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Legislation

Competition and Consumer Act 2010 (Cth)

Consolidated and annotated


Harper reforms: As a result of recommendations by the Harper Panel in 2015, significant changes to the Act were passed and commence on 6 November 2017. The site is being progressively updated to reflect these changes.

For a summary of the changes see my blog post or for more details see:

 

Part I - Preliminary

 

Part II - The Australian Competition and Consumer Commission

 

Part IIA - The National Competition Council

 

Part III - The Australian Competition Tribunal

 

Part IIIAA - The Australian Energy Regulator (AER)

Division 1 Preliminary

44AB Definitions

44AC This Part binds the Crown

44AD Extra-territorial operation

Division 2 Establishment of the AER

44AE Establishment of the AER

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

44AG Constitution of the AER

Division 3 Functions and powers of the AER

44AH Commonwealth functions

44AI Commonwealth consent to conferral of functions etc. on AER

44AJ How duty is imposed

44AK When a State/Territory energy law imposes a duty

44AL Powers of the AER

Division 4 - Administrative provisions relating to the AER

Subdivision A Appointment etc. of members

44AM Appointment of Commonwealth AER member

44AN Membership of AER and Commission

44AO Acting appointment of Commonwealth AER member

44AP Appointment of State/Territory AER members

44AQ Acting appointment of State/Territory AER member

44AR AER Chair

44AS Acting AER Chair

44AT Remuneration of AER members

44AU Additional remuneration of AER Chair

44AV Leave of absence

44AW Other terms and conditions

44AX Outside employment

44AY Disclosure of interests

44AZ Resignation

44AAB Termination of appointment

Subdivision B - Staff etc. to assist the AER

44AAC Staff etc. to assist the AER

Subdivision C - Meetings of the AER etc.

44AAD Meetings

44AAE Resolutions without meetings

44AAEA Arbitration

Subdivision D - Miscellaneous

44AAF Confidentiality

44AAG Federal Court may make certain orders

44AAGA Federal Court may order disconnection if an event specified in the National Electricity Rules occurs

44AAH Delegation by the AER

44AAI Fees

44AAJ Annual report

44AAK Regulations may deal with transitional matters

Part IIIAB - Application of the finance law

44AAL Application of the finance law

Part IIIA - Access to Services

Division 1—Preliminary

AlertNote that some significant changes were made to Part IIIA of the Act as part of the Harper Reforms and the relevant provisions have not yet been updated.

44AA Objects of Part

Amended by Harper Reforms44B Definitions

44C How this Part applies to partnerships and joint ventures

Amended by Harper Reforms44CA Meaning of declaration criteria

Amended by Harper Reforms44D Meaning of designated Minister

44DA The principles in the Competition Principles Agreement have status as guidelines

44E This Part binds the Crown

Division 2 - Declared services

Division 2AA - Services that are ineligible to be declared

Division 2A - Effective access regimes

Subdivision A - Recommendation by Council

44M Recommendation for a Ministerial decision on effectiveness of access regime

44MA Council may request information

Subdivision B - Decision by Commonwealth Minister

44N Ministerial decision on effectiveness of access regime

Subdivision C - Extensions of Commonwealth Minister’s decision

44NA Recommendation by Council

44NAA Council may request information

44NB Decision by the Commonwealth Minister

Amended by Harper ReformsSubdivision CA - Revocation of Commonwealth Minister's decision

Amended by Harper Reforms44NBA Recommendation by Council

Amended by Harper Reforms44NBB Council may request information

Amended by Harper Reforms44NBC Decision by Commonwealth Minister

Subdivision D - Procedural provisions

Amended by Harper Reforms44NC Time limit for Council recommendations

Amended by Harper Reforms44NE Council may invite public submissions

Amended by Harper Reforms44NF Publication - Council

Amended by Harper Reforms44NG Publication - Commonwealth Minister

Subdivision E - Review of decisions

Amended by Harper Reforms44O Review of Ministerial decision on effectiveness of access regime

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

Division 2B - Competitive tender processes for government owned facilities

Division 2C - Register of decisions and declarations

44Q Register of decisions, declarations and ineligibility decisions

Division 3 - Access to declared services

Subdivision A - Scope of Division

44R Constitutional limits on operation of this Division

Subdivision B - Notification of access disputes

44S Notification of access disputes

44T Withdrawal of notifications

Subdivision C - Arbitration of access disputes

44U Parties to the arbitration

Amended by Harper Reforms44V Determination by Commission

Amended by Harper Reforms44W Restrictions on access determinations

Amended by Harper Reforms44X Matters that the Commission must take into account

44XA Time limit for Commission’s final determination

44Y Commission may terminate arbitration in certain cases

44YA Commission must terminate arbitration if declaration varied or set aside by Tribunal

Subdivision D - Procedure in arbitrations

44Z Constitution of Commission for conduct of arbitration

44ZA Member of the Commission presiding at an arbitration

44ZB Reconstitution of Commission

44ZC Determination of questions

44ZD Hearing to be in private

44ZE Right to representation

44ZF Procedure of Commission

44ZG Particular powers of Commission

44ZH Power to take evidence on oath or affirmation

44ZI Failing to attend as a witness

44ZJ Failing to answer questions etc.

44ZK Intimidation etc.

