period of 12 months after the commencement of this
Part, the Minister must cause a review of the operation of the Part
to be commenced.
(2) The review must be completed no later than 12 months after the
commencement of the review.

Section 52ZZS
(3) A written report of the review must be given to the Minister and
the Communications Minister (within the meaning of the National
Broadband Network Companies Act 2011).
(4) The Minister must ensure that copies of the report are available for
public inspection as soon as practicable after the period of 28 days
beginning on the day the report is given to the Minister.

Part IVC Payment surcharges
Section 55
Part IVC—Payment surcharges

55 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.
55A Definitions
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).

Payment surcharges Part IVC
Section 55A
surcharge participant has the meaning given by

subsection 55C(2).

Division 2 Limit on payment surcharges
Section 55B
Division 2—Limit on payment surcharges
55B Payment surcharges must not be excessive

(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.

Information about payment surcharges Division 3
Section 55C
Division 3—Information about payment surcharges
55C Surcharge information notices

(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.
55D Extending periods for complying with notices

(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.

Division 3 Information about payment surcharges
Section 55E
55E Participant must comply with notice

(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.

Infringement notices Division 4
Section 55F
Division 4—Infringement notices
55F Purpose and effect of this Division

(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:
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:
contravention; or
(ii) an infringement notice issued to the person for the
contravention is withdrawn under section 55N; or
55G Issuing an infringement notice

has contravened section 55B, the Commission may issue an
infringement notice to the person.
to the person for the same alleged contravention of section 55B.
(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.

Division 4 Infringement notices
Section 55H
55H Matters to be included in an infringement notice

and
(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
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
(i) state that the penalty is payable to the Commission on behalf
(j) explain how payment of the penalty is to be made; and
(k) explain the effect of sections 55K, 55L, 55M and 55N.
55J 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
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.
55K Effect of compliance with an infringement notice


Section 55L
(a) an infringement notice for an alleged contravention of

section 55B is issued to a person; 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.
Commonwealth, in relation to the alleged contravention of
section 55B.
55L Effect of failure to comply with an infringement notice

If:
(a) an infringement notice for an alleged contravention of
section 55B is issued to a person; 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.
55M Infringement notice compliance period for infringement notice

(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.
infringement notice compliance period for the infringement notice
if the Commission is satisfied that it is appropriate to do so.

Section 55N
(3) Only one extension may be given and the extension must not be for
longer than 28 days.
of the extension.
55N Withdrawal of an infringement notice

alleged contravention of section 55B may make written
representations to the Commission seeking the withdrawal of the


Section 55N

person; and
(d) that proceedings under section 76 may be started or
continued against the person in relation to the alleged
contravention of section 55B.

Refunds
must refund to the person an amount equal to the amount paid.

Part IVD Consumer data right
Section 56AA
Part IVD—Consumer data right

Subdivision A—Object and simplified outline
56AA Object of this Part

The object of this Part is:
(a) to enable consumers in certain sectors of the Australian
economy to require information relating to themselves in
those sectors to be disclosed safely, efficiently and
conveniently:
(i) to themselves for use as they see fit; or
(ii) to accredited persons for use subject to privacy
safeguards; and
(b) to enable any person to efficiently and conveniently access
information in those sectors that:
(i) is about goods (such as products) or services; and
(ii) does not relate to any identifiable, or reasonably
identifiable, consumers; and
(c) as a result of paragraphs (a) and (b), to create more choice
and competition, or to otherwise promote the public interest.
56AB Simplified outline
Rules made under this Part may:

(a) enable consumers in certain sectors of the Australian
economy to require information relating to themselves in
those sectors to be disclosed to themselves or to
accredited persons; and
(b) enable any person to be disclosed information in those
sectors that is about goods (such as products) or

Consumer data right Part IVD
Section 56AC
services, and does not relate to any identifiable, or

reasonably identifiable, consumers; and
(c) may require these kinds of disclosures, and other things,
to be done in accordance with data standards.
A register is to be kept of accredited persons.
Privacy safeguards apply. These mainly apply to accredited

persons who, under those rules, are disclosed information relating
to identifiable, or reasonably identifiable, consumers.
Subdivision B—Designating sectors subject to the consumer

data right
56AC Designated sectors subject to the consumer data right
Designating a sector
(1) A designated sector means a sector of the Australian economy
designated under subsection (2).
(2) The Minister may, by legislative instrument, designate a sector of
the Australian economy by specifying:
(a) classes of information (the designated information); and
(b) persons who hold one or more specified classes of the
designated information (or on whose behalf such information
is held); and
(c) the earliest day (the earliest holding day) applicable to the
sector for holding the designated information; and
(d) each of the classes of information within the designated
information for which a person may charge a fee if:
(i) the person is required under the consumer data rules to
disclose information within that class to another person
in specified circumstances; or
(ii) another person uses information within that class in
specified circumstances as the result of a disclosure

Section 56AC
required of the first-mentioned person under the

consumer data rules; and
(e) if the sector is to have one or more gateways:
(i) the particular persons who are gateways; and
(ii) for each of those persons, the classes of information
within the designated information for which the person
is a gateway.
Note 1: The persons specified under paragraph (b):
(a) may be specified by class (see subsection 13(3) of the Legislation
Act 2003); and
(b) will be holders of the information, rather than the consumers to
whom the information relates; and
(c) may not be the only holders of the information who can be
required to disclose it under the consumer data rules (see
section 56AJ (about the meaning of data holder)).
Note 2: While a class of information specified under paragraph (b), (d) or (e)
needs to be of the information specified under paragraph (a), it need
not be the same class as a class specified under paragraph (a).
Note 3: Subparagraph (e)(i) allows only particular persons to be specified, not
classes of persons.
Note 4: For variation and repeal, see subsection 33(3) of the Acts
Interpretation Act 1901.
Geographical limitation on information that can be designated

(3) Despite paragraph (2)(a), treat a class of information specified as
described in that paragraph as only including so much of the
information in that class as:
(a) has at any time been generated or collected wholly or partly
in Australia or the external Territories, and:
(i) has been so generated or collected by (or on behalf of)
one or more Australian persons; or
(ii) relates to one or more Australian persons (other than the
persons who so generated or collected it); or
(iii) relates to goods or services supplied, or offered for
supply, to one or more Australian persons; or
(b) has only ever been generated and collected outside of
Australia and the external Territories, and:

Section 56AD
(i) has been so generated or collected by (or on behalf of)

one or more Australian persons; and
(ii) relates to one or more Australian persons (other than the
persons who so generated or collected it), or relates to
goods or services supplied, or offered for supply, to one
or more Australian persons.
In this subsection, Australian person has the same meaning as in
subsection 56AO(5).
Limitation on the earliest holding day

(4) While the earliest holding day may be before the day the
instrument under subsection (2) is made, the earliest holding day
must not be earlier than the first day of the calendar year that is 2
years before the calendar year in which that instrument is made.
Example: The instrument is made on 1 July 2020. The earliest holding day could
be 1 January 2018, but not before.
Note: The earliest holding day helps to work out if a person is a data holder
of information specified under paragraph (2)(a), and so whether that
information is subject to the consumer data right.
56AD Minister’s tasks before designating a sector etc.

(1) Before making an instrument under subsection 56AC(2), the
Minister must consider all of the following:
(a) the likely effect of making the instrument on:
(i) the interests of consumers; and
(ii) the efficiency of relevant markets; and
(iii) the privacy or confidentiality of consumers’
information; and
(iv) promoting competition; and
(v) promoting data-driven innovation; and
(vi) any intellectual property in the information to be
covered by the instrument; and
(vii) the public interest;

Section 56AD
(b) the likely regulatory impact of allowing the consumer data

rules to impose requirements relating to the information to be
covered by the instrument;
(c) the following matters when considering whether to specify a
class of information, as described in paragraph 56AC(2)(d),
in the instrument:
(i) whether not specifying that class could result in an
acquisition of property (within the meaning of
paragraph 51(xxxi) of the Constitution);
(ii) whether holders of information within that class
currently charge a fee for disclosing such information;
(iii) whether the incentive to generate, collect, hold or
maintain information within that class would be reduced
if that class were not so specified;
(iv) the marginal cost of the disclosures required under the
consumer data rules of information within that class;
(d) whether one or more gateways need to be specified in the
instrument in order to facilitate access to the information to
be covered by the instrument;
(e) any other matters the Minister considers relevant.
Note: The consumers could be individuals or other persons such as
companies (see also subsection 56AI(4)).

Minister must:
(a) be satisfied that the Secretary of the Department has
complied with section 56AE in relation to the making of the
instrument; and
(b) wait at least 60 days after the day the Secretary publishes the
report relating to the making of the instrument (see
section 56AE).
Minister must consult the Information Commissioner about the
likely effect of making the instrument on the privacy or
confidentiality of consumers’ information.

Section 56AE
56AE Secretary must arrange for analysis, consultation and report

about an instrument proposing to designate a sector
(1) The Secretary of the Department complies with this section in
relation to the making of an instrument under subsection 56AC(2)
if the Secretary arranges for all of the following:
(a) an analysis of the matters in paragraphs 56AD(1)(a) to (e) in
relation to the instrument;
(b) public consultation about those matters in relation to the
instrument:
(i) for at least 28 days; and
(ii) in one or more ways that includes making information
available on the Department’s website and inviting the
public to comment;
(c) consultation with each of the following about those matters
in relation to the instrument:
(i) the Commission;
(ii) the Information Commissioner;
(iii) the person or body (if any) that the Secretary believes to
be the primary regulator of the sector that the instrument
would designate;
(iv) any person or body prescribed by the regulations;
(d) the preparation of a report for the Minister about that analysis
and consultation.
(2) The Secretary must publish the report on the Department’s website.
56AEA Commission must analyse an instrument proposing to

designate a sector
When the Commission is consulted under
subparagraph 56AE(1)(c)(i), the Commission must analyse the
matters in paragraphs 56AD(1)(a) to (e) in relation to the
instrument.

Section 56AF
56AF Information Commissioner must analyse and report about an

instrument proposing to designate a sector
(1) When the Information Commissioner is consulted under
subsection 56AD(3), the Information Commissioner must:
(a) analyse the likely effect of making the instrument on the
privacy or confidentiality of consumers’ information; and
(b) report to the Minister about that analysis.
(2) The Information Commissioner must publish the report on the
Information Commissioner’s website, except for any excluded part
of the report.
(3) In deciding whether or not to exclude a part of the report from
publication, the Information Commissioner must:
(a) have regard to the need to prevent the matters in
subsection 33(2) of the Privacy Act 1988; and
(b) try to achieve an appropriate balance between the need to
prevent those matters and the desirability of ensuring that
interested persons are sufficiently informed of the
Information Commissioner’s analysis in the report.
56AH Other matters

A failure to comply with section 56AD, 56AE, 56AEA or 56AF
does not invalidate an instrument made under subsection 56AC(2).
Subdivision C—Meanings of key terms
56AI Meanings of CDR data, directly or indirectly derived and CDR

consumer
(1) CDR data is information that:
(a) is within a class of information specified, as described in
paragraph 56AC(2)(a), in an instrument designating a sector
under subsection 56AC(2); or
(b) is not covered by paragraph (a) of this subsection, but is
wholly or partly derived from information covered by:

Section 56AI
(i) paragraph (a) of this subsection; or

(ii) a previous application of this paragraph.
Note 1: Geographical limitations may cause some information within a class
specified as described in paragraph 56AC(2)(a) to be disregarded (see
subsection 56AC(3)), which means it will not be CDR data.
Note 2: Information covered by paragraph (b) includes information derived
from information covered by paragraph (a), information derived from
that derived information, and so on.
Note 3: Information covered by paragraph (b), for which there is a CDR
consumer, cannot be required to be disclosed under the consumer data
rules (see subsection 56BD(1)).
Note 4: Only certain kinds of CDR data for which there are no CDR
consumers (also known as product data) can be required to be
disclosed under the consumer data rules (see subsection 56BF(1)).
(2) CDR data is directly or indirectly derived from other CDR data if
the first-mentioned CDR data is wholly or partly derived from the
other CDR data after one or more applications of paragraph (1)(b).
(3) A person is a CDR consumer for CDR data if:
(a) the CDR data relates to the person because:
(i) of the supply of a good or service to the person or to one
or more of the person’s associates (within the meaning
of section 318 of the Income Tax Assessment Act 1936);
or
(ii) of circumstances of a kind prescribed by the regulations;
and
(b) the CDR data is held by another person who:
(i) is a data holder of the CDR data; or
(ii) is an accredited data recipient of the CDR data; or
(iii) is holding the CDR data on behalf of a person
mentioned in subparagraph (i) or (ii); and
(c) the person is identifiable, or reasonably identifiable, from:
(i) the CDR data; or
(ii) other information held by the other person referred to in
paragraph (b); and

Section 56AJ
(d) none of the conditions (if any) prescribed by the regulations

apply to the first-mentioned person in relation to the CDR
data.
(4) Section 4B (about consumers) does not apply to this Part.
56AJ Meaning of data holder

(1) A person is a data holder, of CDR data, if:
(a) the CDR data:
(i) is information within a class of information specified, as
described in paragraph 56AC(2)(a), in an instrument
designating a sector under subsection 56AC(2) (the
designation instrument); or
(ii) is directly or indirectly derived from information
covered by subparagraph (i); and
(b) the CDR data is held by (or on behalf of) the person on or
after the earliest holding day specified in the designation
instrument; and
(ba) in the case of the CDR data beginning to be held by (or on
behalf of) the person before that earliest holding day, the
CDR data:
(i) is of continuing use and relevance; and
(ii) is not about the provision before that earliest holding
day of a product or service by (or on behalf of) the
person; and
(c) the person is not a designated gateway for the CDR data; and
(d) subsection (2), (3) or (4) applies to the person and the CDR
data.
Note 1: Geographical limitations may cause some information within a class
specified as described in paragraph 56AC(2)(a) to be disregarded (see
subsection 56AC(3)), which means it will not be CDR data.
Note 2: For a product or service that the person began providing before the
earliest holding day and continued providing after that day:
(a) subparagraph (ba)(ii) means the person will not be the data
holder of CDR data about the person’s provision of the product
or service before that day; but

Section 56AK
(b) the person will be the data holder of CDR data about the person’s
provision of the product or service on or after that day.
First case—person is also specified in the designation instrument

(2) This subsection applies to a person and CDR data if:
(a) the person, or a class of persons to which the person belongs,
is specified, as described in paragraph 56AC(2)(b), in the
designation instrument as holding a class of information to
which the CDR data belongs; and
(b) neither the CDR data, nor any other CDR data from which it
was directly or indirectly derived, was disclosed to the person
under the consumer data rules.
Second case—reciprocity arising from the person being disclosed

other CDR data under the consumer data rules
(a) neither the CDR data, nor any other CDR data from which it
was directly or indirectly derived, was disclosed to the person
under the consumer data rules; and
(b) the person is an accredited data recipient of other CDR data.
Note 1: Paragraph (b) is referring to other CDR data not covered by
paragraph (a).
Note 2: The other CDR data referred to in paragraph (b) could be within a
class of information specified in another instrument designating a
different sector under subsection 56AC(2).
Third case—conditions in the consumer data rules are met

(a) the person is an accredited person; and
(b) the CDR data, or any other CDR data from which it was
directly or indirectly derived, was disclosed to the person
(c) the conditions specified in the consumer data rules are met.

Section 56AK
56AK Meaning of accredited data recipient

A person is an accredited data recipient, of CDR data, if:
(a) the person is an accredited person; and
(b) the CDR data is held by (or on behalf of) the person; and
(c) the CDR data, or any other CDR data from which it was
directly or indirectly derived, was disclosed to the person
(d) the person is neither a data holder, nor a designated gateway,
for the first-mentioned CDR data.
Note: For paragraph (d), the person will be a data holder of that CDR data if
subsection 56AJ(4) applies.
56AL Meanings of CDR participant and designated gateway

(1) A CDR participant, for CDR data, is a data holder, or an
accredited data recipient, of the CDR data.
(2) A person is a designated gateway, for CDR data, if:
(a) the person is specified as a gateway, as described in
subparagraph 56AC(2)(e)(i), in an instrument designating a
sector under subsection 56AC(2); and
(b) the CDR data is information within a class, specified in that
instrument, for which the person is a gateway; and
(c) the CDR data is, or is to be, disclosed to the person under the
consumer data rules because the person is:
(i) acting as described in a subparagraph of
paragraph 56BG(1)(a) or (b); or
(ii) if there are no consumers for the CDR data—acting
between a CDR participant for the CDR data and a
person requesting a disclosure of the CDR data;
and not because the person is an accredited person or a CDR
consumer for the CDR data.

Section 56AM
56AM Meanings of chargeable CDR data, chargeable circumstances

and fee-free CDR data
(1) CDR data is chargeable CDR data if the CDR data is information
within a class specified, as described in paragraph 56AC(2)(d), in
an instrument designating a sector under subsection 56AC(2) (the
designation instrument).
(2) The chargeable CDR data is disclosed in chargeable
circumstances if it is disclosed in circumstances specified:
(a) for that class of information; and
(b) as described in subparagraph 56AC(2)(d)(i);
in the designation instrument.
(3) The chargeable CDR data is used in chargeable circumstances if it
is used in circumstances specified:
(a) for that class of information; and
(b) as described in subparagraph 56AC(2)(d)(ii);
in the designation instrument.
(4) CDR data is fee-free CDR data if:
(a) the consumer data rules require it to be disclosed; and
(b) it is not chargeable CDR data.
Subdivision D—Extension to external Territories and

extraterritorial operation
56AN Extension to external Territories

Each of the following provisions (the CDR provisions) extends to
every external Territory:
(a) a provision of this Part;
(b) a provision of the regulations made for the purposes of a
provision of this Part;
(c) a provision of the consumer data rules;
(d) another provision of this Act to the extent that it relates to a
provision covered by paragraph (a), (b) or (c);

Section 56AO
(e) a provision of the Regulatory Powers Act to the extent that it

applies in relation to a provision of this Part;
(f) a provision of the Privacy Act 1988 to the extent that it
applies as described in section 56ES or 56ET of this Act.
56AO Extraterritorial operation of the CDR provisions
CDR provisions generally apply inside and outside Australia

(1) Subject to subsections (2) and (3), the CDR provisions extend to
acts, omissions, matters and things outside Australia.
CDR provisions apply for CDR data held inside Australia

(2) To the extent that the CDR provisions have effect in relation to
CDR data held within Australia, the CDR provisions apply in
relation to all persons (including foreign persons).
CDR provisions can apply for CDR data held outside Australia
(3) To the extent that the CDR provisions have effect in relation to an
act, or omission, relating to CDR data held outside Australia, the
CDR provisions only apply if:
(a) the act or omission is by (or on behalf of) an Australian
person; or
(b) the act or omission occurs wholly or partly in Australia, or
wholly or partly on board an Australian aircraft or an
Australian ship; or
(c) the act or omission occurs wholly outside Australia, and an
Australian person suffers, or is likely to suffer, financial or
other disadvantage as a result of the act or omission.
Interpretation
(4) For the purposes of subsection (3), if a person’s act or omission
includes sending, omitting to send, causing to be sent or omitting
to cause to be sent an electronic communication or other thing:
(a) from a point outside Australia to a point inside Australia; or

Section 56AP
(b) from a point inside Australia to a point outside Australia;

that act or omission is taken to have occurred partly in Australia.
Australia, when used in a geographical sense, includes all the
external Territories.
Australian person means:
(a) a body corporate established by or under a law of the
Commonwealth, of a State or of a Territory; or
(b) an Australian citizen, a permanent resident (within the
meaning of the Australian Citizenship Act 2007), or any other
person ordinarily resident within Australia or an external
Territory; or
(c) an entity covered by subsection 56AR(1), (2) or (3) (about
Australian government entities).
foreign person means a person other than an Australian person.
point includes a mobile or potentially mobile point, whether on
land, underground, in the atmosphere, underwater, at sea or
anywhere else.
56AP Geographical application of offences

Division 14 (Standard geographical jurisdiction) of the Criminal
Code does not apply in relation to an offence against the CDR
provisions.
Note: The extended geographical application that section 56AO gives to the
CDR provisions applies to the offences against the CDR provisions.
Subdivision E—Application to government entities
56AQ CDR provisions bind the Crown

(1) The CDR provisions bind the Crown in each of its capacities.
(2) However, the CDR provisions do not make the Crown:

Section 56AR
(a) liable to a pecuniary penalty or to be prosecuted for an

offence; or
(b) subject to a remedy under section 56EY (about actions for
damages for contravening the privacy safeguards); or
(c) subject to a remedy under Part VI (about enforcement) other
than section 87B (about enforceable undertakings); or
(d) subject to a remedy under Part 4 (about civil penalties) or 7
(about injunctions) of the Regulatory Powers Act; or
(e) subject to Part XID of this Act (about search and seizure).
56AR Government entities may participate under this Part
Application to Commonwealth government entities

(1) The CDR provisions apply in relation to an entity that:
(a) is part of the Commonwealth; or
(b) is a Commonwealth entity (within the meaning of the Public
Governance, Performance and Accountability Act 2013); or
(c) is a body (whether or not incorporated) established by or
under a law of the Commonwealth; or
(d) is:
(i) holding or performing the duties of an office established
by or under a law of the Commonwealth; or
(ii) holding an appointment made under a law of the
Commonwealth; or
(e) is prescribed by the regulations.
Note: For how the CDR provisions so apply, see subsection (4).
Application to State or Territory government entities

(2) The CDR provisions apply only in relation to an entity that:
(a) is part of a State or Territory; or
(b) is a body (whether or not incorporated) established for a
public purpose by or under a law of a State or Territory; or
(c) is:

Section 56AR
(i) holding or performing the duties of an office established

by or under a law of a State or Territory; or
(ii) holding an appointment made under a law of a State or
Territory; or
(d) is an entity prescribed by the regulations in relation to a State
or Territory;
if a declaration under subsection 56AS(1), that the entity is a
participating entity for the State or Territory, is in force.
(3) However, whether or not such a declaration is in force for an entity

referred to in subsection (2), the CDR provisions apply in relation
to the entity to the extent that:
(a) the CDR provisions relate to a CDR consumer for CDR data;
and
(b) the entity is a CDR consumer for CDR data (or would be a
CDR consumer for CDR data if the entity were a person).
How the CDR provisions apply to a government entity

(4) For an entity covered by subsection (1), (2) or (3), the CDR
provisions apply as described in that subsection in relation to the
entity:
(a) as if the entity were a person; and
(b) with the modifications (if any) prescribed by the regulations.
This subsection does not affect how subsection 56AQ(2) applies to
the entity.
(5) If the CDR provisions so apply to an entity covered by
subsection (1):
(a) as a data holder of CDR data, the entity is conferred such
functions as are necessary to enable the entity to operate as a
data holder in accordance with the CDR provisions; or
(b) as a designated gateway for CDR data, the entity is conferred
such functions as are necessary to enable the entity to operate

Section 56AS
as a designated gateway in accordance with the CDR

provisions.
56AS Participating government entities of a State or Territory—

declaration
(1) The Minister may, by notifiable instrument, declare that an entity is
a participating entity for a State or Territory.
Note: An entity may be specified by class (see subsection 13(3) of the
Legislation Act 2003).
(2) However, the Minister must not do so unless the Minister is

satisfied that the State or Territory has agreed to the entity
participating under this Part.
(3) If:
(a) a State or Territory has agreed to an entity of the State or
Territory participating under this Part; and
(b) the entity is a body corporate;
the entity is taken to have also agreed to participate under this Part.
56AT Participating government entities of a State or Territory—

revocation
(1) The Minister may, by notifiable instrument, revoke a declaration
made under subsection 56AS(1) that an entity is a participating
entity for a State or Territory.
(2) If a State or Territory requests in writing the Minister to revoke a
declaration made under subsection 56AS(1) that an entity is a
participating entity for the State or Territory, the Minister must,
under subsection (1) of this section, revoke the declaration as soon
as practicable.
(3) If the Minister revokes a declaration made under
subsection 56AS(1) in relation to an entity, then, despite the
revocation, subsection 56AR(2) continues to apply to the entity in
relation to:

Section 56AU
(a) any right, privilege, obligation or liability acquired, accrued

or incurred before the revocation; and
(b) any investigation, legal proceeding or remedy in respect of
any such right, privilege, obligation or liability;
as if the declaration were still in force.
Subdivision F—Application to acts done by or in relation to

agents etc. of CDR entities
56AU Acts done by or in relation to agents etc. of CDR entities
Conduct of agents etc. of a CDR entity attributable to the CDR

entity
(1) For the purposes of this Part and the consumer data rules, each of
the following provisions applies to a CDR entity who is not a body
corporate in a corresponding way to the way that provision applies
to a CDR entity who is a body corporate:
(a) section 84 of this Act;
(b) section 97 of the Regulatory Powers Act (to the extent that it
applies in relation to a provision of this Part).
Acts done in relation to an agent of a CDR entity taken to be done

in relation to the CDR entity
(2) For the purposes of this Part and the consumer data rules, if an act
is done by a person in relation to another person (the agent) who:
(a) is acting on behalf of a CDR entity; and
(b) is so acting within the agent’s actual or apparent authority;
the act is taken to have also been done in relation to the CDR
entity.
Definitions
CDR entity means any of the following:
(a) a data holder of CDR data;

Section 56AU
(b) an accredited person;

(c) a designated gateway for CDR data.

