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Competition and Consumer Act 2010 (Cth)

Section 4
Interpretation

 

The provision

(1) In this Act, unless the contrary intention appears:

acquire includes:

(a) in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hire‑purchase; and

(b) in relation to services—accept.

AEMC or Australian Energy Market Commission means the body established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia

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

authorisation means:

(a) an authorisation under Division 1 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission; or

(b) an authorisation under Division 3 of Part VII granted by the Tribunal.

authority, in relation to a State or Territory (including an external Territory), means:

(a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or

(b) an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.

authority of the Commonwealth means:

(a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or

(b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.

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.

business includes a business not carried on for profit.

cartel provision has the meaning given by section 44ZZRD.

Chairperson means the Chairperson of the Commission.

clearance means a clearance under Division 3 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission.

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.

competition includes competition from imported goods or from services rendered by persons not resident or not carrying on business in Australia

Competition Principles Agreement means the Competition Principles Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time.

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.

corporation means a body corporate that:

(a) is a foreign corporation;

(b) is a trading corporation formed within the limits of Australia

(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).

covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land), and proposed covenant has a corresponding meaning.

debenture includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a body corporate, whether constituting a charge on property of the body corporate or not.

Deputy 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

(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).

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.

electronic communication means a communication of information by means of guided and/or unguided electromagnetic energy:

(a) whether in the form of text; or

(b) whether in the form of data; or

(c) whether in the form of speech, music or other sounds; or

(d) whether in the form of visual images (animated or otherwise); or

(e) whether in any other form; or

(f) whether in any combination of forms.

Federal Circuit Court means the Federal Circuit Court of Australia.

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;

(c) minerals, trees and crops, whether on, under or attached to land or not; and

(d) gas and electricity.

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.

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, of furthering the interests of its members in relation to their employment.

personal injury has (except in section 68B) a meaning affected by section 4KA.

practice of exclusive dealing means the practice of exclusive dealing referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9).

practice of resale price maintenance means the practice of resale price maintenance referred to in Part VIII.

President means the President of the Tribunal and includes a person appointed to act as President of the Tribunal.

presidential member or presidential member of the Tribunal means the President or a Deputy President.

price includes a charge of any description.

provision, in relation to an understanding, means any matter forming part of the understanding.

registered charity means an entity that is registered under the Australian Charities and Not-for-profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25-5(5) of that Act.

Registrar means the Registrar of the Tribunal.

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;

(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

(b) any regulations, as in force from time to time, made under Part 3 of that Act.

The reference in paragraph (a) to the National Gas Law set out in the Schedule to the National Gas (South Australia ) Act 2008 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

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:

(a) an internal Territory; or

(b) the Territory of Christmas Island

(c) the Territory of Cocos (Keeling) Islands

the Court or the Federal Court means the Federal Court of Australia.

the Family Court means the Family Court of Australia.

this Act includes Schedule 2 to the extent that it is applied under Subdivision A of Division 2 of Part XI.

trade or commerce means trade or commerce within Australia or between Australia and places outside

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 )

(b) any regulations, as in force from time to time, made under Part 3 of that Act.

The reference in paragraph (a) to the National Gas Access (Western Australia ) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia ) as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

(2) In this Act:

(a) a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;

(b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), shall be read as a reference to the doing of or the refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;

(c) a reference to refusing to do an act includes a reference to:

(i) refraining (otherwise than inadvertently) from doing that act; or

(ii) making it known that that act will not be done; and

(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, or to render a covenant, unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect notwithstanding that:

(a) at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or

(b) the provision of the contract or the covenant will not or may not have that effect at a later time.

(4) In this Act:

(a) a reference to the acquisition of shares in the capital of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such shares; and

(b) a reference to the acquisition of assets of a person shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such assets but does not include a reference to an acquisition by way of charge only or an acquisition in the ordinary course of business.

 

Legislative history

Amended by Competition and Consumer Amendment (Payment Surcharges) Act 2016

Section 1 inserted the following:

electronic communication means a communication of information by means of guided and/or unguided electromagnetic energy:

(a) whether in the form of text; or

(b) whether in the form of data; or

(c) whether in the form of speech, music or other sounds; or

(d) whether in the form of visual images (animated or otherwise); or

(e) whether in any other form; or

(f) whether in any combination of forms.

Amended by the Federal Circuit Court of Australia (Consequential Amendments) Act 2013

Section 88 inserted the following:

Federal Circuit Court means the Federal Circuit Court of Australia.

Amended by Australian Charities and Not-for-profits Commission (Consequential and Transitional) Act 2012

Section 160 inserted:

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.