44ZL Party may request Commission to treat material as confidential

44ZM Sections 18 and 19 do not apply to the Commission in an arbitration

44ZN Parties to pay costs of an arbitration

44ZNA Joint arbitration hearings

Subdivision DA - Arbitration reports

44ZNB Arbitration reports

Subdivision E - Effect of determinations

44ZO Operation of final determinations

44ZOA Effect and duration of interim determinations

Subdivision F - Review of final determinations

44ZP Review by Tribunal

44ZQ Provisions that do not apply in relation to a Tribunal review

44ZR Appeals to Federal Court from determinations of the Tribunal

44ZS Operation and implementation of a determination that is subject to appeal

44ZT Transmission of documents

Subdivision G - Variation and revocation of determinations

44ZU Variation of final determinations

44ZUA Variation and revocation of interim determinations

Division 4 - Registered contracts for access to declared services

44ZV Constitutional limits on operation of this Division

44ZW Registration of contract

44ZX Review of decision not to register contract

44ZY Effect of registration of contract

Division 5 - Hindering access to declared services

44ZZ Prohibition on hindering access to declared services

Division 6 - Access undertakings and access codes for services

Subdivision A - Giving of access undertakings and access codes

44ZZA Access undertakings by providers

44ZZAAA Proposed amendments to access undertakings

44ZZAAB Access undertakings containing fixed principles

44ZZAA Access codes prepared by industry bodies

44ZZAB Commission may rely on industry body consultations

Subdivision B - Effect of access undertakings and access codes

44ZZBA When access undertakings and access codes come into operation

Subdivision C - Extensions of access undertakings and access codes

44ZZBB Extensions of access undertakings and access codes

Subdivision D - Procedural provisions

44ZZBC Time limit for Commission decisions

44ZZBCA Commission may request information

44ZZBD Commission may invite public submissions

44ZZBE Commission must publish its decisions

Subdivision E - Review of decisions

44ZZBF Review of decisions

Subdivision F - Register of access undertakings and access codes

44ZZC Register of access undertakings and access codes

Division 6A - Pricing principles for access disputes and access undertakings or codes

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

Division 6B - Overlap among determinations, registered contracts, access undertakings and Tribunal review

44ZZCB Deferring access disputes or access undertakings

44ZZCBA Deferral of arbitration if review is underway

44ZZCC Overlap between determinations and access undertakings

44ZZCD Overlap between registered contracts and access undertakings

Division 7 - Enforcement and remedies

44ZZD Enforcement of determinations

44ZZE Enforcement of prohibition on hindering access

44ZZF Consent injunctions

44ZZG Interim injunctions

44ZZH Factors relevant to granting a restraining injunction

44ZZI Factors relevant to granting a mandatory injunction

44ZZJ Enforcement of access undertakings

44ZZK Discharge or variation of injunction or other order

Division 8 - Miscellaneous

44ZZL Register of determinations

44ZZM Commonwealth consent to conferral of functions etc. on the Commission or Tribunal by State or Territory laws

44ZZMA How duty is imposed

44ZZMB When a law of a State or Territory imposes a duty

44ZZN Compensation for acquisition of property

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

44ZZO Conduct by directors, servants or agents

Amended by Harper Reforms44ZZOAAA Information to be given to Tribunal

44ZZOAA Tribunal only to consider particular material

44ZZOA Time limit for Tribunal decisions

44ZZP Regulations about review by the Tribunal

44ZZQ Regulations about fees for inspection etc. of registers

44ZZR Procedure of the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law

 

Part IV - Restrictive Trade Practices

Division 1 - Cartel conduct

Amended by Harper ReformsNote: Provisions in Division 1 were renumbered as part of the Harper Reforms and some provisions were amended (these feature the Harpered symbol). All provisions in this Division have been updated to reflect these changes.

Subdivision A - Introduction

45AA Simplified outline (previously 44ZZRA)

45AB Definitions (previously 44ZZRB)

45AC Extended meaning of party (previously 44ZZRC)

Amended by Harper Reforms45AD Cartel provisions (previously 44ZZRD)

45AE Meaning of expressions in other provisions of this Act (previously 44ZZRE)

Subdivision B - Offences etc.

45AF Making a contract etc. containing a cartel provision (previously 44ZZRF)

45AG Giving effect to a cartel provision (previously 44ZZRG)

45AH Determining guilt (previously 44ZZRH)

45AI Court may make related civil orders (previously 44ZZRI)

Subdivision C - Civil penalty provisions

45AJ Making a contract etc. containing a cartel provision (previously 44ZZRJ)

45AK Giving effect to a cartel provision (previously 44ZZRK)

Subdivision D - Exceptions

45AL Conduct notified (previously 44ZZRL)

45AM Cartel provision subject to grant of authorisation (previously 44ZZRM)

45AN Contracts, arrangements or understandings between related bodies corporate (previously 44ZZRN)

Amended by Harper Reforms45AO Joint ventures—prosecution (previously 44ZZRK)

Amended by Harper Reforms45AP Joint ventures—civil penalty proceedings (previously 44ZZRK)

Amended by Harper Reforms44ZZRQ Covenants affecting competition (repealed)

Amended by Harper Reforms45AQ Resale price maintenance (previously 44ZZRR)

Amended by Harper Reforms45AR Exclusive dealing (previously 44ZZRS)

Amended by Harper Reforms45AS Dual listed company arrangement (previously 44ZZRT)

45AT Acquisition of shares or assets (previously 44ZZRU)

45AU Collective acquisition of goods or services by the parties to a contract, arrangement or understanding (previously 44ZZRV)

Division 1A - Anti-competitive disclosure of pricing and other information (repealed)

Division 2 - Other provisions

 

Part IVA - Unconscionable Conduct [repealed 1 January 2011]

[Note, this part related to consumer protection, not competition law; it was repealed with the introduction of the Australian Consumer Law on 1 January 2011)]

 

Part IVB - Industry Codes

[Note, this part relates to consumer protection, not competition law]

 