Consumer data right Division 2
Section 56BA
Division 2—Consumer data right

Subdivision A—Power to make consumer data rules
56BA Minister may make consumer data rules

(1) The Minister may, by legislative instrument, make rules (the
consumer data rules) for designated sectors in accordance with
this Division.
Note: Subdivision C deals with the process for making the consumer data
rules.
(2) Without limiting subsection (1), the consumer data rules may set
out:
(a) different rules for different designated sectors; or
(b) different rules for different classes of CDR data; or
(c) different rules for different classes of persons specified, as
described in paragraph 56AC(2)(b), in an instrument
designating a sector under subsection 56AC(2); or
(d) different rules for different classes of persons who are able to
be disclosed CDR data under the consumer data rules.
56BAA Rules must include requirement to delete CDR data on

request from CDR consumer
Requirement to delete CDR data in response to request from CDR

consumer
(1) The consumer data rules must include a requirement on an
accredited data recipient of CDR data to delete all or part of the
CDR data in response to a valid request by a CDR consumer for
the CDR data to be deleted.
(2) However, a rule described in subsection (1) must not require
deletion of all or part of the CDR Data if:

Division 2 Consumer data right
Section 56BAA
(a) the accredited data recipient is required to retain the CDR

data by or under an Australian law or a court/tribunal order;
or
(b) the CDR data relates to any current or anticipated:
(i) legal proceedings; or
(ii) dispute resolution proceedings;
to which the accredited data recipient is a party; or
(c) the CDR data relates to any current or anticipated:
to which the CDR consumer is a party.
Consumer data rules may include rules in relation to the

requirement
(3) The consumer data rules may include the following rules in
relation to the requirement:
(a) rules about:
(i) how the CDR consumer may make a valid request; and
(ii) what must be included in a request for it to be valid and
when a request ceases to be a valid request;
(b) rules specifying circumstances (in addition to those in
subsection (2)) in which the accredited data recipient may
refuse to delete the CDR data despite the requirement;
(c) rules about how an accredited data recipient is to delete the
CDR data covered in a valid request;
(d) rules about how the requirement is to be complied with
depending on the class of CDR data requested to be deleted;
(e) rules about how an accredited data recipient is to notify the
CDR consumer of:
(i) the deletion of the CDR data and the extent of the
deletion; or
(ii) if the CDR data is not deleted—the reasons the deletion
did not occur;
(f) rules about any other matters incidental or related to the
requirement (see also section 56BJ).

Section 56BB
(4) This section applies despite any other provision of this Division.
(5) This section does not limit the consumer data rules dealing with the
deletion of CDR data in circumstances other than compliance with
the requirement.
56BB Matters that the consumer data rules may deal with
The consumer data rules may deal with the following matters:
(a) disclosure, collection, use, accuracy, storage, security or
deletion of CDR data for which there are one or more CDR
consumers (see also sections 56BC and 56BD);
(b) disclosure, collection, use, accuracy, storage, security or
deletion of CDR data for which there are no CDR consumers
(see also sections 56BE and 56BF);
(c) designated gateways for CDR data (see also section 56BG);
(d) accreditation of data recipients (see also section 56BH);
(e) reporting, record keeping and auditing (see also
section 56BI);
(f) matters incidental or related to any of the above matters (see
also section 56BJ).
56BC Rules about disclosure, collection, use, accuracy, storage,

security or deletion of CDR data for which there are CDR
consumers
Required disclosures in response to valid requests

(1) Without limiting paragraph 56BB(a), the consumer data rules may
include the following rules:
(a) requirements on a CDR participant for CDR data to disclose
all or part of the CDR data, in response to a valid request by
a CDR consumer for the CDR data, to:
(i) the CDR consumer for use as the CDR consumer sees
fit; or
(ii) an accredited person for use subject to the privacy
safeguards;

Section 56BC
(b) rules about:

(i) how a CDR consumer for the CDR data may make a
valid request of the kind described in paragraph (a); and
(ii) what must be included in a request for it to be valid,
what disclosures or other matters a valid request may
cover, and when a request ceases to be a valid request;
(c) requirements on a person (other than a CDR consumer for the
CDR data) to satisfy in order to be disclosed the CDR data in
the way described in paragraph (a).
Note 1: The requirements described in paragraph (a) could, for example,
include a requirement that the disclosure be in accordance with the
relevant data standards.
Note 2: A fee may be charged for such a disclosure if the CDR data is
chargeable CDR data, unless section 56BU provides otherwise.
Authorised disclosures or use in accordance with valid consents

(a) rules authorising a CDR participant for CDR data to disclose
all or part of the CDR data to a person in accordance with a
valid consent of a CDR consumer for the CDR data;
(b) rules authorising a person to use CDR data in accordance
with a valid consent of a CDR consumer for the CDR data;
(c) rules about:
(i) how a CDR consumer for the CDR data may make a
valid consent of the kind described in paragraph (a) or
(b); and
(ii) what must be included in a consent for it to be valid,
what disclosures, uses or other matters a valid consent
may cover, and when a consent ceases to be a valid
consent.
Note: Fees may be charged for these disclosures or uses.

Section 56BD
Other rules
include the following rules relating to CDR data for which there
are one or more CDR consumers:
(a) rules relating to the privacy safeguards;
(b) other rules relating to the disclosure, collection, use,
accuracy, storage or security of the CDR data that affect:
(i) an accredited person; or
(ii) a CDR participant, or CDR consumer, for the CDR
data;
(c) other rules relating to the deletion of the CDR data that
affect:
(i) an accredited person; or
(ii) an accredited data recipient of the CDR data; or
(iii) a CDR consumer for the CDR data.
Note 1: Subsection 56BD(3) limits how such rules can affect a data holder.
Note 2: The rules may deal with similar or additional matters to those in the
privacy safeguards. When doing so, the rules will need to be
consistent with those safeguards (see subsections 56EC(1) and (2)).
Note 3: The rules must include a requirement on an accredited data recipient
to delete all or part of the CDR data in response to a valid request by a
CDR consumer for the CDR data (see section 56BAA).
56BD Limitations for rules about CDR data for which there are
CDR consumers
Only designated CDR data can be required to be disclosed

(1) The consumer data rules can only require a disclosure of CDR data
for which there are one or more CDR consumers if:
(a) the CDR data is within a class of information specified, as
described in paragraph 56AC(2)(a), in an instrument
designating a sector under subsection 56AC(2); and
(b) the disclosure is to:
(i) one or more of those CDR consumers; or

Section 56BD
(ii) an accredited person; or

(iii) a designated gateway for the CDR data; or
(iv) a data holder of the CDR data by a designated gateway
for the CDR data; or
(v) a person acting on behalf a person referred to in
subparagraph (ii), (iii) or (iv).
Note 1: This means CDR data cannot be required to be disclosed if it:
(a) is not within a class specified in such an instrument; and
(b) is directly or indirectly derived from CDR data that is within a
class specified in such an instrument.
Note 2: The consumer data rules can include other rules relating to this other
derived CDR data.
Note 3: Voluntary disclosures of this other derived CDR data can be
authorised under the consumer data rules.
No fee when fee-free CDR data is required to be disclosed

(2) The consumer data rules cannot allow a fee to be charged for:
(a) the disclosure of fee-free CDR data under rules like those
described in paragraph 56BC(1)(a) or 56BG(1)(a); or
(b) the use of fee-free CDR data received as the result of such a
disclosure.
Note: Fees may be charged for other kinds of disclosures or uses of fee-free
CDR data.
Rules affecting data holders that relate to the use, accuracy,

storage, security or deletion of CDR data
(3) For a data holder of CDR data for which there are one or more
CDR consumers, the consumer data rules:
(a) cannot include rules affecting the data holder that relate to
the deletion of the CDR data; and
(b) can only include rules affecting the data holder that relate to
the use, accuracy, storage or security of the CDR data if such
rules also relate to the disclosure of the CDR data under the

Section 56BE
Effect of limitations
(4) Subsections (1), (2) and (3) apply despite any other provision of
this Division.
56BE Rules about disclosure, collection, use, accuracy, storage,

security or deletion of product data
Without limiting paragraph 56BB(b), the consumer data rules may
include the following rules for CDR data for which there are no
CDR consumers:
(a) requirements on a CDR participant for the CDR data to
disclose all or part of the CDR data to a person in response to
a valid request by the person;
(b) rules about:
(i) how a person may make a valid request of the kind
described in paragraph (a); and
(ii) what must be included in a request for it to be valid,
what disclosures or other matters a valid request may
cover, and when a request ceases to be a valid request;
(c) requirements on a person to satisfy in order to be disclosed
the CDR data in the way described in paragraph (a);
(d) other rules affecting:
(i) CDR participants for the CDR data; or
(ii) persons wishing to be disclosed the CDR data;
that relate to the disclosure, collection, use, accuracy, storage,
security or deletion of the CDR data.
Note 1: A request for this CDR data could be made, for example, to assist the
development of a product or service.
Note 2: The requirements described in paragraph (a) could, for example,
include a requirement that the disclosure be in accordance with the
relevant data standards.
Note 3: The privacy safeguards do not apply to this CDR data (see
subsection 56EB(1)).

Section 56BF
56BF Limitations for rules about product data
Only certain kinds of product data can be required to be disclosed

(1) The consumer data rules can only require a disclosure of CDR data
for which there are no CDR consumers if:
(a) the CDR data is about the eligibility criteria, terms and
conditions, price, availability or performance of:
(i) a product or other kind of good; or
(ii) a service; and
(b) in the case where the CDR data is about availability or
performance—the CDR data is publicly available.
Note 1: This means other kinds of CDR data for which there are no CDR
consumers cannot be required to be disclosed.
Note 2: The consumer data rules can include other rules relating to other kinds
of CDR data for which there are no CDR consumers.
Note 3: Voluntary disclosures of other kinds of CDR data for which there are
no CDR consumers can be authorised under the consumer data rules.
No fee when this CDR data is required to be disclosed

(2) The consumer data rules cannot allow a fee to be charged for:
(a) the disclosure of CDR data under rules like those described
in paragraph 56BE(a) or 56BG(2)(a); or
(b) the use of CDR data received as the result of such a
disclosure.
Note: A fee could be charged for other disclosures or uses of CDR data for
which there are no CDR consumers.
Effect of limitations
(3) Subsections (1) and (2) apply despite any other provision of this
Division.

Section 56BG
56BG Rules about designated gateways
CDR data for which there are CDR consumers

(1) Without limiting paragraph 56BB(c), if there is a designated
gateway for CDR data for which there are one or more CDR
consumers, the consumer data rules may include the following
rules:
(a) rules like those described in subsection 56BC(1) for the CDR
data, but involving the designated gateway:
(i) acting between the CDR consumer and the CDR
participant in the making of a valid request; or
(ii) acting between the CDR consumer and the accredited
person who is the proposed recipient of the requested
disclosure; or
(iii) acting between the CDR participant and the CDR
consumer, or accredited person, who is the proposed
recipient of the requested disclosure;
(b) rules like those described in subsection 56BC(2) for the CDR
data, but involving the designated gateway:
(i) acting between the CDR consumer and a person
authorised as described in that subsection; or
(ii) acting between persons authorised as described in that
subsection;
(c) other rules affecting the designated gateway that relate to the
disclosure, collection, use, accuracy, storage, security or
deletion of the CDR data.
Product data
gateway for CDR data for which there are no CDR consumers, the
consumer data rules may include the following rules:
(a) rules like those described in paragraphs 56BE(a) to (c), but
involving the designated gateway acting between the CDR
participant and the person requesting the disclosure;

Section 56BH
(b) other rules affecting the designated gateway that relate to the
disclosure, collection, use, accuracy, storage, security or
deletion of the CDR data.
Limitation—rules relating to the collection, use, accuracy, storage,

security or deletion of CDR data
(3) For a designated gateway for CDR data for which there are one or
more CDR consumers, the consumer data rules:
(a) can only include rules affecting the designated gateway
requiring or authorising the disclosure of the CDR data if
such rules are as described in paragraph (1)(a) or (b); and
(b) can only include rules affecting the designated gateway that
relate to the collection, use, accuracy, storage, security or
deletion of the CDR data if such rules also relate to a
disclosure described in paragraph (a) of this subsection.
Note: Paragraph (a) does not prevent the inclusion of a rule relating to a
disclosure described in that paragraph.
(4) Subsection (3) applies despite any other provision of this Division.
Transitional rules
gateway for CDR data, the consumer data rules may include
transitional rules for when a person ceases to be the designated
gateway, including about the disclosure, collection, use, accuracy,
storage, security or deletion of the CDR data.
Note: These rules could, for example, include a requirement that the CDR
data be disclosed in accordance with the relevant data standards to
another gateway. Some of these transitional rules could be similar to
some of the privacy safeguards.
56BH Rules about accreditation of data recipients

(1) Without limiting paragraph 56BB(d), the consumer data rules may
(a) rules conferring functions or powers on the Data Recipient
Accreditor;

Section 56BH
(b) the criteria for a person to be accredited under

subsection 56CA(1);
(c) rules providing that accreditations may be granted subject to
conditions, and that conditions may be imposed on an
accreditation after it has been granted;
(d) rules providing that accreditations may be granted at different
levels corresponding to different risks, including the risks
associated with:
(i) specified classes of CDR data; or
(ii) specified classes of activities; or
(iii) specified classes of applicants for accreditation;
(e) rules for the period, renewal, transfer, variation, suspension,
revocation or surrender of accreditations;
(f) notification requirements on persons whose accreditations
have been varied, suspended, revoked or surrendered;
(g) transitional rules for when an accreditation is varied, is
suspended or ends, including about the disclosure, collection,
use, accuracy, storage, security or deletion of CDR data;
(h) rules about a matter referred to in subsection 56CE(4) (about
the Register of Accredited Persons).
Note: The rules described in paragraph (g) could, for example, include a
requirement that the CDR data be disclosed in accordance with the
relevant data standards to an accredited person. Some of these
transitional rules could be similar to some of the privacy safeguards.
(2) Without limiting paragraph (1)(b):

(a) the criteria may differ for different classes of persons; and
(b) the criteria may include the payment of a fee.
Any fee must not be such as to amount to taxation.
(3) Without limiting paragraph (1)(e), each of the following may be a
ground for varying, suspending or revoking an accreditation:
(a) a failure to comply with a requirement in this Part or in the
consumer data rules;
(b) a failure to comply with a requirement in the privacy
safeguards.

Section 56BI
Note: An example of a variation could be the imposition of a condition, or

changing the level of an accreditation.
(4) If the consumer data rules include rules enabling decisions to be

made to vary, suspend or revoke accreditations, the rules must
permit the making of applications to the Administrative Appeals
Tribunal for review of those decisions.
Note: The consumer data rules can also provide for internal review of these
decisions, and internal and AAT review of other decisions (see
section 56BJ).
56BI Rules about reporting, record keeping and auditing

(1) Without limiting paragraph 56BB(e), the consumer data rules may
(a) a power for a CDR consumer for CDR data to direct a CDR
participant for the CDR data to give the consumer, or an
accredited person, reports about:
(i) the consumer’s valid requests to the CDR participant,
under rules like those described in
paragraph 56BC(1)(a) or 56BG(1)(a), for the CDR data;
and
(ii) any disclosures made in response to such requests;
(b) a power for a CDR consumer for CDR data to direct a CDR
participant for the CDR data to give the consumer, or an
accredited person, reports about:
(i) the consumer’s valid consents to the CDR participant,
under rules like those described in
paragraph 56BC(2)(a) or (b) or 56BG(1)(b), for the
CDR data; and
(ii) any disclosures made in response to such consents;
(c) a power for a person referred to in paragraph 56BG(1)(a) or
(b) to direct a designated gateway referred to in that
paragraph to give reports about:
(i) valid requests or consents, affecting the designated
gateway, under rules like those described in that
paragraph; and

Section 56BJ
(ii) any disclosures made in response to such requests or

consents;
(d) requirements for CDR participants for CDR data to give
reports to the Commission or the Information Commissioner;
(e) requirements for accredited persons to give reports to the
Commission or the Information Commissioner;
(f) requirements for designated gateways for CDR data to give
reports to the Commission or the Information Commissioner;
(g) requirements for the keeping of records relating to the
operation of the consumer data rules;
(h) requirements for each of the following entities:
(i) the Data Recipient Accreditor;
(ii) the Accreditation Registrar;
(iii) the Data Standards Chair;
to give reports to the Commission or the Information
Commissioner about that entity’s functions or powers.
Note: Information or documents relating to compliance with the consumer
data rules may also be required to be given (see subsections 155(1)
and (2)).
(2) Without limiting paragraph 56BB(e), the consumer data rules may
include requirements for CDR participants or designated gateways
for CDR data, or accredited persons, to give to the Commission or
Information Commissioner:
(a) copies of one or more of the records required to be kept as
described in paragraph (1)(g); or
(b) information from such records;
either periodically, or on request by the Commission or
Information Commissioner, or both.
56BJ Rules about incidental or related matters

Without limiting paragraph 56BAA(3)(f) or 56BB(f), the consumer
data rules may include the following rules:
(a) rules that refer to the data standards;

Section 56BJ
(b) the circumstances in which persons are, or may be, relieved

from complying with requirements in the consumer data rules
that would otherwise apply to them;
(c) a rule that depends on a person being satisfied of one or more
specified matters;
(d) rules for the making of applications for internal review, or of
applications to the Administrative Appeals Tribunal for
review, of decisions of a person under the consumer data
rules;
(e) rules about the manner or form in which persons or bodies:
(i) may exercise powers under the consumer data rules; or
(ii) must comply with requirements imposed by the
which could include requiring the use of a form approved by
the Commission or by the Information Commissioner;
(f) rules about the following matters:
(i) the manner in which CDR participants for CDR data
may charge (or cause to be charged) a fee for a matter
covered by the consumer data rules;
(ii) the time for paying such a fee;
(iii) giving notice of, or publicising, such a fee or matters
about such a fee;
(g) rules requiring CDR participants, or designated gateways, for
CDR data to have internal or external dispute resolution
processes:
(i) that relate to the operation of the consumer data rules or
this Part; and
(ii) that meet specified criteria;
(h) rules relating to an external dispute resolution scheme
recognised under Division 4, including about access to such a
scheme;
(i) transitional rules for the external resolution of disputes:
(i) described in subsection 56DA(1); and
(ii) not covered by a scheme recognised under that
subsection;

Section 56BK
(ia) rules requiring agents of any of the following entities (a CDR

entity):
(i) a data holder of CDR data;
(ii) an accredited person;
(iii) a designated gateway for CDR data;
to do or not to do specified things when acting on behalf of
the CDR entity and within the agent’s actual or apparent
authority;
(j) rules about any other matters that the provisions of this Part
provide may be specified, or otherwise dealt with, in the
56BK Further limitations on the consumer data rules

(1) The consumer data rules cannot impose on a person a requirement
that has a retrospective commencement or application.
Example: The rules cannot require a data holder to disclose CDR data on a day
before the rules are registered, or on a day before the registration of a
variation to the rules that includes the requirement.
Note: Other limitations on the consumer data rules are in sections 56BD,
56BF and 56BG.
(2) To avoid doubt, the consumer data rules may require a person to do
something on a particular day, in relation to CDR data generated or
collected on an earlier day, if the person:
(a) is a data holder of the CDR data; or
(b) is an accredited person; or
(c) is a person who has given a valid request under the consumer
data rules relating to the CDR data; or
(d) is a designated gateway for the CDR data.
Example: A data holder is given a valid request to disclose CDR data that was
generated before the rules are registered. The rules can require that
disclosure.
(3) The regulations may provide that the consumer data rules:

Section 56BL
(a) have no effect to the extent that the consumer data rules deal
with specified matters, or impose specified requirements, in
relation to:
(ii) specified classes of persons; or
(b) only have effect to the extent that the consumer data rules
deal with specified matters, or impose specified
requirements, in relation to:
(ii) specified classes of persons.
The consumer data rules have effect (or no effect) accordingly.
(4) Subsections (1) and (3) apply despite any other provision of this
Division.
Subdivision B—Compliance with consumer data rules
56BL Obligation to comply with consumer data rules

The consumer data rules may provide that specified provisions of
the rules are civil penalty provisions (within the meaning of the
Regulatory Powers Act).
Note: Sections 76 to 77 deal with enforcing the civil penalty provisions.
56BM Infringement notices
Object
(1) The object of this section is for Division 5 of Part XI to apply to a
civil penalty provision of the consumer data rules in a
corresponding way to the way that Division applies to a provision
of Part 2-2 of the Australian Consumer Law.
Note: That Division is about infringement notices issued for alleged
contraventions of provisions of the Australian Consumer Law.

Section 56BN
Extended application of Division 5 of Part XI etc.

(2) Division 5 of Part XI, and any other provision of this Act that
relates to that Division, also apply in relation to a civil penalty
provision of the consumer data rules as if the substitutions in the
following table were made.
Substitutions to be made
Item For a reference in Division 5 of … substitute a reference to …
Part XI to …
1 section 224 of the Australian section 76 of this Act.
Consumer Law
2 Chapter 4 or Part 5-2 of the Part VI of this Act.
Australian Consumer Law
3 a provision of Part 2-2 of the a civil penalty provision of the
Australian Consumer Law consumer data rules.
(3) To avoid doubt, Division 2 of Part XI does not limit the application
of section 56GF (about constitutional basis) to the extended
application of Division 5 of Part XI as described in this section.
56BN Misleading or deceptive conduct—offence

(a) the person engages in conduct; and
(b) the person does so knowing that the conduct:
(i) is misleading or deceptive; or
(ii) is likely to be misleading or deceptive; and
(c) the conduct misleads or deceives, or is likely to mislead or
deceive, another person (the second person) into believing
that:
(i) a person is a CDR consumer for CDR data; or
(ii) a person is making a valid request or consent, or has
satisfied other criteria, for the disclosure of CDR data
under the consumer data rules.
Note: The person mentioned in subparagraph (c)(i) or (ii) could be the
first-mentioned person, the second person or a third person.

Section 56BO
Defence
(2) Subsection (1) does not apply if the conduct is not misleading or
deceptive in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in this
subsection (see subsection 13.3(3) of the Criminal Code).
Penalty—body corporate
(3) An offence against subsection (1) committed by a body corporate
is punishable on conviction by a fine of not more than the greater
of the following:
(a) $10,000,000;
(b) 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 commission of the offence—3
times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10%
of the annual turnover of the body corporate during the
12-month period ending at the end of the month in which the
commission of the offence happened or began.
(4) For the purposes of paragraph (3)(c), annual turnover has the
Penalty—other persons
(5) An offence against subsection (1) committed by a person other
than a body corporate is punishable on conviction by imprisonment
for not more than 5 years, a fine of not more than $500,000, or
both.
56BO Misleading or deceptive conduct—civil penalty

(1) A person must not engage in conduct that misleads or deceives, or
is likely to mislead or deceive, another person (the second person)
into believing that:
(a) a person is a CDR consumer for CDR data; or

Section 56BP
(b) a person is making a valid request or consent, or has satisfied

other criteria, for the disclosure of CDR data under the
Note 1: The person mentioned in paragraph (a) or (b) could be the
first-mentioned person, the second person or a third person.
Note 2: For enforcement, see Part VI (including section 76 for an order for
payment of a pecuniary penalty).
Defence
(2) Subsection (1) does not apply if the conduct is not misleading or
deceptive in a material particular.
(3) A person who wishes to rely on subsection (2) bears the burden of
possibility that the conduct is not misleading or deceptive in a
material particular.
Subdivision C—Process for making consumer data rules etc.
56BP Minister’s tasks before making the rules

Before making consumer data rules under subsection 56BA(1), the
Minister must:
(a) consider the kinds of matters referred to in paragraphs
56AD(1)(a) and (b) in relation to the making of the rules; and
(b) be satisfied that the Secretary of the Department has
complied with section 56BQ in relation to the making of the
rules; and
(c) wait at least 60 days after the day public consultation begins
under paragraph 56BQ(b) about the making of the rules.
56BQ Secretary must arrange for consultation and report before the
rules are made
The Secretary of the Department complies with this section in
relation to the making of consumer data rules if the Secretary
arranges for all of the following:

Section 56BR
(a) an analysis of the kinds of matters referred to in paragraphs

56AD(1)(a) and (b) in relation to the making of the rules;
(b) public consultation about the making of the rules:
(i) for at least 28 days; and
(ii) in one or more ways that includes making information
available on the Department’s website and inviting the
public to comment;
(c) consultation with each of the following about the making of
the rules:
(i) the Commission;
(ii) the Information Commissioner;
(iii) the person or body (if any) that the Secretary believes to
be the primary regulator of the sector;
(iv) any person or body prescribed by the regulations;
(d) the preparation of a report for the Minister about that analysis
and consultation.
56BR Commission and Information Commissioner must analyse the

proposed rules
When consulted under paragraph 56BQ(c), the Commission and
the Information Commissioner must each analyse the kinds of
matters referred to in paragraphs 56AD(1)(a) and (b) in relation to
the making of the rules.
56BS Emergency rules: public consultation not required etc.