Amended by Australian Energy Market Amendment (National Energy Retail Law) Act 2011 (No 119 of 2011)

2  Subsection 4(1) (at the end of the definition of designated Commonwealth energy law)

Add:

; or (d)  the National Energy Retail Law and Regulations (Commonwealth) (as defined by the Australian Energy Market Act 2004).

3  Subsection 4(1)

Insert:

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.

4  Subsection 4(1)

Insert:

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.

5  Subsection 4(1) (after paragraph (c) of the definition of uniform energy law)

Insert:

                    (ca)  the South Australian Energy Retail Legislation; or

Amended by the Acts Interpretation Amendment Act 2011 (Act 46 of 2011)

The following definition of 'document' was repealed by s 409:

document includes:

(a) a book, plan, paper, parchment or other material on which there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and

(b) a disc, tape, paper or other device from which sounds or messages are capable of being reproduced.

It was replaced with this definition:

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.

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

32  Subsection 4(1)

"Insert:

Telstra has the same meaning as in the Telstra Corporation Act 1991."

Amended by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Act 103 of 2010), sch 5.

Added or substituted:

Australian Consumer Law means Schedule 2 as applied under Subdivision A of Division 2 of Part XI

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 18 unless the impairment consists of a recognised psychiatric illness.

this Act includes Schedule 2 to the extent that it is applied under Subdivision A of Division 2 of Part XI.

Repealed the following definitions

commencing date (previously defined as 'means 1 October 1974')

consumer contract

enforcement proceedings

Family Court Judge
(previously defined as follows: 'Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).)'

Financial product
(previously defined as follows: 'financial product has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001.')

Financial service
(previously defined as follows: 'financial service has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001.')

Infringement notice

Infringement notice compliance period

Infringement notice provision

Non-party consumer

Provision
(previously: 'provision, of the Australian Consumer Law, has the meaning given 9 by section 4KB.')

Rely on

Substantiation notice

Substantiation notice compliance period

Unfair

Unsolicited goods
(previously: 'unsolicited goods means goods sent to a person without any request made by him or her or on his or her behalf.')

Unsolicited services
(previously: 'unsolicited services means services supplied to a person without any request made by him or her or on his or her behalf.')

Amended by Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 (Act 44 of 2010)

Amended by Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Act 59 of 2009)

Amended by Australian Energy Market Amendment (AEMO and Other Measures) Act 2009 (Act 17 of 2009)

Amended by Australian Energy Market Amendment (Minor Amendments) Act 2008 (Act 60 of 2008)

Amended by Trade Practices Legislation Amendment Act 2007 (Act 159 of 2007)

Amended by Australian Energy Market Amendment (Gas Legislation) Act 2007 (Act 45 of 2007)

Amended by Trade Practices Legislation Amendment Act (No 1) 2006 (Act 131 of 2006)

Amended by Trade Practices Amendment (Personal Injuries and Death) Act (No 2) 2004 (Act 113 of 2004)

Amended by Trade Practices Amendment (Australian Energy Market) Act 2004 (Act 108 of 2004)

Amended by Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Act 55 of 2001)

Amended by Financial Sector Reform (Consequential Amendments) Act 1998 (Act 48 of 1998)

Amended by Workplace Relations and other Legislation Amendment Act 1996 (Act 60 of 1996)

Amended by Competition Policy Reform Act 1995 (Act 88 of 1995)

Amended by Trade Practices Legislation Amendment Act 1992 (Act 222 of 1992)

Amended by Territories Law Reform Act 1992 (Act 104 of 1992)

Amended by Trade Practices (Misuse of Trans-Tasman Market Power) Act 1990 (Act 70 of 1990)

Amended by Family Court of Australia (Additional Jurisdiction and Exercise of Powers Act 1988) (Act 8 of 1988)

Amended by Trade Practices Revision Act 1986 (Act 17 of 1986)

Amended by Trade Practices Amendment Act 1978 (Act 206 of 1978)

Amended by Trade Practices Amendment Act 1977 (Act 81 of 1977)

Amended by Federal Court of Australia (Consequential Provisions) Act 1976 (Act 157 of 1976)

Amended by Trade Practices Amendment Act 1976 (Act 88 of 1976)

 

Commentary

Corporation

Current activities test applies. See:

Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 (per Toohey J) (incorporated sporting body was found to be a trading corporation)

Adamson; State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 at 304.

Supply

ACCC v Flight Centre Limited (No 2) [2013] FCA 1313 (6 December 2013)
[para's 129-133, inlcuding]

[131] ...it may readily be accepted that the inclusive qualities in the definition of the word "supply" confirm what its breadth of ordinary meaning would suggest, which is that it is not necessary for a person to be in a contractual relationship with a consumer in order for that person to be a supplier of a service to that consumer.