Part IVC - Payment surcharges

Division 1 - Preliminary

55 Object of this Part

55A Definitions

Division 2 - Limit on payment surcharges

55B Payment surcharges must not be excessive

Division 3 - Information about payment surcharges

55C Surcharge information notices

55D Extending periods for complying with notices

55E Participant must comply with notice

Division 4 - Infringement notices

55F Purpose and effect of this Division

55G Issuing an infringement notice

55H Matters to be included in an infringement notice

55J Amount of penalty

55K Effect of compliance with an infringement notice

55L Effect of failure to comply with an infringement notice

55M Infringement notice compliance period for infringement notice

55N Withdrawal of an infringement notice

 

Part V - Carbon tax price reduction obligation

[Note, this part previously related to consumer protection. It was repealed on 1 January 2011 with the introduction of the Australian Consumer Law (now contained in Schedule 2 of the Act. In 2014 a new Part V was inserted by the Clean Energy Legislation (Carbon Tax Repeal) Bill 2014 dealing with Carbon tax price reduction obligations]

Division 1 - Preliminary

60 Simplified outline of this Part

60AA Objects etc.

60A Definitions

60B Regulated goods

Division 2 - Carbon tax price reduction obligation

60C Price exploitation in relation to the carbon tax repeal

60CA Failure to pass on cost savings - 250% penalty

60D Notice to entity that is considered to have engaged in price exploitation in relation to the carbon tax repeal

60E Commission may issue notice to aid prevention of price exploitation in relation to the carbon tax repeal

60F Acquisition of property

Division 2A - Carbon tax removal substantiation notices

60FA Carbon tax removal substantiation notices

60FB Extending periods for complying with carbon tax removal substantiation notices

60FC Compliance with carbon tax removal substantiation notices

Division 2B - Carbon tax removal substantiation statements

60FD Carbon tax removal substantiation statements

Division 2C - Statements for customers

60FE Statements for customers

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.

60H Information gathering powers

60J Reporting

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

Division 5 - Infringement notices

60L Issuing an infringement notice

60M Effect of compliance with an infringement notice

60N Effect of failure to comply with an infringement notice

60P Infringement notice compliance period for infringement notice

60Q Withdrawal of an infringement notice

60R Effect of this Division

 

Part VA - Liability of Manufacturers and Importers for Defective Goods [repealed 1 January 2011]

[Note, this part related to consumer protection, not competition law; it was repealed with the introduction of the Australian Consumer Law on 1 January 2011)]

 

Part VB - Price exploitation in relation to A New Tax System [repealed]

[Note, this part related to consumer protection, not competition law]

 

Part VC - Offences [repealed 1 January 2011]

[Note, this part related to consumer protection, not competition law; it was repealed with the introduction of the Australian Consumer Law on 1 January 2011)]

 

Part VI - Enforcement and Remedies

Amended by Harper Reforms75B Interpretation

Amended by Harper Reforms76 Pecuniary Penalties

Amended by Harper Reforms76A Defence to proceedings under section 76 relating to a contravention of section 92

Amended by Harper Reforms76B What happens if substantially the same conduct is a contravention of Part IV or or 92 and an offence?

Amended by Harper Reforms76C Defence to proceedings relating to exclusionary provisions (repealed)

77 Civil action for recovery of pecuniary penalties

77A Indemnification of officers

77B Certain indemnities not authorised and certain documents void

77C Application of section 77A to a person other than a body corporate

78 Criminal proceedings not to be brought for contraventions of Part IV or V

Amended by Harper Reforms79 Offences against section 44ZZRF or 44ZZRG

79A Enforcement and recovery of certain fines

79B Preference must be given to compensation for victims

80 Injunctions

80A Price exploitation in relation to the carbon tax repeal - orders limiting prices or requiring refunds of money

80AB Stay of injunctions

Amended by Harper Reforms80AC Injunctions to prevent mergers if authorisation granted on the basis of false or misleading information

81 Divestiture where merger contravenes section 50 or 50A

Amended by Harper Reforms81A Divestiture where merger done under authorisation granted on false etc. information

82 Actions for damages

Amended by Harper Reforms83 Finding in proceedings to be evidence

Amended by Harper Reforms84 Conduct by directors, employees or agents

85 Defences

86 Jurisdiction of courts

86AA Conferring jurisdiction on the Federal Circuit Court

86A Transfer of matters

Amended by Harper Reforms86C Non-punitive orders

86D Punitive orders - adverse publicity

86E Order disqualifying a person from managing corporations

86F Privilege against exposure to penalty - disqualification from managing corporations

Amended by Harper Reforms87 Other orders

87AA Special provision relating to Court's exercise of powers under this Part in relation to boycott conduct

Amended by Harper Reforms87B Enforcement of undertakings

87C Enforcement of undertakings - Secretary to the Department

87CA Intervention by Commission

 

Part VIA - Proportionate liability for misleading and deceptive conduct

[Note, this part relates to consumer protection, not competition law]

 

Part VIB - Claims for damages or compensation for death or personal injury

[Note, this part relates to consumer protection, not competition law]

 

Part VII - Authorisations and notifications

Division 1 - Authorisations

Division 2 - Notifications

Division 3 - Class exemptions

AlertNote: This whole division was repealed and substituted with new provisions as part of the Harper Reforms. It was previously the division associated with 'Merger clearances and authorisations'. Provision titles have been updated here but are not yet reflected on individual section pages.