(1) The Minister may make consumer data rules under
subsection 56BA(1):
(a) without complying with paragraph 56BP(b) or (c); but
(b) after consulting the Commission and Information
Commissioner;
if the Minister believes (whether or not that belief is reasonable)
that it is necessary to do so in order to avoid a risk of serious harm
to:

Section 56BT
(c) the efficiency, integrity or stability of any aspect of the

Australian economy; or
(d) the interests of consumers.
Note: The Minister still needs to comply with paragraph 56BP(a).
(2) However, a failure to comply with paragraph (1)(b) of this section

does not invalidate consumer data rules made as described in
subsection (1).
Note: Such rules may have a limited life (see section 56BT).
56BT Emergency rules: consequences if made

If:
(a) the Minister makes consumer data rules as described in
subsection 56BS(1) (the emergency rules); and
(b) the emergency rules are made without consulting either the
Commission or the Information Commissioner, or both;
the emergency rules cease to be in force 6 months after the day
they are made.
Note: If the emergency rules vary other consumer data rules, this section
causes only the emergency rules to cease to be in force.
56BTA Other matters

A failure to comply with section 56BP, 56BQ or 56BR does not
invalidate consumer data rules made under subsection 56BA(1).
Subdivision D—Fees for disclosing CDR data
56BU Charging a fee in inappropriate circumstances when required

to disclose CDR data
(1) A person contravenes this subsection if:
(a) the person is a CDR participant for CDR data; and
(b) the person is required under the consumer data rules to
disclose all or part of the CDR data; and

Section 56BV
(c) the person charges (or causes to be charged) a fee for either
or both of the following matters:
(i) the disclosure (or a related disclosure by a designated
gateway or other CDR participant for the CDR data);
(ii) the use of the CDR data as the result of the disclosure
(or of that related disclosure); and
(d) subsection (2) or any of the following subparagraphs applies:
(i) the CDR data is fee-free CDR data;
(ii) to the extent that the fee is charged for the disclosure of
chargeable CDR data—the fee purports to cover a
disclosure in circumstances that are not chargeable
circumstances;
(iii) to the extent that the fee is charged for the use of
chargeable CDR data—the fee purports to cover use in
circumstances that are not chargeable circumstances.
Note: For enforcement, see Part VI (including section 76 for an order for
(2) This subsection applies if:

(a) any fee (the reasonable fee):
(i) that has been determined under subsection 56BV(1) for
the person; or
(ii) that can be worked out from a method determined under
subsection 56BV(1) for the person;
covers either or both of the matters in paragraph (1)(c) of this
section; and
(b) the portion of the fee charged as described in that paragraph
for those matters exceeds the corresponding portion of the
reasonable fee.
56BV Commission may intervene if fee for disclosing or using

chargeable CDR data is unreasonable etc.
(1) The Commission may determine the following for a specified CDR
participant for specified chargeable CDR data:

Section 56BV
(a) the amount of a fee, or a method for working out the amount
of a fee, that the CDR participant may charge (or cause to be
charged) for either or both of the following matters (the
chargeable matters):
(i) the disclosure of the chargeable CDR data in chargeable
circumstances because of a requirement under the
consumer data rules to do so;
(ii) the use of the chargeable CDR data in chargeable
circumstances as the result of such a disclosure;
(b) the specified persons who are liable to pay that fee;
if the Commission is satisfied that the fee that the CDR participant
would otherwise charge (or cause to be charged) is unreasonable
having regard to the criteria in subsection (3).
(2) When determining an amount or method under subsection (1), the
Commission must seek to ensure that the resulting fee:
(a) reflects the reasonable costs (including capital costs)
necessary for the CDR participant to comply with this Part
and the consumer data rules in relation to the chargeable
matters; and
(b) is reasonable having regard to the criteria in subsection (3).
(3) The criteria for the purposes of subsection (1) and paragraph (2)(b)
are:
(a) the matters in subparagraphs 56AD(1)(a)(i), (ii), (iv) to (vi)
and (c)(ii) and (iv); and
(b) whether a lower fee could result in an acquisition of property
(within the meaning of paragraph 51(xxxi) of the
Constitution); and
(c) whether a lower fee would reduce the incentive to generate,
collect, hold or maintain CDR data of that kind; and
(d) any other matters the Commission considers relevant.
(4) A determination under subsection (1) specifying a class of CDR
participants must be made by legislative instrument.
(5) A determination under subsection (1) specifying a particular CDR
participant:

Section 56BW
(a) must be made by written notice given to the CDR participant;

and
(b) is not a legislative instrument.
(6) A fee determined under subsection (1) must not be such as to
amount to taxation.
56BW Review by the Tribunal of determinations specifying

particular CDR participants
(1) If the Commission makes a determination under
subsection 56BV(1) in the way described in subsection 56BV(5):
(a) the CDR participant specified in the determination; or
(b) a person whose interests are affected by the determination;
may apply in writing to the Tribunal for a review of the
determination.
(2) An application under this section for a review of a determination
must be made within 21 days after the day the Commission made
the determination.
(3) If the Tribunal receives an application under this section for a
review of a determination, the Tribunal must review the
determination.
56BX Functions and powers of Tribunal

(1) On a review of a determination made under subsection 56BV(1),
the Tribunal:
(a) may make a decision affirming, setting aside or varying the
determination; and
(b) 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 such
a determination is taken for the purposes of this Act (other than
sections 56BW to 56BY)) to be a determination of the
Commission.

Section 56BY
(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 determination to
which the review relates.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
56BY Provisions that do not apply in relation to a Tribunal review

Division 1 of Part IX does not apply in relation to a review by the
Tribunal of a determination made under subsection 56BV(1).

Division 3 Accreditation etc.
Section 56CA
Division 3—Accreditation etc.

Subdivision A—Accreditation process
56CA Granting accreditations

(1) The Data Recipient Accreditor may, in writing, accredit a person if
the Data Recipient Accreditor is satisfied that the person meets the
criteria for accreditation specified in the consumer data rules.
(2) To avoid doubt, a person may be accredited even if the person:
(a) is not a body corporate established by or under a law of the
Commonwealth, of a State or of a Territory; and
(b) is neither an Australian citizen, nor a permanent resident
(within the meaning of the Australian Citizenship Act 2007).
(3) An accreditation is granted on the basis that no compensation is
payable if the accreditation is varied, transferred, suspended,
revoked or surrendered in any way.
56CB Review of decisions refusing to accredit

Applications may be made to the Administrative Appeals Tribunal
for review of decisions of the Data Recipient Accreditor under
subsection 56CA(1) refusing to accredit persons.
Note: For AAT review of decisions to vary, suspend or revoke
accreditations, see subsection 56BH(4).
56CC Prohibition on holding out—offence

(1) A person commits an offence if the person holds out that the
person:
(a) is an accredited person; or
(b) is an accredited person holding an accreditation that has been
granted at a particular level (see paragraph 56BH(1)(d)); or
(c) is an accredited data recipient of CDR data;
if that is not the case.

Accreditation etc. Division 3
Section 56CD
Penalty—body corporate
(2) An offence against subsection (1) committed by a body corporate
is punishable on conviction by a fine of not more than the greater
of the following:
(a) $10,000,000;
(b) 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 commission of the offence—3
times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10%
commission of the offence happened or began.
Penalty—other persons
(4) An offence against subsection (1) committed by a person other
than a body corporate is punishable on conviction by imprisonment
for not more than 5 years, a fine of not more than $500,000, or
both.
56CD Prohibition on holding out—civil penalty

A person must not hold out that the person:
(a) is an accredited person; or
(b) is an accredited person holding an accreditation that has been
granted at a particular level (see paragraph 56BH(1)(d)); or
(c) is an accredited data recipient of CDR data;
if that is not the case.
Note: For enforcement, see Part VI (including section 76 for an order for

Section 56CE
Subdivision B—Register of Accredited Persons
56CE Register of Accredited Persons

(1) The Accreditation Registrar must establish and maintain a register
for the purposes of this Part, to be known as the Register of
Accredited Persons.
(2) The Accreditation Registrar must maintain the register by
electronic means.
(3) The register is not a legislative instrument.
(4) The consumer data rules may make provision for or in relation to
the following:
(a) the inclusion in the register of entries for accredited persons;
(b) the correction of entries in the register;
(c) the publication or availability of all or part of the register, or
of specified information in the register;
(d) any other matter relating to the content, administration or
operation of the register.
56CF Evidentiary value of the register

(1) The register is admissible in any proceedings as prima facie
evidence of the matters in it.
(2) The Accreditation Registrar may issue a document containing the
details of a matter taken from the register.
(3) The document issued under subsection (2) is admissible in any
proceedings as prima facie evidence of the matter.
Subdivision C—Data Recipient Accreditor
56CG Appointment of the Data Recipient Accreditor

(1) The Minister may, by written instrument, appoint as the Data
Recipient Accreditor a person who:

Section 56CH
(a) is the accountable authority of a Commonwealth entity

(within the meaning of the Public Governance, Performance
and Accountability Act 2013); or
(b) is a Commonwealth entity (within the meaning of that Act).
Note 1: For variation, see subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: The Commission will be the Data Recipient Accreditor in the absence
of an appointment under this subsection (see the definition of Data
Recipient Accreditor in subsection 4(1)).
(2) The Minister may, at any time by written instrument, terminate an

appointment made under subsection (1).
56CH Functions, powers and annual report

(1) The functions of the Data Recipient Accreditor are:
(a) to accredit persons under subsection 56CA(1); and
(b) such other functions as are conferred by the consumer data
rules.
(2) The Data Recipient Accreditor has the power to do all other things
necessary or convenient to be done for or in connection with the
performance of the Data Recipient Accreditor’s functions.
(3) To avoid doubt, for a person who is the Data Recipient Accreditor,
both:
(a) the person’s functions and powers in their capacity other than
as the Data Recipient Accreditor (their primary capacity);
and
(b) if the person is not a body corporate—the functions that may
be performed, and the powers that may be exercised, by
anyone appointed under a Commonwealth law to act as the
person in that primary capacity;
are taken to include the functions and powers of the Data Recipient
Accreditor while the person is the Data Recipient Accreditor.
(4) If:
(a) a person is the Data Recipient Accreditor at any time during
a period; and

Section 56CI
(b) an annual report for the period is prepared under section 46

of the Public Governance, Performance and Accountability
Act 2013:
(i) by the person in the person’s primary capacity; or
(ii) about the person in the person’s primary capacity;
the annual report must include information about the performance
of the Data Recipient Accreditor’s functions, and the exercise of
the Data Recipient Accreditor’s powers, at that time.
56CI Directions by Minister

(1) The Minister may, by legislative instrument, give written directions
to the Data Recipient Accreditor about the performance of its
functions and the exercise of its powers.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the
Legislation Act 2003 do not apply to the directions (see regulations
made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that
Act).
(2) A direction under subsection (1) must be of a general nature only.

(3) The Data Recipient Accreditor must comply with a direction under
subsection (1).
56CJ Delegation
(1) The Data Recipient Accreditor may delegate any or all of the Data
Recipient Accreditor’s functions or powers to:
(a) an SES employee, or an acting SES employee, in the
Department, in the Commission or in the Commonwealth
entity appointed under paragraph 56CG(1)(b) (if any); or
(b) an APS employee who is holding or performing the duties of
a specified office or position that:
(i) is in the Department, in the Commission or in the
Commonwealth entity appointed under
paragraph 56CG(1)(b) (if any); and

Section 56CK
(ii) is an office or position that the Data Recipient

Accreditor is satisfied is sufficiently senior for the APS
employee to perform the function or exercise the power.
(2) In doing anything under a delegation under this section, the
delegate must comply with any directions of the Data Recipient
Accreditor.
Subdivision D—Accreditation Registrar
56CK Appointment of the Accreditation Registrar

(1) The Minister may, by written instrument, appoint as the
Accreditation Registrar a person who:
(a) is the accountable authority of a Commonwealth entity
(within the meaning of the Public Governance, Performance
and Accountability Act 2013); or
(b) is a Commonwealth entity (within the meaning of that Act).
Note 1: For variation, see subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: The Commission will be the Accreditation Registrar in the absence of
an appointment under this subsection (see the definition of
Accreditation Registrar in subsection 4(1)).

56CL Functions, powers and annual report

(1) The functions of the Accreditation Registrar are:
(a) those described in Subdivision B; and
(b) such other functions as are conferred by the consumer data
rules.
(2) The Accreditation Registrar has the power to do all other things
performance of the Accreditation Registrar’s functions.
(3) To avoid doubt, for a person who is the Accreditation Registrar,
both:

Section 56CM
(a) the person’s functions and powers in their capacity other than
as the Accreditation Registrar (their primary capacity); and
(b) if the person is not a body corporate—the functions that may
be performed, and the powers that may be exercised, by
anyone appointed under a Commonwealth law to act as the
person in that primary capacity;
are taken to include the functions and powers of the Accreditation
Registrar while the person is the Accreditation Registrar.
(4) If:
(a) a person is the Accreditation Registrar at any time during a
period; and
(b) an annual report for the period is prepared under section 46
of the Public Governance, Performance and Accountability
Act 2013:
(i) by the person in the person’s primary capacity; or
(ii) about the person in the person’s primary capacity;
the annual report must include information about the performance
of the Accreditation Registrar’s functions, and the exercise of the
Accreditation Registrar’s powers, at that time.
56CM Directions by Minister

to the Accreditation Registrar about the performance of its
functions and the exercise of its powers.
Act).

(3) The Accreditation Registrar must comply with a direction under
subsection (1).

Section 56CN
56CN Delegation
(1) The Accreditation Registrar may delegate any or all of the
Accreditation Registrar’s functions or powers to:
(a) an SES employee, or an acting SES employee, in the
Department, in the Commission or in the Commonwealth
entity appointed under paragraph 56CK(1)(b) (if any); or
(i) is in the Department, in the Commission or in the
Commonwealth entity appointed under
paragraph 56CK(1)(b) (if any); and
(ii) is an office or position that the Accreditation Registrar
is satisfied is sufficiently senior for the APS employee
to perform the function or exercise the power.
Note: For the Registrar’s functions and powers, see section 56CE.
(2) In doing anything under a delegation under this section, the

delegate must comply with any directions of the Accreditation
Registrar.

Division 4 External dispute resolution
Section 56DA
Division 4—External dispute resolution
56DA Minister may recognise external dispute resolution schemes
Recognising an external dispute resolution scheme

(1) The Minister may, by notifiable instrument, recognise an external
dispute resolution scheme for the resolution of disputes:
(a) relating to the operation of the consumer data rules, or this
Part, in relation to one or more designated sectors; and
(b) involving one or more of the following:
(i) CDR participants for CDR data;
(ii) CDR consumers for CDR data;
(iii) designated gateways for CDR data;
(iv) other persons relating to any of those designated sectors.
Note 1: The consumer data rules may require internal dispute resolution
schemes, see paragraph 56BJ(g).
Note 2: For variation and repeal, see subsection 33(3) of the Acts
(2) The Minister may, in the instrument under subsection (1):

(a) specify a period for which the recognition of the external
dispute resolution scheme is in force; and
(b) make the recognition of the external dispute resolution
scheme subject to specified conditions, including conditions
relating to the conduct of an independent review of the
operation of the scheme.
Before recognising an external dispute resolution scheme

(3) Before recognising an external dispute resolution scheme under
subsection (1), the Minister must consider:
(a) the accessibility of the scheme; and
(b) the independence of the scheme; and
(c) the fairness of the scheme; and
(d) the accountability of the scheme; and

External dispute resolution Division 4
Section 56DA
(e) the efficiency of the scheme; and

(f) the effectiveness of the scheme; and
(g) any other matters the Minister considers relevant.
(4) Before recognising an external dispute resolution scheme under
subsection (1), the Minister must arrange for the Information
Commissioner to be consulted about the scheme.
(5) A failure to comply with subsection (4) does not invalidate an
instrument made under subsection (1).

Division 5 Privacy safeguards
Section 56EA
Division 5—Privacy safeguards

56EA Simplified outline
This Division sets out privacy safeguards that protect the privacy
or confidentiality of CDR consumers’ CDR data, whether the CDR
consumers are individuals or bodies corporate.
The privacy safeguards apply mainly to accredited persons, but

also to data holders and designated gateways, in relation to their
handling or future handling of the CDR data.
A person’s failure to comply with any of these safeguards may lead

to consequences, including liability to a civil penalty (see
Subdivision G) or the suspension or revocation of the person’s
accreditation (see subsection 56BH(3)).
56EB Kinds of CDR data to which the privacy safeguards apply

(1) The privacy safeguards only apply to CDR data for which there are
one or more CDR consumers.
Note: One requirement for CDR data to have a CDR consumer is that there
needs to be at least one person who is identifiable, or reasonably
identifiable, from the CDR data or from related information (see
paragraph 56AI(3)(c)).
(2) The privacy safeguards apply to CDR data whether the CDR data
is true or not.

Privacy safeguards Division 5
Section 56EC
56EC Relationship with other laws
Relationship with the consumer data rules

(1) If there is an inconsistency between the privacy safeguards and the
consumer data rules, those safeguards prevail over those rules to
the extent of the inconsistency.
(2) However, the consumer data rules are taken to be consistent with
the privacy safeguards to the extent that they are capable of
operating concurrently.
Note: This means that the privacy safeguards do not cover the field that they
deal with.
Relationship with the Privacy Act 1988

(3) This Division does not limit Part IIIA (about credit reporting) of
the Privacy Act 1988. However, the regulations may declare that in
specified circumstances that Part applies in relation to CDR data as
if specified provisions of that Part were omitted, modified or varied
as specified in the declaration.
(4) Despite the Privacy Act 1988:
(a) the Australian Privacy Principles do not apply to an
accredited data recipient of CDR data in relation to the CDR
data; and
(aa) if section 56ED, 56EE, 56EF or 56EG applies to an
accredited person in relation to CDR data—the
corresponding Australian Privacy Principle does not apply to
the accredited person in relation to the CDR data; and
(b) if subsection 56EN(1) applies to a disclosure of CDR data by
a data holder of the CDR data—Australian Privacy
Principle 10 does not apply to the data holder in relation to
that disclosure of the CDR data; and
(c) if subsection 56EP(1) applies to CDR data and a data holder
of the CDR data—Australian Privacy Principle 13 does not
apply to the data holder in relation to the CDR data; and

Section 56ED
(d) Australian Privacy Principles 6, 7 and 11 do not apply to a

designated gateway for CDR data in relation to the CDR
data.
Note 1: For the accredited data recipient, the privacy safeguards will apply
instead.
Note 2: Section 56EN (or privacy safeguard 11) is about the quality of CDR
data. Section 56EP (or privacy safeguard 13) is about correcting CDR
data.
(5) Apart from paragraphs (4)(aa) to (d), this Division does not affect
how the Australian Privacy Principles apply to:
(aa) an accredited person who does not become an accredited data
recipient of the CDR data; or
(a) a data holder of CDR data in relation to the CDR data; or
(b) a designated gateway for CDR data in relation to the CDR
data.
Note 1: Privacy safeguard 1 will apply to a data holder or designated gateway
in parallel to Australian Privacy Principle 1.
Note 2: The consumer data rules (which are made under Division 2) will
affect how the Australian Privacy Principles apply. Requirements and
authorisations under those rules will be requirements or authorisations
under an Australian law for the purposes of the Australian Privacy
Principles.
Subdivision B—Consideration of CDR data privacy
56ED Privacy safeguard 1—open and transparent management of

CDR data
Object
(1) The object of this section is to ensure that each person (a CDR
entity) who is:
(a) a data holder of CDR data; or
(b) an accredited person who is or who may become an
accredited data recipient of CDR data; or
(c) a designated gateway for CDR data;
manages the CDR data in an open and transparent way.

Section 56ED
Compliance with this Part etc.

(2) The CDR entity must take such steps as are reasonable in the
circumstances to implement practices, procedures and systems that:
(a) will ensure that the CDR entity complies with this Part and
the consumer data rules; and
(b) will enable the CDR entity to deal with inquiries or
complaints from a CDR consumer for the CDR data about
the CDR entity’s compliance with this Part or the consumer
data rules.
Policy about the management of CDR data

(3) The CDR entity must have and maintain a clearly expressed and
up-to-date policy that:
(a) is about the CDR entity’s management of CDR data; and
(b) is in a form approved in accordance with the consumer data
rules; and
(c) contains the information required by subsections (4), (5) and
(6) (as applicable).
Note: This subsection is a civil penalty provision (see section 56EU).
(4) If the CDR entity is a data holder of any CDR data, the CDR
entity’s policy must contain the following information:
(a) how a CDR consumer for the CDR data may access the CDR
data and seek the correction of the CDR data;
(b) how a CDR consumer for the CDR data may complain about
a failure of the CDR entity to comply with this Part or the
consumer data rules, and how the CDR entity will deal with
such a complaint.
(5) If the CDR entity is an accredited person who is or who may
become an accredited data recipient of any CDR data, the CDR
entity’s policy must contain the following information:
(a) the classes of CDR data that is or may become held by (or on
behalf of) the CDR entity as an accredited data recipient, and
how such CDR data is held or is to be held;

Section 56ED
(b) the purposes for which the CDR entity may collect, hold, use
or disclose such CDR data with the consent of a CDR
consumer for the CDR data;
(c) how a CDR consumer for such CDR data may access the
CDR data and seek the correction of the CDR data;
(d) how a CDR consumer for such CDR data may complain
about a failure of the CDR entity to comply with this Part or
the consumer data rules, and how the CDR entity will deal
with such a complaint;
(e) whether the CDR entity is likely to disclose such CDR data
to accredited persons who are based overseas;
(f) if the CDR entity is likely to disclose such CDR data to
accredited persons who are based overseas—the countries in
which such persons are likely to be based if it is practicable
to specify those countries in the policy;
(g) the circumstances in which the CDR entity may disclose such
CDR data to a person who is not an accredited person;
(h) the events about which the CDR entity will notify the CDR
consumers of such CDR data;
(i) the circumstances in which the CDR entity must delete or
de-identify such CDR data in accordance with a request
given by a CDR consumer for the CDR data under the
(6) If the CDR entity is a designated gateway for any CDR data, the
CDR entity’s policy must contain the following information:
(a) an explanation of how the CDR entity, as a designated
gateway, will act between persons to facilitate:
(i) the disclosure of CDR data; or
(ii) the accuracy of CDR data; or
(iii) other matters;
under the consumer data rules;
(b) how a CDR consumer for such CDR data may complain
about a failure of the CDR entity to comply with this Part or
the consumer data rules, and how the CDR entity will deal
with such a complaint.

Section 56EE
Availability of policy etc.

(7) The CDR entity must make the CDR entity’s policy available:
(a) free of charge; and
(b) in accordance with the consumer data rules.
Note: One way the consumer data rules could require the policy to be made
available is to require the policy to be made available in accordance
with a data standard.
(8) If a copy of the CDR entity’s policy is requested by a CDR

consumer for the CDR data, the CDR entity must give the CDR
consumer a copy in accordance with the consumer data rules.
56EE Privacy safeguard 2—anonymity and pseudonymity

(1) A person who is:
(a) an accredited data recipient of CDR data; or
(b) an accredited person who may become an accredited data
recipient of CDR data;
must give each CDR consumer for that CDR data the option of
using a pseudonym, or not identifying themselves, when dealing
with the person in relation to that CDR data.
Note: The CDR participant from whom the person acquired (or may acquire)
the CDR data may be subject to a similar obligation under Australian
Privacy Principle 2.
(2) That option may be given to a CDR consumer for the CDR data
through a designated gateway for the CDR data.
(3) Subsection (1) does not apply in the circumstances specified in the

Section 56EF
Subdivision C—Collecting CDR data
56EF Privacy safeguard 3—soliciting CDR data from CDR

participants
(1) An accredited person must not seek to collect CDR data under the
consumer data rules from a CDR participant for the CDR data
unless:
(a) a CDR consumer for the CDR data has requested this by
giving a valid request under the consumer data rules; and
(b) the person complies with all other requirements in the
consumer data rules for the collection of the CDR data from
the CDR participant.
(2) Subsection (1) applies whether the collection is directly from the
CDR participant or indirectly from the CDR participant through a
designated gateway for the CDR data.
Note: The valid request referred to in paragraph (1)(a) could be given
through a designated gateway (see section 56BG).
56EG Privacy safeguard 4—dealing with unsolicited CDR data from

CDR participants
(1) If a person:
(a) while the person is an accredited person, collects CDR data
from a CDR participant for the CDR data:
(i) purportedly under the consumer data rules; but
(ii) not as the result of seeking to collect that CDR data
(b) is not required to retain that CDR data by or under an
Australian law or a court/tribunal order;
the person must destroy that CDR data as soon as practicable.

Section 56EH
(2) Subsection (1) applies whether the collection is directly from the
CDR participant or indirectly from the CDR participant through a
designated gateway for the CDR data.
56EH Privacy safeguard 5—notifying of the collection of CDR data

If an accredited data recipient of CDR data collected the CDR data
in accordance with section 56EF, the accredited data recipient
must:
(a) take the steps specified in the consumer data rules to notify
CDR consumers for the CDR data of the collection; and
(b) ensure that this notification:
(i) is given to those of the CDR consumers (if there are
more than one) that the consumer data rules require to
be notified; and
(ii) covers the matters specified in those rules; and
(iii) is given at or before the time specified in those rules.
Note: This section is a civil penalty provision (see section 56EU).
Subdivision D—Dealing with CDR data
56EI Privacy safeguard 6—use or disclosure of CDR data by

accredited data recipients or designated gateways
(1) An accredited data recipient of CDR data must not use or disclose
it unless:
(a) in the case of a disclosure—the disclosure is required under
the consumer data rules in response to a valid request from a
CDR consumer for the CDR data; or
(b) the use or disclosure is otherwise required, or authorised,
under the consumer data rules; or
(c) the use or disclosure is required or authorised by or under:
(i) another Australian law; or
(ii) a court/tribunal order;
and the accredited data recipient makes a written note of the
use or disclosure.

Section 56EJ
Note 1: This subsection is a civil penalty provision (see section 56EU).

