Part II - The Australian Competition and Consumer Commission
6A Establishment of Commission
(1) The Australian Competition and Consumer Commission is established by this section.
(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.
(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.
Note: A member of the Commission who is also appointed as an AER member remains a full‑time member of the Commission: see section 44AN.
(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.
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.
(1) The Minister may appoint persons to be associate members of the Commission.
(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 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 a clearance, or the making by the Commission of any decision for the purposes of subsection 93(3) or (3A) or 93AC(1) or (2), 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 in relation to which the Chairperson proposes to give a direction under subsection 19(1), whether he or she should direct that the 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 under section 171.
8AB State/Territory AER members taken to be associate members
(1) A State/Territory 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: A State/Territory 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, a State/Territory 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, 15 and 17.
(3) As an associate member, the State/Territory AER member holds office on such terms and conditions as are specified in the instrument of his or her appointment under section 44AP.
(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.
(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.
(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.
(1A) A person appointed under subsection (1) to act during a vacancy shall not continue so to act for more than 12 months.
(2) Where the Chairperson is absent from duty or
from
(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.
(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.
(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.
(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;
(b) fails to comply with his or her obligations under section 17;
(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 member of the Commission.
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:
(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 section 17;
the Minister shall terminate the appointment of that associate member of the Commission.
(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.
The Chairperson may give directions as to the arrangement of the business of the Commission.
17 Disclosure of interests by members
(1) Where a member of the Commission other than the Chairperson is taking part, or is to take part, in the determination of a matter before the Commission 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 determination of the matter:
(a) the member shall disclose the interest to the Chairperson; and
(b) the member shall not take part, or continue to take part, in the determination of the matter if:
(i) the Chairperson gives a direction under paragraph (2)(a) in relation to the matter; or
(ii) all of the persons concerned in the matter do not consent to the member taking part in the determination of the matter.
(2) Where the Chairperson becomes aware that a member of the Commission is taking part, or is to take part, in the determination of a matter and that the member has in relation to the determination of the matter such an interest:
(a) if the Chairperson considers that the member should not take part, or should not continue to take part, in the determination of the matter—the Chairperson shall give a direction to the member accordingly; or
(b) in any other case—the Chairperson shall cause the interest of the member to be disclosed to the persons concerned in the matter.
(3) The Chairperson shall give written notice to
the Minister of all pecuniary interests that the Chairperson has or acquires in
any business carried on in
(4) In this section, member of the Commission includes an associate member of the 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:
(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 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) Where the Chairperson has given a direction under subsection (1), he or she may, by writing signed by him or her, at any time before the Division of the Commission specified in the direction has made a determination in relation to the matter, revoke the direction or amend the direction in relation to the membership of the Division or in any other respect, and where the membership of a Division of the Commission is changed, the Division as constituted after the change may complete the determination of the matter.
(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.
(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 notwithstanding that another Division of the Commission is exercising powers of the Commission at the same time.
(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), 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 or the Australian Postal Corporation Act 1989, other than this power of delegation and its powers to grant, revoke or vary an authorization or a clearance.
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 in relation to unconscionable conduct and consumer protection
(1) The Commission may, by resolution, delegate any of its functions and powers under or in relation to Parts IVA, V, VC and VI and any of its powers under Part XII that relate to those Parts, 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 and Investments Commission has agreed to the delegation in writing.
(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.
(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;
(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
(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.
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,VII, VIIA, X, XIB or XIC; or
(b) section 65J, 65K, 65M or 65N 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.