Amended by Harper Reforms95AA Commission may determine class exemptions

Amended by Harper Reforms95AB Commission may withdraw the benefit of class exemption in particular case

 

Part VIIA - Prices Surveillance

Division 1 - Preliminary

95A Interpretation

95B Exempt supplies

95C Application of Part

95D Crown to be bound

95E Object of this Part

95F Simplified overview of this Part

Division 2 - Commission’s functions under this Part

95G Commission’s functions under this Part

Division 3 - Price inquiries

Subdivision A - Holding of inquiries

95H Price inquiries

95J Content of inquiry notices

95K Period for completing inquiry

95L Notice of holding of inquiry

95M Notice of extension of period for completing inquiry

95N Price restrictions

Subdivision B - Reports on inquiries

95P Copies of report to be made available

95Q Notification of proposed prices after receipt of report

Subdivision C - Procedure at inquiries

95R Public inquiries etc.

95S Taking of evidence on oath or affirmation

95T Failure of witness to attend

95U Refusal to be sworn or to answer question

95V Protection of witnesses

95W Allowances to witnesses

Division 4 - Price notifications

95X Declarations by Minister or Commission

95Y Declarations in relation to State or Territory authorities

95Z Price restrictions

95ZA Later notices modifying a locality notice

95ZB Applicable period in relation to a locality notice

95ZC Register of price notifications

95ZD Delegation by Commission

Division 5 - Price monitoring

95ZE Directions to monitor prices, costs and profits of an industry

95ZF Directions to monitor prices, costs and profits of a business

95ZG Exceptions to price monitoring

Division 6 - Other provisions

95ZH Ministerial directions

95ZI Inquiries by an unincorporated body or a group of 2 or more individuals

95ZJ Withdrawal of notices

95ZK Power to obtain information or documents

95ZL Inspection of documents etc.

95ZM Retention of documents

95ZN Confidential information

95ZO Immunity

95ZP Secrecy: members or staff members of the Commission etc.

95ZQ Secrecy: persons involved in inquiries by bodies other than the Commission

 

Part VIII - Resale Price Maintenance

 

Part IX - Review by Tribunal of Determinations of Commission

Division 1 - Applications for review

Amended by Harper Reforms101 Applications for review

Amended by Harper Reforms101A Application for review of notices under Division 2 of Part VII

Amended by Harper Reforms101B Application for review of notice under section 95AB

Amended by Harper Reforms102 Functions and powers of Tribunal

Division 2 - Procedure and Evidence

Amended by Harper Reforms102A Definition (repealed)

103 Procedure generally

104 Regulations as to certain matters

105 Power to take evidence on oath

106 Hearings to be in public except in special circumstances

107 Evidence in form of written statement

108 Taking of evidence by single member

Amended by Harper Reforms109 Participants in proceedings before Tribunal

110 Representation

Division 3 - Review of Commission’s determinations on merger clearances (repealed)

Amended by Harper ReformsRepealed111 Applications for review (repealed)

Amended by Harper Reforms112 Tribunal to notify Commission (repealed)

Amended by Harper Reforms113 Commission to give material to Tribunal (repealed)

Amended by Harper Reforms114 Tribunal may consult etc. to clarify information (repealed)

Amended by Harper Reforms115 Commission to assist Tribunal (repealed)

Amended by Harper Reforms116 Tribunal only to consider material before the Commission (repealed)

Amended by Harper Reforms117 Tribunal to make decision on review (repealed)

Amended by Harper Reforms118 Time limits for making review decision (repealed)

Amended by Harper Reforms119 Tribunal’s decision taken to be Commission’s (repealed)

 

Part X - International Liner Cargo Shipping

Division 1 - Preliminary

10.01 Objects of Part

10.01A Simplified outline

10.02 Interpretation

10.02A Inland terminals

10.03 Designated shipper bodies

Division 2 - Additional restrictive trade practice provisions applying to ocean carriers

10.04 Application of section 46 in relation to conference agreements

Division 3 - Minimum standards for conference agreements

10.06 Application of Australian law to outwards conference agreements and withdrawal from agreements

10.07 Minimum levels of shipping services to be specified in conference agreements

Amended by Harper Reforms10.08 Conference agreements may include only certain restrictive trade practice provisions

10.09 Where may consequences of conference agreements not complying with minimum standards be found?

Division 4 - Registers and files and public inspection of them

10.10 Registers and conference agreement files open to public inspection

10.11 What registers are to be kept by the Registrar?

10.12 What conference agreement files are to be kept by the Registrar?

10.13 What register is to be kept by the Commission?

Division 5 - Exemptions from certain restrictive trade practice prohibitions

Subdivision A - Exemptions relating to conference agreements

10.14 Exemptions apply only to certain activities

10.15 When do exemptions commence to apply in relation to registered conference agreements?

10.16 Exemptions do not apply to variations of conference agreement unless varying agreement registered

10.17 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45

10.17A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements

10.18 Exemption from section 47

10.18A Exemptions from section 47 for freight rate agreements

Subdivision B - Exemptions relating to loyalty agreements

10.19 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45

10.20 Exemption from section 47

10.21 Exemptions cease to apply in relation to a shipper at the shipper’s option

Subdivision D - Other exemptions 24 10.24 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations

10.24A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to stevedoring contracts

Division 6 - Registration of conference agreements

Subdivision A - Provisional registration

10.25 Application for provisional registration of conference agreement

10.26 How application is to be made and verified

10.27 Copy of agreement to be filed with application etc.

10.27A Copy of conference agreement to be given to designated peak shipper body

10.28 Decision on application for provisional registration

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

Subdivision B - Final registration

10.30 Application for final registration of conference agreement

10.31 How application is to be made and verified

10.32 Copy of agreement to be filed with application etc.

10.33 Decision on application for final registration

Subdivision C - Confidentiality requests

10.34 Request for confidentiality

10.35 Abstract to accompany request for confidentiality

10.36 Examination of abstract

10.37 Decision on request for confidentiality

10.38 Application for registration to be returned where request for confidentiality refused etc.

Subdivision D - Miscellaneous

10.39 Application also to be made for registration of varying conference agreements

10.40 Notification of happening of affecting events prior to final registration etc.

Division 7 - Obligations of ocean carriers in relation to registered conference agreements