Note 2: The valid request referred to in paragraph (a) could be given through a
designated gateway (see section 56BG).
Note 3: The Australian Privacy Principles will not apply for
subparagraph (c)(i) (see paragraph 56EC(4)(a)).
(2) A designated gateway for CDR data must not use or disclose it
unless:
the consumer data rules; or
(b) the use or disclosure is authorised under the consumer data
rules; or
(c) the use or disclosure is required or authorised by or under:
(i) another Australian law; or
(ii) a court/tribunal order;
and the designated gateway makes a written note of the use
or disclosure in accordance with the consumer data rules.
Note 2: Australian Privacy Principle 6 will not apply for subparagraph (c)(i)
(see paragraph 56EC(4)(d)).
(3) Neither subsection (1) nor (2) applies to the use or disclosure of
CDR data for the purposes of direct marketing.
Note: Section 56EJ deals with the use or disclosure of CDR data for the
purposes of direct marketing.
56EJ Privacy safeguard 7—use or disclosure of CDR data for direct

marketing by accredited data recipients or designated
gateways
(1) An accredited data recipient of CDR data must not use or disclose
it for direct marketing unless:
the consumer data rules in response to a valid request from a
CDR consumer for the CDR data; or

Section 56EK

rules in accordance with a valid consent of a CDR consumer
for the CDR data.
Note 2: The valid request referred to in paragraph (a), or the valid consent
referred to in paragraph (b), could be given through a designated
gateway (see section 56BG).
(2) A designated gateway for CDR data must not use or disclose it for
direct marketing unless:
the consumer data rules; or
rules.
56EK Privacy safeguard 8—overseas disclosure of CDR data by

accredited data recipients
(1) If:
(a) an accredited data recipient of CDR data proposes to disclose
the CDR data; and
(b) the recipient (the new recipient) of the proposed disclosure:
(i) is not in Australia or an external Territory; and
(ii) is not a CDR consumer for the CDR data;
the accredited data recipient must not make the disclosure unless:
(c) the new recipient is an accredited person; or
(d) the accredited data recipient takes reasonable steps to ensure
that any act or omission by (or on behalf of) the new
recipient will not, after taking into account subsection (3),
contravene:
(i) subsection 56ED(3); or
(ii) another privacy safeguard penalty provision in relation
to the CDR data; or
(e) the accredited data recipient reasonably believes:

Section 56EL
(i) that the new recipient is subject to a law, or binding

scheme, that provides substantially similar protection
for the CDR data as the privacy safeguards provide in
relation to accredited data recipients; and
(ii) that a CDR consumer for the CDR data will be able to
enforce those protections provided by that law or
binding scheme; or
(f) the conditions specified in the consumer data rules are met.
Note 2: This subsection applies in addition to the disclosure restrictions in
sections 56EI, 56EJ and 56EL.
Note 3: A similar disclosure by a data holder of the CDR data that is required
under the consumer data rules will be covered by Australian Privacy
Principle 8 if the CDR data is personal information about an
individual.
(2) If:
(a) the accredited data recipient of the CDR data makes the
disclosure to the new recipient; and
(b) none of paragraphs (1)(c), (e) and (f) apply in relation to the
disclosure to the new recipient; and
(c) an act or omission by (or on behalf of) the new recipient,
after taking into account subsection (3), contravenes:
(i) subsection 56ED(3); or
(ii) another privacy safeguard penalty provision in relation
to the CDR data;
then the act or omission is taken to also be an act or omission by
the accredited data recipient.
(3) For the purposes of paragraphs (1)(d) and (2)(c), assume that the
privacy safeguards apply to the new recipient as if the new
recipient were an accredited data recipient for the CDR data.
56EL Privacy safeguard 9—adoption or disclosure of government

related identifiers by accredited data recipients
(1) If:

Section 56EL
(a) a person is an accredited data recipient of CDR data; and

(b) the CDR data includes a government related identifier
(within the meaning of the Privacy Act 1988) of a CDR
consumer for the CDR data who is an individual;
the person must not adopt the government related identifier as the
person’s own identifier of the CDR consumer, or otherwise use the
government related identifier, unless:
(c) the adoption or use is required or authorised by or under:
(i) an Australian law other than the consumer data rules; or
(ii) a court/tribunal order; or
(d) subclause 9.3 of Australian Privacy Principle 9 applies in
relation to the adoption or use.
(2) If:
(a) a person who is an accredited data recipient of CDR data
proposes to disclose the CDR data; and
(b) the CDR data includes a government related identifier
(within the meaning of the Privacy Act 1988) of a CDR
consumer for the CDR data who is an individual;
the person must not include the government related identifier in the
disclosure unless:
(c) this is required or authorised by or under:
(i) an Australian law other than the consumer data rules; or
(ii) a court/tribunal order; or
(d) subclause 9.3 of Australian Privacy Principle 9 applies in
relation to the disclosure.
Note 2: This subsection applies in addition to the disclosure restrictions in
sections 56EI, 56EJ and 56EK.
(3) For the purposes of paragraph (1)(d) or (2)(d), disregard

paragraph 56EC(4)(a) (about the APPs not applying).

Section 56EM
56EM Privacy safeguard 10—notifying of the disclosure of CDR

data
(1) If a data holder of CDR data is required or authorised under the
consumer data rules to disclose the CDR data to a person, the data
holder must:
CDR consumers for the CDR data of the disclosure; and
be notified; and
(2) If an accredited data recipient of CDR data discloses the CDR data,
the accredited data recipient must:
CDR consumers for the CDR data of the disclosure; and
be notified; and
(3) To avoid doubt, subsection (1) or (2) applies even if the disclosure
of the CDR data is to a designated gateway for the CDR data as
required or authorised under the consumer data rules.
Note: The designated gateway may be subject to a similar notification
requirement under the consumer data rules (see
paragraph 56BG(1)(c)).

Section 56EN
Subdivision E—Integrity of CDR data
56EN Privacy safeguard 11—quality of CDR data
Disclosures by data holders

(1) If a data holder of CDR data is required or authorised under the
consumer data rules to disclose the CDR data, the data holder must
take reasonable steps to ensure that the CDR data is, having regard
to the purpose for which it is held, accurate, up to date and
complete.
Disclosures by accredited data recipients

(2) If an accredited data recipient of CDR data is disclosing the CDR
data when:
(a) required under the consumer data rules to do so in response
to a valid request from a CDR consumer for the CDR data; or
(b) otherwise required, or authorised, under the consumer data
rules to do so;
the accredited data recipient must take reasonable steps to ensure
that the CDR data is, having regard to the purpose for which it is
held, accurate, up to date and complete.
Note 2: The valid request referred to in paragraph (a) could be given through a
designated gateway (see section 56BG).
(3) If a CDR participant for CDR data:

(a) makes a disclosure referred to in subsection (1) or (2) for a
CDR consumer; and
(b) later becomes aware that some or all of the CDR data was
incorrect when it was disclosed because, having regard to the
purpose for which it was held, it was inaccurate, out of date
or incomplete;
the CDR participant must advise the CDR consumer accordingly in
accordance with the consumer data rules.

Section 56EO
Disclosing corrected CDR data

(4) If:
(a) a CDR consumer for CDR data is advised under
subsection (3) by a CDR participant for the CDR data that
some or all of the CDR data was incorrect when the CDR
participant had earlier disclosed it; and
(b) the CDR consumer requests, in accordance with the
consumer data rules, the CDR participant to fix this by
disclosing the corrected CDR data;
the CDR participant must comply with the request by disclosing
the corrected CDR data, in accordance with the consumer data
rules, to the recipient of that earlier disclosure.
(4A) Subsection (4) does not apply in the circumstances specified in the
Purpose for which the CDR data was held

(5) When working out the purpose for which the CDR data is or was
held, disregard the purpose of holding the CDR data so that it can
be disclosed as required under the consumer data rules.
Note: This subsection is relevant for subsections (1) and (2) and
paragraph (3)(b).
56EO Privacy safeguard 12—security of CDR data, and destruction

or de-identification of redundant CDR data
(1) Each person (a CDR entity) who is:
(b) a designated gateway for CDR data;
must take the steps specified in the consumer data rules to protect
the CDR data from:
(c) misuse, interference and loss; and
(d) unauthorised access, modification or disclosure.

Section 56EP
(2) If:
(a) the CDR entity no longer needs any of that CDR data for
either of the following purposes (the redundant data):
(i) a purpose permitted under the consumer data rules;
(ii) a purpose for which the person is able to use or disclose
it in accordance with this Division; and
(b) the CDR entity is not required to retain the redundant data by
or under an Australian law or a court/tribunal order; and
(c) the redundant data does not relate to any current or
anticipated:
to which the CDR entity is a party;
the CDR entity must take the steps specified in the consumer data
rules to destroy the redundant data or to ensure that the redundant
data is de-identified.
Note 2: Australian Privacy Principle 11 will not apply for paragraph (b) (see
paragraph 56EC(4)(a) or (d)).
Subdivision F—Correction of CDR data
56EP Privacy safeguard 13—correction of CDR data
Obligation on data holders

(1) If:
(a) a CDR consumer for CDR data gives a request to a data
holder of the CDR data (including a request given through a
designated gateway for the CDR data); and
(b) the request is for the data holder to correct the CDR data; and
(c) the data holder was earlier required or authorised under the
consumer data rules to disclose the CDR data;

Section 56EP
the data holder must respond to the request to correct the CDR data
by taking such steps as are specified in the consumer data rules to
deal with each of the matters in subsection (3).
Obligation on accredited data recipients

(2) If:
(a) a CDR consumer for CDR data gives a request to an
accredited data recipient of the CDR data (including a request
given through a designated gateway for the CDR data); and
(b) the request is for the accredited data recipient to correct the
CDR data;
the accredited data recipient must respond to the request by taking
such steps as are specified in the consumer data rules to deal with
each of the matters in subsection (3).
Relevant matters when responding to correction requests

(3) The matters are as follows:
(a) either:
(i) to correct the CDR data; or
(ii) to include a statement with the CDR data, to ensure that,
having regard to the purpose for which the CDR data is
held, the CDR data is accurate, up to date, complete and
not misleading;
(b) to give notice of any correction or statement, or notice of
why a correction or statement is unnecessary or
inappropriate.
(4) When working out the purpose for which the CDR data is held (see
subparagraph (3)(a)(ii)), disregard the purpose of holding the CDR
data so that it can be disclosed as required under the consumer data
rules.

Section 56EQ
Subdivision G—Compliance with the privacy safeguards
56EQ Information Commissioner to promote compliance etc.

(1) The Information Commissioner has the following functions:
(a) making guidelines for the avoidance of acts or practices that
may breach the privacy safeguards;
(b) promoting an understanding and acceptance of the privacy
safeguards;
(c) undertaking educational programs for the purposes of
promoting the protection of CDR data.
Note: The Information Commissioner also has functions that relate to this
Part more broadly (see section 56GA).
Extra matters about guidelines under paragraph (1)(a)

(2) Before making guidelines under paragraph (1)(a), the Information
Commissioner must consult the Minister and the Commission
about the proposed guidelines.
(3) The Information Commissioner may publish guidelines made
under paragraph (1)(a) in such manner as the Information
Commissioner considers appropriate.
(4) If there is an inconsistency between the guidelines made under
paragraph (1)(a) and the consumer data rules, those rules prevail
over the guidelines to the extent of the inconsistency.
(5) Guidelines made under paragraph (1)(a) are not a legislative
instrument.
Extra matters about educational programs under paragraph (1)(c)

(6) The educational programs referred to in paragraph (1)(c) may be
undertaken by:
(a) the Information Commissioner; or
(b) a person or authority acting on behalf of the Information
Commissioner.

Section 56ER
56ER Information Commissioner may conduct an assessment

relating to the management and handling of CDR data
(1) The Information Commissioner may assess whether a CDR
participant, or designated gateway, for CDR data is maintaining
and handling the CDR data in accordance with:
(a) the privacy safeguards; or
(b) the consumer data rules to the extent that those rules relate
to:
(i) the privacy safeguards; or
(ii) the privacy or confidentiality of the CDR data.
(1A) The Information Commissioner may assess whether an accredited
person who may become an accredited data recipient of CDR data
is complying with:
(a) section 56ED (about privacy safeguard 1); or
(b) the consumer data rules to the extent that those rules relate to
that section.
(2) The Information Commissioner may conduct an assessment under
subsection (1) or (1A) in such manner as the Information
Commissioner considers fit.
(3) The Information Commissioner may report to the Minister, the
Commission or the Data Standards Chair about an assessment
under subsection (1) or (1A).
56ES Notification of CDR data security breaches
Object
(1) The object of this section is for Part IIIC of the Privacy Act 1988 to
apply to an accredited data recipient, or designated gateway, that
holds a CDR consumer’s CDR data in a corresponding way to the
way that Part applies to an entity that holds an individual’s
personal information.
Note: That Part is about notification of eligible data breaches.

Section 56ES
Extended application of Part IIIC of the Privacy Act 1988

(2) Part IIIC of the Privacy Act 1988, and any other provision of that
Act that relates to that Part, also apply in relation to:
(b) a designated gateway for CDR data;
as if the substitutions in the following table, and the modifications
in subsection (3), were made.
Item For a reference in Part IIIC to … … substitute a reference to …
1 any of the following: CDR data.
(a) personal information;
(b) information
2 any of the following: each of the following:
(a) entity; (a) accredited data recipient;
(b) APP entity; (b) designated gateway.
(c) APP entity, credit reporting
body, credit provider or file
number recipient, as the case may
be
3 any of the following: CDR consumer for CDR data.
(a) individual to whom information
relates;
(b) individual
Note: When CDR data and the other terms in the last column of the table
appear in this notional version of Part IIIC, they have the same
meanings as in this Act.
(3) For the purposes of subsection (2), assume that:

(a) sections 26WB to 26WD of the Privacy Act 1988 were not
enacted; and
(b) subsection 26WE(1) of that Act were replaced with the
following:

Section 56ET
“Scope
(a) CDR data of one or more CDR consumers is held by (or on
behalf of) either of the following entities (the CDR entity):
(i) an accredited data recipient of the CDR data;
(ii) a designated gateway for the CDR data; and
(b) section 56EO (about privacy safeguard 12) of the
Competition and Consumer Act 2010 applies to the CDR
entity in relation to the CDR data.”.
56ET Investigating breaches of the privacy safeguards etc.
Breaches to which this section applies

(1) This section applies to a breach (a privacy safeguard breach) of
any of the following:
(a) one or more of the privacy safeguards;
(b) the consumer data rules to the extent that those rules relate:
(i) to one or more of the privacy safeguards; or
(ii) to the privacy or confidentiality of CDR data;
(c) section 26WH, 26WK or 26WL or subsection 26WR(10) of
the Privacy Act 1988, as they apply because of section 56ES
of this Act;
in relation to the CDR data of:
(d) a CDR consumer who is an individual; or
(e) a small business (within the meaning of the Privacy Act
1988) carried on by a CDR consumer for the CDR data.
(2) This section also applies to a breach of section 56ED (privacy
safeguard 1).
Object
(3) The object of this section is for Part V of the Privacy Act 1988 to
apply to an act or practice:

Section 56ET
(a) of a CDR participant, designated gateway or accredited

person; and
(b) that may be:
(i) a privacy safeguard breach relating to CDR data
covered by subsection (1); or
(ii) a breach of section 56ED (privacy safeguard 1);
in a corresponding way to the way that Part applies to an act or
practice of an organisation, person or entity that may be an
interference with the privacy of an individual or a breach of
Australian Privacy Principle 1.
Note: That Part is about investigations of interferences with privacy etc.
Extended application of Part V of the Privacy Act 1988

(4) Part V of the Privacy Act 1988, and any other provision of that Act
that relates to that Part, also apply in relation to:
(a) a CDR participant for CDR data; or
(b) a designated gateway for CDR data; or
(c) an accredited person who may become an accredited data
recipient of CDR data;
as if the substitutions in the following table, and the modifications
in subsection (5), were made.
Item For a reference in Part V to … … substitute a reference to …
1 interference with the privacy of a privacy safeguard breach relating to
an individual the CDR data of:
(a) a CDR consumer who is an
individual; or
(b) a small business (within the
meaning of the Privacy Act 1988)
carried on by a CDR consumer for
the CDR data.
2 Australian Privacy Principle 1 section 56ED (privacy safeguard 1) of
this Act.
3 individual a person who:

Section 56ET
Item For a reference in Part V to … … substitute a reference to …
(a) is a CDR consumer for the CDR
data to which the privacy safeguard
breach (or possible privacy
safeguard breach) relates; and
(b) is an individual, or is carrying on a
small business (within the meaning
of the Privacy Act 1988) to which
the CDR data relates.
4 recognised external dispute an external dispute resolution scheme
resolution scheme for which an instrument is in force
under subsection 56DA(1) of this Act.
5 occupied by an agency, an occupied by (or on behalf of):
organisation, a file number (a) a CDR participant for CDR data; or
recipient, a credit reporting body (b) a designated gateway for CDR data.
or a credit provider
Note 1: When CDR data and the other terms in the last column of the table
appear in this notional version of Part V, they have the same meanings
as in this Act.
Note 2: Table item 5 relates to subsection 68(1) of that Act.
(5) For the purposes of subsection (4), assume that:

(a) subsection 5B(4) of the Privacy Act 1988 were not enacted;
and
(b) section 36 of that Act also stated that:
(i) in the case of a complaint about an act or practice of a
CDR participant—the CDR participant is the
respondent; or
(ii) in the case of a complaint about an act or practice of a
designated gateway—the designated gateway is the
respondent; or
(iii) in the case of a complaint about an act or practice of an
accredited person who may become an accredited data
recipient of CDR data—the accredited person is the
respondent; and

Section 56EU
(c) subsections 36(6) to (8), section 37, subsections 40(1B),

43(1A), (8), (8A) and (9) and 48(2), section 50A,
sub-subparagraph 52(1)(b)(i)(A) and sections 53A and 53B
of that Act were not enacted; and
(d) the paragraphs in each of subsections 55B(1) and (3) of that
Act were replaced by:
(i) a paragraph that states that an act or practice of a
specified CDR participant for CDR data has breached a
privacy safeguard; and
(ii) a paragraph that states that an act or practice of a
specified designated gateway for CDR data has
breached a privacy safeguard; and
(iii) a paragraph that states that an act or practice of an
accredited person who may become an accredited data
recipient of CDR data has breached a privacy safeguard;
and
(e) Division 4 of Part V, and subsection 63(2A), of that Act were
not enacted.
56EU Civil penalty provisions
The provisions of this Division that are civil penalty provisions

(1) For the purposes of subparagraph 79(2)(a)(ii) of the Regulatory
Powers Act, each of the following provisions of this Division (the
privacy safeguard penalty provisions) is a civil penalty provision:
(a) subsection 56ED(3);
(b) subsection 56EF(1);
(c) subsection 56EG(1);
(d) section 56EH;
(e) subsection 56EI(1) or (2);
(f) subsection 56EJ(1) or (2);
(g) subsection 56EK(1);
(h) subsection 56EL(1) or (2);
(i) subsection 56EM(1) or (2);
(j) subsection 56EN(1), (2), (3) or (4);

Section 56EU
(k) subsection 56EO(1) or (2);

(l) subsection 56EP(1) or (2).
Enforceable civil penalty provisions

(2) Each privacy safeguard penalty provision is enforceable under
Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to
be enforced by obtaining an order for a person to pay a pecuniary
penalty for the contravention of the provision.
Authorised applicant
(3) For the purposes of Part 4 of the Regulatory Powers Act, the
Information Commissioner is an authorised applicant in relation to
each privacy safeguard penalty provision.
Relevant court
(4) For the purposes of Part 4 of the Regulatory Powers Act, each of
the following courts is a relevant court in relation to each privacy
safeguard penalty provision:
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia
(Division 2);
(c) a court of a State or Territory that has jurisdiction in relation
to the matter.
Act or omission also contravening a civil penalty provision of the

consumer data rules
(5) If an act or omission constitutes:
(a) a contravention of one or more of the privacy safeguard
penalty provisions; and
(b) a contravention of one or more civil penalty provisions of the
proceedings may be instituted against a person in relation to the
contravention of any one or more of those provisions.

Section 56EV
Note 1: The proceedings for a contravention referred to in paragraph (a) would

be instituted under Part 4 of the Regulatory Powers Act.
Note 2: The proceedings for a contravention referred to in paragraph (b)
would be instituted under Part VI of this Act.
(6) However, the person is not liable to more than one pecuniary
penalty under:
(a) Part 4 of the Regulatory Powers Act for a contravention
referred to in paragraph (5)(a) of this section; and
(b) Part VI of this Act for a contravention referred to in
paragraph (5)(b) of this section;
in relation to the same act or omission.
Note: This means the person cannot be liable for a pecuniary penalty for a
contravention of the privacy safeguards, and for a pecuniary penalty
for a contravention of the consumer data rules, in relation to the same
act or omission.
56EV Civil penalty provisions—maximum amount of penalty

(1) Despite subsection 82(5) of the Regulatory Powers Act, the
pecuniary penalty payable:
(a) by a person; and
(b) under a civil penalty order under Part 4 of that Act (as that
Part applies because of section 56EU of this Act);
must not be more than the maximum penalty amount worked out
under this section for a contravention by the person.
Maximum amount of civil penalty for a body corporate

(2) For the purposes of subsection (1), the maximum penalty amount
for a contravention by a body corporate of a privacy safeguard
penalty provision is the greater of the following:
(a) $10,000,000;
(b) if the relevant court (see subsection 56EU(4)) 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
contravention—3 times the value of that benefit;

Section 56EW
(c) if that court cannot determine the value of that benefit—10%

contravention happened or began.
Maximum amount of civil penalty for other persons

(4) For the purposes of subsection (1), the maximum penalty amount
for a contravention by a person other than a body corporate of a
privacy safeguard penalty provision is $500,000.
56EW Enforceable undertakings
Enforceable provisions
(1) Each provision of the privacy safeguards is enforceable under
Note: Part 6 of the Regulatory Powers Act creates a framework for
accepting and enforcing undertakings relating to compliance with
provisions.
Authorised person
Information Commissioner is an authorised person in relation to
each provision referred to in subsection (1).
Relevant court
the following courts is a relevant court in relation to each provision
referred to in subsection (1):
(Division 2);

Section 56EX

to the matter.
56EX Injunctions
Enforceable provisions
(1) Each provision of the privacy safeguards is enforceable under
Note: Part 7 of the Regulatory Powers Act creates a framework for using
injunctions to enforce provisions.
Authorised person
Information Commissioner is an authorised person in relation to
each provision referred to in subsection (1).
Relevant court
the following courts is a relevant court in relation to each provision
referred to in subsection (1):
(Division 2);
to the matter.
56EY Actions for damages
Right to bring an action for damages

(1) A person who suffers loss or damage (within the meaning of
subsection 25(1) of the Privacy Act 1988) by an act or omission:
(a) of another person; and
(b) that was in contravention of:
(i) a provision of the privacy safeguards; or

Section 56EY
(ii) the consumer data rules to the extent that those rules
relate to the privacy safeguards or to the privacy or
confidentiality of CDR data;
may recover the amount of the loss or damage by action against
that other person or against any person involved in the
contravention.
Note: Subsections 84(2) and (4) (about attributing conduct engaged in on
behalf of a person) apply for the purposes of this section.
(2) An action under subsection (1) may be commenced at any time

within 6 years after the day on which the contravention happened
or began.
Findings in related proceedings to be prima facie evidence

(3) If a finding of any fact is made by a court in relation to a person, or
an admission of any fact is made by a person, in proceedings:
(a) under the Regulatory Powers Act (as that Act applies because
of this Subdivision) in which the person is found to have
contravened a provision of the privacy safeguards; or
(b) under Part VI of this Act in which the person is found to:
(i) have contravened; or
(ii) have been involved in a contravention;
of the consumer data rules to the extent that those rules relate
to the privacy safeguards or to the privacy or confidentiality
of CDR data;
the finding or admission is prima facie evidence of that fact in any
proceeding under subsection (1) against the person.
(4) The finding or admission may be proved by production of:
(a) in any case—a document under the seal of the court from
which the finding or admission appears; or
(b) in the case of an admission—a document from which the
admission appears that is filed in the court.

Section 56EY
Jurisdiction etc.
(5) The following are conferred with jurisdiction to hear and determine
actions under subsection (1):
(a) the Federal Circuit and Family Court of Australia
(Division 2);
(b) subject to the Constitution, the several courts of the
Territories.
This subsection does not enable an inferior court of a Territory to
grant a remedy of a kind that the court is unable to grant under the
law of that Territory.
Note: State courts and the Federal Court also have jurisdiction for these
actions (see subsection 39(2) and paragraph 39B(1A)(c) of the
Judiciary Act 1903).
(6) Section 86AA (about limits on jurisdiction) applies to proceedings

under subsection (1) of this section in a corresponding way to the
way that section applies to proceedings under section 82.
(7) Section 86A (about transfer of matters) applies in relation to a
proceeding under subsection (1) of this section as if
paragraph 86A(1)(b) also referred to a matter for determination
arising under:
(a) a provision of the privacy safeguards; or
(b) the consumer data rules to the extent that those rules relate to
the privacy safeguards or to the privacy or confidentiality of
CDR data.
Involved in a contravention
(8) Subsection 75B(1) applies to a reference that:
(a) is in this section; and
(b) is to a person involved in a contravention covered by
paragraph (1)(b) of this section;
in a corresponding way to the way that subsection 75B(1) applies
to a reference in Part VI to a person involved in a contravention of
section 56CD.

Section 56EZ
56EZ Delegation to the Commission etc.

(1) This section applies in relation to the following functions or
powers (the safeguard enforcement functions or powers):
(a) the Information Commissioner’s functions or powers under
section 56ER;
(b) the Information Commissioner’s functions or powers under
Part IIIC or V of the Privacy Act 1988, as those Parts apply
because of sections 56ES and 56ET of this Act;
(c) the Information Commissioner’s functions or powers under
Part 4, 6 or 7 of the Regulatory Powers Act, that are
conferred because of this Subdivision.
(2) The Information Commissioner may delegate, in writing, any of
the safeguard enforcement functions or powers to:
(a) the Commission; or
(b) a member of the Commission; or
(c) a member of the staff of the Commission referred to in
section 27 of this Act.
(3) However, the Information Commissioner must not delegate a
safeguard enforcement function or power under subsection (2)
unless:
(a) the Commission has agreed to the delegation in writing; and
(b) in the case of a delegation to a staff member referred to in
paragraph (2)(c)—the Commission is satisfied that the staff
member:
(i) is an SES employee or acting SES employee; or
(ii) is holding or performing the duties of a sufficiently
senior office or position for the function or power.

