National Competition Council
Part IIA of the CCA establishes the NCC and sets out its function.
The Council was introduced as a result of the Hilmer Reforms in 1995. It is composed of a President and three other members, having the primary roles of advising about competition law matters and making recommendations in relation to access declarations.
Select provisions only - see CCA for all provisions
See also agreements and related documents on National Competition Policy at the new NCP website
Part IIA - The National Competition Council
In this Part:
Gas Pipelines Access Law has the same meaning as in the Gas Pipelines Access (Commonwealth) Act 1998.
Gas Pipelines Access (Western Australia) Law has the same meaning as in the Gas Pipelines Access (Western Australia) Act 1998 of Western Australia.
State/Territory gas law means:
(a) the Gas Pipelines Access Law, as it applies as a law of South Australia; or
(b) if an Act of:
(i) another State; or
(ii) the Australian Capital Territory; or
(iii) the Northern Territory;
applies the Gas Pipelines Access Law as a law of that other State or as a law of that Territory—the Gas Pipelines Access Law as so applying; or
(c) the Gas Pipelines Access (Western Australia) Law.
Establishment of Council
The National Competition Council is established by this section.
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.
(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 gas law.
Note: Section 29BA provides that a State/Territory gas 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.
Commonwealth consent to conferral of functions etc. on Council
(1) A State/Territory gas 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 gas 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 gas 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.
How Duty is Imposed
(1) This section applies if a State/Territory gas 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:
(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.
When a State/Territory gas law imposes a duty
For the purposes of sections 29BA and 29BB, a State/Territory gas 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.
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.
Terms and conditions of office
(1) A Councillor may be appointed to hold office on either a full‑time or a part-time basis.
(2) A Councillor holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as the Governor‑General determines.
Acting Council President
(1) 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.
(2) Anything done by or in relation to a person purporting to act under this section is not invalid merely because:
(a) the occasion for appointment had not arisen;
(b) there was a defect or irregularity in the appointment;
(c) the appointment had ceased to have effect;
(d) the occasion to act had not arisen or had ceased.
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.
Leave of absence
Termination of appointment of Councillors
(1) The Governor-General may terminate the appointment of a Councillor for misbehaviour or for physical or mental incapacity.
Resignation of Councillors
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
(b) if the parties to the Agreement are evenly divided on the question of agreeing to a program—the Commonwealth.
Disclosure of interests by Councillors
(1) If a Councillor (except the Council President) is taking part, or is to take part, in the Council’s consideration of a matter and the Councillor has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions relating to the matter:
(a) the Councillor must disclose the interest to the Council President; and
(b) the Councillor must not take part, or continue to take part, in the consideration of the matter if:
(i) all of the persons concerned in the matter do not consent to the Councillor taking part in the consideration of the matter; or
(ii) the Council President gives a direction to the member under paragraph (2)(b).
(2) If the Council President becomes aware that a Councillor is taking part, or is to take part, in the Council’s consideration of a matter and that the Councillor has such an interest relating to the matter:
(a) the Council President must cause the Councillor’s interest to be disclosed to the persons concerned in the matter; or
(b) if the Council President considers that the Councillor should not take part or continue to take part in the consideration of the matter—the Council President must direct the Councillor accordingly.
(3) The Council President must give the Minister written notice of all pecuniary interests that the Council President has or acquires in any business carried on in Australia or in any body corporate carrying on such business.
(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.
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.
(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.