10.41 Parties to registered conference agreement to negotiate with certain designated shipper bodies etc.

10.42 Application to be made for registration of varying conference agreements

10.43 Parties to registered conference agreement to notify happening of affecting events etc.

Division 8 - Powers of Minister in relation to registered conference agreements

10.44 Powers exercisable by Minister in relation to registered conference agreements etc.

10.45 Circumstances in which Minister may exercise powers in relation to registered conference agreements

10.46 Action to be taken where powers exercised by Minister without first obtaining Commission report

10.47 Investigation and report by Commission on reference by Minister

10.48 Investigation and report by Commission on own initiative or on application by affected person

10.49 Undertakings by parties to registered conference agreement

10.49A Enforcement of undertakings

Division 9 - Obligations of non-conference ocean carriers with substantial market power

10.50 Investigations by Commission into market power of ocean carriers

10.51 Determination by Minister of market power of ocean carriers

10.52 Non-conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.

10.53 Non-conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc.

Division 10 - Powers of Minister in relation to non-conference ocean carriers with substantial market power

10.54 Powers exercisable by Minister in relation to obligations of non-conference ocean carriers with substantial market power

10.55 Circumstances in which Minister may exercise powers

10.56 Action to be taken where powers exercised by Minister without first obtaining Commission report

10.57 Investigation and report by Commission on reference by Minister

10.58 Investigation and report by Commission on application by affected person

10.59 Undertakings by ocean carrier

10.60 Enforcement of orders and undertakings

Division 11 - Unfair pricing practices

10.61 Powers exercisable by Minister in relation to pricing practices etc.

10.62 Circumstances in which Minister may exercise powers

10.63 Investigation and report by Commission

10.64 Undertakings not to engage in pricing practices

10.65 Enforcement of orders and undertakings

10.66 Determination of normal freight rates for shipping services

10.67 Determination of whether practice contrary to national interest

Division 12 - Registration of ocean carrier agents

10.68 Ocean carrier who provides international liner cargo shipping services to have registered agent

10.69 Representation of ocean carrier by registered agent

10.70 Application by ocean carrier for registration of agent

10.71 Registration of agent

10.72 Change of agent etc.

Division 12A - Exemption orders for inwards conference agreements etc.

10.72A Exemption orders for inwards conference agreements etc

10.72B Criteria for making exemption order

10.72C Duration of exemption order may be limited

10.72D Conditions of exemption order

Division 13 - General provisions relating to registers and conference agreement files

10.73 Form of registers and conference agreement files

10.74 Deletion of entries wrongly existing in certain registers

10.75 Deletion of obsolete entries in certain registers

10.76 Correction of clerical errors and other mistakes in certain registers etc.

Division 14 - Administration

10.77 Registrar of Liner Shipping

10.78 Appointment of Registrar etc.

10.79 Acting Registrar

10.80 Registrar and staff to be public servants

10.81 Delegation by Minister

10.82 Delegation by Registrar

Division 14A - Review of decisions of Commission

10.82A Review by Tribunal

10.82B Functions and powers of Tribunal

10.82C Provisions that do not apply in relation to a Tribunal review

Division 14B - Review of decisions of Minister

10.82D Review by Tribunal

10.82E Functions and powers of Tribunal

10.82F Modifying register after Tribunal review

10.82G Provisions that do not apply in relation to a Tribunal review

Division 15 - Miscellaneous

10.83 Act not to affect rights under Freedom of Information Act

10.84 Review of decisions of Registrar

10.85 Statement to accompany notices of Registrar

10.86 Evidence

10.87 Notification by Commission of references etc.

10.88 Exclusion of documents etc. from register of Commission investigations

10.89 Disclosure of confidential information

10.90 Fees

10.91 Application of Part XID and section 155 to investigations under Part

 

Part XI - Application of the Australian Consumer Law as a law of the Commonwealth

[This part applies to consumer protection rather than competition law provisions]

 

Part XIAA - Application of the Australian Consumer Law as a law of a State or Territory

[Consumer rather than competition provisions]

 

Part XIA - The Competition Code

 

Part XIB - The Telecommunications Industry: Anti-competitive conduct and record-keeping rules

Division 1 - Introduction

151AA Simplified outline

151AB Definitions

151AC Extension to external Territories

151AD Continuity of partnerships

151AE Additional operation of Part

151AF Telecommunications market

151AG When a body corporate is related to a partnership

151AH Degree of power in a telecommunications market

151AI Interpretation of Part IV or VII not affected by this Part

Division 15 - Miscellaneous

Division 3 - Competition notices and exemption orders

Subdivision A - Competition notices

151AKA Part A competition notices

151AL Part B competition notices

151AM Competition notice to be given to carrier or carriage service provider

151AN Evidentiary effect of competition notice

151AO Duration of Part A competition notice

151AOA Variation of competition notice

151AOB Revocation of competition notice

151AP Guidelines

151AQ Commission to act expeditiously

151AQA Stay of proceedings relating to competition notices

151AQB Advisory notices

151AR Register of competition notices

Subdivision B - Exemption orders

151AS Exemption orders

151AT Form of application

151AU Further information

151AV Withdrawal of application

151AW Commission must publicise receipt of applications

151AX Commission may refuse to consider application if it relates to the same conduct as an authorisation application