Data standards etc. Division 6
Section 56FA
Division 6—Data standards etc.

Subdivision A—Data standards
56FA Making data standards

(1) The Data Standards Chair may, by writing, make one or more data
standards about each of the following matters:
(a) the format and description of CDR data;
(b) the disclosure of CDR data;
(c) the collection, use, accuracy, storage, security and deletion of
CDR data;
(d) de-identifying CDR data, including so that it no longer
relates to:
(i) an identifiable person; or
(ii) a person who is reasonably identifiable;
(e) other matters prescribed by the regulations.
Note: For variation and repeal, see subsection 33(3) of the Acts
Complying with consumer data rules when making standards etc.

(2) The Data Standards Chair must comply with the consumer data
rules when:
(a) making a data standard; or
(b) varying or revoking a data standard;
including complying with any related requirements specified in
those rules about approval, consultation and the formation of
committees, advisory panels and consultative groups.
Note: The rules could, for example, require a proposed data standard to be
approved by the Commission before it is made.
(3) Without limiting subsection (2), the Data Standards Chair must:
(a) make, under subsection (1), a data standard about a particular
matter mentioned in subsection (1) if the consumer data rules
so requires; and

Division 6 Data standards etc.
Section 56FB
(b) specify in that data standard that it is binding if the consumer

data rules so requires.
A data standard is a binding data standard if it is made under
subsection (1) in accordance with paragraph (b) of this subsection.
Data standards are not legislative instruments

(4) A data standard made under subsection (1) is not a legislative
instrument.
56FB What data standards can set out etc.

(1) Without limiting subsection 56FA(1), a single data standard may
set out:
(a) different provisions for different designated sectors; or
(b) different provisions for different classes of CDR data; or
(c) different provisions for different classes of persons specified,
as described in paragraph 56AC(2)(b), in an instrument
designating a sector under subsection 56AC(2); or
(d) different provisions for different classes of accredited
persons.
(2) Without limiting subsection 56FA(1), a separate data standard
could deal with:
(a) each of the different designated sectors referred to in
paragraph (1)(a) of this section; or
(b) each of the different classes referred to in paragraph (1)(b),
(c) or (d) of this section.
56FC Data standards must be published

The Data Standards Chair must publish on the internet a copy of
each data standard made under subsection 56FA(1).
Note: Once published, the data standards will be available for free.
56FD Legal effect of data standards

(1) A contract is taken to be in force between:

Section 56FE
(a) a data holder of CDR data to which a binding data standard

applies; and
(b) each accredited person;
under which each of those persons:
(c) agrees to observe the standard to the extent that the standard
applies to the person; and
(d) agrees to engage in conduct that the person is required by the
standard to engage in.
Note: This means the data holder will be taken to have a separate contract
with each accredited person.
(2) If there is a designated gateway for CDR data to which a binding

data standard applies, a contract is taken to be in force between:
(a) a data holder of the CDR data; and
(b) the designated gateway for the CDR data; and
(c) each accredited person;
under which each of those persons:
(d) agrees to observe the standard to the extent that the standard
applies to the person; and
(e) agrees to engage in conduct that the person is required by the
standard to engage in.
Note: This means the data holder will be taken to have a separate 3-party
contract with the designated gateway and each accredited person.
(3) However, if there is an inconsistency between a data standard, and

the consumer data rules, those rules prevail over the standard to the
extent of the inconsistency.
56FE Enforcement of binding data standards

(1) If a person who is under an obligation to comply with a binding
data standard fails to meet that obligation, an application to the
Court may be made by:
(a) the Commission; or
(b) a person aggrieved by the failure.

Section 56FF
(2) After giving an opportunity to be heard to the applicant and the

person against whom the order is sought, the Court may make an
order giving directions to:
(a) the person against whom the order is sought; or
(b) if that person is a body corporate—the directors of the body
corporate;
about compliance with, or enforcement of, the binding data
standard.
(3) Without limiting subsection (1), an obligation to comply with a
binding data standard includes an obligation arising under a
contract referred to in section 56FD.
Subdivision B—Data Standards Chair
56FF Data Standards Chair

There is to be a Data Standards Chair.
56FG Appointment of the Data Standards Chair

(1) The Data Standards Chair is to be appointed, on a full-time basis or
a part-time basis, by the Minister by written instrument.
(2) The Data Standards Chair holds office for the period specified in
the instrument of appointment. The period must not exceed 3 years.
Note 1: The Minister will be the Data Standards Chair in the absence of an
appointment under this section (see the definition of Data Standards
Chair in subsection 4(1)).
Note 2: The Data Standards Chair may be reappointed (see section 33AA of
the Acts Interpretation Act 1901).
56FH Functions and powers of the Data Standards Chair

(1) The functions of the Data Standards Chair are:
(a) to make standards under Subdivision A; and
(b) to review those standards regularly; and
(c) such other functions as are prescribed by the regulations.

Section 56FI
(2) The Data Standards Chair has the following powers:

(a) the power to establish committees, advisory panels and
consultative groups;
(b) the power to do all other things necessary or convenient to be
done for or in connection with the performance of the Chair’s
functions.
56FI Directions by Minister

to the Data Standards Chair about the performance of the Chair’s
functions and the exercise of the Chair’s powers.
Act).

(3) The Data Standards Chair must comply with a direction under
subsection (1).
Subdivision C—Data Standards Body
56FJ Appointment of the Data Standards Body

(1) The Minister may, by written instrument, appoint as the Data
Standards Body:
(a) the Department; or
(b) another Commonwealth entity (within the meaning of the
Public Governance, Performance and Accountability Act
2013).
Note: For variation, see subsection 33(3) of the Acts Interpretation Act 1901.


Section 56FK
56FK Function and powers of the Data Standards Body

(1) The function of the Data Standards Body is to assist the Data
Standards Chair.
(2) The Data Standards Body has the power to do all other things
performance of the Data Standards Body’s function.
(3) The Data Standards Body must comply with the consumer data
rules when assisting the Data Standards Chair, including
complying with any requirements specified in those rules about:
(a) the Body’s composition; or
(b) the Body’s governance or processes.
(4) To avoid doubt, for a body that is the Data Standards Body, the
body’s functions and powers in its capacity other than as the Data
Standards Body are taken to include the function and powers of the
Data Standards Body while it is the Data Standards Body.
Subdivision D—Administrative provisions
56FL Acting appointments

The Minister may, by written instrument, appoint a person to act as
the Data Standards Chair:
(a) during a vacancy in the office of Data Standards Chair
(whether or not an appointment has previously been made to
the office); or
(b) during any period, or during all periods, when the Data
Standards Chair:
office.

Section 56FM
56FM Terms and conditions

(1) The Data Standards Chair holds office on the terms and conditions
(if any) in relation to matters not covered by this Division that are
determined by the Minister.
(2) Subsection (1) does not apply while the Data Standards Chair is the
Minister.
56FN Remuneration
(1) The Data Standards Chair 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 Data
Standards Chair is to be paid the remuneration that is prescribed by
the regulations.
(2) The Data Standards Chair is to be paid the allowances that are
prescribed by the regulations.
1973.
(4) Subsections (1) and (2) do not apply while the Data Standards
Chair is the Minister.
56FO Leave
(1) If the Data Standards Chair is appointed on a full-time basis, the
Data Standards Chair has the recreation leave entitlements that are
(2) If the Data Standards Chair is appointed on a full-time basis, the
Minister may grant the Data Standards Chair leave of absence,
other than recreation leave, on the terms and conditions as to
remuneration or otherwise that the Minister determines.
(3) If the Data Standards Chair is appointed on a part-time basis, the
Secretary of the Department may grant leave of absence to the

Section 56FP
Data Standards Chair on the terms and conditions that the

Secretary determines.
56FP Application of the finance law etc.

(1) For the purposes of the finance law (within the meaning of the
Public Governance, Performance and Accountability Act 2013),
the Data Standards Chair is taken to be an official of the
Department.
Note: A consequence of this subsection is that the Secretary of the
Department will be the accountable authority (within the meaning of
that Act) applicable to the Data Standards Chair.
(2) The Secretary of the Department, when preparing the Department’s

annual report under section 46 of the Public Governance,
Performance and Accountability Act 2013 for a period, must
include information in that report about:
(a) the performance of the Data Standards Chair’s functions; and
(b) the exercise of the Data Standards Chair’s powers;
during the period.
(3) If at any time the Data Standards Chair is the Minister then:
(a) subsections (1) and (2) do not apply; and
(b) the Department’s annual report under section 46 of that Act
for the period that includes that time must include
information about the performance of the Data Standards
Chair’s functions, and the exercise of the Data Standards
Chair’s powers, at that time.
56FQ Resignation
(1) The Data Standards Chair may resign the Data Standards Chair’s
appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the
Minister or, if a later day is specified in the resignation, on that
later day.

Section 56FR
56FR Termination of appointment

(1) The Minister may terminate the appointment of the Data Standards
Chair:
(a) for misbehaviour; or
(b) if the Data Standards Chair is unable to perform the duties of
the Data Standards Chair’s office because of physical or
mental incapacity.
(2) The Minister may terminate the appointment of the Data Standards
Chair if:
(a) the Data Standards Chair:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors; or
(iii) compounds with the Data Standards Chair’s creditors;
or
(iv) makes an assignment of the Data Standards Chair’s
remuneration for the benefit of the Data Standards
Chair’s creditors; or
(b) if the Data Standards Chair is appointed on a full-time
basis—the Data Standards Chair is absent, except on leave of
absence, for 14 consecutive days or for 28 days in any
12-month period; or
(c) the Data Standards Chair fails, without reasonable excuse, to
comply with section 29 of the Public Governance,
Performance and Accountability Act 2013 (which deals with
the duty to disclose interests) or rules made for the purposes
of that section.
56FS Delegation
(1) The Data Standards Chair may delegate, in writing, any or all of
the Chair’s functions or powers to:
(a) an SES employee, or an acting SES employee, in the Data
Standards Body, in the Department or in the Commission; or

Section 56FS

(i) is in the Data Standards Body, in the Department or in
the Commission; and
(ii) is an office or position that the Chair is satisfied is
sufficiently senior for the APS employee to perform the
function or exercise the power; or
(c) if there are no APS employees (including SES employees) in
the Data Standards Body—a person:
(i) who holds an office or position in the Data Standards
Body that the Chair considers is sufficiently senior for
the person to perform the function; and
(ii) who the Chair considers has appropriate qualifications
or expertise to perform the function.
(2) Subsection (1) does not apply to the function referred to in
paragraph 56FH(1)(a) (about making standards).
Note: This subsection does not prevent a person who is acting as the Data
Standards Chair from making a standard.
(3) In performing a delegated function or exercising a delegated

power, the delegate under subsection (1) must comply with any
directions of the Data Standards Chair.

Other matters Division 7
Section 56GA
Division 7—Other matters
56GA CDR functions of the Information Commissioner

(1) The Information Commissioner has the following functions:
(a) the functions conferred on the Information Commissioner by
another provision of this Part, or by an instrument made
under this Part;
(b) to consult with or advise any of the following about any
matter relevant to the operation of this Part (or the operation
of instruments made under this Part):
(i) the Minister;
(ii) the Secretary of the Department;
(iii) the Commission;
(iv) the Data Standards Chair.
Note: The Commission may also delegate to the Information Commissioner
any of the Commission’s functions relating to this Part (see
subsection 26(3)).
(2) The functions referred to in subsection (1) may be performed by

the Information Commissioner on request or on the Information
Commissioner’s own initiative.
56GAA Delegation by Secretary

(1) The Secretary of the Department may, in writing, delegate all or
any of the Secretary’s functions or powers under this Part to an
SES employee, or an acting SES employee, in the Department.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain
(2) In performing a delegated function or exercising a delegated

power, the delegate must comply with any written directions of the
Secretary.

Division 7 Other matters
Section 56GAB
56GAB Concurrent operation of State and Territory laws

The CDR provisions are not intended to exclude or limit the
operation of a law of a State or Territory that is capable of
operating concurrently with the CDR provisions.
56GB Referring to instruments as in force from time to time

(1) This section applies to the following instruments:
(a) designations under section 56AC (about designated sectors);
(b) regulations made for the purposes of a provision of this Part;
(c) the consumer data rules;
(d) data standards.
(2) An instrument to which this section applies may make provision in
relation to a matter by applying, adopting or incorporating (with or
without modification) any matter contained in any other instrument
or writing:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time.
(3) Subsection (2) has effect despite subsection 14(2) of the
Legislation Act 2003.
56GC Complying with requirements to provide CDR data:

protection from liability
(1) If:
(a) a CDR participant, or designated gateway, for CDR data (the
CDR entity):
(i) provides the CDR data to another person; or
(ii) otherwise allows another person access to the CDR
data; and
(b) the CDR entity does so, in good faith, in compliance with:
(i) this Part; and
(ii) regulations made for the purposes of this Part; and
(iii) the consumer data rules;

Section 56GD
the CDR entity is not liable to an action or other proceeding,

whether civil or criminal, for or in relation to the matter in
paragraph (a).
subsection (1) for a criminal action or criminal proceeding (see
subsection 13.3(3) of the Criminal Code).
(2) A person who wishes to rely on subsection (1) in relation to a civil

action or civil proceeding bears an evidential burden in relation to
that matter.
evidential burden, in relation to a matter, means the burden of
possibility that the matter exists or does not exist.
56GD Exemptions by the Commission

(1) The provisions covered by this section are:
(a) the following provisions:
(i) the provisions of this Part;
(ii) the provisions of regulations made for the purposes of
the provisions of this Part;
(iii) the provisions of the consumer data rules; and
(b) definitions in this Act, or in the regulations or consumer data
rules, as they apply to references in provisions referred to in
paragraph (a).
(2) The Commission may, by written notice given to a person, exempt
the person, in relation to particular CDR data or one or more
classes of CDR data, from all or specified provisions covered by
this section.
(3) An exemption under subsection (2):
(a) may or may not be limited to a specified period; and
(b) may apply unconditionally or subject to specified conditions.

Section 56GE
(4) The Commission must publish on its website the details of each
exemption under subsection (2).
(5) Applications may be made to the Administrative Appeals Tribunal
for review of a decision of the Commission exempting, or refusing
to exempt, a person under subsection (2).
56GE Exemptions and modifications by regulations

(1) The provisions covered by this section are:
(a) the following provisions:
(i) the provisions of this Part;
(ii) the provisions of regulations made for the purposes of
the provisions of this Part;
(iii) the provisions of the consumer data rules; and
(b) definitions in this Act, or in the regulations or consumer data
rules, as they apply to references in provisions referred to in
paragraph (a).
(2) The regulations may:
(a) exempt a particular person, in relation to particular CDR data
or one or more classes of CDR data, from all or specified
provisions covered by this section; or
(b) exempt a class of persons, in relation to particular CDR data
or one or more classes of CDR data, from all or specified
provisions covered by this section; or
(c) declare that provisions covered by this section apply in
relation to:
(i) a particular person in relation to particular CDR data or
one or more classes of CDR data; or
(ii) a class of persons in relation to particular CDR data or
one or more classes of CDR data;
as if specified provisions were omitted, modified or varied as
specified in the declaration.
(3) An exemption under paragraph (2)(a) or (b), or a declaration under
paragraph (2)(c):

Section 56GF
(a) may or may not be limited to a specified period; and

(b) may apply unconditionally or subject to specified conditions.
56GF Constitutional basis
Main constitutional basis

(1) The CDR provisions have the effect they would have if their
operation were expressly confined to CDR entities that are
corporations.
Note: For the meaning of corporation, see subsection 4(1).
Other constitutional bases

(2) Independently of subsection (1), the CDR provisions also have
effect as provided by subsections (3), (4), (5) and (6).
(3) The CDR provisions also have the effect they would have if their
operation were expressly confined to CDR entities acting in the
course of, or in relation to, the carrying on of:
(a) a postal, telegraphic, telephonic or other like service (within
the meaning of paragraph 51(v) of the Constitution); or
(b) the business of banking, other than State banking (within the
meaning of paragraph 51(xiii) of the Constitution) not
extending beyond the limits of the State concerned; or
(c) the business of insurance, other than State insurance (within
the meaning of paragraph 51(xiv) of the Constitution) not
extending beyond the limits of the State concerned.
operation were expressly confined to CDR entities:
(a) making a supply or communication; or
(b) conducting an activity or otherwise doing something;
using a postal, telegraphic, telephonic or other like service (within
the meaning of paragraph 51(v) of the Constitution).

Section 56GF
operation were expressly confined to CDR entities acting in the
course of, or in relation to, any of the following:
(a) trade or commerce between Australia and places outside
Australia;
(b) trade or commerce among the States;
(c) trade or commerce within a Territory, between a State or
Territory or between 2 Territories.
operation were expressly confined to:
(a) protecting CDR entities against interference, or attacks, of
the kind described in paragraph 1 of Article 17 of the ICCPR;
or
(b) protecting against interference, or attacks, of the kind
described in paragraph 1 of Article 17 of the ICCPR by CDR
entities.
Related matters
(7) Section 6 (about the application of this Act to persons who are not
corporations) does not apply in relation to the CDR provisions.
CDR entity means any of the following:
(a) a data holder of CDR data;
(b) an accredited person;
(c) a designated gateway for CDR data.
ICCPR means the International Covenant on Civil and Political
Rights, done at New York on 16 December 1966, as amended and
in force for Australia from time to time.
Note: The text of the International Covenant is set out in Australian Treaty
Series 1980 No. 23 ([1980] ATS 23). In 2019, the text of a Covenant
in the Australian Treaty Series was accessible through the Australian
Treaties Library on the AustLII website (www.austlii.edu.au).

Section 56GG
56GG Compensation for acquisition of property

(1) This section applies if the operation of the CDR provisions would
result in an acquisition of property (within the meaning of
paragraph 51(xxxi) of the Constitution) from a person otherwise
than on just terms (within the meaning of that paragraph).
(2) The person who acquires the property is liable to pay a reasonable
amount of compensation to the first-mentioned person.
(3) If the 2 persons do not agree on the amount of the compensation,
the person to whom compensation is payable may institute
proceedings in:
(a) the Federal Court; or
(b) the Supreme Court of a State or Territory;
for the recovery from the other person of such reasonable amount
of compensation as the Court determines.
56GH Review of the operation of this Part

(1) The Minister must cause an independent review to be conducted of
the operation of this Part.
(2) The persons who conduct the review must complete it, and give the
Minister a written report of the review, before 1 July 2022.
(3) 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 report is given to the Minister.

Part V Carbon tax price reduction obligation
Section 60
Part V—Carbon tax price reduction obligation

60 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.
• 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

Carbon tax price reduction obligation Part V
Section 60AA
(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.
60AA Objects etc.

(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.

Section 60A
60A Definitions
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.
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

Section 60A
(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

Section 60A
start of 1 January 2014, so far as that section relates to carbon

charge component;
(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.

Section 60A
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.
infringement notice provision means section 60C or 60K.
listed corporation has the meaning given by section 9 of the
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

Section 60A
(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.

Section 60B
60B Regulated goods

(1) For the purposes of this Part, regulated goods means:
(a) natural gas; or
(b) electricity; or
(c) synthetic greenhouse gas; or
(d) SGG equipment; or
(e) other goods of a kind specified in a legislative instrument
(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
Section 60C
Division 2—Carbon tax price reduction obligation
60C Price exploitation in relation to the carbon tax repeal

(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.
60CA Failure to pass on cost savings—250% penalty

(1) If:
(a) either:
(i) an entity contravenes subsection 60C(1) in relation to a
particular supply of electricity or natural gas; or

Carbon tax price reduction obligation Division 2
Section 60CA
(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.
When penalty becomes due and payable

(2) An amount payable by an entity under subsection (1) is due and
payable on 1 July 2015.
Late payment penalty

(3) 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.
Recovery of penalties
(4) 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.
Report to Parliament
(5) Within 13 months after the Royal Assent day, the Commission
must report to Parliament in respect of penalties payable by
entities.

Section 60D
60D Notice to entity that is considered to have engaged in price

exploitation in relation to the carbon tax repeal
(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.
(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.

Carbon tax price reduction obligation Division 2
Section 60E
60E Commission may issue notice to aid prevention of price

exploitation in relation to the carbon tax repeal
(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.
(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
(c) specify the maximum price that, in the Commission’s
opinion, may 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.

Section 60F
60F Acquisition of property
Scope
(1) 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.
Effect of provision
(2) 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).

Carbon tax removal substantiation notices Division 2A
Section 60FA
Division 2A—Carbon tax removal substantiation notices
60FA Carbon tax removal substantiation notices
Scope
(1) 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.
Carbon tax removal substantiation notice

(2) 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
(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.

Division 2A Carbon tax removal substantiation notices
Section 60FB
(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.
Section does not limit section 60H

(6) This section does not limit section 60H (which is about the
price-related information-gathering powers of the Commission).
Section does not limit section 155

60FB Extending periods for complying with carbon tax removal

substantiation notices
(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.
60FC Compliance with carbon tax removal substantiation notices

(1) An entity that is given a carbon tax removal substantiation notice
must comply with it within the applicable compliance period for
the notice.

Carbon tax removal substantiation notices Division 2A
Section 60FC
(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
(c) the entity omits to do an act; and
(d) the omission breaches the requirement.
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.
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
Section 60FD
Division 2B—Carbon tax removal substantiation

statements
60FD Carbon tax removal substantiation statements
Scope
customers; or
customers; or
(c) is a bulk SGG importer that sells synthetic greenhouse gas to
SGG customers.
Carbon tax removal substantiation statement

(2) 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
of natural gas customers during the financial year that
began on 1 July 2014; and

Carbon tax removal substantiation statements Division 2B
Section 60FD
(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
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.
(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.
Compliance
(a) the entity is subject to a requirement under subsection (2) or
(4); and


Division 2B Carbon tax removal substantiation statements
Section 60FD

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.
Section does not limit section 60H

(9) This section does not limit section 60H (which is about the
price-related information-gathering powers of the Commission).

Report to Parliament
(11) Within 13 months after the Royal Assent day, the Commission
must report to Parliament in respect of compliance by all entities.

Statements for customers Division 2C
Section 60FE
Division 2C—Statements for customers
60FE Statements for customers
Scope
customers; or
customers.
Preparation of statement
(2) 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.
Communication of contents of statement to customers

(3) During the period:
(a) beginning 30 days after the Royal Assent day; and
(b) ending 60 days after the Royal Assent day;

Division 2C Statements for customers
Section 60FE
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.
Compliance
(a) the entity is subject to a requirement under subsection (2) or
(3); and

(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.

Price monitoring in relation to the carbon tax repeal etc. Division 3
Section 60G
Division 3—Price monitoring in relation to the carbon tax

repeal etc.
60G Commission may monitor prices in relation to the carbon tax

repeal etc.
Price monitoring—carbon tax repeal transition period

(1) 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).
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).
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).
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).

Division 3 Price monitoring in relation to the carbon tax repeal etc.
Section 60G
Price monitoring—price exploitation

(5) 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.
Price monitoring—pre-repeal transition period

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).
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).
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).
the carbon tax scheme on prices:
(a) advertised; or
(b) displayed; or
(c) offered;

Section 60H
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).
Section does not limit Part VIIA

(10) This section does not limit Part VIIA (which is about prices
surveillance).
Relevant goods
(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
(12) The Minister may, by legislative instrument, specify one or more
kinds of goods for the purposes of paragraph (11)(b).
Pre-repeal transition period

(13) For the purposes of this section, pre-repeal transition period
means the period:
(a) beginning at the commencement of this section; and
(b) ending at the end of 30 June 2014.
60H Information-gathering powers

(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:

Division 3 Price monitoring in relation to the carbon tax repeal etc.
Section 60H
(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).
(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
(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.
Section does not limit section 60FA

(5A) This section does not limit section 60FA (which is about carbon
tax removal substantiation notices).

Section 60J

60J Reporting
(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.
(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
Section 60K
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
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.

Section 60L
Division 5—Infringement notices
60L Issuing an infringement notice
Issuing an infringement notice

has contravened an infringement notice provision, the Commission
may issue an infringement notice to the person.
to the person for the same alleged contravention of the
infringement notice provision.
(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.
Matters to be included in an infringement notice

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

Section 60M
(g) state the maximum pecuniary penalty that the court could
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
(j) state that the penalty is payable to the Commission on behalf
(k) explain how payment of the penalty is to be made; and
(l) explain the effect of sections 60M, 60N, 60P and 60Q.
Amount of penalty
(5) 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.
60M Effect of compliance with an infringement notice
Scope
(a) an infringement notice for an alleged contravention of an
infringement notice provision is issued to a person; and
(c) the infringement notice is not withdrawn under section 60Q.
Effect
(2) The person is not, merely because of the payment, regarded as:

Section 60N
(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.
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.
60N Effect of failure to comply with an infringement notice

If:
(a) an infringement notice for an alleged contravention of an
infringement notice provision is issued to a person; 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.
60P Infringement notice compliance period for infringement notice

(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).
infringement notice compliance period for the notice if the
Commission is satisfied that it is appropriate to do so.

Section 60Q
(4) Only one extension may be given, and the extension must not be
for longer than 28 days.
of the extension.
60Q Withdrawal of an infringement notice

alleged contravention of an infringement notice provision may
make written representations to the Commission seeking the
withdrawal of the infringement notice.


Section 60R

person; 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.

