Part XIA - The Competition Code
In this Part, unless the contrary intention appears:
application law means:
(a) a law of a participating jurisdiction that applies the Competition Code, either with or without modifications, as a law of the participating jurisdiction; or
(b) any regulations or other legislative instrument made under a law described in paragraph (a); or
(c) the Competition Code, applying as a law of the participating jurisdiction, either with or without modifications.
apply, in relation to the Competition Code, means apply the Competition Code by reference:
(a) as in force from time to time; or
(b) as in force at a particular time.
Commonwealth entity means:
(a) an authority of the Commonwealth; or
(b) an officer of the Commonwealth.
Competition Code means (according to the context):
(a) the text described in section 150C; or
(b) that text, applying as a law of a participating jurisdiction, either with or without modifications.
modifications includes additions, omissions and substitutions.
officer, in relation to the Commonwealth, includes the following:
(a) a Minister;
(b) a person who holds:
(i) an office established by or under an Act;
(ii) an appointment made under an Act;
(iii) an appointment made by the Governor‑General or a Minister but not under an Act;
(c) a person who is a member or officer of an authority of the Commonwealth;
(d) a person who is in the service or employment of the Commonwealth, or of an authority of the Commonwealth, or is employed or engaged under an Act.
participating jurisdiction means a participating State or Territory.
participating State means a State that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the State, either with or without modifications.
participating Territory means a Territory that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the Territory, either with or without modifications.
Schedule version of Part IV means the text that is set out in Part 1 of the Schedule to this Act.
Territory means the
The objects of this Part are:
(a) to facilitate the application of the Competition Code by participating Territories; and
(b) to facilitate the application of the Competition Code by participating States.
(1) The Competition Code consists of:
(a) the Schedule version of Part IV;
(b) the remaining provisions of this Act (except sections 2A, 5, 6 and 172), so far as they would relate to the Schedule version if the Schedule version were substituted for Part IV;
(c) the regulations under this Act, so far as they relate to any provision covered by paragraph (a) or (b).
(2) For the purpose of forming part of the Competition Code, the provisions referred to in paragraphs (1)(b) and (c) are to be modified as necessary to fit in with the Schedule version of Part IV. In particular, references to corporations are to include references to persons who are not corporations.
150D Federal Court may exercise jurisdiction under application laws of Territories
The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the Competition Code.
150E Exercise of jurisdiction under cross‑vesting provisions
This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross‑vesting of jurisdiction.
(1) An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the Competition Code.
Note: Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.
(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or
(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.
(3) The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.
Application
(1) This section applies if an application law purports to impose a duty on a Commonwealth entity.
Note: Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 150F to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.
(5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.
(6) Subsections (1) to (5) do not limit section 150F.
150FB When an application law imposes a duty
For the purposes of sections 150F and 150FA, an application law imposes a duty on a Commonwealth entity if:
(a) the law confers a function or power on the entity; and
(b) the circumstances in which the function or power is conferred give rise to an obligation on the entity to perform the function or to exercise the power.
150G Application laws may operate concurrently with this Act
This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.
150H No doubling‑up of liabilities
(1) If:
(a) an act or omission is an offence against this Act and is also an offence against an application law; and
(b) the offender has been punished for the offence under the application law;
the offender is not liable to be punished for the offence against this Act.
(2) If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.
150I References in instruments to the Competition Code
(1) A reference in any instrument to the Competition Code is a reference to the Competition Codes of any or all of the participating jurisdictions.
(2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.
150J Authorisations etc. under this Act may relate also to Competition Code
The validity of an authorisation, notification, clearance or any other thing given or done for the purposes of this Act is not affected only because it was given or done also for the purposes of the Competition Code.
150K Gazettal of jurisdictions that excessively modify the Code
(1) If the Minister is satisfied that the laws of a participating jurisdiction have made significant modifications to the Competition Code in its application to persons within the legislative competence of the participating jurisdiction, the Minister may publish a notice in the Gazette stating that the Minister is so satisfied.
(2) The Minister may, by further notice in the Gazette, revoke a notice published under subsection (1).