151AY Commission may refuse to consider application if it relates to the same conduct as a Part VII notification

151AZ Commission may convene conference to discuss application

151BA Commission must grant or reject application

151BB Commission to give opportunity for submissions

Amended by Harper Reforms151BC Criteria for making exemption order

151BD Notification of decision

151BE Duration of exemption order may be limited

151BF Conditions of exemption order

151BG Revocation of exemption order

151BH Register of exemption orders

Subdivision C - Miscellaneous

151BJ Conduct includes proposed conduct

Division 4 - Tariff filing

151BK Tariff filing directions

151BL Specification of goods and services

151BM Notification of reasons

151BN Duration of direction may be limited

151BO Revocation of direction

151BP Variation of direction

151BQ Public access to tariff information

151BR Register of tariff filing directions

151BT Meaning of terms and conditions

Division 5 - Tariff filing by Telstra

151BTA Tariff filing by Telstra

Division 6 - Record-keeping rules and disclosure directions

151BU Commission may make record-keeping rules

151BUAA Minister may give directions to Commission [repealed in 2010]

151BUAB Request for disclosure

151BUA Commission gives access to reports

151BUB Carrier or carriage service provider gives access to reports

151BUC Carrier or carriage service provider gives access to periodic reports

151BUD Exemption of reports from access requirements

151BUDA Commission gives access to Ministerially-directed reports

151BUDB Carrier or carriage service provider gives access to Ministerially-directed reports

151BUDCCarrier or carriage service provider gives access to Ministerially-directed periodic reports

151BUE Access via the internet

151BUF Self-incrimination

151BV Incorrect records

Division 7 - Enforcement of the competition rule, tariff filing directions, record-keeping rules and disclosure directions

151BW Person involved in a contravention of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction

151BX Pecuniary penalties for breach of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction

151BY Civil action for recovery of pecuniary penalties

151BZ Criminal proceedings not to be brought for contraventions of the competition rule, tariff filing directions, record-keeping rules or disclosure directions

151CA Injunctions

151CB Orders to disclose information or publish an advertisement - breach of the competition rule

151CC Actions for damages—breach of the competition rule

151CD Finding of fact in proceedings to be evidence

151CE Other orders—compensation for breach of the competition rule

151CF Conduct by directors, employees or agents

Division 8 - Disclosure of documents by Commission

151CG Disclosure of documents by Commission

Division 9 - Treatment of partnerships

151CH Treatment of partnerships

Division 10 - Review of decisions

151CI Review by Tribunal

151CJ Functions and powers of Tribunal

151CK Provisions that do not apply in relation to a Tribunal review

Division 11 - Reviews of competitive safeguards within the telecommunications industry

151CL Reviews of competitive safeguards within the telecommunications industry

Division 12 - Monitoring of telecommunications charges paid by consumers

151CM Monitoring of telecommunications charges paid by consumers

Division 12A - Reports about competition in the telecommunications industry

151CMA Public reports about competition in the telecommunications industry

151CMB Confidential reports about competition in the telecommunications industry

151CMCExamples of matters that may be specified in a determination under section 151CMA or 151CMB

Division 13 - Review of operation of this Part [repealed]

[Division 13 [incorporating s 151CN] repealed by Omnibus Repeal Day (Autumn 2014) Act 2014]

Division 14 - Operational separation for Telstra

151CP Operational separation for Telstra

Division 15 - Voluntary undertakings given by Telstra

151CQ Voluntary undertakings given by Telstra

Division 16 - NBN corporations

151DA  Authorised conduct - subsection 51(1)

151DB  Listed points of interconnection

[Sections 151DC and 151DD repealed by Omnibus Repeal Day (Autumn 2014) Act 2014]

 

Part XIC - Telecommunications Access Regime

Division 1 - Introduction

152AA Simplified outline

152AB Object of this Part

152AC Definitions

152AD This Part binds the Crown

152AE Extension to external Territories

152AF Access

152AG Access seeker

152AGA Designated superfast telecommunications network

152AH Reasonableness - terms and conditions

152AI When public inquiry commences

152AJ Interpretation of Part IIIA not affected by this Part

152AK Operation of Parts IV and VII not affected by this Part

Division 2 - Declared services

152AL Declared services

152ALA Duration of declaration

152AM Inquiries about proposals to declare services

152AN Combined inquiries about proposals to declare services

152AO Variation or revocation of declaration

152AQ Register of declared services

152AQCCompensation for acquisition of property

Division 3 - Standard access obligations

152AR Standard access obligations

152ARB Layer 2 bitstream services-carriers and carriage service providers to carry on related activities on a non-discriminatory basis

152ARA Layer 2 bitstream services to be supplied on a non-discriminatory basis

152ASA Anticipatory class exemptions from standard access obligations

152ATA Anticipatory individual exemptions from standard access obligations

152AU Individual exemptions - request for further information

152AXA Statement of reasons for decision - specification of documents

152AY Compliance with standard access obligations

152AYAAncillary obligations - confidential information

152AZ Carrier licence condition

152BA Service provider rule

152BB Judicial enforcement of standard access obligations

152BBAA Judicial enforcement of conditions and limitations of exemption determinations and orders