Refunds
must, on behalf of the Commonwealth, refund to the person an
amount equal to the amount paid.
Note: For the appropriation for the refund, see section 77 of the Public
Governance, Performance and Accountability Act 2013.
60R Effect of this Division

This Division does not:
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:

Section 60R

alleged contravention; or
(ii) an infringement notice issued to a person for the alleged
contravention is withdrawn under section 60Q; or

Enforcement and remedies Part VI
Section 75B
Part VI—Enforcement and remedies
75B Interpretation
(1) A reference in this Part to a person involved in a contravention of a
provision of Part IV, IVB or IVBA, or of section 55B,
subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1),
section 56CD, 60C, 60K or 92 or a civil penalty provision of the
consumer data rules, 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.
(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.
76 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 45AF or
45AG);
(iaa) a provision of Part IVBA specified in subsection (4A);
(ia) section 55B;
(ib) subsection 56BO(1) or 56BU(1), section 56CD or a
civil penalty provision of the consumer data rules;

Part VI Enforcement and remedies
Section 76
(ii) section 60C;

(iia) section 60K;
(iii) section 92;
(iiia) a provision of Division 2 of Part XICA;
(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 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).)
(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 45AJ or 45AK or to a provision of
Division 2 of Part XICA—the greatest of the following:
(i) $10,000,000;
(ii) if the court can determine the total value of the benefits
that have been obtained (within the meaning of

Section 76
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
(a) for each act or omission to which this section applies that
relates to section 45D, 45DB, 45E or 45EA—$750,000; and
(b) for each act or omission to which this section applies that
relates to any other provision of Part IV, or that relates to
section 52ZC, 52ZH, 52ZS or 52ZZE, subsection 56BO(1) or
56BU(1), section 56CD or a civil penalty provision of the
consumer data rules not covered by paragraph (cb) of this
subsection—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
(baa) for each act or omission to which this section applies that
relates to a provision of Division 4 of Part IVBA—6000
penalty units;
(bab) for each act or omission to which this section applies that
relates to section 52J or 52ZI or subsection 52ZT(5),
52ZV(3) or 52ZZF(1)—600 penalty units;
(ba) for each act or omission to which this section applies that
relates to section 55B, 60C or 60K—6,471 penalty units; and

Section 76
(c) for each act or omission to which this section applies that
relates to section 92—$33,000; and
(ca) 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
(cb) for each act or omission to which this section applies that
relates to a civil penalty provision of the consumer data rules
that sets out at its foot a pecuniary penalty for a body
corporate indicated by the words “Civil penalty”—the
amount of that pecuniary penalty; and
(d) for each other act or omission to which this section applies—
$10,000,000.
Note: For annual turnover, see subsection (5).
(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
(ab) for each act or omission to which this section applies that
relates to subsection 56BO(1) or 56BU(1), section 56CD or a
civil penalty provision of the consumer data rules not
covered by paragraph (aab) of this subsection—$500,000;
and
(a) for each act or omission to which this section applies that
relates to section 92—$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
(aab) for each act or omission to which this section applies that
relates to a civil penalty provision of the consumer data rules
that sets out at its foot a pecuniary penalty for a person other
than a body corporate indicated by the words “Civil
penalty”—the amount of that pecuniary penalty; and
(b) for each other act or omission to which this section applies—
$500,000.

Section 76
(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.
(3) If conduct constitutes a contravention of two or more provisions of
Part IV (other than section 45AF or 45AG), 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.
(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.
Specified provisions of Part IVBA

(4A) For the purposes of subparagraph 76(1)(a)(iaa), the following
provisions of Part IVBA are specified:
(a) section 52J;
(b) section 52ZI;
(c) a provision of Division 4 of Part IVBA;
(d) section 52ZC;
(e) section 52ZH;
(f) section 52ZS;
(g) subsection 52ZT(5);
(h) subsection 52ZV(3);
(i) section 52ZZE;
(j) subsection 52ZZF(1).
Annual turnover
(5) 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

Section 76A
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.
(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.
76A Defence to proceedings under section 76 relating to a

contravention of section 92
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.
(2) In proceedings against a person (the respondent) under section 76
in relation to an alleged contravention of section 92, 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

Section 76B
(ii) the respondent took reasonable precautions and

exercised due diligence to avoid the contravention.
(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.
76B Consequences in some cases if substantially the same conduct

contravenes a provision of this Act and is an offence
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.
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,
subsection 56BO(1) or section 56CD or 92 if the person has been
convicted of an offence constituted by conduct that is substantially
the same as the conduct constituting the contravention.
(3) Proceedings for a pecuniary penalty order against a person in
relation to a contravention of Part IV, subsection 56BO(1) or
section 56CD or 92 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.

Section 77
(4) Criminal proceedings may be started against a person for conduct

that is substantially the same as conduct constituting a
contravention of Part IV, subsection 56BO(1) or section 56CD or
92 regardless of whether a pecuniary penalty order has been made
against the person in respect of the contravention.
(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,
subsection 56BO(1) or section 56CD or 92 (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.
offence means an offence against a law of the Commonwealth, a
State or a Territory.
77 Civil action for recovery of pecuniary penalties

(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.
(2) A proceeding under subsection (1) may be commenced within 6
years after the contravention.
77A Indemnification of officers

(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

Section 77B
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.
(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.
Definitions
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.
officer has the same meaning as in the Corporations Act 2001.
77B Certain indemnities not authorised and certain documents void

(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.
77C Application of section 77A to a person other than a body

corporate
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

Section 78
(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.
78 Criminal proceedings not to be brought for contraventions of

Part IV
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 45AF or 45AG); 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.
79 Offences against section 45AF or 45AG

(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:

Section 79A
(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.
(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 45AF(3)(c) or 45AG(3)(c)
to a corporation were read as a reference to a body corporate.
(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.
(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.
(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.
(5) Subsections 11.1(1), 11.2(1), 11.2A(1), 11.4(1) and 11.5(1) of the
Criminal Code do not apply in relation to an offence against a
cartel offence provision.
cartel offence provision means section 45AF or 45AG.
79A Enforcement and recovery of certain fines

(1) If:

Section 79A
(a) a fine has been imposed on a person for:

(i) an offence against section 44AAFB, 45AF or 45AG,
subsection 56BN(1) or 56CC(1) or section 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
(d) make an order, on the application of the Minister, the
Commission or (in the case of an offence against
section 44AAFB) the AER 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) 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

Section 79A
(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.
(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.
(9) For the purposes of subsection (8), the Court may vary or revoke
an order made under subsection (7).

Section 79B
(11) This section applies only in relation to fines imposed for offences
committed after the commencement of this section.
79B Preference must be given to compensation for victims

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 45AF or 45AG or
subsection 56BN(1) or 56CC(1);
in respect of a contravention, or an involvement in a
contravention, of this Act or the consumer data rules; 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.
80 Injunctions
(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;
(iiaa) a provision of Part IVBA;
(iia) section 55B;
(iib) subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1),
section 56CD or a civil penalty provision of the
(iii) section 60C;
(iv) section 60K;

Section 80
(v) a provision of Division 2 of Part XICA; 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).)
(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).
(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.
(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.

Section 80
(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.
(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.
(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.

Section 80A
(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.
(6A) Subsection (6) does not apply to an application by the Minister for
an injunction relating to Part IV.
(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.
(8) Subsection (7) does not apply in relation to an application for an
injunction relating to Part IV.
(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 45AF or 45AG or subsection 56BN(1) or 56CC(1); or
(b) a person’s involvement, or proposed involvement, in a
contravention of section 45AF or 45AG or
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.
80A Price exploitation in relation to the carbon tax repeal—orders

limiting prices or requiring refunds of money
(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:

Section 80AB
(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.

price has the same meaning as in Part V.
regulated supply has the same meaning as in Part V.
80AB Stay of injunctions

(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
(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;

Section 80AB
(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.
(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.
(4) Nothing in this section affects other powers of the Court.
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.

Section 80AC
80AC Injunctions to prevent mergers if authorisation granted on the

basis of false or misleading information
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 a merger 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 authorisation
would not have been granted; and
(e) apart from the authorisation, the acquisition would
contravene section 50 if it occurred;
then the Court may grant an injunction in such terms as the Court
determines to be appropriate.
81 Divestiture where merger contravenes section 50 or 50A

(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.
(1A) Where:
(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

Section 81
(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.
(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.
(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 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.

Section 81A
(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.
(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).
81A Divestiture where merger done under authorisation granted on

false etc. information
Circumstances when this section applies

(1) 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 a merger
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 92 or Part 7.4
of the Criminal Code by giving that information; and
(e) if that information had not been given, the authorisation
would not have been granted; and
(f) apart from the 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.

Section 81A
Divestiture by the acquirer and related bodies corporate

(2) 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.
Declaration that acquisition void—when vendor involved

(4) 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.
Alternative to orders under subsections (2) and (4)

(7) 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.
When application for orders under this section must be made

(8) An application under subsection (2) or (4) may be made at any
time within 3 years after the day on which the acquisition occurred.

Section 82
Court may make orders even if not satisfied of all matters

(9) 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
subsections (1) and (4).
82 Actions for damages

(1) A person who suffers loss or damage by conduct of another person
that was done in contravention of:
(a) a provision of Part IV, IVB or IVBA; or
(b) section 55B, 60C or 60K; or
(c) subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1) or
section 56CD; or
(d) a civil penalty provision of the consumer data rules;
may recover the amount of the loss or damage by action against
that other person or against any person involved in the
contravention.
(2) An action under subsection (1) may be commenced at any time
relates to the conduct accrued.
No adverse costs orders

(3) A person who brings an action under subsection (1) in relation to a
contravention of a provision of Part IV may at any time during
proceedings on the matter seek an order under subsection (4) from
the court hearing, or that will hear, the matter.
(4) The court may order that the applicant is not liable for the costs of
any respondent to the proceedings, regardless of the outcome or
likely outcome of the proceedings.

Section 83
(5) The court may only make an order under subsection (4) if the court
is satisfied that:
(a) the action raises a reasonable issue for trial; and
(b) the action raises an issue that is not only significant for the
applicant, but may also be significant for other persons or
groups of persons; and
(c) the disparity between the financial position of the applicant
and the financial position of the respondent or respondents is
such that the possibility of a costs order that does not favour
the applicant might deter the applicant from pursuing the
action.
(6) The court may satisfy itself of the matters in subsection (5) by
having regard only to the documents filed with the court in the
proceedings.
(7) A person who appeals a decision of the court under subsection (4)
is liable for any costs in relation to the appeal.
83 Findings and admissions of fact in proceedings to be evidence

(1) 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 made by a court, or an
admission of any fact made by the person, is prima facie evidence
of that fact if the finding or admission is made in proceedings:
(a) that are proceedings:
(i) under section 77, 80, 81, 86C, 86D or 86E; or
(ii) for an offence against section 45AF or 45AG or
subsection 56BN(1) or 56CC(1); and
(b) in which that person has been found to have contravened, or
to have been involved in a contravention of:
(i) a provision of Part IV, IVB or IVBA; or
(ii) section 55B, 60C or 60K; or
(iii) subsection 56BO(1) or 56BU(1), section 56CD or a
civil penalty provision of the consumer data rules.
(2) The finding or admission may be proved by production of:

Section 84
(a) in any case—a document under the seal of the court from
which the finding or admission appears; or
(b) in the case of an admission—a document from which the
admission appears that is filed in the court.
84 Conduct by directors, employees or agents

(1) If, in:
(a) a prosecution for an offence against section 45AF or 45AG
or subsection 56BN(1) or 56CC(1) 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 45AJ, 45AK, 46 or 46A, Part IVB or IVBA,
section 55B, Part V, subsection 56BN(1), 56BO(1), 56BU(1)
or 56CC(1), section 56CD or a civil penalty provision of the
consumer data rules applies; or
(ba) a proceeding in respect of conduct engaged in by a body
corporate, being conduct in relation to which section 153E,
153F, 153G or 153H 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.
(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
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

Section 84
actual or apparent authority of the director, employee or

agent;
shall be deemed, for the purposes of this Act and the consumer
data rules, to have been engaged in also by the body corporate.
(3) If, in:
(a) a prosecution for an offence against section 45AF or 45AG
or subsection 56BN(1) or 56CC(1) 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 45AJ or 45AK, Part IVB or IVBA,
section 55B, Part V, subsection 56BN(1), 56BO(1), 56BU(1)
or 56CC(1), section 56CD or a civil penalty provision of the
consumer data rules 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.
(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
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 and the consumer
data rules, to have been engaged in also by the first-mentioned
person.

Section 85
(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.
(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.
85 Defences
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.

Section 86
86 Jurisdiction of courts
(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.
(1) Jurisdiction is conferred on the Federal Court in any matter arising
under this Act or the consumer data rules in respect of which a
civil proceeding has, whether before or after the commencement of
this section, been instituted under this Part.
(1A) Jurisdiction is conferred on the Federal Circuit and Family Court of
Australia (Division 2) in any matter arising under section 46,
Part IVB, section 55B, subsection 56BO(1) or 56BU(1),
section 56CD or a civil penalty provision of the consumer data
rules in respect of which a civil proceeding is instituted by a person
other than the Minister.
(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
section 56CD or a civil penalty provision of the consumer data
rules in respect of which a civil proceeding is instituted by a person
other than the Minister or the Commission.
(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 45AI is instituted in that Court.
(3B) Subject to the Constitution, the Supreme Court of a Territory is
conferred with jurisdiction with respect to any matter in respect of

Section 86AA
which a civil proceeding covered by section 45AI is instituted in

that Court.
(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 and Family Court of
Australia (Division 2) under subsection (1A); and
(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.
86AA Limit on jurisdiction of Federal Circuit and Family Court of

Australia (Division 2)
If proceedings under section 82 are instituted in, or transferred to,
the Federal Circuit and Family Court of Australia (Division 2), the
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 1: For transfers of proceedings from the Federal Circuit and Family
Court of Australia (Division 2) to the Federal Court, see section 153
of the Federal Circuit and Family Court of Australia Act 2021 and
section 32AC of the Federal Court of Australia Act 1976.
Note 2: For transfers of proceedings from the Federal Court to the Federal
Circuit and Family Court of Australia (Division 2), see section 32AB
of the Federal Court of Australia Act 1976.
86A Transfer of matters

(1) Where:

Section 86C
(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
section 56CD or a civil penalty provision of the consumer
data rules;
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.
(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.
86C Non-punitive orders

(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.

Section 86C
(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 45AF or 45AG; or
(b) an involvement in a contravention of section 45AF or 45AG.
(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.
(3) This section does not limit the Court’s powers under any other
provision of this Act.
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

Section 86D
(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, IVB or IVBA, section 55B,
section 56CD, section 60C, 60K or 92 or a civil penalty
provision of the consumer data rules; or
(b) constitutes an involvement in a contravention of any of those
provisions.
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.
86D Punitive orders—adverse publicity

(1) The Court may, on application by the Commission, make an
adverse publicity order in relation to a person who:

Section 86E
(a) has been ordered to pay a pecuniary penalty under section 76;
or
(b) is guilty of an offence against section 45AF or 45AG or
subsection 56BN(1) or 56CC(1).
(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 45AF or 45AG
or subsection 56BN(1) or 56CC(1).
(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.
86E Order disqualifying a person from managing corporations

(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, subsection 56BN(1), 56BO(1),
56BU(1) or 56CC(1), section 56CD or a civil penalty
provision of the consumer data rules; 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.

Section 86E
(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 45AF or 45AG or
subsection 56BN(1) or 56CC(1); 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.
(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.
(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.
(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
(3B) For the purposes of this Act (other than this section or
section 86F), an order under this section is not a penalty.
ASIC means the Australian Securities and Investments
Commission.

Section 86F
86F Privilege against exposure to penalty—disqualification from

managing corporations
Court proceeding
(1) In a civil or criminal proceeding under, or arising out of, this Act
or the consumer data rules, 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.
Statutory requirement
(3) A person is not entitled to refuse or fail to comply with a
requirement under this Act or the consumer data rules:
(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.
Definition
penalty includes forfeiture.

Section 87
87 Other orders
(1) Without limiting the generality of section 80, where, in a
proceeding instituted under this Part, or for an offence against
section 45AF or 45AG or subsection 56BN(1) or 56CC(1), 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, Division 2 of Part IVB, or Part IVBA, or of
section 55B, subsection 56BO(1) or 56BU(1), section 56CD, 60C
or 60K or a civil penalty provision of the consumer data rules, 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 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.
(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,
Part IVBA, subsection 56BN(1), 56BO(1), 56BU(1) or
56CC(1), section 56CD, 60C or 60K or a civil penalty
(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, Part IVBA, subsection 56BN(1),
56BO(1), 56BU(1) or 56CC(1), section 56CD, 60C or 60K or
a civil penalty provision of the consumer data rules; or

Section 87
(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
contravention of section 55B, subsection 56BN(1), 56BO(1),
56BU(1) or 56CC(1), section 56CD or a civil penalty
(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 45AF or 45AG or
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.
(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
contravention of a provision referred to in that paragraph; and
(b) have, before the application is made, consented in writing to
the making of the application.
(1BAA) The Commission may make an application under
paragraph (1A)(baa) 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 a provision referred to in that paragraph.

Section 87
(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
contravention of a provision referred to in that paragraph; and
(b) have, before the application is made, consented in writing to
the making of the application.
(1C) An application may be made under subsection (1A) in relation to a
contravention of Part IV, Division 2 of Part IVB, Part IVBA,
section 56CD, 60C or 60K or a civil penalty provision of the
consumer data rules even if a proceeding has not been instituted
under another provision in relation to that contravention.
(1CA) An application under subsection (1A) may be made at any time
relates to the conduct accrued.
(2) The orders referred to in subsection (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

Section 87
by the conduct to refund money or return property to the

person who suffered the loss or damage;
(d) an order directing the person who engaged in the conduct or
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
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
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.
(3) Where:
(a) a provision of a contract made, whether before or after the
commencement of the Trade Practices Amendment Act 1977,
is unenforceable because of section 45 in so far as it confers
rights or benefits or imposes duties or obligations on a
corporation; or

Section 87AA
(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, make
an order:
(c) varying the contract, or a collateral arrangement relating to
the contract, in such manner as the Court considers just and
equitable; or
(d) directing another party to the contract to do any act in
relation to the first-mentioned party that the Court considers
just and equitable.
(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 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.
(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.
87AA Special provision relating to Court’s exercise of powers under

this Part in relation to boycott conduct
(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,

Section 87B
the Court is to have regard to any application for conciliation that

the applicant has made or could make.
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
(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.
87B Enforcement of undertakings

(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) or the consumer data rules.

Section 87C
(1A) The Commission may accept a written undertaking given by a

person for the purposes of this section in connection with a merger
authorisation.
(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.
87C Enforcement of undertakings—Secretary of the Department

(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.
(2) The person may withdraw or vary the undertaking at any time, but
only with the consent of the Secretary of the Department.
(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).

Section 87CA
(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.
87CA Intervention by Commission

(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.

Proportionate liability for misleading and deceptive conduct Part VIA
Section 87CB
Part VIA—Proportionate liability for misleading

and deceptive conduct
87CB Application of Part

(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;
caused by conduct that was done in a contravention of section 18
of the Australian Consumer Law.
(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.
87CC Certain concurrent wrongdoers not to have benefit of

apportionment
(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:

Part VIA Proportionate liability for misleading and deceptive conduct
Section 87CD
(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.
(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.
87CD Proportionate liability for apportionable claims

(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

Section 87CE
(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.
87CE Defendant to notify plaintiff of concurrent wrongdoer of

whom defendant aware
(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.

Part VIA Proportionate liability for misleading and deceptive conduct
Section 87CF
87CF Contribution not recoverable from defendant

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.
87CG Subsequent actions

(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.
(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.
87CH Joining non-party concurrent wrongdoer in the action

(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.
87CI Application of Part

Nothing in this Part:

Section 87CI
(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.

Part VIB Claims for damages or compensation for death or personal injury
Division 1 Introduction
Section 87D
Part VIB—Claims for damages or compensation

for death or personal injury
Division 1—Introduction
87D Definitions
applicable percentage has the meaning given by
subsection 87Q(2).
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 has the meaning given by section 87N.
long-stop period has the meaning given by section 87H.

Claims for damages or compensation for death or personal injury Part VIB
Introduction Division 1
Section 87D
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).
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.
smoking has the same meaning as in the Tobacco Advertising
Prohibition Act 1992.

Division 1 Introduction
Section 87E
tobacco product has the same meaning as in the Tobacco

Advertising Prohibition Act 1992.
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.
(2) However, for the purposes of Divisions 2 and 7, paragraph (1)(c)
does not apply.

Limitation periods Division 2
Section 87F
Division 2—Limitation periods
87F Basic rule

(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.

Division 2 Limitation periods
Section 87G
Have 3 years elapsed since the date of discoverability?
No Yes
Did the death or personal injury result

from smoking or other use of tobacco
products?
Yes No
Has the long-stop period expired?
No Yes
Personal injury damages Personal injury damages

may be awarded cannot be awarded
87G Date of discoverability
Definition
(1) 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.

Section 87G
Constructive knowledge
(2) 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.
Use of the plaintiff’s conduct and statements

(3) 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.
Minors
(4) 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.
Incapacitated persons
(5) 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.
Proceedings by personal representatives

(6) 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

Division 2 Limitation periods
Section 87H
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.
87H Long-stop period

(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.
(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.
87J The effect of minority or incapacity

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

Section 87K
(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.
87K The effect of close relationships

(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.
(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.

Division 3 Limits on personal injury damages for non-economic loss
Section 87L

non-economic loss
87L Limits on damages for non-economic loss

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.
87M Maximum amount of damages for non-economic loss

(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:
Current September CPI number
Previous maximum amount 
Previous September CPI number
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.
(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.

Limits on personal injury damages for non-economic loss Division 3
Section 87N
87N Index numbers

(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.
Australian Statistician means the Australian Statistician referred
to in subsection 5(2) of the Australian Bureau of Statistics Act
1975.
87P Most extreme cases

(1) The court must not award as personal injury damages for
non-economic 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
non-economic loss of the gravest conceivable kind.

Division 3 Limits on personal injury damages for non-economic loss
Section 87Q
87Q Cases of 33% or more (but not 100%) of a most extreme case
(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 non-economic 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.
87R Cases of 15% or more (but less than 33%) of a most extreme
case
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 Damages for non-economic loss (as a
loss (as a proportion of a most proportion of the maximum amount
extreme case) 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%
12 26% 8%

Limits on personal injury damages for non-economic loss Division 3
Section 87S
Cases of 15% or more (but less than 33%) of a most extreme case
Item Severity of the non-economic Damages for non-economic loss (as a
loss (as a proportion of a most proportion of the maximum amount
extreme case) of damages for non-economic loss)
13 27% 10%
14 28% 14%
15 29% 18%
16 30% 23%
17 31% 26%
18 32% 30%
87S Cases of less than 15% of a most extreme case

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.
87T Referring to earlier decisions on non-economic loss

(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
non-economic loss in those earlier decisions.
(3) This section does not affect the rules for determination of other
damages or compensation.

Division 4 Limits on personal injury damages for loss of earning capacity
Section 87U
Division 4—Limits on personal injury damages for loss of

earning capacity
87U Personal injury damages for loss of earning capacity

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.
87V Average weekly earnings

(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

Limits on personal injury damages for loss of earning capacity Division 4
Section 87V
(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.
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.

Division 5 Limits on personal injury damages for gratuitous attendant care services
Section 87W

gratuitous attendant care services
87W Personal injury damages for gratuitous attendant care services

for plaintiff
(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:

Limits on personal injury damages for gratuitous attendant care services Division 5
Section 87X
(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—
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
(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
(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.
87X Personal injury damages for loss of plaintiff’s capacity to

provide gratuitous attendant care services
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

Division 5 Limits on personal injury damages for gratuitous attendant care services
Section 87X
(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;
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—
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

Other limits on personal injury damages Division 6
Section 87Y
Division 6—Other limits on personal injury damages
87Y Damages for future economic loss—discount rate

(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
(b) if it is laid before each House of the Parliament under that
section on different days—on the later of those days.
(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.
87Z Damages for loss of superannuation entitlements

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  Damages for earnings loss
where:
damages for earnings loss are the personal injury damages
payable (in accordance with this Part) for:

Division 6 Other limits on personal injury damages
Section 87ZA
(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.
87ZA Interest on damages

(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.
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 10-year benchmark bond rate:

Other limits on personal injury damages Division 6
Section 87ZB
(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.
87ZB Exemplary and aggravated damages

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.

Division 7 Structured settlements
Section 87ZC
Division 7—Structured settlements
87ZC Court may make orders under section 87 for structured

settlements
(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.
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.

Authorisations and notifications Part VII
Authorisations Division 1
Section 87ZP
Part VII—Authorisations and notifications

Division 1—Authorisations
87ZP Definitions
(1) In this Division:
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).
88 Commission may grant authorisations
Granting an authorisation
(1) Subject to this Part, the Commission may, on an application by a
person, grant an authorisation to a person to engage in conduct,
specified in the authorisation, to which one or more provisions of
Part IV specified in the authorisation would or might apply.
Note: For an extended meaning of engaging in conduct, see subsection 4(2).