152BBA Commission may give directions in relation to negotiations

152BBB Enforcement of directions

152BBC Commission’s role in negotiations

152BBD Reaching agreement on terms and conditions of access

Division 4 - Access determinations

Subdivision A - Commission may make access determinations

152BC Access determinations

152BCA Matters that the Commission must take into account

152BCB Restrictions on access determinations

152BCC Access agreements prevail over inconsistent access determinations

152BCCA Final migration plan prevails over inconsistent access determinations

152BCD Fixed principles provisions

152BCE Access determinations may be set out in the same document

152BCF Duration of access determination

152BCG Interim access determinations

152BCGA Stay of access determinations

Subdivision B - Public inquiries about proposals to make access determinations

152BCH Access determination to be made after public inquiry

152BCI When public inquiry must be held

152BCJ Combined inquiries about proposals to make access determinations

152BCK Time limit for making an access determination

Subdivision C - Variation or revocation of access determinations

152BCN Variation or revocation of access determinations

Subdivision D - Compliance with access determinations

152BCO Carrier licence condition

152BCP Service provider rule

Subdivision E - Private enforcement of access determinations

152BCQ Private enforcement of access determinations

152BCR Consent injunctions

152BCS Interim injunctions

152BCT Factors relevant to granting a restraining injunction

152BCU Factors relevant to granting a mandatory injunction

152BCV Discharge or variation of injunction or other order

Subdivision F - Register of Access Determinations

152BCW Register of Access Determinations

Division 4A - Binding rules of conduct

Subdivision A - Commission may make binding rules of conduct

152BD Binding rules of conduct

152BDAAMatters that the Commission must take into account

152BDA Restrictions on binding rules of conduct

152BDB Access agreements prevail over inconsistent binding rules of conduct

152BDC Duration of binding rules of conduct

152BDCA Final migration plan prevails over inconsistent binding rules of conduct

152BDD Commission must give copy of binding rules of conduct to carrier etc.

152BDE Access determinations that are inconsistent with binding rules of conduct

152BDEA Stay of binding rules of conduct

Subdivision B - Compliance with binding rules of conduct

152BDF Carrier licence condition

152BDG Service provider rule

Subdivision C - Private enforcement of binding rules of conduct

152BDH Private enforcement of binding rules of conduct

152BDI Consent injunctions

152BDJ Interim injunctions

152BDK Factors relevant to granting a restraining injunction

152BDL Factors relevant to granting a mandatory injunction

152BDM Discharge or variation of injunction or other order

Subdivision D - Register of Binding Rules of Conduct

152BDN Register of Binding Rules of Conduct

Division 4B - Access agreements

152BE Access agreements

152BEA Lodgment of access agreements with the Commission

152BEB Notification of termination of access agreement

152BEBA  NBN corporation to give the Commission a statement about the differences between an access agreement and a standard form of access agreement

152BEBB NBN corporation to give the Commission a statement about the differences between an access agreement and a special access undertaking

152BEBC NBN corporation to give the Commission a statement about the differences between an access agreement and an access determination

152BEBD Register of NBN Access Agreement Statements

152BEBE Layer 2 bitstream services-carrier or carriage service provider to give the Commission a statement about the differences between an access agreement and a special access undertaking

152BEBF Layer 2 bitstream services-carrier or carriage service provider to give the Commission a statement about the differences between an access agreement and an access determination

152BEBG Register of Layer 2 Bitstream Access Agreement Statements

152BEC Carrier licence condition

152BED Service provider rule

Division 5 - Access undertakings

Subdivision B - Special access undertakings

152CBA What is a special access undertaking?

152CBAA Fixed principles terms and conditions

152CBB Further information about undertaking

152CBC Commission to accept or reject access undertaking

152CBCA Serial undertakings

152CBD Criteria for accepting access undertaking

152CBDAVariation of special access undertaking

152CBE Extension of access undertaking

152CBF Duration of access undertaking

152CBG Variation of access undertakings

152CBH Further information about variation of access undertaking

152CBI Voluntary withdrawal of undertaking

152CBIASpecial access undertakings prevail over inconsistent access determinations

152CBIB Special access undertakings prevail over inconsistent binding rules of conduct

152CBICAccess agreements prevail over special access undertakings

152CBJ Proposed service

Subdivision C - General provisions

152CC Register of access undertakings

152CD Enforcement of access undertakings

152CDADeferral of consideration of an access undertaking etc.

Division 6 - Ministerial pricing determinations

152CH Ministerial pricing determinations

152CI Undertakings, access determinations and binding rules of conduct that are inconsistent with Ministerial pricing determinations

152CJ Register of Ministerial pricing determinations

Division 6A - Supply of services by NBN corporations

152CJA Supply of services by NBN corporations

152CJB Mandatory NBN services

152CJC Carrier licence condition

152CJD Service provider rule

152CJE Judicial enforcement of obligations

152CJF Standard form of access agreement

152CJG When NBN corporation is not capable of supplying a carriage service

Division 6B - Explanatory material relating to anti-discrimination provisions

152CJH Explanatory material relating to anti‑discrimination provisions

Division 7 - Relationship between this Part and Part IIIA

152CK Relationship between this Part and Part IIIA

Division 10 - Hindering the fulfilment of a standard access obligation etc.

152EF Prohibition on hindering the fulfilment of a standard access obligation etc.

152EG Enforcement of prohibition on hindering the fulfilment of a standard access obligation etc.

152EH Consent injunctions

152EI Interim injunctions

152EJ Factors relevant to granting a restraining injunction

152EK Factors relevant to granting a mandatory injunction

152EL Discharge or variation of injunction or other order

Division 10A - Procedural Rules

152ELA Procedural Rules

152ELB Public consultation

152ELC Plan for the development of Procedural Rules

Division 11 - Miscellaneous

152ELD Compensation for acquisition of property

152EM Continuity of partnerships

152EN Treatment of partnerships

152EO Conduct by directors, servants or agents

152EOA Review of operation of this Part

152EP Regulations about fees for inspection etc. of registers

152EQ Operational separation for Telstra

152ER Voluntary undertakings given by Telstra

 

Part XID - Search and Seizure

Division 1 - Preliminary

Division 2 - Appointment of inspectors and identity cards

Division 3 - Entry to premises with consent

Division 4 - Entry to premises under a search warrant

Division 5 - General provisions relating to electronic equipment

 

Part XII - Miscellaneous

Amended by Harper Reforms155 Power to obtain information, documents and evidence

155AAA Protection of certain information

155AA Protection of Part VB information

155A Power to obtain information and documents in New Zealand relating to trans-Tasman markets

155B Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission

156 Inspection of documents by Commission

Amended by Harper Reforms157 Disclosure of documents by Commission

Amended by Harper Reforms157AA Disclosure of documents by Tribunal in relation to merger authorisations (repealed)

157A Disclosure of information by Commission

157B Disclosure of protected cartel information to a court or tribunal

157C Disclosure of protected cartel information to a party to court proceedings etc.

157D General powers of a court

158 Protection of members of Tribunal, counsel and witnesses

159 Incriminating answers

160 Failure of witness to attend

161 Refusal to be sworn or to answer questions

162 Contempt

162A Intimidation etc.

Amended by Harper Reforms163 Prosecutions

163A Declarations and orders

Amended by Harper Reforms165 Inspection of, furnishing of copies of, and evidence of, documents

Amended by Harper Reforms166 Certificates as to furnishing of particulars to Commission

167 Judicial notice

Amended by Harper Reforms170 Legal and financial assistance

171 Annual report by Commission

171A Charges by the Commission

171B Division 3 of Part IIIA does not confer judicial power on the Commission

Amended by Harper Reforms172 Regulations

173 Authorisation for the purposes of subsection 51(1)

 

Part XIII - Application and transitional provisions relating to the competition provisions

Division 1 - Cartel conduct

Division 2 - Application of amendments made by the Competition and Consumer Amendment 2011

179 Amendments of section 50

Division 3 - Application of amendments made by the Competition and Consumer Amendment (Competition Policy Review) Act 2017

Amended by Harper Reforms180 Definitions

Amended by Harper Reforms181 Amendment of the definition of competition

Amended by Harper Reforms182 Orders under section 87

Amended by Harper Reforms183 Authorisations under section 88

Amended by Harper Reforms184 Notices under section 93

Amended by Harper Reforms185 Merger clearances and authorisations

 

Schedule 1 - The Schedule versions of Part IV

Division 1 - Cartel conduct

Amended by Harper ReformsRe-numbered

Subdivision A - Introduction

45AA Simplified outline (renumbered s 45AA)

45AB Definitions

45AC Extended meaning of party

Amended by Harper Reforms45AD Cartel provisions

45AE Meaning of expressions in other provisions of this Act

Subdivision B - Offences etc.

45AF Making a contract etc. containing a cartel provision

45AG Giving effect to a cartel provision

45AH Determining guilt

45AI Court may make related civil orders

Subdivision C - Civil penalty provisions

45AJ Making a contract etc. containing a cartel provision

45AK Giving effect to a cartel provision

Subdivision D - Exceptions

45AL Conduct notified

45AMCartel provision subject to grant of authorisation

45AN Contracts, arrangements or understandings between related bodies corporate

Amended by Harper Reforms45AO Joint ventures—prosecution

Amended by Harper Reforms45AP Joint ventures—civil penalty proceedings

Amended by Harper Reforms45AQ Resale price maintenance

Amended by Harper Reforms45AR Exclusive dealing

Amended by Harper Reforms45AS Dual listed company arrangement

45AT Acquisition of shares or assets

45AU Collective acquisition of goods or services by the parties to a contract, arrangement or understanding

Division 2 - Other provisions

Amended by Harper Reforms45 Contracts, arrangements or understandings that restrict dealings or affect competition

Amended by Harper Reforms45D Secondary boycotts for the purpose of causing substantial loss or damage

Amended by Harper Reforms45DA Secondary boycotts for the purpose of causing substantial lessening of competition

45DC Involvement and liability of employee organisations

45DD Situations in which boycotts permitted

Amended by Harper Reforms45E Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services

Amended by Harper Reforms45EA Provisions contravening section 45E not to be given effect

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

Amended by Harper Reforms46 Misuse of market power

Amended by Harper Reforms47 Exclusive dealing

Amended by Harper Reforms48 Resale price maintenance

49 Dual listed company arrangements that affect competition

50 Prohibition of acquisitions that would result in a substantial lessening of competition

Amended by Harper Reforms51 Exceptions

 

Schedule 2 - The Australian Consumer Law

[Note, this part relates to consumer protection, not competition law. However, given that the laws relating to unconscionable conduct and unfair terms form part of the Harper Competition Policy Review 2014-2015, those provisions and selected related provisions have been included below - note that the full Australian Consumer Law comprises almost 300 separate provisions.]

Chapter 1 - Introduction

...

2 Definitions

3 Meaning of consumer

...

Chapter 2 - General protections

Part 2-1 Misleading or deceptive conduct

18 Misleading or deceptive conduct

19 Application of this Part to information providers

Part 2-2 Unconscionable conduct

20 Unconscionable conduct within the meaning of the unwritten law

21 Unconscionable conduct in connection with goods or services

22 Matters the court may have regard to for the purposes of section 21

22A Presumptions relating to whether representations are misleading

Part 2-3 Unfair contract terms

23 Unfair terms of consumer contracts

24 Meaning of unfair

25 Examples of unfair terms

26 Terms that define main subject matter of consumer contracts etc. are unaffected

27 Standard form contracts

28 Contracts to which this Part does not apply

...