Part VII Authorisations and notifications
Division 1 Authorisations
Section 88
Effect of an authorisation
(2) While the authorisation remains in force, the provisions of Part IV
specified in the authorisation do not apply in relation to the
conduct to the extent that it is engaged in by:
(b) any other person named or referred to in the application as a
person who is engaged in, or who is proposed to be engaged
in, the conduct; and
(c) any particular persons or classes of persons, as specified in
the authorisation, who become engaged in the conduct.
Conditions
(3) The Commission may specify conditions in the authorisation.
Subsection (2) does not apply if any of the conditions are not
complied with.
(4) Without limiting subsection (3), the Commission may grant a
merger authorisation on the condition that a person must give, and
comply with, an undertaking to the Commission under
section 87B.
Single authorisation may deal with several types of conduct

(5) The Commission may grant a single authorisation for all the
conduct specified in an application for authorisation, or may grant
separate authorisations for any of the conduct.
Past conduct
(6) The Commission does not have power to grant an authorisation for
conduct engaged in before the Commission decides the application
for the authorisation.
Withdrawing an application
(7) An applicant for an authorisation may at any time, by writing to the
Commission, withdraw the application.

Section 89
89 Procedure for applications and the keeping of a register

(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 approved by the Commission in writing 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.
(1AA) Without limiting paragraph (1)(a), the form may require an
application for a merger authorisation to contain an undertaking
under section 87B that the applicant will not make the acquisition
to which the authorisation relates while the Commission is
considering the application.
(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.
(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.
(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.
(3) The Commission must keep a register of:
(a) applications for authorizations; and
(b) applications for minor variations of authorizations; and

Section 89
(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.
(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.
(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.
(5A) Where such a request is made:

Section 89
(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
(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.
(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.
(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.
(5D) Where the Commission is satisfied that it is desirable to do so for
any reason other than the confidential nature of matters contained

Section 90
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
(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.
(7) The Commission may disclose information excluded under this
section from the register kept under subsection (3) to such persons
and on such terms as it considers reasonable and appropriate for
the purposes of making its determination on the application
concerned.
90 Determination of applications for authorisations

(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.
(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
authorisation other than a merger authorisation the Commission
shall comply with the requirements of section 90A.

Section 90
Note: Alternatively, the Commission may rely on consultations undertaken

by the AEMC: see section 90B.
(6) Before making a determination in respect of an application for an

authorisation, the Commission may do any one or more of the
following:
(a) give any persons who appear to the Commission to be
interested a written notice inviting submissions in respect of
the application within a specified period;
(b) give the applicant a written notice requesting the applicant to
give the Commission, within a specified period, additional
information relevant to making its determination in respect of
the application;
(c) give a person a written notice requesting the person to give
the Commission, within a specified period, particular
information relevant to making its determination in respect of
the application;
(d) consult with such persons as it considers reasonable and
appropriate for the purposes of making its determination in
respect of the application.
(6A) In making a determination in respect of an application for an
authorisation, the Commission must take into account:
(a) any submissions or information received under
paragraph (6)(a), (b) or (c) within the period specified in the
notice mentioned in that paragraph; and
(b) any information obtained from consultations under
paragraph (6)(d)).
The Commission may, but need not, take into account any
submissions or information received after the end of those periods.
Note: Unless the application is for a merger authorisation, the Commission
may instead rely on consultations undertaken by the AEMC: see
section 90B.
(7) The Commission must not make a determination granting an

authorisation under section 88 in relation to conduct unless:

Section 90
(a) the Commission is satisfied in all the circumstances that the

conduct would not have the effect, or would not be likely to
have the effect, of substantially lessening competition; or
(b) the Commission is satisfied in all the circumstances that:
(i) the conduct would result, or be likely to result, in a
benefit to the public; and
(ii) the benefit would outweigh the detriment to the public
that would result, or be likely to result, from the
conduct; or
(c) all of the following apply:
(i) a national emergency declaration (within the meaning of
the National Emergency Declaration Act 2020) is in
force;
(ii) the Commission is satisfied in all the circumstances that
the conduct would assist, or would be likely to assist, in
the response to or recovery from the emergency to
which the national emergency declaration relates; and
(iii) the Commission is satisfied in all the circumstances that
the benefit to the public resulting from the assistance, or
likely assistance, together with any other public benefit
resulting from the conduct, would outweigh the
detriment to the public that would result, or be likely to
result, from the conduct.
(8) Paragraph (7)(a) does not apply if any of the following provisions
would (apart from an authorisation under section 88) apply to the
conduct:
(a) one or more provisions of Division 1 of Part IV (cartel
conduct);
(b) one or more of sections 45D to 45DB (secondary boycotts);
(ba) one or more provisions of section 45E or 45EA (contracts
etc. affecting the supply or acquisition of goods or services);
(c) section 48 (resale price maintenance).
(9A) In relation to the Commission’s consideration of an application for
an authorisation to engage in conduct to which section 49 would or
might apply or for a merger authorisation, in determining what

Section 90
amounts to a benefit to the public for the purposes of

paragraph (7)(b) and subparagraph (7)(c)(iii):
(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.
(10) If the Commission does not determine an application for an
authorisation (other than an application for a merger authorisation)
within the relevant period, then it is taken to have granted the
application at the end of that period.
(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.
(10B) Subject to subsections (12) and (13), if:
(a) the Commission does not determine an application for a
merger authorisation within the 90-day period beginning on
the day the Commission received the application; and
(b) the application is not an application for an overseas merger
authorisation;
the Commission is taken to have refused, at the end of that period,
to grant the authorisation applied for.

Section 90
(11) Subject to subsections (12) and (13), if the Commission does not
determine an application for an overseas merger authorisation
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 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.
(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.
(12) If the applicant for an authorization informs the Commission in
writing before the expiration of the period referred to in
subsection (10B) or (11) (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 that subsection for the reference in that subsection to
the base period.
(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 (10B) or (11) for

Section 90
the reference in subsection (10B) or (11) to the base period, be

construed as a reference to that other period.
(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 of subsection 90A(9) as the day on
which the conference terminated.
(15) Where a party to a joint venture makes at the one time two or more
applications for authorizations (other than an application for a
merger authorisation), 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.

Section 90A
90A Commission to afford opportunity for conference before

determining application for authorisation
(1) Before determining an application for an authorization (other than
an application for a merger authorisation), 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
determination.
(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
(b) the draft determination provides for the granting of the
application 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

Section 90A
(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
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.
(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
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).
(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

Section 90A
(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
(e) no other person is entitled to be present.
(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.
(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.

Section 90B
(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.
(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.
90B Commission may rely on consultations undertaken by the

AEMC
(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.
(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:

Section 91
(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(6A), the Commission may disregard
any submissions, in relation to the application, made by the
Commonwealth, by a State or Territory, or by any other
person (other than the AEMC).
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.
91 Grant and variation of authorisations

(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;

Section 91
(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
makes a determination on the review; or
is withdrawn.
(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
makes a determination on the review; or
is withdrawn.
(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

Section 91
(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.
(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.
(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.

Section 91A
(2A) Subsections 90(4) to (7), inclusive, do not apply in relation to an

authorization that is expressed to be an interim authorization.
91A Minor variations of authorizations

(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.
(2A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation

to an application for a minor variation of an authorisation in a
corresponding way to the way in which it applies in relation to an
application for an authorisation.
(3) The Commission may make a determination in writing varying the
authorisation or dismissing the application after taking into account
the following:
(a) the application;
(b) any submissions that are received within the period specified
under paragraph (2)(b);
(c) any information received under paragraph 90(6)(b) or (c) (as
that paragraph applies because of subsection (2A) of this
section) within the period specified in the notice mentioned
in that paragraph;
(d) any information obtained from consultations under
paragraph 90(6)(d) (as that paragraph applies because of
subsection (2A) of this section).

Section 91A
(4) The Commission must not make a determination varying an
authorisation in relation to conduct unless the Commission is
satisfied in all the circumstances that:
(a) if, in making the determination to grant the authorisation in
relation to conduct, the Commission was satisfied that the
conduct would not have the effect, or would not be likely to
have the effect, of substantially lessening competition—the
variation would not have the effect, or would not be likely to
have the effect, of increasing the extent to which the conduct
lessens competition; or
(b) if paragraph (a) does not apply—the variation would not
result, or would not be likely to result, in a reduction in the
extent to which the benefit to the public of the authorisation
outweighs any detriment to the public caused by the
authorisation.
(4A) For the purposes of subsection (4), the Commission need not have
regard to conduct that is unaffected by the variation.
(5) Subsections 90(10B), (12) and (13) apply in relation to an
application for a minor variation of a merger authorisation that is
not an overseas merger authorisation in a corresponding way to the
way those subsections apply in relation to an application for a
merger authorisation that is not an overseas merger authorisation.
Note: Those subsections deem the Commissioner to have refused to grant
the application if the Commission does not determine the application
within 90 days (or an extended period in some cases).
(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

Section 91B
(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.
91B Revocation of an authorization

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.
(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

Section 91B
(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
to an application for a revocation of an authorisation in a
(3B) Subsection 90(6) (other than paragraphs 90(6)(a) and (b)) applies
in relation to a proposal for a revocation of an authorisation in a
(4) The Commission may make a determination in writing revoking
the authorisation, or deciding not to revoke the authorisation, after
taking into account the following:
(a) if subsection (2) applies—the application;
under paragraph (2)(c) or (3)(f);
(c) any information received under paragraph 90(6)(b) (as it
applies because of subsection (3A) of this section) within the
period specified in the notice mentioned in that paragraph;
(d) any information received under paragraph 90(6)(c) (as it
applies because of subsection (3A) or (3B) of this section)
within the period specified in the notice mentioned in that
paragraph;
(e) any information obtained from consultations under
paragraph 90(6)(d) (as it applies because of subsection (3A)
or (3B) of this section).

Section 91C
(5) If an objection to revoking the authorisation is included in any
submission or information:
(a) referred to in subsection (4); and
(b) received by the Commission within the period (if any)
referred to in that subsection;
the Commission must not make a determination revoking the
authorisation unless the Commission is satisfied that it would, if
the authorisation had not already been granted, be prevented under
subsection 90(7) from granting the authorisation.
(5A) Subsections 90(10B), (12) and (13) apply in relation to an
application for a revocation of a merger authorisation that is not an
overseas merger authorisation in a corresponding way to the way
those subsections apply in relation to an application for a merger
authorisation that is not an overseas merger authorisation.
(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.
91C Revocation of an authorization and substitution of a

replacement
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:

Section 91C
(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.
(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 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
to an application for a revocation and substitution of an
authorisation in a corresponding way to the way in which it applies
in relation to an application for an authorisation.
(3B) Subsection 90(6) (other than paragraphs 90(6)(a) and (b)) applies
in relation to a proposal for a revocation and substitution of an

Section 91C
authorisation in a corresponding way to the way in which it applies

in relation to an application for an authorisation.
(4) The Commission may make a determination in writing revoking
the authorisation and granting a substitute authorisation that it
considers appropriate, or deciding not to revoke the authorisation,
after taking into account the following:
(a) if subsection (2) applies—the application;
under paragraph (2)(c) or (3)(f);
(c) any information received under paragraph 90(6)(b) (as it
applies because of subsection (3A) of this section) within the
period specified in the notice mentioned in that paragraph;
(d) any information received under paragraph 90(6)(c) (as it
applies because of subsection (3A) or (3B) of this section)
within the period specified in the notice mentioned in that
paragraph;
(e) any information obtained from consultations under
paragraph 90(6)(d) (as it applies because of subsection (3A)
or (3B) of this section).
(5) Before making a determination under subsection (4) in relation to
an application, or a proposal, for the revocation of an authorisation
other than a merger authorisation and the substitution of another,
the Commission must comply with the requirements of
section 90A.
(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 a merger
authorisation) were a reference to an application, or to a
proposal, for the revocation of an authorization (other than a

Section 91C
merger authorisation) 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(7) from making a determination granting the
substituted authorization, if it were a new authorization sought
under section 88.
(7A) Subsections 90(10B), (12) and (13) apply in relation to an
application for a revocation and substitution of a merger
authorisation that is not an overseas merger authorisation in a
corresponding way to the way those subsections apply in relation
to an application for a merger authorisation that is not an overseas
merger authorisation.
(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.

Section 92
92 Providing false or misleading information

(1) A person must not give information to the Commission or Tribunal
under this Division or Part IX in connection with any of the
following if the person is negligent as to whether the information is
false or misleading in a material particular:
(a) an application for a merger authorisation;
(b) an application for a minor variation of a merger
authorisation;
(c) an application for, or the Commission’s proposal for, the
revocation of a merger authorisation;
(d) an application for, or the Commission’s proposal for, the
revocation of a merger authorisation and the substitution of
another merger authorisation;
(e) a review of a determination in relation to an application or
proposal referred to in paragraph (a), (b), (c) or (d).
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.

Division 2 Notifications
Section 93
Division 2—Notifications
Subdivision A—Exclusive dealing and resale price maintenance
93 Notification of exclusive dealing or resale price maintenance

(1) Subject to subsection (2):
(a) a corporation that engages, or proposes to engage, in conduct
of a kind referred to in subsection 47(2), (3), (4), (5), (6), (7),
(8) or (9); or
(b) a corporation or other person who engages, or proposes to
engage, in conduct of a kind referred to in section 48;
may give to the Commission a notice setting out particulars of the
conduct or proposed conduct.
(1A) To be valid, a notice under subsection (1) must:
regulations.
(2) A corporation or other person may not give a notice under
subsection (1) for conduct or proposed conduct if:
(a) the corporation or other person 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.

Notifications Division 2
Section 93
(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.
(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.
Definition
(2C) In subsection (2B):
business day means a day that is not a Saturday, a Sunday or a
(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), (5), (6), (7), (8) or (9) and referred to in a
notice given by the corporation under subsection (1):
(a) 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
(b) in all the circumstances:
(i) 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
(ii) has resulted or is likely to result, or would result or be
likely to result, in a benefit to the public that has not or
would not outweigh the detriment to the public that has

Section 93
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.
(3A) If:
(a) a corporation or other person has notified the Commission
under subsection (1) of conduct or proposed conduct
described in section 48; 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 or other person a written
notice stating that the Commission is so satisfied and accompanied
by a statement setting out its reasons for being so satisfied.
(3B) If:
(a) a corporation or other person has notified the Commission
under subsection (1) of conduct or proposed conduct; and
(b) the Commission has given the corporation or other person a
notice under subsection 93AAA(1) imposing conditions
relating to the conduct or proposed conduct; and
(c) the Commission is satisfied that the corporation or other
person has failed to comply with those conditions;
the Commission may at any time give notice in writing to the
corporation or other person stating that the Commission is so
satisfied and accompanied by a statement setting out its reasons for
being so satisfied.
(4) Before giving a notice under subsection (3), (3A) or (3B) the
Commission shall comply with the requirements of section 93A.
(5) In satisfying itself for the purposes of subsection (3), (3A) or (3B)
in relation to any conduct or proposed conduct referred to in a
notice given to the Commission by a corporation or other person

Section 93
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 other
person or any other person or otherwise in its possession.
(6) A corporation or other person 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 or other person a notice under
subsection (3), (3A) or (3B) in relation to the conduct or proposed
conduct, by notice in writing to the Commission, withdraw the
first-mentioned notice.
(7) Where a corporation has given notice to the Commission under
subsection (1) describing conduct or proposed conduct referred to
in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9):
(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

Section 93
(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.
(7A) A notice under subsection (1) describing conduct or proposed
conduct referred to in section 48 comes into force:
(a) at the end of the period of 60 days, or such other period as is
prescribed by the regulations, starting on the day when the
corporation or other person gave the Commission the notice;
or
(b) if the Commission gives notice to the corporation or other
person under subsection 93A(2) during that period—when
the Commission decides not to give the corporation or other
person a notice under subsection (3A) or (3B) of this section.
(7B) A notice under subsection (1) describing conduct or proposed
conduct referred to in section 48 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 or other person under
subsection 93A(2) during the period described in
paragraph (7A)(a); and
(ii) gives notice to the corporation or other person under
subsection (3A) or (3B).
(7C) A notice under subsection (1) describing conduct referred to in
section 48 ceases to be in force:
(a) when the notice is withdrawn or deemed to be withdrawn; or
(b) if the Commission gives the corporation or other person 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; or
(c) if the Commission gives the corporation or other person a
notice under subsection (3B)—on the 31st day after the
Commission gave the notice under subsection (3B) or on a
later day specified in writing by the Commission.

Section 93
(8) Where:
(a) a corporation or other person 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 or other
person 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), (3A) or (3B),
a reference in subsection (7) or paragraph (7C)(b) or (7C)(c) 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;
(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.
(10) Where:
(a) a corporation or other person has given a notice to the
Commission under subsection (1) in relation to conduct or
proposed conduct and the Commission has given notice to

Section 93AAA
the corporation or other person in writing under

subsection (3), (3A) or (3B) in relation to the conduct or the
proposed conduct; or
(b) a notice given by a corporation or other person to the
Commission under subsection (1) in relation to conduct or
proposed conduct is withdrawn or deemed to be withdrawn;
the corporation or other person 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.
93AAA Imposing conditions relating to notifications

(1) If:
(a) a corporation or other person gives the Commission a notice
under subsection 93(1) relating to particular conduct, or
proposed conduct, of a kind referred to in section 48; and
(b) the Commission reasonably believes that:
(i) apart from this section, the Commission would have
grounds to give the corporation or other person a notice
under subsection 93(3A) relating to that notice; and
(ii) those grounds would not exist if particular conditions
relating to the conduct or proposed conduct were
complied with;
the Commission may give the corporation or other person a written
notice imposing those conditions.
(2) The Commission must, at the time it gives the corporation or other
person the notice under subsection (1), give the corporation or
other person a written statement of its reasons for giving the notice.

Section 93AA
Subdivision B—Collective bargaining
93AA Definitions
In this Subdivision:
collective bargaining notice means a notice under
subsection 93AB(1A) or (1).
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), (2) or
(2A).
93AB Notification of collective bargaining
Notice to Commission—cartel provisions

(1A) 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;
(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 45AD(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;
(d) proposes to give effect to a provision of a contract (the initial
contract) where the provision is a cartel provision that has

Section 93AB
the purpose mentioned in a paragraph of subsection 45AD(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.
Notice to Commission—competition provisions

(1) 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(1)(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(1)(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.
First—making of initial contract

(2) 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;

Section 93AB
one or more other persons (the target or targets) by the corporation

and the contracting parties.
Second—making of contracts
(3) Second, the corporation must reasonably expect that it will make 1
or more contracts with the target, or with one or more of those
targets, 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;
that target or those targets by the corporation.
Third—price of contracts
(4) Third, the corporation must reasonably expect that:
(a) in the case where the corporation reasonably expects to make
only 1 contract with the target or targets—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 or targets—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.
Timing of reasonable expectation

(5) 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.
Form of notice etc.

(6) To be valid, a collective bargaining notice must:

Section 93AB

regulations.
Notice given by, or on behalf of, contracting persons

(7) 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.
(7A) A collective bargaining notice for a group of contracting parties
may be expressed to be given on behalf of persons who become
members of the group after the notice is given, but only if those
persons could have given the notice on their own behalf at the time
they became members of the group. If the notice is so expressed,
then it is also taken to have been given by those persons.
When a notice may not be given

(8) 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.

Section 93AB
Notice is invalid if given by union etc. on behalf of the corporation

(9) A notice given by a corporation under subsection (1A) or (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.
Invalid collective bargaining notice

(10) 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.
Purpose/effect of a provision
(10B) Subsections 45AD(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.
Purpose of a provision
(10C) Subsections 45AD(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.
Definition

Section 93AC
business day means a day that is not a Saturday, a Sunday or a

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.
93AC Commission’s objection notice
Commission’s objection notice—cartel provisions

(1) If:
(a) a corporation gives the Commission 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; and
(b) the Commission 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;
the Commission may give the corporation a written notice (the
objection notice) stating that it is so satisfied.
Commission’s objection notice—competition provisions

(2) 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

Section 93AC
paragraph 45(1)(a) or (b), 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
(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.
Commission’s objection notice—non-compliance with conditions

(2A) If:
notice that relates (wholly or partly) to collective boycott
conduct or proposed collective boycott conduct; and
(b) the Commission has given the corporation a notice under
subsection 93ACA(1) imposing conditions relating to the
conduct or proposed conduct; and
(c) the Commission is satisfied that the corporation has failed to
comply with those conditions;
the Commission may give the corporation a written notice (the
objection notice) stating that the Commission is so satisfied.

Section 93ACA
Reasons for objection notice

(3) 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.
Conference before objection notice

(4) The Commission must comply with section 93A (conferences
about draft objection notices) before giving an objection notice.
Commission to seek additional information

(5) 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.
93ACA Imposing conditions relating to collective boycott conduct

(1) If:
notice that relates (wholly or partly) to collective boycott
conduct or proposed collective boycott conduct; and
(b) the Commission reasonably believes that:
(i) apart from this section, the Commission would have
grounds to give the corporation an objection notice
relating to the collective bargaining notice; and
(ii) those grounds would not exist if particular conditions
relating to the conduct or proposed conduct were
complied with;
the Commission may give the corporation a written notice
imposing those conditions.

Section 93AD
(2) The Commission must, in or with the notice under subsection (1),
give the corporation a written statement of its reasons for giving
the notice.
93AD When collective bargaining notice comes into force and ceases
to be in force
When collective bargaining notice comes into force

(1) A collective bargaining notice comes into force:
(a) at the end of the period which is:
(i) if the notice relates (wholly or partly) to collective
boycott conduct or proposed collective boycott
conduct—60 days or such other period as is prescribed
by the regulations; or
(ii) otherwise—14 days or such other 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
(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.
When collective bargaining notice ceases to be in force

(3) A collective bargaining notice ceases to be in force at the earliest
of the following times:

Section 93AD
(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:
(i) if subparagraph (ii) does not apply—the period of 3
years beginning on the day the corporation gave the
collective bargaining notice; or
(ii) the period determined under subsection (5).
Note 1: A collective bargaining notice is not in force, to the extent that it
relates to collective boycott conduct, while a stop notice is in force in
relation to the collective bargaining notice: see section 93AG.
Note 2: 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: the relevant day is:
1 If an application is not made to the the day the Commission gave the notice.
Tribunal for a review of the
Commission’s decision to give the
objection notice
2 If an application is made to the (a) if the review application is
Tribunal for a review of the withdrawn—the day of the withdrawal;
Commission’s decision to give the or
objection notice (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 93AE
Commission may determine expiry of collective bargaining notice

(5) If the Commission is satisfied that:
(a) the period provided for in subparagraph (3)(c)(i) is not
appropriate in all the circumstances; and
(b) another period, ending no later than the end of the period of
10 years beginning on the day the corporation gave the
collective bargaining notice, is appropriate in all the
circumstances;
the Commission may give to the corporation a written notice
determining that other period for the purposes of
subparagraph (3)(c)(ii).
the notice.
93AE Withdrawal of collective bargaining notice
Withdrawal by corporation
(1) 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.
Deemed withdrawal
(3) If:
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

Section 93AEA
(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.
93AEA Only 1 collective bargaining notice under

subsection 93AB(1A) may be given
If:
notice under subsection 93AB(1A) in relation to a contract or
(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.
93AF Only 1 collective bargaining notice under subsection 93AB(1)

may be given
If:
notice under subsection 93AB(1) in relation to a contract or
(b) either:

Section 93AG
(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.
93AG Stop notice for collective boycott conduct

(1) The Commission may give a corporation a written notice (a stop
notice) if:
(a) the corporation has given the Commission a collective
bargaining notice that relates (wholly or partly) to collective
boycott conduct; and
(b) the collective bargaining notice is in force under
section 93AD; and
(c) there has been a material change of circumstances since:
(i) if the Commission has previously given the corporation
notice under this subsection in relation to the collective
boycott conduct—that notice was given; or
(ii) in any other case—the collective bargaining notice
came into force; and
(d) the Commission reasonably believes that:
(i) the collective boycott conduct has resulted in serious
detriment to the public; or
(ii) serious detriment to the public is imminent as a result of
the collective boycott conduct.
(2) The Commission must, in or with the stop notice, give the
corporation a written statement of its reasons for giving the stop
notice.
(3) While the stop notice is in force, the collective bargaining notice is
taken, for the purposes of this Act, not to be in force under

Section 93AG
section 93AD to the extent that the collective bargaining notice

relates to collective boycott conduct.
(4) The stop notice comes into force at the time the Commission gives
the corporation the stop notice.
(5) The stop notice ceases to be in force at the earliest of the following
times:
(a) at the end of the period provided under subsection (6);
(b) if, before the end of that period, the Commission gives the
corporation an objection notice under subsection 93AC(1) or
(2) that relates to the collective bargaining notice—when that
objection notice is given;
(c) if, before the end of that period, the Commission gives the
corporation a notice under subsection 93ACA(1) imposing
conditions relating to conduct or proposed conduct that
relates to the collective bargaining notice—when that notice
under subsection 93ACA(1) is given;
(d) if the Commission withdraws the stop notice—when it is
withdrawn.
(6) For the purposes of paragraph (5)(a), the period is:
(a) the period of 90 days beginning on the day the Commission
gives the corporation the stop notice; or
(b) if the Commission extends it under subsection (7)—that
period as so extended.
(7) Before the end of the period referred to in paragraph (6)(a), the
Commission may extend the period by up to a further 90 days:
(a) if satisfied that in all the circumstances it is reasonable to do
so; and
(b) by giving written notice of the extended period to the
corporation.
the notice.

Section 93A
Subdivision C—Conferences
93A Commission to afford opportunity for conference before giving

notice
(1) Before giving a notice under subsection 93(3), (3A) or (3B) or
93AC(1), (2) or (2A) in relation to any conduct or proposed
conduct, the Commission shall prepare a draft notice in relation to
that conduct or proposed conduct.
(2) The Commission shall, by notice in writing sent to the corporation
or other person to whose conduct or proposed conduct 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), (3A) or (3B) or
93AC(1), (2) or (2A).
(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
(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), (3A) or (3B) or
93AC(1), (2) or (2A).
(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

Section 93A
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).
(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
(e) no other person is entitled to be present.
(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;

Section 93A
(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;
and any such certificate shall be received in all courts as prima
facie evidence of the matters certified.
(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.
(10A) After the conference, the Commission must decide whether or not
to give a notice under subsection 93(3), (3A) or (3B) or 93AC(1),
(2) or (2A).
(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.
(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.

Section 95
Subdivision D—Register of notifications
95 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
(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) or (c); and
(gb) details of the specification of any day by the Commission
under paragraph 93AD(3)(b).
(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

Section 95
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.
(3) Where such a request is made:
(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
(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.
(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.

Section 95
(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.
(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
(8) If a person requests in accordance with subsection (2) that a
document or 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.

Class exemptions Division 3
Section 95AA
Division 3—Class exemptions
95AA Commission may determine class exemptions

(1) The Commission may, by legislative instrument, determine that
one or more specified provisions of Part IV do not apply to a kind
of conduct specified in the determination, if the Commission is
satisfied in all the circumstances:
(a) that conduct of that kind would not have the effect, or would
not be likely to have the effect, of substantially lessening
competition; or
(b) that conduct of that kind would result, or would be likely to
result, in a benefit to the public that would outweigh the
detriment to the public that would result, or would be likely
to result, from conduct of that kind.
Note: For variation and revocation, see subsection 33(3) of the Acts
(2) The Commission may specify in the determination any one or more
of the following limitations:
(a) a limitation to persons of a specified kind;
(b) a limitation to circumstances of a specified kind;
(c) a limitation to conduct that complies with specified
conditions.
(3) The determination must specify the period, ending no later than the
end of the period of 10 years beginning on the day it is made, for
which it is to be in force.
(4) The determination:
(a) enters into force on the day it is made or on such later day (if
any) as is specified in the determination; and
(b) ceases to be in force at the earlier of the following times:
(i) if the determination is revoked—at the time the
revocation takes effect;

Division 3 Class exemptions
Section 95AB
(ii) at the end of the period specified under subsection (3) of

this section.
(5) While the determination remains in force, but subject to
section 95AB and any limitations specified under subsection (2),
the provisions of Part IV specified in the determination do not
apply in relation to conduct of the kind specified in the
determination.
(6) Despite subsection 44(1) of the Legislation Act 2003, section 42
(disallowance) of that Act applies to a legislative instrument made
under subsection (1) of this section.
95AB Commission may withdraw the benefit of class exemption in

particular case
(1) The Commission may give a person a written notice if:
(a) a determination in force under section 95AA specifies a kind
of conduct; and
(b) the Commission is satisfied that particular conduct of that
kind engaged in by the person:
(i) would have the effect, or would be likely to have the
effect, of substantially lessening competition; and
(ii) would not result or be likely to result in a benefit to the
public that would outweigh the detriment to the public
that would result, or would be likely to result, from the
conduct.
Note: For variation and revocation, see subsection 33(3) of the Acts
give the person a written statement of its reasons for giving the
notice.
(3) While a notice under subsection (1) is in force, the determination
does not apply to the conduct specified in the notice engaged in by
the person.
(4) The notice under subsection (1):

Class exemptions Division 3
Section 95AB
(a) comes into force at the time the Commission gives the person
the notice; and
(b) ceases to be in force at the earliest of the following times:
(i) if the Tribunal sets it aside under subsection 102(5G)—
at the end of the day on which the Tribunal sets it aside;
(ii) if the Commission revokes the notice—when it is
revoked;
(iii) the time the determination under section 95AA ceases to
be in force.

Part VIIA Prices surveillance
Section 95A
Part VIIA—Prices surveillance

95A Interpretation
applicable period, in relation to a locality notice, has the meaning
given by section 95ZB.
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:
(i) a law of the Commonwealth, other than the Northern
Territory (Self-Government) Act 1978 (or a law made
under, or continued in force by, that Act); or
(ii) another law as in force in Norfolk Island, the Territory
of Christmas Island or the Territory of Cocos (Keeling)
Islands; 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.

Prices surveillance Part VIIA
Section 95A
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.
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.

Section 95A
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

Section 95A
(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.
(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:

Section 95B
(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.
95B Exempt supplies

(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.
may by notice published in the Gazette vary or revoke a
declaration under subsection (1).
95C Application of Part

This Part applies in relation to the supply of goods or services:
(a) by a Commonwealth authority; or
(b) by a foreign corporation; or
(c) by a trading corporation in the course of, or for the purposes
of, its trading operations; or
(d) by a financial corporation in the course of, or for the
purposes of, its business operations; or
(e) by a body corporate incorporated in a Territory (other than
the Northern Territory); or
(f) in a Territory (other than the Northern Territory); or
(g) in the course of, or in connection with, trade or commerce:
(i) among the States; or
(ii) between a State and a Territory; or
(iii) between 2 Territories;

Section 95D
and not otherwise.
95D Crown to be bound

(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.
95E Object of this Part

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.
95F Simplified overview of this Part

(1) This Part deals with 3 main things.
Price inquiries
(2) 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.

Section 95F
Price notifications
(4) 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.
Price monitoring
(6) Third, this Part allows the Minister to direct the Commission to
undertake price monitoring.
(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.

Commission’s functions under this Part Division 2
Section 95G
Division 2—Commission’s functions under this Part
95G Commission’s functions under this Part

(1) The Commission’s functions under this Part are set out in this
section.
Price inquiries
(2) 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.
Price notifications
(5) 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.
Price monitoring
(6) 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.
General
(7) 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;

Division 2 Commission’s functions under this Part
Section 95G
(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.

Price inquiries Division 3
Section 95H
Division 3—Price inquiries

Subdivision A—Holding of inquiries
95H Price inquiries
Inquiries by Commission
(1) 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.
Inquiries by other bodies

(3) 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.

Division 3 Price inquiries
Section 95J
No inquiry in relation to exempt supply

(6) 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.
No inquiry in relation to a State or Territory authority

(7) 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.
95J Content of inquiry notices
Description of goods or services

(1) An inquiry notice must specify the description of the goods or
services in relation to which the inquiry is to be held.
Supply of goods or services by particular persons

(2) 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.
(4) The inquiry Chair must give the Minister notice in writing of the
determination.
No inquiry in relation to a State or Territory authority

(5) The inquiry body must not determine a State or Territory authority
as a person in relation to whom an inquiry will be held.

Section 95K
Ministerial directions
(6) 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.
95K Period for completing inquiry
Inquiry period
(1) 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.
Extensions
(3) 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.
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.

Section 95L
95L Notice of holding of inquiry
General notice
(1) An inquiry body must, by notifiable instrument, give notice of an
inquiry it is to hold.
Notice to particular person or persons

(3) 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.
Content of notice
(4) 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.
95M Notice of extension of period for completing inquiry

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.

Section 95N
95N Price restrictions

(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.
Offence: previous local supply

(2) 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.
Offence: no previous local supply

conditions; and
(b) the person has not supplied goods or services of that
similar terms and conditions in the period of 12 months
before the current supply, but has supplied goods or services

Section 95N
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
the notice.
Offence: no previous supply in Australia

conditions; and
(b) the person has not supplied goods or services of that
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
the notice.
Approval to increase prices

(5) 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;

Section 95P
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.
Consultation
(7) In an external inquiry, the Commission must consult the body
holding the inquiry before giving a notice under subsection (5).
Definition
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
95P Copies of report to be made available
Inquiry into supply of goods or services by particular persons

(1) 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.

Section 95Q
All inquiries
(3) 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.
95Q Notification of proposed prices after receipt of report

(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.
Price notification
(2) 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.
Offence
(3) A person commits an offence if the person contravenes
subsection (2).
Public notification
(4) 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.

Section 95R
Subdivision C—Procedure at inquiries
95R Public inquiries etc.
Public inquiries
(1) An inquiry body must hold an inquiry in public, unless the Minister
directs otherwise.
Taking of evidence
(2) 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.
Written submissions
(5) 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.

Section 95S
Procedure
(7) 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
(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).
95S Taking of evidence on oath or affirmation
Evidence on oath or affirmation

(1) 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.
Summons
(3) 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.

Section 95T
95T Failure of witness to attend

(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
(ii) in an external inquiry—the person presiding at the
inquiry.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
subsection (2) (see subsection 13.3(3) of the Criminal Code).
95U Refusal to be sworn or to answer question

(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.

Section 95V
excuse.
(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).
95V Protection of witnesses

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.
95W Allowances to witnesses

(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

Section 95W
(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
Section 95X
Division 4—Price notifications
95X Declarations by Minister or Commission
Notified goods or services

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.
Declared persons
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.
Variation or revocation
may by notice published in the Gazette vary or revoke a
declaration under this section.
95Y Declarations in relation to State or Territory authorities

(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

Price notifications Division 4
Section 95Y
(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.
Role of Council
(2) 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
(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.
Definitions

Section 95Z
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.
95Z Price restrictions
Offence: previous local supply

(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
conditions (the actual terms) at a particular price (the actual
price); and
(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.
Note: Subsection (4) contains a defence to this offence.
Offence: no previous local supply

or services; and

Section 95Z

price); and
(c) the person has not supplied goods or services of that
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.
Offence: no previous supply in Australia

or services; and
price); and
(c) the person has not supplied goods or services of that
terms and conditions in the period of 12 months before the
current supply; and
(d) the current supply is not an exempt supply.

Section 95Z
Defence
(4) Subsection (1), (2) or (3) does not apply if the following 4
requirements are satisfied.
Locality notice
(5) 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.
Response to locality notice

(6) 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

Section 95ZA
proposed terms at a price not exceeding the approved

price.
Actual terms
(7) The third requirement is that the actual terms are the same as, or
substantially similar to, the proposed terms.
Actual price
(8) 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.
95ZA Later notices modifying a locality notice

(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.
proposed price has the meaning given by subsection 95Z(5).
95ZB Applicable period in relation to a locality notice

(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.

Section 95ZC
(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.
(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.
95ZC Register of price notifications
Keeping of register
(1) The Commission must keep, at such place as it thinks fit, a register
for the purposes of this section.
Information on the register

(2) 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

Section 95ZC
(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.
Gazette notice
(3) 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.
Exclusion of confidential information

(4) 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.
(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.
Inspection of register
(7) 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.

Section 95ZD
Validity of acts done

(8) 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.
95ZD Delegation by Commission

(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.
price notification powers means the Commission’s powers under
paragraph 95Z(6)(b) or (c).

Price monitoring Division 5
Section 95ZE
Division 5—Price monitoring
95ZE Directions to monitor prices, costs and profits of an industry

(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.
Commercial confidentiality
(2) The Commission must, in preparing such a report, have regard to
the need for commercial confidentiality.
Public inspection
(3) The Commission must make copies of the report available for
public inspection as soon as practicable after it gives the Minister
the report.
95ZF Directions to monitor prices, costs and profits of a business

(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.
Commercial confidentiality
(2) The Commission must, in preparing such a report, have regard to
the need for commercial confidentiality.
Commission to send person a copy of the report

(3) The Commission must send the person a copy of the report on the
day it gives the Minister the report.

Division 5 Price monitoring
Section 95ZG
Public inspection
(4) 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.
95ZG Exceptions to price monitoring
Exempt supplies
(1) 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.
State or Territory authorities

(2) 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.

Section 95ZH
Division 6—Other provisions
95ZH Ministerial directions
Commission
(1) 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.
Other bodies
(3) 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.
95ZI Inquiries by an unincorporated body or a group of 2 or more

individuals
(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.

Section 95ZJ
95ZJ Withdrawal of notices
Commission
(1) 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).
(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.
Other bodies
(3) 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.
95ZK Power to obtain information or documents
Notice by Commission
(1) 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;

Section 95ZK
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.
Notice by other bodies

(2) 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

Section 95ZK
(d) to produce to the body, within the specified period and in the
specified manner, specified documents relating to the affairs
of the person.
Period specified in notice

(3) A period specified in a notice under subsection (1) or (2) must end
at least 14 days after the notice was given.
(3A) A member of the Commission may vary a notice under
subsection (1) to extend, or further extend, the period.
(3B) Subsection (3A) does not affect any operation that subsection 33(3)
of the Acts Interpretation Act 1901 has in relation to a notice under
subsection (1) of this section.
Offence: refusal or failure to comply with notice

(4) A person commits an offence if the person refuses or fails to
comply with a notice given to the person under this section.
excuse.
(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).

Section 95ZK
Offence: false or misleading declarations

(8) 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.
Making information or documents publicly available

(9) 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).
Delegation
(10) A member of the Commission may, by writing, delegate the
member’s powers under subsection (3A) to a member of the staff
of the Commission who is an SES employee or an acting SES
employee.

member.

Section 95ZL
95ZL Inspection of documents etc.
Members or staff members

(1) 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.
Associate members
(3) 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
(b) produced at that inquiry.
(4) An associate member of the Commission may also make copies of,
or take extracts from, those documents.
External inquiries
(5) 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.

Section 95ZM
95ZM Retention of documents

(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.
95ZN Confidential information

(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.
Commission or other body to take confidentiality steps

(2) If the Commission or other body, as the case may be:

Section 95ZO
(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.
Interpretation
(3) This section has effect despite anything in sections 95R and 95ZK.
95ZO Immunity
Members or associate members of the Commission

(1) 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.
Person presiding at an external inquiry

(2) 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.

Section 95ZP
95ZP Secrecy: members or staff members of the Commission etc.
Offence
(1) 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.
Courts
(2) 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.
Definitions
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) a member of the Commission or an associate member of the
Commission; or
(b) a member of the staff of the Commission; or

Section 95ZPA
(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.
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.
95ZPA Disclosure of protected information to the Energy

Department
(1) An authorised entrusted person may disclose protected information
to the Energy Department if the Chairperson is satisfied that the
information will enable or assist an officer of the Energy
Department to perform or exercise any function or power under the
Petroleum and Other Fuels Reporting Act 2017 or the Fuel
Security Act 2021.
(2) The Chairperson may, by writing, impose conditions to be
complied with in relation to protected information disclosed under
subsection (1).
(3) An instrument under subsection (2) is not a legislative instrument.

Section 95ZQ
Delegation
(4) The Chairperson may, by writing, delegate any or all of his or her
powers under subsection (1) or (2) to:
(a) another member of the Commission; or
(b) a member of the staff of the Commission who is an SES
employee or an acting SES employee.

Chairperson.
(6) This section has effect despite anything in section 95ZN.
Definitions
authorised entrusted person means an entrusted person authorised
by the Chairperson, in writing, for the purposes of this definition.
Energy Department means the Department administered by the
Minister administering the Petroleum and Other Fuels Reporting
Act 2017.
protected information has the same meaning as in section 95ZP.
95ZQ Secrecy: persons involved in inquiries by bodies other than

the Commission
Offence
(1) An external person commits an offence if:
(a) the person:

Section 95ZQ
(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.
Courts
(2) 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.
Definitions
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

Section 95ZQ
(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
(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.

Part VIII Resale price maintenance
Section 96
Part VIII—Resale price maintenance
96 Acts constituting engaging in resale price maintenance

(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;
(c) 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

Resale price maintenance Part VIII
Section 96
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
(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
(f) 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.
(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

Section 96
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
are not to be displayed for sale; and
(c) the offering of goods for sale at a price less than a price
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.
(8) Subsection (1) does not apply with respect to any act referred to in
a paragraph of subsection (3) if the supplier and the second person
referred to in that paragraph are bodies corporate that are related to
each other.

Section 96A
96A Resale price maintenance in relation to services

(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.
97 Recommended prices
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.”.
98 Withholding the supply of goods

(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:

Section 99
(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.
99 Statements as to the minimum price of goods

(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

Section 100
(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.
100 Evidentiary provisions

(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);
(b) during a period ending immediately before the time when the
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
(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

Section 100
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).

Review by Tribunal of Determinations of Commission Part IX
Applications for review Division 1
Section 101
Part IX—Review by Tribunal of Determinations of

Commission
Division 1—Applications for review
101 Applications for review

(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.
(1AAA) Subsection (1) does not apply to a determination under
subsection 89(1A).
(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.
(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

Part IX Review by Tribunal of Determinations of Commission
Division 1 Applications for review
Section 101
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(7).
(1B) A presidential member may, on the application of a person
concerned:
(a) in an application for an overseas merger authorisation; 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.
(1C) The regulations may make it a requirement that a person applying
under subsection (1) for review of a determination relating to a
merger authorisation give an undertaking under section 87B that
the person will not make the acquisition to which the authorisation
relates while the Tribunal is considering the application.
(2) A review by the Tribunal is a re-hearing of the matter, unless it is a
review of a determination by the Commission:
(a) in relation to an application for a merger authorisation or a
minor variation of a merger authorisation; or
(b) in relation to the revocation of a merger authorisation, or the
another merger authorisation.
(3) Subsections 90(7), 91A(4) and (4A), 91B(5) and 91C(7) apply in
relation to the Tribunal in like manner as they apply in relation to
the Commission.

Section 101A
101A Application for review of notices under Division 2 of Part VII

A person dissatisfied with the giving of a notice by the
Commission under subsection 93(3), (3A) or (3B), 93AAA(1),
93AC(1), (2) or (2A), 93ACA(1), 93AD(5) or 93AG(7) 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.
101B Application for review of notice under section 95AB

(1) A person dissatisfied with the giving of a notice under
section 95AB 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.
(2) If the person is the person to whom the notice was given or the
Tribunal is satisfied that the person has a sufficient interest, the
Tribunal must review the giving of the notice.
102 Functions and powers of Tribunal

(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
revocation of an authorization; or
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.

Section 102
Note: Subsections (9) and (10) contain limitations in relation to

determinations relating to merger authorisations.
(1AA) If a person applies to the Tribunal for review of a determination of

the Commission relating to:
(a) the grant of a merger authorisation (a domestic merger
authorisation) that is not an overseas merger authorisation;
or
(b) the minor variation, or the revocation, of a domestic merger
authorisation; or
(c) the revocation of a domestic merger authorisation and the
substitution of another domestic merger authorisation;
the Tribunal must make its determination on the review within the
period applying under subsection (1AC) (the relevant period).
(1AB) If the Tribunal has not made its determination on the review of a
determination of the Commission mentioned in subsection (1AA)
within the relevant period, the Tribunal is taken to have made a
determination affirming the Commission’s determination.
(1AC) The period applying under this subsection is as follows:
(a) unless paragraph (b) or (c) applies—90 days;
(b) if the Tribunal allows new information, documents or
evidence under subsection (9), and paragraph (c) does not
apply—120 days;
(c) if an extended period is determined under
subsection (1AD)—that extended period;
beginning on the day the Tribunal receives the application for
review.
(1AD) Before the end of the period (the initial period) otherwise applying
under paragraph (1AC)(a) or (b) for the review, the Tribunal may
determine in writing that:
(a) the matter cannot be dealt with properly within the initial
period, either because of its complexity or because of other
special circumstances; and

Section 102
(b) an extended period applies for the review, which consists of

the initial period and a further specified period of not more
than 90 days.
The Tribunal must, before the end of the initial period, notify the
applicant and the Commission of any determination under this
subsection.
(1A) If a person applies to the Tribunal for review of a determination of
the Commission relating to:
(a) the grant of an overseas merger authorisation; or
(b) the minor variation, or the revocation, of an overseas merger
authorisation; or
(c) the revocation of an overseas merger authorisation and the
substitution of another overseas merger authorisation;
the Tribunal must make its determination on the review within 60
days after receiving the application for review.
(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.
(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.
(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
revocation of an authorization; or
authorization;
is, for the purposes of this Act other than this Part, to be taken to be
a determination of the Commission.

Section 102
(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 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
(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(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.
(5AAA) Upon a review of the giving of a notice by the Commission under
subsection 93(3B):
that the corporation or other person on whom the conditions
relating to the conduct or proposed conduct have been
imposed has not failed to comply with those conditions—the
Tribunal must make a determination setting aside the notice;
or

Section 102
(5AAB) Upon a review of the giving of a notice by the Commission under
subsection 93AAA(1):
that:
(i) apart from section 93AAA, the Commission would not
have had grounds referred to in
subparagraph 93AAA(1)(b)(i); or
(ii) compliance with the conditions imposed by the notice
would not ensure those grounds would not exist;
notice; or
(5AA) Upon a review of the giving of a notice by the Commission under
subsection 93AC(1):
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
(5AB) Upon a review of the giving of a notice by the Commission under
subsection 93AC(2):
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

Section 102
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;
notice; or
(5ABA) Upon a review of the giving of a notice by the Commission under
subsection 93AC(2A):
that the corporation on whom the conditions relating to the
conduct or proposed conduct have been imposed has not
failed to comply with those conditions—the Tribunal must
make a determination setting aside the notice; or
(5AC) If the Tribunal sets aside a notice (the objection notice) given by
the Commission under subsection 93AC(1), (2) or (2A), 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

Section 102
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.
(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.
(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).
(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.
(5D) Upon a review of the giving of a notice by the Commission under
subsection 93ACA(1):
that:
(i) apart from section 93ACA, the Commission would not
have had grounds referred to in
subparagraph 93ACA(1)(b)(i); or
(ii) compliance with the conditions imposed by the notice
would not ensure those grounds would not exist;

Section 102

notice; or
(5E) Upon a review of the giving of a notice by the Commission under
subsection 93AD(5):
that:
(i) the period provided for in subparagraph 93AD(3)(c)(i)
in relation to the relevant collective bargaining notice is
appropriate in all the circumstances; or
(ii) the other period determined by the Commission under
subsection 93AD(5) is not appropriate in all the
circumstances;
notice under subsection 93AD(5); or
(5F) Upon a review of the giving of a notice by the Commission under
subsection 93AG(7) extending a period for a further period:
that in all the circumstances it is not reasonable to extend the
period for the further period, the Tribunal must make a
determination setting aside the notice; or
(5G) Upon a review of the giving of a notice under section 95AB:
that conduct of the kind specified in the notice:
(i) would not have the effect, or would not be likely to have
the effect, of substantially lessening competition; or

Section 102
(ii) would result, or would be likely to result, in a benefit to

the public that would outweigh the detriment to the
public that would result, or would be likely to result,
from conduct of that kind;
notice under section 95AB; or
(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.
(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.
(8) Subsections (9) and (10) apply to a review of a determination of
the Commission in relation to:
(a) an application for a merger authorisation; or
(b) an application for a minor variation of a merger
authorisation; or
revocation of a merger authorisation; or
another merger authorisation.
(9) For the purposes of the review, the Tribunal may allow a person to
provide new information, documents or evidence that the Tribunal
is satisfied was not in existence at the time the Commission made
the determination.

Section 102
(10) Despite subsection (1), the Tribunal must not, for the purposes of
the review, have regard to any information, documents or evidence
other than:
(a) information that was referred to in the Commission’s reasons
for making the determination; and
(b) any information or report given to the Tribunal under
subsection (6); and
(c) the information, documents or evidence referred to in
subsection (7); and
(d) information given to the Tribunal as a result of the Tribunal
seeking such relevant information, and consulting with such
persons, as it considers reasonable and appropriate for the
sole purpose of clarifying the information, documents or
evidence referred to in subsection (7); and
(e) any information, documents or evidence referred to in
subsection (9).

Procedure and Evidence Division 2
Section 103
Division 2—Procedure and Evidence
103 Procedure generally

(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.
(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.
104 Regulations as to certain matters

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
(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

Division 2 Procedure and Evidence
Section 105
(b) with respect to the representation in any such proceedings of

persons having a common interest in the proceedings.
105 Power to take evidence on oath

(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.
106 Hearings to be in public except in special circumstances

(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.
107 Evidence in form of written statement

The Tribunal may permit a person appearing as a witness before
the Tribunal to give evidence by tendering, and, if the Tribunal

Procedure and Evidence Division 2
Section 108
thinks fit, verifying by oath or affirmation, a written statement,

which shall be filed with the Registrar.
108 Taking of evidence by single member

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:
(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.
109 Participants in proceedings before Tribunal

(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.
(1A) A person to whom a notice was given by the Commission under
subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A) is entitled
to participate in any proceedings before the Tribunal instituted by
another person in relation to that notice.
(2) The Tribunal may, upon such conditions as it thinks fit, permit a
person to intervene in proceedings before the Tribunal.
110 Representation
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;

Division 2 Procedure and Evidence
Section 110
(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.

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Australian Competition Act

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Competition and Consumer Act 2010

No. 51, 1974

Compilation No. 139

Compilation date: 5 October 2021

Includes amendments up to: Act No. 111, 2021

Registered: 10 November 2021

This compilation is in 3 volumes

Volume 1: sections 1–110

This compilation includes commenced amendments made by Act No. 135,

Prepared by the Office of Parliamentary Counsel, Canberra

Authorised Version C2021C00528 registered 10/11/2021

Authorised Version C2021C00528 registered 10/11/2021

Part II—The Australian Competition and Consumer

Competition and Consumer Act 2010 i

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Part IIA—The National Competition Council 52

ii Competition and Consumer Act 2010

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Part III—The Australian Competition Tribunal 61

Part IIIAA—The Australian Energy Regulator (AER) 69

Competition and Consumer Act 2010 iii

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iv Competition and Consumer Act 2010

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Part IIIAB—Application of the finance law 98

Part IIIA—Access to services 99

Competition and Consumer Act 2010 v

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vi Competition and Consumer Act 2010

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Competition and Consumer Act 2010 vii

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viii Competition and Consumer Act 2010

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Competition and Consumer Act 2010 ix

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x Competition and Consumer Act 2010

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Part IV—Restrictive trade practices 243

Competition and Consumer Act 2010 xi

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xii Competition and Consumer Act 2010

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Part IVB—Industry codes 302

Competition and Consumer Act 2010 xiii

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Part IVBA—News media and digital platforms mandatory

xiv Competition and Consumer Act 2010

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